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

NOT FOR PUBLICATION WITHOUT THE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