NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM

Defendant, Anthony J. Pasqualini, appeals from an April 20, 2009 judgment of conviction of third-degree theft of movable property, N.J.S.A. 2C:20-3 (Count One); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (Count Two). At sentencing, the judge merged Count One, theft of movable property, into Count Two, receiving stolen property, and sentenced defendant to five years in prison with two and one half years of parole ineligibility.1 The judge imposed restitution in the amount of $18,430 and imposed the appropriate fines and penalties. Under the circumstances of this case, defendant cannot be convicted as the thief and the receiver of stolen goods. We, therefore, vacate the receiving stolen property conviction, but affirm in all other respects.

GWS Contractors (GWS) employed defendant to drive a truck and perform general labor in its business of removing oil tanks and spills on residential properties. GWS used steel beams, varying anywhere between twelve and fifty feet in length, to support the foundation of a house when it removed contaminated soil. The steel beams weighed several thousand pounds and could only be moved using excavation equipment. GWS maintained an inventory of twenty-five steel beams and stacked them behind a dumpster on its property.

On March 5, 2008, a former employee notified Brian Taylor, a GWS foreman, that the steel beam inventory looked low. Taylor inspected the inventory and noticed that some of the beams were missing. Taylor notified Eric Davis, a co-owner of GWS, and Davis verified that twelve steel beams between twelve and fifty-feet in length were missing. Davis estimated the fair market value of the missing beams to be $18,275.

Davis' wife, the other GWS co-owner, contacted Paul Gulgun2 and inquired if he had any information about the missing steel beams. Gulgun lived next to the GWS property. Gulgun reported that a few days before March 5 he heard loud banging in the rear storage area and noticed a GWS truck; however, Gulgun did not see anyone.

Taylor called defendant and accused him of stealing the beams. At first, defendant denied any wrongdoing, but when Taylor stated that Gulgun saw him loading the beams, defendant asked if he could call Taylor later. Defendant called Taylor five minutes later and — after Taylor repeated to defendant that Gulgun had seen him — defendant admitted he had stolen the steel beams. Defendant refused to tell Taylor on the phone where he would find the missing material. Defendant requested Taylor meet him at a Home Depot parking lot to discuss where he took the beams. Taylor called the police before he left to meet defendant.

Defendant met Taylor, told him that he took the steel beams to Blewett Scrap Metal (Blewett), and apologized. Taylor told defendant to return the GWS truck he had been driving that night. Before they left the Home Depot lot, Taylor stated, "I'm sorry it had to turn out this way." Defendant responded, "not half as sorry as I am." They both drove separately back to the GWS site. On the way back to the GWS site, defendant called Taylor and they talked on their cell phones. Defendant stated he stole the steel beams because "you know, times are hard . . . you know how it is." Taylor terminated defendant that night. The next day defendant emailed Davis' wife and said that he "REGRETT[ED] what ha[s] been done." He also stated that "[p]lease I BEG again not to pursue any charges legally."

Taylor paid Blewett $560 and retrieved four of the stolen steel beams. The other beams were no longer at Blewett. Taylor identified the four beams immediately because they had the initials "GWS" welded on them or had GWS special paint markings.

Defendant did not testify at trial, instead relying on his statement to detective James Ryan that was introduced into evidence. Defendant maintained that Davis authorized him to move the steel beams and clean up the yard on his own time. During the statement to Detective Ryan, defendant indicated that he could produce "mitigating factors" and that there were other people who could verify his account. Detective Ryan waited three weeks, called defendant, asked him "where are we," and defendant remained silent.

On appeal, defendant raises the following points:

I

We begin by addressing defendant's argument that the State improperly charged him with receiving stolen property. Under the facts of this case, we are satisfied that it was proper to charge defendant with both offenses.

The investigation revealed that defendant admitted taking the steel beams, although with the explanation that he believed that he had a right to do so. There was, however, no direct evidence, such as an eyewitness, who identified defendant as the person who actually removed the steel beams from the GWS property. There was direct evidence that four steel beams, welded with GWS distinctive markings, were found at Blewett's and delivered to Blewett by defendant. Consequently, in the absence of direct evidence that defendant took the steel beams, it was reasonable for the State to charge defendant with both theft, by unlawful taking, and receiving stolen property.

