On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-02-00119.
The opinion of the court was delivered by: Lefelt, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Parrillo, and Sapp-Peterson.
On November 6, 2006, the trial court, in a criminal prosecution, took judicial notice of another judge's factual finding, in a related domestic violence proceeding, that it was impossible for defendant Robert Silva to have committed the offense because he could not have been at the scene. We granted the State's motion to review this decision interlocutorily. The sole question we confront on this appeal is whether this was a proper use of the judicial notice evidence rule.*fn1 We answer the question in the negative and reverse.
We first summarize the context in which we confront this question. It was alleged that after defendant's girlfriend had obtained a temporary restraining order against him for harassment, defendant left the Basking Ridge Country Club sometime after 11:50 p.m., drove to the Raritan condominium he shared with his girlfriend, punched her in the face, and arrived at his daughter's Budd Lake home at around 12:50 a.m. Consequently, besides facing a potential final restraining order in the civil domestic violence proceeding,*fn2 defendant was also charged criminally with second-degree burglary, N.J.S.A. 2C:18-2; third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); and fourth-degree contempt for violating the temporary restraining order, N.J.S.A. 2C:29-9(b).
In the domestic violence matter, the trial court upon reconsideration denied a final restraining order, ultimately finding that it would have been "impossible" for defendant to have committed the assault alleged by the victim.*fn3
The trial court in the criminal proceeding granted defendant's motion and intends, pursuant to N.J.R.E. 201(b) and (d), to take judicial notice of the domestic violence judge's specific finding "that it was impossible for defendant to have committed the alleged offenses because 'it would have been impossible for the defendant to be at that point [,the Basking Ridge Country Club,] at 12:12 a.m. and fit the time frame for going to the scene and arriving at his daughter's home by 12:50 a.m.'" The judge further intends to instruct the jury, pursuant to N.J.R.E. 201(g), that "it may, but is not required to accept as established any fact which has been judicially noticed."
The pertinent evidence rule dealing with judicial notice, N.J.R.E. 201, is entitled "Judicial Notice of Law and Adjudicative Facts." The particular section of that rule at issue in this case provides that "[f]acts which may be judicially noticed include . . . records of the court in which the action is pending and of any other court of this state or federal court sitting for this state." N.J.R.E. 201(b)(4).
The other sections of the rule dealing with adjudicative facts also authorize the notice of facts that are "universally known," or that are of "common notoriety" within a particular area, or are generally known and "capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned." N.J.R.E. 201(b)(1)-(3). These sections of the rule all require that to be judicially noticed the facts cannot reasonably be questioned or disputed. Ibid.
The pertinent federal rule is entitled "Judicial Notice of Adjudicative Facts," Fed. R. Evid. 201, but does not contain a specific provision permitting judicial notice of court records. The federal rule, like sections (1)-(3) of our rule, deals only with facts that are "not subject to reasonable dispute" and are either "generally known" or "capable of accurate and ready determination ...