State v. Leo T. Little, Jr. (A-80-19;

 State v. Leo T. Little, Jr.   (A-80-19; 084115)

Trial courts may conduct voir dire questioning about a prospective juror’s views on disputed issues to determine whether the juror will follow the court’s instructions and deliberate with an open mind. The trial court must ensure, however, that such questioning is not partisan and that it will not indoctrinate prospective jurors in favor of either side’s position. The court must present the issue to prospective jurors in balanced and impartial terms. In this case, the questioning addressed only the component of the legal standard that assisted the State; it did not equitably present the evidentiary issue to the prospective jurors. The responses of some of the prospective jurors indicate that the inquiry may have confused them. The form of the questioning strongly favored the State’s position and may have encouraged jurors to convict defendant. Accordingly, defendant was not afforded his right to an impartial jury and is entitled to a new trial.

State v. Michelle Lodzinski

 State v. Michelle Lodzinski (083398) (Middlesex County & Statewide) (A-50-19; 083398)

The judgment of the Appellate Division upholding defendant’s conviction is affirmed by an equally divided Court. Three members of the Court found the evidence sufficient and three members found the evidence insufficient to sustain the murder conviction. The six members of the Court who participated in this appeal unanimously modify the Appellate Division’s holding with respect to its characterization of the scope of the evidence that should be considered in reviewing a post-verdict motion for a judgment of acquittal as explained on pages 28-32 of Justice Patterson’s opinion. The Court also unanimously agrees with the Appellate Division that defendant was not entitled to a new trial because a juror substitution occurred, for the reasons set forth on pages 60-66 of Justice Patterson’s opinion.

STATE OF NEW JERSEY VS. LATONIA E. BELLAMY (11-03-0348, HUDSON COUNTY AND STATEWIDE) (A-0502-19)

 STATE OF NEW JERSEY VS. LATONIA E. BELLAMY (11-03-0348, HUDSON COUNTY AND STATEWIDE) (A-0502-19)

The court remands the matter for resentencing of Latonia Elizabeth Bellamy, a/k/a Na-Na, Latonia E. Bellamy, Latonia Bellamy, whom a jury convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), among other offenses. The court reiterates that a resentence, absent some specific limiting directive to the contrary, allows a judge to engage in the statutory analysis anew. State v. Case, 220 N.J. 49 (2014). The judge must sentence the defendant as he or she stands before the court at that time.

The court also addressed the applicability of N.J.S.A. 2C:44-1(b)(14), a mitigating factor enacted after defendant's prior sentence. It applies when a defendant is less than twenty-six years of age when the crimes occurred. It may be considered on remand because this is essentially a new sentence proceeding. Application of the statute is therefore not "retroactive," and even if so, the statute's ameliorative purpose allows it. This does not automatically entitle youthful defendants sentenced before October 19, 2020, with cases in the pipeline, to reconsideration of their sentences based solely on a claim that the new law should be applied.

Furthermore, defendant should be granted access, pursuant to N.J.S.A. 9:6-8.10a(b)(6), to her Division of Child Protection and Permanency records in preparation for her sentence. Defendants charged with crimes are entitled to the records, redacted by the court, to aid in their defense where relevant as a matter of due process. State v. Cusick, 219 N.J. Super. 452, 459 (App. Div. 1987). The records should be made equally available to individuals who came under the Division's care and may benefit from access to the information. The application may be made in the Law Division, not in the Family Part.

Police could search for credentials here STATE v. DWAYNE J. JOHNSON

Police could search for credentials here STATE  

v.

DWAYNE J. JOHNSON, a/k/a FABIAN JOHNSON, QUADREE RICHARDSON, KEVIN J. JOHNSON, JAHAD J. MCKNIGHT, and JAHID J. MCKNIGHT,

Defendant-Appellant. _________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-4799-18T2

Submitted December 14, 2020 - Decided December 31, 2020 Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16-09-2582. 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.

PER CURIAM
Defendant Dwayne J. Johnson appeals from a March 8, 2019 order

denying his petition for post-conviction relief without an evidentiary hearing. We affirm.

