NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3517-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIE RIGGINS,
Defendant-Appellant. _______________________________
Submitted March 6, 2018 – Decided July 12, 2018
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-08-1148.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Patrick F. Galdieri, II, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Tried by a jury, defendant Willie Riggins appeals his
conviction for second-degree robbery, N.J.S.A. 2C:15-1, and his nine-and-a-half-year prison sentence with an eighty-five percent
period of parole ineligibility under the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. He argues:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF AN IMPERMISSIVELY SUGGESTIVE "SHOW-UP" INDENTIFICATION PROCEDURE. U.S CONST., AMEND. XIV; N.J. CONST., ART. 1, PAR. 10.
POINT II
THE STATE COMMITTED A FLAGRANT VIOLATION OF THE PRINCIPLE [SET FORTH IN] STATE V. BANKSTON,[1] AND A SIMILAR HEARSAY VIOLATION, NECESSITATING REVERSAL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10[.] (Not Raised Below).
POINT III
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
A. The Sentence Was Excessive.
B. The Award of Restitution Is Unsupported and Cannot Stand. (Not Raised Below).
For the reasons that follow, we affirm.
We discern the following relevant facts from the record.
At approximately 2:25 a.m., the victim was walking home in Perth
Amboy when a man grabbed him from behind, wrapped an arm around
his neck, and began to choke him. The victim attempted to break
1 63 N.J. 263 (1973).
2 A-3517-15T2 free and eventually fell to the ground after his assailant
released him. The assailant then reached into his pants pocket
to take his cellphone and wallet. Prior to the assault, a
nearby store's surveillance camera recorded the assailant
running to the victim from behind the victim.
The victim immediately went home where he called 911 and
described the incident to the dispatcher. Perth Amboy Officer
John Marcinko was then dispatched to the victim's home to
investigate. After the victim told Marcinko that his assailant
was an African-American man in his thirties wearing gray jean-
type pants, a blue t-shirt, and "some type of hat on his head,"
Marcinko broadcasted the description over the police radio. The
victim gave Marcinko the earbud headphones that he reportedly
grabbed from his assailant during the assault. While canvassing
the area for a person matching the broadcasted description,
Officer Omar Rivera was informed by his sergeant that a suspect
was spotted near a gas station. The suspect, identified as
defendant, was approached and detained by the police for a show-
up identification before the victim. At the show-up, the victim
confirmed that defendant was his assailant. Marcinko then
confiscated defendant's shirt that had what appeared to be "a
very fresh rip," his MP3 player – without any headphones – from
3 A-3517-15T2 his pocket, and his durag.2 Neither the victim's cellphone nor
his wallet were found. Subsequent DNA testing of the earbud
headphones turned over by the victim revealed a mixture of DNA
profiles, with defendant as the source of the major DNA profile.
Prior to trial, defendant filed a motion to suppress the
victim's out-of-court identification and requested a Wade3
hearing. The hearing, conducted over the course of three
separate days, resulted in the trial judge issuing an order
denying defendant's motion. During the trial, without
objection, Marcinko testified that he went to the victim's house
based upon a report of a "robbery" and detailed the victim's
description of the assailant. The jury found defendant guilty
of second-degree robbery. Thereafter, as noted, defendant was
sentenced to a nine-and-a-half-year NERA prison term.
Defendant's argument in his first point involves the
judge's denial of his motion to suppress the victim's out-of-
court show-up identification. Citing State v. Henderson, 208
N.J. 208, 289 (2011), defendant maintains that he "demonstrated
a very substantial likelihood of irreparable misidentification,"
because the victim was not given any instructions by the police
2 A cloth material worn to cover one's head to produce a "wave" hairstyle. 3 United States v. Wade, 388 U.S. 218 (1967).
4 A-3517-15T2 other than to indicate if he was his assailant. Defendant
acknowledges that while a show-up identification is not
automatically deemed impermissibly suggestive, the probability
of suggestiveness is enhanced because the police only relayed
information to the victim that could "influence[] [him] to
develop a firmer resolve to identify someone he might otherwise
have been uncertain was the culprit." State v. Herrera, 187
N.J. 493, 506 (2006). Defendant claims the weight of the
evidence compelled the conclusion that the victim was not told
that he – the apprehended suspect – might not be his assailant.
Despite Marcinko's testimony that the victim was told4 before
viewing defendant in the show-up, that he "may or may not have
been the person who robbed him," defendant also recited that
both Rivera and the victim reported that no such instruction was
given. We are unpersuaded.
In a well-reasoned memorandum accompanying the order
denying defendant's motion, the trial judge found the testimony
of Marcinko and Rivera "to be reasonable and credible." The
judge further found that the victim testified credibly and
"appeared to have a strong recollection of the incident." The
judge determined that under the totality of the circumstances,
defendant did not meet his burden to show a very substantial
4 In Spanish because of his limited English.
5 A-3517-15T2 likelihood of irreparable misidentification. Although the judge
recognized Rivera denied providing a pre-identification
instruction to the victim, and that the victim did not recall
receiving one, the show-up worksheet notes that pre-
identification instructions were given. Hence, we affirm
substantially for the reasons stated by the judge in his
memorandum. We add the following brief comments.
A show-up identification is essentially a single-person
lineup that occurs at, or near the scene of the crime shortly
after its commission. Henderson, 208 N.J. at 259. The
circumstances of a show-up identification are, to some extent,
inherently suggestive. State v. Adams, 194 N.J. 186, 204
(2008).
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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-3517-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIE RIGGINS,
Defendant-Appellant. _______________________________
Submitted March 6, 2018 – Decided July 12, 2018
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-08-1148.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Patrick F. Galdieri, II, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Tried by a jury, defendant Willie Riggins appeals his
conviction for second-degree robbery, N.J.S.A. 2C:15-1, and his nine-and-a-half-year prison sentence with an eighty-five percent
period of parole ineligibility under the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. He argues:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF AN IMPERMISSIVELY SUGGESTIVE "SHOW-UP" INDENTIFICATION PROCEDURE. U.S CONST., AMEND. XIV; N.J. CONST., ART. 1, PAR. 10.
POINT II
THE STATE COMMITTED A FLAGRANT VIOLATION OF THE PRINCIPLE [SET FORTH IN] STATE V. BANKSTON,[1] AND A SIMILAR HEARSAY VIOLATION, NECESSITATING REVERSAL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10[.] (Not Raised Below).
POINT III
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
A. The Sentence Was Excessive.
B. The Award of Restitution Is Unsupported and Cannot Stand. (Not Raised Below).
For the reasons that follow, we affirm.
We discern the following relevant facts from the record.
At approximately 2:25 a.m., the victim was walking home in Perth
Amboy when a man grabbed him from behind, wrapped an arm around
his neck, and began to choke him. The victim attempted to break
1 63 N.J. 263 (1973).
2 A-3517-15T2 free and eventually fell to the ground after his assailant
released him. The assailant then reached into his pants pocket
to take his cellphone and wallet. Prior to the assault, a
nearby store's surveillance camera recorded the assailant
running to the victim from behind the victim.
The victim immediately went home where he called 911 and
described the incident to the dispatcher. Perth Amboy Officer
John Marcinko was then dispatched to the victim's home to
investigate. After the victim told Marcinko that his assailant
was an African-American man in his thirties wearing gray jean-
type pants, a blue t-shirt, and "some type of hat on his head,"
Marcinko broadcasted the description over the police radio. The
victim gave Marcinko the earbud headphones that he reportedly
grabbed from his assailant during the assault. While canvassing
the area for a person matching the broadcasted description,
Officer Omar Rivera was informed by his sergeant that a suspect
was spotted near a gas station. The suspect, identified as
defendant, was approached and detained by the police for a show-
up identification before the victim. At the show-up, the victim
confirmed that defendant was his assailant. Marcinko then
confiscated defendant's shirt that had what appeared to be "a
very fresh rip," his MP3 player – without any headphones – from
3 A-3517-15T2 his pocket, and his durag.2 Neither the victim's cellphone nor
his wallet were found. Subsequent DNA testing of the earbud
headphones turned over by the victim revealed a mixture of DNA
profiles, with defendant as the source of the major DNA profile.
Prior to trial, defendant filed a motion to suppress the
victim's out-of-court identification and requested a Wade3
hearing. The hearing, conducted over the course of three
separate days, resulted in the trial judge issuing an order
denying defendant's motion. During the trial, without
objection, Marcinko testified that he went to the victim's house
based upon a report of a "robbery" and detailed the victim's
description of the assailant. The jury found defendant guilty
of second-degree robbery. Thereafter, as noted, defendant was
sentenced to a nine-and-a-half-year NERA prison term.
Defendant's argument in his first point involves the
judge's denial of his motion to suppress the victim's out-of-
court show-up identification. Citing State v. Henderson, 208
N.J. 208, 289 (2011), defendant maintains that he "demonstrated
a very substantial likelihood of irreparable misidentification,"
because the victim was not given any instructions by the police
2 A cloth material worn to cover one's head to produce a "wave" hairstyle. 3 United States v. Wade, 388 U.S. 218 (1967).
4 A-3517-15T2 other than to indicate if he was his assailant. Defendant
acknowledges that while a show-up identification is not
automatically deemed impermissibly suggestive, the probability
of suggestiveness is enhanced because the police only relayed
information to the victim that could "influence[] [him] to
develop a firmer resolve to identify someone he might otherwise
have been uncertain was the culprit." State v. Herrera, 187
N.J. 493, 506 (2006). Defendant claims the weight of the
evidence compelled the conclusion that the victim was not told
that he – the apprehended suspect – might not be his assailant.
Despite Marcinko's testimony that the victim was told4 before
viewing defendant in the show-up, that he "may or may not have
been the person who robbed him," defendant also recited that
both Rivera and the victim reported that no such instruction was
given. We are unpersuaded.
