               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION


                              SUPERIOR COURT OF NEW JERSEY
                              APPELLATE DIVISION
                              DOCKET NO. A-1486-15T4

STATE OF NEW JERSEY,               APPROVED FOR PUBLICATION

     Plaintiff-Respondent,             August 10, 2018

v.                                    APPELLATE DIVISION


GERALD HILL-WHITE, a/k/a
KEVIN FAYSON and GERALD W. HILL,

     Defendant-Appellant.
______________________________

          Submitted January 23, 20181 – Decided August 10, 2018

          Before Judges Reisner, Gilson, and Mayer.

          On appeal from Superior Court of New Jersey,
          Law Division, Mercer County, Indictment No.
          12-05-0475.

          Joseph E. Krakora, Public Defender, attorney
          for appellant (Stephen W. Kirsch, Assistant
          Deputy Public Defender, of counsel and on the
          briefs).

          Angelo J. Onofri, Mercer County Prosecutor,
          attorney    for    respondent     (Christopher
          Malikschmitt, Assistant Prosecutor, of counsel
          and on the briefs).

     The opinion of the court was delivered by

REISNER, P.J.A.D.


1
  After the case was calendared, we directed the parties to submit
supplemental briefs on the issue of multiplicity. Those briefs
were filed in June 2018.
     Defendant Gerald Hill-White appeals from his convictions for

ten counts of second-degree aggravated arson, N.J.S.A. 2C:17-

1(a)(1); one count of third-degree arson, N.J.S.A. 2C:17-1(b)(1);

and one count of second-degree burglary, N.J.S.A. 2C:18-2.2        He

does not appeal from his conviction for one count of third-degree

terroristic threats, N.J.S.A. 2C:12-3(a).    He also appeals from

the aggregate sentence of thirty-five years in prison, thirty of

which are subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2.

     Defendant presents the following points of argument:

          POINT I:   THE JUDGE'S ANSWER TO THE JURY'S
          LEGAL QUESTION ABOUT THE DIFFERENCE BETWEEN A
          KNOWING AND A RECKLESS STATE OF MIND WAS
          FUNDAMENTALLY FLAWED, INCLUDING TELLING THE
          JURY THAT THE TWO ARE "NOT VERY MUCH
          DIFFERENT." (NOT RAISED BELOW)

          POINT II:    A CRIMINAL ATTEMPT CAN ONLY BE
          COMMITTED WITH A PURPOSEFUL STATE OF MIND; YET
          THE JURY INSTRUCTION AND RE-INSTRUCTION ON
          BURGLARY DID NOT MAKE THAT POINT CLEARLY, THUS
          CONSTITUTING PLAIN ERROR; IF THE ARSON
          CONVICTIONS ARE REVERSED, THE MERGED BURGLARY
          CONVICTION MUST BE REVERSED AS WELL. (NOT
          RAISED BELOW)

          POINT III: THE ARSON CONVICTIONS SHOULD HAVE
          MERGED. (NOT RAISED BELOW)

          POINT IV:  CONSECUTIVE SENTENCES SHOULD NOT
          HAVE BEEN IMPOSED WHEN ONE OVERALL CRIMINAL


2
   The court dismissed one of the twelve arson counts for lack of
evidence of the victim's presence in the building during the fire.

                                2                           A-1486-15T4
           EPISODE OCCURRED; ALSO, TWO EXTENDED TERMS
           WERE ILLEGALLY IMPOSED.

      We reverse all but one of the arson convictions, because the

State violated the rule against multiplicity.                    Where a defendant

sets one fire, it is improper for the State to charge that

defendant with multiple counts of arson based on the number of

victims who were endangered by the fire.                  The State may address

the harm to the victims by charging the defendant with aggravated

assault,   attempted      murder,   or        other   applicable     offenses,    in

addition to the arson count.

      We affirm defendant's conviction on one count of second-

degree   arson.      We   also   affirm        the    burglary    conviction.    For

defendant's one second-degree arson conviction, we affirm the

extended-term sentence of twenty years in prison subject to NERA.

We also affirm the five-year consecutive sentence imposed for

terroristic threats. The additional sentences for arson are hereby

vacated.   We remand to the trial court for the limited purpose of

issuing an amended judgment of conviction consistent with this

opinion.

                                      I

      In light of the limited issues raised, it is not necessary

to   recount   the   trial   record       in   detail.      Defendant    does    not

challenge the weight of the evidence, which in this case was


                                          3                                A-1486-15T4
overwhelming.        The State's proofs included security videos of

defendant at the crime scene, expert testimony, DNA evidence, cell

phone   records      and    threatening   text    messages,   and     defendant's

statement      to     the    police.          Defendant's     trial     testimony

significantly contradicted his earlier statement, and even on a

cold record, his testimony could fairly be described as incredible.

     We summarize the State's proofs as follows.                 Defendant was

jealous and angry because his former girlfriend, K.G., had ended

their sexual relationship and had begun a sexual relationship with

defendant's brother.          In the days leading up to the fire, and on

the day of the fire, defendant sent K.G. text messages threatening

to kill her and telling her that she was "dead."               On the night of

November 3, 2011, defendant broke into the building where K.G.

lived in a third-floor apartment, and at a time when defendant's

brother was visiting K.G.         The break-in was captured on a security

video, which showed defendant with his shoes covered by plastic

bags and carrying a red can.

        On   the    third    floor,   defendant    poured   gasoline     directly

outside the door of K.G.'s apartment and then poured a line of

gasoline down the hallway toward the exit stairway door.                  He set

the gasoline on fire, left the building, and abandoned the red

gasoline can, a hat, and some other items in the bed of a nearby



                                          4                               A-1486-15T4
truck.    The police found those items; defendant's DNA was on the

hat.

       At the time defendant set the fire, he knew that other

apartments on the third floor were occupied by elderly and disabled

residents.     The   hallway      was    engulfed    in   smoke     and   flames,

temporarily    trapping     the     residents       in      their   apartments.

Fortunately, the fire caused the building's sprinkler system to

activate, and the flames were quickly extinguished.

                                    II

       Defendant's first two arguments merit little discussion. See

R.   2:11-3(e)(2).     We   find     no     plain   error    with    respect     to

defendant's first point, asserting that the trial judge erred in

responding to the jury's question about the difference between

"knowing" and "reckless."         The judge did remark that the knowing

and reckless states of mind were "not very much different."

However, viewed in context, that comment would not have confused

the jury, because the judge also explained in detail and correctly,

the difference between the two states of mind.                 In light of the

record, we find no plain error. See State v. Prall, 231 N.J. 567,

587-88 (2018).

       Defendant next argues, for the first time on appeal, that the

judge erred in charging the jury as to the required state of mind



                                        5                                 A-1486-15T4
for burglary.3   We agree, but find no plain error. See R. 1:7-2;

R. 2:10-2.   Second-degree burglary requires proof that defendant

entered a structure without permission, with the purpose to commit

an offense therein, and that during the course of the burglary,

defendant either purposely, knowingly or recklessly inflicted

bodily injury on a person, or attempted to inflict injury.            See

N.J.S.A. 2C:18-2.   An attempt requires purposeful conduct.           See

State v. Robinson, 136 N.J. 476, 485 (1994).

     As defendant correctly contends, multiple times during the

charge, the judge misstated the standard, telling the jury that

defendant must have "purposely, knowingly or recklessly inflicted

or attempted to inflict bodily injury" on the victims.         However,

in this case, there was overwhelming evidence that during the

burglary, defendant purposely attempted to inflict bodily injury

on one or more of the residents.       He not only entered the building,

but he poured gasoline outside K.G.'s door and set it alight.           On

this record, there is no possibility that the error produced an

unjust result. See R. 2:10-2; Prall, 231 N.J. at 587-88. We affirm

the burglary conviction.


3
   The trial court merged the burglary conviction with the arson
convictions, a disposition from which the State has not cross-
appealed. Defendant states that his argument on this point would
only be relevant if all of the arson convictions were reversed and
the burglary conviction were unmerged from the arson convictions.
Nonetheless we address the issue.

                                   6                             A-1486-15T4
                                  III

     Next we address the issue defendant characterizes as merger,

but which we conclude is more properly addressed as multiplicity,

or improper charging of multiple counts of an offense when the

facts asserted would only support a conviction for one offense.

     A. The Doctrines of Merger and Multiplicity

     "Merger is based on the principle that 'an accused [who] has

committed only one offense . . . cannot be punished as if for

two.'" State v. Miller, 108 N.J. 112, 116 (1987) (quoting State

v. Davis, 68 N.J. 69, 77 (1975)) (alteration in original); see

N.J.S.A. 2C:1-8(a) (defining when merger is statutorily required);

State v. Robinson, 439 N.J. Super. 196, 200 (App. Div. 2014)

(describing the courts' more flexible non-statutory approach).

"[W]hat is disallowed is double punishment for the same offense."

Davis, 68 N.J. at 77. Merger "implicates a defendant's substantive

constitutional rights."       State v. Tate, 216 N.J. 300, 302 (2013)

(quoting   Miller,   108   N.J.   at   116).       Our     Supreme   Court   has

recognized   that    "[n]ot    only        does   merger     have    sentencing

ramifications, it also has a measurable impact on the criminal

stigma that attaches to a convicted defendant."                Tate, 216 N.J.

at 302-03 (quoting State v. Rodriguez, 97 N.J. 263, 271 (1984)).

