STATE OF NEW JERSEY VS. EDDIE GONZALEZ (17-01-0269 AND 17-01-0271, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3999-18T4
A-4000-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDDIE GONZALEZ,

Defendant-Appellant.

Submitted September 16, 2020 – Decided October 6, 2020

Before Judges Alvarez and Geiger.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 17-01-0269
and 17-01-0271.

Robert Carter Pierce, attorney for appellant.

Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Eddie Gonzalez was convicted and sentenced on December 14,

2018, to five concurrent county jail terms of 365 days on Essex County

Indictment 17-01-0269, to be followed by two concurrent terms of five years

with forty-two months of parole ineligibility on Essex County Indictment 17 -

01-0271. The convictions were the product of two separate trials. We now

affirm.

After six and a half years as an officer, defendant was terminated from the

Newark Police Department in 2008. The department required he return

department-issued equipment, although he had the right to keep items he

purchased for himself, such as his uniform. At the time, defendant claimed he

could not locate his badge. He maintained ownership of two registered

handguns.

In early winter 2013, defendant and C.S. 1 began a dating relationship that

lasted for approximately a year. On November 20, 2014, C.S. obtained a

temporary restraining order (TRO) under the Prevention of Domestic Violence

Act, N.J.S.A. 2C:25-17 to -35, against defendant. An amended TRO was served

on him the following day. The form, preprinted language states:

1
We use initials to protect the identity of domestic violence victims. R.
1:38(d)(9)-(10).
A-3999-18T4
2
 PROHIBITION AGAINST POSSESSION OF
WEAPONS: You are prohibited from possessing any
and all firearms or other weapons and must
immediately surrender these firearms, weapons,
permit(s) to carry, application(s) to purchase firearms
and firearms purchaser ID card to the officer serving
this [c]ourt [o]rder. Failure to do so will result in your
arrest and incarceration.

Additionally, the form language included the following:

WARRANT TO SEARCH FOR AND TO SEIZE
WEAPONS FOR SAFEKEEPING TO ANY LAW
ENFORCEMENT OFFICER HAVING
JURISDICTION: This [o]rder shall serve as a warrant
to search for and seize any issued permit to carry a
firearm, application to purchase a firearm and firearms
purchaser identification card issued to . . . defendant
and the following firearm(s) or other weapon(s):

1. You are hereby commanded to search for the above
described weapons and/or permits to carry a firearm,
application to purchase a firearm and firearms
purchaser identification card and to serve a copy of this
[o]rder upon the person at the premises or location
described: See Affidavit.

The November 21, 2014 amended TRO included the same language.

Defendant acknowledged receipt of the orders by his signature but refused

to sign for a January 7, 2015 TRO. None were served while he was home.

The final restraining order (FRO) included this paragraph:

10. ☒ ☒ PROHIBITIONS AGAINST POSSESSION OF
WEAPONS:

A-3999-18T4
3
 You are prohibited from possessing any and all firearms
or other weapons and must immediately surrender these
firearms, weapons, permit(s) to carry, application(s) to
purchase firearms and firearms purchaser ID card to the
officer serving this [c]ourt [o]rder. Failure to do so will
result in your arrest and incarceration.

After defendant was served, he too obtained a TRO against C.S., and later

alleged that she violated it on February 12, 14, 15, 19, and 20, 2015. Defendant

was interviewed regarding these claims by Newark Police Department Detective

Antoinette Cirasella, who testified at the first trial. She also asked him if he

owned any firearms, which he denied. Defendant later called Cirasella

requesting she discard the papers he had given her detailing his allegations

against C.S., and she explained that she could not do so. Cirasella corroborated

some of defendant's claims with his friend Eva Grasso.

Upon further investigation, Cirasella verified that C.S. was elsewhere

when defendant claimed she was stalking him. Cirasella also learned that

defendant might still be in possession of a handgun.

