On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Middlesex County, Docket No. FO-12-257-08 and FO-12-258-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Baxter.
Defendant R.P. appeals from his March 10, 2008 conviction on a charge of violating a domestic violence final restraining order (FRO), N.J.S.A. 2C:29-9.*fn1 We reject defendant's argument that the trial judge erred by denying his motion to dismiss the contempt charges as de minimis infractions unworthy of prosecution. We affirm.
On July 23, 2007, a Family Part judge issued an FRO against defendant under the provisions of the Prevention of Domestic Violence Act of 1991 (The Act), N.J.S.A. 2C:25-17 to -35. The FRO barred defendant from any contact with his estranged wife, K., other than by text message or e-mail, and only if necessary to discuss an issue affecting their children. The FRO also permitted defendant to attend his daughters' athletic events and to communicate with them by e-mail and text messaging. On August 24, 2007, Judge Toto issued an amended FRO that addressed defendant's telephone contact with his daughters. The amended FRO limited such calls to one per night between 7:30 p.m. and 7:45 p.m.
In October 2007, K. filed two complaints charging defendant with violations of the FRO. In particular, W-2007-0467 charged him with sending e-mails on topics not related to the children's activities. It also charged defendant with calling K. on the telephone, despite the provision of the FRO that prohibited such contact. W-2007-0481 charged defendant with telephoning K. on thirteen occasions between 7:56 p.m. and 11:37 p.m., again despite the order prohibiting defendant from attempting to contact his estranged wife. The latter complaint also encompassed an allegation that on October 18, 2007, defendant came to the former marital home while K. was not present and left family mementoes at the garage door. The items consisted of beach chairs, a math compact disc and the children's headbands.
During a two-day trial before Judge Currier on March 7 and 10, 2008, which covered 213 transcript pages, K. testified that, in addition to the thirteen telephone calls on October 19, 2007, defendant had also violated the FRO by contacting her mother and her best friend in an effort to persuade her to dismiss the FRO. She also asserted that defendant had sent his cousin to the parties' children's softball game to offer K. an apology for defendant's call to K.'s mother a few days earlier.
After the State rested, defendant moved for acquittal, arguing that some of the conduct the State alleged did not constitute a violation of the FRO, and the remaining conduct, even if it did constitute a violation, was so trivial as to require dismissal. After considering lengthy arguments from both sides, Judge Currier granted defendant's motion in part, determining that nothing in the FRO prohibited defendant from contacting K.'s mother or best friend. Consequently, the judge dismissed those allegations.
As to K.'s claim that defendant had violated the FRO by leaving the beach chairs and other items at the garage door, Judge Currier concluded that because K. was not home at the time, any violation of the FRO encompassed by such conduct was de minimis, and she dismissed those allegations as well. Thus, the only charge that remained after the judge decided defendant's Rule 3:18-1 motion for involuntary dismissal were the allegations in W-2007-0481 and -0467 that defendant had violated the no-contact provision of the FRO by telephoning K. on thirteen occasions on the night of October 19, 2007.
Defendant contended during the Rule 3:18-1 hearing that he had never been served with a written copy of the August 24, 2007 amended FRO, and was therefore unaware of the time limitation contained in that order. To resolve that issue, during a recess in the proceedings, Judge Currier listened to the tape of the August 24, 2007 proceeding before Judge Toto. By listening to the tape, Judge Currier determined that defendant was indeed present in the courtroom on August 24, 2007 at the time Judge Toto orally issued the ruling that limited defendant's phone calls to the period between 7:30 p.m. and 7:45 p.m. Thus, Judge Currier rejected defendant's contention that he was unaware that he was violating the FRO by calling at times other than the interval in question.
After the judge ruled that the allegations concerning the thirteen telephone calls on October 19, 2007 were sufficient to survive defendant's Rule 3:18-1 motion for acquittal, defendant took the stand to explain his actions. Defendant testified that he was not responsible for all thirteen of the telephone calls made on October 19, 2007, suggesting that his parents or ...