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.