Opinion
DOCKET NO. A-3251-12T4
11-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALEX ROBLES, Defendant-Appellant.
Villani & DeLuca, P.C., attorneys for appellant (Timothy L. Horn, on the briefs). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. FO-15-0210-13. Villani & DeLuca, P.C., attorneys for appellant (Timothy L. Horn, on the briefs). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief). PER CURIAM
Following a bench trial, defendant Alex Robles was convicted of contempt for violating a temporary restraining order (TRO), N.J.S.A. 2C:29-9(b), a disorderly persons offense, and defiant trespass, N.J.S.A. 2C:18-3(b), a petty disorderly persons offense. We affirm.
Defendant was also charged with harassment, N.J.S.A. 2C:33-4(a). The charge was dismissed without opposition.
We derive the following facts from the record. Defendant's uncle, Larry, resided at 72 Oak Road in South Toms River. The property was located next door to 74 Oak Road, where Larry's mother lived with defendant. Larry was in the process of moving into 74 Oak Road and, on August 25, 2012, was attempting to change the locks when an argument with defendant ensued. Defendant struck Larry in the face and then pushed him off the steps and the outside deck.
We use a fictitious name to identify the uncle in order to protect his privacy. See R. 1:38-3(d)(10).
This street name is fictitious.
Larry called the police to report the assault. Defendant admitted to a police officer who arrived at the scene that he tried to push Larry out of the house because Larry was not supposed to be there. The officer advised Larry to obtain a TRO after he officially moved into 74 Oak Road.
On August 27, 2012, Larry, who by then had officially moved into 74 Oak Road, obtained a TRO against defendant. The TRO had a typographical error regarding the locations from which defendant was barred -- it listed 2 Oak Road instead of 72 or 74 Oak Road. However, the TRO also stated that the incident occurred at Larry's "mother's home" where defendant "also resides;" listed Larry's "2nd home" as a location from which defendant was barred; prohibited defendant "from returning to the scene of violence;" and granted Larry exclusive possession of 74 Oak Road. The TRO also warned defendant that "[a] violation of the provisions listed in this Order . . . may result in . . . arrest and/or criminal prosecution," and notified him of the final hearing on September 4, 2012.
Following a bench trial, on September 4, 2012, the court entered a final restraining order. Defendant does not appeal from that order.
On August 27, 2012, two police officers served the TRO on defendant at 74 Oak Road. The officers explained to defendant that he was to be removed from the premises and could not return there. The officers also explained that defendant had to appear in Family Court for the final hearing; the TRO remained in effect until he appeared in court; and he was barred from the premises. The officers stayed with defendant for approximately one hour until he vacated the premises. During that time, defendant repeatedly questioned how Larry was able to obtain a TRO, and the officers repeatedly explained to defendant that he had to appear for the final hearing and the TRO was in effect until that time. For the next several days, defendant continued to ask a police detective why he was not allowed to return to 74 Oak Road, and the detective repeatedly explained to him that there was a TRO in place and he was not to return to 74 Oak Road.
On August 31, 2012, defendant called police headquarters and requested assistance to enter 74 Oak Road to retrieve his personal property. When the same police detective mentioned above arrived, he saw that defendant was already on the premises, walking down from the side access-point of the house with the TRO in his hand. The detective placed defendant under arrest for violating the TRO.
In an oral opinion, the trial judge found no support for defendant's claim that he did not knowingly violate the TRO because the typographical error in the TRO led him to believe he was allowed to return to 74 Oak Road. The judge found beyond a reasonable doubt that there was a valid TRO on August 31, 2012, which barred defendant from 74 Oak Road; defendant had actual notice and knowledge that he was barred from that property; and defendant knowingly violated the TRO and defiantly trespassed by entering the property. After merging the two charges, the judge sentenced defendant to time served and an eighteen-month non-custodial probationary term.
On appeal, defendant raises the following contentions:
POINT 1We decline to address defendant's contention in Point 3, that he was deprived of the effective assistance of counsel. We will not generally address ineffective-assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record. State v. Castagna, 187 N.J. 293, 313 (2006). Our review of the record does not persuade us that the record was sufficiently developed that we may consider defendant's claim of ineffective assistance of counsel on appeal. Thus, we adhere to the practice of deferring the issues of alleged ineffective-assistance of counsel to post- conviction relief proceedings where the necessary factual record can be established. Id. at 316.
THE STATE FAILED TO CARRY ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT.
POINT 2
THE VIOLATION OF THE RESTRAINING ORDER, IF ANY, WAS SO DE MINIMIS IN NATURE AS NOT TO RISE TO THE LEVEL OF A CRIMINAL VIOALTION (NOT RAISED BELOW).
POINT 3
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT OF THE [UNITED STATES] CONSTITUTION AND ARTICLE [1], PARAGRAPH 10 OF THE [NEW JERSEY] STATE CONSTITUTION (NOT RAISED BELOW).
POINT 4
THE TRIAL COURT ERRED IN NOT DISQUALIFYING APPOINTED COUNSEL WHEN THERE IS A PRESUMPTION OF PREJUDICE IF COUNSEL HAS A CONFLICT OF INTEREST.
We have considered defendant's remaining contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the judge in his oral opinion. However, we make the following brief comments.
Despite the typographical error in the TRO, the police repeatedly explained to defendant that he was barred from 74 Oak Road and could not return there. The overwhelming evidence in this case leaves absolutely no doubt that defendant knew the TRO barred him from that premises. In addition, given defendant's assault of Larry, defendant's violation cannot be viewed as de minimis. Finally, defendant did not raise the conflict of interest issue until after the presentation of all evidence and there was no competent evidence of any conflict.
Defendant improperly includes a document in his appellate appendix, which he claims supports his conflict of interest argument. We will not consider documents included in the appendix that were not presented to the trial judge. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). --------
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION