Opinion
DOCKET NO. A-2037-14T1
06-01-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. E.R., Defendant-Respondent.
Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for appellant (Jeffrey L. Weinstein, Assistant Prosecutor, on the briefs). Joseph E. Krakora, Public Defender, attorney for respondent (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 12-11-0530. Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for appellant (Jeffrey L. Weinstein, Assistant Prosecutor, on the briefs). Joseph E. Krakora, Public Defender, attorney for respondent (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
The State appeals the dismissal of a criminal indictment that charged defendant, E.R., with fourth-degree contempt, in violation of N.J.S.A. 2C:29-9b; and third-degree stalking, in violation of N.J.S.A. 2C:12-10c. Both of these charges are predicated on proving defendant violated a restraining order.
Defendant's ex-wife, T.S., obtained a temporary restraining order (TRO) against him. It is undisputed that defendant was not served with the TRO before his September 25, 2012 arrest on the listed charges. On a motion to dismiss the indictment, the court found that because defendant was never served, and thus advised of the terms of the restraints, charges based upon violation of restraints were inappropriate. We affirm the dismissal of the indictment. In doing so, we emphasize defendant's lack of actual knowledge of the restraints, as well as the lack of proper service of the order.
On November 29, 2012, a Hunterdon County Grand Jury returned an indictment on the aforementioned charges. In a separate indictment, defendant was also charged with fourth-degree stalking, in violation of N.J.S.A. 2C:12-10b. On April 28, 2014, venue was transferred to Somerset County. Defendant filed a motion to dismiss both indictments on August 22, 2014. On October 6, 2014, the trial judge heard argument on the motion to dismiss. The judge granted the motion as to the contempt and third-degree stalking charges, but reserved decision on the fourth-degree stalking charge. In a written opinion dated November 7, 2014, the judge memorialized the dismissal of the contempt and third-degree stalking charges, and denied the motion to dismiss the fourth-degree stalking charge.
This court granted the State's motion for leave to appeal on January 5, 2015. The present appeal deals only with the dismissal of the contempt and third-degree stalking charges. The State raises the following argument:
CONTEMPT OF A DOMESTIC VIOLENCE ORDER MAY BE PROVED BY SHOWING THAT DEFENDANT HAD ACTUAL KNOWLEDGE OF THE RESTRAINTS; SINCE THE STATE PRESENTED EVIDENCE THAT DEFENDANT HAD ACTUAL KNOWLEDGE OF THE TRO AND VIOLATED SAME, THE TRIAL COURT IMPROPERLY DISMISSED THE INDICTMENT BASED UPON A FINDING THAT THE STATE FAILED TO PERSONALLY SERVE DEFENDANT WITH THE TRO.
Testimony before the grand jury revealed the following facts. Defendant and T.S. separated in June 2010. T.S. left the marital home with the couple's two children, and moved into her parent's house in New Jersey. Defendant remained in Pennsylvania, and initially maintained contact with his children and T.S. via phone and physical visitation. During the summer of 2011, defendant began to increase the volume and the intensity of his calls and communications. In response, T.S. filed and received a TRO against defendant on August 22, 2011. The TRO was issued ex parte; it is undisputed that defendant was never personally served with the order until he was eventually arrested in September 2012.
The TRO imposed a number of restraints on defendant. Defendant was barred from various physical locations, from making electronic or other contact with T.S., and from making harassing communication with T.S. Defendant was also prohibited from harming, stalking, or following T.S., and from possessing weapons. Additionally, the TRO granted T.S. temporary custody of the children.
In the meantime, on September 14, 2011, T.S. filed for divorce from defendant in Hunterdon County. The final judgment of divorce (JOD) was entered on May 7, 2012. Defendant was not present at the divorce proceedings, and was not personally served with the JOD. Nevertheless, the JOD reads as follows:
The . . . [TRO] dated August 22, 2011, shall remain in full force and effect, and the Defendant shall be prohibited from having any contact whatsoever with the Plaintiff. Further, the aforesaid [TRO], a copy of which is attached hereto, shall be deemed served upon defendant with a copy of the within final judgment of divorce.The JOD was sent to defendant via regular and certified mail. The certified letter was "returned to sender."
Officer Harry E. Hults of the Holland Township Police Department testified about the various attempts to effectuate service of the restraining order on defendant. He stated that the Holland Police received a copy of the TRO after it was issued. The order was then sent to the police and sheriff's department in Pennsylvania, where defendant lived. None of the attempts to serve defendant at his residence were successful; there was no attempt to serve him at his office, and no attempt to e-mail him the TRO or to seek court permission for email service. See N.J.S.A. 2C:25-28(1) (authorizing court-ordered substituted service of a TRO). Officer Hults testified that he never spoke to defendant about the contents of the order.
Defendant and his children were in frequent contact by email and, thus, with court permission, service could have been accomplished in that fashion.
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In that regard, there was no testimony before the grand jury that defendant knew of any specific provision of the TRO that he was accused of violating. There was testimony that defendant was told a TRO existed. There was also testimony that defendant was told he could not visit his children or the New Jersey home. It is undisputed, however, that defendant never entered New Jersey to attempt to contact the wife or children after the TRO was entered.
