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Tuesday, October 20, 2026

State v. Patterson

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2228-23

STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIC PATTERSON,
Defendant-Appellant.

Submitted October 29, 2025 – Decided June 17, 2026

Before Judges Smith and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 16-09-1175.

Jennifer N. Sellitti, Public Defender, attorney for appellant (John J. Bannan, Designated Counsel, on the brief).

Wayne Mello, Acting Hudson County Prosecutor, attorney for respondent (Patrick F. Galdieri, II, Assistant Prosecutor, on the brief).

Appellant filed a supplemental brief on appellant's behalf.

PER CURIAM

Defendant Eric Patterson appeals a February 22, 2024 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. While impaired, Patterson drove his girlfriend's car across a traffic divide and onto a sidewalk, striking and killing two high school students and injuring a third. Patterson pled guilty to two counts of vehicular homicide and one count of assault by auto. The trial court sentenced him to consecutive twelve-year terms for the vehicular homicide charges, and a consecutive five-year term of incarceration for assault by auto. Defendant contends plea counsel was ineffective for not filing a motion to suppress the results of the State's warrantless blood and urine tests. We affirm for the reasons that follow.

I.

We recite the relevant facts and procedural history from State v. Patterson (Patterson II), No. A-1875-19 (App. Div. Feb. 28, 2022) (slip op. at 3-4):

On March 5, 2016, Patterson, age twenty-three at the time, bought and ingested phencyclidine (PCP), then drove his girlfriend's car from Jersey City towards North Bergen. While driving under the influence of PCP, he disregarded several stop signs and red lights. Patterson struck pedestrians Noel Herrera, Bryan Rodriguez, and Manuel Sanchez near Union High School when he crossed the solid double-yellow line and drove on the sidewalk. Herrera and Rodriguez died as a result of the accident and Sanchez sustained a broken leg.

After the accident, defendant was taken to the hospital emergency room, where he was interviewed by two officers, Sergeant Edward Sellick of the Hoboken Police Department and Sergeant Toni-Ann Sisk of the Hudson County Sheriff's Office. Sgt. Sellick had defendant perform a series of field sobriety tests. Defendant passed one test, the Romberg test, but demonstrated signs of impairment while performing the other tests. Sgt. Sellick made several observations of defendant, from his answers to questions about the accident to his poor performance on the sobriety tests, that caused him to conclude that defendant was under the influence of drugs. The detectives gave defendant a Miranda1 warning, then defendant consented to providing a blood and urine sample. Sgt. Sisk, in her incident report form, testified to her efforts to obtain defendant's consent to provide the sample:

I then asked Mr. Patterson if he would voluntarily consent to giving a sample of his blood and a sample of his urine for testing. Mr. Patterson said he would. I then went over the Consent Form For Use By [L]aw Enforcement Officers When Requesting Consent to Obtain and Test Urine and the Consent Form For Use By Law Enforcement Officers When requesting to Draw and Test Blood with Mr. Patterson. Mr. Patterson consented to giving samples of his blood and urine for testing and signed both forms. Sgt. E. Sellick served as the witness of his consent and signatures. Mr. Patterson was taken into an adjacent restroom . . . where he provided a urine sample. The container with the urine sample was secured . . . .

. . . .

. . . [A nurse] . . . drew Mr. Patterson's blood sample . . . .

After defendant pleaded guilty to the three charges, the court imposed consecutive sentences. On defendant's direct appeal, we reversed and remanded to the trial court for findings with respect to the imposition of consecutive sentences. State v. Patterson (Patterson I), No. A-4340-17 (App. Div. Jan. 9, 2019). On remand, the trial court again imposed consecutive sentences, relying, in part, on our opinion in State v. Locane, 454 N.J. Super. 98 (App. Div. 2018). Defendant appealed again, this time contending the trial court erred by: applying a rebuttable presumption in favor of consecutive sentences; improperly conducting its aggravating and mitigating factors analysis; and misapplying Yarbough2. Defendant also contended that resentencing was warranted because the Legislature had recently adopted a youth mitigating factor, which defendant argued should apply retroactively to his case. We rejected defendant's claims on this second direct appeal and affirmed.3 Patterson II, slip op. at 15, 20, 22.

On September 30, 2022, defendant filed his PCR petition. Defendant argued trial counsel was ineffective for not moving to suppress the results of defendant's warrantless blood and urine screens, which indicated positive for PCP. On February 22, 2024, the PCR court heard argument. In a written order, the court denied the petition without an evidentiary hearing, stating in part:

This court finds [p]etitioner's argument is without merit. There is no evidence that the [p]etitioner was so impaired as to render him incapable of knowingly and voluntarily consenting to have his blood drawn[.] Petitioner willingly signed consent forms to have his blood drawn and a urine sample obtained. His statements to Sergeant Sisk and [Sergeant] Sellick, while not entirely consistent, sufficiently demonstrate to this [c]ourt [that they] were intelligent and responsive.

Nonetheless, . . . Sellick testified . . . that when he interviewed the [p]etitioner at the hospital on the night of the incident[,] he rambled, was incoherent at times, unable to formulate complete sentences, and laughed about the crash. Furthermore, [p]etitioner failed three of four psychophysical tests, had clinical symptoms of impairment, and signs of [PCP] ingestion . . . . Based on these findings, Sergeant Sellick opined that [p]etitioner was under the influence . . . .

Furthermore, [p]etitioner's drug evaluation revealed PCP in both his blood and urine.

However, the [p]etitioner also was fully aware he was at the hospital, [had] sustained injuries due to a car crash, and knew that he had earlier been at his girlfriend's house and went to a liquor store. . . . Based on [p]etitioner's details of the events [of] the evening of the accident, along with his self-serving omission of details of the accident itself, this [c]ourt is clearly convinced [petitioner's] faculties were not so impaired that he could not knowingly and voluntarily consent to these samples.

The court ultimately found defendant failed to prove a prima facie case of ineffective assistance of counsel (IAC), noting that, on this record, counsel did not need to file a suppression motion to be effective. Defendant appealed.

II.

We first recite our standard of review and our well-settled PCR jurisprudence.

A.

We review the PCR court's interpretations of law de novo. State v. Hernandez-Peralta, 261 N.J. 231, 246 (2025) (citing State v. Harris, 181 N.J. 391, 419 (2004)). However, "[o]ur review of a PCR court's factual findings is 'necessarily deferential.'" Ibid. (quoting State v. Nash, 212 N.J. 518, 540 (2013)). When petitioning for PCR, a defendant must establish he is entitled "to PCR by a preponderance of the evidence." State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014) (citing State v. Preciose, 129 N.J. 451, 459 (1992)).

B.

"To establish a prima facie case [of IAC], defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b). The defendant must make more than "bald assertions," rather they "must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Holland, 449 N.J. Super. 427, 435 (App. Div. 2017) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)).

"Under both the Federal and State Constitutions, criminal defendants are entitled to effective assistance of counsel." Hernandez-Peralta, 261 N.J. at 247 (citing U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; Strickland v. Washington, 466 U.S. 668, 684-85 (1984); State v. Fritz, 105 N.J. 42, 58 (1987)). When a defendant alleges ineffective assistance of counsel, both prongs of the Strickland/Fritz test must be satisfied. Ibid. The first prong requires a defendant to "'show that counsel's performance was deficient,' which 'requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Ibid. (quoting Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 52). The second prong requires a defendant to show "counsel's 'deficient performance prejudiced the defense.'" Ibid. (quoting Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 52). This prong requires a defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Gideon, 244 N.J. 538, 551 (2021) (quoting Strickland, 466 U.S. at 694).

III.

Defendant argues on appeal that counsel was ineffective for failing to file a motion to suppress the results of his toxicology test because his consent to the blood and urine samples was not voluntary and knowing. In the alternative, defendant argues that there are genuine issues of material fact at issue which required the PCR court to hold an evidentiary hearing. We are unconvinced.

As a threshold matter, "when an ineffective assistance claim is based on the failure to file a suppression motion, the defendant must establish that the underlying claim is meritorious." State v. Barclay, 479 N.J. Super. 451, 459-60 (App. Div. 2024) (citing State v. O'Neal, 190 N.J. 601, 618-19 (2007)). We turn to our consent to search jurisprudence and apply it to this record.

Consent searches are a well-established exception to the warrant requirement. State v. Miranda, 253 N.J. 461, 475-76 (2023). We have long subjected consent searches under the New Jersey Constitution "'to a higher level of scrutiny' than available under the Federal Constitution." State v, Elders, 192 N.J. 224, 240 (2007) (quoting State v. Carty, 170 N.J. 632, 639, modified, 174 N.J. 351 (2002)). "It is well settled that a valid consent to search must be 'clear, knowing, voluntary, unequivocal, and express.'" State v. Dolly, 255 N.J. Super. 278, 284 (App. Div. 1991) (quoting State v. Sugar, 100 N.J. 214, 234 (1985)). Accordingly, where "the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent." State v. Domicz, 188 N.J. 285 (2006) (emphasis added) (quoting State v. Johnson, 68 N.J. 349, 353-54 (1975)). The voluntariness of a defendant's waiver is tested by the totality of the circumstances. State v. K.H., 482 N.J. Super. 113, 129 (App. Div. 2025). A confession made by a person while under the influence of drugs is not per se involuntary. State v. Wade, 40 N.J. 27, 35 (1963).

Our review of the record leads us to affirm for the reasons clearly expressed by the PCR court in its cogent seventeen-page written statement of reasons. The judge reviewed the extensive record and considered the "totality of the circumstances," K.H., 482 N.J. Super. at 129, finding defendant's consent was knowing and voluntary. We conclude that there was sufficient credible evidence in the record for the trial court to find that defendant's condition "did not affect his will or intellectual capacity," Wade, 40 N.J. at 36, to execute proper consents to draw his blood and urine samples. We conclude defendant has failed to establish the underlying ineffective assistance claim is meritorious. Barclay, 479 N.J. Super. at 459-60. Because defendant's consent was valid, there was no genuine issue of material fact at issue which required the PCR court to hold an evidentiary hearing. We discern no error.

Affirmed.


Footnotes

1 Miranda v. Arizona, 384 U.S. 436 (1966).

2 State v. Yarbough, 100 N.J. 627 (1985).

3 In Patterson II, we noted that Locane's inapplicability did not affect our holding affirming the trial court. Patterson II, slip op. at 17-20.

A.F.K. v. A.S.M.

RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3465-24

A.F.K.,1
Plaintiff-Respondent,
v.
A.S.M.,
Defendant-Appellant.

Argued April 15, 2026 – Decided May 15, 2026

Before Judges Berdote Byrne and Jablonski.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-0360-24.

A.S.M., appellant, argued the cause on appellant's behalf.

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a June 3, 2025, order denying her motion to dissolve an October 23, 2023, final restraining order ("FRO"). After a review of the record, we vacate the June 3, order and remand to the Family Part for a substantive analysis of the factors under Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), and as they apply to a review of defendant's application to dissolve the FRO.

On October 23, 2023, a Family Part judge issued an FRO against defendant. Although defendant was represented by counsel, she failed to appear at the trial and the matter proceeded in her absence. The gravamen of plaintiff's complaint alleged defendant engaged in controlling and abusive behavior towards plaintiff, including threats, and harassment, and violations of the temporary restraining order. The allegations were substantiated and supported by documentary and video evidence. The judge concluded defendant committed predicate acts of harassment and contempt of the domestic violence order warranting entry of the FRO to protect plaintiff and the parties' children. The court dismissed defendant's cross-complaint for lack of prosecution.

Defendant's December 30, 2024, application to dissolve the FRO was denied and she filed the current action seeking similar relief on April 23, 2025.2 At the June 3, 2025, hearing on the motion, defendant argues she was prepared to present "extensive testament of changed circumstances [including] her early termination of probation, her continued rehabilitation and stable employment, her presence in the United States ready to testify, and her desire to reunite with her children."

At the outset of the hearing, the motion judge informed defendant that she would allow her to address any changes that had occurred since her prior application for the same relief, specifically since January 23, 2025. The judge acknowledged that an evaluation had taken place in other litigation which produced results relevant to her parenting time with her children. However, the judge also noted that she did not see anything in defendant's renewed and detailed application that demonstrated any significant changes. The judge reviewed defendant's written application, highlighting certain events, including defendant's guilty plea to a contempt charge and her request for early termination of the probation sentence she had received from it. The judge never permitted defendant to explain or to elaborate on her written submission.

The judge proceeded to list the Carfagno factors and to dispatch with each summarily, again without permitting defendant with the opportunity to present her arguments. Ultimately, the judge concluded "you have not established a prima facie showing that there's good cause to vacate the [FRO]. I am denying this again. That concludes this matter."

On appeal, and among other arguments, defendant contends the trial court erred in denying the motion to dissolve the FRO because the judge did not address the Carfagno factors substantively, and summarily dismissed defendant's asserted changes in circumstances without giving her an opportunity to be heard and to detail those events. We agree.

N.J.S.A. 2C:25-29(d) requires "good cause" before an FRO "may be dissolved or modified." "The linchpin in any motion addressed to dismissal of a[n] [FRO] should be whether there have been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal." Kanaszka v. Kunen, 313 N.J. Super. 600, 609 (App. Div. 1998). "In evaluating whether good cause has been shown under the statute to modify or dissolve a final order, a court is to consider the non-exclusive list of factors set forth in Carfagno, 288 N.J. Super. at 435." G.M. v. C.V., 453 N.J. Super. 1, 13 (App. Div. 2018).

The Carfagno factors in support of good cause include:

(1) [w]hether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant's request; (10) whether other jurisdiction[s have] entered a restraining order protecting the victim from the defendant; and (11) [all] other factors deemed relevant by the court.

[G.M. v. C.V., 453 N.J. Super. at 13 (quoting Carfagno, 288 N.J. Super. at 435).]

We acknowledge the purpose of the good cause requirement for dissolving an FRO is to prevent one party from "relitigate[ing] the FRO hearing." Id. at 16; see also Kanaszka, 313 N.J. Super. at 608 (noting repeated litigating of issues underlying an FRO "can constitute a form of abusive and controlling behavior"). "The party asking to modify or dissolve the FRO has the 'burden to make a prima facie showing [that] good cause exists for dissolution of the restraining order prior to the judge fully considering the application for dismissal.'" G.M., 453 N.J. Super. at 12-13 (alteration in the original) (quoting Kanaszka, 313 N.J. Super. at 608). "[W]here this burden is met and there are 'facts in dispute material to a resolution of the motion,'" the judge should order a plenary hearing. Id. at 13 (quoting Kanaszka, 313 N.J. Super at 608). Regardless of whether a judge conducts a plenary hearing, "the Carfagno factors should be considered in determining whether the movant had shown a prima facie case of changed circumstances to dissolve the restraints." Id. at 14.

Having reviewed the record, we conclude the judge did not undertake any substantive consideration of the Carfagno factors as part of her finding that defendant failed to show a prima facie case of changed circumstances sufficient to warrant a plenary hearing dissolve the FRO. In the absence of that analysis, we are unable to determine whether the judge's denial of defendant's motion to dissolve the FRO was proper.

In her brief and during oral argument before us, defendant set forth her proffer regarding the evidence she attempted to present to the trial judge, but was unable to do so. She specifically noted what she described as "extensive" changed circumstances, including her early termination from probation following her contempt conviction, her ongoing rehabilitation and stable employment, her continued presence in the United States, and her desire to reunite with her children. Rather than allowing an exploration of these representations, the trial court summarily cut her off, thereby precluding any substantive analysis that could have been used to assess the Carfagno elements and determine whether defendant had established a prima facie entitlement to the relief she requested.

Therefore, we vacate the judge's order denying defendant's motion to dissolve the FRO and remand for further analysis under Carfagno. We express no opinion on the merits of defendant's motion to dissolve the FRO and leave it to the Family Part judge's discretion whether to allow the parties to present any further submissions.

Finally, to preserve the impartiality of the proceedings, on remand, this matter shall be assigned to another Family Part judge for disposition. See Freedman v. Freedman, 474 N.J. Super. 291, 308 (App. Div. 2023). The FRO shall remain in effect pending the remand proceeding.

Vacated and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.


Footnotes

1 We refer to the parties by their initials. R. 1:38-3(d)(10).

2 We have not been provided with a transcript of these proceedings.

State v. Parker

STATE OF NEW JERSEY v. THOMAS PARKER

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0090-23

STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS PARKER,
Defendant-Appellant.

Submitted January 13, 2026 – Decided March 6, 2026

Before Judges Rose and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-04-1390.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the briefs).

Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Deputy Chief Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a brief on his own behalf.

PER CURIAM

Defendant Thomas Parker appeals from an August 14, 2023 Law Division order denying his motion to correct an illegal sentence, raising the following points for our consideration:

POINT I

DEFENDANT'S SENTENCE, WHICH WAS IMPOSED WITHOUT CONSIDERATION THAT HE WAS AN 18-YEAR-OLD "LATE ADOLESCENT" AT THE TIME OF THE OFFENSES, IS CRUEL AND UNUSUAL PUNISHMENT. THE ROBUST AND WELL-ESTABLISHED PSYCHOLOGICAL SCIENCE SHOWS THAT THE LAW'S HEIGHTENED PROTECTIONS WHEN SENTENCING JUVENILES SHOULD ALSO APPLY TO PERSONS AGED 18 TO 20. THEREFORE, AND BECAUSE DEFENDANT HAS SERVED WELL OVER 20 YEARS, THIS COURT SHOULD REMAND FOR RESENTENCING RATHER THAN IGNORE THE SCIENCE.

A. Juveniles Are Different When It Comes to Sentencing.

B. Late Adolescents Aged 18-20 Are Also Different When It Comes To Sentencing.

C. Because Defendant Has Overcome the Threshold Hurdle That He is Entitled to a Review of His Sentence, There Must Be a Resentencing At Which the Trial Court Considers the Five Miller1 Factors and Additional Evidence Relevant to Sentencing. The Motion Court Was Wrong That It Could Not Consider a Comer2 Hearing Based on the Record and the 1993 Sentencing Court Did Not Consider Defendant’s Youth When It Imposed a Life Sentence with 45 Years of Parole Ineligibility.

1. Defendant Deserves a Resentencing.

2. In Addition to Reviewing the Miller Factors, the Resentencing Court Must Reweigh Aggravating and Mitigating Factors, Reconsider the Imposition of Consecutive Sentences, and View Defendant, Including His Rehabilitative Efforts, as He Stands Now.

POINT II

THE SENTENCING AND MOTION COURTS FAILED TO APPRECIATE THAT DEFENDANT HAD A "TWICE DIMINISHED CAPACITY" BECAUSE HIS ONLY HOMICIDE CONVICTION WAS FOR FELONY MURDER.

[(Not raised below)].

POINT III

FUNDAMENTAL FAIRNESS ALSO REQUIRES A RESENTENCING BECAUSE THE 1993 SENTENCING COURT ENHANCED DEFENDANT'S SENTENCE FOR CONDUCT AS TO WHICH THE JURY FOUND HIM NOT GUILTY, NAMELY PURPOSEFUL MURDER.

[(Not raised below)].

In his self-represented brief, defendant raises two additional points which we renumber for the reader's convenience:

[POINT IV]

THE SENTENCING COURT FAILED TO MAKE AN EXPLICIT STATEMENT CONSIDERING THE OVERALL FAIRNESS OF THE CONSECUTIVE SENTENCES BEING IM[PO]SED AS REQUIRED BY N.J.S.A. 2C:1-2, STATE V. YARBOUGH, 100 N.J. 627[ (1]985), AND STATE V. TORRES, 246 N.J. 246 (2021), IN VIOLATION OF DEFENDANT'S EIGHTH AND FOURTEENTH AMENDMENT RIGHTS, THEREFORE THE DEFENDANT SHOULD BE RESENTENCED A[]NEW AND N.J.S.A. 2C:44-l(b)(14) WILL APPLY. STATE V. LANE, 251 N.J. 84 (2022).

[POINT V]

THE MOTION JUDGE'S REJECTION OF [DEFENDANT]'S CLAIM THAT THE SENTENCING JUDGE "DOUBLE COUNTED" THE FELONY MURDER CONVICTION AS AN AGGRAVATING FACTOR IS ERRONEOUS AND SHOULD BE REVERSED IN LIGHT OF, STATE V. FUENTES, 217 N.J. 57 (2014), N.J.S.A. 2C:44-l(a)(l), AND . . . YARBOUGH . . . .

In his counseled reply brief, defendant asserts:

[POINT VI]

THIS COURT SHOULD NOT APPLY STATE v. JONES, 478 N.J. SUPER. 532 (2024), TO DENY DEFENDANT RELIEF BECAUSE THIS COURT IN JONES DID NOT REACH THE MERITS OF EXTENDING THE PROTECTIONS OF . . . COMER, . . . TO "LATE ADOLESCENTS" NOR DID IT DISPUTE THAT "LATE ADOLESCENTS" SHARE THE "MITIGATING QUALITIES OF YOUTH" WITH JUVENILES.

We reject defendant's contentions and affirm.

I.

In 1993, a jury convicted defendant of felony murder, conspiracy to commit robbery, four counts of robbery, weapons offenses, and related crimes for his participation in four violent robberies, culminating in the death of twenty-two-year-old Bunny Burt. The robbery spree occurred during the early morning of January 16, 1993, in Newark, East Orange, and Irvington. Defendant was eighteen years old at the time of the incidents as was his co-defendant, Rashon Barkley; the third co-defendant, John Florence, was nineteen. Defendant was sentenced to an aggregate prison term of life plus thirty years with a forty-five-year parole disqualifier.

We affirmed defendant's convictions and sentence in an unpublished decision. State v. Parker, No. A-6493-93 (App. Div. Feb. 10, 1997) (slip op. at 5-6). Defendant then filed a series of unsuccessful petitions for post-conviction relief (PCR). See State v. Parker, No. A-5455-99 (App Div. July 2, 2002) (affirming the denial of defendant's first PCR petition); State v. Barkley,3 No. A-2462-05 (App. Div. Aug. 26, 2008) (affirming the denial of defendant's second PCR petition); State v. Parker, No. A-2582-11 (App. Div. Mar. 12, 2013) (affirming the denial of defendant's third PCR petition).

On November 1, 2022, defendant filed the present self-represented motion to correct an illegal sentence and thereafter was appointed counsel. See R. 3:21-10(c). Defendant argued: (1) as a youthful offender, he was entitled to resentencing under the twenty-year "lookback" provision for juvenile offenders pursuant to our Supreme Court's decision in Comer; (2) the sentencing court "failed to consider the overall fairness of running the multiple sentences concurrently" under Torres; and (3) the sentencing court double counted his felony murder conviction when finding aggravating factor one, N.J.S.A. 2C:44-1(a)(1) (the offense involved particular depravity and cruelty). Defendant sought a remand for resentencing.

On August 14, 2023, the motion judge, who had no prior involvement in defendant's matters, issued a cogent written decision and memorializing order denying defendant's motion. The judge squarely addressed the issues raised in view of the governing law as of the date of his decision and his thorough review of the sentencing transcript.

The motion judge first addressed defendant's double-counting argument. The judge noted the sentencing court found the circumstances surrounding Burt's death – not the murder itself – were "heinous, cruel, and depraved" because "Burt was targeted, followed, and threatened with a gun." The motion judge also credited the State's argument that defendant's double-counting argument equated to an excessive sentencing argument and, as such, defendant's argument should have been raised on direct appeal under State v. Hess, 207 N.J. 123, 145 (2011). The judge next determined the sentencing court adequately explained its reasons for imposing a consecutive sentence, satisfying the Court's decisions in Torres and Yarbough. Lastly, recognizing the Court's decision in Comer applies only to juvenile offenders, the judge found, because defendant was an adult when he committed the offenses, he was not entitled to resentencing.

II.

"We review the legality of a sentence de novo." Jones, 478 N.J. Super. at 541 (quoting State v. Steingraber, 465 N.J. Super. 322, 327 (App. Div. 2020)). "If a defendant's sentence is illegal, a reviewing court must remand for resentencing." Steingraber, 465 N.J. Super. at 327.

