STATE OF NEW JERSEY v. MARK D. WALKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK D. WALKER,

Defendant-Appellant.

______________________________________________________

October 12, 2016

Submitted September 13, 2016 Decided

Before Judges Fisher and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 11-05-0308.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A burglary is, among other things, an unlicensed intrusion into a structure with the purpose to commit "an offense therein." N.J.S.A. 2C:18-2(a)(1). Defendant was convicted of second-degree burglary and now argues, among other things, he is entitled to a new trial because the judge's charge lacked specificity about the criminal offense he allegedly had the purpose to commit when entering the victim's premises. We disagree and affirm.

I

During the course of a seven-day trial, the jury heard testimony from the State's witnesses that revealed, on September 17, 2010, a man later identified as defendant knocked on A.G.'s apartment door in Somerville. Speaking through a closed door, defendant repeatedly asked for help and, when A.G. asked what it was he wanted, defendant stated he needed help for "[his] girl." A.G. gave directions for a nearby hospital and for the police station. According to A.G., defendant "didn't look . . . too happy" and walked away. A.G. walked up the stairs to his apartment.

A few moments later, A.G. heard a "crash" downstairs. He looked to see defendant rushing up the stairs armed with what appeared to be a silver handgun and, upon approaching, defendant commanded A.G. not to move; he took A.G.'s blackberry and demanded his car keys. Although he had his car keys in his pocket, A.G. stalled hoping the landlord downstairs would hear the commotion by telling defendant he would have to look for the keys. Defendant repeatedly demanded A.G.'s car keys and soon "pulled out a black pocket knife," which he eventually swung at A.G., striking him in the leg and neck. A.G. turned over his car keys; he refused to tell defendant the car's location but provided its color, make and model. Defendant then stabbed A.G. in the shoulder and ran down the stairs and out of the building. He did not take A.G.'s car.

A.G. called 9-1-1 for help and was later treated at a local hospital for the lacerations and punctures on his neck, shoulder and leg.

During the police investigation, DNA in A.G.'s apartment was found to match defendant. Consequently, a detective attempted to discuss the matter with defendant, eventually speaking with him by telephone on April 19, 2011. Defendant denied any involvement1 and agreed to turn himself in, but failed to do so, causing the prosecutor's office to release information to the public that included a photograph of defendant. Upon examining the photograph, A.G. positively identified defendant as the culprit. Defendant later turned himself in.

II

Defendant was indicted and charged with first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1), second-degree burglary, N.J.S.A. 2C:18-2(a)(1), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).

Prior to trial, defendant moved for the suppression of statements he made to the police as well as A.G.'s out-of-court identification. A judge suppressed a statement defendant gave on May 24, 2011, but denied the motion insofar as it sought suppression of defendant's April 19, 2011 statement, quoted in footnote 1, supra. The judge also denied defendant's motion to suppress A.G.'s out-of-court identification.

At the trial's conclusion,2 the jury acquitted defendant of robbery and aggravated assault but convicted him of second-degree burglary. The trial judge sentenced defendant to a nine-year prison term subject to an eighty-five percent period of parole ineligibility and three years parole supervision.

III

Defendant appeals, arguing his right to due process of law as guaranteed by both the federal and state constitutions was violated by: (a) "the prosecutor's and trial court's refusal to identify the offense the defendant allegedly intended to commit prior to entering the premises"; (b) "the improper admission of highly suggestive identification evidence"; and (c) "prosecutorial misconduct on summation." Defendant also contends: (d) his right to counsel was "violated by the improper admission of the defendant's statement"; and (e) he received an excessive sentence because the trial judge "improperly balanced the aggravating and mitigating factors" and "improperly made findings of fact to enhance the sentence."

We find insufficient merit in defendant's arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), with the exception of defendant's first two arguments, to which we now turn.

A

In interpreting N.J.S.A. 2C:18-2(a), we have held a burglary is complete upon a defendant's unauthorized entry into premises with purpose to commit a criminal offense. State v. Mangrella, 214 N.J. Super. 437, 441 (App. Div. 1986), certif. denied, 107 N.J. 127 (1987). The prosecution need not 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).

As we explained in Robinson, the phrase "an offense" which appears in the statute "has been interpreted broadly to mean 'any offense,'" and we relied on the 1971 Commentary of the Criminal Law Revision Commission in reaching the conclusion that "a general criminal intent suffices." Ibid. In most cases, the circumstances may render it difficult to know anything more than defendant was "up to some mischief," such as when apprehended in the act of entering.3 Consequently, absent facts from which a jury could rationally find an accused had entered for a purpose other than the commission of a criminal offense,4 instructions that provide a greater obligation on the jury than simply finding a purpose to commit an offense are not necessary.

To be sure, there may be instances in which a factual dispute is presented about the purpose for the accused's entry that would require greater instruction for the jury. One example is found in State v. Marquez, 277 N.J. Super. 162, 169 (App. Div. 1994), certif. denied, 141 N.J. 99 (1995), where the evidence suggested the defendant either entered his girlfriend's apartment to commit a criminal offense or to violate a domestic violence restraining order. Because the latter would not provide a sufficient basis for a burglary conviction, a jury in such a circumstance would be required to make a specific finding about the defendant's purpose in entering the premises.

Defendant's position at trial, however, was not that there was evidence from which the jury could conclude he entered A.G.'s premises for an innocent purpose. His attorney mainly argued to the jury that A.G. was not a credible witness forcefully pointing out numerous inconsistencies in A.G.'s versions of the incident and that defendant

was never in that house. Never. Never in that house. And [A.G.'s] entire story is a fabrication. We don't know why, and I told you why we don't know why, but we don't.

And the State has not proven its case beyond a reasonable doubt. They have given you this evidence and tried to piece together this puzzle, but the pieces don't fit. The story makes no sense.

If there was evidence of a girlfriend in need of aid or if there was evidence to support a finding that defendant felt compelled to enter A.G.'s premises to secure aid for another, then defendant's legal contention that the jury should have been required to ascertain the purpose for defendant's entry might have some validity. But an alternative theory for defendant's entry into the premises was not put before the jury. Defense counsel did not theorize the evidence supported a non-criminal reason for entry but that the whole episode was a fabrication. Consequently, defendant's argument does not fall within our holding in Marquez, and the judge correctly allowed the jury to consider whether defendant committed a burglary without instructing the jury or requiring a finding as to the precise purpose for the entry; the judge properly instructed the jury that it needed only to find defendant entered for the purpose of committing a criminal offense.

B

Defendant also argues the out-of-court identification made by A.G. upon viewing the single photograph publicly circulated should have been suppressed. When defendant originally moved for relief, the motion judge recognized the procedure that generated the identification was "highly suggestive," and she scheduled an evidentiary hearing to determine the identification's reliability notwithstanding that suggestiveness. At that hearing, the motion judge heard and found credible A.G.'s testimony concerning his ability to observe the man who entered his home on the night in question. The judge properly applied pre-Henderson5 principles in concluding the identification was reliable despite the suggestive procedure. She found as a fact that

during the home invasion the victim was able to observe [d]efendant . . . . [A.G.] first observed [d]efendant when he was pacing back and forth on [A.G.'s] front steps. The lights were on outside and [A.G.] could see [d]efendant through the screen door and glass door that [led] into the apartment. [A.G.] testified that although [d]efendant was wearing a "hoodie," he could still see [his] face.

The judge also found credible A.G.'s testimony that "the apartment was well lit" when defendant entered, and that defendant was present in the apartment for "approximately" ten minutes during which A.G. could adequately "observe [his] face."

These and the judge's other findings were based on the motion judge's observations and assessment of the witness and are entitled to our deference. State v. Robinson, 200 N.J. 1, 15 (2009). Having closely examined the record, we affirm the order denying suppression of the out-of-court identification substantially for the reasons set forth in the motion judge's comprehensive written decision.

Affirmed.

1 In denying involvement or the assertion that his DNA was found in A.G.'s Somerville apartment, defendant claimed not to know where Somerville was and that he had never been there. He further mentioned to the detective that "if you were from Essex County, then it would make more sense to have my DNA because I cut my ankle there."

2 A different judge presided over the trial.

3 The Commission made the following observations about this element of the burglary offense

To specify "any offense" comports better with the realities of law enforcement. The burglar is often apprehended, if at all, in the process of entering, when it may be difficult to know more than that he is up to some mischief. Recognition of this is reflected in the rule that the specific criminal purpose need not be pleaded or proved with the same particularity as in prosecuting the crime which the burglar had in mind.

[New Jersey Criminal Law Revision Commission, New Jersey Penal Code, Vol. II: Commentary 2C:18-2 at 211 (1971).]

4 The Commission mentioned, as examples of innocent purposes, intrusion for "sleep, escape from inclement weather, or to secure an interview." Law Revision Commission Commentary, supra, at 211.

5 State v. Henderson, 208 N.J. 208 (2011).