                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5412-15T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL J. WEST,

     Defendant-Appellant.
____________________________

                    Argued March 20, 2019 – Decided January 3, 2020

                    Before Judges Fuentes, Accurso and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Docket No. 2016-015.

                    Roy Allan Epstein argued the cause for appellant.

                    Frank J. Ducoat, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Theodore N. Stephens II, Acting Essex
                    County Prosecutor, attorney; Tiffany M. Russo, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      Defendant Michael J. West appeals from the order of the Law Division,

Criminal Part, finding him guilty of the petty disorderly person's offense of

harassment under N.J.S.A. 2C:33-4(a). Defendant argues the State did not

present sufficient evidence to prove, beyond a reasonable doubt, that the content

of the note defendant placed on a fence demonstrated an intent to harass the

public official identified therein. We agree with defendant and reverse.

                                         I

      On September 25, 2015, Detective Sergeant Thomas O'Keefe, of the

Secaucus Police Department, filed a warrant/complaint charging defendant with

third degree terroristic threats under N.J.S.A. 2C:12-3b, against Michael

Gonnelli, the Mayor of Secaucus. The complaint alleged defendant placed a

"sign" on a locked fence on the end of Farm Road, which read: "the mayor is

out of control with his draconian rules & somebody must cap his ass." 1 The


1
   The Supreme Court has made clear that: "Canon 2 [of the Code of Judicial
Conduct] directs judges to 'avoid impropriety and the appearance of impropriety
in all activities.' The Canon adds that judges 'should act at all times in a manner
that promotes public confidence in the integrity and impartiality of the
judiciary.'" In re Reddin, 221 N.J. 221, 227 (2015). Here, the warrant/complaint
issued against defendant reflects that the Secaucus municipal court judge
                                                                        (continued)
                                                                           A-5412-15T3
                                        2
prosecutor downgraded the charge against defendant to harassment, a petty

disorderly person's offense under N.J.S.A. 2C:33-4(a). In an order dated July

25, 2015, the Hudson County Assignment Judge transferred venue of the case to

the Essex County vicinage "for disposition by a Superior Court Judge to be

designated by the Assignment Judge."

      Defendant was tried before the Presiding Judge of the Municipal Courts

of Essex County. Defendant was represented by a staff attorney of the Office

of the Public Defender. Before the start of the trial, the attorneys stipulated to

the admission of four exhibits into evidence: (1) a DVD surveillance video of

the incident; (2) an audio recording of defendant's statement to Sergeant

O'Keefe; (3) a transcript of defendant's statement; and (4) a copy of the note

defendant allegedly wrote and placed on a gate.

      The State called Mayor Gonnelli as its only witness. He testified that at

approximately ten o'clock in the morning on September 20, 2014: "I was advised

by a public works [employee]2 that there was something posted about me on a




telephonically swore in Detective O'Keefe and made a finding of probable cause
based on his testimony. Because the complaint/warrant identified the Mayor of
Secaucus as the victim, the municipal court judge should have recused herself.
2
  The trial transcript states: "a public works employer." We assume this was a
typographical error.
                                                                          A-5412-15T3
                                        3
fence in the second ward of our town." The Mayor characterized this area as "a

residential area in our community." The prosecutor did not ask the Mayor if the

public works employee told him the content of the note. Instead, the prosecutor

asked:

            Q. And after receiving that information, what did you
            end up doing next?

            A. I actually got in my car, I rode over and retrieved
            this note that was put on the fence pertaining to me.

            Q. And where . . . exactly was the note on the fence,
            like how . . . was it positioned?

            A. It was kind of just hung in the center of a . . . fence
            that had been open for a long period of time that was
            recently closed. And it was kind of posted right on the
            center of the fence.

      The Mayor took the note and brought it back to his home but, at that time,

he did not "realize what the note meant." His wife was equally mystified.

However, when he showed the note to his daughter, she "immediately told [him]

what it meant." In response to the prosecutor's request, the Mayor read the note

out loud for the record: "The Mayor is out of control with the Draconian rules

and somebody must cap his ass." When the prosecutor attempted to ascertain

what the witness learned the phrase "somebody must cap his ass" meant, defense




                                                                         A-5412-15T3
                                        4
counsel objected. The municipal court judge implicitly sustained by stating:

"his daughter told him what it meant."

        Despite the absence of a factual foundation at this juncture, the Mayor

testified that "once I learned what it meant I notified our police department, who

came and picked it up." The prosecutor thereafter returned to the content of the

note:

             Q. - - what did you find out to learn the word cap
             meant?

             A. That someone was going to shoot me either in my
             ass or in my back.

             Q. And how did that make you feel?

             A. That made [me] feel a little bit uncomfortable. It
             made my family feel a lot more uncomfortable.

        Defendant testified in his own defense. His attorney asked him: "What

was the purpose? Why did you . . . put . . . that note there?" The record shows

defendant's response consisted of a rambling, nonsensical diatribe in which he

alleged to "being watched by two detectives" that were "standing by a rock."

Defendant claimed this surreptitious surveillance occurred at another "event."

He observed "a black undercover car sped through the dirt road and I wrote down

its license plate number. And it . . . changed its driving . . . first it was driving

through the dirt road, and then back again."

                                                                             A-5412-15T3
                                         5
      At one point, the municipal court judge interrupted defendant's testimony

in an attempt to return to the issue at hand.

            THE MUNICIPAL COURT: [W]hat you're telling the
            [c]ourt is that you were concerned because the police
            were following you or observing you is that right?

            DEFENDANT: They were – they were speeding
            through the field of – of –

            THE COURT: Okay.

            DEFENDANT: - - the field that was connected to the
            nature area.

            DEFENSE COUNSEL: What was your objection - -

                   ....

            - - why you wrote this note? [sic]

            DEFENDANT: it was an accumulative -- I will -- I will
            explain it. I really will have a legitimate explanation
            here, I promise, all right?

            DEFENSE COUNSEL: Okay. How much longer will
            this take?

            DEFENDANT: The next event that happened was me
            and my friend, [L.K.], 3 were being watched by a third -
            - on the third day by a cop who was parked at Acorn
            Road. And then within a couple of more days,
            sometime around September 20th or before, my tree
            was cut down, and - -

3
  Although defendant identified this person by name, we use initials to protect
this person's privacy.
                                                                       A-5412-15T3
                                         6
            DEFENSE COUNSEL: Your tree?

Defendant continued this stream of consciousness with irrational testimony for

several transcription pages until the municipal court judge intervened with the

following questions:

            THE MUNICIPAL COURT: So [do] you think that the
            Town or the police or the public officials were targeting
            you for some reason?

            DEFENDANT: They were not targeting me specifically
            but, I mean, cutting down a tree is not targeting me, but
            –
                   ....

            THE MUNICIPAL COURT: -- you think that they were
            wrong for cutting your tree down?

            DEFENDANT: Yes, Your Honor. And – and –

      Defendant claimed to have written notes to help him remember all of the

incidents of retaliation by the municipality. Defendant testified that the fence ,

which he used to post the note at issue in this case, was on "private property for

approximately 70 years." Defendant eventually testified he placed the note on

the fence: "Because . . . [t]he fence was locked in a bizarre way." Defense

counsel followed up with the following questions:

            DEFENSE COUNSEL: So, you didn't like the fact that
            it was chained?



                                                                          A-5412-15T3
                                        7
           DEFENDANT: I -- I didn't react to it when it was
           locked. I reacted to it when the . . . people outside were
           reacting to it.

           DEFENSE COUNSEL: Okay. And why did you put
           this note there?

           DEFENDANT: Because when I was at -- when I was
           using my cell phone downloading movies from -- from
           -- because I would -- I get five signal bars at the
           window. So, I'm there at the window and I'm seeing the
           people outside reacting to it, and then I go outside and
           they're walking away depressed. And in my mind, late
           at night I'm home alone, thinking about all of the things
           that happened the past two weeks, and I just think about
           how bizarre it is and then I just, at the spur of the
           moment, grabbed a marker and I wrote. And then I
           decided to put it up because . . . there were already
           people there, and I figured if the people saw it they
           would react more to it. They were already reacting to
           it . . . without me.

     After hearing closing arguments from counsel and considering the

evidence presented, the municipal court judge considered the elements of

harassment under N.J.S.A. 2C:33-4(a) and concluded defendant "had every right

to express his concerns to public officials. He had every right to refer to

Draconian rules, too much controls, and otherwise." However, the municipal

court judge found defendant "did not have the right to make a threatening

remark. In common parlance the phrase, somebody must cap his ass, is a

threatening remark within the meaning of the harassment statute."           The


                                                                        A-5412-15T3
                                       8
municipal court judge enjoined defendant from having any contacts "with the

victim in this matter, written or otherwise." He imposed the mandatory statutory

penalties and costs, which amounted to $158, but suspended the $33 court cost,

reducing the amount defendant must pay to $125, and allowed defendant one

year to pay this sum.

                                        II

      Pursuant to the procedural process codified in Rule 3:23-1 to -9, defendant

appealed and sought a trial de novo before the Law Division, based on the record

developed in the municipal court. The matter came for oral argument before the

Law Division, Criminal Part in Essex County on June 27, 2016, with defendant

represented by different counsel. The defense argued that defendant was not

guilty as a matter of law because he did not communicate with or send a

communication to the Mayor of the Town of Secaucus by merely leaving "a

somewhat inartful note on the public property." Alternatively, defense counsel

argued that defendant did not: (1) conceal his identity as the author of the note;

(2) interact with the Mayor at an inconvenient hour; (3) use coarse language; or

(4) engage in any other manner that was likely to cause annoyance or harm to

anyone.




                                                                          A-5412-15T3
                                        9
     Before the prosecutor addressed the Law Division judge on behalf of the

State, the judge addressed defendant directly, although he was represented by

counsel, and engaged in the following exchange:

           THE COURT: All right. Mr. West, you want to address
           the [c]ourt with something, sir?

                 ....

           Okay. Stand up, please.

           (Pause in dialog)

           DEFENDANT: Judge, the Municipal Judge who
           arrested me in 2015 had been my -- ex-municipal
           prosecutor, and there's a document -- the Municipal
           presiding judge of Hudson County that says in 2013,
           [the judge] was ordered to stay off my cases. And in
           2015, she did not.

           And -- the -- ineffective counsel indications can be
           found on page 55 and page 56. And I –

           THE COURT: Mr. West, this matter was tried before
           [the municipal court judge assigned by the Essex
           County Assignment Judge], not the judge you are
           referring to in -- right now. This was tried actually
           here, in this building, before [the Essex County
           municipal court judge]. It was transferred out of
           Hudson County because, I'm sure, of a conflict in light
           of the fact that the Mayor of the town was the named
           complainant in that case.

                 ....



                                                                      A-5412-15T3
                                     10
            DEFENDANT: [I]t's also because my family worked
            for the Hudson County Superior Court.

                   ....

            THE COURT: Okay. So that's probably why that it was
            transferred here. There's a few reasons. All right.
            Anything else you have to say, sir?

            DEFENDANT: I really, really, really didn't know what
            I was doing when I wrote "Cap" (phonetic). I'm really
            sorry that I wrote it. I did not know any slang
            meanings. I have been taught by great teachers since I
            was a child. I do not use slang at any time, ever. And
            I'm really sorry.

      At this juncture, we are compelled to point out that a de novo review by

the Law Division is strictly governed by the procedures described in Rule 3:23-

8(a)(2), which provides:

            The court to which the appeal has been taken may
            reverse and remand for a new trial or may conduct a
            trial de novo on the record below. The court shall
            provide the municipal court and the parties with reasons
            for a reversal and remand. If the court to which the
            appeal is taken decides the matter de novo on the
            record, the court may permit the record to be
            supplemented for the limited purpose of correcting a
            legal error in the proceedings below.

            [(Emphasis added).]

