STATE OF NEW JERSEY VS. HASSAN A. REID (14-02-0224 AND 14-02-0234, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0985-17T3
STATE OF NEW JERSEY,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. August 15, 2018
APPELLATE DIVISION
HASSAN A. REID,
Defendant-Respondent.
____________________________
Argued July 31, 2018 – Decided August 15, 2018
Before Judges Sabatino, Mayer and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
Nos. 14-02-0224 and 14-02-0234.
Nancy A. Hulett, Assistant Prosecutor,
argued the cause for appellant (Andrew C.
Carey, Middlesex County Prosecutor,
attorney; Nancy A. Hulett, of counsel and on
the briefs).
Peter T. Blum, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney; Peter T. Blum, of counsel and on
the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
The State appeals the trial court's dismissal of two
Middlesex County indictments charging defendant Hassan A. Reid
with committing an armed robbery in Perth Amboy, conspiracy, and
firearms possessory offenses. The court dismissed those charges
because defendant had already pled guilty and been convicted in
Monmouth County to having illegally possessed firearms in Asbury
Park, weapons that were confiscated after the robbery in Perth
Amboy occurred.
In particular, the victim of the robbery identified
defendant as having brandished a silver or gray handgun.
Another witness to the robbery told police that she saw
defendant wearing a shoulder holster at some unspecified point
in time. Five days after the robbery, police officers executed
a warrant for defendant's arrest issued by a judge in Middlesex
County. The officers found defendant in a home in Monmouth
County, along with two guns, one of which was silver or gray in
color, and a shoulder holster.
The trial court reasoned that the Monmouth County and
Middlesex County charges were sufficiently related to require
them to be pursued in a single coordinated prosecution.
Consequently, the court ruled the State's failure to combine the
charges before the entry of the judgment of conviction in
Monmouth barred his later prosecution in Middlesex.
The issues before us concern principles of mandatory
joinder, double jeopardy, and continuing offenses. Applying
2 A-0985-17T3
those principles, we partially affirm the trial court's
dismissal order with modification, reverse the order in part,
and remand the matter for trial on certain counts of the
indictments in Middlesex County. More specifically, and subject
to certain caveats detailed in this opinion, the Middlesex
prosecution on the armed robbery and conspiracy-to-rob counts is
reinstated, but the weapons possession counts remain dismissed.
I.
Although the proofs have not been developed or tested at a
jury trial, the existing record reveals the following factual
contentions and relevant procedural history.
The Armed Robbery in Perth Amboy
On June 30, 2013, H.B.1 was walking to a friend's house
located on Convery Boulevard in Perth Amboy (Middlesex County).
According to H.B., as he approached the house, a "grayish" Honda
Civic pulled up and blocked his path. The front seat passenger
got out of the Honda and asked H.B. if he lived at the location.
H.B. responded in the affirmative, even though he did not
actually reside there.
In his testimony at a pretrial hearing in Middlesex County,
H.B. described the front seat passenger as a light-skinned
1
We use initials for the robbery victim, as there is no
necessity to identify him by his full name in this opinion.
3 A-0985-17T3
African-American man with a beard, who was wearing a red hoodie
and khaki pants. H.B. testified that the front seat passenger
then "reached under his hoodie and pulled a gun 2 and cocked it
and said, you know – you know what this is." H.B. identified
defendant as the front seat passenger who had initially
brandished a gun.
H.B. recounted that another man then hopped out of the back
passenger side of the Honda. The second man "put another gun in
[H.B.'s] face and told [him] to get on the car." H.B. described
the back seat passenger as wearing a polo shirt with stripes and
a baseball cap pulled down low. Because this second assailant
had positioned himself behind H.B., H.B. could not get a good
look at the man's face. The second man then went through H.B.'s
pockets and took $20 in cash as well as H.B.'s car keys.
According to H.B., while he was pushed up against the car, he
noticed a third person – a woman – sitting in the driver's seat.
H.B. testified that after he was robbed, the first
assailant, identified as defendant, told him to run, and
motioned with his gun towards a nearby gas station. After
running to the gas station, H.B. tried without success to
2
H.B. described the gun as "gray" and "automatic," stating that
it "wasn't a revolver . . . ."
4 A-0985-17T3
persuade the attendant to allow him to use the attendant's
phone.
At that point, H.B. looked to see if the Honda was gone.
He did not see the vehicle, so he returned to his friend's
house. When he returned to the house, H.B. saw that his friend,
his friend's girlfriend, and the friend's upstairs neighbor,
Lisa Reid, were outside. He told them he had just been robbed.
According to H.B., after he described the robbery, Reid
repeatedly said words to the effect that she could not believe
defendant would do such a thing in front of her home. H.B. told
Reid that if she could get his car keys back for him, he would
not call the police. On the other hand, H.B. told her that if
he did not get the keys, he would call the police.
Reid3 tried to call defendant on her cell phone, but she was
unable to reach him. After waiting approximately twenty
minutes, H.B. called the police. Police officers then arrived
at the scene.
H.B. was interviewed there by Officer Jose Santiago of the
Perth Amboy Police Department. He told Santiago he had been
robbed by two suspects brandishing guns and that a third suspect
was a female driver.
