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State v. Hoffman

June 25, 1997

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
BRIAN P. HOFFMAN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at: 290 N.J. Super. 588 (1996).

The opinion of the Court was delivered by Coleman, J. Chief Justice Poritz and Justices Handler, Pollock, O'hern, Garibaldi and Stein join in Justice COLEMAN's opinion.

The opinion of the court was delivered by: Coleman

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Brian P. Hoffman (A-78-96)

Argued January 21, 1997 -- Decided June 25, 1997

COLEMAN, J., writing for a unanimous Court.

In this appeal the Court addresses two issues: whether the act of mailing a torn-up support order on two occasions by one former spouse to the other constitutes a violation of the harassment statute, N.J.S.A. 2C:33-4(a); and whether the same mailings constitute violations of a final domestic violence restraining order.

Brian Hoffman and Mary Hoffman were married for seven years. Thereafter, in September 1991, Brian began a course of assaultive behavior resulting in the issuance of several temporary restraining orders against him.

Ultimately, a final restraining order was entered by the Chancery Division in February 1992, which prohibited Brian from committing future acts of violence and from having contact with Mary or her children from a prior marriage. The final order further barred Brian from the family homes and prohibited him from making harassing communications to Mary and her three children. Lastly, the final order directed Brian to pay child support and awarded Mary exclusive possession of the family home in Linwood and temporary custody of the two children born of the marriage.

Following the entry of the final restraining order, Brian continued to engage in a pattern of harassing behavior. On one occasion, on April 16, 1992, as Mary was driving her vehicle towards the family home in Somers Point, she noticed Brian's vehicle approaching from the opposite direction. As the two vehicles passed each other, Brian slammed on his brakes, appeared to shout something, shook his hand in a fist, and pointed his index finger at her as if he were shooting a gun. The following day, he again went to the Somers Point home but this time went inside. On that day, the Somers Point police arrested Brian and charged him with burglary, attempted larceny, unlawful possession of a weapon, criminal mischief, and contempt of the final restraining order. He subsequently pleaded guilty to some of the charges for which he received a custodial sentence of 364 days.

While serving the county jail term, Brian mailed a package to Mary containing a Notice of Motion to modify the support order, a financial statement, and a torn-up copy of the support order. The following day, Mary received the identical package by certified mail. Mary subsequently filed two complaints against Brian for the separate mailings of the torn-up support order, alleging that each of the mailings constituted two distinct offenses: a harassing communication, in violation of N.J.S.A. 2C:33-4(a), and contempt for violating the final restraining order, in violation of N.J.S.A. 2C:29-9(b).

At trial, the court convicted Brian of the charges of contempt and harassment for the two mailings and of contempt for the April 16 incident, which had been consolidated for trial. The Appellate Division affirmed Brian's conviction and sentence for contempt based on the April 16 incident. It reversed the two harassment and contempt convictions relating to the mailings. The majority of the panel held that the two mailings did not constitute harassment within the meaning of N.J.S.A. 2C:33-4(a) because the mailings were not likely to alarm or to seriously annoy Mary or a reasonable person. The majority also vacated the two contempt convictions because the controlling language in the contempt statute is the same as that in the harassment statute. The Dissent disagreed, finding that the two mailings satisfied the requirements of both statutes.

The State appealed as of right to the Supreme Court based on the Dissent.

HELD: Although Brian Hoffman did not violate the harassment statute by the two mailings of the torn-up support order to Mary Hoffman because those mailings did not invade her privacy; those same mailings did constitute a violation of the final restraining order.

1. The purpose to be served by enactment of the harassment statute is to make criminal, private annoyances that are not entitled to constitutional protection, and the substantive criminal offense proscribed by subsection (a) is directed at the purpose behind and motivation for making the communication. (pp. 9-11)

2. A finding of purpose to harass may be inferred from the evidence presented. (pp. 11-12)

3. When a statute is ambiguous, a court's function is to ascertain and to effectuate the Legislature's intent and extrinsic aids, such as legislative history may be used to help resolve any ambiguity and to ascertain the true intent of the Legislature. (pp. 12-14)

4. Because the Legislature did not state its intent in using the word "annoy" in subsection (a) of the harassment statute and because it intended for each subsection to stand alone, the words and phrases used by the Legislature should be accorded their normal and accepted connotations as well as their ordinary and well understood meanings. (pp. 14-16)

5. Subsection (a) of the harassment statute proscribes even a single act of communicative conduct when its purpose is to harass, and the annoyance or alarm required by that subsection need not be serious. (pp. 16-17)