By March 12, 2015, the Essex County Prosecutor's office had determined,

among other things, that defendant's statements regarding C.S. were false, that

he may have at times impersonated a police officer during his relationship with

her, and that he continued to be in possession of firearms contrary to the

prohibition contained in the domestic violence orders. During the ensuing

A-3999-18T4
4
execution of a search warrant at his apartment, defendant was briefly cuffed and

seated in a chair. A detective asked him if he had guns in the apartment, which

defendant initially denied. Defendant later stated to the lead officer that he had

already surrendered the guns. He was told that the search team had a gun

detecting dog, but he persisted in his denials. Two handguns were eventually

discovered in a duffle bag in his laundry room. Also found in his apartment

were a badge holder and identification card for the Newark Police Department,

as well as handcuffs. The officer at the second trial testified regarding the search

and defendant's statement denying possession of the handguns.

In Indictment 17-01-0269 defendant was charged with second-degree

possession of a handgun without a permit from December 1, 2013, through

December 31, 2013 (count one); second-degree possession of handgun without

obtaining a permit from April 1, 2014, through April 30, 2014 (count two);

second-degree possession of a handgun without a permit (count three); fourth -

degree giving false information to a law enforcement officer on December 22,

2014 (count four); fourth-degree giving false information to a law enforcement

official on or about January 8, 2015 (count five); fourth-degree giving false

information on February 14, 2015 (count six); fourth-degree giving false

information to a law enforcement official on February 15, 2015 (count seven);

A-3999-18T4
5
fourth-degree giving false information on February 19, 2015 (count eight);

fourth-degree giving false information on February 20, 2015 (count nine);

fourth-degree giving false information on February 12, 2015 (county ten);

fourth-degree impersonating another or assuming a false identity on December

1, 2013 through December 31, 2013, N.J.S.A. 2C:21-17(1) (count eleven); and

fourth-degree impersonation or assumption of a false identity between February

1, 2014 through August 20, 2014 (count twelve).

The jury convicted defendant of four counts of false reports to a law

enforcement officer, N.J.S.A. 2C:28-4(b)(1) (counts four, six, nine, and ten),

and fourth-degree impersonating a law enforcement official, N.J.S.A. 2C:21-

17(a)(1) (count eleven). The jury acquitted him of the remaining counts: one,

two, five, seven, and eight. 2

Indictment 17-01-0271 charged defendant with third-degree possession of

a .40 caliber Sig Sauer model P229 handgun on March 12, 2015, in violation of

an order prohibiting him from possessing a firearm, N.J.S.A. 2C:39-7(b)(3)

(count one); and third-degree possession of a .45 caliber Smith and Wesson

model C545D handgun on March 12, 2015, in violation of an order prohibiting

2
The parties agreed to dismiss counts three and twelve at the close of the State's
case.
A-3999-18T4
6
him from possessing a firearm (count two). A separate jury in the second trial

convicted defendant of both counts of certain persons not to have weapons.

Pretrial, the trial judge granted the State's application to introduce cell

phone records, including texts, and emails, together with defendant's badge and

other items such as defendant's police uniform and handcuffs, seized during the

search of his apartment. The judge found C.S. and the officers' testimony who

performed the phone extractions from defendant's phone sufficient to establish

a chain of custody, as well as the messages' reliability. Based on the nature of

the charges and of the items in question, they were relevant and probative of the

charge of impersonating a police officer.

Also pretrial, the judge ruled defendant's statement to the detective was

admissible. In that statement, defendant discussed the restraining order he

obtained against C.S. as well as the one she obtained against him. The judge

decided that despite the potential for prejudice attributable to the existence of a

restraining order against defendant, the orders were "interwoven into the facts

of the case." Even if a restraining order is considered a prior bad act, "the

probative value outweighs any [prejudicial] value. I don't know that there would

[be] any prejudicial value . . . when the jury hears that the parties . . . [have]

cross complaints." Another judge had conducted an earlier Rule 104 hearing in

A-3999-18T4
7
December 2016, finding defendant's statement to be admissible – and the judge

who conducted the pretrial hearings, and presided over the trials, considered that

decision to be the law of the case.

