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State v. Honey

April 2, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALFRED HONEY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-12-4748.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 12, 2008

Before Judges Payne and Messano.

Defendant, Alfred Honey, appeals from his conviction by a jury of third-degree attempted burglary, N.J.S.A. 2C:5-1 and 2C:18-2, and his custodial sentence of five years with two and one-half years of parole ineligibility. On appeal, he raises the following issues:

POINT I.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS, PREJUDICIAL AND INCOMPLETE INSTRUCTION TO THE JURORS ON THE LAW OF ATTEMPTED BURGLARY. (Not Raised Below)

A. THE TRIAL COURT ERRED IN ITS INSTRUCTION ON THE ELEMENTS OF THE OFFENSE OF THEFT THAT ELEVATED THE CRIME OF CRIMINAL TRESPASS INTO THE CRIME OF ATTEMPTED BURGLARY.

B. THE TRIAL COURT ALLOWED THE JURORS TO CONVICT THE DEFENDANT BASED ON AN OMISSION TO ACT, WITHOUT INFORMING THE JURORS ABOUT THE NATURE OF THE LEGAL OBLIGATION THAT WAS BREACHED BY HIS FAILURE TO ACT.

POINT II.

THE ADMISSION OF EVIDENCE OF THE DEFENDANT'S SILENCE AT OR NEAR THE TIME OF HIS ARREST TO PROVE HIS GUILT VIOLATES THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW. (Not Raised Below)

POINT III.

THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD ...


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