STATE OF NEW JERSEY VS. KESHAWN MALONE (15-04-0466, BERGEN COUNTY AND STATEWIDE)

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1339-18 STATE OF NEW JERSEY, Plaintiff-Respondent. v. KESHAWN MALONE, a/k/a KESHAW MALONE, Defendant-Appellant. __________________________ Submitted May 11, 2021 – Decided July 16, 2021 Before Judges Gilson and Moynihan. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 15-04-0466. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief). Mark Musella, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Keshawn Malone and three codefendants executed their planned robbery of Erick Lopez, his father Jeronimo Lopez and five guests in the Lopez apartment, during which Jeronimo was shot and killed.1 Tried separately, defendant was convicted by jury of second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2(b)(2) (count one); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count two); second-degree burglary, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:18-2 (count three); first-degree robbery, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1 (counts four, five, six, seven, eight, and ten); first-degree murder, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:11-3(a)(1), (2) (count eleven); first-degree felony murder (burglary), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:11-3(a)(3) (count twelve); first-degree felony murder (robbery), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:11-3(a)(3) (count thirteen); second-degree possession of a weapon for an unlawful purpose (handgun), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a) (count seventeen); second-degree unlawful possession of a weapon (handgun without the requisite permit, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(b) (count eighteen); 1 Our use of given names is for clarity. We mean no disrespect or familiarity by our practice. A-1339-18 2 and third-degree hindering apprehension, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:29- 3(b)(1) (count twenty-two). He appeals from the judgment of conviction and sentence, arguing: POINT ONE THE TRIAL JUDGE'S CONCLUSION THAT DEFENDANT'S WAIVER OF HIS RIGHT TO REMAIN SILENT DURING A CUSTODIAL INTERROGATION WAS VOLUNTARY WAS NOT BASED ON A TOTALITY OF CIRCUMSTANCES. POINT TWO FOR THE LAW ENFORCEMENT EXCEPTION OF THE NEW JERSEY WIRETAPPING ACT TO APPLY, THE STATE MUST PRODUCE THE SUBPOENA AUTHORIZING IT TO OBTAIN A DEFENDANT'S JAILHOUSE COMMUNICATIONS OR A RELIABLE EXPLANATION WHY THE SUBPOENA CANNOT BE PRODUCED. POINT THREE THE TRIAL JUDGE ERRED IN ADMITTING INTO EVIDENCE THE JAILHOUSE COMMUNICATIONS ON GROUNDS OF BOTH FUNDAMENTAL FAIRNESS AND HEARSAY. POINT FOUR THE TRIAL JUDGE'S DECISION TO CONSECUTIVELY SENTENCE DEFENDANT FOR THE ROBBERIES AND MURDER WAS AN ABUSE OF DISCRETION. A-1339-18 3 POINT FIVE THE PERIOD OF PAROLE INELIGIBILITY UNDER NERA FOR A SENTENCE ON MURDER IS COMPUTED ON THE WHOLE TERM IMPOSED. We affirm the conviction but remand for resentencing. I During the hearing on defendant's motion to suppress the statement he provided to detectives from the Bergen County Prosecutor's Office (BCPO), the …

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