STATE OF NEW JERSEY v. C.J.B.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0360-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

C.J.B.,

     Defendant-Appellant.
_____________________________

              Submitted December 7, 2017 – Decided February 15, 2018

              Before Judges Simonelli and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Cape May County, Indictment No.
              14-08-0622.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Daniel V. Gautieri, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Robert W. Johnson, Acting Cape May County
              Prosecutor, attorney for respondent (Julie H.
              Mazur, Special Deputy Attorney General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
      Defendant,       C.J.B.,1       was   convicted     of   possession       of     a

controlled dangerous substance (CDS) (heroine), 
N.J.S.A. 2C:35-

10(a)(1), after pleading guilty to that offense.                    He appeals from

the   denial    of    his    motion    to   suppress     evidence    found    in     his

possession at the time of his arrest.                    Judge Donna M. Taylor

entered an order denying his motion after she found that the

warrant issued for defendant's arrest on a charge of contempt,


N.J.S.A.    2C:29-9,        was   valid,    and   that   the   arresting     officer

conducted a proper search incident to his arrest that revealed the

CDS in defendant's possession.              Defendant argues on appeal, as he

did to Judge Taylor, that the arresting officer conducted an

inadequate investigation into the validity of the contempt charge

to justify his arrest and search.                  He also contends that the

officer should not have sought a warrant for his arrest based upon

an alleged violation of a stale, final restraining order (FRO)

that was entered years earlier pursuant to the Prevention of

Domestic Violence Act (PDVA), 
N.J.S.A. 2C:25-17 to -35.                               We

disagree and affirm.

      Prior to denying defendant's suppression motion, Judge Taylor

conducted      an    evidentiary      hearing     at   which   officers      John     T.




1 Pursuant to Rule 1:38-3(d), we use initials and fictitious
names to protect the confidentiality of the participants in the
underlying domestic violence proceedings.

                                            2                                 A-0360-16T1
Armbruster    and   Cory   A.   Scheid   of   the    Lower   Township    police

department testified for the State.                 Defendant presented the

testimony of Mary Beth Hueter, an investigator for the Public

Defender, and Carol Jones, whose daughter, Andrea, had obtained a

FRO against defendant years earlier.

     After considering the testimony, Judge Taylor denied the

motion for the reasons stated in her cogent October 6, 2015 written

decision.    In her decision, Judge Taylor made specific credibility

determinations and factual findings.            Her findings of fact are

summarized as follows.

     In September 2008, the Family Part issued a FRO to Andrea,

restraining defendant from having contact with her or going to her

residence that was specifically identified by address in the FRO.

In 2014, another resident in the Jones home, who bore no familial

relationship, filed a complaint with the police that accused

defendant of entering the premises through a window and removing

an item.

     The police investigated the report and determined that the

home specified in the FRO was owned and occupied by Carol, who

told police she did not object to defendant entering her home as

she and defendant had been in a romantic relationship.             Moreover,

she told police that her daughter had moved out years ago and

lived in her own home.      When Armbruster contacted Andrea to verify

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her current home address, she reported that she was out of town

and that upon return she would go to the police station to pick

up a victim witness notification form.        There was no evidence that

Andrea ever notified authorities that she no longer lived in her

mother's home, or that she or defendant ever obtained an order

vacating the 2008 FRO.

      Based upon defendant's apparent violation of the FRO, a

warrant was issued for his arrest. On May 27, 2014, Scheid located

defendant in town, arrested and searched him incident to the

arrest.   The search yielded, what was suspected to be and later

proved to be, CDS.

      After setting forth her findings in her written decision,

Judge Taylor addressed defendant's contentions that the warrant

for his arrest was improperly issued.          According to defendant,

further investigation would have established that Andrea no longer

lived at the subject premises, and therefore, the FRO was no longer

in   effect    for   that   residence.   Judge   Taylor     rejected      this

contention.

      Citing to State v. Harris, 
211 N.J. 566, 587 (2012), the

judge observed that items seized during an arrest for violating a

FRO "can serve as the basis for a subsequent criminal prosecution

if [their] illegal nature is immediately apparent."              She also

noted   that   under   
N.J.S.A.   2C:25-31,   "where   an   officer     finds

                                     4                                A-0360-16T1
probable cause that a defendant has committed contempt of an order

entered pursuant to the provisions of the [PDVA], the defendant

shall be arrested and taken into custody." (Emphasis added).        In

reaching her conclusion that the officer acted properly, Judge

Taylor relied on the fact that there are no time limits on FROs,

including restraints prohibiting entry into specific residences,

in order to carry out the Legislature's intention to permit victims

to feel safe wherever they live.

     The judge entered an order on November 16, 2015, denying

defendant's motion.      Defendant pled guilty to the one count

indictment and received a sentence of two-years probation with the

condition that he serve 364 days in jail.   This appeal followed.

     On appeal, defendant raises the following contention:


               POINT I

               THE COURT ERRED IN DENYING THE
               MOTION TO SUPPRESS BECAUSE (1) THE
               POLICE OFFICER FAILED TO ADEQUATELY
               INVESTIGATE WHETHER BILLINGSLY HAD
               VIOLATED A FINAL RESTRAINING ORDER,
               AND (2) EVEN IF THE OFFICER BELIEVED
               THAT THE RESTRAINING ORDER HAD BEEN
               VIOLATED, HE ERRED IN SEEKING AN
               ARREST WARRANT UNDER CIRCUMSTANCES
               WHEN THE LAW REQUIRED THE ISSUANCE
               OF A SUMMONS.     (PARTIALLY RAISED
               BELOW . . . )

     Our review of a trial judge's decision on a motion to suppress

is limited. State v. Robinson, 
200 N.J. 1, 15 (2009). In reviewing

                                 5                           A-0360-16T1
a motion to suppress evidence, we must uphold the judge's factual

findings, "so long as those findings are supported by sufficient

credible evidence in the record."           State v. Rockford, 
213 N.J.
 424, 440 (2013) (quoting Robinson, 
200 N.J. at 15).          Additionally,

we defer to a trial judge's findings that are "substantially

influenced by [the trial judge's] opportunity to hear and see the

witnesses and to have the 'feel' of the case, which a reviewing

court cannot enjoy."        Ibid. (alteration in original) (quoting

Robinson, 
200 N.J. at 15).      We do not, however, defer to a trial

judge's legal conclusions, which we review de novo.              Ibid.

     Applying this standard of review, we conclude defendant's

arguments are without sufficient merit to warrant discussion in a

written opinion, R. 2:11-3(e)(2).        We affirm substantially for the

reasons set forth by Judge Taylor in her well-reasoned decision.

We add only the following brief comments.

     A FRO under the PDVA last in perpetuity, absent a motion by

one of the parties to vacate the restraint and an order entered

by the court granting that relief.          See M.V. v. J.R.G., 
312 N.J.

Super. 597, 601 (Ch. Div. 1997) ("Final restraints granted under

the Act do not have a statutorily imposed expiration date"); see

also 
N.J.S.A. 2C:25-29(d).     If an application is made, a defendant

cannot rely solely upon a victim's consent to vacate.             Sweeney v.

Honachefsky,   
313 N.J.   Super.   443,   447   (App.   Div.    1998).         A

                                     6                                   A-0360-16T1
defendant who seeks relief from a FRO must make an application and

satisfy the criteria established in Carfagno v. Carfagno, 
288 N.J.

Super. 424, 435 (Ch. Div. 1995).

     Applying these controlling principles here, even if Andrea

consented to the vacation of the FRO, or no longer lived at the

prohibited residence, the officers correctly determined that there

was at least probable cause to believe defendant violated the

still active FRO.   Moreover, their obtaining a warrant for his

arrest and the search incident thereto was entirely appropriate

because there was no order vacating the FRO before defendant

entered the premises from which he was restrained.

     Affirmed.




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