On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-03-0479.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and LeWinn.
The grand jurors for Middlesex County indicted defendant for third-degree burglary, N.J.S.A. 2C:18-2a(1); third-degree possession of a controlled dangerous substance, heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); and third-degree possession of a controlled dangerous substance, heroin, N.J.S.A. 2C:35-10a(1). The judge dismissed the burglary charge at the conclusion of the State's case but determined that it was appropriate to instruct the jury on criminal trespass as a lesser-included offense of burglary.
The jurors found defendant guilty of criminal trespass in the fourth degree and possession of heroin. They found defendant not guilty of possession of heroin with the intent to distribute. On defendant's conviction for possession, the judge sentenced him to a five-year term of imprisonment, two and one-half years to be served without possibility of parole, and on his conviction for trespass, to a consecutive eighteen-month term. The appropriate fines, penalties and assessments were imposed.
Defendant raises these issues on appeal:
I. THE COURT ERRED WHEN IT INSTRUCTED THE JURY ON CRIMINAL TRESPASS AFTER IT DISMISSED THE BURGLARY CHARGE IN THE INDICTMENT, IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHT TO INDICTMENT BY GRAND JURY (PARTIALLY RAISED BELOW).
II. THE COURT ERRED WHEN IT RELIED ON THE SAME AGGRAVATING FACTORS TO IMPOSE CONSECUTIVE SENTENCES, THE MAXIMUM TERM ON EACH CHARGE, AND TO IMPOSE A PAROLE DISQUALIFIER ON THE THIRD DEGREE CONVICTION.
III. THE COURT ERRED BY FAILING TO GIVE DEFENDANT GAP TIME FOR A MUNICIPAL COURT ARREST AND SENTENCE IMPOSED AFTER HIS ARREST IN THE CASE AT BAR.
Finding no error affecting defendant's conviction or sentence for third-degree possession, we affirm that conviction and sentence. Because the judge erred by submitting the lesser-included offense of fourth-degree trespass to the jurors but properly directed the jurors to consider the elements essential to a conviction for the disorderly persons offense of trespass, we mold the verdict and remand for resentencing on that conviction.
Defendant and his girlfriend dated for about three years. She lives with her parents in Willingboro Township, and because she and defendant are of different ethnic groups she did not tell her parents about defendant or invite him to her home.
During the summer of 2006, defendant's girlfriend terminated their relationship. Upset by the break-up, defendant wrote her letters, attempted to call her and went to her parents' home uninvited. On one occasion, defendant introduced himself to her father and spoke to him. Although her father told defendant to stay away from his home and his daughter, defendant did not comply. Subsequently, his girlfriend was surprised to see him at her doctor's office and at her home. She told him she did not want to speak to him anymore.
On September 20, 2006, at approximately 4:20 a.m., defendant entered his girlfriend's home through a window and without invitation or consent. Her mother, awakened by the noise, investigated and yelled when she saw defendant. When the father came downstairs, he recognized defendant. He and his son restrained defendant while the family waited for the police to respond to a 911 call placed by the girlfriend. Although defendant attempted ...