On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FO-09-171-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges Parrillo and Alvarez.
Defendant Nicholas De Metro appeals from a judgment of conviction finding him guilty of the disorderly persons offense of violation of a domestic violence restraining order, N.J.S.A. 2C:29-9(b), and imposing a penalty of one year of probation, a fine of $225, and other penalties and assessments totaling $365.
The trial court simultaneously modified the final restraining order to require defendant to remain at least 500 feet from the front door of his wife's home. We reverse and remand for entry of an order vacating the judgment.
A final restraining order was granted to defendant's wife pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17, on July 7, 2005. The order barred him from the marital residence as well as from contact with his wife and her children. On September 9, 2006, defendant, accompanied by a friend, attended a real estate open house next door to the marital residence. He was witnessed by his stepson, then age twelve, and the child's natural father, both of whom saw him on the sidewalk. The child called his mother, who was not home at the time, and she in turn called the police. As a result, defendant was charged with contempt as well as harassment, N.J.S.A. 2C:33-4(a)-(c). He was acquitted of harassment.
At trial, the stepson and his father recounted that they observed defendant walking on the sidewalk between the lawn and the street. At one point defendant stood at the intersection of the public sidewalk and the walkway leading to the marital home. Defendant testified that he was standing on the sidewalk while photographing the house next door. He went to the open house in order to discuss the value of the listed property, similar in style to the marital residence, with the listing realtors. The value of the marital home was a disputed item in the pending divorce. The stepson's father corroborated that defendant was holding a camera. Defendant's friend also testified that as far as he was aware, they were attending the open house solely to compare the two properties, and to discuss the real estate market in general with the realtors present at the open house. The realtors testified that they discussed comparables with defendant.
The State contends the facts here are similar to State v. J.T., 294 N.J. Super. 540, 541 (App. Div. 1996), where defendant stood behind a fence at some distance from his wife's property line for several hours. He positioned himself so that he would be seen as she went in and out of her home. Id. at 544. His convictions for both contempt as well as harassment were affirmed as the lower court found he intended to engage in a course of alarming conduct in violation of the restraining order. Id. at 541. The State's reliance is mistaken.
The facts of this case are comparable to the circumstances of State v. Wilmouth, 302 N.J. Super. 20 (App. Div. 1997). There, we overturned a contempt of a domestic violence restraining order conviction, despite the fact that defendant spoke to the mother of his child about upcoming visitation in "what she described as a hostile manner and in a gruff voice." Id. at 22. When the incident occurred, she was picking up the parties' child after visitation, accompanied by a friend and a police officer. Ibid. The parties had previously spoken to each other about visitation despite the restraining order. Id. at 21-22. The court said defendant's attempt to discuss visitation could not "be regarded as constituting quasi-criminal conduct subjecting defendant to the whole panoply of penalties imposable for such conduct." Id. at 23. That conclusion was in accord with public policy, as "[t]here are too many substantial and significant domestic violence matters requiring the urgent attention of the court system to squander judicial and prosecutorial resources on patently unmeritorious litigation which, moreover, unfairly subjects people to criminal penalties." Ibid.
Undoubtedly, defendant used poor judgment when he decided to attend the open house. His poor judgment, however, is not equivalent to a deliberate contempt of a domestic violence restraining order. He did not trespass upon the residence of his wife. He did not even step off the public sidewalk onto her walkway. He did not attempt to contact her or others protected by the order in any manner. He proffered a legitimate purpose for his presence, and this purpose was corroborated by not only his witnesses but, at least circumstantially, by one of the State's witnesses as well. It would simply be unfair to impose quasi-criminal penalties upon him for the conduct in question. Therefore, the judgment of conviction appealed from is reversed and we remand so that it may be vacated, including the modification which prohibits defendant from standing within 500 feet of his now former wife's front door.
The judgment of conviction appealed from is reversed and we remand for its vacation.
© 1992-2007 VersusLaw ...