IN THE MATTER OF THE CIVIL COMMITMENT OF D.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE CIVIL

COMMITMENT OF D.G.

_______________________________

April 16, 2014

 

Submitted March 18, 2014 Decided

 

Before Judges Espinosa, Koblitz and O'Connor.

 

On appeal from New Jersey Superior Court, Law Division, Bergen County, Bergen Indictment Nos. S-2118-08 and S-1886-08 and Passaic Indictment Nos. 09-02-0164; 09-07-0908; 10-01-0046; 10-05-0526; 10-06-0585.

 

Joseph E. Krakora, Public Defender, attorney for appellant D.G. (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).

 

John L. Molinelli, Bergen County Prosecutor, attorney for respondent State of New Jersey (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant D.G. appeals from an order imposing a maximum civil commitment period of thirty-two years after a bench trial.1 She was found not guilty by reason of insanity (NGI) of seven indictments stemming from Bergen and Passaic Counties, a verdict not disputed by the State. We reverse and remand for a reduction of the maximum time she can be held in an institution as a result of the verdict.

We will discuss only the two indictments relevant to the contested issues defendant raises on appeal.

I. Bergen County Indictment Number S-1886-08

On June 25, 2008, D.G. made forty-five telephone calls to the Moonachie Police Department over a period of two hours. Officer Jeffrey Napolitano noted in his police report that during the phone calls D.G. was "extremely agitated and began rambling about the Moonachie Police Department and how it had ruined her life." Napolitano reported that he advised D.G. numerous times that she should stop calling the department if she did not have an emergency.

D.G. continued calling, screaming at times. Defendant was advised that she was interfering with the department's operations and that if she did not cease calling she would be charged criminally. The calls continued. Thereafter, a warrant was obtained for defendant's arrest.

Officers found D.G. in a motel room and began to ask her about the telephone calls. After a brief exchange, D.G. lunged at one of the officers, who was reported to have been dressed in plain clothes with his firearm concealed under his untucked T-shirt. The police report notes that D.G. "lifted the right side of [the officer's] shirt which had a bulge that would have appeared to be a weapon of a right-handed person in an attempt to obtain [the officer's] duty weapon." D.G. was restrained and arrested, "kicking and screaming." She sobbed inconsolably afterward.

Defendant was indicted for second-degree attempt to disarm a police officer, N.J.S.A. 2C:12-11 (count one) and committed to a maximum of ten years; fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b) (count two) and committed to a maximum of eighteen months; fourth-degree giving a false incriminating report to law enforcement, in violation of N.J.S.A. 2C:28-4(a) (count three), which was downgraded to the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4, and committed to a maximum of six months.2 The judge ran these periods of commitment consecutively for a total of thirteen years on this indictment.

II. Passaic County Indictment Number 09-02-0164

On February 11, 2008, Timothy Hayes, an employee of Bowles Corporation, defendant's former employer, reported to the Clifton Police Department that D.G. was making harassing phone calls to him and other employees. Officer Vincent LaRosa noted in his police report that D.G. accused the company of "giv[ing] confidential information about her to the Moonachie Police, Paterson Police, and members of the Latin Kings gang."

On February 25, 2008, D.G. went to Bowles Corporation offices to pick up her last paycheck and began harassing the office staff. Officer Wilfredo Valentin of the Clifton Police Department was called to the scene and reported that the Director of Operations had to physically restrain defendant. D.G. told the officer that she was assaulted and sustained an injury to her right arm. An ambulance was subsequently called, but defendant refused treatment.

On May 2, 2008, Hayes again reported to the Clifton Police that D.G. was making harassing phone calls to Bowles Corporation. Officer LaRosa noted that "[defendant] has been advised by the court not to have any contact with the company."

Hayes reported more calls from D.G. on September 9, 2008, saying that defendant threatened to kill him at his residence.

Defendant was subsequently indicted for third-degree terroristic threats, N.J.S.A. 2C:12-3(a) and/or (b) (count one) and committed for a maximum of five years; and fourth-degree stalking, N.J.S.A. 2C:12-10(b) (count two) and committed for a maximum of eighteen months. D.G. raises the following issues on appeal:

POINT I: COUNTS I AND II OF BERGEN COUNTY INDICTMENT NUMBER S-1886-08 SHOULD MERGE, OR, AT MINIMUM, RUN CONCURRENTLY, AND COUNT III SHOULD BE DISMISSED.

 

A. COUNTS I AND II MUST MERGE.

 

B. ALTERNATIVELY, THE COMMITMENT PERIODS FOR COUNTS I AND II SHOULD RUN CONCURRENTLY.

 

C. COUNT III MUST BE DISMISSED.

 

POINT II: COUNTS I AND II OF PASSAIC COUNTY INDICTMENT NUMBER 09-02-0164 SHOULD MERGE OR, AT MINIMUM, RUN CONCURRENTLY.

 

A. COUNTS I AND II MUST MERGE.

 

B. ALTERNATIVELY, THE COMMITMENTS [SIC] PERIODS FOR COUNTS I AND II SHOULD RUN CONCURRENTLY.

 

POINT III: THE COMMITMENT PROVIDED FOR THE NGI VERDICT OF HARASSMENT FOUND IN COUNT I OF PASSAIC COUNTY INDICTMENT NUMBER 09-07-0 908 SHOULD BE 30 DAYS INSTEAD OF 6 MONTHS.

III.

"An acquittal on grounds of insanity, unlike a simple acquittal, does not automatically free the criminal defendant." State v. Krol, 68 N.J. 236, 243 (1975). Rather, "[a]fter acquittal by reason of insanity, the court shall order that the defendant undergo a psychiatric examination[.]" N.J.S.A. 2C:4-8(a). "If the court finds that the defendant cannot be released . . . without posing a danger to the community or to [her]self, it shall commit the defendant to a mental health facility . . . to be treated as a person civilly committed. . . . The defendant's continued commitment . . . shall be established by a preponderance of the evidence, during the maximum period of imprisonment that could have been imposed, as an ordinary term of imprisonment, for any charge on which the defendant has been acquitted by reason of insanity." N.J.S.A. 2C:4-8(b)(3).

Appellate review of NGI matters is "extremely narrow," with deference given to the broad discretion afforded to a trial judge in fashioning a commitment period. State v. Fields, 77 N.J. 282, 311 (1978). "[I]n cases involving multiple offenses, an NGI defendant may remain under Krol commitment for the maximum ordinary aggregate terms that defendant would have received if convicted of the offenses charged, taking into account the usual principles of sentencing." In re Commitment of W.K., 159 N.J. 1, 6 (1999). The "usual principles" of sentencing include the merger of offenses and whether separate sentences are to run concurrent or consecutive to each other, but do not include the weighing of aggravating and mitigating factors. In re Commitment of M.M., 377 N.J. Super. 71, 77-78 (App. Div. 2005), aff'd o.b., 186 N.J. 430 (2006). See also AOC Directive #9-96 dated December 3, 19963 (explaining sentencing requirements for Krol commitments).

This court owes great deference to and should not second guess a sentencing judge's decision. State v. Bieniek, 200 N.J. 601, 608-09 (2010). "The role of appellate courts in reviewing sentences is to determine: (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgement that it shocks the conscience." State v. Megargel, 143 N.J. 484, 493 (1996).

IV.

The State concedes that counts one and two of Bergen County Indictment Number S-1886-08 should merge, reducing the maximum term by eighteen months, an issue raised in Point I of defendant's brief. The State also concedes, as argued by defendant in Point III, that the commitment provided for the NGI verdict of the petty disorderly persons offense of harassment found in count one of Passaic County Indictment Number 09-07-0908 should be thirty days instead of six months, N.J.S.A. 2C:43-8, reducing the maximum term by an additional five months.

V.

In Section C of Point I of her brief, defendant argues that harassment is not a lesser included offense of giving a false report incriminating another to law enforcement as charged in count three of Bergen Indictment No. S-1886-08. We agree. Defendant's repeated calls to the Moonachie Police Department accusing members of the department of harassing and stalking her may have been done with the purpose to harass and may have caused annoyance, which are elements of harassment. N.J.S.A. 2C:33-4(c). Defendant, however, was charged with the entirely different crime of filing a false police report, N.J.S.A. 2C:28-4(a).

N.J.S.A.2C:1-8(d) provides the following guidance to determine if one offense is a lesser-included offense of another:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

 

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or

 

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

 

A defendant commits the fourth-degree crime of "false reports to law enforcement authorities" when she "knowingly gives . . . false information to any law enforcement officer with purpose to implicate another[.]" N.J.S.A.2C:28-4(a).

A defendant commits harassment when she engages "in [a] course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." N.J.S.A.2C:33-4(c). Harassment requires proof that the defendant intended to harass the victim. J.D. v. M.D.F., 207 N.J. 458, 477 (2011). That purpose can be inferred from the evidence presented and from common sense. N.G. v. J.P., 426 N.J. Super.398, 421 (App. Div. 2012).

Count Three of Bergen County Indictment S-1886-08 alleged that D.G. gave false information to the Moonachie Police Department "with purpose to falsely implicate the entire Moonachie Police Department in the commission of an offense, specifically harassment and stalking[.]" The underlying facts were the voluminous phone calls and the accompanying accusations D.G. made to the police department.

D.G.'s calls included foul language and she continued to call after being told to stop. She was told that the calls were an inconvenience and were possibly interfering with individuals who may be attempting to reach the department with a legitimate emergency. She called forty-five times in the span of two hours. This behavior may well constitute harassment. The charge of making a false accusation, however, is an entirely different offense that does not require either repetition or the use of foul language with the purpose to annoy. The purpose is not to annoy but to falsely implicate another.

Although defendant may have harassed the Moonachie Police Department, she was not charged with doing so and therefore cannot be convicted of doing so.

VI.

Finally, in Point II of her brief, defendant argues that the two counts of Passaic County Indictment 09-02-0164 should merge or run concurrently. We disagree.

"Merger stems from the well-settled principle that 'an accused [who] has committed only one offense . . . cannot be punished as if for two.'" State v. Cole, 120 N.J. 321, 325-26 (1990) (quoting State v. Miller, 108 N.J. 112, 116 (1987)). Sentencing judges should take a flexible approach to the merger of offenses. State v. Davis, 68 N.J. 69, 81 (1975). The Davis Court provided a number of factors for a judge to consider, including: "the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed." Ibid.

Count one of this indictment alleged terroristic threats; count two alleged stalking. A person makes terroristic threats when she "threatens to commit any crime of violence with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror[.]" N.J.S.A.2C:12-3(a).

The judge explained why she refused to merge these two offenses, because stalking involves "maintaining a visual or physical proximity to a person," N.J.S.A.2C:12-10, while the terroristic threat involved the telephone threats. The trial judge distinguished the two crimes, stating that the terroristic threats consisted of what was said over the numerous phone calls whereas stalking consisted of physically going to the Bowles Corporation offices.

That reasoning is consistent with the Davisfactors. The "time and place" of the violations were distinct and separate and because of that "the proof submitted as to one count of the indictment," the terroristic threats made over the telephone, would not"be a necessary ingredient to a conviction under another count," the personal appearance and stalking at Bowles. Davis, supra, 68 N.J.at 81.

Defendant argues in the alternative that the two commitment periods should run concurrently to each other. In her merger analysis on these two counts, the trial judge reviewed the factors necessary to determine whether counts should be sentenced concurrently: the stalking and terroristic threats were "predominantly independent of each other" and "involved separate acts of violence or threats of violence." State v. Yarbough, 100 N.J. 627, 643-44 (1985).

Although the trial judge did not specifically refer to Yarbough on the record, she did articulate the factors set forth in Yarbough and thus did not abuse her discretion by calculating the two counts consecutively in determining the maximum length of defendant's commitment.

D.G. asks this court to modify her commitment period on appeal. An appellate court may modify or remand a sentence, and by extension, a commitment period, as W.K., supra, instructs. R. 2:10-3.

We modify the commitment period and remand only for the entry of an order reducing the maximum commitment period by twenty-nine months, reflecting the merger of two counts, a reduction of eighteen months, the reduction from six months to thirty days for a petty disorderly persons offense, and the dismissal of another disorderly persons offense. We otherwise affirm the commitment.

 

1 We transferred this case from the excessive sentence calendar to the plenary calendar due to the complexity of the issues raised.

2 The judge mistakenly imposed six months rather than thirty days on this petty disorderly persons offense.

3 Directives have the force of law. R.K. v. D.L., 434 N.J. Super. 113, 130 n.7 (App. Div. 2014).