                                                    SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                     State v. Troy N. Tate (A-99-11) (069314)

Argued March 12, 2013 -- Decided November 12, 2013

RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

         The issue in this appeal is whether a conviction for possession of a weapon for an unlawful purpose merges
with a conviction for aggravated manslaughter and, if merger is required, under what circumstances.

         Defendant, Troy M. Tate, was convicted by a jury of the first-degree aggravated manslaughter of Sheri
Farren and related offenses. Defendant, Sheri Farren, Farren’s boyfriend Paul Freas, Frank Mulholland, and Kevin
Green were homeless acquaintances. Farren, Freas, and Mulholland would often drink and panhandle for money
together on the Atlantic City boardwalk. Mulholland testified that, on the night of March 24, 2007, he met Farren
and Freas on the boardwalk and they went to a small room under Boardwalk Hall, where they found Green asleep.
Mulholland had been drinking all day and, after arriving at the room, the group drank a substantial quantity of vodka
and beer. At some point that night, Mulholland and Green fell asleep and Freas left the room. Mulholland awoke
and saw defendant standing over Farren, yelling at her, and swinging a club-like object. Farren asked Mulholland to
find Freas. Mulholland recalled that Farren said something before he left to find Freas about some damaged playing
cards. Mulholland spent the rest of the night looking for Freas, and only learned of Farren’s death from a
subsequent conversation with a police officer.

          Green testified that he awoke that evening and saw defendant swinging a caulking gun with two hands,
striking Farren on her back, legs, and head, and yelling at her about the torn playing card. After speaking with
Green and Mulholland, the police identified defendant as a suspect. When the police arrested and searched
defendant, they discovered a large deck of novelty playing cards that contained a torn ace of clubs. The weapon
used in the homicide was never recovered. The medical examiner testified that Farren died on the morning of
March 25, 2007, from “massive bleeding into the abdominal cavity due to blunt force injury” to her torso and
lacerations to the spleen.

          Following a jury trial, defendant was convicted of first-degree aggravated manslaughter, second-degree
aggravated assault, third-degree aggravated assault, and third-degree possession of a weapon for an unlawful
purpose. The judge did not merge any of the convictions. Defendant appealed. The Appellate Division affirmed
the convictions but merged the convictions for second and third-degree aggravated assault into the first-degree
aggravated manslaughter conviction. However, the panel rejected defendant’s argument that the conviction for
possession of a weapon for an unlawful purpose should be merged with the aggravated manslaughter conviction.
Relying on State v. Bowens, 108 N.J. 622, 639 (1987), the panel explained that “each offense requires proof of a
fact not required by the other.”

         The Supreme Court granted defendant’s petition for certification. 210 N.J. 119 (2012) .

HELD: A conviction for possession of a weapon for an unlawful purpose must merge with a conviction for
aggravated manslaughter when the evidence does not support the existence of another unlawful purpose for
possession of the weapon.

1. The doctrine of merger is based on the concept that “a defendant who has committed one offense ‘ “cannot be
punished as if for two.” ’ ” State v. Hill, 182 N.J. 532, 542 (2005) (quoting State v. Brown, 138 N.J. 481, 561
(1994)). N.J.S.A. 2C:1-8a sets forth the parameters for merging offenses. However, “ ‘[t]he standard for merger of
offenses set forth by N.J.S.A. 2C:1-8, providing that offenses are different when each requires proof of facts not
required to establish the other, has been characterized as “mechanical.” ’ ” Id. (quoting State v. Diaz, 144 N.J. 628
(1996)). In Diaz, this Court found that “[w]hen the only unlawful purpose in possessing the gun is to use it to