3
Reid apparently did not testify in the grand jury or in either
the Middlesex or Monmouth court proceedings.
5 A-0985-17T3
Officer Santiago then spoke to Reid, who identified herself
as defendant's aunt. According to Santiago, Reid told him she
had witnessed the robbery and that her nephew was one of the
robbers. Reid4 also reportedly told Santiago that she had seen
defendant wearing a shoulder holster at some point in time.
Santiago testified that he observed Reid attempt to call
defendant. He recalled Reid left a voicemail for defendant
effectively saying, "bring that stuff back . . . ."
Since defendant was a possible suspect, Officer Santiago
retrieved a prior booking photo of defendant on the computer in
his patrol car. Santiago asked H.B. to look at the photo. H.B.
identified defendant from the photo as the first assailant
wearing the red hoodie. According to Santiago, H.B. stated that
he had seen defendant in the area of the house on Convery
Boulevard before the robbery, although H.B. did not know
defendant's name. At the later pretrial hearing, H.B. estimated
that he had seen defendant approximately five times previously
in a five-month period.
The Investigation and Arrest Warrant
On July 2, 2013, H.B. went to Perth Amboy police
headquarters to view a photo array containing the images of six
African-American men, including the booking photo of defendant
4
It appears from the record that Reid did not describe the gun.
6 A-0985-17T3
that Santiago had shown to H.B. on the night of the robbery.
H.B. picked out the photo of defendant as the robber. He later
testified at the pretrial hearing that he was "a hundred
percent" sure he had correctly picked out the man who had robbed
him. H.B. was unable to identify the other two people involved
in the robbery.
As a result of these events, a judge in Middlesex County
issued a warrant for defendant's arrest on the robbery.5
Defendant's Arrest and The Premises Search in Asbury Park
On July 3, 2013, Perth Amboy police distributed a "Be On
the Look Out" ("BOLO") bulletin, alerting law enforcement that
defendant was reported to be a member of a gang and had been
linked to a robbery involving a semiautomatic handgun. A police
officer in Monmouth County noticed the BOLO bulletin, and
discovered that defendant had a recorded address on 6th Avenue
in Asbury Park.
Five days after the robbery, on July 5, 2013, Asbury Park
police officers went to the 6th Avenue address to see if they
could find defendant and take him into custody on the Middlesex
arrest warrant. The officers found defendant there hiding
inside a closet, and arrested him. The officers searched the
5
The appendices on appeal do not contain a copy of the warrant
or indicate when it was issued.
7 A-0985-17T3
home and discovered two firearms, one of which was a silver or
gray-colored, semiautomatic .45 caliber gun, as well as a
shoulder holster and hollow-nosed bullets. They further noted a
child was present in the dwelling.
The Monmouth County Indictment
On October 22, 2013, a grand jury in Monmouth County
returned Indictment 13-10-1884, charging defendant with various
offenses, mainly firearms possessory crimes. Specifically, the
Monmouth indictment charged defendant with second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count
one); second-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a) (count two); third-degree resisting arrest, N.J.S.A.
2C:29-2(a)(3) (count three); second-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(b) (count four); third-degree
receiving stolen property, N.J.S.A. 2C:20-7(a) (count five);
fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-
3(f) (count six); and two second-degree "certain persons" not to
have weapons offenses, N.J.S.A. 2C:39-7(b)(1) (counts seven and
eight). All of these Monmouth County charges stemmed from the
search of the home in Asbury Park, where defendant had been
found on July 5, 2013.
8 A-0985-17T3
The Middlesex County Indictments
On February 28, 2014, grand jurors in Middlesex County
returned Indictment No. 14-02-0224, charging defendant with:
second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-
2 and N.J.S.A. 2C:15-1 (count one); first-degree armed robbery,
N.J.S.A. 2C:15-1 (count two); third-degree unlawful possession
of a "silver colored handgun" without a permit, N.J.S.A. 2C:39-
5(b) (count three); and second-degree possession of a "silver
colored handgun" for an unlawful purpose, N.J.S.A. 2C:39-4(a)
(count four). On the same day, grand jurors in Middlesex
returned a related second indictment, Indictment No. 14-02-0234,
charging defendant with second-degree certain persons not to
have weapons, N.J.S.A. 2C:39-7(b).
Resolution of the Monmouth Charges
Defendant filed a motion in Monmouth County to suppress the
guns, shoulder holster, and bullets the police had seized from
the Asbury Park residence. A judge in Monmouth County denied
that motion in March 2014.6 Having lost the suppression motion,
defendant entered into plea negotiations with the Monmouth
County Prosecutor's Office.
6
The suppression motion denial was appealed to this court. That
matter (A-5430-14) was amicably resolved by the parties, and the
appeal was accordingly dismissed with prejudice in April 2018.
9 A-0985-17T3
The negotiations resulted in an agreement in which
defendant pled guilty to two counts of unlawful possession of a
weapon (counts one and four), and one of the "certain persons"
charges (count seven), with the Monmouth prosecutor agreeing to
dismiss the remaining counts of the indictment. The plea was
accepted before a Monmouth County judge on April 6, 2015.
Consistent with the plea agreement, defendant was sentenced in
Monmouth County on June 5, 2015 to an aggregate custodial term
of seven years, subject to a five-year period of parole
ineligibility.
The Middlesex County Proceedings
The trial court in Middlesex County thereafter conducted a
pretrial evidentiary hearing in April 2017 on H.B.'s out-of-
court identification of defendant as one of the armed robbers.
Following that hearing, the Middlesex County judge ruled that
the identification was proper and admissible under the standards
of United States v. Wade, 388 U.S. 218 (1967), State v.
Henderson, 208 N.J. 208 (2011), and State v. Chen, 208 N.J. 307
(2011).
Meanwhile, however, the Middlesex judge raised with
counsel, sua sponte, the issue of whether defendant's
prosecution in Middlesex County could lawfully proceed in light
of defendant's earlier plea and sentencing in Monmouth County.
10 A-0985-17T3
Thereafter, defendant moved to dismiss the Middlesex County
indictments, arguing that the Monmouth County disposition
precluded his prosecution for armed robbery and the other
offenses in Middlesex.
After hearing oral argument, the trial judge ruled that the
Middlesex County charges had to be dismissed in their entirety
because of their relationship to the weapons charges that had
resulted in the judgment of conviction in Monmouth County. In a
detailed written opinion (which also included the court's
disposition on the identification issues), the judge concluded
that principles of mandatory joinder and double jeopardy
required the Middlesex and Monmouth charges to have been brought
together in a common prosecution.
Among other things, the judge determined that the charged
offenses in both counties fundamentally were based on a common
criminal episode. He found that the guns police had seized in
Asbury Park logically included the same silver gun that the
victim H.B. had seen the robber brandish five days earlier in
Perth Amboy, noting that the State's pretrial memorandum
espoused such a linkage.
The judge observed the State could have avoided the joinder
and double jeopardy problems by either including the armed
robbery charges in the Monmouth prosecution, or by Monmouth
11 A-0985-17T3
foregoing its prosecution and forwarding its investigatory file
to the Middlesex prosecutors. Although the judge recognized it
was unfortunate that defendant receive a "windfall" from the
lack of coordination of the two prosecutions, he determined that
dismissal of the Middlesex charges was required under the
applicable law, so that defendant would not "be prosecuted twice
for the same guns." The State moved for reconsideration, which
the court denied.
This appeal by the State ensued.7
II.
As we approach the issues presented on appeal concerning
the court's dismissal of the Middlesex indictments, we bear in
mind dual aspects of the pertinent standards of appellate
review. In general, "the decision whether to dismiss an
indictment lies within the discretion of the trial
court . . . ." State v. Hogan, 144 N.J. 216, 229 (1996) (citing
State v. McCrary, 97 N.J. 132, 144 (1984)). "A trial court's
7
Defendant attempted to file a belated cross appeal as within
time, challenging the trial court's ruling that the victim's
out-of-court identification was admissible. By order, this
court denied defendant's motion to file the untimely cross
appeal, noting the State's appeal was accelerated and its merits
brief had already been filed. However, we preserved defendant's
ability to challenge the trial court's interlocutory
identification ruling on direct appeal, in the event the
Middlesex indictment were reinstated and he were ultimately
convicted.
12 A-0985-17T3
exercise of this discretionary power will not be disturbed on
appeal 'unless it has been clearly abused.'" State v. Saavedra,
222 N.J. 39, 55-56 (2015) (citing State v. Warmbrun, 277 N.J.
Super. 51, 60 (App. Div. 1994) (quoting State v. Weleck, 10 N.J.
355, 364 (1952))).
Even so, where, as the State argues here, the trial court's
decision does not simply involve the exercise of discretion but
instead concerns an alleged misapplication of the law, we must
examine those legal contentions de novo without affording the
court special deference. State v. Miles, 229 N.J. 83, 90 (2017)
(applying de novo review to legal issues of double jeopardy and
joinder, arising in the context of reviewing a trial court's
ruling on a motion to dismiss an indictment). "When an
appellate court reviews a trial court's analysis of a legal
issue, it does not owe any special deference to the trial
court's legal interpretation." Ibid. (citing Manalapan Realty,
LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Indeed, as the Court reaffirmed in Miles, "When a question of
law is at stake, the appellate court must apply the law as it
understands it." Ibid. (quoting State v. Mann, 203 N.J. 328,
337 (2010)).
Specifically, the State asserts the court below misapplied
the law in ruling that, by virtue of the earlier disposition on
13 A-0985-17T3
the Monmouth charges, the prosecution of defendant on the
Middlesex charges is precluded in its entirety by legal
principles of mandatory joinder and double jeopardy. We
consider these legal issues in turn.
A.
We begin with mandatory joinder, a concept that is more
stringent than double jeopardy principles in disallowing certain
successive prosecutions. State v. Veney, 409 N.J. Super. 368,
383 (App. Div. 2009) (explaining how the breadth of the
prohibitions imposed by our State's mandatory joinder rule
exceeds the protections constitutionally afforded to criminal
defendants under the Double Jeopardy Clause); see also Cannel,
New Jersey Criminal Code Annotated, comment 11 on N.J.S.A. 2C:1-
8 (2018) (observing "the [mandatory joinder] requirement is more
broadly stated than the tests for either merger or double
jeopardy, so that it encompasses situations where neither of
those concepts need finally be applicable").
