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 

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

NOT FOR PUBLICATION WITHOUT THE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.

March 1, 2017
2 A-3003-14T1

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. 
3 A-3003-14T1

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); seconddegree 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), 
4 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.
5 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 
6 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).
7 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.
8 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). 
9 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. 
10 A-3003-14T1

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." 
11 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 
12 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 
13 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).
14 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 
15 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.