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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
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 23