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State v. Murtagh


January 23, 2008


On appeal from the Superior Court of New Jersey, Law Division, Cape May County Indictment No. 06-08-0632.

Per curiam.


Submitted October 24, 2007

Before Judges Sapp-Peterson and Messano.

The State appeals from a March 15, 2007 order dismissing the single-count indictment that charged defendant, Joseph Murtagh, with criminal contempt, N.J.S.A. 2C:29-9(a), arising out of Murtagh's alleged violation of a no-contact condition of bail. The motion judge granted defendant's motion to dismiss, finding that the proper remedy for defendant's conduct was a revocation of his bail, not an indictment for contempt. We agree and affirm.

We begin by noting that the grant of a motion to dismiss an indictment lies within the sound discretion of the trial judge, and the "exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996). "An indictment should not be dismissed unless it is manifestly deficient or palpably defective." State v. Wein, 80 N.J. 491, 501 (1979). When the challenge is, as here, to the adequacy of the proofs before the grand jury, "if there is some evidence establishing each element of the crime to make out a prima facie case," the motion should be denied. State v. Morrison, 188 N.J. 2, 12 (2006). In such circumstances, "the trial court should use a standard similar to that applicable in a motion for a judgment of acquittal at trial," and "evaluate whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it." Id. at 13.

Although we have not been provided with a copy of the grand jury transcript, it would appear that the parties do not dispute what evidence was produced before that panel. Rather, it was defendant's argument before the motion judge that assuming all the conduct he was alleged to have committed was true, it was insufficient to prove criminal contempt under the statute. We therefore recite the operative facts and procedural history as reflected in the appellate record.

On June 17, 2006, in a complaint warrant emanating from the Wildwood City Municipal Court, defendant was arrested and charged with a disorderly persons offense, simple assault against Janina Kinsing. N.J.S.A. 2C:12-1(a). The face of the warrant indicates that defendant was immediately released on his own recognizance, but "with the condition [that he have] no contact with the victim[.]" Notwithstanding this condition, defendant was allegedly observed later that day having contact with Kinsing and was once again arrested and charged with violating N.J.S.A. 2C:29-9(a). The complaint alleged that defendant had "purposely or knowingly disobey[ed] a judicial order . . . that the defendant would be released R.O.R. with the condition of no contact with the victim." On August 22, 2006, a Cape May County grand jury returned a one-count indictment charging defendant with fourth-degree criminal contempt, N.J.S.A. 2C:29-9(a).

Defendant moved to dismiss the indictment, claiming that any violation of a condition of his release on bail could not serve as the basis for the charge of criminal contempt under the statute. Citing our holding in State v. Williams, 234 N.J. Super. 84 (App. Div. 1989), defendant argued that the proper consequence of his alleged violation of the no-contact provision of his bail was the revocation of that bail or an increase in the amount of bail, or even incarceration, all of which were permitted by law, not a separate charge for criminal contempt.

Additionally, defendant argued that N.J.S.A. 2C:29-9(a) was not intended to prohibit the conduct for which he stood accused. He reasoned that although he was initially charged with a disorderly persons offense, his indictment for contempt stemmed from conduct that was not a criminal offense, namely, his subsequent alleged contact with Kinsing.

The State argued that defendant's conduct fit within the literal language of the statute because he "disobeyed a judicial order," an act prohibited by N.J.S.A. 2C:29-9(a). The State sought to distinguish Williams by arguing that, unlike a violation of probation punishable pursuant to N.J.S.A. 2C:45- 3(a)(4), there is no specific statutory remedy available to the court when a defendant violates a condition of bail.

The parties argued the motion to dismiss before Judge Raymond A. Batten on February 9, 2007. In his decision, the judge began by noting the holding in United States v. Hall, 198 F.2d 726 (2nd Cir. 1952), cert. denied, 345 U.S. 905, 73 S.Ct. 611, 97 L.Ed. 1341 (1953). Although not binding precedent, he found Hall factually similar, noting that the court essentially held that "a condition of bail effectively provides its own remedy" if it is violated.

Judge Batten observed that Rule 3:26-1(a)*fn1 permitted a court to "impose terms or conditions appropriate to the defendant's release including conditions necessary to protect persons in the community." He viewed the no-contact provision to be a condition expressly provided for by the rule.

The judge further considered that our holding in Williams, supra, which involved the violation of a no-contact provision that was a condition of defendant's probation, was "analogous" to the situation present here. 234 N.J. Super. at 93. In summary, he concluded the indictment was "defective" "as a matter of law" and had to be dismissed. The State's appeal followed.

On appeal, the State argues,



We have considered the arguments in light of the applicable law and we affirm the dismissal of the indictment substantially for the reasons expressed by Judge Batten in his oral opinion. We add only the following comments.

In Williams, supra, we drew a distinction "between an order directed to a defendant or another to do or refrain from doing a particular act (the violation of which could be the basis of a contempt of court citation by a judge or indictment by a grand jury), and a conditional order which either states the ramifications of its violation or has such consequences established by law." 234 N.J. Super. at 91. We held that because the violation of a condition of probation was itself punishable by the revocation of probation, pursuant to N.J.S.A. 2C:45-3(a)(4), criminal contempt under N.J.S.A. 2C:29-9(a) was inappropriate. Id. at 93.

Under the New Jersey Constitution, "[a]ll persons shall, before conviction, be bailable . . . except for capital offenses when the proof is evident or presumption great." N.J. Const. art. I, para. 11. Consistent with this constitutional mandate, Rule 3:26-1(a) sets forth the standard for fixing bail as well as the court's authority to "impose terms or conditions appropriate to the defendant's release including conditions necessary to protect persons in the community." Id. Moreover, Rule 3:26-6 authorizes a court to order forfeiture of a defendant's bail upon the breach of a condition of recognizance.

In State v. Korecky, 169 N.J. 364 (2001), the Court interpreted Rule 3:26-6 as justifying forfeiture of bail posted by the surety for a defendant's breach of a condition other than appearance. Id. at 373. The defendant, while admitted to bail, allegedly attempted to harass a co-defendant. The court increased the defendant's bail and imposed a no-contact condition, to which the surety's agent assented. Ibid. When police learned that the defendant had violated the no-contact provision, he was arrested, and the court conducted a bail forfeiture hearing. Although the defendant entered guilty pleas to a number of the charges at that time, the court addressed his purported violation of his condition of bail and found that the defendant violated the condition imposed by the court "'as part of his release on surety bond and that he exposed the surety to forfeiture of its bond.'" Id. at 371. The defendant's bail was revoked and he was remanded to jail pending sentencing.

In our view, defendant's alleged violation of the no-contact condition of bail similarly did not give rise to a separate and independent basis upon which to lodge a charge of contempt of court pursuant to N.J.S.A. 2C:29-9(a). As we stated in Williams, "[c]ontempt of court should not be superimposed as an additional remedy . . . if the act that occasions the violation itself is not otherwise criminal." 234 N.J. Super. 91. Defendant's alleged contact with Kinsing did not give rise to a separate criminal offense. Rather, the conduct had consequences established by Rule 3:26-6 and therefore the contempt of court indictment should not have been superimposed as an additional consequence for violating a condition of bail.*fn2



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