Rule 3:15-1(b) on mandatory joinder, which our State first
adopted in 1977, presently reads as follows:
Except as provided by R. 3:15-2(b),[8] a
defendant shall not be subject to separate
trials for multiple criminal offenses based
8
There is no claim that the exception in Rule 3:15-2(b), which
concerns severance and other relief, applies to the present
case.
14 A-0985-17T3
on the same conduct or arising from the same
episode, if such offenses are known to the
appropriate prosecuting officer at the time
of the commencement of the first trial and
are within the jurisdiction and venue of a
single court.
[R. 3:15-1(b) (emphasis added).]
The Legislature codified these principles from the court
rule by including a companion mandatory joinder provision,
N.J.S.A. 2C:1-8(b), within the Code of Criminal Justice in 1978.
The language in N.J.S.A. 2C:1-8(b) tracks the terms of Rule
3:15-1(b). The Code's mandatory joinder provision is
implemented through N.J.S.A. 2C:1-10(a)(2), which provides:
A prosecution of a defendant for a violation
of a different provision of the statutes or
based on different facts than a former
prosecution is barred by such former
prosecution under the following
circumstances:
a. The former prosecution resulted in an
acquittal or in a conviction as defined in
section 2C:1-9 and the subsequent
prosecution is for:
. . . .
(2) Any offense for which the defendant
should have been tried on the first
prosecution under section 2C:1-8 unless the
court ordered a separate trial of the charge
of such offense . . . .
[N.J.S.A. 2C:1-10(a)(2) (emphasis added).]
The term "conviction" is defined in N.J.S.A. 2C:1-9(c) as
follows:
15 A-0985-17T3
There is a conviction if the prosecution
resulted in a judgment of conviction which
has not been reversed or vacated, a verdict
of guilty which has not been set aside and
which is capable of supporting a judgment,
or a plea of guilty accepted by the court.
In the latter two cases failure to enter
judgment must be for a reason other than a
motion of the defendant.
[N.J.S.A. 2C:1-9(c) (emphasis added).]
Here, there is no dispute that defendant's April 2015 guilty
plea in Monmouth County, which was followed in June 2015 by his
sentencing and the entry of judgment, comprises an eligible
"conviction" for purposes of the mandatory joinder analysis.
These mandatory joinder provisions derive from the Supreme
Court's opinion in State v. Gregory, 66 N.J. 510 (1975), one of
the main cases cited in the parties' briefs in this appeal. The
circumstances in Gregory involved a defendant's sale of one
glassine envelope of heroin to an undercover police officer in
an apartment. Id. at 511. The defendant retrieved the single
envelope of heroin from a stash of similar envelopes in the
apartment's bathroom medicine cabinet. Ibid. Initially, the
State prosecuted and convicted Gregory of only the drug sale.
Id. at 511-12. Later, the State charged, prosecuted, and
convicted him of possession and possession with intent to
distribute the drugs stored in the medicine cabinet. Id. at
512.
16 A-0985-17T3
The Supreme Court in Gregory vacated the defendant's
conviction on the second indictment for possession with intent
to distribute, concluding that it was unfair to him for the
State to prosecute him for that offense, having already
convicted him of the related drug sale. Id. at 522-23. The
Court recognized that constitutional principles of double
jeopardy might not protect the defendant from the second
prosecution, depending upon how broadly one conceives of the
criminal "transaction(s)" involved. Id. at 517-18. Nonetheless,
the Court disallowed the successive prosecution based on non-
constitutional principles of fairness and the defendant's
reasonable expectations. Id. at 518.
The Court concluded that the State should have joined the
possessory charge in the same indictment and prosecution as the
drug sale charge. Id. at 523. As the Court noted, "While the
sale of the small quantity [of drugs] and the continuing
possession of the larger quantity may under our case law be
viewed here as separate offenses, surely the occurrences in
their entirety at the defendant's apartment on [the date of the
arrest] involved the same conduct or the same criminal episode
for purposes of procedural joinder." Id. at 522 (emphasis
added).
17 A-0985-17T3
Following its opinion in Gregory, the Court adopted Rule
3:15-1(b) as a means to implement these concepts of procedural
joinder. The Court has interpreted the Rule to encompass four
factors a defendant must show to gain dismissal of an indictment
on this basis: (1) the multiple offenses must all be criminal;
(2) the offenses must be based on either the same conduct or
must have arisen out of the same episode; (3) the appropriate
prosecuting officer must have known of all of the offenses at
the commencement of the first trial; and (4) the offenses must
be within the jurisdiction and venue of a single court. State
v. Yoskowitz, 116 N.J. 679, 701 (1989).
In the present matter, the State concedes that factors one
(multiple criminal charges) and three (knowledge by the
Middlesex prosecutor of all of the offenses) are present. The
parties' dispute and the legal analysis turns only on factors
two (the "same conduct" or "same episode") and four (ability to
prosecute the offenses within a common jurisdiction and venue).
The pivotal terms "same conduct" and "same episode" in
factor two are not defined in Rule 3:15-1(b) or the companion
statute. However, the Court's case law has illuminated the
meaning of those concepts. In particular, defendant highlights
the Court's opinion in State v. Williams, 172 N.J. 361 (2002), a
case the trial court relied upon in its own opinion.
18 A-0985-17T3
Williams arose out of circumstances in which an undercover
police officer purchased drugs from the defendant. Id. at 364.
After the drug sale, the defendant rode away on a bicycle.
Ibid. Approximately six minutes later, a narcotics surveillance
team apprehended the defendant, within only steps of the same
set of buildings where the drug sale took place. Id. at 372.
As the defendant rode away, police saw him remove an item from
his pocket and throw it to the ground. The item turned out to
be a glassine bag containing smaller bags of cocaine. Id. at
364. The officers searched the defendant and found the marked
twenty-dollar bill used by the undercover officer to buy the
drugs minutes earlier. Id. at 365.
The State indicted Williams and charged him with possession
of cocaine and resisting arrest. Ibid. He pled guilty to one
count of the indictment. Ibid. About two weeks before his
sentencing, a second indictment was issued, charging him with
drug possession and distribution of cocaine in connection with
the undercover officer's purchase. Ibid.
The trial court denied the defendant's motion to dismiss
the second indictment under the mandatory joinder rule. Id. at
366. However, the Supreme Court reversed that disposition,
concluding that all four required factors under the Rule were
established. Id. at 368, 372. In particular, the Court
19 A-0985-17T3
reasoned that the conduct charged in both indictments was part
of the same "episode," given that the short time and distance
between the occurrence of the offenses was "virtually
inconsequential." Id. at 372. Moreover, the Court noted that a
reasonable assessment of the defendant's actions reflected an
overall scheme to sell drugs and to avoid arrest for that sale
when he fled immediately from the approaching police. Ibid.
The Court concluded that the defendant's "purpose and actions
were all part of the same criminal event and should not be
subjected to fine sequential parsing that results in an
unreasonable second prosecution . . . ." Ibid.
The trial court likened the present circumstances to those
in Williams. It treated the offenses charged against defendant
collectively in the Monmouth and Middlesex indictments as all
being part and parcel of a singular criminal episode. Subject
to several caveats that we will explain, we respectfully differ
with the trial court's legal conclusion, with regard to the
armed robbery and conspiracy charges.
The analysis of the "same episode" factor in this matter is
largely informed by concepts of "continuing wrongs" in criminal
law. The Court alluded to this concept in its seminal opinion
in Gregory, 66 N.J. at 522, in ruling that the defendant's
"continuing possession" of the larger quantity of drugs, after
20 A-0985-17T3
he had just sold a smaller amount to the undercover officer,
concerned the same overall criminal episode.
The Court most recently explained the conceptual
distinction between continuing wrongs and independent criminal
offenses in State v. Diorio, 216 N.J. 598 (2014). Although that
case involved the applicable statute of limitations for
successive acts of theft, the Court's general guidance about
continuing wrong concepts is instructive, if not directly
controlling, here. Specifically, the Court held that where a
defendant takes part in an ongoing scheme to obtain another
person's property by means of deception, the crime of theft-by-
deception is a continuing offense. Id. at 617-18. If the
scheme involves a defendant's promise to pay the victim for the
property at a later date, the crime continues until the date for
expected payment has passed. Id. at 621-22. By comparison, the
crime of money laundering would not be a continuous offense
unless there is evidence of successive acts that facilitate the
common scheme to defraud. See id. at 627-28.
N.J.S.A. 2C:1-6(c) declares that "[a]n offense is committed
either when every element occurs or, if a legislative purpose to
prohibit a continuing course of conduct plainly appears, at the
time when the course of conduct or the defendant's complicity
therein is terminated." Accordingly, the Court in Diorio
21 A-0985-17T3
observed that our Criminal Code thereby conveys a general
"'presumption against finding that an offense is a continuous
one.' II The New Jersey Penal Code, Final Report of the N.J.
Criminal Law Revision Commission § 2C:1-6 commentary 2 at 15
(1971)." Diorio, 216 N.J. at 614-15. "However, the Code
expressly recognizes the existence of continuing offenses,
N.J.S.A. 2C:1-6(c), and the Law Revision Commission declared
that '[t]o the extent that a given offense does in fact
proscribe a continuing course of conduct, no violence is done to
the statute of limitations.'" Id. at 615 (quoting the
Commission Report at 16). In determining whether the general
presumption against continuous offenses is surmounted, the
Court's "task then is to determine whether the Legislature
explicitly declared [the subject] offenses as continuing
offenses or [whether] the nature of either offense is one that
the Legislature must have intended that it be treated in this
manner." Id. at 615-16.
The Court in Diorio explained the concept of a continuing
wrong with the following language and illustrations. Notably
for our present case, the Court's illustrations include the
crime of robbery, as well as firearms possessory crimes.
A criminal offense is often classified as
either a discrete act or a continuing
offense. "A discrete act" is one that occurs
at a single point in time. State v.
22 A-0985-17T3
Williams, 129 N.J. Super. 84, 86 (App. Div.
1974), rev'd on other grounds, 68 N.J. 54
(1975). Robbery is such an offense.
[Diorio, 216 N.J. at 614 (emphasis added).]
By contrast to "discrete" offenses such as robbery, the Court
defined a "continuing offense" as follows:
A continuing offense involves conduct
spanning an extended period of time and
generates harm that continues uninterrupted
until the course of conduct ceases. State v.
Ireland, 126 N.J.L. 444, 445 (Sup. Ct.
1941), appeal dismissed, 127 N.J.L. 558 (E.
& A. 1942).
[Ibid. (emphasis added).]
The Court then presents the following examples of
continuing offenses, including the uninterrupted possession of
an unlawful item such as a firearm:
For example, possession of a controlled
substance is considered a continuous
offense. No New Jersey case holds that
separate days of continuous criminal
possession will support separate
convictions. Cannel, New Jersey Criminal
Code Annotated, comment 8 on N.J.S.A. 2C:1-
8 (2013); see also United States v.
Fleischli, 305 F.3d 643, 658 (7th Cir. 2002)
(holding that possession of firearm is
considered continuing offense which ceases
only when possession stops). On the other
hand, separate instances of possession of a
banned substance are discrete acts.
Williams, 129 N.J. Super. at 86. Kidnapping
is considered a continuing offense because
the risk of harm to the victim persists
until safe release. United States v.
Garcia, 854 F.2d 340, 343-44 (9th Cir.
1988).
23 A-0985-17T3
[Ibid. (emphasis added).]
Guided by the Court's examples, we proceed to consider the
five counts of the Middlesex indictments. The most serious of
those charged offenses is first-degree armed robbery, N.J.S.A.
2C:15-1. We also consider at the same time the associated count
charging second-degree conspiracy to commit armed robbery,
N.J.S.A. 2C:5-2 and 2C:15-1.
As the Court made clear in Diorio, the offense of robbery
is a discrete act that is completed at the time of the forcible
taking itself. Id. at 614. Here, the robbery was completed
when defendant, as the State alleges, threatened the victim H.B.
with immediate bodily injury (or placed him in fear of such
harm) while armed with a deadly weapon, and committed a theft of
his property, i.e., H.B.'s money and car keys. N.J.S.A. 2C:15-
1.
Although the crime of conspiracy conceptually is a
continuing wrong, the duration of a conspiracy generally
terminates "when the crime or crimes which are its object are
committed or the agreement that they be committed is abandoned
by the defendant and by those with whom he conspired . . . ."
N.J.S.A. 2C:5-2(f)(1). The Court has recognized exceptions to
that principle, such as the notion that concerted acts
undertaken in concealment of a crime that was the conspiracy's
24 A-0985-17T3
main objective can serve to continue the conspiracy. State v.
Savage, 172 N.J. 374, 405-06 (2002); see also State v. Cagno,
211 N.J. 488, 511 (2012).
Here, the existing record does not contain any indication
that the alleged conspiracy to rob the victim was extended by
concerted acts of defendant and others after the victim H.B. was
accosted on the street in Perth Amboy. Given the present
absence of such indicia of continuation of the conspiracy, we
are persuaded that both the armed robbery offense and the
conspiracy-to-rob offense were discrete crimes that appear to
have been completed on June 30, 2013, and did not continue
through to the time of defendant's arrest in Asbury Park five
days later.9
The trial court nonetheless regarded defendant's possession
of the two guns, the bullets, and the shoulder holster in Asbury
Park on July 5, 2013 as part of the same "episode" as the
robbery committed five days earlier. A critical premise of the
court's reasoning, which it expressed multiple times in its
written decision, was that the guns found at the Asbury Park
9
We do not foreclose the State from developing proofs that a
conspiracy continued after June 30, but such evidence might
prompt judicial reconsideration of whether such evidence of
continuation affects the mandatory joinder analysis respecting
the conspiracy count. We note that the Middlesex indictments do
not charge defendant with eluding or hindering apprehension,
offenses which would involve a different continuity analysis.
25 A-0985-17T3
residence included the same "silver-colored" or "gray-colored"
firearm described by H.B. as the one defendant had pointed at
him. The State contests that premise, arguing that it has not
definitively claimed that the gun used in the robbery was one of
the guns seized from the Asbury Park residence.
The trial court rightly took the State to task for its
ambivalent and inconsistently-stated positions on this key
factual point, as expressed in the State's January 28, 2016 pre-
trial memorandum for the Middlesex case. On page 8 of that
memo, the State is non-committal on the subject, asserting in
hedged language that "the State is not attempting to prove that
the guns recovered during defendant's arrest were necessarily
used in the robbery of [H.B.]." (Emphasis added). The
memorandum then states that:
Instead, the guns would be admitted as
circumstantial evidence. At no point will
the State [at the Middlesex trial] indicate
that the two guns recovered were used in the
robbery. Rather, the State should be
permitted to argue the guns were possibly
used in the robbery. As a result, the guns
are relevant and admissible evidence.
[(Emphasis added).]
Despite these confusing attempted disclaimers on page 8,
the State's pre-trial memo later argues on page 13 that the guns
and the holster found at the Asbury Park home are admissible as
relevant proof of defendant's identity as the robber under
26 A-0985-17T3
N.J.R.E. 404(b) (prior acts) and, by inference, N.J.R.E. 401
(relevancy). The memo asserts in this regard:
[T]he evidence [of the seized guns and
holster] is not being offered to prove
defendant's propensity to commit crimes, but
rather to establish that he is the person
who committed the instant [armed robbery]
offense. Admission of other crimes evidence
to establish identity is proper under
N.J.R.E. 404[(]b[)]. As stated above, the
guns will be circumstantial evidence to
prove that defendant was the person who
committed the robbery. That defendant was
found in possession of a handgun that fits
the description of the one used in the
robbery just days after the robbery is
circumstantial evidence that defendant
committed the robbery.
[(Emphasis added).]
The State cannot have it both ways. Either it is claiming
that the guns seized at the residence included the same one(s)
used in the robbery, or it isn't. If the former, then its claim
of common weaponry undermines its argument against mandatory
joinder, and aids defendant's argument that the guns he
possessed in Asbury Park are part of the same overall criminal
"episode." If the latter, then the State should not be
permitted to sidestep the joinder problem by asserting at pre-
trial motions and on this appeal an insufficient nexus between
the robbery and the seized guns, but suggest later to a jury at
a trial that the guns are "possibly" the same ones and therefore
help prove that defendant is indeed the robber. Like any other
27 A-0985-17T3
litigant, the State is estopped from taking inconsistent
positions that are relied upon by the tribunal. See, e.g.,
State v. Roach, 146 N.J. 208, 222 (1996) (recognizing that
general principle, but concluding from the circumstances that
the prosecution's inconsistent factual arguments it made in
different proceedings nonetheless did not prejudice the
defendant); McCurrie ex rel. Town of Kearny v. Town of Kearny,
174 N.J. 523, 533-34 (2002) (applying judicial estoppel against
a governmental entity that had asserted contrary positions at
different phases of the case).
The trial court construed the State's ambivalent memo to be
a definitive claim that the seized guns and holster had, in
fact, been used in the robbery. We stop short of doing that,
although we agree with the court that appears to be a reasonable
inference.
In any event, we do not believe it would be fair to
defendant to allow the State to continue to be non-committal or
inconsistent. If the State wishes, as we presume it does, to
pursue the robbery and conspiracy charges at trial, then it must
forbear from arguing, suggesting, or intimating to the jury that
the guns, holster, and bullets seized in Asbury Park are the
same ones — or even "possibly" the same ones — used in the
robbery. Nor can the State advocate that the seized weaponry is
28 A-0985-17T3
proof of defendant's "identity" as the robber. Instead, the
State would have to rely on other evidence in the record, in
particular, the eyewitness testimony and the victim's
description of what had been pointed at him, to establish the
elements of armed robbery and conspiracy.
We believe the foregoing analysis is consistent with the
Court's decisions in Gregory and Williams, which were focal
points of the parties' briefs. With respect to the robbery and
conspiracy charges, we believe the five-day gap of time and the
physical distance between Perth Amboy and Asbury Park
sufficiently attenuate those Middlesex crimes from the
possessory crimes in Monmouth to allow them to be treated as
distinct offenses that can be prosecuted separately. The
context here is unlike the situation in Gregory where the
undercover sale of drugs charged in the first indictment was
closely connected to the drug possession offenses charged in the
second indictment. The circumstances in Williams, involving a
mere six-minute interval between the undercover purchase and the
defendant's apprehension a short distance away in the same
vicinity, also are dissimilar from the asserted link between the
June 30 robbery and the July 5 possessory offenses in a
different county.
29 A-0985-17T3
The fact that defendant was apprehended in Monmouth on an
arrest warrant issued in Middlesex does not mean the two
prosecutions inexorably stem from the same episode. If that
were the case, a fugitive arrested on a warrant from another
county who has been engaged in new offenses at his present
location might be able to thwart the ability of the two counties
to proceed efficiently and independently with separate
prosecutions for the discrete acts committed in their respective
locales. The joinder rules should not hinder law enforcement in
apprehending fugitives who are wanted for crimes committed
elsewhere, and in prosecuting them for new criminal acts
performed within their own jurisdictions.
The "same episode" analysis differs with respect to the
three firearms possession counts in the Middlesex indictments.
Two of those charges — the "certain persons" offense in
Indictment No. 14-02-0234, N.J.S.A. 2C:39-7(b), and the unlawful
possession of a weapon offense set forth in count three of
Indictment No. 14-02-0224, N.J.S.A. 2C:39-5(b), replicate
possessory crimes that were also respectively charged in counts
four, seven, and eight in the Monmouth indictment. The other
firearms possession offense charged in Middlesex, i.e.,
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a), count three of Indictment No. 14-02-0224, has no
30 A-0985-17T3
corresponding parallel in the Monmouth indictment. We are also
mindful that defendant pled guilty to one of the "certain
persons" counts in Monmouth, and a portion of his aggregate
sentence relates to that offense.
As the Supreme Court made clear in Diorio, echoed by the
Commentary in the Cannel treatise and the cited federal case law
involving firearms possession, "No New Jersey case holds that
separate days of continuous criminal possession will support
separate convictions." 216 N.J. at 614 (emphasis added). Only
"separate instances of possession of a banned substance are
discrete acts." Ibid. (emphasis added). See also Fleischli,
305 F.3d at 658 (observing that "[p]ossession of a firearm is a
continuing offense which ceases only when the possession stops")
(citing United States v. Ballentine, 4 F.3d 504, 507 (7th Cir.
1993)).
Following this logic, defendant's alleged possession of the
weaponry on June 30 during the armed robbery ordinarily would be
deemed a continuing possessory offense, through and including
the time that he was found, along with the weaponry, five days
later on July 5. As such, we have no difficulty in treating
those possessory crimes, as the trial court did, as being part
of the "same episode" for purposes of mandatory joinder
analysis.
31 A-0985-17T3
We insert a caveat, however. The continuing offense of
possession of an illegal item ceases when a defendant
relinquishes possession of the item, even if he reacquires it at
a later time. The sparse present record contains no indication
that defendant stashed or otherwise ceased possessory control of
the weapons at some point in the five-day interval between the
June 30 robbery and his July 5 arrest. Based on the limited
record before us, it appears that the trial court correctly
treated the possessory crimes as all being encompassed within
the same episode. However, we modify the court's decision to
leave the State an opportunity to move to reinstate the
possessory charges in Middlesex if it can proffer such proof of
a break in the chain of continuous possession. Otherwise, those
counts must remain dismissed.
We lastly turn to the final element of the four-part
mandatory joinder test, i.e., venue and jurisdiction. This
factor is easily met. The trial court correctly ruled that both
Middlesex and Monmouth Counties have statewide criminal
jurisdiction, and that either forum could have served as a venue
for a combined prosecution, subject to any severance motion that
defendant might have chosen to make. State v. James, 194 N.J.
Super. 362, 365-66 (App. Div. 1984). The joinder analysis does
not turn on this fourth prong. Instead, as we have shown, the
32 A-0985-17T3
analysis hinges on the second prong concerning whether the "same
episode" test is met. As noted, that analysis leads to
reinstatement of at least the armed robbery and conspiracy
charges.
B.
Having delved into the mandatory joinder issues in depth,
we need not comment at length about double jeopardy issues,
which are governed by less stringent legal standards. The
following brief discussion will suffice.
The Federal and State Double Jeopardy Clauses provide that
no person shall "be subject for the same offence to be twice put
in jeopardy of life or limb," U.S. Const. amend. V, and "[n]o
person shall, after acquittal, be tried for the same offense,"
N.J. Const. art. I, ¶ 11. As our Supreme Court recently
explained in its May 16, 2017 opinion in State v. Miles, 229
N.J. 83, 99 (2017), until Miles was decided, our state has
construed the double jeopardy clause to bar, subject to
exceptions, a successive prosecution where the later prosecution
is based on the "same-evidence" as the first prosecution. Going
forward, the Court advised in Miles that our courts should cease
using the "same-evidence" test and instead apply the "same-
elements" test utilized under the federal case law. Id. at 94-
33 A-0985-17T3
96. See United States v. Dixon, 509 U.S. 688, 708-09 (1993)
(utilizing the "same-elements" test).
Because this matter arose and the joinder motion was
adjudicated in the trial court before May 16, 2017, we are
guided by the former "same-evidence" test for double jeopardy
purposes. Applying that test, it is readily apparent that the
possessory weapons charges set forth in the Middlesex
indictment10 would need to be proven by different evidence than
the evidence the State needed to prove the charges in the
Monmouth indictment. Those counts of the Middlesex indictment
would fundamentally turn upon the credibility of the eyewitness
testimony observing that defendant illegally possessed a gun in
Perth Amboy on the specific date of June 30, 2013. The evidence
obtained five days later in Asbury Park on July 5, 2013 would
not be essential to the Middlesex firearms possession charges,
nor would it be sufficient. The evidence in Middlesex on those
charges would invariably have to go beyond the Monmouth
evidence. Accordingly, no double jeopardy violation is present.
III.
To sum it up, we affirm the trial court's ruling to dismiss
the firearms possessory charges (counts three and four of
10
Defendant confines his double jeopardy arguments to those
counts, and does not argue that the armed robbery and conspiracy
counts are vulnerable to dismissal on this basis.
34 A-0985-17T3
Middlesex Indictment No. 14-02-0224 and count one of Indictment
No. 14-02-0234), without prejudice to the State moving to
reinstate those counts upon a proffer of evidence of a break in
continuity of defendant's possession. We reverse the court's
dismissal of the armed robbery (count two) and conspiracy (count
one) charges in Middlesex Indictment No. 14-02-0224, subject to
the caveat we have expressed prohibiting the State from
asserting or suggesting to the jury that the weaponry seized in
Monmouth County included weapons used earlier in the robbery.
The matter is remanded for trial subject to these various
conditions.
Affirmed in part as modified, reversed in part, and
remanded.
35 A-0985-17T3