FRICTIANA PEREZ VS. ANALIS FERNANDEZ(L-2057-12, MIDDLESEX COUNTY AND STATEWIDE), A-3004-14T1

Background

September 2012: masked shooter in gray hooded sweatshirt killed two men and wounded a woman in a Newark restaurant; bricks of heroin found near a male victim.
Police located a car matching a dispatch; defendant owned the car, was wearing a gray hooded sweatshirt, fled when officers approached, and was arrested after pursuit.
Officers recovered a gray hooded sweatshirt with one victim's DNA from yards defendant ran through; a handgun, heroin, a glove, and a black facemask with defendant's DNA were found in the car; ballistics matched the handgun to the restaurant shooting.
Passenger in defendant’s car testified the defendant wore a gray hooded sweatshirt, had a glove in the sweatshirt pocket, a gun on his hip, and told the passenger he would not let him go to jail; passenger’s potential hindering charge was dismissed before trial.
Grand jury indicted defendant on multiple counts including two murders and unlawful possession of a handgun; jury convicted only on second-degree unlawful possession of a handgun and hung on remaining counts; judge imposed a 20-year extended term with 10 years parole ineligibility.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Court compelled passenger to testify over Fifth Amendment	State argued passenger faced no realistic threat of prosecution (hindering charge dismissed) so he was compellable	Melvin argued the court interfered with passenger’s right not to testify, denying due process	No plain error: judge reasonably found threat of incrimination remote and compellable (Patton/Johnson applied)
Jury instruction permitting inference that gun in vehicle is possessed by all occupants	State relied on statutory presumption (N.J.S.A. 2C:39-2(a)) and trial court instruction	Melvin argued secret compartment made depository non-customary, so inference improper	No plain error: owner/driver presumption plus other evidence supported verdict; instruction included that jurors not required to draw inference
Sentencing court considered hung-count conduct and found defendant was shooter by preponderance	State argued Watts permits consideration of acquitted conduct; judge relied on Watts and other authority to consider conduct at sentencing	Melvin argued judge substituted own judgment for jury, violating double jeopardy and due process; sentence excessive	Reversed as to sentencing: judge abused discretion by finding defendant committed murders by preponderance and relying on hung-count conduct; remanded for resentencing
Right to allocution and excessiveness of sentence	State noted discretion to impose extended term based on aggravating factors	Melvin argued denial of allocution and excessive extended-term sentence	Court found sentencing discretion to impose extended term valid but remanded because judge improperly relied on hung-count conduct; no denial of allocution shown

Key Cases Cited

State v. Patton, 133 N.J. 389 (1993) (test for whether a witness can invoke Fifth Amendment privilege is whether realistic threat of incrimination exists)
State v. Johnson, 223 N.J. Super. 122 (App. Div. 1988) (Fifth Amendment privilege not implicated where prosecution risk is extremely remote)
State v. Bunch, 180 N.J. 534 (2004) (plain error standard for unpreserved trial objections)
United States v. Watts, 519 U.S. 148 (1997) (sentencing court may, in certain circumstances, consider acquitted conduct)
State v. Jarbath, 114 N.J. 394 (1989) (sentencing courts may consider various types of evidence, including otherwise inadmissible materials)
State v. Tindell, 417 N.J. Super. 530 (App. Div. 2011) (remand for resentencing where judge substituted personal judgment for jury verdict)