08192017Headline:

Merely knowing that someone would be annoyed, as opposed to having a conscious objective to annoy, is insufficient to prove a purpose to harass

Law Lessons from D.F. V. J.S., App. Div., A-5776-10T3, July 2, 2012:

Proof of a purpose to harass is an essential element of N.J.S.A. 2C:33-4. See L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). “‘A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result.’” State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)). There must be proof that a defendant’s conscious object was to “harass,” that is, “‘annoy,’” “‘torment,’” “‘wear out,’” or “‘exhaust.’” State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (quoting Webster’s II New College Dictionary 504 (1995)), certif. denied, 188 N.J. 577 (2006). Merely knowing that someone would be annoyed, as opposed to having a conscious objective to annoy, is insufficient to prove a purpose to harass. See State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).

“A finding of a purpose to harass may be inferred from the evidence presented,” and “[c]ommon sense and experience may inform that determination.” Hoffman, supra, 149 N.J. at 577. Because direct proof of intent is often absent, “purpose may and often must be inferred from what is said and done and the surrounding circumstances,” and “[p]rior conduct and statements may be relevant to and support an inference of purpose.” Castagna, supra, 387 N.J. Super. at 606; see also State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995) (“While [the appellate court] might or might not have made the same inferences, [its] role is one of determining whether the trial judge’s inferences were rationally based on evidence in the record.”).

In considering whether a party’s conduct rises to the level of harassment, the trial courts must consider any prior history of domestic violence, Pazienza v. Camarata, 381 N.J. Super. 173, 183 (App. Div. 2005) (citing N.J.S.A. 2C:25-29(a)(1)), and must “‘weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard.’” Ibid. (quoting Cesare, supra, 154 N.J. at 405). Further, consideration of prior communications and conduct is not only permitted but required in the domestic violence context. “In determining whether a defendant’s conduct is likely to cause the required annoyance or alarm to the victim, that defendant’s past conduct toward the victim and the relationship’s history must be taken into account. The incidents under scrutiny must be examined in light of the totality of the circumstances.”
[Id. at 183-84 (quoting Hoffman, supra, 149 N.J. at 585).]






print Merely knowing that someone would be annoyed, as opposed to having a conscious objective to annoy, is insufficient to prove a purpose to harass Print This Post

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

What Next?

Related Articles