STATE OF NEW JERSEY v. FAREED M. GANDHI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0667-07T40667-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FAREED M. GANDHI,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 9, 2009 - Decided

Before Judges Lisa, Reisner and

Sapp-Peterson.

On appeal from the Superior Court, Law Division, Criminal Part, Monmouth County, Indictment Nos. 03-03-0457 and 04-04-1007.

Warren S. Hecht, attorney for appellant.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel; Jamie L. Schron, Legal Assistant, on the brief).

PER CURIAM

Defendant was convicted in the first phase of a sequential trial of two counts of fourth-degree stalking, N.J.S.A. 2C:12-10b. The same person was the victim in both counts, but each count reflected a separate time period. In the second phase of the trial, the jury found that defendant committed the stalking in violation of existing court orders prohibiting the behavior, thus elevating the stalking convictions to crimes of the third degree. N.J.S.A. 2C:12-10c. In the second phase of the trial, the jury also found defendant guilty of eleven counts of fourth-degree contempt of court by disobeying judicial orders. N.J.S.A. 2C:29-9a. Judge DeStefano merged all of the contempt of court convictions with one of the stalking counts. The judge sentenced defendant on January 21, 2005 to consecutive five-year terms on each stalking count. The judge also ordered that defendant receive psychiatric counseling and treatment while in custody.

On appeal, defendant argues:

POINT ONE

THE TRIAL COURT SHOULD HAVE CHARGED AS AN ELEMENT OF STALKING THE DEFENDANT'S CULPABILITY FOR THE RESULT OF HIS CONDUCT (PRESENTED BELOW) AND THAT THE CONDUCT WAS DONE "REPEATEDLY" (NOT PRESENTED BELOW).

POINT TWO

THE VERDICT SHEET WAS IMPROPER SINCE IT ONLY LISTED ELEMENTS AS TO STALKING AND INCLUDED ONLY SOME ELEMENTS FOR STALKING.

POINT THREE

THE TRIAL COURT SHOULD HAVE SUPPRESSED THE STATEMENT MADE BY THE DEFENDANT SINCE HE WAS NOT GIVEN HIS MIRANDA WARNINGS.

POINT FOUR

THE CONVICTION FOR STALKING IN THE THIRD DEGREE SHOULD BE REVERSED SINCE THE TRIAL COURT IMPROPERLY ALLOWED THE JURY TO CONSIDER VARIOUS ORDERS AS THE ORDER THAT THE DEFENDANT VIOLATED.

POINT FIVE

THE TRIAL COURT IMPROPERLY REMOVED THE DEFENDANT BEFORE PRONOUNCING SENTENCE (NOT OBJECTED TO BELOW).

POINT SIX

THE TRIAL COURT SHOULD HAVE ALLOWED THE DEFENDANT TO REPRESENT HIMSELF AT SENTENCING.

POINT SEVEN

THE TRIAL COURT SHOULD HAVE HELD A HEARING TO DETERMINE THE DEFENDANT'S COMPETENCY BEFORE SENTENCING HIM.

POINT EIGHT

THE SENTENCE MUST BE VACATED SINCE IT INCREASED THE PRESUMPTIVE SENTENCE ON A FINDING OF AGGRAVATING FACTORS OTHER THAN A PRIOR CRIMINAL CONVICTION IN VIOLATION OF THE SIXTH AMENDMENT (NOT RAISED BELOW).

POINT NINE

THE SENTENCE SHOULD BE VACATED SINCE IT WAS EXCESSIVE AND THE SENTENCE FOR EACH INDICTMENT SHOULD HAVE BEEN CONCURRENT.

We reject Points One through Four and affirm defendant's conviction.

With respect to Point Eight the State concedes and we agree that this matter must be remanded for resentencing in accordance with State v. Natale, 184 N.J. 458, 495-96 (2005). See also State v. Thomas, 188 N.J. 137, 152-53 (2006). Because defendant will be resentenced, Points Five, Six and Seven are moot, and we will not address them. If at the resentencing proceeding, defendant wishes to raise those issues, he may do so, and the court will dispose of them appropriately under the circumstances and conditions then existing. In light of the remand for resentencing, we decline to adjudicate the argument defendant raised in Point Nine regarding excessiveness of the sentence and the consecutive terms imposed.

We make one further point with respect to the resentencing proceeding. Our review of the complete record in this case reveals a significant likelihood that defendant may have mental health issues, which may have played a role in his criminal conduct. Therefore, notwithstanding the general proscription against new findings regarding aggravating and mitigating factors previously found, Natale, supra, 184 N.J. at 496, we direct the court to consider whether mitigating factor (4) should apply. N.J.S.A. 2C:44-1b(4) ("There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense."). We make no determination regarding applicability of this factor, but direct the judge to make a finding on the issue, accompanied by a statement of reasons.

I

The victim, M.G., was twenty-one years old at the time of trial in October 2004. She was a social friend of defendant, having met him through her boyfriend's brother. There was never a romantic relationship between M.G. and defendant. One night in January 2002, defendant was driving M.G. home. As she described it, he suddenly "snapped" and acted "[l]ike a psychopath," as "he just started confessing his love for me, and he started swerving his car, and just saying all this stuff like, oh, you know, if I can't have you, nobody can." Defendant told M.G. how much he cared for her, and how he could treat her better than anyone else could. M.G. was able to calm defendant down and persuade him to take her home.

Following this incident, defendant began a course of sending romantic and sexually-themed email and instant message (IM) communications to M.G. M.G. described the communications as containing "stuff like, talking about my area, and just wanting to have sex with me, he was going to lose his virginity to me, whether I liked it or not. He talked about a baby he wants with me." M.G. repeatedly told defendant to leave her alone, but he disregarded her requests. M.G. began saving defendant's IMs and emails, which were later admitted into evidence at trial.

In May 2002, M.G. reported defendant's conduct to the police and filed a harassment complaint. On July 11, 2002, defendant, represented by counsel, appeared in the Red Bank Municipal Court on the charge. M.G. was present. In exchange for M.G.'s withdrawal of the complaint, defendant agreed that he would never attempt to contact her again by any means. Municipal Judge William Himelman accepted and implemented the recommended disposition and issued a verbal order restraining defendant from having any contact with M.G. or her boyfriend (who was also present in court), "either directly or indirectly." The court asked defendant if he understood the order, to which he responded in the affirmative, and the court emphasized that his order "means no letters, things on the window of the car, don't send her flowers, no conversation, nothing."

A transcript of this municipal court proceeding was admitted in evidence at defendant's trial, and the order embodied in the transcript is one of the orders that served as a predicate to elevate defendant's stalking charge in the first indictment to third-degree. The first stalking charge, embodied in Indictment No. 03-03-0457, returned on March 12, 2003, charged defendant with stalking M.G. between May 2002 and January 2003.

During all of these events, M.G. lived at home with her parents. On October 23, 2002, defendant came to M.G.'s home and spoke with her father. M.G.'s father reminded defendant of the no contact order. Defendant stated that he did not care, but left when M.G.'s father told M.G.'s brother to call the police. A complaint was issued against defendant charging him with harassment for this visit.

On November 7, 2002, defendant was processed on this charge at the Red Bank Police Department. Defendant was administered Miranda warnings, acknowledged that he understood them, and responded to questioning by Sergeant Joshua Berbrick. When Berbrick asked him what happened on October 23, 2002, defendant "just looked at [Berbrick] blankly, and he said that he was going to kill [M.G.'s] family, and then he was going to impregnate her, and then he was going to kill himself once the baby was born . . . . so he could live on forever through the baby."

On November 15, 2002, M.G.'s father received a series of phone calls from defendant asking to speak with M.G. M.G.'s father reported this to the police. On November 18, 2002, defendant arrived at M.G.'s home. As M.G.'s mother called the police, M.G.'s father allowed defendant to come into the home. He did this because he wanted defendant to be there when the police arrived. M.G.'s father again reminded defendant about the no contact order and told defendant he could go to jail, to which defendant responded, "I don't give a fuck." When defendant saw the police pull up, he stepped out of the front door onto the front porch, and turned to M.G.'s father and said "you fuckin' suck."

Berbrick and Officer David Hicks were the officers who responded. Berbrick described that M.G.'s father was visibly shaken and crying. At the direction of the officers, defendant stood off to the side with Hicks while Berbrick spoke to M.G.'s father, trying to find out what happened. Defendant was not handcuffed and did not express a desire to leave the area. He stood by as Hicks obtained pedigree information from him. Berbrick then walked over to defendant and asked him what happened. At the suppression hearing, Berbrick explained that he did not administer Miranda warnings at that point because he was "still trying to figure out what had happened." He said there are "two sides to every story, I wanted to hear his side of the story before I made my next step of determining what we were going to do at that point." In response to Berbrick's question about what happened, defendant "said that he didn't care what the judge said, he was going to come there. He said if we put him in jail, it didn't matter; the day he got out of jail, he was going to come back there anyway." Defendant was arrested and taken into custody. He was charged with stalking.

On November 19, 2002, Presiding Municipal Judge Robert C. Blum set bail. The bail order contained as a special provision "NO VICTIM CONTACT NO RETURN TO SCENE." Defendant posted bail and was released on November 25, 2002.

As we stated, the first indictment was returned against defendant on March 12, 2003. There was apparently a lull in his contacts with M.G. However, on June 14, 2003, written correspondence addressed to M.G. from defendant began to arrive at M.G.'s home. Defendant's bail was revoked and he was incarcerated on June 17, 2003. Judge DeStefano issued a bail order increasing the amount of bail previously set. His bail order of June 17, 2003 contained as a special provision "No Victim Contact & Victim's Family ([G.] Family)." Defendant was not released subsequent to that time. However, from the jail, he continued corresponding with M.G.

Defendant's letters explicitly communicated his sexual interest in M.G. and caused M.G. to fear that defendant would sexually assault her. Defendant expressed his desire to have sexual intercourse with M.G., whether she wanted to or not, and included graphic instructions regarding female genital hygiene practices meant to increase M.G.'s chances of conceiving a baby with defendant, and defendant's own modified sexual habits meant to increase his chances of impregnating M.G. Defendant informed M.G.'s parents that "I'm your daughter's boyfriend now, and let me tell you both to your face in this letter that I will be sleeping with your daughter."

A second indictment, No. 04-04-1007, was returned against defendant on April 28, 2004. The first count charged defendant with third-degree stalking from July 3, 2003 to February 11, 2004. Counts two through thirteen charged specific instances of violating the no contact orders of Municipal Judge Blum and Judge DeStefano. At trial, the prosecutor dismissed one of those counts. In addition to constituting independent crimes, those contempt of court charges also served as the predicate for elevating the stalking offense in count one of that indictment to third-degree.

The trial was conducted in two phases. In the first phase, only the two stalking charges were tried, and they were presented as fourth-degree offenses. The jury was told nothing of the three no contact orders and nothing about the contempt charges. The jury heard the testimony of M.G. and her father, and Berbrick and another police officer. The State introduced in evidence the numerous items of correspondence written by defendant. Defendant did not testify and he did not present any evidence. The jury found defendant guilty on both counts.

The court then informed the jurors that their work was not done. The second phase of the trial was then conducted. The State moved into evidence the transcript of the verbal no contact order issued by Municipal Judge Himelman, and the written bail orders with no contact provisions issued by Municipal Judge Blum and Judge DeStefano. The jury found with respect to each stalking count that defendant committed the stalking in violation of a court order prohibiting the behavior, thus elevating each offense to the third-degree level. N.J.S.A. 2C:12-10c. The jury also found defendant guilty of all of the contempt of court counts that were submitted to it. Sentence was imposed as we previously stated, and this appeal followed.

II

We first consider defendant's argument that the jury instruction on stalking was fatally defective and requires a new trial. Fourth-degree stalking is defined as follows:

A person is guilty of stalking, a crime of the fourth degree, if he purposely or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of his immediate family or to fear the death of himself or a member of his immediate family.

[N.J.S.A. 2C:12-10b.]

The statute defines "course of conduct" to mean

repeatedly maintaining a visual or physical proximity to 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.

[N.J.S.A. 2C:12-10a(1).]

And, "'[r]epeatedly' means on two or more occasions." N.J.S.A. 2C:12-10a(2). The crime is elevated to a third-degree offense if committed "in violation of an existing court order prohibiting the behavior." N.J.S.A. 2C:12-10c.

