State of New Jersey v. M.F.L.

• Court: New Jersey Superior Court Appellate Division
• Decided: May 30, 2024
• Docket: A-3372-21
• Status: Published

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3372-21

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION May 30, 2024 Plaintiff-Respondent, APPELLATE DIVISION

v.

M.F.L.,1

Defendant-Appellant. _________________________

Submitted May 1, 2024 – Decided May 30, 2024

Before Judges Currier, Firko, and Vanek.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 18- 02-0068.

M.F.L., appellant pro se.

Renée M. Robeson, Hunterdon County Prosecutor, attorney for respondent (Joseph B. Paravecchia, First Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

FIRKO, J.A.D.

1 We identify defendant by initials to protect the identities of the victims of sexual assault and the family. R. 1:38-3(c)(12). Defendant M.F.L., who is self-represented, appeals from a March 23,

2022 Law Division order denying his motion to modify his judgment of

conviction (JOC) and Sex Offender Restraining Order (SORO) issued pursuant

to Nicole's Law, N.J.S.A. 2C:14-2 and 2C:44-8. The SORO prohibited

defendant from having any contact with the two victims, his now ex-wife,

A.M., and their two minor biological children. The motion judge, who was

also the sentencing judge, applied the framework established in Carfagno v.

Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), in denying defendant's motion.

After reviewing the record in light of the governing principles of law, we

conclude it is appropriate to use the Carfagno analysis when considering an

application to modify or vacate a SORO. Because defendant did not present

the judge with sufficient information to properly undertake the analysis, the

motion judge correctly denied the application. We affirm.

I.

On November 2, 2018, defendant was sentenced to a seven-year term of

imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2,

following his guilty plea to two counts of second-degree sexual assault in

violation of N.J.S.A. 2C:14-2(b).2 The victims were defendant's two step-

2 According to the New Jersey Department of Correction's website, defendant was released on December 23, 2023, after the filing of the notice of appeal.

A-3372-21 2 daughters—now adults—who resided with defendant, A.M., and their two

minor biological children, the victims' half-siblings. The record does not

reflect the biological children's dates of birth or ages.

At the sentencing hearing, the trial court issued a SORO, which

provided:

[D]efendant is permanently banned from the residences, schools, and places of employment of the victims, as well as those of his [ex-]wife and biological children. He is further prohibited from having any form of contact with the victims or others identified in the order, making or causing anyone else to make harassing communications to the victims or others identified in the order.

On August 18, 2021, while still incarcerated, defendant filed a motion to

modify the JOC and the SORO to allow him to have contact and visitation with

his two minor biological children through a third party. In support of his

motion, defendant argued there were changed circumstances warranting relief

because the victims were now adults and no longer resided with his two

biological children. Defendant also argued that Nicole's Law does not require

an individual charged or convicted of a sex offense to surrender their parental

rights.

In a letter, the prosecutor, through its office of Witness Advocacy

Coordinator, contacted A.M. regarding her position on defendant's application.

According to the Coordinator, A.M. expressed her concern for the minor

A-3372-21 3 children's safety in light of defendant's "criminal conduct and victimization of

his juvenile step-children" and indicated they did not want to "see or

communicate with defendant at this time." The State did not present an

affidavit or certification from A.M. or the children.

The State argued that the fact the victims were now adults and no longer

resided with defendant's two biological children did not "automatically render

any of the active orders of protection inapplicable or invalid." The State also

asserted that based upon the harm inflicted upon the victims inside the former

family residence and the "trauma" endured by the family, defendant's

application should be denied.

On March 23, 2022, the motion judge issued an order and written

decision denying defendant's motion. The motion judge found that based on

similarities between a SORO and a final restraining order (FRO) issued under

the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35,

the framework established in Carfagno was appropriate to use when

determining whether a SORO should be vacated or modified.

In Carfagno, the Chancery Division set forth the following factors for a

court to consider when deciding whether to vacate or modify an FRO:

(1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has

A-3372-21 4 been convicted of contempt for violating the order; (5) whether the defendant has a continuing involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant's request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court.

[288 N.J. Super. at 435.]

In considering factor one, the motion judge found the biological children

did not consent to modifying the SORO. The judge gave great weight to the

factor. However, the Carfagno factor refers to victims. Here, defendant does

not seek to modify the SORO as to the victims. As stated, there was no

certification or testimony, or any other correspondence submitted by A.M. or

the children. Without any direct testimony from A.M. and the biological

children, the motion judge could not properly assess this factor, much less give

it great weight.

Similarly, in considering the second factor—whether the victim feared

defendant—the motion judge could not properly assess this element without

further information. The biological children are not the victims of defendant's

convictions. As the motion judge stated it is "unclear whether the biological

children themselves are afraid of defendant."

A-3372-21 5 Reviewing the relationship of the parties today (factor three), the motion

judge noted there was insufficient information of "changed circumstances" to

determine whether allowing defendant to contact his biological children would

affect the victims. Again, defendant does not seek to modify the SORO as to

the victims of these crimes—defendant's now-adult step-daughters. In

addition, the motion judge did not have any facts before her as to the

relationship between the victims and the step-daughters.

As to violations of the SORO (factor four), the motion judge noted

defendant had been incarcerated since the SORO issued, and there was

"insufficient information as to any attempts to contact his biological children."

As the prosecutor did not allege any violations of the SORO, the motion judge

erred in not finding this factor in favor of defendant.

In terms of defendant's drug and alcohol abuse (factor five), the motion

judge referenced defendant's presentence report, which indicated that he had

used "alcohol, marijuana, and ecstasy," but noted there was no information

about defendant's current substance usage or any treatment he underwent while

incarcerated. The motion judge next considered whether defendant had been

involved in violent acts with others (factor six). The judge emphasized that

defendant was convicted of sexually assaulting his then two minor step -

daughters, and his behavior was "repetitive and compulsive," weighing against

A-3372-21 6 modifying the SORO. However, we note again that defendant only sought to

modify the SORO as to his children, not the victims of his convictions.

The motion judge considered whether defendant has engaged in

counseling under factor seven, noting he was found to be a repetitive and

compulsive sexual offender "amenable to treatment." However, again the

motion judge could not properly assess this factor as she did not have any

information regarding defendant's conduct while in prison or whether he

engaged in recommended treatment.

The next factor considered was the age and health of defendant (factor

eight). The motion judge found defendant is "middle-aged and has health

concerns," but there is no indication "that he is so infirm that he can no longer

pose a threat." Regarding factor nine, whether the victims are acting in good

faith in opposing defendant's motion, the motion judge stated there was no

indication that any of the parties were not acting in good faith.

The motion judge was unaware of any other jurisdiction issuing a

restraining order against defendant (factor ten). The motion judge explained

that defendant and A.M. have divorced, but the judge was not provided with

any information or orders from the Family Part dissolution matter (factor

eleven). Therefore, the motion judge found it was "impossible . . . to

determine how a modification of this [SORO] would actually impact other

A-3372-21 7 orders." The motion judge denied the motion to modify the JOC and SORO.

This appeal followed.

Defendant raises the following contentions for our consideration:

LEGAL POINT 1

THE TRIAL COURT ERRED IN PLACING DEFENDANT'S BIOLOGICAL CHILDREN ON THE [SORO], THUS VIOLATING DEFENDANT'S CONSTITUTIONALLY PROTECTED PARENTAL RIGHTS.

LEGAL POINT 2

THE ASSISTANT PROSECUTOR FAILED TO SHOW EVIDENCE OF CORRESPONDENCE BETWEEN DEFENDANT'S BIOLOGICAL CHILDREN AND THE COURT.

LEGAL POINT 3

THE TRIAL COURT JUDGE ALSO FAILED TO SHOW EVIDENCE OF CORRESPONDENCE BETWEEN DEFENDANT'S BIOLOGICAL CHILDREN AND THE COURT.

LEGAL POINT 4

NEITHER THE TRIAL COURT JUDGE NOR THE PROSECUTOR CONTACTED THE VICTIMS IN THE CASE TO FIND THE RELATIONSHIP BETWEEN THEM AND THE BIOLOGICAL CHILDREN.

LEGAL POINT 5

THE TRIAL COURT JUDGE FAILED TO ASK FOR EVIDENCE OF DEFENDANT'S DRUG OR

A-3372-21 8 ALCOHOL USAGE, CONDUCT OR TREATMENT RECORDS.

LEGAL POINT 6

THE WAY THAT FACTOR [SIX] READS WOULD REQUIRE EVIDENCE OF A SEPARATE CASE AND NOT THE CASE IN WHICH THE [SORO] IS FROM.

LEGAL POINT 7

THE TRIAL COURT JUDGE HAS FAILED TO OBTAIN THE MEDICAL RECORDS OF DEFENDANT.

LEGAL POINT 8

THE TRIAL COURT JUDGE FAILED TO PROVIDE COMMUNICATION BETWEEN THE COURT, THE VICTIMS[,] AND THE BIOLOGICAL CHILDREN.

II.

Nicole's Law permits the court to issue an order as a condition of bail or

to continue a prior order or issue a new order upon conviction, prohibiting a

defendant charged with or convicted of a sex offense from having any contact

with a victim, including restraining the defendant from entering a victim's

residence, place of employment, business or school, and from harassing or

stalking the victim or victim's relatives. The law defines "sex offense" by

referencing Megan's Law, N.J.S.A. 2C:7-2.

A-3372-21 9 The PDVA is designed to assure victims of domestic violence "the

maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18.

However, "[t]he Legislature did not intend that every final restraining order

issued pursuant to the [PDVA] be forever etched in judicial stone." A.B. v.

L.M., 289 N.J. Super. 125, 128 (App. Div. 1996). Accordingly, the PDVA

expressly provides that a defendant may move to dissolve or modify an FRO

upon a showing of "good cause." N.J.S.A. 2C:25-29(d). In determining if the

applicant has shown good cause, the trial court should consider the non -

exhaustive list of factors set forth in Carfagno. 288 N.J. Super. at 435; see also

Sweeney v. Honachefsky, 313 N.J. Super. 443, 447-48 (App. Div. 1998).

"Generally, a court may dissolve an injunction where there is 'a change

of circumstances [whereby] the continued enforcement of the injunctive

process would be inequitable, oppressive, or unjust, or in contravention of the

policy of the law.'" Carfagno, 288 N.J. Super. at 433-34 (alteration in original)

(quoting Johnson & Johnson v. Weissbard, 11 N.J. 552, 555 (1953)). "Only

where the movant demonstrates substantial changes in the circumstances that

existed at the time of the final hearing should the court entertain the

application for dismissal [of a domestic violence FRO]." Kanaszka v. Kunen,

313 N.J. Super. 600, 608 (App. Div. 1998).

A-3372-21 10 On appeal, defendant contends the motion judge erred in denying his

motion to modify the JOC and SORO. In making her determination, the

motion judge utilized the framework established in Carfagno. Before we can

review the motion judge's ultimate ruling, we must consider whether it was

appropriate to apply Carfagno—an analysis used to evaluate modifications to

FRO's—to a requested modification for a SORO, entered as part of a sentence

following a criminal conviction.

There are similarities between SOROs and domestic violence restraining

orders. Enacted in 2007, Nicole's Law permits a victim of a sex offense to

obtain a restraining order against the offender. See N.J.S.A. 2C:14-2 and

2C:44-8. Specifically, Nicole's Law states, in pertinent part:

When a defendant is found guilty of a sex offense, the court may, at the time of sentencing and in addition to any other disposition authorized by law, order the continuation of a prior order or condition of bail that restricts the defendant's contact with the victim, or enter an order imposing such restrictions at the time of sentencing.

