The Appellate Division continued in relevant part: On its face, the plain text would seem to preclude merger. The Dillihay Court nonetheless “concluded that the legislative purpose in enacting the school-zone statute could best be served, consistent with double-jeopardy principles, by requiring merger of school zone convictions into related first- or second-degree convictions under N.J.S.A. 2C:35-5″ and “requiring that any sentence imposed include a mandatory minimum sentence no less severe than that set forth in the school zone statute.”
In the present matter, we likewise deem it prudent to construe the non-merger provision in these two statutes to avoid double jeopardy issues. In so doing, we recognize that by merging the third-degree endangering conviction into the second-degree leaving-the-scene conviction, the sentence prescribed for a second-degree crime, including the strict presumption of imprisonment, N.J.S.A. 2C:44-1(d), applies.
We next consider whether the Legislature sought to protect different interests in enacting the leaving-the-scene and endangering crimes. In determining legislative intent, we analyze the statutes to determine whether the Legislature intended to protect different interests. We begin our examination of that question by noting that the leaving-the-scene statute focuses specifically on absconding from the scene of a motor vehicle accident. The endangering statute has a broader scope, applying more generally to absconding from the scene of an injury that was caused by the actor in any manner–such as an assault–and not just by a motor vehicle collision. The penal code’s general merger statute instructs in this regard that a defendant may not be convicted of more than one offense if “the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” N.J.S.A. 2C:1-8(a)(4).
The presumption of imprisonment referenced for second degree crimes can only be overcome in the rarest of cases. The handful of cases that found that it applied all involved defendants with severe mental health issues, namely, what was commonly referred to as Down Syndrome of “mentally retarded.”