At the charge conference, defendant argued that, pursuant to N.J.S.A. 2C:2-2c(1), the knowing or purposeful culpability requirement in the stalking statute applies to both the conduct and the result of the conduct. Counsel therefore requested that, in addition to knowingly or purposefully engaging in the prohibited course of conduct, the court should instruct the jury that to be convicted defendant also had to knowingly or purposefully cause a particular result, namely to cause fear in M.G. Alternatively, with respect to the result, defense counsel argued that defendant would have to have as his conscious object or be aware that his conduct would cause a reasonable person to be in fear.

The judge declined to instruct the jury in the manner requested by the defense, choosing instead to follow the model jury charge then in effect. See Model Jury Charge (Criminal), "Stalking" (2001). The judge gave the following instruction:

The defendant is charged that on or about and in between May of 2002 and January of 2003 . . . he purposefully engaged in a course of conduct directed at [M.G.] which would cause a reasonable person to fear bodily injury to herself or a member of her immediate family, or to fear her own death or the death of a member of her family.

In the second count the defendant is charged that on or about and between the dates of June 2003 and February 11th, 2004 . . . he purposefully engaged in the course of conduct directed at [M.G.] which would cause a reasonable person to fear bodily injury to herself or a member of her immediate family. Or to fear her own death or the death of a member of her immediate family.

The applicable statute provides in pertinent part as follows:

A person is guilty of stalking if he purposefully or knowingly -- mental states - engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to herself or a member of her immediate family, or to fear the death of herself or a member of her immediate family.

In order for you to find the defendant guilty of stalking, the State must prove each of the following elements beyond a reasonable doubt. There's two of them.

The first element is that the defendant purposefully or knowingly engaged in a course of conduct directed at a specific person; and, second, that the defendant's conduct was such that it would cause a reasonable person to fear bodily injury or death to herself or to a member of her immediate family.

Let me go over that with you again. Two elements are, first, that the defendant purposefully or knowingly engaged in a course of conduct directed at a specific person; and, that the defendant['s] conduct was such that it would cause a reasonable person to fear bodily injury or death to herself or to a member of her immediate family.

The first element that the State must prove beyond a reasonable doubt is that the defendant acted either purposefully or knowingly engaged in a course of conduct directed at a specific person. A person acts purposefully with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposefully if he acts with design with a specific intent with a particular object or purpose. In laymen's terms, if he means to do what he does.

Purpose and knowledge are conditions of the mind that cannot be seen and can only be determined by inferences from conduct, words, or acts. A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts; therefore, it is not necessary that the State produce witnesses to testify that an accused said that he had a certain state of mind when he engaged in a particular act. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the defendant's act and conduct, from all that he said and did at the particular time and place, and from all the surrounding circumstances.

Now I used the term "knowingly." Let me define that for you.

A person acts knowingly with respect to the nature of his conduct or attendant circumstances if he is aware that his conduct is of that nature or that such circumstances exist, or if he is aware of a high probability of their existence.

A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. As with purpose, knowledge is a condition of the mind that cannot be seen and can only determine - be determined by inferences from conduct, words, or acts.

Now I used the term "course of conduct." Course of conduct means repeatedly maintaining visual or physical proximity to 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.

. . . .

I used the term "repeatedly." Repeatedly means on two or more occasions.

Now the second element that the State must prove beyond a reasonable doubt is that the course of conduct was such that it would cause a reasonable person to fear bodily injury to herself or a member of her immediate family. . . .

At the conclusion of the charge, defense counsel noted his exception to this instruction.

The original formulation requested by the defense was not a correct statement of the law. Prior to its amendment in 1999, the stalking statute contained as an element that defendant knowingly, recklessly or negligently caused a reasonable fear of bodily injury or death. H.E.S. v. J.C.S. 175 N.J. 309, 329 (2003). However, since 1999, actually causing fear to the victim is no longer an element.

However, we agree with the alternate proposal submitted by defendant. The rules of construction in the Criminal Code require that when a culpability level is specified as part of an offense without distinguishing among material elements of the offense, that culpability level "shall apply to all the material elements of the offense, unless a contrary purpose plainly appears." N.J.S.A. 2C:2-2c(1). The structure of N.J.S.A. 2C:12-10b is such that the conduct and result of conduct elements are contained in a single sentence and not separated by punctuation that might suggest they should be treated differently for culpability purposes. Nor is there anything in the substance of the offense that would suggest, let alone plainly indicate, a purpose to treat the elements separately. See State v. Mendez, 345 N.J. Super. 498, 507 (App. Div. 2001), aff'd, 175 N.J. 201 (2002); State v. Worthy, 329 N.J. Super. 109, 111 (App. Div. 2000). Indeed, the model jury charge has been revised to specifically include as an element "that when defendant engaged in the course of conduct, he/she had a conscious object or was aware that the course of conduct would cause a reasonable person to be in fear of bodily injury or death to himself/herself and to his/her immediate family." Model Jury Charge (Criminal), "Stalking" (2007).

"[F]ailure to charge the jury on an element of an offense is presumed to be prejudicial error . . . ." State v. Burgess, 154 N.J. 181, 186 (1988) (quoting State v. Federico, 103 N.J. 169, 176 (1986)). However, a reviewing court considers jury instructions as a whole to evaluate the jurors' understanding of the instructions, in consideration of the evidence and circumstances of the trial. State v. Savage, 172 N.J. 374, 387-88 (2002). An error in the charge objected to at trial must create a real possibility "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998) (citing State v. Bankston, 63 N.J. 263, 273 (1973); State v. Macon, 57 N.J. 325, 335-36 (1971)).

Our task, then, is to determine whether the charge as given adequately conveyed the elements of the offense, with sufficient accuracy, to provide the needed guidance to the jury in explaining the scope of the purpose and knowledge requirement in the stalking statute. See Mendez, supra, 345 N.J. Super. at 510. The judge began by reading or paraphrasing each stalking count in the indictment, followed by a reading of the stalking statute. In doing so, the judge informed the jurors that to be guilty, defendant had to purposefully or knowingly engage in a course of conduct directed at M.G. that would cause a reasonable person to fear bodily injury or death to herself or member of her immediate family. The judge then explained the elements of the offense. In doing so, the judge explained that defendant had to purposefully or knowingly engage in a course of conduct directed at a specific person, and the judge defined both culpability terms in detail. The judge also defined "course of conduct," and explained that defendant had to purposefully or knowingly engage in that course of conduct. Thus, the jury was told that for defendant to be guilty it had to be his conscious object to engage in the proscribed "course of conduct" or that he was aware that his conduct was of that nature.

It would have been preferable if the judge had directly instructed the jury that it had to find that defendant was aware or had a conscious object that his conduct would cause a reasonable person to be in fear of bodily injury or death. However, viewing the charge in its entirety, we conclude that the charge as given provided adequate guidance to the jury and was not misleading as to the requisite elements of the offense.

The nature of the conduct described in the charge was, by definition, such that it would cause a reasonable person to fear injury or death. By informing the jury of its obligation to find that defendant purposefully or knowingly engaged in such a course of conduct directed at M.G., explaining that the conduct had to be such that it would cause a reasonable person to fear injury or death, and explaining that the culpability terms referred to the nature of the conduct in which defendant engaged, the instruction adequately informed the jury that defendant had to know or intend that his conduct had the capacity to cause a reasonable person to fear injury or death. The requirement to find a knowing or purposeful result of defendant's conduct was implicit in the instruction requiring a knowing or purposeful course of conduct that, by definition, would cause that result. Ibid.

We are therefore satisfied that the instructions as given conveyed to the jurors the need to find that the knowing or purposeful culpability elements applied not only to defendant engaging in the proscribed course of conduct, but also with respect to the result of that conduct, namely that the conduct would cause a reasonable person to fear injury or death. The instruction here was not a misstatement of law and did not have the capacity to mislead the jury.

We recognize that erroneous jury instructions are ordinarily poor candidates for rehabilitation under the harmless error doctrine. State v. Weeks, 107 N.J. 396, 410 (1987). However, that general rule is typically applicable in the case of a legally incorrect instruction, not one that is merely capable of improvement. State v. Delibero, 149 N.J. 90, 106 (1997). In our view, the instruction here, in the overall context of this trial, was sufficiently clear when viewed in its entirety, and, although the charge was capable of improvement, any shortcoming does not constitute reversible error. State v. Pleasant, 313 N.J. Super. 325, 335 (App. Div. 1998), aff'd, 158 N.J. 149 (1999). But see Worthy, supra, 329 N.J. Super. at 111.

Defendant's argument that the instruction was deficient because it did not define the term "repeatedly" is patently lacking in merit. The instruction did include that definition consistent with the statute. We also summarily reject defendant's argument that the verdict sheet was improper because it listed only some elements of stalking and not others and did not include the elements of the lesser-included offense of harassment that was submitted to the jury. First, we see nothing misleading or incomplete in the manner in which the crime of stalking was described on the verdict sheet. Nor do we find it significant that the elements of harassment were not specified. The judge clearly informed the jury that the verdict sheet was not part of his instructions, that it was only for their guidance in rendering their verdict, and that his oral instructions were controlling. No further discussion on this issue is warranted. R. 2:11-3(e)(2).

III

We next address the Miranda issue. Although defendant's motion sought to suppress two statements (his November 7, 2002 statement at the stationhouse after being given Miranda warnings, and his statement of November 18, 2002 outside of M.G.'s house, which was not preceded by Miranda warnings), his argument on appeal is limited to the November 18, 2002 statement. At the conclusion of the Miranda hearing, the judge found that when defendant made the statement he was not in custody and the statement was not made in response to interrogation. More specifically, the judge found:

Now moving to the incident of the 18th, there I believe the statement, to my mind, falls outside of Miranda. I make reference to the cases of State v. Cunningham 153 [N.J.] Super. 350 (App. Div. 1997)], and State v. Downey, 206 [N.J.] Super. 382 [(App. Div. 1986)]. Here, you had a response to Mr. G[andhi] going to the residence of the G[.'s] Sergeant Berbrick and Patrolman Hicks, both of whom I find to be credible witnesses, responded to the scene.

You have what I think can fairly be categorized as a fast-pace, on-scene, rapidly unfolding series of events. One witness said it was three to five minutes. The report show[s] it was four minutes. They're right on the mark, both of them, corroborating each other. It's certainly very fast-pace as to what occurred. Essentially, everybody agrees on what happens. Mr. G[andhi] was on the stoop or the porch, depending on what terminology you want to use. He was called to come off of it. He did. The G[.] family, Mr. G[.] was very distressed that Mr. G[andhi] was there. The parties were separated. And Mr. G[andhi] was standing by Officer Hicks while Sergeant Berbrick was talking to Mr. G[.]

Now what I have to determine is really pretty simple. Is this the inherently coercive atmosphere that Miranda v Arizona is designed to combat. It's not. This is not so restrictive that . . . that I could say that he was in custody. Or more to the point, that this is the inherently hostile and confrontational and coercive atmosphere of, say, the police station. Now I'm not saying it has to be just the police station, but I have to look at this in the totality of the circumstances, too; it's quick moving nature. I tell you I'm taking into account the history. I'm taking into account that Mr. G[andhi] was not in handcuffs or anything of that nature. Obviously, if he tried to leave, it would strike me that he might have been detained, but he didn't ask to leave.

But, again, I come back to the quick-moving, four-minute odd nature of this incident. And the question that was asked of Mr. G[andhi], what happened, is hardly interrogational in nature. Again, looking at the totality of these circumstances and looking at the case law as I understand it, this, to my mind, is more of a field inquiry and it does fall outside of the prescriptions of Miranda v Arizona and I'm going to allow those statements in and I'm going to allow the statements of November 7th in, as well.

Miranda requires that a suspect must be informed of his right against self-incrimination if the suspect is subject to custodial interrogation by law enforcement. Determining whether a suspect is in custody depends on "whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." State v. P.Z., 152 N.J. 86, 103 (1997). Custodial interrogations do not include general on-the-scene questions. Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. at 725; State v. Gosser, 50 N.J. 438, 445-46 (1967), cert. denied, 390 U.S. 1035, 88 S. Ct. 1434, 20 L. Ed. 2d 295 (1968).

Defendant argues that because Berbrick questioned him only eleven days earlier regarding the very subject matter of his contact with M.G. and her family, Berbrick was well aware that defendant's presence at M.G.'s house on November 18, 2002 made him a suspect in a criminal investigation. Further, defendant argues that he was not free to leave, and when Berbrick questioned him, the question constituted interrogation. The judge found to the contrary. As Berbrick explained at the Miranda hearing, there are "two sides to every story," and, after talking to M.G.'s father, he wanted to hear defendant's side of the story as part of his investigation.

We will not interfere with a judge's findings if supported by sufficient credible evidence in the record. State v. Johnson, 42 N.J. 146, 162 (1964). The judge's findings are well supported by the record of the Miranda hearing, and we have no occasion to disturb them on appeal. The record supports the judge's finding that, under the totality of the circumstances, defendant's freedom of action was not sufficiently impaired to constitute custody for Miranda purposes. Likewise, there is ample record support for the judge's finding that the open-ended question asking what happened, was not a direct question seeking to elicit an incriminating statement and was nothing more than a field inquiry, which, for Miranda purposes, did not constitute interrogation. State v. Stott, 171 N.J. 343, 364 (2002); Gosser, supra, 50 N.J. at 446.

IV

Finally, we address defendant's argument that the court erred in allowing into evidence the three no contact orders defendant violated. He contends that Municipal Judge Himelman's July 11, 2002 order was defective because the court lacked jurisdiction to enter such an order when the harassment charge for which defendant was in court was dismissed. Defendant relies on T.M. v. J.C., 348 N.J. Super. 101 (App. Div.), certif. denied, 175 N.J. 78 (2002). We find this reliance unpersuasive. In T.M., we held that a court improperly relied on a previous dismissal of a domestic violence complaint to find that the defendant had committed an act of domestic violence against the plaintiff because, in dismissing a domestic violence complaint, a court loses jurisdiction to adjudicate whether a final restraining order should be entered. Id. at 106. In the case before us, however, M.G. dismissed her complaint in exchange for defendant's agreement not to contact her, and the judge made the no contact order part of his dismissal. We are satisfied that Municipal Judge Himelman had jurisdiction to enter the order as part of the disposition of the harassment complaint, an order not only consented to by defendant but urged by his counsel.

Defendant argues that the no contact provisions in the bail orders issued by Municipal Judge Blum and Judge DeStefano could not provide the basis for contempt of court convictions or to elevate the stalking charges from fourth-degree to third-degree offenses. His arguments are two-fold. First, he contends that the primary purpose of a bail order is to secure the appearance of a defendant in court, and the consequences of violating the order are limited to revocation and forfeiture of bail. Second, defendant argues that with respect to Judge DeStefano's order, defendant never posted bail and remained continuously in custody and was never released, as a result of which he "cannot be held in contempt for violating said order."

Defendant's arguments are illogical and unpersuasive. That the primary purpose of a bail order is to secure a defendant's appearance in court does not deprive other terms of the order of their character as a judicial order. Equally unpersuasive is defendant's argument that forfeiture of bail is the sole potential consequence for violation of a no contact provision in a bail order. Such no contact provisions have long been recognized as valid and enforceable conditions in bail orders. Violation of such provisions are indeed violations of judicial orders and carry with them all of the attendant consequences. In this case, those consequences include contempt convictions and upgrading defendant's stalking convictions. That defendant was never released on bail after Judge DeStefano's order does not negate the fact that, from the jail, defendant violated the no contact order by corresponding with M.G.

Defendant's conviction is affirmed. The matter is remanded for resentencing in accordance with this opinion. We do not retain jurisdiction.

In the initial phase of the trial all references to the "order" were sanitized. Counsel and witnesses referred to it as the "agreement" that defendant would have no contact with M.G. or her family.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

At the court's request, the prosecutor agreed that Berbrick would sanitize this testimony before the jury to delete any reference to defendant not caring what the judge said. Berbrick complied, and in his testimony before the jury stated that defendant said he didn't care what "anybody" said.

In the first phase of the trial, the jurors were not informed that any of the correspondence described to them and admitted in evidence was sent from the jail.

The counts in the indictments, apparently drawn using the pre-1999 form of the stalking statute, accused defendant of only purposefully engaging in the proscribed course of conduct, and included the element that he knowingly, recklessly or negligently placed M.G. and her family in fear. Without objection, this language was amended to reflect the current version of the statute, by deleting the final element and by providing for a knowing or purposeful culpability level. However, in paraphrasing the indictment, the judge referred only to purposeful conduct. This inaccuracy was not prejudicial to defendant, because a purposeful culpability state is higher than knowledgeable. In any event, when the judge read the statute and continued on with a description of the elements, he repeatedly included knowingly along with purposefully as the required culpability element, and he defined both culpability states in detail.

(continued)

(continued)

28

A-0667-07T4

March 20, 2009