Opinion
DOCKET NO. A-2648-11T4
08-25-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILFREDO ZAYAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Haas. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-06-0649. Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Wilfredo Zayas appeals from his conviction and sentence for third-degree stalking in violation of a restraining order, N.J.S.A. 2C:12-10(c), and for a violation of a prior probationary sentence. We affirm.
A Passaic County grand jury returned a five-count indictment against defendant in June 2010 charging him with burglary, stalking, terroristic threats, and violating a domestic violence restraining order (two counts). The victim of these alleged offenses was defendant's former companion of more than thirty years. She had obtained a domestic violence restraining order against defendant in June 2009.
Defendant waived his right to trial by a jury on the indictment, and the court conducted a bifurcated bench trial in March 2011. During the trial, the court dismissed the counts charging terroristic threats and violation of the restraining order on grounds of insufficient evidence. After hearing counsel's arguments, it found defendant not guilty of burglary but guilty of stalking as a fourth-degree offense under N.J.S.A. 2C:12-10(b), without consideration of the restraining order. In accordance with N.J.S.A. 2C:12-10(c), the court then elevated the conviction to third degree after determining in the second part of the bench trial that the stalking occurred while a domestic violence restraining order was in effect.
As we will discuss in this opinion, the court found insufficient evidence that defendant burglarized the victim's home on April 24, 2010, and so, one count of violating the restraining order on that date was properly dismissed. Since the court found sufficient evidence that the incidents alleged by the victim on two other dates had occurred, we cannot tell why the court also dismissed the second count charging violation of the restraining order. We note that the prosecutor did not argue there was sufficient evidence to support that charge when the court suggested it intended to dismiss that count of the indictment for lack of evidence.
At the time of defendant's sentencing on November 18, 2011, the court reviewed the history of domestic violence committed by defendant against the victim and defendant's record of prior arrests and convictions. The court found four aggravating factors to be applicable to the sentence, N.J.S.A. 2C:44-1(a)(3), (6), (9), and (12), and no mitigating factors, N.J.S.A. 2C:44-1(b). The court sentenced defendant to four years in prison on the stalking charge, with a discretionary two-year term of parole ineligibility pursuant to N.J.S.A. 2C:43-6(b). It also imposed a sentence of eighteen months in prison for the violation of probation, concurrent to the four-year sentence for stalking.
Aggravating factor 12 refers to defendant's knowledge that he was committing the offenses against an elderly victim. The victim and defendant were both about sixty-nine years old.
On appeal, defendant argues:
POINT I
INSUFFICIENT PROOFS WERE PROVIDED BY THE STATE TO SUSTAIN A CONVICTION FOR STALKING IN THE FOURTH DEGREE.
POINT II
INSUFFICIENT PROOFS WERE PROVIDED BY THE STATE TO ELEVATE THE CONVICTION FOR STALKING TO THE THIRD DEGREE.
POINT III
THE SENTENCE IMPOSED WAS EXCESSIVE UNDER THE FACTS OF THIS CASE.
POINT IV
AS THE VIOLATION OF PROBATION WAS BASED ENTIRELY ON THE STALKING CONVICTION, IT MUST BE VACATED.
We review the trial court's decision in a bench trial only to determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We defer to factual determinations of the trial court because it has the "opportunity to hear and see the witnesses and to have the 'feel' of the case." Johnson, supra, 42 N.J. at 161; State v. Barrow, 408 N.J. Super. 509, 516-17 (App. Div.), certif. denied, 200 N.J. 547 (2009). We will disturb those findings only if they are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Hreha, 217 N.J. 368, 382 (2014) (quoting Johnson, supra, 42 N.J. at 162).
During the appeal, we granted defendant's motion for a limited remand to reconstruct the trial record because the record of the March 1, 2011 testimony of all witnesses at the trial was lost. With the assistance of counsel, the trial court reconstructed the record on July 10, 2013. However, a contemporaneous transcript also exists dated March 3, 2011, in which the trial court had recounted all the witness testimony when the court placed on the record a detailed explanation for its rulings on defendant's motion to dismiss all charges of the indictment. We rely on both the reconstructed record and the contemporaneous transcript in reciting the relevant facts of the case.
The victim testified about three incidents that occurred on April 24, 26, and 27, 2010, during which defendant allegedly harassed and terrorized her. The trial court credited the testimony of the victim and other witnesses regarding what occurred during the second and third incidents. However, the court found the victim's testimony regarding the April 24 incident was not credible and ultimately found defendant not guilty of the burglary charge from that date. The court also granted defendant's motion for acquittal on the terroristic threats charge in connection with the other incidents.
The trial court found that on April 26, 2010, the victim was walking along a public street on her way to the PSE&G building in Paterson when defendant began shouting at her from close proximity. Defendant "insulted" her by calling her "whore" and other profane names. One of the victim's sons happened to be in his vehicle in the same area and witnessed the incident. He testified at the trial that he saw defendant and heard him yelling at his mother and calling her a slut. Defendant threatened her by saying he would catch up with her. The son said his mother was nervous and upset after the incident. He picked her up in his truck and drove her to her job. The victim reported this incident to the police. The police officer observed the victim visibly shaken and nervous after the incident.
The next day, April 27, 2010, the victim was on a bus sitting directly behind the driver. Defendant boarded the bus and yelled at her loudly so that all the passengers on the bus could see and hear the commotion. Defendant asked if she was going to a hotel, suggesting that she had an immoral purpose. He raised his voice and held a cane to a side. Because the victim feared defendant might strike her with the cane, she got off the bus and reported the incident to the police. A police officer testified at the trial that he observed the victim was nervous, scared, crying, and shaking after the incident. The officer later found defendant walking in the street with a cane and arrested him.
The victim also testified that she feared defendant and was under the care of a psychologist as a result of defendant's harassing and threatening conduct.
Subsection (b) of the stalking statute, N.J.S.A. 2C:12-10, provides in relevant part:
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 suffer other emotional distress.
Defendant contends the evidence was insufficient to support his conviction under this statute because there was no evidence of any premeditation or conscious purpose in his contacts with the victim. He claims the two incidents were only chance encounters in the street. He also argues that his conduct amounted only to name-calling and insults, and it would not cause a reasonable person to fear for her safety or suffer significant mental suffering or distress.
The words and phrases used in the stalking statute are defined in its subsection (a). "Course of conduct" is defined in relevant part as:
repeatedly maintaining a visual or physical proximity to a person . . . by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person's property; repeatedly committing harassment against a person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person."Repeatedly" means "on two or more occasions." Ibid. The statute defines "emotional distress" as "significant mental suffering or distress," and the phrase "[c]ause a reasonable person to fear" as "to cause fear which a reasonable victim, similarly situated, would have under the circumstances." Ibid.
[N.J.S.A. 2C:12-10(a).]
The New Jersey Supreme Court interpreted the interplay between these terms in State v. Gandhi, 201 N.J. 161 (2010). It held that whether a defendant's conduct would "cause a reasonable person to fear" refers to "an objectively reasonable person," and it focuses on the defendant's conduct rather than his conscious objective. Id. at 170.
Defendant argues that the trial court found the victim may have fantasized about the alleged burglary incident of April 24, and so, the victim was not an objectively reasonable person. He contends his conduct during the subsequent two incidents was not sufficiently intimidating to cause fear or distress in a reasonable person. He asserts he did not threaten her, and the mere act of running into her in the street and insulting her does not constitute a purposeful "course of conduct" that would cause the requisite fear or distress in an objectively reasonable person.
Defendant minimizes his conduct and ignores the contextual circumstances that gave purpose to his conduct and grounds for the victim's fear. On both occasions, defendant acted aggressively towards the victim and yelled at her in a public place, thus indicating his lack of inhibition about confronting her. Given the history of domestic violence resulting in a restraining order that the victim obtained against him, an objectively reasonable woman would have cause to fear harm, then or perhaps in the future, and to experience significant distress and emotional suffering.
The trial court was in the best position to assess whether these and other circumstances rendered defendant's conduct capable of causing the fear or distress that is an element of the crime. Defendant has not cited any legal authority to support his argument that the court's finding was "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Hreha, supra, 217 N.J. at 382 (quoting Johnson, supra, 42 N.J. at 162). We conclude the trial court did not err in finding sufficient evidence that defendant's conduct proved the required elements of the stalking statute.
Tn the second part of the bench trial, the court elevated the conviction to a third-degree offense under N.J.S.A. 2C:12-10(c) after hearing evidence that a final restraining order had been entered against defendant and served on him in the courtroom on June 19, 2009, and that the restraining order remained in effect in April 2010. Defendant contends the evidence was insufficient because the restraining order was written only in English, which is not his native language.
We reject this argument for two reasons: the statute does not require a restraining order in a defendant's native language, and, defendant was present for the domestic violence proceedings and knew a restraining order had been entered against him. The order was served upon him by a sheriff's officer in the courtroom immediately after the domestic violence hearing, and defendant acknowledged receipt of the order by signing it. Thus, we affirm defendant's elevated conviction for third-degree stalking.
Because the conviction for stalking stands, we also affirm defendant's conviction for violating the terms of his existing sentence of probation.
Finally, defendant challenges as excessive the four-year prison sentence and the two-year term of parole ineligibility imposed by the court. But defendant's sentencing arguments are moot. He was arrested on April 27, 2010, and remained in custody on these charges through the time of his trial and sentencing on November 18, 2011. The Judgment of Conviction states that defendant was granted 570 days of jail time credit. As of the date of our decision in this appeal, defendant has undoubtedly completed all aspects of his sentence, the four-year term, the two years of parole ineligibility, and the eighteen-month concurrent sentence for the violation of probation. Our review of the trial court's sentencing decision can have no effect on defendant's service of the sentence. Moreover, there is nothing unusual or of public interest in the length of defendant's sentence that would warrant our review although defendant has completed all aspects of his sentence. See State ex rel. C.V., 201 N.J. 281, 287 (2010). We need not review defendant's sentence.
We nevertheless note that the trial court sentenced defendant after hearing from the prosecutor that defendant had twice violated the final restraining order immediately upon being released from custody. Defendant remained in custody from the time the restraining order was entered in June 2009 to March 2010 because he was charged with crimes that ultimately resulted in his probationary sentence. On the day he was released from jail in March 2010, he went to the victim's home and was re-arrested for violating the restraining order. He then remained in custody again until April 23, 2010. The offenses charged in the indictment in this case occurred in the days immediately following his second release from custody.
In addition, defendant had two prior indictable convictions and a history of prior arrests and lesser convictions dating to at least 1991. Finally, the court learned at sentencing that the victim obtained a domestic violence restraining order against defendant after alleging years of physical abuse at his hands, thus supporting her reasons to fear his intent and inclination to harm her.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION