STATE OF NEW JERSEY v. JASON ROTH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2594-04T42594-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON ROTH,

Defendant-Appellant.

________________________________________________

 

Submitted September 20, 2006 - Decided October 4, 2006

Before Judges Parker and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-11-2092.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted and later pled guilty to second-degree attempted armed burglary, N.J.S.A. 2C:5-1 and 2C:18-2(b)(2), and fourth-degree possession of a weapon by certain persons not permitted to have weapons, N.J.S.A. 2C:39-7(a). He was sentenced to a five-year term of imprisonment on the former, 85% of which defendant was ordered to serve pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent eighteen-month term of imprisonment on the latter. Mandatory fees and assessments were also imposed.

Defendant appealed, arguing there was an insufficient factual basis for his guilty plea on both charges. Specifically, he asserts in his brief on appeal:

I. UNDER STATE V. RILEY, STATE V. BROWN AND STATE V. MERRITT, THE FACTUAL BASIS PROVIDED BY ROTH DID NOT SUPPORT HIS CONVICTION FOR ATTEMPTED BURGLARY WHILE ARMED WITH A DEADLY WEAPON.

II. THE FACTUAL BASIS PROVIDED BY ROTH DID NOT SUPPORT HIS CONVICTION FOR POSSESSION OF A WEAPON BY CERTAIN PERSONS NOT TO HAVE WEAPONS.

We reject these arguments and affirm.

In asserting that there was an insufficient factual basis for his plea of guilty on the attempted armed burglary, defendant acknowledges that his statements during the hearing were sufficient to establish that he had committed attempted burglary, but claims that what he then said did not establish that he attempted to commit a burglary while armed.

At the plea hearing on July 7, 2004, in addition to establishing the attempted burglary, defendant was also questioned regarding his possession of a knife. He acknowledged that he had "a small penknife in [his] pocket." The trial judge obtained a ruler, measured the blade, and stated for the record that

from the handle to the tip of the blade it's just about 7 inches. Now the blade itself is almost 3 inches. It's a, well, it's a curved switchblade type of knife. It folds. The blade is a little different. It's like a triangular blade with a serrated edge.

In response, defense counsel argued, and was not contradicted, that the knife's blade had to be manually opened and closed and that the judge incorrectly described it as a switchblade. This distinction is irrelevant to the questions posed on appeal.

Following this description of the knife, defendant provided the following testimony at the plea hearing:

Q. During the course of your attempt to enter the house, did that knife ever leave your pocket?

A. No.

Q. Did anyone ever see that knife displayed in any way?

A. No.

Q. When was the first time that knife came to anyone's attention?

A. When the police searched me.

Q. And that was about a block or two from the area?

A. Yeah.

At the conclusion of the plea hearing, and after the trial judge concluded that the plea was freely and voluntarily given, the judge and counsel discussed defendant's desire to preserve the right to argue on appeal that the facts acknowledged by defendant could not support a finding of attempted armed burglary because, although defendant was indisputably in possession of the knife described during the hearing, there was no acknowledgement that he had an intent to use it during the course of the burglary that he had attempted to commit. In responding to that argument, the trial judge observed that the possession of the knife in defendant's pocket was sufficient, equating the facts acknowledged by defendant with the terms of N.J.S.A. 2C:18-2(b)(2), stating:

[Y]ou're dealing with an attempted armed robbery. . . . You can't attempt to be armed. And by that I mean if you're an individual you're either armed or you're not armed. You can't attempt to be armed. In other words, if I have a knife and I have it in my hand, I've either got it or I don't. I can't attempt to be armed. That's not something you can attempt to do.

What you can attempt to do is the robbery. So the attempt modifier [in the statute] refers to the robbery portion, not the armed portion. That's my understanding of the law.

In urging a contrary view of the law, defendant relies upon the decisions of this court cited above. We reject his argument, concluding that the present matter is governed by State v. Clark, 352 N.J. Super. 130 (App. Div.), certif. denied, 174 N.J. 545 (2002), where we distinguished the authorities cited by defendant and concluded that the defendant's mere possession of a folding knife was sufficient to support his conviction for armed burglary. In Clark, we stated:

Defendant clearly admitted to possession of the knife. The obvious purpose of the Legislature in enacting the armed burglary provisions of N.J.S.A. 2C:18-2, i.e., "armed with . . . a deadly weapon," as a crime of higher degree than simple burglary was to deter the commission of burglaries while so armed in order to protect potential victims from greater risk of injury when an implement that could be used as a deadly weapon is involved. Viewed in that light, the statute manifestly establishes as an element the mere possession of such an implement during a burglary. On that basis, the holdings of Brown . . . and Riley . . . are distinguishable. We held in both Brown and Riley that the mere presence of a knife on the defendant's person, which was not used as a weapon, could not elevate a robbery from second degree to first degree because the purpose of the robbery grading distinction was to establish a difference where the weapon had been used to commit the crime. . . .

Here the presence of an item that could be used as a deadly weapon -- especially given defendant's admission that he carried it externally, on his belt, presumably for easy access -- satisfied the requirements of the armed burglary standard of N.J.S.A. 2C:18-2. See Merritt, supra, 247 N.J. Super. at 430, . . . ("opining that "a person who steals a weapon [during the burglary] may be found to have been armed, without showing that he actually used or intended to use the weapon, so long as he had immediate access to the weapon during the offense"). It is of no consequence, given the manifest purpose of the statute, that the article in question might also have innocent uses.

[State v. Clark, supra, 352 N.J. Super. at 138-39 (some citations omitted).]

We adhere to this rationale and, in rejecting the arguments contained in defendant's Point I, we conclude that the possession of a folding knife, even if that instrument might also have innocent uses, which was immediately accessible to the defendant during the course of his attempted burglary, was sufficient to fulfill the elements necessary for defendant's plea of guilt to attempted armed burglary.

 
In addition, after carefully examining the record on appeal, we find there is insufficient merit in defendant's Point II to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

306 N.J. Super. 141 (App. Div. 1997).

324 N.J. Super. 447 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000).

247 N.J. Super. 425 (App. Div. 1991).

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A-2594-04T4

October 4, 2006