STATE OF NEW JERSEY VS. KEYSHAUN WIGGINS (17-04-0269, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-0213-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEYSHAUN WIGGINS,
Defendant-Appellant.
__________________________
Submitted May 4, 2020 – Decided July 2, 2020
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 17-04-0269.
Joseph E. Krakora, Public Defender, attorney for
appellant (Lauren R. Jackson, Designated Counsel, on
the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Ednin D. Martinez, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant Keyshaun Wiggins and two codefendants were indicted in
connection with a robbery of a purported drug dealer who was shot and killed
during the crime. 1 Both codefendants gave statements to law enforcement
authorities implicating defendant as a participant in planning and carrying out
the robbery—committed after all three men traveled from Jersey City to the
victim's residence in Hoboken—and as the shooter.2 They later pleaded guilty
to first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1), and agreed to testify
against defendant. One codefendant told police the location where defendant
discarded the handgun that was eventually matched to the bullet recovered from
the victim's body.
After the trial court denied his motions to suppress his codefendants'
statements and the handgun, defendant pleaded guilty to an amended charge of
1
Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1) (count
one); first-degree murder during commission of a crime, N.J.S.A. 2C:11-3(a)(3)
(counts three and five); first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1)
(count seven); second-degree armed burglary, N.J.S.A. 2C:18-2(a)(1) (count
nine); second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 (count
eleven); first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count
twelve); second-degree possession of weapon for unlawful purpose – firearm,
N.J.S.A. 2C:39-4(a)(1) (count fifteen); second-degree unlawful possession of a
handgun without a permit, N.J.S.A. 2C:39-5(b)(1) (count seventeen); and third-
degree hindrance of evidence N.J.S.A. 2C:29-3(a)(3) (count nineteen).
2
The codefendants' statements are not included in the record. The trial court
synopsized their statements in its oral decision denying defendant's motions.
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first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). He was
sentenced in accordance with the plea agreement to a prison term of twenty years
subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He appeals
from the conviction and sentence, arguing:
POINT ONE
THE TRIAL [COURT] ERRED IN DENYING
DEFENDANT'S MOTION TO SU[P]PRESS
PHYSICAL EVIDENCE WITHOUT CONDUCTING
AN EVIDENTIARY HEARING.
POINT TWO
THE SENTENCE IS EXCESSIVE AND SHOULD BE
REDUCED BECAUSE THE [COURT] REJECTED
RELEVANT MITIGATING FACTORS AND
IMPROPERLY OUTWEIGHED THE
AGGRAVATING FACTORS.
Unpersuaded, we affirm.
In reviewing a trial court's suppression decision, its findings should be
upheld if they are supported by sufficient competent evidence in the record,
State v. Minitee, 210 N.J. 307, 317 (2012), and should only be disturbed if they
were "so clearly mistaken 'that the interests of justice demand intervention and
correction,'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson,
42 N.J. 146, 162 (1964)). The trial court's application of its factual findings to
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the law, however, is subject to our plenary review. See, e.g., State v. Gamble,
218 N.J. 412, 425 (2014).
Defendant argues the trial court erred in denying the motion to suppress
without an evidentiary hearing. He claims the codefendants' statements were
procured by coercive measures, and that he has "standing to have these
statements further explored during an evidentiary hearing." He argues that
because "[t]he only way . . . the handgun was recovered was through a
description provided by [one codefendant], which could have been proven to be
involuntary if an evidentiary hearing occurred," the handgun, recovered as the
product of those involuntary statements, should be suppressed.
Defendant, however, does not have standing to "vicariously assert that
another's right against self-incrimination has been violated." State v. Baum, 199
N.J. 407, 417 (2009). Our Supreme Court held that rights granted by the Fifth
Amendment and its "state-based counterpart found in our common law," ibid.,
were "entirely personal," id. at 418. In concluding there was no reason "to
expand the protections against self-incrimination so as to permit a third party
. . . to assert a violation vicariously," id. at 420, the Court, citing to Miranda v.