     With respect to some offenses, the Legislature may "split a

single, continuous transaction into stages, elevate each stage to

                                       7                                A-1486-15T4
a consummated crime, and punish each stage separately." Davis, 68

N.J. at 78; see id. at 78-80; see also Tate, 216 N.J. at 312 ("The

cases not requiring merger have had clear statutory differences

illustrating    legislative     intent     to   fractionalize   a   course    of

conduct.").     However, "[w]ere the legislature, in attempting to

create separate crimes, to do no more than simply apply different

labels to what is in fact the same charge, it would plainly exceed

its authority." Davis, 68 N.J. at 80.

     Where merger is appropriate because the defendant has been

convicted of two separate crimes arising from one act, the court

may, despite the merger, impose "the more severe aspects of the

sentence for each offense." Robinson, 439 N.J. Super. at 202;                see

State v. Pennington, 273 N.J. Super. 289, 295 (App. Div. 1994)

("Convictions    merged   for    the     purpose    of   sentencing   are    not

extinguished" and may be unmerged if the conviction into which

they were merged is reversed.).

     On the other hand, merger presupposes the existence of at

least two valid convictions.           See N.J.S.A. 2C:1-8(a) (prefacing

the statutory merger doctrine with the requirement that "the same

conduct . . . may establish the commission of more than one

offense"). If a defendant cannot lawfully be convicted of an

offense, the invalid conviction must be reversed, rather than

merged into another, valid conviction.             See Rodriguez, 97 N.J. at

                                       8                               A-1486-15T4
271 (citing State v. Landeros, 32 N.J. Super. 168, 172 (App. Div.

1954), rev'd on other grounds, 20 N.J. 69 (1955)).

      In   contrast   to   merger,   the   rule   against   multiplicity

prohibits the State from charging a defendant with multiple counts

of the same crime, when defendant's alleged conduct would only

support a conviction for one count of that crime. "[A] defendant

may not be tried for two identical criminal offenses in two

separate counts based upon the same conduct."         State v. Salter,

425 N.J. Super. 504, 515-16 (App. Div. 2012) (citing State v.

Widmaier, 157 N.J. 475, 498-90 (1999)). Thus, "[m]ultiplicity

occurs when a single offense is charged in several counts of an

indictment." State v. Evans, 189 N.J. Super. 28, 31 (Law Div.

1983).4

      The bar against multiplicity relates to the Double Jeopardy

principle prohibiting "multiple punishments for the same offense."

Salter, 425 N.J. Super. at 515-16 (quoting Widmaier, 157 N.J. at

489-90). While multiplicity begins as a charging error, it can

obviously result in a defendant being improperly convicted of

multiple crimes, when he or she only committed one crime.         Evans,

189 N.J. Super. at 31-32.        Multiplicity may also implicate a

defendant's right to a fair trial, because trying a defendant for


4
    Evans is not binding on us, but we find it persuasive.


                                     9                           A-1486-15T4
multiple counts of the same offense, when only one offense was

committed, may prejudice the jury.5   See Evans, 189 N.J. Super. at

31-32 (quoting United States v. Reed, 639 F.2d 896, 904 (2d Cir.

1981)).

     A court may remedy multiplicity by setting aside all but one

of the multiple convictions after the verdict, but the better

approach is to address the issue before trial by dismissing the

improperly duplicative counts of the indictment.     See Evans, 189

N.J. Super. at 32.

     B. The Arson Statute

     In order to determine whether the State may charge a defendant

with multiple counts of arson without violating the rule against

multiplicity, we must construe the arson statute.

     In determining the meaning of a statute, our goal is "to give

effect to the intent of the Legislature."    State v. Morrison, 227

N.J. 295, 308 (2016) (quoting Maeker v. Ross, 219 N.J. 565, 575

(2014)).   We first examine the words of the statute and attribute

to them their ordinary meaning.     State v. Malik, 365 N.J. Super.


5
   While we find improper multiplicity in the arson charges and
convictions here, we reject defendant's argument that the improper
multiple charges warrant reversing his arson conviction altogether
due to jury prejudice. As discussed earlier in this opinion, the
evidence against defendant was overwhelming; he would have been
convicted of second-degree arson, even if he had been tried on one
count of arson instead of twelve counts. See Prall, 231 N.J. at
587-88.

                               10                           A-1486-15T4
267, 274 (App. Div. 2003).            "[I]f the language is plain and its

meaning clear, the inquiry ends there," and we enforce the statute

as written.       Ibid.

       If   the   words    of   the   statute      are    not    clear,   or    if   the

"statutory        language         yields        more     than     one       plausible

interpretation," we consider extrinsic evidence to decipher the

Legislature's intent.            State v. Shelley, 205 N.J. 320, 323-24

(2011) (quoting DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)).

"Such extrinsic sources, in general, may include the statute's

purpose,     to   the     extent    that    it    is    known,   and   the     relevant

legislative history."           State v. Drury, 190 N.J. 197, 209 (2007).

We consider words and phrases within the statute "not only in

their own contextual setting, but in relation to surrounding

provisions in the statutory scheme."                    Malik, 365 N.J. Super. at

276.

       We construe the statute in a sensible manner, and consistent

with its purpose, avoiding a construction that will lead to an

absurd result.      Morrison, 227 N.J. at 308.             "When interpreting the

intent of the Legislature, any unreasonable construction must be

rejected when a reasonable reading is apparent."                   State v. Carlos,

187 N.J. Super. 406, 414 (App. Div. 1982).                        Where a criminal

statute is subject to a broad and a narrow interpretation, the

court is "constrained to apply the narrow one."                        Morrison, 227

                                           11                                   A-1486-15T4
N.J. at 314 (citing Shelley, 205 N.J. at 328); see also Drury, 190

N.J. at 209-10 ("if plain meaning and extrinsic sources" do not

yield a clear answer, the court must resolve ambiguity in a

criminal statute in favor of the defendant).

     The arson statute divides the crime into two categories

(aggravated arson and arson), with gradations ranging from first

to fourth degree depending on the defendant's mental state, the

type of property burned, the purpose of the fire, and the danger

to people.   N.J.S.A. 2C:17-1.   Notably, only some forms of arson

include danger to others as an element of the offense.    With the

exception of arson for hire, all other types of arson require

damage to property by burning or explosion.

     Second-degree aggravated arson is defined as starting a fire

or causing an explosion, whether on the actor's property or someone

else's property:

               (1) Thereby purposely or knowingly
          placing another person in danger of death or
          bodily injury; or

               (2) With the purpose of destroying a
          building or structure of another; or

               (3) With the purpose of collecting
          insurance for the destruction or damage to
          such property under circumstances which
          recklessly place any other person in danger
          of death or bodily injury; or

               (4) With the purpose of destroying or
          damaging a structure in order to exempt the

                                 12                         A-1486-15T4
          structure, completely or partially, from the
          provisions of any State, county or local
          zoning, planning or building law, regulation,
          ordinance or enactment under circumstances
          which recklessly place any other person in
          danger of death or bodily injury; or

               (5) With the purpose of destroying or
          damaging any forest.

          [N.J.S.A. 2C:17-1(a).]

     Third-degree arson consists of purposely starting a fire or

causing an explosion, whether on the actor's property or another's:

               (1) Thereby recklessly placing another
          person in danger of death or bodily injury;
          or

               (2) Thereby recklessly placing a building
          or structure of another in danger of damage
          or destruction; or

               (3) With the purpose of collecting
          insurance for the destruction or damage to
          such property; or

               (4) With the purpose of destroying or
          damaging a structure in order to exempt the
          structure, completely or partially, from the
          provisions of any State, county or local
          zoning, planning or building law, regulation,
          ordinance or enactment; or

               (5) Thereby recklessly placing a forest
          in danger of damage or destruction.

          [N.J.S.A. 2C:17-1(b).]

     Fourth-degree arson occurs when a person has a duty to report

or extinguish a fire and he or she fails to comply with that duty.

N.J.S.A. 2C:17-1(c).   The statute provides:

                               13                           A-1486-15T4
          A person who knows that a fire is endangering
          life or a substantial amount of property of
          another and either fails to take reasonable
          measures to put out or control the fire, when
          he can do so without substantial risk to
          himself, or to give prompt fire alarm, commits
          a crime of the fourth degree if:

               (1) He knows that he is under an
          official, contractual, or other legal duty to
          prevent or combat the fire; or

               (2)   The  fire   was  started, albeit
          lawfully, by him or with his assent, or on
          property in his custody or control.

          [N.J.S.A. 2C:17-1(c).]

     While a few forms of arson include danger to a person as an

element of the offense (i.e., setting fire to purposely place

another in danger; setting fire to collect insurance proceeds or

evade regulations while recklessly placing another in danger; and

purposely setting fire that recklessly endangers others), most

forms of arson require no proof of harm or danger to others (i.e.,

setting fire to destroy a structure or forest; recklessly placing

a structure or forest in danger of damage or destruction; setting

fire to collect insurance proceeds or to evade regulations; failing

to report a fire; arson for hire; and, in some instances, setting

fire to a place of worship).

     Notably, the Legislature reserved the most serious punishment

for arson offenses that do not necessarily endanger human life.

