STATE OF NEW JERSEY v. MARK WALLACE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5490-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK WALLACE a/k/a MARK J.

WALLACE,

Defendant-Appellant.

_______________________________________

December 28, 2010

Submitted October 13, 2010 - Decided

Before Judges Wefing and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

07-10-1760.

Richard D. Koppenaal, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Annmarie Cozzi, Senior

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

A three-count indictment charged defendant with stalking, in violation of N.J.S.A. 2C:12-10b, a crime of the fourth degree; contempt, in violation of N.J.S.A. 2C:29-9a, a crime of the fourth degree; and stalking in the face of an existing order prohibiting same, in violation of N.J.S.A. 2C:12-10c, a crime of the third degree. The last two charges were dismissed prior to trial. Defendant waived a jury and after a five-day bench trial, he was found not guilty of stalking but guilty of the petty disorderly persons' offense of harassment as a lesser-included offense. The trial court sentenced him to serve two years on probation, conditioned upon his receiving psychiatric treatment and having no contact with the complainant. Defendant has appealed from that conviction. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant maintained a real estate office in Garfield, and the complainant operated a hair salon a short distance from defendant's office. Defendant first came to her hair salon selling tickets for a Rotary Club event; complainant purchased the tickets and told defendant he should become a customer of her shop. In the course of their conversation, she learned that defendant knew many members of complainant's extended family. Defendant began to have his hair cut at complainant's salon, and the two became close friends, so close that each referred to the other as his or her "best friend."

Defendant would often offer to run errands for complainant during the day, such as trips to the bank or picking up lunch for complainant and the others who worked in the salon. Defendant had an interest in a lake in northern New Jersey and regularly supplied tickets to complainant who would visit the facility with her daughters.1 Complainant testified that on at least one occasion, she was accompanied by her husband and that on another, she met defendant's mother.

The two gave gifts to each other over the years. On several occasions complainant refused to accept defendant's gifts because they were so expensive. She admitted, for instance, that defendant had a mink coat delivered to her hair salon. She returned it to him immediately.

During the course of their friendship, defendant, on several occasions, lent money to complainant. She admitted on cross-examination that he had, over the years, advanced at least $30,000 in varying sums. She repaid that amount in its entirety, over defendant's protestations that he did not want repayment.

They regularly had lunch together, sometimes alone and sometimes with others. They also had dinner together, although on a less frequent basis. Despite the closeness of their relationship, it was never physical in nature.

After a few years, however, several instances occurred that began to cause complainant to have concerns about the relationship. She and her family relocated to a new house, and when she described the renovations and the items she selected, defendant protested that she should not have to do any work of that sort. When she arranged a party for her daughter's sixteenth birthday, she invited defendant and his wife. Complainant spoke to defendant about the invitation when she did not receive a response; he replied that his wife was not coming, but he would come by himself. She told him he could not come alone. At another point, she had to relocate her hair salon. Defendant pressured her to move to the building in which he had his real estate office and was unhappy when she refused to do so.

The incident with the birthday party occurred in September 2006. The following month, defendant told complainant that he was going to join the Lions Club, a group in which complainant was active. He told her that he knew that men were members and that by joining, he could spend more time with her. She told him not to join the club.

In approximately November 2006, complainant met an acquaintance and as a result of their conversation, the substance of which was hearsay and thus not admitted at trial, she became very upset. She went to the restaurant where she knew defendant and his father regularly had lunch and confronted them, asking defendant's father to stop his son from talking about her and from bothering her. She also told defendant to stay away from her, that she wanted nothing further to do with him. Defendant replied that he would stay away from her.

He did not, however; he would continue to call and sent a constant stream of cards and letters asserting his love for her. He sent a number of cards for her birthday, beginning several weeks in advance of the date and had gifts delivered to the salon for Valentine's Day. She would regularly find notes and gifts that defendant left with her car. She refused to speak with him or to accept any of his gifts.

This did not deter defendant. The cards and gifts continued, some of which were sent to her home, addressed to her children, as well as to her mother. Defendant also continued to call complainant repeatedly, but she would not answer the phone. Events came to a head on January 13, 2007. Defendant called and called; complainant s phone would not stop ringing. Intermittently she would pick it up and tell defendant to stop calling her, but he would not comply with her request. Her phone rang all the way on her drive home; by the time she arrived, she was in tears. Complainant had not, up to that point, told her husband and children of defendant s actions toward her. She could no longer hide her distress, however, and told them of the events of the recent months. Her husband accompanied her to the Garfield Police Department to file a complaint against defendant. Her phone continued to ring as they drove to the police; while they were at the station, defendant arrived.

Defendant persisted in leaving messages for plaintiff, including singing lyrics such as, Ain t no mountain high enough to keep me from you. The day before the hearing in municipal court, defendant left another message on her phone, telling her to wear her hair up at the hearing because she looked sophisticated that way.

The entry of a restraining order did not deter defendant. His conduct continued along the same lines as before. That led to the criminal charges being filed.

At the conclusion of the proceedings, the trial court found defendant guilty of the petty disorderly persons offense of harassment, and this appeal followed. On appeal, defendant raises the following contentions:

POINT I THE TRIAL COURT'S DECISION FINDING THE DEFENDANT GUILTY ON THE CHARGE OF HARASSMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE

POINT II THE COURT'S FAILURE TO ALLOW INTO EVIDENCE TESTIMONY OF THE JANUARY 6, 2007 INCIDENT IS PREJUDICIAL ERROR AND MANDATES A REVERSAL OF THE COURT'S VERDICT OF GUILT

With respect to defendant's first contention, we are satisfied it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The trial court noted in its oral opinion that it considered complainant's testimony more credible than defendant's and that defendant had to have been aware that complainant did not wish to hear from him any further. Defendant refused to acknowledge that reality and continued to persist in his attempts to have a relationship with her. His conduct falls squarely within the parameters of N.J.S.A. 2C:33-4c.

We consider defendant's second point to be equally lacking in substantive merit. The first count of the indictment, which was the only one which proceeded to trial, charged defendant with acts between January 13, 2007, the date upon which complainant filed her complaint with the Garfield Police Department, and September 21, 2007. During the course of the trial, the court permitted evidence of events that preceded those dates, as background to the relationship between the parties. During the complainant's cross-examination, she was shown a writing she prepared that referred to defendant observing her at the hair salon on January 6, 2007, from across the street for approximately two hours. Defendant called his wife as a witness in an attempt to establish that he was elsewhere on that day and thus could not have done as complainant testified. The trial court barred this testimony as immaterial.

Defendant argues that this ruling improperly deprived him of "alibi" testimony. We perceive no error in the trial court's ruling. Even if defendant were elsewhere on January 6, 2007, it would have no bearing on the nature of his conduct after the filing of the complaint on January 13, 2007. It was that conduct, defendant's repeated telephone calls, tapes of which were played during the trial, his refusal to accept complainant's statement that she wished to bring their friendship to an end, which led to his conviction.

Affirmed.

1 Complainant was married, as was defendant.