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State v. Gerbasio


June 17, 2008


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. FO-09-416-07.

Per curiam.


Submitted May 12, 2008

Before Judges Stern and A. A. Rodríguez.

Defendant appeals from a judgment of conviction for contempt, in violation of N.J.S.A. 2C:29-9(b), for a violation of a final restraining order (FRO). The FRO precluded defendant from "residence(s) of plaintiff, place(s) of employment of plaintiff and . . . Passaic County Community College . . ."

For purposes of this appeal, we adopt the State's version of the proofs:

In or around April, 2007, [the Victim] ended her dating relationship with Mr. Anthony Gerbasio (hereinafter "Defendant-Appellant"). On April 16, 2007, a Domestic Violence Final Restraining Order (hereinafter "FRO") was entered against the Defendant-Appellant by Honorable Thomas L. Weisenbeck, J.S.C. pursuant to N.J.S.A. 2C:25-27, et seq. Among many other restrictions, the FRO barred the Defendant-Appellant from being at the Victim's place of employment. The Victim was employed as a server and bartender at the Bonefish Grill from some time in 2004 until June, 2007. The Defendant-Appellant was also employed as a server at the Bonefish Grill, from approximately December, 2005 until June, 2006. The Bonefish Grill is located at 200 Mill Creek Drive in Secaucus, New Jersey. The restaurant shared a parking lot for its patrons and/or employees with other business in the area.

Mr. Frank Carlo, the kitchen manager of the Bonefish Grill, worked at the restaurant on May 22, 2007. That day, he began working at 2:00 P.M. Although the restaurant closed for business at 10:30 p.m., he remained there and continued working until he left the restaurant at around 1:00 A.M. on the morning of May 23rd. Mr. Carlo knew the Defendant-Appellant because of the Defendant-Appellant's previous position as an employee of the Bonefish Grill. At about 11:30 p.m. on May 22, 2007, Mr. Carlo stepped outside of the restaurant to locate some of his employees, when he saw the Defendant-Appellant speaking to them from his car. The Defendant-Appellant's car was parked in a shared parking lot about eighty (80) feet from the entrance to the restaurant. Mr. Carlo, who was unaware that the FRO prohibited Defendant-Appellant from being at the Victim's place of employment, carried on a conversation with Defendant-Appellant that lasted for approximately fifteen (15) minutes. During the conversation, the Defendant parked his car and walked with Mr. Carlo to the sidewalk area directly outside of the front of the Bonefish Grill, about ten (10) feet from the front door.

Within a few days, the Victim found out from Mr. Carlo what had happened on May 22, 2007. She responded to Secaucus Police Department on May 22, 2007 and filed a complaint against the Defendant for Contempt of Court for violation of a Domestic Violence Restraining Order.

The Defendant-Appellant testified that he knew he was not supposed to be at the Bonefish Grill. He also stated, under oath, that he did in fact have a conversation with Mr. Carlo, which took place on the sidewalk of the Bonefish Grill, merely a few feet away from the front door of the establishment. He further indicated, on cross-examination, that he knew the parking lot that he had parked his car in was used by the Bonefish Grill.

[Footnote omitted.]

Based on these facts, defendant argues that "the defendant's conduct did not rise to the level where there was a violation of the restraining order, and the State has failed to meet its burden of proof beyond a reasonable doubt." He asserts that he did not physically enter the premises and the DV victim never saw him.

The State contends that while talking to Carlo, defendant parked his car and walked to the sidewalk area directly outside the entrance to the restaurant, about ten feet from the front door. According to the State, reversal of the conviction "would contravene the legislative intent behind the Prevention of Domestic Violence Act."

This is not a case dealing with whether or not there was proof sufficient to grant an FRO. We are not dealing with the special expertise of the Family Part, as addressed in Cesare v. Cesare, 154 N.J. 394 (1998). This is a criminal matter in which defendant had to be found guilty of contempt by proof beyond a reasonable doubt.*fn1 The State nevertheless contends that because of where the car was initially parked, defendant got out of it and walked within ten feet of the front, he "knowingly violated a provision of the FRO."

Even recognizing that the State is entitled to all reasonable and legitimate inference from the evidence, State v. Reyes, 50 N.J. 454, 458-59 (1967), and that a conviction can be based on circumstantial evidence, there was insufficient evidence to uphold a finding of a knowing violation of the FRO by proof beyond a reasonable doubt as a result of the conduct involved, because defendant was "barred from" "place(s) of employment of plaintiff." He could not enter the restaurant as a "place of employment," and the reasonable doubt standard requires reversal of the conviction which was premised on his being within ten feet of the door. There is nothing in the record to reflect such conduct was prohibited.

The judgment of conviction is reversed.

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