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State v. Duncan

April 14, 2005

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM P. DUNCAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, 03-101.

Before Judges Newman, Axelrad, and Holston, Jr.

The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 9, 2005

Defendant William Duncan appeals from a judgment of conviction following a trial de novo in the Law Division on the downgraded charge of harassment, N.J.S.A. 2C:33-4a, in connection with a call he made to 9-1-1. He had initially been charged with N.J.S.A. 2C:33-3e (the fourth-degree offense of knowingly placing a call to 9-1-1 without the purpose of reporting the need for 9-1-1 services), which the prosecutor downgraded to harassment. The Law Division judge sentenced defendant to time served, which was three days in jail.

On appeal, defendant argues:

I. IT WOULD VIOLATE DUE PROCESS AND THE SIXTH AMENDMENT RIGHT TO A JURY TRIAL TO CONSIDER [DEFENDANT]'S USE OF THE 9-1-1 NUMBER AS PART OF HIS OFFENSE

II. [DEFENDANT]'S VERBAL CRITICISM OF THE [MT.] OLIVE POLICE DEPARTMENT DOES NOT CONSTITUTE "HARASSMENT" WITHIN THE MEANING OF N.J.S.A. [] 2C:33-4

A. Mere Use of Coarse Language Does Not Constitute the Act of Harassment

1. [Defendant]'s single phone call does not constitute a persistent or systematic pattern of conduct

2. [Defendant]'s single phone call did not cause any emotional distress or anxiety.

3. [Defendant]'s single phone call was not made in any of the proscribed manners listed in N.J.S.A. [] 2C:33-4

B. There Is No Evidence on This Record to Establish a "Purpose to Harass"

III. THE FIRST AMENDMENT TO THE CONSTITUTION FORBIDS CRIMINAL SANCTIONS FOR [DEFENDANT]'S EXERCISE OF THE RIGHT TO FREE SPEECH

We agree that defendant's venting of his frustration to the 9-1-1 police dispatcher in crude terms over what he regarded as an improper roadblock, though constituting impolite and rude behavior, did not evidence "a purpose to harass another" within the meaning of N.J.S.A. 2C:33-4. Accordingly, because we are satisfied the record does not support a finding of harassment, beyond a reasonable doubt, we need not address the constitutional challenges asserted by defendant.

I.

Early in the afternoon of August 4, 2002, the Mt. Olive Township police conducted a routine inspection detail on westbound Route 46 near the Budd Lake firehouse. Motorists were directed to merge into one lane as they approached the point of inspection; this slowed the approaching traffic to approximately five to fifteen miles per hour. If the officers witnessed a motor vehicle violation, they directed the violator into the firehouse parking lot.

Defendant was driving westbound on Route 46 in the early afternoon hours of August 4, 2002, when he became angered by the presence of the inspection detail. Defendant testified he was following shortly behind an ambulance transporting his eighty-nine-year-old aunt, who had just broken her hip, to a hospital and became upset that what he regarded as an improper roadblock would delay his arrival at the hospital. Defendant pulled over to a pay phone at the nearby Equity Plaza, where, at approximately 1:14 p.m., he called the 9-1-1 emergency number to express his displeasure. Defendant claimed he called that number, rather ...


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