FRICTIANA PEREZ VS. ANALIS FERNANDEZ(L-2057-12, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3003-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK MELVIN,

Defendant-Appellant.
____________________________

Submitted February 14, 2017 – Decided March 1, 2017

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 13-
05-1257.

Joseph E. Krakora, Public Defender, attorney
for appellant (Tamar Y. Lerer, Assistant
Deputy Public Defender, of counsel and on the
briefs).

Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Stephen
A. Pogany, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant appeals from his conviction for second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). We affirm

the conviction, but remand for resentencing.

We discern the following facts from evidence adduced at the

jury trial. In September 2012, a male wearing a gray hooded

sweatshirt and a mask entered a restaurant in Newark, shot and

killed two men, and shot and injured a female employee of the

restaurant. Officers found three bricks of heroin next to one of

the male victims.

A detective (the detective) was working as a patrol officer

in a marked patrol vehicle in the area on the day of the shooting.

She testified that she heard a dispatch report of a car possibly

involved in the shooting and saw a car fitting the description

stopped at a corner. It was later determined that defendant owned

the car and it had run out of gas. The detective testified she

radioed that she saw the car, observed two occupants inside, and

she and her partner approached the vehicle.

When the detective reached the vehicle, defendant said,

"What's going on? I didn't do anything." He then exited the car

and ran. Defendant was wearing a gray hooded sweatshirt when the

detective first started pursuing him. The detective chased him,

apprehended him, and arrested him.

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 Officers searched the areas where defendant had been running.

They recovered two non-matching gloves and a gray hooded sweatshirt

from the backyards where defendant ran. The State's DNA expert

testified that the gray hooded sweatshirt contained DNA evidence

from one of the male victims.

Officers eventually searched the car and found a handgun,

heroin, a glove, and a black facemask. They found a black facemask

in the rear passenger side of the car, which contained defendant's

DNA. An officer explained that the handgun and heroin were found

in the front passenger side, "inside the door where the controls

for the vehicle, like the windows and the door locks. . . it was

actually inside a compartment in there." Ballistic testing

indicated the handgun from defendant's car was the same weapon

used in the shooting at the restaurant.

In May 2013, an Essex County Grand Jury indicted defendant

and charged him with two counts of first-degree murder, N.J.S.A.

2C:11-3(a)(1)-(2) (Counts One and Five); second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b) (Count Two); second-

degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a) (Count Three); first-degree attempted murder, N.J.S.A.

2C:11-3 and N.J.S.A. 2C:5-1 (Count Four); second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1) (Count Six); third-degree unlawful

possession of a controlled dangerous substance (CDS) (heroin),

3 A-3003-14T1
N.J.S.A. 2C:35-10(a)(1) (Count Seven); third-degree possession of

a CDS (heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1)

and N.J.S.A. 2C:35-5(b)(3) (Count Eight); and third-degree

unlawful possession of a CDS (heroin) with the intent to distribute

within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Nine).1

A passenger (the passenger) in defendant's vehicle testified

at trial. The State originally charged the passenger with

"hindering," but this charge was dismissed before defendant's

trial. The passenger first attempted to invoke his Fifth Amendment

right not to testify, but the judge found he "ha[d] no realistic

chance of criminal exposure arising out of these homicides." The

judge informed the passenger that because the hindering charge was

dismissed and the prosecution indicated he would not be charged

with anything else related to this shooting, "you cannot logically

incriminate yourself" and, therefore, "you have no valid privilege

to assert."

The passenger testified that he was playing basketball in a

park the morning of the shooting and flagged defendant down to get

in his car. He testified that defendant was wearing a gray hooded

sweatshirt. The passenger said defendant drove to the area of the

1
The State dismissed Count Four before trial began because this
attempted murder charge related to the same victim referred to in
Count Five.

4 A-3003-14T1
shooting and got out, he heard gunshots, then defendant came back

to the car and drove away. He said defendant had his sweatshirt

hood up, had a black glove in the sweatshirt pocket, and had a gun

on his hip. Defendant told the passenger that "he wasn't going

to let [him] go to jail."

The jury found defendant guilty of second-degree unlawful

possession of a handgun (Count Two). The jury was unable to reach

a verdict on the remaining seven counts. The judge granted the

State's motion to sentence defendant to an extended term pursuant

to N.J.S.A. 2C:44-3(a), and sentenced defendant to twenty years

imprisonment with ten years of parole ineligibility.

