STATE OF NEW JERSEY VS. KESHAWN MALONE (15-04-0466, BERGEN COUNTY AND STATEWIDE), A-1339-18

Background

Defendant Keshawn Malone and codefendants planned and executed a robbery at an apartment; during the robbery Jeronimo Lopez was shot and killed.
Police stopped a vehicle linked to surveillance, arrested Malone, read Miranda warnings at arrest, transported him to the Bergen County Prosecutor’s Office, and recorded a long custodial interview with breaks and a mid-evening trip to the sheriff’s office for processing.
During the interview Malone admitted participating in the robbery, possessing a handgun, and striking a victim; he later made recorded jailhouse telephone calls that the State introduced at trial.
At trial Malone was convicted of multiple counts including murder, felony murder, burglary, robbery, weapons offenses, and hindering apprehension; the judge admitted the custodial statement and the jail calls and sentenced Malone to an aggregate term with consecutive robbery and murder terms and NERA ineligibility periods.
On appeal Malone challenged (1) the voluntariness and currency of his Miranda waiver given long pauses and breaks, (2) the admissibility of jail calls without production of the subpoena, (3) admission of the jail calls on hearsay/fundamental fairness grounds, and (4) the imposition of consecutive sentences and the NERA parole-ineligibility calculation.
The Appellate Division affirmed the convictions, upheld admission of the custodial statement and the jail calls, but remanded for resentencing because the judge failed adequately to apply and state Yarbough factors and misapplied NERA’s parole-ineligibility computation.

Issues

Issue	State's Argument	Malone's Argument	Held
Whether Malone’s Miranda waiver and statements were voluntary despite multi-hour lapse and breaks	Waiver was knowing, intelligent and voluntary; warnings given at arrest and before questioning; totality supports admissibility	Lapse and periods alone made initial warnings stale and overbore his will; readministering warnings required	Court affirmed: totality-of-circumstances supports waiver; no readministration required where warnings effective and nothing intervened to dilute them (Miranda warnings preserved)
Whether the State had to produce the grand-jury subpoena for jail calls before admitting recordings	Production unnecessary; officer testified he received a subpoena and sharing under subpoena is lawful (Jackson)	Absence of the subpoena undermines law-enforcement exception to Wiretapping Act and admission	Court affirmed admission without subpoena production; no requirement to produce subpoena where testimony supports lawful transfer
Whether recorded jail calls were inadmissible on hearsay or fundamental fairness grounds	Calls admissible (N.J.R.E. 803(b)(1)); officer authenticated voice; jury instruction cured any prejudice	Calls were incoherent, prejudicial (showing incarceration), and unreliable (PIN theft risk) so should be excluded	Court affirmed admission: reliability threshold met, Driver factors not contested, trial curative instructions addressed prejudice; credibility and interpretation for jury
Whether consecutive robbery sentences to murder and NERA calculation were proper	Consecutive sentences justified by independence and violence of robberies; NERA requires parole ineligibility	Crimes were part of single aberrant episode; judge failed to analyze Yarbough factors and misapplied NERA to only part of term	Conviction affirmed but remand for resentencing: judge abused discretion by insufficient Yarbough analysis; NERA applies to the whole murder term and judge must clarify parole-ineligibility period

Key Cases Cited

Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (Miranda warning and waiver principles)
State v. Dispoto, 189 N.J. 108 (N.J. 2007) (totality approach to pre-/post-custodial warnings)
State v. Tillery, 238 N.J. 293 (N.J. 2019) (consider time lapse between warnings and statements as part of totality)
State v. Miller, 76 N.J. 392 (N.J. 1978) (factors for voluntariness of confessions)
State v. Yarbough, 100 N.J. 627 (N.J. 1985) (factors governing consecutive versus concurrent sentencing)
State v. Jackson, 460 N.J. Super. 258 (App. Div. 2019) (sharing monitored inmate calls with another agency under subpoena not a Wiretapping Act violation), aff’d o.b., 241 N.J. 547 (N.J. 2020)
State v. Rambo, 401 N.J. Super. 506 (App. Div. 2008) (NERA parole-ineligibility applies to entire murder term)
State v. Driver, 38 N.J. 255 (N.J. 1962) (admissibility and authentication standards for recordings)