NOT FOR PUBLICATION WITHOUT THE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