On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FO-02-259-10. Anthony J.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically November 3, 2011
Before Judges Yannotti and Kennedy.
Defendant appeals from a Family Part order finding him guilty of a violation of probation and committing him to the Bergen County jail for sixteen days. We affirm the conviction but vacate the sentence and remand for re-sentencing.
The events giving rise to the violation of probation occurred on June 22, 2010, in the Ramsey Municipal Court. We briefly recite the procedural history preceding defendant's court appearance that day so that the events may be understood in context.
On September 23, 2009, K.C. obtained a temporary restraining order (TRO) against defendant, with whom she had a dating relationship, based upon a domestic violence complaint alleging harassment and stalking. On October 14, 2009, the defendant was charged with contempt, in violation of N.J.S.A. 2C:29-9B, for violating the terms of the TRO by making harassing communications to K.C. On December 1, 2009, defendant appeared in the Family Part in Bergen County and pled guilty to contempt and was given probation for one year with a condition that there shall be "no contact with victim."
On January 15, 2010, a violation of probation notice was issued against defendant predicated upon acts alleged to have occurred on January 10, 2010. That violation of probation was dismissed by the Family Part on March 3, 2010, but, in the order of dismissal, the trial judge noted that "defendant shall not be within 100 yards of the victim" and is "restrained from having any communications with the victim or her children."
Thereafter, on June 25, 2010, a second violation of probation notice was issued against defendant predicated upon events alleged to have occurred at the municipal court in Ramsey on June 22, 2010. The violation of probation charged that while defendant and K.C. were in the municipal courtroom, "the defendant deliberately walked by [K.C.] and called her a psychopath."
A hearing on the violation of probation was held in the Family Part on October 6 and 28, 2010. The facts which follow are drawn from testimony given during those proceedings.
On June 22, 2010, at approximately 5:00 p.m., defendant and K.C. arrived separately at the municipal court. Seating for those attending the municipal court was provided by several rows of folding chairs. There was also a row of folding chairs along the back wall of the courtroom that was separated from the row of folding chairs ahead of it, by an aisle approximately three feet wide. K.C. was seated in the last row of folding chairs between the aisle and the folding chairs along the wall. Two witnesses testified that defendant, while walking in the aisle behind K.C.'s chair, uttered the words "psychopath" in a voice loud enough for her to hear. K.C. testified that she heard the word, as well. Defendant denied that he had uttered the word "psychopath" and called witnesses on his own behalf.
The trial judge, after listening to the testimony of K.C. and the various witnesses, found that the defendant did say the word "psychopath" as he walked behind K.C. She found that it was a "harassing comment" and noted that the comment was "directed at the victim here. [Defendant] couldn't keep his mouth shut."
Based on this finding of fact, the trial judge found that the defendant "violated a substantial term of his probation." Thereafter, following comments by both the prosecutor and defense counsel, the trial judge sentenced defendant to sixteen days in the Bergen County Jail, to be served every other weekend commencing on Friday at 6:00 ...