STATE OF NEW JERSEY v. MARC A. OLIVERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6285-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARC A. OLIVERO,

Defendant-Appellant.

_____________________________

September 18, 2013

Submitted July 16, 2013 Decided

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

11-04-0832.

Joseph E. Krakora, Public Defender,

attorney for appellant (Michael Confusione,

Designated Counsel, and on the brief).

Carolyn A. Murray, Acting Essex County

Prosecutor, attorney for respondent

(Andrew R. Burroughs, Special Deputy

Attorney General/Acting Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Marc A. Olivero appeals from his conviction by a jury and from the court's sentence of five years imprisonment on a single charge of burglary. We affirm.

At about 5:00 a.m. on December 18, 2010, a security guard for a manufacturing company in Newark called the police when he noticed that a chain and padlock on the front gate of the fenced facility had been cut. Minutes later, the police arrived and apprehended defendant and his brother, Gary Olivero, in a pickup truck as they were driving toward the gate inside the fenced facility. In the cargo area of the pickup truck, the police found eleven printing rollers taken from just outside a warehouse building of the facility. According to a representative of the manufacturing company, each roller was valued at about $1000. The police also recovered the front gate padlock from the back of the pickup truck, and inside the cab of the truck, they found bolt cutters.

Defendant and his brother were charged with third-degree burglary, N.J.S.A. 2C:18-2, and disorderly persons possession of a burglary tool, N.J.S.A. 2C:5-5. They were tried together on the burglary charge. The jury found them both guilty. At defendant's sentencing hearing, the trial judge reviewed his history of thirty-one prior arrests and four prior indictable convictions and sentenced him to five years imprisonment. The State then dismissed the disorderly persons charge.

On appeal, defendant argues:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL OF THE BURGLARY CHARGE BECAUSE THE PROOFS DID NOT PERMIT A REASONABLE JURY TO FIND THAT DEFENDANT ENTERED ANY PART OF THE "STRUCTURE" AS DEFINED BY THE CRIMINAL CODE.

POINT II

THE PROSECUTOR'S COMMENTS DURING SUMMATION CAUSED AN UNFAIR TRIAL.

POINT III

THE TRIAL COURT'S CHARGE TO THE JURY TO DISREGARD PART OF DEFENSE COUNSEL'S ARGUMENT DURING SUMMATION WAS IMPROPER AND UNFAIRLY PREJUDICED DEFENDANT.

POINT IV

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR MISTRIAL.

POINT V

THE TRIAL COURT ERRED IN ADMITTING THE BOLT CUTTERS INTO EVIDENCE WITHOUT THE STATE ESTABLISHING PROPER CHAIN OF CUSTODY.

POINT VI

DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE; REMAND IS REQUIRED TO CLARIFY WHAT PROMISES OR REPRESENTATIONS WERE MADE TO DEFENDANT REGARDING THE LENGTH OF SENTENCE TO BE IMPOSED IN CONNECTION WITH THE RESOLUTION OF RELATED CHARGES.

We find no merit in any of these arguments.

Defendant argues that he could not be convicted of burglary because the State presented no evidence that he entered a "structure." There was no evidence that he ever entered any building of the manufacturing company but only that he was present in a fenced yard and had in his possession property of the company kept outside a building.

N.J.S.A. 2C:18-2 states in relevant part: "A person is guilty of burglary if, with purpose to commit an offense therein or thereon 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." N.J.S.A. 2C:18-1(a) defines "structure" as "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, whether or not a person is actually present."

Although no published New Jersey opinion brought to our attention has previously held so, we conclude that the fenced and secured lot of a facility to which the public is not invited is a "structure" within the meaning of the statute if it is also a "place adapted . . . for carrying on [the] business" of the property owner. This conclusion is consistent with interpretation of similar burglary statutes in several other jurisdictions. See Joy v. State, 460 N.E.2d 551, 558-59 (Ind. Ct. App. 1984); Iowa v. Hill, 449 N.W.2d 626, 626-28 (Iowa 1989); Commonwealth v. Rudenko, 907 N.E.2d 254, 257-58 (Mass. App. Ct. 2009), review denied, 920 N.E.2d 878 (Mass. 2010); State v. Gonzales, 194 P.3d 725, 726-27 (N.M. Ct. App. 2008);Commonwealth v. Hagan, 654 A.2d 541, 543-44 (Pa. 1995); State v. Roadhs, 430 P.2d 586, 588 (Wash. 1967).

