SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4919-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDDIE MARTIN, a/k/a JUDY 

MARTIN and EDWARD MARTIN, 

Defendant-Appellant.

____________________________

Submitted August 1, 2017 – Decided

Before Judges Hoffman and Currier.

On appeal from the Superior Court of New 

Jersey, Law Division, Monmouth County, 

Indictment No. 15-05-0838.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Elizabeth C. Jarit, Assistant 

Deputy Public Defender, of counsel and on the 

brief).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Jeffery 

St. John, Assistant Prosecutor, of counsel and 

on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

August 9, 2017
2 A-4919-15T3

Defendant Eddie Martin appeals from his convictions of 

burglary and theft, and possession of burglar's tools following a 

jury trial. After a review of his contentions in light of the 

record and applicable legal principles, we affirm.

The facts as presented at trial can be summarized as follows.

A witness testified that, as he was standing in the parking lot 

where he worked, he observed a man, identified as defendant, moving 

among the parked cars, "trying to open car doors" and "break into" 

the vehicles. The witness called 9-1-1 and described defendant 

as a black male wearing a face mask and a gray hoodie with a light 

jacket over it.

Asbury Park Police Officer Michael Boone responded to the 

9-1-1 call. When he arrived at the parking lot, he observed

defendant crouching down between the parked vehicles. He described 

defendant as wearing gray pants, a gray jacket and hat, and he was 

carrying a white bag. Boone decided to detain defendant by placing 

him in the patrol car while waiting for additional officers, and 

as he patted him down, he found a screwdriver in defendant's 

pocket.

Upon his inspection of the parking lot, Boone found a black 

car with a smashed window. The owner of the car was located, and 

after looking inside her vehicle, she reported that she was missing 

a white jacket, several bracelets, sunglasses, and a necklace.
3 A-4919-15T3

The white jacket was found in the bag that defendant was carrying,

and the victim observed that the jacket had bloodstains on it.

Her necklace and sunglasses, as well as several other items, were 

found in the back of the patrol car after defendant was asked to 

step out and placed under arrest.

Another owner of a car in the parking lot reported that the 

soft top to her Jeep had been partially removed, there was damage 

to the inside of her car, and bloodstains on the seat.

Police Office Lemar Whittaker also responded to the 9-1-1 

dispatch. When he arrived on the scene, he observed defendant 

sitting in the back of the patrol car wearing a light gray jacket, 

gray hoodie and a gray hat. Boone showed him the white bag 

containing the white jacket.

Whittaker testified that after defendant was arrested, he 

found various items of jewelry on the floor of the patrol car and 

stuffed between the seats where defendant had been sitting, 

including the necklace and sunglasses later identified by the 

victim as hers.

After noticing that there were surveillance cameras on the 

building pointed toward the parking lot, Whittaker asked to view 

the recordings. He testified that the surveillance showed a 

"subject fitting the description of [defendant] in the area of the 
4 A-4919-15T3

vehicles, [walking] up toward the camera holding a white bag 

. . . . It appeared to be the same plastic bag that we had." 

Although both officers testified that their patrol cars were

equipped with motor vehicle recording cameras (MVR), they did not 

retain the recording.

1 Whittaker also stated that they did not 

recover a face mask at the scene.

Officer Thomas Gogan was responsible for transporting 

defendant to the police station after his arrest and processing 

him. He described defendant as wearing a gray winter hat, a black 

and gray coat with a gray hoody underneath and gray sweatpants. 

When defendant removed his outer clothing, a blue piece of glass 

fell out of his hood; the officer identified it as a piece of 

motor vehicle window glass. Defendant also had two bracelets and 

a ring in his possession. Gogan noticed that there was blood on 

defendant's hand, which he photographed.

Defendant was convicted of several burglary and theft 

charges, as well as disorderly persons possession of burglar's 

tools. He was sentenced to an aggregate term of five years 

imprisonment with a two-and-one-half year period of parole 

ineligibility for the burglary conviction.

 

1 Whittaker testified that his MVR would not have contained any 

footage as it was only activated by the use of the emergency 

lights. He did not turn on his emergency lights as he responded 

to the scene. 
5 A-4919-15T3

On appeal, defendant presents the following issues:

POINT I: THE OFFICERS' LAY TESTIMONY THAT 

MARTIN MATCHED THE DESCRIPTION OF THE SUSPECT 

VIOLATED STATE V. MCLEAN, 205 N.J. 438 (2011).

(Not Raised Below).

POINT II: FAILURE TO CHARGE THE ADVERSE

INFERENCE AND THIRD PARTY GUILT INSTRUCTIONS, 

REQUESTED BY DEFENSE, DENIED MARTIN DUE 

PROCESS AND A FAIR TRIAL.

A. Because Failure to Turn Over the 

MVR Recordings was a Discovery 

Violation, the Court Erred in 

Denying Defendant's Request for an 

Adverse Inference Charge.

B. Because the Defendant's Theory of 

the Case was that a Third Person 

Committed the Burglaries, and 

Because this Theory was Supported by 

the Record, the Court Erred in 

Denying the Requested Third-Party 

Guilt Instruction.

POINT III: FAILURE TO CHARGE THE LESSERINCLUDED OFFENSE OF CRIMINAL TRESPASS, 

SUPPORTED BY THE EVIDENCE AT TRIAL, REQUIRES 

REVERSAL. (Not Raised Below).

POINT IV: THE DENIAL OF MARTIN'S REASONABLE 

REQUEST FOR AN ADJOURNMENT DENIED HIM DUE 

PROCESS AND A FAIR TRIAL.

POINT V: THE CUMULATIVE IMPACT OF THE ERRORS 

DENIED MARTIN DUE PROCESS AND A FAIR TRIAL 

(Not Raised Below).

POINT VI: IMPOSITION OF THE MAXIMUM SENTENCE 

WAS MANIFESTLY EXCESSIVE, REQUIRING A REMAND 

FOR RESENTENCING.
6 A-4919-15T3

During the trial, Officer Whittaker presented the following 

testimony: 

Q: And when you proceeded to that location, 

what happened when you got there?

A: I met with Officer Boone who's already on 

location. He stated to me that he had a 

subject fitting the description detained in 

his vehicle.

Q: And were you able to observe that subject?

. . . .

A: He fit the description. He had a light 

gray jacket, the gray hoody underneath and a 

gray hat.

. . . . 

Q: And what if anything did that surveillance 

show?

A: It showed a subject fitting the 

description of Mr. Martin in the area of the 

vehicles, and also walk up towards the camera 

holding a white bag that said "thank you" on 

it. It appeared to be the same plastic bag 

that we had. 

. . . .

Q: Officer, can you describe to us what we're 

seeing [in the surveillance tape].

A: You're seeing the subject fitting the 

description of what was given out by dispatch 

walking in the parking lot where the Jeep was 

carrying a white plastic bag, seemingly to 

peer in the windows.

Q: And, officer, was that subject wearing the 

same outfit as the subject in the patrol car?
7 A-4919-15T3

A: Yes. 

Defendant argues that this testimony exceeded the limits of 

the lay testimony that police officers may present and violated

the precepts established in State v. McLean, 205 N.J. 438 (2011).

He contends that the officer improperly opined that defendant 

matched the burglary suspect's description.

As there was no objection to the line of testimony during 

trial, our review is under the plain error standard. R. 2:10-2. 

We reverse only if the error was "clearly capable of producing an 

unjust result." State v. Miller, 205 N.J. 109, 126 (2011) 

(quoting R. 2:10-2; State v. Walker, 203 N.J. 73, 89-90 (2010)). 

Whittaker was presented as a lay witness. Therefore, his 

testimony was governed by N.J.R.E. 701; it must be based on the 

witness' perception and assist the jury in performing its function.

"[P]erception . . . rests on the acquisition of knowledge through 

use of one's sense of touch, taste, sight, smell or hearing."

McLean, supra, 205 N.J. at 457 (citing State v. Labrutto, 114 N.J.

187, 199-200 (1989) ("permitting lay opinion based on 

observation")).

In McLean, our Supreme Court reiterated that a police officer 

is "permitted to set forth what he or she has perceived through

one or more of the senses," id. at 460 (citations omitted), and 
8 A-4919-15T3

describe for the jury what the officer saw and did. The officer 

may not opine as to what he or she "believed," "thought," or

"suspected" but may provide a recitation of facts of which he or 

she has first-hand knowledge. Ibid.

Here, Whittaker was not giving an opinion as to defendant's 

guilt. He was asked questions regarding the physical 

characteristics and clothing worn by the possible suspect; he 

described the man and the clothing he had seen in person and on 

the surveillance tapes, and advised that it was similar to the 

description of the suspect and his attire provided by the 9-1-1 

caller. The officer's testimony as to why he approached defendant 

was properly part of his factual recitation. He did not testify 

or otherwise suggest that defendant was the man who had broken

into the vehicles and taken the victim's property, which would 

have been improper lay testimony.

During the charge conference, defense counsel requested that 

the court issue an adverse inference charge for the officers' 

failure to maintain the MVRs as evidence. Counsel conceded the 

recordings had not been requested during discovery.

The judge declined the request, stating that defendant had 

never requested that the MVRs be preserved as evidence, and there 

were no proofs that the MVRs were running at the time of these 

events.
9 A-4919-15T3

Defendant relies on State v. Dabas, 215 N.J. 114 (2013) to

support his argument that the trial judge abused his discretion 

in his decision not to issue the adverse inference charge. We do 

not find Dabas to be instructive to the circumstances here. In 

Dabas, the State's investigator took copious notes during a twohour pre-interview. Id. at 123. Thereafter, a fifteen minute 

recorded statement was taken from Dabas. Id. at 124. In the 

inquiry, the investigator primarily used leading questions based 

on the defendant's pre-interview answers memorialized in the 

investigator's handwritten notes. Ibid. He subsequently prepared 

a typewritten final report that he used during his trial testimony. 

Id. at 123. The investigator advised that he had destroyed his 

handwritten notes a year after defendant's indictment. Ibid. The 

trial judge denied defendant's request to issue an adverse 

inference charge. Id. at 127.

The Court found the prosecutor violated the rule governing 

discovery, Rule 3:13-3(b), in not providing the pre-interview 

notes to the defense after the indictment and in the notes' 

destruction thereafter. Id. at 138. The Court stated that an 

adverse inference charge was a permissible remedy for a discovery 

violation, and under the circumstances of Dabas, it was an abuse 

of discretion for the judge not to have given the charge. Id. at 

141.
10 A-4919-15T3

We are without doubt that an MVR is subject to discovery. R.

3:13-3(b)(1)(A) (stating that discovery shall include video and 

sound recordings). In this instance, however, defendant never

requested that the State ensure the preservation of any recordings

that might exist. It is undisputed that the issue was never raised 

until the conclusion of the trial during the charge conference.

If defendant wished to assert a violation of the discovery rules, 

he needed to do so in a more timely manner so that the court could 

address the issue and determine the appropriate sanction, whether 

it be a directive to produce the recordings or a more severe 

measure.

There were insufficient proofs presented here that recordings 

existed and that they would yield any relevant information. And, 

unlike Dabas, there were no proofs that the State or the police 

officers acted intentionally or purposefully in their failure to 

preserve the MVRs. We are satisfied, for all of the stated 

reasons, that the trial judge did not abuse his discretion in 

declining to charge an adverse inference instruction.

We also find meritless defendant's argument that the trial 

judge erred in denying his request to give a third-party guilt 

jury instruction. Defense counsel supported the request by arguing 

that defendant did not match the description given by the 9-1-1 
11 A-4919-15T3

caller and that there was sufficient evidence presented that a 

third person had committed the burglaries.

In declining the defense request, the judge stated that 

counsel could argue to the jury that someone else committed the 

crimes and that the State had not met its proofs as to defendant's 

guilt. He further noted that the identification charge he intended 

to use contained similar language to that of third-party guilt. 

That charge on identification instructs the jury that the "burden 

of proving the identity of the person who committed the crime is 

upon the State." Model Jury Charges (Criminal), "Identification: 

In-Court And Out-of-Court Identifications" (effective Sept. 4, 

2012). The charge reinforces the tenet that the defendant does 

not have the burden to show that the crimes were committed by 

someone else.

An accused has a constitutional right under the due process 

clause of the Fourteenth Amendment to offer evidence of thirdparty guilt. See Chambers v. Miss., 410 U.S. 284, 93 S. Ct. 1038, 

35 L. Ed. 2d 297 (1973); State v. Koedatich, 112 N.J. 225, 297

(1988) (citations omitted). Defendant does not argue that he was 

deprived of this opportunity during the trial; he contends, rather, 

that the judge should have issued a charge to the jury on thirdparty guilt. We disagree.
12 A-4919-15T3

As an affirmative defense, the trial court is only required 

to instruct the jury on the defense of third-party guilt where 

there is a "rational basis" to do so based on the evidence. State 

v. Walker, 203 N.J. 73, 87 (2010). Here, there was no evidence 

presented as to a third party. A description of a man trying to 

break into cars in a parking lot was provided by a 9-1-1 caller. 

The police arrived on the scene and encountered only defendant.

The officers provided a description of defendant and his clothing.

Defendant had in his possession the white bag that was being

carried by the individual in the video surveillance of the parking 

lot. The victim's stolen items were found in the bag and on 

defendant's person. 

