NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3216-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL KAPROSCH,
Defendant-Appellant. _______________________
Argued January 28, 2020 – Decided March 6, 2020
Before Judges Yannotti, Currier and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment Nos. 17-02-0068 and 17-03-0090.
Cody Tyler Mason, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Cody Tyler Mason, of counsel and on the brief).
Shaina Brenner, Assistant Prosecutor, argued the cause for respondent (Francis A. Koch, Sussex County Prosecutor, attorney; Shaina Brenner, of counsel and on the brief). PER CURIAM
Defendant was tried before a jury and found guilty of burglary and other
offenses. Thereafter, defendant pled guilty to charges under a separate
indictment, and the trial court sentenced defendant to an aggregate ten-year term
of incarceration. Defendant appeals from judgments of conviction (JOC) dated
February 20, 2018. For the reasons that follow, we affirm defendant's
convictions, but remand the matter to the trial court for resentencing on
Indictment No. 17-02-0068 and entry of a corrected JOC on Indictment No. 17-
03-0090.
I.
On February 16, 2017, a Sussex County grand jury returned Indictment
No. 17-02-0068, charging defendant with third-degree burglary, N.J.S.A. 2C:18-
2(a)(1) (count one); third-degree theft by unlawful taking of movable property
having a value of more than $500 but less than $75,000, N.J.S.A. 2C:20 -3(a)
(count two); and third-degree criminal mischief by damaging property and
causing a pecuniary loss of more than $2000, N.J.S.A. 2C:17-3(a)(1) (count
three).
On March 2, 2017, a grand jury in Sussex County returned Indictment No.
17-03-0090, charging defendant with third-degree aggravated assault, N.J.S.A.
A-3216-17T4 2 2C:12-1(b)(2) (count one); fourth-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d) (count two); and possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d) (count three).
In October 2017, defendant was tried before a jury on the charges in
Indictment No. 17-02-0068. At trial, Nicholas DellaFave testified that on
August 10, 2016, he was at the National Guard Armory in Newton to collect soil
and groundwater samples as part of an environmental investigation. At the end
of the day, DellaFave noticed a man in the woods on the property. He called the
police.
Officer Joseph D'Annibale of the Newton Police Department (NPD)
responded to the scene. He entered the woods and saw defendant, whom he
knew by name from "prior dealings" with him through work. D'Annibale told
defendant he was not allowed on the property. Defendant gathered his
belongings and left.
Later, after D'Annibale departed, DellaFave noticed the door to the
armory's boiler room was not secured. He entered the boiler room and saw that
"pipes had been cut and removed off the boiler, and [pipe] insulation [was] lying
all over the floor." He again called the police.
A-3216-17T4 3 D'Annibale returned to the armory and entered the boiler room. He
observed that pipes and radiators were missing from a room in the armory. He
saw debris on the floor, including beer cans, cigarettes, cigarette packages, and
garbage. D'Annibale also observed a shoe or boot print on the floor. He
concluded that the armory had been burglarized, and he reported the incident to
his detective sergeant at the NPD.
Detective Steven Van Nieuwland of the NPD was told about the burglary.
On August 16, 2016, Van Nieuwland and another detective went to the armory
to determine how the intruder may have entered the building. The detectives
discovered a "possible point of entry," specifically unlocked double doors facing
a wooded area. Van Nieuwland took photographs of the scene.
According to Van Nieuwland, the photographs accurately depicted what
he observed when he took the photos. They showed "asbestos insulation laying
on the floor from [the] recovered copper piping"; "brackets on the wall with the
radiators missing"; a pack of "Eagle 20 cigarettes"; and "boot prints that [were]
almost like a trail . . ." He stated that "obviously, somebody was walking in the
same path from the main part of the building through the day and out the door. "
Van Nieuwland said that after he took the photos, he and D'Annibale went
to George's Salvage Company (GSC), which is located directly across the street
A-3216-17T4 4 from the armory, to ask if anyone had brought in copper pipes recently. At GSC,
Van Nieuwland obtained documents, which indicated that defendant sold copper
and brass to the salvage yard on seventeen dates between July 13, 2016 and
August 16, 2016.
