State v. Marc A. Olivero (073364) ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Marc A. Olivero (A-83-13) (073364)
Argued January 6, 2015 -- Decided June 29, 2015
FERNANDEZ-VINA, J., writing for a unanimous Court.
In this appeal, the Court considers whether a locked, fenced-in parking lot used for storage by an adjacent
manufacturing facility constitutes a “structure” for the criminal offense of burglary under N.J.S.A. 2C:18-2.
Defendant was arrested at a locked, fenced-in parking lot used for storage by an adjoining warehouse
operated by Domino Manufacturing. The warehouse is enclosed by a fence with a locked gate. Domino
Manufacturing uses the lot to store equipment for printing presses, including metal shafts and printing rollers which
are kept outside because they are too heavy to be moved inside the warehouse. Defendant was attempting to exit the
main gate in a pick-up truck in which the police found bolt cutters, the padlock from the gate, and eleven metal
printing rollers. Defendant was charged with third-degree burglary under N.J.S.A. 2C:18-2, and disorderly persons
possession of a burglary tool under N.J.S.A. 2C:5-5. Defendant was tried only on the burglary charge; the charge
under the disorderly persons statute was dismissed.
At the close of the State’s evidence at trial, defendant moved for acquittal on the ground that the State
failed to meet its burden of proving that the premises that defendant entered was a “structure” as defined in N.J.S.A.
2C:18-1, contending that defendant entered a parking lot, which is not a “structure” within the statute. The trial
court denied the motion, finding that the fenced-in area was a prohibited space not open to the public, as well as a
place adapted for the conduct of Domino Manufacturing’s business, and therefore it constituted a “structure.”
Defendant was convicted of third-degree burglary, and sentenced to imprisonment for a term of five years.
On appeal, defendant challenged his conviction, contending that the evidence failed to establish that he
entered a “structure” under the burglary statute. In an unpublished per curiam opinion, the Appellate Division
affirmed defendant’s conviction and sentence.
The Court granted defendant’s petition for certification. 217 N.J. 304 (2014).
HELD: A fenced-in and locked 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. Here, when defendant entered the lot to remove metal rollers, he
entered a “place … adapted for carrying on business,” as a “structure” is defined under the statute. Defendant’s
conviction for third-degree burglary is affirmed.
1. The meaning of “structure” within the burglary statute, N.J.S.A. 2C:18-2, is an issue of statutory construction and
therefore an interpretation of the law that can be decided by this Court without deference to the trial court’s
determination. In determining statutory intent, courts must look first to the plain language of the statute, which is
generally the best indicator of intent. Where the language of a statute clearly reveals its meaning, the sole function
of the court is to enforce the statute in accordance with its terms. If the plain language of a statute is not clear, or if
it is susceptible to more than one meaning, the Court may look to extrinsic evidence such as legislative history or the
entire legislative scheme containing the statute to determine legislative intent. (pp. 7-9)
2. The burglary statute, N.J.S.A. 2C:18-2, is a penal statute which must therefore be strictly construed. In
construing a penal statute, a court may still look to extrinsic evidence to clarify an ambiguity and determine
legislative intent. The strict construction doctrine and its corollary, the doctrine of lenity, mean that words are given
their ordinary meaning and that any reasonable doubt is decided in favor of defendant. The rule of lenity is not
invoked simply because there are competing judicial interpretations of statutory language, but is applied only if a
statute is ambiguous and that ambiguity is not resolved by a review of all sources of legislative intent. (p. 9)
3. The burglary statute (N.J.S.A. 2C:18-2(a)(1)) provides in pertinent part that: “[a] person is guilty of burglary if,
with purpose to commit an offense therein or thereon he … enters a research facility, structure, or a separately
secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or
privileged to enter.” The statute (at N.J.S.A. 2C:18-1) defines “structure” as: “any building, room, ship, vessel, car,
vehicle or airplane, and also means any place adapted for overnight accommodation of persons, or for carrying on
business therein, whether or not a person is actually present.” (pp. 9-10)
4. The burglary statute demonstrates an expansion of the list of locations that can constitute structures. The broad
definition of “structure” employed in the statute is evidenced by the language and the grammatical structure of
N.J.S.A. 2C:18-1. It is also confirmed by the legislative history and evolution of the statute. At common law, the
offense of burglary existed only upon entry into a dwelling. That was expanded in an early statute which included a
broad range of locations in addition to dwellings. The statute was then narrowed by amendment in 1978 to reflect
the common law origin of burglary through language that referenced entry into an occupied structure. The 1980
amendments, found in the current version of the statute, removed the word “occupied,” and broadened the definition
of “structure” to reference “any place adapted … for carrying on business therein.” The statement accompanying
the 1980 amendments confirms that this language designates an additional category of location protected by the
burglary statute. (pp. 10-13)
5. Under that portion of N.J.S.A. 2C:18-1 which references “any place adapted … for carrying on business,” a
storage lot can be a “structure” when it is specifically used for conducting commercial activity and is secured from
the public. In this case, the Court finds that the fenced-in and locked lot constitutes a “structure” within the scope
of the burglary statute because use of the lot for storage of equipment and material furthers Domino Manufacturing’s
business operations, and the company adapted the parking lot for the purpose of storage by fencing and securing it to
prevent public access. (pp. 13-17)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s
opinion.
