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State v. Mangrella

Decided: December 26, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK MANGRELLA, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Union County.

Shebell and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

Tried by a jury defendant was convicted of burglary, N.J.S.A. 2C:18-2, but acquitted of theft, N.J.S.A. 2C:20-3. He was sentenced to an extended term of eight years with four years to be served before parole eligibility. The sentence was made consecutive to a custodial term then being served. Defendant appeals and argues:

POINT I THE COURT ERRED IN NOT SUPPRESSING THE SNEAKERS SEIZED BY THE POLICE.

A. THE PLAIN VIEW EXCEPTION DID NOT JUSTIFY THE SEIZURE OF DEFENDANT'S SNEAKERS.

B. THE SEIZURE OF THE SNEAKERS WAS NOT THE RESULT OF A SEARCH INCIDENT TO AN ARREST.

POINT II DEFENDANT'S ACQUITTAL ON THE CHARGE OF THEFT PRECLUDES ESTABLISHMENT OF THE CRIME OF BURGLARY. (Not Raised Below)

POINT III THE COURT ABUSED ITS DISCRETION IN ADMITTING THE PRYBAR INTO EVIDENCE.

POINT IV THE SENTENCE IMPOSED IS ILLEGAL IN THAT AN EXTENDED TERM SHOULD NOT HAVE BEEN IMPOSED.

Our review of the record convinces us that Points I and III have no merit and do not warrant discussion. R. 2:11-3(e)(2).

A.

Count one of the indictment alleged burglary by charging that defendant "did unlawfully enter the structure of Fotomat at 265 South Avenue [Fanwood] with the purpose to commit an offense therein," contrary to N.J.S.A. 2C:18-2. Count two alleged theft, by charging that defendant "did unlawfully take or exercise unlawful control over the movable property of Fotomat with a value in excess of $500.00 with purpose to deprive the owner thereof" in violation of N.J.S.A. 2C:20-3. The allegations related to an entry into a Fotomat store for purposes of committing a theft and taking property [214 NJSuper Page 441] therefrom. Burglary requires only an entry "with purpose to commit an offense," irrespective of whether an offense is committed. See State v. Pyron, 202 N.J. Super. 502, 504-505 (App.Div.1985); N.J.S.A. 2C:18-2a. Unfortunately the issue in this case becomes somewhat complex in the absence of instructions as to the lesser included offense of attempted theft.*fn1 We need not consider the absence of a charge or verdict on attempted theft, see N.J.S.A. 2C:1-8d; 2C:5-1; 2C:20-3a, because we are satisfied that the verdicts on the two counts do not require reversal of the burglary conviction. Vacation of a conviction is required only if defendant was acquitted on one count which necessarily vitiates an element of the offense for which he was convicted. State v. Peterson, 181 N.J. Super. 261, 267 (App.Div.1981), certif. den. 89 N.J. 413 ...


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