                                                          1
commit the substantive offense, merger is required.” 144 N.J. at 636. Thus, if a “jury is explicitly instructed that the
unlawful purpose was to use the gun against the victim of the substantive offense, unless that unlawful purpose
extended over a substantial period, merger is required notwithstanding that the evidence was sufficient to support a
separate unlawful purpose.” Id. at 641. Importantly, the Court explained that merger is not required when the
weapon possession is for a broader purpose. When a jury’s verdict is ambiguous as to whether defendant had a
broader purpose in possessing the firearm than committing the substantive offense, the Court adopted a four-prong
test to determine if merger is required. Id. at 639. To give proper guidance, a “jury instruction ‘must include an
identification of such unlawful purposes as may be suggested by the evidence.’ ” Id. at 640. In this case, because
“the only unlawful purpose submitted to the jury was possession of the gun to use it in the killing,” merger was
required. Id. at 642. (pp. 7-14)

2. The approach to determine merger of offenses used in Diaz is applicable here. The evidence tends to prove that
defendant possessed the weapon unlawfully only to commit the substantive offense. No broader unlawful purpose
was supported directly or circumstantially by the evidence. Both the possession of the weapon for an unlawful
purpose and the aggravated manslaughter resulted from a single course of conduct. Additionally, both charges
require proof of the same fact: that defendant beat Farren with the caulking gun. The cases not requiring merger
have had clear statutory differences illustrating legislative intent to fractionalize a course of conduct. The Court has
determined, however, that the better course is to follow Diaz in deciding this and future merger disputes. This case
contains no evidence to support a separate unlawful purpose, and, significantly, the jury was specifically instructed
that defendant’s unlawful purpose was “to assault Sheri Farren.” Thus, under the Diaz rationale, merger is required
because the evidence against defendant was that he possessed a weapon for the purpose of beating Farren with it –
the substantive offense. (pp. 14-18)

         The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Law
Division for correction of the judgment of conviction to reflect that the conviction for possession of a weapon for an
unlawful purpose merges into the aggravated manslaughter conviction.

       CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion.




                                                           2
                                        SUPREME COURT OF NEW JERSEY
                                          A-99 September Term 2011
                                                   069314

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

TROY N. TATE,

    Defendant-Appellant.


         Argued March 12, 2013 – Decided November 12, 2013

         On certification to the Superior Court,
         Appellate Division.

         Rochelle M.A. Watson, Assistant Deputy
         Public Defender, argued the cause for
         appellant (Joseph E. Krakora, Public
         Defender, attorney; Ms. Watson and William
         P. Welaj, Designated Counsel, on the
         briefs).

         Courtney M. Cittadini, Assistant County
         Prosecutor, argued the cause for respondent
         (James P. McClain, Acting Atlantic County
         Prosecutor, attorney).

    JUDGE RODRÍGUEZ, temporarily assigned, delivered the

opinion of the court.

    The doctrine of merger is based on the concept that “an

accused [who] committed only one offense . . . cannot be

punished as if for two.”   State v. Davis, 68 N.J. 69, 77 (1975).

As such, “[m]erger implicates a defendant’s substantive

constitutional rights.”    State v. Miller, 108 N.J. 112, 116


                                 1
(1987); accord State v. Truglia, 97 N.J. 513, 522 (1984); Davis,

supra, 68 N.J. at 77.   “Not only does merger have sentencing

ramifications, it also has a measurable impact on the criminal

stigma that attaches to a convicted defendant.”   State v.

Rodriguez, 97 N.J. 263, 271 (1984).

    In this appeal, considering the application of merger

principles, we hold, consistent with the approach utilized in

State v. Diaz, 144 N.J. 628 (1996), that a conviction for third-

degree possession of a weapon for an unlawful purpose must merge

with a conviction for first-degree aggravated manslaughter when

the evidence does not support the existence of another unlawful

purpose for possession of the weapon.

                                I.

    Defendant, Troy N. Tate, was convicted by a jury of the

first-degree aggravated manslaughter of Sheri Farren and related

offenses.   The evidence revealed that defendant, Farren,

Farren’s boyfriend Paul Freas, Frank Mulholland, and Kevin Green

were homeless acquaintances.   Farren, Freas, and Mulholland

would often drink and panhandle for money together on the

Atlantic City boardwalk.

