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State v. Berkey

Decided: May 21, 1993.

STATE OF NEW JERSEY, PLAINTIFF,
v.
DAVID BERKEY, DEFENDANT



Imbriani, P.J.Cr.

Imbriani

The issue in this case is whether a person who is not a tenant in a garden apartment complex can be charged with burglary if he enters the laundry room in the basement of one of the apartment buildings with the purpose to commit an offense therein by stealing money from coin-operated machines. N.J.S.A. 2C:18-2 defines burglary as the entry into a structure with the intent to commit an offense therein "unless the structure was at the time open to the public or the actor is licensed or privileged to enter."

For purposes of this motion to dismiss the charge of burglary the defendant does not deny that he entered the laundry room to steal coins from washing machines and that he actually removed a coin mechanism from one of the machines. His contention is that the laundry room is "open to the public" and he was, therefore, in essence a "business invitee" or, in the alternative, he was "privileged to enter" the laundry room. Consequently, he argues that it is irrelevant that he did not receive permission or authorization from anyone to enter the laundry room.

On November 18, 1992, police responded to a complaint that someone was attempting to break into the laundry room of an apartment complex. When the officer approached the laundry room he heard a metallic noise inside the room. Within moments he observed the defendant exit the laundry room, holding in his

left hand an unidentifiable object which he appeared to be hiding. The officer drew his revolver and ordered the defendant to stop and drop whatever he was holding. When the defendant complied, the officer heard a loud clanging noise as the object fell to the floor near the door.

When back-up officers arrived, a search of the laundry room revealed that the coin mechanism of a washing machine had been removed. It was located near the door of the laundry room.

The door to the laundry room was closed but unlocked and there were no posted signs prohibiting non-tenants or strangers from entering.

The core of the common law concept of burglary was the breaking and entry into a dwelling at night with the intent to commit a felony therein. State v. Hauptmann, 115 N.J.L. 412, 180 A. 809 (E. & A.), cert. denied, 296 U.S. 649, 56 S. Ct. 310, 80 L. Ed. 461 (1935). The scope of this offense has been substantially enlarged by statute and because burglary is often punishable more severely than the crime which the actor intended to commit within the structure this has produced serious anomalies in prosecution and punishment. For instance, here the defendant committed the crime of theft of less than $200, which is a disorderly persons offense punishable by up to six months in the county jail. If he also committed a burglary, he has committed a drastically more severe third degree offense which is punishable by up to five years in prison.

The defendant does not dispute that he was not invited or authorized to enter the laundry room by the landlord or any tenant. He was a stranger simply passing through. He argues that the laundry room was "open to the public" or, to put it another way, he was "privileged to enter" because the laundry room was in essence a commercial establishment. He contends that since the laundry room was being operated as a business (the washing machines were coin-operated as in any commercial laundromat) he, like any member of the public, was impliedly invited

to enter and use the laundry room. Thus, he argues that it is irrelevant that he did not have express "permission" or "authorization" from the ...


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