DOCKET NO. A-4388-12T2
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Meredith L. Balo, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-12-1259. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Meredith L. Balo, on the brief). PER CURIAM
Defendant appeals from his conviction for third-degree burglary, N.J.S.A. 2C:18-2, and his sentence. We affirm.
On appeal, defendant argues:
THE FAILURE OF THE JURY INSTRUCTIONS FOR BURGLARY TO SPECIFY THE UNLAWFUL ACT ALLEGEDLY INTENDED TO BE COMMITTED BY DEFENDANT UPON ENTERING THE RESIDENCE, AND INSTEAD TELLING THE JURY THAT ANY UNLAWFUL ACT WOULD SUFFICE, WAS PLAIN ERROR BECAUSE THE STATE'S EVIDENCE ON THIS ISSUE WAS UNCLEAR AND THIS WAS THE CENTRAL FACTUAL DISPUTE IN THE CASE. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶ 1 (Not Raised Below).
THE SENTENCE WAS EXCESSIVE. U.S. CONST. AMEND[S]. VIII, XIV; N.J. CONST. ART. I, ¶¶ 1, 12.
After reviewing these arguments in light of the record and applicable legal principles, we conclude that neither argument has merit.
Defendant did not object to the jury instruction on burglary. Pursuant to Rule 1:7-2, defendant's failure to object constitutes a waiver of his right to challenge that instruction on appeal. However, mindful of the principles that "appropriate and proper jury charges are essential to a fair trial," State v. Savage, 172 N.J. 374, 387 (2002), and are even more critical in criminal cases, State v. Jordan, 147 N.J. 409, 422 (1997), we review the charge to determine whether there was plain error clearly capable of producing an unjust result. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997).
N.J.S.A. 2C:18-2(a)(1) states in pertinent part:
A person is guilty of burglary if, with purpose to commit an offense therein or thereon he . . . [e]nters a . . . structure . . . unless . . . the actor is licensed or privileged to enter.
Defendant does not dispute that he entered a residence without permission. His primary defense was that the State failed to show the requisite intent to commit an offense therein and, therefore, he was only guilty of criminal trespass.
Defendant relies upon State v. Robinson, 289 N.J. Super. 447 (App. Div.), certif. denied, 146 N.J. 497 (1996), to support his argument that the trial judge committed plain error in failing to identify the particular offense he was allegedly seeking to commit. His reliance is misplaced.
In Robinson, we noted that the language in the burglary statute requiring entry "with purpose to commit an offense therein" is "interpreted broadly to mean 'any offense'" and is satisfied by a general criminal intent. Id. at 453. We quoted the 1971 Commentary of the Criminal Law Revision Commission:
To specify "any offense" comports better with the realities of law enforcement. The burglar is often apprehended, if at all, in the process of entering, when it may be difficult to know more than that he is up to some mischief. Recognition of this is reflectedin the rule that the specific criminal purpose need not be pleaded or proved with the same particularity as in prosecuting the crime which the burglar had in mind. If there is reasonable doubt as to the criminal purpose of the intruder, it should be enough to convict him of criminal trespass. Certainly intrusion for such innocent purposes as sleep, escape from inclement weather, or to secure an interview, should not entail the possibility of criminal penalties, based on a presumption of criminal intent.
[Ibid. (citation and internal quotation marks omitted).]
While it is true, as defendant argues, that the defense in Robinson was misidentification rather than an innocent purpose for entry, we nonetheless addressed the defendant's argument that the trial judge committed plain error by failing to identify the specific offense defendant intended to commit in the jury instruction. Id. at 452-58. We observed,
the jury was not confronted by conflicting explanations as to defendant's purpose in entering the building, some criminal, others non-criminal. Therefore, given the unequivocal nature of his conduct as suggesting only a criminal purpose, the failure to define the specific offense defendant intended to commit after he entered the building does not constitute plain error. We perceive no reasonable basis upon which the jury might have convicted defendant for entering the dwelling with the purpose to engage in lawful activity.
[Id. at 455.]
The specific wrongful act is "of no consequence where no innocent purpose is suggested by the evidence." Id. at 456. Therefore, when the evidence fails to support conflicting explanations as to a defendant's purpose, the trial judge is not required to define a specific offense as the object of a defendant's unlawful entry. Cf. State v. Olivera, 344 N.J. Super. 583, 593-94 (App. Div. 2001) (reversing a conviction for luring and distinguishing Robinson on the ground that the evidence suggested the possibility of an innocent purpose).
No evidence of an innocent purpose was before the jury in this case. After the resident called the police to report a break-in, Officer William Guy, a Plainfield police officer, responded to the scene. He observed defendant, his first cousin, exit the residence and then immediately go back inside the house after Guy called out to him. The owner of the property later toured the building with the police and made the following observations: the door to the first-floor apartment had been broken and "jimmied" open, the pins had been removed from the hinges on the door to the second-floor apartment, and a screwdriver and gloves that did not belong to him were lying on the shelf of the first-floor apartment.
There was, therefore, sufficient evidence to support a finding that defendant had the intent to commit an offense in the building and no evidence that suggested an innocent purpose. The failure to specify a specific offense that was the object of the unlawful entry was not error under the facts of this case.
The trial judge granted the State's motion for the imposition of a discretionary extended term. He sentenced defendant to nine years, with a minimum period of parole ineligibility of forty-two months, and appropriate fines and penalties. Defendant's sole challenge to his sentence is an argument the trial judge incorrectly double-counted his prior record contrary to State v. Dunbar, 108 N.J. 80, 91-92 (1987). We disagree.
We review a judge's sentencing decision under an abuse of discretion standard. See State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we must determine whether:
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or
(3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)) (internal quotations marks omitted).]
We discern no abuse of discretion here.
Defendant does not challenge the trial judge's finding that he met the statutory requirements to be sentenced as a persistent offender based on his prior convictions. After making that finding, the judge appropriately found aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3),(6), (9), and no mitigating factors. The factual basis for these findings is not contested. The sentence imposed did not violate any sentencing guidelines and the application of the guidelines here did not make "the sentence clearly unreasonable so as to shock the judicial conscience." See Roth, supra, 95 N.J. at 365.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION