On appeal from the Superior Court of New Jersey, Law Division, Warren County, 06-05-0162-I.
The opinion of the court was delivered by: Miniman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Seltzer, and C.L. Miniman.
The State appeals from the dismissal of an indictment charging defendant with terroristic threats in violation of N.J.S.A. 2C:12-3(a). The motion judge concluded that threats to kill can only be prosecuted under N.J.S.A. 2C:12-3(b). We reverse and reinstate the indictment.
The operative facts are limited at this stage of the proceedings. The victim testified before a grand jury on May 3, 2006, regarding her relationship with defendant, Jayson Conklin. They had known each other since 1999 but started dating in May 2005. She testified that on January 3, 2006, defendant left a message on her mother's answering machine stating to the effect, "your daughter has gone too far this time, she's really done it this time, I'm going to kill her. If she ends up dead or missing, you know what happened to her." The victim became nervous and felt threatened because defendant had previously stated to her that "people end up missing."
She also testified that on January 10 they had an argument over a woman who had recently given birth to defendant's child. Defendant wanted the victim to pack all his things so he could move out of the victim's house. She refused to pack for him and told him to do it himself. Defendant then threw two speakers in the victim's direction and she was hit by one of them. She again felt terrorized or threatened especially because her five-year-old daughter was sitting on the couch with her. She believed that defendant intended to terrorize or threaten her.
Lastly, the victim testified that the following day defendant returned to her house to get his belongings. The victim told him that she had packed everything and it was in kitchen. Although the victim asked him to stay outside, he followed her into the house. An argument ensued and the victim sat down on her couch and asked him to leave. Defendant demanded some additional items, which the victim said he had given her and she would not return. Defendant then raised his fist to her, at which point she slapped him. Defendant then picked her up, threw her across the room, and told her that "[a]nybody who gets in my way, I will kill them. Anybody in this house gets in my way, I will kill them." The victim stated that she felt threatened and terrorized. Two days later the victim developed large bruises on her upper thigh, arms and left breast.*fn1 The victim testified that she was afraid of defendant.
Although the initial charge against defendant was written up as an N.J.S.A. 2C:12-3(b) offense, the prosecutor elected to seek an indictment under N.J.S.A. 2C:12-3(a) because subsection (b) required proof that the threat was made "under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out." N.J.S.A. 2C:12-3(b). By comparison, the elements of a subsection (a) offense are a threat of any crime of violence, with the purpose to terrorize the victim, or in reckless disregard of the risk of doing so.
Defendant moved to dismiss the indictment and the judge heard oral argument on the motion on September 29, 2006, and reserved decision. Although the judge indicated that he would issue a written decision, we do not have the benefit of that decision in the record, nor do we have a copy of the order of dismissal. However, the State filed a motion for reconsideration, which was argued on November 16, 2007, and denied by order entered on November 28, 2006. The judge attached a written statement of reasons to this order.
The judge reasoned that legislative history and case law indicated that "threats to kill should be prosecuted under §(b) since that section addresses the specific circumstance presented by the statements allegedly made by the defendant." He opined that "in order for a threat to kill to be a crime of the third degree, it must comply with the requirements set out in §(b) of the statute. If the threat fails to meet all of those requirements, then it is not a crime of the third degree." He concluded that the State cannot prosecute a threat to kill unless the immediacy requirement could be shown. He also expressed the opinion that if threats to kill could be prosecuted under subsection (a), then there would be no incentive for the State to prosecute under subsection (b). He concluded that permitting prosecution under subsection (a) would render subsection (b) superfluous, citing State v. Sisler, 177 N.J. 199, 213 (2003) (LaVecchia, J., dissenting).
The two relevant statutory subsections provide as follows:
a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another . . . or in reckless disregard of the ...