On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FO-10-156-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Messano.
Following a non-jury trial, defendant Christopher A. DeGiulio was convicted of harassment against his former wife, Kathleen A. Kish. N.J.S.A. 2C:33-4(a), (b), and (c). As a result, and based upon the existence of a prior domestic violence restraining order (FRO) entered against him, defendant was also found guilty of purposely violating a judicial order, N.J.S.A. 2C:29-9(b). Finding this was the second violation of the FRO by defendant, the judge imposed a mandatory thirty-day custodial sentence, placed defendant on probation for one year, ordered him to perform twenty hours of community service, and imposed appropriate fines and penalties. Defendant raises the following points on appeal:
AS A MATTER OF LAW,  DEFENDANT'S CONVICTIONS UNDER N.J.S.A. 2C:33-4 ARE NOT SUPPORTED BY THE COMPETENT EVIDENCE IN THE RECORD . . . AND, THEREFORE,  DEFENDANT'S CONVICTIONS AND SENTENCE MUST BE REVERSED AND SET ASIDE.
A. AS A MATTER OF LAW, THE CONVICTION FOR HARRASSMENT IS NOT SUPPORTED BY THE COMPETENT EVIDENCE IN THE RECORD BELOW.
B. THE TRIAL COURT'S AMENDMENT OF THE COMPLAINT AFTER CONCLUSION OF TRIAL TO CHARGE DEFENDANT WITH A VIOLATION OF N.J.S.A. 2C:33-4(a) AND/OR N.J.S.A. 2C:33-4(b) CONSTITUTED REVERSIBLE ERROR.
AS A MATTER OF LAW, DEFENDANT'S CONVICTION . . . DID NOT VIOLATE THE TERMS OF THE FRO ENTERED ON NOVEMBER 2, 2006 AND HIS CONVICTION UNDER N.J.S.A. 2C:29-9(b) SHOULD BE REVERSED.
WHEN SENTENCING DEFENDANT TO [THIRTY] DAYS IN JAIL, THE TRIAL COURT MISCONSTRUED AND/OR MISAPPLIED THE APPLICABLE LAW RESULTING IN A MANIFEST ABUSE OF DISCRETION WHICH SHOULD BE REVERSED.
We have considered these contentions in light of the record and applicable legal standards. We reverse.
Defendant and Kish divorced in 2005, and together shared joint legal custody of their thirteen-year old son with Kish designated as the primary custodial parent. Pursuant to an amended FRO previously entered on November 2, 2006, and by consent of the parties, parenting exchanges were to take place in the parking lot of a McDonald's restaurant on Route 31 in Clinton. The order designated a particular area of the parking lot in which the exchange was to occur. A prior custody order provided that defendant would pick up his son "after school" on Friday. The issues raised concern a parenting exchange scheduled to take place on Friday, June 29, 2007.
Kish testified that prior to the date in question, the exchanges had been acrimonious, defendant having "a difficult time agreeing to where and how[.]" Court involvement through a parenting coordinator was necessary to finalize the terms of the orders. School was no longer in session, and Kish was unsure what time the exchange was to take place. Defendant contacted his son to tell him he would pick him up at three o'clock, but Kish noted defendant "hadn't communicated [this] to me," and she had not received "48 hours notice" of the time. She decided, apparently without direct communication to defendant, to "stick to the time," which was going to be "five something."
Near three o'clock, her son's cell phone began ringing. Kish knew it was defendant "wondering where [their son] was." She told her son, "we're sticking to [five] and [your] dad knows it." She decided to do some errands and then drive her son to the McDonalds. They arrived around five. Defendant was not there, but arrived shortly thereafter and parked next to her. Her son exited the car, entered defendant's, and she began to back out of the parking space. She saw defendant's ...