STATE OF NEW JERSEY v. ROBERT L. GRIFFIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4134-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ROBERT L. GRIFFIN,

Defendant-Appellant.

__________________________________

Submitted May 18, 2011 Decided May 27, 2011

Before Judges Cuff and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3669.

Yvonne Smith Segars, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Assistant Prosecutor, on the brief).

PER CURIAM

A jury found defendant Robert L. Griffin guilty of third degree burglary, N.J.S.A. 2C:18-2 (Count One) and fourth degree1 criminal mischief, N.J.S.A. 2C:17-3 (Count Two). On Count One, defendant was sentenced to a five-year term of imprisonment with a two-and-one-half-year period of parole ineligibility. He was sentenced to a concurrent eighteen-month term of imprisonment on Count Two. The appropriate fines, penalties and assessments were also imposed.

On appeal, defendant raises the following arguments:

POINT I

THE BURGLARY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE THE FACTS ADDUCED AT TRIAL FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT THE DEFENDANT INTENDED TO COMMIT AN OFFENSE ONCE INSIDE THE CONDOMINIUM UNIT (Not Raised Below).

POINT II

THE CRIMINAL MISCHIEF CONVICTION MUST BE MERGED INTO THE BURGLARY CONVICTION.

POINT III

DEFENDANT'S SENTENCE OF THE MAXIMUM TERM ON EACH COUNT WAS MANIFESTLY EXCESSIVE.

We have thoroughly reviewed the record in light of the arguments presented by defendant and determine that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

The State adduced evidence that an intruder to a residential condominium unit pried at the door frame and kicked open the front door, ripped an alarm off a wall and tossed it in a sink filled with water. An occupant of another condominium unit heard the noise and walked down the stairs to investigate the sound. As he arrived, he encountered defendant calmly walking from the vandalized unit. Defendant argues that the State failed to adduce any evidence that he intended to commit an offense once inside the condominium unit. We disagree. Defendant's presence in an apartment that had been entered by damaging the door frame and kicking in the door and within minutes of a neighbor hearing a noise consistent with a door being forced and something being ripped from a wall satisfies the State's burden of proof on the charges of burglary and criminal mischief. See State v. Singleton, 290 N.J. Super. 336, 342-43 (App. Div. 1996) (the defendant found in a ransacked apartment); State v. Robinson, 289 N.J. Super. 447, 454 (App. Div.) (burglary conviction upheld where the defendant found in the act of climbing through a forced window and discarding a screwdriver as he fled), certif. denied, 146 N.J. 497 (1996). Moreover, generally criminal mischief is considered a separate offense from burglary and does not merge. See State v. Pantusco, 330 N.J. Super. 424, 449-51 (App. Div.) (a defendant may be convicted of both burglary and attempted theft of a car), certif. denied, 165 N.J. 527 (2000). We discern no basis on this record to require merger of these charges.

1 Count Two was amended to fourth degree criminal mischief based on the jury's finding that the damage caused was in excess of $500 but less than $2000.