During the trial, C.S. testified that when she met defendant in November

2013 at a business meeting, he told her he was a Newark police officer. He

arrived at a meeting in December 2013, dressed in his Newark police officer

uniform explaining that he was late because he had just left work. He wore a

uniform jacket and appeared to have a gun in the holster of his belt.

C.S. described other instances of defendant representing himself as a

police officer. In December 2013, C.S. had difficulty retrieving a package from

a Newark United Parcel Service facility until defendant displayed his police

badge, stating he could vouch for her. In April 2014, a few months later, he

arrived for dinner at her home armed and dressed in his uniform. That evening,

he discussed the nature of his work, and described how handled his gun. On one

occasion, C.S. picked up his police uniforms at the dry cleaners.

In that time frame, defendant was pulled over for going through a stop

sign, while C.S. was in the vehicle. C.S. saw him show his badge to the officer,

after which the officer allowed defendant to drive away. Defendant sent C.S. a

A-3999-18T4
8
resume he asked her to edit for him, on which he listed his current employment

as being with the Newark Police Department since 2001.

At trial, C.S. denied violating the restraining order defendant obtained

against her, producing receipts and other documentation establishing that she

was present elsewhere. The State also introduced time-stamped photos of C.S.

with friends, taken from surveillance cameras at locations other than where

defendant claimed she had followed him. A friend of C.S. corroborated her

presence out-of-state on one occasion.

At the close of the State's case, defendant moved for acquittal since he

gained no pecuniary benefit from the deception and could therefore not be found

guilty of impersonation under N.J.S.A. 2C:21-17(1). The judge denied the

motion, concluding that the benefit required by the statute included defendant's

impersonation to aid C.S. in retrieving a package, to assist him in avoiding a

motor vehicle ticket, and to generally impress C.S. so she would continue her

romantic involvement with him.

In the trial of the second indictment, the prosecutor commented on

defendant's failure to "self-admit." We describe his statements in greater detail

in the relevant section. Once the jury began deliberations, defendant moved to

dismiss the charges based on mandatory joinder/double jeopardy grounds. He

A-3999-18T4
9
asserted the State had failed to prove that he had carried a weapon without a

permit in the first trial, and thus no further prosecution was permissible. The

judge held that in the second case, contrary to the first, the State had to prove

that defendant possessed weapons in violation of a domestic violence order

employing "different witnesses and different evidence." In the first trial, the

State had to prove defendant's possession without a permit on social occasions.

Thus, she denied the motion.

Defendant argues the following regarding Indictment No. 17-01-0269:

POINT I: THE TRIAL COURT ERRED BY NOT
GRANTING [DEFENDANT’S] MOTION FOR A
JUDGMENT OF ACQUITTAL FOR THE
IMPERSONATION CHARGE BECAUSE THE
STATE DID NOT PROVIDE ANY EVIDENCE THAT
THERE WAS AN ACTUAL OR PROSPECTIVE
"BENEFIT" OR "INJURY" AS IS REQUIRED IN
N.J.S.A. 2C:21-17(a)(1).

POINT II: [DEFENDANT] WAS DEPRIVED OF
DUE PROCESS AND THE CERTAINTY OF A
UNANIMOUS VERDICT BECAUSE THE COURT
FAILED TO INSTRUCT THE JURY TO FIND,
BEFORE CONVICTION, THAT [DEFENDANT]
COMMITTED A SPECIFIC ONE OF THE VARIOUS
ALLEGATIONS OF IMPERSONATING ANOTHER
FOR A BENEFIT. (NOT RAISED BELOW).

POINT III: THE TRIAL COURT ERRED BY
PERMITTING THE STATE TO USE
[DEFENDANT’S] FEBRUARY 26, 2015 SWORN
STATEMENT TO DETECTIVE CIRASELLA IN

A-3999-18T4
10
 THEIR CASE-IN-CHIEF BECAUSE IT VIOLATED
THE PROHIBITION AGAINST USING TESTIMONY
GIVEN BY A PLAINTIFF OR DEFENDANT IN A
DOMESTIC VIOLENCE ACTION AGAINST A
DEFENDANT IN A CRIMINAL PROCEEDING.

POINT IV: THE TRIAL COURT ERRED BY
PERMITTING THE STATE TO ADMIT EVIDENCE
THAT THERE WAS AN ACTIVE RESTRAINING
ORDER AGAINST [DEFENDANT], WHICH HE
VIOLATED BY POSSESSING THE TWO
HANDGUNS SEIZED FROM HIS APARTMENT ON
MARCH 12, 2015 AND THEN FAILING TO GIVE A
CURATIVE INSTRUCTION, SUA SPONTE. (NOT
RAISED BELOW).

Defendant further alleges these errors for our consideration as to

Indictment No. 17-01-0271:

POINT I: THE TRIAL COURT ERRED BY NOT
GRANTING MR. GONZALEZ' MOTION TO
SUPPRESS BECAUSE, WHETHER BASED ON THE
PRIVILEGE AGAINST SELF-INCRIMINATION OR
THE DOCTRINE OF FUNDAMENTAL FAIRNESS,
THE STATE WAS REQUIRED FIRST TO ASK MR.
GONZALEZ WHETHER HE OWNED ANY
FIREARMS AND THEN SEARCH MR. GONZALEZ'
HOME AND SEIZE HIS WEAPONS PURSUANT TO
THE TRO, WHICH WOULD PROHIBIT THE STATE
FROM CHARGING MR. GONZALEZ WITH THE
CERTAIN PERSONS NOT TO POSSESS FIREARM
CHARGES.

POINT II: THE PROSECUTOR COMMITTED
MISCONDUCT IN SUMMATION BY
MISCHARACTERIZING THE LAW CONCERNING

A-3999-18T4
11
 THE PREVENTION OF DOMESTIC VIOLENCE
ACT. (Not Raised Below.)

POINT III: THE TRIAL COURT ERRED BY NOT
GRANTING MR. GONZALEZ' MOTION TO
DISMISS THE INDICTMENT BASED UPON
MANDATORY JOINDER OF OFFENSES AND
DOUBLE JEOPARDY.

POINT IV: MR. GONZALEZ WAS DEPRIVED
EFFECTIVE ASSISTANCE OF COUNSEL DUE TO
COUNSEL'S FAILURE TO FILE A MOTION TO
SUPPRESS MR. GONZALEZ' STATEMENT GIVEN
TO DETECTIVE MARINO DURING THE
EXECUTION OF THE MARCH 12, 2015 SEARCH
WARRANT. (Not Raised Below.)

I.

Defendant contends the court's ruling that the impersonation statute does

not require the actor to obtain a pecuniary gain is reversible error. We have

previously stated that to be guilty to any degree of impersonation, a defendant

must engage in the act "for the purpose of obtaining a benefit or [to] injur[e]

another." State v. Tringali, 451 N.J. Super. 18, 30-31 (App. Div. 2017) (citing

N.J.S.A. 2C:21-17(a)(1)). If the benefit is worth $500 or less, the offense is

graded as fourth-degree.

The question of the parameters of "benefit" the State needed to prove

beyond a reasonable doubt is a question of law. It is an issue reviewed de novo.

State v. Morrison, 227 N.J. 295, 308 (2016). Nonetheless, we agree with the

A-3999-18T4
12
trial judge's decision that in this case defendant's impersonation satisf ied the

statutory requirement. His impersonation was intended to secure C.S.'s

admiration and affection, a benefit. He also used his fictitious status as an

officer to avoid a traffic ticket, and to assist C.S. in the release of a package to

her. Given the common sense meaning of "benefit," it is apparent that defendant

obtained benefits from the impersonation. See State v. Perry, 439 N.J. Super.

514, 523 (App. Div. 2015) (quoting State in Interest of K.O., 217 N.J. 161, 176

(2014)). The judge properly denied defendant's motion for acquittal.

On that score, defendant also argues that since he was charged for

different activities on different dates involving different circumstances the trial

judge should have instructed the jury that there had to be unanimity regarding

each underlying event. Defendant participated in a charge conference and did

not object to the proposed instructions.

Where, as here, defendant did not raise a challenge to the trial court's jury

charge at trial, we review his claim on appeal for plain error. R. 2:10-2; State

v. Funderburg, 225 N.J. 66, 79 (2016). Such "plain error requires demonstration

of 'legal impropriety in the charge prejudicially affecting the substantial rights

of the defendant and sufficiently grievous to justify notice by the reviewing

court and to convince the court that of itself the error possessed a clear capacity

A-3999-18T4
13
to bring about an unjust result.'" State v. Chapland, 187 N.J. 275, 289 (2006)

(quoting State v. Hock, 54 N.J. 526, 538 (1969)); see State v. Kane, 449 N.J.

Super. 119, 141 (App. Div. 2017). We "must not look at portions of the charge

alleged to be erroneous in isolation; rather, 'the charge should be examined as a

whole to determine its overall effect,' and 'whether the challenged language was

misleading or ambiguous.'" State v. McKinney, 223 N.J. 475, 494 (2015) (first

quoting State v. Jordan, 147 N.J. 409, 422 (1997); and then quoting State v.

Nelson, 173 N.J. 417, 447 (2002)).

"[I]n cases where there is a danger of a fragmented verdict the trial court

must upon request offer a specific unanimity instruction." State v. Frisby, 174

N.J. 583, 597-98 (2002) (emphasis added) (quoting State v. Parker, 124 N.J.

628, 637 (1991)). "Ordinarily, a general instruction on the requirement of

unanimity suffices to instruct the jury that it must be unanimous on whatever

specifications it finds to be the predicate of a guilty verdict." Parker, 124 N.J.

at 641. "The fundamental issue is whether a more specific instruction [is]

required in order to avert the possibility of a fragmented verdict." Frisby, 174

N.J. at 598.

A fragmented verdict typically results when "it appears that a genuine

possibility of jury confusion exists or that a conviction may occur as a result of

A-3999-18T4
14
different jurors concluding that a defendant committed conceptually distinct

acts." Parker, 124 N.J. at 641. We consider "whether the allegations in the

[charge] were contradictory or only marginally related to each other and whether

there was any tangible indication of jury confusion." Id. at 639; see also State

v. Gandhi, 201 N.J. 161, 193 (2010) (stating that "[t]he core question is, in light

of the allegations made and the statute charged, whether the instructions as a

whole [posed] a genuine risk that the jury [would be] confused" (alterations in

original) (quoting Parker, 124 N.J. at 638)).

Allegations based on "different acts and entirely different evidence"

warrant a specific unanimity charge. Frisby, 174 N.J. at 599. A "reviewing

court should examine two factors: whether the acts alleged are conceptually

similar or are 'contradictory or only marginally related to each other,' and

whether there is a 'tangible indication of jury confusion.'" Gandhi, 201 N.J. at

193 (quoting Parker, 124 N.J. at 639).

The judge read the standard model jury charge regarding unanimity. On

its face, it is neither ambiguous or contradictory, and its use is in accord with

the recommendation that trial judges use model charges as a means of avoiding

error. Pressler & Verniero, Current N.J. Court Rules, cmt. 8.1 on R. 1:8-7 (2021)

(citing State v. Pleasant, 313 N.J. Super. 325, 333-35 (App. Div. 1998)).

A-3999-18T4
15
Nothing in the record suggests that the jury may have fragmented its verdict, or

that different jurors found defendant committed different acts leading to his

conviction. For us to so hold on this record would be nothing more than sheer

speculation.

We find no merit to defendant's claims because we agree with the judge

that the impersonation statute includes the relationship benefits defendant

gained from his relationship with C.S., and avoidance of a traffic summons. We

further conclude that the judge did not err in giving the jury only the general

unanimity charge.

II.

It is undisputed that State v. Duprey, 427 N.J. Super. 314 (App. Div. 2012)

stands for the proposition that testimony given by either party during a domestic

violence proceeding "shall not be used in the simultaneous or subsequent trial

proceeding against the defendant." See also N.J.S.A. 2C:25-29(a). In that case

we held that statutory prohibition did not include use of the trial testimony in a

subsequent proceeding as substantive evidence. That authority, the proscription,

and the public policy differ from the scenario here.

This defendant objects to the admission of his false statements to an

investigating officer even though they formed the basis for the charges of false

A-3999-18T4
16
swearing. The statements were made outside the courtroom under oath in an

effort to institute contempt charges against C.S. Neither the statute nor Duprey

prevents the State from prosecuting false swearing. The argument is so lacking

in merit as to not warrant further discussion in a written opinion. R. 2:11-

3(e)(2).

III.

Defendant's final claim of error regarding the trial on Indictment 269 is

that the State should have been prohibited from presenting to the jury the

restraining order and failed by not giving a curative instruction. No objection

was made during the trial; our review is under the plain error standard.

Defendant argues that allowing the jury to know about the TROs and FRO meant

they were informed of a prior bad act.

The judge ruled pretrial that since the parties had mutual restraining

orders, and the orders were an integral part of the State's case, the probative

value exceeded any potential for prejudice. As she pointed out, the prejudice

here was minimal because both parties had obtained restraints, and the need for

context was great. This point does not warrant further discussion in a written

opinion. R. 2:11(e)(2).

A-3999-18T4
17
 IV.

Defendant's first point regarding Indictment 271 is not entirely clear. He

seems to be contending that the officers who served the orders were obligated

"whether based on the privilege against self-incrimination or the doctrine of

fundamental fairness[,]" to have asked him if he possessed weapons, which

would have "prohibit[ed]" him from being charged with certain persons not to

possess firearms. As a result, defendant claims, his motion to suppress physical

evidence should have been granted.

The appropriate context in which to consider the argument is the fact that

on March 12, 2016, the search warrant execution date, defendant had already

been served with the TROs on November 21, 2014 and February 24, 2015 and

an FRO on December 18, 2015. Because his handguns were registered, he

attributes knowledge of his possession to the State, and some deceit or trickery

to the omission of any inquiry regarding them.

We review decisions made on motions to suppress evidence deferentially,

so long as factual findings are supported by sufficient credible eviden ce in the

record. State v. Elders, 192 N.J. 224, 243 (2007). We do not ordinarily disturb

a trial court's factual determinations. Whether the facts support the judge's

A-3999-18T4
18
decision, however, is a legal question subject to de novo review. State v. Handy,

206 N.J. 39, 45 (2011).

The judge's analysis relied in part on State v. D'Orsi, 113 N.J. Super. 527

(App. Div. 1971). In that case, the defendant argued that his right against self-

incrimination would be violated if he were compelled to disclose when applying

for a permit to carry, that he unlawfully possessed a handgun. Id. at 530-31.

We found to the contrary, that a person could apply for a permit to carry a

lawfully obtained weapon without disclosing his possession of an unlawfully

obtained firearm. Id. at 531. A defendant "may not justify a distinct and

separate unlawful act by a mere potential of self-incrimination when avoidance

is readily in his own hands, namely, first lawfully obtain a gun and then apply

for a permit to carry it lawfully." Ibid.

The same reasoning applies here. Defendant knew for weeks, if not

months, he was obligated to surrender his weapons. He failed to do so. Had he

turned the weapons over, he would not have been charged with any crime or

offense. Even when asked immediately before police began to search his home,

he denied possession of the handguns. Thus, defendant's failure to comply with

the restraining orders is the decision which resulted in the conviction, not any

failure on the part of law enforcement. The law enforcement personnel who

A-3999-18T4
19
served copies of the restraining orders upon him were not legally obligated to

ask him whether he had guns.

V.

In summation, the prosecutor argued to the jury that defendant had the

opportunity to "self-admit." We review this argument for plain error, as the

comment elicited no objection during trial. See R. 2:10-2. We construe

counsel's silence regarding the argument as indicative of the lack of prejudice it

actually had. See State v. Pressley, 232 N.J. 587, 593-94 (2018).

