On appeal from Superior Court, Law Division, Camden County.
Bischoff, Milmed and Francis. The opinion of the court was delivered by: Francis, J.A.D.
Defendant Derrick Burch was convicted after a jury trial on two charges: (1) burglary in the third degree, contrary to N.J.S.A. 2C:18-2 and (2) theft in the third degree, contrary to N.J.S.A. 2C:20-3. On the burglary charge defendant was sentenced to an extended term of five to ten years with a presumptive sentence of seven years. On the theft charge he was sentenced to a presumptive sentence of four years to run concurrently with the burglary sentence.
The following issues are raised by defendant on his appeal:
Point I The trial judge erred in denying defendant's motion for a judgment of acquittal.
Point II The trial judge's charge to the jury contained several errors requiring reversal of the judgment rendered below.
Point III The sentence imposed by the trial judge below was manifestly excessive.
We have considered the contentions raised in Points I and III and the arguments advanced in support of them in our review of the record, including the presentence report submitted on the appeal. We find the issues raised by the defendant as to these contentions to be clearly without merit. R. 2:11-3(e)(2).
In Point II, raised for the first time on appeal, defendant contends that the trial judge, in his charge to the jury, made an improper reference concerning defendant's failure to testify. In his charge the judge stated:
In considering whether possession of recently stolen property has been satisfactorily explained, you are, again, reminded that in exercise of his Constitutional Rights the defendant need not take the witness stand and testify. Possession may be satisfactorily explained through other circumstances, other evidence independent of any testimony of the defendant.
Thus, if you find that the State has proven that the defendant was in exclusive possession of the property and that the property had been recently stolen, you may find the defendant guilty in the absence of a satisfactory explanation of the evidence as to the curcumstances [ sic ] surrounding the possession of the property.
Defendant asserts that the charge was "clearly inconsistent" in that its "import" was that defendant "need not testify in a criminal trial; and yet must offer a satisfactory explanation of the evidence as to the circumstances surrounding the possession of stolen property since no one else could explain such possession save for the defendant." Defendant maintains that the charge, in implying that he "has the right not to say what he must say in order to overcome a presumptive inference," ...