defined in N.J.S.A. 2C:33-4a, b or c committed with a
motive of bias. In rejecting claims that the statute was
overbroad or infringed on protected First Amendment
rights, the Court ruled that the statute reached only
harassing conduct which was unprotected by the
Constitution, and not expression. The Court stated that
N.J.S.A. 2C:33-4a was not vague because the statutory
requirement that a defendant act “with purpose to harass
another” imposes a specific intent requirement that
clarifies the proscribed conduct. Also, the Court “read
out” the language in N.J.S.A. 2C:33-4d which required
that a defendant act “at least in part with ill will, hatred
or bias,” finding this portion of the statute was
unconstitutionally vague. Finally, the Court found that
N.J.S.A. 2C:33-4d was rationally related to a legitimate
state interest in protecting health, safety and welfare of its
citizens and therefore did not violate the equal protection
clause. Note, however, Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348 (2000), which invalidated the New
Jersey hate crime statute, holding a fact which causes the
enhancement of a sentence must be submitted to the
factfinder and proven by the State beyond a reasonable
doubt.
III. ELEMENTS/PURPOSE TO HARASS
State v. B.H., 290 N.J. Super. 588 (App. Div. 1996),
aff’d in part, rev’d in part, 149 N.J. 564 (1997), held that
in order to be guilty of harassment, a person must act with
the purpose to harass, and the purpose must be coupled
with the performance of one of the acts proscribed by
subsections (a), (b), or (c), of the harassment statute.
According to Mortimer, each of the subsections (a),
(b), and (c), is “free-standing, because each defines an
offense in its own right.” 135 N.J. at 525. Subsection (a)
proscribes a single act of communicative conduct when
its purpose is to harass. Under that subsection,
annoyance means to disturb, irritate, or bother.
Subsection (b) (the assault and battery or physical
contact harassment section) deals with touching or
threats to touch, and it does not require the intended
victim to be annoyed or alarmed. In contrast to
subsection (a), which targets a single communication,
subsection (c) targets a course of conduct. Subsection (c)
proscribes a course of alarming conduct or repeated acts
with a purpose to alarm or seriously annoy an intended
victim. The purpose of subsection (c) is to reach conduct
not covered by subsections (a) and (b). See State v.
Hoffman, supra.
State v. Cardell, 318 N.J. Super. 175 (App. Div.),
certif. denied, 158 N.J. 687 (1999). In affirming
defendant’s stalking conviction the Appellate Division
found no rational basis existed to charge that version of
harassment involving “offensively coarse language,”
codified in N.J.S.A. 2C:33-4a, as a lesser-included
offense of stalking absent proof of a purpose to harass. In
State v. J.T., 294 N.J. Super. 540 (App. Div. 1996), the
Appellate Division ruled that defendant’s conduct in
lurking outside the grounds of the marital residence and
staring at his wife was a violation of the domestic violence
restraining order prohibiting defendant from harassing
his wife. The court found that defendant’s intent to
harass his wife could be inferred from the totality of the
circumstances. The court also noted that although
repeated acts were not involved it did not mean that
defendant did not engage in a “course of alarming
conduct” within the meaning of N.J.S.A. 2C:33-4c.In State v. L.C., 283 N.J. Super. 441 (App. Div.
1995), the Appellate Division held that harassment
under the Domestic Violence Act requires a purpose to
harass and found that the mere yelling of offensive words
by a woman to her former husband did not constitute the
type of harassment under N.J.S.A. 2C:33-4a which was
prohibited by the domestic violence restraining order. A
restraining order can only prohibit conduct, including a
communication under N.J.S.A. 2C:33-4, which has a
“purpose to harass.”According to State v. Avena, 281 N.J. Super. 327
(App. Div. 1995), grabbing the victim’s hips and pulling
her closer when not encouraged by the victim constituted
harass because such conduct would create “alarm or
annoyance” on the part of the victim.In State v. Berka, 211 N.J. Super. 717 (Law Div.
1986), the court held that harassment is a lesser included
offense of simple assault, since proof of the same facts
suffice to prove the elements of either offense, and the
source of the harassment statute was the former simple
assault statute, N.J.S.A. 2A:170-26. Each statute
protects against offensive bodily touching or the threat of
same and the only difference is that harassment requires
a less serious injury of alarm as opposed to fear.State v. P.E., 284 N.J. Super. 309 (Law Div. 1994).
In harassment prosecution, counsel should be appointed
for defendant even if defendant is not facing consequences
of magnitude.IV. INSUFFICIENT EVIDENCE OF HARASS-
MENT
State v. Bazin, 912 F. Supp. 106 (D.N.J. 1995).
Defendant’s statement to victim that he would use