Threats To Judge Reversed In Part

The New Jersey Appellate Court affirmed  and reversed in part a conviction for terroristic threats made to a judge, holding that the threats did not relate to the COVID state of emergency

Case summary

A jury convicted defendant on several offenses, including two counts of second-degree terroristic threats, N.J.S.A. 2C:12-3(a).  The terroristic threats convictions related to statements defendant directed at the victim, who presided as the judge over defendant’s municipal court case.  Defendant was also convicted of making the threats during a declared period of national, State or county emergency, namely, the COVID-19 pandemic.
    Defendant argued the terroristic threats convictions should be reversed because the jury was not charged pursuant to State v. Fair, 256 N.J. 213 (2024), on whether a reasonable person similarly situated to the victim, in this case a municipal court judge with several years of experience as an attorney and a prosecutor, would have viewed defendant’s words as threatening violence.  Defendant also raised an as-applied substantive due process challenge to his conviction for making the threats during a declared emergency, arguing there was no nexus between his threats and the state of emergency. 
    The court reversed the terroristic threats convictions and ruled Fair has pipeline retroactivity.  Although defense counsel seemingly argued the Fair standard in summations, the trial court charged the jury under the then-existing model charges, which did not provide an objective means of measuring whether defendant’s statements constituted terroristic threats.  
     The court also held where the State seeks to enhance a third-degree terroristic threats offense by charging a defendant with making threats during a declared period of national, State or county emergency, there must be some rational relationship between the threats and the underlying emergency.  Otherwise, the conviction will be vulnerable to an as-applied challenge for vagueness on substantive due process grounds.  Reversal was warranted here because the threats defendant directed at the victim did not result from or having anything to do with the pandemic or pandemic-related restrictions, and his municipal court case.

Facts

On August 19, 2021, the victim was serving as a municipal court judge in Atlantic City and presided over a virtual proceeding involving defendant. He gave an opening statement, identified himself as the judge, explained the proceedings, assigned defendant a public defender, and adjourned the case.

On August 23, 2021, the victim received three phone messages from defendant on his law office line. Defendant identified himself as “Nate Russell.” The victim recognized defendant’s voice from court, describing it as “a very distinctive voice . . . [that was] very overly aggressive.” He described the phone messages as “very nasty, aggressive, [and] threatening” in tone, with defendant seeming to know where he lived and worked. The victim saved the recordings, and out of concern for himself and his family, called the police. The messages contained profane language and threats, including: “I will break your f[***]ing jaw mother f[***]er”; “play games with me p[*]ssy [and] get your f[***]ing neck broke”; “when I catch you in Northfield [I will] beat your a[**]”; and “I will break your f[***]ing jaw . . . p[*]ssy a[**] n[*****].” Defendant’s threats included repeated vulgarity and sexually explicit language, telling the victim to “suck [his] d[*]ck,” and “[g]ive me a call, p[*]ssy. I’m not f[***]ing p[l]aying no games . . . I’ll come to your motherf[***]ing office in Northfield, how is that. Either way, motherf[***]er, I’m going to see you.”

The following day, defendant left two additional voicemail messages on the victim’s law office line. Referring to the August 19 hearing, defendant continued to threaten the victim by mentioning both Northfield and the victim’s hometown, using vulgar and sexually explicit language, stating, “[y]ou better motherf[***]ing move out of [your] motherf[***]ing [hometown,]” and “I will have my foot in your motherf[***]ing a[**].”

Defendant also called the Egg Harbor Municipal Court to reach the victim. He identified himself by name, became “irate”, and then yelled and cursed when the court administrator would not let him speak to the victim. Defendant also left two callback numbers, which were later confirmed as his. After receiving three such calls, the court administrator filed a judiciary incident report out of concern for the victim’s safety.

The victim testified the calls were “very frightening and scary.” He described defendant’s references to where he lived and his Northfield office as 3 A-0022-23 “extremely alarming.” By the time the third message was left, he “felt scared[ and] alarmed,” and “his adrenalin[e] got up there pretty high. [He] was anxious . . . . [Defendant] said he was . . . going to harm [him,]” and he “felt frightened, especially for [himself] and [his] family.”

After calling the police, the victim called his wife. She was driving home with their children and other relatives in the car. The victim asked her to drive around for an hour until he could get home to meet her and the police. His wife testified she was scared and worried. When police met the victim at his home, he appeared “visibly shaken and scared.” The police instituted safety precautions for two months, including having the victim change his routine to avoid encountering defendant.

After defendant was charged, the calls stopped temporarily but then resumed when the victim received approximately thirteen more calls from defendant over three days in April 2022. This time, defendant called the victim’s personal cell phone, which he obtained in discovery.

When the victim answered the phone, he recognized defendant’s voice and hung up. On one occasion, the victim’s wife recorded the call. The victim testified he felt “harassed,” “threatened,” and “alarmed.” He “couldn’t believe [defendant] got [his] cell phone number and [that] he was calling [him] and wouldn’t stop.” Although he had experience with frustrated litigants, nothing like this had ever happened to him; he had never been called or physically threatened, either as a judge or when he was a municipal prosecutor.

The court

We hold Fair has pipeline retroactivity because doing so benefits the defense, the State, and our justice system. This outweighs the State’s reliance in this and other prosecutions on the old rule. We are not under the impression that there are many cases in the proverbial pipeline to begin with. Regardless, they would benefit from the applicability of Fair. For these reasons, we reverse defendant’s terroristic threats convictions in counts one and two, and remand for further proceedings consistent with this opinion.

Reasoning

defendant’s convictions under N.J.S.A. 2C:12-3(a) cannot stand as second-degree convictions because there was no nexus between his alleged terroristic threats and the COVID-19 state of emergency. The threats defendant directed at the victim did not result from or have anything to do with the pandemic or pandemic-related restrictions, and his underlying municipal court case. We can easily envision a scenario where the State prosecutes a defendant for making terroristic threats against someone like the victim here by threatening to spread the COVID-19 virus by biting, spitting, coughing, or otherwise deliberately spreading the virus in some form either purposely or in reckless disregard of the risk of causing such terror or inconvenience. That did not occur here. Instead, defendant was prosecuted for making threats during a state of emergency, which had nothing to do with the legislative purpose of the degree-of-offense enhancement enacted by the Anti-Terrorism Act.

Going forward, we hold that when the State seeks to prosecute a defendant under N.J.S.A. 2C:12-3(a) for making terroristic threats during a declared period of national, State, or county emergency, there must be some rational relationship between the terroristic threats and the underlying emergency. Otherwise, the conviction will be vulnerable to an as-applied challenge for vagueness on substantive due process grounds.

Recusal

We reject the argument raised by defendant in point III, which asserts the entire Atlantic County judiciary should have been recused sua sponte, on account of the victim’s status as a municipal court judge. This claim was not raised before the trial judge and our court rules require recusal motions to be put to the trial court in the first instance “stating the reasons therefor.” R. 1:12-2.

Other than the fact the victim was a municipal court judge in Atlantic County, there are no facts supporting the recusal of the county’s entire judiciary. The victim’s service as a municipal court judge is simply not enough to warrant recusal. Defendant received a fair trial. Following defendant’s logic would weave an untangle-able web of intra-state transfers of cases based upon supposition alone. This argument lacks merit. R. 2:113(e)(2).

(Mike Frisch)