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State v. Reid

Superior Court of New Jersey, Appellate Division

August 15, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
HASSAN A. REID, Defendant-Respondent.

          Argued July 31, 2018

          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).

          Before Judges Sabatino, Mayer and Mawla.

          OPINION

          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 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 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 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.

         Reid[3] 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.

         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. Reid[4] 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 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 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.

         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.

         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 ...


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