NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5103-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM BURKERT,

Defendant-Appellant.

_______________________________

Submitted January 11, 2016 - Decided 

Before Judges Lihotz, Nugent and Higbee.

On appeal from Superior Court of New Jersey, 

Law Division, Union County, Municipal Appeal 

No. 6070.

Caruso Smith Picini, P.C., attorneys for 

appellant (Timothy R. Smith, of counsel; 

Steven J. Kaflowitz, on the brief).

Grace H. Park, Acting Union County 

Prosecutor, attorney for respondent 

(Meredith L. Balo, Special Deputy Attorney 

General/Acting Assistant Prosecutor, of 

counsel and on the brief).

J. Gregory Crane and Eugene Volokh (Scott & 

Cyan Banister First Amendment Clinic, UCLA 

School of Law) of the California bar, 

admitted pro hac vice, attorneys for amicus 

curiae Pennsylvania Center for the First 

Amendment (Mr. Crane and Mr. Volokh, on the 

brief).

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

APPROVED FOR PUBLICATION

March 18, 2016

APPELLATE DIVISION

March 18, 2016
2 A-5103-13T3

Following a trial de novo before the Law Division, 

defendant William Burkert, a former Union County corrections 

officer, appeals from a judgment of conviction on two counts of 

harassment, a petty disorderly offense, N.J.S.A. 2C:33-4(c). 

Defendant's conviction was based upon his creation of two 

"flyers" that contained the wedding photo of a fellow Union 

County corrections officer (the Sergeant), which was altered to 

include vulgar handwritten comments in speech bubbles. On 

appeal, defendant argues his conviction cannot stand. He 

asserts his statements during the internal affairs investigation 

were inadmissible because they were coerced and the flyers 

represented speech protected by the First Amendment, precluding 

criminal prosecution. 

Defendant's First Amendment argument is supported by amicus 

Professor Eugene Volokh, on behalf of the UCLA School of Law 

Scott & Cyan Banister First Amendment Clinic. Prosecution of 

the harassment complaints was undertaken by the Sergeant's 

private counsel, not the municipal prosecutor. See R. 7:8-7(b). 

For ease in presentation, we refer to the prosecuting party as 

the State, which urges the evidence was sufficient to uphold 

defendant's conviction beyond a reasonable doubt. 

We have reviewed the arguments of the parties, in light of 

the record and applicable law. We reverse defendant's 
3 A-5103-13T3

conviction because the evidence failed to prove he engaged in 

harassing conduct directed to the Sergeant as required by 

N.J.S.A. 2C:33-4(c). Rather, the commentary defendant added to 

the Sergeant's wedding photograph was constitutionally protected

speech. 

These facts were relied upon by the Law Division, taken 

from the three-day Elizabeth Municipal Court trial regarding 

three harassment complaints filed by the Sergeant. In addition 

to the testimony of the Sergeant, the State's witnesses included 

the internal affairs officer and another corrections officer who 

found flyers. The State also submitted various documentary 

evidence. Defendant testified on his own behalf. 

The Sergeant and defendant had been co-workers for twenty 

years. Throughout that time, "tension" and "animosity" developed 

between the two, in part because each was a member of a 

different union that represented corrections officers. 

On January 8, 2011, when he arrived at work, the Sergeant 

found a flyer in the parking garage containing his wedding photo 

on which "pornographic things" were written. The Sergeant 

testified he was "upset, angry" and "very offended and 

humiliated." He recognized the handwriting on the photo as 

defendant's. As the Sergeant proceeded to the gun locker, he 

saw defendant and defendant's brother, a fellow corrections 
4 A-5103-13T3

officer, blocking the doorway. Later during the shift, 

defendant called the Sergeant regarding a work related issue and 

mentioned the Sergeant's wife had "called defendant fat." When 

asked by the Sergeant, defendant denied any knowledge of the 

flyer found in the garage. 

On January 9, 2011, the Sergeant was given a second flyer 

by a co-worker, which was found in the locker room vestibule 

area. Although the photograph was identical to the first, the 

added message was different, and the Sergeant recognized it too 

as being written by defendant.1 On January 11, 2011, Lieutenant

Patricia Mauko found two lockers overturned and the offensive 

photos strewn on the floor. The Sergeant was not at work that

day but was involved in union business, during which a superior 

officer handed the Sergeant a copy of the second flyer stating,

"this came out the other night." The State did not establish 

defendant was working that date.

The Sergeant testified he became distraught, embarrassed, 

and feared for his safety because he believed his authority with 

inmates was undermined. He left work and never returned. He 

filed for worker's compensation, asserting a work-related 

 

1 Testimony from another corrections officer, who found 

copies of the flyer in the locker room on January 11, 2011, was 

presented. She stated on the date of that incident, the 

Sergeant was not working and she could not recall whether 

defendant was working. 
5 A-5103-13T3

psychiatric injury, and thereafter retired. In addition to the 

criminal complaints, the Sergeant filed a civil action against 

defendant. 

Union County was informed of the flyers on January 12, 

2011. An internal affairs investigation of the Sergeant's 

complaint was conducted by Sergeant Stephen Pilot from the 

County Corrections Department. Sergeant Pilot questioned 

defendant, explaining "he must give a statement or he would 

jeopardize his employment" and be subject to departmental 

discipline. In his written statement, defendant admitted to 

printing the Sergeant's wedding photograph, which was posted on 

NJ.com's Union County forum, and to adding the captions.

2 

Defendant denied making any other copies, circulating the 

flyers, or asking anyone else to do so. Defendant objected to 

the admissibility of his written statement given to Sergeant 

Pilot. The judge never formally ruled on this objection. 

Defendant testified he thought the Sergeant and he were 

friends and related past favors he had done for him. He then 

explained how over the years he noticed derogatory posts

repeatedly appearing on an NJ.com forum, which increasingly

 

2 Defendant's statement was introduced as S-3 in evidence 

during the municipal court trial; however, the document is not 

in the record on appeal. Further, advisory notices given to 

defendant prior to Sergeant Pilot's interview, marked as J-4 and 

J-5 in evidence, are not in the record. 
6 A-5103-13T3

became "personal" regarding him, his brothers, and other family 

members. Defendant checked the screenname attached to these 

posts, and found the Sergeant's wedding picture, which was also 

posted on the forum. Defendant became angry, copied the wedding 

picture at home, added the captions, and hung them in his office 

"in the union house." 

When the Sergeant asked him about the flyers on January 8, 

2011, defendant said "[n]o, that wasn't me." Examining S-1 in 

evidence, defendant agreed he wrote certain derogatory comments 

on the picture, but also identified other comments he did not

write, which were apparently added by others. He denied making 

copies of the altered photograph or distributing them in the 

garage or locker area. 

On cross-examination, defendant also denied blocking the 

Sergeant's entrance on January 8, and suggested the photographs 

may have been removed from his desk; however, he did not know

when or by whom. He also implied the Sergeant could have 

distributed the copies as he was the only person alleged to have 

seen the flyers in the parking garage. 

At the close of evidence, the judge concluded the direct 

and circumstantial evidence supported a finding defendant made 

copies of the flyers and distributed them in the garage and the 

locker room as "payback" for the derogatory internet postings. 
7 A-5103-13T3

Defendant was found guilty of harassment based on the incidents 

occurring on January 8 and 11.3 Fines and assessments were 

imposed. 

In the trial de novo before the Law Division, defendant 

argued no evidence proved beyond a reasonable doubt defendant 

distributed the flyers or intended to harass the Sergeant. 

Further, he maintained, as a matter of law, the written comments 

he placed on the photograph were protected speech and could not 

constitute criminal harassment because they were not 

specifically directed to the Sergeant. 

The Law Division judge issued a written opinion finding the 

evidence sufficiently supported defendant's conviction of 

harassment under N.J.S.A. 2C:33-4(c). He imposed the same 

fines, costs, and assessments as the municipal court. Defendant 

appeals from the June 20, 2014 order finding him guilty. 

On appeal, defendant argues:

POINT I

THE COURT SHOULD HAVE ENTERED A JUDGMENT OF 

ACQUITTAL AT THE END OF THE STATE'S CASE; 

ALTERNATIVELY, THE COURT SHOULD HAVE FOUND 

DEFENDANT NOT GUILTY AT THE END OF THE 

ENTIRE CASE AS THE STATE FAILED TO PROVE 

THAT DEFENDANT COMMITTED THE ACTS IN 

QUESTION WITH AN INTENT TO HARASS.

 

3 The municipal court disposition sheet recites the complaint 

regarding the January 9, 2011 incident was "merged to the other 

complaint."
8 A-5103-13T3

A. Defendant was entitled to a judgment of 

acquittal at the end of the State's 

case.

B. The court's Garrity[4] ruling was 

erroneous for several reasons, 

including because the court shifted the 

burden of proof on the admissibility of 

defendant's statement to defendant.

C. The court's ruling admitting the 

complainant's testimony that he 

recognized defendant's handwriting was 

erroneous.

D. The State did not prove an intent to 

harass.

POINT II

THE FIRST AMENDMENT PROHIBITS DEFENDANT'S 

CONVICTION FOR HARASSMENT FOR HIS EXPRESSION 

OF HIS OPINION OF COMPLAINANT EVEN IF 

DEFENDANT INTENDED TO HURT COMPLAINANT'S 

FEELINGS.

In our review, we "consider only the action of the Law 

Division and not that of the municipal court." State v. 

Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State 

v. Joas, 34 N.J. 179, 184 (1961)). "We are limited to 

determining whether the Law Division's de novo findings 'could 

reasonably have been reached on sufficient credible evidence 

present in the record.'" State v. Palma, 426 N.J. Super. 510, 

514 (App. Div. 2012) (quoting State v. Johnson, 42 N.J. 146, 162

 

4 Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. 

Ed. 2d 562 (1967).
9 A-5103-13T3

(1964)), aff'd, 219 N.J. 584 (2014). See also State v. Rivera, 

411 N.J. Super. 492, 497 (App. Div. 2010) ("Where a municipal 

court judgment has been appealed to Superior Court, we 

ordinarily review the Law Division judgment under a sufficiency 

of the evidence standard."). 

Initially, we find it unnecessary to review defendant's 

arguments raised in Point I, which assert statements uttered in 

the course of the internal affairs investigation were 

inadmissible. In part, our determination results because 

defendant's testimony consistently admitted the same facts he 

told Sergeant Pilot, thus obviating any dispute.

5 

We also see no reason to untangle the arguments advanced by 

defendant and countered by the State in Point II, directed to 

 

5 We take no position on the Law Division judge's reasoning 

applying the United States Supreme Court's holding in Garrity. 

The United States Supreme Court held statements made by public

employees under the threat of discharge were coerced and,

therefore, inadmissible in subsequent criminal proceedings under 

the Fourteenth and Fifth Amendments. Garrity, supra, 385 U.S.

at 497, 87 S. Ct. at 618, 17 L. Ed. 2d at 565. ("The option to 

lose their means of livelihood or to pay the penalty of selfincrimination is the antithesis of free choice to speak out or 

to remain silent."). Nor do we suggest agreement with the 

apparent determination made placing the burden to prove the 

issued statement was coerced fell to defendant, as opposed to 

the State. Compare N.J.R.E. 104(c) (placing the burden on the 

prosecution to prove the voluntariness of a defendant's 

statement), with State v. Lacaillade, 266 N.J. Super. 522, 528-

29 (App. Div. 1993) (seemingly placing the burden on defendant 

to prove the threat of termination for failure to give a 

statement was both subjectively held and objectively 

reasonable). 
10 A-5103-13T3

whether the judge erred in denying defendant's motion for entry 

of a judgment of acquittal. On this issue, defendant contends 

once Sergeant Pilot's testimony is excluded, the remaining 

evidence failed to prove defendant created and distributed the 

flyers. The State counters and urges, with or without Sergeant 

Pilot's testimony, the evidence defeated defendant's motion 

applying the standard articulated in State v. Reyes, 50 N.J.

454, 458-59 (1967) ("[V]iewing the State's evidence in its 

entirety, be that evidence direct or circumstantial, and giving 

the State the benefit of all its favorable testimony as well as 

all of the favorable inferences which reasonably could be drawn 

therefrom, a reasonable jury could find guilt of the charge 

beyond a reasonable doubt."). Due to our finding defendant's 

conduct was non-actionable protected speech, we need not 

consider this question.

We turn to our discussion on whether the evidence supports

conduct proscribed as criminal harassment under N.J.S.A. 2C:33-

4(c). For the reasons set forth below, we conclude it does not. 

Defendant was convicted on two counts of harassment under 

N.J.S.A. 2C:33-4(c), which reads: 

[A] person commits a petty disorderly 

persons offense if, with purpose to harass 

another, he:

. . . .
11 A-5103-13T3

c. Engages in any other course of alarming 

conduct or of repeatedly committed acts with 

purpose to alarm or seriously annoy such 

other person.

"[C]ourts must consider the totality of the circumstances 

to determine whether the harassment statute has been violated." 

Cesare v. Cesare, 154 N.J. 394, 404 (1998). Evaluation of 

whether facts meet this standard "must be made on a case-by-case 

basis." State v. Hoffman, 149 N.J. 564, 581 (1997).

The Supreme Court has instructed "[a] violation of N.J.S.A. 

2C:33-4(c) . . . requires proof of a course of conduct." J.D. 

v. M.D.F., 207 N.J. 458, 478 (2011). Objective proof must show 

such conduct is "alarming" or prove "a series of repeated acts

. . . done with the purpose 'to alarm or seriously annoy' the 

intended victim." Ibid. "[I]n addition to a repeated act or 

course of conduct, 'the statute requires that the victim . . . 

be the target of harassing intent.'" N.T.B. v. D.D.B., 442 N.J. 

Super. 205, 222 (App. Div. 2015) (quoting J.D., supra, 207 N.J.

at 486). 

We observe the contrast in the degree between harassment 

proscribed by subsection (a) of the statute, directed at 

communications "likely to cause annoyance or alarm," N.J.S.A.

2C:33-4(a) (emphasis added), and harassment described under 

subsection (c) requiring repeated acts accompanied by a "purpose 

to alarm or seriously annoy" the intended victim, N.J.S.A.
12 A-5103-13T3

2C:34-4(c) (emphasis added). "The Legislature has made the 

conscious choice that the level of annoyance caused by 

communications directed to a person with purpose to harass 

[under subsection (a)] need not be as serious as that required 

by subsection (c)." Hoffman, supra, 149 N.J. at 581.

The Court has also advised the harassment statute may not 

be applied to allow "unconstitutional vagueness and 

impermissible restrictions on speech," but must be limited to 

regulation of improper behavior. Ibid. This requires proof of

"a purpose to harass [a victim, which] may be inferred from the 

evidence presented" and from common sense and experience. Id.

at 577. "Although a purpose to harass can be inferred from a 

history between the parties, that finding must be supported by 

some evidence that the actor's conscious object was to alarm or 

annoy; mere awareness that someone might be alarmed or annoyed 

is insufficient." N.T.B., supra, 442 N.J. Super. at 222 

(quoting J.D., supra, 207 N.J. at 487). "Similarly, '[t]he 

victim's subjective reaction alone will not suffice; there must 

be evidence of the improper purpose.'" Ibid. (quoting J.D., 

supra, 207 N.J. at 487).

Defendant argues his creation of the vulgar flyers is not 

criminally actionable because it amounted to speech protected 

under the First Amendment. Because the speech was communicated 
13 A-5103-13T3

to others and not directed to the Sergeant, defendant urges 

criminal prosecution unconstitutionally restricts free speech, 

even if defendant intended to hurt the Sergeant's feelings. The 

amicus brief advances a similar argument, noting only speech 

directed to an unwilling recipient is restricted, not speech 

discussing an unwilling subject to an audience that includes 

willing listeners. 

"The harassment statute was not enacted to 'proscribe mere 

speech, use of language, or other forms of expression.'" 

E.M.B. v. R.F.B., 419 N.J. Super. 177, 182-83 (App. Div. 2011) 

(quoting State v. L.C., 283 N.J. Super. 441, 450 (App. Div.

1995), certif. denied, 143 N.J. 325 (1996)). A conveyed 

opinion, even if stated in crude language, is not harassment. 

L.C., supra, 283 N.J. Super. at 450. Consequently, "proscribed 

speech must be uttered with the specific intention of harassing 

the listener." Ibid. See also State v. Fin. Am. Corp., 182 

N.J. Super. 33, 36-38 (App. Div. 1981). 

In this case, the evidence does not support a finding that 

defendant's creation of the flyer found in two areas of the jail 

were directed to and invaded the privacy rights of the Sergeant. 

Also, no proof supports such acts were a direct attempt to alarm 

or seriously annoy the Sergeant. Rather, defendant's uncouth 

annotations to the Sergeant's wedding photograph that was 
14 A-5103-13T3

generally circulated amounts to a constitutionally protected 

expression, despite its boorish content, which bothered or 

embarrassed the Sergeant. 

United States Supreme Court precedent repeatedly holds 

expressions remain protected even where the content hurts 

feelings, causes offense, or evokes resentment. See, e.g., 

Snyder v. Phelps, 562 U.S. 443, 452, 131 S. Ct. 1207, 1215, 179 

L. Ed. 2d 172, 181 (2011) (quoting Connick v. Myers, 461 U.S.

138, 145, 103 S. Ct. 1684, 1689, 75 L. Ed. 2d 708, 718-19 

(1983)) ("[S]peech on public issues occupies the highest rung of 

the hierarchy of First Amendment values, and is entitled to 

special protection."); Hustler Magazine, Inc. v. Falwell, 485 

U.S. 46, 55-56, 108 S. Ct. 876, 881-82, 99 L. Ed. 2d 41, 51-53

(1988) (reviewing an advertisement parody caricature of a 

minister in an incestuous rendezvous with his mother); NAACP v. 

Claiborne Hardware Co., 458 U.S. 886, 910, 102 S. Ct. 3409, 

3424, 73 L. Ed. 2d 1215, 1234 (1982) ("Speech does not lose its 

protected character, however, simply because it may embarrass 

others."); Hess v. Indiana, 414 U.S. 105, 107-108, 94 S. Ct.

326, 327-29, 38 L. Ed. 2d 303, 305-07 (1973) (allowing 

expletives during a demonstration); Org. for a Better Austin v. 

Keefe, 402 U.S. 415, 415-20, 91 S. Ct. 1575, 1576-78, 29 L. Ed.

2d 1, 3-6 (1971) (vacating prior injunction prohibiting the 
15 A-5103-13T3

distribution of leaflets alleging a local businessman was 

engaging in "blockbusting" by spreading rumors minorities were 

moving into certain neighborhoods); Cohen v. California, 403 

U.S. 15, 20, 91 S. Ct. 1780, 1783-86, 29 L. Ed. 2d 284, 291

(1971) (permitting the wearing of a jacket bearing the words 

"Fuck the Draft"); Garrison v. Louisiana, 379 U.S. 64, 77-79, 85 

S. Ct. 209, 217-18, 13 L. Ed. 2d 125, 134-35 (1964) (rejecting 

view defamatory speech could be punished based on motives of the 

speaker, even if speaker has express malice); Terminiello v. 

Chicago, 337 U.S. 1, 2-3, 69 S. Ct. 894, 895, 83 L. Ed. 1131, 

1133-34 (1949) (reviewing criticisms of political and racial 

groups).

As is ably pointed out in the amicus brief, the altered 

photograph in question was not directed to the Sergeant. Were 

the Law Division's application of N.J.S.A. 2C:33-4(c) upheld, 

criminal harassment would curb speech ranging from a person 

submitting a Facebook post excoriating an ex-lover for cheating,

to the creation of offensive political flyers criticizing a city 

council member. Eugene Volokh, One-To-One Speech vs. One-ToMany Speech, Criminal Harassment Laws, and "Cyberstalking", 107 

NW U. L. Rev. 731, 732-34, 774 (2013) (distinguishing the 

constitutional protections applicable to "one-to-one speech" and 
16 A-5103-13T3

from those protecting "one-to-many speech"). Therefore, we 

conclude the Law Division's overbroad application is erroneous.

"Speech is often 'abusive' — even vulgar, derisive, and 

provocative — and yet it is still protected under the . . . 

Federal constitutional guarantees of free expression unless it 

is much more than that . . . . [b]ut unless speech presents a 

clear and present danger of some serious substantive evil, it 

may neither be forbidden nor penalized." People v. Dietz, 549 

N.E.2d 1166, 1168 (N.Y. 1989). "It is now clear that words must 

do more than offend, cause indignation or anger the addressee to 

lose the protection of the First Amendment." Hammond v. 

Adkisson, 536 F.2d 237, 239 (8th Cir. 1976). 

Defendant's comments were unprofessional, puerile, and 

inappropriate for the workplace. Our opinion does not address 

whether the nature of defendant's written comments, which were 

posted in his workplace, may subject him to discipline by his 

employer. However, they do not amount to criminal harassment.

Reversed.