STATE OF NEW JERSEY v. SIMO J. RUUTIKAINEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0135-04T30135-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SIMO J. RUUTIKAINEN,

Defendant-Appellant.

 

Submitted September 20, 2005 - Decided November 18, 2005

Before Judges Axelrad and Francis.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, I-03-11-2083.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Andrew S. Fried, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Simo Ruutikainen appeals from a final judgment of conviction and sentence. Following an unsuccessful motion to dismiss the indictment, defendant was convicted of third degree interference with custody, N.J.S.A. 2C:13-4a and fourth degree contempt of court, N.J.S.A. 2C:29-9. In so convicting, the jury found that the defendant took his son, "R," with the purpose of concealing him and depriving his mother, Melinda Smith, of custody and, in so doing, knowingly disobeyed a pre-existing custody order. Defendant was sentenced to an aggregate term of five years probation with the condition that he serve seventy-four days in the Monmouth County Correctional Center.

On appeal, defendant raises the following issues:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY AN INSTRUCTION ON THE LAW OF INTERFERING WITH CUSTODY THAT SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT AND WAS AMBIGUOUS AND CONFUSING.

A. THE INSTRUCTION UNCONSTITUTIONALLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT.

(Not Raised Below)

B. AMBIGUITIES IN THE LAW OF INTERFERENCE WITH LAWFUL CUSTODY MUST BE RESOLVED AGAINST THE STATE AND IN FAVOR OF THE CRIMINAL ACCUSED.

(Not Raised Below)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE.

(Not Raised Below)

POINT III

THE STATE'S RELIANCE ON ABSENTEE WITNESSES TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION.

(Not Raised Below)

POINT IV

THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED DISORDERLY OFFENSE OF FALSE IMPRISONMENT.

(Not Raised Below)

POINT V

THE PROSECUTOR'S COMMENT ON SUMMATION THAT THE TESTIMONY OF THE KEY STATE'S WITNESS WAS "UNCONTROVERTED" VIOLATED THE DEFENDANT'S RIGHT TO REMAIN SILENT AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELF-INCRIMINATION.

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT INSTRUCTED THE JURY THAT IT COULD INFER A CONSCIOUSNESS OF GUILT FROM "FLIGHT."

POINT VII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITES [sic] STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S DECISION DENYING THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

POINT VIII

THE DEFENDANT'S RIGHT TO A FAIR GRAND JURY INDICTMENT PROCEEDING AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S DECISION DENYING THE DEFENDANT'S PRE-TRIAL MOTION TO DISMISS THE INDICTMENT.

A. THE INDICTMENT SHOULD HAVE BEEN DISMISSED DUE TO THE PROSECUTOR'S INCORRECT PARAPHRASING OF THE CONSENT ORDER AND HIS FAILURE TO PROVIDE THE CONSENT ORDER TO THE GRAND JURY.

B. THE INDICTMENT SHOULD HAVE BEEN DISMISSED DUE TO PROSECUTORIAL INADVERTENCE BY MENTIONING PROBATION AND ALLOWING TESTIMONY THAT MAY HAVE BEEN INACCURATE.

POINT IX

THE CONVICTION FOR CONTEMPT OF COURT MUST MERGE WITH THE CONVICTION FOR INTERFERING WITH CUSTODY.

(Not Raised Below)

Having considered these contentions, the record and applicable law, excepting merger, we are convinced they are without merit.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. At the time of this incident, Melinda Smith was living in Beachwood with her three children, "L," "R," and "S," which she and defendant have in common. She and defendant have maintained a fourteen-year "on and off" relationship and cohabitated in her home until 2003 when defendant moved out, but retained a key.

Smith and defendant executed a custody consent order in February 2003, which was signed by a judge of the Ocean County Superior Court that gave custody to Smith "with parental visits as arranged between parents." Pursuant to their mutual agreement, defendant was permitted visitation every other weekend.

The day before the two youngest children's first day of school, Smith, having to work late and having made no day care arrangements, confirmed with defendant that he would pick up "S" and "R" from school and take them to his home in Howell, where she would then pick them up. Sometime after picking up the children, defendant went to Smith's home where he listened to a voice message recorded between Smith and her mother regarding defendant's failure to obtain employment and how Smith could not "get back" with the defendant. Upon hearing this conversation on Smith's answering machine, defendant became enraged and called Smith at work twice, each time yelling at her and hurling insults.

