STATE OF NEW JERSEY v. ERIK K. PATTERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5960-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIK K. PATTERSON,

Defendant-Appellant.

_____________________________

December 20, 2010

Submitted: October 20, 2010 - Decided:

Before Judges Cuff and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-10-00812.

Wayne R. Maynard, attorney for appellant.

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Jeffery F. St. John, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Erik K. Patterson, appeals from a June 18, 2009 judgment of conviction after he pled guilty to third-degree burglary, N.J.S.A. 2C:18-2 (Count One). Defendant argues that no factual basis existed for his plea because (1) a towing company's secured parking lot is not a "structure," and (2) he did not intend to commit theft of services. We disagree and affirm.

On August 31, 2008, defendant parked his car illegally in front of a fire hydrant. A driver from Bob's Auto Body Shop (Bob's Auto) towed defendant's car from that location to an enclosed, fenced-in, private towing lot in which other towed cars were stored. Defendant learned that his car had been towed to Bob's Auto and contacted Bob to obtain his car.

Defendant understood that he was obligated to pay for the towing service. Defendant called and asked Bob to reduce the towing fee, Bob refused, and defendant subsequently agreed to meet Bob at the lot to retrieve his car. Defendant appeared at the lot, waited for Bob to arrive, and lost his patience because Bob took too long to appear. Defendant then scaled the locked gate, entered the property without Bob's permission, and located his car. Defendant realized that he had only one way to remove his car from the secured lot -- by damaging Bob's Auto's property. He entered the car, started the engine, put it in reverse, floored the accelerator, and crashed through the locked gate, breaking the fence. Police arrested him a few minutes later.

Defendant was indicted and charged with third-degree burglary, N.J.S.A. 2C:18-2 (Count One); third-degree criminal mischief, N.J.S.A. 2C:17-3a (Count Two); and fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (Count Three). After defendant pled guilty to Count One, the State agreed to dismiss Counts Two and Three. The judge sentenced defendant on Count One to three years in state prison with eighteen months of parole ineligibility. The judge imposed the appropriate fines and penalties.

On appeal, defendant raises the following points:

POINT I

DEFENDANT-APPELLANT'S BURGLARY CONVICTION MUST BE VACATED BECAUSE THERE IS NO FACTUAL BASIS TO SUPPORT HIS PLEA

A. DEFENDANT-APPELLANT DID NOT ENTER A "STRUCTURE" AS DEFINED BY THE BURGLARY CHAPTER

B. THE FACTS DO NOT SUPPORT A CONCLUSION THAT DEFENDANT-APPELLANT INTENDED TO COMMIT EITHER THEFT OR THEFT OF SERVICES AT THE TIME OF HIS ENTRY

The primary question on appeal is whether a privately secured, outdoor fenced-in towing lot, adapted to store vehicles temporarily for a towing company, is a "structure" within the meaning of N.J.S.A. 2C:18-1a. We conclude that the separately secured towing lot is a "structure" because it is a place adapted for carrying on Bob's Auto business.

N.J.S.A. 2C:18-2a sets forth the elements of burglary. It provides in part that:

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

(1) Enters a . . . 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.

In September 1980, the Legislature amended the definition of "structure" to include

a. "structure" 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 (emphasis added).

[N.J.S.A. 2C:18-1a.]

The effect of the amendment was to expand the definition of "structure" by substituting "structure" for "building or occupied structure." Cannel, Criminal Code Annotated, comment 1 to N.J.S.A. 2C:18-2a.

We were unable to locate any New Jersey case directly on point; however, the Supreme Court of Pennsylvania has considered whether a fenced storage lot was an "occupied structure" under its burglary and criminal trespass statutes. Commonwealth v. Hagan, 654 A.2d 541, 543 (Pa. 1995). In Hagan, defendant backed a pickup truck into a driveway of a storage lot, broke a chain and lock securing the gate to the site, entered the lot, and attempted to take railroad steel. Ibid. The relevant Pennsylvania statute, similar to N.J.S.A. 2C:18-1a, defined an "occupied structure" as "'any structure, vehicle, or place adapted for overnight accommodation or for carrying on business therein, whether or not a person is actually present.'" Id. at 543-44 (quoting 18 Pa. Cons. Stat. 3501 (2010)). The Hagen court concluded that a fenced and secured storage lot was adapted for carrying on a business, and fit the statutory definition of structure as a "'place . . . adapted . . . for carrying on a business therein . . .'" Id.at 544.

Likewise, the Iowa Supreme Court in Iowa v. Hill, 449 N.W.2d 626, 626-28 (Iowa 1989), upheld defendant's burglary conviction after being arrested for attempting to steal used pistons from a fenced-in enclosure behind an automobile parts store. Defendant argued the enclosure was not an "occupied structure." Id. at 626-27. Iowa defines an "occupied structure" as:

any building, structure, appurtenances to buildings and structures, . . . or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value. Such a structure is an 'occupied structure' whether or not a person is actually present (emphasis added).

[Iowa Code 702.12. (2010).]

The Hill court reasoned that the enclosed area was an appurtenance under the statute because it stood in relation to the automobile parts store and was an occupied structure because it stored valuable property. Hill, supra, 449 N.W. at 628.

In holding thefts from fenced-in areas to be burglary, both Iowa and Pennsylvania recognize that the defendants were in places where they were unauthorized to be. "A critical element of burglary is that the defendant be in a place that he is not otherwise licensed or privileged to be." Cannel, Criminal Code Annotated, comment 2 to N.J.S.A. 2C:18-2a. See also Joy v. State, 460 N.E.2d 551, 558 (Ind. 1984) (holding that fence surrounding lumber yard constituted a structure under Indiana's burglary statute because it protected property within its confines and defendants' cutting and hopping of it was a "breaking"); Commonwealth v. Rudenko, 907 N.E.2d 254, 257-58 (Mass. Ct. App. 2009), (holding locked, fenced-in delivery area storing valuable goods adjacent to Home Depot building was within definition of a "building" under the Massachusetts breaking and entering statute) review denied, 455 Mass. 1109 (2010); State v. Gonzales, 194 P.3d 725, 726-27 (N.M. Ct. App. 2008) (holding breaking into fenced-in area connected to hardware store was burglary because it was prohibited space within a structure).1

In support of his argument that Bob's Auto parking lot is not a structure, defendant relies on State in Interest of L.E.W., 239 N.J. Super. 65, 74 (App. Div.), certif. denied, 122 N.J. 144 (1990). L.E.W. was adjudicated to be delinquent after she committed an offense of defiant trespass, N.J.S.A. 2C:18-3. Id. at 67. L.E.W. was "hanging out in the [7-11] parking lot talking with her boyfriend." Id. at 68. We determined that the open unsecured 7-11 store parking lot was not a structure. Id. at 74.

There is no comparison between Bob's Auto towing lot and the 7-11 parking lot in L.E.W. The towing lot was secured, surrounded by a locked gated fence, and was intended to store vehicles safely until payment was made for towing services. The 7-11 parking lot was open to the public, had no fence around it, and was not intended as a "place adapted . . . for carrying on business." Unlike Bob's Auto lot, in L.E.W. no business was conducted in the 7-11 parking lot; customers were free to park there or not. Defendant's reliance on L.E.W. therefore is misplaced.

We reject defendant's remaining argument that he did not intend to commit theft of services. Defendant was aware that Bob's Auto rendered a service and towed his car because he parked it illegally. Defendant knew that to obtain his car he was obligated to pay Bob for the towing service and he attempted unsuccessfully to negotiate a lower price from Bob. He attempted to avoid payment by purposefully driving his car through a fence, damaging Bob's Auto property. Defendant admitted that he did not have permission to enter the towing lot and retrieve his car, but did it anyway. We conclude, therefore, that a proper factual basis was obtained pursuant to Rule 3:9-2.

1 We also recognize that theft of a car constitutes burglary because a car qualifies as a structure. See State v. Munoz, 340 N.J. Super. 204, 209 (App. Div.) (charging defendants with burglary of an automobile), certif. denied, 169 N.J. 610 (2001). While it was defendant's car, he had no right to it at the time because it was impounded.