On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-04-0518.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2010
Before Judges Grall and C.L. Miniman.
Defendant Jason P. Dilavore*fn1 appeals from a final judgment of conviction and sentence. We have assigned the victims of his offenses fictitious names. They are Jean, a woman that defendant had known since grammar school, her housemate Andy, and Andy's brother and next-door neighbor, Bob. A jury found defendant guilty of second-degree burglary of Jean and Andy's home, N.J.S.A. 2C:18-2a(1), b(2); fourth-degree stalking, N.J.S.A. 2C:12-10b; and fourth-degree criminal trespass, N.J.S.A. 2C:18-3a, committed on a date prior to the burglary. The judge found defendant guilty of two counts of simple assault, N.J.S.A. 2C:12-1a, one against Andy and one against Bob; and of harassment, N.J.S.A. 2C:33-4. Those offenses were charged in accusations.
At sentencing, defendant's conviction for harassment was merged with his conviction for stalking, and his conviction for simple assault of Andy was merged with his conviction for burglary, which was a crime of the second degree because defendant injured Andy. The judge sentenced defendant to a six-year term of imprisonment for burglary, which is subject to periods of parole ineligibility and supervision mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2a, d(12), and he imposed concurrent sentences of 270 and 20 days, respectively, for the trespass committed prior to the burglary and for the simple assault of Bob.
The State's evidence was as follows. Jean and defendant never dated, but they knew each other in grammar school and were close friends until defendant left their high school during his sophomore year. Fifteen years later, in 2004, they had a chance encounter in a Quick-Chek. Defendant told Jean he was married, had children and was living in Rockaway. Jean said she also lived in Rockaway. They parted after a brief conversation and without exchanging telephone numbers.
Jean is a real estate agent, and six months after their chance meeting at Quick-Chek, defendant called her cell phone and left a message, noting he had seen her number on a real estate sign. Thinking the call was related to her work, Jean called back. Defendant talked about his personal problems and asked Jean to meet him. She told him she was seeing someone and it was not a good idea.
Defendant made several attempts to arrange a meeting with Jean, but she declined. When Jean left work on November 30, 2004, defendant followed her car. At a red light, defendant left his car and came to Jean's window to ask why she was unwilling to give him a chance. Jean told defendant to leave her alone. Although defendant complied for a time, he subsequently resumed his efforts to contact her by cell phone and by mail.
In Spring 2005, defendant went to the house Jean shared with Andy. Andy answered the door, said Jean was sleeping but agreed to tell Jean he had visited. Jean later called defendant and directed him not to come onto her property again. Defendant said he would comply but pressed her for an explanation.
Thereafter, defendant continued to send text and phone messages to Jean. The substance of his communications shifted from his desire for a relationship to commentary on the character and conduct of the men in Jean's life and its negative impact on her. He expressed his belief that they were getting her involved with drugs. When Jean responded to defendant, she consistently expressed her desire to be left alone.
On November 21, 2005, defendant returned to Jean's home. He rang the bell, and Andy answered. From an upstairs window, Jean directed defendant to stay off her property. The police were called, but by the time they arrived, defendant had left.
Defendant returned the next day. Officer Pete Krowiak responded to a call and blocked defendant's exit from the driveway to Jean's house. The officer told defendant that Jean did not want to see or talk to him.
Although defendant told Officer Krowiak he understood, he continued to send text and voice messages to Jean's cell phone. In late February 2006, Jean spoke to defendant. He was upset and angry, "ranting and raving." When she told him he was scaring her, he said the men in her life were bad for her and "had to be taken care of." Jean sometimes ignored and sometimes responded to the messages.
At about 10:00 p.m. on March 5, 2006, defendant parked his car away from Jean's house and broke through the front door of Jean and Andy's home. Defendant entered and punched Andy in the face, grabbed him by the throat, and choked him and threatened to kill him. While they struggled, Jean went next door to Andy's brother Bob's house. Jean called the police and Bob left to help Andy. When Bob came into the house, defendant punched him in the face, and Bob and Andy struggled to restrain him.
Officer Michael Gosden responded. He heard yelling and screaming from outside and noticed that the frame of the front door had been broken. Inside, Officer Gosden found three men wrestling, and he "got on top of the pile." He learned that one of the men lived in the house and another had been stalking his girlfriend and broken into the home. The brothers had sustained visible but minor injuries.
The defense was a denial of defendant's intention to commit a crime inside the home coupled with a claim of self-defense. Defendant and his forensic psychiatrist, Dr. Azariah Eshkenazi, gave testimony in support.
According to defendant, Jean told him where she lived when they met at the Quick-Chek. He went to her office because he wanted to bring her coffee. The first time he drove past her house it was about 2:00 a.m. He drove by because he had heard that one of Jean's friends had died of a heroin overdose and was worried about Jean. As he passed the house, he saw a man leave the house, retrieve a package from under the backseat of a car and bring it inside. Viewing that conduct as suspicious, defendant became more concerned about Jean. Consequently, he returned the next morning and met Andy when he rang the doorbell.
Defendant believed that Jean had not come to the door because she had been up all night doing drugs, and he was alarmed. When he returned and Jean spoke to him from the upstairs window, she did not tell him never to return. She warned him that Andy had called the police. Defendant became so worried about Jean that he visited her father to share his concerns.
When he broke into her house, he hoped to catch her in the act of using drugs and thereby save her. He grabbed Andy because Andy came at him. When he did not see any drugs, he was going to leave the house but Bob arrived. When the ...