On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Antell, Dreier and Brochin. The opinion of the court was delivered by Dreier, J.A.D.
The State appeals from a 1988 Law Division order granting defendant's motion to vacate a guilty verdict which convicted defendant of the fourth degree crime of contempt of court.*fn1
More than a year earlier, between February and May of 1987, defendant had been charged in three other indictments (# 87-05-0811, # 87-06-1001, and # 87-06-1149) with four counts of contempt of court (counts 1 and 2 of the first indictment, as well as count 1 of the second and third indictments (N.J.S.A. 2C:29-9)) and one count of interference with custody (N.J.S.A. 2C:13-4a). He pled guilty to three of the four contempt charges and to the interference with custody charge. The charges were brought after his ex-wife, her boyfriend, and her boyfriend's sister filed complaints against the defendant stating that he was harassing them with threatening phone calls.
In a written order on October 16, 1987, defendant was sentenced pursuant to a plea bargain to three years probation and time served (120 days). The judge fined defendant $400, charged him $14 court costs, and ordered him to pay a Violent Crime Compensation Board penalty of $120. He also dismissed the one count of contempt of court to which the defendant had not pled guilty. After assessing the fine, costs, and penalty, the judge added "the following, special conditions":
1. The defendant is not to contact by phone, letter or in person, Alfred, Gregory or Mrs. Perier, Monroe Boyce and Mrs. Sidorski.
The judge did not add any other special conditions, and the record does not reveal who Alfred or Gregory are. Boyce is the live-in boyfriend of Mrs. Sidorski, and she, in turn, is the defendant's ex-wife. "Mrs. Perier" is actually Annette Puryear, the boyfriend's sister.
Sometime between October 17, 1987 and July, 1988 defendant missed at least one reporting date with his probation officer. When he finally did report, he was incarcerated for missing these appointments and charged with violation of probation. Due to the frustratingly inadequate record and briefs presented for review on this appeal, it is not possible to determine when he finally reported, and therefore when he became imprisoned. The State asserts, however (and the defendant does not deny), that at the beginning of this period, from October 17 to November 24, 1987, the defendant again had made harassing telephone calls to the complaining witnesses.
In February 1988, defendant was again indicted, this time on three more counts of contempt of court (N.J.S.A. 2C:29-9) and two counts of terroristic threats (N.J.S.A. 2C:12-3a), presumably for the harassing phone calls to his ex-wife, her boyfriend, and his sister between October and November of 1987. The indictment charged that the calls to the complaining witnesses constituted both contempts of court under N.J.S.A. 2C:29-9 and terroristic threats under N.J.S.A. 2C:12-3. The defendant's motions to have the charges dismissed and merged, to have his bail reduced, to receive a bill of particulars, to receive the grand jury minutes, to be transferred to an alcohol rehabilitation facility, and to dismiss the indictment were successively denied.
On July 15, 1988 defendant pled guilty to violation of probation. It cannot be determined from this record whether his violation was for not reporting to his probation officer or for renewing the harassing phone calls. He was sentenced to nine months in jail and given credit for 281 days (nine months plus 11 days), which again apparently equaled the time he had served since reporting to his probation officer in November 1987, plus the 120 days he had served prior to his trial in 1987.
Between September 13 and 20, 1988 defendant was tried by a jury on the charges in the February 1988 indictment. The judge dismissed one of the terroristic threats counts, and the jury found the defendant not guilty of the remaining terroristic threats count and one of the contempts of court. It did,
however, convict defendant of contempt of court (counts three and five). After trial, defendant first moved for dismissal of the counts on which he had been convicted, and then moved to dismiss the convictions. After hearing arguments on December 22, 1988, the judge granted the defendant's motion.
On this appeal the State raises four issues:
The State should be granted leave to appeal Judge O'Hagan's decision ...