Conviction reversed where defendant denied adjournment and not full discovery State v Lawrence

STATE v. LAWRENCE

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No. A-3194-11T4.

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STATE OF NEW JERSEY, Plaintiff-Respondent, v. GAIL LAWRENCE, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.
Submitted February 8, 2016.
Decided April 8, 2016.

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Hubcity Law Group, attorneys for appellant (Joseph A. Bahgat, on the briefs).
Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Suzanne E. Cevasco, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Lihotz, Fasciale and Higbee.

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Gail Lawrence appeals from her conviction of various motor vehicle offenses, arising from incidents occurring in May and June of 2010, following a trial de novo before the Law Division. Seeking a new trial, she asserts the municipal court judge, over her objection, erroneously proceeded to trial, ignoring claims the State had not complied with its discovery obligations and her request for counsel. Specifically, in the trial de novo, defendant asserted the State improperly withheld evidence including audio and video recordings from the police officer's dashboard cameras and maintained she was deprived her right to counsel under State v. Slattery, 239 N.J.Super. 534 (App. Div. 1990). The judge did not address the discovery challenge, concluded defendant was not denied her right to counsel, and found her guilty of all charges.

On appeal, defendant argues:

POINT I[DEFENDANT] DID NOT WAIVE HER RIGHT TO COUNSEL AS TO THE JULY 20, 2011 PROCEEDING AND IT WAS REVERSIBLE ERROR TO FORCE HER TO TRIAL WITHOUT HER ATTORNEY.1.1 The Transcript shows that the July 20, 2011 Proceeding was Non-Adversarial, and that its Ex-Parte Flavor was more Akin to a Grand Jury Presentment than a Trial.1.2 Docket Management Cannot Trump the Right to Counsel, thus, after Receiving Defense Counsel's Resignation the Trial Court Should have Inquired as to Whether [Defendant] Intended to Waive her Right to Counsel.POINT IIIF THIS COURT'S HOLDING IN STATE V. SLATTERY IS CONTROLLING, REVERSAL IS REQUIRED.2.1 The Trial Court's Admonition did not Satisfy the Second Prong of this Court's Holding in State v. Slattery.2.2 If a Defendant Has No Right to Change Her Mind About Waiving the Right to Counsel Prior to the Date of Trial, then the Second and Third Prongs of Slattery have no Meaning or Effect.2.3 By Refusing to Provide Discovery and Disclose Brady Material, the Trial Court Deprived [Defendant] of Her Right to a Fair and Impartial Proceeding.POINT IIITHE MUNICIPAL COURT JUDGE FAILED TO CONSIDER THE REQUIRED FACTORS AND ARTICULATE THE REASONS — REQUIRED UNDER STATE V. MORAN — FOR IMPOSING A LICENSE SUSPENSION.

We reverse and remand for a new trial in the municipal court, before a different municipal court judge.

These facts are found in the record. On May 3 and June 9, 2010, the Palisades Interstate Parkway Police Department (PIPPD) issued defendant sixteen complaint-summonses for various traffic and driver credential violations, as well as disorderly persons offenses. Although the record is very muddled and conflates this matter with a separate matter also under separate appeal, defendant's case was adjourned several times over a lengthy period. The record does not contain transcripts of all municipal court proceedings or explain who advanced each adjournment request.

The record does contain a portion of a transcript from May 4, 2011, during which defendant sought an adjournment to visit her elderly, ill father in Israel. The judge also explained the charges against her were "fairly serious" and suggested defendant secure counsel. She responded she wanted to represent herself. The judge explained defendant had an absolute right to represent herself, but stated "it was a bad idea" and emphasized she faced a possible jail term of six months. Defendant affirmed she had decided to represent herself and declined to apply for a public defender. The State also admitted it must fulfill its obligations to provide discovery.

In early June 2011, defendant secured counsel, who submitted a formal letter of representation and a written discovery request to the State. The municipal prosecutor responded by sending what appears to be a form letter dated June 30, 2011. The letter does not identify what discovery is enclosed or what will be provided under separate cover, except to state copies of the mobile and video recordings (MVR) were separately mailed. Trial was scheduled for July 20, 2011.

