On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-07-0955.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued August 11, 2010
Before Judges Sabatino and Ashrafi.
Defendant Troy Valentine appeals his conviction of third-degree attempted burglary, N.J.S.A. 2C:18-3a, following a jury trial. Because the trial court omitted important facets from the jury charge, which could have affected the jurors' finding of defendant's guilt of that particular offense, we vacate the conviction and remand for a new trial.
According to the State's proofs, at around 6:30 a.m. on March 5, 2007, Eleanor Williams saw a person turning the doorknob to Tamilla Chapman's apartment in Paterson and then saw that person "fidgeting at the window" of Chapman's residence. After receiving a phone call alerting her to the situation, Chapman checked her window and saw defendant--who lived with his fiancée and children in the same neighborhood--just outside. Chapman stated that she saw defendant hanging on the window and pulling the caulking from around the windowpane. The screen had been removed from the window and was on the ground. The windowpane was "hanging off." Chapman "started banging on the window" to tell defendant to get away. Defendant then went next door to his own residence. Chapman called the police, who came and arrested defendant. He was charged in a single-count indictment with attempted burglary.
Defendant testified at trial that he had been having an affair with Chapman, but ended it that morning. Defendant alleged that Chapman threatened to "have something done to [him]" if he broke off the affair with her. He claimed that Williams saw him leaving Chapman's apartment, and he tried to hide because he thought Williams was his fiancée's sister. He denied causing any damage to the window or window frame.
The jury found defendant guilty of third-degree attempted burglary. The court sentenced defendant to a four year term, with an eighteen month period of parole ineligibility.
On appeal, defendant raises the following points for our consideration:
STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM.
THE TRIAL COURT ERRED IN FAILING TO CHARGE THE LESSER INCLUDED OFFENSE OF CRIMINAL MISCHIEF AS AN ALTERNATIVE TO THE CHARGE OF ATTEMPTED BURGLARY WARRANTING A REVERSAL OF THE CONVICTION.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT[']S ERRONEOUS, PREJUDICIAL AND INCOMPLETE INSTRUCTION ...