Opinion
DOCKET NO. A-1612-14T4
10-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. W.B., Defendant-Appellant.
Michael J. Ward argued the cause for appellant. Alexis R. Agre, Assistant Prosecutor argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FO-03-329-14. Michael J. Ward argued the cause for appellant. Alexis R. Agre, Assistant Prosecutor argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief). PER CURIAM
In this domestic violence case, compounded by mental health issues, defendant W.B. appeals from an October 22, 2014 contempt order the trial court issued after finding he violated a temporary restraining order (TRO). Defendant violated the TRO by telephoning his daughter from a mental health facility during an apparent psychotic episode. Defendant argues he is entitled to a new hearing because the trial court erroneously denied his request for an adjournment to obtain his mental health records; and, in any event, the State failed to prove, and the court failed to find, defendant purposely or knowingly violated the TRO. Under the circumstances of this case, in which preparation of proofs concerning defendant's mental state was critical to the defense, we are constrained to agree defendant's request for an adjournment should have been granted. Accordingly, we vacate the contempt order and remand for a new hearing.
This action's procedural history is not complex. On March 22, 2014, defendant signed and acknowledged receiving a complaint and TRO prepared the previous day pursuant to the prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. The complaint alleged defendant came to his former wife's place of employment, insisted on seeing their adult daughter, and remained there until police escorted him off the premises. The complaint also alleged defendant was schizophrenic and bipolar and appeared not to be taking his medications. The TRO restrained defendant from having any "oral, written, personal, electronic or other form of contact with" his former wife or their daughter. The complaint notified defendant to appear in court for a final hearing on March 26, 2014.
Defendant has included records establishing he had been involuntarily committed for aggressive and delusional behavior on March 30, 2014, and remained committed for a significant time. Defendant remained institutionalized on March 31, 2014, the day he made the call to his daughter's cellular phone, thereby violating the TRO. We decline to consider those records, however, as they were not presented to the trial court and defendant did not move before us to supplement the record. --------
On March 26, 2014, the court issued a final restraining order (FRO) against defendant, who failed to appear for the hearing. According to the FRO's return of service section, the FRO could not be served on defendant. Defendant was not served with the FRO until he appeared in court in September.
Five days after the court issued the FRO, on March 31, 2014, police filed a complaint-warrant against defendant, alleging he had violated the TRO, a fourth-degree crime, N.J.S.A. 2C:29-9(b), "by calling and leaving a voicemail on the cellphone of his daughter." The hearing on the complaint was conducted on October 22, 2014. Defendant, his former wife, and their daughter testified. After considering their testimony, the trial court found defendant guilty, sentenced him to one year probation, and imposed appropriate assessments.
When the parties appeared for the hearing, defense counsel requested an adjournment, explaining he was attempting to obtain the records from the crisis center where defendant remained involuntarily committed on the day he telephoned his daughter. Counsel had first requested the records two weeks earlier, but received no response. He had obtained records from defendant's subsequent hospitalizations, including a hospitalization at Ancora, but he had not been able to obtain defendant's records from the day he telephoned his daughter. The court denied the request but stated it "may reserve, depending on how the testimony evolves."
The State introduced the TRO and a CD of the telephone recording into evidence. Defendant's former wife testified and explained why she had her daughter's name included on the TRO. Defendant's daughter authenticated the recording as the message her father, defendant, left on her cellular phone voicemail. The CD, which was played for the court, contained the following message:
I love you . . . . I miss you . . . . I love you . . . . There it is, I said it twice. Two is my favorite number. One is the loneliest number that you ever knew, K-N-E-W, knew; G-N-U, GNU; abolish slavery; Kingdom come; forever young, kneel, stand, about face, expression, facial. Where do you get your nails done . . . ? Where does Mommy get her nails done?
When can I see you again? Where do you work? What's your favorite number? Who is your favorite rock group? I don't know anything, . . . but after April 1st, which is today, at least God told me it was today, I am going to be able to find all these things out.
And why don't stop believing made me believe that heaven was in there all this time. Don't stop believing, hold onto the feeling, street lights, people, ah, ah, ah. Heaven must have found a what? I thought it was something, I didn't know what it was. I didn't know what the word was, I never looked it up in the dictionary. I never read the proper word. I always thought it was Heaven must have found a what? I don't know. I need you to tell me. Something about livin' must have - - you tell me something about livin', I have no idea. I have no interest in it. I'm going to change the words to that song. I'm going to let the people do it for me. I need to take another call, Honey.
I love you. Thanks for communicating with me, I love you. I expect you to put a lot of information on my phone when I get back. I left my phone on my computer or my dining room table. It's just waiting for information from you. Thank you, Sweetheart, I love you . . ., With all my Heart.
According to defendant's daughter, this was not the first time her father left a voicemail on her cellular phone. None were inherently threatening; they were just a nuisance. In fact, her father had never threatened to harm her or cause her any physical harm. Defendant's daughter also testified she believed her father had a mental illness. She made the complaint about her father's voicemail message because she was afraid she would lose her job if defendant showed up at her place of employment.
Defendant testified. He had no recollection of making the telephone call to his daughter and leaving a message on her voicemail on March 31, 2014. He said he never would have deliberately disregarded a restraining order issued by the court. During cross-examination, defendant identified his signature on the TRO, but testified he did not read it and said he thought the TRO only concerned his former wife, not his daughter.
The court did not revisit its earlier consideration of reserving its decision. Without waiting for argument from counsel, the court stated: "I have evidence that [defendant] was served . . . and . . . indicated receipt of [the] TRO. I don't know what the defense might be except, perhaps, he . . . didn't read it. So, that's not a defense." Following an exchange with defendant, the court continued: "Well, the Sergeant provided you with a copy and you had the obligation to review the entire [TRO]. So, I find the State has prevailed in this matter. Okay? And with regard to contempt, . . . [i]t has been proven." The judge imposed a sentence and defendant later appealed.
As noted earlier, we agree the court should have granted defense counsel's request for an adjournment to obtain defendant's medical records. Generally, the decision to grant or deny a request for an adjournment rests within the broad discretion of the trial court, and we review such actions under a deferential standard. State v. Miller, 216 N.J. 40, 65 (2013). Nonetheless, "an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel." State v. Martinez, 440 N.J. Super. 537, 544 (App. Div. 2015) (internal citations omitted).
Here, by denying defendant's adjournment request, the court deprived him of developing his only defense to the contempt charge. As the State points out in its brief, N.J.S.A. 2C:29-9 provides that a person is guilty of contempt if the person "purposely or knowingly" violates any provision of an order entered under the Act. In the case before us, there was no dispute either that the court had issued a TRO under the Act restraining defendant from having contact with his daughter or that defendant telephoned his daughter and left a voicemail message on her cellular phone. Absent the psychiatric records, the case warranted the scant consideration given it by the trial court.
Defense counsel pointed out during his adjournment request that defendant had been involuntarily committed to a crisis center. Although counsel had been able to obtain other records of subsequent hospitalizations, including a hospitalization at Ancora, he as yet had been unable to obtain the records from the institution where defendant was involuntarily committed on the day he telephoned his daughter. Thus, defendant had a bona fide need for a continuance — to marshal the evidence needed for his defense.
The State argues that our decision in State v. L.C., 283 N.J. Super. 441 (App. Div. 1995), demonstrates defendant could not have successfully asserted a diminished capacity defense. Not so. L.C. is clearly distinguishable from the case before us.
In L.C., the defendant asserted a diminished capacity defense to a contempt charge that arose when, in disregard of a TRO, she went to the home of the person she was restrained from contacting. Id. at 444-45. Unlike the case here, in L.C., defendant was able to support her defense with psychiatric testimony. Id. at 446. We affirmed the trial court's decision, which rejected the diminished capacity defense because the defendant's psychiatrist acknowledged the defendant had no specific psychiatric diagnosis, ibid., and "because the psychiatrist's definition of diminished capacity — '[a]n inability to reason carefully [and] make [appropriate] judgments' — 'had little or no relevance' with respect to the restraints embodied in the TRO." Id. at 446-47. In contrast, defendant here was prohibited from pursuing the need for expert testimony when the court denied his request for an adjournment. Moreover, in this case defendant has a specific, severe, psychiatric diagnosis and the record suggests he might have been delusional when he telephoned his daughter.
For the foregoing reasons, we conclude the trial judge misapplied her discretion by denying defendant's adjournment request, thereby precluding defendant from developing proofs of his defense to the offense. We find no merit in defendant's argument that the State failed to sustain its burden of proof, and the trial court erred by finding to the contrary. R. 2:11-3(e)(2).
The contempt order is vacated and the case is remanded for a new hearing. The parties shall be afforded adequate time to retain experts. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION