NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2021-20

STATE OF NEW JERSEY,

Plaintiff-Appellant/

Cross-Respondent,

v.

JESUS M. HERRERA, a/k/a

JOSE HERRERA,

Defendant-Respondent/

Cross-Appellant.

__________________________

Submitted October 6, 2021 – Decided January 3, 2022

Before Judges Hoffman, Whipple, and Susswein.

On appeal from the Superior Court of New Jersey, 

Law Division, Passaic County, Indictment No. 18-08-

0668.

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for appellant (Mark Niedziela, Assistant 

Prosecutor, of counsel and on the briefs).

Law Offices of Brian J. Neary, attorneys for 

respondent (Brian J. Neary, of counsel; Blaine D. 

Benson, on the briefs).

The opinion of the court was delivered by

SUSSWEIN, J.A.D.

APPROVED FOR PUBLICATION

January 3, 2022

APPELLATE DIVISION
A-2021-20 2

The State appeals from the trial court's decision to impose concurrent 

state prison terms on defendant's jury trial convictions for leaving the scene of 

a fatal motor vehicle accident, N.J.S.A. 2C:11-5.1, and endangering an injured 

victim, N.J.S.A. 2C:12-1.2. The State contends the trial judge imposed an 

illegal sentence because the statutes defining both crimes require that the 

prison terms be served consecutively.1 Defendant cross-appeals the sentences 

1

 The State also contends that even if the relevant statutes do not mandate 

consecutive sentences, the trial judge abused his discretion in ordering 

concurrent sentences applying the principles established in State v. Yarbough, 

100 N.J. 627, 643–44 (1985). We note, however, that the State may only 

appeal a sentence on the grounds that it is illegal; the State does not have the 

authority to appeal the sentence based on an alleged abuse of judicial 

discretion. 

In State v. Hyland, the Court held that the State has the authority to 

appeal a sentence in only two circumstances: where there is express statutory 

authority to do so, or if the sentence imposed is illegal. 238 N.J. 135, 143 

(2019) (first citing State v. Roth, 95 N.J. 334, 343 (1984); and then citing State 

v. Ciancaglini, 204 N.J. 597, 605 (2011)). The Court further explained that 

"[t]here are two categories of illegal sentences: those that exceed the penalties 

authorized for a particular offense, and those that are not authorized by law. " 

Id. at 145 (citing State v. Schubert, 212 N.J. 295, 308 (2012)). Those two 

categories of illegal sentences, moreover, have been "defined narrowly." Ibid.

(quoting State v. Murray, 162 N.J. 240, 246 (2000)). The Court emphasized 

that, "even sentences that disregard controlling case law or rest on an abuse of 

discretion by the sentencing court are legal so long as they impose penalties 

authorized by statute for a particular offense and include a disposition that is 

authorized by law." Id. at 146. The Hyland Court concluded that the State 

could not appeal a special probation Drug Court sentence based on the judge's 

finding of discretionary statutory factors, noting that "[a] finding to the 

contrary would conflate sentence illegality with judicial abuse of discretion, 

and undermine this Court's consistently narrow construct of which sentences it 
A-2021-20 3

that were imposed, arguing that the trial judge should have merged the two 

convictions. 

This case arises from a tragic motor vehicle accident in which 

defendant's pickup truck struck and killed a pedestrian. Defendant was not 

charged with vehicular homicide, N.J.S.A. 2C:11-5, nor any other crime 

relating to the manner in which he operated his vehicle. In other words, 

defendant was not charged with, much less convicted of, purposely, 

knowingly, or even recklessly striking the victim with his vehicle. Rather, 

with respect to both crimes for which defendant was convicted at trial, the 

culpable act was leaving the scene of the fatal accident without stopping to 

render aid or call for emergency medical assistance. 

