RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3770-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD LABINSKI, JR.
Defendant-Appellant. ________________________
Submitted November 9, 2023 – Decided January 2, 2024
Before Judges Currier and Susswein.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FO-08-0059-22.
Law Offices of Andrew N. Yurick, attorneys for appellant (Nicholas J. Yurick, on the briefs).
Christine A. Hoffman, Acting Gloucester County Prosecutor, attorney for respondent (Michael C. Mellon, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
PER CURIAM Defendant Richard Labinski, Jr. appeals his bench trial conviction for
contempt under N.J.S.A. 2C:29-9(b)(2) for violating the no-contact provision in
a domestic violence temporary restraining order (TRO). The Family Part judge
denied defendant's pretrial motion to dismiss the contempt complaint. After a
trial, the judge, sitting as the trier of fact, found the State proved beyond a
reasonable doubt that defendant knowingly placed a telephone call to his former
wife in violation of the TRO. The judge rejected defendant's contention the call
had been made either inadvertently by defendant or by someone else "spoofing" 1
his telephone number. After carefully reviewing the record in light of the trial
evidence and arguments of the parties, we affirm.
I.
We briefly recount the procedural history and pertinent facts adduced at
trial. On June 30, 2021, defendant's former wife obtained a TRO against him
under the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A.
2C:25-17 to -35, alleging defendant had harassed her. The TRO prohibited
defendant "from having any oral, written, personal, electronic, or other form of
contact or communication with [his former wife.]" On July 2, 2021, defendant's
1 Spoofing is a method by which the caller can make the contact information that appears on the recipient's phone appear to come from another person's phone rather than the caller's phone. A-3770-21 2 former wife reported she received a call from defendant that she did not answer.
Defendant was charged by complaint with knowingly or purposely violating an
order entered under the provisions of the PDVA.
Defendant filed a motion to dismiss. The trial judge heard oral argument
after which he entered an oral decision denying the motion.
A bench trial was convened over the course of two days in May and July
2022. Defendant's former wife testified that two days after the TRO was
entered, she received a call from defendant but chose not to answer it. The State
introduced a screenshot of her call log showing the call was from "Rick's Cell,"
referring to defendant's phone. She testified she did not speak with defendant
that day and acknowledged she had no way of knowing whether this call was
made accidentally or intentionally.
At the close of the State's case, defendant moved to dismiss the case,
arguing the prosecution did not prove a restraining order violation beyond a
reasonable doubt. The judge denied the motion, stating, "[s]o for the motion,
I'm convinced there are inferences I can take that this is an electronic form of
contact."
On the second day of trial, defendant testified in his own defense. He
claimed he did not knowingly or purposely contact his former wife. When asked
A-3770-21 3 if the call was a pocket dial or a "spoof" call defendant replied, "I don't know ,
sir."
The defense also presented testimony from a witness qualified as an expert
on cell phones. The expert explained the many ways an accidental call can
occur: pocket dialing, issues with the voice-activated Siri application, spam calls
(spoofing), accidentally hitting someone's name after receiving a voicemail,
accidentally calling a designated medical contact, or a "butt dial." The expert
acknowledged butt dials are less likely to occur with current technology, as those
sorts of calls typically originate with phones with raised buttons. The defendant
had an iPhone, which does not have raised buttons. The expert also testified a
cracked screen could lead to an accidental call. Defendant had a cracked phone
screen on the day of the violation.
After closing arguments, the trial judge found defendant violated the TRO,
issuing an oral opinion to explain his decision. The judge rejected the notion
the call was a "spoof call," noting it "would be just an absolute, incredible
coincidence, to happen once with a—with a fresh restraining order, to just
happen to have that phone number chosen by a telemarketer . . . ." The judge
also found an accidental Siri call unlikely.
A-3770-21 4 As for accidentally returning a prior call, the judge noted, "in choosing to
testify, I can then expect . . . defendant to perhaps explain away things that
might be in question given what is and has not been possibly proved." The judge
further stated, "[defendant] had it in his ability to show that likely—what could
have happened." As to an accidental call from voicemail access, the judge noted,
"[a]gain, defendant could have testified, if that were the case, that he had a
voicemail and it was—that he saves voicemails from [his former wife] or had a
saved voicemail and this is an example of something that could have happened."
As to the butt dial theory, the judge was "skeptical of a traditional butt dial from
the beginning for the reasons the expert talked about." Lastly, the judge saw no
basis in the theory that someone else interacted with defendant's phone and
placed the call.
The judge noted:
Now, it's not [defendant's] burden to show that somebody else took [defendant's] phone or he was not in possession of his phone at a particular time on a particular day. It's not his burden. And I—but I don't . . . see that I have to require the State to prove that [defendant] was in sole possession and control of his phone at a specific time on a specific day to conclude beyond a reasonable doubt that a phone call initiated from that device was initiated by . . . defendant. No one can ever say with absolute certainty that . . . defendant placed this call. That's not the burden.
A-3770-21 5 The judge concluded,
I find beyond a reasonable doubt he did initiate the call at a time when the victim was protected by the terms of a restraining order and, therefore—and I find he did so intentionally. I don't find convincing that the ways one could initiate a call accidentally make any sense under the circumstances of this case. So I find that he did so knowingly . . . and purposely. So I do find in favor of the State that . . . defendant did commit contempt.
Defendant was issued a fine, ordered to submit a DNA sample, and banned from
possessing a firearm. On July 8, 2022, defendant filed a motion for
reconsideration which the trial court denied on August 1, 2022.
Defendant raises the following contentions for our consideration:
POINT I
THE TRIAL COURT ERRED IN MISAPPLYING AND/OR SHIFTING THE BURDEN ONTO THE DEFENDANT TO PROVE HIS INNOCENCE RATHER THAN REQUIRING THE STATE TO MEET ITS BURDEN BEYOND A REASONABLE DOUBT.
POINT II
THE TESTIMONY AND EVIDENCE PRODUCED AT TRIAL DO NOT MEET THE NECESSARY PROOFS REQUIRED TO SUSTAIN A GUILTY VERDICT IN THIS MATTER.
A-3770-21 6 I. THE PROOFS SUBMITTED DO NOT SUPPORT A FINDING OF A KNOWING VIOLATION OF THE TEMPORARY RESTRAINING ORDER.
II. THE PROOFS SUBMITTED DO NOT SUPPORT A FINDING THAT THE DEFENDANT HAD CONTACT OR COMMUNICATION WITH HIS FORMER WIFE IN VIOLATION OF A TEMPORARY RESTRAINING ORDER.
POINT III THE TRIAL JUDGE MISAPPLIED THE LAW WHEN THE COURT DETERMINED THERE WAS NO DE MINIMIS EXCEPTION TO THE CONTEMPT STATUTE.
POINT IV
THE TRIAL JUDGE MISAPPLIED THE LAW WHEN THE COURT DETERMINED THAT A TIMELY FILED MOTION FOR RECONSIDERATION WAS IMPROPERLY BROUGHT.
II.
We first address defendant's contention that "[t]he trial judge misapplied
the law when the court determined there was no de minimis exception to the
contempt statute." At trial, the judge stated, "[t]hat is implicit or presumed, that
a victim of domestic violence is entitled not to hear from a defendant in any
way, shape or form. There's no de minimis exception." The trial judge amplified
A-3770-21 7 the latter statement, noting, "I'm not sure how I can find a de minimis exception
when it's not in the statute or any case law that I am familiar with. Had there
been a de minimis provision, I might have considered it in this case, but there's
not."
There is, in fact, a de minimis provision in the New Jersey Code of
Criminal Justice (penal code), N.J.S.A. 2C:1-1 to -104-9, which is codified in
N.J.S.A. 2C:2-11. That provision reads:
The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant's conduct:
a. Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
b. Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
c. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The assignment judge shall not dismiss a prosecution under this section without giving the prosecutor notice and an opportunity to be heard. The prosecutor shall have a right to appeal any such dismissal.
A-3770-21 8 This penal code section refers to "prosecution" and "offense" without
limitation, indicating by its plain text that no criminal offense 2 is categorically
ineligible for dismissal as a de minimis infraction. The case law makes clear,
moreover, this feature can apply to domestic violence-related charges. In State
v. Hoffman, 149 N.J. 564 (1997), for example, our Supreme Court stated, "[w]e
recognize that in the area of domestic violence, as in some other areas in our
law, some people may attempt to use the process as a sword rather than as a
shield." Id. at 586. The Court added, "[t]he Legislature has established a self-
regulating provision in the Code [referring to N.J.S.A. 2C:2-11] that can be used
to protect against frivolous prosecutions under the [PDVA]." Ibid. The Court
added, "[o]ur courts have not hesitated to use that statute to terminate a potential
prosecution when the charge has been trivial or the prosecution would have been
absurd." Id. at 587 (citing State v. Brown, 188 N.J. Super. 656, 671 (Law Div.
1983)).
Because the trial judge did not consider whether the domestic violence
disorderly persons contempt charge should be dismissed pursuant to N.J.S.A.
2C:11-2, we review the issue de novo. "[A] judge's purely legal decisions are
2 The term "offense" as used in the penal code includes "a crime, a disorderly persons offense or a petty disorderly persons offense . . . ." N.J.S.A. 2C:1-14(k). A-3770-21 9 subject to our de novo review." C.C. v. J.A.H., 463 N.J. Super. 419, 428-29
(App. Div. 2020). We begin by recognizing this penal code provision does not
create an affirmative defense to be considered by a jury, or by a judge sitting as
the trier of fact in a non-jury trial for a disorderly persons offense. Cf. N.J.S.A.
2C:2-5 (explaining defenses generally); cf. N.J.S.A. 2C:1-13(c) (defining an
"affirmative defense"). Rather, this statutory provision authorizes an
application to be made to the assignment judge 3 to dismiss the prosecution.
Even putting aside any procedural deficiencies with respect to defendant's
de minimis application, we conclude the contempt charge should not have been
dismissed as a de minimis infraction. The violation was not de minimis for
purposes of N.J.S.A. 2C:2-11 merely because only a single phone call was
placed. There need not be a pattern of violations to warrant prosecution for
contempt of a domestic violence TRO. The no-contact provision in the order
was clear and unambiguous in precluding any contact. Furthermore, the TRO
expressly proscribed contact, not just communication. The latter term implies
conversation or conveyance of information such as by leaving a voicemail
message. One of the purposes of a no-contact order is to protect domestic
3 The record in this case does not indicate the application was made to the assignment judge or delegated by the assignment judge to the trial judge. We nonetheless consider defendant's de minimis contention on its merits. A-3770-21 10 violence victims from any attempt by defendants to exercise the kind of control
that is common in domestic violence situations. See Cesare v. Cesare, 154 N.J.
394, 397-98 (1998); see also Hoffman, 149 N.J. at 584 ("[T]he [PDVA]
effectuates the notion that the victim of domestic violence is entitled to be left
alone.").
The contempt statute addresses conduct that is specifically prohibited by
a duly issued and served court order. 4 Because the TRO instructed defendant he
could have no contact with his former wife, the contempt offense was committed
upon his knowingly or purposely making any call to her. The single call was
sufficient to support a prosecution.
Nor is the unlawful conduct rendered de minimis because the victim did
not answer the call. We reiterate the contempt offense was complete when
defendant placed the call. He had no way of knowing whether the victim would
accept it. The contempt offense does not require any action by the victim. And
as we have noted, the TRO prohibited contact, not just communication.
Accordingly, the offense was not rendered de minimis merely because the victim
chose to avoid engaging in communication by not answering the call.
4 Defendant does not dispute he was served with the TRO.
A-3770-21 11 The cases defendant relies upon are readily distinguishable, and in fact
show why the present matter does not fall under the rubric of N.J.S.A. 2C:2 -11.
In State v. Wilmouth, for example, the PDVA restraining order likewise
"prohibited defendant 'from having any (oral, written, personal or other) form
of contact or communication with' [the victim]." 302 N.J. Super. 20, 21 (App.
Div. 1997). However, the defendant in that case had 'liberal and reasonable'
visitation with the child he shared with the victim. Ibid. Although the order
specified visitation was to be arranged between the victim and the defendant's
mother, the defendant and victim chose to schedule visitation of the child by
calling each other. Ibid. The record further showed the victim regularly
initiated communication with the defendant. Id. at 22.
On one occasion, the defendant had the child with him at his parents' home
when the victim arrived to pick up the child. Ibid. The victim was accompanied
by a police officer. Ibid. The defendant said to the victim, "[a]m I going to get
to see [the child] tomorrow?" Ibid. We held the face-to-face question the
defendant asked the victim did not constitute contempt of the restraining order,
which "was thereafter amended to permit communication between defendant and
[the victim] respecting visitation." Ibid. "We reach this conclusion," the court
explained, "because [the victim] herself had construed the order as in no way
A-3770-21 12 interdicting direct communication between her and defendant regarding
visitation." Ibid. Further, "[i]t was she who had regularly initiated such
communications and she who had regularly requested defendant's
cooperation . . . . " Ibid. We thus determined "this was a trivial, non-actionable
event . . . . " Id. at 23. The facts in the matter before us are starkly different.
Here, the victim made no efforts to contact the defendant or relax the no contact
order.
Defendant also cites State v. Krupinksi to support his contention that his
violation was too trivial for prosecution. 321 N.J. Super. 34, 37 (App. Div.
1999). In that case, the defendant likewise was "prohibited from having any
(oral, written, personal or other) form of contact or communication with [the]
victim." Id. at 38. When dropping the children off from visitation, the defendant
told the victim he was there to pick up the lawnmower. Id. at 40-41. The
pendente lite order required the defendant to repair the lawn mower. It did not
specifically prohibit the defendant from entry upon the property occupied by his
wife. Id. at 44.
On those facts, we held:
[The] [d]efendant's conduct in returning the children to the front door, in returning a car seat to his wife, and in requesting the lawn mower in an effort to comply with the pendente lite order, if a violation at all,
A-3770-21 13 cumulatively was nevertheless a "trivial, non- actionable event," unless specifically proscribed by a prior court order.
[Id. at 45 (quoting Wilmouth, 302 N.J. Super. at 23) (emphasis added).]
We added, "the [PDVA] may not be construed in a manner that precludes
otherwise reasonable conduct unless the orders issued pursuant to the Act
specifically proscribe particular conduct by a restrained spouse." Ibid.
Contrary to defendant's interpretation, we read Krupinksi to stand for the
proposition that a contempt violation is not trivial within the meaning of the de
minimis provision when the charged contempt conduct is clearly prohibited by
a domestic violence restraining order and is not associated with conduct that is
not clearly prohibited by the order. Here, in stark contrast to Krupinski, there
was no basis to justify any contact between defendant and the victim.
In sum, although the de minimis provision can apply in cases involving
violations of restraining orders, we conclude it does not apply in this instance
where the contempt charge alleged conduct that clearly violated an unambiguous
no-contact order. There were no extenuating circumstances to justify placing a
phone call. The fact it is possible to conceive far more serious violations does
not render the present prosecution absurd, to use the Hoffman Court's
characterization. 149 N.J. at 587. As we have noted, our Supreme Court
A-3770-21 14 stressed in Hoffman, "the [PDVA] effectuates the notion that the victim of
domestic violence is entitled to be left alone." Id. at 584. The phone call here,
coming just two days after the TRO was entered, struck at the heart of that
notion. Accordingly, defendant was obliged to contest the contempt charge on
its merits at trial, putting the State to its proofs applying the beyond -a-
reasonable-doubt standard. Defendant was not entitled to have it dismissed
before trial as a de minimis infraction.
III.
We next turn to defendant's contention "[t]he trial court erred in
misapplying and/or shifting the burden onto the defendant to prove his
innocence rather than requiring the State to meet its burden beyond a reasonable
doubt." One of the most central tenets of our criminal justice system is "[i]n a
criminal prosecution, the State bears the burden of proving beyond a reasonable
doubt every element of an offense." State v. Medina, 147 N.J. 43, 49 (1996).
"[T]he presumption of innocence and the State's beyond-a-reasonable-
doubt proof requirement work hand-in-hand to protect an accused and force the
State to satisfy the proof requirements for a conviction." State v. Hill, 199 N.J.
545, 559 (2009).
A-3770-21 15 As a corollary to the State's burden of proof, "[t]he defendant is not
obligated to present any witnesses or to testify himself to establish his [or her]
defense." State v. Francisco, 471 N.J. Super. 386, 421 (App. Div. 2022). But
when a defendant chooses to put on a defense, the trier of fact is permitted to
scrutinize it like any other evidence. Just as a prosecutor in closing argument
may critique defense evidence as "fair comment," id. at 421-22, when a judge
sits as the trier of fact, they may point out flaws and deficiencies in the defense
case when explaining their findings and conclusions that led to a guilty verdict.
And of course, when defendants elect to testify in their own defense, they place
their credibility at issue before the trier of fact.
In this instance, the judge methodically evaluated the defense theories and
evidence. He rejected the idea that the phone call was a "spoofing" situation,
stating "that's just not believable in any way." The judge further found a "butt
dial" was unlikely because the phone did not have raised buttons.
As for the other theories of an accidental call, the judge was left with a
gap in information due to defendant's limited testimony. The defense arguments
involved speculation that the judge was free to reject.
Just because the judge did not agree with defendant's theories does not
mean he improperly shifted the burden onto defendant. Indeed, the judge's
A-3770-21 16 comments confirm he understood full well that the burden rested on the
prosecution to prove the elements of the charged crime—including the knowing
or purposeful mental culpable state—beyond a reasonable doubt. The judge
stated, for example, "[n]ow, it's not [defendant's] burden to show that somebody
else took his phone or he was not in possession of his phone at a particular time
on a particular day. It's not his burden." The judge stated further, "but I don't—
I don't see that I have to require the State to prove that he was in sole possession
and control of his phone at a specific time on a specific day to co nclude beyond
a reasonable doubt that a phone call initiated from that device was initiated by
the defendant."
The judge concluded:
So I find beyond a reasonable doubt he did initiate the call at a time when the victim was protected by the terms of a restraining order and, therefore—and I find he did so intentionally. I don't find convincing that the ways one could initiate a call accidentally make any sense under the circumstances of this case. So I find that he did so knowingly and person—and purposely. So I do find in favor of the State that the defendant did commit contempt.
In sum, the judge carefully and critically reviewed the evidence and drew
reasonable inferences from the evidence. We are satisfied the judge reached a
verdict without shifting the burden of proof from the State to defendant.
A-3770-21 17 IV.
We next address defendant's closely related contention the State failed to
meet its burden of proving the contempt charge beyond a reasonable doubt.
Appellate courts apply a deferential standard in reviewing factual findings by a
judge. Balducci v. Cige, 240 N.J. 574, 594-95 (2020); State v. McNeil-Thomas,
238 N.J. 256, 271 (2019). In an appeal from a non-jury trial, appellate courts
"give deference to the trial court that heard the witnesses, sifted the competing
evidence, and made reasoned conclusions." Griepenburg v. Twp. of Ocean, 220
N.J. 239, 254 (2015). The law is especially clear that deference is given to a
trial court's credibility findings. State v. Hubbard, 222 N.J 249, 264 (2015).
"Appellate courts owe deference to the trial court's credibility determinations as
well because it has 'a better perspective than a reviewing court in evaluating the
veracity of a witness.'" C.R. v. M.T., 248 N.J. 428, 440 (2021) (quoting Gnall
v. Gnall, 222 N.J. 414, 428 (2015)). However, "[a] trial court's interpretation of
the law and the legal consequences that flow from established facts are not
entitled to any special deference." Rowe v. Bell & Gossett Co., 239 N.J. 531,
552 (2019) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
A-3770-21 18 N.J.S.A. 2C:29-9(b)(2) prohibits a person from "purposely or knowingly
violat[ing] an order entered under the provisions of the [PDVA]. . . ." Defendant
argues "one, unanswered phone call, without any voicemail or message left for
the alleged victim, does not constitute a communication or contact under the
temporary restraining order." We disagree. The TRO entered against defendant
expressly and unambiguously prohibited him from "having any oral, written,
personal, electronic, or other form of contact or communication with [his former
wife.]" (emphasis in original). For reasons we have already explained in our
discussion of defendant's de minimis argument, we are satisfied the call was a
form of contact.
We likewise reject defendant's contention "[t]he proofs submitted do not
support a finding of a knowing violation of the temporary restraining order." As
our Supreme Court explained in State v. Williams, "[i]t is well known that
mental state is not conducive to demonstration through direct evidence." 190
N.J. 114, 124 (2007). "In criminal prosecutions, proof of a defendant's mental
state often must be 'inferred from the circumstances. . . .'" Ibid. In this instance,
the trial judge acted within his authority as trier of fact in rejecting the defense
argument the call was placed inadvertently and in inferring defendant
intentionally called the victim.
A-3770-21 19 V.
Finally, we address defendant's contention the trial judge erred in denying
his motion for reconsideration. In a concise written order, the trial judge ruled:
1. The [c]ourt finds that this matter was improperly brought before this [c]ourt by way of Motion for Reconsideration;
2. The [c]ourt takes no action with respect to the Judgment entered on July 1, 2022, and has expedited the entry of this Order in light of the running time within which to file an appeal; and
3. The [c]ourt amplifies its decision by noting that the State proved all elements of the offense beyond a reasonable doubt.
Even accepting for the sake of argument that a motion for
reconsideration—as distinct from a motion for a new trial or to vacate the
judgment pursuant to Rule 3:20-15—was appropriate following a bench trial
5 Rule 3:20-1 provides:
The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. If trial was by the judge without a jury, the judge may, on defendant's motion for a new trial, vacate the judgment if entered, take additional testimony and direct the entry of a new judgment.
A-3770-21 20 verdict in this quasi-criminal matter, we are convinced there was no basis for
the trial judge to reconsider much less overturn his guilty verdict.
The appellate "standard of review on a motion for reconsideration is
deferential." Castano v. Augustine, 475 N.J. Super. 71, 78 (App. Div. 2023).
Reconsideration is only appropriate in "that narrow corridor in which either 1)
the [c]ourt has expressed its decision based upon a palpably incorrect or
irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or
failed to appreciate the significance of probative, competent evidence." Triffin
v. SHS Group, LLC, 466 N.J. Super. 460, 466 (App. Div. 2021) (quoting
Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)).
Defendant may disagree with the trial judge's findings and maintain his
innocence, but that is not a basis for appellate intervention. The trial judge
carefully considered the evidence offered by both parties and reached his
conclusion applying the proof-beyond-a-reasonable-doubt standard.
Affirmed.
A-3770-21 21