STATE OF NEW JERSEY VS. A.J.(FO-02-0280-15, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5357-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.J.,

Defendant-Appellant.
————————————————————————————

Argued May 18, 2017 – Decided July 12, 2017

Before Judges Hoffman and O'Connor.

On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
FO-02-0280-15.

James D. Addis argued the cause for appellant.

Elizabeth R. Rebein, Assistant Prosecutor,
argued the cause for respondent (Gurbir S.
Grewal, Bergen County Prosecutor, attorney;
Ms. Rebein, of counsel and on the brief).

PER CURIAM

Defendant A.J. appeals from a May 19, 2015 order finding him

guilty of harassment, N.J.S.A. 2C:33-4(c), and contempt, N.J.S.A.
2C:29-9(b), for violating a New York State order of protection.1

He contends the record lacks sufficient evidence to support either

conviction. He further asserts the trial court failed to elicit

a knowing, voluntary, and intelligent waiver of his right to

counsel. For the reasons that follow, we affirm the contempt

conviction and reverse the harassment conviction.

I.

We discern the following facts from the trial record.

Following their divorce, defendant and K.O. had a contentious

relationship. On June 6, 2014, a judge in New York State entered

an order of protection prohibiting defendant from communicating

with K.O. or their two children in any manner, including indirectly

through third parties. On November 19, 2014, the court entered a

temporary order of visitation, modifying the order of protection

to allow defendant to communicate with K.O. "by e-mail with respect

to the subject children." The modified order also afforded

defendant parenting time with the children, allowed him to attend

the children's functions, and provided for defendant to pick up

and return the children at a police precinct. The visitation

1
N.J.S.A. 2C:29-9(b)(2) proscribes the purposeful or knowing
violation of an order entered under the provisions of the
Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -
35, "or an order entered under the provisions of a substantially
similar statute under the laws of another state or the United
States."

2 A-5357-14T2
order additionally granted defendant parenting time from 10 a.m.

on December 24, until 6 p.m. on December 25, 2014.

Defendant failed to appear at the police precinct at 10 a.m.

on December 24, as he mistakenly believed the pickup time was at

6 p.m. According to defendant, "[A]t 1:12 p.m., I received a text

from my attorney saying that I missed my pickup[;] it was 10 a.m."

Notwithstanding the order of protection, defendant called K.O.

Defendant testified, "I was very cordial with her on the phone.

She said she would call me back. And then I never heard from her

again until later on that afternoon." Defendant then sent K.O.

three text messages trying to coordinate an alternative time to

pick up the children. When K.O. did not immediately respond to

defendant's messages, he sent an additional text message stating,

"I don't mean to bother you but it's now over [forty] minutes

since I reached out to you, can you please let me know the status.

Thank you and sorry for the mix up this morning."

At 6:36 p.m., K.O. sent defendant an email declining his

request "to schedule a visitation that deviates from the court-

mandated visitation schedule." K.O. did offer to "arrange for an

additional phone call tomorrow . . . [i]f you'd be interested in

this."

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 At 6:50 p.m., defendant responded by sending an email

addressed to K.O., but inserting "The Problem" between her first

and last name. The email stated:

Once again, you are again in contempt of court
and your behavior will once again be brought
before the judge in family court. Your
actions clearly do not represent the best
interest of the children and I pray for you.
Based upon the recent remarks presented in
court, I thought you would go above and beyond
to satisfy the requests of the judge, but
apparently, you think and feel that you are
above the law. You[r] actions do not hurt me,
but they are damaging the well[-]being of the
children and again, I pray for you. So telling
me that you already have plans (even [though]
you are at home) because of the holiday season
is erroneous since I was willing and able to
meet you at any other location for your
convenience.

With that I wish you all the best.

At trial, K.O explained that defendant's email made her feel

"[i]ncredibly nervous. He has tried to hold me in contempt of

court before." On January 12, 2015, after meeting with her

attorney, K.O. went to the local police department and filed

complaints for harassment and contempt against defendant.

On March 25, 2015, defendant appeared in court and stated his

intention to apply for a public defender. On April 22, 2015,

defendant returned to court and advised the judge that his

application for a public defender had been denied. At that point,

4 A-5357-14T2
the judge questioned defendant to confirm defendant was making a

knowing and voluntary waiver of his right to counsel.

The case proceeded to trial on May 19, 2015, with the State

presenting testimony from K.O. and the police officer who took her

complaint. Defendant, appearing pro se, testified on his own

behalf. At the conclusion of the testimony and summations, the

trial judge found defendant guilty of both harassment and contempt.

The judge stated that defendant's phone call and text messages to

K.O. were solely about the children, there was a reason for those

communications. The email, however, was not about the children;

it was about defendant's "ex-wife." The judge stated that when

defendant referred to his ex-wife as "The Problem," he was

"shifting the blame" for his mix-up to her. Because the judge

found the email did not constitute a permitted email concerning

the children, but instead was a "lecturing" email attempting to

shift the blame for defendant's own mistake to his ex-wife, he

concluded the email violated the order of protection, as modified.

The judge further concluded the email constituted "a criminal

offense of harassment[,] [g]iven the history in this case."

II.

Our review of a Family Part judge's findings is deferential

"to those findings of the trial judge which are substantially

influenced by his [or her] opportunity to hear and see the

5 A-5357-14T2
witnesses and to have the 'feel' of the case, which a reviewing

court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999)

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "Deference

is especially appropriate 'when the evidence is largely

testimonial and involves questions of credibility.'" Cesare v.

Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons

to J.W.D., 149 N.J. 108, 117 (1997)).

The purpose of the Act is to assure victims of domestic

violence "the maximum protection from abuse the law can provide."

State v. Hoffman, 149 N.J. 564, 584 (1997) (quoting N.J.S.A. 2C:2-

18). To establish a disorderly person's contempt of court, the

State must prove that defendant "purposely or knowingly" violated

a restraining order. N.J.S.A. 2C:29-9(b); State v. L.C., 283 N.J.

Super. 441, 447 (App. Div. 1995), certif. denied, 143 N.J. 325

(1996). "[T]he evidence must allow at least a reasonable inference

that a defendant charged with violating a restraining order knew

his conduct would bring about a prohibited result." State v.

S.K., 423 N.J. Super. 540, 547 (App. Div. 2012). N.J.S.A. 2C:2-

2(b)(2) states in relevant part: "A person acts knowingly with

respect to the nature of his conduct or the attendant circumstances

if he is aware that his conduct is of that nature, or that such

circumstances exist, or he is aware of a high probability of their

existence."

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 A person is guilty of harassment if he or she, with the

purpose to harass another,

a. Makes, or causes to be made, a
communication or communications
anonymously or at extremely inconvenient
hours, or in offensively coarse language,
or any other manner likely to cause
annoyance or alarm; [or]

. . . .

c. Engages in any other course of
alarming conduct or of repeatedly
committed acts with purpose to alarm or
seriously annoy such other person.

[N.J.S.A. 2C:33-4.]

Under either section of this statute, a defendant must act

with the purpose to harass. Bresocnik v. Gallegos, 367 N.J. Super.

178, 182-83 (App. Div. 2004). Subsection (a) targets specific

modes of speech, including communications "at extremely

inconvenient hours," and requires that the manner of speech be

"likely to cause annoyance or alarm." Hoffman, supra, 149 N.J.

at 576 (quoting N.J.S.A. 2C:33-4(a)). Subsection (c) requires a

course of repeated conduct, motivated by a higher degree of

purpose, "to alarm or seriously annoy." Id. at 580. The

harassment statute was not enacted to "proscribe mere speech, use

of language, or other forms of expression." L.C., supra, 283 N.J.

Super. at 450; see also State v. Fin. Am. Corp., 182 N.J. Super.

33, 36-38 (App. Div. 1981). Rather, since the First Amendment to

7 A-5357-14T2
the United States Constitution "permits regulation of conduct, not

mere expression," the speech punished by the harassment statute

"must be uttered with the specific intention of harassing the

listener." L.C., supra, 283 N.J. Super. at 450.

Regarding the harassment charge, "[a] finding of a purpose

to harass may be inferred from the evidence presented[,]" and

"[c]ommon sense and experience may inform that determination."

Hoffman, supra, 149 N.J. at 577. Nonetheless, we note that

purposeful conduct "is the highest form of [mens rea] contained

in our penal code, and the most difficult to establish." State

v. Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). Its

establishment requires proof, in a case such as this, that it was

the actor's "conscious object to engage in conduct of that nature

or to cause [the intended] result," N.J.S.A. 2C:2-2(b)(1), i.e.,

to alarm or seriously annoy another person. A person's assertion

that the conduct is harassing is not sufficient. J.D. v. M.D.F.,

207 N.J. 458, 484 (2011). Further, a "victim's subjective reaction

alone will not suffice; there must be evidence of the improper

purpose." Id. at 487.

Here, the judge made no specific finding defendant acted with

this requisite purpose, nor may we view defendant's words as

implicitly embodying a purpose to harass. Accordingly, in the

absence of this integral finding, the judge's determination that

8 A-5357-14T2
defendant committed harassment must be reversed. See Corrente v.

Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995).

We note, however, that reversal of defendant's harassment

conviction does not impact defendant's contempt conviction arising

out of the same conduct. In Hoffman, supra, 149 N.J. at 589, the

Court sustained a contempt conviction without a finding of guilt

on a related harassment complaint, because the mailing of letters

by defendant to the victim constituted contact that was prohibited

by the restraining order. Here, defendant's email to his ex-wife

went beyond the proscription of the order of protection, which

allowed communications "with respect to the subject children,"

thus violating the order.

Regarding the contempt conviction, we conclude the record

supports the judge's factual findings, and the judge applied the

correct legal principles in reaching his ultimate decision.

Accordingly, we discern no basis to reverse the contempt

conviction. As for the harassment conviction, we are constrained

to reverse, based upon our review of the trial record.

Finally, we briefly address defendant's argument that the

trial court failed to elicit a knowing, voluntary, and intelligent

waiver of his right to counsel. Based upon our review of the

court's colloquy with defendant on April 22, 2015, four weeks

before the trial in this matter, we conclude this argument lacks

9 A-5357-14T2
sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

Affirmed in part, and reversed in part.

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