On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-10-00812.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 20, 2010
Before Judges Cuff and Fasciale.
Defendant, Erik K. Patterson, appeals from a June 18, 2009 judgment of conviction after he pled guilty to third-degree burglary, N.J.S.A. 2C:18-2 (Count One). Defendant argues that no factual basis existed for his plea because (1) a towing company's secured parking lot is not a "structure," and (2) he did not intend to commit theft of services. We disagree and affirm.
On August 31, 2008, defendant parked his car illegally in front of a fire hydrant. A driver from Bob's Auto Body Shop (Bob's Auto) towed defendant's car from that location to an enclosed, fenced-in, private towing lot in which other towed cars were stored. Defendant learned that his car had been towed to Bob's Auto and contacted Bob to obtain his car.
Defendant understood that he was obligated to pay for the towing service. Defendant called and asked Bob to reduce the towing fee, Bob refused, and defendant subsequently agreed to meet Bob at the lot to retrieve his car. Defendant appeared at the lot, waited for Bob to arrive, and lost his patience because Bob took too long to appear. Defendant then scaled the locked gate, entered the property without Bob's permission, and located his car. Defendant realized that he had only one way to remove his car from the secured lot -- by damaging Bob's Auto's property. He entered the car, started the engine, put it in reverse, floored the accelerator, and crashed through the locked gate, breaking the fence. Police arrested him a few minutes later.
Defendant was indicted and charged with third-degree burglary, N.J.S.A. 2C:18-2 (Count One); third-degree criminal mischief, N.J.S.A. 2C:17-3a (Count Two); and fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (Count Three). After defendant pled guilty to Count One, the State agreed to dismiss Counts Two and Three. The judge sentenced defendant on Count One to three years in state prison with eighteen months of parole ineligibility. The judge imposed the appropriate fines and penalties.
On appeal, defendant raises the following points:
DEFENDANT-APPELLANT'S BURGLARY CONVICTION MUST BE VACATED BECAUSE THERE IS NO FACTUAL BASIS TO SUPPORT HIS PLEA
A. DEFENDANT-APPELLANT DID NOT ENTER A "STRUCTURE" AS DEFINED BY THE BURGLARY CHAPTER
B. THE FACTS DO NOT SUPPORT A CONCLUSION THAT DEFENDANT-APPELLANT INTENDED TO COMMIT EITHER THEFT OR THEFT OF SERVICES AT THE TIME OF HIS ENTRY
The primary question on appeal is whether a privately secured, outdoor fenced-in towing lot, adapted to store vehicles temporarily for a towing company, is a "structure" within the meaning of N.J.S.A. 2C:18-1a. We conclude that the separately secured towing lot is a ...