    Mulholland testified that, on the night of March 24, 2007,

he met Farren and Freas on the boardwalk.   They went to a small

room under Boardwalk Hall where they found Green asleep.

Mulholland had been drinking all day.   After arriving at the

                                 2
room, the group drank a substantial quantity of vodka and beer.

At some point that night, Mulholland and Green fell asleep and

Freas left the room.

    Mulholland awoke and saw defendant standing over Farren,

yelling at her, and swinging a club-like object.    Mulholland,

however, was not sure if defendant was hitting Farren, and asked

defendant what was going on.   Defendant did not respond and left

the room.   Mulholland asked Farren if she needed help.    She

asked him to find Freas.   Mulholland recalled that Farren said

something before he left to find Freas about some damaged

playing cards.   Mulholland noted that defendant had shown him a

large novelty deck of playing cards a few days earlier.

    Mulholland left the room and did not return.    He spent the

rest of the night looking for Freas, and only learned of

Farren’s death from a subsequent conversation with a police

officer.

    Green testified that he awoke that evening and saw

defendant swinging a caulking gun with two hands, striking

Farren on her back, legs, and head.    Green heard defendant

yelling about a torn playing card.    Green left the room to

purchase cigarettes.   When he returned ten minutes later,

defendant was still striking Farren and yelling about the torn

playing card.



                                 3
     Defendant struck Farren approximately five more times.       The

attack ended when Mulholland intervened.    Farren declined

Green’s offer to call an ambulance.    Green went back to sleep

and awoke around 8:00 a.m.   He asked Farren if she was okay and

when Farren did not respond, Green left the room.    He later

learned of Farren’s death from a police officer.

     The medical examiner testified that Farren died on the

morning of March 25, 2007, from “massive bleeding into the

abdominal cavity due to blunt force injury” to her torso and

lacerations to the spleen.   Additionally, Farren suffered

several injuries to her head and torso, which were consistent

with blunt force trauma.

     The police arrived at the scene as a result of a call from

a circus worker and security guard, who discovered Farren’s

body.   After speaking with Green and Mulholland, the police

identified defendant as a suspect.    When the police arrested and

searched defendant, they discovered a large deck of novelty

playing cards that contained a torn ace of clubs.   The weapon

used in the homicide was never recovered.

                                II.

     Following a jury trial, defendant was convicted of first-

degree aggravated manslaughter, N.J.S.A. 2C:11-4a; second-degree

aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree

aggravated assault, N.J.S.A. 2C:12-1b(2); and third-degree

                                 4
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4d.   The judge did not merge any of the convictions and imposed

a sixty-year term, subject to a period of parole ineligibility

in accordance with the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2, on the aggravated manslaughter conviction; a

concurrent ten-year term, with a NERA ineligibility period, on

the second-degree aggravated assault conviction; a concurrent

five-year term on the third-degree aggravated assault

conviction; and a concurrent five-year term on the possession of

a weapon for an unlawful purpose conviction.

      Defendant appealed.    The Appellate Division affirmed the

convictions but merged the convictions for second and third-

degree aggravated assault into the first-degree aggravated

manslaughter conviction.     Citing State v. Bowens, 108 N.J. 622,

638 (1987), the panel reasoned that, although the elements of

the offenses were technically different, the same evidence was

submitted to establish the assault and manslaughter charges.

However, the panel rejected defendant’s argument that the

conviction for possession of a weapon for an unlawful purpose

should be merged with the aggravated manslaughter conviction.

Again relying on Bowens, supra, 108 N.J. at 639, the panel

explained that “each offense requires proof of a fact not

required by the other.”     We granted defendant’s petition for



                                   5
certification limited to the issue of merger.     State v. Tate,

210 N.J. 119 (2012).

                                III.

