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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...