                                NOT FOR PUBLICATION WITHOUT THE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.
                                                                       A-0213-18T2
                                      2
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



                                                                          A-0213-18T2
                                        3
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

                                                                             A-0213-18T2
                                          4
            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


                                                                            A-0213-18T2
                                         5
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.


                                                                           A-0213-18T2
                                        6
      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


                                                                           A-0213-18T2
                                        7
            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,

                                                                          A-0213-18T2
                                        8
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


                                                                             A-0213-18T2
                                         9
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


                                                                           A-0213-18T2
                                       10
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.




                                                                        A-0213-18T2
                                       11
