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).

NOT FOR PUBLICATION WITHOUT THE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.
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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. 
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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. 
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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 
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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.
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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. 
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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.
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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
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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 QUASIEXPERT 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.
10 A-3216-17T4

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 CRIMINALMISCHIEF CHARGE.

POINT V

RESENTENCING IS REQUIRED BECAUSE THE 

COURT FAILED TO ADDRESS SUPPORTED 

MITIGATING FACTORS AND MADE 

INAPPROPRIATE AGGRAVATING FACTOR 

FINDINGS; IMPOSED MULTIPLE EXTENDEDTERM SENTENCES; AND IMPOSED FINES ON A

MERGED OFFENSE. 
11 A-3216-17T4

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 
12 A-3216-17T4

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.
13 A-3216-17T4

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 factfinding 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 
14 A-3216-17T4

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. 
15 A-3216-17T4

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.
16 A-3216-17T4

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 
17 A-3216-17T4

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 
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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. 
19 A-3216-17T4

On appeal, defendant argues that the officers' testimony constituted badacts 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 
20 A-3216-17T4

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. 
21 A-3216-17T4

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 
22 A-3216-17T4

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 take 

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. 
23 A-3216-17T4

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. 

V.

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 person 

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." 
24 A-3216-17T4

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.
25 A-3216-17T4

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).
26 A-3216-17T4

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 
27 A-3216-17T4

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 
28 A-3216-17T4

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 noncustodial 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, extendedterm 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 extendedterm 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 
29 A-3216-17T4

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.