State v. Olivero

• Decision Date: 29 June 2015
• Docket Number: A-83 September Term 2013, 073364
• Citation: 221 N.J. 632,115 A.3d 1270
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. Marc A. OLIVERO, Defendant–Appellant.
• Court: New Jersey Supreme Court

221 N.J. 632

115 A.3d 1270

STATE of New Jersey, Plaintiff–Respondent

v.Marc A. OLIVERO, Defendant–Appellant.

A-83 September Term 2013, 073364

Supreme Court of New Jersey.

Argued Jan. 6, 2015.

Decided June 29, 2015.

Michael J. Confusione, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Andrew R. Burroughs, Special Deputy Attorney General/Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney).

Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for Attorney General of New Jersey (John J. Hoffman, Attorney General, attorney).

Opinion

Justice FERNANDEZ–VINA delivered the opinion of the Court.

“A person is guilty of burglary if, with purpose to commit an offense therein or thereon he ... enters a structure.” N.J.S.A. 2C:18–2. This case turns on whether a locked, fenced-in parking lot used for storage by the adjacent manufacturing facility constitutes a “structure,” as defined by N.J.S.A. 2C:18–1, that is, whether it is a “place adapted ... for carrying on business.”

Defendant Marc A. Olivero was convicted of third-degree burglary. On appeal, he argued that a reasonable jury could not find that he entered a “structure” as defined by N.J.S.A. 2C:18–1.

The Appellate Division affirmed defendant's conviction and sentence. The panel found that the lot was a “structure” because it was surrounded by a fence and secured to restrict public access. The panel also found that, because the lot was enclosed to protect items that could not be stored within Domino Manufacturing's warehouse, it was a “place adapted ... for carrying on [Domino Manufacturing's] business.”

For the reasons set forth in this opinion, we affirm the judgment of the Appellate Division. We hold that a fenced-in parking lot is a “structure” within the meaning of N.J.S.A. 2C:18–2 when the lot is secured from the public and is used for business purposes.

I.

Domino Manufacturing operates a warehouse located in Newark. The five-story warehouse is enclosed by a fence with a locked gate. In order to access the property, an individual must drive down a road that leads to the gate. Once inside the gate, a gravel road leads to a lot behind the building which is also the location of the company's loading dock. Domino Manufacturing uses that lot to store metal shafts and printing rollers used in printing presses. The rollers are kept outside because they are too heavy to be moved inside the warehouse, but they are stored within the locked, fenced-in lot.

On December 18, 2010, at about 5:00 a.m., a security guard employed by Domino Manufacturing called the police after noticing that the chain and padlock that secured the rear-lot fence had been cut. The police arrived minutes later and found two individuals, later identified as defendant, Marc A. Olivero, and his brother, Gary Olivero, attempting to exit the main gate in a pickup truck. The police officers inspected the truck finding bolt cutters, the padlock from the gate, and eleven metal printing rollers. Domino Manufacturing's security guard testified at trial that the metal rollers found in the back of the pickup truck were the metal rollers that had been kept on the business's premises.

Defendant and his brother were charged with third-degree burglary, contrary to N.J.S.A. 2C:18–2, and disorderly persons possession of a burglary tool, contrary to N.J.S.A. 2C:5–5. They were tried together on the burglary charge.

At the close of the State's evidence, defense counsel moved for acquittal on the ground that the State failed to meet its burden of proving that the premises defendant entered was a structure. Specifically, defense counsel argued that the testimony established that defendant entered a parking lot, which is not a structure as defined by N.J.S.A. 2C:18–1. The trial court denied the motion, noting that the fenced-in area was a prohibited space not open to the public, as well as a place adapted for carrying on Domino Manufacturing's business. A jury convicted defendant of third-degree burglary. The State dismissed the disorderly persons charge. The court sentenced defendant to five years' imprisonment.

Before the Appellate Division, defendant argued that the trial court erred in denying his motion for acquittal because a reasonable jury could not have found that defendant had entered any part of a “structure” as defined by N.J.S.A. 2C:18–1. Defendant contended that the evidence presented at trial only showed that he entered a fenced-in yard and possessed property that Domino Manufacturing kept outside its warehouse.

In an unpublished per curiam opinion, an Appellate Division panel rejected defendant's arguments and affirmed his conviction and sentence. The panel found that the lot was a “structure” within the meaning of N.J.S.A. 2C:18–1 because it was secured from the public. The court also likened the area from which the stolen property was taken to the area referred to in the common law as the “curtilage” of the warehouse building.

This Court granted defendant's petition for certification. 217 N.J. 304, 88 A. 3d 935 (2014). We also granted the motion of the Attorney General to appear as amicus curiae.

II.

Defendant argues that the Appellate Division misinterpreted the term “structure” within the meaning of the burglary statute.¹ Defendant asserts that a parking lot is not a “structure” as defined in N.J.S.A. 2C:18–1 and that the owner's purpose to exclude others from entering the parking lot does not transform it into a “structure.” Defendant further contends that, even if such an interpretation were possible, its application would violate the principle that ambiguous penal statutes must be construed against the State. Defendant asserts the Appellate Division's definition of “structure” exceeds the statute's plain language because N.J.S.A. 2C:18–1 does not mention the “curtilage” of the structure. Defendant adds that, even if the statute did encompass “curtilage,” the term “curtilage” typically describes “an enclosed area encompassing the grounds and building surrounding a home, not a commercial manufacturing facility.”

Defendant also asserts that the Appellate Division's interpretation of “structure” conflicts with State ex rel. L.E.W., 239 N.J.Super. 65, 74, 570 A. 2d 1019 (App.Div.), certif. denied, 122 N.J. 144, 584 A. 2d 216 (1990), in which the panel held that the parking lot of a 7–11 store was not a “structure” for the purposes of a trespass charge. Defendant argues that the parking lot in this case is similarly outside the definition of “structure.”

Defendant also contends that Domino Manufacturing did not “adapt” the parking lot as a place for “carrying on business therein.” According to defendant, Domino Manufacturing is a paper mill company, not a storage company. Thus, defendant argues, Domino Manufacturing had only “adapted” the actual warehouse on the property, not the fenced-in lot.

The State counters that a plain reading of N.J.S.A. 2C:18–2 reveals the Legislature's intent to “expand the crime of burglary to include the felonious entry of a structure as well as its adjacent curtilage or area that is occupied and closed to the general public at the time of the offense.” In addition, the State argues that this matter is distinguishable from L.E.W. First, the State notes that N.J.S.A. 2C:18–2 was never at issue in L.E.W., nor addressed by the L.E.W. court. Second, the State observes that the would-be “structure” in that case was a convenience store parking lot that was typically open to the public. Id. at 68, 570 A .2d 1019. Here, however, defendant entered, in the early morning hours, an enclosed area protected by a security guard, secured by a locked padlock, and surrounded by a fence.

The Attorney General, supports the State's position. The Attorney General argues that the New Jersey Legislature expanded the burglary statute in 1980 and that legislative intent can therefore be furthered only by a broad reading of the burglary statute and its definition of “structure.” The Attorney General contends that using the lot for storage is consistent with the purposes of the business. This is particularly true because Domino Manufacturing stores outside only those items that cannot be kept inside the warehouse.

The Attorney General concedes that an area that is open to the public is not considered a “structure” under N.J.S.A. 2C:18–1. Likewise, the Attorney General acknowledges that a place is only adapted for business purposes if the business exercises dominion over the area beyond the natural state. For instance, where two people have conducted a transaction but did not intend to adapt the specific area for a business purpose, a burglary cannot occur.

III.

The meaning of “structure” within the burglary statute is an issue of statutory construction; our review is therefore de novo.

Perez v. Zagami, LLC, 218 N.J. 202, 209, 94 A. 3d 869 (2014). It is well settled that the goal of statutory interpretation is to ascertain and effectuate the Legislature's intent. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592, 46 A. 3d 1262 (2012) (citing Allen v. V & A Bros., Inc., 208 N.J. 114, 127, 26 A. 3d 430 (2011) ). Courts should first look to the plain language of the statute, “which is typically the best indicator of intent.” In re Plan for the Abolition of the Council on Affordable Hous., 214 N.J. 444, 467, 70 A. 3d 559 (2013). Statutory language is to be interpreted “in a common sense manner to accomplish the legislative purpose.” N.E.R.I. Corp. v. N.J. Highway Auth., 147 N.J. 223, 236, 686 A. 2d 328 (1996). When that language “ ‘clearly reveals the meaning of the statute, the court's sole function is to enforce the statute in accordance with those terms.’ ” McCann v. Clerk of Jersey City, 167 N.J. 311, 320, 771 A. 2d 1123 (2001) (quoting SASCO 1997 NI, LLC v. Zudkewich, 166 N.J. 579, 586, 767 A. 2d 469 (2001) ).

However, “[i]f the plain language of a statute is not clear or if it is susceptible to more...