Defenses to 2c:33-4 Criminal Harassment
Under
N.J.S.A. 2C:33-4, a person commits the offense of harassment if, "with
purpose to harass" he:
a. Makes, or causes to be made, a
communication or communications anonymously or at extremely inconvenient hours,
or in offensively coarse language, or any other manner likely to cause
annoyance or alarm;
b. Subjects another to striking,
kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of
alarming conduct or of repeatedly committed acts with purpose to alarm or
seriously annoy such other person.
The NJ Supreme Court J.D. v. M.D.F. ___ NJ
___ (A-115-09; 065499) decided July
28, 2011 examined the harassment statute and held
N.J.S.A. 2C:33-4 a. requires proof
of a single communication that was made anonymously, at an extremely
inconvenient hour, or in a coarse or offensive language, for the purpose to
harass and in a manner likely to cause annoyance or alarm. Subsection c.
requires proof of a course of alarming conduct or repeatedly committed acts
with the purpose of alarming or seriously annoying the victim. Distinguishing
between acts that constitute harassment for purposes of domestic violence and
those that are ordinary domestic contretemps can be difficult. Such a
determination may depend on the second inquiry required for complaints under
the Act.
….
Not all offensive or bothersome
behavior constitutes harassment. Here, the trial court did not identify which
subsection of the harassment statute it was applying. The evidence is not
sufficient to support a finding under subsection a. because merely being
outside of the home in the morning hours is not harassment and J.D. was unaware
he was outside until R.T. alerted her, after which he beat a hasty retreat.
Theft and calling mom senile fool not
criminal harassment. E.M.B. v R.F.B.
419 NJ Super. 177 (App. Div. 2011)
Plaintiff's stated reasons for
seeking a final restraining order against her 56 year old son were that he had
stolen her car keys, cell phone, bankbook, money and some jewelry. In addition,
plaintiff testified that defendant had locked her out of the house on one
occasion and called her a "senile old bitch." The trial court entered
a final restraining order based upon harassment. The court reverse because
theft is not one of the enumerated predicate acts under N.J.S.A. 2C:25-19 and
because the evidence was insufficient to prove the thefts or other acts were
committed with the requisite purpose to harass.
Thus,
"integral to a finding of harassment under either section is the
establishment of the purpose to harass . . . ." Corrente v. Corrente,
281 N.J. Super. 243, 249 (App. Div. 1995).
As was
emphasized in Corrente, it is not sufficient that plaintiff feel alarmed
or threatened. Id. at 249. Plaintiff's subjective feelings are not a substitute
for the required judicial finding of intent to harass by the defendant.
In a deeply dysfunctional marriage, it is not
uncommon for emotions to boil over, and for angry words to be hurdled about,
often peppered with profanities. Under similar circumstances, the court have
held that a husband's statement that he would bury his wife, uttered after she
announced her intention to obtain a divorce, did not constitute harassment. Peranio
v. Peranio, 280 N.J. Super. 47, 56 (App. Div. 1995). Even the exchange of
vulgarities on numerous occasions and inappropriate expressions of anger,
including kicking a garbage can in the presence of the parties' young children,
is not harassment. J.N.S. v. D.B.S., 302 N.J. Super. 525, 527 (App. Div.
1997).
Under either section of this statute, a
defendant must act with
the
purpose to harass. Bresocnik v. Gallegos, 367 N.J. Super. 178,
183 (App. Div. 2004). Subsection (a) targets specific modes of speech,
including communications "at extremely inconvenient hours," and
requires that the manner of speech be "likely to cause annoyance or
alarm[.]" Subsection (c) requires a course of repeated conduct, motivated
by a higher degree of purpose, "to alarm or seriously
annoy[.]" State v. Hoffman, 149 N.J. 564, 576
(1997).
In Hoffman,
supra, our Supreme Court set forth the elements of N.J.S.A.
2C:33-4(a):
(1) defendant made
or caused to be made a communication;
(2) defendant's
purpose in making or causing the communication to be made was to harass another
person; and
(3) the
communication was in one of the specified manners or any other manner similarly
likely to cause annoyance or alarm to its intended recipient.
[149 N.J.
at 576.]
The laws of New Jersey
are not designed to interdict all forms of unpleasant exchanges between
parties." See Bresocnik, supra, 367 N.J. Super. at
181. Consequently, the court does not measure the effect of the speech upon the
victim; the court looks to the purpose of the actor in making the communication.
State v. L.C., 283 N.J. Super. 441,
450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996).
The harassment statute was not enacted to "proscribe mere speech, use of
language, or other forms of expression." Ibid.; see also State
v. Fin. Am. Corp., 182 N.J. Super. 33, 36-38
(App. Div. 1981). Rather, since the First Amendment to the
United States Constitution "permits regulation of conduct, not mere
expression," the speech punished by the harassment statute "must be
uttered with the specific intention of harassing the listener." L.C.,
supra, 283 N.J. Super. at 450.
