STATE OF NEW JERSEY v. BARBARA CARRINO 2011 -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5263-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARBARA CARRINO,

Defendant-Appellant.

___________________________________________________________

August 22, 2011

Submitted April 12, 2011 - Decided

Before Judges Carchman and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Warren County, Municipal Appeal

No. A-04-10-Y27.

Broscious, Fischer & Zaiter, attorneys for

appellant (John M. Zaiter, on the brief).

Thomas S. Ferguson, Warren County Prosecutor,

attorney for respondent (Christine Engiles,

Assistant Prosecutor, on the brief).

PER CURIAM

On July 10, 2009, defendant Barbara Carrino was charged with harassment, N.J.S.A. 2C:33-4(b), and disorderly conduct, N.J.S.A. 2C:33-2(a)(1). Following a trial in the Washington Township Municipal Court, she was convicted of both offenses on February 1, 2010. Defendant appealed to the Law Division, and after a de novo trial on June 1, 2010, the court reversed defendant's conviction on the disorderly conduct charge, but it found defendant guilty of harassment. Defendant was sentenced to a fifteen-day jail sentence that was suspended "pending a successful mental health evaluation and DAP enrollment." Defendant was also fined $100, and court costs and statutory assessments were imposed. For the reasons that follow, we affirm.

On July 10, 2009, defendant arrived at the house of Michele Warburton, her sister. Defendant claimed the reason for her visit was to take their mother, who resided with Warburton, "out for coffee." Warburton stated she "was not aware that [defendant] was going to be coming that particular day," but nonetheless allowed defendant inside to wait for their mother to come downstairs.

Thereafter, in the presence of defendant, Warburton ripped up a card that defendant had sent her; defendant wrote in the card that Warburton needed therapy, and Warburton "resented" the "unsolicited advice." Warburton testified that defendant reacted as follows:

A. At that point it was a rejection to her and that set her off.

Q. And what do you mean by set her off?

A. . . . [S]he got extremely agitated and verbally abusive and stood toe to toe with me.

Q. When you say verbally abusive, what did she say if anything?

A. That she was going to kick my ass. And she did mention at one point that she was going to slap me in the face.

Q. And when she said that to you, where was she at again?

A. She was right at the bottom of the stairs in the front of the house.

Q. And how close was she to you?

A. 6 inches maybe.

Warburton further stated that defendant threatened "to kick [her] F ass."

According to Warburton, this was not the first altercation between her and her sister. Specifically, she testified that defendant had previously "whacked [her] on the nose" and "threatened to shove a knife up [her] ass." As a result, Warburton indicated that she felt "threatened" and "alarmed" by her sister's conduct.

Defendant testified that after the altercation, she exited the house and called the police. She denied making physical threats directly to Warburton, but she admitted telling the responding officer, Patrolman Shane Zaro, that Warburton "deserve[d] a slap." Defendant denied any prior threats or physical encounters with her sister.

Zaro was the last witness to testify. The State read into evidence his report, which included statements from Warburton and her ten-year-old son that defendant threatened to slap Warburton in the face. The report also confirmed that defendant told Zaro her sister deserved to be slapped: "[Defendant] . . . started yelling in the driveway and stated, 'I almost slapped her in the face.' I advised her not to make those statements and she yelled again, 'I don't care she needs to be slapped in the face.'"

After considering the testimony and arguments by counsel, the municipal court concluded that defendant's actions constituted harassment. The Law Division reached the same conclusion, reasoning that defendant's "purpose to harass was formulated on the spot, and that her comments were made with an intent to harass."

On appeal, defendant presents the following arguments:

POINT ONE

STANDARD OF REVIEW.

POINT TWO

THE LOWER COURT ERRED IN ITS LEGAL CONCLUSION THAT THE DEFENDANT ACTED WITH A PURPOSE TO HARASS, AS SUCH A LEGAL CONCLUSION IS INCOMPATIBLE WITH THE COURT['S] FACTUAL FINDINGS.

A. THE COURT'S CHARACTERIZATION OF DEFENDANT'S PURPOSE TO HARASS AS HAVING DEVELOPED "ON THE SPOT" IS INCOMPATIBLE WITH THE STATUTORY DEFINITION OF PURPOSEFUL AS PROVIDED IN N.J.S.A. 2C:2-2(b)(1).

B. THE COURT'S CHARACTERIZATION OF DEFENDANT'S PURPOSE AS HAVING DEVELOPED "ON THE SPOT" APPLIES TO ALL UTTERANCES BY THE DEFENDANT ON THE DATE IN QUESTION.

POINT THREE

THE LOWER COURT['S] CONCLUSIONS THAT THE DEFENDANT ACTED WITH A PURPOSE TO HARASS WAS BASED ON INADEQUATE EVIDENCE.

After considering these arguments in light of the record and the applicable legal standards, we conclude that they are clearly without merit, Rule 2:11-3(e)(2), and we affirm substantially for the reasons stated by Judge John J. Coyle on June 1, 2010. We add only the following comments.

"Appellate review of a Law Division adjudication of guilt . . . is very narrow. We do not re-weigh the evidence, but rather, determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Oliveri, 336 N.J. Super. 244, 252 (App. Div. 2001) (citing State v. Locurto, 157 N.J. 463, 470 (1999)).

N.J.S.A. 2C:33-4(b) states that "a person commits a petty disorderly offense if, with purpose to harass another," he or she "[s]ubjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so." "A person acts purposely 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." N.J.S.A. 2C:2-2(b)(1).

Defendant argues that there was insufficient evidence that she had a "purpose to harass" because the relevant statutory language prohibits the requisite intent form being formed "on the spot." However, it is apparent that the plain language of the statutes does not contain any temporal restraints, and we are aware of no such requirement.

Based on a careful review of the evidence, the Law Division correctly concluded that, upon seeing Warburton rip the card, defendant's resulting "conscious object," N.J.S.A. 2C:2-2(b)(1), was to threaten her sister with physical harm. This finding was sufficiently supported by the testimony of both Warburton and Zaro, as well as the common sense inference from their tenuous relationship. See State v. Hoffman, 149 N.J. 564, 577 (1997) (stating that "[a] finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination").