RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3135-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.P.,

Defendant-Appellant.

______________________________

Submitted October 18, 2017 – Decided

Before Judges Alvarez and Currier.

On appeal from the Superior Court of New 

Jersey, Law Division, Hudson County, 

Indictment No. 13-09-1797.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Marcia Blum, Assistant Deputy 

Public Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, 

attorney for respondent (Kerry J. Salkin, 

Assistant Prosecutor, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

November 27, 2017
2 A-3135-15T3

Defendant M.P.1 appeals from his conviction following a jury 

trial. He also contends that an error in the judgment of 

conviction (JOC) requires a remand for its correction. After a 

review of the arguments in light of the record and applicable 

principles of law, we affirm the conviction, but remand for a 

correction of the JOC.

Defendant was charged in a twenty-two count indictment with 

two counts of armed burglary, N.J.S.A. 2C:18-2 (count one and 

count fourteen); two counts of possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4(d) (count two and count 

eighteen); two counts of unlawful possession of a weapon, N.J.S.A.

2C:39-5(d) (count three and count nineteen); two counts of witness 

tampering, N.J.S.A. 2C:28-5(a) (count four and count twenty); one 

count of terroristic threats, N.J.S.A. 2C:12-3(b) (count five); 

one count of criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count 

six); three counts of criminal contempt, N.J.S.A. 2C:29-9 (count 

seven, count eight, and count twenty-one); one count of armed 

robbery, N.J.S.A. 2C:15-1 (count nine); three counts of aggravated 

sexual assault, N.J.S.A. 2C:14-2(a)(count ten, count eleven, and 

count twelve); one count of sexual assault, N.J.S.A. 2C:14-2(c) 

(count thirteen); one count of aggravated assault, N.J.S.A. 2C:12-

 

1 We use initials to protect the privacy of the individuals in 

this case.
3 A-3135-15T3

1(b)(1) (count fifteen); one count of criminal restraint, N.J.S.A.

2C:13-2 (count sixteen); one count of terroristic threats, 

N.J.S.A. 2C:12-3(a) (count seventeen); and one count of stalking, 

N.J.S.A. 2C:12-10 (count twenty-two).

The criminal charges arose out of conduct that occurred in 

September and October 2012. All of the charges pertained to the 

same victim, defendant's wife, C.G.2 Counts one through six

stemmed from a September break-in incident, and counts nine through 

twenty related to a break-in and sexual assault in October.

The State severed and ultimately dismissed the contempt 

charges - counts seven, eight and twenty-one. Defendant requested 

separate trials for the two break-in incidents and the stalking 

charges. The trial court denied defendant's motion for a severance

of counts one through six, nine through twenty, and twenty-two.

The testimony at trial revealed that shortly before these 

events, defendant and C.G. had separated and defendant had moved 

out of the marital home. Defendant, however, did not wish to 

separate or divorce and was determined to return home. C.G. 

testified that defendant broke into the marital home on September 

6, 2012, while she and the three children were there. C.G. called 

the police and took the children to stay at her sister's home.

 

2 The parties were divorced during the pendency of the criminal 

case.
4 A-3135-15T3

When C.G. returned to the home on September 15, she saw

defendant in the backyard. She again reported this incident to 

the police, telling them that defendant was harassing her 

everywhere she went.

On September 26, defendant approached C.G. at their 

children's school. He told her that he wanted to return to the 

marital home. When she told him no, C.G. stated that defendant 

"g[o]t into [her] face and he said I'm going to kill you." C.G. 

called the police. The following day, C.G. observed defendant 

parked across the street from her sister's house, and she again 

filed a complaint with the police.

In October, C.G. and the children were still staying at her 

sister's home, but they returned to the marital home in the 

mornings and she remained there during the day. On October 3, as 

the children were getting ready for school at home, C.G. noticed 

that "the [bathroom] window lock was broken" and the window was 

open. She contacted the police and when they arrived, the officer

stated that she thought someone may have entered through the 

bathroom window. According to C.G., the officer did not conduct 

a full search of the home before leaving.

As she locked the door behind the officer, C.G. said 

defendant, who had been hiding in the house, attacked her. She 

stated that defendant had a knife, pulled her hair, and banged her 
5 A-3135-15T3

head against the floor. C.G. further testified that defendant 

choked her, and threatened to kill her if she did not drop all of 

the charges against him. She also stated that he sexually 

assaulted her. After C.G. agreed to drop all of the charges,

defendant took $400 out of her purse and left the home.

Defendant also testified at the trial. He admitted being at 

the children's school on September 26. Although he stated he was

emotional and angry during this interaction, he denied threatening 

C.G. Defendant also did not dispute that he parked outside C.G.'s 

sister's house, but he said he wanted to speak with his wife's

sister to ask her to convince C.G. to reunite with him. 

As to the events of October 3, defendant testified that C.G.

called him that morning because she needed $400 and asked him to 

come to the house. When defendant arrived, he said that C.G. 

invited him in and explained why she needed the money. She also

showed defendant the bathroom window and explained that she thought 

someone had attempted to break in. Defendant testified that he 

asked C.G. if he could come back home and told her he missed his 

family. He stated that the two of them became affectionate and 

eventually had consensual sexual intercourse.

According to defendant, C.G. asked him for the money, but he 

only had some of it. He then said that C.G. cursed at him, picked 

up a knife, and lunged towards him; cutting his hand and fingers 
6 A-3135-15T3

as he attempted to protect himself. They began tussling on the 

floor and defendant admitted that he punched her once in the face

while trying to defend himself. Defendant testified that after 

the altercation, they bandaged each other's hands. He gave C.G. 

the money he had, told her he would bring the rest the next day,

and then left the home. 

Defendant was tried before a jury and convicted of thirddegree assault, a lesser included offense of the charged offense 

of aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count fifteen).

3

The jury also convicted defendant of fourth-degree stalking, 

N.J.S.A. 2C:12-10, count twenty-two and acquitted him of the 

remaining seventeen counts. Defendant was sentenced to concurrent 

probationary terms on each conviction with the condition that he

serve a 364-day prison term.4 The trial court also entered a 

permanent restraining order, barring defendant from having any 

contact with his ex-wife. 

On appeal, defendant raises the following arguments:

POINT I: THE COURT HAVING ALLOWED THE TWO 

BREAK-INS TO BE TRIED TOGETHER, IT WAS 

OBLIGATED TO INSTRUCT THE JURY ON THE LIMITED 

USE OF THE OTHER-CRIME EVIDENCE, AND 

SPECIFICALLY, THAT IT COULD NOT USE THE 

 

3 The JOC indicates a conviction of count sixteen, rather than 

count fifteen.

4 Defendant was incarcerated pending trial and had 1257 days of 

jail credit.
7 A-3135-15T3

EVIDENCE OF EACH BREAK-IN AS PROOF THAT 

DEFENDANT IS A PERSON OF CRIMINAL CHARACTER 

AND THEREFORE MORE LIKELY GUILTY OF ALL OF THE 

CHARGED OFFENSES. (Not Raised Below)

POINT II: THE STALKING CONVICTION MUST BE 

REVERSED BECAUSE THE JURY DID NOT IDENTIFY THE 

INCIDENTS ON WHICH IT BASED THE CONVICTION, 

ACQUITTED DEFENDANT OF SOME OF THE PROFFERED 

INCIDENTS, AND WAS NOT REQUIRED TO FIND EACH 

INCIDENT UNANIMOUSLY. (Not Raised Below)

POINT III: THE JUDGMENT OF CONVICTION MUST BE 

AMENDED BECAUSE IT INCORRECTLY STATES THE 

VERDICTS ON COUNTS 15 AND 16.

Defendant did not raise these contentions at trial. He did 

not request either that the trial court provide a limiting 

instruction pursuant to N.J.R.E. 404(b) or a special unanimity 

instruction pertaining to the stalking charge. As a result, we 

review his arguments for plain error. See State v. Brown, 138 

N.J. 481, 535 (1994). Plain error is that which is "clearly 

capable of producing an unjust result." State v. Whitaker, 200 

N.J. 444, 465 (2009) (quoting R. 2:10-2).

Defendant argues that a Rule 404(b) limiting instruction was 

required at trial because the evidence presented to the jury of 

several break-ins was evidence of "other crimes." We disagree. 

It is not necessary to give a Rule 404(b) limiting instruction 

when multiple charged offenses in a single indictment are being 

prosecuted in a single trial. 
8 A-3135-15T3

Rule 404(b) addresses uncharged crimes, wrongs, or acts. See

State v. Rose, 206 N.J. 141, 179-80 (2011). "The threshold 

determination under Rule 404(b) is whether the evidence relates 

to 'other crimes,' and thus is subject to continued analysis under 

Rule 404(b), or whether it is evidence intrinsic to the charged 

crime[s]" before the jury at trial. Id. at 179. If evidence of 

an uncharged crime, wrong, or act is admitted during a trial, 

"limiting instructions must be provided to inform the jury of the 

purposes for which it may, and for which it may not, consider the 

evidence of defendant's uncharged misconduct." Id. at 161 

(emphasis added). 

Evidence introduced to directly prove a charged offense, 

however, is "intrinsic" and not subject to Rule 404(b). Id. at 

180-81. Here, all of the presented evidence pertained to charged

crimes for which defendant was being prosecuted in this trial.

There was no evidence of any "other crimes" and, therefore, no 

obligation to issue a limiting instruction under Rule 404(b). 

Moreover, the trial judge advised the jury in his instructions

that there were eleven separate charged offenses in the indictment 

and that "[e]ach is a separate offense named in a separate count." 

He stated that defendant was "entitled to have each count 

considered separately by the evidence which [was] relevant and 

material to [that] particular charge based on the law." See State 
9 A-3135-15T3

v. Pitts, 116 N.J. 580, 603 (1989) (stating that in the case where 

multiple charges are joined, it is "adequate" that the court 

"caution[] the jurors to deliberate separately on each of the . 

. . counts, and to return a judgment of conviction only if 

convinced that each element of the individual counts had been 

proved beyond a reasonable doubt."). 

Defendant also contends that the trial court erred in failing 

to issue a specific unanimity instruction on the stalking charge 

because the State introduced evidence of several incidents. He 

relies on State v. Parker, 124 N.J. 628, 633 (1991), cert. denied,

502 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992), for his 

assertion that, without a special instruction, there was a risk 

that a conviction occurred as the result of different jurors 

concluding that defendant committed different acts. Defendant did 

not request this charge and, therefore, we again review it for 

plain error.

In Parker, a jury convicted a teacher of official misconduct 

against children for a series of alleged acts, including making 

them watch pornography, cursing at them, and insulting them. Id.

at 631-32. On appeal, the defendant argued that because the trial 

court failed to include a specific instruction on unanimity, the 

verdict should be vacated, as it was unclear as to which act the 

jury convicted her. Id. at 632-33. The Court disagreed, holding 
10 A-3135-15T3

that because all of the alleged actions subjected the victims to 

"abusive, humiliating conduct" which was meant to be "harmful to 

their physical or mental health[,]" the allegations were 

conceptually similar, and thus, did not require a specific 

unanimity instruction. Id. at 639.

Here, the alleged conduct involved acts that were 

conceptually similar. There was sufficient evidence presented on

each incident for the jury to reasonably conclude that any of the 

five alleged incidents constituted a course of conduct amounting 

to stalking. Defendant's appearances on multiple occasions at the 

marital home, the children's school, and the home of C.G.'s sister 

were all conceptually related acts of stalking. The series of 

acts alleged in this case, committed in September and October 

2012, which the jury found constituted stalking under N.J.S.A.

2C:12-10, involved such similar and continuous behavior that no 

special unanimity instruction was required.

We also note that the trial judge explained to the jury at 

least five times that the judgment "must be unanimous as to each 

charge. . . . [which] means [that] all [jurors] must agree if the 

[d]efendant is guilty or not guilty on each charge." Defendant 

cannot demonstrate plain error here because the general unanimity 

instruction, which the trial judge repeated and explained numerous 

times during the jury charge, was sufficient. 
11 A-3135-15T3

We do agree that the JOC contains an error requiring 

correction. It should reflect that defendant was convicted on 

count fifteen, not count sixteen. We, therefore, remand to the 

trial court for the entry of an amended JOC.

Affirm in part, remand solely for the entry of a corrected 

JOC. We do not retain jurisdiction.