        In this appeal, defendant contends, relying on Diaz, that

the possession of a weapon for an unlawful purpose conviction

should merge with the aggravated manslaughter conviction because

the State did not present a broader purpose for possessing the

weapon other than to commit the substantive offense of

aggravated manslaughter against Farren.     Defendant emphasized

that the jury was specifically instructed that his unlawful

purpose was “to assault Sheri Farren.”

       Defendant argues that the Appellate Division and the

State’s reliance on Bowens is misplaced because that case

utilized a rigid analysis that has been eschewed by the Court in

subsequent decisions -- namely, that merger is not required when

each offense “may be established by proof of a different fact

which the other does not require.”     Bowens, supra, 108 N.J. at

639.    Pursuant to the Bowens approach, defendant argues that

possession of a weapon for an unlawful purpose would never merge

with a substantive offense, regardless of the facts of each

case.   Defendant argues that in Diaz, supra, 144 N.J. at 637-38,

the Court abandoned such rigid approach.

       The State responds that, pursuant to the holding in Bowens,

the possession count should not merge because “the facts

                                  6
necessary to establish aggravated manslaughter are different

from the facts required for possession of a weapon for an

unlawful purpose.”   It explains that the two crimes are distinct

because they require discrete elements.    Specifically, the State

argues that possession of a weapon for an unlawful purpose

requires purposeful or knowing conduct, a more culpable state of

mind than that needed to convict for aggravated manslaughter,

which only requires reckless conduct.

                                 IV.

    Generally, in determining whether to merge a defendant’s

convictions,

            “[the Court] follow[s] a ‘flexible approach’
            . . . that ‘requires us to focus on the
            “elements    of    the   crimes    and    the
            Legislature's intent in creating them,” and
            on “the specific facts of each case.”’    The
            overall principle guiding merger analysis is
            that a defendant who has committed one
            offense ‘“cannot be punished as if for
            two.”’      Convictions   for lesser-included
            offenses, offenses that are a necessary
            component of the commission of another
            offense, or offenses that merely offer an
            alternative basis for punishing the same
            criminal conduct will merge.”

            [State v. Hill, 182 N.J. 532, 542 (2005)
            (quoting State v. Brown, 138 N.J. 481, 561
            (1994), overruled on other grounds by State
            v. Cooper, 151 N.J. 326 (1997) (citations
            omitted)).]

    N.J.S.A. 2C:1-8a sets forth the parameters for merging

offenses.   It provides:


                                  7
         a.   Prosecution    for   multiple   offenses;
         limitation on convictions. 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;

         . . . .

         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 . . . .

         [(emphasis added).]

    However, “‘[t]he standard for merger of offenses set forth

by N.J.S.A. 2C:1-8, providing that offenses are different when

each requires proof of facts not required to establish the

other, has been characterized as “mechanical.”’”   Hill, supra,

182 N.J. at 542 (quoting Diaz, supra, 144 N.J. at 637-38).

Consequently, the standard articulated in Davis, which preceded

the enactment of the New Jersey Criminal Code, is a “‘preferred

and more flexible standard.’”   Ibid. (quoting Diaz, supra, 144

N.J. at 637).   In Davis, supra, the Court noted that

         [s]uch an approach would entail analysis of
         the evidence in terms of, among other
         things, the time and place of each purported

                                 8
           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.

           [68 N.J. at 81.]

       In Diaz, supra, the Court addressed the issue of “whether a

conviction for possession of a firearm for an unlawful purpose

should merge with a conviction for passion/provocation

manslaughter when the trial court did not instruct the jury with

respect to an unlawful purpose that was broader than, and

separate from, using the firearm to commit the homicide.”          144

N.J. at 632.    The charges arose out of an altercation that began

in a playground when the victim bumped the injured hand of the

defendant, Diaz.       Id. at 632-33.    Diaz left the playground and

returned less than a half hour later with two of his friends.

Id. at 633.    Diaz was aware that one of his friends was carrying

a gun, and he approached the victim and threatened that he had a

gun.   Ibid.   The victim replied that he too was armed.       Ibid.

