On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FO-12-000064-11.
The opinion of the court was delivered by: Ashrafi, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2011
Before Judges A. A. Rodriguez, Sabatino and Ashrafi.
The opinion of the court was delivered by ASHRAFI, J.A.D.
Defendant appeals from a judgment of conviction following his guilty plea to a disorderly persons charge of contempt for violating a domestic violence restraining order. N.J.S.A. 2C:29-9b. Because the violation was of an invalid provision of the restraining order that defendant could not be expected to obey under all circumstances, and because the factual basis for defendant's guilty plea was insufficient, we vacate the conviction and dismiss the complaint.
The final restraining order was entered on November 29, 2005, following a hearing in the Family Part at which defendant and his ex-wife appeared pro se and testified. The parties had been married for six years and were divorced about one year before the hearing. They had two children, ages seven and five at the time of the hearing. Their divorce judgment included parenting time and support obligations.
The Family Part judge found that defendant had returned the children to his ex-wife's home after his parenting time, and then he and his ex-wife had argued about his support payment. Because the payment would be late, the ex-wife ordered him out of her house and began pushing him. Defendant pushed her back and made a verbal threat. Defendant attempted to call the police on his cell phone, but his ex-wife grabbed the phone away. She would not give it back and threatened to smash it on the ground. The two grappled over the phone. He bit her hand, and she dropped the phone. Both called the police.
The judge found that defendant had committed an act of harassment in violation of N.J.S.A. 2C:33-4. Taking into consideration the ex-wife's testimony about prior verbal harassment and a prior biting incident,*fn1 the judge granted her a final restraining order.
When issuing the order, the judge explained to the parties the nature of the restraints and discussed at length the provisions that would apply to parenting time arrangements and future support payments. Defendant was informed that he was prohibited from making contact with his ex-wife and that he was barred from her home and place of employment. At no time during the hearing, however, did the judge specifically refer to a provision written into the final restraining order that barred defendant from "any other place where plaintiff is located."
From 2005 to 2010, no charges were filed against defendant for violation of the order. On April 22, 2010, defendant attended his children's soccer game at a local high school. His ex-wife was also present and sitting in the bleachers. She called the police and reported that she had an active restraining order against her ex-husband, that he was not permitted to be in the same place as her, and that he was standing near the bleachers and watching the soccer game. She did not claim that any communication or contact had occurred. Nor did she allege he had engaged in other misconduct. The police did not file any charges at that time.
The next day, the ex-wife went to the police station with a copy of the restraining order and filed a citizen's complaint against defendant. The police then filed a formal complaint charging defendant with disorderly persons contempt, in violation of N.J.S.A. 2C:29-9b, and with petty disorderly persons harassment, in violation of N.J.S.A. 2C:33-4a. The complaint alleged that defendant had committed those offenses by "being at their child's soccer game the same time as the complainant." Defendant was arrested and processed, and he spent several hours in police custody before he was released.
Six months later, defendant appeared with counsel before the Family Part for trial on the two charges. The State offered a plea agreement for a non-custodial sentence, which defendant accepted. After confirming with the judge that he would not be sentenced to additional time in custody, defendant agreed to plead guilty to the contempt charge, and the State agreed to dismiss the harassment charge. Before accepting the guilty plea, the court placed defendant under oath and questioned him in accordance with the requirements of Rule 3:9-2. ...