STATE OF NEW JERSEY VS. A.J.(FO-02-0280-15, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5357-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
A.J.,
Defendant-Appellant.
————————————————————————————
Argued May 18, 2017 – Decided July 12, 2017
Before Judges Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
FO-02-0280-15.
James D. Addis argued the cause for appellant.
Elizabeth R. Rebein, Assistant Prosecutor,
argued the cause for respondent (Gurbir S.
Grewal, Bergen County Prosecutor, attorney;
Ms. Rebein, of counsel and on the brief).
PER CURIAM
Defendant A.J. appeals from a May 19, 2015 order finding him
guilty of harassment, N.J.S.A. 2C:33-4(c), and contempt, N.J.S.A.
2C:29-9(b), for violating a New York State order of protection.1
He contends the record lacks sufficient evidence to support either
conviction. He further asserts the trial court failed to elicit
a knowing, voluntary, and intelligent waiver of his right to
counsel. For the reasons that follow, we affirm the contempt
conviction and reverse the harassment conviction.
I.
We discern the following facts from the trial record.
Following their divorce, defendant and K.O. had a contentious
relationship. On June 6, 2014, a judge in New York State entered
an order of protection prohibiting defendant from communicating
with K.O. or their two children in any manner, including indirectly
through third parties. On November 19, 2014, the court entered a
temporary order of visitation, modifying the order of protection
to allow defendant to communicate with K.O. "by e-mail with respect
to the subject children." The modified order also afforded
defendant parenting time with the children, allowed him to attend
the children's functions, and provided for defendant to pick up
and return the children at a police precinct. The visitation
1
N.J.S.A. 2C:29-9(b)(2) proscribes the purposeful or knowing
violation of an order entered under the provisions of the
Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -
35, "or an order entered under the provisions of a substantially
similar statute under the laws of another state or the United
States."
2 A-5357-14T2
order additionally granted defendant parenting time from 10 a.m.
on December 24, until 6 p.m. on December 25, 2014.
Defendant failed to appear at the police precinct at 10 a.m.
on December 24, as he mistakenly believed the pickup time was at
6 p.m. According to defendant, "[A]t 1:12 p.m., I received a text
from my attorney saying that I missed my pickup[;] it was 10 a.m."
Notwithstanding the order of protection, defendant called K.O.
Defendant testified, "I was very cordial with her on the phone.
She said she would call me back. And then I never heard from her
again until later on that afternoon." Defendant then sent K.O.
three text messages trying to coordinate an alternative time to
pick up the children. When K.O. did not immediately respond to
defendant's messages, he sent an additional text message stating,
"I don't mean to bother you but it's now over [forty] minutes
since I reached out to you, can you please let me know the status.
Thank you and sorry for the mix up this morning."
At 6:36 p.m., K.O. sent defendant an email declining his
request "to schedule a visitation that deviates from the court-
mandated visitation schedule." K.O. did offer to "arrange for an
additional phone call tomorrow . . . [i]f you'd be interested in
this."
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At 6:50 p.m., defendant responded by sending an email
addressed to K.O., but inserting "The Problem" between her first
and last name. The email stated:
Once again, you are again in contempt of court
and your behavior will once again be brought
before the judge in family court. Your
actions clearly do not represent the best
interest of the children and I pray for you.
Based upon the recent remarks presented in
court, I thought you would go above and beyond
to satisfy the requests of the judge, but
apparently, you think and feel that you are
above the law. You[r] actions do not hurt me,
but they are damaging the well[-]being of the
children and again, I pray for you. So telling
me that you already have plans (even [though]
you are at home) because of the holiday season
is erroneous since I was willing and able to
meet you at any other location for your
convenience.
With that I wish you all the best.
At trial, K.O explained that defendant's email made her feel
"[i]ncredibly nervous. He has tried to hold me in contempt of
court before." On January 12, 2015, after meeting with her
attorney, K.O. went to the local police department and filed
complaints for harassment and contempt against defendant.
On March 25, 2015, defendant appeared in court and stated his
intention to apply for a public defender. On April 22, 2015,
defendant returned to court and advised the judge that his
application for a public defender had been denied. At that point,
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the judge questioned defendant to confirm defendant was making a
knowing and voluntary waiver of his right to counsel.
The case proceeded to trial on May 19, 2015, with the State
presenting testimony from K.O. and the police officer who took her
complaint. Defendant, appearing pro se, testified on his own
behalf. At the conclusion of the testimony and summations, the
trial judge found defendant guilty of both harassment and contempt.
The judge stated that defendant's phone call and text messages to
K.O. were solely about the children, there was a reason for those
communications. The email, however, was not about the children;
it was about defendant's "ex-wife." The judge stated that when
defendant referred to his ex-wife as "The Problem," he was
"shifting the blame" for his mix-up to her. Because the judge
found the email did not constitute a permitted email concerning
the children, but instead was a "lecturing" email attempting to
shift the blame for defendant's own mistake to his ex-wife, he
concluded the email violated the order of protection, as modified.
The judge further concluded the email constituted "a criminal
offense of harassment[,] [g]iven the history in this case."
II.
Our review of a Family Part judge's findings is deferential
"to those findings of the trial judge which are substantially
influenced by his [or her] opportunity to hear and see the
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witnesses and to have the 'feel' of the case, which a reviewing
court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999)
(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "Deference
is especially appropriate 'when the evidence is largely
testimonial and involves questions of credibility.'" Cesare v.
Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons
to J.W.D., 149 N.J. 108, 117 (1997)).
The purpose of the Act is to assure victims of domestic
violence "the maximum protection from abuse the law can provide."
State v. Hoffman, 149 N.J. 564, 584 (1997) (quoting N.J.S.A. 2C:2-
18). To establish a disorderly person's contempt of court, the
State must prove that defendant "purposely or knowingly" violated
a restraining order. N.J.S.A. 2C:29-9(b); State v. L.C., 283 N.J.
Super. 441, 447 (App. Div. 1995), certif. denied, 143 N.J. 325(1996). "[T]he evidence must allow at least a reasonable inference
that a defendant charged with violating a restraining order knew
his conduct would bring about a prohibited result." State v.
S.K., 423 N.J. Super. 540, 547 (App. Div. 2012). N.J.S.A. 2C:2-
2(b)(2) states in relevant part: "A person acts knowingly with
respect to the nature of his conduct or the attendant circumstances
if he is aware that his conduct is of that nature, or that such
circumstances exist, or he is aware of a high probability of their
existence."
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A person is guilty of harassment if he or she, with the
purpose to harass another,
a. Makes, or causes to be made, a
communication or communications
anonymously or at extremely inconvenient
hours, or in offensively coarse language,
or any other manner likely to cause
annoyance or alarm; [or]
. . . .
c. Engages in any other course of
alarming conduct or of repeatedly
committed acts with purpose to alarm or
seriously annoy such other person.
[N.J.S.A. 2C:33-4.]
Under either section of this statute, a defendant must act
with the purpose to harass. Bresocnik v. Gallegos, 367 N.J. Super.
178, 182-83 (App. Div. 2004). Subsection (a) targets specific
modes of speech, including communications "at extremely
inconvenient hours," and requires that the manner of speech be
"likely to cause annoyance or alarm." Hoffman, supra, 149 N.J.
at 576 (quoting N.J.S.A. 2C:33-4(a)). Subsection (c) requires a
course of repeated conduct, motivated by a higher degree of
purpose, "to alarm or seriously annoy." Id. at 580. The
harassment statute was not enacted to "proscribe mere speech, use
of language, or other forms of expression." L.C., supra, 283 N.J.
Super. at 450; see also State v. Fin. Am. Corp., 182 N.J. Super.
33, 36-38 (App. Div. 1981). Rather, since the First Amendment to
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the United States Constitution "permits regulation of conduct, not
mere expression," the speech punished by the harassment statute
"must be uttered with the specific intention of harassing the
listener." L.C., supra, 283 N.J. Super. at 450.
Regarding the harassment charge, "[a] finding of a purpose
to harass may be inferred from the evidence presented[,]" and
"[c]ommon sense and experience may inform that determination."
Hoffman, supra, 149 N.J. at 577. Nonetheless, we note that
purposeful conduct "is the highest form of [mens rea] contained
in our penal code, and the most difficult to establish." State
v. Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). Its
establishment requires proof, in a case such as this, that it was
the actor's "conscious object to engage in conduct of that nature
or to cause [the intended] result," N.J.S.A. 2C:2-2(b)(1), i.e.,
to alarm or seriously annoy another person. A person's assertion
that the conduct is harassing is not sufficient. J.D. v. M.D.F.,
207 N.J. 458, 484 (2011). Further, a "victim's subjective reaction
alone will not suffice; there must be evidence of the improper
purpose." Id. at 487.
Here, the judge made no specific finding defendant acted with
this requisite purpose, nor may we view defendant's words as
implicitly embodying a purpose to harass. Accordingly, in the
absence of this integral finding, the judge's determination that
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defendant committed harassment must be reversed. See Corrente v.
Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995).
We note, however, that reversal of defendant's harassment
conviction does not impact defendant's contempt conviction arising
out of the same conduct. In Hoffman, supra, 149 N.J. at 589, the
Court sustained a contempt conviction without a finding of guilt
on a related harassment complaint, because the mailing of letters
by defendant to the victim constituted contact that was prohibited
by the restraining order. Here, defendant's email to his ex-wife
went beyond the proscription of the order of protection, which
allowed communications "with respect to the subject children,"
thus violating the order.
Regarding the contempt conviction, we conclude the record
supports the judge's factual findings, and the judge applied the
correct legal principles in reaching his ultimate decision.
Accordingly, we discern no basis to reverse the contempt
conviction. As for the harassment conviction, we are constrained
to reverse, based upon our review of the trial record.
Finally, we briefly address defendant's argument that the
trial court failed to elicit a knowing, voluntary, and intelligent
waiver of his right to counsel. Based upon our review of the
court's colloquy with defendant on April 22, 2015, four weeks
before the trial in this matter, we conclude this argument lacks
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sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed in part, and reversed in part.
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