Burglary is a unique crime in that it not only involves the unlawful entry into the property of another; it also requires the intent to commit a crime after illegally accessing the premises. Thus, if the prosecution cannot prove that both elements of the offense are present, a jury should not convict a defendant charged with burglary. The proof needed to demonstrate criminal intent in a burglary case was the topic of a recent New Jersey opinion in a case in which the defendant appealed his conviction. If you are charged with burglary or any other crime, it is advisable to confer with a New Jersey criminal defense attorney promptly to discuss your rights.

The Underlying Crime

It is reported that the defendant and another individual went to the victim’s home. The defendant sat on the victim’s back porch, where he could see the bedroom of the victim’s 10-year-old daughter. Six months later, the defendant visited the victim’s house on a bicycle. Later that day, he ran into the victim and her daughter at a store and stared at the daughter.

Allegedly, the following day the daughter heard someone enter her bedroom window. She turned on her light and then turned it back off and pretended to be asleep. She then heard someone unscrew the lightbulb from her lamp and crawl into the corner of the room, at which point she stated, “I know you are still in here.” He left the room but quickly returned, and the daughter saw that it was the defendant. He was ultimately charged with and convicted of burglary. He appealed, arguing in part that the trial court erred in denying his motion for a directed verdict.

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Generally, when a person is tried on criminal charges, the court will instruct the jury as to the elements of the crime, to help the jurors to accurately determine whether the defendant is guilty or innocent. Thus, if a judge fails to adequately instruct a jury on a charged offense and the defendant is convicted regardless, it may constitute a violation of the defendant’s right to due process and a fair trial. The method for determining the sufficiency of jury instructions was recently discussed in a New Jersey case in which the defendant appealed his conviction for burglary, arguing that the instructions were inadequate. If you are accused of burglary or another crime, it is prudent to consult a trusted New Jersey criminal defense attorney to assess your charges and possible defenses.

Facts of the Case

It is alleged that the defendant broke into his neighbor’s home via the window, along with an accomplice. The defendant dragged the neighbor through the home, threatening her, and physically assaulted her before leaving. The accomplice physically attacked the neighbor’s friend, who was staying at her home that evening as well. The defendant did not take anything from the home, but the neighbor suffered injuries due to the attack.

Reportedly, the defendant was charged with numerous crimes, including burglary. He was convicted as charged, after which he appealed on several grounds. As to the burglary charge, he argued the trial court failed to properly instruct the jury as to the elements of the crime, thereby violating his rights to due process and a fair trial.

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Criminal defendants are afforded the right to confront any witnesses that testify against them by both the New Jersey and the United States Constitutions. Thus, if a defendant is denied the right to cross-examine a witness, it may result in a miscarriage of justice. There are some limitations to the right to confront witnesses, though, that may constrain a defendant’s right to question a witness regarding certain topics. Recently, a New Jersey court addressed the issue of whether a criminal defendant that is charged with the same crime as a cooperating witness may question the witness regarding his sentencing exposure. If you are charged with a criminal offense, it is essential to retain a dedicated New Jersey criminal defense attorney who will fight to help you seek a just outcome.

Facts of the Case

It is reported that the defendant, the witness, and another individual were arrested and charged with burglary. The witness accepted a cooperating plea offer, agreeing to testify against the defendant and the other individual in exchange for a three-year sentence. The trial judge suggested a modification of the agreement, which ultimately resulted in a reduced sentence of one hundred and eighty days in jail, followed by probation. The witness then testified against the defendant at trial.

Allegedly, in an attempt to establish the bias of the witness, the defendant’s counsel tried to question the witness regarding his plea negotiations and the sentence he would have faced if he had not agreed to testify against the defendant. The trial court barred the attorney from asking such questions, however, stating that it could prejudice the jury. The defendant was convicted and sentenced to seven years imprisonment, after which he appealed, arguing that the trial court’s limitation of his cross-examination of the witness deprived him of his right to confrontation.

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A story in the Asbury Park Press and Coast Star reported that a Manasquan man was arrested for burglary. The victim of the crime — the First Baptist Church.  Say it ain’t so!!!

Burglary is a common criminal offense in New Jersey.  It occurs whenever someone enters a dwelling or structure for purposes of committing some sort of crime.  The typically break-in is to perpetuate a theft.  In this instance, the defendant broke into a church to steal money and a computer.  The individual was obviously not of the best intelligence and, when interrogated for a subsequent incident, voluntarily confessed to the burglary as if the police already knew.  The defendant will be facing a Third Degree Burglary Offense in Monmouth County and is now exposed to up to five (5) years in jail.  I would suspect that little consideration shall be afforded this individual irrespective of the Judge presiding over the case at Monmouth County Superior Court, Freehold, NJ.

Although we have occasion to represent many individuals each year in New Jersey who find themselves charged with burglary, this one is deplorable.  I am as big an advocate as anyone when it comes to standing up for my clients but who robs a church?  

On March 15, 2012, the New Jersey Assembly passed A1035, a Bill which seeks to upgrade residential burglary from a crime of the Third Degree to a crime of the Second Degree. The Bill further seeks to upgrade residential burglary from a crime of the Second Degree to a crime of the First Degree if committed while armed. This represents a drastic departure from the current law and will have serious implications in terms of the jail time exposure for those convicted, should the Bill become new law.

In its current form, the law is as follows:

Burglary, N.J.S.A. 2C:18-2 

a.   Burglary defined. A person is guilty of burglary if, with purpose to commit an offense therein or thereon he:

(1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter;

(2) Surreptitiously remains in a research facility, structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so; or

(3) Trespasses in or upon utility company property where public notice prohibiting trespass is given by conspicuous posting, or fencing or other enclosure manifestly designed to exclude intruders.

b.   Grading. Burglary is a crime of the second degree if in the course of committing the offense, the actor:

(1) Purposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone; or

(2) Is armed with or displays what appear to be explosives or a deadly weapon.

 Otherwise burglary is a crime of the third degree. An act shall be deemed “in the course of committing” an offense if it occurs in an attempt to commit an offense or in immediate flight after the attempt or commission.

 At present, “structure” includes any place adapted for overnight accommodation of persons (i.e., a residence), thereby making the burglary of a residence a crime of the Third Degree. However, A1035 seeks to add the following language to subsection b. of the current law, thereby making the burglary of a residence a crime of the Second Degree, and further amending the law as follows:

 (3) Unlawfully enters or surreptitiously remains in a dwelling or other structure adapted for overnight accommodation of persons, whether or not a person is actually present.

Burglary is a crime of the first degree if in the course of committing the offense the actor unlawfully enters or surreptitiously remains in a dwelling or other structure adapted for overnight accommodation of persons, whether or not a person is actually present, and is armed with or displays what appear to be explosives or a deadly weapon.

 A crime of the First Degree is punishable by a term of imprisonment between 10 and 20 years, a fine not to exceed $200,000 or both. A crime of the Second Degree is punishable by a term of imprisonment between 5 and 10 years, a fine not to exceed $150,000 or both. A crime of the Third Degree is punishable by a term of imprisonment between 3 to 5 years, a fine not to exceed $15,000 or both.

 A1035 clarifies that a person who commits a residential burglary under the new law (which would then be a crime of the Second Degree) would not be subject to the provisions of the No Early Release Act (“NERA”), but a person who commits the crime of armed residential burglary under the new law (which would then be a crime of the First Degree) would be subject to NERA. Under NERA, persons convicted of certain enumerated violent crimes are required to serve a minimum term of at least 85% of the sentence imposed. See N.J.S.A. 2C:43:7.2.

 To read A1035 in its entirety, go to: http://www.njleg.state.nj.us/2012/Bills/A1500/1035_I1.PDF

 The change is most likely the result of a strong push from law enforcement authorities, who call the burglary law in its current form “a joke.” “The reward of burglaries outweighs the risk,” says Steve Cucciniello, Chief of Detectives at the Bergen County Prosecutor’s Office. “Nothing is going to change until the law changes.” Those same authorities often compare the burglary law in New Jersey with the law in New York, where residential burglary is already a crime of the Second Degree, a felony that carries with it a minimum term of imprisonment between 3½ and 15 years.

 Joke or not, being charged with the crime of residential burglary can have serious consequences, which could become much more severe should A1035 become law.

One of the more powerful political figures in NJ, Senator Raymond Lesniak, was the victim of a burglary two days ago.  The burglary escalated into a Robbery when the Senator encountered the intruders and was threatened unless he handed over all cash contained in his Elizabeth New Jersey home.  Lesniak resides in an upscale section of Elizabeth in the area of Kean University. 

The incident offers a practical illustration of both burglary and robbery.  N.J.S.A. 2C:18-2 defines a burglary in New Jersey as entry into a structure without a license or privilege. This offense is normally a third degree crime but becomes a second degree offense where the perpetrator inflicts or threatens to commit bodily harm to someone during the commission of the burglary.

Pursuant to N.J.S.A. 2C:15-1, Robbery is the use or threat to use force during the course of a theft. Robbery is a second degree crime but is enhanced to a first degree offense where a suspect attempts to kill, inflicts or attempts to inflict serious bodily injury, is armed, or where he threatens the immediate use of a deadly weapon. 

In the Lesniak theft case, one of the defendants threatened to “shoot him”.  This fact would probably take an incident which would otherwise give rise to a Second Degree Burglary charge and escalate it to a First Degree Robbery case. These guys are in a heap of trouble if they are apprehended and even our Union County Criminal Defense Attorneys would have a hard time mitigate the situation.