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State v. Subin

Decided: January 11, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALBERT HARRY SUBIN, A/K/A WILLIAM FRANCIS MAY, DEFENDANT-APPELLANT



On Appeal from the Superior Court of New Jersey, Law Division, Camden County.

Michels, Shebell and Gaynor. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

[222 NJSuper Page 229] Following plea negotiations, defendant Albert Harry Subin, a/k/a William Francis May, pleaded guilty to burglary of a 1980 Chevrolet van, a crime of the third degree, in violation of N.J.S.A. 2C:18-2 (Count 1) and attempted theft by an unlawful taking of said van, a crime of the third degree, in violation of N.J.S.A. 2C:20-3 and N.J.S.A. 2C:5-1 (Count 2). The State, for its part of the plea agreement, recommended a four-year custodial term for the burglary and a consecutive three-year custodial term for the attempted theft, a total of seven years of imprisonment, but without a minimum period of parole ineligibility. It was further agreed that defendant would be released on his own recognizance pending sentence. As a condition of the plea agreement, including the State's recommendation that defendant be released on his own recognizance pending sentencing, defendant agreed to appear for sentencing and not to incur any new arrest during the period between the plea and the sentence date. It was agreed that if defendant failed to appear for sentencing or was arrested for any offense in the interim, the sentence would be increased to an aggregate maximum of ten years with a three-year period of parole ineligibility. Finally, it was agreed that any sentence imposed would be served concurrently with any sentence to be imposed for a prior violation of parole.

Defendant failed to appear on the scheduled sentencing date.*fn1 He was subsequently arrested, and in accordance with the plea agreement, the trial court committed him to the custody of the Commissioner of the Department of Corrections for two concurrent five-year terms with a two-year period of parole ineligibility. In addition, defendant was assessed penalties of $50, payable to the Violent Crimes Compensation Board. Defendant appealed.

Defendant seeks a reversal of his conviction and vacation of the sentence imposed for burglary (Count 1) and a remand to the trial court for resentencing to a term without a period of parole ineligibility for his conviction for attempted theft (Count 2). Alternatively, defendant urges this court to exercise its original jurisdiction and impose a sentence without a period of parole ineligibility. Defendant raises the following contentions in his letter brief:

POINT I THERE WAS NEITHER A FACTUAL NOR A LEGAL BASIS FOR THE COUNT OF THE INDICTMENT CHARGING DEFENDANT WITH THE BURGLARY OF THE CAR (Not Raised Below).

POINT II THE CONDITIONS OF THE ALTERNATIVE PLEA AGREEMENT WHICH GOVERNED DEFENDANT'S SENTENCE WERE ILLEGAL (Not Raised Below).

POINT III THE FAILURE OF THE SENTENCING JUDGE TO ALLOCATE THE PAROLE INELIGIBILITY TERM TO ONE (OR POSSIBLY BOTH) OF THE SENTENCES WAS ILLEGAL (Not Raised Below).

We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that, with the sole exception of the failure of the trial court to allocate the parole ineligibility term to a specific count of the indictment, they are clearly without merit. R. 2:11-3(e)(2).

Further comment, however, is appropriate with respect to some of defendant's arguments.

I.

The primary thrust of defendant's contention that there was neither a factual nor a legal basis for his guilty plea to burglary (Count 1) is that he was incorrectly charged with the "non-existent" crime of burglarizing a van in violation of N.J.S.A. 2C:18-2. He argues that since he was also charged with attempted theft of the van in violation of N.J.S.A. 2C:20-3 and N.J.S.A. 2C:5-1 (Count 2), he cannot be charged with breaking and entering the van because it was the ultimate object of the alleged theft. In support of this argument, defendant relies on State v. Velez, 176 N.J. Super. 136 (App.Div.1980), certif. den. 85 N.J. 504 (1981), which is factually distinguishable from this case. In Velez, the defendant was charged with entering without breaking into 12 different vehicles with intent to steal in violation of N.J.S.A. 2A:94-1. This statute provided that:

Any person who willfully or maliciously breaks and enters, or enters without breaking, any building, structure, room, ship, vessel, car, vehicle or airplane, with intent to kill, kidnap, rob, steal, commit rape, mayhem or battery, is guilty of a high misdemeanor.

While the case was pending, the new Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq. was enacted. Defendant therefore moved to dismiss the indictment on the ground that "[t]he offense of breaking and entering into an automobile is no longer an offense under the Code." Velez, 176 N.J. Super. at 138. See N.J.S.A. 2C:1-1c(3) (requiring the dismissal of prosecution for Title 2A offenses which are no longer offenses under Title 2C). Originally, N.J.S.A. 2C:18-2a(1), the counterpart to former N.J.S.A. 2A:94-1, defined the crime of "burglary" as follows:

a. A person is guilty of burglary if, with purpose to commit an offense therein he:

(1) Enters a building or occupied structure, or a separately secured or occupied portion thereof, unless the premises are at the time open to the public or the actor is licensed or privileged to enter;

In affirming the trial court's dismissal of the indictment, we observed that "occupied structure" as contained in N.J.S.A. 2C:18-2a(1) was limited by definition in N.J.S.A. 2C:18-1 to:

Insofar as the automobiles which the defendant had entered were not adapted for the overnight accommodation of persons, we held that the breaking and entering of an automobile was no longer an indictable offense. Significantly, however, we noted that:

While this appeal was pending the Governor approved Separate Bill 884, which became L. 1980, c. 12 [sic]; and which, among other things, amends N.J.S.A. 2C:18-1 to read:

In this Chapter, unless a different meaning is required, "structure" means any building, room, ship, vessel, car, vehicle or airplane, and also means any place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present. [ Ibid. n. 1; N.J.S.A. 2C:18-1; Emphasis added].

Under the present version of N.J.S.A. 2C:18-1 (as amended by L. 1980, c. 112) it is clear that a motor vehicle, such as a van, need not be "adapted for overnight accommodation of persons" in order to fit within the definition of "structure" under N.J.S.A. 2C:18-2. Thus, burglary can be a crime separate and apart from the ultimate offense intended, such as the attempted theft by an unlawful taking. This conclusion is consistent with our common law. In State v. Byra, 128 N.J.L. 429 (Sup.Ct.1942), aff'd 129 N.J.L. 384 (E. & A.1943), cert. den. 324 U.S. 884, 65 S. Ct. 1025, 89 L. Ed. 1434 (1945), the former Supreme Court first addressed the issue of whether separate, consecutive sentences could be imposed where the defendant was indicted and convicted for (1) breaking and entering a warehouse by night with intent to commit grand larceny and (2) the subsequent larceny of valuable chemicals contained therein. In answering this question affirmatively, our former Supreme Court explained:

This reasoning was followed in State v. Quatro, 44 N.J. Super. 120 (App.Div.1957), cert. den. 355 U.S. 850, 78 S. Ct. 73, 2 L. Ed. 2d 60 (1957), where the defendant challenged the imposition of consecutive sentences for convictions based on three separate counts of breaking and entering, larceny of money and knowingly receiving the stolen money. Although consecutive sentences may not be imposed where a general verdict of guilty is returned on indictments containing repugnant counts such as larceny and receiving, the court recognized that:

[a] sentence for breaking and entering can be added, however, to one for either of the other named offenses, as the former, though perpetrated on the same occasion as the others, rests on a criminal act distinct from the larceny and receiving and, hence, is deemed to be a separate offense. Id. at 127.

In State v. Warren, 173 N.J. Super. 528 (L.Div., Resen. Panel 1980), the defendant argued that the three-year sentence for his conviction for entry with intent to steal in violation of N.J.S.A. 2A:94-1 was excessive because he only intended to steal less than $200.00, a disorderly persons offense. Defendant contended that since he intended to steal less than $200.00, his conviction of burglary would have been a crime of the fourth degree, entitling him to a lesser sentence of 18 months under the pertinent provision of the ...


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