STATE OF NEW JERSEY VS. E.J.H. (FO-20-0144-20, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4228-19T1
STATE OF NEW JERSEY,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
January 19, 2021
v.
APPELLATE DIVISION
1
E.J.H.,
Defendant-Respondent.
Submitted January 6, 2021 – Decided January 19, 2021
Before Judges Whipple, Rose and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FO-20-0144-20.
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for appellant (Michele C. Buckley, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
Bramnick, Rodriguez, Grabas, Arnold & Mangan, LLC,
attorneys for respondent (Michael Noriega, of counsel
and on the brief).
The opinion of the court was delivered by
1
We use initials to protect the confidentiality of the victim, R. 1:38-3(d)(10),
and a pseudonym for ease of reference.
ROSE, J.A.D.
The State appeals from the Family Part's July 7, 2020 order, sua sponte
dismissing its February 23, 2020 complaint that charged defendant E.J.H. with
the disorderly persons offense of contempt, N.J.S.A. 2C:29-9(b)(2), for violating
a temporary restraining order (TRO) issued under the Prevention of Domestic
Violence Act (Act), N.J.S.A. 2C:25-17 to -35. During the plea hearing, the trial
judge rejected defendant's factual basis and refused to accept defendant's guilty
plea, finding as a matter of law that defendant did not knowingly violate the
TRO. Instead, the judge determined that defendant's comments and lewd gesture
directed to his estranged wife, I.Y.H. (Irene) – by way of a "Nest" home security
camera consensually activated in defendant's home – did not constitute
proscribed "contact" under the TRO. We disagree. Accordingly, we vacate the
order and remand for reinstatement of the complaint.
The facts are straightforward; for purposes of this appeal, they are largely
undisputed. Issued on January 31, 2020, the TRO prohibited defendant from
"having any oral, written, personal, electronic, or other form of contact or
communication with [Irene]." The TRO also limited defendant's parenting time
with the couple's daughter to supervised visitation by two adult family members,
who were preapproved by Irene, and required defendant to "have the Nest
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cameras on at all times." The TRO was issued based upon allegations of an
incident that occurred on November 21, 2019 and the couple's prior history of
domestic violence.
Less than one month after the entry of the TRO, on February 23, 2020,
Irene filed the complaint at issue, claiming defendant "spoke directly to her via
the court[-]mandated N[est] camera during his supervised visitation of their
minor daughter." As alleged in the complaint, defendant "stopped speaking to
his parents" then "looked directly at the camera and stated, 'Oh I'm sorry I wasn't
nice to you. Good reason to keep my daughter from me for three months,
because I wasn't nice to you.'" Irene further reported defendant "then made a
lewd gesture at the camera."
On July 7, 2020, defendant agreed to plead guilty as charged; in exchange
the State recommended a probationary term, to be served concurrently with the
probationary term defendant was serving. During his plea allocution, defendant
acknowledged the TRO required the Nest camera's "active" operation during his
parenting time. Defendant said the issuing judge, who was not the plea judge,
ordered the activation of Nest cameras in defendant's home as an "amendment
to [the couple's] existing consent order." 2
2
Neither the consent order nor the plea agreement was provided on appeal.
A-4228-19T1
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Defendant admitted he "turned towards the camera," spoke, and "made a
gesture" that was "referred to in [the] complaint." When asked whether he
"knew by making that gesture or verbal communication into the camera" he
violated the TRO, defendant responded:
In hindsight, yes. . . . I don't want to, you know,
complicate things. I don't know when [Irene]'s
watching and when she's not. And my understanding is
I should have known. And if I should have known, and
[the Nest camera is] on . . . I'm imputed with that
knowledge, then . . . yes, I should have known, . . . and
in hindsight I shouldn't have done it.
Upon further questioning, defendant clarified he was "aware" those
communications would have violated the TRO if Irene was present at the time
they were made.
Concerned defendant's communications were not made "in person" but
rather via "a video camera that was ordered to be placed into a home," the trial
judge recessed briefly, reviewed the TRO, and conferred with the issuing judge.
Following colloquy with counsel, the judge dismissed the complaint, concluding
the order did not place defendant "on notice that while he's in his house, in his
living room with his family, he's not allowed to 'flip the bird' or curse or yell."
In reaching her decision, the judge noted defendant's consent to permit the
Nest cameras in his home did not "take away his freedom of speech" or "his
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right to get angry and yell in his home." The judge found defendant's conduct
did not constitute any contact prohibited by the terms of the TRO because "he
didn't call [Irene]. He didn't text her. He didn't send her a letter. He didn't go
to her house." Rather, Irene was "in his living room. She [was] in his house .
This is what she agreed to, to be in his house." This appeal followed.
We review de novo challenges to the factual basis for a guilty plea. State
v. Tate, 220 N.J. 393, 403-04 (2015). That is so because "[a]n appellate court
is in the same position as the trial court in assessing whether the factual
admissions during a plea colloquy satisfy the essential elements of an offense."
Id. at 404. Accordingly, we need not defer to the trial court's determination as
to whether a defendant presented an adequate factual basis for his plea. Ibid.Our review of the law is plenary. State v. Urbina, 221 N.J. 509, 528 (2015)
(citing Tate, 220 N.J. at 404).
Because a violation of a restraining order is punishable as a criminal act,
the defendant is entitled to the rights of all criminal defendants. N.J.S.A. 2C:25-
30. Trial courts may not accept a guilty plea unless there is a factual basis
supporting it. R. 3:9-2; see also Tate, 220 N.J. at 404. The defendant's factual
basis must satisfy each element of the offense charged. See State v. Perez, 220
N.J. 423, 432 (2015); State v. Campfield, 213 N.J. 218, 236 (2013); see also
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N.J.S.A. 2C:1-13(a) (requiring the State prove each element of the offense
charged beyond a reasonable doubt otherwise "the innocence of the defendant is
assumed").
A person is guilty of contempt "if that person purposely or knowingly
violates any provision in an order entered under the provisions of the [Act]."
N.J.S.A. 2C:29-9(b)(1). Conduct constituting a violation of a domestic violence
restraining order, which would otherwise not constitute a crime, is treated as a
criminal disorderly persons offense and is prosecuted in the Family Part without
indictment. Ibid.; N.J.S.A. 2C:25-30.
Pertinent to this appeal, "the 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). "[T]he Act may not be construed in a manner that
precludes otherwise reasonable conduct unless the orders issued pursuant to the
Act specifically proscribe particular conduct by a restrained spouse." State v.
Krupinski, 321 N.J. Super. 34, 45 (App. Div. 1999). "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." N.J.S.A. 2C:2-2(b)(2).
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Our decision in State v. D.G.M., alluded to without citation in the trial
judge's decision, does not support her decision here. 439 N.J. Super. 630 (App.
Div. 2015). In D.G.M., the complainant obtained a final restraining order (FRO)
against the defendant pursuant to the Act, which "'prohibited' [the] defendant
'from having any (oral, written, personal, electronic or other) form of contact or
communication with'" the complainant. Id. at 633. Thereafter, the defendant
and the complainant attended their child's soccer game. Id. at 634. The
defendant sat near the complainant and recorded the game and the complainant
on his cell phone. Ibid.
The State in D.G.M. charged the defendant with criminal contempt under
N.J.S.A. 2C:29-9(b), and he was found guilty. Ibid. On appeal, we held that
the defendant had engaged in a form of "communication" with the complainant.
Id. at 640-41. We decided, however, the defendant's conviction for contempt
could not stand because he could not have known his specific conduct violated
the FRO and could result in a criminal prosecution. Id. at 642.
Although the TRO here did not expressly prohibit defendant from
directing remarks to – or making gestures at – Irene via the Nest camera, the
order expressly prohibited defendant from "having any oral" or "electronic, or
other form of contact or communication with [his estranged wife]."
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Acknowledging the Nest camera was working, defendant admitted under oath
he positioned himself toward the camera and directed his comments about Irene
and a lewd gesture at Irene, whose virtual presence in his home was expressly
authorized by the TRO.
For reasons that are neither clear from the record nor pertinent to this
appeal, defendant consented to the activation of three Nest home security
cameras in his home as a condition precedent to supervised parenting time with
his daughter. Pursuant to that arrangement, defendant opened his home and
permitted Irene to enter through electronic means to observe defendant's
interactions with their daughter. Indeed, the purpose of the Nest cameras was
to ensure Irene's ability to observe those interactions, following a three -month
lapse in defendant's parenting time.
Under the circumstances here, defendant was aware of the high probability
that Irene would hear his comments and observe his lewd gesture, which clearly
were directed at her. The medium chosen by defendant was not unlike sending
a video or message via text or email. As Justice Albin observed in the Fourth
Amendment context, "[t]he law must adapt to technological advances." State v.
Hubbard, 222 N.J. 249, 276 (2015) (Albin, J., concurring); see also C.C. v.
J.A.H., 463 N.J. Super. 419, 424 (App. Div.), certif. denied, 244 N.J. 339 (2020)
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(holding "the proliferate and exceedingly intimate communications between the
parties constituted a dating relationship within the meaning of the Act and
supported entry of the final restraining order").
Based on our de novo review of the record and governing principles, we
therefore conclude defendant acted knowingly, N.J.S.A. 2C:2-2(b)(2), and his
contact violated the TRO, N.J.S.A. 2C:29-9(b)(1). Accordingly, we reverse the
Family Part order, reinstate the complaint, and direct that the matter be
remanded to another judge with no prior involvement with this family. See State
in the Interest of C.F., 458 N.J. Super. 134, 147 (App. Div. 2019) (quoting
Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005)) ("In an
abundance of caution, we direct that this matter be remanded to a different judge
for the plenary hearing to avoid the appearance of bias or prejudice based upon
the judge's prior involvement with the matter . . . .").
Reversed and remanded. We do not retain jurisdiction.
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