Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. Appointments can be scheduled at 732-572-0500. He is author of the ABA's book "Criminal Law Forms".
2053 Woodbridge Avenue - Edison, NJ 08817

Friday, May 15, 2015

Defenses to 2c:33-4 Criminal Harassment

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.
          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

Wednesday, May 13, 2015

What happens in the typical NJ Municipal Court criminal and Traffic Ticket case in NJ?

What happens in the typical NJ Municipal Court criminal and Traffic Ticket case in NJ?

       After you have retained [paid] the attorney, your attorney will prepare a letter of representation to the court and a demand for discovery to the Prosecutor.

After you have retained [paid] your attorney, call the court, plead not guilty and give the court the name of your attorney and confirm the address they have for you is correct. The date on the initial complaint or ticket is the first appearance date. If you hire and attorney and a letter of rep is sent, you do not need to appear for the first appearance/ arraignment. If you will be taking a vacation or business trip during the next two months, advise the court and provide them with written details of the trip. The court does not accept email. All communications are hard copy via US Mail.
In traffic matters, we highly recommend you contact DMV, now Motor Vehicle Commission, and obtain a driver's license abstract. 888-486-3339 or 609-292-6500. This will help you when we go to court.

       The court schedule a hearing date and will mail a computer notice to you and your attorney. Our law office will mail a letter to our clients to remind them of the hearing date.
You are reminded that every time you go to Court or come to our office, you should bring your entire file with all documents and letters you have, plus everything received from our office, the Court, police, or DMV/MVC applicable to your case.

      We as your attorney may file certain motions applicable to your case. We will mail you copies.

       Police Records/ Discovery
       When we receive police reports, we copy and mail to clients. For State Police sometimes this takes 5 weeks. Please read the police records, which are called Discovery from the Prosecutor. Please write down any inaccurate statements or comments and mail them back to me. Please reference the page and paragraph of the inaccurate details. Do not call the office to indicate the inaccurate details. Keep the portions of Discovery that are correct.
       If you plead guilty or are found guilty, the judge at the time of sentencing always has several options including but not limited to jail, probation, community service, restitution and substance abuse counseling. Please prepare and mail to my office a list of 15 reasons why the judge should not impose the maximum penalties or fines within 10 days of receiving this letter.
       The judge will also review any letters or documents that are submitted to the Court on your behalf. For clients that have multiple prior violations, we recommend very strongly that you obtain letters from relatives or other individuals who know you who would be willing to write to the Court to indicate that there should not be incarceration. These letters should set forth favorable aspects regarding your life and your future.  They should point out some of the good traits that you possess.  They should also feel free to put any other reasons why the Court should impose the minimum penalties.  Bring these letters to the court. These letters are for your benefit and these instructions should be followed.
       If the Court is going to suspend your driver's license, you should get a ride to court since the judge will confiscate your license. Most Judges will no longer issue a temporary license to drive home and require you to surrender your license to the court. Obtain alternate ID. If you have any questions, please contact my office.

      We recommend to clients that have alcohol or drug charges to obtain Substance Abuse Treatment and attend AA or related meetings. You should keep a detailed record of every event and meeting you attend and try to obtain proof of this attendance.  Make two (2) photocopies of this documentation and bring it to court with you to give to the Prosecutor and Judge.  As always, be sure to bring your entire file with you any time you come to court

What Happens on Your Day in Court?
          It is very important that you arrive in court on the day and time stated on your ticket, summons, subpoena, or court notice. In addition to bringing your file, we recommend that you bring a magazine or some light reading because the courts often take recesses and delays often occur. The court will not permit you to use your cell phone inside the courtroom, even for email. When you arrive, please check in. Hearing times are often delayed. If by chance, I or the attorney in my office handling the hearing is not at the hearing room when you arrive, please do not panic. We will soon arrive to handle the case. We often travel from another court. Do not call the law office if you do not see the attorney right away unless there is an emergency.
          Usually we will go to speak directly with the Prosecutor or Court Clerk prior to going into the courtroom. Please sit in the courtroom/hearing room close to the front row until we arrive. Do not wait in the lobby or outside. In municipal court/traffic cases, do not speak with the Prosecutor, wait for your attorney to arrive. Do not leave the court and go home until instructed by our office. If you will have to pay court costs or a fine, bring a checkbook or cash. Most towns and state agencies still do not accept credit cards.

If you arrive late, or if your name is not called, you should notify court personnel immediately.
If the defendant does not appear, the judge will advise all witnesses when they may leave.  A warrant will be issued for the defendant who fails to appear, and his/her driving privileges may be suspended.
All municipal court proceedings are tape recorded. Therefore, it is necessary for everyone in the courtroom to remain quiet until it is their turn to speak. The length of time you will be in court depends on many things. Some cases take longer than others. Please be patient so that the court may give each case the time and attention it deserves.
At the beginning of the court session, the judge will give an opening statement, explaining court procedures, defendants’ rights, and penalties. As each case is called, the judge will individually advise each defendant of his/her rights. A case may be postponed to permit the defendant to hire a lawyer. Source
If the defendant rejects the plea offer by the prosecutor, and all involved parties are present and prepared, the case will proceed to trial at the end of the court session. Once the judge has heard the testimony, he/she will decide if the defendant is guilty, not guilty, or if the case should be dismissed. If the defendant pleads guilty or is found guilty after a trial, the judge will impose a sentence. Source:

In What Order Are Cases Called?
  The order in which cases are called is controlled by the New Jersey Court Rules. Cases are generally called in the following order:
         1.   Requests for postponements.
         2.   Arraignments (Advising defendants of rights/penalties).
         3.   Guilty pleas: Where defendant is represented by an attorney.
         4.   Where defendant is not represented by an attorney.
         5.   Not guilty pleas trials: Where defendant is represented by an attorney.
         6.   Where defendant is not represented by an attorney [these go last]

Who Are the People Involved?
The Complainant: The complainant is the person who signed the complaint (may be a private citizen or police officer). The complainant is a witness for the state and will generally be given an opportunity to speak with the municipal prosecutor about the case. Once a complaint has been filed, it cannot be withdrawn and it generally cannot be dismissed without the consent of the prosecutor.
The Defendant: The defendant is the person formally accused of the violation. The defendant will be informed of the charges, possible penalties, and his/her right to an attorney. The defendant is presumed innocent until proven guilty beyond a reasonable doubt. The burden of proof is always on the state. The prosecutor must prove that the defendant committed each part of the offense charged. The defendant has the right to testify or not testify.
The Victim: If there is a trial, the victim may be called as a witness. If the defendant pleads guilty, no trial is needed but the victim has the right to address the court before the judge decides what sentence to impose.
The Prosecutor: The prosecutor is the lawyer hired by the municipality to represent the State.
The Public Defender: The public defender is the lawyer hired by the municipality to represent those defendants who cannot afford their own attorney.
The Defense Attorney: The Defense Attorney is the lawyer the defendant hires to represent him/her.

What Is a Plea Agreement?
The New Jersey Supreme Court allows plea agreements to be made within the Municipal Courts except in drunk driving and certain drug related cases. A plea agreement is an agreement between the defendant and the prosecutor about how the case will be resolved. In exchange for a guilty plea, the prosecutor may amend the charge to one that is less serious or that may result in fewer points on one's license. Certain charges may be dismissed or a specific sentence may be recommended. If the defendant pleads guilty, the judge will ask questions regarding the offense charged to make sure there is a basis for the guilty plea. 

What happens at Trial if you reject the plea offer?
You must have your witnesses present in court on the day of trial. If they will not come to court voluntarily, your attorney can prepare subpoenas to require them to appear in court. Written statements of witnesses are not allowed to be presented --- the person must appear in court.  
First, the prosecutor calls each of the state's witnesses and asks them questions. You will have a chance to ask them questions too (to cross-examine them). After the prosecutor has called all of the state's witnesses, you have the opportunity to make a statement under oath (to testify) on your own behalf and to call any witnesses you may have. You have a constitutional right to remain silent --- the decision about whether to testify is yours. If you do testify, the prosecutor can ask you questions and may also ask questions of your witnesses.

What Are the Possible Penalties?
Fines: The judge must follow the law in deciding the amount of any fine imposed. Sometimes there are minimum penalties and mandatory assessments that must be imposed by law. Fines are generally expected to be paid at the time they are imposed.
The judge may allow the fine to be paid in installments if the judge is satisfied that payment cannot be made in full. You may apply for partial payments by filling out a form. The judge will then make a decision about your payment arrangements. You will sign a court order that will explain the terms of your payments. Failure to comply with this order can result in a warrant for your arrest and/or suspension of your driving privileges.

Jail: The maximum jail term that can be imposed for offenses heard in the municipal court is six months. The sentence is served at the Somerset/Hunterdon/Warren County Jail. The judge may allow a defendant to serve the sentence on weekends. Work release is coordinated through the jail's work release administrator.
Juveniles sentenced to jail by the municipal court in traffic cases serve their sentence at the County's Juvenile Detention Facility.

License Suspension: Many offenses require suspensions for a minimum period. You cannot drive for any reason until the period of suspension ends, you have paid your restoration fee, and have received written notification from the Division of Motor Vehicles that your driving privileges have been restored. If your license has been suspended for failure to appear, pay fines, or comply with a condition of your sentence, it generally will not be restored until your case is completed. Conditional or special work licenses are not allowed in New Jersey.

Community Service: By law, the judge must order community service for certain traffic and shoplifting offenses  and may order community service for a criminal conviction. The defendant must work for a municipality or non-profit organization for a certain period of time, without compensation. Failure to perform community service may result in the case being returned to court.

