                        NOT FOR PUBLICATION WITHOUT THE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
