violence “if he could” lacked sufficient basis for
establishing that he had intended to harass the victim
and, in any event, this statement, along with others made
by the defendant, were too de minimis to warrant
prosecution.
In J.F. v. B.K., 308 N.J. Super. 387 (App. Div. 1998),
the Appellate Division reversed a final domestic violence
restraining order against defendant where the only
evidence supporting the order was a note left by
defendant on plaintiff’s vehicle while it was parked at her
work place asking to talk to her. The Court found that
such conduct did not establish the predicate crime for a
finding of domestic violence absent a showing of
surrounding circumstances establishing an intent to
harass under N.J.S.A. 2C:33-4. The court also noted that
it was a denial of due process for the trial court to have
found that the defendant had committed domestic
violence based on acts not alleged in the complaint.
J.N.S. v. D.B.S., 302 N.J. Super. 525 (App. Div.
1997). Where defendant in the past had called plaintiff
obscene names and on one occasion had made an obscene
gesture, said offensive things about plaintiff’s boyfriend,
kicked over a garbage can, and returned their children to
plaintiff late on one occasion, the court found insufficient
credible evidence that defendant intended to “alarm” but
only that the parties mutually annoyed each other.
In State v. Fuchs, 230 N.J. Super. 420 (App. Div.
1989), the defendant was convicted of harassment under
N.J.S.A. 2C:33-4c, after a neighbor observed him
“peering into” a woman’s window. Although the woman
was not alarmed and had not seen the defendant’s
“peeping Tom” actions, the trial court nonetheless found
defendant guilty, reasoning that defendant’s conduct
was designed to cause alarm, annoy or bother. The
Appellate Division reversed, finding insufficient evidence
to satisfy the statute. It found that the presence of a
person at the scene as an object of harassment is a
necessary element which must be proven by direct
evidence in order to establish a violation of the
harassment statute. The appellate court also determined
that the State had failed to prove the requisite “purpose
to harass,” since there was no proof that the victim ever
saw defendant peering through the bedroom window,
nor that he made any effort to bother the occupants. The
court also noted in dicta that because the “peeping Tom”
statute under N.J.S.A. 2A:170-31.1 was repealed and
was not reenacted through either the harassment statute
or the criminal trespass provision in N.J.S.A. 2C:18-3
under the Code, there was a legislative intent to
decriminalize such conduct. For a similar case involving
a “peeping Tom” who ran once detected but was found
not to have a “purpose to harass” see State v. Zarin, 220
N.J. Super. 99 (Law Div. 1987).