Smith left work and arrived at defendant's home simultaneously with defendant. After ordering the children to go into his home, defendant, who had removed the answering machine and receiver from Smith's home, told Smith to also enter the house and listen to the recorded message. After demanding the children to no avail, Smith entered defendant's home and ushered both children outside toward her vehicle. Defendant then grabbed "R" and told Smith he was taking "R," although that had not been agreed to by Smith. Defendant put "R" in his vehicle and drove away.

Smith called the Howell Police, who then issued a teletype to all New Jersey police departments with a description of defendant's vehicle. Howell Police Detective Rice notified the Monmouth/Ocean Criminal Investigation Bureau (MOCIB), National Crime Information Computer (NCIC), and Technology to Recover Abducted Kids (TRAK) with a description of defendant and a description of "R." Howell Police Corporal Grabowski called defendant's cellular phone number, which Smith had provided, and left a voicemail message to bring "R" to police headquarters. Approximately five minutes later, Corporal Grabowski received a call from the same number he had dialed. The party on the other end asked Grabowski to identify himself, which he did as "the Howell Police." The party then claimed he could not hear him and hung up. Grabowski recognized the voice as being the same voice heard on defendant's voicemail. Grabowski attempted to call back several times, but the calls went directly to voicemail. Detective Rice left twelve or thirteen messages for defendant.

Ocean Township Police Officer Bercovicz, who became involved in the case during a routine briefing and received standard teletype information that included the name of the person being sought along with a description, saw defendant's vehicle at the Tower Motel, approximately fourteen miles from defendant's home. With assistance from the Howell police, Officer Bercovicz entered defendant's room where he and "R" were asleep and placed defendant under arrest.

Defendant presented an affirmative defense at trial that he reasonably believed Smith had consented to his taking "R" overnight. In support of the affirmative defense, Seppo, defendant's brother, testified that defendant advised him "that afternoon he was going to have [R] that evening and then the following morning he was going to . . . drop him off at school." Defendant did not testify.

Addressing the indictment first, defendant contends in Point VIII that the trial court erred in denying his motion to dismiss the indictment based on the grand jury not receiving a copy of the consent order and the prosecutor's paraphrased reference to the order as including "parental rights." Defendant also challenges the indictment based on the prosecutor's use of the term "probation" when referring to child support payments.

These arguments are based on the following testimony by Detective Rice in front of the grand jury:

Q Okay. At that particular time there was an order by the Ocean County Court that, basically that consent order that's talking about custody. The custody of ["L"] Scott, . . . ["S"] Lynn and ["R"] Lee . . . [was] then granted to Melinda Smith, who was the victim, the parental rights and the visits were to be arranged between the parents, correct?

A That's correct.

Q It was also ordered that [there be] direct child support payments and clos[ing] out of probation currently in Monmouth County was also ordered within this consent order, correct?

A That's correct.

[The Prosecutor] Okay. I should just say that the Grand Jurors should not consider the fact whether somebody was on probation or not. Probation is also considered with child custody issues. That doesn't mean that there's a prior criminal act or anything like that. You should only consider it for that purpose.

Q All right. But with this order in effect. So Melinda had the parental rights of the three children, but they could work out a deal on a daily basis on when [defendant] could see the kids, correct?

A That's correct.

An indictment should only be quashed on the "clearest and plainest ground" and then only when it is "manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996). "Nevertheless, 'the decision whether to dismiss an indictment lies within the discretion of the trial court,' and in the absence of an abuse of that discretion, we will not disturb the determination of the trial court." State v. Mason, 355 N.J. Super. 296, 299 (App. Div. 2002) (quoting Hogan, supra, 144 N.J. at 229).

In denying the motion to dismiss the indictment, the trial court properly concluded that there was no palpable defect in the indictment and that the grand jury "received some evidence" on each charge. The court found that "there was an agreement between the parties as to how visitation was to work" and that the jury was told the facts of the case "as alleged by the victim." There was evidence presented that there was an order that was violated by defendant "taking the child when the mother hadn't agreed." While the court noted "they could have been given the order" we find that the grand jury did not need a copy of this uncomplicated order and it was properly advised as to the rights of the parties. Succinctly, the order provided that custody was granted to Smith and visitation was to be arranged between the parents.

