STATE OF NEW JERSEY v. RONALD KOLENDA

 

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2044-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD KOLENDA,

Defendant-Appellant.

 

Submitted: October 6, 2005 - Decided:

Before Judges Stern and Fall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket Number FO-14-95-05.

Maynard & Truland, attorneys for appellant (Joe B. Truland, Jr., on the brief).

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Ronald Kolenda appeals from his conviction in the Family Part on the disorderly persons offense of domestic violence contempt, contrary to N.J.S.A. 2C:29-9b. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

On September 5, 2002, a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to 2C:25-35, was entered against defendant in favor of Coleen M. Kolenda, defendant's wife, in docket number FV-21-596-02. The order prohibited defendant from, inter alia, committing any future acts of domestic violence against Ms. Kolenda; going to the residence or place of employment of Ms. Kolenda; having any oral, written, personal or other form of contact with Ms. Kolenda; making or causing anyone else to make harassing communications to Ms. Kolenda; from stalking, following, or threatening to harm, stalk or follow her; and from possessing any weapons. Ms. Kolenda was also awarded custody of the parties' two children, with the issues of defendant's parenting time and child support to be resolved in the parties' pending matrimonial litigation. In a separate domestic violence action, a FRO had also been issued against Ms. Kolenda in favor of defendant, under docket number FV-21-597-02.

The matrimonial litigation proceeded. On November 3, 2003, the terms of a property settlement agreement were placed upon the record in that case. However, Ms. Kolenda later contended that she had not entered into the agreement voluntarily. Following a plenary hearing on that issue, the trial court issued a letter opinion dated March 8, 2004, finding that the agreement was enforceable. On April 30, 2004, the Family Part issued an amended dual judgment of divorce, incorporating the terms of their agreement.

Under the terms of the judgment, defendant and Ms. Kolenda were to share joint legal custody of their two minor children: Jessica, born on January 3, 1993; and Ronald, born on May 7, 1995. Ms. Kolenda was to serve as the primary residential custodian of the children, with defendant designated as the parent of alternate residence. An extensive custodial and parenting-time schedule was set forth in the final judgment.

The judgment permitted written communication between the parties on several issues, including parenting time, and specifically stated that "[t]he parties will each dismiss the Final Restraining Order that each has against the other party." There were no specifications in the final judgment concerning the method by which defendant would pick up or drop off the children when exercising his parenting time, and there were no restrictions concerning driving his vehicle onto Ms. Kolenda's driveway on those occasions.

On September 22, 2004, Police Officer Anthony Bruno of the Randolph Police Department filed a complaint against defendant alleging that on September 9, 2004, defendant did

purposely or knowingly violate an order entered under the provisions of the Prevention of Domestic Violence Act, specifically by driving his vehicle into the driveway of 274 Dover Chester Rd., and then placing a phone call to Coleen Kolenda, in violation of the no contact provision of the final restraining order. (Warren County FV-21-596-02).

[Emphasis added.]

On October 20, 2004, an amended FRO was entered against Ms. Kolenda in FV-21-597-02, incorporating portions of the language contained in the amended final judgment of divorce permitting non-harassing contact between the parties.

The domestic violence contempt trial was conducted in the Family Part on November 30, 2004. At a prior pre-trial hearing, defendant had indicated he would not be retaining counsel and would represent himself; he did.

Ms. Kolenda testified that on September 21, 2004, defendant arrived at her home at approximately 3:35 P.M. to pick up the children for his parenting time. Ms. Kolenda stated she was studying for a nursing exam and the children were doing homework. Defendant called Ms. Kolenda's residence on his cell phone after pulling into the driveway of her house, and the following exchange allegedly took place:

[Defendant said] "[g]et the kids out. Get the kids out of the house." And I looked at the clock and I said, "It's not 4 o'clock." And he called me a stupid bitch[.] [He said] "You stupid idiot. I'm going to come in there and 'F' you up."

Ms. Kolenda further claimed that defendant was "screaming" and that he had referred to her as a "stupid cunt." At this point, Ms. Kolenda hung up the telephone and called the police.

She stated that the conversation was "[v]ery brief; about a minute, minute and a half." Ms. Kolenda testified that there was only one call, or that if there was a second call, the children picked up the phone. Ms. Kolenda stated she had no doubt as to the defendant's identity because she recognized his voice and saw his number on the caller ID. Furthermore, she denied talking with the defendant since the restraining order had been in effect, stating "there's no need[.]" Ms. Kolenda admitted, however, that the two had exchanged letters and

e-mails in the past but did so no longer.

On cross-examination, defendant questioned Ms. Kolenda about various forms of contact (phone calls, e-mails) that the two had utilized after the restraining order had been issued. Ms. Kolenda admitted that she had called the defendant approximately a year prior to the court date, but only in reference to getting help while she was allegedly ill with cancer.

The trial judge concluded that both parties may have been responsible for breaching the outright prohibition of communication; however, the judge noted that defendant could still have violated the restraining order based on whether the language allegedly used was harassing. The judge stated, in pertinent part:

Not - you know, I'll accept, and I think she wouldn't deny, there's been calls made and - she, perhaps, I don't know, maybe had the same understanding that once this divorce was amended that she could - both of you could communicate solely regarding the children, and . . . so forth. And that's certainly your defense. As I said, the problem that the State's case is bringing forth, that your problem is for this Court to, you know, deal with the issues of these statements that were made. Because even if, as I said, it's very common in -- in -- with divorces and all that we will allow, in a restraining order, nonharassing, nonabusive contact regarding the kids. . . [t]he normal things that parents have to talk about. That's permissible with -- with -- if the restraining order says that.

And your defense, so far from what I'm hearing, is that you recognize the restraining order technically didn't say that until after this September date, but the divorce seemed to indicate some language there and Court ordered the divorce, and I -- I could understand people who aren't lawyers and with lawyers representing them not telling them otherwise what someone could think that that might be the case.

At the time of the call, Ms. Kolenda was with her friend and study partner, Walter Pasuco. She testified that she had been dating Pasuco for about seven or eight months before the incident occurred. Pasuco was called by the State as a witness, and testified that he was at Ms. Kolenda's house on September 21, 2004 and overheard portions of the phone call. He stated, in part:

I guess there were words exchanged. Ms. Kolenda appeared upset, and as I put my arm around her and she leaned the phone away from her ear, I heard -- I saw

-- verbal comments being made.

* * * *

I heard a comment about, "If the kids aren't out, I'm coming in," and, "I'm going to break," something, . . . I wasn't sure what words were after that.

At the close of the State's case, defendant presented a phone bill that documented the calls he had made on September 21, 2004. Those records indicated that defendant had made two calls to Ms. Kolenda's home at exactly 3:47 P.M., one right after the other. The phone records further indicated that defendant had called 411 for information at 3:48 P.M. Defendant contended that this call was to the police, and that he made it because Ms. Kolenda was interfering with his parenting rights. Based on these records, defendant testified that the following events had actually occurred, in contrast to Ms. Kolenda's version of the events:

Because the reality of what went on was, when I called to have the children come out of the house, talk to my children like I always do, "Come on out, guys, I'm in the driveway," as opposed to beeping horns, notifying the neighborhood that I'm out there, I called up, she answered the phone and says, "They don't come out 'til 5 o'clock," and she hung up the phone. I called back, she answered the phone again, and I said, "Can I speak to the children?" And she said, "5 o'clock, I told you," and hung up, all within one minute, Your Honor. I got on the phone right away and I called the police department because she was interfering with my custody.

Defendant denied making any harassing comments to Ms. Kolenda.

Defendant attempted to enter certifications from the matrimonial action into evidence to purportedly demonstrate that Ms. Kolenda had previously lied to a court during a prior hearing. Defendant also presented a previously-issued written decision from a Family Part judge, which had determined that Ms. Kolenda had not been credible during her testimony concerning entry into the property settlement agreement. The State objected to admission of that evidence, arguing that it was irrelevant and constituted inadmissible hearsay. The trial judge found the judge's written decision on that issue in the matrimonial action to be irrelevant and inadmissible.