The facts are undisputed. In the late evening on July 16, 2016, defendant was driving through Newark. Sergeant Farella of the Rutgers Police Department, on routine patrol that night, heard the sound of a loud muffler. The sergeant found the source of the noise and ran a check of the vehicle's license plate. The check revealed the vehicle's registration was suspended, and the car's registered owner, a female, had a suspended license. The sergeant called for backup and stopped the car.

Sergeant Farella noted the driver of the car was male and asked the driver for his license. The driver responded he had no driver's license. When asked for any other form of identification, the driver said he lost his identification. The driver provided the sergeant with a false name and date of birth. Sergeant Farella then asked for the vehicle's registration and insurance information, and the driver searched the car for the documents.

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While the driver was searching for the documentation, Sergeant Farella had dispatch run a search of the driver's name and date of birth. The dispatch search returned no results for the driver under the given name and birth date.

Sergeant Farella again asked the driver for identification and driving credentials. The driver did not know where the car's owner kept the insurance and registration documents and repeated that he lacked identification. Farella asked the driver to step out of the vehicle in order to search the car for insurance and registration documentation.

The sergeant looked inside the car's center console and noticed a suspicious plastic bag. The bag, imprinted with a butterfly emblem, contained several vials of a white powdery substance.1 Farella suspected the substance was cocaine. The sergeant continued searching the car and found the insurance and registration information. No additional drugs were found.

The driver was arrested for possession of suspected drugs. Farella also identified the driver as defendant and learned there were several active warrants for his arrest.

1 There was a second plastic bag containing vials in the console immediately behind the first bag. The two plastic bags contained a total of sixty-seven vials of cocaine.

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On September 12, 2016, defendant was charged with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3); and third-degree possession of CDS with intent to distribute within one thousand feet of school property, N.J.S.A. 2C:35-7(a).

Pretrial, defendant filed a motion to suppress the drug evidence seized from the car, arguing the search was illegal. The State opposed the motion. However, before the suppression motion was decided, defense counsel withdrew the motion.

Subsequently, defendant agreed to plead guilty to possession of CDS with a recommendation of four-years' probation. In exchange, the State would agree to dismiss the remaining charges and recommend a sentence of 364 days in the county jail as a condition of probation.

During the plea hearing, defendant testified he freely and voluntarily agreed to enter a plea, understood the plea offer, discussed the plea offer with his counsel, and had no questions regarding the plea. Additionally, defendant stated he was not threatened or coerced into pleading guilty. The judge accepted defendant's plea.

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At sentencing, the judge imposed the sentence recommended by the State in the plea agreement. Defendant was sentenced to four-years' probation and given 244 days of jail credit.

Defendant did not file a direct appeal challenging his conviction. On January 22, 2018, defendant filed a petition for PCR. In his petition, defendant argued he received ineffective assistance of counsel because his trial counsel did not pursue a motion to suppress evidence and trial counsel forced defendant to accept the plea.

On March 8, 2019, the PCR judge heard counsels' argument on the motion for PCR. The judge found the investigatory stop and subsequent search of the car were lawful. The judge concluded the police officer had probable cause to stop the vehicle based on the suspended registration. After the stop, Sergeant Farella allowed defendant to search for the vehicle's insurance and registration information. Since defendant was unable to find these documents, the judge explained the sergeant had the legal right to look in areas within the car typically used to store such documents, including the center console. Based on the facts, the judge concluded a motion to suppress was "not meritorious," and defense counsel was not ineffective in failing to pursue such a motion. In addition, the judge determined counsel acted reasonably in withdrawing the suppression motion in exchange for a very favorable plea.

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The PCR judge also rejected defendant's argument he was coerced into accepting the plea. She explained the record was "void of any facts that satisfy[ied this] claim" and the plea hearing transcript showed defendant "freely and voluntarily entered into the plea with the State." Moreover, the judge found defendant "acknowledged . . . under oath that he was satisfied with the advice of counsel, . . . he was provided with an explanation, [and] that he had the opportunity to ask the attorney any questions." She also determined an evidentiary hearing was unnecessary because a hearing would "not aid the [c]ourt."

