STATE OF NEW JERSEY v. RONALD DEON LEGETTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5386-04T45386-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

RONALD DEON LEGETTE,

Defendant-Appellant/

Cross-Respondent.

___________________________________

 

Submitted October 31, 2006 - Decided December 1, 2006

Before Judges Skillman and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 03-07-0394.

Yvonne Smith Segars, Public Defender, attorney for appellant/cross-respondent (Robert Seelenfreund, Assistant Deputy Public Defender, of counsel and on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent/cross-appellant (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of burglary, in violation of N.J.S.A. 2C:18-2. Defendant filed a motion for a judgment of acquittal or, in the alternative, a new trial. The trial court concluded in an oral opinion that the evidence was insufficient to support defendant's conviction for burglary and therefore granted his motion for an acquittal of that charge. However, the court entered a judgment of conviction for the lesser included offense of criminal trespass, in violation of N.J.S.A. 2C:18-3, because the jury found every element of this offense and those findings were supported by the evidence. The court denied defendant's motion for a new trial regarding the charge of criminal trespass. The court sentenced defendant to an eighteen-month term of imprisonment, with nine months of parole ineligibility, for trespass.

Defendant appeals from the denial of his motion for a new trial. The State cross-appeals from the judgment of acquittal on the burglary charge.

We conclude that the evidence was sufficient to support defendant's conviction for burglary. Therefore, we reverse defendant's acquittal of that charge. Because the trial court did not address defendant's motion for new trial as applied to his conviction for burglary, we remand the case to the trial court to decide that motion, and if it is denied, to sentence defendant for burglary.

The burglary charge against defendant was based on a break-in of a vacant condominium apartment unit in Ocean City owned by Robert Cocozza, who also owns five other units in the condominium. Cocozza keeps the unit that was broken into vacant during the winter to show prospective summer tenants. He lowers the heat to 55 to save heating costs.

On January 18, 2003, two Ocean City police officers came to the vacant apartment unit in response to a tip that someone was living there. When they arrived, the police could see what looked like the flicker of a television set inside the apartment. The police knocked on the door and announced their presence. The occupant turned off the television. The police gained entry to the apartment through a bathroom window and found defendant lying face down on a bed on top of a crack pipe. After he got out of bed, defendant told the police: "[T]his is my boy's place." While inside the apartment, the police noted that it was heated to a regular room temperature. A search of the unit disclosed two duffel bags of clothing in a closet that the police claimed were defendant's size. Approximately forty-five minutes elapsed between the time when the police arrived at the condominium and when they found defendant inside and arrested him. Based on this evidence, the jury found defendant guilty of burglary.

I

Burglary is proscribed by N.J.S.A. 2C:18-2(a), which provides in pertinent part:

A person is guilty of burglary if, with purpose to commit an offense therein he:

(1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter; . . .

The case was presented to the jury on the theory that defendant surreptitiously entered Cocozza's condominium unit for the purpose of committing a theft of services, in violation of N.J.S.A. 2C:20-8, and/or unlawful possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10(a), and/or possession of drug paraphernalia, in violation of N.J.S.A. 2C:36-2.

In granting defendant's motion for an acquittal of the burglary charge, the trial court concluded that the evidence would not support a finding that defendant was in the apartment for longer than forty-three minutes. Based on this conclusion, the court also concluded that the evidence would not support a finding that defendant's purpose in entering the apartment was theft of services. In reaching this conclusion, the court stated:

Evaluating the asserted theft of services, however, within the context of the facts that are in that record, to the extent that there has been proven consumption, if you will, of utility services, television cable, heat, electricity, utilities, it's really 43 minutes maybe a little bit more, maybe a lot more.

. . . .

And then the argument that the defendant may have been in that unit seeking shelter. I consider the argument. The unit was rented at $1,050 per month, that includes $200 per month on account of heat. If you divide that $1,0050 per month by 30 days I know we're in January, but rounding off the number of days to 30 actually yields the ultimate quantum meruit result if you will favorable to the state.

If we divide the $1,050 monthly rent by the 30 days that's a market value which the owner sets at $35 per day, divided by 24 hours is $1.46 per hour times 43 minutes or .72 hours is $1.05.

So for the 43 minutes that this record establishes that this defendant was in that unit, whatever he was doing and he apparently had the television on, corresponds to a fair market value and a potential loss had the owner decided to rent the unit of $1.05.

. . . .

And so based on that analysis, it is difficult for this Court to conclude even affording the State the benefit of all inferences reasonably drawn from the evidence both direct and circumstantial that a jury could, a reasonable jury could fairly convict on this record.

The court also concluded that the evidence was insufficient to support a jury finding that defendant's purpose in entering the apartment was to possess a controlled dangerous substance or drug paraphernalia.

On appeal, the State argues that the evidence it presented was sufficient to support a jury finding that defendant's purpose in entering the apartment was to commit the offense of theft of services.

The offense of theft of services is proscribed by N.J.S.A. 2C:20-8, which provides in pertinent part:

A person is guilty of theft if he purposely obtains services which he knows are available only for compensation, by deception or threat, or by false token, slug, or other means, including but not limited to mechanical or electronic devices or through fraudulent statements, to avoid payment for the service. "Services" include . . . electric, . . . cable television, or other public services; accommodations in hotels, . . . or elsewhere. . . .

Proof of the theft of any amount of services will support a conviction under this provision. See State v. Stern, 197 N.J. Super. 49, 54 (App. Div. 1984).

The trial court erred in concluding that the State's proofs were insufficient to establish that defendant's purpose in entering Cocozza's condominium unit was to commit the offense of theft of services. Initially, we note that the State was not required to show that defendant actually committed this offense. "The projected offense need not be actually committed." State v. Jijon, 264 N.J. Super. 405, 407 (App. Div. 1993). The State only had to show that defendant's "purpose" in entering the premises was to commit a theft of services. See State v. Mangrella, 214 N.J. Super. 437, 441 (App. Div. 1986).

In any event, the State's proofs were sufficient to show that there was an actual theft of services. The State presented evidence that Cocozza's television was being operated when they approached the door of the apartment. This evidence would support the conclusion that defendant was guilty of a theft of both Cocozza's cable service and the electricity required to operate the television. In addition, the State presented evidence that the apartment was heated to a regular room temperature, even though Cocozza ordinarily maintained the temperature at 55 in the winter, which would support the conclusion that defendant was also guilty of theft of heating services. The amount of the theft of services is only relevant to the grading of the offense. N.J.S.A. 2C:20-2. Therefore, even if defendant only used a small amount of services, as the trial court found, this would not negate the commission of the offense. See State v. Stern, supra, 197 N.J. Super. at 54.

In arguing in support of the trial court's conclusion that the State's evidence did not support his conviction for burglary, defendant relies upon a quotation from the report of the New Jersey Criminal Law Revision Commission that criticizes "expansion of the law of burglary" and recommends "reforms" to restrict that expansion. II The New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission, cmt. 1 on 2C:18-2 at 209 (1971). The report contends that without such restrictions, "burglary law would visit its special severity inappropriately such as on a tramp who enters a deserted barn meaning to burn a plank for warmth[.]" Id. at 211. The specific proposed restriction referenced in this quotation is that the offense of burglary be limited to an unprivileged entry into a "building or occupied structure." I The New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission, 2C:18-2 at 209 (1971). However, by a 1980 amendment to the Code of Criminal Justice, L. 1980, c. 112, the Legislature "deleted the qualifying terms 'building or occupied' in describing the type of 'structure' that falls within the scope of" properties protected against unauthorized entry by this provision. State v. Scott, 169 N.J. 94, 100 (2001). Therefore, the part of the Code Commentary relied upon by defendant does not support his construction of N.J.S.A. 2C:18-2.

Accordingly, we reverse defendant's acquittal of burglary and reinstate that conviction.

II

We turn now to the trial court's denial of defendant's motion for a new trial. When the court ruled on this motion, it already had concluded that the evidence was insufficient to support a finding that defendant's purpose in entering Cocozza's apartment was the theft of services. Moreover, in concluding that defendant had not been prejudiced by the prosecutor's failure to disclose before trial that the police had lost the duffel bags discovered in the apartment, the court stated that this evidence was only relevant to the burglary charge, of which defendant had been acquitted:

To the extent that the clothing was generally described, however briefly as being similar in size to the defendant, that would have been relevant if to any element then being considered by the jury or ultimately charged to the jury, it would have been an intent to commit an offense component of the third degree burglary, the jury did convict if the Court granted the defense motion for acquittal which in my view cured any potential prejudice to the defendant.

Therefore, we do not know how the trial court would have ruled on defendant's motion for new trial if it had concluded that the evidence was sufficient to support defendant's conviction for burglary. For this reason, we believe that the case should be remanded to the trial court to reconsider defendant's motion for a new trial in light of the reinstatement of the burglary conviction.

Accordingly, we reverse the judgment acquitting defendant of burglary and remand the case to the trial court to reconsider defendant's motion for a new trial. If the court again denies this motion, it should sentence defendant for burglary. Jurisdiction is not retained.

 

Defendant does not dispute that the evidence was sufficient to establish that he entered the premises knowing that he was not permitted or privileged to do so.

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A-5386-04T4

December 1, 2006