On appeal from Superior Court, Law Division, Passaic County.
Approved for Publication April 18, 1996. As Corrected June 21, 1996.
Before Judges Petrella, Skillman and Eichen. The opinion of the court was delivered by Eichen, J.A.D.
The opinion of the court was delivered by: Eichen
The opinion of the court was delivered by
Tried to a jury, defendant Peter Robinson was found guilty of third degree burglary, N.J.S.A. 2C:18-2 (count one) and fourth degree resisting arrest, N.J.S.A. 2C:29-2a(1) (count three). The jury found defendant not guilty of fourth degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (count two). Thereafter, the Judge found defendant guilty of possession of burglary tools (a screwdriver), a disorderly persons offense, N.J.S.A. 2C:5-5a. At sentencing, the Judge granted the State's motion for an extended term and sentenced defendant to a term of nine years with a four-year period of parole ineligibility on the burglary conviction, a concurrent term of eighteen months on the resisting arrest conviction, and a concurrent six-month county jail term on the disorderly persons conviction, pursuant to N.J.S.A. 2C:43-10(b). Appropriate fines and penalties were also assessed.
At the close of the State's evidence, defendant moved unsuccessfully for a judgment of acquittal on all three indictable offenses. Defendant argued that no evidence existed that defendant had the purpose to commit an offense in the structure he was observed entering, "especially in light of the fact ... nothing was taken from anyone." The Judge denied the motion, concluding there was sufficient evidence from which a reasonable jury could find defendant guilty of burglary beyond a reasonable doubt.
On appeal from his conviction and sentence, defendant makes the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DISMISSAL OF COUNT I, BURGLARY, BECAUSE THE OFFENSE DEFENDANT INTENDED TO COMMIT WAS NEVER SPECIFIED, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARA. 1.
THE OUT-OF-COURT IDENTIFICATION BY MARGARITA MARTINEZ WAS UNDULY SUGGESTIVE, AND THE ADMISSION INTO EVIDENCE OF BOTH THE OUT-OF-COURT AND IN-COURT IDENTIFICATIONS VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARA. 1. (Not Raised Below)
THE TRIAL COURT ERRED IN DOUBLE-COUNTING AGGRAVATING FACTORS BOTH TO RAISE THE PRESUMPTIVE EXTENDED TERM AND IMPOSE A PERIOD OF PAROLE INELIGIBILITY, AND, AS A RESULT, DEFENDANT'S SENTENCE WAS EXCESSIVE.
We find no reversible error in this record and affirm. Nonetheless, we conclude it is appropriate to comment on the issues raised concerning defendant's burglary conviction and his sentence. The argument in Point II is clearly without merit. R. 2:11-3(e)(2).
Defendant's convictions arose out of an incident on March 7, 1994 when he was apprehended following his attempt to climb through a window of a private residence located in the City of Passaic. The house was occupied by two women who were asleep at the time. Defendant did not know them or have their permission to enter. A neighbor, returning from work at about 11:30 p.m., saw two men, one at a time, go behind the house, one of them holding an unidentified object in his hand. As a result, the neighbor became suspicious and called the police. Upon arrival, the police observed one man standing in front of the house, whom they detained, and a second man hanging half in and half out of a first floor window in the rear of the house. When the police yelled, "Stop, police," the man jumped from the window and fled with two officers in pursuit. One of the pursuing officers observed the man throw a red object on the ground. The suspect was apprehended after a short chase, and a red-handled screwdriver was retrieved from the same area where the ...