STATE OF NEW JERSEY IN THE INTEREST OF K.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4978-08T4

STATE OF NEW JERSEY IN THE

INTEREST OF K.D., a Juvenile.

________________________________

September 16, 2010

Submitted July 20, 2010 - Decided

Before Judges Gilroy and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-19-1419-09.

Yvonne Smith Segars, Public Defender, attorney for appellant K.D. (Ingrid A. Enriquez, Designated Counsel, on the brief).

LuisA. Valentin, Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Assistant Prosecutor, of counsel; Ian D. Brater, Assistant Prosecutor, on the brief).

PER CURIAM

K.D., a juvenile, appeals from an adjudication of delinquency for committing acts which, if committed by an adult, would have constituted one count of third-degree burglary, N.J.S.A. 2C:18-2(a)(1), and one count of third-degree criminal mischief, N.J.S.A. 2C:16-3. The court imposed a one-year period of probation and DNA testing, together with the appropriate fines and penalties.

On appeal, K.D. presents the following arguments:

POINT I

THERE WAS INSUFFICIENT EVIDENCE IN THE TRIAL RECORD TO SUPPORT THE ADJUDICATION OF DELINQUENCY ON THE BURGLARY COUNT.

POINT II

THE COURT IMPROPERLY FAILED TO ADDRESS THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS[,] DEPRIVING THE JUVENILE OF A FAIR TRIAL.

The State presented the testimony of four witnesses: the two victims and the two police officers involved with the investigation. The defense produced no witnesses. The facts upon which the juvenile delinquency adjudication was based are as follows. On November 9, 2008, after being called by a homeowner who believed her home had been burglarized, police found K.D. on the premises. When police arrived, they found K.D. in the pantry located at the rear of the home. Once apprehended, the arresting officer described K.D. as calm and cooperative. K.D. told the officer that he had entered the home because he was being chased by four men who wanted to rob him. He explained that he had been at the train station waiting for a friend when he was approached by the men, whom he talked to for about fifteen minutes before they told him they were going to rob him. The officer observed that there was a broken Plexiglas window on the door leading onto the rear porch of the house. Outside of the home, police observed a rear cellar door that appeared to have been struck with a red brick, and the smashed windshield of a car parked on the property.

In adjudicating K.D. a delinquent, the court determined the State's witnesses credible and rejected the defense's theory of the case. Accordingly, the court adjudicated K.D. a delinquent.

A person commits burglary "if, with purpose to commit an offense therein he: (1) [e]nters a . . . structure, or a separately secured or occupied portion thereof . . . or (2) Surreptitiously remains in a . . . 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. K.D. contends the court improperly used the actual act to gain entry into the dwelling, breaking the window, to find the State proved the element of "purposeful" beyond a reasonable doubt. The State concedes in its brief "that the act of breaking a window to gain entry to a structure cannot also qualify as the unlawful act committed inside the structure which proves the 'unlawful purpose' element of burglary." The State also "concedes that portions of the trial court's decision suggest the judge might have erred in blurring the elements in this regard." The State urges however, that the proper remedy is not a reversal of K.D.'s adjudication but a remand to the trial court to make new findings of fact and conclusions of law. State ex rel. L.W., 333 N.J. Super. 492, 498-99 (App. Div. 2000). We agree.

In this record, the court, based upon the evidence presented and the court's assessment of the witnesses specifically found that K.D. was in the house and had not been given permission to be in the house. The court considered the "lateness of the hour." The court also considered the defense's theory that K.D. was attempting to get away from four males who had accosted him and, in that regard, discussed the route K.D. purportedly traveled. The court noted that along that route were businesses and "[a]t least one of the businesses in there would have been open at that hour, to wit, Clancy's." The court then questioned, "Why, if he was being pursued, he didn t go into there is a question in the [c]ourt's mind." The court also reviewed a photograph of the rear area of the victim's home and stated:

But looking at [the photograph], the juvenile was already in the house after pushing through the [P]lexiglas[] frame [sic], frame door. And this, under the statute, would seem to this [c]ourt to be part of the separately secured structure of the home. It is not a detached garage or anything like that.

Based upon this observation, the court reasoned that "[i]t would seem to me that if he were seeking refuge from these individuals, who he admitted [to police at the time of his apprehension] didn't chase him back there, he could have hidden underneath the table, over which was draped some sort of tablecloth." In continuing his analysis, the court stated:

The fact that he broke a window and continued to go into the room really casts doubt upon the fact whether he was seeking refuge in this building.

Also casting doubt on that is the fact that regardless of whether he took [Highway] 33 all the way to the house, or whether he ducked down a side street and came out again, there were many, many houses, in addition to the businesses, there were many house[s] in between 1 324 Highway 33 and the West Grove Shopping Center.

These findings are sufficient for the court to infer that defendant's purpose for being in the victim's home was to commit an offense. It is, however, unclear whether the court found the "purposeful" element from these facts alone, in combination with the broken Plexiglas window, or solely from the broken Plexiglas window. Moreover, based upon the court's characterization of the property as depicted in the photograph admitted into evidence, it appears that the court found that K.D. was already in part of the house when he broke the Plexiglas window, and if that is the fact the court found, then this would negate the finding that the court relied upon the act of gaining unlawful entry into the premises by breaking the window to establish the element of purposefulness.

In view of the need for clarification of the court's findings, without retaining jurisdiction, we vacate the adjudication and remand for findings of fact and conclusions of law. Since we do not find the evidence is insufficient to sustain the adjudication, there are no jeopardy consequences precluding such a remand. State ex rel. L.W., 333 N.J. Super. 492, 499 (App. Div. 2000) (citing State v. Smith, 253 N.J. Super. 145, 149 (App. Div. 1992)).

In light of our decision K.D.'s second argument is moot as the trial court is free to consider the lesser-included offense on remand. Ibid.

The judgment of the Family Part is vacated and the matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.