STATE OF NEW JERSEY v. BARRY C. KRUEGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2556-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARRY C. KRUEGER,

Defendant-Appellant.

______________________________________________

February 25, 2013

 

Submitted September 19, 2012 - Decided

 

Before Judges Fisher and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-06-1163.

 

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

 

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Barbara N. Suppa, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

A superseding indictment charged defendant Barry C. Krueger with fourth-degree stalking from October 17, 2007 through May 19, 2008, contrary to N.J.S.A. 2C:12-10 (Count One); third-degree stalking in violation of a court order from May 19, 2008 through March 31, 2009, contrary to N.J.S.A. 2C:12-10 (Count Two); and fourth-degree contempt of a judicial order between May 19, 2008 and March 31, 2009, in violation of N.J.S.A. 2C:29-9(a) (Count Three). After a jury trial, defendant was found guilty of the lesser-included offense of harassment, N.J.S.A. 2C:33-4, with respect to Count One, and guilty as charged on Counts Two and Three. Defendant was sentenced to six months (time served) on Count One; a three-year term of incarceration on Count Two; and a concurrent term of eighteen months incarceration on Count Three. Mandatory fines and penalties were also imposed.

I.

A.

We briefly summarize the procedural history and facts based on the evidence presented at trial and pretrial proceedings.

On May 21, 2008, defendant was arrested on a charge of stalking. He was released on his own recognizance by the municipal court judge, conditioned on "no victim contact" and no return to the scene of the alleged offense. On June 8, 2008, defendant was arrested on a charge of contempt of court, a fourth-degree offense, N.J.S.A. 2C:29-9(a). Bail was set at $5000 cash, no ten percent option, with a condition of bail being "no victim contact." On July 14, 2008, a Superior Court judge revoked defendant's bail for violations of the "no victim contact" order. New bail was set at $100,000, which was subsequently reduced to $50,000, and then $25,000, each with the condition of "no victim contact" and no return to the scene of the offense. After the superseding indictment was issued, defendant made a motion to dismiss the indictment and, after a hearing, it was denied by the trial judge.

Trial commenced before the trial judge and a jury. At the close of the State's case, defendant moved for a judgment of acquittal, which was denied.

B.

The testimony at trial showed that defendant's nephew, Brad Tugman, began dating the victim, Brittany Stoya, in late 2006. Brittany met defendant at a family party in March 2007. Brittany socialized with defendant often during the time she dated Brad. Defendant began texting Brittany that summer.

Beginning in October 2007, Brittany's parents received a series of anonymous letters addressed to them at their home. The letters disparaged Brad, accusing him of involvement with illegal narcotics. Brittany's mother described the letters as scary. In the fall of 2007, Brittany began attending Monmouth University where defendant would show up unexpectedly. On one occasion in December 2007, Brittany and Brad went to a movie, and when they returned to their car they found defendant sitting against it. Also in December 2007, defendant began texting Brittany every day, attempting to convince her to stop seeing Brad. Defendant threatened to go to Brittany's parents and tell them why she should not date Brad. At some point, Brittany told defendant to stop texting her, but she stated his response was to "flip out." By that, Brittany meant he sent her multiple texts and called telling her he was furious and coming to talk to her.

In the spring of 2008, Brittany started socializing with defendant regularly. Brittany stated that she stopped texting with defendant in March 2008. However, defendant showed up at her house and more letters were sent to her house, including a letter that had defendant's initials and return address on the envelope.

Information was elicited at trial that Brittany sent a card to defendant in the summer or fall of 2007, and that in 2007 until May 2008, she sent defendant thousands of text messages.

The State presented other witnesses who provided testimony concerning the texting and harassing communications from defendant to Brittany.

When defendant was questioned by the police, he did admit sending letters to Brittany prior to the "no contact" order, but stated he sent no letters after that time. He claimed the letters written after the "no contact" order were sent by his friends without his direction or request.

Even after Brittany changed her cellular telephone number, defendant continued to call the Stoya residence with greater frequency. Although he did not give his name, Mrs. Stoya recognized his voice. This was in addition to the numerous letters addressed to the Stoya residence. Brittany stated she was frightened by the letters.

On March 17, 2008, a call was placed to Monmouth University from defendant's telephone wherein the individual stated he needed to know Brittany's schedule because he had to come to the University to locate her. The University did not provide this information but contacted the Monmouth University Police Department.

On May 14, 2008, Brittany was attending her younger sister's softball game when she and a friend decided to go to the Stoya residence to retrieve an item. Upon arriving at the residence, defendant was there, which caused Brittany to become hysterical. Brittany's mom contacted the police.

On May 19, defendant again contacted the Stoya residence advising Brittany's mother that he was upset the police were contacted and that he wanted to see Brittany so he could return her personal property. Brittany's mother pleaded with defendant to stop contacting the family; however, she stated defendant responded, "No, I'm not going to stop, I'm going to see Brittany." The Stoya family continued to receive letters during May and June 2008.

A criminal complaint with a "no contact" bail provision was signed on May 19, 2008. A handwritten letter was sent to Brittany postmarked May 27, 2008. The letter was authored by "Beth," a friend of defendant, pleading with Brittany not to follow through with criminal charges.

According to Brittany's mother, they received many calls to their residence from pay phones; however, when they answered, the caller hung up. One of the calls was from a pay phone at Nordstrom's department store, and surveillance footage confirmed that defendant used the pay phone at Nordstrom's. Defendant admitted to placing at least one of the calls.

Letters continued to be sent to Brittany and, as a result, a complaint was issued charging defendant with contempt of court. The correspondence continued into fall 2008. The letters were all in the same plain white envelopes and had incomplete return addresses similar to the ones defendant had previously sent to Brittany and the Stoya residence. Similar letters were sent until March 2009. As a result of the content, Brittany identified some of the letters as authored by the defendant.

Defendant did not testify, but he called several witnesses who described a romantic consensual relationship between defendant and Brittany.

On appeal, defendant raises the following issues for our consideration:

POINT I

 

THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO DISMISS COUNT ONE OF THE INDICTMENT FOR FAILURE TO PRESENT EXCULPATORY EVIDENCE TO THE GRAND JURY.

 

POINT II

 

THE STALKING CHARGES SHOULD HAVE BEEN TRIED WITHOUT REFERENCE TO THE ALLEGATIONS THAT THERE HAD BEEN VIOLATIONS OF COURT ORDERS. (NOT RAISED BELOW).

 

POINT III

 

HARASSMENT SHOULD HAVE BEEN CHARGED AS A LESSER INCLUDED OFFENSE ON COUNT TWO. (NOT RAISED BELOW).

 

POINT IV

 

THE MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED AS TO COUNTS TWO AND THREE.

 

POINT V

 

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL. (Not Raised Below).

 

A. Counsel Failed to Move to Have the Allegations of Violations of Court Orders Tried After the Jury Determined the Stalking Issue.

 

B. Counsel Failed to note that Harassment Be Charged as a Lesser Included Offense of the Stalking Offense Charged in Count Two.

 

C. There Were Numerous Instances of State's Witness Offering Opinions Prejudicial to Defendant That Were Not Objected to by Defense Counsel.

 

POINT VI

 

COUNTS ONE AND THREE SHOULD BE MERGED WITH COUNT TWO. (Not raised Below).

 

A. The Separation of the Stalking Allegation Into Two Separate Counts Created Improper Multiplicity Requiring Merger of Counts One and Two.

 

B. Count Three Should be Merged with Count Two.

 

II.

We first address the standard that guides our review of the points asserted by defendant that were "not raised below." Because defendant failed to raise these issues before the trial court, we review these arguments under the plain error standard articulated in Rule 2:10-2. We therefore consider whether "the possibility of injustice [was] '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. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

Defendant contends that the trial judge erred by not dismissing Count One of the indictment. "Whether an indictment should be dismissed or quashed lies within the discretion of the trial court." State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 18 (1984). The trial court's discretion should only be "exercised . . . on 'the clearest and plainest ground'" and only when the indictment is "'palpably defective.'" Id. at 18-19 (quoting State v. Weleck, 10 N.J. 355, 364 (1952)); see also State v. Hogan, 144 N.J. 216, 228-29 (1996). The trial court's decision should not be overturned unless the court's discretion was "clearly abused." Hogan, supra, 144 N.J. at 229.

Our Supreme Court has imposed only a limited duty on prosecutors to provide evidence to a grand jury "that is triggered only in the rare case in which the prosecutor is informed of evidence that both directly negates the guilt of the accused and is clearly exculpatory." Id. at 237. In other words, "the prosecutor's duty arises only if the evidence satisfies two requirements: it must directly negate guilt and must also be clearly exculpatory." Ibid. Here, the victim's cell phone records, transcripts of her text messages and pictures, and a card allegedly sent to defendant, do not directly negate guilt and are not clearly exculpatory. We do not find that the trial judge abused, let alone "clearly abused," his discretion in not dismissing the indictment.

We turn to defendant's arguments concerning the assertion that the stalking charges should have been tried without reference to the allegations that there had been violations of court orders. Defendant relies on our Supreme Court's holding that evidence a judge has issued a restraining order against a criminal defendant is inadmissible because "[t]he order creates the inference that if a court found defendant guilty of domestic violence in a prior proceeding, that defendant is more likely guilty of the present [offense]." State v. Chenique-Puey, 145 N.J. 334, 343 (1996). In State v. Vallejo, 198 N.J. 122, 133-34 (2009), the Court reaffirmed its prior ruling in Chenique-Puey, reasoning that such evidence not only fostered the suggestion that the defendant was guilty of the crimes charged, but also impermissibly "told the jury that a judicial officer believed the victim, thus bolstering her credibility."

When inadmissible and prejudicial evidence, such as the existence of a restraining order, comes to the attention of the jury, the defendant will be entitled to reversal of his conviction unless the trial judge took the proper steps "to neutralize the negative effects of what transpired." Id. at 134.

Here, we are not faced with the inference that, if a court found defendant guilty of domestic violence in a prior proceeding, defendant is more likely guilty of the present offense. The judicial order in question was a "no contact" order prohibiting defendant, as a condition of bail, from having any contact with the victim. See R. 3:26-6(a); State v. Korecky, 169 N.J. 364 (2001). The imposition of a bail condition does not connote a finding of guilt which would suggest that defendant is guilty of the crimes charged. However, the trial judge ensured the jury's impartiality during his charge on Count Two of the indictment by instructing:

You should be aware that the order in question does not represent a judicial finding that the defendant had previously been found guilty of stalking. It was a bail order, which required that Barry Krueger have no contact with Brittany Stoya as a condition of bail. The law provides that a bail order can be properly considered by you in reaching your verdict on Count 2 of the indictment, but I want to make it clear to you that the entry of the order in and of itself does not represent a finding that defendant has been previously been found guilty of stalking.

 

We are satisfied that the charge provided to the jury in this case does not suffer from the same flaws as the instruction provided in Vallejo, and ameliorated the prejudice, if any, to defendant. The judge's instruction was direct and straightforward. Evidence of the "no contact" order suffered from none of the prejudicial effects the Court discussed in Chenique-Puey and Vallejo. We conclude that the instruction was adequate to preserve a fair trial.

Defendant next argues that harassment should have been charged as a lesser-included offense on Count Two, third-degree stalking. According to defendant, his actions during the period of time encompassed by Count Two, May 19, 2008 to March 31, 2009, amounted to harassment1 rather than stalking, and the jury should have been charged accordingly.

It was also not error when the trial judge failed to instruct the jury on harassment. In State v. Goodman, 415 N.J. Super. 210, 235-36 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), we addressed a trial judge's obligations with respect to jury charges concerning a lesser-included offense, as follows:

When a defendant requests the trial judge to charge a lesser-included offense, "the court is obligated to examine the record and determine whether a rational basis exists for the jury to acquit the defendant of the charged offense and convict him of the lesser offense." State v. Harris, 357 N.J. Super. 532, 539 (App. Div. 2003). See also N.J.S.A. 2C:1-8(e); State v. Denofa, 187 N.J. 24, 42 (2006) ("[C]ourts are required to instruct the jury on lesser-included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so or, in the absence of a request, if the record clearly indicates a charge is warranted.").

 

"In order to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense." State v. Savage, 172 N.J. 374, 396 (2002).

Here, defendant did not request the trial judge charge the lesser-included offense of harassment. In the absence of this request, the issue becomes whether the record clearly indicated a harassment charge was warranted. Denofa, supra, 187 N.J. at 42. It did not.2

In light of the "no contact" order entered with regard to defendant's bail application and defendant's acknowledgment of that condition, there was no rational basis for the jury to conclude that defendant was unaware that contact with the victim violated a court order. We are therefore satisfied that the evidence did not provide a rational basis for the jury to acquit on the third-degree stalking charge but convict on the lesser- included charge of harassment.

Defendant contends that the trial court erred in not granting his motion for a judgment of acquittal with regard to Counts Two and Three because the State's evidence failed to demonstrate that any judge issued a "no contact" order. We apply the same standards used by the trial court in its determination of a defendant's motion for a judgment of acquittal. State v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011); R. 3:18-1.

The record before us indicates that Municipal Court Judge Scott J. Basen released defendant on his own recognizance and issued the "no contact" order. See N.J.R.E. 201(b)(4). The subsequent bail and "no contact" orders were not admitted into evidence by the trial judge assumedly because of a lack of authentication testimony. At trial, the State did not make an application pursuant to N.J.R.E. 201(d) that the judge take judicial notice of the orders as "records of the court in which the action is pending." N.J.R.E. 201(b)(4); See also State in Interest of A.H., 304 N.J. Super. 34, 36, n. 1 (Ch. Div. 1997).

Defendant argued before the trial judge that that there was no proof that Judge Basen signed or authorized the "no victim contact" provision. Officer Dennis O'Brien of the Manalapan Police Department testified that he gave the complaint in this matter, with the "no contact" order, to defendant. He also verbally advised defendant that "there is to be no contact whatsoever until this is settled in court as per the judge's orders." O'Brien testified about the process that the complaint is filled out by a Manalapan officer and faxed to the judge for his signature. Here, there is sufficient credible evidence in the record to support the fact that a "no contact" order was issued by Judge Basen and defendant was aware of the condition.

As to defendant's claim of ineffective assistance of counsel, we find it to be without sufficient merit to warrant a discussion in this opinion. R. 2:11-3(e)(2). Allegations of ineffective assistance of counsel are ordinarily not raised on direct appeal because they usually require consideration of facts that are not part of the record, as is the case here. See State v. Preciose, 129 N.J. 451, 460 (1992). If defendant wishes to pursue the issue, he may do so in a petition for post-disposition relief. R. 5:24-6; R. 3:22.

Finally, defendant contends that Counts One and Three of the indictment should be merged with Count Two. The State concedes, and we agree, that the harassment offense and the charge for contempt of court should merge with the stalking in violation of a court order offense. Remanded to the trial judge for merger consistent with our opinion.

A

ffirmed.

1 N.J.S.A. 2C:33-4, titled "Harassment," provides:

Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he: a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; . . . c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

2 We note that defendant requested harassment not be charged as a lesser-included offense to Count One, fourth-degree stalking. The trial judge sua sponte charged the lesser-included offense and the jury convicted the defendant of harassment.