On appeal from the Superior Court, Chancery Division, Family Part, Atlantic County.
Approved for Publication May 15, 1996.
Before Judges Long, Brochin and Loftus. The opinion of the court was delivered by Long, P.j.a.d. Loftus, J.s.c., (temporarily assigned), Concurring and Dissenting.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by LONG, P.J.A.D.
On February 6, 1992, a permanent domestic violence restraining order was entered against defendant, Brian Hoffman, which prohibited him from having contact with or making harassing communications to his wife, Mary, and their children and which forbade him from entering the premises on North Village Drive in Somers Point and Belhaven Avenue in Linwood. Thereafter Mrs. Hoffman filed criminal complaints against defendant alleging contempt of the domestic violence restraining order (N.J.S.A. 2C:33-4(a)) and harassment, arising out of incidents which occurred on April 16, 1992 and on June 23 and 25, 1993. *fn1
A bench trial was held at which Mrs. Hoffman testified that on April 16, 1992, at about 12:45 p.m., she was driving home when she saw defendant's car on North Village Drive; defendant slammed on his brakes; screamed at her (because her car windows were closed, she could not hear what he was saying); gestured with his fist; and then proceeded to point his finger at her in a gun-like gesture.
She further testified that on June 23, 1993 she received a letter addressed to her with defendant's return address (at the county jail) on it. *fn2 In the envelope she found defendant's notice of motion to decrease child support and a ripped-up copy of the June 23, 1992 support order he sought to modify. On June 25, 1993, Mrs. Hoffman received a certified letter from defendant. In it she found another copy of the motion and a copy of the same court order, in the same condition.
The trial Judge found Mrs. Hoffman to be an "extremely credible" witness and, on the basis of her testimony, concluded that the incidents of April 16, 1992 and June 23 and June 25, 1993 occurred as she reported them. These were his only factual findings. He made no findings as to the history of the parties' relationship and did not expressly take that relationship into account in reaching his Conclusions. On the evidence, he found defendant guilty of three violations of the February 6, 1992 permanent domestic violence restraining order as a result of the contacts of April 16, 1992, and the mailings of June 23 and June 25, 1993. He also found defendant guilty of two counts of harassment under N.J.S.A. 2C:33-4(a) arising out of the mailings. Defendant was found not guilty of harassment in connection with the events of April 16.
The trial Judge sentenced defendant to a six-month custodial term for the contempt of April 16. The Judge then merged the harassment convictions into the contempt convictions arising out of the June 23 and June 25, 1993 mailings and sentenced defendant to a concurrent thirty-day custodial term on each conviction. These sentences were to run concurrent with each other and with the sentence for the incident of April 16.
Defendant appeals, contending that the following trial errors warrant reversal:
N.J.S.A. 2C:33-4(a) AS IT PERTAINS TO A COMMUNICATION MADE IN "ANY OTHER MANNER LIKELY TO CAUSE ANNOYANCE OR ALARM" IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO DEFENDANT'S ALLEGED CONDUCT.
THE TRIAL JUDGE'S FINDING THAT THE COMPLAINING WITNESS' RECEIPT BY MAIL OF TWO (2) COPIES OF A COURT ORDER IN A TORN CONDITION IS HARASSMENT WITHIN THE MEANING OF N.J.S.A. 2C:33-4(a) IS UNSUPPORTED BY THE EVIDENCE.
THE MAILING OF THE TORN COURT ORDER WITH THE PRO SE MOTION WAS NOT AN IMPERMISSIBLE CONTACT IN VIOLATION OF THE RESTRAINING ORDER WHICH WOULD THEREBY CONSTITUTE A VIOLATION OF N.J.S.A. 2C:29-9(b).
THE TRIAL JUDGE ERRED BY ADMITTING INTO EVIDENCE COPIES OF THE ORDERS IN A TORN CONDITION SINCE THE TRIAL JUDGE FOUND THAT THERE WAS "NO CHAIN OF CUSTODY" ESTABLISHED BETWEEN THE TIME THE COMPLAINING WITNESS ALLEGEDLY RECEIVED THE DOCUMENTS AND THE TIME THEY WERE INTRODUCED INTO EVIDENCE.
PROSECUTION OF THE CONTEMPT AND HARASSMENT CHARGES ARISING OUT OF THE APRIL 16, 1992 INCIDENT SHOULD HAVE BEEN BARRED PURSUANT TO THE FUNDAMENTAL FAIRNESS DOCTRINE.
THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING DEFENDANT GUILTY OF HAVING VIOLATED THE RESTRAINING ORDER ON APRIL 16, 1992.
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT GRANTING DEFENDANT'S MOTION FOR A NEW TRIAL OR, IN THE ALTERNATIVE, DISMISSING THE RESTRAINING ORDER VIOLATION CHARGE BECAUSE OF THE PROSECUTOR'S FAILURE TO PROVIDE SPECIFICALLY REQUESTED DISCOVERY, PRIOR TO TRIAL, OF TWO STATEMENTS BY COMPLAINANT.
We have carefully reviewed this record in light of these contentions and have concluded that the arguments raised in Points I, IV, V, VI and VII do not warrant our intervention but that the contentions raised in Points II and III are meritorious.
We begin with the constitutional challenge raised in Point I. Defendant claims that N.J.S.A. 2C:33-4(a) is void for vagueness as applied to his mailing of the torn-up court order. The statute provides:
Except as provided in subsection d., a person commits a petty disorderly persons offense, if, with the purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.
d. A person commits a crime of the fourth degree if in committing an offense under this section, he acted, at least in part, with ill will, hatred or bias toward, and with a purpose to intimidate, an individual or group of individuals because of race, color, religion, sexual orientation or ethnicity.
Defendant argues that the language of the Section (a) which proscribes communication made in "any other manner" fails to delimit what communications are prohibited. More particularly, he claims that "although the statute was unquestionably designed to protect persons from repetitive phone calls and abusive, physical conflicts," it cannot be construed to interdict mail contact because it does not specifically state that use of the mails constitutes a communication. However, mail is a classic form of communication, and nothing in the statute suggests mail is excluded from its purview. That mail was intended to fall within the coverage of the statute is underscored by the fact that the former harassment statute, N.J.S.A. 2A:170-29, was specifically limited to verbal and telephonic communications while this version is not. Presumably, by not including the limit on communication that existed in the earlier act, the Legislature intended the term "communication" in N.J.S.A. 2C:33-4(a) to be all-encompassing.
Defendant misreads State v. Finance Am. Corp., 182 N.J. Super. 33, 440 A.2d 28 (App. Div. 1981) and Roe v. Roe, 253 N.J. Super. 418, 601 A.2d 1201 (App. Div. 1992), neither of which suggests that the statute does not include communication by mail. Clearly, defendant was on notice by the very terms of N.J.S.A. 2C:33-4(a) that mail communication is within the scope of its interdiction. *fn3
As to Point IV, no viable chain of custody issue was presented because the evidence (the torn-up court order) was not fungible but was an easily identifiable item which, in fact, was identified by Mrs. Hoffman, thus laying the foundation for its admission. ...