After Van Nieuwland obtained the documents from GSC, he began
looking for defendant. He located him behind a baseball field in a park adjacent
to the salvage yard and the armory. He asked defendant to accompany him to
the police station for questioning.
Van Nieuwland testified that defendant had in his possession "a pair of
work boots that were consistent with the boot prints that were found in the
armory." According to Van Nieuwland, defendant also was in possession of a
pack of Eagle 20 cigarettes. Van Nieuwland arrested defendant.
Thomas Barry was employed by GSC as an operations manager during the
summer of 2016. He testified that GSC has two scales, which are used to weigh
materials brought in for sale. He noted that there was a camera at the door,
where GSC paid for the materials. Barry said a photo identification (ID), such
as a driver's license, is required for certain purchases. Barry explained that GSC
has a computer system that is used to check the IDs. The computer prints out
receipts and maintains copies of the IDs.
A-3216-17T4 5 Barry said defendant was at GSC in July and August 2016. Based on
company records, Barry stated that defendant's first transaction at GSC took
place on July 13, 2016. The prosecutor presented Barry a receipt and a
photograph for that transaction. He testified that the picture shows defendant at
the front desk and the receipt indicates GSC paid defendant $80.50 for copper
tubing and brass.
The prosecutor then presented Barry with a receipt and a photograph
pertaining to a transaction on July 15, 2016. The photo shows defendant at the
window. The receipt indicates that GSC paid defendant $70 for copper tubing
and a brass-copper mix. Barry testified that the company's records show that on
July 18, 2016, GSC paid defendant $90.15 for copper aluminum fins, brass, and
copper.
Another receipt indicates that on July 19, 2016, GSC paid defendant
$119.40 for copper, brass, and copper-aluminum fins. According to Barry, the
metal fins are typically used in "very large radiators" for heating. Barry testified
that the company's transaction logs indicate that defendant sold materials to GSC
seventeen separate times between July and August 2016, and GSC paid
defendant a total of $1489.15. These materials included copper, brass valves,
brass elbows, copper aluminum fins, stainless steel, and mixed brass and copper.
A-3216-17T4 6 Barry also testified that when the burglaries took place, GSC had
surveillance cameras. Video footage from the surveillance cameras was played
for the jury. Barry testified that the footage depicts defendant coming from the
woods in the direction of the armory on the dates of the aforementioned
transactions, with bags or boxes of metals. Barry stated that the footage also
depicts defendant with copper-aluminum fins.
William Charles McBride testified that he was responsible for
maintenance at the armory as part of his job with the Department of Military and
Veteran Affairs (Department). McBride said that between July and August
2016, he was employed as the Department's asbestos program manager. He
stated that the armory was constructed during the so-called Cold War era.
McBride explained that the Department built such structures using
identical floor plans and standards. He said the buildings are heated from a
central boiler room, with pipes running through the building and fin -tube
radiators on exterior walls. McBride was shown photos of the materials
defendant sold to GSC. He said the materials shown in the photos are radiators
or other metals of the type found in the armory. He could not tell, however,
whether the copper pipes shown in the photos were like those in the armory.
A-3216-17T4 7 McBride added that on August 10, 2016, he was informed that someone
had broken into the armory. Several days later, McBride installed cameras on
the premises to catch the intruder. On August 22, 2016, he retrieved the
cameras.
The prosecutor presented McBride with a copy of photos from the
cameras. McBride said some of the photos show an individual in the armory at
around 1:00 a.m., on August 16, 2016. He noted that the photos also show
asbestos debris. He estimated that the cost to clean up the debris would be
"greater than $2000."
Van Nieuwland further testified that the photographs from McBride's
cameras show defendant carrying metal at the armory early in the morning of
August 16, 2016. He said the man in the photos was carrying pipes, which were
consistent with the materials defendant sold to GSC.
