New Jersey Criminal Defense Attorney Blog

History:

L. 1978, c. 95; amended 1980, c. 112, § 2; 1981, c. 290, § 18; 1995, c. 20, § 3; 2009, c. 283, § 2, eff. Jan. 17, 2010.

Amendment Note:

2009 amendment, by Chapter 283, added a.(3); in the opening paragraph of a., inserted "or thereon"; and made related changes.

Cross References:

Definitions, see 2C:25-19.

Crime of terrorism; definitions, see 2C:38-2.

Sentence of imprisonment for crime; ordinary terms; mandatory terms, see 2C:43-6.

Special sentence of parole supervision for life, see 2C:43-6.4.

Life imprisonment without parole, see 2C:43-7.1.

Mandatory service of 85% of sentence for certain offenses, see 2C:43-7.2.

Criteria for sentence of extended term of imprisonment, see 2C:44-3.

Penalties for committing certain offenses while released on bail, own recognizance increased, see 2C:44-5.1.

Casino license -- disqualification criteria, see 5:12-86.

Definitions relative to airport employment restrictions; criminal history record checks, see 6:1-100.

Disqualification of staff member for employment June 13, 2009], see 9:3-40.5.

Criminal record check in public school employment, volunteer service, see 18A:6-7.1.

Adoptive, resource family parent; investigation, see 30:4C-26.8.

Criteria for permanent disqualification, see 30:4C-27.19.

Definitions relative to airport employment restrictions; criminal history record checks, see 32:2-37.

Definitions, see 52:17B-183.

Additional requirements for registration, see 56:8-122.

Administrative Code:

1. N.J.A.C. 10:122C-5.4 (2009), CHAPTER MANUAL OF REQUIREMENTS FOR RESOURCE FAMILY PARENTS, Criminal History Record Information background checks.

2. N.J.A.C. 10:124-3.8 (2009), CHAPTER MANUAL OF STANDARDS FOR CHILDREN'S SHELTER FACILITIES AND HOMES, Criminal History Record Information background checks.

3. N.J.A.C. 10:127-5.6 (2009), CHAPTER MANUAL OF REQUIREMENTS FOR RESIDENTIAL CHILD CARE FACILITIES, Criminal History Record Information background checks.

4. N.J.A.C. 10:128-5.6 (2009), CHAPTER MANUAL OF REQUIREMENTS FOR CHILDREN'S GROUP HOMES, Criminal History Record Information background checks.

5. N.J.A.C. 12:15-1.7 (2009), CHAPTER SCOPE, Definitions.

6. N.J.A.C. 12:23-1.1 (2009), CHAPTER WORKFORCE DEVELOPMENT PARTNERSHIP PROGRAM, Definitions.

7. N.J.A.C. 13:20-44.17 (2009), CHAPTER ENFORCEMENT SERVICE, Additional violations.

8. N.J.A.C. 13:20-47.18 (2009), CHAPTER ENFORCEMENT SERVICE, Additional violations.

9. N.J.A.C. 13:23-2.12 (2009), CHAPTER DRIVING SCHOOLS, Denial, suspension or revocation of license.

10. N.J.A.C. 13:45A-17.6 (2009), CHAPTER ADMINISTRATIVE RULES OF THE DIVISION OF CONSUMER AFFAIRS, Disclosure statement.

11. N.J.A.C. 13:45D-3.3 (2009), CHAPTER TELEMARKETING: DO NOT CALL, Disclosure statement.

LexisNexis (R) Notes:

Case Notes:

Civil Rights Law > Section 1983 Actions > Law Enforcement Officials > Arrests
Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Kidnapping > General Overview
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Robbery > General Overview
Criminal Law & Procedure > Criminal Offenses > Inchoate Crimes > Attempt > General Overview
Criminal Law & Procedure > Criminal Offenses > Inchoate Crimes > Conspiracy > General Overview
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Contempt > General Overview
Criminal Law & Procedure > Criminal Offenses > Property Crimes > General Overview
Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass > General Overview
Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass > Burglary > General Overview
Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass > Burglary > Elements
Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass > Burglary > Penalties
Criminal Law & Procedure > Criminal Offenses > Property Crimes > Larceny & Theft > General Overview
Criminal Law & Procedure > Criminal Offenses > Weapons > Possession > General Overview
Criminal Law & Procedure > Criminal Offenses > Weapons > Possession > Penalties
Criminal Law & Procedure > Criminal Offenses > Weapons > Use > General Overview
Criminal Law & Procedure > Juvenile Offenders > Juvenile Proceedings > General Overview
Criminal Law & Procedure > Juvenile Offenders > Trial as Adult > General Overview
Criminal Law & Procedure > Arrests > Warrantless Arrest
Criminal Law & Procedure > Search & Seizure > Fruit of the Poisonous Tree > General Overview
Criminal Law & Procedure > Interrogation > Voluntariness
Criminal Law & Procedure > Accusatory Instruments > Indictments > General Overview
Criminal Law & Procedure > Preliminary Proceedings > Pretrial Diversion > General Overview
Criminal Law & Procedure > Eyewitness Identification > Photo Identifications
Criminal Law & Procedure > Double Jeopardy > Collateral Estoppel
Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution
Criminal Law & Procedure > Defenses > Intoxication
Criminal Law & Procedure > Scienter > Specific Intent
Criminal Law & Procedure > Jury Instructions > General Overview
Criminal Law & Procedure > Jury Instructions > Particular Instructions > Elements of the Offense
Criminal Law & Procedure > Jury Instructions > Particular Instructions > Lesser Included Offenses
Criminal Law & Procedure > Jury Instructions > Particular Instructions > Use of Particular Evidence
Criminal Law & Procedure > Sentencing > Alternatives > Probation > General Overview
Criminal Law & Procedure > Sentencing > Appeals > General Overview
Criminal Law & Procedure > Sentencing > Corrections, Modifications & Reductions > Eligibility, Circumstances & Factors
Criminal Law & Procedure > Sentencing > Guidelines > Departures > General Overview
Criminal Law & Procedure > Sentencing > Imposition > General Overview
Criminal Law & Procedure > Sentencing > Imposition > Factors
Criminal Law & Procedure > Sentencing > Merger
Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview
Evidence > Procedural Considerations > Preliminary Questions > General Overview
Evidence > Procedural Considerations > Weight & Sufficiency

Civil Rights Law > Section 1983 Actions > Law Enforcement Officials > Arrests

1. District court's order granting summary judgment to two police officers as to an arrestee's U.S. Const. amend. IV violation claim was summarily affirmed under 3rd Cir. R. 27.4 and 3rd Cir. Internal Operating P. 10.6 because the arrestee did not raise any substantial question on appeal. The totality of the circumstances established that probable cause existed as a matter of law for making the arrest and for charging the arrestee with attempted burglary and obstruction of justice under N.J. Stat. Ann. §§ 2C:18-2(a), 2C:5-1(a), because the arrestee fit the description of a reported burglary suspect, he was positively identified by an eyewitness to the attempted burglary of a car, he was standing near the parking lot where the attempted burglary occurred, he was uncooperative during the officers' investigatory stop, and he continued to be uncooperative during the booking process, which impaired the officers' ability to obtain clear fingerprints from him. Young v. City of Wildwood, 323 Fed. Appx. 99, 2009 U.S. App. LEXIS 8581 (3d Cir. N.J. 2009).

2. In an action by an arrestee, alleging deprivation of rights, privileges, and immunities secured by the Constitution and federal laws, police officers were entilted to summary judgment where the arrestee had been arrested, pursuant to N.J. Stat. Ann. § 2A:156-1 while in the act, committed in the presence of the officers, of attempting to break and enter a residence in the night time in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) and former N.J. Stat. Ann. § 2A:85-5 (now N.J. Stat. Ann. § 2C:5-1). Colon v. Grieco, 226 F. Supp. 414, 1964 U.S. Dist. LEXIS 6421 (D.N.J. 1964).