On September 25, 2012, defendant was seen driving away from his home in Pennsylvania. The police stopped his car, served him with the TRO and criminal complaints, and arrested him. It is on those facts that the judge granted defendant's motion to dismiss the contempt and third-degree stalking charges. In the judge's oral decision, she stated:
I have read through everything very carefully, I've considered the law, the balancing of the law. I don't think that [defendant] had appropriate legal service, whether personal, or in any other way, because as I said, even in the FM, it was added to the final judgment, but he never knew that was going to be discussed in the divorce proceedings, because he had no notice as to that, and we just can't do that.
And so for those reasons, I am going to dismiss this indictment. I don't think it's appropriate that he's charged with something for which he was never served with the Order.
The judge's written opinion paralleled her oral decision. She found that defendant could not have violated the TRO, or committed third-degree stalking because he was never properly served with the order. She held that "[t]he State has failed to provide evidence that defendant was properly served notice, rather, they have provided a myriad of reasons why defendant wasn't served."
The decision to grant or deny a motion to dismiss an indictment is entrusted to the sound discretion of the trial court. State v. Morrison, 188 N.J. 2, 11 (2006); State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984). However an "indictment should be disturbed only on the clearest and plainest ground, . . . and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (citations and quotation marks omitted). Our review of a trial judge's legal interpretations is de novo. State v. Grate, 220 N.J. 317, 329-30 (2015); State v. Drury, 190 N.J. 197, 209 (2007).
We affirm the dismissal of the indictment, but not solely because defendant was not served properly. Relevant here, both charges require defendant to have purposely or knowingly committed the underlying offense while there was an existing court order prohibiting such behavior.
The Prevention of Domestic Violence Act provides:
An order granting emergency relief, together with the complaint or complaints, shall immediately be forwarded to the appropriate law enforcement agency for service on the defendant, and to the police of the municipality in which the plaintiff resides or is sheltered, and shall immediately be served upon the defendant by the police, except that an order issued during regular court hours may be forwarded to the sheriff for immediate service upon the defendant in accordance with the Rules of Court. If personal service cannot be effected upon the defendant, the court may order other appropriate substituted service. At no time shall the plaintiff be asked or required to serve any order on the defendant.Service is key to the enforcement of a restraining order. Here, there was neither legal service nor any proof defendant knew of the provisions of the TRO he is accused of violating. These facts are important and distinguishable from State v. Mernar, the case the State argues warrants reversal here. 345 N.J. Super. 591 (App. Div. 2001).
[N.J.S.A. 2C:25-28(1) (emphasis added).]
In Mernar, we held that legal service is not always required before contempt can be found. Instead, the "law has long been settled that a contempt action may proceed against a defendant who has actual knowledge of the restraints imposed, even though the injunction was not regularly served." Id. at 594 (citations omitted) (emphasis added). In Mernar, the defendant's father obtained a restraining order and gave a copy of it to his son the next morning. Ibid. The son had actual receipt of the order before he violated it later that day. In that case we expressed concern about the lack of proper service, but found actual knowledge of the restraints could be enough.
We reinstated the criminal complaint for contempt of the order that had been dismissed for lack of proper service, and remanded for a hearing on whether defendant had actual knowledge of the restraints against him. Id. at 594-95. The hearing was to include consideration not only of whether defendant was in fact given the order by his father, but whether defendant, who violated the order the same day, was so intoxicated when he was given the order that he did not have actual knowledge of what it said. Ibid.
In this case, the TRO was entered against defendant on August 22, 2011. It is undisputed that he was never served with the order until September 25, 2012. A proper interpretation of Mernar suggests that it was inappropriate to charge defendant with violations of restraints against him where there was no evidence presented to the grand jury that he had actual knowledge of the specific restraints against him. It is not enough, as the State suggests, that defendant had knowledge that a restraining order existed, without knowing the details of what restraints had been imposed on him.
In that regard, T.S. testified defendant knew of the TRO, but that she did not discuss with him its specific contents. She stated to the grand jury that defendant told her he had not been served with a restraining order. She did testify he was told multiple times by her son that there was a restraining order, and as a result he could not come to his son's events or see him. Yet, she did not testify that defendant did any of those things.
There was also no testimony, from either T.S. or Officer Hults, that defendant knew of the particular restraints he was charged with violating. Again, the only testimony before the grand jury was that defendant was informed of a restraining order and that it restrained him from visiting his children. There was no testimony about the specific provisions he was accused of violating.
The prosecutor did not present any factual basis from which it could be found that defendant had actual knowledge of the specific provisions he was accused of violating. For example there is no testimony that he knew that he was restrained from possession of firearms. It was acknowledged that he had owned firearms for hunting before the order was entered. Firearms were removed from his home after his arrest, but since there is no evidence he knew about this restraint, he cannot be convicted of a crime for violating this portion of the order.
The State argues that if defendant had actual knowledge of a restraint he violated, it is not necessary to prove he was served the order. This is true. However, the failure to serve the order certainly can deprive a defendant of actual knowledge of the restraints imposed. Unlike Mernar, there is no evidence that defendant had actual knowledge of what specific restraints were in place. The only evidence was that he knew there was a TRO, but was never served with it, and never advised of the details of it including that he could no longer call or e-mail his wife or own weapons.
Although our reasoning differs to some degree from the trial judge's since we do not find the lack of personal service alone is sufficient to dismiss the indictment, we agree with the judge that, because there was no evidence that defendant knew what restraints the TRO imposed, the indictment was "palpably defective." Hogan, supra, 144 N.J. at 228-29. We affirm the dismissal of Indictment No. 12-11-0530. The State may, however, proceed on the fourth-degree stalking charge, which was the subject of a separate indictment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION