STATE OF NEW JERSEY v. TROY VALENTINE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5236-07T35236-07T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TROY VALENTINE,

Defendant-Appellant.

______________________________

Telephonically argued August 11, 2010 - Decided August 27, 2010

Before Judges Sabatino and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-07-0955.

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

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Troy Valentine appeals his conviction of third-degree attempted burglary, N.J.S.A. 2C:18-3a, following a jury trial. Because the trial court omitted important facets from the jury charge, which could have affected the jurors' finding of defendant's guilt of that particular offense, we vacate the conviction and remand for a new trial.

I.

According to the State's proofs, at around 6:30 a.m. on March 5, 2007, Eleanor Williams saw a person turning the doorknob to Tamilla Chapman's apartment in Paterson and then saw that person "fidgeting at the window" of Chapman's residence. After receiving a phone call alerting her to the situation, Chapman checked her window and saw defendant who lived with his fiancée and children in the same neighborhood just outside. Chapman stated that she saw defendant hanging on the window and pulling the caulking from around the windowpane. The screen had been removed from the window and was on the ground. The windowpane was "hanging off." Chapman "started banging on the window" to tell defendant to get away. Defendant then went next door to his own residence. Chapman called the police, who came and arrested defendant. He was charged in a single-count indictment with attempted burglary.

Defendant testified at trial that he had been having an affair with Chapman, but ended it that morning. Defendant alleged that Chapman threatened to "have something done to [him]" if he broke off the affair with her. He claimed that Williams saw him leaving Chapman's apartment, and he tried to hide because he thought Williams was his fiancée's sister. He denied causing any damage to the window or window frame.

The jury found defendant guilty of third-degree attempted burglary. The court sentenced defendant to a four year term, with an eighteen month period of parole ineligibility.

On appeal, defendant raises the following points for our consideration:

POINT I

STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM.

POINT II

THE TRIAL COURT ERRED IN FAILING TO CHARGE THE LESSER INCLUDED OFFENSE OF CRIMINAL MISCHIEF AS AN ALTERNATIVE TO THE CHARGE OF ATTEMPTED BURGLARY WARRANTING A REVERSAL OF THE CONVICTION.

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT[']S ERRONEOUS, PREJUDICIAL AND INCOMPLETE INSTRUCTION TO THE JURORS ON THE LAW OF ATTEMPTED BURGLARY. (Not Raised Below)

A. The Court Erred In Its Jury Instruction Where It Failed To Explain The "Offense" Element In The Burglary Charge.

POINT IV

NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

POINT V

THE TRIAL JUDGE ABUSED HIS DISCRETION IN IMPOSING AN EXCESSIVE SENTENCE BY FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

II.

We turn first to the pivotal issues respecting the jury charge. Defendant argues that the charge was seriously flawed in several respects. Among other things, he contends that the trial court should have charged defendant with one or more lesser included offenses to burglary. He also contends that the court erred in failing to specify, when describing the elements of burglary, the particular offense or offenses that defendant supposedly had a purpose to commit when attempting to enter the premises. Defendant further asserts that the trial court inadequately defined the concept of criminal attempt for the jury, and failed to explain that attempt requires proof of a "substantial step" by a defendant to effectuate the underlying crime. Because these various alleged omissions have intertwined legal significance, we shall discuss them in tandem.

At the outset we recognize that "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (internal citation omitted) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). In assessing such instructions, an appellate court should examine the charge as a whole in evaluating whether it was inadequate or misinformed the jury of the applicable law. State v. R.B., 183 N.J. 308, 325 (2005); State v. Hipplewith, 33 N.J. 300, 317 (1960).

We are mindful that defendant's trial counsel did not object to the aspects of the charge that are now criticized on appeal. In fact, trial counsel specifically declined the trial judge's invitation during the charge conference to consider charging any lesser-included offenses. Nevertheless, defendant's entitlement to a proper charge has not been waived, and we are obligated to give careful consideration to the alleged omissions on appeal despite the lack of objection below. The trial court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004). "Erroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "inadequate to guide the jury in the course its deliberation should take[,]" the conviction is to be reversed. Id. at 290. Moreover, "because clear and correct jury instructions are fundamental to a fair trial, erroneous instructions in a criminal case are 'poor candidates for rehabilitation under the plain error theory.'" State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)); see also State v. Walker, ____ N.J. ____, ____ (2010) (slip op. at 20-21).

