STATE OF NEW JERSEY v. JOSEPH MCGRATH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3297-05T13297-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH MCGRATH,

Defendant-Appellant.

_______________________________________

 

Submitted July 17, 2007 - Decided August 3, 2007

Before Judges C.S. Fisher and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

Docket No. FO-13-392-05B.

Paul E. Zager, attorney for appellant.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent

(Tara Wilson, Assistant Prosecutor, on

the brief).

PER CURIAM

Joseph McGrath was charged with contempt of a temporary restraining order issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, a disorderly persons offense, N.J.S.A. 2C:29-9b. Following a bench trial in the Family Part, the court found defendant guilty of an attempt to violate the temporary restraining order.

Defendant appeals and correctly contends that his conviction must be reversed because an attempt to commit a disorderly persons offense is not an offense. The State has submitted a brief in which it acknowledges that the court's findings "support no greater than defendant's attempt to violate the temporary restraining order that had been issued against" defendant. The State makes the following further concession: "Violation of the restraining order was charged as a disorderly persons offense, however, and '[a]n attempt to commit a disorderly persons offense is not itself an offense.'" (quoting State v. Clarke, 198 N.J. Super. 219, 225 (App. Div. 1985)). That is a correct statement of the law. Ibid.; see N.J.S.A. 2C:5-1 (defining "attempt to commit a crime"); see also N.J.S.A. 2C:1-4b (providing that disorderly persons offenses are not crimes); N.J.S.A. 2C:5-4a (grading criminal attempt with reference to the degree of the "crime" attempted).

 
The conviction is reversed and the matter is remanded for dismissal of the charge.

A final restraining order was not issued. The temporary order was dismissed prior to trial on the contempt charge.

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2

A-3297-05T1

August 3, 2007