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CRIMINAL PRACTICE — Domestic Violence — Due Process — Harassment — Notice — Stalking A-132 September Term 2001; Supreme Court; opinion by Coleman, J.; decided February 6, 2003. On certification to the Appellate Division, 349 N.J. Super. 332 (App. Div. 2002). [Sat below: Judges King, Cuff and Wecker in the Appellate Division.] DDS No. 20-1-2757 Plaintiff H.E.S. and her husband, defendant J.C.S., lived in the same house with their two daughters, although defendant occupied a separate bedroom. Plaintiff filed for divorce in June 2000, but defendant may not have been served until August 2000. On August 21, 2000, defendant filed a domestic-violence complaint against plaintiff. The typed complaint alleged that she had had her brothers harassing and stalking him and that they had broken windows in his cars. A handwritten notation noted that he said that H.E.S. was constantly harassing him by “calling police and making false accusations” that he was assaulting her and locking her in the house. A temporary restraining order was entered against plaintiff, with a final hearing scheduled for August 31. Plaintiff filed a domestic-violence complaint against defendant on August 22. It alleged that: ON 8-18-00 [H.E.S.] CAME HOME FROM CHURCH WITH THE CHILDREN. [She] COULDN’T GET INTO HER GARAGE BECAUSE [J.C.S.] LOCKED SAME. [J.C.S.] BEGAN TO YELL AND SCREAM ABOUT HOW HE WAS GOING TO DESTROY [H.E.S.] & HER FAMILY. AND THE ONLY WAY [she] WOULD GET OUT OF THIS MARRIAGE IS BY DEATH. Plaintiff’s complaint was filed on a preprinted domestic-violence complaint form. The form contained a section for selecting the predicate criminal offenses constituting domestic violence. An “X” was typed next to “Terroristic Threats.” Neither “Harassment” nor “Stalking” was checked. In answer to “Any prior history of domestic violence?” an “X” was typed next to the printed answer “yes.” The only information following “explain & dates” is the cross-reference “SEE FV 01 321 01C” (referring to J.C.S.’s August 21 complaint against plaintiff). A temporary restraining order was entered against defendant with a final hearing scheduled for August 24. Defendant asserts that on August 23, a court clerk requested to reschedule the hearing on his complaint to August 24. He agreed. He maintains that he was served with plaintiff’s complaint and TRO on August 23. His complaint was dismissed for insufficient evidence. As for plaintiff’s complaint, she testified that on August 18, before she left for church, defendant told her that if she refused to drop the divorce complaint, he would “destroy” her. When she returned and was unable to open the garage door, she and the children went to the front door where defendant met them. He told her, “It’s over. You’re doomed. I will destroy you. The only way you’re going to get out of this marriage is by death.” She then entered the house, where he allegedly proceeded to “rant and rave,” threatening to press charges against her brothers and to have her parents jailed. Plaintiff’s counsel then asked her if defendant had ever acted that way before. Defense counsel objected, arguing that the complaint failed to give notice of past acts of domestic violence. The court ruled that what was in the form did not preclude testimony regarding past incidences that were admissible in the proceeding. Plaintiff then testified about several prior incidents that were not mentioned in her complaint. Next, plaintiff testified that she had found a camera and microphone hidden in her bedroom. The police photographed the device and the wiring leading from her bedroom into a VCR in J.C.S.’s bedroom. She also testified that he had made several statements that “he understands why husbands kill their wives because it’s women like me that make men kill their wives,” that he had attempted to force himself on her sexually several times, and that she was “terrified” of him because “[h]e is over the edge.” During cross-examination, plaintiff was asked about her failure to specify any prior incidents of domestic violence in her complaint. She said that she had described other incidents on the victim information sheet before the preparation of her complaint. That sheet apparently was neither served on defendant nor introduced into evidence. J.C.S. objected to having to defend against charges of domestic violence that were not in the complaint and of which he had no notice. The trial court concluded, “The complaint does not in any way preclude testimony of past acts of domestic violence,” but did allow a continuance until the next day to permit counsel to consult with defendant. The next day defense counsel asked for another continuance, arguing that he had insufficient time to prepare his defense to allegations that he had not known about until the previous day and that time had not permitted him to subpoena police officers who had been called to the parties’ home. The continuance was denied. The trial court found that the verbal “threat” allegedly made by defendant was not domestic violence but “simply the type of vindictiveness that . . . precedes a divorce,” but that his placement of the camera and microphone in plaintiff’s bedroom did constitute domestic violence. The court found that his act constituted harassment because it was “designed to alarm or annoy,” and also stalking “because it’s repetitive activity . . . [and was] designed to put an individual in fear . . . of harm.” Based on the harassment and stalking, a final restraining order (FRO) was issued against defendant. The Appellate Division held that the trial court did not violate defendant’s due process rights when it based its finding of domestic violence on incidents not in the complaint. It stated that “[t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse” must be considered in evaluating a domestic-violence claim. Id. at 341. The panel noted that although each act of prior (or subsequent) domestic violence need not be listed in the complaint, the predicate act of domestic violence may not be based on allegations of which a defendant was not given notice. It nevertheless concluded that the notice given here (overnight) was sufficient. It distinguished J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998) (holding that same-day notice of domestic-violence charges violated due process), because that defendant was denied any chance to respond to the complaint and an FRO was issued the same day. Here, defendant had overnight to prepare, presented one witness, did not describe what exculpatory evidence he could possibly offer, and did not take the stand. The Appellate Division also noted that court personnel were to blame for exclusion from the complaint of the hidden microphone and camera, and that administrative failure “should not inure to plaintiff’s detriment any more than to defendant’s.” Id. at 344. The Appellate Division also held that defendant’s behavior constituted stalking under 2C:12-10, but not harassment under 2C:33-4. On appeal, defendant argues that the trial court erred in requiring him to defend against imposition of a FRO less than 24 hours after receiving the complaint and in refusing to grant an adjournment after plaintiff made allegations not in the complaint. At a minimum, due process requires that a party in a judicial hearing receive “notice defining the issues and an adequate opportunity to prepare and respond.” McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993). “There can be no adequate preparation where the notice does not reasonably apprise the party of the charges, or where the issues litigated at the hearing differ substantially from those outlined in the notice.” Nicoletta v. North Jersey Dist. Water Supply Comm’n, 77 N.J. 145, 162 (1978). Several Appellate Division cases have addressed the scope of procedural due process protection required in domestic-violence proceedings. In J.F. v. B.K., 308 N.J. Super. at 389, the plaintiff’s first domestic-violence complaint was dismissed after a hearing. She filed a second complaint in 1997, alleging that defendant had left notes on her car following a history of domestic violence. At the final hearing, she described prior events of domestic violence, as well as the note that was the basis for her second complaint. The court found that the defendant had harassed her and ordered a final restraining order. It based its decision on the alleged prior acts of domestic violence. The Appellate Division reversed, concluding that it was “clearly improper” to find that the defendant had committed domestic violence by relying on a prior course of conduct not mentioned in the complaint. It held that “[i]t constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act . . . into a hearing on other acts of domestic violence which are not even alleged in the complaint.” Id. at 391-92. Depos v. Depos, 307 N.J. Super. 396 (Ch. Div. 1997), ruled that the defendant had no right to take the plaintiff’s deposition. The defendant argued that failure to allow a deposition “would put him in the position of defending against ‘things he doesn’t know about’ at the time of the trial.” Id. at 402. The court responded that he had a remedy to that situation “if and when matters are testified to which go beyond what plaintiff has alleged in the complaint[,]” he could “ request a continuance of the trial in order to prepare a defense.” Id. at 402-03. Held: The Domestic Violence Act requires that a final hearing be held “within 10 days of the filing of a complaint . . . .” 