Opinion
DOCKET NO. A-0825-13T4
01-07-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRED M. AZER, Defendant-Appellant.
John Menzel argued the cause for appellant. Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Carroll, and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-05-00899. John Menzel argued the cause for appellant. Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Fred Azer was convicted of third-degree stalking, N.J.S.A. 2C:12-10, in violation of an existing court order. In substance, the State alleged that defendant engaged in a course of conduct directed at his neighbor, Mr. V., which caused Mr. V. to fear for the safety of himself and his family. Defendant appeals from the judgment of conviction entered on August 30, 2013, following the denial of his motion for a new trial. For the reasons that follow, we affirm.
To protect the privacy of the victim, and because the victim and his wife have the same initials, we refer to them as Mr. and Mrs. V., and we refer to their children by their initials. --------
I.
The indictment alleged that the stalking occurred on various dates from December 22, 2011 through March 1, 2012. At trial, the State adduced proofs concerning six events that transpired during that time period, which we summarize as follows.
On December 22, 2011, while Mrs. V. and her tenant were pulling out of their driveway, Mrs. V. observed defendant "coming from his house, running diagonally across his lawn at my car, . . . chasing my car, trying to get at my car." She testified, "I was very frightened and I thought he was going to get to my car before I was able to pull away." Defendant then chased her car down the street before eventually stopping his pursuit.
Three days later, on December 25, Mrs. V. was outside on her porch when she observed defendant exit his home and stand near the edge of his property. Defendant then "violently" stomped on large tree branches and broke them over his knee while staring directly at her "with a crazed look [on] his face." This conduct persisted for five to ten minutes, and caused Mrs. V. to retreat back into her home due to fear for her safety.
During the late evening of January 22, 2012, Mr. V. was walking his dogs on the landing outside the front door of his home. Defendant then exited his house and walked aggressively along the opposite side of the street. While doing so, Mr. V. heard defendant repeatedly say "I'm going to get you at the store" while simultaneously punching his fist into his palm.
On February 17, 2012, at about 2:00 or 3:00 a.m., Mr. V. let his dogs out when he again saw defendant exit his house. Defendant paced back and forth across the street, stating "[t]hings are gonna start to get worse for you and your family," while repeatedly punching his fist into his palm. Mr. V. testified that he perceived defendant's statement to be a threat directed at him and his family, which caused him to feel "[q]uite scared."
On February 28, 2012, Mr. V. stopped at a local Dunkin Donuts to buy coffee on his way to work. While Mr. V. was sitting in his truck near the strip mall's rear delivery area, defendant arrived in his black BMW and parked alongside a large trash canister. As Mr. V. got out of his truck, defendant began to walk toward him, wearing a dark stocking over his face. Mr. V. then reentered his truck, locked its doors, and called the police. While waiting for the police to arrive, Mr. V. observed defendant approach his truck, stop, look at him, and then look up toward the sky and mumble for two minutes before he returned to his car and drove away. Manalapan Police Officer Joseph DeFilippis testified that, upon responding to the scene, he found Mr. V. "was a little scared. He was worried, concerned." Defendant was arrested at his home approximately three hours later.
Finally, Mr. V.'s daughter, C.V., testified that on March 1, 2012, she walked her friend out to her car. As her friend drove away, defendant screamed from across the street and then approached C.V. in a threatening manner. C.V. knew defendant's yelling was directed at her because it was late at night and no one else was in the vicinity. She responded by running into her house, locking the doors, and calling the police. Shortly thereafter, the police arrived in an unmarked vehicle. C.V. went outside to tell them what occurred. She described that she was in "terror because [she] didn't know where [defendant] was . . . so [she] was just afraid." As she was talking to the police, she observed defendant staring at her through the window panels of his home. Defendant then came out without a shirt on and began sprinting toward her. She felt afraid that "he was going to get around the car faster than [the police] would get out and what was going to happen." She testified that defendant was ultimately stopped by one of the officers who "got in front of him and held him back." C.V. called her father, who was not home at the time. Upon receiving this phone call, Mr. V. testified that "I was a wreck, because when you are that nervous it's even hard to drive."
Mr. V. described the emotional distress he experienced as a result of these incidents, as follows:
Q. Now, you've described for us a number of incidents involving yourself and the defendant. Is that correct?
A. Correct.
Q. Can you please explain to the jury how those incidents made you feel.
A. Yes. Well, very scared for my family because I'm not home a lot. I truck, and I make these long distance runs. And I'm gone sometimes for [twenty-four], [thirty] hours at a time. There's no other male living in the house. It's just my wife and my two daughters. And most of the time my daughters might be out. My wife is home alone.
