STATE OF NEW JERSEY v. CARL J. LEE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6364-06T46364-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL J. LEE,

Defendant-Appellant.

__________________________________

 

Submitted January 7, 2009 - Decided

Before Judges Stern and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-05-684.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank J. Pugliese, 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

Tried by a jury, defendant Carl J. Lee was found guilty of third degree burglary. On March 2, 2007, the trial judge granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:44-3a, and sentenced defendant to eight years imprisonment with thirty months of parole ineligibility. Defendant appeals. We affirm.

On February 26, 2006, at 6:15 p.m., two New Brunswick police officers were dispatched to the area of Kilmer Avenue and Charles Street on a report of a burglary in progress in an office trailer on a construction site. They arrived within seconds and observed defendant exiting the trailer carrying a black plastic garbage bag. Defendant dropped the bag when instructed to do so. He was placed under arrest and seated in the rear of the patrol car. He properly identified himself when requested to do so by the officer. When asked what he was doing at the site, he indicated that he was looking for something to cut a chain with. He knew he did not belong there, but he wanted to reduce the length of a chain he found so that he could lock up his bicycle which was lying on the ground next to the trailer entrance.

Police Officer Thomas Hetzler entered the trailer and observed some jackets hanging and small hand tools, but nothing of value. The black garbage bag contained a length of chain and a jacket.

Michael Grzankowski owned and operated the MCG Contracting Company. According to Grzankowski, MCG was erecting two buildings at the location and maintained an office in a trailer at the site. The particular building had been constructed but there were some punch list items left to be completed.

Grzankowski was familiar with the type of coat, chain and plastic bag found in defendant's possession, but could not identify those items as MCG property nor could he say with certainty that those items were taken from inside the trailer. He did indicate that he had never seen defendant before nor had he given him permission to enter the trailer.

The State presented witnesses in connection with evidence admitted pursuant to N.J.R.E. 404b to furnish proof of defendant's motive and/or intent when he admittedly entered the trailer. Detective John Selesky of the New Brunswick Police Department testified to a burglary and theft of cases of DAK canned hams from a warehouse. Defendant was identified through fingerprints left where entry was gained through a window and on loose cans which had been moved. There was also a shoe impression which matched defendant's sneakers. These events took place on June 23 and 24, 1999.

Detective Michael Campbell of the North Brunswick Police Department was patrolling during the early morning hours of June 17, 2005, when he observed defendant walking through residential driveways and ducking down as he went past the windows of houses. He came upon defendant who was carrying a black tool box and riding a reddish color bicycle. The officer had observed a van in one of the driveways with its door slightly ajar. He saw numerous tools inside the van and footprints next to its open door. The homeowner was awakened and identified the missing tools as belonging to him. The footprints near the van matched defendant's sneaker.

At the end of the State's case, defense counsel perceived that he had defendant's defense presented on the State's case through Officer Hetzler's testimony and that he wanted to confer with defendant because the jury was, at that point, not aware of the twelve prior indictable convictions that could be used to affect defendant's credibilty were he to testify. Despite his attorney's advice not to take the stand, defendant testified.

On direct examination, he acknowledged having been convicted as an adult on at least twelve occasions of various fourth and third degree crimes between 1981 and 1999. He further testified that he was released from the county jail one week before he was arrested on this offense. At the time, he was living in a homeless shelter in New Brunswick and, through a temporary agency, found employment at Globe Die Cutting in Metuchen. Defendant claimed he found the bicycle that he was riding in working order before he was transported to his job that morning and hid it under a tarp at a nearby construction site. When he returned at around 5:00 p.m., he retrieved the bicycle and found the coat nearby. Since he had two hours before the shelter was open, he intended to purchase a combination lock for two dollars at the Foodtown, which was located across from the construction site. When he passed the construction site, he noticed several chains lying on the ground underneath the office trailer. He took one of the chains, but needed to reduce its size because it was too long to use for the bicycle. He was unsuccessful in breaking the chain with a cinderblock. He saw that the door to the trailer was open and went inside looking for an implement to use to shorten the chain. When he exited the trailer he was confronted by the police and arrested.

Defendant denied taking anything from inside the trailer, but he admitted he was not authorized to enter the trailer and he had no right to take the chain from underneath the trailer because it did not belong to him. He also admitted to the theft of the hams in 1999 and the tools in 2005.

On appeal, defendant raises the following points for our consideration:

POINT I: SINCE THE STATE ADVANCED CONCEPTUALLY DIFFERENT THEORIES OF CULPABLITY, BASED ON DIFFERENT ACTS AND DIFFERENT EVIDENCE, THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURORS THAT TO CONVICT THEY HAD TO UNANIMOUSLY AGREE AS TO WHICH SPECIFIC CRIMINAL ACTS WERE COMMITTED. THE ABSENCE OF A UNANIMITY INSTRUCTION VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS. (U.S. CONST. AMENDS VI AND XIV; N.J. CONST. (1947) ART. I, PAR. 1. (Not raised below.)

POINT II: THE PROSECUTOR COMMITTED MISCONDUCT BY EQUATING THE JURY'S OATH WITH A GUILTY PLEA VERDICT AND BY EXPRESSING HIS PERSONAL BELIEF THAT DEFENDANT'S TESTIMONY WAS NOT "HONEST." THESE COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL AND REQUIRE THE REVERSAL OF DEFENDANT'S CONVICTION. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. 1, 10. (Not raised below.)

POINT III: DEFENDANT'S EXTENDED TERM IS NOT WARRANTED, AS THE COURT FOUND THAT DEFENDANT WAS "NOT A DANGEROUS CRIMINAL," NOR WAS THERE A BASIS FOR AN IMPLICIT FINDING THAT A DISCRETIONARY EXTENDED TERM WAS NECESSARY FOR THE PROTECTION OF THE PUBLIC. MOREOVER, THE IMPOSITION OF AN EIGHT YEAR SENTENCE WITH TWO YEARS PAROLE INELIGIBLITY WAS IN VIOLATION OF DUNBAR'S REQUIREMENTS. THE SENTENCE IS SUCH A CLEAR ERROR OF JUDGMENT THAT IT SHOULD SHOCK THE JUDICIAL CONSCIENCE.

POINT IV: THE TRIAL JUDGE ERRED IN ADMITTING EVIDENCE OF UNRELATED BURGLARIES. (Raised below.)

We have carefully reviewed the arguments presented by defendant and find that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We, however, provide these additional brief comments.

Defendant's contention that a specific unanimity charge was required is rejected. A person is guilty of burglary "if, with purpose to commit an offense therein he . . . [e]nters a . . . structure . . . unless the structure was at the time open to the public or the actor is licensed . . . to enter." N.J.S.A. 2C:18-2. To prove a burglary, the State need only establish that defendant entered to commit an offense inside the construction trailer. Unanimity is not required when a statute embodies a single offense which can be committed in a number of different ways. State v. Frisby, 174 N.J. 583, 597 (2002); State v. Parker, 124 N.J. 628, 634-35 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992). The scenario presented here was correctly charged to the jury.

The prosecutor's summation was proper and within the parameters expected of the State's representative. The prosecutor did not express any personal opinions regarding defendant's credibility. State v. Jenkins, 299 N.J. Super. 61, 70 (App. Div. 1997). Nor did the prosecutor equate the juror's oath with a finding of guilty. The prosecutor made it clear that the requirement under the oath was to apply the law to the facts and under these facts, defendant ought to be found guilty.

The prosecutor's reference in summation to defendant's prior convictions was unobjected to by the defense. The prosecutor had rhetorically asked the jurors if they would believe someone who has twelve prior convictions as being an honest person, whether they would buy an insurance policy from them, whether they would buy a car or would enter into a contract. The prosecutor answered the question for the jurors by saying that they would respond with a "resounding no." The prosecutor cannot be blamed for using to his advantage defendant's extended criminal career. If defendant's extensive criminal record comes back to haunt him, it is not because of anything the prosecutor said inappropriately during his closing remarks.

The extended sentence was warranted. Defendant has been in the criminal justice system since 1978. In addition to his twelve indictable convictions, he had numerous disorderly persons convictions and a juvenile record of adjudications. Defendant clearly qualified as a persistent offender. The trial judge made the appropriate findings under State v. Dunbar, 108 N.J. 80 (1987). Indeed, defense counsel conceded that defendant was extended term eligible as a persistent offender. Once found eligible, the trial judge recognized that defendant was not a violent offender, but nevertheless, the public was entitled to be protected from crimes against property which can have repercussions to any homeowner or businessperson who is a victim of thefts. Indeed, defendant's counsel at sentencing, in arguing against an extended term, indicated that a sentence of five years with two or two and one-half years of parole ineligibility would be sufficient. The trial judge did not impose a parole ineligibility period beyond that recommended by the defense. The term of eight years under the sentence imposed was in line with the aggravating factors that substantially outweighed the absence of any mitigating factors and complied with the procedure set forth in State v. Pierce, 188 N.J. 155, 169-70 (2006). We see no basis to disturb the sentence imposed.

Lastly, defendant contends that the admission of the two similar burglaries should not have been permitted because their prejudicial value outweighed their probative value. Defendant concedes that the other three criteria under State v. Cofield, 127 N.J. 328, 338 (1992) were satisfied. Those factors were the relevance to a material issue in the case, the other conduct was similar in kind and reasonably close to the incident and the evidence of the other crime must be clear and convincing.

Defendant's state of mind when he, without authorization, entered the trailer, was critical in terms of the State's proofs. Defendant maintained that he had no intention to steal. The jury should have the benefit of other occasions where that is exactly what defendant's intention was in 1999 and 2005 when he committed similar types of burglaries. The trial court properly instructed the jury of the proper use of this testimony before the testimony was heard and during jury instructions. The State also limited this testimony to only two burglaries. We recognize that there is prejudice, but we cannot say that the prejudice outweighed the probative value as found by the trial court. We discern no abuse of discretion in the trial court's ruling. State v. Marrero, 148 N.J. 469, 484 (1997).

Affirmed.

(continued)

(continued)

10

A-6364-06T4

February 3, 2009