Other Related Penalties: In addition to penalties imposed by the court for traffic violations, defendants may also receive points on their driving records, auto insurance surcharges, or may be required to pay restoration and administrative fees. Out of state motorists should check with their state's Motor Vehicle Agency regarding the impact of a New Jersey traffic violation on their driving privileges.

What Is a Conditional Discharge?
This procedure allows defendants charged with certain drug offenses to make a Motion for the charges to be held up for a year and to be under court supervision for a period of time determined by the court. The Judge may require the defendant to get drug counseling, have random drug tests, to attend narcotics anonymous meetings, or may place other conditions on probation (this is called supervisory treatment). To be eligible, a defendant must have:
   Never been convicted of a drug offense in any State or Federal Court
   Never been granted a conditional discharge before
   Never received Pre-Trial Intervention or Pre-Trial Diversion in any State or Federal Court
The judge ultimately determines who is eligible for a conditional discharge. If granted a conditional discharge, the defendant must pay mandatory assessments and the judge may suspend his/her driving privileges. If during the period of supervisory treatment no additional offenses have been committed, and there is compliance with all conditions (including satisfying all financial obligations), the defendant will be scheduled for a court hearing at which time the charges will be dismissed. If new offenses have been committed during this period, the defendant may be tried on the original charges and the new offenses. Source

To Whom Is Bail Returned?
Bail is money required to be deposited with the court to release the defendant and assure the defendant's future appearance in court. Bail can only be returned to the person who posted it. Bail will not be returned until the case is concluded. The bail receipt should be brought to the court to speed the return of bail. It may be possible to have the bail applied to any fines or assessments that may be imposed by the court if the holder of the bail agrees.

Intoxicated Driver Resource Center (IDRC): If convicted of DWI or refusal to take a Alcotest breath machine, the court must order attendance at the Intoxicated Driver Resource Center, where the defendant must satisfy the screening, evaluation, referral, program, and fee requirements. Failure to comply with the IDRC guidelines will result in further court action.

Who Is Entitled to the Public Defender?
A defendant is only entitled to be represented by the public defender when:
   The charge presents a risk of the defendant going to jail, losing driving privileges, or receiving a substantial fine.
   The court determines that the defendant is indigent [ex- on welfare, permanently disabled, etc] The judge may require the defendant to bring in proof of income or employment (tax returns, pay stubs), and may verify the information.

Friday, May 8, 2015

N.J. Gov. Signs Electronic insurance card- Proof of Auto Insurance

N.J. Gov. Signs Electronic insurance card- Proof of Auto Insurance, Reverse Rate Evasion Bills
New Jersey Gov. Chris Christie signed into law on Thursday A-3905/S-2680, which authorizes motor vehicle operators to display proof of auto insurance in either physical format (a paper insurance card provided by their insurance carrier) or electronic format (evidence of insurance provided by the carrier and displayed in an electronic form, via smartphones, tablets or other mobile devices).
The legislation (An Act concerning motor vehicle insurance identification cards and amending R.S.39:3-29) also specifies that when evidence of insurance is displayed in the electronic form using mobile devices, it does not constitute consent for a police officer or judge to access any other contents on the device. I still recommend keeping the paper insurance card in the car since other persons will drive your car. Also the police will not wait for you to find the insurance information on your Iphone.
The Independent Insurance Agents and Brokers of New Jersey (IIABNJ) issued a statement commending the governor and the legislature for ushering the Garden State into the digital age by enacting a measure allowing New Jersey motorists to provide electronic proof of auto insurance.
“This new law will modernize the process of providing evidence of auto insurance coverage in an environmentally-friendly way that keeps up with consumer demands for greater electronic communication and interactions,” said Frank Jones, chairman of IIABNJ.
There are 37 other states with laws that allow drivers to present electronic proof of insurance, according to the Property Casualty Insurers Association of America.
New Law Targets Reverse Rate Evasion
Christie also signed into law on Thursday A-2281/S-1727 (An Act concerning insurance fraud and amending P.L.2003, c.89 and P.L.1983, c.320.), which includes so-called reverse rate evasion as a form of insurance fraud and provides for civil and criminal penalties.
The measure targets residents who fraudulently obtain auto insurance in another state with lower rates, even though New Jersey is their principal residence or they principally keep the insured vehicle in New Jersey.
The new law would consider the reverse rate evasion a form of insurance fraud that violates the New Jersey Insurance Fraud Prevention Act, making it a crime of the fourth degree. The bill also specifies that reverse rate evasion constitutes a violation of the New Jersey Insurance Fraud Prevention Act, with various civil penalties and remedies provided for in that act applying to violations.
The New Jersey Office of the Insurance Fraud Prosecutor has previously documented a growing trend of New Jersey residents insuring in North Carolina and Pennsylvania to avoid higher insurance rates, according to Assemblyman Joseph Lagana (D-Bergen/Passaic), the bill’s co-sponsor.