The opinion of the court was delivered by: Zazzali, J.
On certification to the Superior Court, Appellate Division.
The issue presented in this appeal is whether an unoccupied apartment that is available for rent retains the status of a "dwelling" for purposes of the criminal trespass statute. Defendant Lamont E. Scott was arrested after breaking into a vacant apartment. In an unreported opinion, the Appellate Division reversed defendant's fourth-degree criminal trespass conviction and directed entry of a judgment convicting him of the lesser-included disorderly persons offense of criminal trespass. The court held that the vacant apartment did not constitute a "dwelling" under N.J.S.A. 2C:18-3a because the "apartment was between rentals, [and] there was no one who actually occupied it or who had the right to occupy it for residential purposes." Because we conclude that an unoccupied apartment that is between rentals and suitable for occupancy is a dwelling for purposes of the criminal trespass statute, we reverse.
Apartment 502 of the Meadow View Court Apartments in Lindenwold is a townhouse with two floors, two bedrooms, and two and a half baths. The apartment had been vacant since April 30, 1997, and did not contain any furnishings, personal belongings, or amenities, other than basic appliances. The apartment's water and electricity, however, were in service. On May 27, 1997, Property Superintendent Tim Moran was in Apartment 502 getting the unit ready for a certificate of occupancy in anticipation of new tenants who were scheduled to move in on June 1, 1997. On May 28, 1997, Moran returned to the apartment to finish his work and observed defendant in one of the bedrooms. Moran exited the apartment and asked a neighbor to call the police. Two Lindenwold police officers arrived and arrested defendant after a struggle.
Defendant subsequently was charged with third-degree burglary, in violation of N.J.S.A. 2C:18-2 (count one); third- degree aggravated assault on a police officer, in violation of N.J.S.A. 2C:12-1b(5) (counts two and three); and fourth-degree resisting arrest, in violation of N.J.S.A. 2C:29-2a (count four). Defendant entered a plea of not guilty. At the close of the three-day trial, defense counsel made a motion to dismiss the burglary charge because the apartment was vacant at the time of the incident. The trial court denied the motion and stated that the apartment was not vacant, noting that the apartment contained carpeting, plumbing, pipes, and appliances, such as a dishwasher.
When charging the jury, the trial court gave the following instruction:
Now, in the event you find the defendant guilty of criminal trespass beyond a reasonable doubt, you must also determine whether the crime was committed in a dwelling. Now, a dwelling is a private home, a place where a person resides and sleeps. A building – a building that is vacant and uninhabited without residents or tenants is not a dwelling within the meaning of the statute. When a structure sits vacant for a substantial period of time, it may lose its character as a dwelling.
In other words . . . you're going to have to remember the facts of the case and make a determination whether, one, it was a structure, and two, whether the structure was a dwelling. [Emphasis added.]
During deliberations, the jury requested clarification on the definition of "dwelling" and what constitutes a "substantial amount of time." The trial court responded:
[W]hen I charged you before I instructed [that] a dwelling is a private home, a place where a person resides and sleeps.
Now, a building that is vacant and uninhabitable, without residents or tenants, is not a dwelling within the meaning of the statute. Therefore, if you find that something is a structure and you find it – it was a dwelling, it's character may change. When a structure sits vacant for a substantial period of time, it may lose its character as a dwelling. Now . . . you have to determine . . . whether the nature of the structure was so altered by time that that would change its – its definition and it would be no longer a dwelling. You may consider . . . what if anything was changed, what was lacking.
Now, you have asked what is substantial. You, the jury, have to determine in your own minds and make your decision what is a substantial period of time. The dictionary defines substantial as meaning ample or considerable in importance or extent. [Emphasis added.]
The jury returned a not guilty verdict on count one charging third-degree burglary. The jury, however, convicted defendant of the lesser-included offense of fourth-degree criminal trespass, N.J.S.A. 2C:18-3a, necessarily determining that Apartment 502 was a "dwelling." In addition, the ...