As to the substantive elements of the burglary offense, the jury instructions that were issued in this case largely tracked the model charge for third-degree burglary. See Model Jury Charge (Criminal), "Burglary in the Third Degree" (1997). The use of model jury charges is "recommended as a method, albeit not perfect, for avoiding error." Pressler, Current N.J. Court Rules, comment 8.1 to R. 1:8-7 (2010); see also State v. Pleasant, 313 N.J. Super. 325, 333-35 (App. Div. 1998), aff'd o.b., 158 N.J. 149, 150 (1999). Even so, at times "it may be necessary for the court to adapt the model jury charge to the facts in evidence, and failure to do so will constitute error." Pressler, supra, comment 8.1 to R. 1:8-7.

As the model charge reflects, the offense of burglary under N.J.S.A. 2C:18-2 requires proof beyond a reasonable doubt of the following elements: (1) defendant entered a structure or research facility; (2) without permission; and (3) with the purpose to commit an offense therein. N.J.S.A. 2C:18-2a; see also State v. Pyron, 202 N.J. Super. 502, 504 (App. Div. 1985). Burglary is a third-degree offense, unless it is upgraded to a second-degree offense for reasons that are not germane here, including the possession of a deadly weapon or explosives, or the actual, attempted, or threatened infliction of bodily injury upon another person. N.J.S.A. 2C:18-2b.

The crime of burglary is complete upon a defendant's unauthorized entry into the premises with the requisite criminal purpose. State v. Mangrella, 214 N.J. Super. 437, 441 (App. Div. 1986), certif. denied, 107 N.J. 127 (1987); Pyron, supra, 202 N.J. Super. at 504. It is unnecessary for the State to prove that "the offense the intruder intended to commit actually took place." State v. Robinson, 289 N.J. Super. 447, 453 (App. Div.), certif. denied, 146 N.J. 497 (1996).

Because defendant was outside the apartment building at Chapman's window, and allegedly trying to gain entry, when he was spotted by Williams, the State charged him with attempted burglary rather than with a completed burglary. A criminal attempt is defined in several alternative ways in N.J.S.A. 2C:5-1a. The pertinent concept of attempt for this case is set forth in N.J.S.A. 2C:5-1a(3), which states that a person is guilty of an attempt to commit a crime if, "under the circumstances as a reasonable person would believe them to be," he "[p]urposely does or omits to do anything which . . . is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." N.J.S.A. 2C:5-1a(3); see also State v. Condon, 391 N.J. Super. 609, 615 (App. Div.), certif. denied, 192 N.J. 74 (2007).

Burglary is distinguishable from the less severe offense of criminal trespass. Under N.J.S.A. 2C:18-3a, a defendant is guilty of criminal trespass if he: (1) "enters or surreptitiously remains in[;]" (2) a "research facility, structure, or separately secured or occupied portion thereof[;]" (3) "knowing that he is not licensed or privileged to do so[.]" N.J.S.A. 2C:18-3a; see also State v. Braxton, 330 N.J. Super. 561, 567 (App. Div. 2000). Criminal trespass is a fourth-degree offense if it is committed in a dwelling or in certain other structures enumerated in the statute; otherwise it is a disorderly persons offense. N.J.S.A. 2C:18-3a.

An attempt to commit a criminal trespass in a dwelling is likewise a fourth-degree offense; however, attempted criminal trespass cannot be charged when a defendant has tried to unlawfully enter structures that are not dwellings or are not otherwise specifically listed in N.J.S.A. 2C:18-3a. State v. Clarke, 198 N.J. Super. 219, 225 (App. Div. 1985). That limitation arises from the fact that "[a]n attempt to commit a disorderly persons offense is not itself an offense." Clarke, supra, 198 N.J. Super. at 225.

Criminal trespass is commonly regarded as a lesser-included offense to burglary. Id. at 225-26. The key difference is the greater crime's requirement that a defendant act with the purpose to commit an unlawful act once he is inside the structure. Ibid. Compare N.J.S.A. 2C:18-2a with N.J.S.A. 2C:18-3a.

In appropriate circumstances, the crime of criminal mischief also can serve as a lesser-included offense to burglary. Clarke, supra, 198 N.J. Super. at 226. As defined in the Criminal Code, criminal mischief occurs where a defendant "[p]urposely, knowingly or recklessly tampers with tangible property of another so as to endanger a person or property." N.J.S.A. 2C:17-3a(2); see also State v. Interest of M.N., 267 N.J. Super. 482, 493 (App. Div. 1993). Criminal mischief is graded as either a third-degree, fourth-degree, or disorderly persons offense, depending upon the presence or absence of certain factors, including the extent of pecuniary loss caused. See N.J.S.A. 2C:17-3b. Here, the damage, or attempted damage, to Chapman's window was not financially quantified at trial. We suspect that the damage was under $2000 the third-degree threshold so that the criminal mischief, if charged to the jury and proven, would comprise either a fourth-degree or a disorderly persons offense. Ibid.

Having delineated the respective legal elements of burglary, attempt, criminal trespass, and criminal mischief, we now examine the alleged critical omissions from the jury charge relating to those offenses. As we do so, we emphasize our recognition that none of those omissions was brought to the trial judge's attention by defense counsel, but also our obligation as an appellate tribunal to ensure that jurors receive "accurate instructions on the law . . . irrespective of the particular language suggested by either party." Reddish, supra, 181 N.J. at 613.

Defendant maintains that the trial court erred within the burglary charge in not identifying and legally defining for the jurors a particular substantive offense that he was allegedly seeking to commit within the apartment building. In fact, the prosecutor repeatedly stated to the jurors during her summation that she was not obligated to specify or prove any particular crime that defendant supposedly wanted to commit within the building. Instead, she intimated to the jurors that any offense or unlawful purpose they might conceive would suffice, and that the "sole question before [them was] whether or not [defendant] was trying to break into [the] apartment."

The jury charge issued in this case did not define the kinds of "unlawful acts" that could qualify under the burglary statute. Nor did the charge identify any particular substantive offenses that could potentially apply to the facts here. During his own summation, defendant's trial attorney obliquely suggested that the State's theory was that defendant had been trying to enter the premises to commit a theft. However, the court did not define the meaning, or the legal elements, of a theft for the jurors.

The model charge for burglary addresses this problem with the following language:

"Purpose to commit an offense" means that the defendant intended to commit an unlawful act inside the (structure)(research facility). [WHERE APPLICABLE CHARGE: The unlawful act(s) allegedly intended are set forth in count(s) ___ of this indictment.]

[Model Jury Charge (Criminal), supra, at 2.]

In a footnote to this language, the judge is referred to Robinson, supra, an opinion which addressed at length the necessity for specifying the burglar's intended unlawful act. See Robinson, supra, 289 N.J. Super. at 458. The footnote instructs the trial judge to, in essence, "fill in the blank" with a specified additional offense only where "the evidence suggests both criminal and non-criminal purposes for the [burglar's] entry." Model Jury Charge (Criminal), supra, at 2 n.4. As the bracketed text in the model charge indicates, the blank may readily be filled in many instances with a post-entry substantive offense charged in another count in the indictment.

In Robinson, the defendant was apprehended after he was seen climbing through the window of a private residence. Robinson, supra, N.J. Super. at 450. The house was occupied by two sleeping women, neither of whom had given the defendant permission to enter. Arriving on the scene because of a neighbor's report of suspicious activity, police spotted the defendant hanging out of a first floor window. When alerted to the police presence, the defendant dropped down and ran from the premises, tossing a screwdriver away as he fled. Id. at 450-51. Police thereafter found pry marks on the window from which the defendant had been seen hanging. The defendant was charged with a completed burglary. Id. at 451.

At trial, the defendant claimed that police had arrested him in error, and that he had been misidentified as the person who had been in the window. Ibid. The defendant did not advance a non-criminal purpose for his alleged presence at the scene. The trial court provided a jury charge that listed the elements of burglary, but which did not specify any offenses that the defendant may have intended to commit while he was on the premises. Id. at 451-52. The jury found the defendant guilty of burglary, and he appealed. Id. at 449.

On appeal, we held that it was unnecessary in the context of that particular case for the trial judge to specify an intended post-entry offense within the burglary charge. Id. at 454-55. However, we also noted that jurors must be given guidance in this respect when a "defendant's purpose in entering [is] unclear and therefore reasonably capable of two interpretations, one criminal and one non-criminal[.]" Id. at 457. On the other hand:

where the circumstances surrounding the unlawful entry do not give rise to any ambiguity or uncertainty as to a defendant's purpose in entering a structure without privilege to do so, so long as those circumstances lead inevitably and reasonably to the conclusion that some unlawful act is intended to be committed inside the structure, then specific instructions delineating the precise unlawful acts intended are unnecessary.

[Id. at 458.]

Because the defendant's position at trial in Robinson was that he was not present at the intrusion, we held that there was no need for explication of an intended post-entry offense within the jury charge on burglary. Id. at 455. The jury was presented with "no reasonable basis" upon which to find that the defendant was intending to engage in only lawful activity once he got inside. Ibid. Thus, "given the unequivocal nature of [the defendant's] conduct as suggesting only a criminal purpose," the extra language within the burglary charge did not have to be read, and it was not reversible error to omit that language. Ibid.

Here, the proofs are not so cut and dried. Unlike the accused burglar in Robinson, defendant's purpose in entering, or in attempting to enter, another's dwelling was "unclear." Id. at 457. Defendant affirmatively put forth in his testimony a non-criminal purpose for being on the premises: to meet with Chapman, with whom he claims to have been having an ongoing affair. He testified that he hid in the bushes when he saw a woman whom he thought was his girlfriend's sister approaching, out of fear that she would recognize him and divulge his activities to her sibling.

We are mindful that Chapman denied the affair and also denied meeting with defendant that morning in her apartment. Even so, the credibility of defendant's sworn testimony, and his asserted non-criminal purpose for his presence by the window, was for the jury to evaluate, guided by appropriate instructions on the substantive law. In short, this is the kind of "ambiguous" case described in Robinson, one where it is incumbent upon the court to specify the intended post-entry offense or offenses that, in effect, convert a criminal trespass into a burglary.

As we have noted, the State did not posit, and the jury charge did not specify, any particular post-entry offense or unlawful act that defendant was hoping to commit inside the building. The proofs in the record, as they developed at trial, do not manifestly suggest the intended post-entry illegal acts. It is conceivable that defendant was there to commit a theft. It is also conceivable that defendant was there to harass Chapman, or perhaps have a forcible sexual or violent encounter with her. We appreciate that, because defendant was charged with an attempted burglary rather than a completed one, it is more difficult to pinpoint the post-entry illegality that he intended to commit. Nonetheless, the principles of Robinson, which are echoed in the notes to the Model Jury Charge, required specification of such an offense in the jury instructions, given defendant's testimony that he was on the premises for a specific non-criminal purpose. In the absence of such instruction in this case, the jury was improperly allowed to speculate about defendant's supposedly illegal intentions.

The prejudice flowing from this omission was compounded by the absence of any lesser-included offenses in the jury charge. The rationale for charging lesser-included offenses is to guard against the prospect that "a jury reluctant to acquit defendant might compromise on a verdict of guilt on the greater offense." State v. Sloane, 111 N.J. 293, 299 (1988). "Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 1998, 36 L. Ed. 2d 844, 850 (1973) (emphasis in original); see also State v. Jenkins, 178 N.J. 347, 357 (2004) (affirming the reversal of a murder conviction because of the trial court's failure to instruct the jury properly on lesser-included offenses, thereby leaving the jury with an "all or nothing" situation).

For these sound reasons, a lesser-included offense must be charged, even if not specifically requested by trial counsel, where it is "clearly indicated" by the proofs. Jenkins, supra, 178 N.J. at 361; State v. Choice, 98 N.J. 295, 299 (1985). "[W]here the facts on record would justify a conviction of a certain charge, the people of this State are entitled to have that charge rendered to the jury[.]" State v. Garron, 177 N.J. 147, 180 (2003) (quoting State v. Powell, 84 N.J. 305, 319 (1980)), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). "[N]o one's strategy, or assumed (even real) advantage can take precedence over that public interest." Ibid.; see also State v. Cassady, 198 N.J. 165, 177-78 (reaffirming and applying the "clearly indicated" standard).

