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State v. Lee

February 3, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CARL J. LEE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-05-684.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2009

Before Judges Stern and Newman.

Tried by a jury, defendant Carl J. Lee was found guilty of third degree burglary. On March 2, 2007, the trial judge granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:44-3a, and sentenced defendant to eight years imprisonment with thirty months of parole ineligibility. Defendant appeals. We affirm.

On February 26, 2006, at 6:15 p.m., two New Brunswick police officers were dispatched to the area of Kilmer Avenue and Charles Street on a report of a burglary in progress in an office trailer on a construction site. They arrived within seconds and observed defendant exiting the trailer carrying a black plastic garbage bag. Defendant dropped the bag when instructed to do so. He was placed under arrest and seated in the rear of the patrol car. He properly identified himself when requested to do so by the officer. When asked what he was doing at the site, he indicated that he was looking for something to cut a chain with. He knew he did not belong there, but he wanted to reduce the length of a chain he found so that he could lock up his bicycle which was lying on the ground next to the trailer entrance.

Police Officer Thomas Hetzler entered the trailer and observed some jackets hanging and small hand tools, but nothing of value. The black garbage bag contained a length of chain and a jacket.

Michael Grzankowski owned and operated the MCG Contracting Company. According to Grzankowski, MCG was erecting two buildings at the location and maintained an office in a trailer at the site. The particular building had been constructed but there were some punch list items left to be completed.

Grzankowski was familiar with the type of coat, chain and plastic bag found in defendant's possession, but could not identify those items as MCG property nor could he say with certainty that those items were taken from inside the trailer. He did indicate that he had never seen defendant before nor had he given him permission to enter the trailer.

The State presented witnesses in connection with evidence admitted pursuant to N.J.R.E. 404b to furnish proof of defendant's motive and/or intent when he admittedly entered the trailer. Detective John Selesky of the New Brunswick Police Department testified to a burglary and theft of cases of DAK canned hams from a warehouse. Defendant was identified through fingerprints left where entry was gained through a window and on loose cans which had been moved. There was also a shoe impression which matched defendant's sneakers. These events took place on June 23 and 24, 1999.

Detective Michael Campbell of the North Brunswick Police Department was patrolling during the early morning hours of June 17, 2005, when he observed defendant walking through residential driveways and ducking down as he went past the windows of houses. He came upon defendant who was carrying a black tool box and riding a reddish color bicycle. The officer had observed a van in one of the driveways with its door slightly ajar. He saw numerous tools inside the van and footprints next to its open door. The homeowner was awakened and identified the missing tools as belonging to him. The footprints near the van matched defendant's sneaker.

At the end of the State's case, defense counsel perceived that he had defendant's defense presented on the State's case through Officer Hetzler's testimony and that he wanted to confer with defendant because the jury was, at that point, not aware of the twelve prior indictable convictions that could be used to affect defendant's credibilty were he to testify. Despite his attorney's advice not to take the stand, defendant testified.

On direct examination, he acknowledged having been convicted as an adult on at least twelve occasions of various fourth and third degree crimes between 1981 and 1999. He further testified that he was released from the county jail one week before he was arrested on this offense. At the time, he was living in a homeless shelter in New Brunswick and, through a temporary agency, found employment at Globe Die Cutting in Metuchen. Defendant claimed he found the bicycle that he was riding in working order before he was transported to his job that morning and hid it under a tarp at a nearby construction site. When he returned at around 5:00 p.m., he retrieved the bicycle and found the coat nearby. Since he had two hours before the shelter was open, he intended to purchase a combination lock for two dollars at the Foodtown, which was located across from the construction site. When he passed the construction site, he noticed several chains lying on the ground underneath the office trailer. He took one of the chains, but needed to reduce its size because it was too long to use for the bicycle. He was unsuccessful in breaking the chain with a cinderblock. He saw that the door to the trailer was open and went inside looking for an implement to use to shorten the chain. When he exited the trailer he was confronted by the police and arrested.

Defendant denied taking anything from inside the trailer, but he admitted he was not authorized to enter the trailer and he had no right to take the chain from underneath the trailer because it did not belong to him. He also ...


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