On appeal from the Superior Court, Law Division, Bergen County.
Michels, Long and Keefe. The opinion of the court was delivered by Long, J.A.D.
[229 NJSuper Page 180] After a jury trial on Bergen County Indictment No. S-686-86, defendant Julius Williams, Jr. was convicted of distribution of a controlled dangerous substance, cocaine, in violation of N.J.S.A. 24:21-19a(1) (count one); possession of a controlled dangerous substance, cocaine, with intent to distribute, in violation of N.J.S.A. 24:21-19a(1) (count two); possession of a controlled dangerous substance, cocaine, in violation of N.J.S.A. 24:21-20a(1) (count three) and burglary, in violation of N.J.S.A. 2C:18-2 (count five). After merging counts two and three into count one, the trial judge sentenced defendant on count one to a custodial term of ten years and on count five to a concurrent five year custodial term. Defendant was also assessed an appropriate Violent Crimes Compensation Board penalty. He appeals, claiming that the following trial errors warrant reversal:
THE COURT ERRED IN SUBMITTING THE BURGLARY CHARGE TO THE JURY WHICH DENIED DEFENDANT DUE PROCESS OF LAW. (Not Raised Below).
THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.
We have carefully reviewed this record and have concluded that defendant's contentions as to his sentence are entirely lacking in merit. R. 2:11-3(e)(2).
We have also concluded that defendant's claim that it was error for the trial judge to submit the burglary charge to the jury is wide of the mark. This issue requires further discussion. The evidence showed that, in an effort to escape arrest by the police who had observed him in a drug transaction and identified themselves, defendant ran up the stairs of his building, jumped from the fire escape of the building to the fire escape of an adjoining building, removed the window screen from an apartment in that building and entered the apartment. Shortly thereafter he exited the apartment through the window he had entered and descended the fire escape, at which point he was apprehended. Upon his arrest, fifteen vials of cocaine were found on defendant's person. The occupants of the apartment reported to the police that they found a wristband with three vials of what later proved to be cocaine near the window defendant had used to enter.
At the close of the State's case, defendant moved to dismiss count five of the indictment which charged burglary because the State had failed to show any purpose on defendant's part to commit an offense when he entered the apartment. The trial judge denied the motion although he did instruct the jury on the lesser charge of criminal trespass (N.J.S.A. 2C:18-3) at defendant's request. On this evidence, defendant was convicted of certain drug offenses, not at issue here and of burglary.
"Burglary" is defined in N.J.S.A. 2C:18-2 as follows:
a. Burglary defined. A person is guilty of burglary if, with purpose to commit ...