On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 03-01-00146.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Parrillo, Grall and Chambers.
Tried by a jury, defendant, Kenneth Wickliff, was convicted of fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a), and acquitted of fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-3(e).*fn1 He was sentenced to one-year probation and forty hours of community service. Appropriate fees and penalties were also imposed. Defendant appeals. We reverse because the trial judge failed to properly explain to the jury the effect of a mistake of law on a charge of criminal trespass, and because he erroneously limited defendant's presentation of this defense.
Defendant, co-defendant Evans, and co-defendant Grohman were bail collection agents who were trying to apprehend a fugitive, Keith Allen, who had jumped bail. They were employed by Ameritech, Inc., an independent company that performs fugitive recovery services for several bail bond agencies and insurance firms in this State and others. The trio were assigned Allen's file, which consisted of a December 6, 2001 bail bond application to Northwestern National Casualty Company, listing as "indemnitor" Allen's mother, Stephanie Jones, who also signed the form. Jones lived at 179 Bellow Drive, Mt. Royal, with her fiancé, Sterling Spence, his son and Jones' fourteen-year-old cousin. On the bail application form, Jones listed her Mt. Royal address as Allen's home address, and his actual residence, 904 Broad Street, Pleasantville, as his mailing address.
Two days prior to the incident in question, co-defendant Evans went to the Jones' home in search of Allen. He was informed by Jones and Spence that Allen did not live there. Jones, however, called Allen, and, as a result of a conversation with Evans, Allen arranged to voluntarily surrender at a set time and place. However, Allen sent a decoy instead. Consequently, on September 7, 2002, at about 3:00 a.m., the team of three arrived at the Jones' home in search of Allen. Before their arrival, they had contacted the county dispatcher to inform the authorities of their presence in the Mt. Royal area looking for the fugitive. They identified themselves, their purpose, their vehicles and gave their cell phone number.
Defendant approached and knocked on the front door of Jones' residence, backed-up by Grohman, who was standing a few feet behind defendant, and Evans, who secured the backyard area. When Jones and Spence answered, defendant and Grohman announced that they had been sent by the bail bond agency in search of Allen. They were advised that Allen was not present and did not reside there. Nevertheless, defendant and Grohman asserted their "right" to enter the residence in search of the fugitive, but Jones and Spence resisted. After a heated conversation, as Spence went to shut the front door, defendant stuck his foot in the door, preventing Spence from pushing the door shut. When Spence asked him to remove his foot, defendant said "No, you're messing with the law. You don't understand, we have a right to come in and search." Spence responded, "No, you do not. I told you [Allen] does not live here. You can't come in."
During the standoff, Jones called the police. When the officer arrived, he observed defendant and Grohman in the threshold of the front door with their bodies partially into the home, "exerting pressure on the door trying to get into the house . . ." The police officer drew his weapon, ordered defendant and Grohman off the porch, and arrested all three men after Evans appeared from the back of the house.
Defendant testified that he was the lead investigator on Allen's case because of his prior training and experience as a police officer. He denied struggling over the door and claimed that he placed his foot on the threshold of the door only to maintain contact with Jones and Spence while he tried to convince them to let him and Grohman inside to search the premises.
After the court granted co-defendant Evans' motion for judgment of acquittal on the criminal trespass charge, the jury found defendant guilty of criminal trespass and acquitted both defendant and Evans of the charge of possession of a weapon for an unlawful purpose.
In appealing the judgment of conviction, defendant raises the following issues for our consideration:
I. THE INDICTMENT MUST BE DISMISSED BECAUSE THE STATE MISREPRESENTED THE LAW AND FAILED TO PROVIDE EXCULPATORY EVIDENCE TO THE GRAND JURY.
II. THE CHARGES SHOULD HAVE BEEN DISMISSED AS DE MINIMIS BECAUSE THE DEFENDANT WAS PERFORMING THE LEGAL ACTIVITY OF ...