explanation why he was in building and defendant’s
conduct suggested criminal activity).
It was not error for trial judge to define “armed,” in
the context of armed burglary, as possessing a deadly
weapon or “was furnished or equipped with a deadly
weapon; that is, that was available for his use.” State v.
Merritt, 247 N.J. Super. at 431 (App. Div. 1991)
(emphasis omitted) (defining “armed” as having
“immediate access to a weapon”).
Reversible error where trial judge did not read
complete charges on second degree burglary, inter alia,
did not orally define the offense of theft, or explain mental
state and expected jurors to read a “cut and paste” sheet
but did not tell them to read it. State v. Lindsey, 245 N.J.
Super. 466, 474 (App. Div. 1991) (“At the minimum,
the entire instructions should be read to jury”).
IV. DEFENSES
“Involuntary intoxication is a complete defense if the
level of intoxication is so high that the defendant is not
aware of the nature or quality of his acts or is not aware
that those acts are wrong.” State v. Bauman, 298 N.J.
Super. 176, 194-95 (App. Div.), certif. denied, 150 N.J.
25 (1997) (Voluntary or self-induced intoxication is a
defense if intoxication is so extremely high that an
element of the offense is negated. No voluntary or
involuntary defense charge warranted for burglary and
other charges, where defendant consumed two Valium
tablets). See also State v. Delvecchio, 142 N.J. Super. 359,
361 (App. Div.) (voluntary intoxication is a defense to
breaking and entering if defendant is so intoxicated that
he is “unable to form a specific intent to steal.”), certif.
denied, 71 N.J. 501 (1976); see N.J.S.A. 2C:2-8
(codifying case law intoxication defense).
Diminished capacity is a defense when defendant
had a mental disorder that affects defendant’s “cognitive
capacity to form the mental state necessary for the
commission of the crime.” State v. Bauman, 298 N.J.
Super. at 197-99 (quoting State v. Galloway, 133 N.J.
631, 647 (1993)) (no diminished capacity charge
warranted for burglary and other charges where
defendant did not know acts were wrong, but did
understand “nature and quality of acts”). see generally
State v. Delibero, 149 N.J. at 98 (defining diminished
capacity).
Insanity is a defense to burglary when defendant
suffered from a disability and did not know his actions
were wrong or understand the nature and quality of his
actions. State v. Delibero, 149 N.J. at 99.V. SENTENCING
A. Generally
Possession of a firearm during a burglary or in the
immediate flight after invokes the mandatory sentencing
scheme under the Graves Act, N.J.S.A. 2C:43-6c,
notwithstanding defendant’s lack of intent to use the
firearm. State v. Des Marets, 92 N.J. 62, 70 (1983). See
State v. Stewart, 96 N.J. 596, 605-06 (1984) (In the
crime of burglary, a court is required “to determine
whether defendant used or possessed a weapon” and if
that weapon is a firearm.); State v. Camacho, 153 N.J. 54,
cert. denied, 525 U.S. 864, 119 S.Ct. 153, 142 L.Ed. 2d
125 (1998) (trial court should hold hearing to determine
if Graves Act applies to N.J.S.A. 2C:39-4a conviction.).Up to five years of parole ineligibility can be imposed
on separate ten year sentences for attempted aggravated
sexual assault and second degree burglary. State v. Adams,
227 N.J. Super. at 68.Trial judge can impose concurrent sentences for
burglary and theft of burglarized vehicle. State v. Pantuso,
330 N.J. Super. at 451 (where crimes of burglary and
theft of burglarized vehicle did not merge).B. Merger
The crime of burglary is distinct and does not merge
with the separate crime of theft of burglarized vehicle.
State v. Pantusco, 330 N.J. Super. 424, 449-51 (App. Div.
2000); State v. Martes, 266 N.J. Super. at 121; State v.
Jijon, 264 N.J. Super. 405; State v. Subin, 222 N.J. Super.
227, 236 (App. Div. 1988), certif. denied, 111 N.J. 580
(1988).The crime of burglary is distinct and does not merge
with the separate crime of theft. State v. Mangrella, 214
N.J. Super. 437, 441 (App. Div. 1986) (acquittal on theft
offense does not require set aside of burglary offense);
State v. Pyron, 202 N.J. Super. 502, 504 (App. Div.
1985).The crimes of burglary and kidnaping do not merge.
State v. Hampton, 61 N.J. 250 (1972) (crimes of burglary
and kidnaping are separate offenses where defendant
forcibly removed victim from home into car). The crimes