On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-07-1230.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Wefing and Grall.
A one-count indictment charged defendant with attempted burglary, N.J.S.A. 2C:18-2, a crime of the third-degree. At trial, a jury acquitted defendant of attempted burglary but found him guilty of attempted criminal trespass, a crime of the fourth degree. N.J.S.A. 2C:18-3. The trial court sentenced defendant to eighteen months incarceration. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we reverse.
Defendant was arrested in the early morning hours of April 19, 2007, in the rear portion of the premises in Englewood owned by the Haneys. The police had been summoned by Winnie Mainza, who, together with Mr. Haney's mother, was staying in the pool house at the rear of the property. Ms. Mainza was caring for Mr. Haney's mother, who was ill and unable to manage the stairs in the main house. Ms. Mainza testified that the two women were using the pool house because the guest house on the property was being renovated and was not available for their use. Ms. Mainza had awoken to check on her charge, and she heard footsteps. She listened and then saw the handle to the rear door to the pool house turn, as if someone was trying to open it from the other side. She telephoned 911. The police responded and found defendant some distance from the pool house. Asked what he was doing on the property, he responded that he was on his way home but had to urinate and sought a secluded place to do so.
Defendant's trial was brief. The State presented three witnesses, the owner of the property, Ms. Mainza, and the arresting officer. Defendant did not testify.
On appeal, defendant raises the following contentions:
POINT I THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S RULING BARRING ALL SIDEBAR CONFERENCES WAS AN ABUSE OF JUDICIAL DISCRETION THAT RESULTED IN A VIOLATION OF THE DEFENDANT'S FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION
POINT II THE TRIAL COURT VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO AN IMPARTIAL JURY BY IMPROPERLY COERCING A VERDICT (NOT RAISED BELOW).
POINT III THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION.
POINT IV THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING THE MAXIMUM 18 MONTH CUSTODIAL SENTENCE ON THE DEFENDANT'S CONVICTION OF FOURTH DEGREE ATTEMPTED CRIMINAL TRESPASS.
Following submission of this matter to the court, we requested supplemental briefs from counsel on the sufficiency of the trial court's charge on attempted criminal trespass. We have since received supplemental letter briefs from the State and defendant's attorney.
We do not find it necessary to address in detail the points defendant raised on this appeal because we are satisfied that the court's charge on the offense of attempted criminal trespass was insufficient. We are compelled to note, however, that certain remarks by the prosecutor during the course of this trial, such as raising in the presence of the jury the question of whether defendant would testify, had the clear capacity to prejudice this defendant in the jury's eyes. We have also noted in our review of this matter the prosecutor's ...