STATE OF NEW JERSEY VS. JAMAL SHELLYÂ (13-02-0293, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1758-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMAL SHELLY, a/k/a
JAMAL AL-KAREEM SHELLY,
JAMAAL SHELLY, JAMAAL A.
SHELLEY, and JAMAL A. SHELLY,
Defendant-Appellant.
__________________________
Submitted May 10, 2017 – Decided May 31, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 13-02-0293.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lon Taylor, Assistant Deputy
Public Defender, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Tiffany
M. Russo, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Following a jury trial, defendant Jamal Shelly was convicted
of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(b). Judge Martin G. Cronin imposed a ten-year term of
imprisonment with a five-year period of parole ineligibility
pursuant to the Graves Act, N.J.S.A. 2C:43-6. On appeal, defendant
raises the following contentions:
POINT I
THE TRIAL COURT'S IDENTIFICATION INSTRUCTION
WAS NOT TAILORED TO THE FACTS OF [DEFENDANT'S]
CLAIM THAT THE PHOTO LICENSE UNDERMINED THE
RELIABILITY OF THE OFFICER'S OUT-OF-COURT AND
IN-COURT IDENTIFICATIONS. (NOT RAISED BELOW).
POINT II
THE IMPOSITION OF A MAXIMUM TEN-YEAR TERM OF
IMPRISONMENT, SUBJECT TO A MANDATORY FIVE-YEAR
PAROLE BAR, WAS EXCESSIVE.
We affirm.
I.
We derive the following facts from the record. On October
12, 2012, Lieutenant Daniel Francis and Sergeant Marquis Carter
of the Essex County Prosecutor's Office were on patrol in an
unmarked patrol car when they saw a silver Lincoln LS with tinted
windows and no license plates travelling on Fifteenth Avenue in
Newark, a high-violence area. Francis activated the patrol car's
strobe lights and "wig-wag" headlights and stopped the Lincoln.
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As Carter was exiting the patrol car, the Lincoln sped away.
Francis activated the patrol car's siren and proceeded to follow
the Lincoln. Francis decided to discontinue the pursuit and turned
off the strobe lights and siren when the Lincoln travelled the
wrong way down a one-way street, but continued to travel parallel
to the Lincoln and kept it in sight.
Francis resumed the pursuit when the Lincoln turned onto
Muhammad Ali Boulevard and proceeded southbound on Bergen Street.
He followed the Lincoln onto Custer Street, a very well-lit street,
and saw the Lincoln stop and the driver and front seat passenger,
later identified as defendant, attempt to exit and then re-enter
the vehicle. Francis re-activated his headlights and strobe lights
and pulled behind the Lincoln to prevent it from moving. The
driver ran and Francis chased him approximately twenty-five to
fifty feet, but abandoned the chase and returned to the Lincoln
to assist Carter.
When Francis returned to the Lincoln, he saw that the driver
and passenger side doors were open, and saw defendant standing by
the passenger side trying to retrieve something from inside the
vehicle. Francis saw defendant's face and believed he was reaching
for a weapon. Fearing for his life, Francis drew his weapon,
pointed it directly at defendant's face, and said he would shoot
defendant in his face if defendant did not show his hands. Francis
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saw that defendant had a "fat face" and dark circles around his
eyes. Defendant fled. Francis did not pursue him because a third
individual had exited the Lincoln and attempted to run, but was
apprehended.
Francis looked inside the Lincoln to see if there were more
occupants. He found no one inside, but saw in plain view a .357
caliber revolver on the driver's seat and a 9-millimeter semi-
automatic handgun in an open box on the passenger-side floorboard,
the area where he saw defendant reaching. Both weapons were loaded
with hollow-point bullets.
Francis also found a photo driver's license in the cup holder
and immediately recognized the person in the photo as the front-
seat passenger he had seen just minutes earlier. The driver's
license bore defendant's name. In addition to testifying about
his out-of-court identification of defendant from the driver's
license photo, Francis made an in-court identification.
