State v. WhippleState v. Whipple
A jury convicted defendant of the armed robberies of two liquor stores on May 25, 1972, namely, Klotz Beverage Emporium (Klotz) and the Parkway Wine and Liquor Store (Parkway). Two of his confederates were also tried for the same offenses, and a third turned State‘s evidence and testified fully to what occurred before, during and after the robberies. We are here concerned only with the appeal by defendant Whipple.
The Parkway armed robbery involved defendant and his confederates robbing Aaron Melman and Harold Huschke, and assaulting Samuel Melman with a weapon. The Klotz armed robbery, which took place within one-half hour before the Parkway armed robbery, involved defendant and his confederates
(See Chart on Next Page)
COUNT OFFENSE VICTIM WHIPPLE‘S SENTENCE I Robbery A. Melman 6-8 years II Robbery while armed A. Melman 2-3 years concurrent with I. III Robbery H. Huschke 6-8 years concurrent with I. IV Robbery while armed H. Huschke 2-3 years concurrent with III. V Assault with weapon H. Huschke Dismissed by court. VI Assault with weapon A. Melman Dismissed by court. VII Assault with weapon A. Melman 2-3 years concurrent with I. VIII Robbery P. Klotz t/a Klotz Beverage 6-8 years Emporium. consecutive to I. IX Robbery while armed P. Klotz, t/a 2-3 years concurrent Klotz Beverage with VIII. Emporium. X Robbery R. Player Dismissed by court. XI Robbery while armed R. Player Dismissed by court. XII Robbery P. Klotz 6-8 years concurrent with I. XIII Robbery while armed P. Klotz 2-3 years concurrent with XII. XIV Assault with weapon P. Klotz Dismissed by court. XV Assault with weapon R. Player 2-3 years concurrent with I. XVI Assault with weapon E. Sapp 2-3 years concurrent with I.
There is no merit to defendant‘s contention that the trial judge should have severed for trial the counts pertaining to each robbery. A motion for severance under
However, we do find merit on the issue of merger with respect to the Klotz armed robbery. Klotz owned the liquor store and the money taken from the cash register in the front of the store, and the money taken from him in the
Regardless of whether the “same evidence” test or the “same transaction” test is used, the convictions as to the robbing of Klotz merged. We recognize that the above tests have been loosely used and applied by attorneys and the courts in deciding issues of double jeopardy, merger, res judicata, collateral estoppel and issues of double punishment. This has led to confusion in the application of these principles when our goal should be fairness and fulfillment of reasonable expectations in the light of the constitutional and common law goals. State v. Cormier, 46 N.J. 494 (1966).
Our Supreme Court has recently recognized the confusion which existed in this area and has taken a giant step to eliminate the root-causes of the problem. Justice Pashman, in a unanimous decision of the court, adopted a “flexibility of approach” test which is worth repeating:
* * * Recognizing that these standards “were not absolute in nature, that the emphasis should be placed on underlying policies rather than on technisms, and that primary consideration should be given to factors of fairness and fulfillment of reasonable expectations,” State v. Berry, supra, 41 N.J. [547] at 551; cf. State v. Currie, supra, 41 N.J. [531] at 539; State v. Gregory, supra, 66 N.J. [510] at 517; State v. Roller, supra, 29 N.J. [339] at 346; State v. Louf, 126 N.J. Super. 321, 338 (App. Div. 1973), aff‘d in part and rev‘d in part, 64 N.J. 172 (1973); State v. Ferrante, 111 N.J. Super. 299, 303 (App. Div. 1970), this Court has in recent years employed “a certain flexibility of approach” to determine whether two offenses are factually distinct. State v. Davis, supra, 68 N.J. at 81; State v. Bell, 55 N.J. 239 (1970); State v. Cormier, 46 N.J. 494, 504 (1966); State v. Berry, supra; State v. Currie, supra. This approach contemplates a multi-faceted analysis which would consider the nature of the offenses, the time and place of each offense, whether the evidence submitted as to one count of an indictment is necessary and/or sufficient to sustain a conviction under another count, whether one offense is an integral part of the larger scheme, the intent of the accused and the consequences of
Tested by these standards, there is no room for argument but that the armed robberies of Klotz arose at the same time and place, where part of one continuing criminal episode against him which contemplated robbing him of his moneys, whether such was done in the front or rear of the store. The criminal intent here cannot be fractionalized, hence a merger resulted and only one crime of armed robbery as to Klotz occurred. State v. Best, supra, at 62; State v. Craig, 48 N.J. Super. 276, 279 (App. Div. 1958). Thus, defendant should not be punished twice for the same offense. State v. Best, supra 70 N.J. at 60, and cases cited therein.
In view of the nature of the present offenses for which he was properly convicted, the sentences imposed were warranted (except as herein modified), and he has failed to show that the sentencing judge abused his discretion. State v. Tyson, 43 N.J. 411, 417 (1964), cert. den. 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965).
In summary, the convictions and sentences on counts XII and XIII, having merged into counts VIII and IX, are vacated and set aside; except as so modified, the judgment below in all other respects is affirmed.