NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

MAVEN, J.A.D.

A jury found defendant Peter Dacchille, Jr. guilty of one count of third-degree burglary, contrary to N.J.S.A. 2C:18-2 and one count of fourth-degree theft of movable property, contrary to N.J.S.A. 2C:20-3(a), and acquitted on the remaining charges in the indictment. After merging the theft count and the burglary count, the judge sentenced defendant to a five-year prison term with a two-and-a-half-year period of parole ineligibility. Defendant appeals the conviction and sentence. We affirm but remand to correct the judgment of conviction.

The facts as adduced from the trial record are as follows. Defendant was charged with burglarizing three structures with co-defendant, Joseph Cicero. According to Cicero's statement to the police, Cicero drove defendant to General Dynamics, a defunct manufacturing plant. Cicero admitted to lending defendant a saw and a crowbar, which defendant used to steal copper pipes from the plant. Cicero explained that defendant sold the copper at a scrap yard.

At trial, the State did not offer any direct physical evidence linking defendant to the burglaries. Rather, the State relied on Cicero's statement and plea agreement, in which he agreed to cooperate as a witness for the State at defendant's trial. Cicero, however, recanted his story during his testimony, contending that he only implicated defendant because the investigating officer, Detective Lyons, had choked and threatened him, thereby coercing him into making a statement against defendant. In light of his changed testimony, Cicero's statement to police was admitted as a prior inconsistent statement. N.J.R.E. 803(a)(1)(B).

The State also presented defendant's father, Peter Dacchille, Sr. (Dacchille) as a witness. Dacchille had previously provided a recorded statement to police in which he stated he believed his son had burglarized an abandoned building located on Avenel Street; that his son used a saw to commit a theft at General Dynamics; and that his son thereby got "a couple hundred dollars worth" of copper, which he had sold to others. On direct examination, however, Dacchille testified inconsistently with his prior recorded statement. Following a Gross hearing, State v. Gross, 121 N.J. 1 (1990), the court determined that the recorded statement met the reliability requirements of N.J.R.E. 803(a)(1)(A), and permitted the jury to hear the recording.

Defendant elected not to testify. His defense theory was that Cicero's statement was unreliable. Specifically, defendant sought to show that Cicero's statement was 1) made while he was under the influence of narcotics; 2) the product of Lyons's coercion; and 3) motivated by his effort to receive a favorable plea deal. Further, defendant argued that his father's statement to police did not corroborate his guilt.

Ultimately, the jury found defendant guilty solely with respect to the General Dynamics burglary and determined that the value of the stolen copper was between $200 and $500, thereby reducing the theft charge from a third-degree to a fourth-degree offense.

The court denied defendant's post-verdict motion for a judgment of acquittal, and new trial. This appeal followed in which defendant raises the following arguments:

We begin with defendant's contention that the trial court erred by not permitting Dacchille to testify regarding a statement allegedly made by Lyons to defendant in 2005 to show Lyons's bias towards defendant.1 Defendant proffered to the trial court that Dacchille would have testified that in 2005, while he and defendant were sitting in municipal court, Lyons walked by, saw defendant and stated that he would make sure defendant went to jail. Counsel argued that the allegedly threatening statement was a verbal act, not excludable as hearsay, and hence admissible as evidence that the statement was uttered. The trial court denied defense counsel's request to pursue this line of cross examination, concluding that even if the court accepted defendant's argument, Dacchille's statement, as to Lyons's remark, would include an inadmissible hearsay statement, contrary to N.J.R.E. 801(c).

A threatening statement may be offered for a non-hearsay purpose, that is, to establish that the words were uttered. A threat is a verbal act, not excludable under the hearsay rule. See State v. McKiver, 199 N.J.Super. 542, 547-48 (App. Div. 1985) (admitting threats as non-hearsay verbal acts).

Defendant's contention is that Dacchille's testimony would have established Lyons's bias against defendant in 2005 as his motivation to coerce Cicero to implicate defendant in the burglaries. While we agree with the trial judge that Dacchille's testimony would have included impermissible hearsay, he erred by not recognizing that Lyons's statement may have been admissible for a non-hearsay purpose. In addition, the detective is arguably an agent of the State, thereby making his hearsay statement admissible under N.J.R.E. 803(b)(4) as a statement by a party opponent. However, we hasten to conclude that it was harmless error, R. 2:10-2, and a reversal of the conviction on that basis is not warranted.

Even if we were to conclude that the judge should have permitted the testimony under hearsay principles, Lyons's comment was too attenuated from the circumstances in this case to render it relevant. Presenting the 2005 statement, without direct and cross examination of Lyons in this trial to put the statement in proper context, namely Lyons's alleged conduct in the 2005 municipal court interaction and during Cicero's interview, would have been unduly prejudicial to the State as well. As such, Dacchille's testimony, standing alone, would not have proper relevance or probative value, and could have confused the jury. See N.J.R.E. 403.

Given our careful review of the record on this issue, we conclude that it was appropriate to exclude the testimony and decline to disturb the trial court's reasonable exercise of discretion in making this evidentiary ruling. State v. Brown, 170 N.J. 138, 147 (2001) (a reviewing court does not "substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted").

Defendant further contends that the verdict should have been set aside because the State failed to offer competent evidence of the value of the stolen copper. At trial, a Woodbridge police officer testified that the maintenance man at General Dynamics estimated the value of the cooper at between $500 and $600. Dacchille had told police that defendant received "only a couple hundred dollars" for the scrap copper. The judge later instructed the jury that "[s]ince the value of the moveable property, the copper piping, determines the degree or severity of the crime, the State must prove its value beyond a reasonable doubt. If you find defendant guilty, then you must indicate the value of the property."

Defendant neither objected to the jury charge, nor did he argue the insufficiency of the proof of the value of the piping in his post-verdict motion for a judgment of acquittal. Hence, we review this claim of error under the plain error standard. See R. 1:7-2 and R. 2:10-2.

After careful consideration of the record, we conclude that there was sufficient evidence to establish that the value of the copper piping was between $200 and $500, as required for a fourth-degree theft offense under N.J.S.A. 2C:20-2(b)(3). On this record, the jury could have reasonably concluded, based on the aforementioned evidence, that the value of the copper was at least $200 (i.e., "a couple hundred dollars") but not more than $500.2 Considering the judge's instructions as a whole, we are satisfied that the jury was sufficiently instructed with respect to the necessity of determining the value of the stolen property in order to find defendant guilty. We reject defendant's claim that the State's evidence of value was too speculative to support the jury's finding, and note that there was no expert or other counterproof indicating that the copper had a value less than $200.

Lastly, defendant contends that his sentence was manifestly excessive and should have been reduced. We disagree. We are satisfied that the judge correctly identified and applied the relevant aggravating and mitigating factors. The judge appropriately considered defendant's extensive criminal history, which included both arrests and convictions for prior thefts. Additionally, the judge articulated adequate reasons for imposing the sentence. Therefore, the overall sentence, being neither manifestly excessive nor unduly punitive, does not constitute a mistaken exercise of discretion. See State v. Bieniek, 200 N.J. 601, 607-09 (2010).

The judgment of conviction is affirmed. However, the matter is remanded to correct the judgment of conviction to accurately reflect the theft conviction as a fourth-degree offense.