SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- 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

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- 0068 and 17

- 03

- 0 0 90. Cody T yler Mason, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Cody T yler Mason, of counsel and on the brief). Shaina Brenner, Assistant Prosecutor, argued the cause for respondent (Francis A. Koch, Sussex Cou nty 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 opinio n is bindi ng o nly on the par ties in the case and its use in other cases is limited. R. 1:36

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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 separ ate 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 rema nd the matter to the trial cou rt for resentencing on Indictment No. 17

- 02

- 0068 and entry of a corrected JOC on Indictment No. 17

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- 0090.
I. On February 16, 2017, a Sussex County grand jury returned Indictment
N o. 17

- 02

- 0068, charging defendant with thi rd

- degree burglary, N.J.S.A. 2 C: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 proper ty and causing a pecuniary los s of more than $2000, N.J.S.A. 2C:17

- 3(a)(1) (count three).
On M arch 2, 201 7 , a grand jury in Sussex County returned Indictment No.
17

- 03

- 0090, charging defendant with third

- degree aggravated assault, N.J.S.A.3 A

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2C : 12

- 1(b)(2 ) (count one); fourth

- degree u nlawful 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 Ind ictment No. 17

- 02

- 0068. At tr ial, 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 noti ced 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 , who m he knew by name from " prior dealings " with him through w ork. D ' Annibale told
defendan t he was not allowed on the property. Defendant gathered his belongings and left. Later, a fter D ' Annibale departed , DellaFave noticed the door to the
armory ' s boiler room was not secure d

. He entered the boiler room and saw that

" pipes had been cut an d removed off the boiler, and [pipe] insulation [was] l ying all over the floor. " He again called the police.4 A

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D ' Annibale returned to the armory and entered the boiler room. He observed that pipes and radiators were missing fro m 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 report ed the inci dent 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 bu ilding. Th e 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 h e 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 st ated 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 a cross the street5 A

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from the armory, to ask if anyone had brought in copper pipes recently

. At GSC,
Van Nieuwland obtained document s, which indicated that defendant sold copper
and brass to the salvage yard on seventeen dates between July 13, 2016 and August 16, 2016.
A fter 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 consi stent with the boot prints that were found in the
armory. " According to Van Nie u wland, d efendant 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 d uring the summer of 2016. He testified that GSC has two scales , which are used to weigh materials brought i n for sale. He noted that t here was a camera at the door, where GSC pa id 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 print s out receipts and maintains copies of the IDs.6 A

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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 recei pt and a photograph for that transaction. He testified that the picture show s defendant at the front desk and the receipt indicate s 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 show s defendant at the window. The receipt indicate s 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, GS C paid defendant $90.15 for cop per aluminum fins , brass, and
copper. Another receipt indicate s 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. Th ese materials included co pper, brass valves,
brass elbows, copper aluminum fins, stainless steel, and mix ed brass and copper.7 A

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Barry also t estified that when the burglaries took place , GSC had surveillance cameras

. Video footage from the surveillance cameras was played for the j ury . B arry testified that the footage depict s 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 depict s defendant with copper

- a luminum fins. William C harles 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 b etween July and August
20 1 6, he was employed a s the Department ' s asbesto s program manager . He stated that the armory was constructed during the so - called C old W ar era. McBride explained that the Department built such structures using identical floor plan s 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 p hotos 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. Sev eral days lat er , McBride installed cameras on the premises to catch the intruder

. On August 22, 201 6 , he retrieved the

cameras . The prosecutor presented McBride with a copy of p hotos from the

cameras . McBride said some of the photos show an individual in the armory at

a round 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. "
V an Nieuwland further te stified th at the photographs from McBride ' s

cameras show de fendant 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.
A fter the State rested its case , defendant moved for a judgm ent 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

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- 006 8. Thereafter , defendant pled guilty to the charges in Ind ictment No. 17

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- 0090. On February 9, 2018, the judge9 A

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sentenced defendant on both indictments, and imposed an aggregate ten

- year term of incarceration. This appeal followed. On appeal, defend ant raises the following arguments:
POINT I THE ST ATE ' S C ASE 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 Identi fy 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 Reco rds, 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

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- 17T4 POI NT II TH E 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 P ROSECUTOR ' S COMPARISON OF DEFENDANT TO ADOLF HITLER. (Partial ly Raise d [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 Cha rge the Jury on Criminal Trespass Because It Was Clearly Ind icated b y 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 AC QUITTAL ON THE CRIMINAL

MISCHIEF CHARGE.
POINT V RESENTENCING IS REQUIRED BECAUSE THE COURT FAILED TO ADDRESS SUPPORTED MITIGATING FACTORS AND MADE INAPPROPRIATE AGGRAVATING FACTOR FIND INGS; IMPOSED MULTIPLE EXTENDED

TERM SENTENCES; AND IMPOSED FINES ON A MERGED OFFENSE.11 A

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to admit certain testimony

. He also argues that the prosecutor improperly provided opinion testimony. We review the trial court ' s evidentiary rulings for abuse o f 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. Pra ll , 231 N.J . 567, 580 (2018) (quoting State v. J.A.C . 210 N.J. 281, 295 (2012)). We note, h owever, that if there w as no objection , we must determine if the judge erred by admitting the evidence, and if so, whether the error was

" sufficient to raise a re asonable do ubt as to whether [it] led the jury to a result
it otherwise might not have reached. " State v. Daniels , 1 82 N.J. 80, 95 (2004) (quoting State v. Macon , 57 N.J. 325, 336 (1971)).
A. Van Nie u wland and Barry ' s Identifications of Defendant

. De fendant arg ues, 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 admissib le under Rule 701 , which permits a lay witness to offer an12 A

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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 pr ov ide identif ication 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 Nieu w land 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 hav e permitted V an 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 thr ou gh his work as a police officer. Thus, Van Nieu w land w as able to identify defendant based on his prior contacts a nd his familiarity with defendant. Barry also was familiar with defendant and had personal knowledge about the surveillance footage from GSC. Thus, bo th witnesses w ere able to assist the jury perform its fact

- finding function. The testimony was admissible under Rule 701.13 A

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Defendant argues , however, that he was prejudiced because the judge did
not instruct the jury on identification. Howe ver, a t trial, defendant ' s attorney conceded the instruction was not necessary. The " invited error " principle precludes a d efendant from asserting error on appeal after having urged the trial court to take the course the defendant now
claims was erroneou s. State v. Mu nafo , 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 Nie u wland ' s Testimony A bout the Boot Prints

. Defe ndant argue s 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 wa s no t 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
b oot prints and the soles of the boots

. However, i t is well

- e stablished that a person providing a f ootprint identification need not be qualified as an expert because " shoeprint patterns are often readily recognizable and well within the capabilities of a lay witness to14 A

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observe. No detailed meas urements, no subtle a nalysis 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 defen dant and
t he boot pri nts 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, t he judge did not err by permitting Van Nieuwland to testify about the bo ot prints.
C. Prosecutor ' s C omments R egarding 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 cigar ettes was f o und 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 prosecuto r

" testified " that Eagle 20 was an " unusual " bra nd of cigar e ttes . 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 cigarett e s found in the armory belonged to him

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A pro secutor ' s c om ments will not warrant reversal on appeal unless the y

were " clearly and unmistakably improper " and " so egregious " that t hey denied
defendant of the " right to have a jury fairly evaluate the mer its 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 mad e. " State v . Pressley , 232 N.J. 587, 594 (2018) (quo ting State v. Echols , 199 N.J. 344, 360 (2009)). Here, d efendant ' s counsel did not object to the prosecutor ' s comment s . Moreover, t he prosecutor ' s lack of familiarity with Eagle 20 cigarettes had no bearing on a ny issue in the case

. T he prosecutor ' s comment s w ere not clearly improper or egregious.
We are therefore convinced that th e judge ' s failure to strike the comment s sua sponte was not an error " clearly capable of producing an unjust result. " R. 2:10

- 2.
D. Barry ' s T estimony A bout the M etals S old to GSC

. At trial, Barry testified that certain metal s defendant sold to GSC are typically used in " fins found in a large radiator[,] " and the insulation found at the armory " could have been " fro m the pipes defendant sold to the salvage yard

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Defendant moved for a mistrial and argued that Barry was not qualified to provide this testimony.
T he trial judge denied defendant ' s motion , but ruled that Barry should not be permitted to testify that the pipe s or m a terials 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 o ther buildi n gs 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 build ing, and pi p es that could have been attached to the armory ' s boiler.
Defendant as serts B arry ' 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 conte nds Barry a n d McBride should not have been allowed to provide this testimony because they were not qualified as experts. Again, w e disagree. The record shows that Barry had extensive experience working in the salvage yard, and McBride was familiar with the infrast r ucture of the17 A

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Department ' s buildings. Neither witness gave an opinion a s to whether the pipes d efendant sold to GSC came from the armory. Furthermore, b oth witnesses testified based on their personal experience s , and they did not " explain the implicatio n s " of facts " that would otherwise fall outside the understanding of ordi nary 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 perso n, who was p rone 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 Stateme nt

. Defendant contends th at t he 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 h im 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 yard18 A

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on seventeen separate occasions. The pro secutor c omment ed that the Sta te 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 inten ded
to present at trial.
We note that even if th e prosecutor erred by stating t hat 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 (ci ting Echols , 199 N.J. at 360). In any event, the
comment was not " clearly and unmistakably improper " and did not deprive defendant o f his right to a fair trial. Wakef ield , 190 N.J. at 437

- 38 (citing Papasavvas , 163 N.J. at 625).
B. O fficers ' Te stim ony 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. T he trial ju dge overrul ed t he objection , noting that the officers could have come to know defendant as a victim, witness, or a person encounter ed on patrol.19 A

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On appeal, defendant argues that the officers ' testimony constituted bad

acts evidence, which could only be admitted in acc ordance with Rule 404(b). N.J.R.E. 404(b). However, the o fficers ' testimony did not trigge r the requirements of Rule 404(b) because it was not evidence that defendant committed a " crime " or other " wrong. " The officer s did not explain the circumstan ces under which they came to know defendant. Moreover, neither officer stated that defendant had a previous interaction with defendant i n the context of some offense or bad act. The judge did not err by allowing this testimony.
C. Prosecut or ' s Commen ts i n 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 sw orn in as t he c hief executive of his

– of his country. By his side stood his predecessor, a famous general who [fifteen] years earlier had c ommanded his nation[ ' ]s armed force s in a war that resulted in the defeat of Germany. The young leader was raised in the Cath olic faith. He spent the next five hours watching parades in his honor and stayed up celebrating till [three] o ' clock in the morn ing. You know who I ' m describing, right? It ' s January 1933, and I ' m describing Adolph Hitler and not as some of y ou may have tho ught20 A

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- 17T4 or would have assumed John F. Kennedy. The point is we all make assumptions. . . . In his summation, the prosecutor re sponded to these comments. The prosecutor stated in part :

I don ' t think that it ' s fair

– a fair analogy, but I ca n 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 respons ible for [death s of] millions, millions of Jews. It was the evidence [which] showed that Hitler was directly respo nsible for that j ust 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

an d the prose cuto r 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 th os e remarks w itho ut mentioning Hitler and the deaths of millions of Jewish persons.21 A

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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 ab out Hi tler had no bearing on any material issue in the case and could not reasonably have led the jury to a result it would not
ot herwise have reached based on the evidence presented at trial.
IV. Defendant also argues that the judge erred b y failing t o ch ar ge the jury on a lesser

- included offense, specifically criminal trespass under N.J.S.A. 2C:18

- 3(a). Defendant did not reque st th is instruction. He argue s , however, that the judge ' s failure to charge criminal trespass sua sponte constitut es plain er ror an d 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. F unde rbu rg , 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 j udge is not required to

" scour the statutes to determine if there are some uncharged offenses of which22 A

