STATE OF NEW JERSEY v. TERRENCE FOENDOE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2747-06T42747-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRENCE FOENDOE,

Defendant-Appellant.

________________________________

 

Submitted: October 8, 2008 - Decided:

Before Judges Parrillo and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-06-00875.

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

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On June 22, 2005, defendant Terrence Foendoe was charged under Middlesex County Indictment No. 05-06-00875 with third-degree burglary, N.J.S.A. 2C:18-2, when he was found opening products stored inside a trailer located in a secured, fenced lot adjacent to the warehouse of C & S Wholesale Grocers (C & S). The jury convicted defendant and the trial judge imposed a sentence of three years imprisonment with all applicable fines and penalties. On appeal, defendant seeks a new trial arguing:

THE TRIAL COURT'S DECISION TO USE THE DEFINITION OF "VEHICLE" AS CONTAINED IN THE MOTOR VEHICLE CODE FOR THE OFFENSE OF BURGLARY, CONTAINED IN THE CRIMINAL CODE, CAUSED THE COURT TO VIOLATE THE LAW OF STRICT CONSTRUCTION, PUT A THEORY OF THE CASE BEFORE THE JURY THAT HAD NOT BEEN PRESENTED TO THE GRAND JURY, AND ALLOWED FOR GROSS PROSECUTORIAL MISCONDUCT, ALL IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL.

We affirm.

C & S supplies wholesale non-perishable foodstuffs to Pathmark Supermarket from its New Brunswick facility, which operates twenty-four hours a day, seven days a week. The premises includes a single driveway with a gated entrance and an attended guard station, a 200,000-300,000 square-foot warehouse building, and a paved area adjacent to the warehouse used to load and unload trailers. The facility is fenced on three sides; the southern side of the building, which contains railroad tracks is the only area of the property that lacks fencing.

Jack Piluso worked for C & S as a trailer switcher, moving the trailers around the yard at the rear of the facility. While moving a trailer one morning, Piluso saw a flash in his vehicle mirror. He stopped to investigate the flash and noticed a door halfway open on a parked trailer. He found defendant inside, rummaging through the freight. Defendant identified himself as "Terrance" and when Piluso asked defendant what he was doing, he responded, "I'm stealing." Piluso pulled the trailer door closed, locked it and notified his supervisor. When police arrived, they released defendant from the trailer and placed him under arrest.

Defendant moved for acquittal at the close of the State's case arguing the State failed to prove each element of burglary as required by the statute since the trailer was not a "structure" or a "separately . . . secured portion" of C & S's facility. The court denied defendant's motion, determining the State presented evidence showing the trailer was located in a secured area of C & S's premises and was a vehicle as defined by Title 39. Defendant challenged the finding that evidence was presented to prove the trailer was a vehicle. The defense's objection was overruled.

The issue resurfaced at the charge conference. After extensive argument and over defendant's objection, the trial judge concluded the jury charge would define "structure" using N.J.S.A. 2C:18-1 and, based upon the State's alternate theory of liability that a trailer was a vehicle, use the definitions of "vehicle" and "trailer" set forth in N.J.S.A. 39:1-1.

On appeal defendant argues the State was limited to the theory of liability presented to the grand jury, which was that defendant entered a secured portion of C & S. Thus, the State could not argue defendant entered a vehicle.

Additionally, defendant maintains the trial judge erred by including the motor vehicle code's definitions of "trailer" and "vehicle" to enhance the criminal justice code's definition of "structure." The essence of the contention is that the two codes have "entirely different purposes," such that the definitions cannot be used interchangeably. Defendant argues "[a] vehicle for the purpose of a burglary - a criminal offense for which a defendant can be sentenced to prison - cannot mean the same as a vehicle for the purpose of regulating traffic, obtaining licenses, and keeping order on the roads and highways." We disagree with these arguments.

A burglary involves entrance to a "structure" or a "separately secured . . . portion thereof" without license or privilege accompanied by the purpose to commit an offense within the structure. Gravely v. Speranza, 408 F. Supp. 2d 185, (D.N.J. 2006), aff'd, 219 Fed. Appx. 213, (3d Cir. 2007); State v. Marquez, 277 N.J. Super. 162, 168 (App. Div. 1994), certif. denied, 141 N.J. 99 (1995). N.J.S.A. 2C:18-2(a) states:

A person is guilty of burglary if, with purpose to commit an offense therein 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; or

(2) Surreptitiously remains in a . . . structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so.

For purposes of the statute, a "structure" is defined to include "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, . . . [.]" N.J.S. A. 2C:18-1.

We reject defendant's argument that to safeguard due process rights, the State must be limited to the "theory of liability upon which the indictment was secured." In this matter, the indictment described defendant's criminal conduct as: "unlawfully entered the structure of C & [S] Wholesale . . . with purpose to commit an offense therein." The State's presentation to the grand jury properly identified the facts relied upon, i.e., defendant broke into a trailer to steal the freight. The State's evidence included the trailer's location within C & S's fenced facility and the nature of the property's security features. When requesting the indictment, the prosecutor recited the entire definition of "structure." The omission of the additional argument that the trailer was a vehicle would not preclude the State's theory from being presented at trial.

We do not agree with defendant's suggestion that the State substituted "an offense which the grand jury did not in fact consider or charge.'" State v. Le Furge, 101 N.J. 404, 415 (1986) (quoting State v. Boratto, 80 N.J. 506, 519 (1979)). At trial, the State may present alternative theories established by the facts in evidence. The State is not constrained to follow only the facts as submitted to the grand jury.

We conclude the indictment sufficiently identified all necessary facts surrounding the burglary charge to enable defendant to prepare and present his defense. State v. La Fera, 35 N.J. 75, 81 (1961); State v. Salzman, 228 N.J. Super. 109, 114 (App. Div. 1987), certif. denied, 110 N.J. 314 (1988). Defendant knew he was accused of unlawful entry to C & S's property, including the trailer. He identified his unlawful purpose when he told Piluso he was "stealing." We conclude no error is presented.

Defendant's argument also suggests the court lacked a rational basis to reference the motor vehicle code definitions of "trailer" and "vehicle" when it charged the jury in this criminal matter. We disagree.

The Code of Criminal Justice mandates its provisions "shall be construed according to the fair import of their terms . . . ." N.J.S.A. 2C:1-2c. In the absence of a statutory definition to the contrary, we "ascribe to the words their ordinary meaning." State v. Froland, 193 N.J. 186, 193 (2007); State v. Fearick, 69 N.J. 32, 37 (1976). Further, "if the plain language is susceptible to more than one interpretation, we may consider sources other than the language in determining its meaning." Froland, supra, 193 N.J. at 194; see State v. White, 98 N.J. 122, 131-32; State v. Maguire, 84 N.J. 508, 514 n.6 (1980); State v. Williams, 263 N.J. Super. 620, 626-27 (App. Div. 1993), certif. denied, 134 N.J. 477 (1993). "[W]e often examine the legislative history of the enactment, and look to cognate statutory provisions." Froland, supra, 193 N.J. at 194. (internal citations omitted). The Court may supply terms omitted by the Legislature if it is clear they are necessary to manifest the legislative intent. Id. at 196.

In the burglary statute, the Legislature did not intend to limit "structure" to a fixed building or a secured portion thereof. N.J.S.A. 2C:18-1 lists a wide-range of things qualifying as a "structure" including a "vehicle." N.J.S.A. 2C:18-1 also includes "car" as a structure, distinguishing it from a "vehicle." To discern the contours of what qualifies as a "vehicle," the trial judge properly referenced N.J.S.A. 39:1-1. Support for using the definitions in Title 39 is found in N.J.S.A. 2C:1-14n, which defines "motor vehicle" by referring to N.J.S.A. 39:1-1 of the motor vehicle code. The use of the definitional section in Title 39 signals the Legislature's intent to accept these terms to aid interpretation of the criminal code.

Reviewing the jury charge as a whole, as we are required, State v. Marshall, 123 N.J. 1, 135-36 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993), we determine Judge Gelade gave "a comprehensible explanation of the questions that the jury must determine," covering all "fundamental matter[s]" at issue. State v. Green, 86 N.J. 281, 287-89 (1981). Accordingly, the verdict must be upheld. State v. Ramseur, 106 N.J. 123, 280 (1987).

Affirm.

Pursuant to N.J.S.A. 39:1-1 a "trailer" is defined as a "vehicle with or without motive power, . . . designed for carrying persons or property and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon the towing vehicle."

Further, the statute states a "'vehicle' means every device in, upon or by which a person or property is or may be transported upon a highway, excepting devices moved by human power . . . ."

N.J.S.A. 2C:1-14n states: "'Motor vehicle' shall have the meaning provided in [N.J.S.A.] 39:1-1."

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A-2747-06T4

November 13, 2008