2C:25-29a. But “the 10-day provision does not preclude a continuance where fundamental fairness dictates allowing a defendant additional time.” H.E.S., 349 N.J. Super. at 342-43. Indeed, to the extent that compliance with the 10-day provision precludes meaningful notice and an opportunity to defend, the provision must yield to due process requirements. Further, plaintiff’s argument that defendant had ample time to prepare a defense because the hearing did not begin at 8:30 a.m. on August 24 is rejected. Defendant was served with the complaint on August 23, and the matter was scheduled for 8:30 a.m. the following day. That was not adequate time for preparation. One reason for holding an expedited hearing to evaluate domestic-violence complaints is to protect the interest of both the victim and the accused as quickly as possible. That could have been achieved within the 10-day rule had the trial court granted an adjournment until as late as September 1. Plaintiff would not have been affected adversely by an adjournment because the TRO would have remained in place until the hearing. Defendant’s due process rights were further violated by the trial court’s refusal to grant an adjournment after plaintiff alleged an incident not in the complaint and by the court’s decision to grant a FRO on the basis of that allegation. Plaintiff’s complaint did not allege that defendant had harassed or stalked her. She argues that she informed domestic-violence intake personnel of the incident, and that she should not be prejudiced for their failure to detail the incident in the complaint. However, the record does not contain any asserted prejudice had the trial court granted either of defendant’s requests for a continuance because plaintiff would still have been protected by the TRO. The court’s attempt to distinguish J.F. is not persuasive. That defendant’s counsel had overnight to consider his response does not diminish his due process rights. Also rejected is plaintiff’s argument that any due process violations were harmless. Although it is questionable whether defendant would have been able to obtain evidence exonerating him from responsibility for the microphone and camera, enforcement of due process does not depend on guilt or innocence. The procedure employed here “involves such a probability that prejudice will result that it is deemed inherently lacking in due process.” Estes v. Texas, 381 U.S. 532, 542-43 (1965). Accordingly, the FRO is vacated because of due process violations. Defendant contends that the video surveillance of plaintiff’s bedroom does not present a prima facie case of stalking or harassment under the Domestic Violence Act. Although there are several ways to prove harassment, the relevant criteria here are those in 2C:33-4c: a defendant is guilty of harassment if, “with purpose to harass another, he . . . [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.” The Appellate Division found that defendant put the camera and microphone in plaintiff’s bedroom to watch her covertly, and because he obviously did not want her to find the camera, he could not have intended to annoy or alarm her, and thus one of the elements of 2C:33-4c is missing. That court, however, failed to consider defendant’s behavior that went beyond merely observing his wife in her bedroom. “Courts must consider the totality of the circumstances to determine whether the harassment statute has been violated.” Cesare v. Cesare, 154 N.J. 394, 404 (1998). The circumstances here, according to plaintiff, reveal that defendant often knew to whom she spoke on the phone, even though her phone only had one line. She often saw him while she was traveling for her job, even though he had no way of knowing where she would be at a certain time. She also alleged that he had stolen checks and important papers that she had hidden in her bedroom. She testified that his conduct made her feel as though he “knew [her] every move, [her] every step.” In addition, their past history, when properly presented, helps to inform the court regarding his purpose, motive, and intended use of information obtained through the surveillance. If plaintiff is found to be credible, a sufficient evidentiary basis can be found to support a conclusion that defendant intended to harass her by “repeatedly committ[ing] acts with purpose to alarm or seriously annoy” her. “A finding of a purpose to harass may be inferred from the evidence presented” and from common sense and experience. State v. Hoffman, 149 N.J. 564, 577 (1997). The alternative requirement that defendant’s purpose was to alarm plaintiff requires proof of anxiety or distress. The serious annoyance requirement “under subsection (c) means to weary, worry, trouble, or offend.” Id. at 581. “Thus, the difference between ‘annoyance’ and ‘serious annoyance’ is a matter of degree” and that determination must be made on a case-by-case basis. Ibid. Therefore, the Appellate Division erred when it concluded that, apparently as a matter of law, defendant’s conduct could not constitute harassment under 2C:33-4c. Under the totality of the circumstances and viewing the evidence in a light most favorable to plaintiff, a prima facie case of harassment was established. Defendant also argues that the Appellate Division erroneously concluded that his conduct amounted to stalking under 2C:12-10. He contends that “surveillance by a spouse in the marital home does not constitute domestic violence” as a matter of law. This is rejected. The Appellate Division correctly interpreted the stalking statute to include the type of behavior involved here when viewed in the context of the parties’ history. The stalking statute was “intended to protect victims who are repeatedly followed and threatened.” Committee Statement, Senate, No. 256, L. 1992, c. 209. Defendant argues that his behavior was not stalking because he did not behave in a “threatening” manner, but merely hid the camera and microphone in plaintiff’s bedroom. He alleges that she did not feel threatened because she continued to live in the same house as he and did not apply for a TRO until after he had obtained one against her. He argues that conducting surveillance of her bedroom “did not create opportunities for violence that were not already there.” The law is clear that acts of actual violence are not required to support a finding of domestic violence. The stalking statute was intended “to intervene in repetitive harassing or threatening behavior before the victim has actually been physically attacked.” State v. Saunders, 302 N.J. Super. 