The prosecutor's general reference to "parental rights" was with regard to physical custody. We are not convinced that the prosecutor's comments "implied" any greater rights than those which the order provided. The prosecutor's reference to "probation" was regarding the manner in which child support payments were to be made. Pursuant to the order, payments were to be made directly to Smith and no longer through probation. The prosecutor correctly explained to the grand jury that it "should not consider the fact whether somebody was on probation or not. Probation is also considered with child custody issues. That doesn't mean that there's a prior criminal act or anything like that."

We conclude that the trial court carefully considered the facts and applicable law and did not abuse its discretion in denying the motion to dismiss the indictment.

Defendant's Point III alleges error based on the testimony of Officer Bercovicz and his reference to "teletype information." This testimony was not objected to at trial and we conclude that it was offered merely as an explanation for approaching the suspect. Consistent with State v. Branch, 182 N.J. 338 (2005), the testimony was properly admitted.

Defendant's Point VII alleges error in the denial of the motion for judgment of acquittal. R. 3:18-1 states:

At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.

Furthermore, in deciding "such a motion, the court must ascertain whether the State's evidence in its entirety would permit a reasonable jury to find guilt of the offense beyond a reasonable doubt." State v. Horne, 376 N.J. Super. 201, 208 (App. Div. 2005) (citing State v. Reyes, 50 N.J. 454, 459 (1967)).

In determining this issue, this court must "[give] the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom." Reyes, supra, 50 N.J. at 459. "[T]he trial court may not consider any evidence adduced by the defense in determining if the State has met its burden as to all elements of the charged crime." Pressler, Current N.J. Court Rules, comment 1 on R. 3:18-1 (2006) (citing State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)).

There was a clear question of credibility to be resolved by the jury based on the competing versions of what was to occur. Smith said she had not granted permission for "R" to stay with defendant. On defendant's behalf, his brother Seppo told the jury it was defendant's plan to drop off "R" the following day at school. If the jury believed her, as the court noted, it could find a violation of the order. Testimony regarding existence of the consent order was undisputed, as was defendant's knowledge of its contents. Defendant did not deny the taking, but, to the contrary, offered testimony that it was permissive. The jury also heard evidence regarding defendant's failure to return calls to his cellular phone from police and his being located with "R" in a motel room.

Defendant additionally argues that Smith's "discretion" with regard to visitation was "unfettered, arbitrary, and capricious." Therefore, defendant contends, he could not knowingly violate the court order and be held in contempt as he did not have adequate notice of what constituted custody. This argument is belied by defendant's consent to the order.

We are convinced that there was sufficient evidence from which the jury could reasonably find guilt, and, therefore, we sustain the court's denial of defendant's motion for judgment of acquittal.

Defendant contends in Point V that the prosecutor's statement in summation, referring to the "uncontroverted" testimony of Melinda Smith, violated defendant's right to remain silent. We disagree. In summation, the prosecutor said:

The plan was, and it's uncontoverted, . . . that Melinda said, she told you that the night before, and the phone records even prove that, that she called him. That Simo was to pick up the kids. He was supposed to go back to Howell. And when she got off work, she was to pick them up and bring them home.

Ask yourself logically if what Seppo told you, the conversation that he had with his brother makes any possible sense. Simo was to have the child overnight and then he was going to take the child to his urine test, and then he was going to take the child to school. Does that make any possible sense? Does logic dictate that that would be something that is normal?

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995)); see also State v. Williams, 113 N.J. 393, 447 (1988). Defendant's argument that the "only witness who can controvert the State's witness' testimony about the plan was the defendant," is belied by the record. The prosecutor's comments were clearly related to the evidence in the case and designed to refute the testimony of defendant's brother Seppo that he had been told by defendant that defendant was going to pick up "R" from school, keep "R" overnight, bring "R" to the drug-screening test the following morning, and then bring "R" to school. We disagree with the contention that the prosecutor's comments were designed to suggest that the jury draw an adverse inference from defendant's election not to testify, but instead were designed to challenge the credibility of Seppo's testimony. We find no error.

