STATE OF NEW JERSEY V. LUIS JIJON

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed by Judge Bilder's written opinion below.)

Argued May 2, 1994 -- Decided May 23, 1994

PER CURIAM

Following a jury trial, Luis Jijon was found guilty of burglary and unlawful taking of a means of conveyance (joyriding), the latter being a lesser included offense of the charge of theft of a motor vehicle. Jijon was acquitted of the theft charge. Jijon was sentenced to concurrent one year terms of probation and certain fines.
 
Jijon appealed his conviction, contending that the conviction of burglary should be vacated because joyriding is not an underlying offense contemplated by the burglary statute, and because simultaneous convictions of burglary and joyriding arising out of the same transaction violates the intent of the Legislature that joyriding be treated as a disorderly persons offense.

The Appellate Division affirmed the convictions, finding Jijon's contentions without merit. The court noted that burglary is complete upon entry with purpose of committing an offense and that the offense need not actually be committed. The burglary and a subsequent theft by unlawful taking are separate and distinct offenses even though the "structure" broken into is also the "movable property" attempted to be stolen. The court concluded that the plain language of the statute, which defines burglary as an entry with purpose to commit an offense therein, is all encompassing and includes not only crimes, but disorderly persons offenses such as joyriding, and petty disorderly persons offenses. Joyriding and burglary are separate offenses that the Legislature has dealt with separately and differently. Moreover, the Legislature has rejected the notion that those offenses should merge. The Appellate Division also noted its disapproval of the Law Division opinion in State v. Benford, which held that a defendant could not be convicted of burglary if his or her intent at the time of entry into the automobile was only to commit the disorderly persons offense of joyriding.

The Supreme Court granted certification.

HELD: Judgment of the Appellate Division is AFFIRMED for the reasons expressed in Judge Bilder's opinion written below. Consistent with the language of the burglary statute, one who enters a vehicle to commit the disorderly persons offense of joyriding is also guilty of burglary.

CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in this opinion.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS JIJON,

Defendant-Appellant.

Argued May 2, 1994 -- Decided May 23, 1994

On certification to the Superior Court, Appellate Division, whose opinion is reported at 264 N.J. Super. 405 (1993).

Mordecai Garelick, Assistant Deputy Public Defender, argued the cause for appellant (Susan L. Reisner, Acting Public Defender, attorney).

Catherine A. Foddai, Deputy Attorney General, argued the cause for respondent (Deborah T. Poritz, Attorney General of New Jersey, attorney).

PER CURIAM

The judgment is affirmed, substantially for the reasons expressed in the opinion of the Appellate Division, reported at 264 N.J. Super. 405 (1993).

Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein join in this opinion.