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State v. McGrath

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 3, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH MCGRATH, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. FO-13-392-05B.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 17, 2007

Before Judges C.S. Fisher and Grall.

Joseph McGrath was charged with contempt of a temporary restraining order issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, a disorderly persons offense, N.J.S.A. 2C:29-9b.*fn1 Following a bench trial in the Family Part, the court found defendant guilty of an attempt to violate the temporary restraining order.

Defendant appeals and correctly contends that his conviction must be reversed because an attempt to commit a disorderly persons offense is not an offense. The State has submitted a brief in which it acknowledges that the court's findings "support no greater than defendant's attempt to violate the temporary restraining order that had been issued against" defendant. The State makes the following further concession:

"Violation of the restraining order was charged as a disorderly persons offense, however, and '[a]n attempt to commit a disorderly persons offense is not itself an offense.'" (quoting State v. Clarke, 198 N.J. Super. 219, 225 (App. Div. 1985)). That is a correct statement of the law. Ibid.; see N.J.S.A. 2C:5-1 (defining "attempt to commit a crime"); see also N.J.S.A. 2C:1-4b (providing that disorderly persons offenses are not crimes); N.J.S.A. 2C:5-4a (grading criminal attempt with reference to the degree of the "crime" attempted).

The conviction is reversed and the matter is remanded for dismissal of the charge.


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