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State v. Burkert

New Jersey Supreme Court Clarifies Criminal Harassment Statute

In State v. Burkert, decided by the NJ Supreme Court in December, 2017 , the Court was faced with an appeal of a conviction of a petty disorderly persons offense in municipal court for a violation of the harassment statute, particularly N.J.S.A. 2C:33-4(c) which makes it an offense to have engaged in a “course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy [a] person.” In this case, the defendant downloaded a wedding photograph of his co-worker and the co-worker’s wife that was posted on social media and then placed degrading and vile dialogue on copies of the photograph. Copies of those photographs were found strewn in the employee parking garage and locker room of the Union County Jail.

The appellate division of Superior Court overturned the conviction, deciding that while the act committed by defendant was infantile, it did not rise to such a level as to violate the harassment statute. The New Jersey Supreme Court agreed, holding that “(T)o ensure that N.J.S.A. 2C:33–4(c) does not exceed its constitutional reach in cases involving the prosecution of pure speech, repeated acts to “alarm” and “seriously annoy” must be read as encompassing only repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.

This case will have impact when someone is accused of violating the NJ Prevention of Domestic Violence Act based upon this section of the harassment statute, which is a very commonly made accusation. In addition, it should be kept in mind that the person making the accusation in either a pretty disorderly offense case to be heard in a local municipal court or in a civil domestic violence case in the family Part of the Superior Court of New Jersey must prove that the accused, in engaging in the alarming conduct, had a purpose to harass the victim. Often that could be inferred from the circumstances, but it is still the burden of proof of the accuser (beyond a reasonable doubt in municipal court or by a preponderance of the evidence in the civil domestic violence proceeding in Family Court) to prove this “purpose to harass.”

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