In addition to restricting a defendant's contact with the victim, the court may enter an order:

a. restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members;

A-3372-21 11 b. restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim;

....

d. providing for any other appropriate restraints necessary to protect the victim.

[N.J.S.A. 2C:44-8.]

In essence, a SORO is intended to parallel a domestic violence restraining

order "except that there need not be a domestic relationship between the

defendant and the victim for a [SORO] to be entered if a defendant has been

charged with or convicted of certain sex offenses." See Admin. Off. of the

Cts., Admin. Directive #01-10, Nicole's Law (N.J.S.A. 2C:14-12 and N.J.S.A.

2C:44-8)—Restraining Order and Notification Procedures, at 1 (March 2,

2010).3

3 Directives have the same efficacy as rules and orders. See In re P.L. 2001, Chapter 362, 186 N.J. 368, 381 (2006) (citing State v. J.M., 182 N.J. 402, 415- 16 (2005)) ("The Supreme Court's administrative policies are pronounced through Court opinions, orders, rules, and directives."); J.M., 182 N.J. at 415- 16 (quoting In re Yaccarino, 101 N.J. 342, 351 (1985)) ("The authority to

A-3372-21 12 As the motion judge stated, "the overarching purpose of [Nicole's Law]

is the protection of the victim, specifically from unwanted contact with or

harassment from the perpetrator." In a similar vein, the PDVA was also

designed to assure victims of domestic violence "the maximum protection from

abuse the law can provide." N.J.S.A. 2C:25-18.

Here, the motion judge considered defendant's request to modify his JOC

and amend the SORO under the Carfagno standard for modifying or lifting

domestic violence restraining orders. We are satisfied the motion judge

appropriately considered the similarities between the domestic violence

restraining orders and properly applied the Carfagno factors to the facts before

her in considering defendant's application.

However, as the motion judge indicated, she simply did not have enough

information to adequately assess defendant's application and therefore, the

motion to modify the SORO was properly denied. In light of defendant's

recent release from prison, he may choose to renew his motions to modify the

JOC and SORO based on his changed circumstances, providing the judge with

pertinent information. If the State opposes the application, it must present

___________________

promulgate rules that are set forth as the Rules of Court, 'may also be exercised in the form of general [D]irectives or specific orders.'").

A-3372-21 13 appropriate certifications or testimony from A.M. and the children, not the

hearsay statements it conveyed by letter. The judge will exercise his or her

discretion whether the application can be decided on the submissions or if an

evidential hearing is required.

We briefly consider and reject defendant's remaining arguments. We

find no merit in defendant's contention that his constitutionally protected

parental rights were violated by the SORO. Defendant's parental rights were

not terminated with the imposition of the SORO. Moreover, Nicole's Law

clearly provides that individuals—such as defendant's biological children—

may be included on a SORO even if they are not victims.

Regarding defendant's evidential arguments—that the victims and

biological children were not contacted by the motion judge or prosecutor, and

the motion judge failed to obtain his treatment records—we reiterate that

defendant failed to meet his prima facie burden of showing good cause existed

for modification of the SORO. See G.M. v. C.V., 453 N.J. Super. 1, 12-13

(2018) (quoting Kanaszka, 313 N.J. Super. at 608). It is defendant's burden to

demonstrate good cause. However, as stated, hearsay statements are not

sufficient for the judge to consider the Carfagno factors.

As stated above, we conclude the motion judge appropriately considered

the Carfagno factors in the context of an application to vacate an SORO and

A-3372-21 14 ultimately found defendant failed to meet his prima facie burden because he

did not provide the relevant information to fully analyze the factors. The

motion judge noted there are "simply too many unanswered questions."

Affirmed.

A-3372-21 15