On appeal from Superior Court of New Jersey, Law Division, Union County, Municipal Appeal Nos. 5853 and 5854.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2009
Before Judges Cuff and Waugh.
Defendants Anthony Nardiello and Bernadette Theime appeal their convictions for harassment, contrary to N.J.S.A. 2C:33-4, as well as the resulting sentence of each to one year of probation and five days of incarceration, to be served through the Sheriff's Labor Assistance Program (SLAP). We affirm the convictions, but modify the sentence.
We discern the following facts from the record. Nardiello and Theime reside together on Ridgeway Street in Union Township in a house adjacent to the residence of Daniel Beyrent, the complainant. It is clear from the record that the neighbors had a relationship of mutual antipathy and not infrequent litigiousness. As the result of one such municipal court matter, a mutual no-contact order was apparently entered to keep the parties apart.*fn1
On May 18, 2006, an article appeared in the Star Ledger with respect to a municipal court matter involving Nardiello. Beyrent had been present in court as a potential witness in that matter, but it was apparently resolved without trial. The news article included a statement made by Beyrent to the reporter who wrote the article.
On May 18, Beyrent went to the house of a neighbor, who lived on the other side of defendants' property, and showed her the article, which they then discussed. At that point, Nardiello began taking pictures of Beyrent. Nardiello then shouted at Beyrent: "[G]o ahead Starsky, why don't you file a police report?"*fn2 Nardiello was within three feet of his own property line when he engaged in that conduct.
At the same time, Theime stood at the front door of her house and shouted at Beyrent: "[Y]ou can't do anything.*fn3 You can't even fix your house, you F-ing Polack." Apparently in reference to Beyrent's conversation with the neighbor, Theime also yelled: "[O]h, look who's best friends now, you, you fat Polack."
After discussing the article with the neighbor, Beyrent walked back towards his house. At that time, Nardiello again shouted: "[Y]ou can't do, you can't do nothing, you can't do anything. You can't do nothing." After he returned to his house, Beyrent left a message for a police officer about the incident.
On May 19, 2007, as he was preparing to leave his home, Beyrent saw Nardiello place a sign on his own front lawn, within three to four feet of Beyrent's property line. The sign had the words "police informant" on it, and an arrow pointing to Beyrent's house. According to Beyrent's testimony, other signs containing derogatory statements about him had been placed on defendants' lawn in the past. Beyrent subsequently photographed the sign, and these photographs were entered into evidence at trial. As Beyrent was taking his photographs, Nardiello began taking photographs of Beyrent. Beyrent took some video of the sign later in the day, at which time Nardiello again photographed him. On May 21, 2007, he saw Nardiello remove the sign.
Beyrent testified that he found the sign to be "annoying" and "embarrassing." He also found it "threatening" because he was concerned how other people would view the allegation that he was a "police informant."
Beyrent reported the incidents to the police. On June 7, 2007, Nardiello was charged with one count of harassment. On June 7, 2007, and August 3, 2007, respectively, Theime was charged with two counts of harassment. The second summons, which concerned events that took place on a different date, is not involved in this appeal because Theime was acquitted. None of the summonses charged defendants with criminal contempt, N.J.S.A. 2C:29-9, for violating the no-contact order. Because the alleged violation did not take place in front of the municipal judge, civil contempt proceedings would have required the issuance of an order to show cause pursuant to Rule 1:10-2.
The charges were consolidated and tried on October 16, 2007, in the Union Township Municipal Court. The municipal judge determined that Beyrent testified "consistently and credibly." She found Theime guilty of harassment with respect to the May incident, but not guilty with respect to the later incident. She also found Theime to be in violation of the no-contact order entered by another judge on March 22, ...