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

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 

NOT FOR PUBLICATION WITHOUT THE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.

July 12, 2018
2 A-3517-15T2

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).
3 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 jeantype 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 showup 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 
4 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-ofcourt 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).
5 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.
6 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 preidentification 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)). 
7 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 
8 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.
9 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)). 
10 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.