through a forced window and discarding a screwdriver);
State v. Williams, 229 N.J. Super. 179, 181-83 (App. Div.
1988) (evading police because of drug transaction and
breaking into apartment satisfied “any offense” element
of burglary.); State v. Tassiello, 75 N.J. Super. at 1
(defendants found in restaurant after business hours with
lookout outside); compare with State v. Marquez, 277 N.J.
Super. 162, 169 (App. Div. 1994) (intent not shown by
defendant’s entry into apartment contrary to Domestic
Violence restraining order), certif. denied, 141 N.J. 99
(1995).
The crime of burglary is elevated to second degree
armed burglary if a defendant enters a private residence
and steals rifles. State v. Merrit, 247 N.J. Super. 425 (App.
Div.), certif. denied, 126 N.J. 336 (1991). In Merrit, the
Appellate Division defined the term “armed” as not
having mere possession of firearms, but having
“immediate access to a weapon.” The court held that if
firearms are obtained in the course of a burglary “a
weapon may be as readily accessible to the perpetrator as
if he had brought it to the scene initially.”
II. PRE-TRIAL PROCEDURES
A. Consolidation of Indictments
State v. Rosen, 110 N.J. Super. 212, 214 (App. Div.
1968), held that it was not error for the court to
consolidate for trial one indictment charging breaking
and entering with intent to commit larceny with a second
indictment charging possession of burglar’s tools.
B. Consolidation of Offenses
In State v. Greer, 107 N.J. Super. 92, 93 (App. Div.
1969), it was not error for the trial court to refuse
severance of an indictment charging attempted breaking
and entering with intent to steal and another indictment
charging possession of a knife because both offenses were
connected by a common scheme.
III. TRIAL
A. Evidence
The evidence of defendant’s fingerprints on the
victim’s golf clubs, which had been moved, was sufficient
to support conviction of burglary. State v. Love, 245 N.J.
Super. 195, 198 (App. Div.), certif. denied, 126 N.J. 321
(1991). The evidence of defendant’s fingerprints on
outside column, not accessible to public or inadvertent
touching, supported burglary conviction. State v.
Watson, 224 N.J. Super. 354, 361 (App. Div.) (denial of
judgment of acquittal for burglary not in error where sole
evidence was fingerprints), certif. denied, 111 N.J. 620,
cert. denied, 488 U.S. 983, 109 S.Ct. 353, 102 L.Ed. 2d
566 (1988). Video evidence of a defendant can be used
to support a burglary conviction. State v. Loftin, 287 N.J.
Super. 76 (App. Div.), certif. denied, 144 N.J. 175
(1996). Where defendant was seen hanging from forced
open window at 11:30 p.m. discarding a screwdriver, the
evidence was sufficient to permit jury to find beyond a
reasonable doubt that defendant’s conduct did not
indicate a lawful basis for entry. State v. Robinson, 289
N.J. Super. at 447.B. Lesser Included Offense
Criminal trespass is a lesser included offense of
burglary. State v. Singleton, 290 N.J. Super. 336, 341
(1996) (where State may not be able to prove element of
purpose to commit an offense therein, a lesser included
offense is criminal trespass). Criminal mischief is a lesser
included offense of attempted burglary. State v. Clarke,
198 N.J. Super. 219, 225-26 (App. Div. 1985) (where
state may not be able to prove element of intent to
commit offense in attempted burglary a lesser charge is
criminal mischief).C. Jury Instructions/Charges
Jury charge defective where judge did not define
offense in connection with unlawful entry. State v. Cuni,
303 N.J. Super. 584, 604 (App. Div. 1997) (“The judge
did not specifically tell the jury that the defendant could
not be found guilty of burglary if the defendant entered
with a purpose to have consensual sexual relations with a
person who was not mentally defective and was capable
of consenting.”), aff’d, 159 N.J. 584 (1999).It was not error for the judge to instruct the jury that
it had to find the defendant guilty of the burglary offense
before considering evidence of defendant’s insanity. State
v. Delibero, 149 N.J. 90, 93 (1997).Limiting instruction not warranted where defendant
told victim that he needed money to purchase drugs.
State v. Candelaria, 311 N.J. Super. 437, 451 (App.
Div.), certif. denied, 155 N.J. 587 (1988).When no objection was made, judge did not err by
not defining the specific offense that defendant intended
to commit after he entered the building. State v.
Robinson, 289 N.J. Super. at 454-55 (defendant gave no