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State of New Jersey v. Mark Merlino

November 29, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK MERLINO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 44-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 1, 2011 -

Before Judges Carchman and Baxter.

Following a trial de novo in the Law Division, defendant Mark Merlino appeals from his July 6, 2010 conviction on a charge of harassment, N.J.S.A. 2C:33-4(a). On appeal, defendant presents the following issues for our consideration:

I. STANDARD OF REVIEW.

II. THE STATE FAILED TO PROVE A VIOLATION OF HARASSMENT[sic].

III. THE COURT APPLIED THE SUBSECTION OF N.J.S.A. 2C:33-4 [sic].

IV. THE STATE DID NOT MEET ITS BURDEN OF PROOF.

We affirm.

I.

Defendant lives in Moorestown, where his backyard abuts the backyard of Edwin Peterson. Defendant's rear porch is ninety feet away from the back of Peterson's home. Defendant and Peterson were formerly friends and business partners, but over the years their relationship soured. Thereafter, according to Peterson, defendant constantly raised his middle finger to Peterson in an obscene gesture, and used a video camera in April and May 2007 to film Peterson and his family. When asked why he believed defendant had videotaped him, Peterson answered "I figured he was just trying to annoy me." Peterson tolerated the videotaping for quite some time until he learned, in the spring of 2009, that defendant had been surreptitiously peering through Peterson's windows and filming Peterson and his family inside their home. Peterson testified that "it was pretty devastating" to learn that defendant had been filming him and his family in their home, adding that he is still "not comfortable in [his] house to this day."

Peterson also testified that on February 9, 2007, defendant placed a deer's head in a bucket and placed the head on defendant's back porch facing the direction of Peterson's property bearing a sign that read, "You'll never guess where this came from." Peterson explained that this incident annoyed and alarmed him because he feeds deer in his backyard. He explained that the deer head in the bucket had a "peculiar rack," and appeared to be the same deer that Peterson had been feeding. Peterson testified that defendant knew he enjoyed feeding deer on his property, because in the past, when their relationship was better, defendant and Peterson watched the deer together in their backyards.

Finally, Peterson testified that defendant constantly stared at him while defendant was standing with his arms folded. Peterson described defendant's stance as a confrontational stare designed to annoy him, stating "it's just annoying to have someone stare at you with their ...


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