"There are two categories of illegal sentences: those that exceed the penalties authorized for a particular offense, and those that are not authorized by law." State v. Hyland, 238 N.J. 135, 145 (2019). "Those two categories of illegal sentences have been 'defined narrowly.'" Ibid. (quoting State v. Murray, 162 N.J. 240, 246 (2000)). "A sentence that is 'not imposed in accordance with law' 'includes a sentence imposed without regard to some constitutional safeguard.'" Jones, 478 N.J. Super. at 540 (quoting State v. Zuber, 227 N.J. 422, 437 (2017)) (internal quotation marks omitted). There is no temporal limit on a court's ability to review an illegal sentence; "it may be corrected at any time before it is completed." Murray, 162 N.J. at 247; see also R. 3:21-10(b)(5). "If a defendant's sentence is illegal, a reviewing court must remand for resentencing." Steingraber, 465 N.J. Super. at 328 (citing State v. Romero, 191 N.J. 59, 80-81 (2007)).

We have considered defendant's reprised contentions raised in points I, IV, and V, and conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief remarks.

Nine months after the motion judge issued his decision, we decided Jones, and addressed whether the Court's decision in Comer, 249 N.J. at 403 – permitting "[j]uvenile offenders sentenced under the [homicide] statute to petition for a review of their sentence after having spent 20 years in jail," – extended to youthful offenders, 478 N.J. Super. at 534-35. Similar to defendant in the present matter, each of the three defendants in Jones sought resentencing, arguing the Comer sentencing review procedure "should extend to youthful offenders between the ages of eighteen and twenty when they committed their offenses," ibid., because "developmental science recognizes no meaningful cognitive differences between juveniles and young adults," id. at 542.

We rejected the defendants' arguments, expressly holding "the Court's decision was limited to juvenile offenders tried and convicted of murder in adult court." Id. at 549;4 see also State v. Ryan, 249 N.J. 581, 600 n.10 (2022) (recognizing "[t]he Legislature has chosen eighteen as the threshold age for adulthood in criminal sentencing"); N.J.S.A. 2A:4A-22(a) (defining a juvenile as an individual "under the age of [eighteen] years"); N.J.S.A. 2A:4A-22(b) (defining an adult as "an individual [eighteen] years of age or older").

We reach the same conclusion in this case. Perceiving no basis to deviate from our opinion in Jones, because defendant was eighteen years old when he committed felony murder, we reject his request for resentencing.5

Little need be said about defendant's belated argument raised in point II. Because defendant did not assert the issue before the motion judge, his contentions are inappropriate for our review. "For sound jurisprudential reasons, with few exceptions," State v. Witt, 223 N.J. 409, 419 (2015), which are inapplicable here, "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available," State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

For the sake of completeness, however, we have considered defendant's contention that he "was less culpable not only by virtue of his status as a late adolescent[,] but also because his only homicide conviction was for felony murder." To support his argument, defendant cites the following portion of the Court's decision in Comer:

In the case of felony murder, "a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability." Graham [v. Florida], 560 U.S. [48,] 69 [(2010)]. Under the felony-murder doctrine, a "death caused in the course of a felony [is attributed] to all participants who intended to commit the felony, regardless of whether they killed or intended to kill." Miller, 567 U.S. at 491 (Breyer, J., concurring). Yet some of the hallmark characteristics of young adults -- like rash behavior and an inability to appreciate risks and consequences, id. at 477 -- can contribute to circumstances that lead to felony murder.

As noted earlier, cases that remain in the Family Part illustrate the distinction between felony murder and purposeful murder. Juveniles adjudicated of felony murder face up to 10 years in prison; those adjudicated of purposeful and knowing murder face up to 20 years. N.J.S.A. 2A:4A-44(d)(1)(a), (b). The distinction disappears for juveniles convicted as adults, even though they are less morally culpable.

[Comer, 249 N.J. at 397-98.]

Defendant's argument is misplaced. Comer and the cases cited by the Court all involved juvenile sentencings – not late adolescents. Graham, 560 U.S. at 82 (prohibiting life-without-parole sentences for juvenile non-homicide offenders); Miller, 567 U.S. at 489 (prohibiting mandatory life-without-parole sentences for juvenile homicide offenders); Zuber, 227 N.J. at 429 (extending Miller to situations where a juvenile is facing a term-of-imprisonment that is equivalent to life-without-parole).

Defendant's sentence on the felony murder charge comported with N.J.S.A. 2C:11-3(b) as he received a life sentence with a thirty-year period of parole ineligibility. Because the sentence imposed fell within the statutory range and did not exceed the maximum penalty for felony murder, his sentence is not illegal. See Hyland, 452 N.J. Super. at 381.

Lastly, we turn to defendant's argument, raised in point III, that "the sentencing court enhanced [his] sentence for conduct as to which the jury found him not guilty – purposeful murder." In support of his argument, defendant cites the Court's decision in State v. Melvin, and its companion case, State v. Paden-Battle, 248 N.J. 321 (2021), issued nearly three decades after defendant was sentenced. In both cases, at sentencing, the same judge made factual findings that contradicted those made by the juries in acquitting the defendants. Id. at 349-51. The Court held the due process principles inherent in Article I, paragraph 1 of the New Jersey Constitution and the doctrine of fundamental fairness protected the defendant in each case from the sentencing court's improper use of facts related to acquitted conduct to enhance a sentence. Id. at 347-52.

The Melvin Court was silent as to the retroactive application of its new rule. In State v. Morente-Dubon, we held the new rule of law announced by the Melvin Court "should have at least pipeline retroactivity, 'rendering it applicable in all future cases, the case in which the rule [was] announced, and any cases still on direct appeal.'" 474 N.J. Super. 197, 213 (App. Div. 2022) (alteration in original) (quoting State v. Cummings, 184 N.J. 84, 98 (2005)).

Defendant's direct appeal from his convictions and sentence concluded upon the Court's denial of his petition for certification in 1997. See State v. Parker, 149 N.J. 410 (1997). Because defendant's direct appeal was rejected with finality in 1997, he was not entitled to pipeline retroactivity under Melvin warranting a remand for resentencing. Further, our review of the sentencing transcript reveals, as the motion judge found when deciding defendant's double-counting argument, the court properly focused on the surrounding circumstances of Burt's death and did not enhance his sentence based on his acquitted conducted. As stated, defendant was sentenced within the statutory range.

To the extent we have not specifically addressed defendant's remaining contentions, we are satisfied they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


Footnotes

1 Miller v. Alabama, 567 U.S. 460.

2 State v. Comer, 249 N.J. 359 (2022).

3 Defendant's appeal was calendared back-to-back and consolidated with Barkley's appeal.

4 The Court denied certification. State v. Jones, 259 N.J. 304, 259 N.J. 314, and 259 N.J. 315 (2024).

5 We rejected similar arguments raised by Barkley and Florence in separate unpublished opinions. State v. Barkley, No. A-2505-21 (App. Div. Nov. 16, 2023) (slip op. at 7-8), certif. denied, 256 N.J. 517 (2024); State v. Florence, No. A-0858-23 (App. Div. Nov. 21, 2025) (slip op. at 7-9). Thereafter, their sentences were commuted and they were released from prison. Press Release, Off. of the Governor, Governor Murphy Announces Pardons and Commutations for 93 Individuals in Second Round of Clemency Actions, at 5 (Apr. 8, 2025) (on file with N.J. State Library) (acknowledging the commutation of Barkley's sentence); Press Release, Off. of the Governor, In Sixth Round of Clemency Actions, Governor Murphy Announces Pardons and Commutations for 55 Individuals, at 4 (Nov. 25, 2025) (on file with N.J. State Library) (acknowledging the commutation of Florence's sentence).

State v. Jones

State of New Jersey v. Tiffany R. Jones (A-1450-25)

Argued March 24, 2026 -- Decided May 11, 2026

Before Judges Gilson and Vinci.

PER CURIAM

We granted the State leave to appeal an October 23, 2025 order, which allowed defendant Tiffany Jones to withdraw her guilty plea to refusing to submit to a chemical breath test in violation of N.J.S.A. 39:4-50.4a. The trial court reasoned that defendant had not provided a valid plea because she did not expressly admit all the elements of a refusal charge. The record does not support the trial court's determination and, therefore, we reverse, vacate the October 23, 2025 order, and reinstate defendant's refusal conviction.

I.

At approximately 9:00 p.m. on August 30, 2022, several Jackson Township police officers responded to a Wawa convenience store on a report of a disruptive customer.¹ Once patrolman Zackary Rodina arrived, he observed defendant who was "cursing, screaming, and waving her arms in an aggressive manner." The officer tried to calm defendant down and when he spoke to her, he saw that she had "bloodshot, glassy, and watery eyes" and he smelled a "strong odor" of alcohol emanating from defendant's breath. Rodina also observed that defendant was "slurring her words, unable to maintain her balance, and screaming at the top of her lungs all while her [young] daughter was present."

Another responding officer, patrolwoman Jody Benecke, also observed that defendant's eyes were bloodshot and watery. Several witnesses reported to Benecke that defendant had become irate because her food was not prepared properly, had been "belligerent" towards employees and customers, and had attempted to leave in her red Lexus with her four-year-old child. Benecke also observed that the red Lexus was "parked partially in a spot in front of the" Wawa.

The officers placed defendant under arrest for disorderly conduct. Officers also searched defendant's vehicle and found two small bottles of vodka. Defendant was then taken to the township's police station, where she continued to "act out," refused to be fingerprinted, and refused to engage in sobriety tests.

Defendant was then asked to provide breath samples so that she could be chemically tested to determine the alcohol content of her blood. As part of that procedure, Rodina read to defendant the New Jersey Attorney General's Standard Statement for Motor Vehicle Operators (the Statement). The Statement informed defendant (1) she had "been arrested for driving while intoxicated," (2) she was required to submit breath samples to determine the alcohol content of her blood; and (3) the penalties for refusing to submit breath samples.

After reading the Statement to defendant, Rodina asked defendant if she would submit breath samples, but defendant refused. Rodina then read defendant the additional paragraph in the Statement and defendant again refused to provide breath samples, stating "F[] no."

While defendant was at the police station, a check of her motor vehicle records revealed that she had a prior conviction for refusing to submit to a breath test and she was required to have an ignition interlock device installed in her car. Defendant was thereafter charged with three criminal offenses, including second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2). She was also charged with eight motor vehicle offenses, including driving while under the influence, N.J.S.A. 39:4-50, failure to install an ignition interlock device, N.J.S.A. 39:4-50.19, and refusal to submit to a breath test.

The following year and with the assistance of an attorney, defendant negotiated a comprehensive plea agreement. Under the agreement, defendant waived her right to be indicted and agreed to plead guilty to an accusation charging her with third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2). She also agreed to plead guilty to the refusal charge and a violation of probation. In return, the State agreed to recommend that defendant be sentenced to probation, the standard penalties for refusal, and all other charges be dismissed.

On July 24, 2023, defendant pled guilty to endangering the welfare of a child and to a violation of probation. During the hearing on that date, the prosecutor explained the plea agreement, including defendant's agreement to plead guilty to the refusal charge at the time of her sentence. Defendant was then placed under oath, and she testified (1) she had heard and understood the terms of her plea agreement; (2) she had reviewed and signed the plea forms; (3) she had reviewed her plea forms with her counsel, and he had answered all her questions; and (4) she was pleading guilty because she was guilty.

On September 29, 2023, defendant appeared for sentencing on the criminal conviction. Before being sentenced, defendant pled guilty to the refusal charge. In pleading guilty, defendant was placed under oath, and she was asked and answered the following questions:

Q I'm going to ask you some questions about an incident that happened on August the 30th of last year, 2022, in Jackson. Is it correct on that date, you were on North County Line Road?

A Correct.

Q And that's around the area where the Wawa is located; is that right?

A That is correct.

Q And you had been driving a vehicle?

A Correct.

Q And at some point, officers stopped you and made contact with you; is that right? A That's correct.