First-degree   arson   comprises   arson   for   hire   and   arson   of   a

                                   14                             A-1486-15T4
religious structure.   Arson for hire does not require proof either

that a fire was actually set or that any person was harmed or

endangered. See State v. Allison, 208 N.J. Super. 9, 25 (App. Div.

1985).

          Any person who, directly or indirectly, pays
          or accepts or offers to pay or accept any form
          of consideration including, but not limited
          to, money or any other pecuniary benefit,
          regardless of whether any consideration is
          actually exchanged for the purpose of starting
          a fire or causing an explosion in violation
          of this section commits a crime of the first
          degree.

          [N.J.S.A. 2C:17-1(d).]

Arson of a religious structure encompasses some acts that require

danger to human life and some that do not; the common denominator

is that the offense must target a public house of worship:

          Notwithstanding the provisions of any section
          of this Title to the contrary, if a person is
          convicted pursuant to the provisions of
          subsection a., b. or d. of this section and
          the structure which was the target of the
          offense was a church, synagogue, temple or
          other place of public worship, that person
          commits a crime of the first degree . . . .

          [N.J.S.A. 2C:17-1(g).]

     Although arson is classified in the Code as a crime against

property, we may not draw conclusions from its placement in the

Code. See N.J.S.A. 2C:1-1(f) ("[N]o implication or presumption of

a legislative construction is to be drawn" from the "classification


                                15                           A-1486-15T4
and arrangement of the several sections of the code."). On the

other hand, based on a common sense reading of the statute as a

whole, we conclude that the Legislature deemed arson as an offense

against property, the gravamen of which is, in general, setting a

fire. See State v. Olivero, 221 N.J. 632, 639 (2015) ("Statutory

language   is   to   be   interpreted    in    a    common    sense    manner    to

accomplish the legislative purpose.").

     In discussing the legislative history of the Criminal Code,

which consolidated all offenses into Title 2C in 1978, the New

Jersey Criminal Law Revision Commission wrote that "the words

'starts a fire or causes an explosion' . . . identify the kind of

behavior which is the subject of" N.J.S.A. 2C:17-1.                     II Final

Report of the N.J. Criminal Law Revision Comm'n, The N.J. Penal

Code:   Commentary    §   2C:17-1   at   205       (1971)    (N.J.    Penal   Code

Commentary).    Further, with the exception of arson for hire and

failure to report an arson, all other types of arson are "complete

as soon as the fire [is] started."       State v. Lewis, 223 N.J. Super.

145, 152 (App. Div. 1988).

     The development of arson from common law to its current

statutory form also supports a finding that arson is a crime

against property.     At common law, arson was defined as the willful

and malicious burning of the house or adjacent structures of

another.    State v. Fish, 27 N.J.L. 323, 324 (1859); State v.

                                    16                                    A-1486-15T4
Arenas, 363 N.J. Super. 1, 6 (App. Div. 2003).                    The offense was

"against the possession of another," and the purpose of it was to

protect the person in possession of the house.                    Fish, 27 N.J.L.

at 324;    accord State v. Midgeley, 15 N.J. 574, 576 (1954) ("The

common    law   felony   [of   arson]    was    a    crime    against     another's

habitation, not against another's property but against his life

and safety at his place of abode, that is, his dwelling house.").

     Over time, the definition of arson changed to eliminate the

requirement that the property be within another's possession and

to add other types of property, such as ships, buildings other

than houses, land, trees, crops, cranberry bogs, fences, and

lumber. See Arenas, 363 N.J. Super. at 6; Midgeley, 15 N.J. at

578; N.J. Penal Code Commentary at 204.                 In its current form,

arson     proscribes     the   burning     of       property,     regardless       of

possession, and in most cases, regardless of whether any person

is harmed or threatened.        N.J.S.A. 2C:17-1.        Where it is included,

danger to others relates to the degree of the offense.                           See

N.J.S.A. 2C:17-1(a)(1), (3), and (4) (second-degree aggravated

arson); N.J.S.A. 2C:17-1(b)(1) (third-degree arson).

     C.    Comparison to Other Statutes

     In construing the arson statute, it is also helpful to

consider    the   wording      and   interpretation          of   other    statutes

addressing crimes against property and crimes against persons.

                                      17                                    A-1486-15T4
     The State argues that because second and third degree arson,

as defined in N.J.S.A. 2C:17-1(a)(1) and (b)(1), include placing

another person in danger, the statute should be construed as

permitting multiple charges of arson if multiple victims are

endangered.   However, when we consider other statutes that include

harm to persons as an element, we find the State's argument

unpersuasive.

     We begin by considering the way our courts have construed the

robbery statute.   Theft can be transformed into robbery, if the

thief threatens someone with bodily injury or "[i]nflicts bodily

injury or uses force" on another person, while committing or

attempting to commit the theft or while escaping from the scene.

