STATE OF NEW JERSEY VS. P.J.R. (FO-07-0181-18, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 14, 2019
• Docket: A-5018-17T3
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5018-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

P.J.R.,

Defendant-Appellant. _____________________________

Submitted October 21, 2019 – Decided November 14, 2019

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FO-07-0181-18.

Terry Webb argued the cause for appellant.

Stephen Anton Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Stephen Anton Pogany, on the brief).

PER CURIAM Defendant's then wife (the victim) obtained a temporary restraining order

(TRO) under the Prevention of Domestic Violence Act (PDVA), N.J.S.A.

2C:25-17 to -35, which prohibited defendant from having any contact with her.

Before appearing at a final restraining order (FRO) hearing, defendant texted

the victim, violating the TRO. The State charged him with fourth-degree

contempt, N.J.S.A. 2C:29-9(b)(1), then downgraded the charge to a disorderly

persons offense, N.J.S.A. 2C:29-9(b)(2). Defendant consented to the FRO's

entry because the victim purportedly promised to dismiss the contempt charge,

but that never happened.

Defendant filed a motion to either dismiss the contempt charge or vacate

the FRO. The judge vacated the FRO, reissued the TRO, and denied the motion

to dismiss the charge. A different judge then conducted a trial on the contempt

charge. That judge took testimony from two witnesses⸺the victim and

defendant's long-time friend⸺and admitted documentary evidence. The judge

found defendant guilty of criminal contempt. Defendant now appeals from the

order denying his motion to dismiss.

On appeal, defendant argues:

POINT I THE AGREEMENT BETWEEN THE PARTIES SHOULD HAVE BEEN ENFORCED AND THE

A-5018-17T3 2 MOTION TO DISMISS SHOULD HAVE BEEN GRANTED TO PREVENT FUTURE ABUSE OF THE DOMESTIC VIOLENCE ACT.

POINT II THE STATE LACKED TERRITORIAL JURISDICTION AND THUS THE CHARGE MUST BE DISMISSED.

We disagree, affirm, and conclude that these contentions are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless,

we add these brief remarks.

A victim in a domestic violence case is without authority to dismiss a

related contempt charge brought by the State. Rather, a prosecutor—the chief

law enforcement officer in each county—is vested with that authority. See

N.J.S.A. 2A:158-5 (explaining "[e]ach prosecutor shall be vested with the same

powers and be subject to the same penalties, within his [or her] county , as the

attorney general"); see also N.J.S.A. 2A:158-4 (stating "[t]he criminal business

of the State shall be prosecuted by the Attorney General and the county

prosecutors"). "[A] prosecutor has the discretion to prosecute those whom the

prosecutor believes [have] violated the law." State v. McCray, 458 N.J. Super.

473, 486 (App. Div. 2019). In the prosecution for contempt of a restraining

order, "the State is the party in interest, not the complainant." State v. Brito,

345 N.J. Super. 228, 231 (App. Div. 2001). The judge therefore correctly denied

A-5018-17T3 3 defendant's motion to dismiss the contempt charge, and simultaneously

protected the integrity of the PDVA by vacating the FRO.

Defendant maintains that the State lacked "territorial jurisdiction" to

prosecute him on the contempt charge because he and the victim were out-of-

state when he texted her. When a judge denies a motion to dismiss based on

territorial jurisdiction, we review that order de novo. See State v. Ferguson, 238

N.J. 78, 93 (2019). We conclude territorial jurisdiction existed under N.J.S.A.

2C:1-3(a)(1).

Defendant's contacts in New Jersey are undisputed: he and the victim lived

in New Jersey for more than a decade when the predicate act of harassment

occurred. Indeed, a New Jersey judge entered the TRO that precluded

defendant⸺who was served with the TRO in this state⸺from having "any oral,

written, personal, electronic, or other form of contact or communication with

[the victim]." The fact that defendant and the victim were not in New Jersey

when he texted her is irrelevant.

To fall under N.J.S.A. 2C:1-3(a)(1), one of the criminal contempt charge's

essential elements must have occurred in New Jersey, or the result of such

conduct must have caused harm in New Jersey. State v. Tringali, 451 N.J. Super.

A-5018-17T3 4 18, 26 (App. Div. 2017). The essential elements of contempt are outlined in

N.J.S.A. 2C:29-9(b)(2):

In all other cases a person is guilty of a disorderly persons offense if that person purposely or knowingly violates an order entered under the provisions of the [PDVA], or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States.

[(Internal citations omitted).]

The judge correctly noted that criminal contempt has three elements that a

prosecutor must prove beyond a reasonable doubt: (1) that there was an order

entered; (2) that defendant knew of the existence of the order; and (3) that

defendant purposefully or knowingly disobeyed the order.

Here, two essential elements of criminal contempt occurred in New

Jersey: an order was entered and defendant had knowledge of the order. The

victim obtained a TRO⸺in New Jersey⸺against defendant on January 24, 2018,

and she amended this order on February 1, 2018⸺in New Jersey. The victim

testified, which the judge found credible, that defendant received notice of both

TROs; specifically defendant received the amended TRO in court on February

1, 2018⸺in New Jersey. Finally, defendant's conduct harmed a New Jersey

resident—he violated the victim's TRO against him, and the victim sought

intervention by New Jersey police.

A-5018-17T3 5 Affirmed.

A-5018-17T3 6