We first address the arguments raised in defendant's cross-appeal 

because the decision whether to impose consecutive or concurrent prison terms 

necessarily presupposes that a defendant has been convicted of at least two 

separate crimes. The threshold question on appeal, therefore, is whether 

defendant's two convictions merge, in which event he will have been convicted 

of but a single crime for purposes of sentencing. 

deems illegal." Id. at 147. Accordingly, the State in this case may not appeal 

the imposition of concurrent sentences based on a claim that the trial court 

abused its discretion in applying the discretionary Yarbough factors. 
A-2021-20 4

After carefully reviewing the record in view of the "flexible" multifaceted test embraced by our Supreme Court on multiple occasions, we 

conclude that in the circumstances of this case, the convictions for leaving the 

scene of a fatal motor vehicle accident and endangering an injured victim 

constitute a single criminal offense and thus should have been merged. That 

conclusion renders academic the question of whether consecutive sentences 

should have been imposed. We remand for the trial court to amend the 

judgment of conviction accordingly. 

I.

We begin by summarizing the relevant facts and procedural history. On 

November 11, 2017, at around 9:00 p.m., defendant struck the victim with his 

truck, tapped on his brakes, and drove away. The accident was recorded on 

surveillance cameras, which show defendant traveling between an estimated 

39.4 and 55.8 miles-per-hour. The surveillance recordings also show that the 

victim did not use the crosswalk.

Police and EMS responders found the victim unconscious and 

unresponsive. Their efforts to administer CPR on the scene and while en route 

to the hospital were unsuccessful. The victim was pronounced dead at the 

hospital at approximately 9:42 p.m. The autopsy determined that the cause of 
A-2021-20 5

death was "blunt impact injuries of torso and extremities" and the manner of 

death was determined to be "accident[al]." 

A private citizen had followed defendant's truck after the collision, told 

defendant he had struck someone, and brought defendant back to the scene of 

the accident, whereupon he was arrested. Defendant consented to provide 

blood samples, which indicated that while he had consumed alcohol, his blood 

alcohol content was below the legal limit for operating a vehicle. Police 

brought the defendant to the prosecutor's office, where he admitted that he had 

collided with the victim. The defendant stated that he was driving home and 

claimed to be travelling at about twenty-five to thirty-five miles-per-hour. He 

stated that he did not see the victim because it was dark and because the victim 

was crossing between two cars. Defendant explained that he did not stop after 

the accident because he was nervous. He was charged by summons with the 

non-indictable offense of leaving the scene of a motor vehicle accident 

resulting in injury or death, N.J.S.A. 39:4-129. 

In November 2017, a grand jury returned an indictment charging 

defendant with two counts: second-degree leaving the scene of a motor vehicle 

accident under certain circumstances, N.J.S.A. 2C:11-5.1 (leaving-the-scene), 

and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a) 
A-2021-20 6

(endangering). In January 2020, defendant was tried before a jury and was 

found guilty of both counts.2

The sentencing hearing was convened on March 26, 2021. At the outset 

of the hearing, the judge determined that the two indictable convictions do not 

merge. So far as the record before us reflects, defendant never argued that the 

convictions should be merged; rather, the gravamen of defendant's legal 

argument at the sentencing hearing was that the sentences should run 

concurrently. Accordingly, the sentencing judge provided only a limited 

statement of reasons explaining her decision not to merge the convictions as 

compared to the more comprehensive statement of reasons the judge provided 

for her decision to impose concurrent sentences. 

The State raises the following contentions for our consideration:

2

 The trial judge, sitting as a municipal court judge pursuant to Rule 3:15-3,

found defendant guilty of the non-indictable offense of leaving the scene of an 

accident resulting in injury or death, N.J.S.A. 39:4-129. The judge merged the

sentence for the Title 39 offense into the conviction for violation of N.J.S.A. 

2C:11-5.1, and imposed a $2,500 fine, court costs, and a one-year suspension 

of driving privileges. See State v. Frank, 445 N.J. Super. 98, 109–10 (App. 

Div. 2016) (noting that "merger was appropriate because by definition the 

criminal offense [N.J.S.A. 2C:12-1.1] incorporates the motor vehicle violation 

[N.J.S.A. 39:4-129]" and "notwithstanding the merger, the court was required 

to impose the sentences mandated by N.J.S.A. 39:4-129(a) . . . .").

