SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6767-93T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEPHEN ROTH,
Defendant-Appellant.
____________________________________
Argued February 26, 1996 - Decided March 29,
1996
Before Judges Havey, D'Annunzio and Conley
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County.
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Susan L. Reisner, Public Defender of New
Jersey, attorney; Mr. Kirsch, of counsel and
on the brief).
Arthur S. Safir, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General of New Jersey,
attorney; Mr. Safir, of counsel and on the
brief).
Appellant Stephen J. Roth, submitted a pro se
supplemental brief.
The opinion of the court was delivered by
HAVEY, P.J.A.D.
The principal question raised by this appeal is whether
defendant's threat to file a motion to set aside a sheriff's sale
unless the successful bidder paid him $2,000 constitutes
attempted theft by extortion under N.J.S.A. 2C:20-5g. We
conclude that it does and accordingly affirm defendant's
conviction.
On December 15, 1993, an Ocean County Grand Jury returned
Indictment No. I-93-12-01024, charging defendant with second-degree theft by extortion, contrary to N.J.S.A. 2C:20-5g.
Defendant's motion to proceed pro se was denied on July 5, 1994.
After a four-day jury trial, which commenced on July 11, 1994,
defendant was found guilty of second-degree attempted theft by
extortion. Thereafter, he was sentenced to a custodial term of
seven years.
In his appellate and pro se supplemental briefs, defendant
advances four central contentions: (1) defendant's business
tactics, issuing legitimate threats to sue to encourage the
settlement of a legal matter, are not proscribed by N.J.S.A.
2C:20-5g; (2) N.J.S.A. 2C:20-5g is unconstitutionally vague on
its face and as applied to defendant; (3) the trial judge
improperly denied defense counsel's request to supplement the
model jury instruction with relevant portions of the 1971
CommentarySee footnote 1; and (4) the trial judge erred by refusing to permit
defendant to exercise his Sixth Amendment right of self-representation.
The State adduced evidence at trial that on June 30, 1992,
Thomas Bergstrom, the lone participant in a sheriff's sale,
purchased property formerly owned by Maureen Perry for $32,000.
According to Ocean County Undersheriff William Sommeling,
defendant attended this sale, but did not bid on the property.
Sommeling testified that at no time before, during or after the
purchase did defendant voice any concern or objection regarding
the "conduct" of the sale.
Bergstrom testified that defendant cornered him following
the auction and threatened to file a motion to set aside the sale
if defendant was not allowed "to get involved." Interpreting
defendant's remarks as a demand for money in exchange for an
agreement not to file his impending action, Bergstrom admonished
defendant to "get out of his face." On July 21, 1992, defendant
successfully moved to set aside the sale.See footnote 2
On August 18, 1992, Bergstrom and defendant attended an
Ocean County sheriff's sale of property owned by Julia Badolato.
Mr. Bergstrom submitted the highest bid, $19,700, on behalf of
his father, Carl, while defendant again declined to bid.
Toward the end of August 1992, defendant began phoning
Bergstrom's office, but was unable to communicate with him
directly until September 1, 1992. In the meantime, Bergstrom
informed the Ocean County Undersheriff that defendant was
attempting to reach him and expressed a concern that defendant
might try to exact money from him by threatening to undo the
Badolato sale. On August 31, 1992, the County Prosecutor's
Office authorized Bergstrom to record his phone conversations
with defendant.
On September 1, 1992, Bergstrom received a telephone call
from defendant, during which the men agreed to convene at noon on
the grounds of Ocean County Park in Lakewood to discuss the
Badolato sale. Bergstrom was outfitted with a recording device
for the meeting. At the park rendezvous, defendant demanded
$2,000 for a promise not to pursue a motion to set aside the
sale.See footnote 3 Bergstrom acceded to defendant's $2,000 demand, and
thereafter the men arranged a 3:00 p.m. meeting at the Ocean
County Library to exchange money and memorialize the agreement.
At the library, defendant pocketed Bergstrom's cash and signed a
receipt acknowledging payment. Upon exiting the building,
defendant was arrested by detectives from the Ocean County
Prosecutor's Office.
Defendant first argues that his motion for a judgment of
acquittal at the end of the State's case should have been
granted. He argues that, considering the State's proofs most
indulgently, a reasonable jury "could not have found every
element of theft by extortion was proven beyond a reasonable
doubt." See State v. Reyes,
50 N.J. 454, 459 (1967).
N.J.S.A. 2C:20-5 reads in pertinent part:
A person is guilty of theft by extortion
if he purposely and unlawfully obtains
property of another by extortion. A person
extorts if he purposely threatens to:
. . . .
g. Inflict any other harm which would
not substantially benefit the actor but which
is calculated to materially harm another
person.
The State does not dispute that defendant, like any other member
of the public, had a right to institute suit to invalidate the
Badolato sale. See R. 4:65-5.See footnote 4 Instead, it focuses on the
narrow question of whether defendant stood to "substantially
benefit" by challenging the sale.
Defendant reasons that, as a matter of law, he substantially
benefitted by offering to "settle" the Badolato matter. As a
"real estate wheeler-dealer," he claims he profited by "playing
[economic] hardball" to promote fair competition in the real
estate marketplace and to keep competitors, such as Bergstrom, in
line. Moreover, at oral argument defense counsel suggested that
if defendant had actually filed a motion to set aside the sale,
defendant's financial interests would have been well-served
because a resale would have provided him with yet another
opportunity to bid on the property. We reject these arguments.
Fostering fair competition among members of the real estate
foreclosure and investment community is a concept which is far
too abstract to constitute a substantial benefit under this
statute; it bespeaks of a societal goal, not personal gain.
Allowing such a tenuous advantage to fulfill the substantial
benefit requirement would simply eviscerate the statute.
Defendant's classification of Bergstrom as a business
competitor and his assertion that he could have profited by
bidding at a resale are similarly unavailing. Bergstrom
ultimately purchased the Badolato tract for $19,700, a sum which
included a mandatory $2,000 down payment. Recordings of the
conversations between defendant and Bergstrom reveal that
defendant was experiencing a shortage of investment capital at
the time of the Badolato sale. Thus, there was ample evidence
from which the jury could have concluded that, had defendant
voided the initial sale, he would not have substantially
benefitted from a resale because he did not have the financial
wherewithal to bid in good faith. Contrary to defense counsel's
insinuation at oral argument, there is scant evidence on the
record to show that defendant sought to finance this land.
Defendant merely noted in a phone conversation with Bergstrom
that he lined up "some good people" to support his endeavor.
Because this declaration was both brief and equivocal, any
rational trier of fact could have dismissed it as pure posturing.
See State v. Brown,
80 N.J. 587, 592 (1979) (citing Jackson v.
Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781, 2789,
61 L.Ed.2d 560,
573 (1979)).
The Criminal Code does not define "substantial benefit," nor
are there any New Jersey decisions interpreting the phrase.
However, the hypotheticals given in the 1971 Commentary, supra,
§ 2C:20-5 at 229, clearly epitomize the type of behavior intended
to be outlawed under subsection g. The Commission notes that
N.J.S.A. 2C:20-5g was intended to be a "catch-all" provision,
criminalizing "other threats" not specifically covered by
preceding subsections:
Examples of situations which might occur and
not be covered in other Subsections are:
(a) the foreman in a manufacturing plant
requires the workers to pay him a percentage
of their wages on pain of dismissal or other
employment discrimination; (b) a close friend
of the purchasing agent of a great
corporation obtains money from an important
supplier by threatening to influence the
purchasing agent to divert his business
elsewhere; (c) a professor obtains property
from a student by threatening to give him a
failing grade.
[1971 Commentary, supra, §2C:20-5g at 229.]
Aside from receiving the extortionate payments demanded of their victims, the issuers of the threats in the above examples would not substantially benefit by carrying out their respective threats; the professor would not be rewarded by punishing a
student with an undeserved failing grade, and the interests of
the foreman would not be advanced by terminating or
discriminating against an innocent employee. The same holds true
here. In the instant case, the jury could have rationally
concluded that because defendant had no funds, he would have been
unable to bid in good faith on the subject property if the
Badolato sale had been vacated. Also, defendant had no
protectable interest, legal or otherwise, in the property, which
could have been vindicated if the sale had been voided.
Moreover, his offer to settle the matter did not require him to
surrender any property or economic interest in the parcel as
consideration for the $2,000 payment. In short, the threat to
file suit was calculated solely to materially harm Bergstrom.
The only "substantial benefit" arising out of the transaction
inuring to defendant was the $2,000 payment he exacted from his
victim.
Defendant alternatively contends that by couching his threat
in the form of "an offer to settle a legitimate lawsuit," he
circumvents the substantial benefit requirement of the statute,
since the 1971 Commentary to N.J.S.A. 2C:20-5 exempts "to sue"
from the "list of particular harms which must be threatened in
order to come within the offense of extortion." 1971 Commentary,
supra, § 2C:20-5g at 227.
The 1971 Commentary acknowledges that a law which included
every threat made for the purpose of obtaining property would
encompass a significant portion of "accepted economic
bargaining." Ibid. (emphasis added). Therefore, certain
commercial or economic menaces have been excluded from the
purview of the statute, such as threats
to breach a contract, to persuade others to
breach their contracts, to infringe a patent
or trade mark, to change a will or persuade
another to change a will, to refuse to do
business or to cease doing business, to sue,
to vote stock one way or another. For the
most part these are situations in which a
private property economy must tolerate
considerable "economic coercion" as an
incident to free bargaining. Civil remedies
are usually adequate to deal with abuse of
the privilege.
[Id. at 227-28 (emphasis added).]
We reject the notion that the 1971 Commentary merely
requires a threat to assume the guise of a lawsuit to bypass the
statute's mandate of a substantial benefit. In our view, before
exempting threats otherwise considered illegal under this
provision, the Code drafters intended an economic or commercial
nexus to exist between the actor who utters these "protected"
threats and the underlying transaction.
Here, there was no economic or commercial link between
defendant and the underlying real estate transaction. He
possessed only the bare right to file a motion to set aside the
sheriff sale; without more, the thrust of N.J.S.A. 2C:20-5
precludes him from bluffing or threatening to exercise that right
to garner a lucrative "settlement."
This situation also stands in marked contrast to a
hypothetical set of facts utilized by defendant at trial. His
counsel analogized defendant's threat to file the set-aside
motion to a baseball team owner's threat to relocate his team if
the owner could not secure a new, publicly-financed stadium.
Assuming this owner lacked the financial wherewithal to follow
through on his "bluff," defense counsel questioned why such a
person would not also be in violation of N.J.S.A. 2C:20-5g. The
answer lies in the previously cited paragraph of the Commentary
which carves out an exception for certain threats which "would
embrace a large portion of accepted economic bargaining." 1971
Commentary, supra, § 2C:20-5g at 227. The hypothetical team
owner would be entitled to this exemption because, apart from
demanding money in exchange for a promise not to engage in such
"hardball" bargaining tactics, a natural economic or commercial
nexus exists between the owner of the ball club and negotiations
surrounding the movement of the franchise.
We also reject defendant's contention that N.J.S.A. 2C:20-5g
is both unconstitutional on its face and as applied to defendant.
"A statute is facially vague only if it is vague in all its
applications, while a statute is vague as applied only if it is
vague when applied to the circumstances of a specific case."
State v. Maldonado,
137 N.J. 536, 563 (1994). Addressing
defendant's facial challenge, we conclude the statute is not "so
vague that persons `of common intelligence must necessarily guess
at its meaning and differ as to its application.'" Town
Tobacconist v. Kimmelman,
94 N.J. 85, 118 (1983) (quoting
Connally v. General Constr. Co.,
269 U.S. 385, 391,
46 S.Ct. 126,
127,
70 L.Ed. 322, 328 (1926)). In our view, the terms
"purposely threatens," "substantially benefit" and "materially
harm" are plain and unambiguous; they "would not send the average
citizen scrambling for a dictionary."See footnote 5 State v. Afanador,
134 N.J. 162, 171 (1993).
We also conclude that the statute is constitutional as
applied to defendant because, accepting as true the State's
evidence concerning defendant's actions, "the statute clearly
extends to the acts that the State alleges defendant committed."
Id. at 165. Indeed, the facts reveal that defendant had ample
notice and warning that his behavior would subject him to
criminal liability. At various stages of his "negotiations" with
Bergstrom, defendant exhibited distinct signs of apprehension.
He was wary of discussing terms of a "settlement" by telephone,
repeatedly asked Bergstrom if he was "wired up," and ultimately
frisked Bergstrom in search of a recording device during their
Ocean County Park meeting. Overall, this manifestation of
paranoia establishes that defendant was sufficiently aware that
his conduct crossed the line between legitimate and illegitimate
economic coercion.
Because we have concluded that the language in the 1971
Commentary concerning "protected" threats is inapplicable to
defendant's actions, we reject his contention that the trial
judge improperly denied his request to supplement the jury charge
with the Commentary language. We find no fault in the trial
judge's decision to charge the jury, inter alia, with the
language of the Model Jury Charge for criminal attempt and
N.J.S.A. 2C:20-5g. Model Jury Charges (Criminal) § 2C:20-5. We
also approve of the trial judge's decision to instruct the jury
regarding sheriff's sales so it could evaluate defendant's
actions in a more meaningful light. The judge provided the jury
with a thorough explanation of the questions it had to determine,
complete with an explanation of the law and how it was to be
applied to the material facts of the case. State v. Concepcion,
111 N.J. 373, 379 (1988). Since the jury instruction was
accurate and understandable, it did not deprive defendant of his
right to a fair trial. Ibid.
Lastly, defendant challenges the trial judge's decision to
deny his application to proceed pro se. Defendant filed a motion
to dismiss his assigned counsel, an assistant deputy public
defender, and to continue pro se after learning from defense
counsel in mid-June 1994 that his trial had been moved up from
the Fall 1994 to early July 1994. In a hearing held one day
before his scheduled July 6, 1994, trial date, defendant for the
first time articulated his reasons for discharging his attorney:
counsel lacked the time to develop a solid defense; neglected to
issue subpoenas and to file motions to quash the indictment and
suppress certain evidence; and failed to "grasp" the facts of the
case on account of counsel's unfamiliarity with sheriff sales.
Defendant claimed that he could procure twenty witnesses to "shed
light on [the case]," whereas counsel, he alleged, failed to
compile a witness list. Defendant also maintained he would seek
an adjournment to uncover possible incriminating information
regarding Bergstrom.
We find that defendant lacked good cause for substituting
counsel and continuing pro se because defendant's grievances were
either specious or involved disagreement over defense strategy,
which our Supreme Court has held, "does not rise to the level of
good cause." State v. Crisafi,
128 N.J. 499, 518 (1992) (citing
United States v. Padilla,
819 F.2d 952, 956 (10th Cir. 1987)).
After concluding that the balance of defendant's complaints were
unsubstantiated, the trial judge praised the assistant deputy
public defender as "a very capable and experienced trial attorney
who has always put his client's interests first." Moreover,
defense counsel was prepared to commence jury selection the
following day. He assured the trial judge he spent a
considerable amount of time preparing for defendant's case and,
contrary to defendant's claim, utilized motions he believed were
appropriate for the defense.
Moreover, the application to proceed pro se may have been
nothing more than an attempt to postpone the trial. In light of
the untimeliness of defendant's application, the trial judge
ruled that defendant presented no legitimate basis upon which to
delay the proceedings. See State v. Buhl,
269 N.J. Super. 344,
364 (App. Div.), certif. denied,
135 N.J. 468 (1994).
Implicitly, the judge rejected, and properly so, defendant's
eleventh-hour contention that counsel's alleged failure to
apprise him of his new trial date constituted "good cause" to
discharge his attorney and proceed pro se. Thereafter, the judge
suggested that defendant had possessed the right to self-representation at least up until two months prior to trial when
he chose to apply for and was granted a public defender. With
two cases scheduled for trial in the following three weeks, the
judge refused to muddle his docket on account of defendant's
last-minute request.
"The right of an accused to represent himself, with or
without the assistance of counsel, is not so absolute that it
must be recognized when to do so would disrupt the business of
the court . . . ." State v. White,
86 N.J. Super. 410, 418-19
(App. Div. 1965); see also Crisafi, supra, 128 N.J. at 517; State
v. Gallagher,
274 N.J. Super. 285, 297 (App. Div. 1994); Buhl,
supra, 269 N.J. Super. at 362-63; State v. Slattery,
239 N.J.
Super. 534, 542-543 (App. Div. 1990). A defendant cannot
participate in a "cat and mouse game," id. at 542, by placing the
judge in the "unenviable dilemma" where, in managing the affairs
of the court, he appears to be arbitrarily depriving the accused
of counsel. Buhl, supra, 269 N.J. Super. at 363.
A defendant who desires to exercise his right to proceed pro
se must do so with reasonable diligence. Id. at 362; Slattery,
supra, 239 N.J. Super. at 542-43; State v. Furguson,
198 N.J.
Super. 395, 401 (App. Div.), certif. denied,
101 N.J. 266 (1985).
The efficient administration of justice without unreasonable
delay has compelling force and effect. Therefore, trial courts
may tightly control their own calendars so that the assignment of
cases cannot be manipulated by wily defendants. Ibid.
The trial judge also properly denied defendant's application
on the ground that he sought a de facto co-counsel arrangement
with the assistant deputy public defender. See State v. Long,
216 N.J. Super. 269, 275 (App. Div. 1987); State v. McCleary,
149 N.J. Super. 77, 78-80 (App. Div.), certif. denied,
75 N.J. 26
(1977). Defendant commented that he and the public defender
would make a magnificent "team," conceding, "I don't know all the
law, but I'm a pretty good talker." In fact, defense counsel,
apparently wary that his client's motion constituted a well-disguised plea for hybrid representation, cautioned that "co-counseling [was] not an alternative."
Although a defendant has the constitutional right to proceed
with or without counsel under Faretta v. California,
422 U.S. 806, 819,
95 S.Ct. 2525, 2534,
45 L.Ed.2d 562, 572 (1975), the
right to hybrid representation may be foreclosed and is to be
avoided wherever possible. McCleary, supra, 149 N.J. Super. at
78-80; see also Long, supra, 216 N.J. Super. at 275.
In his eighty-eight page pro se supplemental brief,
defendant raises the following additional legal arguments:
POINT IV - PROSECUTOR MERCUN'S INSULTING
REMARKS DELIVERED BOMBASTICALLY, WAS TO MY
GREAT PREJUDICE, AND DENIED MY RIGHT TO A
FAIR TRIAL; ALSO THE PROSECUTOR'S RUDENESS,
REMARKS, ACTIONS, AND DEMEANOR AT THE GRAND
JURY TAINTED THE GRAND JURY PROCESS.
POINT V - A LONE BIDDER (BERGSTROM) WHO
IS ENGAGED IN CONSTRCTIVE (sic) FRAUD AT A
SHERIFF SALE, OR TAKES ADVANTAGE OF THAT
CONSTRUCTIVE FRAUD, SHOULD NOT CLAIM
EXTORTION WHEN ONE (MYSELF) IS DAMAGED BY
THAT CONSTRUCTIVE FRAUD, AND REQUESTS
COMPENSATION. UNDERSHERIFF SOMMELING AND THE
LONE BIDDER, THE TWO PRONGS OF CONSTRUCTIVE
FRAUD, WERE THE MAJOR WITNESSES AT THE TRIAL
AND GRAND JURY.
POINT VI - THE COURT REFUSED TO ALLOW THE
DEFENDANT TO BRING TO THE JURY'S ATTENTION
ISSUES CONCERNING MOTIVE OF STATE'S WITNESSES
TO SHOW BIAS OR THEIR CONSTRUCTIVE FRAUD.
THE COURT'S REFUSAL DENIED DEFENDANT A FAIR
TRIAL.
POINT VII - THE DEFENDANT WAS WRONGFULLY
DENIED HIS REQUEST FOR A CHANGE OF VENUE.
HIS CONSTITUTIONAL RIGHT TO A FAIR AND
IMPARTIAL TRIAL WAS MANIFESTLY DENIED.
POINT VIII - DUE TO INADEQUATE
REPRESENTATION DEFENDANT'S CONVICTION MUST BE
OVERTURNED AND A NEW TRIAL GIVEN. THERE WAS
NO ADVERSARIAL BALANCE.
POINT IX - THE SENTENCE OF THE COURT IS
MANIFESTLY EXCESSIVE. THE SENTENCE IS UNDULY
PUNITIVE.
POINT X - MY NAMED VICTIM, THOMAS
BERGSTROM WAS NOT THE REAL PARTY OF INTEREST,
AND DID NOT LEGALLY HAVE THE CAPACITY;
COMPETENCY; OR STANDING TO BE HARMED. JUDGE
TURNBACH WRONGFULLY AMENDED THE INDICTMENT
AND ALLOWED BERGSTROM'S FATHER TO BE
CONSIDERED THE VICTIM AND THE ONE HARMED AT
MY TRIAL. JUDGE TURNBACH CURED THE FAULTY
INDICTMENT BY CREATING AN AGENCY RELATIONSHIP
FOR THE BERGSTROM'S IMPROPERLY.
POINT XI - THE STATED HARM AT THE GRAND
JURY WAS WRONGFULLY CHANGED BY THE PROSECUTOR
AND BY THE JUDGE, THIS CASUAL AMENDING OF THE
GRAND JURY PROCESS WAS WRONGFUL AND
PREJUDICIAL. PLUS, ANTICIPATED, UNREALIZED
PROFITS ON THE FUTURE SALE OF REAL ESTATE,
SHOULD NOT QUALIFY AS SUFFICIENT HARM FOR
THIS SECOND DEGREE CRIME. THE LONE BIDDER'S
VOIDABLE INTEREST COULD BE INFRINGED.
POINT XII - CUMULATIVE ERROR. EVEN IF NONE
OF THE GROUNDS SET FORTH ARE OF THEMSELVES
SUFFICIENT TO WARRANT A REVERSAL, THE
CUMULATIVE EFFECT OF ALL THE ERRORS, IN ITS
AGGREGATE, SHALL ENTITLE DEFENDANT TO A NEW
TRIAL.
We conclude that these contentions and defendant's
supporting arguments are clearly without merit. R. 2:11-3(e)(2);
see also R. 3:7-4; Biunno, Current N.J. Rules of Evidence,
comment 1 to N.J.R.E. 607 (1995) (citing State v. Hutchins,
241 N.J. Super. 353, 361 (App. Div. 1990)); Strickland v. Washington,
466 U.S. 668, 694,
104 S.Ct. 2052, 2068,
80 L.Ed.2d 674, 698,
reh. denied,
467 U.S. 1267,
104 S.Ct. 3562,
82 L.Ed.2d 864
(1984); State v. DiFrisco,
137 N.J. 434, 474 (1994); State v.
O'Donnell,
117 N.J. 210, 215-16 (1989); State v. Ghertler,
114 N.J. 383, 388 (1989); State v. Roth,
95 N.J. 334, 364-66 (1984);
State v. Hodge,
95 N.J. 369, 379-80 (1984); State v. Seaman,
114 N.J. Super. 19, 32 (App. Div. 1971), cert. denied,
404 U.S. 1015,
92 S.Ct. 674,
30 L.Ed.2d 662 (1972).
Affirmed.
Footnote: 1II New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission, § 2C:20-5g, commentary at 228 (1971) (1971 Commentary). Footnote: 2When the Perry parcel was resold on September 28, 1993, Bergstrom was apparently outbid by The First Federal Deposit Insurance Co. (receiver for the First National Bank of Toms River) which acquired the property for $35,000. The facts of the Perry sale were introduced at trial solely under N.J.R.E. 404(b) and were not the subject of an indictment. Footnote: 3Apparently, the notice advertising the sale of the Badolato parcel was defective; the address publicized was 95 Wells Mills Road, but the address recorded on the face of the deed was 147 Wells Mills Road. Footnote: 4The fact that defendant had a "lawful" right to file suit is not dispositive. The 1979 amendment added "and unlawfully" to the first sentence of the statute. See L. 1979, c. 178. As noted by Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:20-5 (1995), "the meaning of the word `unlawfully' is entirely unclear. It is not intended to limit the section to threats to engage in unlawful behavior[,]" since many of the threats criminalized by the statute "would be perfectly appropriate if made without a demand for property." See also 1971 Commentary, supra, § 2C:20-5g at 228 ("The threatened harm need not be `unlawful.'"). Cannel observes: "The additional phrase seems merely to sound a note of caution. The legislature appears to have been alerting the courts to the fact that this section can easily be read too expansively to cover situations in which people are acting in ways tolerated in commercial and personal life." Cannel, supra, comment 3 on N.J.S.A. 2C:20-5. Footnote: 5Courts in other jurisdictions have rejected such vagueness arguments and upheld the constitutionality of similar extortion statutes. See Stein v. Virginia, 402 S.E.2d 238, 240-42 (Va. Ct. App. 1991); Moore v. Tennessee, 519 S.W.2d 604, 608 (Tenn. Crim. App. 1974).