STATE OF NEW JERSEY v. IVAN KUHN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0760-07T40760-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IVAN KUHN,

Defendant-Appellant.

___________________________________________________

 

Submitted February 11, 2009 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 03-08-0858.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Ivan Kuhn appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of third-degree creating a false public alarm, N.J.S.A. 2C:33-3(a); and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1). On the first charge, he was sentenced to three years probation, with a specific condition that he serve 364 days in the county jail. A concurrent two-year probationary sentence was imposed on the second charge.

He raises the following points for our consideration on appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL AS A RESULT OF THE TRIAL COURT'S RULING PERMITTING THE STATE TO ELICIT TESTIMONY PURSUANT TO N.J.R.E. 404(b).

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL FOLLOWING A FIRE ALARM WHICH OCCURRED DURING THE COURSE OF THE TRIAL OR, IN THE ALTERNATIVE, BY ELECTING NOT TO VOIR DIRE THE JURY OR AT LEAST ISSUE AN APPROPRIATE INSTRUCTION.

POINT III

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL AS A RESULT OF TESTIMONY ELICITED BY THE PROSECUTOR ON SEVERAL DIFFERENT OCCASIONS INDICATING THE POLICE KNEW THE DEFENDANT, THEREBY INFERENTIALLY CONNECTING HIM WITH PRIOR CRIMINAL ACTIVITY.

POINT IV

THE TRIAL COURT ERRED IN DENYING THAT ASPECT OF DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL MAINTAINING THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.

POINT V

THE TRIAL COURT'S LIMITING INSTRUCTIONS TO THE JURY PURSUANT TO N.J.R.E. 404(b) WERE INADEQUATE AND INSUFFICIENT IN NATURE. (NOT RAISED BELOW)

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

A.

The State contended that on June 10, 2003, defendant called the Chester ShopRite supermarket with a false bomb threat, causing the store to be evacuated, and resulting in a "pecuniary loss." Prior to trial, the State proffered the testimony of five witnesses, all of whom would testify about events preceding the date of the crime. Specifically, the State theorized that defendant "had a problem with the deli manager when he was working at the Bernardsville ShopRite." This problem caused defendant to make an allegation against the deli manager, Richard Losavio, and later threaten to "get a gun and kill[]" him. Defendant was fired from that job and retaliated against ShopRite by vandalizing the store, ultimately pleading guilty in the Bernardsville municipal court to breaking one of its windows. The State further contended that following Losavio's transfer to the Chester ShopRite, defendant threw eggs at his car while it was parked in that store's parking lot. Defendant's campaign of retaliation culminated in the false bomb threat charged in the indictment.

The trial judge conducted a hearing pursuant to N.J.R.E. 104 to determine the admissibility of this evidence. Losavio, the deli manager at the Bernardsville ShopRite for nine years, testified that he first met defendant in 2000 when he was assigned to the deli section as a part-time employee. In the summer of 2002, Losavio found out that defendant had accused him of sexually harassing female employees. ShopRite investigated and could not corroborate the allegation. Approximately one month later, defendant was suspended from his job at the Bernardsville store and ultimately fired.

In early March 2003, Losavio was transferred to the Chester ShopRite. One day in late May, while sitting in his car in the parking lot eating lunch, as was his custom, Losavio noticed defendant drive by slowly in a dark colored pick-up truck. He called ShopRite security because he had heard, through other employees, that defendant had been threatening to kill him. The next day, Losavio's van was vandalized with eggs while it was parked in the Chester store's lot. Several days later, the store itself was the object of an egg attack, and was repeatedly hit with eggs thereafter for a period of time.

Shawn Meehan worked in the seafood department of the Bernardsville ShopRite beginning in August 2002. Because the seafood department was next to the deli department, Meehan knew Losavio and defendant. In September, defendant complained to Meehan about his hours, which were scheduled by Losavio. Regarding Losavio, defendant said, "I should just go home and get my gun, and shoot him, and beat him." Meehan made a written report about defendant's threat to security on September 17, finding another employee had also reported the incident. On December 15, 2002, Meehan was outside the store smoking a cigarette during his break. Defendant drove by in his truck, turned to Meehan, and said "pay backs are coming, your time is coming," while raising his middle finger. On March 1, 2003, while once again outside on a break, Meehan saw defendant throw eggs at the front of the store.