      This impromptu decision by the Law Division judge to seek defendant 's

point of view on the substance of the charges against him in this trial is not only


                                                                           A-5412-15T3
                                       11
unauthorized by the Rules governing the scope of these proceedings, it resulted

in a breakdown in the decorum expected in a judicial proceeding. We are

equally vexed by defense counsel's failure to object to this violation of

defendant's right to a fair trial under the limitations imposed by Rule 3:23-

8(a)(2). After all, the scope of the Law Division's review of municipal appeals

is well-settled.

      The Law Division judge must give "due, although not necessarily

controlling, regard to the opportunity of the" municipal court judge to assess

"the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964).

The State must demonstrate that the record developed before the municipal court

established the elements of harassment as defined in N.J.S.A. 2C:33-4(a),

beyond a reasonable doubt. As an intermediate appellate court, we review to

determine whether there is "'sufficient credible evidence . . . in the record' to

support the trial court's findings." State v. Robertson, 228 N.J. 138, 148 (2017)

(quoting Johnson, 42 N.J. at 162).

      After summarizing the elements of harassment in N.J.S.A. 2C:33-4(a), the

Law Division judge did not conduct a de novo review of the record developed

before the municipal court. Instead, he appeared to view his role as one of an

appellate tribunal. The following comments illustrate this point:


                                                                         A-5412-15T3
                                      12
            THE COURT: Let the record reflect that I have asked
            the Officers to remove Mr. West from the courtroom
            because, as I'm giving my ruling, he is continually
            disrupting the [c]ourt and interrupting me. [4] And it
            appears that Mr. West insists on going off on a tangent
            in this matter, on things that are wholly irrelevant here.

            The facts of the case here are very simple. He
            obviously was upset with whatever the Mayor of
            Secaucus was doing. He posted a sign in a public area
            that read, and I'll read it again, "The Mayor is out of
            control with his draconian rules and somebody must
            cap his ass."

            The Mayor was alerted to the presence of that sign by
            another, I think, Public Works official or employee of
            the town. The Mayor saw the sign, he notified the
            police, the police investigated and that investigation led
            to Mr. West.

            Mr. West had a trial before [the municipal court judge],
            and he readily admitted there that he wrote the sign.
            His insistence is I didn't know what "cap his ass" meant.
            Quite frankly, I think that the Judge below, [the
            municipal court judge], had a full record. And in that
            record he found that Mr. West was guilty of the offense
            of harassment as charged.

            I don't find anything in that record that leads to an error
            in [the municipal court judge's] judgment. I do believe,
            based on his conduct, based on what he wrote and I,
            quite frankly, I find it almost incredible to believe that
            a man of his age and supposed intelligence does not

4
  While the Law Division judge was summarizing the factual record developed
before the municipal court, defendant interrupted the judge with a series of
nonsensical comments claiming that the Mayor surreptitiously directed "people"
to cut down his tree.
                                                                          A-5412-15T3
                                       13
      know what the meaning of the word "cap his ass" is.
      Because certainly, in this area in New Jersey, I don't
      think we can find too many people who don't
      understand what the meaning is.

      He continues to tell me that he's intelligent; he was
      educated by the best teachers. Well, first of all, I don't
      think teachers are teaching you in school about
      "capping your ass." But certainly here, he knows -- I
      think he knows what that meant. That's my opinion.

      I believe the record below is complete. I believe the
      Judge made no error in judgment. I will affirm the
      Court below on this hearing. Counsel, thank you.

      [(Emphasis added).]

Against this record, defendant raises the following arguments on appeal.

      POINT I

      UNDER N.J.S.A. 2C:33-4, THE STATE DID NOT
      PROVE BEYOND A REASONABLE DOUBT THE
      PREREQUISITE OF "WITH THE PURPOSE TO
      HARASS ANOTHER" AS IS NECESSARY FOR THE
      CONVICTION OF THE DEFENDANT.

      POINT II

      CONTEMPORANEOUS         WITH       THE
      COMMUNICATION,     THE   INVESTIGATIVE
      OFFICER INQUIRED OF DEFENDANT AS TO HIS
      "PURPOSE" REVEALING NO PURPOSE TO
      HARASS.




