This section contains the nature of the case and procedural background.

H.E.S. (W) and her husband, J.C.S. (H), had been married for eighteen years. H had occupied a separate bedroom since November 1999. W had filed for divorce in June 2000 but H may not have been served until August 2000. Between August 17 and 19, 2000, W and H engaged in numerous altercations resulting in both parties filing domestic violence complaints. As a result of W's complaint, a TRO was entered against H with a final hearing scheduled for August 24, 2000. H was served the day before, and H's counsel requested a continuance. The court denied the motion and proceeded with trial on both complaints, dismissing H's complaint after finding the evidence was insufficient. W. testified that on August 18, 2000, before she left for church, H told W that if she refused to drop the divorce complaint, he would 'destroy' her. When W returned from church and was unable to open the garage door, she and the children went to the front door where H met them. H let the girls into the house and then told her, '[H.E.S.], it's over. You're doomed. I will destroy you. The only way you're going to get out of this marriage is by death.' She then entered the house, where he allegedly proceeded to 'rant and rave,' threatening to press charges against her brothers and to have her parents incarcerated. W also testified about prior incidents of domestic violence that were not mentioned in her complaint. W then produced a 'microchip' and explained that the 'microchip' was a camera and microphone she had found hidden in a picture in her bedroom. Police, who came to the house took photographs of the device and the wiring leading from W's bedroom, over H's office, to the attic, and finally into a VCR in H's bedroom. H objected to having to defend against charges of domestic violence that were not included in the complaint and of which he had no notice. However, the trial court concluded that 'these are summary matters. The trial court declined to consider many of W's allegations of prior domestic violence because they were too remote or did not indicate a pattern of violence. The trial court found that the verbal 'threat' allegedly made by H was not domestic violence but rather was 'simply the type of vindictiveness that ... precedes a divorce.' The court held that H's placement of the camera and microphone did constitute domestic violence. Those acts constituted harassment and also stalking because it's repetitive activity. The trial court issued a final restraining order (FRO) against H. The Appellate Division held that the trial court did not violate H's due process rights when it based its finding of domestic violence on incidents not alleged in the complaint. The Appellate Division held that H's behavior constituted stalking but not harassment. The applicable provision of the harassment statute requires that a defendant's purpose is 'to alarm or seriously annoy.' H intended the camera to remain hidden. H appealed.

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