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State v. Brito

Superior Court of New Jersey, Appellate Division

November 25, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
EUGENIO BRITO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 8, 2013

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-06-1005.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Special Deputy Attorney

General/Acting Assistant Prosecutor, on the brief).

Before Judges Fasciale and Maven.

OPINION

MAVEN, J.A.D.

Following a jury trial, defendant Eugenio Brito was convicted of third-degree attempted burglary, contrary to N.J.S.A. 2C:5-1 and 2C:18-2. The court imposed an extended-term sentence of seven years' imprisonment, with three years of parole ineligibility. The court also imposed appropriate fees, fines, and penalties. We affirm.

The underlying facts are not complex. Detective Ruben Rodriguez testified that on March 28, 2006, around twelve o'clock noon, while driving northbound on Palisade Avenue, Union City past his home, he noticed a man, later identified as defendant, standing between the storm door and the front door of his home. Defendant had something in his hand and appeared to be tampering with the bolt lock. Rodriguez testified he immediately stopped his car when he saw this activity. When defendant saw him stop, defendant exited the doorway and walked southbound on Palisade Avenue until Rodriguez's car cut off his path. Rodriguez approached and identified himself as a police officer. He conducted a pat-down for his safety because he had previously seen an object in defendant's hand. The pat-down revealed a screwdriver in defendant's back pocket.

Rodriguez asked defendant what he was doing at the house and he responded "he knew the people who lived at the house, and he was going there because they were doing work [in] the backyard and he was going to ask them for work." Since it was Rodriguez's house, he knew defendant was lying. He testified he neither knew defendant, nor was he having work done on his home.

Thereafter, Rodriguez called for back-up officers. When they arrived, the officers remained with defendant while Rodriguez inspected the doorway of his house. Rodriguez observed a pry mark on the bolt lock of the door, a bend in the metal trim of the door, and newly-chipped paint. Rodriguez then advised defendant of his Miranda rights[1] and detained him.

At trial, Rodriguez testified as to his observations. The following colloquy transpired:

[State]: [W]hat did you believe he was doing at this door, sir? You said that he wasn't a family member, and he wasn't a friend. ...

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