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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4326-08T4

STATE OF NEW JERSEY IN THE

INTEREST OF T.D., a minor.

__________________________________________________

April 25, 2011

Submitted February 8, 2011 - Decided

Before Judges Messano and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-970-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (John A. Frost, Jr., Designated Counsel, on the brief).

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial in the Family Part, juvenile T.D. was adjudicated delinquent for having committed third-degree burglary, N.J.S.A. 2C:18-2(a)(1), and the disorderly persons offense of theft, N.J.S.A. 2C:20-3(a). He was placed on probation for nine months and appropriate financial penalties were imposed. On appeal, T.D. raises the following point:

THE COURT ERRED IN DENYING THE DEFENSE MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE

We conduct our review of the denial of a motion for acquittal de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:

[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable [factfinder] could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

Applying this standard to the evidence in the record, we affirm.

T.D. was tried together with another male juvenile, K.A. Both were friends with a third male juvenile, V.C. V.C. testified that on September 22, 2008, the three boys and a female juvenile, A.O., left a Magic Fountain ice cream store and proceeded to A.O.'s apartment building. A.O. only let T.D. inside. The two other juveniles waited outside until another woman entered the building. V.C. and K.A. went inside and found T.D. and A.O. in the laundry room.

All four were "[h]anging out," when T.D. grabbed the key to A.O's apartment from a table in the laundry room. Together with K.A. and T.D., V.C. went to the apartment. V.C. testified that they did not have A.O.'s permission, but A.O. knew where they were going. The door to the apartment was opened without the key. Once inside, V.C. testified that T.D. and K.A. "went looking for stuff." K.A. found a Nintendo DS and an MP3 player on a computer desk near the refrigerator. While watching K.A., T.D. went to the refrigerator and took a can of soda. T.D. tried to convince K.A. not to take the Nintendo, but said nothing about the MP3 player. About fifteen minutes later, all three left the building without seeing A.O. again.

A.O. testified that the boys followed her home from the Magic Fountain. She knew T.D. and liked him. She entered the building with T.D. and went to the laundry room. K.A. and V.C. arrived sometime later and joined them. T.D. took the keys to her apartment when "they fell out" of her pocket. A.O. did not give permission for the boys to go to the apartment, but acknowledged she did not try to stop them because "[t]hey had already gone." A.O. left the laundry room briefly and saw the boys enter her apartment; she returned to the laundry room. About ten or fifteen minutes later, T.D. returned the keys to her in the laundry room, and she saw all three leave the building.

On cross-examination, A.O. acknowledged that K.A. was "touching [her] in areas" that she did not "particularly appreciate" on the walk from the Magic Fountain. A.O. also disclosed that "there had been a considerable amount of sexual activity . . . in the laundry room" before the boys left for her apartment. A.O. admitted that she believed T.D. had not taken anything because he already had "five DS'[]s," and had showed her the receipts for them. She had allowed T.D. in her apartment with her on other occasions.

On re-direct and re-cross examination, A.O. admitted having "sexual relations" with T.D. in the laundry room, and that she "[d]idn't object." But, T.D. "wanted [K.A.] to be part of it." She was upset, angry and crying when T.D. took the keys to her apartment.1

A.O.'s mother also testified. She did not give T.D., K.A. or V.C. permission to enter her apartment or take any items. After her testimony, the State rested.

T.D. moved for a judgment of acquittal. He argued that the complaint only alleged theft of the Nintendo, and the evidence revealed K.A. stole that item. T.D. contended that he was neither "a princip[al] with respect to that, . . . [or] even an accomplice." Regarding the burglary charge, T.D. argued that the State failed to prove that he lacked "either express or implied consent to be in that apartment." Citing the Reyes, supra, standard, the judge denied the motion.

Neither T.D. nor K.A. testified, and the defense rested without introducing any evidence. The judge reserved decision. In an oral opinion placed on the record approximately two weeks later, the judge found the testimony of the State's witnesses to be credible, and adjudicated both juveniles delinquent on both counts. The State did not object to the theft charge being graded as a disorderly persons offense. See N.J.S.A. 2C:20-2(b)(3) (theft is a disorderly persons offense "[i]f the amount involved was less than $200[]").2

On appeal, T.D. reiterates the same arguments raised at trial. He contends "the conclusions that [he] entered the apartment without permission and with the intent to commit an unlawful act therein are not conclusions that can reasonably be inferred from the evidence." We disagree.

"In order to prove [an actor] guilty of third-degree burglary, the State must prove each of the following two elements beyond a reasonable doubt: (1) [the actor] entered a structure that he was not licensed or privileged to enter; (2) with the purpose of committing an offense therein." State v. Silva, 378 N.J. Super. 321, 326 (App. Div. 2005) (citing N.J.S.A. 2C:18-2(a)). "[B]urglary is complete upon entry with purpose of committing an offense. . . . The projected offense need not be actually committed." State v. Jijon, 264 N.J. Super. 405, 407 (App. Div. 1993) (citations omitted), aff'd o.b., 135 N.J. 471 (1994).

In this case, A.O. testified that she had not given permission to T.D. or the others to enter her apartment on the day in question. The fact that T.D. had been in the apartment with A.O. on prior occasions is of no moment. T.D. took the key to the apartment, either from the laundry room table or floor, without A.O.'s permission. V.C. testified that upon entering the apartment, K.A. and T.D. "went looking for stuff." T.D.'s purpose in entering the apartment -- to commit an offense --could be inferred from that testimony alone. Once inside, K.A. and T.D took items from the apartment, further demonstrating their purpose in entering.

Regarding the theft charge, we need not consider whether, under the facts presented, T.D. was an accomplice to K.A.'s theft of the electronic equipment. See N.J.S.A. 2C:2-6(c)(1)(b) ("A person is an accomplice of another person in the commission of an offense if . . . [w]ith the purpose of promoting or facilitating the commission of the offense[] he [a]ids or agrees or attempts to aid such other person in planning or committing it."). We note that contrary to T.D.'s assertion, the judge did not specifically determine that T.D.'s theft was limited to "a can of soda." In any event, even if the evidence is viewed narrowly, T.D. removed the soda from the refrigerator without permission. See N.J.S.A. 2C:20-3(a) ("A person is guilty of theft if he unlawfully takes, . . . movable property of another with purpose to deprive him thereof.").

Affirmed.

1 There were questions posed to A.O. regarding the statement she provided to the police. In the statement, A.O. claimed that K.A. "tried to rape [her]."

2 Effective January 25, 2011, N.J.S.A. 2C:20-2(b)(3) was re-numbered as N.J.S.A. 2C:20-2(b)(4)(a) but left substantively unchanged. See L. 2011, C. 1, 1.