Arizona, 384 U.S. 436 (1966), reasoned:
As with the Miranda warnings, the purpose advanced
by our statute and rule is to protect the individual's right
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against self-incrimination rather than to advance the
goals of another who tries to claim the benefit of that
purely personal right. Were we to part company with
the federal courts on this issue and allow defendant to
vicariously assert [his codefendant's] right against self-
incrimination, we would adopt an approach that would,
in effect, read Miranda in a manner so inconsistent with
the clear guidance of our federal counterparts as to be
inappropriate. As we have recognized, the United
States Supreme Court "has advised against extending
Miranda unless the holding 'is in harmony with
Miranda's underlying principles.'" State v. Boretsky,
186 N.J. 271, 278 (2006).
[Id. at 419.]
We thus reject defendant's argument that he has standing to contest his
codefendants' statements.
Defendant also lacks standing to challenge the seizure of the handgun
which, as the trial court found, was abandoned. A criminal defendant has
standing to move to suppress evidence from a claimed unreasonable search or
seizure "if he has a proprietary, possessory or participatory interest in either the
place searched or the property seized." State v. Alston, 88 N.J. 211, 228 (1981).
Our Supreme Court, however, has "carved out 'a narrow exception to our
automatic standing rule,'" State v. Carvajal, 202 N.J. 214, 223 (2010) (quoting
State v. Johnson, 193 N.J. 528, 549 (2008)), and held "a defendant will not have
standing to object to the search or seizure of abandoned property," ibid. (quoting
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Johnson, 193 N.J. at 548-49). "For the purposes of standing, property is
abandoned when a person, who has control or dominion over property,
knowingly and voluntarily relinquishes any possessory or ownership interest in
the property and when there are no other apparent or known owners of the
property." Johnson, 193 N.J. at 549; see also Carvajal, 202 N.J. at 223.
The trial court deemed an evidentiary hearing unnecessary because the
proofs presented by the State proved the handgun was abandoned. Besides the
codefendants' statements that defendant possessed the handgun and shot at the
victim during the robbery, and that defendant discarded the weapon in bushes
near a Dunkin' Donuts as all three fled, the trial court noted police retrieved the
weapon from those bushes, and that video footage "depict[ed] all three men
running . . . [and defendant] tossing the gun into the bushes." From the
codefendants' statements and the video footage, the trial court found the
handgun was "discarded . . . in a public place located a significant distance from
both Jersey City and Springfield, Massachusetts," where defendant was
apprehended by the United States Marshals Service Regional Fugitive Task
Force twenty-four days after the shooting, after defendant failed to appear on
the date on which his counsel had arranged for defendant to voluntarily
surrender.
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From these supported facts, we agree the handgun was abandoned. In an
obvious attempt to obtain separation from what ultimately was shown by
ballistics testing to be the murder weapon, it was discarded in a location in which
neither defendant nor his codefendants had any interest. Neither defendant nor
any codefendant attempted to later retrieve the weapon. Indeed, defendant
traveled to and stayed in Massachusetts.
Defendant contends the court erred by deciding the suppression motion
without an evidentiary hearing because he denied either possessing the gun or
discarding it. Those disputed facts, however, do not mandate an evidentiary
hearing.
As we recognized in State v. Green, 346 N.J. Super. 87, 90-91 (App. Div.
2001) (citations omitted), Rule 3:5-7(c)
provides that the filing of a motion by a defendant
asserting that evidence to be used against him was
seized in a warrantless search triggers a requirement
that "the State shall, within fifteen days of the filing of
the motion, file a brief, including a statement of facts
as it alleges them to be, and the movant shall file a brief
and counter statement of facts no later than three days
before the hearing." It is only when the defendant's
counter statement places material facts in dispute that
an evidentiary hearing is required. The mere allegation
of a warrantless search, with the attendant burden of
proof on the State to justify same, does not place
material issues in dispute, nor does defendant's
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assertion that he denies the truth of the State's
allegations.
The material issue in this case is undisputed: The handgun was
abandoned. Whether it was defendant or a codefendant, that person "knowingly
and voluntarily relinquishe[d] any possessory or ownership interest" in the
handgun. Johnson, 193 N.J. at 549. As such, that person does not have standing
to contest the seizure of the handgun. The trial court properly denied defendant's
motion to suppress without an evidentiary hearing.