The prosecutor argued only that defendant had ample opportunity to

surrender his guns, and simply did not do so. The jury knew about the language

in the orders that prohibited his possession. The jury knew that for nearly five

months, defendant's possession continued unabated. To characterize the

prosecutor's comments as a misstatement of the law is itself a misstatement. The

prosecutor's comment was not improper, certainly not plain error. This claim

also lacks merit. R. 2:11(e)(2).

VI.

Defendant also contends the trial court erred by denying his motion to

dismiss the indictment based upon principles of mandatory joinder and double

jeopardy. Decisions to dismiss an indictment are within the trial court's

A-3999-18T4
20
discretion. State v. Hogan, 144 N.J. 216, 229 (1996). That exercise of discretion

will not be overturned unless clearly abused. State v. Saavedra, 222 N.J. 39, 55-

56 (2015). We apply the de novo review standard, examining the court's

application of the relevant legal principles without deference. State v. Miles,

229 N.J. 83, 90 (2017).

In reaching her decision, the judge relied upon defendant's possession

during the first trial being established through C.S.'s testimony and that of

another witness, that defendant appeared to be in possession on the relevant

dates without a permit to carry. In the second trial, however, the jury was

presented the orders containing the prohibition, and heard about seizure of the

handguns from his apartment, different facts and statutory elements. Because

of those significant differences, the prosecutions did not violate double jeopardy

principles, or require mandatory joinder.

The mandatory joinder rule, 3:15-1(b) and the parallel provision in the

criminal code, N.J.S.A. 2C:1-8(b), provide that joinder must occur when

multiple offenses are "based on the same conduct or arising from the same

episode, if such offenses are known to the appropriate prosecuting officer at the

time that the first trial began and are within the jurisdiction and venue of a single

court." When a defendant is acquitted, he must not be prosecuted a second time

A-3999-18T4
21
for a second offense that should have been tried during the first trial. N.J.S.A.

2C:1-10(a)(2).

In order to determine whether procedural joinder is mandatory, we

examine four factors: all the offenses must be criminal, they must be based

either on the same conduct or have arisen out of the same episode, the

appropriate prosecuting officer must have been aware of the offenses before

trial, and the offenses must be within the jurisdiction and venue of a single court.

State v. Yoskowitz, 116 N.J. 679, 701 (1989).

Like the trial judge, we part company with defendant at the second factor.

Mandatory joinder was not applicable because the offenses were not based on

the same conduct. In the first trial, defendant was charged with carrying a

handgun without a permit to carry. In the second, defendant was charged with

possession of handguns on the date they were seized, contrary to the provisions

in the restraining orders served upon him. The offenses simply did not constitute

the same conduct, nor did they arise out of the same episode. It cannot even be

said with any certainty that they involved the same guns. Defendant was

acquitted of carrying weapons without a permit prior to the entry of the

restraining orders. The four elements described in Yoskowitz cannot be satisfied

and mandatory joinder did not apply.

A-3999-18T4
22
 In State v. Miles, 229 N.J. 83, 99 (2017), the Supreme Court found double

jeopardy bars a later prosecution based on the same elements. The second

offense here, however, is not the same as the first, and includes separate

statutory elements. Defendant was acquitted of carrying a handgun without a

permit, N.J.S.A. 2C:39-5(b)(1). In the second, he was convicted of possessing

handguns despite a ban imposed upon him by way of a restraining order.

N.J.S.A. 2C:39-7(b)(3). This point lacks sufficient merit to warrant additional

discussion in a written opinion. R. 2:11(e)(2).

VII.

Defendant also contends counsel was ineffective because he failed to file

a motion to suppress the statement he made while the search warrant was being

executed. We have previously stated that claims of ineffective assistance of

counsel are most effectively addressed through petitions for post-convictions

relief, that allow for a fully developed record. State v. Rambo, 401 N.J. Super.

506, 525 (App. Div. 2008). Hence, we decline to address the point at this time.

We leave consideration of the issue for a later application.

Affirmed.

A-3999-18T4
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