Diaz and the victim began to fight, and the defendant’s friend

“fired one shot into the air.”       Ibid.    Just after that shot,

Diaz’s friend gave him the gun, and Diaz fatally shot the victim

five times.    Ibid.     Diaz fled, and the victim’s cousin gave




                                     9
chase.    Ibid.   Turning towards the cousin, Diaz said, “[d]on’t

come near me, he made me do it,” and left.     Ibid.

    Diaz was convicted of second-degree passion/provocation

manslaughter and second-degree possession of a firearm for an

unlawful purpose and sentenced separately for each conviction.

Id. at 633-34.    The Appellate Division reversed and ordered

merger.    Id. at 634.   On certification to this Court, the State

argued that the charges should not merge because Diaz

constructively possessed the gun when threatening the victim,

and Diaz also used the gun to shoot the victim and to threaten

the victim’s cousin.     Id. at 634-35.

    This Court noted that “[w]hen the only unlawful purpose in

possessing the gun is to use it to commit the substantive

offense, merger is required.”     Id. at 636; see also State v.

Loftin, 287 N.J. Super. 76, 111-12 (App. Div.), certif. denied,

144 N.J. 175 (1996).     Thus, if a “jury is explicitly instructed

that the unlawful purpose was to use the gun against the victim

of the substantive offense, unless that unlawful purpose

extended over a substantial period, merger is required

notwithstanding that the evidence was sufficient to support a

separate unlawful purpose.”     Diaz, supra, 144 N.J. at 641

(citing State v. Williams, 213 N.J. Super. 30, 36 (App. Div.

1986), certif. denied, 107 N.J. 104 (1987)).



                                  10
    Importantly, the Court further explained that merger is not

required, however, when the weapon possession is for a broader

purpose.   For example, using a gun to commit a substantive

offense, like robbery, and also using the gun “to frighten and

prevent eyewitnesses from informing the police” does not require

merger.    Id. at 636-37.

    Thus, the Diaz Court held that

           when a trial court declines to use a
           special verdict but there is sufficient
           evidence before the jury to support a
           finding of a broader purpose to use the
           weapon unlawfully, and the trial court gives
           a proper jury instruction that does not
           include an instruction that the unlawful
           purpose is the same as using the weapon to
           commit the substantive offense, merger is
           not required.

           [Id. at 638-39 (citations omitted).]

When a jury’s verdict is ambiguous as to whether defendant had a

broader purpose in possessing the firearm than committing the

substantive offense, the Court adopted a four-prong test to

determine if merger is required, described as follows:

           (1) the defendant must have been charged in
           the indictment with possession of the weapon
           with a broader unlawful purpose, either
           generally or specifically, than using the
           weapon to kill or assault the victim of the
           greater offense, (2) the evidence must
           support a finding that the defendant had a
           broader unlawful purpose, (3) the judge must
           have    instructed   the    jury    of   the
           difference between   possession   with   the
           specific unlawful purpose of using the
           weapon against the victim of the greater

                                11
         offense and a broader unlawful purpose and
         (4) the verdict must express the jury's
         conclusion that the defendant had a broader
         unlawful purpose.

         [Id. at 639 (quoting           Williams,   supra,    213
         N.J. Super. at 36).]

    Applying that test, the Diaz Court concluded that, although

the first two factors were satisfied, the third and fourth

factors were not because “the trial court did not instruct the

jury what the alleged unlawful purposes were based on the

evidence presented.”      Id. at 640.    The Court noted that it is

essential for a trial judge to “relate the specific unlawful

purpose charged to the facts of the case” because the jury is

unqualified to determine which purposes are unlawful, pursuant

to N.J.S.A. 2C:39-4a, without guidance from the court.              Ibid.

(internal quotation marks and citations omitted).            Thus, to give

proper guidance, a “jury instruction ‘must include an

identification of such unlawful purposes as may be suggested by

the evidence.’”    Ibid. (quoting State v. Petties, 139 N.J. 310,

319 (1995)).