On appeal, defendant argues the following:

POINT ONE

CONTRARY TO THE PCR JUDGE'S CONCLUSION, THE SUPPRESSION MOTION HAD MERIT WHERE ARGUABLY THE SEARCH WAS NOT LIMITED IN PURPOSE OR SCOPE.

POINT TWO

THE PCR JUDGE'S FACTUAL FINDINGS BASED SOLELY ON THE PLEA COLLOQUY WERE ERRONEOUS WHERE AN EVALUATION OF THE OUT-OF-COURT DISCUSSIONS BETWEEN THE TRIAL ATTORNEY AND DEFENDANT IS MATERIAL TO A DETERMINATION OF WHETHER DEFENDANT'S GUILTY PLEA WAS "FORCED."

POINT THREE

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DEFENDANT WAS PREJUDICED WHERE REJECTING THE PLEA OFFER WAS A RATIONAL DECISION IN THE CONTEXT OF THE MERITS OF THE MOTION TO SUPPRESS.

POINT FOUR

THE PCR JUDGE ABUSED HER DISCRETION IN CONCLUDING THAT AN EVIDENTIARY HEARING WAS UNNECCESARY.

Defendant repeats the same arguments presented to the PCR judge. In addition, defendant asserts the PCR judge erred in denying his petition without an evidentiary hearing.

To establish an ineffective assistance of counsel claim, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must demonstrate "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687). Second, a defendant must prove he or she suffered prejudice due to counsel's deficient performance. Strickland, 466 U.S. at 687, 691-92. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, 105 N.J. at 58.

   

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The Strickland test applies to challenges to guilty pleas based on alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). A defendant must also show "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59.

We first consider defendant's argument trial counsel was ineffective as a result of failing to pursue the motion to suppress evidence. The filing of meritless motions and "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990) (citing Strickland, 466 U.S. at 688).

The PCR judge concluded such a motion was unlikely to succeed based on the "driving credentials" exception allowing a warrantless search of a vehicle. The "driving credentials" exception authorizes a police officer to conduct a limited search of the areas in a vehicle where registration and insurance information is normally kept in order to verify a vehicle's credentials for public safety purposes. State v. Terry, 232 N.J. 218, 222 (2018). In Terry, the Court "reaffirm[ed its] decision in Keaton[2]–and in previous cases–that, when a driver is unwilling or unable to present proof of ownership, a police officer may

       

2 State v. Keaton, 222 N.J. 438, 450 (2015). 8

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conduct a limited search for the registration papers in the areas where they are likely kept in the vehicle." Terry, 232 N.J. at 223.3 The search must be "confined to the glove compartment or other area where a registration might normally be kept . . . ." State v. Jones, 195 N.J. Super 119, 122-23 (App. Div. 1984). In addition to a search of the glove compartment, it is proper to search a car's center console because that "is a relatively non-private area in which documentation 'might normally be kept.'" State v. Hamlett, 449 N.J. Super. 159, 174 (App. Div. 2017) (quoting State v. Patino, 83 N.J. 1, 12 (1980)).

Here, Sergeant Farella stopped the car after hearing a loud muffler and ran a check of the license plate. The results indicated the vehicle had an expired registration and the owner of the car had a suspended license. The sergeant requested defendant's driving credentials as part of the motor vehicle stop. Defendant searched the car for the documentation but was unable to locate the information. After defendant was unable to produce the requested credentials, Sergeant Farella, while searching for the documents, found a suspicious bag in the center console. Based on these facts, the judge properly held Farella had the

3

    

Here, we note the limitation on a police officer's ability to conduct a warrantless search under the "driving credentials" exception was inapplicable because "defendant was not the registered owner of the car." See Terry, 232 N.J. at 223 (holding "when a police officer can readily determine that the driver . . . is the lawful possessor of the vehicle . . . a warrantless search for proof of ownership will not be justified.").

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right to a limited search of the car for driving credentials and a motion to suppress would not have been successful.

Because a motion to suppress evidence was unlikely to succeed, defendant cannot establish a prima facie case of ineffective assistance of counsel based on the failure to pursue such a motion. To the contrary, by withdrawing the motion, trial counsel negotiated a very favorable plea agreement for defendant, resulting in probation rather than a potential prison sentence. Thus, defendant is unable to demonstrate any prejudice as a result of defense counsel's failure to proceed with the suppression motion. We are satisfied the record fully supports the conclusion defendant failed to meet both prongs of the Strickland/Fritz test.

We next consider defendant's claim he was "forced" to plead guilty. Defendant did not submit any certifications or affidavits explaining how he was coerced by counsel into accepting the plea or that he would have elected to proceed to trial. In the absence of supporting certifications or affidavits, it was proper for the judge to review the plea colloquy to resolve the issue. Based on the transcript of the plea hearing, the judge concluded defendant's plea was made freely and voluntarily and he was not threatened or forced into pleading guilty. Moreover, the judge noted defendant signed the plea forms, evidencing his full agreement to the plea. In addition, the judge relied on defendant's testimony that he was voluntarily pleading to the charge because he was guilty. Having

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reviewed the record, we are satisfied the judge correctly determined defendant was not forced or coerced into accepting the plea and, therefore, cannot establish a prima facie case to support an ineffective assistance of counsel claim.

We also reject defendant's argument the PCR judge erred in denying the petition without an evidentiary hearing. A hearing on a PCR petition is only required when a defendant establishes "a prima facie case in support of [PCR]," the judge determines that there are disputed issues of material fact "that cannot be resolved by reference to the existing record," and the judge "finds that an evidentiaryhearingisnecessarytoresolvetheclaimsforrelief." R.3:22-10(b); see also State v. Porter, 216 N.J. 343, 354 (2013). We are satisfied the judge did not abuse her discretion in denying an evidentiary hearing under these circumstances. State v. Preciose, 129 N.J. 451, 462 (1992) (citing State v. Odom, 113 N.J. Super 186, 273 (App. Div. 1971)) ("Although Rule 3:22-1 does not require evidentiary hearings to be held on post-conviction relief petitions. Rule 3:22-10 recognizes judicial discretion to conduct such hearings.").

To the extent we have not addressed any of defendant's arguments, it is because we conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

     

Affirmed.

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STATE OF NEW JERSEY VS. JULIAN SANDERS (17-07-1979, ESSEX COUNTY AND STATEWIDE) (A-1965-18)

 STATE OF NEW JERSEY VS. JULIAN SANDERS (17-07-1979, ESSEX COUNTY AND STATEWIDE) (A-1965-18)

The novel issue presented in this appeal is whether a claim of self-defense applies to a charge of endangering an injured victim, N.J.S.A. 2C:12-1.2(a), when the injured victim has been injured by the defendant in the course of defending himself against said victim.

Following a jury trial, defendant was acquitted of murder and weapons offenses but convicted of endangering an injured victim, whom he admitted stabbing in self-defense after an altercation during which the victim forbade defendant from entering a store, threatened to beat defendant up, and threw a punch when defendant refused to heed the warnings. Defendant dodged the punch and stabbed the victim once in the chest with a knife defendant had produced from his pocket and brandished during the altercation. After the stabbing, the victim staggered around before collapsing on the ground and defendant left the scene without calling for medical assistance. The victim was later transported to the hospital where he died from the stab wound the following morning. Video surveillance footage of the entire five-minute encounter was played at the trial.

The trial judge instructed the jury on self-defense as applied to the homicide and weapons-related charges, but not the endangering charge. At trial, defense counsel neither requested the charge nor objected to its omission. However, on appeal, defendant argued the charge should have been given because self-defense applied to endangering.

After analyzing the general principles pertaining to justification defenses and considering the elements and legislative history of the endangering an injured victim statute, the court concluded that its omission in the unique facts presented in this case does not rise to the level of plain error. The court reasoned that when defendant left the scene, it was clear that his conduct had rendered the victim physically helpless such that he no longer posed a threat to defendant or anyone else. Because the victim was physically helpless, defendant could not have had a reasonable belief in the continued need to use force or the requirement to retreat without summoning medical assistance to justify self-defense. Rather than imposing an obligation on defendant to secure the safety of his attacker while endangering himself, the application of the endangering statute in this case sought to preserve a life after the threat or need for force had been neutralized.

Judge Sabatino joins in the result and issues a concurring opinion. The concurrence underscores the court's recognition that principles of self-defense, necessity or other justification may appropriately apply in some factual situations to relieve a crime victim, who has repelled and injured an attacker, of criminal liability under N.J.S.A. 2C:12-1.2(a).

D.M.R. VS. M.K.G. (FV-01-1206-20, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4085-19)

 D.M.R. VS. M.K.G. (FV-01-1206-20, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4085-19)

Defendant appealed from a final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, based on a predicate act of harassment, N.J.S.A. 2C:33-4(a). This court reversed because the trial court did not conduct the required legal analysis necessary to enter the FRO under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) and the record did not demonstrate plaintiff needed future protection. Further, our review of the record also disclosed defendant was deprived of due process due to numerous trial irregularities in the remote proceeding, including that defendant had insufficient notice and opportunity to prepare a defense in her case, plaintiff's witness was not sequestered, plaintiff testified in the witness's presence with witness coaching plaintiff, and the trial court engaged in inappropriate questioning of defendant.

State v. Edgar Torres (083676) (Monmouth County & Statewide) (A-52-19;

 State v. Edgar Torres (083676) (Monmouth County & Statewide) (A-52-19; 083676)

An explicit statement, explaining the overall fairness of a sentence imposed for multiple offenses in a single proceeding or in multiple sentencing proceedings, is essential to a proper Yarbough sentencing assessment and was lacking here. The lack of any overall assessment of the fairness of the decision to impose consecutive sentences compels reversal of defendant’s sentence and remand for a new resentencing, and the Court provides important guidance regarding that essential assessment.

State v. Kanem Williamson (083979) (Essex County & Statewide) (A-65-19;

 State v. Kanem Williamson (083979) (Essex County & Statewide) (A-65-19; 083979)

The trial court correctly admitted A.B.’s statement identifying defendant as her shooter as a dying declaration under N.J.R.E. 804(b)(2), and the admission of A.B.’s statement as a dying declaration does not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution or Article I, Paragraph 10 of the New Jersey Constitution.

Giving the finger to wife's camera could violate the tro here STATE OF NEW JERSEY, Plaintiff-Appellant, v. E.J.H.

 Giving the finger to wife's camera could violate the tro here

STATE OF NEW JERSEY, Plaintiff-Appellant,

v. E.J.H.,1

Defendant-Respondent.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-4228-19T1

Submitted January 6, 2021 – Decided January 19, 2021

Before Judges Whipple, Rose and Firko.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FO-20-0144-20.

Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for appellant (Michele C. Buckley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Bramnick, Rodriguez, Grabas, Arnold & Mangan, LLC, attorneys for respondent (Michael Noriega, of counsel and on the brief).

The opinion of the court was delivered by

1 We use initials to protect the confidentiality of the victim, R. 1:38-3(d)(10), and a pseudonym for ease of reference.

APPROVED FOR PUBLICATION January 19, 2021 APPELLATE DIVISION

ROSE, J.A.D.
The State appeals from the Family Part's July 7, 2020 order, sua sponte

dismissing its February 23, 2020 complaint that charged defendant E.J.H. with the disorderly persons offense of contempt, N.J.S.A. 2C:29-9(b)(2), for violating a temporary restraining order (TRO) issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. During the plea hearing, the trial judge rejected defendant's factual basis and refused to accept defendant's guilty plea, finding as a matter of law that defendant did not knowingly violate the TRO. Instead, the judge determined that defendant's comments and lewd gesture directed to his estranged wife, I.Y.H. (Irene) – by way of a "Nest" home security camera consensually activated in defendant's home – did not constitute proscribed "contact" under the TRO. We disagree. Accordingly, we vacate the order and remand for reinstatement of the complaint.

The facts are straightforward; for purposes of this appeal, they are largely undisputed. Issued on January 31, 2020, the TRO prohibited defendant from "having any oral, written, personal, electronic, or other form of contact or communication with [Irene]." The TRO also limited defendant's parenting time with the couple's daughter to supervised visitation by two adult family members, who were preapproved by Irene, and required defendant to "have the Nest

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cameras on at all times." The TRO was issued based upon allegations of an incident that occurred on November 21, 2019 and the couple's prior history of domestic violence.

Less than one month after the entry of the TRO, on February 23, 2020, Irene filed the complaint at issue, claiming defendant "spoke directly to her via the court[-]mandated N[est] camera during his supervised visitation of their minor daughter." As alleged in the complaint, defendant "stopped speaking to his parents" then "looked directly at the camera and stated, 'Oh I'm sorry I wasn't nice to you. Good reason to keep my daughter from me for three months, because I wasn't nice to you.'" Irene further reported defendant "then made a lewd gesture at the camera."

On July 7, 2020, defendant agreed to plead guilty as charged; in exchange the State recommended a probationary term, to be served concurrently with the probationary term defendant was serving. During his plea allocution, defendant acknowledged the TRO required the Nest camera's "active" operation during his parenting time. Defendant said the issuing judge, who was not the plea judge, ordered the activation of Nest cameras in defendant's home as an "amendment to [the couple's] existing consent order."2

2 Neither the consent order nor the plea agreement was provided on appeal.

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Defendant admitted he "turned towards the camera," spoke, and "made a gesture" that was "referred to in [the] complaint." When asked whether he "knew by making that gesture or verbal communication into the camera" he violated the TRO, defendant responded:

In hindsight, yes. . . . I don't want to, you know, complicate things. I don't know when [Irene]'s watching and when she's not. And my understanding is I should have known. And if I should have known, and [the Nest camera is] on . . . I'm imputed with that knowledge, then . . . yes, I should have known, . . . and in hindsight I shouldn't have done it.

Upon further questioning, defendant clarified he was "aware" those communications would have violated the TRO if Irene was present at the time they were made.

Concerned defendant's communications were not made "in person" but rather via "a video camera that was ordered to be placed into a home," the trial judge recessed briefly, reviewed the TRO, and conferred with the issuing judge. Following colloquy with counsel, the judge dismissed the complaint, concluding the order did not place defendant "on notice that while he's in his house, in his living room with his family, he's not allowed to 'flip the bird' or curse or yell."

In reaching her decision, the judge noted defendant's consent to permit the Nest cameras in his home did not "take away his freedom of speech" or "his

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right to get angry and yell in his home." The judge found defendant's conduct did not constitute any contact prohibited by the terms of the TRO because "he didn't call [Irene]. He didn't text her. He didn't send her a letter. He didn't go to her house." Rather, Irene was "in his living room. She [was] in his house. This is what she agreed to, to be in his house." This appeal followed.

We review de novo challenges to the factual basis for a guilty plea. State v. Tate, 220 N.J. 393, 403-04 (2015). That is so because "[a]n appellate court is in the same position as the trial court in assessing whether the factual admissions during a plea colloquy satisfy the essential elements of an offense." Id. at 404. Accordingly, we need not defer to the trial court's determination as to whether a defendant presented an adequate factual basis for his plea. Ibid. Our review of the law is plenary. State v. Urbina, 221 N.J. 509, 528 (2015) (citing Tate, 220 N.J. at 404).

Because a violation of a restraining order is punishable as a criminal act, the defendant is entitled to the rights of all criminal defendants. N.J.S.A. 2C:25- 30. Trial courts may not accept a guilty plea unless there is a factual basis supporting it. R. 3:9-2; see also Tate, 220 N.J. at 404. The defendant's factual basis must satisfy each element of the offense charged. See State v. Perez, 220 N.J. 423, 432 (2015); State v. Campfield, 213 N.J. 218, 236 (2013); see also

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N.J.S.A. 2C:1-13(a) (requiring the State prove each element of the offense charged beyond a reasonable doubt otherwise "the innocence of the defendant is assumed").

