                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3216-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL KAPROSCH,

     Defendant-Appellant.
_______________________

                    Argued January 28, 2020 – Decided March 6, 2020

                    Before Judges Yannotti, Currier and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Sussex County, Indictment Nos. 17-02-0068
                    and 17-03-0090.

                    Cody Tyler Mason, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Cody Tyler Mason, of
                    counsel and on the brief).

                    Shaina Brenner, Assistant Prosecutor, argued the cause
                    for respondent (Francis A. Koch, Sussex County
                    Prosecutor, attorney; Shaina Brenner, of counsel and on
                    the brief).
PER CURIAM

      Defendant was tried before a jury and found guilty of burglary and other

offenses. Thereafter, defendant pled guilty to charges under a separate

indictment, and the trial court sentenced defendant to an aggregate ten-year term

of incarceration. Defendant appeals from judgments of conviction (JOC) dated

February 20, 2018.      For the reasons that follow, we affirm defendant's

convictions, but remand the matter to the trial court for resentencing on

Indictment No. 17-02-0068 and entry of a corrected JOC on Indictment No. 17-

03-0090.

                                       I.

      On February 16, 2017, a Sussex County grand jury returned Indictment

No. 17-02-0068, charging defendant with third-degree burglary, N.J.S.A. 2C:18-

2(a)(1) (count one); third-degree theft by unlawful taking of movable property

having a value of more than $500 but less than $75,000, N.J.S.A. 2C:20 -3(a)

(count two); and third-degree criminal mischief by damaging property and

causing a pecuniary loss of more than $2000, N.J.S.A. 2C:17-3(a)(1) (count

three).

      On March 2, 2017, a grand jury in Sussex County returned Indictment No.

17-03-0090, charging defendant with third-degree aggravated assault, N.J.S.A.


                                                                         A-3216-17T4
                                       2
2C:12-1(b)(2) (count one); fourth-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(d) (count two); and possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d) (count three).

      In October 2017, defendant was tried before a jury on the charges in

Indictment No. 17-02-0068.      At trial, Nicholas DellaFave testified that on

August 10, 2016, he was at the National Guard Armory in Newton to collect soil

and groundwater samples as part of an environmental investigation. At the end

of the day, DellaFave noticed a man in the woods on the property. He called the

police.

      Officer Joseph D'Annibale of the Newton Police Department (NPD)

responded to the scene. He entered the woods and saw defendant, whom he

knew by name from "prior dealings" with him through work. D'Annibale told

defendant he was not allowed on the property.          Defendant gathered his

belongings and left.

      Later, after D'Annibale departed, DellaFave noticed the door to the

armory's boiler room was not secured. He entered the boiler room and saw that

"pipes had been cut and removed off the boiler, and [pipe] insulation [was] lying

all over the floor." He again called the police.




                                                                         A-3216-17T4
                                        3
      D'Annibale returned to the armory and entered the boiler room.           He

observed that pipes and radiators were missing from a room in the armory. He

saw debris on the floor, including beer cans, cigarettes, cigarette packages, and

garbage. D'Annibale also observed a shoe or boot print on the floor.           He

concluded that the armory had been burglarized, and he reported the incident to

his detective sergeant at the NPD.

      Detective Steven Van Nieuwland of the NPD was told about the burglary.

On August 16, 2016, Van Nieuwland and another detective went to the armory

to determine how the intruder may have entered the building. The detectives

discovered a "possible point of entry," specifically unlocked double doors facing

a wooded area. Van Nieuwland took photographs of the scene.

      According to Van Nieuwland, the photographs accurately depicted what

he observed when he took the photos. They showed "asbestos insulation laying

on the floor from [the] recovered copper piping"; "brackets on the wall with the

radiators missing"; a pack of "Eagle 20 cigarettes"; and "boot prints that [were]

almost like a trail . . ." He stated that "obviously, somebody was walking in the

same path from the main part of the building through the day and out the door. "

      Van Nieuwland said that after he took the photos, he and D'Annibale went

to George's Salvage Company (GSC), which is located directly across the street


                                                                         A-3216-17T4
                                       4
from the armory, to ask if anyone had brought in copper pipes recently. At GSC,

Van Nieuwland obtained documents, which indicated that defendant sold copper

and brass to the salvage yard on seventeen dates between July 13, 2016 and

August 16, 2016.

      After Van Nieuwland obtained the documents from GSC, he began

looking for defendant. He located him behind a baseball field in a park adjacent

to the salvage yard and the armory. He asked defendant to accompany him to

the police station for questioning.

      Van Nieuwland testified that defendant had in his possession "a pair of

work boots that were consistent with the boot prints that were found in the

armory." According to Van Nieuwland, defendant also was in possession of a

pack of Eagle 20 cigarettes. Van Nieuwland arrested defendant.

      Thomas Barry was employed by GSC as an operations manager during the

summer of 2016. He testified that GSC has two scales, which are used to weigh

materials brought in for sale. He noted that there was a camera at the door,

where GSC paid for the materials. Barry said a photo identification (ID), such

as a driver's license, is required for certain purchases. Barry explained that GSC

has a computer system that is used to check the IDs. The computer prints out

receipts and maintains copies of the IDs.


                                                                          A-3216-17T4
                                        5
      Barry said defendant was at GSC in July and August 2016. Based on

company records, Barry stated that defendant's first transaction at GSC took

place on July 13, 2016.      The prosecutor presented Barry a receipt and a

photograph for that transaction. He testified that the picture shows defendant at

the front desk and the receipt indicates GSC paid defendant $80.50 for copper

tubing and brass.

      The prosecutor then presented Barry with a receipt and a photograph

pertaining to a transaction on July 15, 2016. The photo shows defendant at the

window. The receipt indicates that GSC paid defendant $70 for copper tubing

and a brass-copper mix. Barry testified that the company's records show that on

July 18, 2016, GSC paid defendant $90.15 for copper aluminum fins, brass, and

copper.

      Another receipt indicates that on July 19, 2016, GSC paid defendant

$119.40 for copper, brass, and copper-aluminum fins. According to Barry, the

metal fins are typically used in "very large radiators" for heating. Barry testified

that the company's transaction logs indicate that defendant sold materials to GSC

seventeen separate times between July and August 2016, and GSC paid

defendant a total of $1489.15. These materials included copper, brass valves,

brass elbows, copper aluminum fins, stainless steel, and mixed brass and copper.


                                                                            A-3216-17T4
                                         6
      Barry also testified that when the burglaries took place, GSC had

surveillance cameras. Video footage from the surveillance cameras was played

for the jury. Barry testified that the footage depicts defendant coming from the

woods in the direction of the armory on the dates of the aforementioned

transactions, with bags or boxes of metals. Barry stated that the footage also

depicts defendant with copper-aluminum fins.

      William Charles McBride testified that he was responsible for

maintenance at the armory as part of his job with the Department of Military and

Veteran Affairs (Department). McBride said that between July and August

2016, he was employed as the Department's asbestos program manager. He

stated that the armory was constructed during the so-called Cold War era.

      McBride explained that the Department built such structures using

identical floor plans and standards. He said the buildings are heated from a

central boiler room, with pipes running through the building and fin -tube

radiators on exterior walls.   McBride was shown photos of the materials

defendant sold to GSC. He said the materials shown in the photos are radiators

or other metals of the type found in the armory. He could not tell, however,

whether the copper pipes shown in the photos were like those in the armory.




                                                                        A-3216-17T4
                                       7
      McBride added that on August 10, 2016, he was informed that someone

had broken into the armory. Several days later, McBride installed cameras on

the premises to catch the intruder.   On August 22, 2016, he retrieved the

cameras.

      The prosecutor presented McBride with a copy of photos from the

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

around 1:00 a.m., on August 16, 2016. He noted that the photos also show

asbestos debris. He estimated that the cost to clean up the debris would be

"greater than $2000."

      Van Nieuwland further testified that the photographs from McBride's

cameras show defendant carrying metal at the armory early in the morning of

August 16, 2016. He said the man in the photos was carrying pipes, which were

consistent with the materials defendant sold to GSC.

      After the State rested its case, defendant moved for a judgment of

acquittal. The judge denied the motion. Defendant decided not to testify and

he did not call any witnesses. The jury found defendant guilty on the three

counts of Indictment No. 17-02-0068. Thereafter, defendant pled guilty to the

charges in Indictment No. 17-03-0090.       On February 9, 2018, the judge




                                                                      A-3216-17T4
                                      8
sentenced defendant on both indictments, and imposed an aggregate ten-year

term of incarceration. This appeal followed.

      On appeal, defendant raises the following arguments:

            POINT I
            THE     STATE'S    CASE    WAS     UNFAIRLY
            BOLSTERED      BY:    OPINION    TESTIMONY
            IDENTIFYING DEFENDANT IN PHOTOS AND
            VIDEOS.      (Not Raised Below); OPINION
            TESTIMONY COMPARING DEFENDANT'S BOOTS
            TO SHOE PRINTS AT THE ARMORY; THE
            PROSECUTOR'S       OPINION    ABOUT       THE
            POPULARITY OF CIGARETTES FOUND IN THE
            ARMORY (Not Raised Below); AND QUASI-
            EXPERT      TESTIMONY      ABOUT        ITEMS
            DEFENDANT SOLD. (Partially Raised [Below]).

            A.    The Trial Court Committed Plain Error in
                  Allowing Witnesses to Identify Defendant in
                  Photos and Videos That Were Available to the
                  Jury.

            B.    The Trial Court Wrongly Allowed A Detective
                  to Testify, Based on Photos Available to the
                  Jury, That Defendant's Boots Were Consistent
                  with the Shoeprints in the Armory.

            C.    The Prosecutor Committed Misconduct When,
                  Without Support in the Records, He Opined
                  That the Cigarettes Found in the Armory and On
                  Defendant Were Unusual.

            D.    The Trial Court Improperly Allowed Lay
                  Witnesses to Offer Expert Testimony About
                  Whether the Items Sold by Defendant Could
                  Have Come from The Armory.

                                                                   A-3216-17T4
                                      9
POINT II
THE     TRIAL   WAS    TAINTED       BY     THE
PROSECUTOR'S REFERENCE TO DEFENDANT
BEING "ADDICTED" TO EASY MONEY (Not Raised
Below), THE OFFICERS' TESTIMONY THAT THEY
KNEW DEFENDANT THROUGH WORK, AND THE
PROSECUTOR'S COMPARISON OF DEFENDANT
TO ADOLF HITLER. (Partially Raised [Below]).

POINT III
THE COURT'S FAILURE TO CHARGE THE JURY
ON THE LESSER INCLUDED OFFENSE OF
CRIMINAL TRESPASS WAS PLAIN ERROR. (Not
Raised Below).

A.   The Court Was Required to Charge the Jury on
     Criminal Trespass Because It Was Clearly
     Indicated by the Record.

B.   Reversal on All Three Counts Is Required
     Because They Were Inherently Intertwined and
     Considered Together.

POINT IV
THE    STATE'S FAILURE   TO   PRESENT
COMPETENT EVIDENCE THAT THERE WAS
OVER $2000 IN DAMAGE REQUIRES A
JUDGMENT OF ACQUITTAL ON THE CRIMINAL-
MISCHIEF CHARGE.

POINT V
RESENTENCING IS REQUIRED BECAUSE THE
COURT FAILED TO ADDRESS SUPPORTED
MITIGATING    FACTORS    AND     MADE
INAPPROPRIATE   AGGRAVATING    FACTOR
FINDINGS; IMPOSED MULTIPLE EXTENDED-
TERM SENTENCES; AND IMPOSED FINES ON A
MERGED OFFENSE.

                                                    A-3216-17T4
                      10
                                        II.

      As noted, defendant argues that the trial judge erred by allowing the State

to admit certain testimony. He also argues that the prosecutor improperly

provided opinion testimony.

      We review the trial court's evidentiary rulings for abuse of discretion.

State v. Green, 236 N.J. 71, 81 (2018) (citing State v. Rose, 206 N.J. 141, 157

(2011)). We will not set aside a trial court's evidentiary ruling "unless it appears

that 'there has been a clear error of judgment.'" State v. Prall, 231 N.J. 567, 580

(2018) (quoting State v. J.A.C. 210 N.J. 281, 295 (2012)).

      We note, however, that if there was no objection, we must determine if

the judge erred by admitting the evidence, and if so, whether the error was

"sufficient to raise a reasonable doubt as to whether [it] led the jury to a result

it otherwise might not have reached." State v. Daniels, 182 N.J. 80, 95 (2004)

(quoting State v. Macon, 57 N.J. 325, 336 (1971)).

      A. Van Nieuwland and Barry's Identifications of Defendant.

      Defendant argues, for the first time on appeal, that the trial judge erred by

allowing Van Nieuwland and Barry to identify defendant as the person depicted

in photos and videos that were shown to the jury. He contends the identifications

were not admissible under Rule 701, which permits a lay witness to offer an


                                                                            A-3216-17T4
                                        11
opinion when it (1) is "rationally based on the perception of a witness" and the

opinion (2) will help the jury in its fact-finding function. N.J.R.E. 701.

      The court may allow a lay witness to provide identification testimony if

the witness has had "sufficient contact with the defendant to achieve a level of

familiarity that renders the lay opinion helpful" or "the witness knew defendant

over time and in a variety of circumstances." State v. Lazo, 209 N.J. 9, 22 (2012)

(internal quotation marks omitted).

      Here, defendant argues that Van Nieuwland and Barry did not have prior

personal knowledge that he was the person depicted in the photos and videos.

He also argues that the judge should not have permitted Van Nieuwland and

Barry to identify him because "the jury was equally capable" of determining if

he was the man shown in the photos and videos. We disagree.

      Van Nieuwland testified that he knew defendant from prior interactions

with him through his work as a police officer. Thus, Van Nieuwland was able

to identify defendant based on his prior contacts and his familiarity with

defendant. Barry also was familiar with defendant and had personal knowledge

about the surveillance footage from GSC.

      Thus, both witnesses were able to assist the jury perform its fact-finding

function. The testimony was admissible under Rule 701.


                                                                             A-3216-17T4
                                       12
      Defendant argues, however, that he was prejudiced because the judge did

not instruct the jury on identification. However, at trial, defendant's attorney

conceded the instruction was not necessary.

      The "invited error" principle precludes a defendant from asserting error

on appeal after having urged the trial court to take the course the defendant now

claims was erroneous. State v. Munafo, 222 N.J. 480, 487 (2015); State v.

Kemp, 195 N.J. 136, 155 (2008). We therefore reject defendant's claim that the

judge erred by failing to instruct the jury on identification.

      B. Van Nieuwland's Testimony About the Boot Prints.

      Defendant argues that the judge erred by allowing Van Nieuwland to

testify that the soles of the boots found in his possession were consistent with

the boot prints found at the armory. He contends Van Nieuwland's testimony

was not admissible because he was not qualified as an expert in boot prints. He

also argues that the detective's testimony improperly invaded the jury's fact-

finding role because the jury was capable of making its own comparison of the

boot prints and the soles of the boots.

      However, it is well-established that a person providing a footprint

identification need not be qualified as an expert because "shoeprint patterns are

often readily recognizable and well within the capabilities of a lay witness to


                                                                         A-3216-17T4
                                          13
observe.    No detailed measurements, no subtle analysis or scientific

determination is needed." State v. Johnson, 120 N.J. 263, 294 (1990).

      Moreover, Van Nieuwland's testimony was permissible lay opinion under

Rule 701. He compared the soles of the boots he recovered from defendant and

the boot prints found in the armory. His testimony was based on his own

perceptions and it assisted the jury in exercising its fact-finding role. N.J.R.E.

701. Therefore, the judge did not err by permitting Van Nieuwland to testify

about the boot prints.

      C. Prosecutor's Comments Regarding Eagle 20 Cigarettes.

      Defendant argues that the judge erred by allowing the prosecutor to assert

in his opening statement that Eagle 20 cigarettes are "unusual." As noted

previously, a package of Eagle 20 cigarettes was found at the armory and in

defendant's possession. The prosecutor stated that he had never heard of Eagle

20 cigarettes before.

      Defendant contends that by making these statements, the prosecutor

"testified" that Eagle 20 was an "unusual" brand of cigarettes. He contends the

prosecutor's statements were not a fair comment on the evidence the State would

present at trial. He claims he was prejudiced by the suggestion that the Eagle

20 cigarettes found in the armory belonged to him.


                                                                          A-3216-17T4
                                       14
      A prosecutor's comments will not warrant reversal on appeal unless they

were "clearly and unmistakably improper" and "so egregious" that they denied

defendant of the "right to have a jury fairly evaluate the merits of his defense."

State v. Wakefield, 190 N.J. 397, 437-38 (quoting State v. Papasavvas, 163 N.J.

565, 625 (2000)). However, when counsel does not make a timely objection to

the comments, "it is [ordinarily] a sign 'that defense counsel did not believe the

remarks were prejudicial' when they were made." State v. Pressley, 232 N.J.

587, 594 (2018) (quoting State v. Echols, 199 N.J. 344, 360 (2009)).

      Here, defendant's counsel did not object to the prosecutor's comments.

Moreover, the prosecutor's lack of familiarity with Eagle 20 cigarettes had no

bearing on any issue in the case. The prosecutor's comments were not clearly

improper or egregious.

      We are therefore convinced that the judge's failure to strike the comments

sua sponte was not an error "clearly capable of producing an unjust result." R.

2:10-2.

      D. Barry's Testimony About the Metals Sold to GSC.

      At trial, Barry testified that certain metals defendant sold to GSC are

typically used in "fins found in a large radiator[,]" and the insulation found at

the armory "could have been" from the pipes defendant sold to the salvage yard.


                                                                          A-3216-17T4
                                       15
Defendant moved for a mistrial and argued that Barry was not qualified to

provide this testimony.

      The trial judge denied defendant's motion, but ruled that Barry should not

be permitted to testify that the pipes or materials sold to GSC came from the

armory. Thereafter, the State did not elicit any testimony from Barry as to

whether the pipes and materials shown in the photographs came from the

armory.

      McBride testified, however, that the armory, like other buildings the

Department built around the same time, had "fin-tube radiators." He stated the

materials in the photos from the salvage yard depicted parts of a "fin-tube

radiator," a boiler backflow preventer, air conditioning coils from a large

building, and pipes that could have been attached to the armory's boiler.

      Defendant asserts Barry's and McBride's statements were expert testimony

because an average juror would not be expected to know about the component

parts of a heating system. He contends Barry and McBride should not have been

allowed to provide this testimony because they were not qualified as experts.

Again, we disagree.

      The record shows that Barry had extensive experience working in the

salvage yard, and McBride was familiar with the infrastructure of the


                                                                            A-3216-17T4
                                      16
Department's buildings. Neither witness gave an opinion as to whether the pipes

defendant sold to GSC came from the armory. Furthermore, both witnesses

testified based on their personal experiences, and they did not "explain the

implications" of facts "that would otherwise fall outside the understanding of

ordinary people." McLean, 205 N.J. at 460.

                                     III.

      Defendant argues that the prosecutor made certain statements and

presented testimony that suggested defendant is a bad person, who was prone to

committing crimes at the expense of the public. He asserts that , individually

and cumulatively, the statements and testimony deprived him of his right to due

process and a fair trial.

      A. Prosecutor's Opening Statement.

      Defendant contends that the prosecutor tainted the proceedings by stating

in his opening remarks that defendant "took advantage of an unoccupied

taxpayer-owned building" and became "addicted to . . . easy cash." He contends

these comments were likely to prejudice him because the jury later learned he

was homeless.

      In his opening, the prosecutor asserted that the State would prove

defendant removed materials from the armory and sold them to the salvage yard


                                                                       A-3216-17T4
                                     17
on seventeen separate occasions. The prosecutor commented that the State

would show that defendant "took advantage" by removing materials from "an

unoccupied taxpayer-owned building."         The comment that defendant was

"addicted to . . . easy cash" was a fair summary of the evidence the State intended

to present at trial.

      We note that even if the prosecutor erred by stating that defendant was

"addicted to . . . easy cash," defense counsel did not object to the statement.

Therefore, we may presume counsel did not view the comment as prejudicial.

Pressley, 232 N.J. at 594 (citing Echols, 199 N.J. at 360). In any event, the

comment was not "clearly and unmistakably improper" and did not deprive

defendant of his right to a fair trial. Wakefield, 190 N.J. at 437-38 (citing

Papasavvas, 163 N.J. at 625).

      B. Officers' Testimony Regarding Defendant.

      At trial, Van Nieuwland testified that he knew defendant "through police

work" and D'Annibale stated he knew defendant from "prior dealings . . .

through work."         Defendant objected to these statements.    The trial judge

overruled the objection, noting that the officers could have come to know

defendant as a victim, witness, or a person encountered on patrol.




                                                                           A-3216-17T4
                                        18
      On appeal, defendant argues that the officers' testimony constituted bad-

acts evidence, which could only be admitted in accordance with Rule 404(b).

N.J.R.E. 404(b).     However, the officers' testimony did not trigger the

requirements of Rule 404(b) because it was not evidence that defendant

committed a "crime" or other "wrong."

      The officers did not explain the circumstances under which they came to

know defendant. Moreover, neither officer stated that defendant had a previous

interaction with defendant in the context of some offense or bad act. The judge

did not err by allowing this testimony.

      C. Prosecutor's Comments in Summation.

      Defendant contends the prosecutor inflamed the jury by making certain

remarks in his closing argument. We note that in his opening statement, defense

counsel stated:

            On a cold January day[,] a [forty-three-year-old] man
            was sworn in as the chief executive of his – of his
            country. By his side stood his predecessor, a famous
            general who [fifteen] years earlier had commanded his
            nation[']s armed forces in a war that resulted in the
            defeat of Germany. The young leader was raised in the
            Catholic faith. He spent the next five hours watching
            parades in his honor and stayed up celebrating till
            [three] o'clock in the morning. You know who I'm
            describing, right? It's January 1933, and I'm describing
            Adolph Hitler and not as some of you may have thought


                                                                       A-3216-17T4
                                      19
            or would have assumed John F. Kennedy. The point is
            we all make assumptions. . . .

      In his summation, the prosecutor responded to these comments. The

prosecutor stated in part:

            I don't think that it's fair – a fair analogy, but I can think
            we can extrapolate from Adolf Hitler and we can in his
            permanent office, if you will, and compare it or
            analogize it to what we have here. . . .

            We didn't know the level of a man's evil until the war,
            World War II was coming to a conclusion. . . .

            And . . . an investigation occurred and Hitler was found
            to be the man in charge, the man who ordered that and
            the man who was responsible for [deaths of] millions,
            millions of Jews. It was the evidence [which] showed
            that Hitler was directly responsible for that just like the
            direct and circumstantial evidence that you heard from
            the witness stand show that [defendant] is guilty of the
            crimes charged in the indictment.

      Suffice it to say, the comments regarding Adolf Hitler by defense counsel

and the prosecutor were entirely inappropriate and had no place in this trial.

Certainly, defense counsel could have made his point about the need to avoid

making assumptions without mentioning Hitler. Similarly, the prosecutor could

have responded to those remarks without mentioning Hitler and the deaths of

millions of Jewish persons.




                                                                             A-3216-17T4
                                        20
      Nevertheless, we are not convinced that the prosecutor's comments were

intended to inflame the jury or deprived defendant of his right to a fair trial.

The prosecutor's comments about Hitler had no bearing on any material issue in

the case and could not reasonably have led the jury to a result it would not

otherwise have reached based on the evidence presented at trial.

                                        IV.

      Defendant also argues that the judge erred by failing to charge the jury on

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

3(a). Defendant did not request this instruction. He argues, however, that the

judge's failure to charge criminal trespass sua sponte constitutes plain error and

requires reversal of all of his convictions.

      When a party to a criminal proceeding does not request a charge on a

lesser-included offense, the judge should only give the charge sua sponte if there

is "obvious record support" for it. State v. Funderburg, 225 N.J. 66, 81 (2016).

A trial judge should charge a lesser-included offense sua sponte "only where the

facts in evidence 'clearly indicate' the appropriateness of that charge." Savage,

172 N.J. at 397 (internal citations omitted). A trial judge is not required to

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




                                                                          A-3216-17T4
                                        21
the defendant may be guilty. . . ." State v. Brent, 137 N.J. 107, 118 (1994)

(quoting State v. Sloane, 111 N.J. 293, 302 (1988)).

      Here, the judge did not err by failing to charge the jury sua sponte on

criminal trespass because the evidence did not clearly indicate such an

instruction was warranted. Defendant contends the State's case was entirely

circumstantial and could have supported a finding that he entered the armory

without permission but when he did so, he did not intend to commit a crime.

      However, the State presented strong, if not overwhelming, evidence that

defendant entered the armory on numerous occasions with the intent to tak e

copper and other materials and sell them to the salvage yard. The evidence did

not clearly indicate that when defendant entered the armory, he did not intend

to commit a crime in the armory.

      Defendant further argues that the judge erred by failing to give the jury a

charge on multiple offenses. He asserts that the charges of theft and criminal

mischief were inherently intertwined with the burglary charge. He contends the

judge was required to specifically instruct the jury that it must consider all three

charges separately. He asserts that without this instruction, the jury was likely

to view all three offenses together. We do not agree.




                                                                            A-3216-17T4
                                        22
      Here, the trial judge instructed the jury that the State had to prove the

elements of each offense beyond a reasonable doubt and the judge reviewed the

elements of each charged offense. The judge also reviewed the verdict sheet,

which required the jurors to make findings that defendant was guilty or not

guilty of each separate offense. The judge's instructions were proper and a more

specific charge on multiple offenses was not required.

                                       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 per son

or property, including the damaging or destroying of a rental premises by a

tenant in retaliation for institution of eviction proceedings." N.J.S.A. 2C:17-

3(a). N.J.S.A. 2C:17-3(b)(1) provides that "criminal mischief is a crime of the

third degree if the actor purposely or knowingly causes pecuniary loss of $2000

or more."




                                                                         A-3216-17T4
                                      23
      Defendant argues the State did not meet its burden of proving the requisite

pecuniary loss because the State did not establish the market value of the

property removed from the armory. He further argues that McBride was not

qualified to offer an opinion as to the cost to repair the damage in the armory

and his testimony regarding the cost of such repairs was a net opinion.

      However, at trial, the State presented sufficient evidence to establish that

defendant had caused damage to the armory that had a value of $2000 or more.

Barry testified that the salvage yard paid defendant $1489.15 for the materials

defendant sold to GSC.      Barry explained that the value of each item was

determined based on its market price.

      In addition, the State presented evidence showing that when defendant

removed the pipes and other materials, he damaged the asbestos insulation.

McBride testified that the cost to clean up the asbestos debris would be "greater

than $2000." McBride's testimony as to these costs was proper lay opinion

testimony under Rule 701. N.J.R.E. 701. Moreover, because McBride's opinion

was based on his experience as an asbestos program manager, it was not an

improper net opinion.




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                                       VI.

      Defendant further argues that his sentence is excessive. He contends

resentencing is required because the trial judge failed to address certain

mitigating factors, did not make appropriate findings on the aggravating factors,

erred by imposing multiple extended-term sentences, and erroneously imposed

fines and penalties on a merged offense.

      "An appellate court's review of a sentencing court's imposition of sentence

is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318

(2018). In reviewing a sentence, the court must determine whether: "(1) the

sentencing guidelines were violated; (2) the findings of aggravating and

mitigating factors were . . . 'based upon competent credible evidence in the

record'; [and] (3) 'the application of the guidelines to the facts' of the case

'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014)

(third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

      "An appellate court is bound to affirm a sentence, even if it would have

arrived at a different result, as long as the trial court properly identifies and

balances aggravating and mitigating factors that are supported by competent

credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989)

(citing State v. Jarbath, 114 N.J. 394, 400-01 (1989); Roth, 95 N.J. at 364-65).


                                                                           A-3216-17T4
                                       25
      Here, the judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3)

(risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6)

(extent of defendant's prior criminal record and the seriousness of the offenses

for which he has been convicted); nine, N.J.S.A. 2C:44-1(a)(9) (need to deter

defendant and others from violating the law); and eleven, N.J.S.A. 2C:44-

1(a)(11) (imposition of fine penalty or order of restitution without a term of

incarceration would be perceived as part of cost of doing business). The judge

found no mitigating factors and determined the aggravating factors substantially

outweighed the non-existing mitigating factors.

