On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 07-10-0605.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Reisner.
Defendant Anthony Parisi was convicted by a jury of making terroristic threats, N.J.S.A. 2C:12-3a, but acquitted of making an immediate threat to kill, N.J.S.A. 2C:12-3b. He was sentenced to the 152 days of jail time he had already served, plus three years probation. He was also sentenced to: pay required fees and fines; continue mental health treatment; take his prescribed medication; and avoid contact with the victim. He appeals from the conviction. We reverse and remand.
The State presented testimony from Jennifer DeCamp, an employee of Collaborative Support Programs of New Jersey (CSP), a social services agency of which defendant was a client.*fn1
According to DeCamp, on December 18, 2006, defendant became angry after she told him that she could not provide him with transportation to an appointment that afternoon. DeCamp testified that defendant cursed at her and called her a liar and said she was incompetent. He then followed her out to her van, pounded on the hood of the vehicle, gave her the "finger" and "started yelling that he was going to get me." He continued shouting that he would "have" her job, he would get her social security number and phone number and address, and that he knew where she lived. DeCamp testified that she "had enough" of defendant's behavior; she got out of the van, returned to her office and called the police. She testified that she was fearful because of defendant's physical conduct of banging on the van, yelling and making an obscene gesture.
DeCamp explained that in the past defendant had told her that he had been a boxing champion and had served in the military. On prior occasions, defendant had expressed his dislike for her and for the agency. She became concerned that "he was very fixated on, you know, getting revenge from me. He would say that I ruined his life, that CSP ruined his life and . . . at that point, I didn't stay late after work because I knew . . . he knows I'm at the office. We do lock the door now . . . we're a public office and we keep our door locked . . . that's a shame."
However, she also testified that she was not "exactly" fearful of defendant in the past, but that on December 18, "he actually made a direct threat . . . wanting my address and he was very, very fixated all day so the police encouraged me to . . . at least have it documented, what was going on." She also testified that she was fearful of defendant after December 18 because he "continued to write letters that . . . had threatening . . . remarks in it."
In response to a defense objection at this point, concerning N.J.R.E. 404(b), the trial judge instructed the jury that the evidence concerning defendant's alleged past conduct and the later sending of letters, was "to show . . . that there was a fearfulness on the part of the witness." However, he instructed them that defendant was not charged with any subsequent offenses or "any other threats" and that they could not consider the evidence as showing that defendant was a "bad person" or that he committed any other offenses. He charged the jurors that they could "not consider anything that occurred after [December 18, 2002] except as you may give it some weight to show that there was no mistake or that there was, indeed, a justified reason for her to be fearful."
On cross-examination, DeCamp testified that she was fearful that defendant "could hurt me." Also on direct examination, defense counsel opened the door to questioning on an issue not raised on direct, i.e., an alleged death threat which defendant made about DeCamp to another employee. He succeeded in getting DeCamp to admit that she did not hear defendant make the threat. However, on re-direct, the prosecutor elicited DeCamp's testimony that the co-worker had told her about the death threat and it made DeCamp feel "even more fearful."
The State next presented testimony from the co-worker, Jennifer Zoyac. According to Zoyac, as soon as DeCamp walked into the CSP office on December 18, defendant began saying "that he was going to have her fired, . . . find out her Social Security number and last name, [and] that he was going to have a lawsuit against her and the agency for two million dollars." Zoyac calmed him down and convinced defendant to go across the street to get pizza. DeCamp left the office also but came back a few minutes later appearing "very scared" and saying she was "tired of his verbal threats." As DeCamp was calling the police, defendant came back into the office and started yelling at her, threatening to "make sure that you're fired. You're going to be taken care of. You're no longer going to be working here anymore."
Again, Zoyac tried to calm defendant down and finally convinced him to come outside with her. According to Zoyac,
[Y]ou could tell that he was . . . visibly upset . . . just very angry, and he was pacing back and forth and then he had made the comment to me . . . to quote him exactly he said if she's in there lying about me, she's done. I'm going to get my friends and military buddies to come down here and ...