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State v. D.P.

October 18, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
D.P., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket Nos. FO-10-162-09, FO-10-163-09 and FO-10-164-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2010

Before Judges Payne and Baxter.

Defendant D.P. appeals from his April 2, 2009 conviction on three counts of disorderly persons contempt, N.J.S.A. 2C:29-9(b), arising from three separate violations of a domestic violence final restraining order (FRO). At sentencing, pursuant to the plea agreement, the judge dismissed one count of harassment, a petty disorderly persons offense, and sentenced defendant to a one-year term of probation subject to three concurrent sixty-day periods of incarceration in the Hunterdon County Jail.

On appeal, defendant raises the following claims:

I. THIS COURT MUST REMAND FOR A NEW TRIAL APPELLANT'S MATTER [SIC] AS THE TRIAL COURT ERRONEOUSLY ACCEPTED APPELLANT'S GUILTY PLEAS UNDER R. 3:9-2.

II. THIS COURT MUST REMAND FOR A NEW TRIAL AS APPELLANT WAS DENIED [THE] OPPORTUNITY TO HIRE AN EXPERIENCED ATTORNEY OF HIS OWN CHOOSING.

III. THE IMPOSITION OF A 60 DAY JAIL TERM ON EACH COUNT IS EXCESSIVE IN LIGHT OF THE "STRONG PROVOCATION" CITED AS A MITIGATING FACTOR BY THE TRIAL COURT.

We reject these claims and affirm defendant's conviction and sentence.

I.

Defendant and T.L. maintained a dating relationship for more than thirteen years.*fn1 They were never married and had no children but had two dogs that, according to defendant, "were like our kids to us." Defendant's relationship with T.L. ended, apparently due to his "substance abuse issues," which T.L. was no longer willing to accept. She ultimately obtained an FRO against him, which she dropped, after which she obtained a second FRO that she also dismissed. A third FRO, entered on May 29, 2008, was still in effect in December 2008, when T.L. contacted defendant telling him she missed him and wanted him to come visit the dogs.

Believing that even if the FRO was still in effect T.L. would not charge him with violating it, defendant went to T.L.'s home in December 2008 to bring gifts for the dogs. He contacted her by telephone on two occasions thereafter. According to defendant, T.L. later learned that he had a new girlfriend, and T.L.'s anger over his new girlfriend caused T.L. to file three charges of violating the FRO. It is those charges to which he ultimately pled guilty. As we shall discuss below, defendant did not deny that he had gone to T.L.'s home and contacted her by telephone. Instead, he maintained that the two had engaged in consensual sexual relations in August, September and October 2008 and that when he went to her home in December 2008 to bring gifts for the dogs, and when he called her in December 2008 and January 2009, he had done so with T.L.'s approval. He asserted she filed the three violation complaints against him only after learning that he had a girlfriend.

After several court appearances, defendant and the State were able to agree to the terms of a negotiated plea agreement, under which he would be sentenced to a one-year term of probation, subject to a maximum of ninety days in the Hunterdon County Jail on each of the three counts of violating the restraining order, with the jail time to run concurrently on each of the three counts. Because defendant had a prior conviction for violation of an FRO (which had been obtained by T.L.), he was subject to a mandatory minimum thirty-day period of incarceration on each count. See N.J.S.A. 2C:25-30.

The plea colloquy began with the judge asking defendant if he understood the rights he was surrendering by entering a plea of guilty, to which defendant answered in the affirmative:

THE COURT: . . . You've heard the colloquy on the record. Is it true that you wish to plead guilty to these three charges with the dismissal of the harassment charge?

[DEFENDANT]: Yes.

THE COURT: Okay. You understand that by pleading guilty you're giving up several rights. Let's go over them. First of all, you're giving up your right to have a trial on these charges -- each one of these charges. Right?

[DEFENDANT]: Yes.

THE COURT: And at trial there are certain rights you have that I need to go over with you. First of all, you're giving up your right to require the State to prove your guilt beyond a reasonable doubt. Do you understand that?

[DEFENDANT]: (No verbal response)

THE COURT: I need a verbal response.

[DEFENDANT]: Yes. I'm sorry.

THE COURT: Thank you. You're giving up your right to present evidence in the form of testimony by witnesses who would testify on your behalf. Do you understand that?

[DEFENDANT]: Yes.

THE COURT: You're giving up your right to have your attorney cross examine the State's witnesses in an effort to produce reasonable doubt in the mind of the trier of fact, who would be me, without a jury. Do you understand that you're giving that up?

[DEFENDANT]: Yes.

THE COURT: Finally, you're giving up the right to testify yourself on your own behalf or to choose to remain silent, and the court cannot infer anything negative or against you if you chose to remain silent. Do you understand you have that right?

[DEFENDANT]: Yes.

THE COURT: And you're giving up that right. Is that correct?

[DEFENDANT]: Yes.

Next, the judge reviewed the terms of the plea agreement, and defendant assured the judge he understood them:

THE COURT: Charges to which you're pleading guilty are all disorderly persons charges. Each one of them carries a maximum of six months in the county jail as a maximum sentence plus $1,000 in fines. So [your] exposure here, if they were to be sentenced concurrently -- I'm sorry --consecutively, would be 18 months and $3,000 in fines, and, theoretically, 18 months would make it a prison sentence.

[DEFENDANT]: Yes.

THE COURT: Do you understand that?

[DEFENDANT]: Uh-huh.

[DEFENDANT]: [W]as the probation going to run concurrent with my probation now? I thought that was the --

THE COURT: No, the request by the State is consecutive on ...


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