On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Pressler, Brody and Havey. The opinion of the court was delivered by Brody, J.A.D.
A jury found appellants and a co-defendant guilty of attempted burglary. We consolidated their separate appeals and now reverse the convictions and remand for a new trial because the trial judge erred in refusing to allow the jury to consider whether appellants committed the crime of criminal mischief. Two additional points raised by appellants will require attention; the rest are rendered moot by our remand.
Robert Livaich, an off-duty police officer, was driving past a warehouse about 9:45 p.m. when he noticed defendant William Josey pacing back and forth in front of the building. Josey was looking from side-to-side and over his shoulder toward the building. The officer suspected that Josey was standing lookout for a burglary. He parked his car in a lot across from the warehouse and continued his observations. An on-duty police
officer happened to drive past the building about the same time in response to a call from another location. He heard the sound of breaking glass coming from the direction of the warehouse and radioed this information to police headquarters.
Detective Robert Stewart responded to the radio call and joined Officer Livaich just after Josey had entered a wooded area alongside the building. The officers followed him and soon came upon all three defendants crouched behind bushes near the building. The officers testified that a pair of gym socks were lying on the ground nearby. Detective Stewart testified that socks are commonly used by burglars to protect their hands from shards of glass and to avoid leaving fingerprints. The police found another pair of socks in defendant Clarke's back pocket.
Meanwhile additional officers arrived at the scene. An inspection of the building revealed that a windowpane, located at the front of the building behind tall shrubs, was completely missing. A rock and shattered glass were inside the building near the window. There were shoeprints on the ground in a two-foot space between the shrubs and the broken window.
The State relied on the foregoing circumstantial evidence to prove the crime of attempted burglary, the only offense charged in the indictment.
Defendants told their story through the testimony of Josey. He testified that they were on the way to the movies when they stopped at a tavern to purchase a six-pack of beer. They took the beer to where the police later found them. After finishing his beer, Josey left to purchase cigarettes with the understanding that he would meet the others in front of the warehouse upon his return and then they would go to the movies. When Josey returned the others were not there. While he was waiting for them to emerge from the bushes, he noticed a police car pass by. He then went into the bushes to see what was causing the delay. He found his friends and had settled in with them when the police arrived. Josey denied any intent to
burglarize the warehouse, denied hearing the sound of breaking glass, and denied seeing any socks on the ground. The jury obviously rejected his story.
After both sides had rested, defendant Clarke's attorney asked the court to "charge criminal mischief as a lesser included offense" based upon evidence that defendants broke the window. Criminal mischief is committed by a person who "[p]urposely or knowingly damages tangible property of another. . . ." N.J.S.A. 2C:17-3(a)(1). Without asking the assistant prosecutor for his view, the trial judge replied:
Absolutely not. There is no evidence that they committed criminal mischief, none at all.
He explained that in view of Josey's denial that he broke the window and in the absence of any direct evidence that any of the defendants threw the rock through the window, it would be ...