The State's third witness was Charles Dailey, the meat department manager at the Bernardsville store and shop steward for the union that represented ShopRite employees. In September 2002, Dailey became aware of defendant's sexual harassment allegation against Losavio. On September 18th, 2002, defendant was suspended from his job and called Dailey. Defendant said "there really was harassment going on . . . [and] [h]e couldn't believe that somebody hadn't shot [Losavio] in twenty-six years of service." Additionally, defendant threatened another co-worker, Jesus Negron, for reporting defendant's threats regarding Losavio to security. Concerned about the statements defendant made, Dailey himself made a report to security.

Wayne Horner, the regional head of ShopRite security testified that his first substantial contact with defendant was on September 3, 2002, after being "advised by management that [defendant] wanted to talk to [him] in reference to a problem that he had." Horner went to the Bernardsville store to meet defendant, who informed him that Losavio was "sexually harassing two of the deli workers[.]" Horner investigated defendant's allegation by interviewing and taking written statements from the women who were allegedly harassed, as well as collecting written statements from other store employees. He concluded that defendant's allegation was unfounded. When he personally told defendant of the results of the investigation, defendant was angry that there would be no consequences for Losavio, and that no other employees were willing to corroborate his claims regarding the harassment.

Horner subsequently received a call from the assistant store manager of the Bernardsville store that defendant had threatened Losavio. Horner interviewed a number of people, and decided to suspend defendant pending termination. He further "advised [defendant] he was no longer allowed in the store," and Horner "walked him outside to his vehicle." Defendant denied threatening Losavio. He was angry, cursed Horner, made an obscene gesture at him and told him that "he had no idea who [he] was messing with." Defendant was subsequently terminated from his position. In December, Meehan approached Horner at the Bernardsville store and told him that he had been threatened by defendant. Horner sent defendant a certified letter telling him he was no longer allowed on the Bernardsville ShopRite property "[a]nd if he failed to comply with [that] order, he would be arrested for defiant trespassing." Defendant responded by letter dated December 19, 2002, claiming his termination was unjustified, that Meehan's claims of threats were false, and that Horner was biased against him.

In February 2003, Horner became aware that the Bernardsville store was routinely being hit with eggs. He arranged to have a twenty-four hour video camera installed to record the entrance to the store. Two videos, capturing events in front of the Bernardsville store on March 1 and 2, 2003, were introduced into evidence at the hearing. The first showed defendant throwing eggs at the store; the second showed him smashing the front door of the store with an ice pick. Horner testified that on April 28, 2003, defendant pled guilty to breaking the window of the Bernardsville store and was ordered to pay restitution in the amount of $157.

There were no more incidents of vandalism at the Bernardsville store after Lovasio was transferred. In either late May or early June, Horner was at the Chester store and observed defendant driving out of the store parking lot in his pickup truck. Horner noticed egg dripping down the store's front window. A ShopRite employee told Horner that she had seen a "thin white male with a baseball cap throw the[] eggs[,]" a description that matched defendant.

The State's final witness at the hearing was Detective Michael Mastro, a member of the Chester police department since 1987. He knew defendant from seeing him around town when he was a resident of Chester back in the late 1980's and early 1990's, and from a "prior investigation" of defendant. On the same day that Lovasio's car was hit with eggs while parked behind the store, Mastro saw defendant exiting the ShopRite parking lot in his pickup truck.

B.

In addition to the evidence we have outlined above, which was essentially repeated before the jury, the State produced a number of witnesses regarding the events that occurred on June 10, 2003, the day of the bomb threat.

Millie Shinn worked in the Chester ShopRite for six years as the office manager and bookkeeper. On June 10 at approximately 1:00 p.m., she was behind the courtesy counter when she answered the telephone. A male voice said "[t]here is a bomb threat in the store, you have one-half hour to get everyone out[,]" and then hung up. Shinn dialed *69 to retrieve the telephone number of the last incoming call, wrote down the number, and gave it to either the store manager or the police. Shinn announced via the store intercom that for reasons beyond the store's control, everyone was required to evacuate the store and leave their unpurchased merchandise behind. The store remained evacuated and closed for a couple of hours while police officers searched inside.

Michael DeMaria, manager of the Chester store, called the police and decided to evacuate the store before they arrived. The total price of perishable groceries left behind by the evacuating customers, and not salvageable, equaled $1416.86. Peter Magri, a Verizon Communications employee in its subpoena compliance unit, was responsible for releasing phone records to law enforcement officials pursuant to a subpoena. The Morris County Prosecutor's office subpoenaed two such records in June 2003: 1) subscriber information for a specific phone number, i.e., where the phone was located and to whom it was billed; and 2) a special computer scan of "all the numbers . . . appearing from a specific phone line" at specific dates and times, and the duration of the call. The number 973-927-9613, which was the one taken down by Shinn, was for a payphone located at the A&P Superfresh, 293 U.S. Highway 206, Flanders. The computer scan of calls made from that payphone on June 10, 2003, revealed a five-second call to 908-879-5836, the main phone number of the Chester ShopRite, made at 1:05pm.

In addition to reiterating the testimony he gave at the Rule 104 hearing, Mastro told the jury that he responded to the Chester store on June 10, 2003. DeMaria gave him a paper with the phone number retrieved through the *69 feature. Mastro obtained the location of the origin of the call via an immediate trace request made by the police dispatcher. He arrived at the A&P and confirmed the phone number was for one of the payphones in the front vestibule of the store. Mastro reviewed the A&P security surveillance tape and recognized defendant as a man seen walking into the vestibule at approximately 1:05 p.m. and exiting shortly thereafter. Mastro knew defendant prior to June 10, since "[he] and his family were former residents of [Chester]," and because "[t]here was an unrelated investigation." After leaving the A&P, Mastro went to defendant's residence in Flanders, approximately one-half mile from the store.

Chief Neil Logan of the Chester police department was directly involved in the investigation of the bomb threat, and his testimony essentially corroborated Mastro's. Logan knew defendant prior to June 10, but upon objection from defense counsel, the trial judge prohibited any further testimony regarding the subject. Logan interviewed defendant at Chester police headquarters at approximately 9:10 p.m. Defendant admitted that he used the payphone located in the vestibule of the A&P to call an auto parts supplier because it was too noisy in his home to make phone calls. He told Logan that he did not have any problems with ShopRite, but he disliked Losavio and Horner because they were responsible for his termination.

Victoria Tauriello was an assistant store manager at the Bernardsville store. She claimed that defendant always believed Losavio was not scheduling enough hours for him, and he thought the manager was picking on him. She explained that defendant was terminated because he was yelling at Losavio in front of the deli, a violation of the store's "no tolerance policy." Tauriello identified a surveillance videotape that showed defendant throwing eggs at the store on March 1, 2003. The balance of the State's witnesses testified as to their investigation of the crime scene at the A&P, and the chain of custody of various items subsequently moved into evidence. Defendant did not testify and called his mother as the sole defense witness. Dorothy Kuhn testified that although there was a phone in the family's Flanders home, it did not have long-distance service and her other son frequently played loud music in the house. Thus, it was not unusual for defendant to go to a payphone to make a call.

After summations and jury instructions, defendant was found guilty of both counts of the indictment.

II.

In Points I, III, and IV, defendant argues that his motion for a new trial should have been granted because: 1) the judge erroneously admitted N.J.R.E. 404(b) evidence, and the prosecutor exceeded the bounds of the judge's ruling, eliciting other prejudicial testimony and not "sanitizing" some of the evidence as the judge ordered; 2) the prosecutor elicited from several witnesses their personal knowledge of defendant, thereby implying defendant had a prior criminal record; and 3) he demonstrated the ineffective assistance of his trial counsel.

A "judge . . . may grant the defendant a new trial if required in the interest of justice." R. 3:20-1. A motion for a new trial is addressed to the trial judge's sound discretion and his decision will not be lightly disturbed upon our review. State v. Artis, 36 N.J. 538, 541 (1962); State v. Henries, 306 N.J. Super. 512, 529-30 (App. Div. 1997). None of defendant's arguments demonstrate the trial judge mistakenly exercised his discretion in denying his motion for a new trial.

Following the Rule 104 hearing, the judge ruled upon the admissibility of the evidence from the five witnesses. He concluded that "[w]hile [some] of the evidence may cast negative aspersions on the defendant, it is not evidence of a prior bad act or wrong . . . [and] is admissible because it is relevant to show why defendant targeted the Chester ShopRite[.]" The judge included in this part of his analysis, the testimony regarding defendant's averred dislike of Losavio, any confrontation between the two, defendant's termination from the Bernardsville store, and the letter defendant wrote to Horner.

The judge characterized some of the other evidence as prior bad acts or wrongs committed by defendant that were relevant and admissible under N.J.R.E. 404(b) because they demonstrated defendant's motive in phoning in the bomb threat on June 10. This category included defendant's complaint regarding Losavio's sexual harassment of his co-workers, his threats to kill Losavio, and defendant's admission in Bernardsville municipal court to breaking the store window. Citing State v. Cofield, 127 N.J. 328 (1992), the judge found by clear and convincing evidence that all of the acts were similar in kind to the offense charged, reasonably close in time, and presented a nexus between defendant's September 2002 discharge from ShopRite and the June 2003 bomb threat.

Defendant now argues his motion for a new trial should have been granted because the judge erred in not finding that his termination was a prior bad act since it reflected on him in a negative light and was unduly prejudicial. He also argues that the evidence was not properly sanitized, was cumulative, and gratuitous. Finally, he contends the probative value of the evidence was outweighed by its prejudicial effect. N.J.R.E. 403.

Our scope of review of a trial judge's determination on the admissibility of other bad conduct evidence is normally narrow, deferential, and limited to whether the judge abused his discretion. State v. Marrero, 148 N.J. 469, 483-84 (1997). However, if the trial court admits evidence of other bad acts without applying the four-step Cofield analysis, no deference is owed to that decision and our standard of review becomes de novo. State v. Darby, 174 N.J. 509, 518 (2002).

"[E]vidence of other crimes, wrongs, or acts . . . may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b) (emphasis added). In order to be admissible, the evidence (1) "must be admissible as relevant to a material issue;" (2) "must be similar in kind and reasonably close in time to the offense charged;" (3)"must be clear and convincing; and" (4) "[t]he probative value of the evidence must not be outweighed by its apparent prejudice." Cofield, supra, 127 N.J. at 338.

Here, the evidence the judge characterized as 404(b) evidence, as well as the other evidence he concluded was not evidence of bad acts, was all relevant to demonstrate defendant's motive in creating a false bomb threat at the Chester ShopRite. That motive was, succinctly stated, his desire to retaliate against Losavio and ShopRite in general. The evidence also demonstrated an almost unbroken temporal chain of events, all involving vandalism against Shop-Rite or Losavio personally, culminating with the false bomb threat. These acts, contrary to the judge's conclusion, were not necessarily similar in kind to the bomb threat; but, as the Supreme Court has recently noted, "[t]he requirement set forth as prong two of Cofield . . . need not receive universal application . . . ." State v. Williams, 190 N.J. 114, 131 (2007). The evidence was clear and convincing, supported by corroborating testimony from multiple witnesses and the surveillance tape. And, its probative value entirely outweighed its potential prejudice. In short, there was no error in admitting any of it.

Defendant's contentions that the evidence was cumulative, or that the judge failed to properly sanitize it, or that the prosecutor elicited some testimony beyond that permitted by the judge are all of insufficient merit to warrant any extensive discussion. R. 2:11-3(e)(2). We are convinced that to the extent any of these complaints demonstrate actual error, they were harmless and in no way affected the outcome of the case, R. 2:10-2, particularly in light of the judge's repeated limiting instructions to the jury which we discuss in more detail below.

Defendant also argues that by eliciting "testimony from three separate police officers that they knew defendant from the past[,]" the prosecutor committed misconduct that requires reversal. We disagree.

Mastro testified that he knew defendant because he and his family once lived in Chester, and from an unrelated prior investigation. Nolan, and a third officer, Mark Martini, simply said they knew him. Although defense counsel did not object to Mastro's statement, he made timely objections to questions posed to the other two witnesses, and the judge limited their testimony.

In State v. Ramos, 217 N.J. Super. 530, 537-38 (App. Div.), certif. denied, 108 N.J. 677 (1987), we held similar testimony-- that the officer knew the defendant--did not imply defendant had a prior criminal record and was not error. Similarly, in State v. Love, 245 N.J. Super. 195, 197-98 (App. Div.), certif. denied, 126 N.J. 321 (1991), we held that testimony from an officer that he knew defendant from interviewing him in a previous homicide investigation did not "support[] an inference by the jury that defendant had been involved in prior criminal activity[.]" We find no basis to reverse defendant's conviction on this ground.

We find defendant's claim made in Point IV--that his motion for a new trial based upon trial counsel's ineffectiveness should have been granted--is more appropriately addressed in the context of post-conviction relief. R. 3:22-1. "[A] defendant's claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required." State v. Preciose, 129 N.J. 451, 462 (1992). As such, they are particularly suitable for post-conviction relief, not direct appeal. We therefore leave defendant to pursue such a claim in that context if he so chooses.

III.

In Point II, defendant argues that the judge should have granted his motion for a mistrial, or at least voir dired the jury, after the courthouse fire alarm sounded causing the building to be evacuated in the middle of the trial. When this occurred, neither defendant nor the jurors were actually in the courtroom because the proceedings had not commenced. The judge did not know what caused the alarm to sound.

"The standard for granting a mistrial is the same as that for granting a new trial motion, namely whether or not the error is such that manifest injustice would result from continuance of the trial and submission of the case to the jury." Pressler, N.J. Court Rules, comment 5.1 on R. 3:20-1 (2009); State v. Hightower, 146 N.J. 239, 266 (1996). We review the decision on the motion, as well as whether a cautionary instruction was necessary, under an abuse of discretion standard. Ibid. In either case, the decision "is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J 640, 647 (1984).

Here, the judge acknowledged that the case related to a bomb threat that resulted in an evacuation of the ShopRite. But, the judge did not believe the fire alarm had any impact on the trial other than to interrupt it. Regarding defendant's request that he voir dire the jury, the judge concluded that making such an inquiry would potentially prejudice defendant by highlighting the coincidence. Absent any other proof in the record to support the proposition that the jury was somehow influenced by these events, we will not second-guess the judge's exercise of his broad discretion.

IV.

In Point V, defendant raises for the first time the adequacy of the judge's limiting instruction as to the 404(b) evidence. Prior to any witness taking the stand, the judge explained the nature of 404(b) evidence and its general inadmissibility, then stated,

You may only consider this . . . as relevant to defendant's motive for allegedly calling in the bomb threat to the Chester ShopRite and only as relevant to determine whether or not he intended to cause damage to the Chester ShopRite property.

Midway through the trial, the judge gave the jury another limiting instruction regarding 404(b) testimony.

The State has introduced evidence that, if believed, shows that the defendant filed a complaint that was not pursued . . . alleging that [Losavio] sexually harassed two female employees and . . . [defendant] was fired from the Bernardsville ShopRite after making threats to two employees.

. . . .

The State also introduced evidence that after defendant was fired and told that he was not allowed on [the] property, he . . . threw eggs at the [store] and . . . broke the door window . . . and that he threw eggs at [Losavio's] car which was parked at the [other] ShopRite.

. . . .

Normally, such evidence is not permitted under our Rules of Evidence. This is because our Rules specifically exclude evidence that a defendant has committed uncharged crimes, wrongs or acts when that evidence is used only to show that the defendant has a disposition or tendency to do wrong[.]

. . . .

[This] evidence, should you choose to believe it, has been introduced only for a specific narrow purpose. You may only consider this evidence as relevant to defendant's motive for allegedly calling the bomb threat . . . and only as relevant to determining whether or not he intended to cause damage to Chester ShopRite property.

He also told the jury that it "may not - and I emphasize 'may not' - use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person." The judge repeated these instructions after the State rested, and in his final instructions to the jury.

Since no objection was ever made to any of these charges, we must consider whether they were erroneous and if the error was "clearly capable of bringing about an unjust result." R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of a '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422-23 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the affect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised [] was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).

Defendant essentially argues the language of the charge used did not repeat the model criminal jury charge verbatim. However, defendant is not entitled to the verbatim use of the model charges; rather, he is "entitled to an adequate instruction on the law[,]" which he received. State v. Pigueiras, 344 N.J. Super. 297, 317 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002) (citation omitted). There was no error, much less plain error.

V.

We consider the issues defendant raises in Point VI to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

Our review of the trial judge's sentencing decision is quite limited. State v. Gardner, 113 N.J. 510, 516 (1989). We will not substitute our judgment for his. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984). Modification is only necessary if the judge mistakenly exercised his broad discretion and imposed a sentence that shocks the judicial conscience. Roth, 95 N.J. 334, 363-64 (1984). Nothing about the sentence imposed upon defendant shocks our conscience.

Affirmed.

Without objection, the State authenticated the surveillance tape from the A&P through the videotaped testimony of Allen Warner, the co-manager of the store.

The prosecutor had previously moved to amend the criminal mischief charge from a third-degree crime, requiring proof of a pecuniary loss in excess of $2000, to fourth-degree criminal mischief based upon the value of ShopRite's lost merchandise.

(continued)

(continued)

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A-0760-07T4

June 5, 2009