January 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY NARDIELLO AND BERNADETTE M. THEIME, DEFENDANTS-APPELLANTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, 2006. The judge found Nardiello guilty of one count of harassment and in violation of the no-contact order.
The judge sentenced each defendant to one year probation, a fine of $500, $34 court costs, $50 VCCB, $75 safe neighborhood assessment, and to five days jail time, which could be served through SLAP. She also ordered defendants to undergo psychiatric evaluations. She sentenced each defendant to an additional five days in jail for violating the no-contact order.
Defendants appealed to the Law Division. The trial de novo was held on July 18, 2008. The judge found both defendants guilty of violating N.J.S.A. 2C:33-4, and imposed the same sentence as the municipal court judge on the harassment charges. He made the following findings of fact and conclusions of law:
[T]he Court notes that the trial judge found the testimony [of Beyrent] to be credible.... The Court finds that the defendant, Thieme, stated to the -- Mr. Beyrent, "You can't even fix your house, you fucking Pollack." And, "Oh, look. You're best friends now, you fat Pollack." That is somewhat offensive and is harassing. When you go further to say that, "Go ahead, Starsky, why don't you -- why don't you file a police report?", that adds to the harassment aspect. And the Court finds the defendant, Thieme, to be guilty.
The fact that the defendant, Nardiello, placed a sign on his front lawn saying, police informant, quite frankly, while Thieme was using... these insults and foul language,... was also harassing. And I will tell you, I agree with the Prosecutor. I don't care what town you're in. There is a danger when someone thinks that you are a police informant, that you will be hurt and you'll be hurt badly. The Court finds both defendants guilty of the offense of harassment,....
The Court finds -- this is the second time these defendants have been before the Court. The last time, the Court in fact reduced the sentence. The Court will not reduce the sentence of the trial judge. Court imposes a $500 fine on each defendant. They're to undergo psychiatric evaluation and complete treatment... as required. They will both also be accessed 5 days SLAP.
The judge made no findings regarding the alleged violation of the no-contact order and did not specifically impose the additional five-day jail sentence that had been imposed by the municipal judge. However, he signed an order "affirming" the sentence of the municipal court on August 1, 2008.
This appeal followed.
On appeal, defendants raise the following issues:
POINT I: THE STATE FAILED TO PROVE THAT EITHER DEFENDANT INTENDED TO HARASS THE ALLEGED VICTIM.
POINT II: DEFENDANTS WERE DENIED DUE PROCESS BECAUSE THE TRIAL COURT, AND THE SUPERIOR COURT, SUA SPONTE FOUND VIOLATIONS OF A NO CONTACT ORDER, WHILE NO SUCH CHARGES WERE PENDING.
POINT III: THE NO CONTACT VIOLATIONS SHOULD MERGE AND DEFENDANTS SHOULD NOT RECEIVE JAIL TIME OR BE REQUIRED TO UNDERGO PSYCHIATRIC EVALUATION.
Our scope of review is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Review in the Law Division is de novo on the record, Rule 3:23-8(a), but the Law Division judge must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). We are limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162.
For the purposes of this case, the following two aspects of N.J.S.A. 2C:33-4 are relevant:
[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; [or]
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
The State must show, beyond a reasonable doubt, that such language was uttered or such conduct was engaged in by a defendant "with the purpose to harass." State v. Hoffman, 149 N.J. 564, 577 (1997); Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995).
Defendants argue that the State failed to prove a purpose to harass beyond a reasonable doubt. "A finding that defendant acted with a purpose or intent to harass another is integral to a determination of harassment." State v. Duncan, 376 N.J. Super. 253, 261 (App. Div. 2005) (citations omitted); Hoffman, supra, 149 N.J. at 576. In State v. Castagna, 387 N.J. Super. 598, 606 (App. Div.), certif. denied, 188 N.J. 577 (2006), we noted that "'purpose to harass' is critical to the constitutionality of the harassment offense defined in subsection a of N.J.S.A. 2C:33-4."
The Law Division judge did not make a specific finding of a purpose to harass. However, "[a] finding of a purpose to harass may be inferred from the evidence presented." Hoffman, supra, 149 N.J. at 577; see also Duncan, supra, 376 N.J. Super. at 262.
"'Purposeful' or 'with purpose' is the highest form of mens rea contained in our penal code, and the most difficult to establish." Duncan, supra, 376 N.J. Super. at 262. N.J.S.A. 2C:2-2(b)(1) provides:
A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.
"With purpose," "designed," "with design" or equivalent terms have the same meaning.
We must look at the conduct of each defendant to determine separately whether the facts support a finding of the required purpose to harass. In Castagna, supra, 387 N.J. Super. at 606 (citations omitted), we noted that "[t]here is rarely direct proof of intent, and [that] purpose may and often must be inferred from what is said and done and the surrounding circumstances" and that "[p]rior conduct and statements may be relevant to and support an inference of purpose."
With respect to Nardiello, the evidence supported a finding beyond a reasonable doubt that he placed a sign at the edge of his property, with an arrow pointing at Beyrent's residence and words describing Beyrent as a "police informant."*fn4 Taken in the context of their prior relationship and the events of May 18, we conclude that there is no explanation for Nardiello's conduct other than a purpose to harass or annoy Beyrent.
With respect to Theime, the testimony supported a finding, again beyond a reasonable doubt, that she (1) shouted: "You can't do anything. You can't even fix your house, you Fucking Polack" and (2) also referred to Beyrent as a "fat Polack." We conclude that the evidence supports a finding that she did so with the required purpose to harass or annoy, which finding is reinforced by her use of course language and the ethnic slur.
No other explanation for either defendant's conduct is reasonable. That Beyrent may have engaged in similar conduct at the same time or in the past was not raised as a defense or in mitigation, N.J.S.A. 2C:3-1 and -2, and was not the subject of testimony at the trial. Consequently, we affirm the convictions of each defendant for one count of harassment.
As previously noted, violation of the no-contact order was not charged. Although the municipal judge nevertheless found such a violation and imposed an extra five-day jail term on that basis, the Law Division judge properly chose not to consider that issue. However, his order "affirmed" the municipal court decision, which included the additional sentence for violation of the no-contact order.
The Law Division judge incorrectly expressed his determination as "affirming" the decision of the municipal court. The judge's function on the trial de novo was to consider the entire case anew, except to the extent he was obligated to give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." Johnson, supra, 42 N.J. at 157. The judge appropriately considered the issue of defendants' guilt or innocence de novo, but does not appear to have done so with respect to the sentence.
Pursuant to Rule 3:23-8(e), "[w]hen a Law Division judge conducts a trial de novo and finds a defendant guilty[,] the sentence imposed by the municipal court may not be affirmed. Rather, the judge must 'exercise... independent judgment... in the matter of sentence.'" State v. Russo, 328 N.J. Super. 181, 186 n.3 (App. Div.) (quoting State v. States, 44 N.J. 285, 293 (1965)), certif. denied, 165 N.J. 134 (2000). Consequently, we vacate the sentence.
Although we would ordinarily remand to the Law Division for resentencing, State v. Kromphold, 162 N.J. 345, 355 (2000), we note that the judge who conducted the trial de novo has retired. We will exercise our original jurisdiction under Rule 2:10-3 and impose sentence ourselves.
Violation of N.J.S.A. 2C:33-4 under the circumstances of this case was a petty disorderly persons offense. As to Nardiello, we apply aggravating factors (3) and (9) in light of the prior incidents. See N.J.S.A. 2C:44-1(a)(3) and (9). We find no mitigating factors because there was no evidence in the record that, at the time of the incident, Beyrent engaged in activity that would have reasonably induced or excused the conduct. See N.J.S.A. 2C:44-1(b)(3) and (4). Nardiello is fined $500 and placed on probation for one year. Conditions of probation are that he (1) have a psychological examination and any recommended treatment, both at his own expense, and (2) have no contact with Beyrent, which shall include no posting of signs and no photography related to Beyrent. In addition, there will be the following additional penalties and costs: (1) court costs of $30; (2) VCCB of $50; and (3) Safe Neighborhood of $75. The Law Division shall enter the appropriate order implementing our sentence upon receipt of this opinion.
As to Theime, we apply aggravating factors (3) and (9) in light of the prior incidents. See N.J.S.A. 2C:44-1(a)(3) and (9). We find no mitigating factors because there was no evidence in the record that, at the time of the incident, Beyrent engaged in activity that would have reasonably induced or excused the conduct. See N.J.S.A. 2C:44-1(b)(3) and (4). Theime is fined $500 and placed on probation for one year. Conditions of probation are that she (1) have a psychological examination and any recommended treatment, both at her own expense, and (2) have no contact with Beyrent, which shall include no posting of signs and no photography related to Beyrent. In addition, there will be the following additional penalties and costs: (1) court costs of $30; (2) VCCB of $50; and (3) Safe Neighborhood of $75. The Law Division shall enter the appropriate order implementing our sentence upon receipt of this opinion.
Affirmed as modified.