Before trial, counsel wrote to the municipal court judge withdrawing his representation. Counsel neither filed a motion nor obtained an order allowing him to be relieved. Defendant wrote to the municipal prosecutor on July 10, 2011, stating:

The presiding judge has allowed me to represent myself in the proceedings. Since that time I have obtained counsel, however, he later withdrew from the case. Therefore, I will now be representing myself in these proceedings. In the event that I later procure alternative counsel, it does not negate this present request [for discovery].

On the scheduled trial date, defendant appeared and informed the court her attorney had withdrawn. She further explained she requested discovery, which was not provided. It is not clear what discovery was sent to her former attorney or whether counsel gave defendant the discovery he received. In response, the judge stated:

So he doesn't get to resign. He doesn't get to just bow out of the case the night before the trial or a couple of days before the trial.So either you get him on the phone or get him here or you're going to have to try the case by yourself. But I'm not going to adjourn it. Because as far as I'm concerned, he's still in the case. I'm satisfied that all the discovery was sent to him per his request. And this case has been adjourned eight times. . . . It's just not going off.May 3[,] 2010, it's time to face the consequences. So I'm going to enter a not guilty plea. And I'm going to deny your request for an adjournment and for further discovery.

Defendant repeated her request for discovery, sought but not supplied by the State. The judge then responded:

There's procedure that has to be followed. And one of them is retaining an attorney. You did that. That discovery was sent to your attorney. I'm satisfied that that satisfies the State's obligation. I'm not satisfied that your attorney had the right to walk out and assume that he didn't have to be here today. That's his problem and your problem on for a special trial.You've got like about 40 charges against you. The oldest one is a year and two or three-months-old. I note on the calendar there are eight adjournments. It's time to face the music and hear the trials.

Defendant then was asked to enter her pleas to each charge, to which she pled "not guilty" to all of them. Defendant then requested to contact her attorney, presumably pursuant to the judge's prior instruction. The judge denied the request, stating:

THE COURT: It's not going to do — why, so he's going to come here now and we're going to wait for two hours? No, the attorney should have been called before and told to be here today. He's, he's got to know that. You can sue him for malpractice for not being here.DEFENDANT: But I also—THE COURT: No attorney has the right to walk out mid-trial— or just before the trial date. So —DEFENDANT: Sir, I'm —THE COURT: Have a seat. Call your first witness [prosecutor].DEFENDANT: Sir, Sir, —PROSECUTOR: Okay. Officer —DEFENDANT: — I do not want to have the trial today. It's not — I did —THE COURT: I know you don't. You don't want. . . to be tried for a year and a half. Just have a seat.

Trial proceeded with the State's witnesses. Defendant repeated her objections to conducting trial under the circumstances, which were overruled.

The officer who issued the May 3, 2010 summonses testified to many of defendant's traffic infractions, which were recorded on "audio and video"; however, no recordings were produced at trial. Defendant renewed her motion for discovery. When asked if she had any questions for the officer, defendant replied she was "objecting to the whole trial." The judge asked whether she wanted to call any witnesses or testify and defendant declined stating: "It's not a fair trial, sir. I'm not going to say anything."

The judge found defendant guilty of three counts of speeding and two counts of weaving as prohibited by municipal ordinances; three counts of careless driving, N.J.S.A. 39:4-97; failure to keep right, N.J.S.A. 39:4-82; and using a cell phone while driving, N.J.S.A. 39:4-97.3. The judge imposed consecutive sixty and ninety-day license suspensions and assessed fines and penalties.

Immediately thereafter, trial on the June 9, 2010 summonses was held. The judge reiterated defense counsel recently withdrew, without court approval. He denied defendant's request for an adjournment because the trial date had been set "well in advance," and the court was satisfied all the discovery was provided to defendant's counsel. The State's witness testified and defendant declined to cross-examine the officer, stating: "I'm just objecting to everything because I'm asking for adjournment to retain counsel. And you can do whatever you want to do, but it's not fair." When informed of her right to call witnesses, defendant responded she needed additional discovery.