Q And they had some suspicion that you were - - you had been operating the vehicle under the influence of - -

A That is correct.

Q In this case, under the influence of alcohol, because they had seen, I think, a few shooters in the car. A That's correct.

Q So then am I right in saying you went back to the police station where the officers asked you to do a Breathalyzer test?

A That is correct.

Q And at that point, you refused and said no?

A Correct.

Q They further gave you a piece of paper, a form, which basically explained the possible implications for saying no to that Breathalyzer; is that right?

A Yes, they did.

Q And, again, you said no at that point.

A. I did.

Q And you understand these actions, by refusing to submit to that Breathalyzer, is in violation of the motor vehicle code; is that right?

A Yes. I understand.

Q Specifically, your refusal to submit to a chemical test.

A I understand.

Q And you're pleading guilty to that motor vehicle ticket because you are guilty.

A Yes, I am.

The trial court accepted defendant's guilty plea to the refusal charge.

Defendant was then sentenced to two years of probation on the endangering conviction. On the refusal charge, defendant was sentenced to the loss of her driver's license for one year and to spend forty-eight hours in an educational program to avoid intoxication while driving. Defendant was also required to install an ignition interlock device in her primary motor vehicle for two years and to pay fines, assessments, and costs. The court thereafter dismissed all other charges. Defendant did not appeal her convictions or sentences.

In 2025, defendant was indicted for driving while her license was suspended in violation of N.J.S.A. 2C:40-26(b). Because defendant's driver's license had been previously revoked two times for refusing to submit to a breath test, if convicted defendant will be sentenced to a mandatory prison term of at least 180 days. See N.J.S.A. 2C:40-26(c). In May 2025, defendant filed a petition for post-conviction relief (PCR) under which she sought to withdraw her guilty plea to the refusal charge that she had entered in September 2023. Thereafter, defendant withdrew her PCR petition and filed a motion to withdraw her guilty plea to the refusal charge.

On October 21, 2025, the same judge who had accepted defendant's plea heard the motion to withdraw the plea. Two days later, on October 23, 2025, the judge entered an order granting the motion. The judge also issued a written decision explaining the reasons for the ruling.

In the decision, the judge determined defendant's refusal plea was not supported by an adequate factual basis. The judge reasoned that defendant's admission that the officers had "some suspicion" she was driving under the influence, was insufficient to establish that before her refusal defendant had been arrested for driving while under the influence based on probable cause. In that regard, the judge reasoned: "Probable cause requires specific and articulable facts, where 'some suspicion' is vague, ambiguous, and insufficient for establishing probable cause." Accordingly, the judge found that the first element required for a refusal conviction was not met.

The judge also determined that the second element for a refusal conviction — that is, that defendant was arrested for driving while intoxicated — was also not established. The judge reasoned: "Merely stating that defendant 'went back to the police station' is not analogous to establishing that the [d]efendant was arrested for DWI."

The judge also analyzed defendant's motion to withdraw her guilty plea under the factors set forth in State v. Slater, 198 N.J. 145 (2009). The judge determined that defendant's assertion of a claim of innocence was established because there was an insufficient factual basis for her plea. The judge also determined that defendant had presented fair and just reasons for withdrawal because the "words 'probable cause' was never mentioned during the plea allocution."

The judge acknowledged that defendant had a heavy burden in seeking to withdraw her guilty plea because it was part of a plea bargain. Nevertheless, the judge reasoned that factor should not be given great weight in the balancing process. Finally, under the fourth Slater factor, the judge determined that the withdrawal of defendant's guilty plea would not result in unfair prejudice to the State, but the judge did not explain how or why there was no prejudice to the State.

Based on the court's reasoning, the court entered an order granting defendant's motion to withdraw her guilty plea to the refusal charge. On the State's motion, we granted it leave to appeal the interlocutory order.

II.

The State argues that there was a sufficient factual basis for defendant's guilty plea to the refusal charge. The State also contends that defendant did not satisfy the requirements for withdrawing her guilty plea under State v. Slater.

In opposition, defendant asserts that she did not provide a factual basis for her guilty plea to refusal. Specifically, she contends that she did not admit that there was probable cause to believe that she had been driving while under the influence and she did not expressly admit that she had been arrested for driving while under the influence.

Generally, appellate courts review a trial court's decision to grant or deny a motion to withdraw a guilty plea under an abuse of discretion standard. State v. Lipa, 219 N.J. 323, 332 (2014). Where, however, the issue is solely whether there is an adequate basis to support the plea, we conduct a de novo review 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." State v. Tate, 220 N.J. 393, 404 (2015).

In assessing the adequacy of a guilty plea, a court must determine that the plea "(1) has a sufficient factual basis, (2) is offered voluntarily, and (3) is given with a sufficient understanding of the nature of the charge and the consequences flowing from the plea." State ex rel. T.M., 166 N.J. 319, 325-26 (2001).

Accordingly, Rule 3:9-2 states, in relevant part:

The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such plea without first questioning the defendant personally, [] and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.

The New Jersey Supreme Court has explained:

The specificity and rigor embodied in Rule 3:9-2 manifest a systematic awareness that a defendant waives significant constitutional rights when pleading guilty, which places an affirmative obligation on a court to reject a plea of guilty when the court is not independently satisfied that the Rule's prerequisites are met.

[T.M., 166 N.J. at 326 (citing State v. Smullen, 118 N.J. 408, 415 (1990)).]

The Court has also explained:

We have adopted the shorthand expression that the trial court 'must be "satisfied from the lips of the defendant that he [or she] committed the acts which constitute the crime"' . . . [t]hat does not mean that a court must follow a prescribed or artificial ritual. To the contrary, because different criminal charges and different defendants require courts to act flexibly to achieve constitutional ends, a factual basis, established either through inquiry of others, which a defendant acknowledges, or through direct admission by the defendant, should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy.

[Id. at 327 (quoting State v. Barboza, 115 N.J. 415, 422 (1989)).]

See also State v. Gregory, 220 N.J. 413, 420-21 (explaining "[s]imply put, a defendant must acknowledge facts that constitute the essential elements of the crime").

There are four elements to establish the charge of refusal to submit to a breath test under N.J.S.A. 39:4-50.4a. State v. Marquez, 202 N.J. 485, 503 (2010). Those elements are:

(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs;

(2) defendant was arrested for driving while intoxicated;

(3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and

(4) defendant thereafter refused to submit to the test.

[Ibid.]

Defendant and the motion judge focused on the first and second elements. Specifically, the judge reasoned defendant's admission that an officer had "some suspicion" to arrest her did not establish that the officers had probable cause to believe she had been driving while under the influence. Similarly, the motion judge determined defendant's acknowledgment that she "went back to the police department" did not establish that she had been arrested for driving while under the influence.

We reject the motion judge's reasoning because it is inconsistent with the entire record. Reading defendant's admissions during her plea in context establishes that she knew and acknowledged each of the elements of a refusal conviction. A defendant does not have to expressly admit probable cause, because probable cause is a determination made by the court. When defendant pled guilty to the refusal charge, the record before the court clearly established that there was probable cause for defendant's arrest on suspicion of driving while under the influence. There was no dispute that defendant had been arrested. There was also no dispute that defendant had been charged with driving while under the influence. At no point did defendant or her plea counsel question whether there was probable cause for her arrest. Thus, when she admitted that there was "some suspicion" to arrest her, she sufficiently admitted she had been arrested with probable cause.

There was also no issue with the fact that defendant had been arrested for driving while under the influence. Defendant acknowledged that she had been read the standard Statement. That Statement expressly told defendant that she had been "arrested for driving while intoxicated." Consequently, when defendant during her plea colloquy acknowledged under oath that she had "went back to the police department" she sufficiently acknowledged that she had been arrested for driving while under the influence.

Importantly, in pleading guilty, defendant candidly admitted that she was guilty of refusal. She had been previously convicted of refusal to provide a breath sample. Accordingly, the record establishes that she knowingly, voluntarily, and intelligently pled guilty to the refusal charge. Indeed, that knowing, voluntary, and intelligent plea is succinctly summarized in the following exchange:

Q Specifically, you[] refused to submit to a chemical test.

A I understand.

Q And you're pleading guilty to that motor vehicle ticket [of refusal] because you are guilty.

A Yes, I am.

In short, form does not trump the substance of defendant's knowing and voluntary plea. See Barboza, 115 N.J. at 421 (explaining the factual basis requirement "serves a variety of purposes," including preventing defendant from entering an unknowing plea and providing a record for appellate review of the plea conditions); see also State v. Taccetta, 200 N.J. 183, 198 (2009) (noting this requirement serves to "ensure[] that innocent people are not punished for crimes they did not commit").

We also reject the motion judge's alternative ground for vacating the plea under the Slater factors. Following sentencing, a defendant seeking to withdraw a guilty plea must show that the withdrawal will "correct a manifest injustice." R. 3:21-1. Under that standard, "the burden rests on defendant . . . to present some plausible basis for [her] request, and [] good faith in asserting a defense on the merits." Smullen, 118 N.J. at 416 (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div. 1974)). In deciding whether to permit the withdrawal of a guilty plea after sentencing, the court must consider the four factors set forth in Slater: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal [will] result in an unfair prejudice to the State or unfair advantage to the accused. [Slater, 198 N.J. at 157-58.]

In this matter, the motion judge did not correctly assess the Slater factors. Instead, the judge used her reasonings concerning the inadequate plea to try to satisfy the Slater factors. The record does not contain any evidence that defendant has a colorable claim of innocence. Indeed, defendant does not claim that she is innocent; rather she asserts the State did not establish her guilt. Nor has defendant established the nature and strength of her reasons for withdrawing. There clearly was a plea agreement and defendant clearly understood the agreement. Finally, it would be prejudicial to the State if defendant was now allowed to withdraw her guilty plea.

Defendant candidly acknowledges the real reason she is seeking to withdraw her guilty plea to the refusal charge. After her plea and sentence, she was indicted for driving while her license was suspended. Defendant wants to avoid the mandatory prison term if she is convicted of that offense because she has at least two prior convictions for refusing to submit to a breath test.

While we understand defendant's motive, it is inconsistent with the public policy of New Jersey. In adopting N.J.S.A. 2C:40-26, the Legislature required a mandatory period of incarceration as a deterrent to people who continue to drive when their license had been suspended two or more times for driving while intoxicated or for refusing to submit to a breath test. See State v. Harris, 439 N.J. Super. 150, 160 (App. Div. 2015); State v. Perry, 439 N.J. Super. 514, 522- 23 (App Div. 2015). It would, therefore, be inconsistent with New Jersey's public policy to protect the public from the hazards of people driving while under the influence, to allow defendant to withdraw her guilty plea to the refusal conviction because she subsequently drove while her license was suspended for that very conviction and a prior conviction.

In summary, defendant's plea was adequate, and she failed to establish grounds for withdrawing her plea under the Slater factors. Accordingly, we reverse and vacate the October 23, 2025 order and reinstate defendant's refusal conviction. On remand, the trial court is to enter an order denying defendant's motion to withdraw her guilty plea to the refusal conviction.

Reversed, vacated, and remanded. We do not retain jurisdiction.

Footnote 1

We discern certain of the facts from the reports prepared by two responding police officers. Those reports were submitted as part of the record and disclosed in discovery to defendant. Defendant does not dispute those facts.

Friday, October 16, 2026

Egregious physical force reversed the denial of FRO

Egregious physical force reversed the denial of FRO

This appeal raises important questions under the New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, when the predicate act of domestic violence involves egregious physical force—in this instance, an acquaintance rape¹ involving manual strangulation. We address, for example, the tension that can arise between two important principles that inform the decision on whether to issue a final restraining order (FRO) under the PDVA: first, that the trial court must consider whether the predicate act was part of a pattern of historical domestic violence involving the parties; and second, that the need for an FRO is often "perfunctory and self-evident" when the predicate act involves physical violence, especially when the unlawful force is severe.

In this instance, we accord greater significance to the egregiousness of the physical force inflicted upon the victim than to the fact that there was no history of past acts of domestic violence between the parties. The forcible date rape, in other words, was sufficiently egregious to warrant an FRO notwithstanding that it was the first and only act of domestic violence defendant perpetrated against the victim. We add that the sexual violence committed in this case constitutes an archetypical example of the degree of coercive control and domination that triggers the PDVA's protections. We likewise consider strangulation to be an act of control and domination that by itself will often justify the entry of an FRO even when it does not result in serious or significant bodily injury.

Aside from addressing the legal impact of the egregiousness of the physical force that was inflicted upon the victim in this case, we also consider the "immediacy" of future harm that must be shown to warrant an FRO. Although a plaintiff seeking an FRO under the PDVA must establish the need for protection from further abuse, the foreseeable abuse need not be imminent and the risk of it coming to fruition should be assessed in the context of considering the victim's best interests. The best-interests-of-the-victim factor is an important consideration, one that must be applied as part of a comprehensive statutory framework designed to afford domestic violence victims the maximum protection from abuse the law can provide. In cases like this one where future contact between the parties is foreseeable, a victim of extreme physical violence has a right to be assured that the assailant's conduct during any future encounter will be constrained by the terms of an enforceable judicial order—one that can be presented to police if needed—and not just an informal oral warning from the judge as occurred in this case.

Plaintiff, G.G.S.,² appeals a May 19, 2025, Family Part order dismissing a temporary restraining order (TRO) against defendant, A.C.B., and denying plaintiff's request for an FRO against him. The parties had a one-week dating relationship that ended abruptly when defendant overpowered and sexually penetrated plaintiff despite her repeated protests. While pinning plaintiff down, defendant placed his hands on her neck, impairing her ability to breathe.

The trial court credited plaintiff's testimony, finding there was a dating relationship, that defendant committed the predicate act of sexual assault, and that he placed his hands on plaintiff's neck four or five times, affecting her breathing. The court described the violent episode as "despicable." It also noted that defendant had "predatory tendencies" and found plaintiff's testimony credible, stating, "I think she's scared, I think she's legitimate."

The court nonetheless concluded that plaintiff had not established the grounds for an FRO, holding that plaintiff had not demonstrated that an FRO was necessary to protect her from "immediate danger." In reaching that conclusion, the court relied on the lack of a previous history of domestic violence between the parties. The court also commented, "I think that [defendant] understands that that's not the kind of conduct of how a man should treat a woman."

Despite denying plaintiff's request for an FRO, the court at the conclusion of the hearing admonished defendant to stay away from plaintiff, telling him, "You understand that when you see her around in the fall, you're going to turn the other way. You're not to talk to her. You're not to look at her. You're not to do anything." The court added, "Do you understand the break you got today?"

We believe that the trial court's colloquy with defendant at the end of the hearing contradicts its ruling that an FRO was not needed to protect the victim. Its final remark suggesting defendant was given a "break," moreover, disregards the interests of the victim and thus runs afoul of the letter and spirit of the PDVA. Although we generally defer to Family Part judges, on these disturbing facts we are constrained to reverse and remand for entry of an FRO.

I.

FACTS AND PROCEDURAL HISTORY

II.

TRIAL COURT RULING

III.

GENERAL LEGAL PRINCPLES

IV.

RECONCILING POTENTIALLY COMPETING LEGAL PRINCIPLES

V.

INHERENT EGREGIOUSNESS OF ACQUAINTANCE RAPE

VI.

STRANGULATION AS AN AGGRAVATING CIRCUMSTANCE

VII.

RISK ASSESSMENT OF FURTHER ABUSE

A.

Immediacy of Danger

B.

Other Circumstances Relied on by the Trial Court

1.

Remorse as a Mitigating Circumstance

2.

Likelihood of Future Encounters

VIII.

CONSIDERATION OF THE BEST INTERESTS OF THE VICTIM

IX.

INHERENT LIMITS ON THE EXERCISE OF JUDICIAL DISCRETION

We discern the following facts and procedural history from the record.

The parties, both college students, were introduced by a mutual friend on February 26, 2025. Their first date was on March 1. A second date took place on March 4, when the parties went bowling and then returned to defendant's parents' house, where he lived at the time.

That night, the parties "made out" on defendant's bed. Plaintiff told defendant that she did not intend to "sleep with" him because she was practicing celibacy. Defendant repeatedly asked plaintiff why she would not have sex with him and pressured her to reconsider. Plaintiff testified that on that night, she told defendant "no" approximately seventeen times.

Defendant apologized for his behavior by text later that night. Plaintiff replied the following day, letting defendant know that she felt uncomfortable about the night before. Defendant replied that he "fe[lt] like an asshole" and was "sorry for what [he] did." After the parties' mutual friend convinced plaintiff to give defendant another chance, plaintiff agreed to meet defendant at a public park the next day, March 6.

At that meeting, plaintiff reiterated that defendant's conduct during the second date made her uncomfortable and she reaffirmed that she was practicing celibacy. Defendant was understanding, and plaintiff agreed to go out with him a third time the following evening.

At around 10:30 p.m. on March 7, defendant picked plaintiff up from her home for a third date. Plaintiff wore "granny panties" and "baggy pajamas," which, she explained at trial, was deliberate to underscore that she did not intend to have sexual intercourse with defendant. The parties went to defendant's parents' house, and plaintiff lay down to go to sleep, as she had to be at work at 6:00 a.m. the next morning. Defendant became angry that plaintiff "just came there to sleep," and after he protested, she agreed to watch a movie.

Defendant began to pressure plaintiff to have sex with him, stating that plaintiff "owed him" for their previous dates and that she should "ask [her] friends what they do for . . . their partners." Plaintiff reiterated seven to ten times that she did not want to have sex.

Eventually, plaintiff and defendant began "making out" on defendant's bed. Plaintiff took off defendant's shirt, and defendant took off plaintiff's shirt and bra. Defendant tried to take off plaintiff's pants and underwear, but she said no and reasserted that she did not want to have sexual intercourse. Defendant took them off anyway, held plaintiff down by her shoulders, and penetrated her. Defendant also pressed down "very hard" on plaintiff's neck so that she had a "slightly" hard time breathing. Plaintiff told defendant "no" multiple times as she was being sexually assaulted. Defendant continued to penetrate her for approximately three minutes, then ejaculated on her leg before letting her up.

Defendant drove plaintiff home that night and told her "he felt like he did something bad."

On March 10 or 11, defendant filed a police report in which he claimed that plaintiff reached toward his genitals.³

On March 11, plaintiff applied for and was granted a TRO against defendant. On April 3, she amended her complaint to include additional details about the sexual assault incident and the events leading up to it.

A bench trial was held over the course of two days in April and May. In addition to describing the sexual assault, plaintiff testified about her potential future contact with defendant. She explained that starting in the fall, she would be enrolled at the same college as defendant and would be attending classes in either the same or adjacent classroom buildings. She expressed concern that she would run into defendant as there are "too many common places." Plaintiff further testified that the parties have mutual acquaintances and similar social circles.

Plaintiff also expressed concern that defendant could come to her workplace, testifying:

A: My job has no security and is a very, very busy [convenience store]. And we've gotten robbed before. I work every type of shift. And, sometimes, there's just little to no staff there. . . .

Q: Has this defendant ever shown up at this [convenience store]?

A: I have no clue.

. . . .

Q: Does he know where it is?

A: Well, he does from the restraining order, I think.

. . . .

Q: How about prior to the first week of March? Did he know?

A: I think I've told him where I worked. I'm not sure.

Plaintiff, who plays softball, also testified that defendant "shadows [her] athletic trainer" and that she "couldn't even go to" her remaining softball games "because [she] knew he was going to be there and . . . just didn't feel safe." Finally, she noted that defendant knows where she lives.

At trial, defendant denied that he held plaintiff down, penetrated her, or strangled her. He claimed that he fell asleep in his gaming chair and awoke to plaintiff touching him.

Following the parties' testimony, the trial court rendered an oral opinion. It found that plaintiff was "inherently believable" and "more credible" than defendant. Specifically, the court credited her testimony that

[defendant] took off both [her] shirts and held her down by her shoulders and later placed [his] hands . . . on her neck. And that it did affect her breathing. And that he did that four or five times.

The court thereupon held that plaintiff proved by a preponderance of the evidence that defendant committed the predicate act of sexual assault. See N.J.S.A. 2C:25-19(a)(7), N.J.S.A. 2C:14-2. Specifically, the court found that defendant committed "an act of sexual penetration" and used "physical force or coercion, but the victim [did] not sustain severe personal injury," in violation of N.J.S.A. 2C:14-2(c)(1).⁴ The court also addressed defendant's alleged strangulation of plaintiff, noting it was "very concerned about that because our [L]egislature amended the aggravated assault statute in . . . 2021 to make that kind of allegation a second degree crime." See N.J.S.A. 2C:12-1(b)(13); L. 2021, c. 172, § 1. However, the court made no further determination as to whether, in addition to sexual assault, defendant also committed the predicate act of assault.⁵ See N.J.S.A. 2C:25-19(a)(2); N.J.S.A. 2C:12-1.

Turning to the second part of the Silver⁶ test, the court noted that the parties live in different towns. The court acknowledged plaintiff's "particular fear in regards to this particular matter" and "the fact that she worked at a [convenience store] and [defendant] knew that." The court found, however, that the parties had no "previous history" before their "one-week relationship." The court also found that defendant "knew something had happened" and that his text messages after the second date expressed that he was sorry. The court concluded:

[T]he fact that [plaintiff is] now going to transfer to the college that [defendant attends] . . . I do not think that she met the second prong. I think [she] absolutely proved the case in regards to the assault. I think that he understands that that's not the kind of conduct of how a man should treat a woman, and that he clearly had predatory tendencies.

In regards to issuing the final order . . . I need to see immediate danger, realizing that I think she was credible when she talked about strangulation. . . . I think [what he did was] despicable.

. . . .

. . . [W]hile I . . . think [plaintiff is] scared, I think she's legitimate, I don't think she showed me the legal burden of proof for me to issue the order.

The court thereupon declined to issue an FRO and dismissed the TRO.

The court then addressed defendant, stating:

[Court]: You understand that when you see her around in the fall, you're going to turn the other way. You're not to talk to her. You're not to look at her. You're not to do anything. Do you understand that?

[Defendant]: Yes, sir.

[Court]: Do you understand the break you got today?

[Defendant]: Yes, sir.

This appeal follows. Plaintiff contends the trial court erred in failing to find the need for an FRO and that she is entitled to an FRO as a matter of law. She argues that "the continuing probability of contacts between the [p]arties makes a finding of ongoing need perfunctory and self-evident especially considering that the [c]ourt felt the need to warn [defendant] about future contact." Plaintiff further asserts that "sexual assault with strangulation is such an egregious single act, that a victim should be entitled to an [FRO] as a matter of law in all but the most unique of circumstances."

We begin our analysis by canvassing some of the general legal principles that guide us, starting with an acknowledgment that the scope of our review is constrained by the deference we accord to Family Part judges in domestic violence cases. As a general matter, "findings by a trial court are binding on appeal when supported by adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428 (2015). "We accord substantial deference to Family Part judges, who routinely hear domestic violence cases and are 'specially trained to detect the difference between domestic violence and more ordinary differences that arise between couples.'" C.C. v. J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020) (quoting J.D. v. M.D.F., 207 N.J. 458, 482 (2011)). "[D]eference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). Accordingly, we will not disturb a trial court's factual findings unless "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

However, we do not accord deference to legal conclusions, such as interpretations of a statute, which we review de novo. See C.R. v. M.T. (C.R. II), 257 N.J. 126, 139 (2024); see also Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016) (noting appellate courts owe no special deference to a trial court's "interpretation of the law" (quoting D.W. v. R.W., 212 N.J. 232, 245 (2012))).

