NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FO-09-423-09.
Law Offices of Abdelhadi & Associates, LLC, attorneys for appellant (Abdelmageid Abdelhadi, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Peter J. Baker, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Before Judges Reisner and Alvarez.
On August 5, 2009, defendant R.W.H. was convicted of disorderly persons contempt, N.J.S.A. 2C:29-9(b), and the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4. In his findings, the trial judge, while acknowledging that the complaint did not specify which section of the statute applied, stated:
After considering all of the testimony I'm satisfied that the State proved beyond a reasonable doubt that a phone call was made by [R.W.H.] on April 7th at approximately 9:05 p.m. to the home of [T.J.] in violation of the restraining order, telling her that now she was going to lose her Section 8. It's consistent with [defendant] attempting to show [T.J.] that she is not beyond his reach; [T.J.] merely wants to be left alone from [defendant]. Whether or not [T.J.] would lose her Section 8 is not material, the violation is that he made this phone call with the intention to annoy and alarm [T.J.]. Even though the phone call wasn't received by [T.J.] it was made to her house and I'm satisfied that that would constitute harassment and therefore a violation of the restraining order. A judgment of guilty would be entered on both counts.
Defendant was sentenced to two years' probation and sixty days in the Hudson County jail, thirty days more than requested by the State. For the reasons that follow, we vacate the convictions. We remand the matter for a new trial.
Defendant and T.J. have five children. Each has a final restraining order (FRO) against the other issued under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. At the time of trial, T.J. was married to Z.B.
Z.B. testified that on the evening of the day custody of three of the five children was transferred from T.J. to defendant, April 7, 2009, he answered a call during which he alleged he heard defendant say "b-tch, you're going to lose your Section 8." The caller did not identify himself. Minutes earlier, T.J. had answered the telephone and heard nothing more than a tapping on the line. She hung up, and Z.B. answered the next call.
During his testimony, Z.B. acknowledged his extensive criminal record, use of aliases, and the fact that on an earlier occasion he, using an alias, had filed a complaint against defendant. The caller ID device associated with T.J.'s phone did not show defendant's number. It was later established the number displayed was that of a relative of Z.B.
Defendant did not testify on his own behalf. The trial, although quite brief, because of scheduling conflicts carried over into a second day. On that second day, court resumed in defendant's absence at 9:30 a.m. It was then that the court refused to allow defense counsel to present Z.B.'s relative, from whose home the call allegedly originated, to testify that defendant was not at his home on that date and time. The judge barred the witness on the grounds that defendant had given inadequate notice of an alibi defense to the State. See R. 3:12-2.
As the proceedings came to a close the first day, defense counsel and the judge engaged ...