May 27, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT L. GRIFFIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3669.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 18, 2011
Before Judges Cuff and Sapp-Peterson.
A jury found defendant Robert L. Griffin guilty of third degree burglary, N.J.S.A. 2C:18-2 (Count One) and fourth degree*fn1 criminal mischief, N.J.S.A. 2C:17-3 (Count Two). On Count One, defendant was sentenced to a five-year term of imprisonment with a two-and-one-half-year period of parole ineligibility. He was sentenced to a concurrent eighteen-month term of imprisonment on Count Two. The appropriate fines, penalties and assessments were also imposed.
On appeal, defendant raises the following arguments:
THE BURGLARY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE THE FACTS ADDUCED AT TRIAL FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT THE DEFENDANT INTENDED TO COMMIT AN OFFENSE ONCE INSIDE THE CONDOMINIUM UNIT (Not Raised Below).
THE CRIMINAL MISCHIEF CONVICTION MUST BE MERGED INTO THE BURGLARY CONVICTION.
DEFENDANT'S SENTENCE OF THE MAXIMUM TERM ON EACH COUNT WAS MANIFESTLY EXCESSIVE.
We have thoroughly reviewed the record in light of the arguments presented by defendant and determine that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.
The State adduced evidence that an intruder to a residential condominium unit pried at the door frame and kicked open the front door, ripped an alarm off a wall and tossed it in a sink filled with water. An occupant of another condominium unit heard the noise and walked down the stairs to investigate the sound. As he arrived, he encountered defendant calmly walking from the vandalized unit. Defendant argues that the State failed to adduce any evidence that he intended to commit an offense once inside the condominium unit. We disagree.
Defendant's presence in an apartment that had been entered by damaging the door frame and kicking in the door and within minutes of a neighbor hearing a noise consistent with a door being forced and something being ripped from a wall satisfies the State's burden of proof on the charges of burglary and criminal mischief. See State v. Singleton, 290 N.J. Super. 336, 342-43 (App. Div. 1996) (the defendant found in a ransacked apartment); State v. Robinson, 289 N.J. Super. 447, 454 (App. Div.) (burglary conviction upheld where the defendant found in the act of climbing through a forced window and discarding a screwdriver as he fled), certif. denied, 146 N.J. 497 (1996).
Moreover, generally criminal mischief is considered a separate offense from burglary and does not merge. See State v. Pantusco, 330 N.J. Super. 424, 449-51 (App. Div.) (a defendant may be convicted of both burglary and attempted theft of a car), certif. denied, 165 N.J. 527 (2000). We discern no basis on this record to require merger of these charges.