On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FO-03-177-04.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Parker and Grall.
Defendant Philip Castagna appeals from a judgment of conviction and sentence. Following a bench trial in the Family Part on charges that were downgraded by the prosecutor, defendant was found guilty of harassment, a petty disorderly persons offense, N.J.S.A. 2C:33-4a, and contempt of a judicial order prohibiting him from "causing anyone else to make harassing communications," a disorderly persons offense, N.J.S.A. 2C:29-9b.*fn1
His sentence for contempt was a $1,000 fine and a one-year term of probation. His sentence for harassment was suspended. A VCCB assessment, a SNSF assessment and a domestic violence penalty were imposed. The judge ordered a forfeiture of defendant's public office, Chief of Police of the City of Bordentown, and barred him from future public employment, N.J.S.A. 2C:51-2.
On June 15, 2003, defendant's wife obtained a temporary restraining order issued pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant was served with the order, which included a prohibition against "making or causing anyone else to make a harassing communication" to his wife.
On July 2, 2003, defendant visited his wife's uncle, Sam Celia. Celia had a good relationship with his niece and her husband. He met defendant in 1993, when he and his niece were dating. Over the years Celia and defendant developed a social relationship independent of their wives. They shared season tickets to sporting events, ate lunch together and enjoyed the same vocalists. When defendant arrived at Celia'a home, they greeted one another with their customary hug and sat down outside to talk. Defendant seemed agitated and not his usual self.
Prior to that conversation, Celia did not know that defendant and his niece were having marital problems. Defendant told him about the restraining order and spent ninety minutes talking to Celia about the couple's difficulties and his concern about losing his job and pension as a consequence of the domestic violence proceeding.
Celia viewed the conversation as "basically [defendant's] plea to please get in touch with [his wife] to tell her that we can end this amicably. 'I stand to lose my job, I stand to lose my pension.'" Defendant told Celia he still loved his wife and needed help conveying that to her. Celia understood defendant to be making a "plea for help" and asking him to intercede on his behalf. Although Celia did not want to get involved, he listened. He was "feeling empathy."
At one point, defendant said, "if she keeps fing around with my pension you will see me on the front page of the Trentonian. I've already been in Back Talk," which is an editorial column in a newspaper circulated in the area. Celia responded: "I will pretend I did not hear that statement." According to Celia, [Defendant] did not have a rebuttal to what [he] said. He kept on saying, "But Uncle Sam, my parents are sick." He said, "You know, she shouldn't be doing this, this way." And as I said, I did the listening. He said, "She can't be doing it, and I'm telling you, if they take my weapons away, but I know where to get another one." I said, "Philip, I will repeat. I did not hear you say that."
Celia described defendant as agitated not angry. In the end, Celia told defendant he would do whatever he could but could not promise anything. Defendant left.
When Celia went inside, he told his wife defendant needed help because their niece had thrown him out and his job, pension and everything he had worked for was at risk. Celia's wife told him she did not want to hear about it and that if he was going to "buy that," she did not want to hear another word. Although Celia had planned to talk to his niece, after he spoke with his own wife he decided to stay neutral. At trial, Celia was asked if he would take every step to protect his niece. He said: "If you want to word it that way, but I know I had said in playing football that if ...