STATE OF NEW JERSEY v. J.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0321-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.P.,

Defendant-Appellant.

_______________________________

Argued March 30, 2011 Decided June 16, 2011

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FO-03-398-10.

D. Ryan Nussey argued the cause for appellant (Klineburger & Nussey, attorneys; Mr. Nussey and Nicole M. McCauley, on the brief).

Jaclyn E. Fineburg, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Fineburg, of counsel and on the brief).

PER CURIAM

Defendant J.P. appeals from his conviction for contempt, N.J.S.A. 2C:29-9, after he violated a temporary restraining order (TRO) entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to 35. Defendant urges reversal of his conviction, arguing the State's evidence failed to prove beyond a reasonable doubt that his conduct constituted a knowing violation of the TRO. In the alternative, defendant suggests that if his conduct were in contravention of the proscriptions of the TRO, the violation was de minimis, warranting dismissal as provided by N.J.S.A. 2C:2-11. Following our consideration of the parties' arguments presented on appeal, in light of the record and applicable legal standards, we affirm.

Defendant and his wife N.P. were estranged. N.P. revealed her intention to speak to a lawyer because the marriage "was not reconcilable" and she "could not[,] for the safety of [herself] and [the] children[,] stay in that situation." Thereafter, defendant repeatedly avowed N.P. "was not to leave him." Defendant also "threatened to take the kids and the house[,] . . . to default on the [mortgage] loan[,]" and to tell the police that N.P. kidnapped their children if she did not stay with him. Finally, defendant sent a text message, which N.P. perceived as threatening. The message stated: If you want it, your [sic] gonna get it."

N.P. sought protection by filing an ex parte complaint, alleging domestic violence and barring defendant's contact and communication with N.P. N.P.'s request was granted. The Family Part entered a TRO, which in part enjoined defendant's commission of further acts of domestic violence, prohibited any oral, written, personal, electronic or other forms of contact with N.P., and precluded defendant from further harassing communication. The police personally served defendant with the TRO on April 8, 2010 at 7:50 p.m.

On that same date, at approximately 10:43 p.m., N.P. received an email from defendant, instantly transmitted through her BlackBerry cellular telephone. The email s subject line was entitled "Docupemnt [sic] to [N.]" and generally, contained chronologically listed journal-type entries documenting defendant's activities and thoughts from the prior week. Most of the entries referred to N.P. in the third-person. One entry however, dated April 2, 2010 and labeled "a tidbit from a conversation with N.," addressed N.P. directly, stating:

What I was really trying to tell you earlier was that time is on our side, and in the event we decide to discuss all of this and try to make it work for all parties involved, there will be no stone unturned on my behalf, I want you to know, for as long as it may take to make it right, ill [sic] be by your side with patience, friendship, the love of our children, and a common vision to make the next day a better one than the previous. . . . I don t want to fail at this, and I will have more patience, you deserve more than what I ve been giving, but I want you to know, I can do it. Don t count me out just yet. Many more chapters have been stand [sic] to be written for us, rough times are ahead, tough times are ahead, it will get tougher before it gets easier. And trust me, I understand that until you say its [sic] time, it stays the way it does right now. I will not take anything for granted, just because you may decide to go with me to a psych appointment doesn t mean your [sic] coming back . . . You re not coming back until you decide, if ever. I got it. That s all I have to say, just understanding, friendly discussions, and a common goal of our children from here on out. Are we cool? Can we get along and talk without hurting each other for our kids?

What I say is from the heart. . . . I m just trying to say I m sorry in so many ways . . . . Please understand I m not trying to annoy you, I m just so afraid of losing my family. I will give you the space.

N.P. immediately contacted the police. Defendant was arrested and charged with criminal contempt for violating the TRO, a disorderly persons offense.

During trial, N.P. was the sole witness for the State. Defendant testified on his own behalf.

N.P. related the factual events supporting her initial request for a TRO and her receipt of defendant's email communication following the entry of the court order. She explained defendant had repeatedly told her he wanted to "make it clear how he felt" and expressed she was not to leave him. She described the email's contents, stating although it was formatted as a journal log, it included "a part that . . . you can tell he's actually talking to me." N.P. avowed these statements were not part of the conversation between her and defendant on the entry date, stating: "There are things in here that are directed right at me and cannot be perceived as a conversation[.]"

Defendant testified, depicting his version of events. He stated he often used his BlackBerry's note-taking function to document events, record his thoughts concerning the marriage, to "clear his head" and to share these thoughts with his therapist and attorney. Defendant explained that in order to use the notes captured on his BlackBerry, he was required to forward them to his computer email account, thus enabling the printing of a hard copy. Defendant asserted he intended to send the email to himself for use the following day during an appointment with his attorney, but mistakenly sent it to N.P.

At the conclusion of all evidence, Judge Palmer reserved his decision. On August 4, 2010, the court rendered an oral opinion.

After examining the circumstances surrounding defendant s action, the trial judge found the State had proven the defendant was guilty of contempt beyond a reasonable doubt, stating:

Here, a TRO was granted on April 8th . . . . The defendant was served with the temporary restraining order . . . by Patrolman Venning on the same date. The TRO prohibited the defendant from returning to the scene of violence and future acts of domestic violence. . . .

Defendant was also prohibited from having any oral, written, personal, electronic or other form of contact with the plaintiff . . . . Therefore, . . . the first element of the violation has been proven by the State.

As to the second element, the defendant was aware that there was a temporary restraining order in place when the text message was sent at 10:43 p.m. on the same evening. The plaintiff indicated in her complaint that the defendant was constantly telling her that their marital relationship was not over and it comes through that this was [sic] his thoughts in his journal entries that he did not want to let the relationship go. The journal entries are phrased in a way that it does seem to the [c]ourt that the communications [sic] to the plaintiff in that he does try to explain his actions and good intentions were to make the marriage work. As a result, the [c]ourt can only conclude that it seems that these messages were purposely sent to the plaintiff.

On appeal, defendant argues the State failed to prove the requisite intent required for a contempt conviction. Alternatively, he maintains that if his conduct violated the TRO, the action is de minimis and the charges should be dismissed. We are not persuaded.

Our review of a judgment entered following a bench trial is very limited. Findings made by the trial court are binding on appeal when supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord particular deference to the trial judge s findings regarding the testimony of the parties. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Family Part judges in particular possess special expertise in family and domestic violence matters. Ibid.

N.J.S.A. 2C:29-9(b) provides:

[A] person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the "Prevention of Domestic Violence Act of 1991, . . . .

"To convict a defendant of the . . . crime of contempt of a restraining order issued pursuant to the [PDVA]," the State must establish beyond a reasonable doubt that:

(1) a restraining order was issued under the [PDVA]; (2) the defendant's violation of the order; (3) that defendant acted purposely or knowingly; and (4) the conduct that constituted the violation also constituted a crime or disorderly persons offense.

[State v. Krupinski, 321 N.J. Super. 34, 43 (App. Div. 1999) (internal quotations and citations omitted)].

In this matter, there is no dispute that a TRO had been entered or that defendant knew the order was entered and had been provided with a copy, which he acknowledged receiving. Likewise, the fourth paragraph of the TRO unequivocally prohibited defendant's contact with N.P. via email. The focus of defendant's argument on appeal is that his conduct was inadvertent and unintentional. We are not persuaded.

To determine whether a defendant knowingly or purposely violated the terms of the TRO, a court must carefully consider the surrounding circumstances as presented in the record. State v. Finamore, 338 N.J. Super. 130, 137-38 (App Div. 2001). In this matter, Judge Palmer noted defendant specifically addressed the email's subject line to N.P., which contradicted his assertion that the email was made for use during his next appointment with his attorney. Additionally, examining the language in the document's entries, the trial judge noted the "communication[ is] to [N.P.]," contained defendant's direct appeals to N.P. and his attempt "to explain his actions and good intentions[, which] were to make the marriage work." The court also found defendant to be technologically savvy, and had extensive experience using his BlackBerry as a "communication device." Finally, the judge reasoned defendant's claim of preparation of confidential "journal entries" was belied by the lack of care for maintaining the document's privacy.

We determine Judge Palmer sufficiently assessed the testimonial evidence in making his factual findings. The court s determination that defendant's conduct was a knowing violation of the TRO is adequately supported by substantial and credible evidence found in the record and will not be disturbed. Rova Farms, supra, 65 N.J. at 484.

Alternatively, defendant asserts that sending the email to N.P., even if found to violate the TRO, was a de minimis infraction, not warranting prosecution. We reject this contention. Not only did defendant fail to raise this argument before the trial court, see State v. Robinson, 200 N.J. 1, 20 (2009) (holding we generally do not consider issues not previously presented to the trial court unless the issues on appeal challenges jurisdiction or concern matters of great public interest), but we also find the contention without merit.

N.J.S.A. 2C:2-11 sets forth the procedure to seek dismissal of the contempt charges, stating:

The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant's conduct:

a. Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;

b. Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or

c. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The assignment judge shall not dismiss a prosecution under this section without giving the prosecutor notice and an opportunity to be heard. The prosecutor shall have a right to appeal any such dismissal.

We have discerned limited instances where a defendant's conduct, although a technical violation of the TRO, was not actionable as a contempt. See State v. Wilmouth, 302 N.J. Super. 20, 23 (App. Div. 1997). In Wilmouth, despite the existence of a restraining order, the defendant uttered a statement to his estranged wife in the presence of a police officer. Ibid. We concluded this was not a violation subject to a prosecution for criminal contempt. Ibid. In Krupinski, supra, 321 N.J. Super. at 45, we reversed a contempt conviction because the defendant's conduct, although a technical violation of the restraining order, was not specifically delineated as restrained, and he acted to assure the safety and welfare of the parties' infant children. Thus, the defendant's act was considered a trivial infraction.

Here, defendant sent N.P. an email within hours of being served with the TRO, notwithstanding the prohibition of paragraph 4 of the order. The trial court's finding, supported by the record, was that defendant acted with full-knowledge of the bar on communications and his conduct falls squarely within the proscribed conduct. We also note that had defendant presented to the assignment judge his request for dismissal of the charges as required by N.J.S.A. 2C:2-11, it would have been denied because conduct in direct disregard of the prohibitions in a domestic violence temporary restraining order cannot be viewed as within a "customary . . . tolerance" or "too trivial to warrant the condemnation of conviction." N.J.S.A. 2C:2-11(a) and (b).

Affirmed.