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State v. Foendoe

November 13, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERRENCE FOENDOE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-06-00875.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 8, 2008

Before Judges Parrillo and Lihotz.

On June 22, 2005, defendant Terrence Foendoe was charged under Middlesex County Indictment No. 05-06-00875 with third-degree burglary, N.J.S.A. 2C:18-2, when he was found opening products stored inside a trailer located in a secured, fenced lot adjacent to the warehouse of C & S Wholesale Grocers (C & S). The jury convicted defendant and the trial judge imposed a sentence of three years imprisonment with all applicable fines and penalties. On appeal, defendant seeks a new trial arguing:

THE TRIAL COURT'S DECISION TO USE THE DEFINITION OF "VEHICLE" AS CONTAINED IN THE MOTOR VEHICLE CODE FOR THE OFFENSE OF BURGLARY, CONTAINED IN THE CRIMINAL CODE, CAUSED THE COURT TO VIOLATE THE LAW OF STRICT CONSTRUCTION, PUT A THEORY OF THE CASE BEFORE THE JURY THAT HAD NOT BEEN PRESENTED TO THE GRAND JURY, AND ALLOWED FOR GROSS PROSECUTORIAL MISCONDUCT, ALL IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL.

We affirm.

C & S supplies wholesale non-perishable foodstuffs to Pathmark Supermarket from its New Brunswick facility, which operates twenty-four hours a day, seven days a week. The premises includes a single driveway with a gated entrance and an attended guard station, a 200,000-300,000 square-foot warehouse building, and a paved area adjacent to the warehouse used to load and unload trailers. The facility is fenced on three sides; the southern side of the building, which contains railroad tracks is the only area of the property that lacks fencing.

Jack Piluso worked for C & S as a trailer switcher, moving the trailers around the yard at the rear of the facility. While moving a trailer one morning, Piluso saw a flash in his vehicle mirror. He stopped to investigate the flash and noticed a door halfway open on a parked trailer. He found defendant inside, rummaging through the freight. Defendant identified himself as "Terrance" and when Piluso asked defendant what he was doing, he responded, "I'm stealing." Piluso pulled the trailer door closed, locked it and notified his supervisor. When police arrived, they released defendant from the trailer and placed him under arrest.

Defendant moved for acquittal at the close of the State's case arguing the State failed to prove each element of burglary as required by the statute since the trailer was not a "structure" or a "separately . . . secured portion" of C & S's facility. The court denied defendant's motion, determining the State presented evidence showing the trailer was located in a secured area of C & S's premises and was a vehicle as defined by Title 39.*fn1 Defendant challenged the finding that evidence was presented to prove the trailer was a vehicle. The defense's objection was overruled.

The issue resurfaced at the charge conference. After extensive argument and over defendant's objection, the trial judge concluded the jury charge would define "structure" using N.J.S.A. 2C:18-1 and, based upon the State's alternate theory of liability that a trailer was a vehicle, use the definitions of "vehicle" and "trailer" set forth in N.J.S.A. 39:1-1.

On appeal defendant argues the State was limited to the theory of liability presented to the grand jury, which was that defendant entered a secured portion of C & S. Thus, the State could not argue defendant entered a vehicle.

Additionally, defendant maintains the trial judge erred by including the motor vehicle code's definitions of "trailer" and "vehicle" to enhance the criminal justice code's definition of "structure." The essence of the contention is that the two codes have "entirely different purposes," such that the definitions cannot be used interchangeably. Defendant argues "[a] vehicle for the purpose of a burglary - a criminal offense for which a defendant can be sentenced to prison - cannot mean the same as a vehicle for the purpose of regulating traffic, obtaining licenses, and keeping order on the roads and highways." We disagree with these arguments.

A burglary involves entrance to a "structure" or a "separately secured . . . portion thereof" without license or privilege accompanied by the purpose to commit an offense within the structure. Gravely v. Speranza, 408 F. Supp. 2d 185, (D.N.J. 2006), aff'd, 219 Fed. Appx. 213, (3d Cir. 2007); State v. Marquez, 277 N.J. Super. 162, ...


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