On appeal from the Superior Court, Law Division, Criminal Part, Monmouth County, Indictment Nos. 03-03-0457 and 04-04-1007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2009
Before Judges Lisa, Reisner and Sapp-Peterson.
Defendant was convicted in the first phase of a sequential trial of two counts of fourth-degree stalking, N.J.S.A. 2C:12-10b. The same person was the victim in both counts, but each count reflected a separate time period. In the second phase of the trial, the jury found that defendant committed the stalking in violation of existing court orders prohibiting the behavior, thus elevating the stalking convictions to crimes of the third degree. N.J.S.A. 2C:12-10c. In the second phase of the trial, the jury also found defendant guilty of eleven counts of fourth-degree contempt of court by disobeying judicial orders. N.J.S.A. 2C:29-9a. Judge DeStefano merged all of the contempt of court convictions with one of the stalking counts. The judge sentenced defendant on January 21, 2005 to consecutive five-year terms on each stalking count. The judge also ordered that defendant receive psychiatric counseling and treatment while in custody.
On appeal, defendant argues:
THE TRIAL COURT SHOULD HAVE CHARGED AS AN ELEMENT OF STALKING THE DEFENDANT'S CULPABILITY FOR THE RESULT OF HIS CONDUCT (PRESENTED BELOW) AND THAT THE CONDUCT WAS DONE "REPEATEDLY" (NOT PRESENTED BELOW).
THE VERDICT SHEET WAS IMPROPER SINCE IT ONLY LISTED ELEMENTS AS TO STALKING AND INCLUDED ONLY SOME ELEMENTS FOR STALKING.
THE TRIAL COURT SHOULD HAVE SUPPRESSED THE STATEMENT MADE BY THE DEFENDANT SINCE HE WAS NOT GIVEN HIS MIRANDA WARNINGS.
THE CONVICTION FOR STALKING IN THE THIRD DEGREE SHOULD BE REVERSED SINCE THE TRIAL COURT IMPROPERLY ALLOWED THE JURY TO CONSIDER VARIOUS ORDERS AS THE ORDER THAT THE DEFENDANT VIOLATED.
THE TRIAL COURT IMPROPERLY REMOVED THE DEFENDANT BEFORE PRONOUNCING SENTENCE (NOT OBJECTED TO BELOW).
THE TRIAL COURT SHOULD HAVE ALLOWED THE DEFENDANT TO REPRESENT HIMSELF AT SENTENCING.
THE TRIAL COURT SHOULD HAVE HELD A HEARING TO DETERMINE THE DEFENDANT'S COMPETENCY BEFORE SENTENCING HIM.
THE SENTENCE MUST BE VACATED SINCE IT INCREASED THE PRESUMPTIVE SENTENCE ON A FINDING OF AGGRAVATING FACTORS OTHER THAN A PRIOR CRIMINAL CONVICTION IN VIOLATION OF THE SIXTH AMENDMENT (NOT RAISED BELOW).
THE SENTENCE SHOULD BE VACATED SINCE IT WAS EXCESSIVE AND THE SENTENCE FOR EACH INDICTMENT SHOULD HAVE BEEN CONCURRENT.
We reject Points One through Four and affirm defendant's conviction.
With respect to Point Eight the State concedes and we agree that this matter must be remanded for resentencing in accordance with State v. Natale, 184 N.J. 458, 495-96 (2005). See also State v. Thomas, 188 N.J. 137, 152-53 (2006). Because defendant will be resentenced, Points Five, Six and Seven are moot, and we will not address them. If at the resentencing proceeding, defendant wishes to raise those issues, he may do so, and the court will dispose of them appropriately under the circumstances and conditions then existing. In light of the remand for resentencing, ...