STATE OF NEW JERSEY v. JASON VICENTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4215-07T44215-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON VICENTE,

Defendant-Appellant.

________________________________

 

Submitted March 9, 2010 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from Superior Court of New

Jersey, Law Division, Burlington County,

Indictment No. 07-03-0479.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Anderson D.

Harkov, Designated Counsel, on the

brief).

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent (Alexis

R. Agre, Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

The grand jurors for Burlington County indicted defendant for third-degree burglary, N.J.S.A. 2C:18-2a(1); third-degree possession of a controlled dangerous substance, heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); and third-degree possession of a controlled dangerous substance, heroin, N.J.S.A. 2C:35-10a(1). The judge dismissed the burglary charge at the conclusion of the State's case but determined that it was appropriate to instruct the jury on criminal trespass as a lesser-included offense of burglary.

The jurors found defendant guilty of criminal trespass in the fourth degree and possession of heroin. They found defendant not guilty of possession of heroin with the intent to distribute. On defendant's conviction for possession, the judge sentenced him to a five-year term of imprisonment, two and one-half years to be served without possibility of parole, and on his conviction for trespass, to a consecutive eighteen-month term. The appropriate fines, penalties and assessments were imposed.

Defendant raises these issues on appeal:

I. THE COURT ERRED WHEN IT INSTRUCTED THE

JURY ON CRIMINAL TRESPASS AFTER IT DISMISSED THE BURGLARY CHARGE IN THE INDICTMENT, IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHT TO INDICTMENT BY GRAND JURY (PARTIALLY RAISED BELOW).

II. THE COURT ERRED WHEN IT RELIED ON THE

SAME AGGRAVATING FACTORS TO IMPOSE CONSECUTIVE SENTENCES, THE MAXIMUM TERM ON EACH CHARGE, AND TO IMPOSE A PAROLE DISQUALIFIER ON THE THIRD DEGREE CONVICTION.

III. THE COURT ERRED BY FAILING TO GIVE

DEFENDANT GAP TIME FOR A MUNICIPAL COURT ARREST AND SENTENCE IMPOSED AFTER HIS ARREST IN THE CASE AT BAR.

Finding no error affecting defendant's conviction or sentence for third-degree possession, we affirm that conviction and sentence. Because the judge erred by submitting the lesser- included offense of fourth-degree trespass to the jurors but properly directed the jurors to consider the elements essential to a conviction for the disorderly persons offense of trespass, we mold the verdict and remand for resentencing on that conviction.

Defendant and his girlfriend dated for about three years. She lives with her parents in Willingboro Township, and because she and defendant are of different ethnic groups she did not tell her parents about defendant or invite him to her home.

During the summer of 2006, defendant's girlfriend terminated their relationship. Upset by the break-up, defendant wrote her letters, attempted to call her and went to her parents' home uninvited. On one occasion, defendant introduced himself to her father and spoke to him. Although her father told defendant to stay away from his home and his daughter, defendant did not comply. Subsequently, his girlfriend was surprised to see him at her doctor's office and at her home. She told him she did not want to speak to him anymore.

On September 20, 2006, at approximately 4:20 a.m., defendant entered his girlfriend's home through a window and without invitation or consent. Her mother, awakened by the noise, investigated and yelled when she saw defendant. When the father came downstairs, he recognized defendant. He and his son restrained defendant while the family waited for the police to respond to a 911 call placed by the girlfriend. Although defendant attempted to free himself, he did not threaten or attempt to hurt anyone and made no effort to take anything from the home.

Patrolman Shawn Malone of the Willingboro Police Department responded. Defendant was pinned to the floor when he arrived; a side window of the house had been opened and a nearby couch had been moved. Defendant's cell phone was on the couch. Malone arrested defendant. During a search conducted before Malone placed defendant in his patrol car, the patrolman removed thirty-one packets of heroin and $352 in cash from defendant's person.

As noted above, at the close of the State's case, the judge dismissed the burglary charge on the ground that the evidence was insufficient to permit the jurors to find an element essential for conviction that defendant entered his girlfriend's home "with purpose to commit an offense therein," N.J.S.A. 2C:18-2a. The judge stated, however, that he would instruct the jurors on the lesser-included offense of trespass.

Defendant presented testimony from an expert and his mother to support his claim that he possessed the heroin for his personal use and not with the intent to distribute the drug. He presented no evidence relevant to trespass.

Before the case was submitted to the jury, defense counsel argued that because the judge granted the motion for judgment of acquittal pursuant to Rule 3:18-1 and the State did not move to amend the indictment, there was no basis for charging the lesser-included offense. Counsel summarized her argument as follows: "[M]y authority is that it's basic law that, if the main charge is tossed, anything including that charge must be tossed because there's been a finding on the main charge. That's logic."

The judge concluded that the acquittal was entered due to lack of proof of intent to commit a crime upon entry and not due to a lack of evidence to support a finding that defendant entered the home knowing "that he [was] not licensed or privileged to do so." N.J.S.A. 2C:18-3a. On that basis, the judge charged the jury on the elements of fourth-degree trespass.

On appeal defendant presents a different argument. He contends his right to indictment by a grand jury was violated when the charge of fourth-degree trespass was submitted to the petit jury over his objection. His claim is based on the fact that fourth-degree trespass includes an element not included in burglary.

Defendant's observation about the element of the crimes is clearly correct. On the facts of this case, the State was required to prove that the structure was a dwelling in order to obtain a conviction for fourth-degree trespass. N.J.S.A. 2C:18-3a. In contrast, the fact that a structure is a dwelling is irrelevant to a conviction for burglary; it is not an element of that crime. Compare N.J.S.A. 2C:18-2a with N.J.S.A. 2C:18-3a.

A defendant's state-constitutional right to be tried only on charges returned by a grand jury requires the State to "present proof of every element of an offense to the grand jury and specify those elements in the indictment." State v. Fortin, 178 N.J. 540, 633 (2004). To protect that right, absent a request or consent from the defendant, only "offenses that are lesser-included offenses within the meaning of N.J.S.A. 2C:1-8d" may be charged. State v. Thomas, 187 N.J. 119, 131 (2006). This rule limiting lesser-included offenses to those that fall within N.J.S.A. 2C:1-8d applies to charges submitted by the court on its own motion or on the State's request. Id. at 131-33 (discussing the significance of failure to object).

N.J.S.A. 2C:1-8d permits a charge of trespass in a structure, a disorderly persons offense, as a lesser-included offense of burglary. Subsection d(1) includes an offense that "is established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8d(1). In contrast, N.J.S.A. 2C:1-8d(1) does not permit a charge of fourth-degree trespass in a dwelling as a lesser offense of burglary because a conviction for burglary does not require proof that the structure invaded is a "dwelling." N.J.S.A. 2C:18-2a.

Subsections d(2) and d(3) of N.J.S.A. 2C:1-8d expand upon subsection d(1), but neither provision applies here. Subsection d(2) covers "an attempt or conspiracy to commit the offense charged" and subsection d(3) covers offenses that differ from the offense charged "only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission." See Thomas, supra, 187 N.J. at 130-31 (discussing the statute).

The rationale for the rule addressed in Thomas is that "an included offense charge implicates the constitutional considerations of the notice and due process concerns" of the indictment clause of the State Constitution, N.J. Const. art. I, 8. 187 N.J. at 131. When a lesser-included offense has an element that is distinct from the elements of the more serious offense, there is no notice and no grand jury finding as to that element, and the rule established in Thomas applies.

Relying on State v. Singleton, 290 N.J. Super. 336, 341 (App. Div. 1996), and ignoring that defendant's claim on appeal is premised on the distinct element "dwelling," the State observes that we have held that trespass is a lesser-included offense of burglary. But Singleton involved a claim of error raised by defendant on appeal and does not implicate the rationale of Thomas which applies when defendant objects. Id. at 339; see Thomas, supra, 187 N.J. at 131-32 (noting that different rules are required because a request by a defendant presents no problem of notice, which permits a singular focus on "whether the evidence provides a rational basis for the charge"). The State's reliance on State v. Jenkins, 178 N.J. 347, 361 (2004) is also misplaced. That case involved the judge's obligation to charge lesser-included offenses of murder that are encompassed within N.J.S.A. 2C:1-8d(3). Ibid.

Under Thomas it was proper for the judge to charge trespass punishable as a disorderly persons offense. It was improper to charge fourth-degree criminal trespass. Accordingly, we exercise our authority to mold the verdict to a conviction for the disorderly persons offense and remand for resentencing on that count.

We turn to consider defendant's objection to his five-year sentence of imprisonment for possession of a controlled dangerous substance, which is subject to a two and one-half year period of parole ineligibility. Based primarily upon defendant's criminal record and the seriousness of the crimes, the judge found aggravating factors based on risk of recidivism, criminal history and the need to deter defendant and others. N.J.S.A. 2C:44-1a(3), (6), (9).

In imposing the maximum sentence, the judge observed that given defendant's four prior convictions for third-degree crimes, it was difficult to justify imposing a sentence less severe than one he had received on a prior conviction for possession with intent to distribute. Viewed in isolation, the comparison with prior sentences for crimes involving distribution or possession with intent to distribute seems inappropriate, but the judge was focused on the need for specific deterrence and the risk of recidivism. He explained, "defendant has repeatedly come back into the juvenile justice, and criminal justice system again, and again, and again, apparently has not dealt with his with his substance abuse issues, and until he does that, he will continue to present a risk of re-offending." The judge elaborated when he addressed the need for defendant to deal with his addiction, stating "I don't know where the motivation comes from. Maybe spending more time in prison. Maybe that's the motivation. I don't know, but he's got to be deterred . . . ."

The judge found no mitigating factors. He was clearly convinced that the aggravating factors substantially outweighed the mitigating factors. For that reason, imposition of the maximum term and a discretionary period of parole ineligibility pursuant to N.J.S.A. 2C:43-6b was warranted. Finally, the judge imposed consecutive sentences for trespass and possession because the crimes were unrelated and did not involve harm to the same victim. That decision was not inconsistent with N.J.S.A. 2C:44-5 or the rules governing the exercise of discretion pursuant to N.J.S.A. 2C:44-5 that are set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

Defendant argues that he is entitled to relief because the judge erred in considering his prior sentences and in viewing the crimes as separate and the public as the victim of a drug crime. Neither claim provides a basis for this court to disturb the judge's exercise of sentencing discretion.

"[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When a trial judge has "exercise[d] discretion in accordance with the principles set forth in the Code and defined by [the Supreme Court]," we may not disturb a sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations omitted). "In the end, '[t]he fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)).

There was no deviation from the sentencing law, and the factual findings underlying the judge's legal conclusions are fully supported by the record. Accordingly, we affirm the sentence for possession of a controlled dangerous substance.

Defendant raises an argument about credits due to him pursuant to N.J.S.A. 2C:44-5b(2) for time served on a municipal court sentence between November 30, 2006 and April 5, 2007. That issue was not raised at the time of sentencing; it may be raised when defendant is resentenced for the disorderly persons offense of trespass on remand.

Affirmed in part; reversed in part and remanded for further proceedings in conformity with this decision.

 

We note that the State has not presented an argument based on the fact that this indictment was captioned "residential" burglary and listed his girlfriend's name and address. For that reason, we do not explore the question.

(continued)

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A-4215-07T4

July 26, 2010