March 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
COSTAS GEORGOPOULOS, DEFENDANT-APPELLANT.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2011
Decided Before Judges Fisher and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 009-13-09.
Gregg F. Paster & Associates, attorneys for appellant (Gregg F. Paster, of counsel and on the brief; Jennifer Holdsworth-Kleinman, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).
Following a de novo trial in the Law Division, defendant Costas Georgopoulos was convicted of harassment, N.J.S.A. 2C:33-4a. The charge stems from an incident that occurred on July 19, 2007, at a law office in Fort Lee. Defendant entered the office without an appointment and angrily screamed at the receptionist several times, "where's Matt[hew] Fierro, [Esq.,] he can't hide from me forever, I'm going to get him. You give him a message, you tell him I'm going to get him, I need to see him face to face." At the time of the incident, Matthew Fierro (Fierro) was a municipal prosecutor for the Borough of Fort Lee. He had successfully prosecuted two municipal court matters against defendant. Defendant was "severely displeased" by the outcome of those prosecutions.
The receptionist was visibly shaken by defendant's statement. She called Fierro, who was at the Borough of Fort Lee Municipal Court, and told him what had happened. Matthew Fierro's brother, Mark Fierro, Esq., who heard what defendant said, became alarmed and frightened and felt threatened.
On July 24, 2007, Fierro signed a complaint against defendant charging him with harassment, N.J.S.A. 2C:33-4a. Two days later, defendant returned to the law office and asked for Fierro, who was there at the time. Fierro was frightened and shaken by defendant's presence, and called the police. The police apprehended defendant outside the office.
During the municipal court trial, over defense counsel's objection based on relevance, the municipal court judge permitted cross-examination about defendant's anger over an rights violation during one of the matters Fierro prosecuted against him, and about his allegation that Fierro was involved in a conspiracy against him. The judge found this evidence relevant to defendant's state of mind and intent to alarm or annoy.
The judge also permitted questions about defendant's prior harassment conviction, to which defense counsel did not object. The judge subsequently sua sponte excluded this evidence and did not rely on it to convict defendant.
In this appeal, defendant raises the following arguments for our consideration:
Point One: The Court Below Erred In Admitting Irrelevant And/Or Non-Probative Testimony And Improperly Overruled Several Defense Objections.
Point Two: The Court Erred In Convicting The Defendant Of Harassment In Violation [Of N.J.S.A. 2C:33-4a] As The Verdict Was Against The Greater Weight Of The Evidence And Was Not Proven Beyond A Reasonable Doubt.
We have considered defendant's argument in Point One in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.
"'[A] trial court's evidentiary rulings are entitled to deference absent a showing of an abuse of discretion, i.e. there has been a clear error of judgment.'" State v. Wakefield, 190 N.J. 397, 491 (2007) (quoting State v. Brown, 170 N.J. 138, 147 (2001)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). We find no abuse of discretion here. Evidence of defendant's anger was highly relevant to his state of mind and intent to alarm or annoy, and the judge excluded evidence of defendant's prior conviction and did not rely on it in convicting defendant.
We find equally without merit defendant's argument in Point Two that the judge erred in convicting him of harassment. We reject his argument that there is no evidence he intended to harass Fierro because they had no direct communication.
"Appellate review of a judge's decision in a criminal trial is limited to 'determin[ing] whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' given the burden of proof, which is proof beyond a reasonable doubt." State v. Castagna, 387 N.J. Super. 598, 604 (App. Div.) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)), certif. denied, 188 N.J. 577 (2006). "Deference is required 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 604-05 (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).
The question is not whether this court would come to "a different conclusion were it the trial tribunal." We may intervene only if "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand . . . correction." "[A] definite conviction that the judge went so wide of the mark, a mistake must have been made" is required. "This sense of 'wrongness' can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, [or] a clearly unjust result." [Id. at 605 (alterations in original) (quoting Johnson, supra, 42 N.J. 162).]
The offense of harassment at issue here is committed when a person, with purpose to harass, "[m]akes, 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[.]" N.J.S.A. 2C:33-4a. A harassing communication need not be made directly to the victim. Castagna, supra, 387 N.J. Super. at 606-07. However, in order to establish harassment through another, the State must show that the defendant "spoke to [another] 'with purpose to harass' [the victim] and with purpose to 'cause' [another] to make a communication in a manner likely to cause annoyance or alarm to [the victim]." Id. at 605 (quoting N.J.S.A. 2C:33-4a). "Thus, the offense requires a purpose that encompasses two objects----harassment of [the victim] and 'causing' [another] to make the communication. . . . When a result such as 'causing' another to make a communication is at issue, purpose means a 'conscious object' to bring about that result." Ibid. (quoting N.J.S.A. 2C:2-2b(1)). The State, therefore, is "required to introduce evidence adequate to prove . . . that when defendant spoke to [another] it was his conscious object to use [that person] as an instrument of harassment." Ibid. (citing N.J.S.A. 2C:2-2c(1)).
The State's obligation to prove the defendant spoke with a purpose to harass [the victim] through another is relevant to a defendant's responsibility for "causing" another to make a communication. Where proof of causation is required, the State must establish that the defendant's conduct was "an antecedent but for which the [harassing communication] would not have occurred." [Id. at 606-07 (quoting N.J.S.A. 2C:2-3a(1)).]
In this case, there is ample evidence that defendant spoke to the receptionist with purpose to harass Fierro and with purpose to cause the receptionist to communicate his threat to Fierro. In fact, defendant angrily instructed the receptionist to "give [Fierro] a message, you tell him I'm going to get him."
Clearly, when defendant spoke to the receptionist it was his conscious object to use her as an instrument to harass Fierro.
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