STATE OF NEW JERSEY v. ZAMIR MARGALIT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3398-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZAMIR MARGALIT,

Defendant-Appellant.

________________________________________________________________

January 14, 2013

Argued December 19, 2012 - Decided

Before Judges Ashrafi, Hayden, and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-24-11.

Edward J. Bowen argued the cause for appellant.

Elizabeth R. Rebein, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; William P. Miller, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Zamir Margalit, appeals from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(a). Defendant was sentenced to pay a fine of $50, court costs of $33, a Violent Crime Compensation Board penalty of $50, and a Safe Neighborhood Fund assessment of $75.1

On appeal, defendant argues:

POINT I

The de novo conviction of Zamir Margalit under Complaint-Summons 0213 S 2011 000142 charging the Defendant with an offense under 2C:33-4(a) must be dismissed as a matter of law.

Point II

Mr. Margalit's statement was not made in a manner which amounted to a violation of the Statute.

Point III

The de novo Court should have dismissed the charge Based on the fact that the Municipal Court improperly Determined at the close of the State's case that the State had proven its case before the Defendant Testified.

We reject these arguments and affirm.

At the time of the underlying incident, which occurred on June 9, 2011, defendant and Kathy Dorfman were neighbors in a condominium complex and had known each other for three to four years. They were each involved in legal disputes with the condominium association. Although the disputes were separate, the subject matter was somewhat related. They had some prior antagonistic history. For example, defendant maintained a blog in which he constantly criticized the management of the condominium complex and depicted it as a very undesirable place to live; Dorfman posted entries on defendant's blog criticizing this conduct, contending it generated bad publicity for the complex, having the likelihood of reducing property values for everyone. On one occasion in 2008, while in Dorfman's home, defendant made an offensive comment to Dorfman, who is Russian, stating that "Russians [are] all whores by nature."

Between the time of that incident in 2008 and June 9, 2011, Dorfman had not invited defendant into her home, and apparently the relationship between them remained strained. When Dorfman became aware that defendant might possess some documentation arising from his legal dispute with the condominium association that might be helpful in her dispute with the association, she e-mailed him to inquire about it. He responded by e-mail that he had documentation in which she might be interested. She then called and asked him to bring the documents to her home for her review.

Dorfman described the events as follows: Defendant arrived on June 9, 2011. It was lunch time, and Dorfman was about to have a drink. She offered to share a drink with defendant. He accepted, and she mixed him a Bloody Mary. Dorfman looked at the documents defendant produced. She quickly determined they were nothing that would be useful to her in her ongoing civil litigation with the condominium association.

During this time frame, Dorfman acknowledged that defendant had a second drink. Dorfman and defendant engaged in some social discussion, during the course of which Dorfman mentioned that she had a jewelry designing business. Defendant said he had a friend in that business and if Dorfman was interested in the possibility of doing business with him she should show defendant her work. She kept the jewelry in a safe in a "dressing room" in her home. She escorted defendant to that room and opened the safe. In addition to the jewelry, there were several hand guns in the safe. Without asking, and without Dorfman's permission, defendant grabbed one of the guns. Dorfman immediately took it away from defendant and admonished him not to touch firearms that do not belong to him. She returned the gun to the safe and immediately locked it.

Defendant then told Dorfman she did not know who she was talking to, that he was a Mossad2 operative, and she had no idea what he could do to her. She asked him to leave, but he became "aggressive" and began "patting [her] hair like [she] was a dog." In describing defendant's demeanor at that time, Dorfman said "he acted crazy, he started licking his lips, his eyes went -- started popping out, bulging of his eyeballs."

Dorfman asked defendant to leave and started walking back toward the kitchen. Defendant said he would not leave without having another Bloody Mary. She said she would not serve it to him, to which he responded he would serve himself. Dorfman told defendant not to touch her and to get out. Defendant then turned around, "grabbed [her] breast and he said what are you going to do now, shoot me."3

Dorfman then ran to the door and opened it, exclaiming to defendant that she was going to call the police if he did not immediately leave. Defendant then called Dorfman a "menopausal mare." Apparently responding to a lack of understanding of that expression, defendant told Dorfman she was not sufficiently intelligent to understand it. Defendant left the premises.

Soon after leaving, defendant called Dorfman and called her a mare, again saying she was not sufficiently intelligent to understand the term. He then sent her a text message with the definition of "mare," namely a fully matured female horse.

Because her boyfriend was expected home very shortly, Dorfman refrained from calling the police in order to avoid a confrontation between her boyfriend and defendant. The next morning, as soon as her boyfriend left, Dorfman called the police, and charges were filed against defendant.

Defendant testified on his own behalf. His version of the events began the same as Dorfman's, namely that he went to her home, at her invitation, to show her documents that might be helpful in her legal dispute with the condominium association. Upon his arrival, she offered him a drink. From this point forward, defendant's version of the events differed substantially from Dorfman's.

According to defendant, for no apparent reason Dorfman motioned to him to follow her into another room in the apartment, which he said contained a bed and a table. He proceeded to lie down on the floor in that room to play with Dorfman's two dogs. He remained on the floor for about two and one-half hours playing with the dogs and chatting with Dorfman. He remained in that location for 99.9% of the total time he was in Dorfman's apartment.

Defendant said there came a time when Dorfman took him into a different room to show him her jewelry work. When they entered the room, the safe was "wide open," and he saw the guns. He acknowledged removing one of the guns from the safe. He said that when he observed that Dorfman was "taken aback" by that, he immediately put the gun back in the safe. He denied that Dorfman took the gun away from him.

Defendant said the two then went back to the kitchen. By that time, defendant said he had already consumed two or three drinks.

According to defendant, Dorfman asked him if he was flirting with her, and he acknowledged that he was. Defendant explained: "At that time I had very long hair and I was pulling my hair, she said oh, you're pulling your hair back and stuff like that. I says yeah because -- so that's what I did and then I told her --." When asked what happened next, defendant responded: "I said you are flirting with me. You are playing with your hair and -- and I showed her how. I took her hair and fling [sic] it up and I told her, that's what you are doing . . . ."

When asked what happened next, defendant said:

So anyway so I told her, I started talking pre -- Premarin, the most common HRT, made of pregnant mare's urine and she said and mare is a horse, so I said no, a mare is female -- is male horse, I said no it's a female horse. And with that, she grabbed my papers which I brought, she took the stuff I have -- I have it here, piled them one on top of the other, handed it to me and I got the hint and left. End of story.

Defendant said he left when Dorfman asked him to leave. He denied ever touching Dorfman's breast, and he denied telling her he was a Mossad operative. Defendant acknowledged sending Dorfman an e-mail with the definition of a mare, because of their discussion of whether a mare was a male or female horse.

Dorfman denied there had been any flirting or any discussion about either party flirting with the other. She denied any remark about her pushing her hair back. She insisted that after locking the safe, defendant patted her on the head in a demeaning manner while making his threatening comments and acting in a menacing manner, describing himself as a Mossad operative. When asked on cross-examination whether there was a discussion about whether she might have been pushing her hair back because she was hot, and whether defendant told her if menopause was approaching she might consider a drug called Premarin, Dorfman responded: "I am 40 years old, I'm 15 years away from menopause, so I don't understand where -- where is this coming from, this absurdity I'm . . . hearing." She denied emphatically that defendant ever mentioned Premarin to her or that there was any discussion regarding menopause. Finally, Dorfman said defendant did not leave when she first asked him to, but she had to ask him twice and threaten calling the police.

The municipal judge began his findings by laying out the elements of the charges against defendant and then commented that as the factfinder it was incumbent upon him to assess the credibility of the only two witnesses to testify, who were the only two people in the apartment together. He found Dorfman very credible, based upon her manner of testifying and demeanor, and because her testimony was consistent and logical. He found defendant incredible, noting that his version of the events was illogical and his testimony contained many inconsistencies. He therefore found that the State proved beyond a reasonable doubt all of the elements of harassment under N.J.S.A. 2C:33-4(a), and found defendant guilty.

On trial de novo in the Law Division, Judge Eugene H. Austin began the proceedings by observing that there was a substantial factual dispute between defendant and Dorfman regarding the menopausal mare comment, and whether defendant was merely describing a mare as a female horse for educational purposes (i.e., a legitimate purpose), or whether the remark was made with the intent to harass (i.e., for no legitimate purpose). The judge then cited the controlling authorities, State v. Locurto, 157 N.J. 463, 473-74 (1999); and State v. Johnson, 42 N.J. 146, 157 (1964), which require Law Division judges to give due, though not controlling, regard to the municipal judge's credibility findings.

In making his findings, Judge Austin applied those principles in finding Dorfman's version of the events credible. He therefore found that "the statements were not made merely for educational purposes," but for the purpose of causing annoyance or alarm to Dorfman. The judge also rejected defendant's argument that defendant's comments were immune from being criminalized by virtue of First Amendment protection. He found defendant guilty upon de novo review and imposed the sentence we previously mentioned. This appeal followed.

As applicable here, a person is guilty of a petty disorderly persons offense who, with a purpose to harass another, makes a communication in a manner likely to cause annoyance or alarm. N.J.S.A. 2C:33-4(a). In his first argument, defendant contends that Dorfman's testimony "did not support a claim that the statement was made for the purpose of harassing her." He relies upon the fact that defendant had not sought Dorfman out, but, rather, the interaction of the parties was initiated by Dorfman and occurred in her home. In his second argument, defendant contends that even if he had a purpose to harass, his comment constituted free speech protected by the First Amendment. We find both arguments unpersuasive.

