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State v. Wiggins

July 23, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANDRE WIGGINS, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CAREY WIGGINS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-12-2443.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 30, 2009

Before Judges Lisa, Reisner, and Alvarez.

Defendants Andrew Wiggins and Carey Wiggins appeal their convictions after trial by jury. We affirm the convictions and resulting sentences in their entirety except that we remand for the trial judge to state for the record the reasons for his imposition of the less restrictive sentence first.

Defendants were convicted on June 17, 2005, on Bergen County superseding Indictment No. 04-12-2443 of two counts of third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (counts one and five); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); two counts of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (counts four and seven); and third-degree distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7 (count six).

On June 2, 2006, the trial judge sentenced Andre on count one, drug distribution, to three years of imprisonment. Counts two and four were merged into count one, and counts five and seven were merged into count six. On count six, distribution of a controlled dangerous substance within 1000 feet of school property, the trial judge imposed a consecutive extended term of five years, subject to five years of parole ineligibility. On Andre's judgment of conviction, the five-year term of parole ineligibility was corrected to a three-year term. Appropriate fines and penalties were also imposed.

On June 5, 2006, Carey was sentenced on count one, drug distribution, to three years of imprisonment. Counts two and four were merged into count one, and counts five and seven were merged into count six. On count six, distribution of a controlled dangerous substance within 1000 feet of school property, Carey was sentenced to a consecutive three-year term subject to three years of parole ineligibility. Appropriate fines and penalties were also imposed.

Andre Wiggins contends as follows:

POINT I

DEFENDANTS' MOTION FOR NEW TRIAL SHOULD HAVE BEEN GRANTED.

POINT II

THE MISCONDUCT OF THE POLICE, THE PROSECUTOR AND THE TRIAL COURT IMPROPERLY INDUCED THE INFORMANT, WHO WAS KNOWN TO THE DEFENSE, TO DISOBEY A DEFENSE SUBPOENA AND REFUSE TO TESTIFY AT THE HEARINGS ON THE DEFENSE NEW TRIAL MOTION, AND INFRINGED DEFENDANT'S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS UNDER THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND N.J. CONST., ART 1, ¶ 10, AND HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND FUNDAMENTAL FAIRNESS UNDER THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND N.J. CONST., ART. 1, ¶ 1.

POINT III

THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO CONFRONT A CRITICAL WITNESS AGAINST HIM BY DENYING THE DEFENSE MOTIONS FOR IN CAMERA REVIEW OF DETECTIVE ROBINSON'S PERSONNEL FILE.

POINT IV

DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL WAS INFRINGED BY MULTIPLE ACTS OF PROSECUTOR'S MISCONDUCT (PARTIALLY RAISED BELOW).

POINT V

THE JURY INSTRUCTION ON REASONABLE DOUBT VIOLATED DEFENDANT'S BASIC RIGHTS TO THE PRESUMPTION OF INNOCENCE AND PROOF BEYOND A REASONABLE DOUBT (PARTIALLY RAISED BELOW).

POINT VI

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND ILLEGAL.

Carey Wiggins raises the following points:

POINT I

THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S APPLICATION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.

POINT II

THE STATE'S CONDUCT INDUCED MARIBEL SANCHEZ TO INVOKE HER FIFTH AMENDMENT PRIVILEGE AT THE EVIDENTIARY HEARING, DEPRIVING DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND COMPULSORY PROCESS.

POINT III

THE TRIAL COURT ERRED IN NOT GRANTING A DEFENSE MOTION TO CONDUCT AN IN CAMERA REVIEW OF DETECTIVE ROBINSON'S PERSONNEL FILE.

POINT IV

THE PROSECUTOR ENGAGED IN MULTIPLE INSTANCES OF MISCONDUCT ON SUMMATION WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A ...


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