In a well-reasoned memorandum accompanying the order
denying defendant's motion, the trial judge found the testimony
of Marcinko and Rivera "to be reasonable and credible." The
judge further found that the victim testified credibly and
"appeared to have a strong recollection of the incident." The
judge determined that under the totality of the circumstances,
defendant did not meet his burden to show a very substantial
4 In Spanish because of his limited English.
5 A-3517-15T2 likelihood of irreparable misidentification. Although the judge
recognized Rivera denied providing a pre-identification
instruction to the victim, and that the victim did not recall
receiving one, the show-up worksheet notes that pre-
identification instructions were given. Hence, we affirm
substantially for the reasons stated by the judge in his
memorandum. We add the following brief comments.
A show-up identification is essentially a single-person
lineup that occurs at, or near the scene of the crime shortly
after its commission. Henderson, 208 N.J. at 259. The
circumstances of a show-up identification are, to some extent,
inherently suggestive. State v. Adams, 194 N.J. 186, 204
(2008). Nonetheless, a show-up identification may be admitted
at trial if it is otherwise reliable. Ibid. When reviewing an
order denying a motion to bar an out-of-court identification,
our standard of review "is no different from our review of a
trial court's findings in any non-jury case." State v. Wright,
444 N.J. Super. 347, 356 (App. Div. 2016) (citing State v.
Johnson, 42 N.J. 146, 161 (1964)). We accept those findings of
the trial court that are "supported by sufficient credible
evidence in the record." State v. Gamble, 218 N.J. 412, 424
(2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)).
6 A-3517-15T2 Accordingly, we see nothing in the record that establishes the
show-up was impermissibly suggestive.
In his second point, defendant claims the State elicited
direct testimony – on two occasions – from Marcinko that
violated the long-standing principles set forth in Bankston and
our rules against hearsay. Defendant asserts the first
violation occurred after Marcinko was asked: "Now, there was a
situation that you responded to that occurred at about 2:25
a.m., correct?" When he responded yes, he was asked: "And . . .
what was that dispatch?" Marcinko replied: "It was a . . .
robbery that had just occurred." Defendant asserts that shortly
thereafter, another violation occurred when Marcinko repeated
the victim's description of the assailant. Defendant argues
Marcinko's testimony constitutes a Bankston violation because he
provided "specific, rather than generalized, hearsay information
as the basis for [the] police action." He further adds that the
description of the assailant is hearsay and unsupported by any
recognized exception to N.J.R.E. 802. Recognizing that the
plain error standard applies because no objection was made at
trial, defendant urges these violations were highly prejudicial.
We conclude defendant's reliance upon Bankston and our
hearsay rules are misplaced. In Bankston, our Supreme Court
held that "[w]hen the logical implication to be drawn from the
7 A-3517-15T2 testimony leads the jury to believe that a non-testifying
witness has given the police evidence of the accused's guilt,
the testimony should be disallowed as hearsay." Bankston, 63
N.J. at 271 (emphasis added). Here, the testimony in question
did not involve a non-testifying witness. The victim testified
on behalf of the State and was vigorously cross-examined by
defense counsel, who did not challenge that a confrontation
occurred between the victim and defendant, but sought to show
that no assault or robbery occurred. This probably explains why
there was no objection to Marcinko's testimony being questioned.
Moreover, Marcinko's comments neither reiterated the specifics
of the robbery nor implied that defendant committed the crime.
Marcinko merely stated why he was dispatched to the victim's
home and revealed the victim's description of the assailant to
explain what led the police to identify defendant as a suspect
and the victim's show-up identification. The testimony
therefore was not a hearsay violation because it was not offered
"to prove the truth of the matter asserted." N.J.R.E. 801(c).
Consequently, no plain error exists that brought about "an
unjust result and which substantially prejudiced . . .
defendant's fundamental right to have the jury fairly evaluate
the merits of his defense." State v. Timmendequas, 161 N.J.
8 A-3517-15T2 515, 576-77 (1999) (quoting State v. Irving, 114 N.J. 427, 444
(1989)).
Lastly, in his third point, defendant contends he received
an excessive sentence necessitating reduction. He argues that
none of his prior offenses have been greater than the third
degree, and without minimizing the severity of the robbery, he
notes that the physical harm to the victim was minimal and there
was no evidence he had any intent to inflict injury upon the
victim. Defendant's argument is without sufficient merit to
warrant discussion in this written opinion. R. 2:11-3(e)(2).
We add the following brief comments.
We review a "trial court's 'sentencing determination under
a deferential standard of review.'" State v. Grate, 220 N.J.
317, 337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606
(2013)). We may "not substitute [our] judgment for the judgment
of the sentencing court." Lawless, 214 N.J. at 606. We must
affirm a sentence if: (1) the trial judge followed the
sentencing guidelines; (2) the findings of fact and application
of aggravating and mitigating factors were "based upon
competent, credible evidence in the record"; and (3) the
application of the law to the facts does not "shock[] the
judicial conscience." State v. Bolvito, 217 N.J. 221, 228
(2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
9 A-3517-15T2 Consequently, we are unpersuaded that the judge erred in
sentencing defendant; the record supports the judge's findings
and the sentence does not shock our judicial conscience.
Affirmed.
10 A-3517-15T2