On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 00-12-0698.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2005
Before Judges Cuff, Parrillo and Holston, Jr.
Following a trial by jury, defendant, Avery Drew, was convicted of third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. The judge granted the State's motion for an extended term and imposed an eight-year sentence with four years of parole ineligibility, to run consecutive to a custodial term defendant was concurrently serving on an unrelated matter. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm the judgment of conviction, but remand for resentencing in light of the recent holdings in State v. Natale (Natale II), 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497 (2005).
On June 14, 1999, at approximately 8:30 a.m., Sandra Hocker left her residence for work. She lived in a townhouse in an age-restricted condominium complex in Warren Township. Before leaving, however, she turned on her burglar alarm. She locked the front door, but did not engage the deadbolt lock.
At 1:00 p.m., a neighbor, Joanna Rossi, who was seated at the window of her townhouse, observed defendant drive up in a tan Mercedes-Benz automobile, pull first into the parking space next to Hocker's unit, back out of the space, and move his car to the last parking space in the development's lot. After parking the car, defendant walked about one hundred feet back to Hocker's unit and rang the doorbell. When no one answered, he stepped back, looked through the front window, placed one hand on the doorknob of the front door, and used his other hand to "jimmy" the lock. As soon as the door was opened, the burglar alarm went off. Hearing the alarm, Rossi called 9-1-1 and gave a description of defendant and the car. When she returned to the window, she saw defendant driving away from the development. She then advised the police of the direction defendant was heading.
Lieutenant William J. Stahl of the Warren Township Police Department responded to the 9-1-1 call and the burglar alarm. He examined Hocker's front door and noticed a scratch on the door near the handle, a tear in the rubber gasket or weather stripping around the door, and what appeared to be pry-marks between the wood doorjamb and the rubber gasket. Based on these observations, Stahl radioed the other police units, informing them of an attempted burglary.
Defendant was stopped by police about one and one-half miles from the scene of the crime. He refused at first to produce his credentials, and instead made suspicious movements with his hand, sweating profusely, and appearing very nervous. The apprehending officer, Craig Maddaluna, also noticed a long screwdriver sticking out of the driver side door's map pocket. After being advised of his Miranda*fn1 rights, defendant at first denied that he stopped anywhere in Warren. He then claimed he had stopped at a business to ask directions, but left after realizing it was a private residence.
After other officers arrived, defendant was re-advised of his Miranda rights and he offered a second statement. He indicated that he was going to pick up a friend, Maria, at a doctor's office in Somerset, but got lost and eventually pulled into the senior citizen condominium complex in Warren, believing it was the right location. However he was mistaken, realizing as he arrived at Hocker's door that it was not a doctor's office. Defendant then contradicted himself, stating that he knocked on other doors at the complex, attempting to find his friend, and that he spoke to a woman who answered her door.
Meanwhile, Lieutenant Stahl, with Rossi in the car, arrived at the scene of the motor vehicle stop to conduct a drive-by show-up. Rossi recognized defendant's car as the one she saw in the parking lot of her condominium complex, and after going past defendant twice, she positively identified him as the individual who broke into Hocker's townhouse. On the way to headquarters, as they passed Hocker's street, Officer Maddaluna asked defendant if he had been there, to which he replied: "yeah, it looks like it."
Detective Russell Leffert proceeded to Hocker's townhouse to process the crime scene. He observed a scratch on the door near the handle as well as pry marks on the doorjamb. Hocker, who had arrived home by this point, also noticed the scratch marks on her front door as well as "chop marks" in the rubber gasket around the door, which had not been on the door prior to her leaving for work that day. When Hocker opened the front door, Leffert observed two scratches on the door lock's plunger. A chip of paint was also lying on the floor. Leffert took photographs of the pry marks and a microseal casting of the indentations. He then compared the widths of the pry marks and the paint chip with the tip of the screwdriver seized from defendant's vehicle. They matched, all measuring at 3/8ths of an inch in width.*fn2
At headquarters, defendant gave his real name as "Avery Drew", after having previously identified himself as "Carol Drew." He again denied trying to break into Hocker's townhouse, however, when he was confronted with the evidence that Hocker's door had been forced open, he stated that "I may have shook the door hard enough that it may have opened a little." When he heard the burglar alarm, he realized he was not at a doctor's office.
To counteract defendant's account, the State introduced evidence of a prior break-in of a private residence in Hunterdon County, six months earlier, for which he pled guilty. In that incident, the investigating officer spotted tracks in the snow leading up to the house garage window. Underneath the window was a wood pallet that the burglar used as a ladder to climb through the window. An initial search of the home failed to uncover the perpetrator, however one officer stayed behind as others left. Suddenly, defendant popped out of a closet, explaining that he was in the house my mistake: "It's okay, it's okay, I'm in the wrong house." A later search of the premises revealed pry marks on the garage window and scratch marks on a sill plate on the wooden doorjamb of one of the locked bedroom doors. Defendant eventually admitted breaking into the home by prying open the garage window using a screwdriver on the locked bedroom door.
Prior to trial on the instant offense, the court held a hearing, pursuant to State v. Crisafi, 128 N.J. 499 (1992), on defendant's application to represent himself at trial. The court granted defendant's motion but ordered defendant's present attorney, William Cooper, to remain as stand-by counsel. After two days of trial, due to defendant's conduct, the court determined that defendant would no longer continue pro se, and ordered Cooper to represent defendant for the remainder of the trial. When trial resumed the next ...