STATE OF NEW JERSEY v. SOO HWAN KIM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SOO HWAN KIM,

Defendant-Appellant.

____________________________________

March 6, 2014

Submitted October 17, 2013 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment

No. 11-09-1622.

Marc A. Williams (Law Offices of Kwangsoo Kim), attorney for appellant.

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

PER CURIAM

Charged with second-degree conspiracy and extortion by publicizing facts tending to impair a person's business repute, N.J.S.A. 2C:5-2 and 2C:20-5(c), defendant Soo Hwan Kim was convicted of the "lesser included" offense of disorderly conduct by use of offensive language, N.J.S.A. 2C:33-2(b), and ordered to pay $125 in assessments. The judge also signed a consent order whereby defendant agreed to refrain from distributing or publishing negative pamphlets or ads against his target, Edward Suh, an attorney. Because N.J.S.A. 2C:33-2(b) is not a lesser included offense of extortion, and has, in any event, been declared unconstitutional, we reverse.

Defendant's forty-year-old wife died at a hospital in New York in 1995. Believing the hospital responsible for her death, defendant retained Suh to pursue a medical malpractice claim on behalf of himself and his two teen-aged sons. Suh allowed the statute of limitations to run on the claim. Although Suh's negligence severely compromised the value of the claim, defendant hired another lawyer who settled with the hospital for $200,000. Defendant sued Suh for malpractice, but that claim too was lost when defendant's lawyer in that matter fell ill with cancer and died.

While the legal malpractice case was pending and for a considerable time afterward, a period spanning about six years, defendant circulated negative pamphlets and flyers "every day" in the Korean community accusing Suh of negligence. The gist of the pamphlets was that Suh had fraudulently advertised by guaranteeing millions of dollars for hospital cases and specifically promised defendant a good result, but then sat on the case for two years and did nothing, resulting in defendant being forced to settle a $2,000,000 case for $200,000. The pamphlets further alleged that Suh responded to defendant's complaints by kicking him out of his office and calling the police.

Defendant, through an intermediary, advised Suh that defendant intended to publish his accusations for the next fifteen years in a New Jersey weekly newspaper he ran, unless Suh paid defendant $500,000. Ultimately, Suh acquiesced to defendant's demands by agreeing to pay him $200,000 to stop distributing the pamphlets. Suh taped the conversations while cooperating with the prosecutor's office.

Following a bench trial, the judge acquitted defendant of the extortion claims, but found him guilty of violating N.J.S.A. 2C:33-2b. This appeal followed.

The public use of unreasonably loud and offensively coarse or abusive language with purpose to offend the sensibilities of a hearer, proscribed by N.J.S.A. 2C:33-2b, is plainly not a lesser included offense of theft by extortion by purposely publicizing facts tending to impair a person's business repute, N.J.S.A. 2C:20-5. See N.J.S.A. 2C:1-8d; State v. Thomas, 187 N.J. 119, 129-33 (2006) (noting that determination of whether an uncharged offense is included in the charged offense requires comparison of the statutory elements of both offenses). In addition, N.J.S.A. 2C:33-2b, of which defendant was convicted, has been declared unconstitutional. State in Interest of H.D., 206 N.J. Super. 58, 61 (App. Div. 1985). Accordingly, defendant's conviction must be reversed.

We consider the State's argument that we "mold the verdict to reflect a harassment conviction, in violation of N.J.S.A. 2C:33-4," to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2); cf. Thomas, supra, 187 N.J. at 134 (noting that the trial court should not "scour the statutes" for some uncharged related offenses of which the defendant may be guilty).

Reversed.