Rule Against Multiplicity (Part 2)

The panel continued: All of the New Jersey published opinions we have found reflect that approach to charging. The State has not cited to any published opinion of our courts in which a defendant who set one fire was charged with multiple counts of arson. For example, in State v. Craig (App. Div. 1989), and Lewis, the defendant set one fire that killed or injured multiple people. In those cases, the defendant was charged with one count of arson and multiple counts of murder or aggravated assault. In Craig, the defendant was convicted of one count of arson and multiple counts of manslaughter. The issue was whether the defendant’s several manslaughter convictions should merge into one manslaughter conviction; we held they did not merge.

In Lewis, the issue was whether the convictions for arson and aggravated assault should have merged with the conviction for aggravated manslaughter. As in this case, Lewis set one fire in an apartment building, although in that case, the fire also caused the death of one victim and serious injuries to several others. We rejected Lewis’s merger argument, reasoning that the legislature designated fire setting separately from other forms of assaultive conduct, with a “specific intent to fractionalize the offense.” The arson was complete as soon as the fire was “started.

Lewis also reasoned that the legislative history of the arson statute indicated that the Legislature addressed the issue of arson’s consequences by grading it as a more serious crime if it caused danger to persons: The Criminal Law Revision Commissioners originally recommended that the arson statute not grade the offense according to its danger to persons because “to make any dangerous burning a crime of the second degree would be inconsistent with Sections 2C:12-1” relating to assault. The legislature’s refusal to adopt this recommendation is indicative of its intent to punish arson separately based upon the risk that fire presents.

Our courts routinely defer to the Legislature’s decisions out of “separation of power” concerns. That is because it is the Legislature’s job to make laws, the Judiciary’s (courts) job to interpret the laws, and the Executive’s (law enforcement) job to enforce the laws. None of the three branches of government is supposed to infringe upon the power of another branch.