STATE OF NEW JERSEY v. MICHAEL BARCALOW

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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2635-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL BARCALOW,

Defendant-Appellant.
__________________________________

Text Box

July 2, 2007

Argued May 16, 2007 - Decided

Before Judges Wefing, Parker and C.S. Fisher.

On appeal from Superior Court of New Jersey,
Law Division, Ocean County, No. 05-04-0516.

Brian O'Reilly, Designated Counsel, argued
the cause for appellant (Yvonne Smith Segars,
Public Defender, attorney; Mr. O'Reilly,
of counsel and on the brief).

Natalie A. Schmid Drummond, Deputy Attorney
General, argued the cause for respondent
(Stuart Rabner, Attorney General, attorney;
Ms. Drummond, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of four counts of fourth-degree contempt for violating a domestic violence restraining order, N.J.S.A. 2C:29-9b; two counts of fourth-degree harassment while on parole, N.J.S.A. 2C:33-4e; and two counts of third-degree stalking, N.J.S.A. 2C:12-10b. See footnote 1 He was acquitted of two counts of harassment. At sentencing, after granting the State's motion to impose an extended-term sentence, the trial court sentenced defendant to the following periods of incarceration: ten years, with a five-year period of parole ineligibility, for one count of stalking, and a concurrent five years, with a two-and-one-half-year period of parole ineligibility, for the second count of stalking; eighteen months, with a nine-month period of parole ineligibility, on each of the remaining counts, to be served concurrently with each other but consecutive to the sentence for stalking; each of these sentences was, in addition, to be consecutive to the sentence defendant was then serving on an unrelated matter. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.
The victim was defendant's former wife, Valerie Cregan. Defendant and Cregan were married in 2001; shortly after their marriage, defendant was incarcerated on charges not related to the present matter. While defendant was in custody, the couple was divorced pursuant to a judgment of divorce entered on May 28, 2003. In connection with those divorce proceedings, Cregan retained the marital residence, which had been in her name during the course of the marriage. Cregan formed a relationship with Michael Sparaco. Mr. Sparaco moved into the former marital residence, and the two had a son in December 2003.
Defendant was released on parole on April 6, 2004, and took up residence with his mother in Toms River. Defendant arrived at Cregan's home at 12:30 a.m. on April 7, 2004, accompanied by his mother and his niece, both of whom testified that the purpose of the visit at that hour was to pick up whatever of defendant's belongings that remained in the house.
Ms. Cregan testified that when defendant arrived at the house, everyone was asleep and the lights were out. She heard the doorbell ring and got out of bed and saw defendant standing at the door. She was unwilling to open the door. She said he continued to ring the doorbell and to knock on the door, and the dog started barking with the disturbance. When she saw that defendant was not leaving, she called the police. When the police arrived, defendant departed, evidently without incident.
Commencing on April 11, 2004, defendant made a series of telephone calls. The first call on April 11 was placed to the house. Mr. Sparaco's father, who was watching the baby, answered the phone. After a brief exchange, defendant hung up. Later that day, he called Cregan on her cell phone. She testified that he seemed "very agitated and very angry" when he asked about the baby. Defendant made a third call, on the evening of April 11. Sparaco testified that he took the phone from Cregan and told defendant to stop calling. According to Sparaco, defendant replied, "I don't know whether it's today, tomorrow or next week, next month, you're a dead man."
On April 18, defendant again called. Cregan said that defendant told her that she and Sparaco were "going to be sorry for living in his house." He told her "the house wouldn't be there anymore." That day, Cregan sought a restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. A final restraining order was entered on April 21, 2004 and served on defendant on May 10, 2004.
On April 12, 2004, prior to Cregan seeking a restraining order, defendant filed suit against Cregan, alleging that she had misappropriated certain workers' compensation checks that had been issued to him during his incarceration. In May, after entry of the restraining order, Cregan sent defendant a letter requesting discovery with respect to his suit against her. Defendant responded with a letter which stated that she "was going to be sorry." Cregan notified the police, and defendant was arrested for violating the restraining order.
Cregan, Sparaco and defendant all appeared in court on July 26, 2004, in connection with defendant's suit against Cregan. The matter was adjourned. Sparaco and Cregan both testified that when they were leaving court, defendant looked at Sparaco and said to him, "You're dead."
Cregan testified that she was at work on August 1, 2004, and looked out the window and saw someone who looked like defendant in the parking lot. When she went to the door to check, she saw no one around. Later that day, she went to a gas station and found that sugar had been poured into her fuel tank.
Cregan also testified that between the court appearance on July 26, and August 5, 2004, she received a series of hang-up telephone calls, generally at the same time each day.
Defendant called Cregan twice during the day on August 5. He wanted her to meet with him and when she refused, he became agitated. Before she hung up on the second call, Cregan told him she would not meet with him because she did not want to "set [herself] up" to be shot by him. Cregan reported the calls to the police. That evening, Cregan's mother, sister and nephew came to the house to visit. Defendant called her at 10:30 p.m. after they had left and told her that if he wanted to shoot her, he would have done so just then while she was outside. When Cregan responded she had not been outside, he answered, "maybe it wasn't you, maybe it was just your mom, your sister and your nephews." When Cregan asked where he was, he answered that she "didn't need to worry about that." When she persisted, he said he was "close enough to see everything that [she] was doing."
Defendant told her he had been watching her for the past several months. He told her that he knew that Sparaco was not at home, which was correct, and retraced for her what she had done in the past half-hour. While she was talking to defendant, she received a signal from call-waiting that another call was coming in. She told defendant, who said she should remain talking to him and not call the police. Sparaco then called Cregan on her cell phone; she answered the call quietly, told Sparaco that defendant was on the phone and that he should notify police. Cregan then remained on the phone with defendant until the police arrived.
Police searched the neighborhood but were unable to locate defendant, even with the assistance of a K-9 tracking dog. While the police were conducting their canvass of the neighborhood, defendant again called and told Cregan that he had told her not to call the police. Cregan handed the telephone over to Patrolman Alex Hoffman, who told defendant that there were several warrants outstanding for his arrest and that he should turn himself in. Defendant responded that he would never be caught. Later, at 1:30 a.m., after the police left, defendant called again and told Cregan she could "rest easy" because he was in Toms River.
Defendant did not testify during the trial. His mother, sister and niece did, however, all testifying that defendant was with them on the evening of August 5.
On appeal, defendant raises the following arguments:
POINT I THERE WAS NO BASIS FOR THE COURT TO DENY DEFENDANT'S MOTION FOR ACQUITTAL OF STALKING WHERE THE COURSE OF CONDUCT ALLEGED OCCURRED ON ONE OCCASION AND EVENTS TOOK PLACE LESS THAN THREE HOURS APART: CONDUCT MUST OCCUR ON TWO OR MORE OCCASIONS UNDER THE STATUTE AS A MATTER OF LAW, REQUIRING REVERSAL. (Raised Below)

POINT II THE TRIAL COURT ERRED IN ELICITING HEARSAY CANINE SCENT IDENTIFICATION AND TRACKING EVIDENCE INDICATING THAT DEFENDANT WAS IN PHYSICAL PROXIMITY TO CREGAN, AN ELEMENT OF STALKING AND A CONTESTED ISSUE, WHERE THE PATROLMAN QUESTIONED BY THE COURT WAS NOT THE CANINE HANDLER AND HAD NO RELEVANT KNOWLEDGE OR TRAINING, REQUIRING REVERSAL. (Not Raised Below)

POINT III THE COURT ERRED IN PERMITTING NON-RELEVANT AND PREJUDICIAL EVIDENCE OF OTHER CRIMES AND WRONGS BY DEFENDANT AND UNIDENTIFIED OTHER WHICH WAS MISCHARACTERIZED AS RES GESTAE INSTRUCTION, REQUIRING REVERSAL. N.J.R.E. 404(b). (Raised Below)
A. N.J.R.E. 404(b) evidence introduced in this case was inadmissible because there was no proof showing defendant made harassing hang-up calls or damaged Cregan's car, that the evidence was relevant to a fact in issue, was similar to the events of August 5th, and that the probative value was outweighed by the danger of prejudice to defendant.
B. The court erred in granting the State's motion because the Grand Jury only considered conduct occurring on one occasion: the evening of August 5th and the early morning of August 6th and due process of law requires that all statutory "occasions" be considered by the Grand Jury.

POINT IV THE STALKING STATUTE WAS UNCONSTITUTIONALLY APPLIED TO DEFENDANT'S CONDUCT, REQUIRING REVERSAL. (Not Raised Below)

POINT V THE COURT ERRED IN NOT DENYING DEFENDANT'S MOTION FOR A MISTRIAL AFTER THE COURT ELICITED HIGHLY PREJUDICIAL EVIDENCE FROM OFFICER HOFFMAN THAT WARRANTS WERE OUT FOR DEFENDANT'S ARREST AND IN NOT GIVING THE JURY A CLEAR INSTRUCTION TO DISREGARD THE EVIDENCE. (Raised Below)

POINT VI THE COURT'S INSTRUCTIONS AS A WHOLE FAILED TO ACCURATELY CONVEY THE LAW AND THE FACTS OF THE CASE, DID NOT PROVIDE THE REQUIRED LIMITING INSTRUCTIONS AND DID NOT CHARGE THE APPROPRIATE OFFENSES, REQUIRING REVERSAL. (Partially Raised Below)
A. Defendant's right to due process of law was violated by the court's failure to limit the jury's consideration of the conduct constituting stalking to the dates in the indictment: August 5th and 6th.
B. The court failed to instruct the jury on the appropriate use of N.J.R.E. 404(b) evidence, the restraining order and other prejudicial evidence the jury should not have been permitted to freely consider.
C. The court erred in submitting counts two and four to the jury, when defendant was acquitted of harassment underlying those counts and not charging contempt and harassment as lesser-included offenses to stalking as all of the conduct charged for both offenses was identical in every aspect.

