                        NOT FOR PUBLICATION WITHOUT THE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-4919-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

EDDIE MARTIN, a/k/a JUDY
MARTIN and EDWARD MARTIN,

        Defendant-Appellant.

____________________________


              Submitted August 1, 2017 – Decided August 9, 2017

              Before Judges Hoffman and Currier.

              On appeal from the Superior Court of New
              Jersey,   Law  Division,   Monmouth County,
              Indictment No. 15-05-0838.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Elizabeth C. Jarit, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Jeffery
              St. John, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Defendant    Eddie   Martin   appeals   from   his   convictions    of

burglary and theft, and possession of burglar's tools following a

jury trial.     After a review of his contentions in light of the

record and applicable legal principles, we affirm.

     The facts as presented at trial can be summarized as follows.

A witness testified that, as he was standing in the parking lot

where he worked, he observed a man, identified as defendant, moving

among the parked cars, "trying to open car doors" and "break into"

the vehicles.     The witness called 9-1-1 and described defendant

as a black male wearing a face mask and a gray hoodie with a light

jacket over it.

     Asbury Park Police Officer Michael Boone responded to the

9-1-1 call.      When he arrived at the parking lot, he observed

defendant crouching down between the parked vehicles. He described

defendant as wearing gray pants, a gray jacket and hat, and he was

carrying a white bag. Boone decided to detain defendant by placing

him in the patrol car while waiting for additional officers, and

as he patted him down, he found a screwdriver in defendant's

pocket.

     Upon his inspection of the parking lot, Boone found a black

car with a smashed window.     The owner of the car was located, and

after looking inside her vehicle, she reported that she was missing

a white jacket, several bracelets, sunglasses, and a necklace.

                                    2                             A-4919-15T3
The white jacket was found in the bag that defendant was carrying,

and the victim observed that the jacket had bloodstains on it.

Her necklace and sunglasses, as well as several other items, were

found in the back of the patrol car after defendant was asked to

step out and placed under arrest.

     Another owner of a car in the parking lot reported that the

soft top to her Jeep had been partially removed, there was damage

to the inside of her car, and bloodstains on the seat.

     Police Office Lemar Whittaker also responded to the 9-1-1

dispatch.   When he arrived on the scene, he observed defendant

sitting in the back of the patrol car wearing a light gray jacket,

gray hoodie and a gray hat. Boone showed him the white bag

containing the white jacket.

     Whittaker testified that after defendant was arrested, he

found various items of jewelry on the floor of the patrol car and

stuffed   between   the   seats   where   defendant   had   been   sitting,

including the necklace and sunglasses later identified by the

victim as hers.

     After noticing that there were surveillance cameras on the

building pointed toward the parking lot, Whittaker asked to view

the recordings.      He testified that the surveillance showed a

"subject fitting the description of [defendant] in the area of the



                                     3                              A-4919-15T3
vehicles, [walking] up toward the camera holding a white bag

. . . .    It appeared to be the same plastic bag that we had."

       Although both officers testified that their patrol cars were

equipped with motor vehicle recording cameras (MVR), they did not

retain the recording.1          Whittaker also stated that they did not

recover a face mask at the scene.

       Officer     Thomas     Gogan    was     responsible   for   transporting

defendant to the police station after his arrest and processing

him.   He described defendant as wearing a gray winter hat, a black

and gray coat with a gray hoody underneath and gray sweatpants.

When defendant removed his outer clothing, a blue piece of glass

fell out of his hood; the officer identified it as a piece of

motor vehicle window glass.            Defendant also had two bracelets and

a ring in his possession.             Gogan noticed that there was blood on

defendant's hand, which he photographed.

       Defendant    was     convicted     of    several   burglary    and     theft

charges, as well as disorderly persons possession of burglar's

tools.     He was sentenced to an aggregate term of five years

imprisonment     with     a   two-and-one-half       year    period   of     parole

ineligibility for the burglary conviction.


1
    Whittaker testified that his MVR would not have contained any
footage as it was only activated by the use of the emergency
lights. He did not turn on his emergency lights as he responded
to the scene.

                                          4                                 A-4919-15T3
On appeal, defendant presents the following issues:

    POINT I: THE OFFICERS' LAY TESTIMONY THAT
    MARTIN MATCHED THE DESCRIPTION OF THE SUSPECT
    VIOLATED STATE V. MCLEAN, 205 N.J. 438 (2011).
    (Not Raised Below).

    POINT II: FAILURE TO CHARGE THE ADVERSE
    INFERENCE AND THIRD PARTY GUILT INSTRUCTIONS,
    REQUESTED BY DEFENSE, DENIED MARTIN DUE
    PROCESS AND A FAIR TRIAL.

         A. Because Failure to Turn Over the
         MVR Recordings was a Discovery
         Violation, the Court Erred in
         Denying Defendant's Request for an
         Adverse Inference Charge.

         B. Because the Defendant's Theory of
         the Case was that a Third Person
         Committed   the    Burglaries,   and
         Because this Theory was Supported by
         the Record, the Court Erred in
         Denying the Requested Third-Party
         Guilt Instruction.

    POINT III: FAILURE TO CHARGE THE LESSER-
    INCLUDED   OFFENSE  OF   CRIMINAL  TRESPASS,
    SUPPORTED BY THE EVIDENCE AT TRIAL, REQUIRES
    REVERSAL. (Not Raised Below).

    POINT IV: THE DENIAL OF MARTIN'S REASONABLE
    REQUEST FOR AN ADJOURNMENT DENIED HIM DUE
    PROCESS AND A FAIR TRIAL.

    POINT V: THE CUMULATIVE IMPACT OF THE ERRORS
    DENIED MARTIN DUE PROCESS AND A FAIR TRIAL
    (Not Raised Below).

    POINT VI: IMPOSITION OF THE MAXIMUM SENTENCE
    WAS MANIFESTLY EXCESSIVE, REQUIRING A REMAND
    FOR RESENTENCING.




                          5                           A-4919-15T3
    During the trial, Officer Whittaker presented the following

testimony:

         Q: And when you proceeded to that location,
         what happened when you got there?

         A: I met with Officer Boone who's already on
         location.    He stated to me that he had a
         subject fitting the description detained in
         his vehicle.

         Q:   And were you able to observe that subject?

               . . . .

         A: He fit the description. He had a light
         gray jacket, the gray hoody underneath and a
         gray hat.

               . . . .

         Q: And what if anything did that surveillance
         show?

         A:     It showed a subject fitting the
         description of Mr. Martin in the area of the
         vehicles, and also walk up towards the camera
         holding a white bag that said "thank you" on
         it. It appeared to be the same plastic bag
         that we had.

               . . . .

         Q: Officer, can you describe to us what we're
         seeing [in the surveillance tape].

         A:   You're seeing the subject fitting the
         description of what was given out by dispatch
         walking in the parking lot where the Jeep was
         carrying a white plastic bag, seemingly to
         peer in the windows.

         Q: And, officer, was that subject wearing the
         same outfit as the subject in the patrol car?

                                6                          A-4919-15T3
            A:    Yes.

       Defendant argues that this testimony exceeded the limits of

the lay testimony that police officers may present and violated

the precepts established in State v. McLean, 205 N.J. 438 (2011).

He contends that the officer improperly opined that defendant

matched the burglary suspect's description.

       As there was no objection to the line of testimony during

trial, our review is under the plain error standard.        R. 2:10-2.

We reverse only if the error was "clearly capable of producing an

unjust result."          State v. Miller, 205 N.J. 109, 126 (2011)

(quoting R. 2:10-2; State v. Walker, 203 N.J. 73, 89-90 (2010)).

       Whittaker was presented as a lay witness.       Therefore, his

testimony was governed by N.J.R.E. 701; it must be based on the

witness' perception and assist the jury in performing its function.

"[P]erception . . . rests on the acquisition of knowledge through

use of one's sense of touch, taste, sight, smell or hearing."

McLean, supra, 205 N.J. at 457 (citing State v. Labrutto, 114 N.J.

187,    199-200     (1989)   ("permitting   lay   opinion   based     on

observation")).

       In McLean, our Supreme Court reiterated that a police officer

is "permitted to set forth what he or she has perceived through

one or more of the senses," id. at 460 (citations omitted), and


                                   7                           A-4919-15T3
describe for the jury what the officer saw and did.      The officer

may not opine as to what he or she "believed," "thought," or

"suspected" but may provide a recitation of facts of which he or

she has first-hand knowledge.    Ibid.

    Here, Whittaker was not giving an opinion as to defendant's

guilt.      He   was   asked   questions   regarding   the   physical

characteristics and clothing worn by the possible suspect; he

described the man and the clothing he had seen in person and on

the surveillance tapes, and advised that it was similar to the

description of the suspect and his attire provided by the 9-1-1

caller.   The officer's testimony as to why he approached defendant

was properly part of his factual recitation.     He did not testify

or otherwise suggest that defendant was the man who had broken

into the vehicles and taken the victim's property, which would

have been improper lay testimony.

    During the charge conference, defense counsel requested that

the court issue an adverse inference charge for the officers'

failure to maintain the MVRs as evidence.      Counsel conceded the

recordings had not been requested during discovery.

