On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-04-0693.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2012
Before Judges Yannotti and Harris.
Defendant William Isaksen appeals from a judgment of conviction dated January 31, 2011, and challenges his convictions of conspiracy to commit a theft by unlawful taking and burglary. For the reasons that follow, we reverse.
Defendant was charged along with co-defendant Justin Mercer (Mercer) with third-degree conspiracy to commit a theft by unlawful taking, N.J.S.A. 2C:5-2, N.J.S.A. 2C:20-3 (count one); second-degree burglary, N.J.S.A. 2C:18-2, N.J.S.A. 2C:2-6 (count two); and attempted theft by unlawful taking, N.J.S.A. 2C:5-1, N.J.S.A. 2C:20-3 (count three). Defendant was tried before a jury.
At the trial, the State presented evidence, which established that on February 4, 2009, E.K. was in his home on New Street in Middlesex Borough. E.K. was checking his electronic-mail messages when he observed a white Mitsubishi Eclipse enter the driveway at the neighboring house. E.K. observed two men exit the car.
Both men were smoking cigarettes. One man was wearing a white shirt, and the other was wearing a dark shirt. The man in the dark shirt walked to the front door of the house and knocked. No one answered. The man in the white shirt, who was later identified as defendant, stood near the car, smoking. He was "just kind of looking around."
According to E.K., the man in the dark shirt returned to the car. He spoke with defendant. They got back into the car and pulled out of the driveway. They parked the car in front of the house. The car's engine was running. The two men exited the car. Defendant re-entered the car and sat in the driver's seat. The other man walked down the driveway and went to the rear of the house. E.K. called the police.
Craig S. Young (Young), who was then Captain of the Middlesex Borough Police Department (MBPD), received a dispatch call of a possible burglary in progress on New Street. Young approached New Street from the rear. He saw that the rear window of a residence was wide open. Young arrived at the house along with other officers.
Sergeant Francis W. DeNick (DeNick) of the MBPD testified that he arrived at the house and observed a white-colored Mitsubishi parked in the street. Defendant was seated in the driver's seat. The motor of the car was running. DeNick pulled up to the vehicle, "head-on to it."
DeNick exited his vehicle and approached the Mitsubishi. Officer Mark Arancio (Arancio) also arrived and approached the car. DeNick told defendant to put his hands on the steering wheel and turn off the ignition. Defendant complied. DeNick then proceeded up the driveway to the rear of the house. He saw Young, who was positioned by the corner of the house. Young reported seeing an open window. DeNick walked up to the window, but he did not see anyone.
DeNick saw the screen from the window resting on the back deck. He opened the sliding glass door, entered the kitchen and announced, "Middlesex Police. Come out with your hands up." An individual, later identified as Mercer, emerged from the hallway of the residence and walked into the kitchen with his hands extended above his head. Mercer was told to face away from the officers, so he could be taken into custody. Mercer was handcuffed and removed from the house.
Detective Chad Corner (Corner) of the MBPD responded to the report of a burglary in progress on New Street. Corner testified that Arancio was standing beside the white car with defendant. Corner saw the other officers escort Mercer from the house. Defendant was ...