Judge Susswein continued in relevant part: The plain text of N.J.S.A. 2C:12-1.2(d even more clearly suggests that a conviction for endangering does not merge with a conviction for leaving-the-scene. The express non-merger provision in the endangering statute provides, “a conviction arising under this subsection shall not merge with a conviction of the crime that rendered the person physically incapacitated, nor shall such other conviction merge with a conviction under this section.” N.J.S.A. 2C:12-1.2(d) (emphasis added). The plain text thus presupposes that the conduct that rendered the victim helpless was itself a crime. In this instance, the victim was not rendered physically incapacitated by the voluntary act of leaving the scene, but rather by the collision with defendant’s vehicle. As we have previously noted, defendant was not charged with a crime for striking the victim with his vehicle. We thus conclude that the phrase “the crime that rendered the person physically incapacitated” as used in the endangering statute does not include the crime of leaving-the-scene defined in N.J.S.A. 2C:11-5.1.
We find further support for our interpretation of the statutes’ express non-merger provisions in State v. Dillihay (1992). In that case, the Court considered whether the defendant’s conviction for N.J.S.A. 2C:35-5 (possession of a controlled dangerous substance with intent to distribute) merged with his conviction for N.J.S.A. 2C:35-7 (possession with intent to distribute the same controlled dangerous substance while within 1,000 feet of a school). The Legislature included an express non-merger provision in the statute defining the school zone crime. N.J.S.A. 2C:35-7(c). That provision reads, “notwithstanding the provisions of N.J.S. 2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for a violation of N.J.S. 2C:35-5.”
The mergers referenced throughout this opinion refer to legal mergers. A legal merger means that the merged statute’s penalties are subsumed by the more onerous penalties of another statute. A factual merger is a merger by which a defendant can still receive aggravated fines, but cannot receive a consecutive sentence with regard to the length of incarceration.
