                    NOT FOR PUBLICATION WITHOUT THE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