A person is guilty of contempt "if that person purposely or knowingly violates any provision in an order entered under the provisions of the [Act]." N.J.S.A. 2C:29-9(b)(1). Conduct constituting a violation of a domestic violence restraining order, which would otherwise not constitute a crime, is treated as a criminal disorderly persons offense and is prosecuted in the Family Part without indictment. Ibid.; N.J.S.A. 2C:25-30.

Pertinent to this appeal, "the 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). "[T]he Act may not be construed in a manner that precludes otherwise reasonable conduct unless the orders issued pursuant to the Act specifically proscribe particular conduct by a restrained spouse." State v. Krupinski, 321 N.J. Super. 34, 45 (App. Div. 1999). "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." N.J.S.A. 2C:2-2(b)(2).

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Our decision in State v. D.G.M., alluded to without citation in the trial judge's decision, does not support her decision here. 439 N.J. Super. 630 (App. Div. 2015). In D.G.M., the complainant obtained a final restraining order (FRO) against the defendant pursuant to the Act, which "'prohibited' [the] defendant 'from having any (oral, written, personal, electronic or other) form of contact or communication with'" the complainant. Id. at 633. Thereafter, the defendant and the complainant attended their child's soccer game. Id. at 634. The defendant sat near the complainant and recorded the game and the complainant on his cell phone. Ibid.

The State in D.G.M. charged the defendant with criminal contempt under N.J.S.A. 2C:29-9(b), and he was found guilty. Ibid. On appeal, we held that the defendant had engaged in a form of "communication" with the complainant. Id. at 640-41. We decided, however, the defendant's conviction for contempt could not stand because he could not have known his specific conduct violated the FRO and could result in a criminal prosecution. Id. at 642.

Although the TRO here did not expressly prohibit defendant from directing remarks to – or making gestures at – Irene via the Nest camera, the order expressly prohibited defendant from "having any oral" or "electronic, or other form of contact or communication with [his estranged wife]."

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Acknowledging the Nest camera was working, defendant admitted under oath he positioned himself toward the camera and directed his comments about Irene and a lewd gesture at Irene, whose virtual presence in his home was expressly authorized by the TRO.

For reasons that are neither clear from the record nor pertinent to this appeal, defendant consented to the activation of three Nest home security cameras in his home as a condition precedent to supervised parenting time with his daughter. Pursuant to that arrangement, defendant opened his home and permitted Irene to enter through electronic means to observe defendant's interactions with their daughter. Indeed, the purpose of the Nest cameras was to ensure Irene's ability to observe those interactions, following a three-month lapse in defendant's parenting time.

Under the circumstances here, defendant was aware of the high probability that Irene would hear his comments and observe his lewd gesture, which clearly were directed at her. The medium chosen by defendant was not unlike sending a video or message via text or email. As Justice Albin observed in the Fourth Amendment context, "[t]he law must adapt to technological advances." State v. Hubbard, 222 N.J. 249, 276 (2015) (Albin, J., concurring); see also C.C. v. J.A.H., 463 N.J. Super. 419, 424 (App. Div.), certif. denied, 244 N.J. 339 (2020)

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(holding "the proliferate and exceedingly intimate communications between the parties constituted a dating relationship within the meaning of the Act and supported entry of the final restraining order").

Based on our de novo review of the record and governing principles, we therefore conclude defendant acted knowingly, N.J.S.A. 2C:2-2(b)(2), and his contact violated the TRO, N.J.S.A. 2C:29-9(b)(1). Accordingly, we reverse the Family Part order, reinstate the complaint, and direct that the matter be remanded to another judge with no prior involvement with this family. See State in the Interest of C.F., 458 N.J. Super. 134, 147 (App. Div. 2019) (quoting Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005)) ("In an abundance of caution, we direct that this matter be remanded to a different judge for the plenary hearing to avoid the appearance of bias or prejudice based upon the judge's prior involvement with the matter . . . .").

Reversed and remanded. We do not retain jurisdiction.

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