STATE OF NEW JERSEY v. DENNIS KERRIGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5162-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS KERRIGAN,

Defendant-Appellant.

___________________________________________________

October 14, 2011

Submitted September 13, 2011 - Decided

Before Judges Messano and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-02-0187.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dennis Kerrigan appeals from the judgment of conviction entered after a jury trial at which he was convicted of fourth-degree stalking, N.J.S.A. 2C:12-10(b). The jury acquitted defendant of fourth-degree criminal coercion, N.J.S.A. 2C:13-5(a)(7).1 Defendant was sentenced to two years probation.

Defendant raises the following points on appeal:

POINT ONE

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE THAT DEFENDANT ENGAGED IN A COURSE OF CONDUCT THAT WOULD CAUSE A REASONABLE PERSON IN THE VICTIM'S POSITION TO FEAR BODILY INJURY.

POINT TWO

PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)

We have considered these arguments in light of the record and applicable legal standards. We affirm.

Judy Ritter was a resident of Lawrence Square, the housing complex where defendant also lived, and a member of the condominium association board. Beginning in 2004, she came to know defendant from attending the association meetings, where, as a board member, Ritter dealt with issues regarding the management of the property. Defendant "was always very voiceful," "wanted to control the whole meeting," and was "very loud." The board president would tell defendant "to calm down," but defendant "wanted to keep going." Defendant "[w]ould not stop screaming." Ritter acknowledged that on a number of occasions, defendant "got in someone's face," while "exhibiting aggressive behavior."

Ritter saw defendant act this way toward Phyllis Scherer, the property manager hired by the association, whose office was in the property's clubhouse. In the summer of 2006, on several occasions while she was talking with Scherer, Ritter observed defendant "pull up [in his van], pull up, stop, stare . . . with this grin, [and] leave." This "bother[ed]" Scherer.

On September 18, 2006, Ritter saw defendant drive his van into the clubhouse parking lot, park, but remain in the vehicle. She had seen defendant act similarly on several prior occasions. On this day, Ritter returned to her home, got her camera, and took a photo of defendant in his vehicle. Ritter saw Scherer exit the building and go to her car. Scherer was frightened, and called another board member, Joe Carol, over to her vehicle. Eventually, the police were summoned; when they arrived, defendant drove away, but soon thereafter, returned to the clubhouse parking lot.

Timothy Kasony, a Lawrence Township police officer, responded to the clubhouse area. Kasony had attended two association meetings in the past in full uniform at the board's request. After the first meeting, Kasony asked that a second officer attend future meetings with him. Kasony described defendant's conduct at the meetings. "[W]hen the board members brought something up that he didn t like, [defendant] stood up, yelled at them, . . . [and] moved towards the table." On the first occasion, Kasony "asked [defendant] to sit down." At the second meeting, Kasony and the other officer "pulled [defendant] aside and asked him to leave."

When Kasony arrived at the clubhouse area on September 18, he saw defendant drive out of the parking lot. Scherer "was visibly shaking, seemed nervous, kind of scared." Defendant drove back into the parking lot, exited his van, sat on a park bench, and "stared" at Kasony as he spoke to Scherer. Kasony consulted with his sergeant and arrested defendant for stalking.

Scherer testified that defendant maintained a contracting business and installed windows for owners at the property. At some point, the board agreed to require "any contractors who wanted to . . . do work in the complex . . . to advertise in a newsletter." Scherer testified her relationship with defendant, cordial up until that point, changed dramatically. Defendant became "[i]ntimidating" and "aggressive with [her]." He blamed Scherer for "taking away his livelihood." On many occasions thereafter, while in her clubhouse office, defendant would scream and gesture toward Scherer as he demanded to see the financial records of the association. She was frequently alone with defendant, and Scherer was "anxious and frightened" by his conduct. Scherer logged more than fifty incidents of defendant's confrontations with her, and others, prior to his arrest.

After corroborating the testimony regarding defendant's conduct at the association meetings, Scherer described the events of September 18, 2006. As she exited the clubhouse to go home, defendant was parked in the lot, in his van, and "smirked" at her. Because defendant "had been following [her] for a long time," she was frightened, summoned Carol, and phoned the police. Her testimony thereafter corroborated Kasony's version of events. The State rested after Scherer's testimony was completed.

Defendant moved for a judgment of acquittal, arguing that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of stalking Scherer. In short, defendant contended there was no evidence that he acted in a manner that would make "a reasonable person in the victim's position . . . fear bodily injury. The judge denied defendant's motion.2

Defendant testified and described his business dealings with the community. He further testified regarding his concerns over the finances of the development and the board's activities. Defendant acknowledged that he "became a little loud" at association meetings "out of frustration."

Defendant admitted he drove into the clubhouse parking lot on September 18, but claimed he was waiting for a customer. He decided to sit on the park "table" and "catch some rays." On cross-examination, defendant denied following Scherer, threatening her in any way, and claimed others were also "boisterous" at association meetings.

No further witnesses were called. After receiving the judge's charge, the jury returned the verdicts noted above. At sentencing, defendant renewed his motion for acquittal and, alternatively, moved for a new trial on the grounds of insufficient evidence.3 Those motions were denied.

In his first point on appeal, defendant reiterates the argument he made at the close of the State's case and again prior to sentencing. When deciding a motion for acquittal based upon the insufficiency of the State's evidence, the trial court must apply the time-honored standard set forth in State v. Reyes, 50 N.J. 454 (1967):

[W]hether[] viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[Id. at 459 (citation omitted).]

We review the decision of the trial judge de novo applying the same standard. State v. Bunch, 180 N.J. 534, 549 (2004).

At the time of the offense charged in the indictment, N.J.S.A. 2C:12-10(b) provided:

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 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.4

As used in the stalking statute in effect at the time, "[c]ourse of conduct" meant:

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:12-10(a)(1).]

As the Court has said,

The elements of stalking are that: 1) defendant engaged in speech or conduct that was directed at or toward a person, 2) that speech or conduct occurred on at least two occasions, 3) defendant purposely [or knowingly] engaged in speech or a course of conduct that is capable of causing a reasonable person to fear for herself or her immediate family bodily injury or death, and 4) 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) (citation omitted).]5

"The stalking statute was intended 'to intervene in repetitive harassing or threatening behavior before the victim has actually been physically attacked.'" Ibid. (quoting State v. Saunders, 302 N.J. Super. 509, 520 (App. Div.) (citations omitted), certif. denied, 151 N.J. 470 (1997)).

Defendant's argument that the State "failed to prove that [he] engaged in a course of conduct that would cause a reasonable person in Scherer's position to fear bodily injury" is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). It suffices to say that as the trial judge noted, the evidence demonstrated defendant "engaged in outbursts, loss of temper, face-to-face confrontations which would lead a reasonable person to be fearful that he might cross the line and actually engage in physical behavior." The judge further noted that defendant "was vociferous and physically threatening in personal meetings with . . . Scherer in her office," and cited the testimony of Ritter and Kasony regarding defendant's behavior. Our review of the entire record convinces us that the State adduced sufficient proof to permit the jury to find beyond a reasonable doubt that defendant was guilty of stalking.

Defendant's second point on appeal also lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). Defendant contends that in his opening statement and summation, the prosecutor improperly "offered the jury his personal opinion" regarding Scherer's apprehension, referred to facts not in evidence and "vouch[ed] for the credibility of [his] witnesses." Since there were no objections at trial, we review this claim using the plain error standard. See R. 2:10-2 (the error must be of "such a nature as to have been clearly capable of producing an unjust result").

"[I]n order to justify reversal, the [prosecutor's] misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). The prosecutor's conduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense" in order to warrant reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (citation omitted).

"Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial[.]" State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Also relevant to our review is a defendant's failure to object to the prosecutor's remarks at the time they were made because this "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84.

Our review of the complete transcript satisfies us that there was no prosecutorial misconduct requiring reversal of defendant's conviction.

A

1 Defendant was also indicted for fourth-degree contempt, N.J.S.A. 2C:29-9(a), it being alleged that he subsequently violated a condition of his bail, set on September 18, 2006, the date of his arrest. However, this count was dismissed on the first day of trial.

2 The judge also denied defendant's motion for acquittal on the charge of criminal coercion.

3 Defendant also argued that the judge erred in charging the jury on the lesser-included offense of harassment, N.J.S.A. 2C:33-4.

4 The statute has since been amended, and now provides: "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."

5 "The mental culpability element . . . was changed to 'purposefully or knowingly' by L. 1999, c. 47, 1, effective March 12, 1999." Ibid.