N.J.S.A. 2C:15-1(a). Arguably, this portion of the robbery statute

was intended to prevent and punish violence against theft victims

or bystanders. However, that does not mean that a thief can be

charged with multiple counts of robbery if he or she injures or

threatens to injure multiple people while committing one theft.

See State v. Sewell, 127 N.J. 133, 137-38 (1992).

     In Sewell, the Court held that a defendant who injured several

bystanders after committing one theft could only be convicted of

one count of robbery.    Ibid.   Likewise, in State v. Lawson, 217

N.J. Super. 47, 51 (App. Div. 1987), we held that the robbery

statute cannot "sustain two robbery convictions for assaults upon

                                 18                         A-1486-15T4
two victims" while fleeing after a theft "from a third victim."

See   also    Carlos,     187    N.J.   Super.    at    406,    415-16   (where   the

defendant committed theft against two victims, he could only be

convicted of two counts of robbery even though he threatened four

people).

      It is likewise useful to consider the burglary statute, which

is also graded based on harm to victims.                   Burglary consists of

entering a structure with the purpose to commit an offense therein.

N.J.S.A. 2C:18-2.         Burglary is a third-degree crime, unless the

actor commits or attempts to commit certain additional acts in the

course of the burglary.           For example, burglary is a second-degree

crime if in the course of committing the offense, the actor

"purposely, knowingly or recklessly inflicts, attempts to inflict

or threatens to inflict bodily injury on anyone[.]"                        N.J.S.A.

2C:18-2(b).         However, that does not mean that one burglary can be

charged as multiple burglaries if the actor harms or menaces

multiple people in the course of committing the burglary.                         See

Lewis, 223 N.J. Super. at 153 (stating that a second-degree

burglary      conviction        would   not     merge    with     convictions     for

aggravated manslaughter and other offenses, because the crime of

burglary "was completed upon entry" into the building).

      We     also    glean   insight     into    the     multiplicity     issue    by

considering statutes that unambiguously address crimes against the

                                         19                                 A-1486-15T4
person.   The statutes prohibiting assault and homicide primarily

grade offenses against persons based on the degree of harm the

actor causes or attempts to cause to the victim.       For example,

simple assault, a disorderly persons offense, is defined, in part,

as attempting to cause or causing "bodily injury to another,"

N.J.S.A. 2C:12-1(a)(1), while aggravated assault, a second, third

or fourth-degree offense, is defined, in part, as causing or

attempting to cause "serious bodily injury to another." N.J.S.A.

2C:12-1(b)(1).   Portions of the grading section provide that

aggravated assault is a higher degree crime if the victim is

actually injured.   See N.J.S.A. 2C:12-1(b).      Murder and felony

murder are first-degree crimes requiring proof that the actor

killed the victim or that the victim was killed while the actor

was engaged in committing or attempting to commit certain other

enumerated offenses.   See N.J.S.A. 2C:11-3(a).

     By contrast, second and third-degree arson do not require

proof that any victim was actually injured or killed, and the

offenses are not graded differently depending on whether victims

were threatened with injury, serious injury, or death.     In fact,

the first-degree arson offenses either require no proof that anyone

was endangered, or turn on the use of the structure rather than

the degree of danger to the victims.      See N.J.S.A. 2C:17-1(d)

(arson for hire); N.J.S.A. 2C:17-1(g) (arson of a place of public

                               20                           A-1486-15T4
worship).      The Legislature carefully crafted the statutes on

assault and murder, to differentiate the grading and the punishment

depending on the degree of harm or attempted harm to the victim.

The arson statute is not similarly crafted, suggesting that its

primary focus is not on punishing for the harm caused to each

individual victim, but on punishing for the act of setting the

fire.

       Because the arson statute does not distinguish between the

type    or   degree   of   harm   to   the   person,   under   the    State's

interpretation, someone who set a fire for the purpose of slightly

injuring five people could be punished more harshly than someone

who set a fire for the purpose of killing one person. This

anomalous result suggests that the State's construction of the

arson statute is contrary to the Legislature's intent.               It is one

thing to punish a crime – such as theft, burglary, or arson – more

harshly if people are endangered or hurt while the crime is being

committed, and quite another thing to permit multiple charges and

multiple punishments without differentiating among the degrees of

harm caused to the victims.            We conclude that the Legislature

intended each act of fire-setting to be charged and punished as

one crime, and intended that the injury or intended injury to each




                                       21                              A-1486-15T4
victim be charged and punished using the appropriate statutes

governing assault or homicide.6

     All of the New Jersey published opinions we have found reflect

that approach to charging.        The State has not cited to any

published opinion of our courts in which a defendant who set one

fire was charged with multiple counts of arson.     For example, in

State v. Craig, 237 N.J. Super. 407, 409 (App. Div. 1989), and

Lewis, 223 N.J. Super. at 145, the defendant set one fire that

killed or injured multiple people.     In those cases, the defendant

was charged with one count of arson and multiple counts of murder

or aggravated assault. See also Prall, 231 N.J. at 575.    In Craig,

the defendant was convicted of one count of arson and multiple

counts of manslaughter. 237 N.J. Super. at 409. The issue was

whether the defendant's several manslaughter convictions should

merge into one manslaughter conviction; we held they did not merge.