509, 520 (App. Div.), certif. denied, 151 N.J. 470 (1997). The elements of stalking are: 1) defendant engaged in speech or conduct that was directed at or toward a person, 2) speech or conduct occurred on at least two occasions, 3) defendant purposely engaged in speech or a course of conduct that is capable of causing a reasonable person to fear for herself or her immediate family bodily injury or death, and 4) defendant knowingly, recklessly or negligently caused a reasonable fear of bodily injury or death. Here, it is reasonable to infer that defendant is responsible for installing the surveillance equipment and that he acted “purposefully or knowingly” against “a specific person,” his wife. If believed, his behavior would constitute a “course of conduct” because he had “repeatedly maintain[ed] a visual . . . proximity to” plaintiff. 2C:12-10a(1), (2). Also, his surveillance of her bedroom, listening to her conversations and then following her after threatening to kill her if she did not drop the divorce action could “cause a reasonable person to fear bodily injury to [her]self.” 2C:12-10. The reasonable standard refers to persons in the victim’s position and with the victim’s knowledge of the defendant. The relevant inquiry is whether a reasonable person in plaintiff’s situation, knowing what she knew about her husband under the totality of the circumstances, would have feared bodily injury as a result of his alleged speech and conduct. Much of the harassment analysis applies here as well. Defendant observed plaintiff’s behavior and listened to private conversations that took place in her bedroom. He allegedly followed her while she was working, appearing in places where he otherwise could not have known she would be, and allegedly stole items from her bedroom that she had hidden. She claims he threatened to kill her unless she dropped the divorce proceedings. A finder of fact could reasonably have found, based on the totality of the circumstances, that defendant’s behavior would have placed a reasonable person in fear of bodily injury. If plaintiff’s testimony is believed, she feared her husband not only because of several sporadic prior incidents of physical violence, but also because of his more recent threats that the only way he would let her leave the marriage was “by death.” Such threats may be understood to indicate his desire to maintain control over her by any means necessary. Appearing while she was traveling for work, seemingly able to know where she would be without being told, could have enhanced her feeling of helplessness and inability to escape. This is the sort of behavior that the anti-stalking statute was designed to prevent. The matter is remanded to the trial court for new proceedings on the FRO. On remand, the court must consider the totality of the circumstances, including past incidents of domestic violence and defendant’s behavior after he put the camera and microphone in plaintiff’s bedroom. Finally, defendant asserted that he declined to testify regarding the camera and microphone at the FRO hearing because he feared that doing so would expose him to criminal charges under the Wiretapping and Electronic Surveillance Control Act, 2A:156A-1 to -34. Appellate Division cases have held that videotape surveillance is not violative of the wiretap statute even if there is simultaneous audio surveillance. However, defendant’s audio surveillance may fit within that definition. It is suggested that no unfavorable inference be drawn against defendant if he elects not to testify on the remand. The judgment of the Appellate Division with respect to due process violations and harassment is reversed. Its judgment finding that the conduct may constitute stalking is affirmed. The matter is remanded for new proceedings on the FRO. Chief Justice Poritz and Justices Long, Verniero, LaVecchia, Zazzali and Albin join in Justice Coleman‘s opinion. — Digested by Judith Nallin [The slip opinion is 32 pages long.] For appellant — Clement F. Lisitski. For respondent — Michele C. Verno (Ackerman, Alsofrom & Verno). For amicus curiae Legal Services of New Jersey — Nancy Goldhill (Melville D. Miller Jr., President). For amicus curiae New Jersey Coalition for Battered Women, Inc. — Lawrence S. Lustberg and Shavar D. Jeffries (Gibbons, Del Deo, Dolan, Griffinger & Vecchione).

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