Finally, defendant submitted a letter from Ms. Kolenda dated September 28, 2004. Defendant argued that if his wife was honestly afraid of him, she would not write a letter stating "[Defendant] needs to call them and tell them when he's coming." The prosecutor noted, however, that in the letter Ms. Kolenda further stated that it is

permissible for him to pick up the children at the end of my driveway at appropriate times. What he cannot do is threaten or harass me or my family in doing so. If he does it, I will call and have it reported to the police, as he has done so in the past. It is fine for Mr. Kolenda to telephone the house to speak with the children. I will not and have not interfered with him speaking to them as by the phone.

The trial judge found defendant guilty of violating the restraining order. Initially, the Court determined that there may have been some confusion created by the final judgment and domestic violence orders regarding whether defendant was permitted to contact Ms. Kolenda by telephone in a non-threatening, non-harassing way. The judge attributed the confusion to an order issued after the subject FRO, giving rise to reasonable doubt as to whether defendant "purposely or knowingly" violated the restraining order simply by calling the house.

The trial judge determined, however, that defendant had used language that was "harassing" and "abusive" in nature, thereby violating the restraining order. In reaching that conclusion, the judge determined that the testimony of Ms. Kolenda and Mr. Pasuco was credible, specifically crediting Pasuco's testimony regarding what he had heard, and Ms. Kolenda's reaction. The judge further determined that defendant had been upset at the time of the incident, which may have caused him to use the offensive language.

Specifically, the judge found that defendant had called Ms. Kolenda "all kinds of obscene names, including stupid idiot and that he was going to come in and . . . cause all kinds of problems for her." The judge stated: "I find that his language was harassing, abusive in nature." The judge found defendant guilty. Defendant was sentenced to a probationary term of one year, with the condition that he complete thirty hours of community service. Applicable mandatory fines and penalties were also imposed.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE DEFENDANT'S CONVICTION MUST BE REVERSED-THE TRIAL JUDGE FAILED TO PROPERLY ADVISE THE DEFENDANT OF HIS RIGHT TO COUNSEL.

POINT II

THE DEFENDANT'S CONVICTION MUST BE REVERSED-THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT HE VIOLATED A RESTRAINING ORDER.

POINT III

THE DEFENDANT MUST BE GRANTED A NEW TRIAL-THE TRIAL COURT PERMITTED THE TESTIMONY OF A STATE WITNESS WHO HAD NOT BEEN DISCLOSED TO THE DEFENDANT PRIOR TO TRIAL.

POINT IV

THE DEFENDANT'S CONVICTION MUST BE REVERSED-THE TRIAL JUDGE FAILED TO PROPERLY ADVISE THE DEFENDANT OF HIS RIGHT AGAINST SELF-INCRIMINATION.

POINT V

THE DEFENDANT MUST BE GRANTED A NEW TRIAL-THE TRIAL COURT FAILED TO ADMIT RELEVANT EXCULPATROY EVIDENCE.

I.

Defendant first argues that his conviction must be reversed because the trial court failed to properly advise him of his right to counsel. Defendant notes that he was charged with a disorderly persons offense, which exposed him to a fine up to $1,000, mandatory monetary penalties, potential incarceration for a term up to six months, and a criminal record. Specifically, citing to R. 3:4-2(c)(3), defendant contends that the trial court failed to explain his right to counsel and, if indigent, his right to appointment of counsel. See Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1987) (establishing that there is a right to counsel whenever the defendant is exposed to a "consequence of magnitude"); State v. Ashford, 374 N.J. Super. 332, 337 (App. Div. 2004) (noting that the trial court, in a domestic violence contempt prosecution, must advise defendant of his right to counsel or secure a waiver of that right if he was entitled to the assignment of counsel as an indigent).

Defendant first appeared before the trial court at a preliminary hearing conducted on November 16, 2004. He pled not guilty to the charge, and informed the court he would be representing himself. The following colloquy then ensued between the trial court, defendant and prosecutor:

THE COURT: Mr. Kolenda, do you have an attorney representing you?

THE DEFENDANT: No, I don't Your Honor.

THE COURT: Okay. All right. You've had a chance, I assume, to talk about this matter with the Prosecutor?

THE DEFENDANT: Yes, I did, Your Honor.

THE COURT: All right. And does --

PROSECUTOR: Judge, my understand[ing is] that he wants to plead not guilty and set the matter for trial.

THE COURT: Okay. We will enter a not guilty plea for you today, and the case is going to be brought back here, I guess, for the 30th?

THE CLERK: Yes.

THE COURT: It'll be November 30 at 8:30 in the morning, here. And any --

PROSECUTOR: Your Honor, is -- are you going to be -- Mr. Kolenda, are you going to be representing yourself at trial?

THE DEFENDANT: I'll probably represent myself at trial. Your Honor, I have not been able to -- to receive copies of the reports -- the police reports because of it being a domestic violence issue.

PROSECUTOR: Judge, we'll provide him with a copy of discovery before he leaves the court today being that he's going to represent himself at trial.

THE COURT: You'll get the copies, and at the same time, you're obligated -- if you're going to represent yourself, if there are any witnesses you are going to call or you have any documents, they must be given to the Prosecutor prior to the 30th, okay?

The State concedes that the trial court "failed to expressly tell defendant of his right to retain counsel" and that "this case exposed him to a consequence of magnitude." The State claims, however, that "there is no blanket rule that failing to advise an accused of the right to counsel automatically requires reversal." Instead, the State suggests the critical issue is whether the defendant was indigent. The State cites to State v. Laurick, 120 N.J. 1, 11-13, 16-17 (1990), cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), for the proposition that if the defendant is not indigent, he must prove (1) that the trial court failed to advise him of his right to retain counsel; (2) he did not know of the right and (3) the absence of counsel had an impact at trial.

Where a defendant is charged with a non-indictable offense, R. 3:4-2(c)(3) requires that a judge shall "inform the defendant of the right to retain counsel and, if indigent and entitled by law to the appointment of counsel, the right to be represented by a public defender or assigned counsel[.]" The right to be informed of counsel is of the utmost importance, and we have found the failure to uphold this right to be the basis for reversal.

In State v. Hishmeh, 266 N.J. Super. 162, 166 (App. Div. 1993), we stated that "it is clear that each defendant must be given an individual statement concerning the right to counsel if the defendant faces a significant penalty, a 'consequence of magnitude.'" In Hishmeh, defendant was involved in a hit-and-run accident after running a red light. Id. at 164. There was a factual issue about what defendant did after the accident, but defendant was charged with leaving the scene of an accident, N.J.S.A. 39:4-129. At the municipal court trial, the defendant was not advised of her right to counsel. Id. at 165. Furthermore, the municipal court judge permitted the police officer to act as a prosecutor, and informed the defendant that she would be subject to the officer's cross-examination if she chose to testify. Ibid. The defendant stated, "I'd like to testify but since I don't have an attorney to cross-examine me, since [the police officer] is going to cross-examine me, I just want to sit out," and, "I'd like to testify but I reserve that right not to because I don't have an attorney to cross-examine while [the police officer] states on the, you know, is working on the State's behalf." Ibid.

Although we stated that "we do not endorse a mandatory rule that would require an upsetting of convictions in all cases where a defendant is not individually advised of his or her right to counsel," we ultimately determined that the aggregate circumstances of the particular case called for a new trial. Id. at 168. In concluding that the numerous errors warranted a new trial, we emphasized the unusual procedure (allowing an officer to act as prosecutor), and the defendant's wish to testify but for a lack of an attorney. Id. at 167-68. We found these factors, when coupled with the court's failure to advise the defendant of her right to an attorney, warranted a new trial. Id. at 168. See also State v. Gonzalez, 114 N.J. 592 (1989)(reversing the defendant's conviction based on the municipal court's failure to adequately advise defendant of right to counsel).

In Ashford, supra, the defendant was convicted of violating a temporary restraining order by allegedly going to his ex-girlfriend's apartment and breaking her window. 374 N.J. Super. at 333-34. At trial, the judge entered into the following colloquy with defendant:

THE COURT: Well, Mr. Ashford, you'll be representing yourself. Is that correct, sir?

MR. ASHFORD: Yes.

THE COURT: All right. And you're perfectly comfortable with that. Is that right?

MR. ASHFORD: I just-can I have a brief conversation with the prosecutor? Is that permitted?

THE COURT: Well, that would be up to the prosecutor. She has no obligation to speak to you. I tell you quite frankly, sir, she is the prosecutor. If she chooses to have an investigator present during the discussion anything you say might be used, but you know, that's up to her, not up to me, sir.

MR. ASHFORD: Well, it's alright then. I just want to proceed and get this over with.

[Id. at 336.]

We determined that, "[t]his colloquy was not sufficient to advise defendant of his right to counsel or to secure a waiver of that right if he was entitled to the assignment of counsel as an indigent." Id. at 337.

Here, at defendant's initial appearance, the colloquy with the trial court judge is nearly identical to the one in Ashford, and clearly does not comply with the provisions of R. 3:4-2(c)(3). Furthermore, the record reflects that defendant's lack of counsel at trial clearly affected his ability to fairly defend his case. Defendant failed to effectively object to the prosecutor's witness whom he was not informed of before trial. If defendant had effective counsel, he would have been apprised of Walter Pasuco's identity and perhaps the content of his proposed testimony. The trial court's reliance on Pasuco's statements to bolster Ms. Kolenda's credibility further emphasizes the harm resulting from defendant's lack of representation.

II.

Defendant also contends that the trial court erroneously permitted the testimony of Walter Pasuco in violation of R. 3:13-3(c)(6). Defendant claims that the State did not disclose the identity of this witness prior to trial, prejudicing his case.

The State submits that it offered the defendant a copy of the police report two weeks before trial. However, because Pasuco never gave a statement, defendant was unaware that Pasuco would testify until the day of trial. The State contends there was no discovery violation because Pasuco's name did not appear in the police report. The State further argues that because Pasuco was a fact witness, there was no obligation to give defendant a summary of his expected testimony. Finally, the State argues that Pasuco's testimony was not prejudicial because it did not exactly match Ms. Kolenda's, thereby raising credibility issues.

R. 3:13-3(c)(6) states that "[t]he prosecutor shall permit defendant to inspect and copy or photograph the following relevant material [including] . . . names and addresses of any persons whom the prosecutor knows to have relevant evidence or information including a designation by the prosecutor as to which of those persons may be called as witnesses[.]" R. 3:13-3(g) provides sanctions for a party's failure to fulfill the duty of providing discovery, that include "permit[ting] the discovery or inspection of materials not previously disclosed, grant[ing] a continuance or delay during trial, or prohibit[ing] the party from introducing in evidence the material not disclosed, or . . . enter[ing] such other order as it deems appropriate." Ibid.; see R. 5:1-1 (stating that "quasi-criminal family actions shall also be governed by the rules in Part III insofar as applicable except as otherwise provided by the rules in Part V"). Additionally, we have stated:

A defendant has the right to be informed of the case against him. The identity of a person having relevant evidence may be withheld only for good cause for protection of confidential relationships and privileges recognized by law, and not even then if "disclosure of his identity is essential to assure a fair determination of the issues."

[State v. Morelli, 152 N.J. Super. 67, 74 (App. Div. 1977).]

Here, the prosecutor violated R. 3:13-(c)(6) by failing to disclose Walter Pasuco as a potential witness upon giving the defendant discovery. Because Pasuco's testimony was central to the State's case, the prosecutor should have been aware that Pasuco would testify even though his name was not on the police report. It is unlikely that the State would have called Pasuco as a witness without knowing whether he would offer favorable testimony.

Furthermore, defendant was clearly harmed by the prosecutor's violation because he did not know who this witness was or what he would say. The harm caused by the State's non-disclosure was compounded by the fact that defendant was representing himself. Although defendant did not formally object to Pasuco's testimony, he was clearly concerned about it because he was unprepared to counter the witness's assertions. On cross-examination, defendant repeatedly asked about when Pasuco met with the police:

Q. How come you don't show up anywhere in the police report, one. You know, I don't remember seeing any other cars there.

THE COURT: Mr. -- Mr. Pasuco, did -- were you there when the police came to the house?

THE WITNESS: Yes, I was.

THE COURT: Did --

THE WITNESS: I've met them on several occasions. They've been there --

THE COURT: Yes.

THE WITNESS: - - several times.

THE COURT: Did -- you said you don't recall -- you did not speak with the officers?

THE WITNESS: On that occasion, I don't know if I did. On other occasions, I have. I --

THE COURT: Yes. But on this particular occasion --

THE WITNESS: Particular one, I can't say with a certainty that I did speak with the police officer.

THE COURT: Okay. All right.

DEFENDANT: Out of more of a curiosity, I'd like to know what the other occasions were that the cops were there that they spoke with, but I'll -

THE COURT: Well, it's not relevant.

After this exchange, defendant was unable to effectively cross-examine the witness, instead asking the same questions asked during direct examination. If defendant had known in advance that Pasuco was a potential witness, he could have at least conducted an investigation to determine whether Pasuco was at Ms. Kolenda's house on that occasion, particularly since Pasuco's statement was not taken by the investigating police officer. Finally, Pasuco's testimony was clearly prejudicial to the defense because the trial court judge relied heavily on it in determining Ms. Kolenda's credibility. The judge specifically stated: "[Mr. Pasuco] indicates that he hears Mr. Kolenda say, though he didn't know who it was at the time, but I find, as a fact, it was Mr. Kolenda, say words such as break something or other. And that, coupled with the demeanor and reaction to the phone call by Ms. Kolenda, fits with what Ms. Kolenda has said to the Court about the nature of the call." The trial court's reliance on Pasuco's testimony to bolster Ms. Kolenda's testimony indicates prejudice.

III.

Defendant also asserts that the trial court committed reversible error by failing to inform him of his right against self incrimination, as required by R. 3:4-2(c)(2). The State concedes that there is no indication that the trial court advised defendant of this right at either the initial appearance or during trial. Nevertheless, the State contends that the failure to advise was harmless because "no power on earth could keep this defendant from telling his story."

R. 3:4-2(c)(2) provides that if the defendant is charged with a non-indictable offense, "the judge shall. . . inform the defendant of his right to remain silent and that any statement may be used against the defendant." We find nothing in the record on appeal establishing compliance with this rule.

IV.

Our review of the record discloses an additional flaw in these proceedings. The criminal complaint charges defendant with violating the subject domestic violence FRO "by driving his vehicle into the driveway" of Ms. Kolenda's property and by "placing a phone call to Coleen Kolenda, in violation of the no contact provision" of that restraining order.

At the conclusion of the trial, the judge concluded that, because of the conflicting orders in the various Family Part cases and past conduct by the parties, he could not find beyond a reasonable doubt that defendant had violated the restraining order by simply entering upon the driveway or placing the telephone call. Rather, the court focused on the content of that telephone conversation between defendant and Ms. Kolenda, and concluded that defendant's "language was harassing, abusive in nature[,]" which constituted a violation of the restraining order.

However, defendant was not charged with harassing Ms. Kolenda. The criminal complaint alleged that the conduct that constituted the violation of the restraining order were the acts of entering upon the driveway (he was prohibited from entering upon her property) and making the call to Ms. Kolenda (he was prohibited from having any contact). During preliminary discussions at the beginning of trial, the following colloquy illustrates that both the State and defendant believed that the charged violation was based on the conduct charged in the complaint, i.e., entering upon Ms. Kolenda's property and having prohibited contact by making the telephone call:

PROSECUTOR: Judge, [the police officer] observed the defendant's number on the victim's caller ID. The defendant provided me a phone bill today which does confirm that the number that he saw on the caller ID . . . belongs to him on his cell phone. So I would need him to testify to that. And he also observed him in the driveway, sitting in the vehicle.

DEFENDANT: Your Honor --

THE COURT: Yes.

DEFENDANT: -- nobody's debating that.

PROSECUTOR: Which -- that's --

DEFENDANT: It's in the police report. As far as the officer having to show, it's a waste of everybody's time. Nobody's debating that. The issue here is -- is --

PROSECUTOR: Judge, I think the defendant should watch what he says --

THE COURT: Yes.

PROSECUTOR: -- because there's no communication allowed.

* * * *

DEFENDANT: Actually, Your Honor, I was asking that this case would be dismissed on the grounds that I did not know that I was breaking any kind of restraining order.

THE COURT: Well, that's not going [to] be a good defense.

DEFENDANT: I have two orders from [Superior] Court judges saying that I can call my children and pick my children up, and that's what I thought I was doing. And that was the only reason why I was there. I was not there to harass anybody.

* * * *

THE COURT: Does the order clearly say you could have non-harassing, non-abusive telephone contact?

PROSECUTOR: No, it doesn't, Judge.

DEFENDANT: It doesn't say that.

THE COURT: Well, then you can't do it. It's that simple.

The defendant went on to inform the trial court that it was his understanding that because of the language in the final judgment of divorce, he believed that the domestic violence restraining orders had been dismissed. The colloquy continued:

THE COURT: So your defense is --

DEFENDANT: I was not aware that this divorce decree --

THE COURT: All right.

DEFENDANT: -- did not --

THE COURT: Well, that's --

DEFENDANT: -- supersede this. It came after.

THE COURT: Did you have a lawyer representing you?

* * * *

DEFENDANT: Did I have a lawyer? No. Not at the time, no.

THE COURT: Okay. Well, that [was] your choice if you didn't want to get legal advice and so forth. So what we're taking about, . . . the facts here sound like they're really not in dispute. Your defense is, I simply didn't know . . . what I was doing[.]

There was nothing in the criminal complaint that charged defendant with harassing conduct, or that would place him on notice that he would have to defend against anything pertaining to the actual content of the telephone conversation between Ms. Kolenda and him.

We conclude that the failure to inform defendant of his right to counsel, as required by R. 3:4-2(c)(3); the failure to advise defendant of his right against self-incrimination, as required by R. 2:4-2(c)(2); and the failure of the State to disclose the identity of Walter Pasuco as a witness, as required by R. 3:13-3(c)(6), collectively would require reversal of the conviction and a remand for a new trial. However, the findings of the trial judge supported an acquittal of the actual charge contained in the criminal complaint, i.e., driving upon the property of Ms. Kolenda, and having contact with Ms. Kolenda by phone. The basis for the conviction, however, was for conduct, i.e., harassment, that was not charged in the complaint. Accordingly, we are constrained to reverse the conviction. See, e.g., State v. Garrison, 230 N.J. Super. 609, 615-16 (App. Div. 1989) (holding that where the conviction is for a related, but not charged offense, and where there was no amendment of the complaint prior to disposition and, therefore, no right to be heard with respect to such charge, the conviction must be vacated).

V.

In Point II of his brief, defendant argues that the State failed to prove its case against defendant beyond a reasonable doubt. In Point V, defendant contends the trial court erred by failing to admit the prior findings by the Family Part concerning Ms. Kolenda's credibility during a prior proceeding in their dissolution action. In light of our disposition, we need not address these arguments.

The judgment of conviction is reversed.

 

Although the record is not clear as to the reason, the domestic violence restraining orders were not, in fact, dismissed by the Family Part.

(continued)

(continued)

27

A-2044-04T5

RECORD IMPOUNDED

October 21, 2005