On appeal from Superior Court, Law Division, Monmouth County.
Defendant Aizyk Jacob Fuchs appeals from a judgment of conviction entered in the Superior Court, Law Division, of harassment, after a trial de novo on the record below from his conviction in the Ocean Township Municipal Court. Fuchs was sentenced to 30 days in jail; costs of $25 and a $30 penalty. This was the same sentence as imposed in the municipal court. The stay pending appeal was continued.
The events that led to the filing of the municipal court complaint for harassment*fn1 occurred at about 1:40 a.m. on February 11, 1988 at an apartment complex in Ocean Township. A police officer who was a tenant in an upstairs apartment heard a car approaching the complex, stop and then back up. The officer looked out his bedroom window and saw a red sports car with its engine running next to his parked car on the
street. The sports car then pulled up and parked on the right side of the street.
The officer observed the driver of that vehicle get out of the car and walk across the court yard next to the building directly underneath his second floor bedroom window to a first floor apartment window.
The officer testified that this man, who he identified at the municipal court trial as Fuchs, peered into the first floor window for about two to three minutes. The officer then heard a snap and saw Fuchs look around and run back to his car. The officer testified that he could see Fuchs clearly from his bedroom window and could identify the clothing he was wearing because Fuchs had parked under a street light.
Consequently, the officer called the Ocean Township Police Department and gave them a description of Fuchs and his sports car. Although he had temporarily lost sight of Fuchs while on the telephone with the Ocean Township police the officer saw Fuchs get into his car and drive south into the back of the apartment complex.
Two Ocean Township patrol cars arrived on the scene. The police officer in the first car had already stopped Fuchs' car by the time the second car arrived. In response to questioning by one of the officers about what he was doing at the apartment complex, Fuchs explained that he had been to a bar in Asbury Park and was on his way home when he stopped into the complex "to go to the bathroom."
An Ocean Township officer then interviewed the eyewitness, who pointed out the apartment window through which Fuchs had peered. Both officers then went to the window and looked through it from the outside. They were able to see at that time despite a fabric covering the window a woman wearing white clothing combing her hair. The officers went into the apartment and spoke to the woman and her husband. They observed that because of the fabric covering the window into which
Fuchs had peered, the woman could not have seen Fuchs from inside the apartment.*fn2
At the municipal court trial Fuchs testified that he had pulled into the apartment complex to go to the bathroom. He said that he got out of the car, went to the bathroom, got back into his car and proceeded to head home. He denied ever having looked through the apartment window. Fuchs also stated that he lived in Ocean Township at the Continental Apartments, and acknowledged that his apartment was closer to Asbury Park than the apartment complex where he had stopped. He contended, however, that he chose this particular complex as a place to go to the bathroom because he had the urge to do so and did not enter the complex to peer into windows.
The municipal court judge found that Fuchs' actions constituted harassment under N.J.S.A. 2C:33-4(c), since his actions were designed to bother, annoy and scare other persons. The municipal judge concluded that the purpose of Fuchs' conduct was, in his opinion, to harass the woman by looking into her apartment window. Although the woman was apparently not alarmed and had not seen Fuchs' "peeping Tom" action, the judge found that it was not a requirement for a harassment ...