STATE OF NEW JERSEY v. BRUCE E. LIGE

 
(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NOT FOR PUBLICATION WITHOUT THE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-0104-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRUCE E. LIGE,

Defendant-Appellant.

____________________________________________________

September 24, 2010

 

Submitted September 15, 2010 - Decided

 

Before Judges Cuff and Fisher.

 

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 07-05-0207.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Ernest Anemone, Designated Counsel, on the brief).

 

Dermot O'Grady, Acting Hunterdon County Prosecutor, attorney for respondent (Bennett A. Barlyn, Assistant Prosecutor, Chief, Appeals and Policy, of counsel and on the brief).

 

PER CURIAM

After being convicted by a jury of two counts of third-degree burglary and two counts of third-degree theft, the trial judge sentenced defendant to four concurrent nine-year extended terms of imprisonment. In this appeal, defendant argues: the judge's jury instructions were plainly erroneous; his trial counsel was ineffective in failing to move to suppress evidence; the sentence was excessive; and the evidence was inadequate to support his conviction. With the exception of the judge s imposition of multiple extended terms, we find no error and affirm.

The evidence adduced at trial reveals that in the early morning hours of December 7, 2006, two Franklin Township Police officers observed the movements of a Ford flatbed tow truck. One officer mentioned to the other that he found this a "weird" sight considering the truck was carrying two lawn tractors in the middle of the night in the winter; both officers were also aware of "a lot of burglaries of . . . snow plows, a lot of equipment" in the area. Consequently, the officers activated their overhead lights; the truck abruptly stopped and the driver exited and fled into the nearby woods. The officers were unable to apprehend the driver but found in the truck a substance suspected of being heroin, as well as a glove and a screwdriver, which they presumed were used to pop the ignition of the truck. The following morning, police recovered a cellphone, which had been found in the backyard of a home near where the truck stopped and the driver fled. According to one officer, the cellphone "was just laying in the backyard . . . [and] was still operating also."

That morning, a State Police detective was investigating the theft of two lawn tractors from Powerco, Inc., in Clinton. At that time, the detective also learned a Ford flatbed tow truck had also been stolen the night before from a neighboring business known as Auto Haas. Upon running the stolen truck's VIN number through a database used by law enforcement, the detective learned that Franklin Township police had run the plate number of the same truck. The detective consulted with the Franklin Township police and eventually retrieved the cellphone they obtained, tracing it back to defendant. The detective also visited defendant's residence and observed parked in the driveway a gray Chevrolet Blazer, which was registered to defendant's wife and Brian Shafer.1

A few weeks later, the detective obtained a statement from Shafer in which he acknowledged his and defendant's participation in the thefts from Powerco and Auto Haas. Shafer entered into a favorable plea agreement, which included his agreement to testify at defendant's trial. Defendant was indicted and, after a three-day trial, convicted of the four counts charged; he was sentenced to four concurrent nine-year extended terms.

In this appeal, defendant presents the following arguments:

I. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY ON A DIFFERENT FACTUAL SCENARIO FOR THE BURGLARY CHARGES THAN WHAT WAS CHARGED IN THE INDICTMENT.

 

II. TRIAL COUNSEL'S FAILURE TO MOVE FOR SUPPRESSION OF EVIDENCE DENIED DEFENDANT EFFECTIVE ASSISTANCE OF COUNSEL.

 

III. THE DEFENDANT'S SENTENCE IS EXCESSIVE.

 

A. THE SENTENCING COURT ERRED BY IMPOSING AN EXTENDED TERM ON MULT-IPLE COUNTS IN THE INDICTMENT.

 

B. THE SENTENCING COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITI-GATING CIRCUMSTANCES.

 

IV. THE STATE'S EVIDENCE WAS INSUFFICIENT TO SUPPORT THE GUILTY VERDICT.

 

We find insufficient merit in Point IV to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also reject the arguments contained in Points I and II for reasons more fully explored hereafter, but remand for resentencing in light of the erroneous imposition of multiple extended terms as asserted by defendant in his Point III.

I

In a nutshell, the two burglary counts in the indictment charged defendant with "knowingly enter[ing] the structure of Powerco Inc., 12 South Highway 173, Clinton," and with "knowingly enter[ing] the structure of Auto Haas, 10 South Highway 173, Clinton." The indictment does not refer to a specific structure or structures at those locations, but defendant never revealed any uncertainty about the charges brought against him, as demonstrated by his failure to seek a bill of particulars. R. 3:7-5.

Concerns about the scope of the facts charged in the indictment, however, were raised by defense counsel during the charge conference, when he questioned whether the judge's proposed charge met the requirements of N.J.S.A. 2C:18-1, which defines "structure,"2 or N.J.S.A. 2C:18-2, which sets forth the elements of a burglary.3 In challenging the judge's proposed use of the phrase "closed vehicle" in his jury instructions, defense counsel emphasized that "the essential element of burglary . . . is the surreptitious remaining or unlawful entry into an enclosed area . . ., [a]nd I think that the fact that a vehicle has an enclosure in it is an essential element, your Honor." The prosecutor did not object, so the judge acceded to defendant's request that the word "enclosed" rather than "closed" be used. Defendant was satisfied with this change and expressed no objection to any other aspect of the charge.

Now, in appealing his conviction, defendant takes a different tack and argues the jury instructions set forth "a different factual basis . . . than what was contained in the indictment," and, as a result, he was "ultimately deprived . . . of his right to be properly noticed of the charges." In support of this contention, defendant alludes only to the following portion of the judge's charge:

In order for you to find the defendant guilty of burglary, the State must prove beyond a reasonable doubt the following elements. The first element is that defen-dant entered the structure or structures, that is a backhoe, owned by Powerco, Inc., and/or a Ford flatbed tow truck owned by Marko Kelsey, doing business as Auto Haas. That is the first element.

 

[Emphasis added by defendant.]

 

We reject the argument that -- by identifying for the jury the structures defendant allegedly entered -- the judge permitted the jury to convict defendant of an offense not charged in the indictment.

Indictments need only contain a "written statement of the essential facts constituting the offense charged," and "must be examined 'in the light of the constitutional provisions, the rules of court and the decisions.'" State v. Browne, 86 N.J. Super. 217, 232 (App. Div. 1965) (quoting State v. Winne, 12 N.J. 152, 178 (1953)). An indictment must not "substantially mislead[] or misinform[]" the accused but must "adequately identify and explain the criminal offense to enable the accused to prepare a defense." State v. Wein, 80 N.J. 491, 497 (1979). However, as the Supreme Court has explained, these principles are "not applied rigidly," but are, instead, so "flexible" as to permit at times "a defendant to be found guilty of an offense not charged in the indictment." State v. Branch, 155 N.J. 317, 324 (1998); see also State v. LeFurge, 101 N.J. 404, 419 (1986); State v. Talley, 94 N.J. 385, 392 (1983).

Here, although the indictment was imprecise in defining the structures entered by defendant at the two separate locations -- the indictment identifies only the property owners and the addresses of their businesses and not any specific structure thereon or therein -- there was no legitimate confusion about what was being charged. Considering defendant never sought clarification of the indictment prior to trial and never argued to the trial judge that the structures referred to in the indictment were not those he identified in his charge, we are satisfied defendant well understood the nature of the charges and that he was not convicted of an offense not fairly encompassed by the indictment.4 As we have observed, defendant's trial counsel was concerned only with the manner in which the judge described the structures in question and not his identification of the vehicles as the structures that were allegedly unlawfully entered. Because defendant expressed no surprise with or objection to the description of the charged offenses in the jury instructions, there is no merit in the arguments contained in defendant's Point I.

II

Defendant also argues his trial counsel was ineffective because he failed to move for suppression of evidence obtained during what he claims was an "unlawful traffic stop" of the stolen truck. Defendant argues that suppression of the evidence obtained as a result of the stop would make it "virtually impossible for the State to prove its case" and thus counsel's failure to move for suppression denied him the effective assistance of counsel guaranteed by the Sixth Amendment. Defendant, however, has not identified the evidence he believed would have been suppressed had such a motion been made; indeed, the truly incriminating evidence utilized by the State at trial, such as Shafer's testimony, did not emanate from the vehicle stop. As a result, defendant has failed to establish that his attorney's acts or omissions had a prejudicial effect on the judgment, as required by the second prong of the Strickland/Fritz test.5

And, although not necessary to our disposition of this aspect of the appeal, we find insufficient merit in defendant's argument that the motor vehicle stop was constitutionally infirm. "'A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed.'" State v. Amelio, 197 N.J. 207, 211 (2008) (quoting State v. Carty, 170 N.J. 632, 639-40, mod. on other grds., 174 N.J. 351 (2002)). This standard requires less than probable cause but "some minimal level of objective justification for making the stop." Id. at 212 (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). The legality of an investigatory stop founded on reasonable suspicion rather than probable cause is evaluated "by balancing the need for the stop against the invasion it entails." State v. Pitcher, 379 N.J. Super. 308, 314 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). Our Supreme Court has held that the "articulable reasons" or "particularized suspicion" required for an investigatory stop must be based upon an "objective observation" that the person to be detained has been engaged or is about to engage in criminal wrongdoing; in further explaining this requirement, the Court has held:

The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

 

[Nishina, supra, 175 N.J. at 511 (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]

 

The sight of a tow truck carrying lawnmowing equipment in the middle of the night in December was sufficiently unusual to arouse suspicions. In addition, the officers were aware of thefts of similar equipment in the area. All this justified the officers' decision to attempt to effectuate an investigatory stop by turning on the overhead lights of their vehicles. Before the officers could proceed further, the driver fled the scene, thereby enhancing the officers' already reasonable suspicions. See State v. Pineiro, 181 N.J. 13, 26 (2004) (recognizing that although "flight alone does not create reasonable suspicion for a stay" it may be relevant when "in combination with other circumstances"). Considering the totality of these circumstances, the officers possessed an articulable and reasonable suspicion that defendant may have been transporting stolen lawn equipment, thereby justifying the investigatory stop.

III

Defendant argues in Point III that the sentence imposed was excessive. We find insufficient merit in defendant's argument that the judge's balancing of aggravating and mitigating factors was erroneous to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we do agree, as the State concedes, that the judge erroneously imposed multiple extended terms of imprisonment.

The judgment of conviction unambiguously states that defendant was sentenced to "an extended term of nine years . . . on each count" (emphasis added). N.J.S.A. 2C:44-5(a)(2) declares that "[w]hen multiple sentences of imprisonment are imposed on a defendant for more than one offense . . . [n]ot more than one sentence for an extended term shall be imposed." See also State v. Vassos, 237 N.J. Super. 585, 588 (App. Div. 1990). Because the sentence ran afoul of these limitations, we remand for the imposition of a sentence that contains no more than one extended term.

Affirmed in all respects except we remand for resentencing in light of the erroneous imposition of multiple extended terms. We do not retain jurisdiction.

1The detective also determined the last call made on the found cellphone was to Shafer.

2For purposes of determining whether a burglary has been committed, "structure" is defined in N.J.S.A. 2C:18-1, as is relevant to this matter, as "any building, room, ship, vessel, car, vehicle or airplane."

3A person is guilty of burglary, as relevant to the matter at hand, "if, with purpose to commit an offense therein or thereon he: (1) [e]nters 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) [s]urreptitiously 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." N.J.S.A. 2C:18-2(a).

4Although defendant emphasized the phrase "and/or" when quoting what he viewed was the critically erroneous portion of the judge's charge, he has not argued the jury was confused by the use of that ambiguous phrase or that, as a result of its use, he may have been convicted of burglarizing Powerco based only on a jury's findings that he unlawfully entered a structure on the property of Auto Haas, or vice versa. See, e.g., Fisher v. Healy's Special Tours, Inc., 121 N.J.L. 198, 199 (E. & A. 1938) (criticizing the use of "and/or" in a pleading). Because that argument has not been made, we need not consider further this aspect of the jury charge. State v. Robinson, 200 N.J. 1, 20 (2009).

5Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).