On appeal from Superior Court of New Jersey, Law Division, Ocean County, No. 05-04-0516.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and C.S. Fisher.
Tried to a jury, defendant was convicted of four counts of fourth-degree contempt for violating a domestic violence restraining order, N.J.S.A. 2C:29-9b; two counts of fourth-degree harassment while on parole, N.J.S.A. 2C:33-4e; and two counts of third-degree stalking, N.J.S.A. 2C:12-10b.*fn1 He was acquitted of two counts of harassment. At sentencing, after granting the State's motion to impose an extended-term sentence, the trial court sentenced defendant to the following periods of incarceration: ten years, with a five-year period of parole ineligibility, for one count of stalking, and a concurrent five years, with a two-and-one-half-year period of parole ineligibility, for the second count of stalking; eighteen months, with a nine-month period of parole ineligibility, on each of the remaining counts, to be served concurrently with each other but consecutive to the sentence for stalking; each of these sentences was, in addition, to be consecutive to the sentence defendant was then serving on an unrelated matter. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.
The victim was defendant's former wife, Valerie Cregan. Defendant and Cregan were married in 2001; shortly after their marriage, defendant was incarcerated on charges not related to the present matter. While defendant was in custody, the couple was divorced pursuant to a judgment of divorce entered on May 28, 2003. In connection with those divorce proceedings, Cregan retained the marital residence, which had been in her name during the course of the marriage. Cregan formed a relationship with Michael Sparaco. Mr. Sparaco moved into the former marital residence, and the two had a son in December 2003.
Defendant was released on parole on April 6, 2004, and took up residence with his mother in Toms River. Defendant arrived at Cregan's home at 12:30 a.m. on April 7, 2004, accompanied by his mother and his niece, both of whom testified that the purpose of the visit at that hour was to pick up whatever of defendant's belongings that remained in the house.
Ms. Cregan testified that when defendant arrived at the house, everyone was asleep and the lights were out. She heard the doorbell ring and got out of bed and saw defendant standing at the door. She was unwilling to open the door. She said he continued to ring the doorbell and to knock on the door, and the dog started barking with the disturbance. When she saw that defendant was not leaving, she called the police. When the police arrived, defendant departed, evidently without incident.
Commencing on April 11, 2004, defendant made a series of telephone calls. The first call on April 11 was placed to the house. Mr. Sparaco's father, who was watching the baby, answered the phone. After a brief exchange, defendant hung up. Later that day, he called Cregan on her cell phone. She testified that he seemed "very agitated and very angry" when he asked about the baby. Defendant made a third call, on the evening of April 11. Sparaco testified that he took the phone from Cregan and told defendant to stop calling. According to Sparaco, defendant replied, "I don't know whether it's today, tomorrow or next week, next month, you're a dead man."
On April 18, defendant again called. Cregan said that defendant told her that she and Sparaco were "going to be sorry for living in his house." He told her "the house wouldn't be there anymore." That day, Cregan sought a restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. A final restraining order was entered on April 21, 2004 and served on defendant on May 10, 2004.
On April 12, 2004, prior to Cregan seeking a restraining order, defendant filed suit against Cregan, alleging that she had misappropriated certain workers' compensation checks that had been issued to him during his incarceration. In May, after entry of the restraining order, Cregan sent defendant a letter requesting discovery with respect to his suit against her. Defendant responded with a letter which stated that she "was going to be sorry." Cregan notified the police, and defendant was arrested for violating the restraining order.
Cregan, Sparaco and defendant all appeared in court on July 26, 2004, in connection with defendant's suit against Cregan. The matter was adjourned. Sparaco and Cregan both testified that when they were leaving court, defendant looked at Sparaco and said to him, "You're dead."
Cregan testified that she was at work on August 1, 2004, and looked out the window and saw someone who looked like defendant in the parking lot. When she went to the door to check, she saw no one around. Later that day, she went to a gas station and found that sugar had been poured into her fuel tank.
Cregan also testified that between the court appearance on July 26, and August 5, 2004, she received a series of hang-up telephone calls, generally at the same time each day.
Defendant called Cregan twice during the day on August 5. He wanted her to meet with him and when she refused, he became agitated. Before she hung up on the second call, Cregan told him she would not meet with him because she did not want to "set [herself] up" to be shot by him. Cregan reported the calls to the police. That evening, Cregan's mother, sister and nephew came to the house to visit. Defendant called her at 10:30 p.m. after they had left and told her that if he wanted to shoot her, he would have done so just then while she was outside. When Cregan responded she had not been outside, he answered, "maybe it wasn't you, maybe it was just your mom, your sister and your nephews." When Cregan asked where he was, he answered that she "didn't need to worry about that." When she persisted, he said he was "close enough to see everything that [she] was doing."
Defendant told her he had been watching her for the past several months. He told her that he knew that Sparaco was not at home, which was correct, and retraced for her what she had done in the past half-hour. While she was talking to defendant, she received a signal from call-waiting that another call was coming in. She told defendant, who said she should remain talking to him and not call the police. Sparaco then called Cregan on her cell phone; she answered the call quietly, told Sparaco that ...