On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-19-1419-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Sapp-Peterson.
K.D., a juvenile, appeals from an adjudication of delinquency for committing acts which, if committed by an adult, would have constituted one count of third-degree burglary, N.J.S.A. 2C:18-2(a)(1), and one count of third-degree criminal mischief, N.J.S.A. 2C:16-3. The court imposed a one-year period of probation and DNA testing, together with the appropriate fines and penalties.
On appeal, K.D. presents the following arguments:
THERE WAS INSUFFICIENT EVIDENCE IN THE TRIAL RECORD TO SUPPORT THE ADJUDICATION OF DELINQUENCY ON THE BURGLARY COUNT.
THE COURT IMPROPERLY FAILED TO ADDRESS THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS[,] DEPRIVING THE JUVENILE OF A FAIR TRIAL.
The State presented the testimony of four witnesses: the two victims and the two police officers involved with the investigation. The defense produced no witnesses. The facts upon which the juvenile delinquency adjudication was based are as follows. On November 9, 2008, after being called by a homeowner who believed her home had been burglarized, police found K.D. on the premises. When police arrived, they found K.D. in the pantry located at the rear of the home. Once apprehended, the arresting officer described K.D. as calm and cooperative. K.D. told the officer that he had entered the home because he was being chased by four men who wanted to rob him. He explained that he had been at the train station waiting for a friend when he was approached by the men, whom he talked to for about fifteen minutes before they told him they were going to rob him. The officer observed that there was a broken Plexiglas window on the door leading onto the rear porch of the house. Outside of the home, police observed a rear cellar door that appeared to have been struck with a red brick, and the smashed windshield of a car parked on the property.
In adjudicating K.D. a delinquent, the court determined the State's witnesses credible and rejected the defense's theory of the case. Accordingly, the court adjudicated K.D. a delinquent.
A person commits burglary "if, with purpose to commit an offense therein he: (1) [e]nters a... structure, or a separately secured or occupied portion thereof... or (2) Surreptitiously remains in a... structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so." N.J.S.A. 2C:18-2. K.D. contends the court improperly used the actual act to gain entry into the dwelling, breaking the window, to find the State proved the element of "purposeful" beyond a reasonable doubt. The State concedes in its brief "that the act of breaking a window to gain entry to a structure cannot also qualify as the unlawful act committed inside the structure which proves the 'unlawful purpose' element of burglary." The State also "concedes that portions of the trial court's decision suggest the judge might have erred in blurring the elements in this regard." The State urges ...