    The judge declined the request, stating that defendant had

never requested that the MVRs be preserved as evidence, and there

were no proofs that the MVRs were running at the time of these

events.

                                  8                           A-4919-15T3
       Defendant relies on State v. Dabas, 215 N.J. 114 (2013) to

support his argument that the trial judge abused his discretion

in his decision not to issue the adverse inference charge.                 We do

not find Dabas to be instructive to the circumstances here.                     In

Dabas, the State's investigator took copious notes during a two-

hour pre-interview.         Id. at 123.      Thereafter, a fifteen minute

recorded statement was taken from Dabas.                Id. at 124.      In the

inquiry, the investigator primarily used leading questions based

on   the    defendant's     pre-interview    answers    memorialized     in   the

investigator's handwritten notes.           Ibid.    He subsequently prepared

a typewritten final report that he used during his trial testimony.

Id. at 123.        The investigator advised that he had destroyed his

handwritten notes a year after defendant's indictment.               Ibid.    The

trial      judge   denied   defendant's     request    to   issue   an   adverse

inference charge.       Id. at 127.

       The Court found the prosecutor violated the rule governing

discovery, Rule 3:13-3(b), in not providing the pre-interview

notes to the defense after the indictment and in the notes'

destruction thereafter.         Id. at 138.         The Court stated that an

adverse inference charge was a permissible remedy for a discovery

violation, and under the circumstances of Dabas, it was an abuse

of discretion for the judge not to have given the charge.                 Id. at

141.

                                      9                                  A-4919-15T3
     We are without doubt that an MVR is subject to discovery.    R.

3:13-3(b)(1)(A) (stating that discovery shall include video and

sound recordings).   In this instance, however, defendant never

requested that the State ensure the preservation of any recordings

that might exist. It is undisputed that the issue was never raised

until the conclusion of the trial during the charge conference.

If defendant wished to assert a violation of the discovery rules,

he needed to do so in a more timely manner so that the court could

address the issue and determine the appropriate sanction, whether

it be a directive to produce the recordings or a more severe

measure.

     There were insufficient proofs presented here that recordings

existed and that they would yield any relevant information.    And,

unlike Dabas, there were no proofs that the State or the police

officers acted intentionally or purposefully in their failure to

preserve the MVRs.    We are satisfied, for all of the stated

reasons, that the trial judge did not abuse his discretion in

declining to charge an adverse inference instruction.

     We also find meritless defendant's argument that the trial

judge erred in denying his request to give a third-party guilt

jury instruction. Defense counsel supported the request by arguing

that defendant did not match the description given by the 9-1-1



                               10                          A-4919-15T3
caller and that there was sufficient evidence presented that a

third person had committed the burglaries.

     In declining the defense request, the judge stated that

counsel could argue to the jury that someone else committed the

crimes and that the State had not met its proofs as to defendant's

guilt. He further noted that the identification charge he intended

to use contained similar language to that of third-party guilt.

That charge on identification instructs the jury that the "burden

of proving the identity of the person who committed the crime is

upon the State."    Model Jury Charges (Criminal), "Identification:

In-Court And Out-of-Court Identifications" (effective Sept. 4,

2012).   The charge reinforces the tenet that the defendant does

not have the burden to show that the crimes were committed by

someone else.

     An accused has a constitutional right under the due process

clause of the Fourteenth Amendment to offer evidence of third-

party guilt.    See Chambers v. Miss., 410 U.S. 284, 93 S. Ct. 1038,

35 L. Ed. 2d 297 (1973); State v. Koedatich, 112 N.J. 225, 297

(1988) (citations omitted).    Defendant does not argue that he was

deprived of this opportunity during the trial; he contends, rather,

that the judge should have issued a charge to the jury on third-

party guilt.    We disagree.



                                 11                          A-4919-15T3
     As an affirmative defense, the trial court is only required

to instruct the jury on the defense of third-party guilt where

there is a "rational basis" to do so based on the evidence.          State

v. Walker, 203 N.J. 73, 87 (2010).       Here, there was no evidence

presented as to a third party.      A description of a man trying to

break into cars in a parking lot was provided by a 9-1-1 caller.

The police arrived on the scene and encountered only defendant.

The officers provided a description of defendant and his clothing.

Defendant had in his possession the white bag that was being

carried by the individual in the video surveillance of the parking

lot. The victim's stolen items were found in the bag and on

defendant's person.

     Defense counsel argued to the jury in her summation the

inconsistencies in the testimony presented by the State and the

mistakes   that   the   police   made   in   their   investigation    and

identification of defendant.     It remained the province of the jury

to determine whether defendant was the person who had committed

the alleged crimes.     The court did not abuse its discretion in not

issuing the third-party guilt charge.

     We turn to defendant's argument that the trial court erred

in not charging the jury sua sponte with the lesser included-

offense of criminal trespass.     The obligation to instruct the jury

on lesser-included offenses arises "only if counsel requests such

                                  12                            A-4919-15T3
a charge and there is a rational basis in the record for doing so

or, in the absence of a request, if the record clearly indicates

a charge is warranted."        State v. Denofa, 187 N.J. 24, 42 (2006)

(second emphasis added) (citations omitted).            To be warranted,

"the facts adduced at trial [must] clearly indicate that a jury

could convict on the lesser while acquitting on the greater

offense."      State v. Jenkins, 178 N.J. 347, 361 (2004).       And, for

the   record    to   clearly   indicate   a   lesser-included   charge    is

warranted, the evidence must be "jumping off the page."           Denofa,

supra, 187 N.J. at 42.

      Burglary requires that a person without authority enter a

structure with the intent to commit an offense.          N.J.S.A. 2C:18-

2(a)(1).    Criminal trespass does not require that the person have

an intent to commit a crime.        N.J.S.A. 2C:18-3(a).     If a factual

dispute exists as to whether the defendant had a purpose to commit

an offense, trespass should be charged.          See State v. Singleton,

290 N.J. Super. 336, 341-342 (App. Div. 1996).

      There were no facts presented to the jury that defendant

broke into the victim's car for any purpose other than to steal

items from it.       Defendant has not demonstrated that the failure

of the judge to charge criminal trespass sua sponte was "clearly

capable of producing an unjust result."         R. 2:10-2.



                                    13                             A-4919-15T3
       Just   prior   to   jury   selection,   defendant   requested    an

adjournment.     His counsel stated that defendant had been struck

in the face and his eye was swollen and partially closed.        Counsel

stated: "His face is disfigured and he's not comfortable going

forward today."       In denying the request, the judge noted that

defendant had been in jail on these charges for over a year.           The

court had blocked off the week for this particular trial and

advised that due to scheduling, the matter would not be reached,

if adjourned, until at least the fall.2        The judge stated: "So for

his protection, to have him have his day in court in a reasonable

period of time, I'm going to move forward."          He also noted that

he had not noticed the injury to defendant's eye until advised of

it.    He said that unless it had been pointed out to him he would

not have seen it as defendant was dark-skinned. The judge believed

that the jury might not notice the injury either if it was not

pointed out to them.       Nevertheless, the judge offered to give a

curative instruction to the jury which defendant accepted.

       We review a motion for an adjournment under a deferential

standard.     State v. Miller, 216 N.J. 40, 65 (2013).       Whether to

grant a trial adjournment rests within the sound discretion of the

trial court.     State v. Smith, 87 N.J. Super. 98, 105 (App. Div.



2
      The trial began on February 2.

                                    14                           A-4919-15T3
1965).     We see no abuse of discretion.           The judge explained that

the trial had been scheduled for that particular week, defendant

had been in jail for over a year and if the matter were adjourned,

it would not be reached again for another eight months or perhaps

longer.    This rational explanation supported the court's decision.

Furthermore, the judge advised the jury that defendant had been

in an accident the day before in which he had sustained injury to

his eye.    He instructed: "[Y]ou are not to utilize that injury in

any way in determining the verdicts in this case."

     We briefly address defendant's contention that his sentence

was excessive. Our review of sentencing determinations is limited,

and is governed by the "clear abuse of discretion" standard. State

v. Miller, 205 N.J. 109, 127 (2011); State v. Roth, 95 N.J. 334,

363 (1984).     We are bound to uphold the trial court's sentence,

even if we would have reached a different result, unless "(1) the

sentencing    guidelines   were       violated;    (2)    the    aggravating     and

mitigating factors found . . . were not based upon competent and

credible evidence in the record; or (3) "the application of the

guidelines    to   the   facts    .    .    .   makes    the    sentence    clearly

unreasonable so as to shock the judicial conscience."                      State v.

Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, supra, 95 N.J. at

364-65); see also State v. Bieniek, 200 N.J. 601, 608 (2010);

State v. O'Donnell, 117 N.J. 210, 215-16 (1989).

                                       15                                   A-4919-15T3
     We discern no abuse of discretion in the imposed sentence.

Defendant   acknowledged   his   lengthy   criminal    history   and   the

leniency he had been accorded in the past.            These offenses had

been committed within months of his release from prison on burglary

convictions.     The judge properly explained his weighing of the

aggravating and mitigating factors, and the sentence was within

the guidelines.

     Affirmed.




                                  16                              A-4919-15T3