And it has affected my ability to work properly because it's very difficult for me to be far away. But yet because of the kind
of business I'm in and what I'm obligated to do, I have to get certain jobs done, so I have to leave. And I'll be calling and I'll be calling every half hour, every hour. I would always be there, telling my wife what to do if she needs to leave the house. And just totally, totally, totally on edge. That's the way I've been feeling all the time.
Q. Do you have any fears for your safety personally?
A. Yes.
Q. Do you have fears for anyone else's safety?
A. Yes, my family.
Defendant and Mr. V. had also been involved in an altercation on March 18, 2011, prior to the timeframe referenced in the indictment. On that date, Manalapan Police Chief Christopher Marsala was driving an unmarked police vehicle when he received a request from Patrolman Ed Hedden to investigate where the parties resided. As he drove by the area, Marsala observed that Mr. V. was on his lawn with his dog. Defendant, who had crossed the street and "was pacing back and forth," then "just took off at a dead run at Mr. [V.] and started punching him." Marsala described that defendant's arms were "wild, flailing," and that defendant connected with some of his punches while others missed. Next, defendant "pulled Mr. [V.]'s shirt up over his head and actually off his body."
Hedden arrived "within seconds" and the two officers identified themselves, drew their guns, and ordered defendant to the ground. Defendant backed up and shouted, "he's got a knife." Marsala saw that Mr. V. was holding a small kitchen knife, and he too was ordered to the ground at gunpoint. Both men complied with the officers' commands. They were then arrested and taken into custody.
The criminal charges emanating from this incident were remanded to the Manalapan Municipal Court, where they were dismissed on July 11, 2011. The court entered mutual "no contact" orders against both men, which were to remain in effect "indefinitely." At trial it was stipulated that both orders were in effect during the timeframe set forth in the indictment.
Prior to trial, the State filed an N.J.R.E. 404(b) motion and sought to bifurcate the trial, pursuant to State v. Gandhi, 201 N.J. 161 (2010), and State v. Chenique-Puey, 145 N.J. 334 (1996). To avoid prejudicing defendant, the State proposed that during the first phase of the trial it would not seek to introduce evidence relating to the altercation that had led to the entry of the "no contact" orders. However, should defendant "choose[] to open that door," the State would then seek to introduce evidence regarding the March 18, 2011 incident and a February 20, 2011 incident that resulted in Mr. V. signing complaints against defendant for terroristic threats, N.J.S.A. 2C:12-3b, and harassment, N.J.S.A. 2C:33-4a.
Defendant responded that he did not oppose the State's motion as he was "anxious for the full picture of prior bad acts on both sides to be disclosed." Consequently, on December 19, 2012, the parties entered into a consent order providing "that if [] [d]efendant introduces evidence of the March 18, 2011 incident at trial, the State is permitted to present evidence concerning that incident and the events on or about February 20, 2011 described in the State's [N.J.R.E.] 404(b) motion."
At trial, defendant, who declined to testify, triggered the admission of the N.J.R.E. 404(b) evidence by asking several of the State's witnesses about prior incidents. Most notably, defense counsel questioned Mr. V. about the "incident regarding a knife." The trial court gave the jury three limiting instructions regarding the appropriate use of the testimony, and included such an instruction in its final charge.
The jury found defendant guilty of stalking in violation of the "no contact" order. The trial court sentenced defendant to a four-year prison term. Defendant appeals and raises the following arguments:
I. DEFENDANT DID NOT COMMIT THE OFFENSE OF STALKING
A. THE STATUTORY FRAMEWORK
B. THE LANGUAGE OF THE STALKING STATUTE, AS APPLIED TO DEFENDANT, IS TOO OVERBROAD AND VAGUE SO AS TO PERMIT A CONVICTION HERE
II. THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURY ON THE OFFENSE OF HARASSMENT AS [] EITHER A LESSER INCLUDED OFFENSE [], OR RELATED OFFENSE TO, THE CRIME OF STALKING
III. ADMISSION OF THE "KNIFE INCIDENT" AND OTHER EVIDENCE OF PRIOR ACTS SO CONTAMINATED THE JURY'S FACT FINDING AS TO DEPRIVE DEFENDANT OF A FAIR TRIAL
IV. TRIAL COUNSEL'S OPENING THE DOOR TO ADMISSION OF THE "KNIFE INCIDENT" AND OTHER EVIDENCE OF PRIOR ACTS WAS INEFFECTIVE ASSISTANCE OF COUNSEL THAT DEPRIVED DEFENDANT OF A FAIR TRIAL
II.
A.
Defendant first contends that he did not commit the crime of stalking and that the trial court should have granted his motion for a judgment of acquittal at the conclusion of the State's case. We disagree.
Rule 3:18-1 permits the court, either on defendant's motion or its own initiative, to "order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction." The trial judge must determine whether, viewing the evidence in its entirety and giving the State the benefit of all favorable testimony as well as all favorable inferences that reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Fiorello, 36 N.J. 80, 90 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962). "[T]he trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). Our review of a motion for acquittal is "limited and deferential" and governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004).
The stalking statute, N.J.S.A. 2C:12-10, provides that:
b. A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.Having reviewed the record, we conclude that a reasonable jury could easily conclude from the proofs presented that defendant purposely and knowingly engaged in a course of conduct directed at Mr. V. that was meant to, and did, cause him to fear for his safety and the safety of his family.
c. A person is guilty of a crime of the third degree if he commits the crime of stalking in violation of an existing court order prohibiting the behavior.
In a related argument, defendant also contends that, as applied here, the stalking statute is too overbroad and vague to sustain his conviction. He asserts that while his "conduct may be unusual, strange, or weird, it was not criminal." We find no merit to this contention.
The Due Process Clause of the Fourteenth Amendment of the United States Constitution guarantees that [n]o State shall . . . deprive any person of life, liberty, or property, without due process of law . . . . A fundamental element of due process is that a law must give fair notice of conduct that is forbidden or required. A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited. A person should be on notice that he is engaged in wrongdoing before he is brought to the bar of justice for condemnation in a criminal case.
A statute that criminalizes conduct in terms so vague that [persons] of common intelligence must necessarily guess at its meaning . . . violates the first essential of due process of law. The inherent vice in vague laws is that they do not draw clear lines separating criminal from lawful conduct. A penal statute should not be a trap for the unwary.
[State v. Pomianek, 221 N.J. 66, 84-85 (2015) (parentheticals omitted) (alterations in original).]
"The test for determining overbreadth is whether the statute substantially restricts constitutionally protected conduct." State v. Cardell, 318 N.J. Super. 175, 182 (App. Div.), certif. denied, 158 N.J. 687 (1999). "[O]verbreadth is not measured by whether the scope of the prohibition exceeds the stated purpose of the legislation, but rather, the extent to which it intrudes upon constitutionally protected conduct." State v. Badr, 415 N.J. Super. 455, 467 (App. Div. 2010).
Guided by these standards, we determine that the stalking statute, as applied to defendant's conduct, is neither vague nor overbroad. The statute clearly indicates what conduct is criminalized, and that a person must engage in such prohibited conduct "purposefully or knowingly." N.J.S.A. 2C:12-10b, -10c. Further, the terms and elements of the offense are specifically defined, including "course of conduct," "repeatedly," "emotional distress," and "cause a reasonable person to fear." N.J.S.A. 2C:12-10a. Accordingly, it is "sufficiently clear and precise so that people are given notice and adequate warning of the law's reach." Pomianek, supra, 221 N.J. at 85 (citing State v. Lee, 96 N.J. 156, 165 (1984)).
Moreover, we have recognized that "[t]he stalking and harassment statutes have been narrowly drawn so as not to impinge on protected speech." N.G. v. J.P., 426 N.J. Super. 398, 418 (App. Div. 2012). "In short, there is no constitutional right to threaten other people in the manner prohibited by our anti-stalking statute." Cardell, supra, 318 N.J. Super. at 184. Here, defendant clearly placed his victims in fear for their safety or the safety of others. Thus, the overbreadth and vagueness doctrines afford no basis to excuse the threatening conduct engaged in by defendant, which in this case directly contravened the earlier "no contact" order, of which defendant was undoubtedly aware.
B.
In his second point, defendant argues that the trial court erred in not instructing the jury on the lesser included or related offense of harassment. We begin by noting the applicable principles that guide our analysis.
N.J.S.A. 2C:1-8e states, "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." See also State v. Cassady, 198 N.J. 165, 178 (2009).
When a defendant requests a charge on a lesser-included offense, the trial court applies a two-prong test to determine if the charge should be given: "whether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense." Ibid. (quoting State v. Thomas, 187 N.J. 119, 131 (2006)). The court must consider "whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 117 (1994). "[S]heer speculation does not constitute a rational basis. The evidence must present adequate reason for the jury to acquit the defendant on the greater charge and to convict on the lesser." Id. at 118-19. "[A] contention that the jury might accept the prosecution's evidence in part and might reject it in part ought not to be sufficient." Id. at 115 (quoting Model Penal Code § 1.08 cmt. at 42-43 (Tentative Draft No. 5, 1956)).
The applicable standard is different when a charge has not been requested. "An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). Further, "the court need not sift through the record to determine whether any combination of facts would support a lesser charge." State v. Garron, 177 N.J. 147, 180-81 n. 5 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004).
In contrast, related offenses are those that "share a common factual ground, but not a commonality in statutory elements, with the crimes charged in the indictment." Thomas, supra, 187 N.J. at 132. A trial court may charge the jury on a lesser-related offense upon a finding of two factors. First, the defendant must request or consent to the related offense charge. Id. at 133. Second, there must be a rational basis in the evidence to sustain the charge. Ibid.
As best we can ascertain, prior to instructing the jury, the trial court did not hold a charge conference on the record. We take this opportunity to remind trial judges that such practice violates Rule 1:8-7(b), and also serves to hamper our appellate review. Nonetheless, in this case, we glean from the following comment in the record that although the court charged the jury on harassment as an element of the indicted stalking charge, defendant requested that the court not charge it as a lesser offense:
[THE COURT]: Sometime before summations I'll let you take a look at the stalking charge that I've done. I haven't finished it yet but it's basically the model jury charge with the inclusion of the harassment charge in it. And as we all agreed, unless someone is moving for it, you do not want harassment read as a separate offense. Correct?
[Defense Counsel]: Correct.
Here, the record established at trial, which we briefly summarized above, does not rationally support the contention that defendant merely engaged in an isolated act of harassment. Rather, he engaged in a course of conduct that involved repeated acts of harassment, within the scope and intent of the stalking statute. Indeed, defendant did not request an instruction on a lesser offense of harassment, thereby demonstrating he also understood there was no rational basis for the charge.
Moreover, defendant's resistance to such a charge and his failure to object to its absence, requires our rejection of his now-belated argument. R. 1:7-2. See also State v. Chew, 150 N.J. 30, 75 (1997) (holding that a lesser-included offense charge may be given only "when the instruction does not conflict with a defendant's trial strategy"). Although reversal may be required notwithstanding the lack of objection if its omission was clearly capable of producing an unjust result, R. 2:10-2, we are not persuaded that the omission rises to that level here.
C.
Next, contrary to his strategy at trial, defendant now argues that admission of the evidence regarding the prior acts, and especially the March 18, 2011 "knife incident," deprived him of a fair trial. This argument warrants little discussion.
As noted, the State was fully prepared to proceed to trial without reference to the prior acts, and moved to preclude such evidence under N.J.R.E. 404(b). Defendant in turn advised that he was "anxious for the full picture of prior bad acts on both sides to be disclosed." At trial, in his questioning of the State's witnesses, defendant "opened the door" to admission of such evidence in accordance with the express terms of the parties' December 12, 2012 consent order.
We conclude that, on these facts, defendant cannot complain because he invited the error. The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error. State v. Munafo, 222 N.J. 480, 487 (2015). A "defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought . . . claiming it to be error and prejudicial." State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)); accord N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010).
"The invited-error doctrine is intended to 'prevent defendants from manipulating the system' and will apply 'when a defendant in some way has led the court into error' while pursuing a tactical advantage that does not work as planned." State v. Williams, 219 N.J. 89, 100 (2014) (quoting State v. A.R., 213 N.J. 542, 561-62 (2013)), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015). "The doctrine 'is grounded in considerations of fairness,' but will not apply automatically if to do so would 'cause a fundamental miscarriage of justice.'" Ibid.
Also, when a court admits other crimes evidence, generally it must give "a firm and clear jury instruction" as to the appropriate use of the evidence. State v. Gillispie, 208 N.J. 59, 92 (2011). The trial court did so here, and we find no fundamental miscarriage of justice resulted from the admission of this evidence.
D.
Finally, defendant urges reversal on the grounds that trial counsel's opening the door to admission of the prior act evidence constituted ineffective assistance of counsel.
To prove ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that counsel's error so prejudiced defendant that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Generally, we do not entertain ineffective assistance of counsel claims on direct appeal "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). The appropriate procedure for their resolution commonly is not direct appeal, but rather a post-conviction relief (PCR) application. Id. at 460, 463. Where defendant's claim of ineffectiveness relates solely to his allegation of a substantive legal error contained completely within the trial record, however, we can consider it. See State v. Quezada, 402 N.J. Super. 277, 280 (App. Div. 2008).
Defendant's claims are better suited for a PCR proceeding, rather than this appeal, as they appear to concern trial strategy decisions. State v. McDonald, 211 N.J. 4, 30 (2012). The record, of course, cannot reveal what occurred during off-the-record interactions, and making an adequate judgment "would require information outside of the record [to be] before the Court." Ibid. Thus, we decline to consider this point. Our determination is without prejudice to defendant raising it in an appropriate and timely PCR petition. We express no view as to the merits of such an application.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION