On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-05-0617.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically February 2, 2009
Before Judges Stern and Rodríguez.
After we vacated defendant's guilty plea and counts of the indictment were severed, defendant was tried to a jury, and convicted of burglary and eluding an officer. He was sentenced to an extended term of seventeen years with five years to be served before parole eligibility on the eluding conviction and a concurrent sentence for the burglary. He was acquitted of aggravated assault and criminal mischief. After sentencing, the severed counts and two DPs were dismissed.
Defendant argues he was denied a fair trial due to the prosecutor's "misconduct," that a judgment of acquittal should have been granted on the burglary count, and that his sentence is excessive and the court "erred when it sentenced Hampton to an extended term."
The car defendant was driving on June 10, 2002, was stopped about an hour or an hour and a half after the owner of another car discovered his vehicle had been burglarized and its radio had been "ripped out" and stolen. Defendant does not claim there was insufficient evidence to sustain the eluding charge before he was eventually stopped. The stolen radio was in the vehicle defendant was driving.*fn1 The inferences are sufficient to sustain the burglary conviction. State v. Reyes, 50 N.J. 454, 458-59 (1967).
Defendant testified he was endeavoring to locate his sister around the time of the burglary. In the summation the prosecutor stated the jury "didn't hear from" defendant's sister. Such was not a comment on defendant's silence, because defendant testified, and in context it cannot be read to change the burden of proof.*fn2
Defendant acknowledges he was extended-term eligible under N.J.S.A. 2C:44-3a, as a persistent offender. The sentence was imposed in January 2006. This appeal was in the pipeline when State v. Pierce, 188 N.J. 155 (2006) was decided. Accordingly, we remand for resentencing of the extended term sentence for eluding.
The judgment of conviction is affirmed. The matter is remanded ...