On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-09-2172.
The opinion of the court was delivered by: Waugh, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Waugh, and St. John.
The opinion of the court was delivered by WAUGH, J.A.D.
This case requires us to determine whether testimony given by the plaintiff or defendant during the trial of a domestic violence matter can be used for the purposes of cross-examination in a related criminal trial, despite the language of N.J.S.A. 2C:25-29(a) that "testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant." We hold that such testimony can be used for the limited purpose of cross-examination in a manner consistent with this opinion.
We briefly outline the factual and procedural background as reflected in the record on appeal.
On May 8, 2010, defendant Edward Duprey and C.G., to whom we refer by the pseudonym Smith, had an argument in the home they owned together in Newark. On May 11, Smith sought and received a temporary restraining order (TRO) pursuant to the Prevention of Domestic Violence Act of 1991 (DV Act), N.J.S.A. 2C:25-17 to -35. Smith's application for the TRO was premised on her allegation that Duprey had threatened and assaulted her during the argument.*fn1
On the adjourned return date of the TRO, June 10, 2010, both parties testified before the Family Part judge, as did a witness produced by Smith. After hearing the testimony and summations, the judge concluded that Smith had not met her burden of proof. He dismissed the TRO and her complaint.
On September 16, 2010, Duprey was indicted and charged with third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(b) (count one); fourth-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(4) (count two); and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4 (count three), all arising out of the events that underlay the domestic violence matter.
In February 2011, Duprey moved for dismissal of the indictment on the grounds of double jeopardy and collateral estoppel. In the alternative, he sought an order allowing him to use the transcript of the domestic violence trial as affirmative evidence and for purposes of ...