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.

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