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State v. Berka

Decided: May 2, 1986.

STATE OF NEW JERSEY, PLAINTIFF,
v.
HOWARD BERKA, DEFENDANT



MacKenzie, J.s.c.

Mackenzie

This is a trial de novo following defendant's appeal from a conviction for harassment in the municipal court of the Borough of Chester. R. 3:23. That court imposed a fine of $50, court costs of $25 and a penalty of $30 payable to the Violent Crimes Compensation Board. A custodial term of 20 days in the Morris County jail, 14 days of which were suspended, was also imposed.

The chief issue of this trial de novo is the legal propriety of the court, on its own motion, in amending the complaint at the end of all evidence. Defendant had been charged in a complaint signed by a private citizen with simple assault in violation of N.J.S.A. 2C:12-1 a.(3). The court found defendant guilty of violating N.J.S.A. 2C:33-4.*fn1 Defendant contends that the

amendment was improper because it led to his conviction for an offense of which he was not accused. The State argues that the amendment was permitted pursuant to the provisions of N.J.S.A. 2C:1-8(d)(1), (3) and R. 7:10-2.*fn2

A detailed recitation of the pertinent facts is not necessary to a determination of the legal issue. A brief conclusory summary will suffice. There was adequate credible evidence to satisfy this court, beyond a reasonable doubt, that defendant, while involved in an angry, head-to-head confrontation with his wife's ex-husband, jabbed his forefinger at the complainant's nose to punctuate his aggressive, vulgar, oral accusations, characterizations and challenges. The complainant was clearly apprehensive of being struck in some fashion by defendant. This highly-charged, emotional confrontation arose out of a child custody dispute. Defendant's purpose was patently to harass the complainant. In short, there was adequate credible evidence that defendant was guilty of harassment.*fn3

In the complaint, the allegation was that defendant put the complainant "in fear of imminent serious bodily injury, by putting his finger in the face of Paul Anderson and threatening him by yelling. . . ." N.J.S.A. 2C:12-1a.(3), the statute charged in the complaint, reads in pertinent part as follows:

a. Simple assault. A person is guilty of assault if he:

(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.

Reading the complaint and the statute together, the four elements of simple assault are: 1) purposeful conduct by defendant, 2) designed to put Anderson in fear of imminent serious bodily injury, 3) coupled with the present ability to inflict such injury, 4) which creates a reasonably founded fear on the part of complainant. Cf. State v. Diaz, 190 N.J. Super. 639 (Law Div.1983).

The section of the Criminal Code of which defendant was found guilty reads in pertinent part:

N.J.S.A. 2C:33-4. Harassment. A person commits a petty disorderly persons offense if, with ...


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