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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 n ot e rr by failing to charge the jury sua sponte on crimi nal trespass because t he evidence did not clearly indicate such an instruction was warranted. Defendant contends the State ' s case was entirely circumstantial and could have supported a fin ding that h e en ter ed 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 an d ot her materials and sell them to the salvage yard. Th e evidence did not clearly indicate that when defendant entered the armory , he did not intend to commit a crime in the armory.
D efendant further argues that the judge erred by failing to give the j ury a

c harge 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 i t must consider all three charg es s epa rately. He asse r ts that without th is instruction, the jury was likely to view all three offenses together. We do not agree

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Here, the trial judge instructed the jury that the State had to prove the elements of ea ch offense beyond a reasonable doub t a nd 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 prope r an d a more specific charge on multiple offenses was not required.
V. Defendant contends the State f ailed to present sufficient competent evidence showing that the armory sustained a pecuniary loss of $2000 or more

as a r esult of his actions

. He there fore co ntends th e 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, inc luding the dama gin g 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 knowing ly c aus es pecuniary loss of $2000

or more. "24 A

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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 a rmory . He further a rgues that McBr ide 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 repair s was a net opinion. However, a t trial, the State pr esented sufficient evidence to establish that defend ant had cau sed 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 ea ch item was
determined based on i ts market p rice

. In a ddition , 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 asbest os debris would be " greater than $2000. " Mc Brid e ' s testimon y as to the se costs was proper lay opinion testimony under Rule 701. N.J.R.E. 701. Moreover, b ecause McBride ' s opinion was based on his experience as an asbestos program manager , it was not an
i mprope r net opinion.25 A

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- 17T4 V I. Defend ant further arg ues that his sentence is excessive. He contend s resentencing is required because the trial judge failed to address certain mitigating factors, did not make appropriate findings on the aggravating factors,

er red by imposing multiple extended

- term sente nces , and errone ously 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 re viewing a s ente nce, 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 t he facts ' of t he 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, eve n if it wou ld h ave 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 St ate v. Jarbath , 11 4 N.J. 394, 400

- 01 (1989); Roth , 95 N.J. at 364

- 65).26 A

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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 crim inal record and th e 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 restitut ion 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 no n - exist ing mitigating factors. The judge gr anted the S tate ' 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. 1 7

- 02

- 0068 to three, concurrent, seven

- year ex tended term s 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 unlawfu l purpose) with count one (aggravated assault ), and
sent ence d 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 consecutive ly to the27 A

- 3216

- 17T4

sentences impose d on Indict ment No. 17

- 03

- 009 0. 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 n either caus ed n or 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, t he 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 gove rnment agency to pay to clean up the asbestos debris

. T he j udge 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, w e disagree. At sentencing, t he judge reviewed defendant ' s criminal record , which included prior convictions that made h im 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 att itude indicate d there was a risk he would commit another offense. The judge observed that defendant was a person who was " going to do28 A

- 3216

- 17T4

what he wants to do when he wants to do it. " The judge provided sufficient reasons for his findings.
In addition, defe ndant contends the judge erred by finding aggravating factor eleven. Citing State v. Dalziel , 182 N.J. 4 94, 502 (2005), defendant contends this factor should only be considered if the court is considering a non

custodial sentence. He notes that he wa s el igible for an extended

- term sentence, and he entered a plea to the second indictment under which the Stat e 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 b y finding aggravating factor eleven. Here,
t he 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 a ggravating fact ors and no mit igating 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 al so argues t hat the judge erre d by imposing three extended

term sentences on the charges in Indictment No. 17

- 02

- 0 0 68. W e agree. N.J.S.A. 2C:44

- 5(a)(2) provides that when a defendant is sentenced on multiple29 A

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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 asses sing defend ant fee s totaling $125 on count three o f Indictment No. 17

- 03

- 0090 because that count had been merged with count one for sentencing purposes. The State agree s . Therefore, on remand, the judge should amend the JOC on Indictment N o. 17

- 03

- 0090 and delete the $50 assessmen t for the Victim of Cr imes Compensation Board and the $75 Safe Neighborhood A ssessment 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 c orrected JO C on Indictment No . 17

- 03

- 0090, in accor dance with this opinion. In all other aspects, the JOCs are affirmed. Affirmed in part, and remanded in part. We do not retain jurisdiction.