STATE OF NEW JERSEY v. SALVATORE BARRAFATO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SALVATORE BARRAFATO,

Defendant-Appellant.

________________________________

June 3, 2014

Submitted April 8, 2014 - Decided

Before Judges Sapp-Peterson and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-10-1859.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Matthew P. Tallia, on the brief).

PER CURIAM

A grand jury indicted defendant on charges of second-degree burglary, N.J.S.A. 2C:18-2a (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39:4(d) (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count four); third- and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (counts five and six respectively); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) and/or -3(b) (counts seven and eight). The indictment arose out of an incident with his former landlord, who lived on the first floor of the two-family residence.

Defendant pled not guilty to the charges and the matter proceeded to trial. Following the presentation of the State's case, defendant moved for a directed verdict. The trial judge denied the motion, finding at that stage of the trial the court was not concerned with the worth of the evidence but merely its existence and was satisfied there was sufficient evidence to submit the matter.

The jury convicted defendant of burglary, the two weapons offenses, criminal mischief and the two counts of terroristic threats. At sentencing, the court found one aggravating factor and four mitigating factors, and imposed a three-year aggregate custodial term, together with appropriate fines and penalties. The present appeal followed.

On appeal, defendant raises one point for our consideration, namely, the trial court erred in denying defense counsel's motion for a judgment of acquittal with respect to Count I charging burglary. We disagree and conclude the argument advanced is without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2).

A court shall enter an order for a judgment of acquittal only "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The standard to be applied to determining a motion for a judgment of acquittal at the conclusion of the State's case is set forth in State v. Reyes, 50 N.J. 454 (1967):

[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[Id. at 458-59.]

Under Rule 3:18-1, the trial court "'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).

A person commits an act of burglary "if, with purpose to commit an offense therein . . . [e]nters 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:18-2(a)(1). The salient facts the State presented in support of the burglary charge established that defendant and his family previously resided on the second floor of the multi-family residence owned by Michael and Halina Brodziak, but had been evicted ten months earlier. On the evening of August 27, 2009, the Brodziaks heard a sound from outside their home, and upon investigating the matter, Michael1 saw defendant breaking through the main door of their home, armed with a baseball bat. After breaking the glass portion of the door, defendant reached in, unlocked the deadbolt, and walked onto the landing. Michael was able to push defendant back outside, but the two men commenced to struggle, during which defendant repeatedly threatened to kill Michael. Defendant then approached Halina's BMW and started striking it while screaming that he was going to kill both Michael and Halina.

In our review of the trial court order denying defendant's motion, we apply the same standards as the trial court. See State v. Kittrel, 145 N.J. 112, 130 (1996). Measured under the standards articulated in Reyes, supra, 50 N.J. at 458-59, we have no doubt defendant's motion for a judgment of acquittal at end of the State's case was properly denied. When the evidence is viewed in the light most favorable to the State, the elements of burglary were met. The disputed issue whether, upon entering the premises, defendant intended to commit any of the offenses embodied in the indictment was appropriately left for the jury to determine.

Affirmed.

1 Because Michael and Halina share the same surname, we refer to them by their respective first names. In doing so, we intend no disrespect.