NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2012
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-05-0302.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief).
John T. Lenahan, Salem County Prosecutor, attorney for respondent (Thomas A. DeSimone, Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves and Espinosa.
Defendant appeals from his conviction for attempted burglary, N.J.S.A. 2C:18-2, and his sentence of five years. We affirm.
Defendant was indicted for third-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a), charges which arose from events that occurred in the late morning of April 6, 2009. Kaitlynn Sawyer was alone in her sister Amanda's home, watching television in the living room while her sister was at work. The driveway was empty, and no lights were on in the home. Kaitlynn heard a noise and looked up to see defendant at the kitchen window, standing on top of a central air conditioning unit, "trying to break into the window[.]" The window was at the rear of the house facing the backyard, which was enclosed by a wooden picket fence, approximately four feet tall.
Kaitlynn approached and observed defendant, whom she had never seen before, attempting to unlock the window with his fingers. He never succeeded in unlocking or opening the window. Kaitlynn asked defendant what he was doing, and he told her that "the window was leaking and [he was] there to fix it." Kaitlynn testified that she was scared and called her sister "to see if somebody was really coming over to fix the window."
Defendant walked away when Kaitlynn went to make the call. However, when she returned, she could see the doorknob to the kitchen door moving, although she could not see through the door. Defendant did not enter the home. Kaitlynn remained on the phone with Amanda until she returned home. The sisters then went to the Elmer Police Department, where they met with Captain Patrick Bryan.
At the station, Kaitlynn was unable to positively identify defendant as the intruder. She initially identified a photograph of defendant, but because he had a lighter hair color, she was not "real convinced[.]" Kaitlynn described the intruder as wearing a red hat and an unzipped "tannish" Carhartt jacket. Based on those details, Bryan remembered that, earlier in the day, he had spoken to defendant, who was "wearing the same identical clothing [as the] description [provided]."
Later that day, police executed a warrant for defendant's arrest and took him into custody. They read him his Mirandarights when he was placed in the police vehicle and again at the station. After the second reading, defendant signed a Miranda form. Although he made an initial statement to police, it was not introduced at trial because it had not been properly recorded. Police questioning ceased after defendant refused to reduce his statement to writing.
According to Bryan, defendant's mother, Linda Wendling, entered the police station to inquire about defendant's bail. With Bryan sitting at a desk and defendant seated directly across from him, Wendling stood at the corner of the desk. Bryan overheard defendant tell his mother that he was on Amanda's property because he was "trying to help an elderly female[.]" Defendant told his mother that the air conditioner was "smoking and he was trying to get attention by knocking on the windows." Wendling asked her son why he did not call 911, but he did not respond.
Kaitlynn was able to identify defendant at trial and testified that he looked "a lot" different than when she saw him that morning; his hair was shorter, he had no facial hair, and he was wearing glasses. Bryan testified that defendant "apparently changes his hair color from time to time."
Defendant's mother refuted Bryan's testimony regarding her conversation with defendant while he was in custody. She testified that the only discussion she had with her son was about his bail.
The trial of this matter first began in May 2010. However, a mistrial was declared after defendant provided late notice that he had an alibi witness, his cousin, William Bartley. The trial began a second time in June 2010. However, Bartley failed to appear at trial. It was represented that Bartley was involved in a serious motor vehicle accident the night before his anticipated testimony and was helicoptered to Cooper Trauma Center. The trial court asked the State to check with regional hospitals regarding Bartley's status. The prosecutor reported that the State checked with Cooper Trauma Center, Christiana Hospital, and the Regional Medical Center in Vineland. None of the hospitals had a record of anyone named Bartley admitted or seen at the emergency room. The State also contacted the Salem County dispatch system and was advised that, although there had been two motor vehicle accidents, neither required an ambulance. The court announced its intent to proceed and asked defense counsel if he had any additional application to make. Counsel replied, "No, Judge. At this point, my client has been attempting to reach family that relayed the message last night and has been unable to reach anybody this morning."
The jury convicted defendant of attempted burglary and acquitted him of criminal trespass. Thereafter, the court denied the State's motion to have defendant sentenced to an extended term and imposed a sentence of five years imprisonment.
Defendant filed a pro se motion for a new trial based on newly discovered evidence. He argued that the court should order a new trial to allow Bartley to testify as an alibi witness. In support of his motion, he included an affidavit from Bartley stating he was hospitalized at the time of trial but presented no documentation to corroborate that statement. The court denied the motion, finding there was no newly discovered evidence and no basis for changing the judge's initial decision to continue the trial without Bartley's testimony.
Defendant presents the following arguments for our consideration in this appeal:
THE OMISSION ON THE VERDICT SHEET OF AN OPTION TO FIND THE [SIC] MR. RUNYON GUILTY OF ATTEMPTED CRIMINAL TRESPASS, AS CHARGED TO THE JURY, DENIED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).
MR. RUNYON'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURTS [SIC] ERRONEOUS, PREJUDICIAL AND INCOMPLETE INSTRUCTION ...