STATE OF NEW JERSEY v. MICHAEL A. WALKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5809-07T45809-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL A. WALKER,

a/k/a DUANE MAYES,

Defendant-Appellant.

_________________________________

 

Submitted September 15, 2009 - Decided

Before Judges Wefing and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

07-07-1230.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C. Kazer,

Designated Counsel, on the briefs).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Vered Adoni,

Assistant Prosecutor, of counsel and on the

briefs).

PER CURIAM

A one-count indictment charged defendant with attempted burglary, N.J.S.A. 2C:18-2, a crime of the third-degree. At trial, a jury acquitted defendant of attempted burglary but found him guilty of attempted criminal trespass, a crime of the fourth degree. N.J.S.A. 2C:18-3. The trial court sentenced defendant to eighteen months incarceration. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we reverse.

Defendant was arrested in the early morning hours of April 19, 2007, in the rear portion of the premises in Englewood owned by the Haneys. The police had been summoned by Winnie Mainza, who, together with Mr. Haney's mother, was staying in the pool house at the rear of the property. Ms. Mainza was caring for Mr. Haney's mother, who was ill and unable to manage the stairs in the main house. Ms. Mainza testified that the two women were using the pool house because the guest house on the property was being renovated and was not available for their use. Ms. Mainza had awoken to check on her charge, and she heard footsteps. She listened and then saw the handle to the rear door to the pool house turn, as if someone was trying to open it from the other side. She telephoned 911. The police responded and found defendant some distance from the pool house. Asked what he was doing on the property, he responded that he was on his way home but had to urinate and sought a secluded place to do so.

Defendant's trial was brief. The State presented three witnesses, the owner of the property, Ms. Mainza, and the arresting officer. Defendant did not testify.

On appeal, defendant raises the following contentions:

POINT I THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S RULING BARRING ALL SIDEBAR CONFERENCES WAS AN ABUSE OF JUDICIAL DISCRETION THAT RESULTED IN A VIOLATION OF THE DEFENDANT'S FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION

POINT II THE TRIAL COURT VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO AN IMPARTIAL JURY BY IMPROPERLY COERCING A VERDICT (NOT RAISED BELOW).

POINT III THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION.

POINT IV THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING THE MAXIMUM 18 MONTH CUSTODIAL SENTENCE ON THE DEFENDANT'S CONVICTION OF FOURTH DEGREE ATTEMPTED CRIMINAL TRESPASS.

Following submission of this matter to the court, we requested supplemental briefs from counsel on the sufficiency of the trial court's charge on attempted criminal trespass. We have since received supplemental letter briefs from the State and defendant's attorney.

We do not find it necessary to address in detail the points defendant raised on this appeal because we are satisfied that the court's charge on the offense of attempted criminal trespass was insufficient. We are compelled to note, however, that certain remarks by the prosecutor during the course of this trial, such as raising in the presence of the jury the question of whether defendant would testify, had the clear capacity to prejudice this defendant in the jury's eyes. We have also noted in our review of this matter the prosecutor's repeated comments in summation that defendant had been found "crouching" when the testimony of the arresting officer was clearly to the contrary.

Chapter 18 of Title 2C deals with the offenses of burglary and other criminal intrusions into property. N.J.S.A. 2C:18-2 defines the crime of burglary and, as we have noted, the jury acquitted defendant of burglary. N.J.S.A. 2C:18-3 sets forth the lesser-included offenses to burglary, including unlicensed entry of structures, N.J.S.A. 2C:18-3a, commonly referred to as criminal trespass, and defiant trespass, N.J.S.A. 2C:18-3b.

Under N.J.S.A. 2C:18-3a, an individual commits the offense of criminal trespass if the person, "knowing that he is not licensed or privileged to do so, . . . enters or surreptitiously remains in any research facility, structure, or separately secured or occupied portion thereof." The statute further provides that the offense is a crime of the fourth degree if it is committed in a school or on school property or in a dwelling or in certain other enumerated facilities. If the offense occurs in premises other than those enumerated in the statute, it is a disorderly persons offense.

The trial court instructed the jury in the following manner as to criminal trespass.

If you find the defendant not guilty as to attempt to commit burglary, you should consider the lesser included offense of attempted criminal trespass. The question is: How do you find the defendant as to the offense of attempt to commit criminal trespass?

Now, the statute upon which the lesser included offense of criminal trespass is charged reads in pertinent part as follows:

The person commits an offense if, knowing he is not licensed or privileged to do so, he attempts to enter or surreptitiously remains in any structure or separately secured or occupied portion thereof.

In order for the defendant to be convicted of this offense, the State must prove the following elements beyond a reasonable doubt:

One, the defendant attempted to enter or surreptitiously remained in the structure. And, two, the defendant did so knowing he had no right to enter or to be there at the time.

"Knowing" under this statute means the defendant was aware that he was not licensed or privileged to enter or surreptitiously remain on the property . . . or that the defendant was aware of the high probability that he was not so licensed or privileged.

If you find the State has proven all the elements beyond a reasonable doubt, then you must find the defendant guilty. If the State failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty.

During their deliberations, the jurors sent out the following note, which the judge read:

"We'd like clarification on the term, quote, structure, unquote, on the lesser included -- on the lesser offense criminal trespass number one. Does structure mean a building or property? As in the yard versus pool house."

The trial court gave the following response to the jury:

The only way I can answer your question is by giving you the definition of "Structure" under your statute.

Structure means any building, room, ship, vessel, car or vehicle or airplane. It also means anyplace adapted for overnight accommodation of persons or for carrying on business thereon, whether or not a person is actually present.

That's the definition of a structure. So you have to decide whether structure, property, is for you -- because you make the determinations whether somebody is guilty or not guilty. I don't make that. I'll give you the definitions and you make your decision based upon the facts that you find in the law.

The trial court did not include in this response a reference to the necessity of the offense having been committed in a dwelling, an essential element of the fourth-degree offense of criminal trespass. The statutory definition of structure that the trial court did provide to the jury, taken from N.J.S.A. 2C:18-1, includes all structures and does not make the distinction between a dwelling and other structures essential to the degree of trespass in N.J.S.A. 2C:18-3a. Absent a finding by the jury that this offense involved a dwelling, defendant could not be convicted of a fourth-degree crime; the offense would be a disorderly persons offense.

Accordingly, the most that may be gleaned from the jury's verdict is that they found him guilty of attempting to commit a disorderly persons offense. Our criminal code, however, does not recognize such an offense. State v. Clarke, 198 N.J. Super. 219, 225 (App. Div. 1985) (stating "[a]n attempt to commit a disorderly persons offense is not itself an offense").

Defendant's conviction is reversed.

 

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A-5809-07T4

November 5, 2009