In Hoffman, supra,
the Court found that two mailings of an envelope each containing a torn support
order, a financial statement, and a motion to modify support, that were not
sent anonymously and did not contain coarse language, did not constitute
harassment. 149 N.J. at 583.
In Bresocnik, supra,
the court found the evidence did not show that a former husband's attempt to
communicate with the complainant by sending letters and emails was meant to
harass. 367 N.J. Super. at 182-83. Specifically, the court found that a
letter delivered by an investigator to complainant's school where she was a
teacher, in which he expressed love and regret for loss of their relationship,
was innocuous and was neither threatening nor irrational. Id. at 182.
As noted, a specific
finding of a purpose to harass is integral to a finding of harassment. E.K.
v. G.K., 241 N.J. Super. 567,
570 (App. Div. 1990). Here, the trial judge made no specific finding of a
purpose to harass and the facts provide no support for such a conclusion.
Plaintiff's reaction to defendant's efforts at communication does not supply a
basis to infer that his purpose was to harass her.
The facts here do not support a finding
that defendant harassed plaintiff under N.J.S.A. 2C:33-4(a). His
communication or attempt to communicate with plaintiff was not done
anonymously, nor at an extremely inconvenient hour, nor did he use offensively
coarse language. The facts do not support a finding that his communication was
in "any other manner likely to cause annoyance or alarm."
"Annoyance" as used in this subsection means to "disturb,
irritate or bother." State v. Hoffman, 149 N.J. 564, 585
(1997). 149 N.J. at 580. This "catch all" provision of
subsection (a) "should generally be interpreted to apply to modes of
communicative harassment that intrude into an individual's 'legitimate
expectation of privacy.'" Id. at 583.
The sole fact that speech is annoying does not
make it harassing. Bresocnik v. Gallegos, supra, 367 N.J.
Super. at 182-83.
See also
No purpose to
harass
E.M. v. G.M., App. Div. (per curiam)
(17 pp.) Defendant appeals from a final restraining order by the Family Part
pursuant to the Domestic Violence Act of 1991. Finding that the four incidents
relied on by the court to find that defendant had committed domestic violence
based on the petty disorderly persons offense of harassment are devoid of
evidence showing defendant's purpose was to harass plaintiff and that there is
no competent credible evidence that final and permanent restraints are
necessary to protect plaintiff from future abuse where the court rejected
plaintiff's account of physical abuse at the hands of defendant as not
credible, the panel reverses.
Source: dailybriefing@njsba-njldailybriefing.com
Daily Briefing - 09/16/2011
See also Harassment
required proof of intent to alarm or annoy.
State v. DeGiulio (App. Div.) decided May 20, 2009 14-2-3889
Unpublished
Where defendant was charged only with violating N.J.S.A. 2C:33-4(c), the
judge erred in sua sponte amending the complaint to include violations under
4(a) and 4(b) and defendant's convictions for harassment under the latter two
provisions are reversed. His conviction under 4(c) must be reversed as the
State failed to prove a course of alarming conduct or of repeatedly committed
acts done with the purpose to alarm or seriously annoy his ex-wife. His
conviction for contempt under N.J.S.A. 2C:29-9(b) for knowingly violating the
terms of the FRO previously entered against him is also reversed since there
was no evidence of a harassing communication with his ex-wife nor did he commit
an act of domestic violence against her when a near collision occurred when
they both pulled their cars out of their parking spaces at the same time during
a parenting exchange.
Source:
NJ Law Journal 196 NJLJ 553 May 25
See also Harassment Requires Purpose to Harass. State
v. Otto (App. Div. 2008) A-2502-07T4 Unpublished.
Conviction following a
trial de novo of the petty
disorderly persons offense of harassment affirmed; the defendant police officer
was the subject of an internal investigation that led to his discharge; a
female sergeant who had participated in the investigation told the defendant
that he was being discharged, and she escorted him to his office to gather his
belongings; the defendant first stopped at his car, where he retrieved a bottle
of green liquid; while cleaning out his desk, the defendant sprinkled green
liquid out of the bottle onto one of the sergeant's feet; the sergeant, who was
wearing open-toed sandals, began to feel a "burning" or
"tingling" sensation, and she washed her foot, told the defendant
that she was going to press charges, and took the bottle of green liquid as
evidence; the defendant lunged at the sergeant, who backed away from him until
she was up against a wall; the Appellate Division rejected the defendant's
argument that the State had failed to establish under N.J.S.A. 2C:33-4 the
necessary element of purpose to harass and that his only purpose was to
retrieve the bottle and not to intimidate or harass the sergeant.
Source: NJ Lawyer
Daily Briefing – October 23, 2008