Although the PDVA is codified in chapter 25 of the New Jersey Code of Criminal Justice (penal code), N.J.S.A. 2C:1-1 to 2C:104-9, it does not impose punishment but rather authorizes civil complaints brought by private plaintiffs applying the preponderance-of-the-evidence standard of proof, as distinct from criminal actions brought by prosecutors applying the much higher proof-beyond-a-reasonable-doubt standard. Given its placement in the penal code, the PDVA incorporates by reference certain other provisions of Title 2C. The listed predicate acts set forth in N.J.S.A. 2C:25-19(a), for example, are indictable crimes and disorderly and petty disorderly persons offenses defined in subtitle 2 (chapters 11-41) of the penal code. These substantive offenses, in turn, are assigned degree classifications for sentencing purposes, grading their comparative seriousness. See N.J.S.A. 2C:43-1. Some crimes designated as domestic violence predicate acts, moreover, may be subject to special sentencing enhancements, such as the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. These criminal sentencing features indicate the Legislature's rating of the relative seriousness of the offense conduct, which, as we explain, is a relevant consideration in PDVA civil actions, not just criminal prosecutions.

The PDVA explicitly states that one of its core purposes is to "assure the victims of domestic violence the maximum protection from abuse the law can provide." G.M. v. C.V., 453 N.J. Super. 1, 12 (App. Div. 2018) (quoting State v. Brown, 394 N.J. Super. 492, 504 (App. Div. 2007) (quoting N.J.S.A. 2C:25-18)). Stated another way, "[o]ur law is particularly solicitous of victims of domestic violence," M.D.F., 207 N.J. at 473 (alteration in original) (quoting State v. Hoffman, 149 N.J. 564, 584 (1997)), and courts will "liberally construe[] [the PDVA] to achieve its salutary purposes." Cesare, 154 N.J. at 400.

The PDVA applies to adults who have some form of domestic relationship as specified in the statute. See N.J.S.A. 2C:25-19. It defines a "[v]ictim of domestic violence" to include, for example, "any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship." N.J.S.A. 2C:25-19(d) (emphasis added). The emphasized text makes clear that the authority to issue an FRO does not depend on whether the dating relationship is ongoing. In other words, the plain language of the PDVA provides unequivocally that a court may issue an FRO notwithstanding that the dating relationship has since been irrevocably terminated. Here, defendant does not dispute that he and plaintiff were in a dating relationship that started before the predicate act of domestic violence.

When determining whether to grant an FRO pursuant to the PDVA, the trial court must make two sequential determinations. See Silver, 387 N.J. Super. at 125-27. First, the court must determine whether the plaintiff has proved by a preponderance of the evidence that "one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125. This entails finding that the plaintiff has proved all of the elements of the applicable offense(s) as defined in the penal code. This stage is roughly analogous to the guilt phase of a criminal proceeding.

If the plaintiff has satisfied the first prong, the court must next determine whether an FRO is necessary to protect the plaintiff from "immediate danger or to prevent further abuse." Id. at 127. In other words, the second inquiry under the Silver analytical paradigm "is whether the court should enter a restraining order that provides protection for the victim." Id. at 126. This second stage is roughly analogous to the penalty/sentencing phase of a criminal prosecution, although we do not mean to suggest that an FRO under the PDVA is punitive as distinct from remedial and preventative.

We emphasized in Silver that "the commission of any one of the predicate acts enumerated in [the PDVA] does not automatically warrant issuance of a domestic violence restraining order." Id. at 124. In R.G. v. R.G., we reaffirmed that principle, explaining that "the trial court must find a predicate offense and also find a basis, upon the history of the parties' relationship, to conclude the safety of the victim is threatened and a restraining order is necessary to prevent further danger to person or property." 449 N.J. Super. 208, 224 (App. Div. 2017); see also Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995) ("[T]he drafters of the law did not intend that the commission of any one of these acts automatically would warrant the issuance of a domestic violence order."). In other words, with respect to the decision on whether to issue an FRO, there is no counterpart in the PDVA to the "mandatory" or even "presumptive" prison sentences that are sometimes prescribed under the criminal provisions of the penal code. See e.g., N.J.S.A. 2C:44-1(d) (establishing a strict presumption of imprisonment when a person is convicted of a first or second-degree crime or certain other offenses). However, the PDVA does generally provide that once the decision is made to enter an FRO, that order must include relief to prevent further abuse. N.J.S.A. 2C:25-29(b).

We explained in Silver:

Although this second determination—whether a domestic violence restraining order should be issued—is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse. See N.J.S.A. 2C:25-29(b) (stating that "[i]n proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse") ([e]mphasis added).

[387 N.J. Super. at 127.]

The non-exhaustive⁷ list of relevant factors codified in N.J.S.A. 2C:25-29(a)(1) to -29(a)(7)⁸ are as follows:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the protection of the victim's safety;

(6) The existence of a verifiable order of protection from another jurisdiction; and

(7) Any pattern of coercive control against a person that in purpose or effect unreasonably interferes with, threatens, or exploits a person's liberty, freedom, bodily integrity, or human rights with the court specifically considering evidence of the need for protection from immediate danger or the prevention of further abuse.

The second step under Silver also "requires the conduct must be imbued by a desire to abuse or control the victim." R.G., 449 N.J. Super. at 228 (citing Silver, 387 N.J. Super. at 126-27). Coercive control, we emphasize, is a common if not ubiquitous characteristic of domestic violence and often signals the need for the protection afforded to victims under the PDVA. See Silver, 387 N.J. Super. at 128 (describing a "pattern of abusive and controlling behavior" as a "classic characteristic of domestic violence") (citing Cesare, 154 N.J. at 397-98).

We find further general guidance on how to apply the second step of the Silver paradigm by looking at the Sexual Assault Survivor Protection Act of 2015 (SASPA), N.J.S.A. 2C:14-13 to -21—a complementary statute that authorizes civil restraining orders in cases involving sexual crimes where there is no domestic relationship between the sexual offender and the victim. In C.R. II, our Supreme Court recently explained that SASPA allows survivors of sexual assault who are ineligible for a restraining order under the PDVA to seek a temporary protective order (TPO) and final protective order (FPO). 257 N.J. at 140. The Court offered the example of a victim who is subjected to sexual violence by someone with whom they have "less than a dating relationship," and who is thus ineligible for an FRO under the PDVA. Id. at 141 (quoting R.L.U. v. J.P., 457 N.J. Super. 129, 135 (App. Div. 2018)). The Court noted that SASPA was intended to "fill this void." Ibid. (quoting R.L.U., 457 N.J. Super. at 135).

The Court further noted that "[a]s a complement to the PDVA, SASPA mirrors the PDVA in certain respects, and diverges from it in others." Id. at 143. The Court then focused on one of the differences between the two statutes, highlighting that SASPA lists only two factors that the trial court must consider, whereas the PDVA codifies a non-exhaustive list of (now) seven factors that must be considered.⁹ Id. at 143-44. More specifically, the Court focused on the provision in SASPA that requires a trial court to consider "the possibility of future risk to the safety or well-being of the alleged victim," N.J.S.A. 2C:14-16(a)(2). The Court compared that statutory language with the factor in the PDVA that requires courts to consider "[t]he existence of immediate danger to person or property," N.J.S.A. 2C:25-29(a)(2). Id. at 143-44.¹⁰

Construing the formulation found in SASPA, the Court explained that "[t]he plain language of factor two thus requires a court to consider whether there is a chance that a survivor may be exposed to physical danger, risk, or injury, or may be exposed to something emotionally unwelcome or unpleasant that could make them feel uncomfortable, unhealthy, or unhappy." Id. at 146. The Court characterized the SASPA formulation as a "permissive" and "lenient" standard that is "easily satisfied." Id. at 145, 146.

Of note for purposes of the matter before us, the Court compared the text of the second SASPA factor with the text of the second FRO factor in the PDVA, reasoning that the Legislature's decision to use different formulations was deliberate and meaningful. Id. at 147.

We do not read C.R. II to suggest that the PDVA's second factor is onerous, only that it is different from and not as easily satisfied as the corresponding SASPA factor.¹¹ While described by the C.R. II Court as complementary, id. at 143, there are structural differences between the two statutes that might explain why the Legislature in SASPA did not copy the PDVA FRO factors that do not presuppose a domestic relationship. See note 9. For example, the PDVA covers a much wider range of offenses than SASPA; it is by no means limited to sexual offenses. It also bears noting that while some PDVA predicate acts constitute very serious crimes, including homicide, kidnapping, and aggravated sexual assault, one of the most commonly cited predicate acts, harassment, is generally graded as a petty disorderly persons offense. See N.J.S.A. 2C:33-4. As we explain, we believe that as a general proposition, to ensure proportionality in effectuating the protective goals of the PDVA, the greater the level of violence that is proven, the easier it is for a plaintiff to satisfy the second prong of the Silver analytical paradigm. Indeed, that is exactly what the perfunctory-and-self-evident principle accomplishes.

Accordingly, although the proofs needed for an FRO under the PDVA may be more rigorous than the proofs needed for an FPO under SASPA, we do not believe that the PDVA sets a high bar for domestic violence victims who have already proved by a preponderance of the evidence that they were subjected to egregious physical violence during a dating relationship. To suggest otherwise would conflict with the long-established perfunctory-and-self-evident principle, let alone the PDVA's explicit policy statement that the Legislature intended to provide domestic violence victims the "maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18.

We next apply the foregoing legal principles to the present facts. We begin by reconciling two PDVA features that can lead to different outcomes: the notion on the one hand that courts must consider whether there was a pattern of domestic violence or whether instead the predicate act was isolated and aberrational, and, on the other hand, the notion that some predicate acts by their inherent nature warrant an FRO even in the absence of past domestic violence involving the parties.

As a general matter, the absence of a pattern of past domestic violence weighs against the need for an FRO. The case law nonetheless makes clear that while past domestic violence is a relevant factor, indeed one that is explicitly codified in the PDVA, it is not a material element that must be proved in all cases as a categorical prerequisite to an FRO. In Cesare, our Supreme Court explained that "[a]lthough a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis." 154 N.J. at 402 (emphasis in original). The Court added that "one sufficiently egregious" action may constitute domestic violence under the PDVA. Ibid.

In Silver, we embraced and expounded upon those principles, applying them not just to the decision on whether a predicate act of domestic violence was committed, but also to the secondary question of whether an FRO is needed. We explained,

Although it is clear that a pattern of abusive and controlling behavior is a classic characteristic of domestic violence, see [Cesare,154 N.J. at 397-98], the need for an order of protection upon the commission of a predicate act of "domestic violence," as specifically defined in [the PDVA], may arise even in the absence of such a pattern where there is "one sufficiently egregious action[.]" Id. at 402.

[387 N.J. Super. at 128 (third alteration in original).]

See also J.A.H, 463 N.J. Super. at 434 (recognizing that a history of domestic violence is only "one of six non-exhaustive factors judges must consider when evaluating whether an FRO is necessary for a plaintiff's protection").

The recognition that a single "sufficiently egregious action" can suffice to grant an FRO is an important feature of our domestic violence jurisprudence—one designed to ensure that victims of physical violence receive the maximum protection the PDVA can provide. See N.J.S.A. 2C:25-18. In A.M.C. v. P.B., we applied this precept, explaining that "[w]hen the predicate act is an offense that inherently involves the use of physical force and violence, the decision to issue an FRO 'is most often perfunctory and self-evident.'" 447 N.J. Super. 402, 417 (App. Div. 2016) (quoting Silver, 387 N.J. Super. at 127). See also S.K. v. J.H., 426 N.J. Super. 230, 233 (App. Div. 2012) (commenting that an attack that left the victim with severe bruises, fractures in her orbital bone and jaw, cuts requiring stitches, and a lung injury was "a predicate act of such severity and viciousness that the need for a restraining order . . . was 'perfunctory and self-evident'" (quoting Silver, 387 N.J. Super. at 127)).

The "one sufficiently egregious action" principle helps to ensure a proportionate response to each domestic violence situation, recognizing that the same basic remedy—an FRO with all of its potentially "severe" consequences, C.R. II, 257 N.J. at 144—applies to a wide spectrum of unlawful conduct, ranging from petty disorderly persons offenses to first-degree crimes. While such a remedy may be entirely appropriate, indeed necessary, for a single offense involving serious physical violence like the second-degree NERA crime in this case, it might be inappropriate for a less serious predicate act, such as one graded under the penal code as a petty disorderly persons offense, absent evidence that the present predicate act was part of a pattern of repetitive conduct. In cases involving less serious predicate acts, in other words, it is the pattern of domestic violence, not its latest iteration viewed in isolation, that may justify an FRO with all its attendant consequences.