Defendant's sole defense was that Francis misidentified him as the
passenger based on the photo driver's license.
II.
Judge Cronin gave a jury charge on identification that
mirrored Model Jury Charge (Criminal), "Identification: In-Court
and Out-of-Court Identifications" (2012). The judge tailored that
part of the charge concerning confidence and accuracy as follows:
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You heard the testimony that Lieutenant
Francis made a statement at the time he
identified the defendant from a photo. His
level of certainty that the photograph he
selected was . . . in fact, the person who
committed the crime.
The judge also tailored that part of the charge regarding the
jury's evaluation of the reliability of a witness' identification
as follows:
In evaluating the reliability of a
witness' identification, you should also
consider the circumstances under which any
out-of-court identification was made, and
whether it was the result of a suggestive
procedure. In that regard, you may consider
everything that was done or said by law
enforcement to the witness during the
identification process. You should consider
that the prior identification was made from a
single photograph appearing on a driver's
license.
In Point I, defendant contends for the first time that the
charge was not tailored to the facts of the case, and the vague
references to the photo driver's license were misleading.
Defendant argues Judge Cronin did not tailor the charge to instruct
the jury: (1) that Francis' view of the photo driver's license was
the identification procedure; (2) on how to assess whether Francis'
in-court identification was a result of merely looking at the
driver's license photo rather than his observation of the fleeing
passenger; and (3) on how stress impacts the reliability of an
identification in assessing Francis's testimony that he believed
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the passenger was reaching inside the Lincoln for a weapon and he
feared for his life. Defendant also argues the judge improperly
omitted the show-up language in the charge.1
"Appropriate and proper jury charges are essential to a fair
trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State
v. Reddish, 181 N.J. 553, 613 (2004)). "The trial court must give
'a comprehensible explanation of the questions that the jury must
determine, including the law of the case applicable to the facts
that the jury may find.'" Id. at 159 (quoting State v. Green, 86
N.J. 281, 287-88 (1981)). "Thus, the court has an 'independent
duty . . . to ensure that the jurors receive accurate instructions
on the law as it pertains to the facts and issues of each case,
irrespective of the particular language suggested by either
party.'" Ibid. (quoting Reddish, supra, 181 N.J. at 613).
A jury charge is required to be tailored to the facts when a
statement of the law "divorced from the facts, [is] potentially
confusing or misleading to the jury." State v. Robinson, 165 N.J.
32, 42 (2000) (citations omitted). A trial court is not required
to comment on the evidence. Id. at 43. "[I]t is often important
1
Defendant relies on the unpublished opinion, State v. Orival,
No. A-3410-12 (App. Div. Oct. 17, 2014), to argue that a photo
driver's license has been recently viewed as the equivalent of a
showup identification. However, unpublished opinions do not
constitute precedent or bind us. R. 1:36-3; Trinity Cemetery
Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001).
6 A-1758-15T1
to mold jury instructions so that the jury clearly understands how
the evidence in [a] particular case relates to the legal concepts
addressed in the charge." State v. Gentry, 439 N.J. Super. 57,
72 (App. Div. 2015) (citation omitted). On the other hand,
tailoring of an instruction may not be essential if the facts, the
parties' respective positions, and the legal principles are clear.
State v. Angoy, 329 N.J. Super. 79, 85 (App. Div.), certif. denied,
165 N.J. 138 (2000). Also, a "party is [not] entitled to have the
jury charged in his or her own words; all that is necessary is
that the charge as a whole be accurate." State v. Jordan, 147
N.J. 409, 422 (1997) (citations omitted). There is also a
presumption of correctness in the model jury charges. See State
v. R.B., 183 N.J. 308, 325 (2005) (stating trial court's obligation
to deliver model charges); Mogull v. CB Comm. Real Estate Grp.,
Inc., 162 N.J. 449, 466 (2000) (noting "[i]t is difficult to find
that a charge that follows the Model Charge so closely constitutes
plain error").