Id. at 413.

     In Lewis, the issue was whether the convictions for arson and

aggravated assault should have merged with the conviction for

aggravated manslaughter.   223 N.J. Super. at 151-53.     As in this

case, Lewis set one fire in an apartment building, although in



6
   We do not intend to address the situation where a defendant
sets fire to one building, or unit, and the fire spreads to another
building or unit. That issue is not before us.

                                  22                         A-1486-15T4
that case, the fire also caused the death of one victim and serious

injuries to several others.   We rejected Lewis's merger argument,

reasoning that

          the legislature designated fire setting
          separately from other forms of assaultive
          conduct,   with   a   "specific    intent  to
          fractionalize the offense."     The arson was
          complete as soon as the fire was "started."

          [Lewis, 223 N.J. Super. at 152      (citations
          omitted).]

     Lewis also reasoned that the legislative history of the arson

statute indicated that the Legislature addressed the issue of

arson's consequences by grading it as a more serious crime if it

caused danger to persons:

          The Criminal Law Revision Commissioners
          originally recommended that the arson statute
          not grade the offense according to its danger
          to persons because "[t]o make any dangerous
          burning a crime of the second degree would be
          inconsistent with Sections 2C:12-1 . . . ."
          relating to assault. The legislature's refusal
          to adopt this recommendation is indicative of
          its intent to punish arson separately based
          upon the risk that fire presents.

          [Id. at 152-53 (citations omitted).]

     In other words, instead of classifying arson as a form of

assault, the Legislature classified it as a property crime, based

on setting a fire. Ibid.      But, the Legislature chose to grade

fire-setting more seriously if it endangered human life.         See

Senate Judiciary Committee Statement to Senate, No. 738 (May 15,

                                23                          A-1486-15T4
1978). The Legislature also intended to fractionalize arson, in

the sense that a defendant can be charged and punished for setting

the fire, in addition to being charged and punished for assault

and murder based on the injury or death caused by the fire.                  See

Miller, 108 N.J. at 119 (addressing fractionalizing of offenses);

State v. Mirault, 92 N.J. 492, 505-06 (1983).                Thus, an arson

conviction does not merge with accompanying assault or homicide

convictions.     Lewis, 223 N.J. Super. at 152.            Nonetheless, that

does not mean that a defendant can be charged with multiple counts

of arson for setting one fire.

     The State relies on the following language from Craig: "the

view that there are as many crimes committed as there are victims

finds   overwhelming     support    in   other    jurisdictions."    237    N.J.

Super. at 416.    However, that language refers to multiple counts

of assault or homicide, not multiple counts of arson.               Ibid.    Two

of the cases that Craig cited in support of the quoted language

involved arson.       In both cases, a defendant was charged with one

count   of   arson,    and    multiple   counts    of   attempted   murder    or

aggravated assault.          See Neal v. State, 357 P.2d 839, 841 (Cal.




                                      24                               A-1486-15T4
1960); State v. Rieck, 286 N.W.2d 724, 725 (Minn. 1979). We cannot

accept the State's argument.7

     Although it is not binding on us, we find support for our

conclusion in Handy v. State, 803 A.2d 937 (Del. 2002), decided

by the Supreme Court of Delaware.     In Handy, the State charged the

defendant with multiple counts of attempted murder and multiple

counts of arson, for setting one fire that endangered several

victims.   Id. at 939.   In construing Delaware's arson statute, the

court traced the history of the statute back to the common law and

concluded that historically, arson statutes contemplated that

arson should be "one single, serious charge based [on] the fact

that fire is inherently, and unpredictably, destructive." Id. at

943. The court held that "a charge of multiple counts of first

degree arson for multiple intended victims based on a single fire

constitutes an unconstitutional multiplicity prohibited by the

Double Jeopardy Clause." Id. at 939.8       The court reasoned that


7
   The State's reliance on State v. Carey, 168 N.J. 413 (2001),
and State v. Molina, 168 N.J. 436 (2001), is misplaced.       Those
cases involved assault, not arson, and did not address multiplicity
of charges. Rather, the cases addressed the appropriateness of
imposing consecutive sentences for assault by auto, where multiple
victims were killed or injured in a single drunk driving accident.
8
  The courts of Idaho and Texas have construed their states' arson
statutes the same way. State v. Payne, 3 P.3d 1251, 1254 (Idaho
2000) ("Although Payne's act of arson was enhanced to aggravated
arson by virtue of the deaths of two persons, it does not follow


                                 25                           A-1486-15T4
"the basis of the crime of arson is directed to the property,"

while the presence of endangered inhabitants was "one element in

fixing the degree of arson."   Ibid.

     The court also reasoned that, because the Delaware statute

was phrased in terms of a fire creating the danger of harm, as

opposed to actual harm, to one or more persons, permitting multiple

charges of arson based on setting one fire could lead to absurd

results.

           The logical extension of the State's argument
           is that, in allowing multiple counts of arson
           for multiple intended victims, there could be
           some absurd outcomes . . . . Suppose, for
           example, that a defendant sets a fire in a
           closet next to a crowded banquet hall with 500
           patrons, a fire alarm sounds, all file out
           quietly and uneventfully, and the defendant
           is captured and charged. May the State charge
           the defendant with 500 counts of arson? . . .
           There is nothing in the Delaware Code to
           indicate that the General Assembly intended
           500 charges of arson in that situation, rather
           than one count to reflect the inherently
           dangerous nature of the offense of arson.

            . . . .


that Payne may be convicted for two acts of arson when there was
only one fire."); Lozano v. State, 860 S.W.2d 152, 155-56 (Tex.
App. 1993) (Although injury to the victims increased the degree
of the arson, "appellant committed a single offense, allowing a
single unit of prosecution, when he committed arson by setting a
single house on fire.").     We agree with Handy that the one
published case reaching a different result contains little
rationale and is far less persuasive than the lengthy dissent in
that case. See People v. Hanks, 528 N.E.2d 1044 (Ill. App. Ct.
1988).

                                26                          A-1486-15T4
                The fact that the Delaware first degree
           arson provision focuses on the intended harm
           to third parties, not the actual harm,
           demonstrates the vulnerability of the State's
           argument . . . . It may not be so easy to
           identify all those to whom a defendant
           intended harm, or those whose presence is a
           reasonable possibility.

           [Id. at 945.]

      The court reasoned that the State had other "ways to seek

additional punishment" for persons who start fires intending to

harm multiple victims.     Ibid.    "Furthermore, should an arsonist

cause actual harm or death, substantive charges based on that harm

are available." Ibid. The court noted that Handy had been charged

and convicted of attempted murder, in addition to arson.           Ibid.

      As in Handy, Craig, and Lewis, in this case, the State could

have charged defendant with one count of arson and multiple counts

of   attempted   murder.   However,     the   State   instead   improperly

multiplied the one act of arson into an indictment charging twelve

counts of arson, and defendant was improperly convicted of eleven

counts of arson instead of only one count. As a result, we reverse

all but one of the arson counts, and we vacate the sentences

imposed as to those reversed convictions.         We affirm defendant's

conviction of one count of second-degree arson.




                                   27                              A-1486-15T4
                                    IV

      Most of defendant's sentencing arguments are rendered moot

by our opinion reversing the multiple arson convictions.              However,

we   briefly    address   the   remaining    sentences.   We   find    nothing

excessive or otherwise erroneous in the twenty-year NERA sentence

imposed for the arson conviction.              Due to his prior criminal

record, defendant was eligible for an extended term sentence for

the second-degree arson conviction.            In imposing that sentence,

the trial court properly considered, as aggravating factors, the

number of victims, their vulnerability, and the heinous nature of

the crime.      See N.J.S.A. 2C:44-1(a)(1) (nature and circumstances

of the offense); N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness

of harm).      The crime was particularly heinous because many of the

inhabitants were elderly or disabled, and defendant knew of their

vulnerable condition. Moreover, defendant set the fire in a manner

calculated to trap K.G. in her apartment and cause her death.                 We

affirm the twenty-year NERA sentence for the second-degree arson

conviction.

      After reviewing the sentencing transcript, we find that the

trial court gave an adequate statement of reasons for imposing a

consecutive five-year term for the terroristic threats conviction.

See State v. Yarbough, 100 N.J. 627, 643-45 (1985).                   We find

nothing     conscience-shocking     or      otherwise   excessive     in    the

                                     28                                A-1486-15T4
aggregate sentence of twenty-five years in prison.   See State v.

Miller, 205 N.J. 109, 128 (2011); State v. Roth, 95 N.J. 334, 364-

65 (1984).   As previously noted, we remand to the trial court for

the limited purpose of entering an amended judgment of conviction.

     Affirmed in part, reversed in part, remanded in part. We do

not retain jurisdiction.




                                29                         A-1486-15T4