      The judge granted the State's motion for imposition of an extended term

pursuant to N.J.S.A. 2C:44-3(a), finding that defendant met the definition of a

persistent offender. The judge sentenced defendant on Indictment No. 17-02-

0068 to three, concurrent, seven-year extended terms of incarceration for

burglary (count one), theft (count two), and criminal mischief (count three).

      On Indictment No. 17-03-0090, the judge merged count three (possession

of a weapon for an unlawful purpose) with count one (aggravated assault), and

sentenced defendant to a three-year prison term on count one. The judge also

imposed an eighteen-month prison term on count two (unlawful possession of a

weapon). The judge ordered that the sentences be served consecutively to the


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                                      26
sentences imposed on Indictment No. 17-03-0090. In addition, the judge

imposed various fines, penalties, and assessments on both indictments.

      Defendant argues that the judge failed to address or find mitigating factors

one, N.J.S.A. 2C:44-1(b)(1) (defendant's conduct neither caused nor threatened

serious harm); and two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate

that his conduct would cause or threaten serious harm). We cannot agree.

      Here, the judge noted that defendant's actions were "rather brazen" and

"continuous."   The judge also noted that there was harm associated with

defendant's conduct. The judge pointed out that defendant had stolen property

from the armory and did so in a way that will require a government agency to

pay to clean up the asbestos debris. The judge provided sufficient reasons for

his determination that mitigating factors one and two do not apply.

      Defendant also argues that the judge failed to explain the basis for his

findings of aggravating factors three, six, and nine. Again, we disagree. At

sentencing, the judge reviewed defendant's criminal record, which included

prior convictions that made him eligible for an extended term. The judge noted

that there was a need to deter defendant and others from violating the law, and

that defendant's attitude indicated there was a risk he would commit another

offense. The judge observed that defendant was a person who was "going to do


                                                                          A-3216-17T4
                                      27
what he wants to do when he wants to do it." The judge provided sufficient

reasons for his findings.

      In addition, defendant contends the judge erred by finding aggravating

factor eleven. Citing State v. Dalziel, 182 N.J. 494, 502 (2005), defendant

contends this factor should only be considered if the court is considering a non -

custodial sentence. He notes that he was eligible for an extended-term sentence,

and he entered a plea to the second indictment under which the State would

recommend a consecutive three-year prison term. He also notes that defense

counsel did not seek a non-custodial sentence.

      We agree that the judge erred by finding aggravating factor eleven. Here,

the judge was not considering whether to impose a non-custodial sentence.

However, we are not convinced that the error requires resentencing. As noted,

the judge found three other aggravating factors and no mitigating factors. The

judge's findings are more than sufficient to support the seven-year, extended-

term sentence on Indictment No. 17-02-0068, and the three-year consecutive

sentence on Indictment No. 17-03-0090.

      Defendant also argues that the judge erred by imposing three extended-

term sentences on the charges in Indictment No. 17-02-0068.           We agree.

N.J.S.A. 2C:44-5(a)(2) provides that when a defendant is sentenced on multiple


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                                       28
offenses in a single proceeding, the court may only impose one extended-term

sentence. The State acknowledges that the trial court could only impose one

extended-term sentence. We remand the matter for resentencing on Indictment

No. 17-02-0068.

      Defendant further agrees that the judge erred by assessing defendant fees

totaling $125 on count three of Indictment No. 17-03-0090 because that count

had been merged with count one for sentencing purposes. The State agrees.

      Therefore, on remand, the judge should amend the JOC on Indictment No.

17-03-0090 and delete the $50 assessment for the Victim of Crimes

Compensation Board and the $75 Safe Neighborhood Assessment imposed on

count three.

      Accordingly, we remand the matter to the trial court for resentencing on

Indictment No. 17-02-0068, and entry of a corrected JOC on Indictment No. 17-

03-0090, in accordance with this opinion. In all other aspects, the JOCs are

affirmed.

      Affirmed in part, and remanded in part. We do not retain jurisdiction.




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