POINT VII DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND THE COURT'S FAILURE TO INQUIRE INTO DEFENDANT'S CLEAR OBJECTIONS AT SENTENCING DEPRIVED HIM OF DUE PROCESS OF LAW. (Partially Raised Below)

POINT VIII DEFENDANT'S SENTENCE WAS EXCESSIVE AND INCONSISTENT WITH THE SENTENCING GUIDELINES.
A. A remand is necessary because the court's decision is inconsistent with new sentencing procedures protecting defendant's sixth Amendment rights.
B. The court erred in not merging defendant's convictions.
C. The court erred in running defendant's convictions consecutive to one another.

Defendant's first argument revolves around his contention that the State failed to present sufficient evidence to sustain the charges of stalking. Defendant was indicted on two counts of stalking for the events of August 5 and August 6, 2004. The first alleged that he had engaged in a course of conduct directed at Cregan "that would cause a reasonable person to fear bodily injury . . . or . . . death . . . in violation of a Final Restraining Order." The second alleged the same conduct while defendant was on parole.
N.J.S.A. 2C:12-10a(1) defines "course of conduct" as "repeatedly maintaining a visual or physical proximity to a person or repeatedly conveying . . . verbal or written threats." N.J.S.A. 2C:12-10a(2) defines "repeatedly" as "two or more occasions." Defendant urges that the events of August 5 and 6 did not constitute a "course of conduct" because they did not occur on two or more occasions. Therefore, he contends, he cannot be convicted of stalking.
"The stalking statute was intended 'to intervene in repetitive harassing or threatening behavior before the victim has actually been physically attacked.'" H.E.S. v. J.C.S., 175 N.J. 309, 329 (2003) (quoting State v. Saunders, 302 N.J. Super. 509, 520 (App. Div.), certif. denied, 151 N.J. 470 (1997)). In H.E.S., the Supreme Court affirmed the determination of this court that defendant's installation of a video camera in the victim's bedroom constituted a course of conduct for purposes of the stalking statute. Here, we are satisfied that the trial court correctly concluded that each of defendant's repeated telephone calls on August 5 into August 6 constituted an "occasion" for purposes of the statute.
Defendant's second argument revolves around the testimony of Patrolman Hoffman, who responded to Cregan's home after Sparaco called the police to advise them that she was home alone while defendant was on the phone with her. There are two aspects to this portion of defendant's argument: that Hoffman was incorrectly permitted to offer hearsay testimony and that he was incorrectly permitted to testify about the use of the K-9 tracking dog in light of the fact that he was not the dog's handler. Defendant made no objection to this testimony and thus can only prevail if he is able to establish that the admission of this testimony constituted plain error. R. 2:10-2.
Generally, evidence as to the use of a dog in tracking through scent requires expert testimony. State v. Parton, 251 N.J. Super. 230 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992). Defendant contends that Patrolman Hoffman lacked the requisite experience and training to testify in this regard. Even if Patrolman Hoffman should not have been permitted to testify to the extent that he did, we are unable to conclude that defendant was unfairly prejudiced. Defendant urges that the testimony was critical to placing him in close visual or physical proximity to Cregan, a necessary element to stalking. We disagree. Cregan's testimony, in which she recounted defendant's recitation to her of her activities in the house while alone that evening, was more than sufficient evidence to establish his proximity.
We also reject defendant's third argument, that the trial court improperly admitted evidence of other crimes or wrongs. The testimony of which defendant complains was properly admitted as part of the res gestae of the events for which defendant was on trial. The evidence qualified as res gestae because the events were "part and parcel" of the charged crimes. State v. Martini, 131 N.J. 176, 240-42 (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed.2d 137 (1995). The charged crimes may not have made sense to the jury unless they heard about the events leading up to them.
Defendant contends that the stalking statute was unconstitutionally applied to his conduct. We are unable to agree. In this portion of his argument on appeal, defendant contends that the statute is unconstitutionally overbroad and vague because it was not intended to include communications that pertain to pending legal proceedings. The record, however, is barren of any evidence that defendant was contacting Cregan to discuss his pending lawsuit against her.
During the testimony of Patrolman Hoffman, he referred to having told defendant that he should surrender on the outstanding warrants against him. At the conclusion of this testimony, defendant sought a mistrial, which the trial court denied. It did, however, give a curative instruction to the jury. That curative instruction was adequate to the situation, and we see no error.
Defendant's next argument on appeal is directed to various deficiencies that defendant perceives in the trial court's charge to the jury. Defendant made no objection at the time of trial. We find no plain error. R. 2:10-2; R. 2:11-3(e)(2).
We decline to consider defendant's next contention, that he was denied the effective assistance of counsel. Such arguments are more appropriately presented in the context of a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).
Defendant's final argument is addressed to the sentence imposed by the trial court. The State concedes that defendant must be resentenced in light of State v. Natale, 184 N.J. 458 (2005), and State v. Pierce, 188 N.J. 155 (2006).
Defendant's convictions are affirmed. The matter is remanded to the trial court for resentencing. We do not retain jurisdiction.

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Footnote: 1 Under N.J.S.A. 2C:12-10b, stalking is a crime of the fourth degree. It is elevated to a crime of the third degree if the offense is committed in violation of an existing court order, N.J.S.A. 2C:12-10c, or while on parole. N.J.S.A. 2C:12-10e.

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