On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-10-2325.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and St. John.
Following a bench trial, defendant Tom White appeals from his conviction of harassment, N.J.S.A. 2C:33-4(c), a petty disorderly persons offense, and his sentence of a one-year term of probation, plus a $125 fine and submission of a DNA sample. After reviewing the arguments advanced on appeal, in light of the record and applicable law, we affirm defendant's conviction, and vacate his sentence, in part.
The record reveals the following facts relevant to this appeal.
In 2007, Blondell James and her husband, Harry,*fn1 began constructing their new home in Buena Vista, a rural municipality in Atlantic County. Shortly after construction commenced, a "neighborhood dispute" developed between the James family and defendant, who is their next-door neighbor. Over the next two years, numerous police reports were filed as a result of the ongoing dispute. On approximately fifteen occasions, local police or State Troopers were dispatched to their residences.
On July 19, 2008, Blondell went to the State Police Barracks in Buena Vista and complained that defendant was "shouting at" contractors, causing them to "leave the job site early." Troopers discussed the situation with both parties, and determined the dispute was related to the location of a fence near the property line between their residences. Blondell later testified that around that time she also witnessed defendant enter her property and post "no trespassing, no hunting" signs on her trees without permission. In a subsequent State Police report, a trooper concluded that "neither party wanted to file complaints and no further action was taken."
On May 9, 2009, Blondell contacted the State Police, and requested a trooper be dispatched as a result of defendant's noisy use of an all-terrain vehicle (ATV) on the edge of the property line. Upon arrival, the trooper advised Harry that defendant was not in violation of any noise ordinance, and that he could not prevent defendant from riding an ATV on his own property. While still at the scene, the trooper received a call reporting that someone from the James residence just called 9-1-1 and requested the assistance of a trooper "due to the noise." Following this dispatch, the trooper requested that defendant refrain from riding his ATV for the rest of the evening. Defendant agreed, and no further complaints were made at that time.
On May 11, 2009, Blondell filed a complaint against defendant in the Buena Vista Regional Municipal Court, alleging harassment and bias harassment. She cited the ATV incident of May 9, when defendant drove his ATV back and forth on top of the dirt berm next to their property border, while flashing the headlights and revving the engine in a loud manner. She also alleged that on July 19, 2008, "[defendant] stood on top of [the dirt berm]. He yelled and screamed. He took his shirt off, he was swinging his shirt in the air, calling to us . . . 'why did you f**king niggers have to build your house in back of mine?'"
On December 9, 2009, the Municipal Court judge entered an order holding the case in abeyance for six months. The complaint was subsequently dismissed.
On August 5, 2010, Blondell again called the State Police, reporting that she was in her backyard when she observed defendant staring at her. Defendant explained to the responding troopers he was on his property inspecting a fallen tree.
Blondell filed a complaint later that month, alleging that on August 5, defendant engaged in conduct that caused her to fear for the death of herself or a family member. She recounted that defendant regularly watched her through the fence that separates their property, and he would engage in "dipping and dodging" behind the fence to maintain his vantage point toward her. She also testified that defendant would stand under a spotlight during the night and watch her from his property.
On October 12, 2010, an Atlantic County Grand Jury returned Indictment No. 10-10-2325, charging defendant with fourth-degree stalking, N.J.S.A. 2C:12-10b, which the Atlantic County Prosecutor's Office ...