On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-04-0662.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2008
Before Judges Collester and Graves.
Defendant Bryan Gilreath appeals from an order dated November 17, 2006, denying his petition for post-conviction relief (PCR). After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm.
On March 13, 2002, a jury convicted defendant of attempted burglary, a third-degree offense contrary to N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-1 (count one); possession of a weapon (a knife) under circumstances not manifestly appropriate for lawful use, a fourth-degree offense contrary to N.J.S.A. 2C:39-5(d) (count two); and hindering apprehension by concealment of evidence, a fourth-degree offense contrary to N.J.S.A. 2C:29- 3(b) (count three). On May 17, 2002, defendant was sentenced to an extended term of seven years with a two and one-half year parole disqualifier to be served consecutively to a sentence he was then serving.
In an unpublished opinion, we affirmed defendant's judgment of conviction and his sentence. State v. Gilreath, A-0591-02 (App. Div. February 9, 2004). Defendant's petition for certification was denied by the Supreme Court. State v. Gilreath, 180 N.J. 356 (2004). In our previous opinion, we noted the evidence of guilt "was very strong," defendant elected not to testify at his trial, and the defense rested without calling any witnesses. However, the parties stipulated "that defendant grew up in Ridgewood, that his wife's maiden name was Franceece, and that her parents owned the house at 392 West End Avenue" before it was sold to Robert and Fiona Meakins. We summarized the facts of the case as follows:
At trial the State produced Erika Lowry who lived at 397 West End Avenue in Ridgewood. Ms. Lowry lived across the street from Robert and Fiona Meakins and their two children at 392 West End Avenue. The Meakins purchased their residence in December 1997, from Mr. and Mrs. Franceece, the parents of defendant's wife.
At about 1:45 p.m. on February 9, 1998, Ms. Lowry was sitting at her dining room table making Valentine's Day cards with her young son. As she glanced out her window, she saw a man come out of the woods bordering her street and walk to the Meakins' front door. The man was wearing tan pants, a brown leather bomber jacket and a brown baseball cap. He also had a brown leather knapsack and was carrying a red bag. Ms. Lowry saw the man open the storm door and reach into his pocket as if searching for keys. . . .
Because Ms. Lowry also knew that no one was at the Meakins home, she called 9-1-1 to report that a man was attempting to enter the Meakins home. Ms. Lowry gave the dispatcher a description, and the dispatcher asked her to remain on the phone line until the police arrived. As Ms. Lowry waited, she looked out her window and saw the man walk down the front steps and into the Meakins' back yard.
Because West End Avenue in Ridgewood borders Glen Rock, police officers from both municipalities responded to the 9-1-1 call. Sergeant John Miller of Glen Rock drove to Lowell Road, a dead end street on the Ridgewood border, and parked his patrol car behind a Chevrolet Blazer later found to be registered to defendant. As Sergeant Miller searched for the man fitting the description given by the police dispatcher, Ridgewood Patrolman William Amoruso arrived at the Meakins' residence.
Amoruso testified that he had turned on his siren to rush to the scene and shut it off only about a block from West End Avenue. He went to the Meakins' front door to see if there was indication of a break-in. When he saw nothing to so indicate, he walked into the back yard to check the rear of the residence. As he approached the back door, he saw that the screen in the kitchen window had been cut in a U-shape. The window under the screen was wide open. There was nothing on the window sill, but three ceramic pots and a tray were placed on the outside deck next to another ceramic pot, leading Patrolman Amoruso to speculate that the pots had been removed preparatory to entering the house. Amoruso then called central dispatch on his portable radio to advise other units a break-in had occurred.
Meanwhile, Patrolman Miller was conducting his own search for the man identified in the original dispatch. As he walked through a side yard, he saw the defendant about fifty or seventy-feet away carrying a brown knapsack and a red bag. After the officer made eye contact with the defendant, he saw him turn, walk part way into a wooded area, toss the knapsack to the ground and walk back to the road. Patrolman Miller approached, identified himself and asked the defendant what he was doing. The defendant's response was, "Nothin', just walking."
It was at this moment that Patrolman Miller heard Patrolman Amoruso's transmission that a break-in had occurred through a back window at the Meakins' home. Miller placed the defendant under arrest, handcuffed him and walked him toward West End Avenue. At this point other Ridgewood police officers arrived to meet Patrolman Miller and the defendant. Miller handed the defendant over to Ridgewood Officer Heath James, who searched defendant and found a locking blade knife. The officers then secured the knapsack, red nylon bag and brown baseball cap defendant had discarded in the woods. In the knapsack were two knives, wire cutters, pliers, gloves and a knit hat with eye holes cut out. When Officers Amoruso and James drove the defendant to ...