On appeal from the State of New Jersey, Law Division, Mercer County, Indictment Nos. 05-04-0321 and 05-09-0700.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2007
Before Judges Wefing and C.S. Fisher.
Following a trial, defendant was convicted of third-degree burglary, N.J.S.A. 2C:18-2(a)(1), and third-degree theft, N.J.S.A. 2C:20-3(a). The trial judge merged the convictions and sentenced defendant to a ten-year extended term with a five-year period of parole ineligibility. At the time of sentencing, defendant also pled guilty to a charge of third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), which was set forth in an accusation, and sentenced to a five-year term of imprisonment to run concurrent with the other term imposed that day.
Defendant appealed, raising the following arguments for our consideration:
I. INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
II. THE DEFENDANT'S GUILTY PLEA TO ACCUSATION NO. 05-09-0700 MUST BE VACATED AS IT WAS NOT VOLUNTARILY ENTERED AND DEFENDANT WOULD LOSE ANY BENEFITS TO HIS PLEA IF THIS COURT REVERSES HIS CONVICTION ON THE INDICTMENT.
III. THE DEFENDANT'S MAXIMUM SENTENCE OF TEN YEARS WITH FIVE YEARS TO BE SERVED PRIOR TO BECOMING ELIGIBLE FOR PAROLE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
After carefully reviewing the record, we find insufficient merit in these arguments to warrant discussion in a written opinion.
R. 2:11-3(e)(2). We add only the following regarding Point I.
The testimony upon which the jury had a right to rely reveals that Trenton Police Officers Vincent Mistretta and Alexis Durlacher were dispatched to the corner of Mercer and South Montgomery Streets regarding a call that a burglary had been committed at 126 Mercer Street. The officers arrived in "just about a minute" and spoke with a neighbor, who advised that two black men, one wearing a white T-shirt and the other wearing a red T-shirt, had entered and since departed 126 Mercer Street. The officers were told that the black man in the red T-shirt had walked away toward the Mill Hill Playhouse. They proceeded in that direction and observed a black man wearing a red T-shirt, but quickly lost sight of him.
Officer Mistretta then observed a black man wearing a white T-shirt, later identified as defendant, walking toward him in a hurried manner with his hands in his pockets. Upon seeing the officers, defendant appeared startled. Officer Mistretta departed his vehicle, approached defendant and attempted to engage him in conversation. Defendant started stuttering and sweating profusely. As Officer Mistretta continued to walk with defendant, he noticed a black object sticking out of defendant's right front pants pocket. The object appeared to be a handgun, causing Officer Mistretta to conduct a pat-down of defendant.
Instead of finding a gun, Officer Mistretta found in defendant's pocket a black box measuring four-by-six-by-one inches in dimension. Inscribed on the box was the phrase "property of Burgess Ekman." Officer Mistretta recognized that name as the owner of 126 Mercer Street and placed defendant under arrest. His subsequent search of defendant uncovered "a bunch" of foreign coins; the officer also ...