January 24, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
OTIS SHIPMAN, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 1915-11-03; 1130-06-03; 1446-08-03; and 1524-06-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2006
Before Judges Parker and C.S. Fisher.
Defendant Otis Shipman, Jr., appeals from four judgments of conviction. After a jury found defendant guilty in Indictment 1524-06-02 of first degree robbery, N.J.S.A. 2C:15-1 (Count 1); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count 2); and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count 3), he was sentenced on Count 1 to an extended term of twenty-five years with 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The remaining counts merged into Count 1.
After the jury verdict, defendant pled guilty to the remaining three indictments. On Indictment 1915-11-03, he pled guilty to second degree robbery, N.J.S.A. 2C:15-1 (Count 1); and third degree receipt of stolen property, N.J.S.A. 2C:20-7 (Count 4). He was sentenced on Count 1 to an extended term of ten years subject to 85% parole ineligibility and on Count 4 to a concurrent term of five years. On Indictment 1446-08-03, defendant pled guilty to first degree armed robbery, N.J.S.A. 2C:15-1, and was sentenced to a term of twenty years subject to 85% parole ineligibility. On Indictment 1130-06-03, defendant pled guilty to third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and was sentenced to a term of five years. The four sentences were imposed concurrently.
The incident giving rise to the charges in Indictment 1524-06-02 occurred on February 24, 2002 when Delia Gil was entering her home in Jersey City at 10:30 p.m. and was approached by a man who held a knife to her throat and took her purse and cell phone. After the man ran away, Gil reported the incident to the police. She had been able to see the man's face and described him as being forty years old, approximately 5' 5" tall, black, having a "wide nose" and "heavy set." She viewed a number of "mug" shots but was unable to identify him. On March 3, 2002, Gil was shown a six-photo array that included defendant, whom she positively identified as her attacker.
In this appeal, defendant argues:
THE DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE TRIAL COURT FAILED TO ADEQUATELY EXPLAIN THE IDENTIFICATION CHARGE. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below)
THE POLICE FAILED TO FOLLOW ESTABLISHED ATTORNEY GENERAL PROTOCOL IN CONDUCTING THE PHOTO ARRAY. (Not Raised Below)
DEFENDANT'S SENTENCE IS EXCESSIVE Defendant argues for the first time on appeal that the trial court erred in failing to sufficiently tailor the identification charge, specifically in failing to point out inconsistencies between Gil's description of him and his actual appearance. In reviewing the charge, however, it appears that the court did indicate the discrepancies in the witness's description of defendant. The witness initially described her assailant as being 5' 5", when he was actually 5' 8". The court also noted that Gil described him as forty years old and "heavy set." The jury was instructed to consider whether her description was "credible." Moreover, in summation, defense counsel raised and vigorously argued the inconsistencies in Gil's description of her assailant. We are satisfied that the identification charge was adequate and does not constitute plain error. R. 2:10-2.
In his next argument, defendant maintains that the photo array shown to Gil was not consistent with the Attorney General's Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (Guidelines). This issue was not raised at trial and is also subject to the plain error standard. R. 2:10-2. The Guidelines recommend that an officer not involved in the investigation present the photo array to the witness so that there are no inadvertent cues to the witness.*fn1
Defendant claims that Detective Sutaris, who presented the photos to Gil, had special knowledge of the witness's description of him. The detective testified, however, that while he had some knowledge of the robbery, he did not compile the photo array and had "no knowledge of the particulars of people involved with the case." After Gil identified defendant from photo number four, Sutaris questioned her as to her prior description of him. Defendant presents no evidence that the photo array was suggestive to Gil in any other respect. We are satisfied that the photo identification procedure used here was consistent with the Guidelines and did not constitute plain error. R. 2:10-2.
Defendant was sentenced to an extended term of twenty-five years for second degree robbery in Indictment 1524-06-02. He argues that his drug addiction should be considered a mitigating factor and that the extended term is inconsistent with State v. Natale, 184 N.J. 458 (2005), and State v. Pierce, 118 N.J. 155 (2006). We disagree.
Defendant's prior criminal history is particularly notable. The pre-sentence report shows that he was first sentenced to a five-year term of incarceration for robbery in 1986. He has twelve convictions for indictable offenses and two for nonindictables. He had five parole violations and two unsatisfactory probationary terms. We are satisfied that extended term of twenty-five years in this case is consistent with Natale and Pierce.