In arguing his sentence was excessive, defendant contends the trial court
erred in rejecting his proffered mitigating factors and in weighing the factors it
found: aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of reoffense), and
nine, N.J.S.A. 2C:44-1(a)(9) (need to deter), substantially outweighed
mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (lack of prior juvenile or
criminal history). The court found defendant was "at high risk of committing
another offense"; weighed aggravating factor nine "heavily"; and accorded
"minimal weight" to mitigating factor seven.
Our review of a sentence is narrow. State v. Miller, 205 N.J. 109, 127
(2011). Our duty is to assure that the aggravating and mitigating factors found
by the court are supported by "competent credible evidence in the record." Ibid.(quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). As directed by the Court,
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we must (1) "require that an exercise of discretion be based upon findings of
fact that are grounded in competent, reasonably credible evidence"; (2) "require
that the factfinder apply correct legal principles in exercising its discretion"; and
(3) modify sentences only "when the application of the facts to the law is such
a clear error of judgment that it shocks the judicial conscience." State v. Roth,
95 N.J. 334, 363-64 (1984). Applying a deferential standard of review to the
court's sentencing determination, we find no error in the court's identification
and balance of the "aggravating and mitigating factors that are supported by
competent credible evidence in the record." State v. Grate, 220 N.J. 317, 337
(2015) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)).
The trial court fully complied with Rule 3:21-4(g) pointing to specific
facts supporting its determination of the aggravating and mitigating factors.
N.J.S.A. 2C:44-1(a)(3) provides that a trial court must consider "[t]he risk that
the defendant will commit another offense" when making its sentencing
determination. "A court's findings assessing . . . the predictive assessment of
chances of recidivism . . . involve determinations that go beyond the simple
finding of a criminal history and include an evaluation and judgment about the
individual in light of his or her history." State v. Thomas, 188 N.J. 137, 153
(2006). Although a trial court is obliged to consider all factors when
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determining whether a defendant runs a risk of reoffending, it is not required to
give one such factor controlling weight over the others. See id. at 153-54.
The trial court considered defendant's nine prior contacts with the Family
Part, resulting in a successful diversion for simple assault and four adjudications
for two thefts, a burglary and another robbery which the court found to be ve ry
similar to the instant crime. He parsed the timetable for those adjudications and
also found defendant was "unable to abide by the terms of [his] probationary
sentence which resulted in two violations of probation[.]" The court recognized
defendant expressed "some level of regret or remorse, but based its finding o f
aggravating factor three on a "pattern of behavior" during which defendant
"continued to offend[.]" The court's finding and the weight it ascribed to this
factor are well supported.
A factor nine determination requires not only "a 'qualitative assessment'
of the risk of recidivism, but 'also involve[s] determinations that go beyond the
simple finding of a criminal history and include an evaluation and judgment
about the individual in light of his or her history.'" State v. Fuentes, 217 N.J.
57, 78 (2014) (alteration in original) (quoting Thomas, 188 N.J. at 153). The
trial court was obligated to point to specific facts supporting its conclusion that
there was a need to deter both defendant and the general public from engaging
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in future criminal behavior. See id. at 78-79. The court followed the Court's
directive, highlighting defendant's planning and commission of an armed
robbery for personal financial gain—a crime previously committed by defendant
as a juvenile—that resulted in the death of yet another young person.
We discern no abuse in the court's assignment of minimal weight to
mitigating factor seven. The court properly balanced the fact that defendant had
no adult record with his juvenile history.
We determine defendant's remaining arguments, including those
pertaining to the court's rejection of other mitigating factors, to be without
sufficient merit to warrant discussion, R. 2:11-3(e)(2), because the court well-
explained its reasons at sentencing.
The court's thoughtful sentencing analysis, based on competent, credible
evidence, resulted in the bargained-for twenty-year sentence for first-degree
aggravated manslaughter. The sentence does not shock the judicial conscience.
See State v. Cassady, 198 N.J. 165, 180 (2009).
Affirmed.
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