# State v. Dillihay

> New Jersey Superior Court Appellate Division · May 31, 1990 · 241 N.J. Super. 553

URL: https://www.frixlaw.com/law-library/cases/7320370

## Case

- **Full name:** STATE OF NEW JERSEY, PLAINTIFF/RESPONDENT/CROSS-APPELLANT v. DAVID DILLIHAY, DEFENDANT/APPELLANT/CROSS-RESPONDENT
- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** May 31, 1990
- **Citations:** 241 N.J. Super. 553; 575 A.2d 876; 1990 N.J. Super. LEXIS 189
- **Precedential status:** Published
- **Opinion:** Concurring in part by Landau
- **Judges:** Landau, Long
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7320370

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7320370. Public record. Not legal advice.