On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-04-0876.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2009
Before Judges Wefing, Messano and LeWinn.
Following a jury trial, defendant Roy Van Wyk was convicted of fourth-degree harassment, N.J.S.A. 2C:33-4(e), and fourth-degree contempt, N.J.S.A. 2C:29-9(a). He was sentenced to two concurrent one-year terms of imprisonment, both to run consecutively to any "period of incarceration imposed as a sentence in this or any other jurisdiction. Defendant raises the following issues on appeal:
THE TRIAL JUDGE ABUSED HIS DISCRETION IN DENYING THE DEFENDANT'S APPLICATION FOR AN ORDER EXCLUDING EVIDENCE AT TRIAL OF SIMILAR ACTS UNDER N.J.R.E. 404(b).
THE PROSECUTOR'S MISCONDUCT CLEARLY EXCEEDED THE BOUNDS OF PROPRIETY AND REQUIRES A REVERSAL OF DEFENDANT'S CONVICTION. (Raised in part)
THE COURT SHOULD HAVE GRANTED DEFENDANT A NEW TRIAL AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
THE COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A MISTRIAL FOR WITNESSES':
A. REFERENCING INCARCERATION FOR SHOTGUN.
B. CHARGE WITNESS['S] REFERENCE TO BEING AFRAID OF DEFENDANT.
DEFENDANT'S SENTENCE WAS EXCESSIVE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
This indictment charged defendant with conduct that occurred between October 19, 2002, and November 3, 2002. Count one alleged that defendant purposely harassed Thomas Conrad and/or Donna Conrad "while... serving a term of imprisonment as the result of a conviction for an indictable offense...." N.J.S.A. 2C:33-4(e). Count two alleged that during the same dates, defendant "did purposely or knowingly disobey a judicial order... specifically by having contact directly or indirectly with" the Conrads. N.J.S.A. 2C:29-9(a). It was the State's theory that defendant caused a fellow inmate, Kenton Rodney, to unwittingly contact the Conrads, thus making defendant liable for Rodney's conduct. See N.J.S.A. 2C:2-6(b)(1) (making "[a] person... legally accountable for the conduct of another person when... he causes an innocent or irresponsible person to engage in such conduct").
At trial, the parties entered into a stipulation that was read and submitted to the jury in writing. The jury was advised that on October 18, 2002, defendant pled guilty to certain indictable charges contained in Bergen County Indictment No. 820-00, and was sentenced to a period of imprisonment as a result; that from that date through and beyond November 3, 2002, defendant "was serving this term of imprisonment[;]" that defendant, as part of his sentence and with the advice of his attorney, consented to the entry of an order prohibiting him from having any further contact with the Conrads; that defendant was in the Bergen County Jail on that ...