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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...