April 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALFRED HONEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-12-4748.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
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.
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)
THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
B. THE TRIAL COURT MADE FINDINGS OF FACT TO IMPOSE AN EXCESSIVE SENTENCE.
Our review of the defendant's legal arguments, in light of applicable precedent, satisfies us that no reversible error was committed, and we therefore affirm the verdict and sentence.
The record contained facts sufficient to establish that defendant was observed by Daouda Faye to be attempting to pick the lock of Faye's van, which contained an inventory of clothes used by Faye in his occupation as a Camden street vendor. After defendant set off the van's alarm, he was confronted by Faye, who sought to bring defendant's conduct to the attention of the police. However, defendant refused to accompany Faye to a nearby transit police location. As a consequence, Faye picked up defendant, carried defendant on his shoulder to the railroad station where the transit police were located, and deposited him there. The transit police called the Camden police, and Officer Louis Acetti responded. After viewing Faye's van, which showed evidence that the passenger-side door lock had been damaged, Acetti arrested defendant. A search incident to arrest revealed a long wire hairpin, allegedly used by defendant in his attempt to pick the lock. Thereafter, defendant was charged with third- degree attempted burglary, and he was convicted by a jury of that charge.
In convicting defendant, the jury rejected defendant's claim that he was merely seeking to urinate near the van when its over-sensitive alarm sounded, and that his presence in the area was entirely innocent. Honey admitted to the jury that he had been convicted of felony charges on at least seven prior occasions. However, he testified that whereas he was guilty of those crimes, he had not committed the attempted burglary at issue. In all, he gave three various explanations for his possession of the hair pin, claiming that he might have gotten it from his nephew, from his friend's daughter, or otherwise. Defendant testified that, prior to his arrest, he was using the hair pin to hold the back of his hat together, that it became dislodged when the police asked him to remove the hat, and that he then retrieved the hair pin, placing it in his pocket, where it was found.
On appeal, defendant first contends that the trial judge failed to specifically instruct the jury on all of the elements of attempted burglary, and instead had instructed the jury only on the elements of criminal trespass. It is defendant's position that a proper instruction would have required the judge to define the crime that defendant intended to commit after breaking and entering, and to set forth its elements. Because the State had alleged that defendant intended to commit a theft, defendant claims that the State was required to prove that it was defendant's intent to "unlawfully take, or exercise unlawful control over, moveable property of another with purpose to deprive him thereof," N.J.S.A. 2C:20-3a, and that the judge was required to instruct the jury accordingly.
The record establishes that the judge instructed the jury that defendant could be found guilty of attempted burglary if, "with purpose to commit an offense therein" he attempted to enter the structure identified as a 1994 Dodge Ram belonging to Daouda Faye without permission; and, second, that the defendant did so with the purpose to commit an offense therein.
Purpose to commit an offense means the defendant intended to commit an unlawful act inside the structure. The unlawful act allegedly intended was to remove from the vehicle property belonging to Mr. Faye.
In State v. Robinson, 289 N.J. Super. 447 (App. Div.), certif. denied, 146 N.J. 497 (1996), we held in a case in which the defendant was discovered by the police while in the process of entering a residence through a window, that a charge that entirely omitted the nature of the offense the defendant sought to commit upon illegally entering the structure was sufficient, and that the failure to specify the offense did not constitute plain error. Id. at 455. In reaching this conclusion, we recognized that some circumstances could suggest that a defendant's purpose in entering a structure was innocent, for example, to sleep or to escape from bad weather. If a reasonable doubt regarding purpose existed, the defendant should be convicted only of criminal trespass. Id. at 453 (quoting New Jersey Criminal Law Revision Commission, New Jersey Penal Code, Vol. II: Commentary § 2C:18-2 at 211 (1971)). However, we observed in Robinson that the defendant did not suggest an innocent purpose for his conduct, but instead defended against the charge on the ground of mistaken identity. "Consequently, the jury was not confronted by conflicting explanations as to defendant's purpose in entering the building, some criminal, others non-criminal." Id. at 455. In this circumstance, we found:
[G]iven the unequivocal nature of [the defendant's] conduct as suggesting only a criminal purpose, the failure to define the specific offense defendant intended to commit after he entered the building does not constitute plain error. We perceive no reasonable basis upon which the jury might have convicted defendant for entering the dwelling with the purpose to engage in lawful activity.
In the instant situation . . . no reasonable jury would have difficulty concluding "without guidance" whether defendant's purpose was to commit "some unlawful act," the specific wrongful act being of no consequence where no innocent purpose is suggested by the evidence. For us to conclude otherwise would allow a burglary, aborted before the commission of the underlying intended offense, to go unpunished, a result we cannot condone. [Id. at 455-56.]
We regard the reasoning of Robinson to be equally applicable in the factually analogous circumstances of this matter. Moreover, we note that the trial judge, unlike the judge in Robinson, did not leave the nature of defendant's intended offence upon entering the van entirely unspecified, but instead instructed the jury that defendant's purpose was to remove clothing belonging to Faye. Although the judge's description did not entirely encompass the elements of theft, it was not necessary that it do so. We regard the judge's instruction to have been adequately tailored to the evidence in the case, and incapable of causing the jury to reach to an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
Defendant also challenges the judge's instructions to the jury by arguing that the judge committed plain error when she instructed the jury that it could find defendant guilty of criminal attempt if there were an omission to act, but that the "law provides that criminal liability for an offense may not be based on an omission or a failure to act unaccompanied by action unless a duty to perform the omitted act is otherwise imposed by the law." We reject this argument as well.
The trial judge stated to the jury:
The indictment charges that the defendant attempted to commit the crime of burglary. The law provides that a person is guilty of an attempt to commit a crime if the person purposely does or [o]mits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or [o]mission constituting a substantial step in the course of conduct planned to culminate in his commission of a crime.
Because the focus of this case was on defendant's conduct in allegedly attempting to pick the van's lock, and because no failure to act was ever alleged or sought to be proven, we find, under the rule and precedent previously cited, that the inclusion by the judge in her charge to the jury of the surplus verbiage to which defendant objects had no capacity to lead to an unjust result. As a consequence, we find no reversible error.
Defendant additionally contends that the State used his silence against him. The only noted example of this was a stray comment by Officer Acetti that defendant was irate when questioned and refused to give his name. No objection was raised to the comment, which was not used by the State in its closing or in any other respect emphasized or given significance. Again, we find that this incidental comment had no capacity to lead the jury to a verdict that it would not otherwise have reached, and reject the contention that the unobjected-to admission of the comment constituted plain error.
As a final matter, defendant challenges his conviction by arguing that the judge erred in failing to grant his motion for a judgment of acquittal. As the State points out, defendant never moved at trial for such a judgment, but did file a motion for a new trial, which was denied. We construe defendant's argument as addressing this denial, and reject his contention that the judge erred in reaching this conclusion.
Rule 3:20-1 provides that a judge shall not set aside a jury verdict as against the weight of the evidence "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." We do not find that standard to have been met in this case. State v. Perez, 177 N.J. 540, 555 (2003).
Faye's testimony at trial was sufficient to establish that he had observed defendant's conduct for a considerable period of time before accosting him, and that defendant appeared to be attempting to pick the passenger-side door lock of Faye's van. Subsequent investigation revealed damage to the lock, and a post-arrest search of defendant disclosed his possession of an object, a hair pin, capable of being used as a lock pick and incidentally creating the damage that was observed to exist. Additionally, a jury could reasonably have rejected, as incredible, defendant's explanation of how he came into possession of the hair pin, his use of the pin to repair his hat, and the manner in which the hairpin ended up in his pocket, as well as his explanation for his admitted presence in the vicinity of the van at the time the alleged attempted burglary was occurring.
Our review of this evidence, in light of applicable legal standards, see, e.g., State v. Sims, 65 N.J. 359, 373 (1974), satisfies us that the trial judge's determination of the motion should not be disturbed. No evidence of a manifest denial or miscarriage of justice under the law has been demonstrated.
In sentencing defendant, the trial judge found on the basis of defendant's pre-sentence investigation report that he had ten prior Superior Court convictions: four for burglary; two for receipt of stolen property; one for theft of C.D.S.; one for criminal mischief; one for attempt to commit criminal mischief; and one for criminal attempt.*fn1 On this basis, the judge found to be applicable aggravating factors 3 (risk of reoffense); 6 (extent of defendant's prior criminal record); and 9 (need for deterrence). N.J.S.A. 2C:44-1a(3), (6) and (9). The judge gave factor 6 "great weight" because of the number of defendant's prior convictions.
Additionally, the judge found mitigating factor 6 (compensation to the victim), while considering, but declining to rely upon, mitigating factor 1 (defendant conduct neither caused nor threatened serious harm) and 2 (the defendant did not contemplate that his conduct would cause serious harm) because defendant was prevented from fully committing the crimes that he intended. N.J.S.A. 2C:44-1b(1), (2) and (6). Determining that the aggravating factors "substantially" outweighed the mitigating factors, the judge imposed a five-year sentence, with two and one-half years to be served without parole pursuant to N.J.S.A. 2C:43-6(b). The judge denied the State's motion for imposition of a discretionary extended-term sentence.
We find no abuse of discretion in the judge's determination and weighing of aggravating and mitigating factors or, in light of defendant's extensive prior record, in her imposition of a five-year sentence with a two and one-half year parole disqualifier - a sentence that we find to be neither manifestly excessive nor unduly punitive. State v. O'Donnell, 117 N.J. 210, 219-20 (1989); State v. Ghertler, 114 N.J. 383, 389-93 (1989); State v. Roth, 95 N.J. 334, 356-66 (1984).
Contrary to defendant's arguments, no remand is required pursuant to State v. Natale, 184 N.J. 458 (2005), because defendant's sentence, imposed one year after Natale had been issued, complied with that decision's strictures.