After the State rested its case, defendant moved for a judgment of
acquittal. The judge denied the motion. Defendant decided not to testify and
he did not call any witnesses. The jury found defendant guilty on the three
counts of Indictment No. 17-02-0068. Thereafter, defendant pled guilty to the
charges in Indictment No. 17-03-0090. On February 9, 2018, the judge
A-3216-17T4 8 sentenced defendant on both indictments, and imposed an aggregate ten-year
term of incarceration. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I THE STATE'S CASE WAS UNFAIRLY BOLSTERED BY: OPINION TESTIMONY IDENTIFYING DEFENDANT IN PHOTOS AND VIDEOS. (Not Raised Below); OPINION TESTIMONY COMPARING DEFENDANT'S BOOTS TO SHOE PRINTS AT THE ARMORY; THE PROSECUTOR'S OPINION ABOUT THE POPULARITY OF CIGARETTES FOUND IN THE ARMORY (Not Raised Below); AND QUASI- EXPERT TESTIMONY ABOUT ITEMS DEFENDANT SOLD. (Partially Raised [Below]).
A. The Trial Court Committed Plain Error in Allowing Witnesses to Identify Defendant in Photos and Videos That Were Available to the Jury.
B. The Trial Court Wrongly Allowed A Detective to Testify, Based on Photos Available to the Jury, That Defendant's Boots Were Consistent with the Shoeprints in the Armory.
C. The Prosecutor Committed Misconduct When, Without Support in the Records, He Opined That the Cigarettes Found in the Armory and On Defendant Were Unusual.
D. The Trial Court Improperly Allowed Lay Witnesses to Offer Expert Testimony About Whether the Items Sold by Defendant Could Have Come from The Armory.
A-3216-17T4 9 POINT II THE TRIAL WAS TAINTED BY THE PROSECUTOR'S REFERENCE TO DEFENDANT BEING "ADDICTED" TO EASY MONEY (Not Raised Below), THE OFFICERS' TESTIMONY THAT THEY KNEW DEFENDANT THROUGH WORK, AND THE PROSECUTOR'S COMPARISON OF DEFENDANT TO ADOLF HITLER. (Partially Raised [Below]).
POINT III THE COURT'S FAILURE TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS WAS PLAIN ERROR. (Not Raised Below).
A. The Court Was Required to Charge the Jury on Criminal Trespass Because It Was Clearly Indicated by the Record.
B. Reversal on All Three Counts Is Required Because They Were Inherently Intertwined and Considered Together.
POINT IV THE STATE'S FAILURE TO PRESENT COMPETENT EVIDENCE THAT THERE WAS OVER $2000 IN DAMAGE REQUIRES A JUDGMENT OF ACQUITTAL ON THE CRIMINAL- MISCHIEF CHARGE.
POINT V RESENTENCING IS REQUIRED BECAUSE THE COURT FAILED TO ADDRESS SUPPORTED MITIGATING FACTORS AND MADE INAPPROPRIATE AGGRAVATING FACTOR FINDINGS; IMPOSED MULTIPLE EXTENDED- TERM SENTENCES; AND IMPOSED FINES ON A MERGED OFFENSE.
A-3216-17T4 10 II.
As noted, defendant argues that the trial judge erred by allowing the State
to admit certain testimony. He also argues that the prosecutor improperly
provided opinion testimony.
We review the trial court's evidentiary rulings for abuse of discretion.
State v. Green, 236 N.J. 71, 81 (2018) (citing State v. Rose, 206 N.J. 141, 157
(2011)). We will not set aside a trial court's evidentiary ruling "unless it appears
that 'there has been a clear error of judgment.'" State v. Prall, 231 N.J. 567, 580
(2018) (quoting State v. J.A.C. 210 N.J. 281, 295 (2012)).
We note, however, that if there was no objection, we must determine if
the judge erred by admitting the evidence, and if so, whether the error was
"sufficient to raise a reasonable doubt as to whether [it] led the jury to a result
it otherwise might not have reached." State v. Daniels, 182 N.J. 80, 95 (2004)
(quoting State v. Macon, 57 N.J. 325, 336 (1971)).
