SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4395-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK MARTIN,

Defendant-Appellant.

____________________________

Argued telephonically June 8, 2018 —

Decided June 27, 2018

Before Judges Fisher, Moynihan and Natali.

On appeal from Superior Court of New Jersey, 

Law Division, Gloucester County, Indictment 

No. 15-01-0031.

Peter T. Blum, Assistant Deputy Public 

Defender, argued the cause for appellant 

(Joseph E. Krakora, Public Defender, attorney; 

Peter T. Blum, of counsel and on the brief).

Dana R. Anton, Assistant Prosecutor, argued 

the cause for respondent (Charles A. Fiore, 

Gloucester County Prosecutor, attorney;

Margaret A. Cipparrone, Senior Assistant 

Prosecutor, of counsel and on the brief; 

Monica Bullock, Assistant Prosecutor, on the 

brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2 A-4395-15T4

Tried to a jury on an indictment charging: two counts of 

third-degree possession of controlled dangerous substance (CDS), 

N.J.S.A. 2C:35-10(a) (counts one and two); second-degree 

possession of CDS with intent to distribute, N.J.S.A. 2C:35-

5(b)(2) (count three); third-degree possession of CDS with intent 

to distribute, N.J.S.A. 2C:35-5(b)(3) (count four); second-degree 

possession of CDS with intent to distribute within 1000 feet of 

school property, N.J.S.A. 2C:35-7 (count five); fourth-degree 

resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2) (count six); 

second-degree possession of a firearm while committing a CDS crime

(guns and drugs), N.J.S.A. 2C:39-4.1(a) (count seven); and in a 

bifurcated trial before the same jury on second-degree certain 

persons not to have weapons, N.J.S.A. 2C:39-7(b) (count eight),

defendant Mark Martin appeals from his convictions on counts one, 

six and eight. He was sentenced to concurrent state prison terms 

of five years with two-and-a-half years of parole ineligibility 

on count one; a flat eighteen months on count six; and an extendedterm of fifteen-years with seven-and-a-half years of parole 

ineligibility on count eight. He argues:

POINT I

THE SECOND GUN POSSESSION TRIAL SHOULD HAVE 

BEEN BARRED BY THE DOUBLE JEOPARDY CLAUSE 

BECAUSE THE JURY'S FINDING IN THE FIRST TRIAL 
3 A-4395-15T4

THAT POSSESSION WAS NOT PROVEN COLLATERALLY 

ESTOPPED A SECOND POSSESSION PROSECUTION.

POINT II

THE DISCRETIONARY EXTENDED TERM FOR GUN 

POSSESSION -- FIFTEEN YEARS WITH A SEVEN AND 

ONE-HALF YEAR PAROLE DISQUALIFIER -- WAS 

EXCESSIVE.

We affirm. 

Defendant's collateral estoppel argument rests on the jury's 

verdict in the first trial finding defendant not guilty of all 

crimes related to the CDS and the gun discovered in the bedroom 

of the raided house in which police found defendant and another 

man. "Given that no factual basis existed to distinguish the gun 

from the [CDS found in the bedroom],"1 he argues, "this result can 

be interpreted in just one way: the jurors had doubts about 

[defendant]'s connection to all the items in the bedroom and 

decided that he had not possessed them." That interpretation, he 

contends, barred the bifurcated certain persons trial.

The Double Jeopardy Clause of the Fifth Amendment of the 

United States Constitution, and Article I, Paragraph 11 of the New 

 

1 The guns and drugs section of the verdict sheet – renumbered 

from the original indictment because of a post-indictment 

dismissal — asked only if defendant "did possess a firearm while 

in the course of committing or attempting to commit a [CDS] crime, 

that being possession with intent to distribute heroin." The 

choices – not guilty and guilty – did not, as is usual, inquire 

as to the separate elements of that crime.
4 A-4395-15T4

Jersey Constitution provide coextensive protections against an 

individual from being twice placed in jeopardy for the same 

offense. State v. Kelly, 201 N.J. 471, 484 (2010). Under both 

measures, a defendant is safeguarded against three types of abuses: 

"a second prosecution for the same offense after acquittal"; "a 

second prosecution for the same offense after conviction"; and 

"multiple punishments for the same offense." Ibid. Citing the 

case defendant heavily relies upon, our Supreme Court observed:

In Ashe v. Swenson, 397 U.S. 436, 442-46 

(1970), the United States Supreme Court

recognized that the Fifth Amendment's Double 

Jeopardy Clause incorporates the doctrine of 

collateral estoppel. Thus, "when an issue of 

ultimate fact has . . . been determined by a 

valid and final judgment" in one trial, the 

State may be collaterally estopped from 

relitigating that same exact issue in a second 

trial. Id. at 443. The crucial inquiry is 

"whether a rational jury could have grounded 

its verdict [of acquittal] upon an issue other 

than that which the defendant seeks to 

foreclose from consideration." Id. at 444

(citations omitted). 

[Kelly, 201 N.J. at 486 (second alteration in 

original).]

We agree with Judge Kevin T. Smith who rejected defendant's 

argument after the first trial that the certain persons trial was 

barred by double jeopardy.

In Ashe, defendant – accused of the robbery of six victims –

was tried for the robbery of one of those victims and acquitted 
5 A-4395-15T4

because the "jury determined by its verdict that the [defendant] 

was not one of the robbers" where identity was the main issue in 

the case. 397 U.S. at 438-39, 446. Further prosecution for the 

robbery of the five other victims was precluded by the jury's 

finding. Id. at 445-47.

We do not countenance defendant's contention that his first 

trial was a "dry run" on defendant's connection to the items in 

the bedroom. See id. at 447. The bifurcated certain persons 

trial was mandated to protect defendant; "[s]everance is customary 

and presumably automatic where it is requested because of the 

clear tendency of the proof of the felony conviction to prejudice 

trial of the separate charge of unlawful possession of a weapon."

State v. Ragland, 105 N.J. 189, 194 (1986).

Moreover, defendant did not meet his burden of proving that 

the possession of the weapon issue was decided at the first trial,

Kelly, 201 N.J. at 488, thereby barring the successive prosecution 

of the certain persons offense. The not-guilty verdict on the 

guns and drugs charge need not have rested on the jury's finding 

that defendant did not possess the firearm found in the bedroom. 

The State was required to prove: 1) there was a firearm; 2) 

defendant possessed the firearm; and 3) at the time alleged in the 

indictment, defendant was in the course of committing, attempting 

to commit or conspiring to commit possession with intent to 
6 A-4395-15T4

distribute CDS. Model Jury Charge (Criminal), "Possession of 

Firearm While Committing Certain Drug Crimes (N.J.S.A. 2C:39-

4.1(a))" (approved Mar. 22, 2004). Contrary to defendant's 

argument that the only interpretation of the jury verdict was that 

defendant possessed neither the CDS or firearm, the acquittal 

could very well have been based on a finding that defendant did 

not attempt, conspire to or commit the possession of CDS with 

intent to distribute – a charge of which defendant was also 

acquitted. 

This was an unusual case where the State did not charge 

defendant with unlawful possession of a weapon under N.J.S.A. 

2C:39-5(b). An acquittal by the jury on that charge at the first 

trial would have established that issue thereby barring the certain 

persons trial.2 Defendant's theory that the acquittal on the guns 

and drugs charge resolved both the drugs and firearms possession 

issues is the result of speculation in which our Supreme Court

declined to engage. Kelly, 201 N.J. at 491-92. As the Kelly

Court observed, "divining whether the jury decided an ultimate 

issue by a verdict of acquittal will seldom be possible." Id. at 

491. Inasmuch as the firearms possession element was not 

 

2 Since defendant – a convicted felon – could not obtain a permit, 

a not guilty verdict would mean the jury found he did not possess 

a handgun.
7 A-4395-15T4

established by the jury's first verdict, the State was not 

collaterally estopped from prosecuting the certain persons charge. 

Defendant's arguments that the extended term sentence imposed 

on the certain persons count was excessive because the trial court 

"relied solely on [defendant's] prior criminal record" in finding

aggravating factors, in imposing an extended term and in imposing 

"the highest possible parole disqualifier that should be attached 

to the extended term," are belied by Judge Smith's comprehensive 

and well-reasoned analysis set forth in over twenty pages of the 

sentencing transcript. 

We review a "trial court's 'sentencing determination under a 

deferential standard of review.'" State v. Grate, 220 N.J. 317, 

337 (2015) (quoting State v Lawless, 214 N.J. 594, 606 (2013)). 

We may "not substitute [our] judgment for the judgment of the 

sentencing court." Lawless, 214 N.J. at 606. We must affirm a 

sentence if: (1) the trial court followed the sentencing 

guidelines; (2) its findings of fact and application of aggravating 

and mitigating factors were based on competent, credible evidence 

in the record; and (3) the application of the law to the facts 

does not "shock[] the judicial conscience." State v. Bolvito, 217 

N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 

(1984)).
8 A-4395-15T4

Judge Smith followed the four-step process in imposing the

persistent offender extended term, N.J.S.A. 2C:44-3;

3 he (1) 

determined whether the minimum statutory predicates were met; (2) 

decided whether to impose an extended term; (3) weighed aggravating 

and mitigating factors to determine the base term of the extended 

sentence; and (4) determined whether to impose a parole 

ineligibility period. See State v. Pierce, 188 N.J. 155, 164 

(2006). Notably, the judge based the extended term on only two 

of defendant's nine prior indictable convictions in order to, in 

Judge Smith's words, "avoid double counting." 

Defendant's other prior indictable convictions certainly 

factored into the judge's finding of aggravating factors: three, 

N.J.S.A. 2C:44-1(a)(3) (risk of defendant committing another 

offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior 

criminal record and seriousness of the offenses of which he has 

been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter 

defendant and others from violating the law). But he also 

considered in finding aggravating factor three: defendant's ten 

non-indictable convictions; nine violations of probation or 

parole, and the intensive supervision program; and that defendant 

was on bail for "two other similar CDS and weapons offenses when 

 

3 Defendant does not challenge that he was persistent-term 

eligible under the statutory criteria.
9 A-4395-15T4

he was arrested" for these crimes. In finding aggravating factor 

six he noted defendant's "virtually nonstop" drug activity after 

his first indictable conviction and the escalating nature of 

defendant's convictions from CDS possession to the certain persons 

charge. The judge found aggravating factor nine, in part, because 

defendant continued to reoffend despite the imposition of state 

prison terms, some with periods of parole ineligibility.

The judge's findings as to the aggravating factors are 

buttressed by the record. The concurrent sentences were imposed 

after Judge Smith balanced defendant's "vast" abysmal criminal 

history and his involvement with drugs with the glowing reports 

he received on defendant's behalf. The extended term sentence of 

fifteen years on the second-degree certain persons count, during 

half of which defendant is parole ineligible, does not shock the 

judicial conscience, especially considering that is the aggregate 

sentence for all crimes.

Our holding renders unnecessary our consideration of 

defendant's arguments related to waiver of preclusion by 

defendants who consent to separate trials. Whether or not 

defendant waived preclusion by agreeing to a separate trial, the 

State was not precluded from prosecuting the certain persons 

offense. 

Affirmed.