A person charged with a crime requiring a particular purpose seldom announces his or her purpose. It is well understood that, in almost all cases, purpose can only be determined inferentially, from all of the surrounding circumstances. In the context before us, we must therefore be guided by the evidence of all of the surrounding circumstances and consider the common sense of the situation and common experience. See State v. Hoffman, 149 N.J. 564, 577 (1997). The critical factor in analyzing whether or not a communication is made with a purpose to harass is whether the circumstances support a legitimate purpose or the absence of a legitimate purpose. Ibid. "The proper focus in a subsection (a) prosecution should be on whether the method or manner of communication established an harassing intent to annoy or alarm." Id. at 575.

Applying these principles, we have no hesitancy in concluding that the record supports a finding of a purpose to harass. Defendant points to only two surrounding circumstances, which favor him, namely that Dorfman initiated the interaction and that it occurred in her home. However, this ignores the many other relevant and highly important circumstances.

Judge Austin credited Dorfman's rendition of the events.4 After entering Dorfman's home at her invitation, the purpose of the invitation ceased to exist when Dorfman determined the documents were of no use to her. The brief social interaction that followed (and thus extended the invitation for a different purpose) also soon ended when defendant removed a gun from the safe without authorization, followed by his threatening and intimidating declaration that he was a Mossad operative and Dorfman did not know what he could do to her, followed by his refusal to leave until Dorfman stood by the open door threatening to call the police. The factfinder rejected defendant's assertion about Premarin. Therefore, the surrounding circumstances contained no such discussion and precluded any legitimate purpose for discussing any constituent ingredients of that drug. There was clearly no legitimate purpose.

The circumstances further justified Dorfman's reasonable fear engendered by defendant's behavior. The factfinder believed her description of defendant patting her on the head like a dog, becoming very aggressive and making facial expressions of an intimidating nature. Conversely, defendant's version of why he touched Dorfman's hair, which he claimed led to the menopause discussion, was rejected. Thus, it was reasonable for Dorfman to be annoyed or alarmed.

We conclude that the factual findings of the Law Division judge are amply supported by the record, and we have no occasion to interfere with them. See Locurto, supra, 157 N.J. at 470; Johnson, supra, 42 N.J. at 162.

We find no First Amendment impediment in the facts of this case. Speech that is "non-intrusive," even if intended to annoy, cannot be criminalized because it enjoys First Amendment protection. Hoffman, supra, 149 N.J. at 583. Thus, analysis of a subsection (a) charge must focus on the mode of speech employed, for that sub-section is aimed not at the content of the offending statement but at the manner in which it was communicated. Ibid. Therefore, a letter to the editor intended to annoy its subject is protected, ibid., as was the mailing in Hoffman of the torn-up support orders, id. at 584. The critical inquiry is whether the offending comment, under the totality of the circumstances (including prior history), intrudes upon the subject's legitimate expectation of privacy, not with respect to what is said but in what manner it is said. Id. at 583-85.

In this case, the offending comment was direct and confrontational, as the culmination of an intimidating incident and against the backdrop of prior antagonism between the parties. This cannot meet the "non-intrusive" standard that carries with it First Amendment protection.

Defendant's final argument is that his conviction must be reversed because, at the end of the State's case, the municipal judge, in denying defendant's motion for acquittal, commented that he was "satisfied that the State's proven [its] case." Without further comment, defense counsel called defendant to testify. We agree with Judge Austin that, in context, the municipal judge did not apply an incorrect legal standard in denying defendant's motion for acquittal, but was inartful in expressing the correct standard that the State's proofs, viewed most favorably to the State, together with all reasonable inferences drawn favorably to the State, were sufficient to prove guilt beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454, 458-59 (1967). This argument does not warrant further discussion. R. 2:11-3(e)(2).

1 The Municipal Court had imposed a fine of $506, in addition to the other monetary assessments.

2 Mossad is a short name for the national intelligence agency of Israel. Mossad, Wikipedia, http://en.wikipedia.org/wiki/Mossad (last modified Dec. 18, 2012).

3 For the alleged touching of Dorfman's breast, defendant was initially charged with criminal sexual contact, N.J.S.A. 2C:14-3(b), which the county prosecutor downgraded to harassment by offensive touching, N.J.S.A. 2C:33-4(b). The municipal judge found defendant guilty of this charge, but, upon trial de novo, the Law Division judge found that the charge was not proven beyond a reasonable doubt and acquitted defendant of it.

4 We recognize that the judge found insufficient evidence to support the offensive touching charge. He thus accepted the defense argument that the proofs on that point were in equipoise because the record contained nothing more than Dorfman's assertion that he touched her breast and defendant's denial of doing so. However, with regard to the overall circumstances focusing on defendant's purpose in calling Dorfman a menopausal mare, the evidence was much more substantial and was not nearly in equipoise.