The fourth-degree crime of attempted criminal trespass is a clearly indicated lesser-included offense that easily and naturally applies to the present fact pattern. There is considerable proof that defendant was attempting to enter the dwelling with knowledge that he lacked permission to do so. See N.J.S.A. 2C:18-3a. Had the jury been charged with this lesser-included offense, it might have reasonably voted to acquit on attempted burglary and instead found defendant guilty of attempted criminal trespass, particularly given the difficulties concerning post-entry illegality that we have already described. As we noted in Robinson, the 1971 Commentary of the Criminal Law Revision Commission observed in this regard that "[i]f there is reasonable doubt as to the criminal purpose of the intruder, it should be enough to convict him of criminal trespass." Robinson, supra, 289 N.J. Super. at 453 (quoting New Jersey Criminal Law Revision Commission, New Jersey Penal Code, Vol. II: Commentary 2C:18-2, at 211 (1971)); see also State v. Singleton, 290 N.J. Super. 336, 341-43 (App. Div. 1996) (observing that if there is a factual dispute as to whether a defendant's purpose in entering was to commit an offense, the jury must be charged that it may find criminal trespass as a lesser included offense). The failure to charge attempted criminal trespass in this case was plainly erroneous, and was of consequence because the jury instead convicted defendant of a higher-degree offense.

We also agree with defendant that the jury charge should have identified criminal mischief as another potential lesser- included offense, in light of the apparent damage to the window and window frame. The scenario here has similarities to Clarke, supra, 198 N.J. Super. at 219. In Clarke, the defendants had broken a warehouse window before hiding nearby to avoid detection. Id. at 223. The defendants were then apprehended by police and charged with attempted burglary. Ibid. The trial judge did not include the elements of criminal mischief in the jury charge, and this court determined that such an error warranted reversal of the defendant's conviction. Id. at 224-26. The same result is appropriate here, as the proofs readily supported such a charge, even though criminal mischief was not charged in the indictment.

We do not read the Supreme Court's decision in State v. Thomas, 187 N.J. 119, 132 (2006) to preclude a jury charge of criminal mischief because of lack of notice to defendant, given that our case law has already defined criminal mischief as an eligible lesser-included offense of burglary where supported by the facts, and also given that defendant had ample notice of the State's contention that he had damaged the window and window frame outside the apartment building.

The need for a new trial with more complete jury instructions is also bolstered by the fact that the charge defining attempt omitted any language informing the jury that an attempt requires not only a defendant's purposeful state of mind, but also the commission of a "substantial step" to accomplish the crime. See N.J.S.A. 2C:5-1a(3). The trial court never used the term "substantial step" in the charge, nor any other language that could sufficiently replace the term. This omission is also contrary to the requirements of the law. See State v. Gonzalez, 318 N.J. Super. 527, 535 (App. Div.), certif. denied, 161 N.J. 148 (1999). Although we might not have reversed defendant's conviction on this ground alone, it adds to the cumulative impetus for remanding for a new trial.

In sum, because of these numerous and material omissions from the jury charge, which cumulatively amount to reversible error, we vacate defendant's conviction and remand for a new trial.

III.

Because we have reversed defendant's conviction in light of the flawed jury charge, we need not reach the other issues raised on appeal. We simply note in passing that we discern no impropriety in the State's summation that would warrant a new trial. In addition, the sentence was fair and not manifestly excessive, particularly in light of defendant's prior criminal record, and we defer to the trial judge's weighing of the aggravating and mitigating factors. See State v. Bieniek, 200 N.J. 601, 612 (2010).

Vacated and remanded for a new trial consistent with this opinion.

 

We are also cognizant that defendant had asserted different justifications for his presence at the scene before his trial testimony.

At oral argument before this panel, defendant's appellate counsel corrected a misstatement in her brief, and clarified that she was arguing that the trial court could have and should have charged attempted criminal trespass as a lesser-included offense here, given that the structure involved is a dwelling. See Clarke, supra, 198 N.J. Super. at 225-26.

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