 
A-2021-20 7

POINT I: 

THE SENTENCING JUDGE ABUSED HER 

DISCRETION BY ERRONEOUSLY SENTENCING 

DEFENDANT TO A CONCURRENT TERM OF 

FOUR YEARS INSTEAD OF A CONSECUTIVE 

TERM OF FOUR YEARS AND MUST BE 

REVERSED. 

Defendant raises the following contentions for our consideration in his 

cross-appeal:

POINT I:

THE TRIAL COURT ERRED IN FAILING TO 

MERGE THE CONVICTION FOR LEAVING THE 

SCENE OF A FATAL ACCIDENT, N.J.S.A. 2C:11-

5.1, WITH THE CONVICTION FOR 

ENDANGERING AN INJURED VICTIM, N.J.S.A. 

2C:12-1.2, FOR PURPOSES OF SENTENCING. 

POINT II:

IN THE ALTERNATIVE, THE TRIAL COURT’S 

DECISION TO SENTENCE [DEFENDANT] TO A 

CONCURRENT TERM SHOULD BE AFFIRMED.

The State makes the following arguments in response to defendant's 

cross-appeal:

POINT I

THE TRIAL COURT DID NOT FAIL TO MERGE 

THE CONVICTION AS N.J.S.A. 2C:11-5.1, 

LEAVING THE SCENE OF A FATAL ACCIDENT, 

AND N.J.S.A. 2C:12-1.2, ENDANGERING AN 

INJURED VICTIM, ARE PROHIBITED FROM 

BEING MERGED UNDER THE FACTS OF THIS 
A-2021-20 8

CASE; THE SENTENCING JUDGE ABUSED HER 

DISCRETION BY ERRONEOUSLY SENTENCING 

DEFENDANT TO A CONCURRENT TERM OF 

FOUR YEARS INSTEAD OF A CONSECUTIVE 

TERM OF FOUR YEARS AND MUST BE 

REVERSED. 

II.

We begin our analysis by acknowledging the foundational legal 

principles governing this appeal. When the meaning of a statute is not at issue, 

we review a judge's sentencing decision under an abuse of discretion standard. 

See State v. Fuentes, 217 N.J. 57, 70 (2014). This case, however, focuses on 

an interpretation of the statutes that define the two crimes for which defendant 

was convicted and the statutory framework for deciding whether those 

convictions merge. We therefore apply a de novo review to "discern and 

effectuate the legislative intent underlying the statutory provision[s] at issue." 

State ex rel. K.O., 217 N.J. 83, 91–92 (2014); see also State v. Vargas, 213 

N.J. 301, 327 (2013) (citing State v. Gandhi, 201 N.J. 161, 176 (2010)). 

The case law governing the merger of crimes has evolved. At its core, 

the doctrine of merger is based on the precept that "an accused [who] 

committed only one offense . . . cannot be punished as if for two." State v. 

Davis, 68 N.J. 69, 77 (1975). Although our Supreme Court has "not 

determined whether that prohibition rests on principles of double jeopardy, due 
A-2021-20 9

process or some other legal tenet," it is beyond dispute that "merger implicates 

a defendant's substantive constitutional rights." State v. Cole, 120 N.J. 321, 

326 (1990) (first citing Davis, 68 N.J. at 76; and then citing State v. [John] 

Miller, 108 N.J. 112, 116 (1987)). 

N.J.S.A. 2C:1-8(a) provides general guidance on when offenses merge. 

That statute provides in pertinent part: 

a. When the same conduct of a defendant may 

establish the commission of more than one offense, 

the defendant may be prosecuted for each such 

offense. He may not, however, be convicted of more 

than one offense if:

(1) One offense is included in the other, as defined in 

subsection d. of this section;

. . . .

(4) 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.

