State v. S.K.

33 A.3d 1255, 423 N.J. Super. 540, 2012 N.J. Super. LEXIS 6
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 17, 2012
StatusPublished
Cited by15 cases

This text of 33 A.3d 1255 (State v. S.K.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. S.K., 33 A.3d 1255, 423 N.J. Super. 540, 2012 N.J. Super. LEXIS 6 (N.J. Ct. App. 2012).

Opinion

The opinion of the court was delivered by

ASHRAFI, J.A.D.

Defendant appeals from a judgment of conviction following his guilty plea to a disorderly persons charge of contempt for violating a domestic violence restraining order. N.J.S.A. 2C:29-9b. Because the violation was of an invalid provision of the restraining order that defendant could not be expected to obey under all circumstances, and because the factual basis for defendant’s guilty plea was insufficient, we vacate the conviction and dismiss the complaint.

The final restraining order was entered on November 29, 2005, following a hearing in the Family Part at which defendant and his ex-wife appeared pro se and testified. The parties had been married for six years and were divorced about one year before the hearing. They had two children, ages seven and five at the time of the hearing. Their divorce judgment included parenting time and support obligations.

The Family Part judge found that defendant had returned the children to his ex-wife’s home after his parenting time, and then he and his ex-wife had argued about his support payment. Because the payment would be late, the ex-wife ordered him out of her house and began pushing him. Defendant pushed her back and made a verbal threat. Defendant attempted to call the police on his cell phone, but his ex-wife grabbed the phone away. She would not give it back and threatened to smash it on the ground. The two grappled over the phone. He bit her hand, and she dropped the phone. Both called the police.

The judge found that defendant had committed an act of harassment in violation of N.J.S.A 20:33-4. Taking into consideration the ex-wife’s testimony about prior verbal harassment and a prior biting incident,1 the judge granted her a final restraining order.

[543]*543When issuing the order, the judge explained to the parties the nature of the restraints and discussed at length the provisions that would apply to parenting time arrangements and future support payments. Defendant was informed that he was prohibited from making contact with his ex-wife and that he was barred from her home and place of employment. At no time during the hearing, however, did the judge specifically refer to a provision written into the final restraining order that barred defendant from “any other place where plaintiff is located.”

From 2005 to 2010, no charges were filed against defendant for violation of the order. On April 22, 2010, defendant attended his children’s soccer game at a local high school. His ex-wife was also present and sitting in the bleachers. She called the police and reported that she had an active restraining order against her ex-husband, that he was not permitted to be in the same place as her, and that he was standing near the bleachers and watching the soccer game. She did not claim that any communication or contact had occurred. Nor did she allege he had engaged in other misconduct. The police did not file any charges at that time.

The next day, the ex-wife went to the police station with a copy of the restraining order and filed a citizen’s complaint against defendant. The police then filed a formal complaint charging defendant with disorderly persons contempt, in violation of N.J.S.A. 2C:29-9b, and with petty disorderly persons harassment, in violation of N.J.S.A. 2C:33-4a. The complaint alleged that defendant had committed those offenses by “being at their child’s soccer game the same time as the complainant.” Defendant was arrested and processed, and he spent several hours in police custody before he was released.

Six months later, defendant appeared with counsel before the Family Part for trial on the two charges. The State offered a plea agreement for a non-custodial sentence, which defendant accepted. After confirming with the judge that he would not be sentenced to additional time in custody, defendant agreed to plead guilty to the contempt charge, and the State agreed to dismiss the harassment [544]*544charge. Before accepting the guilty plea, the court placed defendant under oath and questioned him in accordance with the requirements of Rule 3:9-2. The prosecutor then elicited the following factual basis for defendant’s guilty plea, from which we have omitted only identifying names:

Q (Prosecutor): Mr. .... there was the restraining order between you and your ex-wife ..., correct?
A (Defendant): Yes.
Q: And it’s still in effect today, correct?
A: Yes.
Q: Back on April 22nd of 2010, you were at Woodbridge Township at the football field, correct?
A: Yes.
Q: And the restraining order requires you not to be in the presence of [your ex-wife], correct?
A: Yes.
Q: And you were there and you’re saying that that is a violation of the restraining order, right? You’re pleading guilty to that?
A: Yes.

The prosecutor stated she was satisfied with the factual basis, and the court accepted the plea. After noting that defendant did not have a criminal record and there were no prior charges for violating a restraining order, the court sentenced defendant to one day in jail, which time had been served on the day of his arrest, and imposed mandatory money penalties totaling $125.

Defendant filed a timely notice of appeal. We granted his motions to proceed as an indigent, for appointment of pro bono counsel for the appeal, and for a transcript of the plea hearing at public expense under N.J.S.A. 2A:152-17.

In neither the 2005 nor the 2010 hearing before the Family Part was there a discussion of the provision of the final restraining order barring defendant from “any other place where plaintiff is located.” During the 2005 hearing, the judge explained the arrangements the parties would have to make for exchange of the children for defendant’s parenting time. Except for handwritten instructions concerning their son’s basketball practices and games, [545]*545which defendant was coaching at that time, the order did not address the children’s sports or other activities.

The judge at the 2005 hearing did not say that defendant was barred from attending the children’s activities. See Finamore v. Aronson, 382 N.J.Super. 514, 889 A.2d 1114 (App.Div.2006) (order barring domestic violence defendant from child’s activities required findings of fact justifying the prohibition). Nor did the ex-wife make a specific request regarding joint presence with defendant at any public function or location. We cannot tell from the record why or how the prohibition from “any other place where plaintiff is located” was included in the final restraining order.

The Prevention of Domestic Violence Act, N.J.S.A. 20:25-17 to -35, lists the types of relief the court may include in a final restraining order, N.J.S.A. 2C:25-29b. As to barring a defendant from places, the statute provides that a defendant may be restrained:

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Cite This Page — Counsel Stack

Bluebook (online)
33 A.3d 1255, 423 N.J. Super. 540, 2012 N.J. Super. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sk-njsuperctappdiv-2012.