    The Court held that because the jury instructions at hand

did not define the other unlawful purposes, which were suggested

by the evidence, “[the Court] do[es] not know, and may not

assume, that the verdict on possession of the gun for an

unlawful purpose was for a broader unlawful purpose than the

manslaughter.”    Ibid.   Accordingly, because “the only unlawful

                                   12
purpose submitted to the jury was possession of the gun to use

it in the killing,” merger was required.        Id. at 642.

       In Bowens, supra, the case on which the State relies, the

Court merely determined whether a defendant’s conviction for

possession of a weapon for an unlawful purpose should merge with

his conviction for aggravated manslaughter.        108 N.J. at 639.

In that decision, which consolidated two appeals, the Court

devoted most of its consideration to the issue of whether two

defendants were incorrectly denied jury charges on imperfect

self-defense.       Id. at 626-37.   However, one defendant, Tyrone

Rivers, also argued “that his conviction for possession of a

weapon for an unlawful purpose should have been merged with his

conviction of aggravated manslaughter.”         Id. at 638.

       Rivers and the victim met in a bar and drank together

before leaving for a restaurant where Rivers worked.          Id. at

635.    At the restaurant, they engaged in sexual relations in a

back room and, after re-entering the restaurant area, they

became involved “in an argument over [Rivers’s] attention to

others.”    Ibid.    Allegedly, the victim picked up a knife and

threatened Rivers.       Ibid.    “When the victim moved away, [Rivers]

reached behind a counter and picked up a kitchen knife.”          Ibid.

Rivers claimed that the victim “came back at him,” and,

believing that he was going to be attacked, Rivers fatally

stabbed the victim.       Ibid.

                                      13
    The Court determined that merger of Rivers’s two

convictions was not required because “each may be established by

proof of a different fact which the other does not require.”

Id. at 639.    Accordingly, the Court held that there was “no

mistake of judgment resulting in double punishment.”     Ibid.

                                  V.

    The approach to determine merger of offenses used in Diaz

is applicable here.     The evidence tends to prove that

defendant possessed the weapon unlawfully only to commit the

substantive offense.     No broader unlawful purpose was

supported directly or circumstantially by the evidence.

    The Diaz approach to analyzing merger is the governing

standard.     The Court may consider factors such as

            “the   time    and    place  of   each    . . .
            violation; whether the proof submitted as
            to one count . . . would be . . . necessary
            . . . to a conviction under [the other]
            count; whether one act was . . . part of a
            larger scheme . . .; the intent of the
            accused;   and    the   consequences   of   the
            criminal standards transgressed.”

            [Diaz, supra, 144 N.J. at 638         (quoting
            Davis, supra, 68 N.J. at 81).]

On application of these factors in this case, merger is

appropriate.

    Here, each charge arose at the same time and from the same

conduct.    Both the possession of the weapon for an unlawful

purpose and the aggravated manslaughter resulted from a single

                                  14
course of conduct.    No other conduct led to the charges.

Additionally, both charges require proof of the same fact: that

defendant beat Farren with the caulking gun.     Despite the

differing levels of culpability between the charges --

recklessly causing a death and purposeful unlawful possession of

a weapon -- defendant’s intent on both counts arguably included

purposeful conduct.    See State v. Jenkins, 178 N.J. 347, 362-64

(2004).    In Jenkins, the Court reasoned that reckless behavior

leading to death can stem from a conscious disregard of “a known

risk that created the possibility or probability that death

would follow from [the] conduct.”     Id. at 364.   Thus, the

purposeful use of a blunt object to strike Farren, without the

intention of causing death, is conduct culpable of both

aggravated manslaughter and possession of a weapon for an

unlawful purpose.

    The consequences of the criminal transaction, even if the

charges are merged, are severe.       Defendant was sentenced to a

sixty-year term of imprisonment with eighty-five percent

parole ineligibility on the aggravated manslaughter charge.