. . . .

d. Conviction of included offense permitted. A 

defendant may be convicted of an offense included in 

an offense charged whether or not the included 

offense is an indictable offense. An offense is so 

included when:

(1) It is established by proof of the same or less than 

all the facts required to establish the commission of 

the offense charged . . . .
A-2021-20 10

In State v. Bowens, the Court, relying on N.J.S.A. 2C:1-8, held that 

merger is not required when each offense "may be established by proof of a 

different fact which the other does not require." 108 N.J. 622, 639 (1987). 

The Bowens test is simple and straightforward. However, that standard "has 

been characterized as 'mechanical.'" State v. Tate, 216 N.J. 300, 307 (2013) 

(quoting State v. Hill, 182 N.J. 532, 542 (2005)). 

In Cole, the Court used a different approach, explaining that 

[i]n determining legislative intent, we analyze the 

statutes to determine whether the Legislature intended 

to protect different interests, and whether merger 

makes sense in the context of the Code's overall 

sentencing scheme. We also consider specific 

elements of the offenses in light of the New Jersey 

Code of Criminal Justice (Code) merger provision, 

N.J.S.A. 2C:1-8 . . . .

[120 N.J. at 327.]

In State v. Diaz, the Supreme Court eschewed the mechanical analysis 

used in Bowens in favor of a more "flexible" approach. 144 N.J. 628, 643 

(1996). Noting the tension between the Diaz and Bowens holdings, the Court 

more recently in Tate made clear that "the better course is to follow Diaz in 

deciding this and future merger disputes." 216 N.J. at 312. The Court 

explained that this flexible approach focuses on the "'elements of the crimes 

and the Legislature's intent in creating them,' and on 'the specific facts of each 

case."' 216 N.J. at 306 (quoting Hill, 182 N.J. at 542 (quoting State v. Brown, 
A-2021-20 11

138 N.J. 481, 561 (1994), overruled on other grounds by State v. Cooper, 151 

N.J. 326 (1997))).

Most recently in State v. [Michael] Miller, the Court reaffirmed that we 

are to use the more flexible approach to merger issues, stressing that 

convictions for "offenses that merely offer an alternative basis for punishing 

the same criminal conduct will merge." 237 N.J. 15, 33 (2019) (quoting 

Brown, 138 N.J. at 561). With respect to the fact-sensitive portion of the 

multi-part merger test, the Court explained that the flexible standard entails, 

[the] analysis of the evidence in terms of, among other 

things, the time and place of each purported violation; 

whether the proof submitted as to one count of the 

indictment would be a necessary ingredient to a 

conviction under another count; whether one act was 

an integral part of a larger scheme or episode; the 

intent of the accused; and the consequences of the 

criminal standards transgressed.

[Ibid. at 33 (alteration in original) (quoting Davis, 68 

N.J. at 81).]

The Court in Miller further explained,

Guidance also arises from the principle that "the 

Legislature may fractionalize a single criminal episode 

into separate offenses when the Legislature intends 

them to be punished separately and when the 

fractionalization does not offend constitutional 

principles." Stated differently, "the [L]egislature is 

empowered to split a single, continuous transaction 

into stages, elevate each stage to a consummated 

crime, and punish each stage separately."
A-2021-20 12

[Ibid. (alteration in original) (first quoting State v. 

Mirault, 92 N.J. 492, 504 (1983); and then citing 

Davis, 68 N.J. at 78).]

III.

We next apply these guiding principles to the matter before us. We 

begin by comparing the text of the two criminal statutes at issue.

N.J.S.A. 2C:11-5.1 reads:

A motor vehicle operator who knows he is involved in 

an accident and knowingly leaves the scene of that 

accident under circumstances that violate the 

provisions of R.S. 39:4-129 shall be guilty of a crime 

of the second degree if the accident results in the 

death of another person.

If the evidence so warrants, nothing in this section 

shall be deemed to preclude an indictment and 

conviction for aggravated manslaughter under the 

provisions of N.J.S.2C:11-4, reckless vehicular 

homicide under the provisions of N.J.S.2C:11-5 or 

strict liability vehicular homicide under the provisions 

of section 1 of P.L.2017, c. 165 (C.2C:11-5.3).