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause

3. District court's order granting summary judgment to two police officers as to an arrestee's U.S. Const. amend. IV violation claim was summarily affirmed under 3rd Cir. R. 27.4 and 3rd Cir. Internal Operating P. 10.6 because the arrestee did not raise any substantial question on appeal. The totality of the circumstances established that probable cause existed as a matter of law for making the arrest and for charging the arrestee with attempted burglary and obstruction of justice under N.J. Stat. Ann. §§ 2C:18-2(a), 2C:5-1(a), because the arrestee fit the description of a reported burglary suspect, he was positively identified by an eyewitness to the attempted burglary of a car, he was standing near the parking lot where the attempted burglary occurred, he was uncooperative during the officers' investigatory stop, and he continued to be uncooperative during the booking process, which impaired the officers' ability to obtain clear fingerprints from him. Young v. City of Wildwood, 323 Fed. Appx. 99, 2009 U.S. App. LEXIS 8581 (3d Cir. N.J. 2009).

Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Kidnapping > General Overview

4. Indictment charging defendant with breaking and entering with intent to kidnap a child in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) had to be dismissed, where defendant did not break or enter the child's home but kept the child's grandmother at the front door while the child's father entered the home through the back door and took the child, where defendant was thus an aider and abettor who was punishable as a principal under former N.J. Stat. Ann. § 2A:85-14, and where the father was exonerated because no custody order precluded the father from taking his own child from the grandparents' home. State v. Stocksdale, 138 N.J. Super. 312, 350 A.2d 539, 1975 N.J. Super. LEXIS 521 (Law Div. 1975).

Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Robbery > General Overview

5. Following convictions under N.J. Stat. Ann. §§ 2C:18-2, 2C:20-3, 2C:20-7, and 2C:15-1, a 30-year sentence was not excessive under N.J. Stat. Ann. § 2C:44-3 where defendants, who had long criminal histories, held a knife to the throat of a gas station attendant during the robbery. State v. Munoz, 340 N.J. Super. 204, 774 A.2d 515, 2001 N.J. Super. LEXIS 183 (App.Div. 2001).

6. Defendant was properly found guilty of armed robbery in violation of N.J. Stat. Ann. § 2C:18-2, and burglary, even though defendant entered the residence without weapons, where defendant stole weapons during the burglary. State v. Merritt, 247 N.J. Super. 425, 589 A.2d 648, 1991 N.J. Super. LEXIS 127 (App.Div. 1991).

7. Defendant was properly convicted of entering with intent to rob pursuant to former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2), robbery pursuant to former N.J. Stat. Ann. § 2A:141-1, and robbery pursuant to former N.J. Stat. Ann. § 2A:151-5; the record showed that defendant entered the victim's kitchen armed with a barbecue fork, choked her, knocked her to the floor, gagged her, forced her to lie on the floor, and escaped in her automobile after demanding money and taking her wedding rings. State v. Mann, 171 N.J. Super. 173, 408 A.2d 440, 1979 N.J. Super. LEXIS 931 (App.Div. 1979).

Criminal Law & Procedure > Criminal Offenses > Inchoate Crimes > Attempt > General Overview

8. A defendant was properly convicted of attempted entry with intent to steal in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) and former N.J. Stat. Ann. § 2A:85-5 where the evidence abundantly established that the defendant had committed overt acts which went far beyond mere preparation. State v. Wilson, 112 N.J. Super. 581, 272 A.2d 304, 1971 N.J. Super. LEXIS 730 (App.Div. 1971).

Criminal Law & Procedure > Criminal Offenses > Inchoate Crimes > Conspiracy > General Overview

9. Trial judge who did not place the burden of proof on the state to prove that confessions by a breaking and entering defendant that was also part of a conspiracy to commit that crime, former N.J. Stat. Ann. §§ 2A:94-1 and 2A:98-1 (now N.J. Stat. Ann. §§ 2C:18-2 and 2C:5-2), were admissible and not subject to suppression, given they were the product of physical abuse and mistreatment where the statements lacked credible voluntariness, committed reversible error. State v. Tassiello, 75 N.J. Super. 1, 182 A.2d 129, 1962 N.J. Super. LEXIS 513 (App.Div. 1962), affirmed by 39 N.J. 282, 188 A.2d 406, 1963 N.J. LEXIS 229 (1963).

Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Contempt > General Overview

10. Because the defendant's contempt of court conviction, based on his entry into his girlfriend's apartment in violation of a restraining order, did not satisfy the element of burglary requiring entry with intent to commit offense therein, pursuant to N.J. Stat. Ann. § 2C:18-2(a)(1), the conviction was reversed. State v. Marquez, 277 N.J. Super. 162, 649 A.2d 114, 1994 N.J. Super. LEXIS 445 (App.Div. 1994).

Criminal Law & Procedure > Criminal Offenses > Property Crimes > General Overview

11. Defendant's conviction for unlawfully entering a store with intent to steal, in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2), was reinstated because the jury charge as a whole did not mislead the jury where the trial judge clearly instructed the jury that the State had the burden of proving beyond a reasonable doubt that the defendant had unlawfully entered the interior of the store with an intent to steal. State v. Wilbely, 63 N.J. 420, 307 A.2d 608, 1973 N.J. LEXIS 199 (1973).

12. Under a count for breaking and entering with intent, proof of the crime was complete when those two elements were shown, irrespective of whether there was a carrying out of the intent, under former N.J. Rev. Stat. § 2:115-1 (now N.J. Stat. Ann. § 2C:18-2), and the actual perpetration of the larceny or other crime was not a part of the offense of breaking and entering with intent but was a separate and distinct offense under former N.J. Rev. Stat. § 2:145-2 (now N.J. Stat. Ann. § 2C:20-2), and the court could properly convict and sentence defendant for both of these crimes, which arose from one incident. State v. Compton, 28 N.J. Super. 45, 100 A.2d 304, 1953 N.J. Super. LEXIS 604 (App.Div. 1953).

Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass > General Overview

13. N.J. Stat. Ann. § 2C:18-2 encompassed burglaries of both dwellings and non-dwellings, and was therefore broad enough to encompass both violent and non-violent crimes, and neither the accusation nor the judgment clarified whether defendant's prior conviction was for burglary of a dwelling; therefore, as the government conceded, there was no explanation why the formal charging document, to which defendant pleaded guilty, omitted that the burglary occurred at a dwelling. United States v. Forsythe, 437 F.3d 960, 2005 U.S. App. LEXIS 28717 (10th Cir. Colo. 2005).

14. Appellate court rejected defendant's sufficiency of the evidence claims as lacking sufficient merit to warrant discussion in a written decision, pursuant to N.J. Ct. R. 2:11-3(e)(2), because the victims' and the co-defendants' testimony that defendant entered a victim's house with the co-defendants through an unlocked door, that defendant took part in threatening the victims in the house with guns, that defendant and his co-defendants robbed the victims, and that a victim was hit in the head was adequate to defeat a motion for judgment of acquittal and support the convictions; a reasonable jury could have found defendant's guilt of the crime beyond a reasonable doubt after considering all of the State of New Jersey's evidence and giving the State the benefit of all favorable evidence and inferences. State v. Fletcher, 380 N.J. Super. 80, 880 A.2d 1171, 2005 N.J. Super. LEXIS 257 (App.Div. 2005).

15. Trial court erred in precluding the prosecution from introducing evidence concerning a temporary restraining order (TRO) entered against defendant during a bifurcated trial on burglary charges, as the preclusion prevented the prosecution from proving an indispensable element of the crime of second-degree burglary, N.J. Stat. Ann. § 2C:18-2, as the issuance of the TRO deprived defendant of his license or privilege to enter the townhouse which he shared with his girlfriend. State v. Silva, 378 N.J. Super. 321, 875 A.2d 1005, 2005 N.J. Super. LEXIS 190 (App.Div. 2005).

16. Folding lock blade knife with a three and a half inch blade was a deadly weapon under the N.J. Stat. Ann. § 2C:18-2, and the trial court properly convicted defendant of armed burglary after defendant testified that he carried the knife when he illegally entered two properties but used it as a tool, not as a weapon. State v. Clark, 352 N.J. Super. 130, 799 A.2d 679, 2002 N.J. Super. LEXIS 294 (App.Div. 2002).

17. Lock blade knife which defendant carried when he entered two properties was a deadly weapon for the purposes of N.J. Stat. Ann. § 2C:18-2, which prohibited armed burglary, and defendant was properly convicted of armed burglary even though he testified that the knife was used as a tool. State v. Clark, 352 N.J. Super. 130, 799 A.2d 679, 2002 N.J. Super. LEXIS 294 (App.Div. 2002).

18. Purpose of the legislature in enacting the armed burglary provisions of N.J. Stat. Ann. § 2C:18-2, i.e., armed with a deadly weapon, as a crime of higher degree than simple burglary is to deter the commission of burglaries while so armed in order to protect potential victims from greater risk of injury when an implement that could be used as a deadly weapon is involved. Viewed in that light, § 2C:18-2 manifestly establishes as an element the mere possession of such an implement during a burglary. State v. Clark, 352 N.J. Super. 130, 799 A.2d 679, 2002 N.J. Super. LEXIS 294 (App.Div. 2002).

19. Presence of an item that can be used as a deadly weapon satisfies the requirements of the armed burglary standard of N.J. Stat. Ann. § 2C:18-2. It is of no consequence, given the manifest purpose of the statute, that the article in question might also have innocent uses. State v. Clark, 352 N.J. Super. 130, 799 A.2d 679, 2002 N.J. Super. LEXIS 294 (App.Div. 2002).

20. When a juvenile was charged with arson, in violation of N.J. Stat. Ann. § 2C:17-1(a)(2), criminal mischief, in violation of N.J. Stat. Ann. § 2C:17-3(a)(1), and burglary, in violation of N.J. Stat. Ann. § 2C:18-2(a)(1), and the trial court granted the State's motion to waive the case to adult court without reviewing the adequacy of a statement of reasons, the trial court erred. State ex rel. R.C., 351 N.J. Super. 248, 798 A.2d 111, 2002 N.J. Super. LEXIS 254 (App.Div. 2002).

21. Following convictions under N.J. Stat. Ann. §§ 2C:18-2, 2C:20-3, 2C:20-7, and 2C:15-1, a 30-year sentence was not excessive under N.J. Stat. Ann. § 2C:44-3 where defendants, who had long criminal histories, held a knife to the throat of a gas station attendant during the robbery. State v. Munoz, 340 N.J. Super. 204, 774 A.2d 515, 2001 N.J. Super. LEXIS 183 (App.Div. 2001).

22. Where there was ample evidence that defendant was in victim's apartment for a purpose other than to steal, the trial court should have charged the jury on lesser included offense of criminal trespass under N.J. Stat. Ann. § 2C:18-3 rather than burglary under N.J. Stat. Ann. § 2C:18-2(a); even though defendant did not request a charge on the lesser offense, the judge erred in failing to charge the lesser included offense because the evidence clearly indicated that such a charge was appropriate. State v. Singleton, 290 N.J. Super. 336, 675 A.2d 1143, 1996 N.J. Super. LEXIS 193 (App.Div. 1996).

23. Because the defendant's contempt of court conviction, based on his entry into his girlfriend's apartment in violation of a restraining order, did not satisfy the element of burglary requiring entry with intent to commit offense therein, pursuant to N.J. Stat. Ann. § 2C:18-2(a)(1), the conviction was reversed. State v. Marquez, 277 N.J. Super. 162, 649 A.2d 114, 1994 N.J. Super. LEXIS 445 (App.Div. 1994).

24. Physical evidence, which was uncovered during a warrantless invasion of an apartment in which defendant was located and which was the sole basis for defendant's arrest for burglary, and defendant's subsequent inculpatory statements should have been suppressed; therefore, defendant's conviction for burglary in violation of N.J. Stat. Ann. § 2C:18-2 had to be reversed because most, if not all, of the evidence against him was inadmissible. State v. Jones, 277 N.J. Super. 113, 649 A.2d 89, 1994 N.J. Super. LEXIS 453 (App.Div. 1994), reversed by 143 N.J. 4, 667 A.2d 1043, 1995 N.J. LEXIS 1360 (1995).

25. When dealing with private property the law does not impose a public use unless it is clearly demonstrated that that is what the owner intended; what the law does is throw around the habitation area of any residence, be it a single-family home or a large apartment, a protective mantle so that it may become a place of family repose free from intrusion by strangers and secure for the quiet and peace of family members who reside therein, and anyone who breaches or intrudes into this protective mantle to commit a crime therein is guilty of burglary. State v. Berkey, 267 N.J. Super. 124, 630 A.2d 855, 1993 N.J. Super. LEXIS 757 (Law Div. 1993).

26. Defendant was properly convicted of burglary and joyriding where joyriding constituted an offense within the confines of N.J. Stat. Ann. § 2C:18-2. State v. Jijon, 264 N.J. Super. 405, 624 A.2d 1029, 1993 N.J. Super. LEXIS 187 (App.Div. 1993), affirmed without opinion by 135 N.J. 471, 640 A.2d 1152, 1994 N.J. LEXIS 426 (1994).

27. Notion that joyriding is not an offense within the meaning of N.J. Stat. Ann. § 2C:18-2 is belied by the plain language of the statute which defines burglary as an entry (or surreptitious remaining) with purpose to commit an offense therein, an all encompassing term which includes not only crimes, but disorderly persons offenses and even petty disorderly persons offenses. State v. Jijon, 264 N.J. Super. 405, 624 A.2d 1029, 1993 N.J. Super. LEXIS 187 (App.Div. 1993), affirmed without opinion by 135 N.J. 471, 640 A.2d 1152, 1994 N.J. LEXIS 426 (1994).

28. Burglary and a subsequent attempted theft by unlawful taking are separate and distinct offenses even though the structure broken into is also the movable property attempted to be stolen. State v. Jijon, 264 N.J. Super. 405, 624 A.2d 1029, 1993 N.J. Super. LEXIS 187 (App.Div. 1993), affirmed without opinion by 135 N.J. 471, 640 A.2d 1152, 1994 N.J. LEXIS 426 (1994).

29. Superior Court of New Jersey, Appellate Division, disapproved the opinion of the Law Division in State v. Benford, 614 A.2d 659 (Law Div. 1992) in which it was held that a defendant could not be convicted of burglary if his intent at the time of entry into the automobile was only to commit the disorderly persons offense of joyriding. State v. Jijon, 264 N.J. Super. 405, 624 A.2d 1029, 1993 N.J. Super. LEXIS 187 (App.Div. 1993), affirmed without opinion by 135 N.J. 471, 640 A.2d 1152, 1994 N.J. LEXIS 426 (1994).

30. Defendant's argument that the joyriding conviction immunized him from the third degree burglary conviction because the former was a disorderly persons offense was a non sequitur because those are different offenses that the Legislature had dealt with separately and differently, and the Legislature rejected the notion they should merge. State v. Jijon, 264 N.J. Super. 405, 624 A.2d 1029, 1993 N.J. Super. LEXIS 187 (App.Div. 1993), affirmed without opinion by 135 N.J. 471, 640 A.2d 1152, 1994 N.J. LEXIS 426 (1994).

31. Defendant's conviction for burglary in violation of N.J. Stat. Ann. 2C:18-2 was upheld even though his purpose in entering the automobile was only to joyride or to operate it and withhold the automobile temporarily from the owner rather than to permanently deprive the owner of possession. State v. Martes, 266 N.J. Super. 117, 628 A.2d 817, 1993 N.J. Super. LEXIS 700 (Law Div. 1993).

32. When the underlying offense was the disorderly persons offense of joyriding under N.J. Stat. Ann. § 2C:20-10, defendant could not be convicted of burglary, under N.J. Stat. Ann. § 2C:18-2, of that same automobile. State v. Benford, 259 N.J. Super. 569, 614 A.2d 659, 1992 N.J. Super. LEXIS 355 (Law Div. 1992), overruled by State v. Jijon, 264 N.J. Super. 405, 624 A.2d 1029, 1993 N.J. Super. LEXIS 187 (App.Div. 1993).

33. For the lesser offense of criminal trespass, no evil purpose needed to have been shown, only unauthorized entry; for the greater offense of burglary, a defendant's entry must have been accompanied by the purpose of committing an offense. State v. Williams, 229 N.J. Super. 179, 550 A.2d 1298, 1988 N.J. Super. LEXIS 435 (App.Div. 1988).

34. Defendant's motion to dismiss his indictment for third-degree burglary under N.J. Stat. Ann. § 2C:18-2 and third-degree theft under N.J. Stat. Ann. §§ 2C:20-3(a) and 20-2(b)(2)(a) was proper; there was sufficient testimony from the tenants, stating that defendant had removed the boiler and hot water heater from the building. State v. Vasky, 218 N.J. Super. 487, 528 A.2d 61, 1987 N.J. Super. LEXIS 1220 (App.Div. 1987).

35. Trial judge did not err in sentencing defendant to the presumptive term of four years following his conviction for third degree burglary under N.J. Stat. Ann. § 2C:18-2, where, even though he referred to N.J. Stat. Ann. § 2C:44-1(e), he concluded that defendant was subject to a presumption of imprisonment, as he had a prior record; while such presumption did not exist absent an express legislative statement creating the presumption or setting forth a mandatory sentence, the judge actually concluded that a state custodial sentence was warranted, as defendant presented a threat of danger to the community. State v. Powell, 218 N.J. Super. 444, 528 A.2d 39, 1987 N.J. Super. LEXIS 1240 (App.Div. 1987), Abrogated in part by State v. Hill, 199 N.J. 545, 974 A.2d 403, 2009 N.J. LEXIS 686 (2009).

36. Where defendant had been convicted under N.J. Stat. Ann. § 2C:18-2, remand of the case for a hearing under N.J. Evid. R. 8(1), to determine the prerequisites for a charge concerning the adverse inference that could be drawn from his failure to produce a witness, was not necessary; the elements were present in defense counsel's explanation of the reasons for not having called the witness, and the judge's findings of the special relationship between defendant and the missing witness were based upon defense counsel's specific acknowledgement of the friendship and the witness's availability. State v. Powell, 218 N.J. Super. 444, 528 A.2d 39, 1987 N.J. Super. LEXIS 1240 (App.Div. 1987), Abrogated in part by State v. Hill, 199 N.J. 545, 974 A.2d 403, 2009 N.J. LEXIS 686 (2009).

37. Defendant, who illegally entered a store to commit theft, was properly convicted of burglary, even though he was acquitted of theft; the burglary conviction required evidence that defendant entered the store with the intent to commit an offense, regardless of whether that offense was actually committed. State v. Mangrella, 214 N.J. Super. 437, 519 A.2d 926, 1986 N.J. Super. LEXIS 1542 (App.Div. 1986).

38. Entering without breaking a vehicle not adapted for overnight accommodation of persons, with intent to steal, constitutes an attempted theft under former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2). State v. Velez, 176 N.J. Super. 136, 422 A.2d 451, 1980 N.J. Super. LEXIS 704 (App.Div. 1980).

39. Entering without breaking a vehicle not adapted for overnight accommodation of persons, with intent to steal, constitutes an attempted theft under N.J. Stat. Ann. § 2C:18-2. State v. Velez, 176 N.J. Super. 136, 422 A.2d 451, 1980 N.J. Super. LEXIS 704 (App.Div. 1980).

40. Defendant's statement that at the time of his burglary he needed money, coupled with a lack of evidence of his claimed intent to only commit a disorderly persons offense supported defendant's third-degree felony sentence under N.J. Stat. Ann. § 2C:18-2. State v. Warren, 173 N.J. Super. 528, 414 A.2d 623, 1980 N.J. Super. LEXIS 506 (N.J. Super. Ct. 1980).

41. Evidence was sufficient to convict defendant of breaking and entering with intent to rob, robbery, conspiracy to commit robbery, and contributing to the delinquency of a minor under former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2); police officers arrived at an elderly couple's home while they were being robbed by a minor, officers found the minor hiding in a closet, and defendant was found in a car parked on the street one house north of the couple's home, with the car's motor running and the lights off. State v. Manning, 165 N.J. Super. 19, 397 A.2d 686, 1978 N.J. Super. LEXIS 1231 (App.Div. 1978).

42. Former N.J. Stat. Ann. § 2A:151-8 applied to defendant's conviction for possession of weapons because defendant had previously been convicted of entering without breaking; the superior court held that the legislature did not intend to distinguish between those previously convicted of violations of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2), apprehended in possession of dangerous weapons, on the basis of whether or not they "broke" before they entered with a felonious intent; the court concluded that the legislature intended the term "breaking and entering" in § 2A:151-8 as a generic description of crimes enumerated in the statute entitled "Breaking and entering or entering." State v. Harper, 153 N.J. Super. 86, 379 A.2d 60, 1977 N.J. Super. LEXIS 1091 (App.Div. 1977).

43. In a criminal proceeding, the lower court improperly reversed defendant's conviction for breaking and entering with intent to steal pursuant to former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) because the admission of defendant's polygraphy test results was proper where he freely entered into a stipulation for admission. State v. McDavitt, 62 N.J. 36, 297 A.2d 849, 1972 N.J. LEXIS 151 (1972), limited by State v. Domicz, 188 N.J. 285, 907 A.2d 395, 2006 N.J. LEXIS 1322 (2006).

44. A defendant was properly convicted of attempted entry with intent to steal in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) and former N.J. Stat. Ann. § 2A:85-5 where the evidence abundantly established that the defendant had committed overt acts which went far beyond mere preparation. State v. Wilson, 112 N.J. Super. 581, 272 A.2d 304, 1971 N.J. Super. LEXIS 730 (App.Div. 1971).

45. Former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) requires that the intent to steal must coexist with the breaking and entering or entering to be guilty of the offense. State v. Martinez, 112 N.J. Super. 552, 272 A.2d 289, 1970 N.J. Super. LEXIS 395 (App.Div. 1970).

46. Provisions of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) make it mandatory that the statutory intent to steal must coexist with the breaking and entering, or entering without breaking, before one is guilty under the statute. State v. Martinez, 112 N.J. Super. 552, 272 A.2d 289, 1970 N.J. Super. LEXIS 395 (App.Div. 1970).

47. In defendant's trial for attempted breaking and entering with intent to steal under former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) and for possession of burglary tools under former N.J. Stat. Ann. § 2A:94-3, defendant's proffered evidence that the witness, a police officer, had a propensity to falsely to accuse others of committing criminal acts, and that such misconduct affected his credibility, was inadmissible. State v. Mondrosch, 108 N.J. Super. 1, 259 A.2d 725, 1969 N.J. Super. LEXIS 326 (App.Div. 1969).

48. Defendant's offer to pay the police to drop the charge of breaking and entering with the intent to steal, in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2), was an admission by conduct. State v. Romero, 95 N.J. Super. 482, 231 A.2d 830, 1967 N.J. Super. LEXIS 571 (App.Div. 1967).

49. Where a general verdict of guilt was returned upon counts for both breaking and entering with intent to steal in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) and receiving stolen property in violation of former N.J. Stat. Ann. § 2A:119-2, there was no basis for defendant's motion for new trial on an assertion of inconsistent findings because the trial court imposed sentence on the conviction for breaking and entering with intent to steal and suspended the imposition of sentence on the counts for receiving the stolen cash and checks. State v. Fioravanti, 46 N.J. 109, 215 A.2d 16, 1965 N.J. LEXIS 143 (1965), writ of certiorari denied by 384 U.S. 919, 86 S. Ct. 1365, 16 L. Ed. 2d 440, 1966 U.S. LEXIS 1783 (1966).

50. In an action by an arrestee, alleging deprivation of rights, privileges, and immunities secured by the Constitution and federal laws, police officers were entilted to summary judgment where the arrestee had been arrested, pursuant to N.J. Stat. Ann. § 2A:156-1 while in the act, committed in the presence of the officers, of attempting to break and enter a residence in the night time in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) and former N.J. Stat. Ann. § 2A:85-5 (now N.J. Stat. Ann. § 2C:5-1). Colon v. Grieco, 226 F. Supp. 414, 1964 U.S. Dist. LEXIS 6421 (D.N.J. 1964).

51. Trial judge who did not place the burden of proof on the state to prove that confessions by a breaking and entering defendant that was also part of a conspiracy to commit that crime, former N.J. Stat. Ann. §§ 2A:94-1 and 2A:98-1 (now N.J. Stat. Ann. §§ 2C:18-2 and 2C:5-2), were admissible and not subject to suppression, given they were the product of physical abuse and mistreatment where the statements lacked credible voluntariness, committed reversible error. State v. Tassiello, 75 N.J. Super. 1, 182 A.2d 129, 1962 N.J. Super. LEXIS 513 (App.Div. 1962), affirmed by 39 N.J. 282, 188 A.2d 406, 1963 N.J. LEXIS 229 (1963).

52. Defendant's convictions and sentences resulting from pleas of non vult to two accusations of breaking and entering in violation of former N.J. Rev. Stat. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) were affirmed; although the religious institutions that he burglarized were likely mistakenly described in the indictment, defendant was precluded from raising this issue on appeal based on his non vult pleas, and waiver. State v. McDonald, 30 N.J. 126, 152 A.2d 143, 1959 N.J. LEXIS 161 (1959), writ of certiorari denied by 361 U.S. 849, 80 S. Ct. 107, 4 L. Ed. 2d 88, 1959 U.S. LEXIS 605 (1959).

53. Under former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2), a breaking consists of anything by which an obstruction to an entrance to a building by the body or a portion thereof is removed; any act of physical force, however slight, by which the obstruction to entering is removed, is sufficient to constitute the breaking. State v. O'Leary, 31 N.J. Super. 411, 107 A.2d 13, 1954 N.J. Super. LEXIS 586 (App.Div. 1954).

54. Former N.J. Rev. Stat. § 2:115-1 (now N.J. Stat. Ann. § 2C:18-2) does not specifically establish a separate crime for being an accessory to an unlawful breaking and entering; the statute encompasses both the act of being a principal as well as being an aider. State v. Seaman, 10 N.J. Super. 439, 77 A.2d 284, 1950 N.J. Super. LEXIS 534 (App.Div. 1950).

Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass > Burglary > General Overview

55. Evidence was sufficient to sustain defendant's convictions for third degree burglary, N.J. Stat. Ann. § 2C:18-2, and third degree theft, N.J. Stat. Ann. § 2C:20-3(a), because the State produced evidence that the victim's golf clubs had been moved within the burglarized premises and that defendant's fingerprint was found on one of the clubs; additionally, an individual testified that he had accompanied defendant to a pawnbroker to dispose of the victim's jewelry, and the police retrieved the victim's jewelry from the same pawnbroker. State v. Love, 245 N.J. Super. 195, 584 A.2d 847, 1991 N.J. Super. LEXIS 10 (App.Div. 1991).

56. In defendant's trial on charges of theft and burglary, a jury charge that, while defendant could choose not to testify, the jury could find defendant guilty in the absence of a satisfactory explanation in the evidence as to the circumstances surrounding defendant's possession of the property did not constitute an improper reference concerning defendant's failure to testify; it is a long-standing and well-established principal that the unexplained and exclusive possession of stolen property shortly after the theft justified an inference that the possessor was the thief. State v. Burch, 179 N.J. Super. 336, 432 A.2d 108, 1981 N.J. Super. LEXIS 598 (App.Div. 1981).

57. Explanation of defendant's possession of stolen property shortly after the theft may be supplied by other means than by witnesses, as possession can also be explained by documentary evidence or from any evidentiary source whatsoever; when such a collateral or alternative evidence source is available other than defendant's testimony to explain the possession of stolen property, an instruction to the jury that other than an innocent inference might arise absent such an explanation is constitutionally permissible. State v. Burch, 179 N.J. Super. 336, 432 A.2d 108, 1981 N.J. Super. LEXIS 598 (App.Div. 1981).

Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass > Burglary > Elements

58. Under N.J. Stat. Ann. § 2C:18-2, burglary is defined as including the entrance into a structure without license or privilege with the purpose of committing an offense within the structure. Gravely v. Speranza, 408 F. Supp. 2d 185, 2006 U.S. Dist. LEXIS 1140 (D.N.J. 2006), affirmed by 219 Fed. Appx. 213, 2007 U.S. App. LEXIS 5144 (3d Cir. N.J. 2007).

Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass > Burglary > Penalties

59. Defendant's aggregate sentence of seven years imprisonment for second-degree conspiracy to commit armed burglary and second degree attempted armed burglary was not excessive and did not shock the judicial consceience since the trial court found three aggravating factors, namely the risk of recidivism, a prior criminal record, and the need to deter, and no mitigating factors. Defendant's adult criminal record also included two convictions. State v. Garcia, 195 N.J. 192, 949 A.2d 208, 2008 N.J. LEXIS 771 (2008).

Criminal Law & Procedure > Criminal Offenses > Property Crimes > Larceny & Theft > General Overview

60. Notion that joyriding is not an offense within the meaning of N.J. Stat. Ann. § 2C:18-2 is belied by the plain language of the statute which defines burglary as an entry (or surreptitious remaining) with purpose to commit an offense therein, an all encompassing term which includes not only crimes, but disorderly persons offenses and even petty disorderly persons offenses. State v. Jijon, 264 N.J. Super. 405, 624 A.2d 1029, 1993 N.J. Super. LEXIS 187 (App.Div. 1993), affirmed without opinion by 135 N.J. 471, 640 A.2d 1152, 1994 N.J. LEXIS 426 (1994).

61. Burglary and a subsequent attempted theft by unlawful taking are separate and distinct offenses even though the structure broken into is also the movable property attempted to be stolen. State v. Jijon, 264 N.J. Super. 405, 624 A.2d 1029, 1993 N.J. Super. LEXIS 187 (App.Div. 1993), affirmed without opinion by 135 N.J. 471, 640 A.2d 1152, 1994 N.J. LEXIS 426 (1994).

62. Superior Court of New Jersey, Appellate Division, disapproved the opinion of the Law Division in State v. Benford, 614 A.2d 659 (Law Div. 1992) in which it was held that a defendant could not be convicted of burglary if his intent at the time of entry into the automobile was only to commit the disorderly persons offense of joyriding. State v. Jijon, 264 N.J. Super. 405, 624 A.2d 1029, 1993 N.J. Super. LEXIS 187 (App.Div. 1993), affirmed without opinion by 135 N.J. 471, 640 A.2d 1152, 1994 N.J. LEXIS 426 (1994).

63. Defendant's argument that the joyriding conviction immunized him from the third degree burglary conviction because the former was a disorderly persons offense was a non sequitur because those are different offenses that the Legislature had dealt with separately and differently, and the Legislature rejected the notion they should merge. State v. Jijon, 264 N.J. Super. 405, 624 A.2d 1029, 1993 N.J. Super. LEXIS 187 (App.Div. 1993), affirmed without opinion by 135 N.J. 471, 640 A.2d 1152, 1994 N.J. LEXIS 426 (1994).

64. Evidence was sufficient to sustain defendant's convictions for third degree burglary, N.J. Stat. Ann. § 2C:18-2, and third degree theft, N.J. Stat. Ann. § 2C:20-3(a), because the State produced evidence that the victim's golf clubs had been moved within the burglarized premises and that defendant's fingerprint was found on one of the clubs; additionally, an individual testified that he had accompanied defendant to a pawnbroker to dispose of the victim's jewelry, and the police retrieved the victim's jewelry from the same pawnbroker. State v. Love, 245 N.J. Super. 195, 584 A.2d 847, 1991 N.J. Super. LEXIS 10 (App.Div. 1991).

Criminal Law & Procedure > Criminal Offenses > Weapons > Possession > General Overview

65. Purpose of the legislature in enacting the armed burglary provisions of N.J. Stat. Ann. § 2C:18-2, i.e., armed with a deadly weapon, as a crime of higher degree than simple burglary is to deter the commission of burglaries while so armed in order to protect potential victims from greater risk of injury when an implement that could be used as a deadly weapon is involved. Viewed in that light, § 2C:18-2 manifestly establishes as an element the mere possession of such an implement during a burglary. State v. Clark, 352 N.J. Super. 130, 799 A.2d 679, 2002 N.J. Super. LEXIS 294 (App.Div. 2002).

66. Presence of an item that can be used as a deadly weapon satisfies the requirements of the armed burglary standard of N.J. Stat. Ann. § 2C:18-2. It is of no consequence, given the manifest purpose of the statute, that the article in question might also have innocent uses. State v. Clark, 352 N.J. Super. 130, 799 A.2d 679, 2002 N.J. Super. LEXIS 294 (App.Div. 2002).

Criminal Law & Procedure > Criminal Offenses > Weapons > Possession > Penalties

67. Defendant's conviction for possession of a firearm with a purpose to use it unlawfully had to merge into one of the substantive offenses for which he was convicted pursuant to N.J. Ct. R. 3:19-1(b) in the absence of a special verdict by the jury finding that the unlawful purpose was broader than the substantive offenses for which defendant was convicted; because the unlawful purpose for possession of the firearm was restricted to the underlying crimes for which defendant was ultimately convicted and because the facts did not plainly indicate a broader purpose than merely to burglarize, rob or kill the victim, the unlawful purpose count had to be merged with one of defendant's burglary, robbery or murder convictions. State v. Loftin, 287 N.J. Super. 76, 670 A.2d 557, 1996 N.J. Super. LEXIS 19 (App.Div. 1996).

Criminal Law & Procedure > Criminal Offenses > Weapons > Use > General Overview

68. Lock blade knife which defendant carried when he entered two properties was a deadly weapon for the purposes of N.J. Stat. Ann. § 2C:18-2, which prohibited armed burglary, and defendant was properly convicted of armed burglary even though he testified that the knife was used as a tool. State v. Clark, 352 N.J. Super. 130, 799 A.2d 679, 2002 N.J. Super. LEXIS 294 (App.Div. 2002).

69. Purpose of the legislature in enacting the armed burglary provisions of N.J. Stat. Ann. § 2C:18-2, i.e., armed with a deadly weapon, as a crime of higher degree than simple burglary is to deter the commission of burglaries while so armed in order to protect potential victims from greater risk of injury when an implement that could be used as a deadly weapon is involved. Viewed in that light, § 2C:18-2 manifestly establishes as an element the mere possession of such an implement during a burglary. State v. Clark, 352 N.J. Super. 130, 799 A.2d 679, 2002 N.J. Super. LEXIS 294 (App.Div. 2002).

70. Presence of an item that can be used as a deadly weapon satisfies the requirements of the armed burglary standard of N.J. Stat. Ann. § 2C:18-2. It is of no consequence, given the manifest purpose of the statute, that the article in question might also have innocent uses. State v. Clark, 352 N.J. Super. 130, 799 A.2d 679, 2002 N.J. Super. LEXIS 294 (App.Div. 2002).

Criminal Law & Procedure > Juvenile Offenders > Juvenile Proceedings > General Overview

71. When a juvenile was charged with arson, in violation of N.J. Stat. Ann. § 2C:17-1(a)(2), criminal mischief, in violation of N.J. Stat. Ann. § 2C:17-3(a)(1), and burglary, in violation of N.J. Stat. Ann. § 2C:18-2(a)(1), and the trial court granted the State's motion to waive the case to adult court without reviewing the adequacy of a statement of reasons, the trial court erred. State ex rel. R.C., 351 N.J. Super. 248, 798 A.2d 111, 2002 N.J. Super. LEXIS 254 (App.Div. 2002).

Criminal Law & Procedure > Juvenile Offenders > Trial as Adult > General Overview

72. When a juvenile was charged with arson, in violation of N.J. Stat. Ann. § 2C:17-1(a)(2), criminal mischief, in violation of N.J. Stat. Ann. § 2C:17-3(a)(1), and burglary, in violation of N.J. Stat. Ann. § 2C:18-2(a)(1), and the trial court granted the State's motion to waive the case to adult court without reviewing the adequacy of a statement of reasons, the trial court erred. State ex rel. R.C., 351 N.J. Super. 248, 798 A.2d 111, 2002 N.J. Super. LEXIS 254 (App.Div. 2002).

Criminal Law & Procedure > Arrests > Warrantless Arrest

73. In an action by an arrestee, alleging deprivation of rights, privileges, and immunities secured by the Constitution and federal laws, police officers were entilted to summary judgment where the arrestee had been arrested, pursuant to N.J. Stat. Ann. § 2A:156-1 while in the act, committed in the presence of the officers, of attempting to break and enter a residence in the night time in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) and former N.J. Stat. Ann. § 2A:85-5 (now N.J. Stat. Ann. § 2C:5-1). Colon v. Grieco, 226 F. Supp. 414, 1964 U.S. Dist. LEXIS 6421 (D.N.J. 1964).

Criminal Law & Procedure > Search & Seizure > Fruit of the Poisonous Tree > General Overview

74. Physical evidence, which was uncovered during a warrantless invasion of an apartment in which defendant was located and which was the sole basis for defendant's arrest for burglary, and defendant's subsequent inculpatory statements should have been suppressed; therefore, defendant's conviction for burglary in violation of N.J. Stat. Ann. § 2C:18-2 had to be reversed because most, if not all, of the evidence against him was inadmissible. State v. Jones, 277 N.J. Super. 113, 649 A.2d 89, 1994 N.J. Super. LEXIS 453 (App.Div. 1994), reversed by 143 N.J. 4, 667 A.2d 1043, 1995 N.J. LEXIS 1360 (1995).

Criminal Law & Procedure > Interrogation > Voluntariness

75. Trial judge who did not place the burden of proof on the state to prove that confessions by a breaking and entering defendant that was also part of a conspiracy to commit that crime, former N.J. Stat. Ann. §§ 2A:94-1 and 2A:98-1 (now N.J. Stat. Ann. §§ 2C:18-2 and 2C:5-2), were admissible and not subject to suppression, given they were the product of physical abuse and mistreatment where the statements lacked credible voluntariness, committed reversible error. State v. Tassiello, 75 N.J. Super. 1, 182 A.2d 129, 1962 N.J. Super. LEXIS 513 (App.Div. 1962), affirmed by 39 N.J. 282, 188 A.2d 406, 1963 N.J. LEXIS 229 (1963).

Criminal Law & Procedure > Accusatory Instruments > Indictments > General Overview

76. Where defendant confessed both the crimes set forth in the original complaints, and voluntarily executed waivers of his constitutional rights to indictment and to trial by jury, there was no doubt that defendant desired and intended to waive indictment and plead non vult to one charge of entering the convent at St. John's Church and another of entering that at St. Paul's Church on the same day, and even there may have been some confusion in the mind of his attorney at the time because the identically worded accusations erroneously described the places invaded by defendant, it was clear that defendant appreciated he was in fact waiving indictment and pleading to the confessed offenses and knew the accusations were not intended to charge anything else. State v. McDonald, 30 N.J. 126, 152 A.2d 143, 1959 N.J. LEXIS 161 (1959), writ of certiorari denied by 361 U.S. 849, 80 S. Ct. 107, 4 L. Ed. 2d 88, 1959 U.S. LEXIS 605 (1959).

Criminal Law & Procedure > Preliminary Proceedings > Pretrial Diversion > General Overview

77. Trial court erred in overturning a prosecutor's rejection of defendant's application for admission into a Pretrial Intervention (PTI) program because it was appropriate for the prosecutor's decision to be based solely on the nature of the offense charged; the burglary of a residence was considered a serious offense, and the fear and anxiety of homeowners would only be heightened if the public were to detect a lack of vigorous prosecution, whether real or perceived; the prosecutor's reasons for denying defendant admittance into the program were expressly grounded on criteria set forth in N.J.S.A. 2C:43-12(e). State v. Kraft, 265 N.J. Super. 106, 625 A.2d 579, 1993 N.J. Super. LEXIS 203 (App.Div. 1993).

Criminal Law & Procedure > Eyewitness Identification > Photo Identifications

78. At a trial for violations of N.J. Stat. Ann. §§ 2C:18-2(a)(1), 2C:15-1(a)(2), 2C:13-2(b), and 2C:12-3(b), an out-of-court identification was properly admitted at trial because the ruling was supported in the record of the Wade hearing. State v. Pyron, 202 N.J. Super. 502, 495 A.2d 467, 1985 N.J. Super. LEXIS 1372 (App.Div. 1985).

Criminal Law & Procedure > Double Jeopardy > Collateral Estoppel

79. Appellate court erred in permitting appellant's conviction for breaking and entry with intent to steal in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) to have stood because appellants' prior convictions for receiving stolen goods precluded them from being both thieves and receivers of stolen goods. State v. Bell, 55 N.J. 239, 260 A.2d 849, 1970 N.J. LEXIS 142 (1970).

80. Following defendants' conviction for the felony murder of a policeman under former N.J. Stat. Ann. §§ 2A:113-1 and 2A:113-2 in the course of taking his service revolver, double jeopardy protection did not preclude their prosecution for the charge of breaking, entering and larceny in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) and former N.J. Stat. Ann. § 2A:119-2 for a theft committed earlier in the evening before the murder. State v. Fitzsimmons, 60 N.J. Super. 230, 158 A.2d 731, 1960 N.J. Super. LEXIS 732 (Cty. Ct. 1960), writ of certiorari denied by 364 U.S. 875, 81 S. Ct. 120, 5 L. Ed. 2d 97, 1960 U.S. LEXIS 365 (1960).

Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution

81. By instructing the jury that defendant had entered the alleged victim's apartment without license or privilege, the trial court directed a verdict on an element of the offense of burglary and thereby improperly relieved the State of its constitutional burden of proving guilt beyond a reasonable doubt. This was a plain error that mandated a new trial on the burglary charge. State v. Grenci, 197 N.J. 604, 964 A.2d 776, 2009 N.J. LEXIS 44 (2009).

Criminal Law & Procedure > Defenses > Intoxication

82. Defendant was entitled to a new trial where he had presented a jury question as to whether his voluntary intoxication negated any specific intent to steal, as mandated under former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2). State v. Del Vecchio, 142 N.J. Super. 359, 361 A.2d 579, 1976 N.J. Super. LEXIS 806 (App.Div. 1976).

Criminal Law & Procedure > Scienter > Specific Intent

83. Defendant was entitled to a new trial where he had presented a jury question as to whether his voluntary intoxication negated any specific intent to steal, as mandated under former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2). State v. Del Vecchio, 142 N.J. Super. 359, 361 A.2d 579, 1976 N.J. Super. LEXIS 806 (App.Div. 1976).

Criminal Law & Procedure > Jury Instructions > General Overview

84. Defendant's conviction for unlawfully entering a store with intent to steal, in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2), was reinstated because the jury charge as a whole did not mislead the jury where the trial judge clearly instructed the jury that the State had the burden of proving beyond a reasonable doubt that the defendant had unlawfully entered the interior of the store with an intent to steal. State v. Wilbely, 63 N.J. 420, 307 A.2d 608, 1973 N.J. LEXIS 199 (1973).

Criminal Law & Procedure > Jury Instructions > Particular Instructions > Elements of the Offense

85. By instructing the jury that defendant had entered the alleged victim's apartment without license or privilege, the trial court directed a verdict on an element of the offense of burglary and thereby improperly relieved the State of its constitutional burden of proving guilt beyond a reasonable doubt. This was a plain error that mandated a new trial on the burglary charge. State v. Grenci, 197 N.J. 604, 964 A.2d 776, 2009 N.J. LEXIS 44 (2009).

Criminal Law & Procedure > Jury Instructions > Particular Instructions > Lesser Included Offenses

86. Where there was ample evidence that defendant was in victim's apartment for a purpose other than to steal, the trial court should have charged the jury on lesser included offense of criminal trespass under N.J. Stat. Ann. § 2C:18-3 rather than burglary under N.J. Stat. Ann. § 2C:18-2(a); even though defendant did not request a charge on the lesser offense, the judge erred in failing to charge the lesser included offense because the evidence clearly indicated that such a charge was appropriate. State v. Singleton, 290 N.J. Super. 336, 675 A.2d 1143, 1996 N.J. Super. LEXIS 193 (App.Div. 1996).

Criminal Law & Procedure > Jury Instructions > Particular Instructions > Use of Particular Evidence

87. In defendant's trial on charges of theft and burglary, a jury charge that, while defendant could choose not to testify, the jury could find defendant guilty in the absence of a satisfactory explanation in the evidence as to the circumstances surrounding defendant's possession of the property did not constitute an improper reference concerning defendant's failure to testify; it is a long-standing and well-established principal that the unexplained and exclusive possession of stolen property shortly after the theft justified an inference that the possessor was the thief. State v. Burch, 179 N.J. Super. 336, 432 A.2d 108, 1981 N.J. Super. LEXIS 598 (App.Div. 1981).

88. Explanation of defendant's possession of stolen property shortly after the theft may be supplied by other means than by witnesses, as possession can also be explained by documentary evidence or from any evidentiary source whatsoever; when such a collateral or alternative evidence source is available other than defendant's testimony to explain the possession of stolen property, an instruction to the jury that other than an innocent inference might arise absent such an explanation is constitutionally permissible. State v. Burch, 179 N.J. Super. 336, 432 A.2d 108, 1981 N.J. Super. LEXIS 598 (App.Div. 1981).

Criminal Law & Procedure > Sentencing > Alternatives > Probation > General Overview

89. Where defendant pled guilty for burglary, N.J. Stat. Ann. § 2C:18-2, and theft, N.J. Stat. Ann. § 2C:20-3, and received a five-year probationary term, purportedly to be served concurrently with a probationary term that she was serving for an earlier bad check offense, when she was subsequently sentenced to a five-year prison term with a two-and-one-half year parole disqualified for violation of her probation, on appeal the parole ineligibility term was vacated and the maximum term was modified to four years where the sentence imposed after revocation should have been viewed as focusing on the original offense rather than on the violation of probation as a separate offense, N.J. Stat. Ann. 2C:45-3(b), and where failure to report while on probation and illegal drug use were not truly "aggravating factors" under N.J. Stat. Ann. § 2C:44-1, as the sentencing judge had incorrectly considered. State v. Wilson, 226 N.J. Super. 271, 543 A.2d 1057, 1988 N.J. Super. LEXIS 250 (App.Div. 1988).

Criminal Law & Procedure > Sentencing > Appeals > General Overview

90. Following convictions under N.J. Stat. Ann. §§ 2C:18-2, 2C:20-3, 2C:20-7, and 2C:15-1, a 30-year sentence was not excessive under N.J. Stat. Ann. § 2C:44-3 where defendants, who had long criminal histories, held a knife to the throat of a gas station attendant during the robbery. State v. Munoz, 340 N.J. Super. 204, 774 A.2d 515, 2001 N.J. Super. LEXIS 183 (App.Div. 2001).

91. Defendant who had been convicted of entering with intent to steal had standing to challenge his sentence and move for resentencing because he was incarcerated for an offense that had been eliminated by the New Jersey Code of Criminal Justice. State v. Schenck, 186 N.J. Super. 236, 452 A.2d 223, 1982 N.J. Super. LEXIS 910 (Law Div. 1982).

Criminal Law & Procedure > Sentencing > Corrections, Modifications & Reductions > Eligibility, Circumstances & Factors

92. Resentencing Panel did not abuse its discretion in finding that defendant had failed to show "good cause" for resentencing under N.J. Stat. Ann. § 2C:1-1(d)(2); the panel properly took into consideration defendant's bad prior record, his maximum exposure under N.J. Stat. Ann. § 2C:43-6(a)(3) of ten years imprisonment on both charges under N.J. Stat. Ann. § 2C:18-2, and the fact that numerous other charges against him were dismissed pursuant to plea negotiations. State v. Stypulkowski, 176 N.J. Super. 524, 424 A.2d 229, 1980 N.J. Super. LEXIS 734 (App.Div. 1980).

Criminal Law & Procedure > Sentencing > Guidelines > Departures > General Overview

93. Defendant's aggregate sentence of seven years imprisonment for second-degree conspiracy to commit armed burglary and second degree attempted armed burglary was not excessive and did not shock the judicial consceience since the trial court found three aggravating factors, namely the risk of recidivism, a prior criminal record, and the need to deter, and no mitigating factors. Defendant's adult criminal record also included two convictions. State v. Garcia, 195 N.J. 192, 949 A.2d 208, 2008 N.J. LEXIS 771 (2008).

Criminal Law & Procedure > Sentencing > Imposition > General Overview

94. Failure to appear at a sentencing hearing is not a permissible sentencing criteria set forth in the code of criminal justice. State v. Wilson, 206 N.J. Super. 182, 502 A.2d 46, 1985 N.J. Super. LEXIS 1609 (App.Div. 1985).

Criminal Law & Procedure > Sentencing > Imposition > Factors

95. Failure to appear at a sentencing hearing is not a permissible sentencing criteria set forth in the code of criminal justice. State v. Wilson, 206 N.J. Super. 182, 502 A.2d 46, 1985 N.J. Super. LEXIS 1609 (App.Div. 1985).

96. Trial court had discretion in determining whether defendant charged with breaking and entering with intent to steal items valued at less than $ 10 under former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2), without a prior criminal record, was eligible for pretrial intervention. State v. Maddocks, 80 N.J. 98, 402 A.2d 224, 1979 N.J. LEXIS 1218 (1979).

Criminal Law & Procedure > Sentencing > Merger

97. Defendant's conviction for possession of a firearm with a purpose to use it unlawfully had to merge into one of the substantive offenses for which he was convicted pursuant to N.J. Ct. R. 3:19-1(b) in the absence of a special verdict by the jury finding that the unlawful purpose was broader than the substantive offenses for which defendant was convicted; because the unlawful purpose for possession of the firearm was restricted to the underlying crimes for which defendant was ultimately convicted and because the facts did not plainly indicate a broader purpose than merely to burglarize, rob or kill the victim, the unlawful purpose count had to be merged with one of defendant's burglary, robbery or murder convictions. State v. Loftin, 287 N.J. Super. 76, 670 A.2d 557, 1996 N.J. Super. LEXIS 19 (App.Div. 1996).

98. Defendant's conviction for second degree burglary should have been merged into his conviction for second degree attempted aggravated sexual assault; under N.J. Stat. Ann. § 2C:14-2(a)(3), the latter conviction required proof that the offense was committed during the commission of a burglary. State v. Ramos, 217 N.J. Super. 530, 526 A.2d 284, 1987 N.J. Super. LEXIS 1167 (App.Div. 1987).

Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview

99. Appellate court rejected defendant's sufficiency of the evidence claims as lacking sufficient merit to warrant discussion in a written decision, pursuant to N.J. Ct. R. 2:11-3(e)(2), because the victims' and the co-defendants' testimony that defendant entered a victim's house with the co-defendants through an unlocked door, that defendant took part in threatening the victims in the house with guns, that defendant and his co-defendants robbed the victims, and that a victim was hit in the head was adequate to defeat a motion for judgment of acquittal and support the convictions; a reasonable jury could have found defendant's guilt of the crime beyond a reasonable doubt after considering all of the State of New Jersey's evidence and giving the State the benefit of all favorable evidence and inferences. State v. Fletcher, 380 N.J. Super. 80, 880 A.2d 1171, 2005 N.J. Super. LEXIS 257 (App.Div. 2005).

Evidence > Procedural Considerations > Preliminary Questions > General Overview

100. Where defendant was convicted for unlawful entry in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2) and of larceny under former N.J. Stat. Ann. § 2A:119-2 (now N.J. Stat. Ann. § 2C:20-2), even though there was a sharp and irreconcilable conflict in the proof submitted by the State and defense as to defendant's guilt, resolution of the problem of credibility was for the trier of the facts, and might have been decided for or against defendant; thus, it could not be said that the determination of guilt was contrary to the weight of the evidence. State v. Scrotsky, 38 N.J. 14, 182 A.2d 868, 1962 N.J. LEXIS 150 (1962).

Evidence > Procedural Considerations > Weight & Sufficiency

101. Physical evidence, which was uncovered during a warrantless invasion of an apartment in which defendant was located and which was the sole basis for defendant's arrest for burglary, and defendant's subsequent inculpatory statements should have been suppressed; therefore, defendant's conviction for burglary in violation of N.J. Stat. Ann. § 2C:18-2 had to be reversed because most, if not all, of the evidence against him was inadmissible. State v. Jones, 277 N.J. Super. 113, 649 A.2d 89, 1994 N.J. Super. LEXIS 453 (App.Div. 1994), reversed by 143 N.J. 4, 667 A.2d 1043, 1995 N.J. LEXIS 1360 (1995).

102. Evidence was sufficient to sustain defendant's convictions for third degree burglary, N.J. Stat. Ann. § 2C:18-2, and third degree theft, N.J. Stat. Ann. § 2C:20-3(a), because the State produced evidence that the victim's golf clubs had been moved within the burglarized premises and that defendant's fingerprint was found on one of the clubs; additionally, an individual testified that he had accompanied defendant to a pawnbroker to dispose of the victim's jewelry, and the police retrieved the victim's jewelry from the same pawnbroker. State v. Love, 245 N.J. Super. 195, 584 A.2d 847, 1991 N.J. Super. LEXIS 10 (App.Div. 1991).

103. Defendant's offer to pay the police to drop the charge of breaking and entering with the intent to steal, in violation of former N.J. Stat. Ann. § 2A:94-1 (now N.J. Stat. Ann. § 2C:18-2), was an admission by conduct. State v. Romero, 95 N.J. Super. 482, 231 A.2d 830, 1967 N.J. Super. LEXIS 571 (App.Div. 1967).

N.J. Stat. § 2C:18-2