Before Judges Dreier, Keefe and P.g. Levy.
The opinion of the court was delivered by: Dreier, P.j.a.d.
 Submitted: May 19, 1998
On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Defendant appeals from a conviction of criminal trespass, N.J.S.A. 2C:18-3, a lesser-included offense of the original charge of burglary. He was sentenced to a term of eighteen months.
A Jersey City police officer testified that on the night of October 26-27, 1995, he was on patrol in a marked radio car with a trained dog from the K-9 unit, when he received a radio call to respond to 258 Duncan Avenue in Jersey City. Upon approaching the house with the dog, the officer observed that the front door had been pried open and that a scissor gate behind the door was pulled apart. The officer, in uniform, entered the house, surveyed the immediate surroundings by flashlight, and twice gave his standard warning in a loud voice: "This is the police. You are under arrest. I have a trained police dog. If you do not come out, I will release him." There was no reply, and the officer released the dog, commanding him to "search and find."
Shortly thereafter, the officer heard scuffling in one of the rooms and a man yell "get the dog off me." The officer entered the room and saw the dog holding defendant's right leg with his teeth. When defendant was handcuffed, the officer called the dog off and then radioed for back-up assistance. The officer found several hand tools (including three screwdrivers (two Phillips head and one standard head), a pair of pliers, a wrench and a hammer in and around a blue satchel located near defendant. Defendant denied that he owned the tools found by the police, although he acknowledged that the tools were in the room where he was found. Defendant was arrested and taken to the Jersey City Medical Center where he was treated for puncture wounds to his right ankle.
The building's owner testified that the building is a two-floor single family dwelling with a basement, situated on property measuring twenty feet by eighty feet. At the time of the alleged burglary, the building had been unoccupied for nearly a year. The house's water, gas and electricity had been disconnected prior to defendant's arrest. He further testified that when he went to the house after the police called him, he discovered that nearly all the copper pipes from the house were missing, in addition to other damage to the house.
Defendant, age forty-nine, testified that he was homeless at the time of the alleged burglary and that he had been seeking shelter inside the house. He did, however, give the police an address, which was the home of his sister. Although the owner had not given defendant permission to enter the house, defendant had, at times, been using the house as shelter for over a month. He testified that the first time he entered the house, he entered through the front door that was closed but not locked, and that although there was a scissor gate on the inside, there were no padlocks on it. He stated that prior to his arrest on October 27, 1995, he had slept six or seven nights in the house, and that, during such time, he had not taken anything from the house, nor did he do anything to damage the house physically.
Defendant claimed that on the night of October 26th he had entered the house at around 8:00 p.m. carrying only his food and a flashlight. After falling asleep, he was awakened by the dog who came in and started biting his leg. Defendant testified that he kicked at the dog and then the police officer hit him across the face with a flashlight, knocking out defendant's front teeth. He denied going to the house with the intent to steal.
Defendant raises four points on this appeal:
THE PROSECUTOR VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO COMPULSORY PROCESS AND DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL BY THREATENING DEFENSE WITNESS MICHAEL COBB WITH CRIMINAL PROSECUTION WHICH CAUSED THE WITNESS TO INVOKE A CLEARLY REMOTE, SPECULATIVE, AND UNREALISTIC FIFTH AMENDMENT CLAIM (Not raised below);
THE PROSECUTOR'S SUMMATION DEPRIVED DEF[E]NDANT OF A FAIR TRIAL ...