                                                                   A-5412-15T3
                                 14
              POINT III

              IN HIS ARGUMENT TO THE TRIAL COURT, THE
              PROSECUTOR GAVE SHORT SHRIFT TO THE
              REQUIRED,   YET   CRUCIAL,   STATUTORY
              ELEMENT OF HARASSMENT "PURPOSE",
              BECAUSE HE KNEW HE COULD NOT
              OTHERWISE MEET THE STATE'S BURDEN.

              POINT IV

              THE CORROBORATING EVIDENCE AS FOUND
              BY THE TRIAL COURT IS THAT DEFENDANT'S
              PURPOSE WAS NOT TO HARASS THE MAYOR.

              POINT V

              ON APPEAL, THE COURT'S SINGULAR FOCUS
              ON THE WORDS "CAP HIS ASS" WAS
              MISPLACED.

       We conclude the record developed before the Law Division shows the

judge did not adhere to the standard codified in Rule 3:23-8(a)(2).      From

beginning to end, the judge appeared to be unfamiliar with the legal principles

governing municipal appeals.      The judge's impromptu interactions with

defendant in open court were also incompatible with principles of judicial

decorum and unmindful of how they might affect defendant's constitutional right

to a fair trial.




                                                                       A-5412-15T3
                                     15
      We also conclude the State did not satisfy its burden of proof, beyond a

reasonable doubt, that defendant committed the petty disorderly person's offense

of harassment under N.J.S.A. 2C:33-4(a).

            A violation of subsection (a) requires the following
            elements: (1) defendant made or caused to be made a
            communication; (2) defendant's purpose in making or
            causing the communication to be made was to harass
            another person; and (3) the communication was in one
            of the specified manners or any other manner similarly
            likely to cause annoyance or alarm to its intended
            recipient.

            The purpose to be served by enactment of the
            harassment statute is to make criminal, private
            annoyances that are not entitled to constitutional
            protection. Thus, the substantive criminal offense
            proscribed by subsection (a) "is directed at the purpose
            behind and motivation for" making or causing the
            communication to be made.

            [State v. Hoffman, 149 N.J. 564, 576 (1997) (internal
            citation omitted).]

      The Mayor was the State's only witness. The Department of Public Works

employee who discovered the note and brought it to the Mayor's attention did

not testify. The note stated: "the mayor is out of control with the draconian rules

& somebody must cap his ass." Both the Mayor and defendant testified that they

did not know what the phrase "cap his ass" meant. The Mayor testified that his

daughter told him what the phrase meant to her. The State did not produce any


                                                                           A-5412-15T3
                                       16
competent authority of the meaning of the phrase. It is undisputed that the note

was posted at a place unlikely to be discovered by the Mayor. Based on the

testimony of the only two witnesses, the meaning of the phrase "cap his ass"

remains unsettled.

      The record before the Law Division judge is devoid of competent evidence

concerning the meaning of the phrase. Moreover, the judge's assumption that

its meaning was commonly understood "in this area of New Jersey" ignored the

testimony of the witnesses that they did not understand its meaning.          The

highlighted sections of the Law Division judge's final words show, beyond any

doubt, that he did not conduct the de novo review of the record developed before

the municipal court, which the Supreme Court made clear is required in Johnson,

42 N.J. at 157 and in Rule 3:23-8(a)(2).

      The record also shows that the State did not present any legally competent

evidence before the judge from which an inference of guilt can logically and

legitimately be drawn. See R. 3:18-1. Stated differently, "based on the entirety

of the evidence and after giving the State the benefit of all its favorable

testimony and all the favorable inferences drawn from that testimony, " we are

satisfied that based on the record before us, no reasonable fact-finder could find




                                                                          A-5412-15T3
                                       17
defendant guilty of harassment beyond a reasonable doubt. State v. Williams,

218 N.J. 576, 594 (2014) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).

      Reversed.




                                                                        A-5412-15T3
                                     18
