State v. Figueroa
| Decision Date | 28 July 2021 |
| Docket Number | A-5383-17 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRE FIGUEROA, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 22, 2021
On appeal from the Superior Court of New Jersey, Law Division Monmouth County, Indictment No. 17-020220.
Candace Caruthers, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender attorney; Candace Caruthers, of counsel and on the briefs).
Maura K. Tully, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Maura K. Tully, of counsel and on the brief).
Before Judges Sabatino and DeAlmeida.
Defendant Andre Figueroa appeals from his conviction by a jury of three charges arising from a residential burglary in Bradley Beach and his subsequent evasion of a police officer. We affirm.
A grand jury indicted defendant, charging him with: (1) third-degree burglary, N.J.S.A. 2C:18-2(a)(1); (2) third-degree theft of movable property, N.J.S.A. 2C:20-3(a); and (3) fourth-degree obstruction of the administration of law or other governmental function, N.J.S.A. 2C:29-1.
There were two witnesses at trial: Andrew Redmond, a Bradley Beach police officer, and the victim, an elderly man whose home was burglarized while he was sleeping.
Redmond a five-year veteran of the department, described the municipality as a one-square mile beach town whose winter population is half that of its summer population. He testified that Bradley Beach experiences a rise in residential burglaries during the winter months and that he is generally aware of the houses that are not occupied in the off season.
At approximately 11:30 p.m. on December 5, 2016, Redmond was patrolling in a marked vehicle in an area of the municipality mostly comprised of summer homes. Because it was December, a Monday night, and late, there was little activity and almost no vehicular or pedestrian traffic in the area.
From his patrol car, Redmond saw a person, later identified as defendant, come out from between two houses. He was wearing dark clothing and a headlamp illuminated with a red light carrying a bag, and walking his bicycle. Redmond testified that defendant caught his attention because normally no one is in the area of those houses, one of which had previously been burglarized. Redmond knew the residents of one of the houses did not live there year round.
Redmond saw defendant run across the lawn, jump on his bicycle, and pedal away. The officer drove around the block and waited to see if defendant would cross Main Street. He regained sight of defendant riding his bicycle on the sidewalk, which is prohibited by municipal ordinance.
Redmond drove up next to defendant, without activating the patrol car's emergency lights, and directed him to stop by shouting through passenger window of the patrol car. Defendant told Redmond he had no right to stop him. After Redmond explained why he was stopping him, defendant responded, "Fuck you, you have no right to stop me," and continued to ride his bike. Redmond drove alongside defendant and repeatedly asked him to stop; defendant refused to comply. Defendant was wearing a gym bag strapped across his body. Redmond testified that no cars drove by and no one was walking on the streets during the time he was following defendant.
Further down the road, Redmond pulled his patrol car over in an unsuccessful attempt to cut off defendant's path forward. He got out of the patrol car and ordered defendant to stop. Defendant again responded that the officer had no right to stop him. Redmond briefly lost sight of defendant, who quickly cycled to the back of a restaurant parking lot, which was empty and chained because the restaurant was closed. Redmond requested backup and began chasing defendant on foot.
Redmond testified that Bradley Beach Officer Tardio responded and blocked defendant from exiting the parking lot. Redmond tackled defendant to the ground. Once defendant was handcuffed, Redmond found in defendant's possession black gloves, a red light headlamp, hat, belt, lighter, keys, ninety-two dollars in cash, and a black gym bag containing a bottle of gin.
Redmond did not see defendant discard anything or reach into his gym bag while he was following or chasing him. He testified that he was not close enough to defendant in the parking lot to see if he discarded anything. When asked if Tardio was close enough to see if defendant discarded anything, Redmond responded "You'd have to ask him that, if he saw anything."
After defendant was transported to police headquarters, Redmond returned to the area where he first saw defendant. He testified that the two houses from between which defendant emerged were close together with no illuminated lights and no cars in the driveways. It appeared to the officer that no one was in either home. Redmond walked toward one of the houses and observed "a cut screen pulled out with the window pushed down and a smudged footprint on the windowsill. "Photos of the window and the footprint were admitted as evidence.
Redmond did not know how the screen was cut. He acknowledged that defendant did not have a knife, screwdriver, or razor blade on his person when he was arrested, but testified that the keys in defendant's possession could have been used to cut the screen. The officer, who does not have training in fingerprinting, crime scene investigation techniques, or DNA collection, did not collect a sample of the dirt on the windowsill or check the area for footprints or bike tracks. He testified that a detective on scene conducted the investigation.
Redmond testified that he and two other officers went to the front door of the home and knocked. When no one answered, they discovered that the door was unlocked. The officers entered the home and went to the window with the cut screen. Apart from seeing the blinds pushed over, the home did not appear to be disturbed.
The officers went upstairs and found the owners, brothers who were in their nineties, asleep in their bedrooms. Redmond woke the brothers up and explained what happened.
One the brothers testified he lives out of State and owns real estate in Bradley Beach and another shore community. On the day of the burglary, he was collecting rent from his beach properties and decided to stay at the home that was burglarized. He put the cash he collected from his tenants in his wallet, which he then put in his pants. He went to bed after placing his pants on his bedroom dresser.
The victim testified that he was awoken by Redmond, who informed him, "They broken [sic] into your house." He further testified:
I said, He said, "Yeah, they broke into your house." "How did they break in?" "Through the window," they told me, "downstairs through the window."
He testified that the window had been closed and He testified that the front door had been locked. The victim testified that he told Redmond that a pair of black pants containing his wallet, identification, and over $2000 in cash was missing.
Redmond followed the path defendant took from the victim's house to the restaurant parking lot searching for the missing items. He found the pants on the back side of the restaurant parking lot next to a parked vehicle. The victim's wallet, identification, and $2990 in cash were in the pants. During the search, Redmond did not see anyone walking and no cars drove by.
After the testimony of Redmond and the victim, the State rested. Defendant did not ask the court to instruct the jury pursuant to State v. Clawans, 38 N.J. 162 (1962), that it could draw an adverse inference from the State's failure to call Tardio as a witness. Defendant called no witnesses and chose not to testify.
Defendant subsequently moved for a judgment of acquittal, arguing that the State failed to produce sufficient evidence to establish any of the charges. The court denied the motion, concluding, after a review of each element of the charged offenses, that "there's more than sufficient evidence for these charges to be submitted to the jury."
During deliberations, the jury posed the following question to the court: "Could the defense have called Officer Tardio or any other officers at the scene to testify, or is it only permissible for the prosecution - or only possible for the prosecution?" The court consulted with counsel off the record, and subsequently responded to the jury's question with the following instruction:
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