6. A statute that is vague creates a denial of due process because of a failure to provide notice and warning to an individual that his or her conduct could subject that individual to criminal prosecution. (pp. 17-18)

7. The ordinary usage of the term "harass" is sufficient to inform a person of normal intelligence of the type of mental culpability needed. (p. 18)

8. The Legislature intended that the catchall provision of subsection (a) encompass only those types of communications that also are invasive of the recipient's privacy. (pp. 19-20)

9. The Legislature did not intend to criminalize communications under subsection (a) that are made in inoffensive language, at convenient hours, or in the communicator's own name. (pp. 20-21)

10. In determining whether one's conduct is likely to cause the required annoyance or alarm to the victim, that person's past conduct toward the victim and the relationship's history must be taken into account, especially in domestic violence cases. (pp. 21-24)

11. Although it is true that, in the area of domestic violence, some people may attempt to use the process as a sword rather than as a shield, courts have not hesitated to terminate a potential prosecution when the charges have been trivial or the prosecution would have been absurd. (pp. 24-26)

12. The two mailings Brian sent to Mary were written contacts with her in violation of the restraining order. (pp.26-29)

The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in JUSTICE COLEMAN's opinion.

The opinion of the Court was delivered by

COLEMAN, J.

This is a domestic violence case that raises two significant issues: whether the act of mailing a torn-up support order on two occasions by one former spouse to the other constitutes a violation of the harassment statute, N.J.S.A. 2C:33-4(a); and whether the same mailings constitute violations of a final domestic violence restraining order. The trial court held that the act of mailing the torn-up support order violated both statutes. In a published opinion, the Appellate Division concluded that the mailings violated neither statute. 290 N.J. Super. 588, 599-601 (1996). A Dissenting member of the panel would have affirmed the convictions. Id. at 609-12. This appeal is before us as of right. R. 2:2-1(a)(2). We now reverse in part and affirm in part.

I

-A-

Defendant Brian P. Hoffman and Mary Hoffman were married for seven years. The family unit included two children born of the marriage and three children from Mary's former marriage. A fire in the marital home in June 1991 forced the family to relocate from Somers Point to Linwood.

Approximately three months after relocating to the Linwood home, defendant commenced a course of conduct that led to the issuance of a final restraining order. In September 1991, defendant was arrested for assaulting Mary during an argument. On September 24, 1991, a temporary restraining order was issued against defendant pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 to -16, which was repealed and replaced by the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -33 ("1991 Act"). Those charges were dismissed on November 19, 1991, with Mary's consent.

Five days later, defendant and Mary argued again and defendant once again assaulted Mary. She filed a second assault charge against defendant. On December 19, 1991, Mary again dropped the charges. Although Mary gave a sworn statement that she had not been threatened or coerced into withdrawing the criminal charges, she later informed the Cape May County Prosecutor that she had been coerced into dropping the two assault charges by defendant's threats on her and her children's lives.

Approximately two weeks later, defendant's abusive behavior began once again, and on January 31, 1992, another temporary restraining order was issued pursuant to N.J.S.A. 2C:25-28(h). A final restraining order was entered by the Chancery Division, Family Part, on February 6, 1992. The content of that order played a significant role in what was to follow.

That final order (1) prohibited defendant from committing future acts of domestic violence, pursuant to N.J.S.A. 2C:25-29(b)(1); (2) prohibited defendant from having contact with Mary and her three children from her prior marriage, pursuant to N.J.S.A. 2C:25-29(b)(6); (3) barred defendant from the Somers Point and Linwood homes, pursuant to N.J.S.A. 2C:25-29(b)(6); (4) prohibited defendant from making harassing communications to Mary, her three children from the prior marriage, and her mother, pursuant to N.J.S.A. 2C:25-29(b)(7); and (5) directed defendant to pay child support, pursuant to N.J.S.A. 2C:25-29(b)(4). In addition, the final order awarded Mary exclusive possession of the Linwood home and temporary custody of the two children born of the marriage.

-B-

Although the parties had separated before the end of January 1992, that did not end the alleged pattern of harassing behavior. On February 6, 1992, defendant allegedly violated the final restraining order by surreptitiously entering the Somers Point home. Mary filed a complaint against defendant on April 7, 1992, with the Atlantic County Family Part, charging him with contempt of court, contrary to N.J.S.A. 2C:29-9(b), for violating the restraining order. That complaint relied on information that Mary had received from her next-door neighbor. The neighbor had heard noises from the family home and had gone over to investigate. After the neighbor ...


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