On appeal from the Superior Court of New Jersey, Law Division, Essex County.
J. H. Coleman and Stern. The opinion of the court was delivered by Stern, J.A.D.
Defendant was indicted for fourth-degree criminal mischief, N.J.S.A. 2C:17-3a(1) (count one), third-degree putting others in fear of bodily violence, N.J.S.A. 2C:33-10 (count two), and fourth-degree causing damage to property, N.J.S.A. 2C:33-11 (count three). After his motion for a non-jury trial was denied, defendant was convicted by a jury on all counts. His motion for judgment of acquittal or new trial was denied, and defendant was sentenced on counts two and three to concurrent terms of five years probation. As a condition of his probation, defendant was directed to serve 364 days in jail, to perform 200 hours of community service "removing graffiti," as assigned by the probation department, to make restitution to the victims in the amount of $1,200, and to pay a $1,000 fine. Count one was merged into count three. Separate penalties were imposed for the benefit of the Violent Crimes Compensation Board.
On this appeal, defendant argues:
POINT I -- THE JUDGMENT OF CONVICTION SHOULD BE REVERSED BECAUSE OF THE LOWER COURT'S ERROR IN NOT GRANTING DEFENDANT'S APPLICATION FOR A NON-JURY TRIAL.
POINT II -- THE JUDGMENT OF CONVICTION SHOULD BE REVERSED BECAUSE OF THE LOWER COURT'S ERROR IN ALLOWING INTO EVIDENCE LISA KOGER'S TESTIMONY THAT DEFENDANT ADMITTED POURING RICE INTO THE PIERRES' GAS TANKS.
POINT III -- THE JUDGMENT OF CONVICTION SHOULD BE REVERSED BECAUSE OF THE LOWER COURT'S ERROR IN PERMITTING THE STATE TO CROSS-EXAMINE DEFENDANT AND DEFENSE WITNESS NELSON ABOUT RACIALLY DISPARAGING REMARKS MADE BY DEFENDANT.
POINT IV -- THE JUDGMENT OF CONVICTION SHOULD BE REVERSED BECAUSE OF THE IMPROPER AND INFLAMMATORY REFERENCE BY THE STATE IN SUMMATION TO DEFENDANT'S PRIOR RACIALLY DEROGATORY EXPRESSIONS.
POINT V -- THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL.
POINT VI -- THE LOWER COURT ABUSED ITS DISCRETION IN IMPOSING A PRISON TERM ON DEFENDANT AS A CONDITION OF PROBATION, AND THIS COURT SHOULD CORRECT THAT ERROR BY DELETING THE PROVISION FOR IMPRISONMENT FROM DEFENDANT'S SENTENCE.
Our careful review of the record convinces us that, except as noted below, these contentions are clearly without merit and do not warrant extended discussion. R. 2:11-3(e)(2).
In January 1983 the Pierre family -- Jean, Marie and their seven-year-old daughter -- who are black, bought and moved into a house in a predominately white neighborhood in Maplewood. In July someone poured rice or sugar into the gas tanks of the Pierres' two cars. A month later, during the night of August 12, 1983, someone spray-painted graffiti in large red letters (about three feet in size) on the Pierres' white house. Jean Pierre recalled observing the phrase "Move Out Soon House For Sale Cheap." Marie Pierre recalled seeing the phrases "Back to East Orange, Move Out, Nigger" and "Moving Soon, For Sale Cheap."
The police officer who responded to the scene of the spray-painted Pierre house, Officer Peter DeCicco, noted in his report that there were words painted on three sides of the house,
including "For Sale Cheap, Moving Soon." He considered them to be racial slurs.
The Pierres were afraid and terrified, and considered themselves "in danger." They considered the act to constitute a racial threat. Eventually, the Pierres moved out because they never felt safe in their home again.
In response to the incident, the Pierres called a painter, Ted Duda, who painted primer over the spray paint. Duda recalled the words "Moving Soon" and observed graffiti on three sides of the house. Despite Duda's efforts, the words still showed through. The Pierres therefore called another painter, James Osmun, to paint the house. Osmun characterized the graffiti as containing "racial slurs," including "Move Out," "Nigger," "KKK," "House for Sale, Moving Soon," and "Back to East Orange."
During the night of September 2, 1983 or early morning of September 3, 1983, the Pierre house was spray-painted a second time in similar fashion and with similar phrases.
Lisa Koger, defendant's friend and neighbor for about 13 years, testified for the State. Ms. Koger lived three houses away from defendant on the same street as the Pierres. Koger testified that while the spray-painted words were still visible, she participated in a friendly game of nerf touch football in the street not far from the Pierre house. During the game, defendant pointed to the house and asked, "Do you see that?" According to Koger, when she answered "[Y]es," defendant said, "I did that" and laughed. Koger recalled seeing only two of the three sides of the house spray-painted and the words, "House For Sale Cheap" and "Moving Soon."
Koger also testified that, about a month before the spray-painting incident, she was walking down Midland Boulevard with defendant when he told her to stop and wait for him. She watched defendant walk down the Pierres' driveway. Defendant ...