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State v. Powell

Decided: June 8, 1987.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JERRY POWELL, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Gloucester County.

Dreier and Stern.

Per Curiam

Defendant has appealed from his conviction of third degree burglary, N.J.S.A. 2C:18-2. He was sentenced to the presumptive term of four years.

Based upon the State's proofs, the facts appear to be the following. As a result of the triggering of a silent alarm at a commercial building, a patrolman was dispatched to the scene just before 5:30 a.m. on May 20, 1984. Upon approaching the building, the officer noticed a lone, unoccupied automobile in the parking lot and was soon joined by a backup officer who was accompanied by a police dog. While waiting for someone who could open the door to permit a search of the premises, they observed a broken window and, inside the building, glass on an adjoining table and on the floor beneath it. They also

saw what appeared to be a person moving inside the building. As one of the patrolmen waited by a rear corner of the building, he noticed a leg protrude from the broken window and then a person, later identified as the defendant, emerge. The patrolman announced himself but the person responded by running toward the front of the building. He was stopped by the police dog brought to the scene by the canine patrol officer. The officers then arrested defendant, informed him of his rights and took him into custody. The owner of the building and of the company operating therein testified that he did not know defendant and had not authorized him to enter the premises on the morning in question.

Defendant elected to testify despite numerous prior convictions, including four for burglary. He explained that he and one James Geldreich had stopped at the building because of a "for sale" sign in front. Defendant claimed that his employer was looking for such a building and that he, therefore, wanted to inspect it. He and Geldreich drove to the back of the premises and parked their car by a light. Defendant testified that he neither entered the building nor broke a window, but was apprehended outside the building by the officers. He further asserted that he and Geldreich parted company during their walk around the building and that he did not see Geldreich thereafter. On direct examination after defendant stated that the police did not apprehend Geldreich at the scene, defense counsel asked: "Did you tell the police he was there?" Defendant responded: "No, I did not." On cross-examination the prosecutor queried: "Well, you didn't offer the explanation [that Geldreich could have been the person inside the building who initially ran from the police], did you?" Defendant responded: "No." He further explained he did not tell the police about Geldreich because "they didn't ask."

Defendant raises three issues on this appeal:

POINT I

The trial court committed reversible error by charging the jury that it had the right to draw an adverse inference from the defendant's failure to produce James Geldreich as a witness.

POINT II

The prosecutor's comments regarding the defendant's failure to produce Mr. Geldreich as a witness and the defendant's failure to offer an explanation to the police at the time of his arrest were ...


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