Defendant did not object to the jury charge at trial, therefore, defendant's contentions in Points I, II, III and IV regarding the court's instructions to the jury, raised for the first time on appeal, require us to determine if plain error occurred and we are satisfied it did not. State v. Morton, 155 N.J. 383 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

Defendant contends in Points I and II that the court erred in its instructions to the jury regarding the law of interference with custody. Defendant argues that the instruction improperly shifted the burden of proof to defendant, was ambiguous, and failed to explain the law in the context of the facts. We disagree.

The statute in question, N.J.S.A. 2C:13-4a(4), provides that "[a] person, including a parent, . . . is guilty of interference with custody if . . . [a]fter the issuance of a . . . final order specifying custody . . . [he] takes, detains, entices or conceals a minor child from the other parent in violation of the custody . . . order." The court instructed the jury that the State had to prove beyond a reasonable doubt the following five elements:

1) that there was in existence at the time alleged in the indictment a final consent order specifying custody or parenting rights. 2) That [R] was a minor child. 3) That the defendant took, detained, or concealed [R] from the other parent. 4) That this taking, detaining, or concealing was in violation of the court's order . . . [5)] And that the defendant acted knowingly.

Defendant contends that by instructing the jury that defendant was required to prove by clear and convincing evidence that he reasonably believed that he was entitled to visitation the court shifted the burden of proof. Contrary to defendant's argument, the court explained that defendant has no burden of proving his innocence and "doesn't have to put on any evidence at all."

The relevant statute, N.J.S.A. 2C:13-4c(2), provides that it is an affirmative defense that "[t]he actor reasonably believed that the taking or detaining . . . was consented to by the other parent." Regarding the affirmative defense, the court reiterated to the jury, "[s]o remember, the State provides the five elements. Only if you find that the State proves those do you decide whether the defendant has proven his affirmative defense by clear and convincing evidence."

The court's instruction to the jury, as to how it was to consider the affirmative defense, followed the Model Charge pertaining to interference with custody and must be viewed in the context of the entire charge and "'examined as a whole to determine its overall affect.'" State v. Savage, 172 N.J. 374, 387 (2002) (quoting State v. Wilbely, 63 N.J. 420, 422 (1973)); State v. Gartland, 149 N.J. 456, 473 (1997). The jury charge "'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them.'" Velazquez ex rel. Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (quoting Juman v. Samuel Braen, Inc., 47 N.J. 586, 591-92 (1966)).

With respect to interference with custody, defendant argues that the court should have instructed the jury that it was to consider his "reasonable belief" that Smith consented to the taking of "R" in determining whether the State proved knowledge beyond a reasonable doubt. As a whole, the court's instruction made it abundantly clear that this jury was to return a verdict of not guilty if the State did not prove all elements of the offense. The court went further and advised the jury to acquit if it had any reasonable doubt as to defendant's guilt. We find no ambiguity in the court's instruction.

Judge Uhrmacher's instructions did not shift the burden and clearly and correctly advised the jury that the State must prove all five elements of the offense beyond a reasonable doubt. Only if it found that the State had met its burden, should it consider the affirmative defense. We disagree with the defendant's assertion that the jury's request for a list of the five elements of count 1 is indicative of jury confusion. We are not convinced that the request alone demonstrates jury confusion under the totality of the circumstances.

Defendant also contends that the jury charge was not sufficiently molded to the facts, relying on State v. Jones, 346 N.J. Super. 391, 401 (App. Div.), certif. denied, 172 N.J. 181 (2002), which is factually distinguishable. In Jones, pursuant to a custody agreement incorporated into a divorce consent judgment, the defendant had joint custody of her minor children with their father as well as weekly physical custody. The agreement provided for written modification or waiver of any of its terms. Absent a writing, the parties modified the agreement wherein one child lived only with the father and another lived with the defendant, who took that child to Peru without informing the father. Hence, the agreement was substantially modified by conduct. Id. at 396. The defendant in Jones appealed her conviction for interference with custody in violation of N.J.S.A. 2C:13-4a(4). She argued that the court erred in failing to relate the law to the facts, particularly with respect to whether the father was deprived of rights under the custody order, whether he had "by his conduct waived those rights or, alternatively, whether he and defendant had by their mutual conduct, modified the agreement." Id. at 401. In Jones, there was a significant question as to whether the parties, by their conduct, had modified the agreement by mutually relaxing the terms which would then preclude either party from insisting "upon a breach because the contract was not fulfilled according to its letter." Id. at 403. We held in Jones that the court erred in finding the relationship between the parties to be irrelevant, viewing the applicable statute as a "strict liability type statute," and making no reference to that relationship in its instructions to the jury. Id. at 402-404. In Jones, we found that a substantial modification of the agreement and order did take place, based on the conduct of the parties and that the "jury was entitled to hear the relevant facts and to understand how those facts fit into the legal framework of the charge; only then could the jury determine whether the defendant had been shown to have violated the statute beyond a reasonable doubt." Id. at 404. Contrary to Jones, in the present matter, there is no allegation of an expressed or constructive modification of the custody order. In Jones there was no instruction regarding the relationship between the parties while here the judge clearly explained to the jury the facts relating to the question of defendant's reasonable belief that the plan was for him to keep "R" until the next day.

