STATE OF NEW JERSEY VS. GERALD L. BROWN (FO-13-0038-20 AND W-2019-445-1325, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3214-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GERARD L. BROWN,
Defendant-Appellant.
_______________________
Submitted April 12, 2021 – Decided May 4, 2021
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FO-13-0038-20 and Complaint No. W-
2019-445-1325.
Eileen S. Den Bleyker, attorney for appellant.
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outerio, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals from a February 28, 2020 judgment of conviction,
finding him guilty of harassment, N.J.S.A. 2C:33-4(a). Because defendant did
not receive notice of the harassment charge prior to trial, he was deprived of his
right to due process. Accordingly, we reverse his conviction for harassment.
In 2019, defendant was charged pursuant to N.J.S.A. 2C:29-9(b)(2) with
disorderly persons contempt for violating a domestic violence final restraining
order (FRO). The FRO, issued in 2005, prevented defendant from contacting
V.R. (Vera).1 Defendant and Vera never married but shared custody of their
son, J.B. (John). The FRO barred defendant from Vera's residence and her place
of employment. Regarding John, the FRO judge allowed defendant to pick him
up and drop him off at Vera's home. During the FRO hearing, the judge stated,
"Defendant is prohibited from having any kind of communication with [Vera,]"
and then added "[a]nd not regarding communications with your son." From
2005 until June 2019, defendant never communicated with Vera directly.
On June 16, 2019, Father's Day, John was visiting at his father's home.
Defendant planned to attend a family barbeque with his son. As they were
leaving for the barbeque, defendant noticed John was not dressed appropriately
for the occasion. Defendant instructed John to change his shirt, and he refused.
1
We refer to the parties by initials to protect their privacy. R. 1:38-3(d)(10).
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After John declined to change his shirt a second time, defendant indicated
he would contact Vera to take John home. However, because it was a long drive,
defendant rethought his original plan and decided to drive John to Vera's home.
Defendant then contacted Vera to inform her of the events that transpired
between father and son because he wanted everyone to be "on the same page."
Unbeknownst to defendant, John already texted his mother. In his text,
John told his mother "Dad is trying to starve me out . . . because I won't ch[an]ge
a shirt . . . ." John explained defendant was refusing to make breakfast based on
the shirt incident. Upon receiving the text, Vera agreed to take John home.
After defendant decided to drive John to Vera's home, John advised his
mother agreed to pick him up. Upon learning this information, defendant texted
Vera. The texts read:
Hello, there's no need to pick [John] up, I am coming to
Long Branch in an hour. I had asked [John] to change
his shirt because we were going somewhere for
breakfast and I asked him to change into something
much nicer and he refused. I kindly told him fine, he
can make his own breakfast or warm up anything in the
fridge. Sorry, but I'm not letting a 17-year-old
determine when he listens. I've been nothing but nice
to [John] and I demand respect. I did tell him that by
you picking him up is not coparenting, you need to
contact me first to see what [is] going on and then
decide what to do. I've taken him to . . . a barbecue in
Long Branch with family.
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. . . Any questions feel free to call. . . . But we [are]
going out, it's still my weekend. I will bring [John]
home at 3:00. . . . He is texting you and I just read to
him what I wrote to you so we all be on the same page.
Two hours later, defendant texted the following to Vera:
You can't teach [John] to be a man, but you certainly
have stunted his growth tremendously by sheltering
him. Today was absolutely why [John] does not know
how to figure things out and handle situations without
your help. [John] was safe, it was a normal situation
between father and son, and you interfered as usual.
Have a good day.
Vera did not respond to defendant's text messages.
Defendant knew the FRO prohibited him from contacting Vera. However,
defendant did not believe his texts were a violation of the FRO because he
understood there was an exception in the FRO allowing him to text Vera "in case
of a situation involving the child."
After sending the text messages to Vera, the police contacted defendant to
advise he violated the FRO. Defendant searched for a copy of the 2005 FRO to
confirm the violation of the order but was unable to locate the document.
On June 16, 2019, defendant was charged with disorderly-persons
contempt, N.J.S.A. 2C:29-9(b)(2), for violating the FRO. On January 17, 2020,
the court conducted a one-day trial on the contempt charge. Defendant and Vera
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were the only witnesses who testified. At the conclusion of the testimony, the
trial judge requested written summations from counsel.
In a February 28, 2020 ruling from the bench, the trial judge set forth his
findings of fact and conclusions of law. He noted the judge who issued the 2005
FRO said "a few confusing things," including communications related to the
parties' son. The trial judge remarked the FRO judge's statement was not the
"clearest" way of explaining the scope of communications between defendant
and Vera regarding their child.
Based on the filed charge, the trial judge correctly determined the State
had to "prove defendant purposely or knowingly violated the restraining order."
Defendant testified he did not recall the parameters of the FRO and had no
intention of purposely violating the FRO. Based on the testimony and
documentary evidence, the judge found defendant did not willfully violate the
FRO and acquitted defendant of the contempt charge.
After finding defendant not guilty of contempt for violating the FRO, the
judge sua sponte amended the charge against defendant to "a lesser charge of
harassment . . . N.J.S.A. 2C:33-4(a)." However, the State never charged
defendant with harassment.
In finding defendant guilty of harassment, the trial judge explained:
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I think [harassment is] the more appropriate thing here,
because I think these comments -- up until that point
where I read were fine, but once you started with those
comments directly against [Vera] and talking about
how she is parenting, that clearly could be harassing
and annoyed her, and based on her testimony and seeing
her it upset her. That's really what harassment is.
After finding defendant guilty of harassment, the judge imposed monetary fines.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT ERRED IN SUA SPONTE
AMENDING THE CHARGE TO HARASSMENT
UNDER N.J.S.A. 2C:33-4(a) DEPRIVING
DEFENDANT OF PROCEDURAL DUE PROCESS
UNDER THE STATE AND FEDERAL
CONSTITUTIONS AND VIOLATING PRINCIPLES
OF FUNDAMENTAL FAIRNESS.
A. The Conviction Cannot Be Justified Under the
Doctrine of Lesser Included Offenses, Nor That of
Related Offenses.
POINT II
THE EVIDENCE IN THE RECORD IS
INSUFFICIENT TO SUPPORT A CONVICTION
UNDER N.J.S.A. 2C:33-4(a). (Not Raised Below).
A. Insufficient Evidence in the Record to Prove
Defendant's Purpose Was to Harass.
B. Insufficient Evidence in the Record to Prove
Defendant’s Conduct Was Undertaken in an "Other
Manner Likely to Cause Annoyance or Alarm"
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Resulting in an Unconstitutionally Overbroad
Application of the Harassment Statute.
POINT III
THE CONDUCT ALLEGED IN THE COMPLAINT
WAS LEGITIMATE, CAUSED NO
DEMONSTRABLE HARM AND THE CHARGES
SHOULD HAVE BEEN DISMISSED UNDER THE
DE MINIMIS STATUTE.
"A trial court's interpretation of the law and the legal consequences that
flow from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
However, we defer to a trial court's "findings of fact because they 'are
substantially influenced by [an] opportunity to hear and see the witnesses and to
have the "feel" of the case, which a reviewing court cannot enjoy.'" State v.
Hubbard, 222 N.J. 249, 262 (2015) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)).
Defendant argues his conviction for harassment violated his due process
rights because he had no notice or opportunity to defend against the amended
charge. The State agrees, explaining it "cannot dispute that this error exists and
that it warrants reversal of the defendant's conviction for petty-disorderly-
persons harassment."
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Even if the State had not agreed, we are satisfied the trial judge violated
defendant's due process rights by sua sponte amending the charge against
defendant after completion of the trial. "Due process requires that the charging
instrument not only inform a defendant respecting the nature of the charge, but
it must also inform an accused of how many charges he or she faces and when
they occurred." State v. Salzman, 228 N.J. Super. 109, 114 (App. Div. 1987)
(citing State In Interest of K.A.W., 104 N.J. 112 (1986)).
Here, defendant did not receive notice of the harassment charge until after
the trial concluded. As a result of the failure to notify him of the harassment
charge prior to trial so he could properly defend himself, defendant was denied
due process. Having reviewed the record, we are satisfied defendant's
conviction for harassment must be reversed.2
We remand the matter to the trial judge to vacate defendant's harassment
conviction and enter a final judgment of acquittal on both the disorderly persons
contempt charge for violation of the 2005 FRO and the amended harassment
charge. The matter shall be deemed final such that the constitutional
proscription against double jeopardy precludes a retrial of defendant for the
2
Based on our reversal of the harassment conviction, we need not address
defendant's remaining arguments on appeal.
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events occurring on June 16, 2019. See State v. Currie, 41 N.J. 531, 536 (1964)
(explaining double jeopardy "justly assures that the State with its great resources
will not be permitted to harass and oppress the individual by multiple
prosecution or punishment for the same offense"). Additionally, the trial judge
shall order a refund of all fines and penalties paid by defendant as a result of the
harassment conviction.
Reversed and remanded. We do not retain jurisdiction.
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