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 

aggravated manslaughter under the provisions of 

N.J.S.2C:11-4, reckless vehicular homicide under the 

provisions of N.J.S.2C:11-5 or strict liability vehicular 

homicide under the provisions of section 1 of 

P.L.2017, c.165 (C.2C:11-5.3) and a separate sentence 

shall be imposed upon each such conviction.

Notwithstanding the provisions of N.J.S.2C:44-5 or 

any other provisions of law, when the court imposes 
A-2021-20 13

multiple sentences of imprisonment for more than one 

offense, those sentences shall run consecutively.

For the purposes of this section, neither knowledge of 

the death nor knowledge of the violation are elements 

of the offense and it shall not be a defense that the 

operator of the motor vehicle was unaware of the 

death or of the provisions of R.S.39:4-129. 

N.J.S.A. 2C:12-1.2 reads:

a. A person is guilty of endangering an injured victim 

if he causes bodily injury to any person or solicits, 

aids, encourages, or attempts or agrees to aid another, 

who causes bodily injury to any person, and leaves the 

scene of the injury knowing or reasonably believing 

that the injured person is physically helpless, mentally 

incapacitated or otherwise unable to care for himself.

b. As used in this section, the following definitions 

shall apply:

(1) "Physically helpless" means the condition in which 

a person is unconscious, unable to flee, or physically 

unable to summon assistance;

(2) "Mentally incapacitated" means that condition in 

which a person is rendered temporarily or permanently 

incapable of understanding or controlling one's 

conduct, or of appraising or controlling one's 

condition, which incapacity shall include but is not 

limited to an inability to comprehend one’s own peril;

(3) "Bodily injury" shall have the meaning set forth in 

N.J.S. 2C:11-1.

c. It is an affirmative defense to prosecution for a 

violation of this section that the defendant summoned 

medical treatment for the victim or knew that medical 

treatment had been summoned by another person, and 
A-2021-20 14

protected the victim from further injury or harm until 

emergency assistance personnel arrived. This 

affirmative defense shall be proved by the defendant 

by a preponderance of the evidence.

d. A person who violates the provisions of this section 

shall be guilty of a crime of the third degree. 

Notwithstanding the provisions of N.J.S. 2C:1-8 or 

any other provision of law, a conviction arising under 

this subsection shall not merge with a conviction of 

the crime that rendered the person physically helpless 

or mentally incapacitated, nor shall such other 

conviction merge with a conviction under this section. 

Notwithstanding the provisions of N.J.S.2C:44-5 or 

any other provision of law, the sentence imposed 

pursuant to this section shall be ordered to be served 

consecutively to that imposed for any conviction of 

the crime that rendered the person physically helpless 

or mentally incapacitated.

e. Nothing herein shall be deemed to preclude, if the 

evidence so warrants, an indictment and conviction for 

murder, manslaughter, assault or any other offense.

Clearly, the material elements of these two offenses do not align. 

Although they share a common voluntary act element3—leaving the scene—

both offenses require proof of facts that are not required by the other. The 

leaving-the-scene offense, for example, requires proof that the defendant is a 

motor vehicle operator. The endangering offense is not restricted to motor 

3

 N.J.S.A. 2C:2-1(a) provides in pertinent part that "[a] person is not guilty of 

an offense unless his liability is based on conduct which includes a voluntary 

act or the omission to perform an act of which he [or she] is physically 

capable."
A-2021-20 15

vehicle incidents and applies more broadly to any event where the defendant 

caused bodily injury. The endangering offense, moreover, requires proof that 

the defendant caused the bodily injury to a victim, or aided or abetted another 

to cause such injury.4 The leaving-the-scene offense requires only that the 

actor is "involved in an accident." See State v. Sene, 443 N.J. Super. 134, 140 

(App. Div. 2015) ("Nothing in the plain meaning of the phrase 'involved in an 

accident' requires the element of contact between the vehicle driven by 

defendant and the victim."). 