On the other hand, the conviction of possession of a weapon

for an unlawful purpose resulted in a concurrent five-year

term.     In terms of the consequences of the criminal act, “the

predominant legislative purpose, judged by the severity of the



                                 15
sentence,” has been served even if the charges are merged.

State v. Mirault, 92 N.J. 492, 504 (1983).

    There is a tension between the Diaz and Bowens holdings.

As illustrated by Hill and Diaz, Bowens appears to be an

outlier in post-Code merger cases.   The cases not requiring

merger have had clear statutory differences illustrating

legislative intent to fractionalize a course of conduct.     See,

e.g., Miller, supra, 108 N.J. at 120-21 (finding legislative

intent to punish both sexual assault and endangering welfare

of child based not only on specific conduct but also on

violation of parental duty); contra Mirault, supra, 92 N.J.

at 503-05 (finding overlapping legislative intent between

first-degree robbery and second-degree aggravated assault

requiring merger).   Courts have also declined to merge charges

when a separate unlawful purpose for possession of a weapon is

present.   See, e.g., Truglia, supra, 97 N.J. at 521-22

(holding that defendant had separate unlawful purpose when he

chased his victim with gun in his hand before later wounding

him with gun).

    We have determined, however, that the better course is to

follow Diaz in deciding this and future merger disputes.     See

State v. Ciuffini, 164 N.J. Super. 145, 152 (App. Div. 1978)

(“Where more recent decisions of the Supreme Court plainly

undermine the authority of a prior decision although not

                               16
squarely and explicitly overruling it, we are entitled to

follow the current doctrine and need not be confined by the

prior ruling.”).     We need not be confined by Bowens.   Indeed,

the facts of this case fall squarely within the framework of

Diaz.

    Diaz, supra, plainly states that “[w]hen the only

unlawful purpose in possessing the [weapon] is to use it to

commit the substantive offense, merger is required.”      144 N.J.

at 636.     Unlike the defendant in Diaz, who threatened the

victim before shooting him and threatened an eyewitness when

fleeing from the scene, defendant here had no broader unlawful

purpose for possessing the weapon.     See id. at 632-33, 636-37.

    Furthermore, the Court’s opinion in Diaz is clear: “When

the jury is explicitly instructed that the unlawful purpose

was to use the gun against the victim of the substantive

offense . . . merger is required notwithstanding that the

evidence was sufficient to support a separate unlawful

purpose.”    Id. at 641.   This case contains no evidence to

support a separate unlawful purpose, and, significantly, the

jury was specifically instructed that defendant’s unlawful

purpose was “to assault Sheri Farren.”     Thus, under the Diaz

rationale, merger is required because the evidence against

defendant was that he possessed a weapon for the purpose of



                                 17
beating Farren with it -- the substantive offense.   See id. at

639 (quoting Williams, supra, 213 N.J. Super. at 36).

                              VI.

    The judgment of the Appellate Division is reversed, and

the matter is remanded to the Law Division for correction of

the judgment of conviction to reflect that the conviction for

possession of a weapon for an unlawful purpose merges into the

aggravated manslaughter conviction.


     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON;
and JUDGE CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s
opinion.




                               18
                SUPREME COURT OF NEW JERSEY



NO.    A-99                                    SEPTEMBER TERM 2011

ON CERTIFICATION TO              Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,

                v.

TROY N. TATE,

      Defendant-Appellant.




DECIDED              November 12, 2013
                 Chief Justice Rabner                        PRESIDING
OPINION BY             Judge Rodríguez (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


                                    REVERSE AND
CHECKLIST
                                      REMAND
CHIEF JUSTICE RABNER                     X
JUSTICE LaVECCHIA                        X
JUSTICE ALBIN                            X
JUSTICE PATTERSON                        X
JUDGE RODRÍGUEZ (t/a)                    X
JUDGE CUFF (t/a)                         X
TOTALS                                   6




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