Opinion

State v. Dillihay

  • 241 N.J. Super. 553
  • 575 A.2d 876
  • 1990 N.J. Super. LEXIS 189
Court
New Jersey Superior Court Appellate Division
Filed
May 31, 1990
Status
Published
Author
Landau
On the bench
Landau, Long
Cited by
4 cases
Authority
More cited than 23.5%

The opinion

LANDAU, J.A.D.,

concurring in part and dissenting in part.

I concur with the affirmance of Dillihay’s convictions, and the rejection of his contentions on appeal. As to the N.J.S.A. 2C:35-7 merger issue presented by the State’s cross-appeal, I must respectfully dissent.

The majority has chosen to rely upon Judge Skillman’s dissent in State v. Gonzalez, 241 N.J.Super. 92 , 574 A.2d 487 (App.Div.1990). I am convinced, however, that the Legislature has made clear in unambiguous terms its intention to create a separate non-mergable crime by enacting N.J.S.A. 2C:35-7, not merely to impose and preserve the parole ineligibility requirement. It could have readily accomplished the latter objective by a direct amendment with a penalty enhancement or parole ineligibility clause.

Respectfully, I prefer to adopt the majority reasoning in Gonzalez as expressed by Judge Brody, and in cases such as *557 State v. Anaya, 238 N.J.Super. 31, 39 , 568 A.2d 1208 (App.Div. 1990); State v. Blow, 237 N.J.Super. 184, 189-92 , 567 A.2d 253 (App.Div.1989); State v. Ogar, 229 N.J.Super. 459, 471 , 551 A.2d 1037 (App.Div.1989); as well as my dissenting comments in State v. Soto, 241 N.J.Super. 476 , 575 A.2d 501 (App.Div. 1990) decided by us today.

Accordingly, I would reverse on the merger issue and remand for resentencing. In resentencing, the trial judge should, of course, take into consideration the principles enunciated in State v. Yarbough, 100 N.J. 627, 643 , 498 A.2d 1239 (1985), cert. den., 475 U.S. 1014 , 106 S.Ct. 1193 , 89 L.Ed.2d 308 (1986), and echoed in State v. Miller, 108 N.J. 112, 121-22 , 527 A.2d 1362 (1987).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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