Given these differences in the material elements of the two crimes, were 

the "mechanical" test to apply, convictions arising under these two crimes 

would not merge. Application of the multi-part flexible test, however, leads to 

a different conclusion. 

We first consider the Legislature's intention with respect to merger. In 

doing so, we acknowledge that when construing statutes, "[i]n most instances, 

the best indicator of that intent is the plain language chosen by the 

Legislature." Gandhi, 201 N.J. at 176–77 (citing DiProspero v. Penn, 183 N.J. 

477, 492 (2005)). We therefore first consider the plain language, and if we 

4

 We note that the endangering offense does not require proof that the 

defendant was criminally culpable for causing the injury. That is why 

defendant could be convicted of this offense notwithstanding that he was not 

charged with a crime relating to the operation of the vehicle and the collision 

with the victim. 
A-2021-20 16

find that language ambiguous, we proceed to consider the legislative history 

and purpose of the enactments. Gandhi, 201 N.J. at 176–77; DiProspero, 183 

N.J. at 492–93; see also State v. Rangel, 213 N.J. 500, 509 (2013) (a court 

should "construe the meaning of [the statute], first by looking at the actual 

contested words and then by viewing them in the setting of a larger 

enactment."). We add that under the rule of lenity, ambiguities in a criminal 

statute are resolved in favor of the defendant. State v. Grate, 220 N.J. 317, 

330 (2015) (explaining the rule of lenity applies when a penal statute's 

meaning cannot clearly be discerned from its plain language and extrinsic 

sources).

In this instance, we need not focus solely on N.J.S.A. 2C:1-8 and the 

cases construing the overarching framework established by that general merger 

provision. Both crimes at issue before us include express provisions 

instructing on merger that operate "[n]otwithstanding the provisions of 

N.J.S.[A.] 2C:1-8 or any other provision[s] of law." We thus presume that in 

drafting both crimes, the Legislature intended to indicate the specific 

circumstances in which merger would be inappropriate. 

The merger provision in 2C:11-5.1 specifies the types of convictions that 

do not merge with a leaving-the-scene conviction: aggravated manslaughter, 

reckless vehicular homicide, and strict liability vehicular homicide. The plain 
A-2021-20 17

text thus shows conclusively that the Legislature knew how to specify the 

types of convictions that are not subject to merger with a conviction for 

N.J.S.A. 2C:11-5.1, but did so only with respect to these homicide offenses. 

Cf. DiProspero, 183 N.J. at 495 ("'The canon of statutory construction, 

expressio unius est exclusio alterius—expression of one thing suggests the 

exclusion of another left unmentioned—sheds some light on the interpretative 

analysis.'" (quoting Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 112 

(2004))). We think it is especially noteworthy that the specified non-merger 

crimes all require that a defendant commit a criminally culpable act resulting 

in death. This suggests that the Legislature only intended to preclude merger 

of a leaving-the-scene conviction with crimes that require proof of a voluntary 

criminal act besides leaving the scene.

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-thescene. 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 
A-2021-20 18

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, 127 N.J. 42 (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, "[n]otwithstanding 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 . . . ." Ibid.

On its face, the plain text would seem to preclude merger. The Dillihay

Court nonetheless "conclude[d] that the legislative purpose in enacting the 

school-zone statute [could] best be served, consistent with double-jeopardy 
A-2021-20 19

principles, by requiring merger of [school zone] convictions into related firstor second-degree convictions under N.J.S.A. 2C:35-5" and "requir[ing] that 

any sentence imposed . . . include a mandatory minimum sentence no less 

severe than that set forth [in the school zone statute]." 127 N.J. at 56. 

In the present matter, we likewise deem it prudent to construe the nonmerger 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. See Cole, 

120 N.J. at 327 ("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 leavingthe-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 
A-2021-20 20

defendant may not be convicted of more than one offense if "[t]he 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). 

Furthermore, both crimes are designed essentially to serve the same 

purpose, that is, to protect injured individuals by creating incentives for 

persons to remain at the scene of an injury, to report the incident, and to render 

or summon aid. The leaving-the-scene crime expressly incorporates by 

reference the reporting and rendering-assistance duties established in N.J.S.A. 

39:4-129.5 The endangering statute, meanwhile, creates an affirmative defense 

5

 N.J.S.A. 39:4-129 provides in pertinent part:

(a) The driver of any vehicle, knowingly involved in 

an accident resulting in injury or death to any person 

shall immediately stop the vehicle at the scene of the 

accident or as close thereto as possible but shall then 

forthwith return to and in every event shall remain at 

the scene until he has fulfilled the requirements of 

subsection (c) of this section. 

. . . .

(c) The driver of any vehicle knowingly involved in an 

accident resulting in injury or death to any person or 

damage to any vehicle or property shall give his name 

and address and exhibit his operator's license and 

registration certificate of his vehicle to the person 

injured or whose vehicle or property was damaged and 
A-2021-20 21

"that the defendant summoned medical treatment for the victim or knew that 

medical treatment had been summoned by another person, and protected the 

victim from further injury or harm until emergency assistance personnel 

arrived." N.J.S.A. 2C:12-1.2(c). Accordingly, both statutes use the threat of 

criminal sanction to deter absconding from the scene of an injury and to 

encourage persons to take affirmative steps to protect injured individuals. We 

therefore conclude that both statutes protect the same interests and, in practical 

effect, offer an alternative basis for punishing the same conduct. See

[Michael] Miller, 237 N.J. at 33 (explaining that "[c]onvictions for . . . 

offenses that merely offer an alternative basis for punishing the same criminal 

conduct will merge.") (quoting Brown, 138 N.J. at 561).

Finally, we turn to the fact-sensitive component of the flexible standard 

for merger. The trial court at sentencing found, "[h]ere, the criminal act in 

both offenses is the act of leaving the scene. The [c]ourt finds that the 

defendant's act of leaving only occurred once. That is, it's the single act of 

leaving the scene which forms the basis of both offenses." 

to any police officer or witness of the accident, and to 

the driver or occupants of the vehicle collided with 

and render to a person injured in the accident 

reasonable assistance, including the carrying of that 

person to a hospital or a physician for medical or 

surgical treatment, if it is apparent that the treatment 

is necessary or is requested by the injured person.
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As we have noted, in Miller, the Court reaffirmed that "the Legislature 

may fractionalize a single criminal episode into separate offenses when the 

Legislature intends them to be punished separately and when the 

fractionalization does not offend constitutional principles." Ibid. (citing 

Mirault, 92 N.J. at 504 (1983)). Stated differently, "the [L]egislature is 

empowered to split a single, continuous transaction into stages, elevate each 

stage to a consummated crime, and punish each stage separately." Ibid.

(quoting Davis, 68 N.J. at 78).

In the matter before us, however, there was no continuous transaction to 

split into stages. The only criminal conduct attributed to defendant was his 

decision to leave the scene. The crime was initiated and completed in a brief 

instant. So too, other fact-sensitive questions that are posed in Miller are 

either inapposite or militate in favor of merger. As to the "time and place of 

each purported violation," ibid., both crimes were committed in the same place 

at exactly the same time. As to the question "whether one act was an integral 

part of a larger scheme or episode," ibid., there was no larger "scheme[,]" only 

a single momentary and spontaneous "episode." 

In sum, considering the elements of the two crimes, the Legislature's 

intent in creating them, and the specific facts supporting both convictions, 

Tate, 216 N.J. at 306, we conclude that defendant's convictions for leaving-
A-2021-20 23

the-scene and endangering must merge. Accordingly, we need not consider 

whether consecutive sentences should have been imposed. 

The judgment of the Law Division imposing concurrent sentences is 

vacated and the matter is remanded to correct the judgment of conviction to 

reflect the merger of the conviction for third-degree endangering into the 

conviction for second-degree leaving-the-scene. We do not retain jurisdiction. 

Reversed and remanded.