STATE OF NEW JERSEY v. CHRISTOPHER ANDERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2458-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER ANDERSON,

Defendant-Appellant.

__________________________________

November 9, 2011

Submitted October 24, 2011 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FO-01-173-10-C.

Ackerman & Alsofrom, attorneys for appellant (Daniel D. Alsofrom, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent

(Julie H. Horowitz, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Christopher Anderson appeals from a judgment of conviction and sentence following his guilty plea to a disorderly persons charge of contempt for violating a domestic violence restraining order, N.J.S.A. 2C:29-9b. We dismiss the appeal.

At times relevant to this appeal, two final restraining orders were in force against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. One was entered on October 31, 2007, on behalf of victim L.R. The second was entered on June 4, 2008, on behalf of victim M.W. Both orders prohibited defendant from having any form of contact or communication with the victims.

On February 22, May 28, and June 11, 2009, five separate complaints were issued against defendant charging him with violating the terms of the M.W. restraining order by communicating with the victim and committing other offenses. Two of the complaints also charged defendant with making terroristic threats, N.J.S.A. 2C:12-3b, and one complaint charged him with stalking the victim, N.J.S.A. 2C:12-10c. The five complaints were designated chronologically by sequence numbers 40, 137, 138, 139, and 153.

On April 21, 2009, defendant was charged in another complaint with violating the terms of the L.R. restraining order by leaving messages for the victim on her home telephone. That complaint was designated by sequence number 102.

While those complaints were pending, yet another complaint was filed against defendant on October 9, 2009, charging that he had again violated the L.R. restraining order by calling the victim's telephone on September 19, 2009. That complaint was designated by sequence number 241.

In early December 2009, defendant negotiated a plea agreement with the State by which he agreed to plead guilty to contempt charges for violating the two restraining orders in exchange for an aggregate sentence of 365 days in prison. A written plea agreement was prepared and executed by defendant and the prosecution. It stated that defendant would plead guilty to a fourth-degree charge of contempt in an accusation to be filed, and the three disorderly persons charges of contempt in complaints 40, 102, and 153. The sentence would be 365 days in prison on the fourth-degree charge and thirty days in custody on each of the three disorderly persons charges, all sentences to be served concurrently. The plea agreement also contained the phrase "Dismiss any remaining DPs" next to explicit references to complaint numbers 137, 138, and 139.1 The plea agreement contained no reference to complaint number 241 for the September 19, 2009 charge.

On December 7, 2009, defendant appeared with counsel before a judge of the Law Division, Criminal Part. He pleaded guilty and was sentenced in accordance with the plea agreement to a term of 365 days in prison on the fourth-degree charge and thirty days concurrent on each of three disorderly persons charges of contempt. Our record does not include a transcript of the proceedings in the Criminal Part on December 7, 2009. Nor have we been provided the judgment of conviction or any dismissal order. It appears, however, that appropriate money penalties were also imposed as required by statute and the other charges contained in all outstanding complaints, except number 241, were dismissed.

On January 4, 2010, defendant appeared with counsel in the Chancery Division, Family Part, and entered a plea of guilty to the remaining disorderly persons complaint, number 241. In accordance with an oral plea agreement stated on the record, he was sentenced to a term of ninety days in custody, to run concurrently with the other sentences he was then serving, and appropriate money penalties as required by statute. The transcript of the plea and sentencing in the Family Part contains no objection to the entry of the guilty plea or sentence, or any other application by defendant.

On January 25, 2011, defendant filed a notice of appeal from the sentence imposed in the Family Part on complaint number 241. This court ordered that the attorney appointed to represent defendant in the Family Part without compensation continue the representation before us and that a free transcript of the Family Part proceeding be provided to defendant.

On appeal, defendant argues:

PLAINTIFF MADE AN ERROR PROSECUTING DEFENDANT IN REFERENCE TO WARRANT NO. W 2009 000241 AND DEFENDANT MADE AN ERROR PLEADING GUILTY TO THE CHARGE CONTAINED IN THE WARRANT REQUIRING A REVERSAL OF THE FINDING OF GUILT AND REQUIRING A DISMISSAL OF THE CHARGE.

We reject this argument and dismiss the appeal because the issue raised before us was never presented to the trial court. See State v. Robinson, 200 N.J. 1, 19-22 (2009) (appellate court will normally not consider issue not presented for decision to the trial court and raised for the first time on appeal). Defendant pleaded guilty on January 4, 2010, to the disorderly persons contempt charge contained in complaint 241 without ever suggesting to the court that the charge should have been dismissed under his written plea agreement of December 7, 2009. Moreover, he made no application to the Family Part to withdraw his plea of guilty after he was sentenced in accordance with his oral plea agreement of January 4, 2010, to a concurrent term in custody.

Nor do we find any merit in defendant's argument that complaint 241 should have been dismissed with other charges after his plea and sentence in the Criminal Part on December 7, 2009. The written plea agreement for that sentence contains no reference to complaint 241, and it does not indicate that the separate charge brought for the September 19, 2009 incident would also be dismissed. The reference to "Dismiss any remaining DPs" was adjacent to specifically designated complaint numbers. If defendant had a belief that the charge in complaint 241 would also be dismissed, he should have raised it initially either in the Criminal Part or in the Family Part.

Because no application was made in either court to dismiss complaint 241 and defendant voluntarily entered a plea of guilty to that charge in accordance with a plea agreement placed on the record, he may not challenge the conviction for the first time on appeal.

1 Because the copy of the plea agreement provided in our record is not completely legible, we assume that complaint number 139 is referenced rather than two separate references to complaint number 137.