STATE OF NEW JERSEY VS. ROBERT MOSTYN(FO-02-0218-16, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-4729-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT MOSTYN,
Defendant-Appellant.
_____________________________________________
Argued August 15, 2017 – Decided October 5, 2017
Before Judges Messano and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FO-02-0218-16.
Hilary L. Brunell argued the cause for
appellant (Mason Thompson, LLC, attorneys; Ms.
Brunell, on the briefs).
Michael R. Philips, Assistant Prosecutor,
argued the cause for respondent (Gurbir S.
Grewal, Bergen County Prosecutor, attorney;
Mr. Philips, of counsel and on the brief).
PER CURIAM
Defendant Robert Mostyn appeals from the Family Part's June
28, 2016 judgment of conviction finding him guilty of the
disorderly persons offense of contempt of a domestic violence
restraining order, N.J.S.A. 2C:29-9(b)(2), and the petty
disorderly persons offense of defiant trespass, N.J.S.A. 2C:18-
3(b)(1). The judge imposed a 30-day sentence, and suspended same
pending defendant's completion of a one-year period of probation.
I.
The evidence adduced at defendant's bench trial revealed that
on September 15, 2015, the victim, J.A., a college student at a
university in Florida, obtained a temporary restraining order
(TRO) against defendant, her ex-boyfriend, pursuant to Fla. Stat.
Ann. § 784.046 (West 2015). The TRO prohibited defendant from
having any contact or communication with J.A., entering or being
within 500 feet of J.A.'s residence and her school in Florida, and
entering specific locations in New Jersey, including a gym.
On September 21, police served defendant with the TRO at his
home. During the ten minutes he spent at defendant's home, Police
Officer John Rodriguez provided defendant with a copy of the TRO,
watched him read it, and explained defendant could not make contact
with J.A. or go to the specific locations. Defendant read the
TRO, acknowledged he understood its terms and then signed it.
That evening, defendant met with Anthony Colasanti, a New
Jersey attorney and family friend. Colasanti was not a member of
the Florida bar, did not practice in Florida and testified he had
never seen a Florida restraining order.
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Colasanti provided the following instructions to defendant:
[T]he intent of this order is that you have
no contact, not get within 500 feet of [J.A.],
and if you're telling me that [she] is in
Florida, I see no basis on this order
restricting you or limiting you [sic] movement
in New Jersey. But if [J.A.'s] in New Jersey
. . . , you can't go within 500 feet of her.
You can't go by her house; you can't go by her
school; you can't go by wherever is [sic] says
you can't go by, so you better make sure that
she'd [sic] either in Florida or she's in New
Jersey.
. . . .
[Defendant] told me that he had been a
member at the [gym] for . . . years and years,
and again, I said to him[,] if she's in
Florida, you want to go the [gym], make sure
she's in Florida. Do not go there if she's
in New Jersey.
Colasanti did not ask defendant how he knew J.A. was in Florida.
The next morning, September 22, defendant testified that he
spoke with his cousin who attended the same university as J.A. and
shared mutual friends with J.A. As a result, defendant believed
J.A. was in Florida and went to the gym.1
That same morning, Detective Brad Smith of the Ramsey Police
Department responded to a call that defendant was seen at the gym.
1
Defendant's cousin did not testify at trial. J.A. did testify
and acknowledged she was in Florida on September 22. She also
described in detail defendant's alleged physical assault that led
to his arrest in Florida and issuance of the TRO.
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Detective Smith reviewed surveillance videos, which verified
defendant's presence at the gym in the morning. After other units
located defendant driving his car, police conducted a traffic stop
and arrested defendant. He waived his Miranda2 rights and provided
a taped statement that was introduced into evidence at trial. We
quote briefly from that statement:
Q: Okay. Are you aware you are not permitted
to be [at the gym]?
A: I know, but I mean, I thought she would
have to be the one to call up and complain,
but she's not there. None of her family
members are, I can't believe, like I got
arrested.
Q: So you're aware that there is a restraining
order barring you from –
A: Temporary restraining order, yeah, but if
she's around. Like I asked – I told my mom
and everything, she said it's not a good idea
but. I'm like, I don't really know, it can't
be, she's not home. Like when she's not home,
she didn't call it in . . . .
During his trial testimony, defendant admitted going to the gym,
but insisted he relied on Colasanti's advice that he was barred
from specific locations only if J.A. was in New Jersey.
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
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Defense counsel argued the affirmative defense of ignorance
or mistake pursuant N.J.S.A. 2C:2-4. That section of our Criminal
Code provides in relevant part:
a. Ignorance or mistake as to a matter of
fact or law is a defense if the defendant
reasonably arrived at the conclusion
underlying the mistake and:
(1) It negatives the culpable mental state
required to establish the offense[.]
. . . .
c. A belief that conduct does not legally
constitute an offense is a defense to a
prosecution for that offense based upon such
conduct when:
. . . .
(3) The actor otherwise diligently pursues
all means available to ascertain the meaning
and application of the offense to his conduct
and honestly and in good faith concludes his
conduct is not an offense in circumstances in
which a law-abiding and prudent person would
also so conclude.
The defendant must prove a defense arising
under subsection c. of this section by clear
and convincing evidence.
[Ibid.]
In summation, defense counsel argued the "affirmative defense"
under subsection (c) applied because defendant took reasonable
steps after being served with the TRO and relied on Colasanti's
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advice in good faith. In addition, counsel argued defendant lacked
a culpable "mens rea."
The State countered by arguing the restraining order clearly
prohibited defendant from going within 500 feet of the gym and was
not limited to only when J.A. was in New Jersey. The State
contended defendant's claim was limited to subsection (c)(3) of
the statute, and defendant did not diligently pursue all available
means to ascertain the import of the restraining order, nor did
he honestly and in good faith conclude his conduct was permitted.
The judge found the TRO was clear and unambiguous and
defendant was aware of its terms. The TRO did not provide that
"defendant [was] to refrain from entering [the gym] only when
[J.A.] was there." The judge also found that defendant could not
have advised Colasanti at the time of the consultation that J.A.
was definitively in Florida.
The judge specifically found that defendant's testimony about
the September 22 phone call with his cousin in Florida was not
credible. The judge noted that the TRO resulted from defendant's
failure to stay away from J.A. after a no contact order in Florida
went unheeded. The judge further observed that defendant chose
to violate the TRO the morning after police served him. The judge
commented on defendant's demeanor during J.A.'s testimony and
during defendant's testimony. In finding defendant guilty of both
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offenses, the judge concluded defendant had failed to demonstrate
by clear and convincing evidence "there was reliance on a mistake
of law."
Before us, defendant raises the following arguments:
POINT I
THE DEFENDANT FORMED A GOOD FAITH BELIEF,
BASED ON ADVICE OF COUNSEL, THAT HE WOULD NOT
BE IN VIOLATION OF A FLORIDA RESTRAINING ORDER
WHEN HE WENT TO HIS NEW JERSEY GYM. HE
THEREFORE DID NOT KNOWINGLY VIOLATE THE ORDER
OR COMMIT THE CRIME OF TRESPASS.
A. SCOPE OF REVIEW
B. THE FAMILY COURT ERRED IN APPLYING THE
MISTAKE OF LAW DOCTRINE.
1. THE MISTAKE OF LAW DOCTRINE UNDER
N.J.S.A. 2C:2-4 WAS APPLICABLE TO
THE SPECIFIC INTENT CRIMES OF
CONTEMPT AND TRESPASS.
2. A MISTAKE OF LAW WAS FORMED AFTER
REASONABLE EFFORTS WERE MADE TO
DETERMINE WHETHER THE VISIT TO THE
NEW JERSEY GYM WOULD VIOLATE THE
TERMS OF THE FLORIDA NO CONTACT
ORDER.
3. THE FAMILY COURT'S FINDINGS WITH
REGARD TO MATERIAL
MISREPRESENTATION WERE LEGALLY AND
FACTUALLY INCORRECT.
We have considered these arguments in light of the record and
applicable legal standards. We affirm.
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II.
"An appellate court must accept a trial court's factual
finding if it is supported by sufficient credible evidence in the
record." State v. Arthur, 184 N.J. 307, 320 (2005) (citing State
v. Locurto, 157 N.J. 463, 472 (1999)). "Unlike an appellate court,
a trial judge has the 'opportunity to hear and see the witnesses,'
which includes observing gestures and facial expressions." State
v. Yough, 208 N.J. 385, 403 (2011) (quoting Locurto, supra, 157
N.J. at 471).
We owe no deference, however, to the "trial court's
interpretation of the law . . . and the consequences that flow
from established facts[,]" which we review de novo. State v.
Hubbard, 222 N.J. 249, 263 (2015). Questions of statutory
interpretation present purely legal issues, which we also review
de novo. State v. Grate, 220 N.J. 317, 329 (2015).
We explained the distinction between subsection (a) and
subsection (c) of N.J.S.A. 2C:2-4 in State v. Wickliff, 378 N.J.
Super. 328 (App. Div. 2005). There, the defendant, a bail
collection agent, entered certain premises to apprehend a fugitive
and was convicted of trespass. Id. at 331. On appeal, the
defendant argued the judge improperly denied him the opportunity
to present certain evidence about his training and failed to
properly instruct the jury on his mistake of law defense, namely,
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that he was taught under federal law applicable to New Jersey he
had license or privilege as a bounty hunter to enter the residence.
Id. at 333-34, 337. We reversed because of the judge's "compound
error" in barring certain evidence and wrongly instructing the
jury. Id. at 341.
We explained that under N.J.S.A. 2C:2-4(a)(1), a defendant
may invoke the mistake of law defense if he "reasonably arrived
at the conclusion underlying the mistake" and his mistake
"negatives the culpable mental state required to establish the
offense." Id. at 334 (quoting N.J.S.A. 2C:2-4(a)(1)). Subsection
(a) "does not really create a separate defense; rather it serves
to emphasize that a mistake may negate the culpability element
required for conviction of an offense." Id. at 334. Subsection
(a) "was, in effect, technically unnecessary because it simply
confirms that 'no person may be convicted of an offense unless
each element . . . is proven beyond a reasonable doubt.'" Ibid.
(alteration in original) (quoting State v. Sexton, 160 N.J. 93,
100 (1999)). "The mistakes of law covered by subsection (a) do
not involve errors over whether actions are criminal; they are
mistakes concerning legal issues that are relevant to proof of the
elements of an offense." Id. at 335 (citing Cannel, New Jersey
Criminal Code Annotated, comment 2 on N.J.S.A. 2C:2-4 (2005)).
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We contrasted this with the affirmative defense contained in
the "narrow terms" of subsection (c), whereby conduct is excused
by the defendant's "ignorance of the legal standard established
by the statute [he] is alleged to have violated." Ibid. The
defense offered by subsection (c) is available under "limited
conditions," and "[i]n such cases, it is incumbent on the defense
to establish its theory of mistake of law by clear and convincing
evidence." Id. at 336, 339 (citing N.J.S.A. 2C:2-4(c)).
Clearly, defense counsel's summation focused the judge's
attention only upon N.J.S.A. 2C:2-4(c)(3), arguing essentially
that defendant's conference with Colasanti evidenced a diligent
attempt to "ascertain the meaning and application of the offense
to his conduct," i.e., going to the gym, and resulted in
defendant's "good faith" conclusion that he would not violate the
TRO if he went to the gym. Ibid. Indeed, much of the judge's
oral decision focused on defendant's reliance on Colasanti's
advice. The judge sought to synthesize federal and New Jersey
decisional law which, in our opinion, had little to do with this
case.
Nevertheless, it is clear that the judge understood that
defendant bore the heavy burden of proving the affirmative defense
by clear and convincing evidence. He rejected defendant's claim
that he knew J.A. was in Florida based upon a phone conversation
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between defendant and his cousin, or that Colasanti was provided
with definitive information regarding her whereabouts. The judge
noted Colasanti was not familiar with Florida law. We defer to
the judge's factual findings which were largely dependent upon his
observation of the witnesses and their demeanor during trial.
Based on those factual findings, we cannot conclude that he erred
in determining that defendant had not established the affirmative
defense available under N.J.S.A. 2C:2-4(c)(3) by clear and
convincing evidence.
At oral argument before us, defense counsel predominantly
focused her attention on subsection (a) and argued the judge failed
to address its application to the proofs at trial. We cannot
fault the judge in this regard, since the entire argument of
defense counsel at trial on this point was little more than a
single sentence.3
To be guilty of either the fourth-degree crime or the
disorderly persons offense of contempt of a domestic violence
restraining order, a person must "purposely or knowingly violate[]
an order entered under the provisions of the Prevention of Domestic
Violence Act of 1991" or the equivalent legislation of another
state. N.J.S.A. 2C:29-9(b) (emphasis added). N.J.S.A. 2C:18-3(b)
3
Defendant is represented by different counsel on appeal.
11 A-4729-15T2
also requires the State prove a defendant acted knowingly in
committing a defiant trespass. See id. ("A person . . . knowing
that he is not licensed or privileged to do so, . . . enters or
remains in any place as to which notice against trespass is given
by . . . [a]ctual communication to the actor[.]") (emphasis added).
The Criminal Code defines the requisite mental state:
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. A person acts knowingly
with respect to a result of his conduct if he
is aware that it is practically certain that
his conduct will cause such a result.
"Knowing," "with knowledge" or equivalent
terms have the same meaning.
[N.J.S.A. 2C:2-2(b).]
Although the judge did not specifically address subsection
(a) in his findings, he concluded the State had proven defendant's
guilt beyond a reasonable doubt, thereby implicitly rejecting any
argument that defendant did not knowingly violate the TRO or enter
the gym with knowledge that he was permitted to do so. The
evidence supports the judge's factual findings, which in turn
support his legal conclusion.
The judge noted several times in his decision that the terms
of the TRO were clear and unambiguous on their face. Defendant
was fully aware that the TRO prohibited him from going to the gym.
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Yet, one day after being served with the TRO, defendant decided
to violate its terms. When arrested, defendant acknowledged in
his statement that he understood he was not supposed to be at the
gym and that his mother told him it was not a good idea. Defendant
did not tell police that he based his decision upon Colasanti's
advice; instead, he explained that he thought only J.A. could
"call up and complain." The judge specifically noted there was
no exception in the TRO that permitted defendant to go to the gym
or other prohibited places if J.A. were not in New Jersey.
Rejecting defendant's testimony, the judge found defendant "had
no way to know for sure [if J.A.] was [at the gym]."
In short, the judge's factual findings implicitly reject
defendant's mistake or ignorance defense and fully support the
judge's conclusion that defendant was guilty beyond a reasonable
doubt.
Affirmed.
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