Is A Locked, Fenced-In Parking Lot A “Structure”? It is in New Jersey.

by:  Peter J. Gallagher (@pjsgallagher)

I was in law school during the Bill Clinton/Monica Lewinsky drama. When the pundits seized on Bill Clinton's grand jury testimony about what the "meaning of 'is' is," I recall one of my professors saying that lawyers make distinctions like that every day. In practice, I have learned that this is true. At depositions and in court, lawyers often argue over the meaning of certain words that most people would think are fairly uncontroversial. Sometimes these arguments are more for the sake of argument than anything else, but often they are crucial to the issues in the case, like in the recent New Jersey Supreme Court decision in State v. Olivero.

In Olivero, defendant was convicted of third-degree burglary for stealing metal printing rollers used in printing presses from a fenced-in lot that was adjacent to a warehouse. Defendant and his brother cut the chain and padlock that secured the fence around the lot before driving in and taking the rollers. Unfortunately for them, a security guard noticed that the chain and padlock had been cut and called the police, who arrested defendant and his brother as they attempted to drive out of the facility.

Under New Jersey law, "A person is guilty of burglary if, with purpose to commit an offense therein or thereon he . . . enters a structure." A "structure" is defined as "any building, room, ship, vessel, car, vehicle or airplane, and also means any place adapted . . . for carrying on business." At trial, defense counsel argued that defendant could not be found guilty of burglary because the lot was not a "structure." The trial court rejected this argument, holding that the fenced-in area was "a prohibited space not open to the public, as well as a place for carrying on . .  business." The Appellate Division affirmed, noting that the lot was secured from the public.

Defendant appealed and the Supreme Court affirmed. In doing so, the Supreme Court looked primarily to the plain language of the relevant statutes. "Place of business" means "a location at which one carries on a business;" ""business" is "a commercial enterprise carried on for profit;" "adapt" means "to adjust to a specified use or situation;" a lot could be adapted to a storage lot by securing it from the public; therefore a storage lot could be a "structure" under New Jersey law "as a place adapted for business when it is specifically used for conducting commercial activity and is secured from the public."

The Supreme Court distinguished the situation in Olivero from a prior decision in which the Appellate Division held that a parking lot was not a structure. That case involved a juvenile who was charged with "defiant trespass" (as opposed to cooperative trespass I suppose). Apparently, there is an affirmative defense to defiant trespass, which the juvenile attempted to invoke, that prohibits someone from being convicted of defiant trespass if "the structure was at the time open to members of the public." However, the Appellate Division held that this defense was not available to the juvenile because the parking lot was not a structure. However, unlike the parking lot in that case, which was open to the public for parking, the lot in Olivero was "never open to the public," but rather was "fully fenced-in and protected by both a padlock and a security guard."

Finally, the court cited favorably to decisions from other jurisdictions that held that a storage lot is "a business activity no less than any other facet of a business such as manufacturing, retail sales, or distribution."

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