State of New Jersey v. Jonathan Zembreski

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0632-14T3

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
May 17, 2016
v. APPELLATE DIVISION

JONATHAN ZEMBRESKI,

Defendant-Appellant.
_____________________________________

Argued November 17, 2015 – Decided May 17, 2016

Before Judges Fisher, Espinosa, and
Rothstadt.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment
No. 14-05-1018.

Louis M. Barbone argued the cause for
appellant (Jacobs & Barbone, P.A.,
attorneys; Mr. Barbone and John R. Stein, on
the briefs).

Courtney M. Cittadini, Assistant Prosecutor,
argued the cause for respondent (James P.
McClain, Atlantic County Prosecutor,
attorney; Ms. Cittadini, of counsel and on
the briefs).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

In this case of first impression, we hold that a defendant

commits an act of burglary, N.J.S.A. 2C:18-2, if he gains access
to his victim's residence by deception for the purpose of

committing a crime.

Defendant Jonathan Zembreski appeals from the Law

Division's judgment of conviction, entered after a jury found

him guilty of robbery, burglary, and impersonating a law

enforcement officer. Defendant's victim was a guest at a hotel

and a gambling patron at its casino. The evidence presented was

that defendant followed his victim to his room and gained access

by claiming to be an FBI agent. Once inside, defendant

threatened to prosecute the victim, demanded that he give

defendant money, and slammed the door to the room on the

victim's hand when he tried to escape, injuring him in the

process.

Defendant's primary contention on appeal is that his

conduct did not constitute burglary because, by opening the

door, the victim gave defendant permission to enter. He also

argues the trial court erred by failing to dismiss a superseding

indictment returned after the final pretrial conference had been

held, denying his motion for acquittal at the close of the

State's case on the robbery and burglary counts, and failing to

2 A-0632-14T3
provide him the opportunity to present supplemental closing

arguments.1 We affirm.

I.

An Atlantic County Grand Jury returned an indictment

charging defendant with second-degree robbery by use of force,

N.J.S.A. 2C:15-1(a)(1) (count one); fourth-degree impersonating

a law enforcement officer, N.J.S.A. 2C:28-8(b) (count two);

third-degree possession of a controlled dangerous substance,

N.J.S.A. 2C:35-10(a)(2) (count three); second-degree burglary,

N.J.S.A. 2C:18-2 (count four); and third-degree theft, N.J.S.A.

2C:20-3 (count five). Before trial, defendant moved to dismiss

all counts of the indictment, which the court denied in large

part, dismissing only the possession charge and downgrading the

theft charge. After a final pretrial conference, but before

trial, the prosecutor re-presented the matter to a grand jury.

The grand jury returned a superseding indictment, again charging

defendant with the same offenses, but adding a new count of

second-degree robbery, N.J.S.A. 2C:15-1(a)(2), under the theory

that defendant "purposely put [the victim] in fear of immediate

bodily injury." Defendant moved to dismiss the superseding

indictment, which the court denied. The court offered defendant

1
Defendant also contends the court erred in failing to grant a
new trial, but the record does not disclose that such a motion
was ever filed.

3 A-0632-14T3
additional time to prepare for trial in light of the superseding

indictment, but defendant declined the court's offer. Trial

commenced on June 9, 2014, as scheduled, and the State rested

the following day.

At trial, the following facts were established by the

State's evidence. At around 8:30 p.m. on the evening of

February 28, 2013, defendant's victim and his father began

gambling at the hotel's casino. They continued for several

hours, stopping at approximately 3:00 a.m. on March 1.

Defendant was in the vicinity of the two men while they gambled,

first sitting at an empty table nearby and later standing behind

the victim's father. When the two men left the casino,

defendant – who was wearing a baseball cap at the time —

followed them onto an elevator, where he put on a hooded

sweatshirt. Defendant exited the elevator when his victim got

off on the twentieth floor. As the victim was halfway to his

room, unaware defendant was behind him, he "heard a voice

talking to [him]," saying something that sounded "like [']it's

dark in here.[']" Given the late hour, the victim was "taken

aback . . . . [and] a little startled." He hurried to his room,

let himself in, and locked the door behind him.

Within seconds, the victim heard banging on his door and

someone saying, "[T]his is the FBI, you need to open your door."

4 A-0632-14T3
Tired, confused, and in significant pain from a recent surgery,

the victim remained still until he heard more knocking and

another order to open the door. When he looked through the

peephole, he saw a "goldish badge with some dark lettering," but

could not see any other details. He opened the door enough so

that defendant, who the victim assumed was an FBI agent, was

able to enter. Without the victim saying anything, defendant

entered the room, flashed the badge, and said, "I'm from the FBI

and we're watching you." When the victim asked to see the badge

again, defendant refused.

Once inside, defendant asked the victim what he did for a

living, and the victim responded that he was a physician.

Defendant told the victim that the FBI had been investigating

"physician practices and . . . the prescription of pain

medication," and presented him with two options: face a "60 to

70 percent chance [of] . . . los[ing] [his] practice" or pay

defendant "$10,000 or $5000 [to] . . . go away." When the

victim said he did not have any money to give, defendant

responded, "I've been watching you for two hours, I know you

have money in your pocket."2

2
Defendant gave a recorded statement to police that was played
for the jury. In his statement, he stated that he watched as
his victim won money playing craps and followed him to his room.
He denied announcing he was an FBI agent, but admitted to
(continued)

5 A-0632-14T3
 The victim moved towards the phone and told defendant,

"[I]f you are the FBI, let me call security and let's work this

out." When he picked up the receiver, defendant "grabbed the

base of [the phone] and pulled on it," ripping the cord from the

wall. The victim testified that, at this point, he was "really

uncomfortable," but that his "initial reaction [of fear] had

passed" and he had "decided to try to fight mentally." The

victim walked to the door, saying the two should "go downstairs

and get this worked out," but when he began to open the door,

defendant "slammed on it and . . . it kind of shut on [the

victim's] hand," causing it to bleed.

Over the course of the encounter thus far, the victim

testified he had experienced "a whole spectrum of feelings from

being stunned and kind of bewildered to being afraid to being

uncomfortable to having a reaction to just kind of use [his]

wits to try to fight" to finally being angry. At his "worst

point," the victim feared he "was never going to see [his] wife

again" because he "didn't know if [defendant] had a weapon or

not and [he] wasn't in any physical condition to confront

[defendant]."

(continued)
holding a badge up to the room's peephole. He also admitted
attempting to scare the victim in order to get money once he was
in the room.

6 A-0632-14T3
 The victim yelled at defendant for injuring him and

defendant broke down and began sobbing, saying he had lost his

father and brother in Hurricane Sandy and needed the money to

pay for their funerals. The victim was still "trying to do

whatever [he] could to get out of the room," thinking he would

be safe if he could get himself and defendant out of the room

and down to the casino floor. He suggested the two go

downstairs, telling defendant he would "see what [he could] do

to help." At around 3:18 a.m., the men took the elevator back

down to the casino floor. Though the victim was beginning to

feel sympathy for defendant, he still did not believe he would

be "out of danger" until he reached the casino floor.

Once back in the casino, the victim walked towards the

craps table where he had played earlier, with defendant

following close behind. As the victim was still pretending he

did not have money on him, he approached one of the pit bosses

and "act[ed] like [he] was asking for money, but [instead]

reached into [his] pocket and grabbed a [$500] chip." He gave

the chip to defendant and told him to "take the money and

leave." When defendant walked away, the victim was still

feeling "shaken up" and asked the pit boss if security could

escort him back to his room. When asked why he wanted an

escort, the victim told security what had happened. The police

7 A-0632-14T3
were summoned and, when they arrived, the victim relayed the

events and identified defendant as the individual who entered

his room. Defendant was later arrested.

After the State rested, defendant moved for a judgment of

acquittal on the burglary and two robbery counts, which the

court denied. With respect to the burglary count, the court

found, based on the "the totality of the evidence" and giving

the State the benefit of all reasonable inferences drawn

therefrom, that defendant was not "licensed or privileged" to

enter the victim's room because he had gained access to the

victim's room by deception. As to the robbery counts, the court

found sufficient evidence to allow both theories to go before

the jury based on the injury to the victim's hand and the

reasonable inferences that could be drawn from his testimony

regarding his emotions throughout his encounter with defendant.

After defendant rested,3 the parties presented closing

arguments. Defendant then renewed his motion for acquittal on

the burglary count, arguing the State could not "maintain a

charge of burglary based upon intentional, purposeful or

reckless conduct" because it had "conceded" in its summation

that there was only "a chance that the victim could have been

3
Defendant called two witnesses, both of whom testified
regarding only his reputation as a law-abiding citizen.

8 A-0632-14T3
hurt by the slamming door." The court again denied the motion,

reasoning that the State's summation was "not evidence, [but]

argument."

The court charged the jury and, shortly before the end of

the day, the jury questioned the court about its charge

regarding the evidence necessary to establish unlawful entry,

asking, "is it permission to enter a room if it's under false

pretenses?" The court excused the jury for the day and directed

the parties to submit briefs on the issue by the end of the

following day. In his submission, defendant proposed additional

instructions on the issue of permission as follows:

"'Permission' means that [the victim] . . . let the defendant in

[regardless of] what was in the mind of [the victim] when he

responded to the knock at the door." The court declined to

adopt defendant's suggestion and answered the jury's question by

saying, "the simple answer under the law is no."

The jury returned its verdict the same day, finding

defendant guilty of impersonating an officer, burglary, and

robbery by fear of immediate bodily harm. It found defendant

not guilty of robbery by use of force.

The court sentenced defendant to three years in prison on

the robbery count, with the burglary count merged, and to a

concurrent 365-day term on the impersonating an officer count.

9 A-0632-14T3
 This appeal followed. On appeal, defendant specifically

argues:

POINT I

THE TRIAL COURT ERRED IN FAILING TO DISMISS
THE SUPERSEDED COUNT OF ROBBERY, RETURNED
DAYS BEFORE TRIAL.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR ACQUITTAL AT THE CLOSE OF THE
STATE'S CASE ON COUNT TWO, SECOND DEGREE
BURGLARY.

POINT III

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR ACQUITTAL AT THE CLOSE OF THE
STATE'S CASE ON COUNT THREE, SECOND DEGREE
ROBBERY.

POINT IV

THE TRIAL COURT'S INSTRUCTION ON THE
DEFINITION OF PERMISSION AS IT RELATED TO
COUNT TWO, SECOND DEGREE BURGLARY, WAS THE
EQUIVALENT OF A DIRECTED VERDICT AND THUS
THE TRIAL COURT ERRED IN FAILING TO GRANT A
NEW TRIAL PURSUANT TO R. 3:20-1 ON COUNT TWO
OF THE INDICTMENT.

POINT V

THE TRIAL COURT ABUSED ITS DISCRETION IN
REFUSING SUPPLEMENTAL CLOSING ARGUMENTS
AFTER DECLARING A NEW RULE OF LAW APPLICABLE
TO THE CHARGE OF BURGLARY.

II.

We begin our review by addressing defendant's procedural

claim that the trial court erred in denying his motion to

10 A-0632-14T3
dismiss the robbery charge in the superseding indictment that

was returned four weeks before the trial date. Defendant argued

in his motion that there was insufficient evidence to support

the new robbery charge — i.e. robbery by threat or fear of harm

— and that obtaining a new indictment after the final pretrial

conference was fundamentally unfair. The trial court denied the

motion because it found the evidence presented to the grand

jury, including the victim's statement to police and his

description of defendant's conduct in the hotel room, supported

the new charge. The court also noted there was no claim of

prosecutorial misconduct or "hiding any exculpatory evidence."

Defendant argues on appeal that obtaining a superseding

indictment after the pretrial conference and with the trial

already scheduled offended the fair and orderly administration

of justice, violated his right to due process and "ha[d] a

chilling effect on [his] exercise" thereof, was "fundamentally

unfair," and "increased the probability of a conviction within

weeks of the trial date and at a time where [d]efendant [wa]s

powerless to meaningfully react." He asserts that, while he

followed the Rules' procedures, the State was permitted to wait

until the eve of trial to obtain the superseding indictment

without "reasonable explanation or . . . demonstration of good

cause" for its delay, and to benefit from defendant's exposure

11 A-0632-14T3
of the weaknesses in its case by his motion to dismiss the

original indictment. In support, he relies upon Rules 1:1-2(a)

(requiring the rules "be construed to secure . . . fairness in

administration"), 3:7-3(d) (requiring a supplemental indictment

for murder be returned "no later than 90 days after the return

. . . of the original indictment"), and 3:9-1(e) (governing

pretrial conferences), and our decision in State v. Jones, 183

N.J. Super. 172 (App. Div. 1982). We disagree with his

arguments and find his reliance on the cited Rules and decision

to be inapposite.

We review a trial court's decision to deny a motion to

dismiss an indictment for a clear abuse of discretion. State v.

Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010). "However, if

a trial court's discretionary decision is based upon a

misconception of the law, a reviewing court owes that decision

no particular deference." Ibid.

One of the guiding principles to be followed by a court

when considering a motion to dismiss an indictment is that "a

dismissal of an indictment is a draconian remedy and should not

be exercised except on the clearest and plainest ground." State

v. Williams, 441 N.J. Super. 266, 271 (App. Div. 2015)

(alteration omitted) (quoting State v. Peterkin, 226 N.J. Super.

25, 38 (App. Div.), certif. denied, 114 N.J. 295 (1988)).

12 A-0632-14T3
Therefore, once returned by a grand jury, an indictment should

be disturbed "only when [it] is manifestly deficient or palpably

defective." State v. Hogan, 144 N.J. 216, 228-29 (1996).

As there is no prohibition against a prosecutor seeking a

superseding indictment before trial, an indictment is not

"deficient" or "defective" because it is amended to include a

new charge. See State v. Bauman, 298 N.J. Super. 176, 205 (App.

Div.), certif. denied, 150 N.J. 25 (1997). "[S]o long as the

prosecutor has probable cause to believe that the accused

committed an offense defined by statute, the decision whether or

not to prosecute, and what charge to file or bring before a

grand jury, generally rests entirely in his discretion." State

v. Gomez, 341 N.J. Super. 560, 573 (App. Div.) (quoting

Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668,

54 L. Ed. 2d 604, 611 (1978)), certif. denied, 170 N.J. 86

(2001). As "the initial charges filed . . . may not reflect the

extent to which an individual is legitimately subject to

prosecution," a prosecutor "remain[s] free before trial to

exercise the broad discretion entrusted to him" and seek a

superseding indictment when supported by the facts. Bauman,

supra, 298 N.J. Super. at 205 (quoting United States v. Goodwin,

457 U.S. 368, 382, 102 S. Ct. 2485, 2493, 73 L. Ed. 2d 74, 86

(1982)). Thus, absent a showing of "vindictiveness" — meaning

13 A-0632-14T3
"the prosecutor's action was solely [in] retaliation . . . for

[defendant's] exercise of a legal right" — a superseding

indictment will not be disturbed. Gomez, supra, 341 N.J. Super.

at 575.

Defendant's reliance on Rule 3:7-3(d) for its requirement

that good cause be shown for supplemental indictments returned

more than ninety days after the original indictment is

misplaced, as the Rule "address[es] indictments for crimes

punishable by death[ and] ha[s] been rendered obsolete by the

repeal of the death penalty." Pressler & Verniero, Current N.J.

Court Rules, comment 3 on R. 3:7-3(d) (2016).4 Similarly

misplaced is defendant's reliance upon Rule 3:9-1(e), which

provides the procedure for pretrial conferences. Nothing in the

Rule prevents the prosecutor from re-presenting the matter to a

grand jury after the conference has been held.

Jones also fails to lend defendant's argument any support.

In that case, we found nothing in "New Jersey law which, without

more, prohibits the seeking of a second indictment following the

dismissal or quashing of the first indictment prior to, at the

very least, the empaneling of a jury to try the indictment."

Jones, supra, 183 N.J. Super. at 178. However, we suggested

4
In fact, defendant recognizes "there is no time limitation
with regard to all other indictments."

14 A-0632-14T3
that concerns related to double jeopardy, collateral estoppel,

statutory prohibitions of reindictment, and "considerations of

fair play, characterized constitutionally as due process, might

well in a given situation abrogate the right to reindict."

Ibid. Nevertheless, we found these concerns inapplicable where

the defendant was reindicted for rape after the offense for

which he was originally indicted — carnal knowledge — was

abrogated by the new rape statute enacted by the legislature.

Ibid. The concerns we discussed in Jones are not applicable

here.

As a prosecutor's broad discretion in charging decisions

remains essentially unfettered until a jury is empaneled — at

which point a superseding indictment is subject to the concerns

we expressed in Jones — neither the decision to seek a

superseding indictment, nor the timing of that decision, is

sufficient to support defendant's claim that his due process

rights were violated. To the extent that adding the additional

robbery count increased the chance of defendant's conviction, it

did so only by providing the jury with an alternate theory that

may have more accurately reflected defendant's conduct. See

Bauman, supra, 298 N.J. Super. at 205. And to the extent it

impacted defendant's ability to prepare for trial, the trial

court offered defendant more time to do so — an offer defendant

15 A-0632-14T3
declined. We discern no abuse of the court's discretion in

denying defendant's motion to dismiss the superseding

indictment.

III.

We turn next to defendant's primary contentions in Points

II, IV, and V, in which he argues that the burglary count should

have been dismissed, that the jury was improperly instructed

because his entry into the victim's room was not unlawful, as he

entered and remained in the victim's room with implied — if not

express — permission, and that the court erred in failing to

provide the opportunity for supplemental closing arguments

"after declaring a new rule of law applicable to the charge of

burglary." He also contends that if the victim's conduct in

opening the door and allowing defendant to enter did not

constitute permission, the burglary statute as applied is

unconstitutionally vague.

The lynchpin in defendant's arguments is that his entry

into the victim's hotel was not unlawful because he was

"licensed" to enter, N.J.S.A. 2C:18-2(a), by virtue of the

victim giving him "permission" to do so, even if that permission

was obtained under false pretenses. Model Jury Charge

(Criminal), "Burglary in the Second Degree, N.J.S.A. 2C:18-2(b)"

(2010). The trial court maintained in its rulings and

16 A-0632-14T3
instructions that defendant's entry was not licensed if secured

by deception. We agree.

The resolution of the issue before us requires a

determination of the proper interpretation of the statutory

language — specifically, whether an individual can be considered

licensed to enter a structure when permission to enter was

obtained under false pretenses.5 We hold that permission to

enter, when obtained under false pretenses, does not give rise

to a license to enter a structure.

Support for our conclusion does not require any exercise in

statutory construction because applying the plain meaning of

"license" "leads to a clear and unambiguous result." State v.

D.A., 191 N.J. 158, 164 (2007). A license is "a revocable

permission to commit some act that would otherwise be unlawful."

Black's Law Dictionary 931 (7th ed. 1999). By giving permission

to enter one's property, an individual provides the recipient a

license to be on the property. See State ex rel. Qarmout v.

Cavallo, 340 N.J. Super. 365, 367 (App. Div. 2001). However, "a

5
Defendant focuses his argument on the definition of
"permission," which is used in the model jury charges but does
not appear in the statute. See N.J.S.A. 2C:18-2(a); Model Jury
Charge (Criminal), "Burglary in the Second Degree, N.J.S.A.
2C:18-2(b)," supra, at 1. He argues the definition of
permission is unambiguous and that its plain meaning does not
require the absence of deception. We find no merit to his
argument.

17 A-0632-14T3
license to enter premises for one purpose [can]not support

remaining on the premises after the purpose ha[s] been

concluded" or entry for a purpose other than that for which the

license was granted. Id. at 368. Thus, where permission to

enter is obtained under false pretenses, a license is granted

for the false purpose while entry is made for another. The

entry therefore exceeds the scope of the limited license and is

unlawful, thereby subjecting the purported licensee to criminal

liability for trespass and burglary. See id. at 367-68.6

Notably, consistent with our understanding, the burglary statute

specifically criminalizes "[s]urreptitiously remain[ing] in a

. . . structure . . . knowing that [one] is not licensed or

privileged to do so." N.J.S.A. 2C:18-2(a)(2).

"Surreptitiously" means "stealthily and usu[ally] fraudulently

done." Black's Law Dictionary, supra, at 1458 (emphasis added);

see also Model Jury Charge (Criminal), "Burglary in the Second

Degree, N.J.S.A. 2C:18-2b," supra, at 1 n.1.

Other states that have considered arguments similar to

defendant's have rejected the notion that entry obtained through

deception does not violate their respective burglary statutes.

See, e.g., People v. Burke, 937 P.2d 886, 890 (Colo. App. 1996),

6
Under the criminal code, consent to enter the room, if not
secured by deception, could provide a defense to a burglary
charge. See N.J.S.A. 2C:2-10(c)(3).

18 A-0632-14T3
cert. denied, No. 97SC82 (Colo. June 2, 1997), cert. denied, 522

U.S. 890, 118 S. Ct. 228, 139 L. Ed. 2d 160 (1997); State v.

Newton, 755 S.E.2d 786, 789-90 (Ga. 2014); State v. Maxwell, 672

P.2d 590, 596-97 (Kan. 1983); State v. Lozier, 375 So. 2d 1333,

1337 (La. 1979); People v. Thompson, 501 N.Y.S.2d 381, 382-83

(App. Div. 1986); State v. Abdullah, 967 A.2d 469, 476 (R.I.

2009); State v. Pierce, 380 P.2d 725, 725 (Utah 1963). For

example, in State v. Newton, the Supreme Court of Georgia held

that interpreting "permission" to include fraudulently-obtained

consent to enter would defeat the purpose of the burglary

statute. Newton, supra, 755 S.E.2d at 789-90. After citing

decisions from other jurisdictions that also saw no distinction

between obtaining entry by physical force or through the use of

deception, the Supreme Court of Georgia stated:

Like the jurisdictions cited above, we
see no meaningful difference between gaining
entry by force and gaining consent to enter
by artifice:

The purpose of the burglary
statute is to protect against the
specific dangers posed by entry
into secured premises of intruders
bent on crime. The intruder who
breaches the barrier with a lie or
deception, by pretending to
deliver a package or to read a
meter, is no less dangerous than
his more stealthy cohorts, and
nothing in the statute suggests an
intent to exempt him from
liability.

19 A-0632-14T3
 [Id. at 790 (quoting People v. Hutchinson,
477 N.Y.S.2d 965, 966-67 (Sup. Ct. 1984),
aff'd, 503 N.Y.S.2d 702 (App. Div.), appeal
denied, 498 N.E.2d 156 (N.Y. 1986)).]

We agree with this logic and find it applicable to New

Jersey's burglary statute and the facts in this case.

After applying this definition of license to the evidence

adduced at trial regarding the burglary, we conclude that the

trial court properly denied defendant's motions for acquittal

and that the court properly instructed the jury in response to

its question.

IV.

As this definition of license is based on the term's plain

meaning and not a pronouncement of a new rule of law, we find no

merit to defendant's arguments in Points IV and V regarding the

court's response to the jury's question and its impact on

summations.7 See State v. Afanador, 151 N.J. 41, 57 (1997). The

trial court's response to the jury's inquiry was consistent with

a common-sense interpretation of the statutory language, "giving

7
Though the record does not reflect that defendant made a
motion for a new trial, we reject his argument that the court's
response to the jury's question regarding permission constituted
a directed verdict, requiring a new trial. The court's response
properly reflected the meaning of license and in no way directed
the jury to find defendant guilty of burglary, as it did not
instruct the jury to find defendant obtained permission by
deception. See State v. Grenci, 197 N.J. 604, 621-22 (2009).

20 A-0632-14T3
effect to the terms of the statute in accordance with their fair

and natural acceptation." D.A., supra, 191 N.J. at 164 (quoting

State v. Meinken, 10 N.J. 348, 352 (1952)).

V.

Turning next to defendant's arguments regarding the court's

denial of his Rule 3:18-1 motions for a judgment of acquittal on

the burglary and robbery counts, we review the trial court's

denial de novo. State v. Dekowski, 218 N.J. 596, 608 (2014).

In doing so, we conduct an independent assessment of the

evidence, applying the same standard as the trial court. See

State v. Williams, 218 N.J. 576, 593-94 (2014).

Pursuant to Rule 3:18-1, "[a]t the close of the State's

case . . . the court shall, on defendant's motion or its own

initiative, order the entry of a judgment of acquittal of one or

more offenses charged in the indictment or accusation if the

evidence is insufficient to warrant a conviction." R. 3:18-1.

It must determine only whether, "based on the entirety of the

evidence and after giving the State the benefit of all its

favorable testimony and all the favorable inferences drawn from

that testimony, a reasonable jury could find guilt beyond a

reasonable doubt." Williams, supra, 218 N.J. at 594. "If the

evidence satisfies that standard, the motion must be denied."

State v. Spivey, 179 N.J. 229, 236 (2004). In deciding whether

21 A-0632-14T3
a judgment of acquittal is warranted, the court "is not

concerned with the worth, nature or extent (beyond a scintilla)

of the evidence, but only with its existence, viewed most

favorably to the State," State v. Kluber, 130 N.J. Super. 336,

342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975), and "no

consideration may be given to any evidence or inferences from

the defendant's case." State v. Reyes, 50 N.J. 454, 459 (1967).

Applying that standard, we discern no error by the trial

court in denying defendant's motions at the end of the State's

case and after the parties presented closing arguments.

A.

We address first defendant's claim of error as it relates

to the burglary count. A defendant commits burglary in the

second degree when he enters a structure without being "licensed

or privileged" and "with purpose to commit an offense therein,"

N.J.S.A. 2C:18-2(a), and, "in the course of committing the

offense, . . . [p]urposely, knowingly or recklessly inflicts,

attempts to inflict or threatens to inflict bodily injury on

anyone." N.J.S.A. 2C:18-2(b)(1).

At trial, the victim testified that he opened the door

because, after knocking, defendant asserted he was an FBI agent,

and that defendant simply walked in. The victim did not

remember saying anything before defendant entered, and testified

22 A-0632-14T3
explicitly that he did not invite defendant into the room. That

testimony, and all reasonable inferences drawn therefrom,

allowed a reasonable jury to find beyond a reasonable doubt that

the victim did not invite defendant, FBI agent or otherwise,

into the room by the mere act of opening the door, and that

defendant's entry was therefore unlawful. To the extent it can

be argued he did allow defendant in, the invitation did not

constitute a license, as it was based upon defendant's use of

deception.

Having determined that the trial court correctly found that

defendant was not licensed to enter the victim's room if the

victim's permission to do so was obtained by deception, we turn

to his contention in Point II that the evidence presented by the

State was insufficient to establish that he "purposely,

knowingly or recklessly" harmed the victim.

For the purposes of second-degree burglary, a defendant

causes injury recklessly

when he consciously disregards a substantial
and unjustifiable risk that [bodily injury]
. . . will result from his conduct. The
risk must be of such a nature and degree
that, considering the nature and purpose of
the actor's conduct and the circumstances
known to him, its disregard involves a gross
deviation from the standard of conduct that
a reasonable person would observe in the
actor's situation.

[N.J.S.A. 2C:2-2(b)(3).]

23 A-0632-14T3
 Here, the sum of defendant's actions leading up to the

victim's injury — including following the victim to his room,

entering the room and demanding payment to avoid prosecution,

and ripping the phone out of the wall — led to the victim

"trying to do whatever [he] could to get out of the room." When

the victim moved towards the door to try to leave, defendant

followed him, and when he tried to open the door, defendant

quickly slammed it shut with the victim's hand still on the

doorframe. While defendant claims that he "could not have seen

[the victim's] left hand and certainly could not know that the

[victim's] left hand was positioned in such a fashion that

closing the door would scrape it," and that he closed the door

"under undisputed factual circumstances where [he] could not see

or know that [the victim's] left hand was broaching the door,"

his statements are not supported by the record.

As defendant was "in the course of committing" the

underlying theft offense from the time he entered the room, all

of his conduct upon entering the room and his act of slamming

the door are relevant to the recklessness determination. Under

the circumstances and giving the State the benefit of all

reasonable inferences, the State's evidence was sufficient to

support a jury finding that defendant acted in conscious

disregard of a substantial and unjustifiable risk that the

24 A-0632-14T3
victim would be injured and, as such, recklessly caused the

victim's injury.

B.

We next address defendant's argument that the court erred

in denying his motion for acquittal on count three because there

was insufficient evidence to establish beyond a reasonable doubt

that he threatened the victim or "purposely put[] him in fear of

immediate bodily injury," as required to support a conviction

for second-degree robbery, N.J.S.A. 2C:15-1(a)(2). He argues

that, to the extent the victim feared bodily injury, it was not

due to defendant's purposeful conduct, and that, to the extent

the victim feared that he would never see his wife again or that

he would lose his medical practice, he did not maintain the fear

of bodily injury necessary to establish robbery.

A defendant commits robbery in the second degree when, "in

the course of committing a theft, he . . . [t]hreatens another

with or purposely puts him in fear of immediate bodily injury."

N.J.S.A. 2C:15-1(a)(2). The underlying theft is committed when

an individual "unlawfully takes, or exercises unlawful control

over, movable property of another with purpose to deprive him

thereof." N.J.S.A. 2C:20-3(a). The theft element is satisfied

by an attempted or completed theft. N.J.S.A. 2C:15-1(a); see

also State v. Whitaker, 200 N.J. 444, 459 (2009).

25 A-0632-14T3
 With respect to the threat element, "[t]he totality of the

circumstances must be considered in determining if defendant's

purpose was to put the victim in fear of immediate bodily

injury." State ex rel. L.W., 333 N.J. Super. 492, 497 (App.

Div. 2000). In making this determination, "[t]he focus . . . is

on the conduct of the accused, rather than on the

characteristics of the victim." State v. Smalls, 310 N.J.

Super. 285, 292 (App. Div. 1998). However,

no special words [or] conduct are required
to make out a threat or to purposely put
someone in fear of immediate bodily injury .
. . . [and] there may be circumstances where
conduct alone, without threats . . . , may
be sufficient to justify a conclusion that
the person purposely placed the victim in
fear of immediate bodily injury . . . .

[Ibid.]

Under the circumstances established at trial, the State

presented evidence sufficient to defeat defendant's motion for

acquittal. As to the first element of robbery, the evidence was

sufficient to support a jury finding beyond a reasonable doubt

that the theft element was satisfied — so much so that defendant

does not challenge the sufficiency of the evidence regarding

this element. Regardless of whether the victim ultimately gave

defendant the $500 chip voluntarily, which is open to dispute,

the evidence was sufficient to support a finding that he

committed, at the very least, an attempted theft. See N.J.S.A.

26 A-0632-14T3
2C:20-3(a) (defining theft); N.J.S.A. 2C:5-1 (defining criminal

attempt). Defendant's conduct in watching the victim win at the

craps table, following him upstairs, concocting the FBI ruse,

and threatening his livelihood if he did not give defendant

money, supported a jury finding beyond a reasonable doubt that

defendant had the specific intent to unlawfully deprive the

victim of his property.

As to the second element, the evidence was sufficient to

support a jury finding that defendant purposely put the victim

in fear of immediate bodily injury. The State presented

testimony and evidence demonstrating that defendant discreetly

followed the victim from the casino floor to the isolation of

the twentieth floor and referenced the darkness of the hallway

while following the victim to his room. The victim also

testified that defendant entered his room without an explicit

invitation, said he had been watching the victim gamble for

hours and knew the victim had money, ripped the phone out of the

wall when the victim tried to call for help, and slammed the

door closed when the victim tried to leave the room.

Furthermore, these events unfolded at 3:00 a.m., defendant's

demeanor was "confrontational," and he entered the room under

the guise of being a law enforcement officer and, therefore,

presumably armed. Given the totality of the circumstances, the

27 A-0632-14T3
State's evidence supported a jury finding beyond a reasonable

doubt that defendant purposely put the victim in fear of

immediate bodily harm, even in the absence of an explicit

threat.

VI.

In sum, we find defendant's arguments to be without merit,

and discern no reason to disturb his conviction.

Affirmed.

28 A-0632-14T3