(dissenting in part). I respectfully dissent from the views of my fellow judges. In my judgment it flies in the face of reason to term a hand, no matter how positioned, "an object or device” possession of which while committing a crime will subject the possessor to a penalty in addition to that imp'osed for the crime committed. The purpose of the pertinent portion of the statute, N. J. S. A. 2A:151-5, is to punish the possession and use of toy or imitation weapon having an appearance similar to a real weapon to the same extent as the use of a real weapon is punished.
The use of a menacing gesture or pose such as that utilized by defendant in the instant ease, when accompanied by an intent to rob, amounts to an assault with intent to rob under N. J. S. A. 2A:90-3. State v. Jackson, 90 N. J. Super. 306 (App. Div. 1966). When, as here, the robbery is consummated, the offenses merge. State v. Wines, 47 N. J. Super. 235 (App. Div. 1957); State v. Hill, 44 N. J. Super. 110 (App. Div. 1957). Criminal statutes must be construed strictly in accordance with the language employed by the Legislature. State v. Labato, 7 N. J. 137 (1951); State v. Dunlap, 61 N. J. Super. 582, 588 (App. Div. 1960), cert. den. 368 U. S. 903, 82 S. Ct. 181, 7 L. Ed. 2d 97 (1961). I perceive no intention in the statutory language to provide separate punishment for the use of a menacing gesture even though it may create the impression in the mind of the victim that a weapon is possessed by the assailant.
I would reverse the judgment of conviction on the charge of being armed. I agree with the majority that the conviction for assault with intent to rob should be vacated. I also agree that the conviction for breaking and entering and robbery should be affirmed.