STATE OF NEW JERSEY v. BEN PERRY

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4503-07T44503-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

BEN PERRY,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 11, 2009 - Decided

Before Judges Carchman and R. B.

Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Hudson

County, Indictment No. 07-09-1427.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Glenn D.

Kassman, Designated Counsel, of

counsel and on the brief).

Edward J. DeFazio, Hudson County

Prosecutor, attorney for respondent

(Nicole M. Ghezzar, Assistant

Prosecutor, on the brief).

PER CURIAM

Following a bench trial, defendant Ben Perry was found guilty of one count of third-degree burglary, N.J.S.A. 2C:18-2. The judge denied the State's motion for an extended term and sentenced defendant to a prison term of five years with a two and one-half year period of parole ineligibility together with statutory penalties and fines. Defendant appeals, and we affirm.

The facts are not in significant dispute. On April 29, 2007, at approximately 10:45 p.m., Officers Jenny Ramos and Fred Cintron of the Jersey City Police Department were dispatched to 191 Myrtle Avenue (hereinafter "the building"), in Jersey City on a report of a burglary in progress. When Ramos and Cintron arrived at the address, two other officers, Jason Field and Glen Rosario, were already on the scene. Because the officers heard a banging noise coming from the rear of the building and noted an open door that led to the basement, they walked in the direction of the noise and began a search of the building.

When Ramos, Field and Cintron entered the building there were no lights on, so the officers were forced to use their flashlights. Splitting up, the police searched the building floor by floor, from the basement, upwards. As Ramos turned the corner on the second or third floor, she heard a banging noise coming from one of the rooms, encountered an individual, later identified as defendant, and ordered him to put his hands up. As he placed his hands in the air, defendant dropped a checkered bag he had been carrying. As it struck the ground, the bag made a loud clanking noise, like metal hitting the floor. Cintron entered the room and placed defendant under arrest. The bag defendant dropped contained tools and approximately fifteen pieces of copper pipe.

James Nouri purchased the building in June of 2006. The building is a three-story brick structure with six apartments, two on each floor. There are two entrances to the building a front door and a basement door on the left side. During the period in which Nouri owned the building, it was vandalized on three occasions. On one of those occasions, the vandals used a sledgehammer to break up the walls, and pliers and snips to pull pipes from the walls and cut them. Nouri was engaged in the ongoing process of renovating and marketing the building for sale. The windows were glass with only one boarded-up window, but the electricity had been shut off. Even in the absence of electricity, Nouri and his contractors continued to work in the interior of the building.

When defendant entered the building, he was engaged in "scrapping." He went in to collect copper piping or any other scraps that he might be able to redeem for cash. Although defendant had never entered the building before April 29, 2007, he allegedly had seen homeless people going in and out of there during November and December of the prior year. Some of these people had items in their hands, such as metal pipes that could be taken to the scrap yard for cash. Although defendant brought tools into the building, he claimed he did not use the tools because the remaining pipes in the building were loose in the walls, so defendant was able to pull them out with his hands. After hearing the testimony, the judge found that defendant was in the building for the purpose of burglary.

On appeal, defendant asserts:

POINT I

BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT'S PURPOSE IN ENTERING THE BUILDING WAS TO COMMIT AN OFFENSE, HIS CONVICTION FOR BURGLARY SHOULD BE REVERSED.

POINT II

BECAUSE THE TRIAL COURT MADE IMPROPER INFERENCES ABOUT DEFENDANT'S GUILT FROM HIS CRIMINAL HISTORY, DEFENDANT'S CONVICTION SHOULD BE REVERSED.

POINT III

BECAUSE BY IMPOSING A TWO AND ONE HALF YEAR PERIOD OF PAROLE DISQUALIFICATION FOR WHAT IS NO MORE THAN A "TECHNICAL BURGLARY" IN THE THIRD DEGREE, THE COURT CREATED A MANIFEST INJUSTICE, DEFENDANT'S SENTENCE SHOULD BE VACATED AND THE MATTER REMANDED FOR RESENTENCING.

We have carefully reviewed the briefs and record in this matter and conclude that defendant's arguments are without merit. R. 2:11-3(e)(2). We add the following comments. "Appellate review of a judge's decision in a criminal trial is limited to 'determin[ing] whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' given the burden of proof, which is proof beyond a reasonable doubt." State v. Castagna, 387 N.J. Super. 598, 604 (App. Div.) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)), certif. denied, 188 N.J. 577 (2006). We shall not "'engage in an independent assessment of the evidence as if [we] were the court of first instance.'" State v. Morgan, 393 N.J. Super. 411, 422 (App. Div. 2007) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We shall give deference to the trial court's findings which "'are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.'" Ibid. (quoting Locurto, supra, 157 N.J. at 474).

The primary argument raised by defendant is that he believed the building to be abandoned, relying on our decision in State v. Crutcher, 313 N.J. Super. 203 (App. Div. 1998). In Crutcher, the defendant appealed "from a conviction of criminal trespass, N.J.S.A. 2C:18-3, a lesser-included offense of the original charge of burglary." Id. at 204. The defendant was arrested after an officer had found him sleeping in a "two-floor single family dwelling with a basement" that had the front door pried open and the scissor gate behind the door was pulled apart. Id. at 204-05. The building had not been occupied for "nearly a year." Id. at 205. The defendant testified that he was homeless, that he had used the building as shelter without the permission of the owner for over a month and that he entered through the front door which was unlocked. Id. at 206. The defendant also stated that the scissor gate on the inside did not have padlocks on it. The defendant stated that prior to his arrest, he had "slept six or seven nights in the house, and that, during such time, he had not taken anything from the house, nor did he do anything to damage the house physically." Ibid. The defendant claims that on the night he was arrested, he entered the building carrying only his food and a flashlight and after falling asleep was awakened by a police dog and the arresting officer.

On appeal, the defendant argued that the building "was not a 'dwelling,' within the meaning of N.J.S.A. 2C:18-3a" and that the State failed to establish this beyond a reasonable doubt. Id. at 206-07. We reversed the conviction, finding:

As noted earlier, the owner of 258 Duncan Avenue testified that at the time of defendant's arrest, the building had been unoccupied for nearly a year. Not only was the building vacant at the time of defendant's arrest, the house was essentially uninhabitable. There was no electricity or other utilities, including running water. The house in this case should not have been considered a dwelling for the fourth-degree criminal trespass charge. The structure lost its character as a dwelling when it sat vacant for a substantial period.

Because the jury was not properly charged concerning the definition of a "dwelling," and because defendant was correct in his assertion that the record provided insufficient support for the jury's finding that the house was a dwelling, his conviction could not have been for a fourth-degree crime. The conviction should have been for the disorderly persons offense of criminal trespass.

[Id. at 211.]

Our holding in Crutcher is distinguishable from the case at bar. Under N.J.S.A. 2C:18-2(a):

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; or

(2) Surreptitiously remains in a research facility, structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so.

[(Emphasis added).]

A structure within this section "means any building, room, ship, vessel, car, vehicle or airplane, and also means any place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present." N.J.S.A. 2C:18-1. In Crutcher, the defendant was convicted of criminal trespass under N.J.S.A. 2C:18-3(a), which states:

Unlicensed entry of structures. A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any research facility, structure, or separately secured or occupied portion thereof. An offense under this subsection is a crime of the fourth degree if it is committed in a school or on school property. The offense is a crime of the fourth degree if it is committed in a dwelling. An offense under this section is a crime of the fourth degree if it is committed in a research facility, power generation facility, waste treatment facility, public sewage facility, water treatment facility, public water facility, nuclear electric generating plant or any facility which stores, generates or handles any hazardous chemical or chemical compounds. Otherwise it is a disorderly persons offense.

Furthermore, N.J.S.A. 2C:18-3(d) provides for an affirmative defense to prosecution if the structure involved "was abandoned." There is no such affirmative defense under the burglary statute, N.J.S.A. 2C:18-2, and "dwelling" is not an element of the offense. Whether defendant thought the building was abandoned is of no import; Crutcher is inapplicable to this case.

Judge Kracov found that, "[t]he building appeared, according to the officers, [to be] under renovation. The rooms were intact except for the damage [sic] areas where the pipes were located. The testimony shows that Perry had just used his tools to remove the copper piping from the walls of the building." The proofs further support the findings that this building was under renovation and being actively marketed by the owners. Clearly, the evidence supports the judge's findings that the building was not abandoned. Notwithstanding defendant's argument that abandonment would be a defense to the burglary offense, the judge's finding negates any further consideration of that issue.

Additionally, defendant argues that the judge improperly considered defendant's criminal record in his findings. Although the judge did make some brief reference to defendant's prior criminal history, we deem such remarks to be harmless. The critical proofs in this matter were not in serious dispute, and the fleeting reference to defendant's criminal record was not linked to the ultimate finding of guilty made by the trial judge; moreover, the evidence was overwhelming as to defendant's purpose for being in the building.

Finally, we find no error in the sentence imposed. Defendant had an extensive criminal history that well supported the sentence. Judge Kracov carefully weighed the aggravating factors, found no mitigating factors and imposed an appropriate sentence. State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)). We find no basis for our intervention.

Affirmed.

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A-4503-07T4

June 8, 2009