Defense counsel argued to the jury in her summation the 

inconsistencies in the testimony presented by the State and the 

mistakes that the police made in their investigation and 

identification of defendant. It remained the province of the jury 

to determine whether defendant was the person who had committed 

the alleged crimes. The court did not abuse its discretion in not 

issuing the third-party guilt charge.

We turn to defendant's argument that the trial court erred 

in not charging the jury sua sponte with the lesser includedoffense of criminal trespass. The obligation to instruct the jury 

on lesser-included offenses arises "only if counsel requests such 
13 A-4919-15T3

a charge and there is a rational basis in the record for doing so 

or, in the absence of a request, if the record clearly indicates

a charge is warranted." State v. Denofa, 187 N.J. 24, 42 (2006) 

(second emphasis added) (citations omitted). To be warranted, 

"the facts adduced at trial [must] clearly indicate that a jury 

could convict on the lesser while acquitting on the greater 

offense." State v. Jenkins, 178 N.J. 347, 361 (2004). And, for 

the record to clearly indicate a lesser-included charge is 

warranted, the evidence must be "jumping off the page." Denofa, 

supra, 187 N.J. at 42. 

Burglary requires that a person without authority enter a 

structure with the intent to commit an offense. N.J.S.A. 2C:18-

2(a)(1). Criminal trespass does not require that the person have 

an intent to commit a crime. N.J.S.A. 2C:18-3(a). If a factual 

dispute exists as to whether the defendant had a purpose to commit 

an offense, trespass should be charged. See State v. Singleton, 

290 N.J. Super. 336, 341-342 (App. Div. 1996).

There were no facts presented to the jury that defendant 

broke into the victim's car for any purpose other than to steal 

items from it. Defendant has not demonstrated that the failure 

of the judge to charge criminal trespass sua sponte was "clearly 

capable of producing an unjust result." R. 2:10-2.
14 A-4919-15T3

Just prior to jury selection, defendant requested an 

adjournment. His counsel stated that defendant had been struck 

in the face and his eye was swollen and partially closed. Counsel 

stated: "His face is disfigured and he's not comfortable going 

forward today." In denying the request, the judge noted that 

defendant had been in jail on these charges for over a year. The 

court had blocked off the week for this particular trial and 

advised that due to scheduling, the matter would not be reached, 

if adjourned, until at least the fall.2 The judge stated: "So for 

his protection, to have him have his day in court in a reasonable 

period of time, I'm going to move forward." He also noted that 

he had not noticed the injury to defendant's eye until advised of 

it. He said that unless it had been pointed out to him he would 

not have seen it as defendant was dark-skinned. The judge believed 

that the jury might not notice the injury either if it was not 

pointed out to them. Nevertheless, the judge offered to give a 

curative instruction to the jury which defendant accepted. 

We review a motion for an adjournment under a deferential 

standard. State v. Miller, 216 N.J. 40, 65 (2013). Whether to 

grant a trial adjournment rests within the sound discretion of the 

trial court. State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 

 

2 The trial began on February 2.
15 A-4919-15T3

1965). We see no abuse of discretion. The judge explained that 

the trial had been scheduled for that particular week, defendant 

had been in jail for over a year and if the matter were adjourned, 

it would not be reached again for another eight months or perhaps 

longer. This rational explanation supported the court's decision.

Furthermore, the judge advised the jury that defendant had been 

in an accident the day before in which he had sustained injury to 

his eye. He instructed: "[Y]ou are not to utilize that injury in 

any way in determining the verdicts in this case." 

We briefly address defendant's contention that his sentence 

was excessive. Our review of sentencing determinations is limited,

and is governed by the "clear abuse of discretion" standard. State 

v. Miller, 205 N.J. 109, 127 (2011); State v. Roth, 95 N.J. 334, 

363 (1984). We are bound to uphold the trial court's sentence, 

even if we would have reached a different result, unless "(1) the 

sentencing guidelines were violated; (2) the aggravating and 

mitigating factors found . . . were not based upon competent and 

credible evidence in the record; or (3) "the application of the 

guidelines to the facts . . . makes the sentence clearly 

unreasonable so as to shock the judicial conscience." State v. 

Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, supra, 95 N.J. at 

364-65); see also State v. Bieniek, 200 N.J. 601, 608 (2010); 

State v. O'Donnell, 117 N.J. 210, 215-16 (1989). 
16 A-4919-15T3

We discern no abuse of discretion in the imposed sentence. 

Defendant acknowledged his lengthy criminal history and the 

leniency he had been accorded in the past. These offenses had 

been committed within months of his release from prison on burglary 

convictions. The judge properly explained his weighing of the 

aggravating and mitigating factors, and the sentence was within 

the guidelines.

Affirmed.