Defendant cites our decision in State ex. rel. L.E.W., 239 N.J. Super. 65, 74 (App. Div.), certif. denied, 122 N.J. 144 (1990), in support of his argument that the uncovered lot of a business facility is not a "structure" within the meaning of N.J.S.A. 2C:18-1(a). That case involved a charge of defiant trespass, N.J.S.A. 2C:18-3(b), by a juvenile who was "hanging out in the [7-11] parking lot talking with her boyfriend." L.E.W., supra, 239 N.J. Super. at 67-68.

The fenced and locked lot of a manufacturing company is not the same as a parking lot of a retail business generally open to the public. Clearly, the purpose of the fence and locked gate was to exclude the public and to provide a facility where the company could keep its property. The rollers were taken in the middle of the night from just outside a building located on the lot, that is, from an area referred to in the common law as the curtilage of the warehouse building, see Edwards v. Derrickson, 28 N.J.L. 39, 44-45 (Sup. Ct. 1859), aff d, 29 N.J.L. 468 (E. & A. 1861). Defendant was properly found guilty of burglary.

Defendant argues next that there was prosecutorial misconduct in summation when the prosecutor compared the manufacturing company's lot to the enclosed but uncovered garden department of a Home Depot store. The prosecutor made the comparison in response to defense counsel arguing in his summation that the rollers had been abandoned outside the manufacturing facility. The trial judge sustained defendant's objection to the comparison and instructed the jury that:

[T]he facility in question, which is the subject of this trial, is not a Home Depot facility. It's not a facility that serves the same purpose as a Home Depot store. And you're not to make any inference that it is a Home Depot store.

This curative instruction was sufficient to correct any misconception of the law or prejudice to defendant, especially when considered together with the court's general instructions on the elements of burglary and its instruction that "statements by the attorneys as to what the law may be must be disregarded by [the jury] if they are in conflict with [the court's] charges." We find no reversible error in the prosecutor's summation argument.

Defendant argues that the trial court erred in sustaining the State's objection and instructing the jury to disregard the following comment by defense counsel in her closing argument: "Marc has not been charged, has not been charged with possession of burglary tools. No charge to that. None whatsoever." Of course, the statement was false. Defendant was charged with possession of a burglary tool, but that charge was not before the jury because it was a disorderly persons offense. Defense counsel is not free to make false statements to the jury. There was no error in the court's ruling or curative instruction to the jury.

In his fourth point of argument, defendant contends the trial court erred in denying his motion for a mistrial on the ground that several members of the prosecutor's office were in the courtroom and spoke to or otherwise communicated with the Assistant Prosecutor who was trying the case in the presence of the jury. We find insufficient merit in the argument to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Similarly, we find insufficient merit in defendant's fifth argument point that the court erred in admitting in evidence the bolt cutters recovered from the pickup truck. The prosecution witnesses identified the bolt cutters. There was no abuse of discretion in the trial court's evidentiary ruling that a foundation was established for its admission. See, e.g., State v. Brown, 170 N.J. 138, 147 (2001).

Finally, defendant argues that his sentence was improper because the prosecution had agreed to recommend a four-year sentence, with eighteen months of parole ineligibility, as part of a plea agreement he entered following the jury's verdict to dispose of another pending indictment against him. At the sentencing hearing, the prosecution fulfilled the terms of its agreement by informing the court of the plea agreement and recommending that defendant receive concurrent four-year sentences on both indictments. The court rejected the prosecutor's recommendation and sentenced defendant to five years on the indictment under review in this case.

Because there was no plea agreement in this case and the court was sentencing him following trial and a guilty verdict, the court was not restricted in the sentence it could impose within the range permitted by the statute of conviction.

We also find no error in the court's determination that aggravating factors three, six, and nine applied, N.J.S.A. 2C:44-1(a)(3), (6), (9), and that no mitigating factors applied to defendant's sentence, N.J.S.A. 2C:44-1(b). See State v. Bieniek, 200 N.J. 601, 609 (2010).

Affirmed.