We are not persuaded by defendant's contention in Point IV that the court should have, absent a request by defendant, charged the lesser-included offense of false imprisonment. In assessing whether to charge the jury on a lesser-included offense, our case law applies a different standard based on whether or not a charge was requested by a defendant at trial. "An unrequested charge on a lesser-included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, supra, 172 N.J. at 396-97 (quoting State v. Choice, 98 N.J. 295, 298 (1985)).

In contrast, when a defendant requests a lesser included offense to be charged, . . . strict adherence to the definition of 'included' under N.J.S.A. 2C:1-8d 'is less important than whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser.'"

[Id. at 397-398 (quoting State v. Brent, 137 N.J. 107, 117 (1994); see State v. Pantusco, 330 N.J. Super. 424 (App. Div.), certif. denied, 165 N.J. 527 (2000)].

False imprisonment, as defined by N.J.A.C. 2C:13-3, requires proof beyond a reasonable doubt that Simo acted knowingly; restrained "R" by confining or limiting him; the restraint was unlawful, in that it was accomplished without the consent of Smith, the parent responsible for the general supervision of "R's" welfare; and the restraint interfered substantially with "R's" liberty.

The facts of this case do not "clearly indicate" that defendant's conduct substantially interfered with "R's" liberty. There was a lack of sufficient facts for the jury to determine whether the restraint on "R's" liberty was slight or significant. Consistent with defendant's objection to any testimony regarding restraint of liberty, the court directed Smith, for hearsay reasons, not to testify as to what the children said, and there was no evidence introduced as to the nature of any restraint with regard to its duration or manner. False imprisonment would require additional proof beyond that which was necessary to prove interference with custody. Therefore, it is not lesser-included.

Accordingly, we find no error in the court's instructions to the jury, let alone plain error.

We reject defendant's argument raised in Point VI and conclude, for the reasons stated by the trial court, that there was sufficient evidence to justify a flight charge to the jury. Defendant clearly did not respond to the numerous calls from the police to his cellular phone and was located in a motel, some fourteen miles from his home.

Regarding defendant's Point IX, we agree that the conviction for contempt of court should merge with interference of custody. A defendant may not be convicted of more than one offense "if one is included in the other." N.J.S.A. 2C:1-8a(1). An offense is included in another if "it is established by proof of the same or less than all the facts required to establish the commission of the other offense." N.J.S.A. 2C:1-8d(1). Under N.J.S.A. 2C:29-9a, [a] person is guilty of a crime of the fourth degree if he purposely or knowingly disobeys a judicial order or hinders, obstructs or impedes the effectuation of a judicial order. Pursuant to N.J.S.A. 2C:13-4a(4), "[a] person, including a parent, guardian or other lawful custodian, is guilty of interference with custody if . . . [a]fter the issuance of a[n] . . . order specifying custody, . . . takes . . . or conceals a minor child from the other parent in violation of the custody . . . order." Thus, in order to be found guilty of interference with custody, defendant must have been found guilty of violating the custody order in place at the time. Convicting defendant of contempt of court for violating the custody order does not require proof of any additional facts beyond those required by interference with custody, therefore, the two counts should merge. See State v. Fraction, 206 N.J. Super. 532, 538-39 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986).

We affirm the conviction and remand for sentencing to merge counts one and two.

 

Defendant had a key with the consent of Smith, but was not permitted entry without her permission.

N.J.S.A. 2C:1-8d(1) indicates that an offense is included when

"[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged."

See Model Jury Charge (Criminal), "False Imprisonment-Lesser Included" (2005).

(continued)

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A-0135-04T3

November 18, 2005