STATE OF NEW JERSEY VS. R v. (FO-18-0181-17, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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-5336-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
R.V.,
Defendant-Appellant.
____________________________________
Submitted August 21, 2018 – Decided August 28, 2018
Before Judges Messano and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Somerset
County, Docket No. FO-18-0181-17.
Roberts & Teeter, LLC, attorneys for appellant
(Michael B. Roberts, on the briefs).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent
(Alexander C. Mech, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant R.V.1 was found guilty of contempt, N.J.S.A. 2C:29-
9(b), for violating a final restraining order (FRO) issued in
favor of A.L. The trial court sentenced defendant to a twelve
month term of probation and anger management counseling, and
imposed other mandatory penalties.
Appellant provides the following points for our
consideration.
I.
THE CONVICTION SHOULD BE REVERSED WHEN THERE
WAS INSUFFICIENT EVIDENCE PROVING A KNOWING
VIOLATION OF A RESTRAINING ORDER.
II.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
OF COUNSEL WHEN HIS ATTORNEY STIPULATED TO THE
ADMISSION OF THE FRO, ARGUED AN UNTENABLE
LEGAL POSITION, AND FAILED TO ADEQUATELY
CROSS-EXAMINE THE STATE'S WITNESS. (NOT RAISED
BELOW)
A. TRIAL COUNSEL WAS INEFFECTIVE FOR
STIPULATING TO THE ADMISSION OF THE
TEMPORARY RESTRAINING ORDER.
B. TRIAL COUNSEL'S TRIAL STRATEGY
WAS BASED UPON A FUNDAMENTAL
MISUNDERSTANDING OF THE LAW.
C. TRIAL COUNSEL'S INVESTIGATION
AND CROSS-EXAMINATION OF [C.L.] WAS
WHOLLY DEFICIENT.
1
We use initials to protect the identity of the parties.
2 A-5336-16T3
Having considered these arguments in light of the record and
applicable law, we affirm defendant's conviction.
On April 28, 2016, the Family Part in Somerset County issued
an FRO against defendant after finding he committed an act of
domestic violence against A.L., with whom he previously had a
dating relationship. The FRO barred defendant from A.L.'s
residence and place of employment, and an address in North
Plainfield. The FRO also prohibited defendant from having any
"oral, written, personal, electronic, or other form of contact or
communication" with A.L., as well as her sister, N.D.L., nephew,
C.A.D., and friend, S.H.
On December 10, 2016, defendant was charged with contempt for
"going to [A.L.'s] residence and denting her mailbox." A trial
on the matter was held on May 25, 2017, where the State presented
two witnesses: C.D., N.D.L.'s husband; and Jordan Rogers, a North
Plainfield Police officer.
C.D. testified that on December 10, at approximately 9:00
p.m., he was at his home in North Plainfield with N.D.L., C.A.D.,
and A.L., when he heard banging on the front door and window. He
approached the window and saw defendant, whom he recognized from
previous encounters, standing several feet away, illuminated by
light, banging on the door. Defendant's behavior prompted C.D.
to call the police, but defendant left prior to their arrival.
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Upon defendant's departure, C.D. went outside and noticed the
door, window and mailboxes were damaged. At the conclusion of
direct examination, C.D. positively identified defendant in court.
Officer Rogers explained he responded to the scene, spoke to
the witnesses, wrote a report, and noticed the mailboxes on the
property had been "tossed around, punched, [and] banged on."
Following his brief testimony, the State rested. Thereafter,
defendant elected not testify or call any witnesses. The defense
did attempt, to no avail, to introduce evidence that the FRO had
been dismissed prior to trial, but after the December 10, 2016
incident.
In his oral decision, the judge first stressed the parties
"stipulated at the commencement of trial that . . . defendant
received a copy of the [FRO] with its various prohibitions." The
court also found that, considering Officer Rogers' corroborating
testimony, C.D. credibly testified that on December 10, 2016, A.L.
and other protected parties were at home when he observed and
identified defendant banging on the front door and window, which
prompted him to call the police, and later discovered extensive
damage to the home's mailboxes. As a result, the court found
defendant was guilty of contempt for knowingly violating the FRO
by contacting protected parties. N.J.S.A. 2C:29-9(b). Defendant
appealed.
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Our scope of review of the factual findings of a judge sitting
without a jury is limited. State v. Locurto, 157 N.J. 463, 470-
71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)).
Moreover, in reviewing a decision of a family court, we "defer to
the factual findings of the trial court," N.J. Div. of Youth &
Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of
its "special jurisdiction and expertise in family matters." N.J.
Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)
(citation omitted). Deference is particularly appropriate when
the evidence is testimonial and involves credibility issues
because the judge who observes the witnesses and hears the
testimony has a perspective we cannot enjoy. Pascale v. Pascale,
113 N.J. 20, 33 (1988).
To be guilty of the disorderly persons offense of contempt
of an FRO under N.J.S.A. 2C:29-9(b), the State must prove beyond
a reasonable doubt that defendant was served with the FRO and
knowingly committed behavior that violated the order. State v.
L.C., 283 N.J. Super. 441, 447-48 (App. Div. 1995).
Before us, defendant essentially argues that because C.D. and
N.L.D.'s residence was not listed on the FRO, and no testimony was
elicited indicating a protected party resided at that location,
the State failed to prove he knowingly violated the FRO. We
disagree. While the FRO did not list C.D. and N.L.D.'s home as
5 A-5336-16T3
protected location, defendant's argument ignores the fact that he
was prohibited from having any "contact or communication" with
A.L., N.D.L. and C.A.D., regardless of location. We are satisfied
that appearing at a protected party's residence, causing a ruckus,
and damaging property constitutes attempted "contact or
communication" as contemplated by the FRO.
Thus, we discern no basis to reverse the contempt conviction.
The court's factual findings are supported by substantial,
credible evidence in the record and the court applied the correct
legal principles in finding defendant knowingly violated the FRO.
Lastly, defendant argues his counsel was ineffective in
stipulating to the admission of the FRO and for arguing that he
should have been acquitted because the underlying FRO was dismissed
prior to trial. We decline to consider defendant's arguments in
the present context, applying the general policy against
entertaining ineffective-assistance-of-counsel claims on direct
appeal because such claims involve allegations and evidence
outside the trial record. State v. Preciose, 129 N.J. 451, 460
(1992). To that end, a claim of ineffective-assistance-of-counsel
is best addressed in a post-conviction relief proceeding. Ibid.Affirmed.
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