NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

This is our decision following a temporary remand to the trial court.1 Following a lengthy jury trial, at which more than eighty witnesses testified, defendant Samuel Siligato was convicted of: second-degree criminal attempt to commit theft by deception in excess of $75,000 from an insurance company, by creating or reinforcing a false impression that a fire at his building in Winslow Township caused him $206,900 in damages, N.J.S.A. 2C:5-1; second-degree conspiracy, N.J.S.A. 2C:5-2; and third-degree tampering with witnesses Gary Dixon, Sr. (Gary, Sr.) and William Dixon, N.J.S.A. 2C:28-5(a).

Judge Albert J. Garofolo denied defendant's motion for a new trial and imposed concurrent five-year terms on the conspiracy and criminal attempt convictions, and consecutive three-year terms on the two tampering convictions. Thus, the aggregate custodial term is eleven years.

The facts surrounding defendant's conviction are fully set forth in our first opinion. We provide the following summary to give this decision context. Defendant's charges stemmed from his attempt to collect insurance proceeds on a commercial building that he had owned for several years. The building burned down in 1998 and defendant submitted claims for damages pursuant to two policies. The fire was deemed suspicious. An investigation by the fire marshal revealed that a liquid accelerant had been used, and eliminated "[a]ll accidental and natural causes" for the fire. An investigation by the insurers led to the conclusion that some of defendant's claimed damages were false. A State Grand Jury returned an indictment charging defendant with offenses related to the false claims (the theft charges).

Trial on the theft charges began in May 2009, but the judge declared a mistrial prior to the opening statements, when the State announced its intent to seek a second indictment against defendant for witness tampering. A State Grand Jury indicted defendant for second-degree witness tampering for attempting to induce Gary, Sr. to testify falsely about the theft charges, N.J.S.A. 2C:28-5(a) and -6; third-degree witness tampering for inducing William Dixon (Willy), Francisco Diaz, James Cooper, and Calvin Blackshear to testify falsely at a pre-trial hearing, N.J.S.A. 2C:28-5(a) and -6; and third-degree witness tampering for attempting to induce Willy to testify falsely, withhold testimony, or absent himself from a grand jury proceeding to which he had been summoned (the tampering charges).

Following his convictions and sentencing, defendant appealed, raising four contentions including the following:

We remanded this issue to the trial judge with instructions to hold an evidentiary hearing and make findings. The remaining contentions were not addressed pending a conclusion of the remand. We retained jurisdiction. State v. Siligato, No. A-0603-06T1 (App. Div. September 3, 2009) (slip op. at 39).

The purpose of the remand was to determine whether Louis M. Barbone, defendant's trial counsel, had prejudiced his client's rights because the attorney had previously represented certain witnesses who testified against defendant at trial. At the time the witness tampering episodes took place, Barbone's office represented Gary, Sr., his fiancée, Angela Franks, Gary Dixon, Jr., and Willy. Barbone's office continued to represent Gary, Sr., Willy, and Franks at a time when they were all cooperating with the State by providing information about defendant. Moreover, Barbone's office was representing Willy when, on August 25, 2005, he secretly tape recorded a conversation with defendant that was later admitted at trial.

Direct references to Barbone's representation of Willy were redacted from the tape of that conversation when it was played to the jury. It was defendant who, during that taped conversation, said that "Lou" would get an attorney to represent him at his scheduled Grand Jury hearing. Thereafter, evidence was adduced that defendant alone drove Willy to an attorney and no further information was provided that it had been arranged by Barbone. By the time Franks and Gary, Sr. testified at trial, they were no longer current clients of Barbone.

On remand, Judge Garofolo thoroughly reviewed the issue and heard testimony from Lewis Korngut, the Deputy Attorney General who represented the State at trial, Erika Appenzeller, Esq., an associate in Barbone's law office, and Barbone. Following the hearing, the judge found:

On this appeal after remand, defendant contends that:

We disagree.

We concur substantially with Judge Garafolo's written remand decision. It is apparent that defendant was aware of Barbone's multiple representations and tacitly acceded to counsel's strategy. Defendant's contentions do not merit further discussion in a written opinion. R. 2:11-3(e)(2).

We also reject other contentions by defendant and affirm the conviction and sentence.

Because we remanded defendant's initial appeal to address the attorney representation issue, we did not at that time consider the other arguments defendant posed. We do so now.

First, defendant contends:

We disagree.

The "theft" in question was the amount of the insurance claim that defendant made. The record established that defendant's claim was clearly in excess of $75,000. The trial judge rejected a similar argument and ruled that:

We agree with this analysis.

Theft constitutes a second degree crime if "the amount involved" is $75,000 or more, and a third degree crime if "the amount involved" exceeds $500, but is less than $75,000. N.J.S.A. 2C:20-2(b). However, "fair market value" is not an element of the offense of attempted theft by deception. Under N.J.S.A. 2C:20-2, it is the amount of the theft, rather than the method used to calculate the amount, that is an element of the crime. The State alleged that the amount defendant intended to steal was set forth by him in the "sound value" column of his claim forms. Thus, the State relied on a statement by the defendant as to the amount he intended to obtain by his illegal conduct. See N.J.R.E. 803(b). That admission was not submitted for the purpose of establishing the actual value of the property, but rather the amount defendant intended to obtain as the result of his deception.

In evaluating a motion for acquittal based on the insufficiency of the evidence, a court must view the totality of the evidence, whether direct or circumstantial, in the light most favorable to the State. State v. Perez, 177 N.J. 540, 549 (2003). The State is afforded the benefit of testimony in its favor as well as all favorable inferences to be drawn from that testimony. State v. Reyes, 50 N.J. 454, 459 (1967). Applying that standard to the facts of this case, the State presented sufficient evidence to overcome the motion for acquittal.

Defendant also contends:

Defendant argues that the judge improperly allowed "other crimes" evidence in the form of testimony regarding defendant's reputation and the prosecutor improperly commented on that evidence in his summation. We disagree.

Pursuant to N.J.R.E. 404(b):

Nor is evidence of a defendant's character or character trait admissible "for the purpose of proving that the person acted in conformity therewith on a particular occasion" except when offered by the accused under certain circumstances. N.J.R.E. 404(a).

Defendant cites several instances of such testimony. First, prior to Gary, Sr.'s testimony, the prosecutor requested from the judge "parameters in how far" Gary, Sr. would be permitted to go in stating his perception of defendant to explain the witness' "mindset of why he had acted the way he did in regard to who the defendant was." The prosecutor informed the judge that defendant's wife had told Gary, Sr. that the defendant "was in the Mafia," and Gary, Sr. "had heard stories of the fact that there were bodies buried on the defendant's property and things of that nature." The prosecutor contended that this evidence was "important" to explain Gary, Sr.'s "state of mind and his credibility in terms of why he would . . . perjure himself[.]" The judge found that such evidence would be "highly prejudicial" and, moreover, what was at issue "is what Mr. Siligato attempted to do, not how fearful he was because of his reputation." The judge instructed Gary, Sr. that he was "not permitted to say anything concerning [his] belief about what kind of person [defendant] is."

During the course of Gary, Sr.'s testimony, the prosecutor asked him how much he had weighed in May 2005, and how much he weighed "now." Gary, Sr. responded that he had gone from 145 or 150 pounds to 120 pounds, he did not sleep or eat, that his "life is gone" and he "wouldn't wish it upon nobody."

During Franks' testimony, when she said she had not known defendant personally, but "just knew of him," the prosecutor asked, "How did you know of him? Are you okay?" Defendant contends that Franks "shook and cried for no apparent reason" while she testified. Franks responded, "Town people talk." The judge ordered a sidebar conference. Then the judge warned the prosecutor: "I hope you're around to try this case when it comes back because if it goes up, you just done it [sic]."

Finally, during Willy's testimony about the fact that he had lied to the grand jury, the prosecutor elicited the following exchange:

In response to defense counsel's objection, the judge told the jury to disregard Willy's response. Defense counsel moved for a mistrial. The judge agreed with defense counsel that the questioning was improper, but denied the motion for a mistrial because there was no basis to find that the jury would disregard the instruction.

In his summation, the prosecutor argued that in evaluating Franks' credibility, the jury should view her demeanor: "You saw the fear, the upsetness [sic] of Angie Franks on the witness stand. Were those crocodile tears or were those true emotions on her part? I'll let you decide that." He later repeated this theme:

At the end of the prosecutor's statement, defense counsel objected to these remarks. The judge found that the prosecutor's remarks regarding Franks' demeanor were "a fair inference" based on Gary, Sr.'s allegations that defendant threatened force. The judge also found that there was evidence that Willy had looked afraid, but that "his fear [was] singularly tied to that experience" and that the comment was not out of bounds because it pertained to a description by a third party witness.

The State is not permitted to offer evidence of a defendant's character or reputation unless the defendant raises the issue. See State v. Welsch, 29 N.J. 152, 156 (1959). However, here, those references were fleeting and quickly cutoff by the judge. Moreover, the prosecutor's comments during summation were based on evidence before the jury that was unrelated to the improper evidence of defendant's reputation. Franks' fear of the defendant at trial was an understandable reaction to the fact that she and Gary, Sr. were testifying against him after Gary, Sr. had attempted to assist defendant in avoiding conviction on the theft charges. As the judge recognized, evidence of Willy's fear was provided by the observation of a third-party. Lastly, we note that defendant's acquittal on other charges belies any claim that the jury's decision had been based on defendant's reputation rather than the evidence.

Finally, defendant contends:

We disagree.

The judge found two of the aggravating factors: number three, the risk defendant would commit another offense, based on defendant's commission of the additional crimes of witness tampering while on bail for the theft charges; and number nine, the need for deterrence. N.J.S.A. 2C:44-1(a)(3) and (9). The judge found the existence of mitigating factor (2), that defendant did not contemplate that his conduct would cause serious harm; and factor (7), that defendant had no prior criminal history. N.J.S.A. 2C:44-1(b)(2) and (7). From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence terms are in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

The judge determined that consecutive terms were necessary on the two witness tampering charges, "given the separate objectives, victims, and especially given" that the witness tampering was "committed for the purpose of affecting or influencing the outcome of the trial on the attempted theft by deception." The two separate witness tampering counts were appropriate for consecutive sentences because "they were committed independently of each other, involved separate acts committed at different times and places, [and] involve certain separate victims." Furthermore, they "occurred after the [c]ourt had admonished the defendant concerning continuing acts of suspected tampering, increased the bail and established as a condition of that there be no further" efforts in that regard.

The factors that must guide a trial court's decision whether to impose concurrent or consecutive sentences are:

We also discern no reason to disturb the trial court's application of the Yarbough factors here. Defendant's attempts to obtain Willy's perjured testimony occurred after Gary, Sr. had been arrested. They were done for the purpose of impugning Gary, Sr.'s credibility, rather than his original purpose with Gary, Sr. of avoiding conviction on the theft charges. The witness tampering involved different inducements and threats and, as the judge properly recognized, they occurred at different times and places. They also occurred long after the events that led to the theft and conspiracy charges.

Affirmed.