A. Van Nieuwland and Barry's Identifications of Defendant.
Defendant argues, for the first time on appeal, that the trial judge erred by
allowing Van Nieuwland and Barry to identify defendant as the person depicted
in photos and videos that were shown to the jury. He contends the identifications
were not admissible under Rule 701, which permits a lay witness to offer an
A-3216-17T4 11 opinion when it (1) is "rationally based on the perception of a witness" and the
opinion (2) will help the jury in its fact-finding function. N.J.R.E. 701.
The court may allow a lay witness to provide identification testimony if
the witness has had "sufficient contact with the defendant to achieve a level of
familiarity that renders the lay opinion helpful" or "the witness knew defendant
over time and in a variety of circumstances." State v. Lazo, 209 N.J. 9, 22 (2012)
(internal quotation marks omitted).
Here, defendant argues that Van Nieuwland and Barry did not have prior
personal knowledge that he was the person depicted in the photos and videos.
He also argues that the judge should not have permitted Van Nieuwland and
Barry to identify him because "the jury was equally capable" of determining if
he was the man shown in the photos and videos. We disagree.
Van Nieuwland testified that he knew defendant from prior interactions
with him through his work as a police officer. Thus, Van Nieuwland was able
to identify defendant based on his prior contacts and his familiarity with
defendant. Barry also was familiar with defendant and had personal knowledge
about the surveillance footage from GSC.
Thus, both witnesses were able to assist the jury perform its fact-finding
function. The testimony was admissible under Rule 701.
A-3216-17T4 12 Defendant argues, however, that he was prejudiced because the judge did
not instruct the jury on identification. However, at trial, defendant's attorney
conceded the instruction was not necessary.
The "invited error" principle precludes a defendant from asserting error
on appeal after having urged the trial court to take the course the defendant now
claims was erroneous. State v. Munafo, 222 N.J. 480, 487 (2015); State v.
Kemp, 195 N.J. 136, 155 (2008). We therefore reject defendant's claim that the
judge erred by failing to instruct the jury on identification.
B. Van Nieuwland's Testimony About the Boot Prints.
Defendant argues that the judge erred by allowing Van Nieuwland to
testify that the soles of the boots found in his possession were consistent with
the boot prints found at the armory. He contends Van Nieuwland's testimony
was not admissible because he was not qualified as an expert in boot prints. He
also argues that the detective's testimony improperly invaded the jury's fact-
finding role because the jury was capable of making its own comparison of the
boot prints and the soles of the boots.
However, it is well-established that a person providing a footprint
identification need not be qualified as an expert because "shoeprint patterns are
often readily recognizable and well within the capabilities of a lay witness to
A-3216-17T4 13 observe. No detailed measurements, no subtle analysis or scientific
determination is needed." State v. Johnson, 120 N.J. 263, 294 (1990).
Moreover, Van Nieuwland's testimony was permissible lay opinion under
Rule 701. He compared the soles of the boots he recovered from defendant and
the boot prints found in the armory. His testimony was based on his own
perceptions and it assisted the jury in exercising its fact-finding role. N.J.R.E.
701. Therefore, the judge did not err by permitting Van Nieuwland to testify
about the boot prints.
C. Prosecutor's Comments Regarding Eagle 20 Cigarettes.
Defendant argues that the judge erred by allowing the prosecutor to assert
in his opening statement that Eagle 20 cigarettes are "unusual." As noted
previously, a package of Eagle 20 cigarettes was found at the armory and in
defendant's possession. The prosecutor stated that he had never heard of Eagle
20 cigarettes before.
Defendant contends that by making these statements, the prosecutor
"testified" that Eagle 20 was an "unusual" brand of cigarettes. He contends the
prosecutor's statements were not a fair comment on the evidence the State would
present at trial. He claims he was prejudiced by the suggestion that the Eagle
20 cigarettes found in the armory belonged to him.
A-3216-17T4 14 A prosecutor's comments will not warrant reversal on appeal unless they
were "clearly and unmistakably improper" and "so egregious" that they denied
defendant of the "right to have a jury fairly evaluate the merits of his defense."
State v. Wakefield, 190 N.J. 397, 437-38 (quoting State v. Papasavvas, 163 N.J.
565, 625 (2000)). However, when counsel does not make a timely objection to
the comments, "it is [ordinarily] a sign 'that defense counsel did not believe the
remarks were prejudicial' when they were made." State v. Pressley, 232 N.J.
587, 594 (2018) (quoting State v. Echols, 199 N.J. 344, 360 (2009)).
Here, defendant's counsel did not object to the prosecutor's comments.
Moreover, the prosecutor's lack of familiarity with Eagle 20 cigarettes had no
bearing on any issue in the case. The prosecutor's comments were not clearly
improper or egregious.
We are therefore convinced that the judge's failure to strike the comments
sua sponte was not an error "clearly capable of producing an unjust result." R.
2:10-2.
D. Barry's Testimony About the Metals Sold to GSC.
At trial, Barry testified that certain metals defendant sold to GSC are
typically used in "fins found in a large radiator[,]" and the insulation found at
the armory "could have been" from the pipes defendant sold to the salvage yard.
A-3216-17T4 15 Defendant moved for a mistrial and argued that Barry was not qualified to
provide this testimony.
The trial judge denied defendant's motion, but ruled that Barry should not
be permitted to testify that the pipes or materials sold to GSC came from the
armory. Thereafter, the State did not elicit any testimony from Barry as to
whether the pipes and materials shown in the photographs came from the
armory.
McBride testified, however, that the armory, like other buildings the
Department built around the same time, had "fin-tube radiators." He stated the
materials in the photos from the salvage yard depicted parts of a "fin-tube
radiator," a boiler backflow preventer, air conditioning coils from a large
building, and pipes that could have been attached to the armory's boiler.
Defendant asserts Barry's and McBride's statements were expert testimony
because an average juror would not be expected to know about the component
parts of a heating system. He contends Barry and McBride should not have been
allowed to provide this testimony because they were not qualified as experts.
Again, we disagree.
The record shows that Barry had extensive experience working in the
salvage yard, and McBride was familiar with the infrastructure of the
A-3216-17T4 16 Department's buildings. Neither witness gave an opinion as to whether the pipes
defendant sold to GSC came from the armory. Furthermore, both witnesses
testified based on their personal experiences, and they did not "explain the
implications" of facts "that would otherwise fall outside the understanding of
ordinary people." McLean, 205 N.J. at 460.
III.
Defendant argues that the prosecutor made certain statements and
presented testimony that suggested defendant is a bad person, who was prone to
committing crimes at the expense of the public. He asserts that , individually
and cumulatively, the statements and testimony deprived him of his right to due
process and a fair trial.
A. Prosecutor's Opening Statement.
Defendant contends that the prosecutor tainted the proceedings by stating
in his opening remarks that defendant "took advantage of an unoccupied
taxpayer-owned building" and became "addicted to . . . easy cash." He contends
these comments were likely to prejudice him because the jury later learned he
was homeless.
In his opening, the prosecutor asserted that the State would prove
defendant removed materials from the armory and sold them to the salvage yard
A-3216-17T4 17 on seventeen separate occasions. The prosecutor commented that the State
would show that defendant "took advantage" by removing materials from "an
unoccupied taxpayer-owned building." The comment that defendant was
"addicted to . . . easy cash" was a fair summary of the evidence the State intended
to present at trial.
We note that even if the prosecutor erred by stating that defendant was
"addicted to . . . easy cash," defense counsel did not object to the statement.
Therefore, we may presume counsel did not view the comment as prejudicial.
Pressley, 232 N.J. at 594 (citing Echols, 199 N.J. at 360). In any event, the
comment was not "clearly and unmistakably improper" and did not deprive
defendant of his right to a fair trial. Wakefield, 190 N.J. at 437-38 (citing
Papasavvas, 163 N.J. at 625).
B. Officers' Testimony Regarding Defendant.
At trial, Van Nieuwland testified that he knew defendant "through police
work" and D'Annibale stated he knew defendant from "prior dealings . . .
through work." Defendant objected to these statements. The trial judge
overruled the objection, noting that the officers could have come to know
defendant as a victim, witness, or a person encountered on patrol.
A-3216-17T4 18 On appeal, defendant argues that the officers' testimony constituted bad-
acts evidence, which could only be admitted in accordance with Rule 404(b).
N.J.R.E. 404(b). However, the officers' testimony did not trigger the
requirements of Rule 404(b) because it was not evidence that defendant
committed a "crime" or other "wrong."
The officers did not explain the circumstances under which they came to
know defendant. Moreover, neither officer stated that defendant had a previous
interaction with defendant in the context of some offense or bad act. The judge
did not err by allowing this testimony.
C. Prosecutor's Comments in Summation.
Defendant contends the prosecutor inflamed the jury by making certain
remarks in his closing argument. We note that in his opening statement, defense
counsel stated:
On a cold January day[,] a [forty-three-year-old] man was sworn in as the chief executive of his – of his country. By his side stood his predecessor, a famous general who [fifteen] years earlier had commanded his nation[']s armed forces in a war that resulted in the defeat of Germany. The young leader was raised in the Catholic faith. He spent the next five hours watching parades in his honor and stayed up celebrating till [three] o'clock in the morning. You know who I'm describing, right? It's January 1933, and I'm describing Adolph Hitler and not as some of you may have thought
A-3216-17T4 19 or would have assumed John F. Kennedy. The point is we all make assumptions. . . .
In his summation, the prosecutor responded to these comments. The
prosecutor stated in part:
I don't think that it's fair – a fair analogy, but I can think we can extrapolate from Adolf Hitler and we can in his permanent office, if you will, and compare it or analogize it to what we have here. . . .
We didn't know the level of a man's evil until the war, World War II was coming to a conclusion. . . .
And . . . an investigation occurred and Hitler was found to be the man in charge, the man who ordered that and the man who was responsible for [deaths of] millions, millions of Jews. It was the evidence [which] showed that Hitler was directly responsible for that just like the direct and circumstantial evidence that you heard from the witness stand show that [defendant] is guilty of the crimes charged in the indictment.
Suffice it to say, the comments regarding Adolf Hitler by defense counsel
and the prosecutor were entirely inappropriate and had no place in this trial.
Certainly, defense counsel could have made his point about the need to avoid
making assumptions without mentioning Hitler. Similarly, the prosecutor could
have responded to those remarks without mentioning Hitler and the deaths of
millions of Jewish persons.
A-3216-17T4 20 Nevertheless, we are not convinced that the prosecutor's comments were
intended to inflame the jury or deprived defendant of his right to a fair trial.
The prosecutor's comments about Hitler had no bearing on any material issue in
the case and could not reasonably have led the jury to a result it would not
otherwise have reached based on the evidence presented at trial.
IV.
Defendant also argues that the judge erred by failing to charge the jury on
a lesser-included offense, specifically criminal trespass under N.J.S.A. 2C:18-
3(a). Defendant did not request this instruction. He argues, however, that the
judge's failure to charge criminal trespass sua sponte constitutes plain error and
requires reversal of all of his convictions.
When a party to a criminal proceeding does not request a charge on a
lesser-included offense, the judge should only give the charge sua sponte if there
is "obvious record support" for it. State v. Funderburg, 225 N.J. 66, 81 (2016).
A trial judge should charge a lesser-included offense sua sponte "only where the
facts in evidence 'clearly indicate' the appropriateness of that charge." Savage,
172 N.J. at 397 (internal citations omitted). A trial judge is not required to
"scour the statutes to determine if there are some uncharged offenses of which
A-3216-17T4 21 the defendant may be guilty. . . ." State v. Brent, 137 N.J. 107, 118 (1994)
(quoting State v. Sloane, 111 N.J. 293, 302 (1988)).
Here, the judge did not err by failing to charge the jury sua sponte on
criminal trespass because the evidence did not clearly indicate such an
instruction was warranted. Defendant contends the State's case was entirely
circumstantial and could have supported a finding that he entered the armory
without permission but when he did so, he did not intend to commit a crime.
However, the State presented strong, if not overwhelming, evidence that
defendant entered the armory on numerous occasions with the intent to tak e
copper and other materials and sell them to the salvage yard. The evidence did
not clearly indicate that when defendant entered the armory, he did not intend
to commit a crime in the armory.
Defendant further argues that the judge erred by failing to give the jury a
charge on multiple offenses. He asserts that the charges of theft and criminal
mischief were inherently intertwined with the burglary charge. He contends the
judge was required to specifically instruct the jury that it must consider all three
charges separately. He asserts that without this instruction, the jury was likely
to view all three offenses together. We do not agree.
A-3216-17T4 22 Here, the trial judge instructed the jury that the State had to prove the
elements of each offense beyond a reasonable doubt and the judge reviewed the
elements of each charged offense. The judge also reviewed the verdict sheet,
which required the jurors to make findings that defendant was guilty or not
guilty of each separate offense. The judge's instructions were proper and a more
specific charge on multiple offenses was not required.
Defendant contends the State failed to present sufficient competent
evidence showing that the armory sustained a pecuniary loss of $2000 or more
as a result of his actions. He therefore contends the conviction for criminal
mischief must be reversed.
A person is guilty of criminal mischief if he or she "purposely, knowingly,
or recklessly tampers with tangible property of another so as to endanger per son
or property, including the damaging or destroying of a rental premises by a
tenant in retaliation for institution of eviction proceedings." N.J.S.A. 2C:17-
3(a). N.J.S.A. 2C:17-3(b)(1) provides that "criminal mischief is a crime of the
third degree if the actor purposely or knowingly causes pecuniary loss of $2000
or more."
A-3216-17T4 23 Defendant argues the State did not meet its burden of proving the requisite
pecuniary loss because the State did not establish the market value of the
property removed from the armory. He further argues that McBride was not
qualified to offer an opinion as to the cost to repair the damage in the armory
and his testimony regarding the cost of such repairs was a net opinion.
However, at trial, the State presented sufficient evidence to establish that
defendant had caused damage to the armory that had a value of $2000 or more.
Barry testified that the salvage yard paid defendant $1489.15 for the materials
defendant sold to GSC. Barry explained that the value of each item was
determined based on its market price.
In addition, the State presented evidence showing that when defendant
removed the pipes and other materials, he damaged the asbestos insulation.
McBride testified that the cost to clean up the asbestos debris would be "greater
than $2000." McBride's testimony as to these costs was proper lay opinion
testimony under Rule 701. N.J.R.E. 701. Moreover, because McBride's opinion
was based on his experience as an asbestos program manager, it was not an
improper net opinion.
A-3216-17T4 24 VI.
Defendant further argues that his sentence is excessive. He contends
resentencing is required because the trial judge failed to address certain
mitigating factors, did not make appropriate findings on the aggravating factors,
erred by imposing multiple extended-term sentences, and erroneously imposed
fines and penalties on a merged offense.
"An appellate court's review of a sentencing court's imposition of sentence
is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318
(2018). In reviewing a sentence, the court must determine whether: "(1) the
sentencing guidelines were violated; (2) the findings of aggravating and
mitigating factors were . . . 'based upon competent credible evidence in the
record'; [and] (3) 'the application of the guidelines to the facts' of the case
'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014)
(third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
"An appellate court is bound to affirm a sentence, even if it would have
arrived at a different result, as long as the trial court properly identifies and
balances aggravating and mitigating factors that are supported by competent
credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989)
(citing State v. Jarbath, 114 N.J. 394, 400-01 (1989); Roth, 95 N.J. at 364-65).
A-3216-17T4 25 Here, the judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3)
(risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6)
(extent of defendant's prior criminal record and the seriousness of the offenses
for which he has been convicted); nine, N.J.S.A. 2C:44-1(a)(9) (need to deter
defendant and others from violating the law); and eleven, N.J.S.A. 2C:44-
1(a)(11) (imposition of fine penalty or order of restitution without a term of
incarceration would be perceived as part of cost of doing business). The judge
found no mitigating factors and determined the aggravating factors substantially
outweighed the non-existing mitigating factors.
The judge granted the State's motion for imposition of an extended term
pursuant to N.J.S.A. 2C:44-3(a), finding that defendant met the definition of a
persistent offender. The judge sentenced defendant on Indictment No. 17-02-
0068 to three, concurrent, seven-year extended terms of incarceration for
burglary (count one), theft (count two), and criminal mischief (count three).
On Indictment No. 17-03-0090, the judge merged count three (possession
of a weapon for an unlawful purpose) with count one (aggravated assault), and
sentenced defendant to a three-year prison term on count one. The judge also
imposed an eighteen-month prison term on count two (unlawful possession of a
weapon). The judge ordered that the sentences be served consecutively to the
A-3216-17T4 26 sentences imposed on Indictment No. 17-03-0090. In addition, the judge
imposed various fines, penalties, and assessments on both indictments.
Defendant argues that the judge failed to address or find mitigating factors
one, N.J.S.A. 2C:44-1(b)(1) (defendant's conduct neither caused nor threatened
serious harm); and two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate
that his conduct would cause or threaten serious harm). We cannot agree.
Here, the judge noted that defendant's actions were "rather brazen" and
"continuous." The judge also noted that there was harm associated with
defendant's conduct. The judge pointed out that defendant had stolen property
from the armory and did so in a way that will require a government agency to
pay to clean up the asbestos debris. The judge provided sufficient reasons for
his determination that mitigating factors one and two do not apply.
Defendant also argues that the judge failed to explain the basis for his
findings of aggravating factors three, six, and nine. Again, we disagree. At
sentencing, the judge reviewed defendant's criminal record, which included
prior convictions that made him eligible for an extended term. The judge noted
that there was a need to deter defendant and others from violating the law, and
that defendant's attitude indicated there was a risk he would commit another
offense. The judge observed that defendant was a person who was "going to do
A-3216-17T4 27 what he wants to do when he wants to do it." The judge provided sufficient
reasons for his findings.
In addition, defendant contends the judge erred by finding aggravating
factor eleven. Citing State v. Dalziel, 182 N.J. 494, 502 (2005), defendant
contends this factor should only be considered if the court is considering a non -
custodial sentence. He notes that he was eligible for an extended-term sentence,
and he entered a plea to the second indictment under which the State would
recommend a consecutive three-year prison term. He also notes that defense
counsel did not seek a non-custodial sentence.
We agree that the judge erred by finding aggravating factor eleven. Here,
the judge was not considering whether to impose a non-custodial sentence.
However, we are not convinced that the error requires resentencing. As noted,
the judge found three other aggravating factors and no mitigating factors. The
judge's findings are more than sufficient to support the seven-year, extended-
term sentence on Indictment No. 17-02-0068, and the three-year consecutive
sentence on Indictment No. 17-03-0090.
Defendant also argues that the judge erred by imposing three extended-
term sentences on the charges in Indictment No. 17-02-0068. We agree.
N.J.S.A. 2C:44-5(a)(2) provides that when a defendant is sentenced on multiple
A-3216-17T4 28 offenses in a single proceeding, the court may only impose one extended-term
sentence. The State acknowledges that the trial court could only impose one
extended-term sentence. We remand the matter for resentencing on Indictment
No. 17-02-0068.
Defendant further agrees that the judge erred by assessing defendant fees
totaling $125 on count three of Indictment No. 17-03-0090 because that count
had been merged with count one for sentencing purposes. The State agrees.
Therefore, on remand, the judge should amend the JOC on Indictment No.
17-03-0090 and delete the $50 assessment for the Victim of Crimes
Compensation Board and the $75 Safe Neighborhood Assessment imposed on
count three.
Accordingly, we remand the matter to the trial court for resentencing on
Indictment No. 17-02-0068, and entry of a corrected JOC on Indictment No. 17-
03-0090, in accordance with this opinion. In all other aspects, the JOCs are
affirmed.
Affirmed in part, and remanded in part. We do not retain jurisdiction.
A-3216-17T4 29