New Jersey Criminal Defense Lawyer - NJ: Burglary Charges in New Jersey

New Jersey statutes specify that a person is guilty of burglary in the third degree if, with purpose to commit an offense therein the person:

1. Enters a research facility or structure, or a separately secured or occupied portion thereof, unless the research facility or structure was at the time open to the public or the person was licensed

or privileged to enter; or

2. Surreptitiously remains in a research facility, structure. or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so.

However, New Jersey elevates the seriousness of burglary to the second degree if, in the course of committing the offense just described, that person:

1. Purposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone; or

2. Is armed with or displays what appears to be explosives or a deadly weapon.

Before a jury may find the defendant guilty of the crime of burglary, the State of New Jersey must satisfy a jury beyond a reasonable doubt of the following elements:

1. That the defendant entered the research facility or structure without permission; and

2. That he did so with the purpose to commit an offense.

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New Jersey defines research facility as any building, laboratory, institution, organization, or school engaged in research, testing, educational or experimental activities, or any commercial or academic enterprise that uses warm-blooded or cold-blooded animals for food or fiber production, agriculture, research, testing, experimentation, or education. A research facility includes, but is not limited to, any enclosure, separately secured yard, pad, pond, vehicle, building structure or premises or separately secured portion thereof.

Structure includes any building, room, ship, vessel, car, vehicle, or airplane. It also means any place adapted for overnight accommodation of persons or for carrying on business therein regardless of whether person is actually present.

“Purpose to commit an offense” means that the defendant intended to commit some unlawful act inside the structure or research facility.

“Purpose,” under New Jersey law, means that it is the person's conscious object to commit the act, or cause the act to be committed. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. “With purpose”, “designed”, “with design”, or equivalent terms, have the same meaning.

“Purpose” is a state of mind. It cannot be seen. It can be determined only by inference from conduct, words or acts. Therefore, the law does not require that New Jersey produce witnesses to testify that a defendant said that he purposely did something. His purpose may be gathered from his acts and conduct, from all that he said and did at the particular time and place, and from all the surrounding circumstances reflected in the testimony and adduced at trial. If your lawyer can create reasonable over whether the defendant's purpose was to commit an offense, then there was no burglary.

If the jury finds that the State of New Jersey has proved beyond a reasonable doubt the elements of the crime of burglary, the jury must then determine whether New Jersey has proven beyond a reasonable doubt any of the elements that elevate burglary from a third degree crime to a second degree crime.

As mentioned above, New Jersey elevates burglary to a crime of the second degree when the burglar purposely, knowingly or recklessly inflicts, or purposely attempts to inflict, or threatens to inflict, bodily injury on anyone, or is armed with or displays what appears to be explosives or a deadly weapon during the course of the burglary. We have already covered “purposely.” We now turn to how New Jersey defines “knowingly.”

A person acts “knowingly” with respect to the nature of his conduct if he is aware that his conduct is of that nature. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. “Knowing,” “with knowledge,” or equivalent terms have the same meaning.

Also as already mentioned, New Jersey specifies other circumstances that will elevate burglary from a third degree crime to a second degree crime. One

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of those circumstances is when a burglar recklessly inflicts bodily injury upon a victim. A person acts “recklessly” with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or 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. “Recklessness,” “with recklessness” or equivalent terms have the same meaning.

A person is guilty of an attempt to inflict bodily injury if he purposely commits an act which constitutes a substantial step toward the commission of the infliction of bodily injury. The phrase “bodily injury” means physical pain, illness or impairment of physical condition.

Still another circumstance that elevates burglary from third to second degree is when the burglar is armed with or displays what appeared to be an explosives or a deadly weapon. In order for a person to be armed with or display what appears to be explosives or a deadly weapon, he must first be in possession of them. “Possess” means a knowing, intentional control of a designated thing, accompanied by a knowledge of its character. Thus, the person must know or be aware that he possesses the item, and he must know what it is that he possesses or controls.

This possession cannot merely be a passing control that is fleeting or uncertain in its nature. In other words, to “possess” as New Jersey defines it, the defendant must knowingly procure or receive the item possessed or be aware of his control thereof for a sufficient period of time to have been able to relinquish his control if he chose to do so. And when New Jersey speaks of possession, it means a conscious, knowing possession. New Jersey recognizes two kinds of possession: They are actual possession and constructive possession.

A person is in actual possession of a particular article or thing when he knows what it is: that is, he has knowledge of its character and knowingly has it on his person at a given time. A person who, with knowledge of its character, knowingly has direct physical control over a thing, at a given time, is in actual possession of it.

Constructive possession means possession in which the person does not physically have the property, but though not physically on one's person, he is aware of the presence of the property and is able to exercise intentional control or dominion over it.

A person who, although not in actual possession, has knowledge of its character, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is

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then in constructive possession of it.

New Jersey law also specifies that possession may be sole or joint. If one person alone has knowing actual or constructive possession of a thing, possession is sole. If two or more persons share knowing actual or constructive possession of a thing, possession is joint.

For defendant to be guilty of being armed with explosives or a deadly weapon, New Jersey must prove beyond a reasonable doubt not only possession but also immediate access to that item. New Jersey must prove beyond a reasonable doubt that the deadly was easily accessible and readily available for use during the burglary. Note that so long as such ready accessibility is proven, it does not matter whether the burglar was armed before arriving at the scene of the burglary. New Jersey law makes the person just as culpable if he obtained the weapon during the course of the burglary.