When a defendant fails to object to an error regarding a jury
charge, we review for plain error. State v. Funderburg, 225 N.J.
66, 79 (2016). "Under that standard, we disregard any alleged
error 'unless it is of such a nature as to have been clearly
capable of producing an unjust result.'" Ibid. (quoting R. 2:10-
2). "The mere possibility of an unjust result is not enough. To
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warrant reversal . . . an error at trial must be sufficient to
raise 'a reasonable doubt . . . as to whether the error led the
jury to a result it otherwise might not have reached.'" Ibid.
(quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).
There was no error, let alone plain error, in the
identification charge. The charge accurately instructed the jury
on the law as it pertained to the facts. The charge specifically
instructed the jury to: (1) consider Francis' level of stress and
his confidence and accuracy in identifying defendant from the
driver's license photo as the person who committed the crime; (2)
evaluate the reliability of Francis' out-of-court identification;
and (3) consider that Francis made the out-of-court identification
from the driver's license photo. The charge was not potentially
confusing or misleading, and it required no further tailoring.
A show-up instruction was not warranted. "Showups are
essentially single-person lineups: a single suspect is presented
to a witness to make an identification. Showups often occur at
the scene of a crime soon after its commission." State v.
Henderson, 208 N.J. 208, 259 (2011).
Francis did not identify defendant through a showup
procedure. He identified defendant from a photo driver's license
he found in plain view inside the Lincoln after having seen
defendant's face minutes earlier. Defendant cites to no authority
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that Francis' out-of-court identification based on a driver's
license photo required a show-up instruction. Further, there was
no evidence whatsoever that the procedure was impermissibly
suggestive. Defendant's identification originated from Francis'
own observation of someone he believed committed the crime of
unlawful possession of a weapon. See State v. Romero, 191 N.J.
59, 79 (2007). The identification charge was proper and provides
no basis for reversal.
III.
Defendant contends in Point II that his sentence is excessive.
He does not challenge Judge Cronin's findings of aggravating and
mitigating factors. Rather, he argues the judge failed to consider
the minimal nature of the offense where there was no underlying
crime, such as a robbery, no discharge of the weapon, and no
injuries.
We review a judge's sentencing decision under an abuse of
discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014).
As directed by the Court, we must determine whether:
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience.
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[Ibid. (quoting State v. Roth, 95 N.J. 334,
364-65 (1984)).]
Applying this standard, we discern no reason to disturb defendant's
sentence.
Defendant was eligible for an extended-term sentence as a
persistent offender pursuant to N.J.S.A. 2C:44-3(a), which would
have exposed him to a sentence of between ten to twenty years.
The State moved for an extended-term sentence and requested a
twelve-year sentence with a six-year period of parole
ineligibility, but Judge Cronin denied the motion. Citing
defendant's extensive criminal history, which included several
convictions for unlawful possession of a weapon, and the fact that
defendant was on probation when he committed the present offense,
the judge found aggravating factors N.J.S.A. 2C:44-1(a)(3), "[t]he
risk that the defendant will commit another offense;" N.J.S.A.
2C:44-1(a)(6), "[t]he extent of the defendant's prior criminal
record and the seriousness of the offenses of which he has been
convicted;" and N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring
the defendant and others from violating the law[.]" Because
defendant accepted responsibility for his conduct, the judge found
mitigating factor N.J.S.A. 2C:44-1(b)(9), "[t]he character and
attitude of the defendant indicate that he is unlikely to commit
another offense[.]" In imposing the maximum sentence, the judge
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emphasized the significance of the aggravating factors and
defendant's criminal record.
We have considered defendant's contention in light of the
record and applicable legal principles and conclude it is without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). We affirm substantially for the reasons Judge Cronin
expressed at sentencing. We are satisfied that the judge did not
violate the sentencing guidelines and the record amply supports
his findings on aggravating and mitigating factors. The sentence
is clearly reasonable and does not shock our judicial conscience.
Affirmed.
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