On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FO-12368-03.
Before Judges Stern, S.L. Reisner and Graves.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2004
Defendant appeals from his convictions for the disorderly persons offense of contempt, N.J.S.A. 2C:29-9(b), and criminal mischief, N.J.S.A. 2C:17-3a(1),*fn2 in the Family Part.*fn3 Both carry maximum custodial sentences of six months imprisonment. See N.J.S.A. 2C:43-8.
The proofs at the trial reveal that a temporary restraining order (TRO) was entered prohibiting defendant from any"contact" with his former girlfriend, L.M., who did not testify at the trial. Defendant was served with a copy of the TRO on January 28, 2003. Nevertheless, on February 1, 2003, defendant was allegedly observed by L.M. breaking a window and trying to enter her apartment. The police were called and Officer Jeffrey Marino responded to the scene. He described L.M. as"upset" and"crying." The following colloquy was developed by the prosecutor:
Q: Okay. And when you saw [L.M.], who appeared to be upset and crying what, if anything, did you say to her, and what, if anything, did she say?
A: I asked her, you know, what had happened, and she just relayed to me the information.
Q: What did she say to you specifically?
A: She said that Corey Ashford, her ex boyfriend, with whom she had a restraining order against had come there, started arguing with her from the outside, yelling, you know, at her from outside the apartment. They got into an argument with him being outside, her being inside. She said she refused to open the door and he got angry and smashed a window. She didn't know with what. There's a window next to the door. It's a first floor apartment.
Q: Okay. And what, if anything, did you observe?
A: There was broken glass on the ground outside the window. It was a double pane window, and only the outer pane was broken, so no glass went inside the apartment. The glass was on the ground below the window.
Q: Did she indicate to you when this incident with Mr. Ashford had happened?
A: She said right before we -- he left right before we got there.
Officer Marino further testified that he arrived on the scene in two minutes after the offense occurred. The following testimony was further developed by the judge with Marino:
THE COURT: I just want to make sure the record was clear. My understanding, Officer, was almost immediately after the events occurred you got to the scene --
THE COURT: And she was visibly still upset as a result ...