2
SUPREME COURT OF NEW JERSEY
A-83 September Term 2013
073364
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARC A. OLIVERO,
Defendant-Appellant.
Argued January 6, 2015 – Decided June 29, 2015
On certification to the Superior Court,
Appellate Division.
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).
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.
1
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
2
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
3
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.
4
This Court granted defendant’s petition for certification.
217 N.J. 304 (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
1 This Court granted certification to address the single issue
stated above, which was the sole question presented in
defendant’s petition and the only issue analyzed therein.
Olivero, supra, 217 N.J. at 304. Defendant attempts via
footnote to incorporate by reference all of the issues advanced
in support of his appeal to the Appellate Division. It is not
appropriate for a party to inject other issues into its petition
in this manner. Nonetheless, the Court has reviewed defendant’s
arguments with respect to the remaining issues and finds them
meritless.
5
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 (App. Div.), certif. denied, 122
N.J. 144 (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
6
convenience store parking lot that was typically open to the
public. Id. at 68. 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
7
novo. Perez v. Zagami, LLC, 218 N.J. 202, 209 (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 (2012) (citing Allen
v. V & A Bros., Inc., 208 N.J. 114, 127 (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
(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 (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 (2001) (quoting SASCO 1997 NJ, LLC v. Zudkewich, 166
N.J. 564, 586 (2001)).
However, “[i]f the plain language of a statute is not clear
or if it is susceptible to more than one plausible meaning,” the
Court may look to extrinsic evidence such as legislative history
to determine legislative intent. Marino v. Marino, 200 N.J.
315, 329 (2009). In discerning legislative intent, the Court
may consider “not only the particular statute in question, but
also the entire legislative scheme of which it is a part.”
Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 129 (1987).
8
The burglary statute is penal; it must therefore be
strictly construed. State v. D.A., 191 N.J. 158, 164 (2007).
“The strict construction doctrine, and its corollary, the
doctrine of lenity, mean[] that words are given their ordinary
meaning and that any reasonable doubt . . . is decided in favor
of [the defendant].” Ibid. (quotation omitted). The rule of
lenity, however, is not invoked simply because there are
competing judicial interpretations of the statutory language.
“It does not invariably follow, that every time someone can
create an argument about the meaning of a penal sanction, the
statute is impermissibly vague, or that the lowest penalty
arguably applicable must be imposed.” State v. Regis, 208 N.J.
439, 452 (2011). Instead, the rule of lenity is applied only if
a statute is ambiguous, and that ambiguity is not resolved by a
review of “all sources of legislative intent.” State v. D.A.,
191 N.J. 158, 165 (2007) (quotation omitted). “A court may look
to extrinsic evidence to clarify an ambiguity and divine
legislative intent in the context of a penal statute.” Ibid.IV.
The burglary statute provides that
[a] person is guilty of burglary if, with
purpose to commit an offense therein or
thereon he . . . enters a research facility,
structure, or a separately secured or occupied
portion thereof unless the structure was at
the time open to the public or the actor is
licensed or privileged to enter.
9
[N.J.S.A. 2C:18-2(a)(1).]
N.J.S.A. 2C:18-1 defines “structure” as
any building, room, ship, vessel, car, vehicle
or airplane, and also means any place adapted
for overnight accommodation of persons, or for
carrying on business therein, whether or not
a person is actually present.
The fenced-in area at issue in this case does not qualify as a
“building, room, ship, vessel, car, vehicle or airplane.” Thus,
we focus our attention on whether the subject location is a
“place adapted . . . for carrying on business therein.”
A.
As a threshold matter, we note that the phrase “place
adapted . . . for carrying on business therein” expands, rather
than modifies, the list of locations that can constitute
“structures” as defined by N.J.S.A. 2C:18-1. The punctuation
and structure of the burglary statute indicate as much -- the
presence of a comma after “airplane” when none is present after
“vehicle,” together with the repetition of “means,” indicates
addition rather than modification.
That grammatical signal finds support in the legislative
history of the burglary statute. At common law, burglary
applied only to dwellings. See, e.g., State v. Hauptmann, 115
N.J.L. 412, 424 (E & A 1935) (“In 1 Russ. Crimes *785, burglary
is defined as ‘a breaking and entering the mansion house of
10
another in the night, with intent to commit some felony within
the same, whether such felonious intent be executed or not.’”),
cert. denied, 296 U.S. 649, 56 S.Ct. 310, 80 L.Ed. 461 (1935).
In its earlier iteration as N.J.S.A. 2A:94-1, the burglary
statute criminalized “breaking and entering” as follows: “Any
person who willfully or maliciously breaks and enters, or enters
without breaking, any building, structure, room, ship, vessel,
car, vehicle or airplane, with intent to kill, kidnap, rob,
steal, commit rape, mayhem or battery, is guilty of a high
misdemeanor.” (Emphasis added). The statute thus applied to a
broad range of locations, not merely to places in which people
lived.
In 1978, the Legislature narrowed the statute to more
closely reflect burglary’s common law origins. The Legislature
determined that the
expansion of the crime of burglary has led to
serious problems. Since every burglary is by
hypothesis an attempt to commit some other
crime, and since even the lower degrees of
burglary are often punishable more severely
than the crime which the actor was preparing
to commit, the great expansion of burglary has
introduced serious anomalies in prosecution
and punishment. . . .
The needed reform [in the Criminal Code] takes
the direction of narrowing the offense to
something like the distinctive situation for
which it was originally devised: invasion of
premises under circumstances specially likely
to terrorize occupants.
[State v. Schenck, 186 N.J. Super. 236, 238
11
(Law Div. 1982) (quoting II Final Report of
the New Jersey Criminal Law Revision
Commission, “The New Jersey Penal Code,” at
209-10 (Oct. 1971)).]
The Legislature therefore amended the burglary statute to
resemble the Model Penal Code’s narrower version of that
offense. See Cannel, New Jersey Criminal Code Annotated,
comment 1 on N.J.S.A. 2C:18-2, at 485 (2014-15) (noting that
burglary statute was derived from MPC 221.0).
The 1978 version of the statute provided: “A person is
guilty of burglary if, with purpose to commit an offense therein
he: (1) Enters a building or occupied structure, or a
separately secured or occupied portion thereof, unless the
premises are at the time open to the public or the actor is
licensed or privileged to enter.” N.J.S.A. 2C:18-2 (1978)
(emphasis added); see State v. Velez, 176 N.J. Super. 136, 139
(App. Div. 1980), certif. denied, 85 N.J. 504 (1981). The array
of locations to which the burglary statute would apply did not
differ dramatically from the predicate statute: The 1978
statute defined “occupied structure” as “any structure, vehicle,
boat, airplane or place adapted for overnight accommodation of
persons or for carrying on business therein, whether or not a
person is actually present.” N.J.S.A. 2C:18-1; see Velez,
supra, 176 N.J. Super. at 139.
12
In 1980, the Legislature again amended the burglary
statute, this time to broaden the definition of the term
“structure.” Assembly, Judiciary, Law, Public Safety and
Defense Committee, Statement to Senate Bill No. 884, at 1 (June
5, 1980). Specifically, the 1980 amendments removed the word
“occupied” as the modifier for the word “structure.” Ibid. The
revision also added the words “also means any” before the
language related to “place adapted for . . . .” N.J.S.A. 2C:18-
1 (as amended by L. 1980, c. 112).
In enacting the current version of the burglary statute,
the Legislature explained that “[t]he primary purpose of the
bill is to make clear that the unlawful entry of any building,
room, ship, vessel, car, vehicle or airplane, or any place
adapted for overnight accommodation or for carrying on business,
is a burglary.” Statement to Senate Bill No. 884, at 2-3 (Jan.
24, 1980). Thus, the phrases “any place adapted for overnight
accommodation” and “any place adapted . . . for carrying on
business therein” do not modify other terms in the statute.
Instead, they constitute additional categories of locations
protected by the burglary statute.
B.
The question remains whether a privately secured, fenced-in
lot used to store a business’s property is a “place
adapted . . . for carrying on business” for purposes of the
13
burglary statute. We find that the burglary statute can
encompass such lots under certain circumstances.
Black’s Law Dictionary defines “place of business” as “[a]
location at which one carries on a business,” which suggests
that “place” is in no way limited by physical characteristics.
Black’s Law Dictionary 1666 (9th ed. 2009). “Business” is “[a]
commercial enterprise carried on for profit; a particular
occupation or employment habitually engaged in for livelihood or
gain.” Id. at 226. “Adapt” means “[t]o adjust to a specified
use or situation.” Webster’s II, New Riverside University
Dictionary 77 (1999). To adapt a lot to serve as a storage lot,
for example, the lot would have to be secured from the public.
We therefore find that a storage lot can be a “structure” for
purposes of the burglary statute as a place adapted for business
when it is specifically used for conducting commercial activity
and is secured from the public.
Other case law informs our decision. In L.E.W., supra, a
juvenile was “hanging out” in the parking lot of a 7-11 with her
boyfriend, but the store owner did not wish to have her on the
property. 239 N.J. Super. at 68. The juvenile was subsequently
arrested and charged with defiant trespass. Ibid. The defiant
trespass statute contains an affirmative defense that a person
cannot be guilty of defiant trespass if “[t]he structure was at
the time open to members of the public.” N.J.S.A. 2C:18-
14
3(c)(2). The statute also incorporates the definition of
“structure” provided in N.J.S.A. 2C:18-1. L.E.W., supra, 239
N.J. Super. at 70. The juvenile attempted to invoke this
affirmative defense; however, the panel concluded that “[a]
parking lot is not a structure,” thus depriving her of the
defense. Id. at 74.
This matter, however, is distinguishable. L.E.W. involved
a parking lot that was open to the public. Ibid. That lot was
available so that invitees could park their cars in order to
shop at the convenience store. Ibid. The lot behind Domino
Manufacturing’s warehouse, by contrast, is never open to the
public. Rather, it is fully fenced-in and protected by both a
padlock and a security guard.
In Commonwealth v. Hagan, 654 A.2d 541, 543 (Pa. 1995), the
Supreme Court of Pennsylvania found that a fenced-in storage lot
was an “occupied structure” under its burglary and criminal
trespass statutes. The Pennsylvania statute defines burglary as
follows: “A person commits the offense of burglary if, with the
intent to commit a crime therein, the person: (1) enters a
building or occupied structure, or separately secured or
occupied portion thereof . . . .” 18 Pa. Cons. Stat. § 3502.
The statute then defines “occupied structure” to include “[a]ny
structure, vehicle or place adapted for overnight accommodation
15
of persons, or for carrying on business therein, whether or not
a person is actually present.” 18 Pa. Cons. Stat. § 3501.
In Hagan, supra, the defendant entered a storage lot
“enclosed by a chain link fence and secured at the gate by a
lock and chain.” 654 A.2d at 543. The site was previously
utilized as a manufacturing facility; however, it was no longer
in active use. Ibid. The lot contained two vacant and inactive
buildings. Ibid. The Pennsylvania Supreme Court held that “a
fenced and secured storage lot [wa]s a ‘place adapted for
carrying on business,’” noting that “storage is a business
activity no less than any other facet of a business such as
manufacturing, retail sales, or distribution.” Id. at 544.
Similarly, in State v. Hill, 449 N.W.2d 626, 626-28 (Iowa
1989), the Iowa Supreme Court upheld the defendant’s burglary
conviction for attempting to steal used pistons from a fenced-in
enclosure behind an automobile parts store. The Hill court
interpreted a burglary statute that defined “occupied structure”
to include “[a]ny building, structure, appurtenances to
buildings and structures, land, water or air vehicle, or similar
place adapted for overnight accommodation of persons, or
occupied by persons for the purpose of carrying on business or
other activity therein, or for the storage or safekeeping of
anything of value.” Iowa Code § 702.12.
16
The facts of this case are more similar to those addressed
by the highest courts of Pennsylvania and Iowa than to the facts
of the L.E.W. case. Here, Domino Manufacturing’s use of the lot
furthers its business: Domino Manufacturing utilizes its
secured lot for storing items too heavy or too large to be
stored in the warehouse. Although storage is not the focus of
Domino Manufacturing’s paper mill business, the storage of
equipment and material is a corollary of that business and is,
therefore, part of Domino Manufacturing’s “commercial
enterprise.” Furthermore, unlike in L.E.W., Domino
Manufacturing adapted the parking lot for the purpose of storage
by fencing the lot and securing it to prevent public access.
Thus, when defendant entered the lot to remove metal
rollers, he entered a “place . . . adapted for carrying on
business,” N.J.S.A. 2C:18-1, “with purpose to commit an offense
therein,” N.J.S.A. 2C:18-2, in contravention of the burglary
statute. Because we find that Domino Manufacturing’s fenced-in
and locked lot itself constitutes a “structure” within the
meaning of the burglary statute, we do not reach the argument
that the lot is part of the “curtilage” of the warehouse.
V.
For the reasons set forth above, the judgment of the
Appellate Division is affirmed.
17
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON
and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE FERNANDEZ-VINA’s opinion.
18
SUPREME COURT OF NEW JERSEY
NO. A-83 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARC A. OLIVERO,
Defendant-Appellant.
DECIDED June 29, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7