On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Antell, Skillman and Villanueva. The opinion of the court was delivered by Villanueva, J.s.c. (temporarily assigned).
Defendant appeals from his convictions for burglary, N.J.S.A. 2C:18-2, and theft, N.J.S.A. 2C:20-3. We reverse.
Mark Thomas was in the basement of his home when he heard a noise upstairs. Upon investigation he saw someone at the top of the stairwell to the basement. Upon discovery, the intruder fled from the house with Thomas in pursuit. The intruder ran down the driveway, threw a small box over his shoulder, and pedalled away on a bicycle that had been lying by the side of the road.
Thomas picked up the box and discovered it was his mother's jewelry box which had contained over $900 of jewelry. The contents of the box were spread all over the driveway. Thomas called the Watchung Police Department and described the intruder as a 5' 10" "chunky" black male, weighing approximately 190 pounds, wearing white pants, a blue jacket and white sneakers. He also told the police that the intruder was riding a blue bicycle. Thomas never saw the intruder's face.
A police officer was on patrol when he received the report of the burglary. He was given the description of the intruder provided earlier by Thomas. The officer saw an individual fitting the aforesaid description, followed him and stopped the suspect, who was later identified as defendant. The suspect was wearing white
sweatpants, white sneakers and a blue denim jacket, and was riding a blue racing bike. Thomas was driven to the scene, and though unable to identify the defendant's face, stated to police that defendant was the correct height and weight and was wearing the same clothes as the intruder.
Following his arrest, the defendant was taken to the Watchung Police Department. He was advised of his Miranda*fn1 rights, asserted his right to remain silent, and requested an attorney. Defendant's sneakers were removed so that a comparison could be made to a sample taken of a footprint found outside the Thomas house. When the police would not answer defendant's question as to why he had been arrested, the defendant waived his rights in the presence of Detective Sean Whelan. Detective Whelan readvised defendant of his Miranda rights prior to accepting defendant's waiver.
In response to the detective's remark that the sneakers were taken to match with a footprint found at the scene, defendant stated "how [are you] going to find footprints in gravel." Though flustered by his apparent slip, the defendant maintained his innocence.
Tests performed by the New Jersey State Police Lab regarding defendant's sneakers were non-conclusive. Though it was determined that defendant's sneakers were of the same manufacturer's design as those leaving prints at the scene, it could not be determined whether the footprints were made by defendant's sneakers. The Somerset County Sheriff's Office was able to recover fingerprints of defendant's left and right thumbs from a window pane of glass found leaning up against the Thomas house.
The jury convicted defendant of burglary and theft. The State's motion for an extended term was granted, and defendant was sentenced to a ten-year custodial term with a five-year period of parole ...