Having been properly charged with receiving stolen property the State was entitled to seek introduction of defendant's prior convictions for receiving stolen property as part of its proof that defendant knowingly possessed stolen property. N.J.S.A. 2C: 20-7(b)(1), provides in pertinent part that "[t]he requisite knowledge or belief [that property is stolen] is presumed in the case of a person who: (1) [i]s found in possession or control of two or more items of property stolen on two or more separate occasions[.]" The trial court, after conducting the requisite N.J.R.E. 104 hearing pre-trial, determined that the evidence was admissible. Prior to the jury receiving testimony on this issue, the court instructed the jury as follows:

At the conclusion of the two officers' testimony, the judge again instructed:

In the final charge, the judge instructed the jury and stated that "you have the right to, if you choose to infer, that the defendant had the requisite knowledge. If you find that . . . defendant was found in possession or control of two or more items of stolen property, on two or more separate occasions." Defendant, for first time on appeal, claims that the trial court's instruction on past criminal conduct improperly permitted broad and prejudicial use of other-crime evidence. Since defendant failed to object to the contested jury instruction, we review defendant's argument under the "plain error" standard of review. State v. Torres, 183 N.J. 554, 564 (2005).

"Plain error in the context of a jury charge is `[l]egal impropriety in the charge 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.'" Ibid. (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). In determining whether there was any error, the charge must be read as a whole. Ibid. (citing Jordan, supra, 147 N.J. at 422).

It is well settled that "[a]ppropriate and proper [jury] charges are essential" in a criminal case to assure a fair trial. State v. Reddish, 181 N.J. 553, 613 (2004); State v. Green, 86 N.J. 281, 287 (1981). When a defendant identifies an error in the charge, we must evaluate the charge in its entirety. State v. Figueroa, 190 N.J. 219, 246 (2007); State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Vasquez, 374 N.J.Super. 252, 263 (App. Div. 2005). Although a flawed [jury] charge is a poor candidate for rehabilitation or the application of the harmless error rule, State v. Simon, 79 N.J. 191, 206 (1979), a defendant must still demonstrate that the error affected the outcome of the jury's deliberations. State v. Jordan, 147 N.J. 409, 422 (1997).

Here, the trial judge admitted evidence of prior convictions pursuant to the statutory inference and N.J.R.E. 404(b). Therefore, the court's instruction on the statutory inference included 404(b)cautions. The admission of defendant's prior convictions for receiving stolen property was not subject to a 404(b) analysis. The admissibility of this evidence was subject to the express language contained in the receiving stolen property statute. N.J.S.A. 2C:20-7(b). As such, it was not necessary for the court to charge the jury based upon the admission of the prior convictions under 404(b). However, the additional 404(b) instruction did not have the capacity to cause an unjust result. If the jury considered defendant's prior possession of two or more items of stolen property on more than two separate occasions as evidence that defendant knew the steel beams were stolen, it was statutorily permitted to do so. On the other hand, if the jury considered his prior wrongs under 404(b) as evidence that defendant knew the steel beams were stolen but not, as the trial court instructed, as evidence that defendant acted in conformity with his prior wrongs, its consideration of the prior wrongs for on the question of his knowledge was not impermissible. Thus, we conclude the court properly instructed the jury on the permissive inference it was allowed to draw under N.J.S.A. 2C:20-7(b) and the additional 404(b) instruction did not have the capacity to cause an unjust result.

In short, we are satisfied that defendant was properly charged with both theft by unlawful taking and receiving stolen property and that the court did not commit plain error in its instruction to the jury related to consideration of defendant's prior theft-related offenses. We nonetheless vacate defendant's conviction for receiving stolen property. As we observed in State v. Cole, 204 N.J.Super. 618, 630 (App. Div. 1985), "[a]lthough there is some authority that [a] thief cannot be convicted of receiving stolen property . . . this simply means that defendant cannot be convicted as both the thief and receiver, but can be charged with both and convicted of either."

II

Defendant argues that the State violated his due process rights by contending that defendant committed the theft because he was destitute. We disagree that the assistant prosecutor argued to the jury that defendant stole the steel beams because he needed money.

While generally evidence of impecuniosity of a defendant should not be introduced into evidence and should not be commented upon, State v. Mathis, 47 N.J. 455, 471-72 (1966), the assistant prosecutor's comments during his opening statement and summation were not improper. The assistant prosecutor merely commented on the explanation defendant gave for his own behavior, especially because defendant's explanation contradicted his claim-of-right defense.

After he stole the steel beams, defendant explained his behavior to Taylor and Davis' wife. The day after defendant told Taylor that "times were hard," defendant sent an email to Davis' wife that stated, in part:

Defense counsel did not object to the assistant prosecutor's reference to defendant's own explanation for committing the theft. Pursuant to Rule 2:10-2:

"Under that standard, `[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). Defendant's failure to object to the assistant prosecutor's comments indicates that he did not, in the context of the proofs, deem them prejudicial or improper. State v. Thornton, 38 N.J. 380, 399 (1962), cert. denied. 374 U.S. 816, 83 S.Ct. 1710, 10 L. Ed. 2d 1039 (1963); State v. Plowden, 126 N.J.Super. 228, 232 (App. Div.), certif. denied. 64 N.J. 504 (1974). In fact, in his summation to the jury, defense counsel quoted the same language from defendant's email to Davis' wife. We hold that the assistant prosecutor's comments did not constitute error, let alone plain error. R. 2:10-2.

III

Defendant argues that the State violated his due process rights when the assistant prosecutor referred to him as a common thief. Defendant contends that the assistant prosecutor attacked his character wrongly. We analyze defendant's argument under the plain error standard because no objection was made. R. 2:10-2.

In his opening statement, the assistant prosecutor stated:

In his summation, the assistant prosecutor stated:

Improper comments by a prosecutor require reversal when the prosecutor's misconduct is "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Nevertheless, a prosecutor is not precluded from making "a vigorous and forceful presentation of the State's case[.]" State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L. Ed. 2d 1160 (1958). We conclude that the statements by the assistant prosecutor did not disparage defendant, and the reference to defendant as a common thief by stealing the steel beams was not clearly capable of producing an unjust result or so egregious that it deprived defendant of a fair trial. Frost, supra, 158 N.J. at 83.

IV

Next, we turn to defendant's argument that the judge erred because he did not read the claim-of-right-charge to the jury immediately after he concluded charging the jury on the elements of theft and receiving stolen property. We must apply the plain error standard of review, Rule 2:10-2, because the defense did not object.

A claim-of-right is an affirmative defense to theft. N.J.S.A. 2C:20-2c(2) provides that:

The burden of proof is on the State to prove beyond a reasonable doubt that defendant did not honestly believe that he had a right to the property or was authorized to "acquire or dispose of it as he did[.]" See State v. Galiyano, 178 N.J.Super. 393, 397 (App. Div.) (N.J.S.A. 2C:1-13b(1) "makes it clear that the State must disprove an affirmative defense"), certif. denied, 87 N.J. 424 (1981).

Prior to the lunch break, the judge charged the jury on the elements of theft and receiving stolen property. He explained that if the jury found beyond a reasonable doubt all of the elements on either theft charge, they must find defendant guilty. The judge released the jury for lunch and told counsel that he intended to continue by charging the jury on the permissible inferences, N.J.S.A. 2C:20-7b(1), and claim-of-right. After lunch, the judge did just that; he devoted three paragraphs in the charge to the permissible inferences and then charged the jury on defendant's claim-of-right. Defendant contends that this sequence prevented the jury from considering his claim-of-right defense. Defendant argues that the jury would never reach his claim-of-right defense if they found him guilty on the theft offenses. We disagree.

After the judge charged the jury on claim-of-right, he stated:

Looking at the jury charge as a whole, Vasquez, supra, 374 N.J. Super. at 263, we see no error in the charge given by the judge. As phrased the judge did not erect a firewall. The judge expressly informed the jury that it should consider defendant's claim-of-right defense as it considered all other elements of each offense.

V

Defendant next argues, again for the first time on appeal, that the jury instructions on defendant's oral statements fell short of the requirements of State v. Hampton, 61 N.J. 250 (1972) and State v. Kociolek, 23 N.J. 400 (1957). There was no error here "clearly capable of producing an unjust result." R. 2:10-2.

The judge told the jury that they were "the sole and exclusive judges of the facts, the credibility of the witnesses, and that weight to be attached. . . ." Additionally, the judge repeatedly charged the jurors on how to assess the witnesses' credibility, including their demeanor, their possible bias or interest in the case's outcome, and whether other evidence corroborated or contradicted their testimony.

These instructions sufficed under the circumstances. Defendant never disputed the credibility of the statements he made to Taylor, Davis' wife, or Detective Ryan. In fact, in his opening and closing to the jury, defense counsel referred to defendant's statements. This was, therefore, neither the usual case of "miscommunication" or dispute about the words defendant said, nor a lapse in memory about what he said, which triggers the need for the cautionary language of Hampton3 and Kociolek4. Accordingly, we find no error in the instructions actually given.

VI

For the first time on appeal, defendant argues that the testimony of Officer Joseph Deprossimo concerning his visit to the GWS site introduced inadmissible hearsay contrary to Bankston5. Defendant also contends that Taylor introduced hearsay evidence. We find no merit in either argument.

In State v. Bankston, 63 N.J. 263, 268 (1973) the Supreme Court acknowledged that "the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so `upon information received.'" (citation omitted). The relevance of such testimony is to explain the officer's conduct. Ibid. The testimony becomes inadmissible if the officer repeats what some other person told him concerning a crime by the accused. Ibid. The Bankston rule is rooted in the principle that "the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him." Id. at 269; State v. Branch, 182 N.J. 338, 348-50 (2005). "[A] police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." Branch, supra, 182 N.J. at 351.

Officer Deprossimo was dispatched to GWS because of a report of theft. After he spoke to Davis and Taylor, Officer Deprossimo listed defendant as a suspect. Officer Deprossimo did not imply that he had superior knowledge that incriminated defendant, and did not repeat what Davis and Taylor told him. Furthermore, Davis and Taylor both testified and were cross-examined. Officer Deprossimo also received information regarding Gulgun, but did not remember talking to him. Gulgun, too, was cross-examined by defense counsel. We see no error here, let alone plain error, with Officer Deprossimo's testimony.

Taylor testified that a former GWS employee told him that the steel beam inventory looked low. The defense attorney objected on hearsay grounds. The judge overruled the objection and gave a limited instruction to the jury and stated that "[t]he information provided is not provided[] . . . to prove it is true . . . it is only introduced so, you understand the context of the information, that led [Taylor] to do whatever it is he is going to testify he did." Moreover, defense counsel did not object to Taylor's testimony that Gulgun told him what he heard and saw. On cross-examination, Taylor and Gulgun admitted that Gulgun did not see defendant loading a GWS truck with steel beams. Thus, Taylor did not introduce hearsay evidence.

VII

Defendant argues that his sentence of five years in prison with two years of parole ineligibility is excessive. The scope of our review of a sentence is limited. State v. Evers, 175 N.J. 355, 386 (2003). Appellate review is not an opportunity for this court to substitute our judgment for that of the trial judge and to impose our view of the appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); Evers, supra, 175 N.J. at 386. Rather, we review a sentence within a set of guidelines established by the Supreme Court in State v. Roth, 95 N.J. 334, 364-66 (1984). Within these guidelines, we can:

In sentencing a defendant, a trial court must identify the relevant aggravating factors of N.J.S.A. 2C:44-1(a) and the relevant mitigating factors of N.J.S.A. 2C:44-1(b), "determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989).

The judge denied the State's motion to sentence defendant to an extended term as a persistent offender even though defense counsel admitted that defendant was eligible pursuant to N.J.S.A. 2C:44-3a. The judge found aggravating factors (1),(3),(4),(6),(9) and (11) under N.J.S.A. 2C:44-1a. We find that the judge erred by finding aggravating factors (1), (4) and (11); however, the sentence is not "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), and does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.

Defendant's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed as modified.