That said, neither the "one sufficiently egregious action" principle nor the "perfunctory and self-evident" principle supplants the need to consider the statutory factors set forth in N.J.S.A. 2C:25-29(a)(1) to (7). The point, rather, is that the non-exhaustive FRO factors enumerated in N.J.S.A. 2C:25-29(a)(1) to (7) should be viewed in conjunction with these principles, which apply when the predicate act involves physical force and violence, and especially when that force and violence is egregious.

To be clear, we do not mean to suggest a bright-line, categorical rule whereby a finding that a defendant committed an especially serious predicate crime automatically requires the issuance of an FRO. As we have noted, there are no "mandatory" FROs under the PDVA, in stark contrast to the myriad of mandatory sentences that must be imposed upon conviction under the criminal provisions of the penal code. Furthermore, in assessing the risk of future domestic violence between the parties, courts must make a case-sensitive assessment of the likelihood that the parties will have future interactions that might provide an opportunity or incentive for further victimization.

Stated another way, the egregiousness of the predicate act of physical domestic violence does not shift the ultimate burden of persuasion regarding the decision on whether to issue an FRO but rather is an important consideration in deciding whether a plaintiff has satisfied their burden under the second prong of the Silver two-part paradigm. The greater the level of egregiousness, the greater the need to invoke the protections of an FRO.

Applying these principles to the present facts, we conclude the absence of any prior history of domestic violence between the parties has little bearing on the victim's need for protection, considering that the dating relationship that establishes jurisdiction under the PDVA began only shortly before the commission of the predicate act. The fact that one of the earliest interactions between parties in a new dating relationship takes the form of a forcible rape hardly militates against the need for a stay-away/no-contact order when, as here, there are reasons to believe that there may be future encounters between the parties.¹²

We appreciate that as a general matter, past acts of domestic violence can provide a benchmark for determining, for example, whether the level of discord in a tumultuous relationship is escalating. Past acts, in other words, may not only indicate a likelihood that domestic violence will recur but also reveal a trend that foreshadows even more serious violence unless the pattern is interrupted by an FRO. But here, there is no need for any such benchmark from which to predict an escalation, for example, from verbal abuse or property damage to a physical attack, because the present predicate act already involves physical and sexual violence.

It would make little sense, moreover, to interpret the PDVA so strictly as to deny protection to plaintiff on the present facts considering that she would almost certainly be entitled to a SASPA FPO if the same egregious sexual assault/strangulation happened to occur at the parties' first meeting, if that was found to be "less than a dating relationship." See C.R. II, 257 N.J. at 141 (quoting R.L.U., 457 N.J. Super. at 135). Here, the sexual assault victim is not less vulnerable to further abuse because there happened to be a brief domestic relationship between the parties that provides jurisdiction under the PDVA but forecloses relief under SASPA.

Finally, we add that when the sexual abuse is especially egregious or "despicable," to borrow the trial court's characterization, the perfunctory-and-self-evident principle suggests that if a trial court decides that an FRO is not needed to protect the victim from further abuse, it should be expected to articulate sound reasons to support its conclusion. See R. 1:7-4; Curtis v. Finneran, 83 N.J. 563, 570 (1980) ("Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions."). It is not enough, in other words, for a court simply to state in a conclusory fashion that the plaintiff has not shown the need for an FRO, or that the risk of further abuse is not immediate.

As we have noted, when applying the perfunctory-and-self-evident principle to the facts of specific cases, we must consider the severity of the predicate act, since the more egregious the unlawful conduct, the greater the need for protection from further abuse. At the risk of stating the obvious, forcible sexual assault in violation of N.J.S.A. 2C:14-2(c)(1)—violent conduct graded as a second-degree crime¹³ and subject to enhanced punishment under NERA—is an especially egregious predicate act, amply sufficient to justify an FRO even in the absence of a pattern of past domestic violence. See Silver, 387 N.J. Super. at 128.

Aside from the physical trauma and emotional scarring that forcible sexual assault causes, the acquaintance rape in this case hearkens to stone age attitudes regarding the subjugation of women as sex objects who were expected if not obliged to satisfy a man's sexual desires. Acquaintance rape, in other words, is an obvious if not extreme example of the kind of coercive control the PDVA does not tolerate. See R.G., 449 N.J. Super. at 228 (referring to misconduct "imbued by a desire to abuse or control the victim" (citing Silver, 387 N.J. Super. at 126-27)). The predicate act committed in this case thus falls squarely within the heartland of the type of control and domination the PDVA is designed to remediate and restrain.

In M.T.S., our Supreme Court traced the history of common law sexual assault laws, culminating in statutory reforms in which New Jersey played an important if not groundbreaking role. Justice Handler, writing for a unanimous Court, forcefully explained,

Today the law of sexual assault is indispensable to the system of legal rules that assures each of us the right to decide who may touch our bodies, when, and under what circumstances. The decision to engage in sexual relations with another person is one of the most private and intimate decisions a person can make. Each person has the right not only to decide whether to engage in sexual contact with another, but also to control the circumstances and character of that contact. No one, neither a spouse, nor a friend, nor an acquaintance, nor a stranger, has the right or the privilege to force sexual contact.

[129 N.J. at 446.]

These criminal law reforms have a direct bearing on civil actions brought under the PDVA, which, as we have noted, is codified in the penal code and incorporates the code's substantive and definitional features. It bears noting that there was a time before the adoption of the penal code reforms when forcing a person in a domestic relationship to submit to sexual intercourse was socially acceptable, or at least beyond the reach of the law. For lack of a better characterization, the exercise of such control and domination by a man over his intimate partner was treated essentially as if it were a form of mere contretemps, not rising to the level of domestic violence. Cf. Silver, 387 N.J. Super. at 125 (explaining the PDVA is meant to address "matters of consequence" as distinguished from "ordinary domestic contretemps").

Relatedly, as explained in M.T.S., the law once instructed police, judges, and juries to be skeptical of rape victims and hostile to their claims. See M.T.S., 129 N.J. at 429-39. See also State v. Chambers, 252 N.J. 561, 585 (2023) (noting that the Sexual Assault Victim's Bill of Rights (SAVBR), N.J.S.A. 52:4B-60.2, explains that "victims of sexual violence in particular often face circumstances where they may be blamed for the crime, assumed to be fabricating the crime, or taken less seriously than their injuries warrant" (quoting N.J.S.A. 52:4B-60.2(b))). Those attitudes and policies emerged and flourished in an extended era when men dominated the legal profession and set the rules for women to follow when sexually assaulted. The Court in M.T.S. emphasized that the penal code's reforms jettisoned such hoary principles as the need for victims to make a "hue and cry" or to show they resisted to the utmost before their allegations of sexual abuse would be countenanced. See M.T.S., 129 N.J. at 429-47. The reforms also rejected the notion that a man could not be guilty of raping his own wife. Id. at 438, 441. The adoption of the sexual assault provisions of the penal code was a watershed event, transforming our criminal rape laws and bringing them into the modern era. Especially considering the enactment of complementary statutes such as SAVBR and SASPA, we are convinced that our civil domestic violence laws, not just our substantive criminal laws, are no longer haunted by the ghosts of such archaic social attitudes and discredited legal policies.

Aside from the egregiousness inherent in nonconsensual sexual penetration, the assaultive conduct in this case also involved strangulation. That form of physical violence likewise signals the kind of coercive control that the PDVA is designed to forestall, even when it does not rise to the level of attempted murder or render the victim unconscious.¹⁴

Strangulation is a distinctive form of violence—one that can have not only severe physical consequences but severe psychological consequences as well. In People v. Reid, a criminal case charging domestic violence under California law, the court cited to the legislative history of a California bill for the proposition that:

Prior to the research and recent focus on strangulation training programs and specialized intervention processes, this lethal violence was often minimized. In many cases, the lack of physical evidence caused the criminal justice system to treat "choking" cases as minor incidents, much like a slap to the face where only redness might appear. Today, based on the involvement of the medical profession, specialized training for police and prosecutors, and ongoing research, strangulation has become a focus area for policy makers and professionals working to reduce intimate partner violence and sexual assault.

[25 Cal. Rptr. 3d 820, 827-28 (Cal. Ct. App. 2024).]

In Commonwealth v. Moore, the Supreme Court of Kentucky recently noted in a similar vein,

Strangulation is one of the most accurate predictors for the subsequent homicide of victims of domestic violence. Strangulation is the calling card of a serial rapist. The problem of intimate partner violence (IPV) is multifaceted, but experts agree there are few offenses as indicative of an intent to control, harm, and/or kill than strangulation. In fact, if a person is strangled even one time, the victim's chance of being killed by their abuser is increased by 750%.

[709 S.W. 3d 241, 258 (2025) (quoting Office of the Kentucky Attorney General, Responding to Strangulation in Kentucky: Guidelines for Prosecutors, Law Enforcement, Health Care Providers, and Victim Advocates 5 (2025)).]

See also Supreme Court of Ohio, Domestic Violence & Allocation of Parental Rights and Responsibilities: Court Guide 2-3 (rev. 2023) (including strangulation in a list of "Lethality or Risk Factors" for purposes of allocating parental rights and responsibilities).

We note that the New Jersey Attorney General has also issued a statewide law enforcement directive instructing police and prosecutors on how to respond to this form of violence. See Off. of the Att'y Gen., Law Enf't Directive No. 2023-03, Directive Establishing Breathing/Blood flow Restriction Event: Advocacy, Treatment, Help, and Empowerment (BREATHE) Team (Aug. 21, 2023). The Directive highlights the dangers of strangling and notes the predictive value of strangulation in assessing the risk of future violence. Id. at 1.

When an assailant resorts to strangulation of a domestic partner, their immediate purpose may not be to kill but rather to assert physical dominance. In those instances, the actor is sending the message that they could kill the victim if they wanted to simply by tightening and maintaining their grip, but have chosen instead to release the stranglehold as an assertion of raw power—a nonverbal statement designed to foster fear and compel subservience. That is a quintessential example of the kind of coercive control that lies at the heart of the domestic violence problem, and the kind of conduct that the PDVA is intended to restrain.¹⁵

It bears emphasis that in 2017, the Legislature amended the penal code to create a new variant of aggravated assault that deals specifically with strangulation of a domestic violence victim. L. 2017, c. 240, § 1. N.J.S.A. 2C:12-1(b)(13) provides that a person is guilty of aggravated assault if they

[k]nowingly or, under circumstances manifesting extreme indifference to the value of human life, recklessly obstructs the breathing or blood circulation of a person who, with respect to the actor, meets the definition of a victim of domestic violence, as defined in [N.J.S.A. 25-19(d)], by applying pressure on the throat or neck or blocking the nose or mouth of such person, thereby causing or attempting to cause bodily injury.

In 2021, the Legislature elevated this offense to a second-degree crime. L. 2021, c. 172, § 1. As a result, under the revised penal code, aggravated assault by strangulation as defined in N.J.S.A. 2C:12-1(b)(13) is a second-degree crime notwithstanding that the victim did not suffer significant bodily injury. See note 14.

The strangulation type of aggravated assault constitutes a predicate act under the PDVA, which, as we have noted, incorporates by reference the definitions and elements of the acts enumerated in N.J.S.A. 2C:25-19(a), including any type of "assault" under N.J.S.A. 2C:12-2. See N.J.S.A. 2C:25-19(a)(2). Although strangulation is not included in the non-exhaustive list of FRO factors enumerated in N.J.S.A. 2C:25-29(a)(1) to -29(a)(7), in view of the sentencing upgrade for this form of aggravated assault, the predictive value of strangulation, and the animating principle that the PDVA is intended to provide domestic violence victims maximum protection, we hold that strangulation is a highly relevant circumstance bearing on a victim's need for an FRO.¹⁶ Relatedly, we hold that while there are no automatic FROs under the PDVA framework, strangulation by itself can be a "sufficiently egregious action" so as to invoke the perfunctory-and-self-evident principle. See Silver, 387 N.J. Super. at 128. We add that in this case, the strangulation co-occurred with nonconsensual sexual penetration, amplifying immeasurably the overall level of physical force and egregiousness of the manner in which the predicate act was committed.

The second part of the Silver test, addressing the case-sensitive need for an FRO, necessarily entails an assessment of the risk of future harm to the victim. Unlike Criminal Part judges hearing pretrial detention hearings under the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, who are provided with a detailed Public Safety Assessment that measures the risk of failure-to-appear and new criminal activity, Family Part judges hearing domestic violence cases are not provided with a validated risk assessment tool or an evidence-based decision-making framework to inform their determination of the risk of further abuse or the need for court-ordered conditions such as a stay away/no contact order.¹⁷

Here, the trial court noted that defendant had "predatory tendencies." The court also found that plaintiff was "scared" and that her fear of defendant was "legitimate." See J.D. v. A.M.W., 475 N.J. Super. 306, 314 (App. Div. 2023) (holding that plaintiff's "fear of defendant and the prior history of domestic violence" were enough to satisfy the second Silver prong); P.B., 447 N.J. Super. at 409, 417 (holding an FRO was required where a physical assault left plaintiff "emotionally shaken" and caused her to fear further abuse). Cf. D.M.R. v. M.K.G., 467 N.J. Super. 308, 324 (App. Div. 2021) (reversing entry of an FRO in part because "[p]laintiff did not express fear of defendant" and "the judge stated that he did not know whether plaintiff was afraid"). The court nonetheless concluded that plaintiff had not demonstrated that an FRO was necessary to protect her from "immediate danger." We disagree.

The trial court's conclusion that an FRO was not needed to protect plaintiff from immediate danger may reflect a misunderstanding of what must be proved to justify an FRO. As we have noted, the trial court in its oral ruling stated, "I need to see immediate danger." There is another route, however, for establishing the second prong of the Silver test.

It is certainly true that one of the statutory FRO factors is "[t]he existence of immediate danger to person or property." N.J.S.A. 2C:25-29(a)(2). We stress, however, that this is not a categorical prerequisite to an FRO but rather a relevant factor, one of seven bearing on the second part of the Silver test. Cf. J.A.H, 463 N.J. Super. at 434 (recognizing that a history of domestic violence is only "one of six [now seven] non-exhaustive factors judges must consider when evaluating whether an FRO is necessary for a plaintiff's protection").

Furthermore, Silver explains that if the plaintiff satisfies the first prong by proving that a predicate act was committed, the court must next determine whether an FRO is necessary to protect the plaintiff from "immediate danger or to prevent further abuse." 387 N.J. Super. at 127 (emphasis added). See also N.J.S.A. 2C:25-29(a)(7) (stating with respect to the pattern of coercive control FRO factor that the trial court must "specifically consider[] evidence of the need for protection from immediate danger or the prevention of further abuse" (emphasis added)). We presume the disjunctive formulation in both Silver and the recent statutory amendment was intentional. Under the Silver paradigm, in other words, the need to prevent "further abuse" can suffice to justify an FRO even if the victim is not facing "immediate danger."

Relatedly, the goal of a permanent¹⁸ FRO is to ensure not just immediate but long-term protection. The PDVA, in other words, does not require proof of a threat so imminent that it would be expected to come to fruition instantaneously. Cf. Cesare, 154 N.J. at 402 (specifically addressing the predicate act of terroristic threats, which is committed when a person "threatens to kill another with purpose to put [them] in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out" (quoting N.J.S.A. 2C:12-3(b))).

As we noted in Section VI, studies show that strangulation has predictive value in gauging the risk of future harm to a victim. That circumstance alone, in our view, establishes an adequate risk of further abuse in this case.

Importantly, moreover, the "further abuse" contemplated in Silver need not be a carbon copy of the predicate act but might include other future interactions that would be harmful to a victim who has already been scarred and made vulnerable,¹⁹ in this case, by egregious sexual violence. At the risk of stating the obvious, an FRO would not be limited to enjoining rape but would include other instructions to protect the victim's wellbeing. See N.J.S.A. 2C:25-29(b) ("In proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse."). Here, plaintiff sought an FRO that would, in part, prohibit defendant "from having any oral, written, personal, electronic, or other form of contact or communication with" her. Such contact, if made deliberately, would itself constitute further abuse. See N.J.S.A. 2C:25-19(a)(17) (making contempt of a PDVA order a predicate act of domestic violence).

Aside from citing the lack of any previous history of domestic violence, the only findings made by the trial court that might support its conclusion that there was no immediate danger to defendant are (1) that "[defendant] understands that that's not the kind of conduct of how a man should treat a woman" and (2) the parties live in different towns. We address each of these circumstances in turn.

As to the trial court's comment that defendant now "understands that that's not the kind of conduct of how a man should treat a woman," the court appears to have been referring to the fact that defendant apologized to plaintiff for his conduct before the sexual assault, and while driving her home after the assault, acknowledged that "he felt he did something bad." We recognize that remorse, if genuine, might conceivably be a relevant consideration in predicting future behavior and the likelihood of recidivism, cf. N.J.S.A. 2C:44-1(b)(9) (establishing as a sentencing mitigating factor that "[t]he character and attitude of the defendant indicate that the defendant is unlikely to commit another offense"). Here, however, we are not persuaded that defendant's purported apology reasonably suggests that he has since come to appreciate how a man should "treat a woman," to borrow the trial court's phrasing. Rather, defendant's post-assault apology is as likely to have been an attempt to convince plaintiff not to press criminal charges or to seek a PDVA restraining order.²⁰

We add that defendant had also expressed remorse to plaintiff after their second date—a circumstance that did not dissuade him from taking sexual advantage of plaintiff on the third and fateful date. And in any event, we presume that defendant knew all along that sexual penetration achieved by overpowering a protesting victim is unlawful. In these circumstances, any remorse defendant may have expressed to the victim, or tacitly implied to the court when he acknowledged he had received a "break," is not a legitimate basis to deny an FRO, especially given the court's concurrent observation that defendant has "predatory tendencies."

The trial court's finding that the parties live in different towns, while supported by the record, is by no means conclusive on the likelihood that the parties will interact in the future considering other facts in the record. The trial court acknowledged that both parties would be attending the same college in the fall. And while the court did not make explicit findings, plaintiff, whom the court found to be credible, presented undisputed evidence that defendant knows where she works and where she lives, having picked her up and dropped her off at her home. See J.A.H., 463 N.J. Super. at 436 (noting that the defendant's knowledge of plaintiff's address "provided another reason substantiating [the] plaintiff's fear of [the] defendant"). Plaintiff likewise testified that she and defendant have similar social circles and that she had already missed several softball games "because [she] knew [defendant] was going to be there and . . . didn't feel safe."

But lest there be any doubt about whether plaintiff adequately established the risk of future contact and further abuse, the trial court concluded its oral decision by addressing defendant directly, telling him, "[y]ou understand that when you see her around in the fall, you're going to turn the other way" (emphasis added). As we have noted, this colloquy contradicts the court's conclusion that an FRO was not necessary.

We find instructive guidance on this point in our decision in A.M.W. In that case, the trial court declined to enter an FRO but directed the parties to maintain twenty yards' distance between them at their son's sporting events going forward. 475 N.J. Super. at 312. We reversed and remanded for entry of an FRO, specifically highlighting this instruction by the trial court as evidence of the ongoing need for a restraining order. Id. at 315. Here, too, the trial court's remark further indicates that an FRO was necessary.

We next consider the implications of the trial court's failure in its oral ruling to explicitly consider the "best interests of the victim," which is one of the enumerated statutory factors. N.J.S.A. 2C:25-29(a)(4). Although, as we have noted repeatedly, the statutory FRO factors are not required elements, they must be considered. See C.R. II, 257 N.J. at 143-44 (noting that under the PDVA, courts "shall" consider each statutory factor (quoting N.J.S.A. 2C:25-29(a))); Silver, 387 N.J. Super. at 127 (holding that the FRO determination should be made "upon an evaluation of the factors set forth in [the PDVA]"). We deem the absence of any explicit consideration of plaintiff's best interests to be a serious deficiency in the trial court's rationale because on these facts, plaintiff’s best interests militate strongly in favor of granting her request for an FRO.

We reiterate and stress that "[o]ur law is particularly solicitous of victims of domestic violence." M.D.F., 207 N.J. at 473 (alteration in original) (quoting Hoffman, 149 N.J. at 584). We add that Article I, Paragraph 22 of the New Jersey Constitution expressly provides that "[a] victim of a crime²¹ . . . shall be entitled to those rights and remedies as may be provided by the Legislature." Beyond the rights granted to all crime victims, New Jersey law confers additional rights upon victims of sexual assaults. See, e.g., SAVBR, N.J.S.A. 52:4B-60.2; State v. Ramirez, 252 N.J. 277, 299-303 (2022) (detailing the legislatively established rights for sexual assault victims). See also Chambers, 252 N.J. at 584 ("Our courts have recognized that, in sexual assault cases, 'the wellbeing of . . . victims demands heightened protection' because there is a 'likelihood of emotional trauma and mental distress.'" (quoting D.R.H., 127 N.J. at 259)).

Considering these basic legislative findings and principles and applying them in concert with the PDVA's best-interests-of-the-victim factor, we are satisfied that plaintiff has a protectable interest in attending college without having to fear future contact with the man who exploited their truncated dating relationship and forcibly penetrated her against her will. See Hoffman, 149 N.J. at 584 ("At its core, the [PDVA] effectuates the notion that the victim of domestic violence is entitled to be left alone. To be left alone is, in essence, the basic protection the law seeks to assure these victims."). That is especially so considering defendant's persistence in wanting to have sexual intercourse with plaintiff and the court's acknowledgment that defendant has predatory tendencies.

We are not suggesting that defendant should be precluded from attending the college of his choice. Rather, the point is that plaintiff has the right in these circumstances to know that when she encounters defendant at school or while socializing with friends, she will be protected by a formal FRO and all associated enforcement rights available under the PDVA and not just by the informal scolding the judge gave to defendant at the end of the hearing.

Finally, we would be remiss if we did not comment on the trial court's concluding remark to defendant, announced in the presence of the victim: "[d]o you understand the break you got today?" That comment is troubling if for no other reason than it might lead plaintiff to believe that the court's decision was based on defendant's best interests, rather than hers. Aside from disregarding the best-interests-of-the-victim factor and the PDVA's overarching protective purpose, the court's final remark falls short of treating a sexual assault victim with fairness, compassion and respect. See N.J. Const. art. I, ¶ 22.

We appreciate the reality that some domestic violence defendants do indeed get a windfall benefit when, for example, a plaintiff exercises their prerogative to withdraw their FRO complaint.²² But it is not a court's prerogative to extend a "break," either in deciding whether a predicate act of domestic violence was proven or whether to grant the plaintiff's request for an FRO. If the facts as found by the trial court warrant an FRO applying the burden of persuasion, standard of proof, and other governing legal principles, an FRO should be issued consistent with the foundational principle that the PDVA is intended "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18; G.M., 453 N.J. Super. at 12. If, in contrast, the facts as found by the trial court do not establish the grounds or need for an FRO, meaning that the plaintiff has not carried their burden of persuasion under the PDVA, the application should be denied and the PDVA complaint dismissed. Stated another way, while we extend substantial deference to Family Part judges in deciding domestic violence disputes, that discretion does not include the authority to extend a break or favor to either party.

In this instance, once the trial court made its credibility findings, credited plaintiff's testimony, found that defendant committed forcible acquaintance rape and strangled the victim, and acknowledged the parties might run into each other at school, the decision on whether to issue an FRO became perfunctory and the need for the protection of an FRO self-evident.

We therefore reverse and remand for the court to enter an FRO. We do not retain jurisdiction.

We conclude by emphasizing that in describing the disturbing facts in this case, we do not mean to imply that physical violence less severe than the harm inflicted on plaintiff would not be "sufficiently egregious" to invoke the perfunctory-and-self-evident principle. The key point is that whenever the predicate act involves physical violence, the type and degree of that violence is a variable that must be accounted for under the second prong of the Silver test.

Reversed and remanded for proceedings consistent with this opinion.