September 24, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONNELL KURVIN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-11-1536.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Fuentes and Grall.
Defendant Ronnell Kurvin was indicted by a Passaic County Grand Jury, and charged with two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(a); one count of third-degree criminal mischief, N.J.S.A. 2C:17-3(b); one count of third-degree stalking, N.J.S.A. 2C:12-10(c); and one count of fourth-degree contempt, N.J.S.A. 2C:29-9(b), by violating the terms of a restraining order issued under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 to -35.
After considering the evidence presented by the State over a seven-day period, the jury acquitted defendant of criminal mischief and stalking, and convicted him of the petty disorderly person offense harassment, N.J.S.A. 2C:33-4(a), as lesser included offenses of the two counts of terroristic threats. The fourth-degree contempt charge was not presented to the jury. Acting on the State's motion, the trial court downgraded the contempt charge to a disorderly person offense. Thereafter, sitting as the trier of fact, the trial judge found defendant guilty of the disorderly person offense of contempt.
After the jury delivered its verdict, the State moved to try defendant in a bifurcated sequential trial, on two counts of fourth-degree harassment, under N.J.S.A. 2C:33-4(e), based on:
(1) the jury's verdict finding defendant guilty of petty disorderly person harassment; and (2) defendant's parole status at the time he committed these offenses. The State argued that fourth-degree harassment was a lesser-included offense of third-degree terroristic threats. Overruling defendant's objection, the trial court granted the State's motion, and the charges were presented to the jury. Defendant was thereafter convicted on two counts of fourth-degree harassment.
After merging the fourth-degree harassment counts, the court sentenced defendant to a term of eighteen months in State prison, and a concurrent six-month term on the disorderly person offense of contempt. The court also imposed the mandatory fines and penalties.
Defendant now appeals raising the following arguments.
THE TRIAL COURT ERRED IN CHARGING THE JURY WITH FOURTH DEGREE HARASSMENT AFTER THE JURY HAD RETURNED A VERDICT OF GUILTY AS TO HARASSMENT AS A DISORDERLY PERSONS OFFENSE BECAUSE THE ISSUE OF THE DEFENDANT'S PAROLE STATUS WAS NOT FOUND BY THE GRAND JURY AND WAS NOT INCLUDED IN THE INDICTMENT.
THE SENTENCE WAS MANIFESTLY EXCESSIVE.
After reviewing the record before us, we agree with defendant as to Point One and reverse. Given the narrow nature of the legal issue raised by defendant, we will limit our factual recitation to those facts necessary to provide context to our analysis.
As our earlier description of the charges contained in the indicted revealed, defendant was not indicted on the crime of fourth-degree contempt. That crime is defined as follows:
A person commits a crime of the fourth degree if, in committing an offense under this section, he was serving a term of imprisonment or was on parole or probation as the result of a conviction of any indictable offense under the laws of this State, any other state or the United States. [N.J.S.A. 2C:33-4(e).]
In State v. Velasquez, 391 N.J. Super. 291, 297 (App. Div. 2007), we considered whether a defendant may be sentenced to an extended term for sexual assault or criminal sexual contact . . . if the indictment does not allege the facts essential to imposition of that term.
After reviewing the relevant constitutional provisions, including N.J. Const. art. I, ¶ 8, which specifically guarantees that "No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury . . .", we concluded that the indictment must allege all of the factual predicates of the crime charged. Ibid. In so doing, we reaffirmed the principles articulated by the Supreme Court in State v. Wein, 80 N.J. 491, 497 (1979):
The indictment must charge the defendant with the commission of a crime in reasonably understandable language setting forth all of the critical facts and each of the essential elements which constitute the offense alleged. [(emphasis added).]
Here, it is undisputed that the indictment did not charge defendant with the crime of fourth-degree harassment, as defined in N.J.S.A. 2C:33-4(e). At the time this case was presented to the Grand Jury, the State did not offer any evidence of defendant's parole status in order to substantiate a charge of fourth-degree harassment. Defendant became aware of his exposure to this crime only after the petit jury addressed and disposed of all of the duly enumerated charges in the indictment. In this light, given the standards described in Wein and Velasquez, there was no constitutional basis to expose defendant to criminal liability on the charge of fourth-degree harassment.
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