On appeal, defendant argues:

POINT I
BECAUSE THE TRIAL COURT INAPPROPRIATELY
INTERFERED WITH THE DECISION OF THE STATE'S
MAIN WITNESS TO NOT TESTIFY, THE DEFENDANT WAS
DENIED DUE PROCESS AND HIS RIGHT TO A FAIR
TRIAL. (Not Raised Below).

POINT II
THE STATE'S BURDEN TO PROVE THAT THE DEFENDANT
POSSESSED THE HANDGUN WAS IMPERMISSIBLY
LOWERED WHEN THE TRIAL COURT INSTRUCTED THE
JURY THAT IT COULD INFER THAT THE HANDGUN
FOUND IN THE CAR WAS POSSESSED BY ALL OF THE
CAR'S OCCUPANTS. (Not Raised Below).

POINT III
THE SENTENCING COURT VIOLATED THE DEFENDANT'S
RIGHTS TO A JURY TRIAL AND DUE PROCESS BY
FINDING THAT DEFENDANT COMMITTED THE MURDERS
DESPITE THE JURY'S VERDICT. MOREOVER, THE

5 A-3003-14T1
 SENTENCE IS EXCESSIVE. THEREFORE, THE
SENTENCE MUST BE VACATED.

A. The Sentencing Court Improperly
Replaced Its Judgment For The Jury's
In Sentencing The Defendant For
Murders Which The Jury Did Not
Convict Him Of Committing.

B. The Defendant's Sentence Is
Excessive.

C. The Trial Court's Denial of
Defendant's Right to Allocution
Requires A Remand For Resentencing.2

We first address defendant's contention that the court

interfered with the passenger's Fifth Amendment right not to

testify. Because defendant did not object to this testimony at

trial, this court will review for plain error. State v. Bunch,

180 N.J. 534, 541 (2004). Under this deferential standard, this

court disregards any error or omission "unless it is of such a

nature as to have been clearly capable of producing an unjust

result[.]" R. 2:10-2; see also State v. Czachor, 82 N.J. 392, 402

(1980) (explaining "[t]he test for plain error is whether under

the circumstances the error possessed a clear capacity for

2
Defendant also filed a pro se supplemental brief arguing that
the jury's verdict was against the weight of the evidence and that
the trial court erred by not granting defendant's motion for a new
trial after the passenger recanted his testimony post-trial.
Defendant requests a judgment of acquittal on all counts of the
indictment or a reversal of the conviction and a new trial. These
arguments are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).

6 A-3003-14T1
producing an unjust result, that is, one sufficient to raise a

reasonable doubt as to whether the error led the jury to a result

it otherwise might not have reached" (citation omitted)).

The Fifth Amendment protects a person from being "compelled

in any criminal case to be a witness against himself[.]" U.S.

Const. amend. V. The trial court must determine whether a witness

is compellable by deciding whether there is "a realistic threat

of incrimination." State v. Patton, 133 N.J. 389, 396 (1993).

Defendant argues the State could have charged the passenger with

the dismissed hindering charge and thus he should have been

permitted to invoke his right not to testify.

The State argues this case is similar to State v. Johnson,

223 N.J. Super. 122, 129 (App. Div. 1988), certif. denied, 115

N.J. 75 (1989), where this court found that it was a mistaken

exercise of discretion for the trial judge to advise a witness of

his Fifth Amendment right not to testify. This witness gave a gun

to a friend for protection and the gun was later used in an

aggravated assault. Id. at 127-28. Because the risk that the

witness would later be prosecuted for his conduct was "extremely

remote, unrealistic and highly speculative," this court found the

witness's Fifth Amendment right was not implicated. Id. at 133-

34.

7 A-3003-14T1
 Although the witness in Johnson voluntarily testified, this

case is similar in that the State made it clear that the passenger

was not being considered for prosecution. The State sought

testimony from the passenger consistent with his statement the day

of the shooting, that defendant drove the car to the area of the

shooting, got out, the passenger heard gunshots, and saw the gray

hooded sweatshirt, a black glove, and a gun on defendant. The

judge used his discretion to find that there was a remote or

unrealistic threat that the passenger would incriminate himself

and appropriately found he could be compelled to testify. There

was no plain error in this determination.

We next consider whether the judge erred by instructing the

jury it could infer that a handgun found in a vehicle was possessed

by all of the vehicle's occupants. Defendant did not object to

the charge at trial. "[A] defendant waives the right to contest

an instruction on appeal if he does not object to the instruction."

State v. Torres, 183 N.J. 554, 564 (2005). This court will review

for plain error and determine whether the charge prejudicially

affected the rights of the defendant and can "convince the court

that of itself the error possessed the clear capacity to bring

about an unjust result." State v. Chew, 150 N.J. 30, 82 (1997)

(quoting State v. Jordan, 147 N.J. 409, 422 (1997)), cert. denied,

528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999).

8 A-3003-14T1
 N.J.S.A. 2C:39-2(a) states:

When a firearm, weapon, destructive device,
silencer, or explosive described in this
chapter is found in a vehicle, it is presumed
to be in the possession of the occupant if
there is but one. If there is more than one
occupant in the vehicle, it shall be presumed
to be in the possession of all, except under
the following circumstances:

(1) When it is found upon the person of one
of the occupants, it shall be presumed to be
in the possession of that occupant alone;

(2) When the vehicle is not a stolen one and
the weapon or other instrument is found out
of view in a glove compartment, trunk or other
enclosed customary depository, it shall be
presumed to be in the possession of the
occupant or occupants who own or have
authority to operate the vehicle; and

(3) When the vehicle is a taxicab and a weapon
or other instrument is found in the
passenger's portion of the vehicle, it shall
be presumed to be in the possession of all the
passengers, if there are any, and if not, in
the possession of the driver.

On the subject of the unlawful possession of the weapon

charge, the judge instructed the jury:

I have instructed you concerning
circumstantial evidence that you may infer a
fact from other facts in the case if you find
it is more probable than not, if the inferred
fact is true. Evidence has been presented
that a handgun was found in a vehicle. If you
find that the vehicle had more than one
occupant, you may infer that the handgun was
possessed by all of the occupants.

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 If you find the handgun was on the person of
one of the occupants, you may infer that it
was possessed by that occupant alone.

You are never required or compelled to draw
any inference.

Defendant argues the judge erred in delivering the

instruction because the gun was found in a "secret compartment"

of a car. The trial court found that the exception under N.J.S.A.

2C:39-2(a)(2) did not apply and thus did not instruct the jury on

this exception. Defendant argues the secret compartment was a

"non-customary depository" and the jury should have been

instructed that it could not infer that he possessed the weapon.

However, even if the court found the secret compartment in the

passenger-side door where the heroin and handgun were found was a

"customary depository," he would still be the one presumed to be

in possession of the weapon because he owned and had authority

over the vehicle.

Any error in this instruction would not be clearly capable

of producing an unjust result. The trial court instructed the

members of the jury that they could infer the handgun was possessed

by all occupants of the vehicle if they found the vehicle had more

than one occupant. The judge added, "You are never required or

compelled to draw any inference."

10 A-3003-14T1
 The jury heard evidence of where the gun was found and how

many occupants were in the vehicle when the detective first saw

the car. Defendant owned the car and was in the driver's seat

when officers approached that day. The passenger testified he saw

the gun on defendant's hip when he came back to the car. The gun

was found in a secret compartment in a car that defendant owned.

The jury had more than enough evidence to find defendant unlawfully

possessed the handgun that day beyond a reasonable doubt. There

was no plain error in this jury charge.

On the sentencing issue, defendant contends the court abused

its discretion by considering the charges on which the jury was

hung. Our review of sentencing determinations is limited. State

v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily

disturb a sentence imposed which is not manifestly excessive or

unduly punitive, does not constitute an abuse of discretion, and

does not shock the judicial conscience. State v. O'Donnell, 117

N.J. 210, 215-16, 220 (1989).

In sentencing, the trial court "first must identify any

relevant aggravating and mitigating factors set forth in N.J.S.A.

2C:44-1(a) and (b) that apply to the case." State v. Case, 220

N.J. 49, 64 (2014). The court must then "determine which factors

are supported by a preponderance of [the] evidence, balance the

11 A-3003-14T1
relevant factors, and explain how it arrives at the appropriate

sentence." O'Donnell, supra, 117 N.J. at 215.

We are "bound to affirm a sentence, even if [we] would have

arrived at a different result, as long as the trial court properly

identifie[d] and balance[d] aggravating and mitigating factors

that [were] supported by competent credible evidence in the

record." Ibid. Furthermore, when a court is sentencing an

individual to an extended-term under the persistent offender

statute, N.J.S.A. 2C:44-3, the decision to sentence the defendant

within that extended-term range "remains in the sound judgment of

the [sentencing] court" subject to review under "an abuse of

discretion standard." State v. Pierce, 188 N.J. 155, 169 (2006).

Double jeopardy provides protection "against multiple

punishments for the same offense," among other protections. State

v. Yoskowitz, 116 N.J. 679, 689 (1989). Here, the judge relied

on United States v. Watts, 519 U.S. 148, 117 S. Ct. 633, 136 L.

Ed. 2d 554 (1997), for the proposition that he could, by a

preponderance of the evidence, find that defendant had used the

handgun to commit the shooting and consider this in sentencing.

Accordingly, the judge stated "I have such discretion, and will

consider conduct on the [counts] for which the jury was unable to

reach a unanimous verdict." Under certain circumstances, Watts

permits a sentencing judge to consider acquitted charges in

12 A-3003-14T1
sentencing. Id. at 149, 117 S. Ct. at 634, 136 L. Ed. 2d at 560.

In this case, however, defendant was scheduled for retrial on the

murders and other charges on which the jury was hung.

The judge also cited State v. Jarbath, 114 N.J. 394, 412 n.4

(1989), stating that a sentencing judge may consider otherwise

inadmissible evidence including, "the arrest record, polygraph

reports, investigative reports, juvenile adjudications, and

unlawfully-seized evidence." He reasoned that this proposition

combined with the Watts holding permitted him to find defendant

committed the shooting and punish him accordingly.3

The judge found aggravating factor two, the gravity and

seriousness of the harm inflicted upon the victim; factor three,

the risk that defendant will commit another offense; factor six,

the extent of defendant's criminal record; and factor nine, the

need to deter defendant and others from violating the law.

N.J.S.A. 2C:44-1(a)(2), (3), (6), and (9). He found no mitigating

factors. The judge stated "there is reliable and credible evidence

. . . identifying [defendant] as the shooter." He found "by a

preponderance of the credible evidence at trial, that [defendant]

did in fact use a firearm, which resulted in the death of [the two

3
The judge cited an unpublished decision by this court as well,
but that case also concerned acquitted charges, not a hung jury.
State v. Van Hise, No. A-2115-07 (App. Div. July 9, 2010) (slip
op. at 4-5).

13 A-3003-14T1
male victims] and the injury to [the female victim.]" The judge

sentenced defendant to the maximum extended term for unlawful

possession of a weapon, twenty years imprisonment.

This court has considered the issue in State v. Tindell, 417

N.J. Super. 530, 569, 572 (App. Div. 2011), which remanded for

resentencing when a judge "took exception to the verdict" and

stated on the record that the jury "enabled this defendant to

literally get away with murder". The defendant in that case was

tried for first-degree murder but convicted of second-degree

manslaughter and other lesser charges; the judge sentenced him to

five consecutive maximum terms. Id. at 571-72, 568. Judges are

not permitted "to act as a 'thirteenth juror,' substituting their

judgment for that of the jury." Id. at 570-71 (quoting State v.

Whitaker, 79 N.J. 503, 515-16 (1979)).

Here, the judge also substituted his judgment for that of the

jury. He considered the charges on which the jury was hung even

though a new trial would occur. Defendant could later be punished

again if convicted of these crimes, implicating double jeopardy

issues. The judge improperly found aggravating factor two, the

gravity and seriousness of harm inflicted on the victim, because

there is no victim named in the unlawful possession of a weapon

offense. See State v. Lawless, 423 N.J. Super. 293, 304-05 (App.

Div. 2011), aff'd, 214 N.J. 594 (2013) (holding that aggravating

14 A-3003-14T1
factor two was improperly applied when the judge considered other

victims and the defendant only pled guilty to one crime involving

one person). The judge abused his discretion by finding defendant

was the shooter by a preponderance of the evidence and considering

that conduct in his sentencing decision.

After considering the record and the briefs, we conclude that

defendant's remaining arguments are "without sufficient merit to

warrant discussion in a written opinion." R. 2:11-3(e)(2). We

add the following brief remarks. The judge had the discretion to

impose an extended term under the statute. At sentencing, the

judge did not deny defendant his right to allocution. The judge

simply advised defendant he may not want to speak as freely in

order to protect his claim of innocence for the retrial on the

other charges.

Affirmed in part and remanded for resentencing. We do not

retain jurisdiction.

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