The judge found defendant guilty of speeding in violation of a municipal ordinance; failure to keep right, N.J.S.A.39:4-82; using a cellular telephone while driving, N.J.S.A.29:4-97.3; following too closely, N.J.S.A. 39:4-89; and careless driving, N.J.S.A. 39:4-97. Fines and penalties were imposed and her license was suspended for ninety days.

According to the State's brief, defendant filed a timely notice of appeal to the Law Division, a copy of which is not in the record. Trial de novo review was held on January 23, 2012, and defendant was represented by counsel, who addressed whether she was improperly denied her right to an attorney and whether discovery was withheld. Counsel explained certain discovery requests, never considered by the municipal court judge, were necessary to show defendant was being targeted because she ended an intimate relationship with a fellow PIPPD officer. She maintained her ex-lover arranged for her to be stopped every time she drove on the Palisades Parkway, conduct for which he and others were disciplined. Defendant also sought the MVR videotapes, which purportedly were released, yet at some later point, the State admitted the MVR videotapes "were lost."

The Law Division judge never considered the discovery challenges. Regarding defendant's constitutional challenge, he found no flaw with the municipal court judge's decision to proceed with the trial in defendant's counsel's absence,1 stating "counter-veiling [sic] equities are that if you're coming to court for eight sessions. . . . [s]ometimes you have to get your ducks in a row." Without elaborating, the judge found defendant made a "deliberate attempt to continue to stall this matter" and stated delay can lead to witnesses being lost. The Law Division judge again found defendant guilty and imposed the same penalties as the municipal court judge. This appeal ensued.

In our review, we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J.Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)); see also R. 3:23-8(a)(2) (noting the Law Division's review is de novo on the record). "We are limited to determining whether the Law Division's de novo findings `could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Palma, 426 N.J.Super. 510, 514 (App. Div. 2012) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)), aff'd, 219 N.J. 584 (2014); see also State v. Rivera, 411 N.J.Super. 492, 497 (App. Div. 2010) ("Where a municipal court judgment has been appealed to Superior Court, we ordinarily review the Law Division judgment under a sufficiency of the evidence standard."). We review legal determinations de novo. State v. Pomianek, 221 N.J. 66, 80 (2015); State v. Adubato, 420 N.J.Super. 167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012).

We first review defendant's assertion she was denied her right to counsel. The State concedes "certainly this defendant had a right to counsel." See State v. Vanriper, 250 N.J.Super. 451, 457 (App. Div. 1991) ("Even in the context of the minor traffic violation charged, defendant had the right to retain an attorney if he chose to do so."); State v. Hermanns, 278 N.J.Super. 19, 22 (App. Div. 1994); R. 7:3-2(b). However, the State urges the Law Division properly concluded defendant knowingly and intelligently waived this right. Following our review of the record, we cannot conclude the Law Division judge fulfilled his obligations to undertake this required detailed analysis.

United States Supreme Court jurisprudence has solidified the principle that a non-indigent defendant's Sixth Amendment right to counsel encompasses the right to be represented by the counsel of his or her choosing because the Sixth Amendment "commands. . . the accused be defended by the counsel he [or she] believes to be best." United States v. Gonzalez-Lopez, 548 U.S. 140, 146, 126 S.Ct. 2557, 2562, 165 L. Ed. 2d 409, 418 (2006). New Jersey's Constitution equally recognizes this fundamental right to obtain counsel of his or her choosing. N.J. Const.art. I, ¶ 10; State v. Kates, 426 N.J.Super. 32, 43 (App. Div. 2012), aff'd, 216 N.J. 393 (2014). Thus,

[w]here the right to be assisted by counsel of one's choice is wrongly denied. . . it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is complete when the defendant is erroneously prevented from being represented by the lawyer he wants. . . .[Gonzalez-Lopez, supra, 548 U.S. at 148, 126 S. Ct. at 2563, 165 L. Ed. 2d at 419.]

Equally clear is a defendant may waive the right to counsel and proceed pro se. State v. Harris, 384 N.J.Super. 29, 57 (App. Div.), certif. denied, 188 N.J. 357 (2006). However, this "is not absolute" and "[a] defendant must `voluntarily and intelligently' elect to conduct his [or her] own defense." Ibid. (quoting Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 161-62, 120 S.Ct. 684, 691, 145 L. Ed. 2d 597, 607 (2000)). "Given the corollary loss of a defendant's right to counsel, `the courts indulge [in] every reasonable presumption against the waiver of this constitutional right [to counsel.]'" Id.at 58 (alterations in original) (quoting State v. Gallagher, 274 N.J.Super. 285, 295 (App. Div. 1994)).

Consideration of this issue requires a fact sensitive inquiry. See Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1884, 68 L. Ed. 2d 378, 385 (1981). The New Jersey Supreme Court has delineated these areas of inquiry, which a trial judge must explore when determining whether a defendant has knowingly and voluntarily waived the right to counsel:

The defendant should be advised of the: (1) dangers and disadvantages of self-representation; (2) nature of the charges against him [or her], the statutory defenses to those charges, and the possible range of punishment; (3) technical problems he [or she] may encounter in acting as his [or her] own counsel and of the risks he [or she] takes if the defense is unsuccessful; (4) necessity that he [or she] conduct his [or her] defense in accordance with the relevant rules of criminal procedure and evidence, that a lack of knowledge of the law may impair his ability to defend himself [or herself], and that his [or her] dual role as attorney and accused might hamper the effectiveness of his defense; and (5) difficulties in acting as his [or her] own counsel and the court should specifically advise the defendant that it would be unwise not to accept the assistance of counsel. [State v. Ortisi, 308 N.J.Super. 573, 587-88 (App. Div.) (citing State v. Crisafi, 128 N.J. 499, 510-12 (1992)), certif. denied, 156 N.J. 383 (1998).]

See also State v. Wiggins, 291 N.J.Super. 441, 451 (App. Div.), certif. denied, 146 N.J. 568 (1996) (holding waiver of right to counsel invalid because court made no attempt "to determine whether defendant understood the implications of waiving his right to an attorney"); State v. Thomas, 362 N.J.Super. 229, 236 (App. Div.) ("The judge must therefore consider the nature of the charges, including their seriousness and the complexity of the anticipated trial evidence and issues, as well as the background, demonstrated demeanor and goals of the defendant."), certif. denied, 178 N.J. 249 (2003). "[T]he ultimate focus must be on the defendant's actual understanding of the waiver of counsel," not just the judge's strict compliance with the requirements. Crisafi, supra, 128 N.J. at 512.

The determination also must balance administrative considerations. "[O]ur Supreme Court has underscored `the trial court must strike a balance between its inherent and necessary right to control its own calendar and the public's interest in the orderly administration of justice, on the one hand, and the defendant's constitutional right to obtain counsel of his own choice, on the other.'" State v. Martinez, 440 N.J.Super. 537, 544 (App. Div. 2015) (quoting State v. Hayes, 205 N.J. 522, 538 (2011)). Of concern is

the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case.[Hayes, supra, 205 N.J. at 538 (quoting State v. Furguson, 198 N.J.Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985)).]

"If a trial court conducts a reasoned, thoughtful analysis of the appropriate factors, it can exercise its authority to deny a request for an adjournment to obtain counsel of choice." Martinez, supra, 440 N.J. Super. at 545 (quoting State v. Kates, 216 N.J. 393, 396-97 (2014)). The absence of such an "analysis results in a one-sided and, consequently, arbitrary determination." Ibid.

Our court rule, addressed to the waiver of counsel in municipal proceedings, embodies these principles, stating:

In all cases other than parking cases, a request by a defendant to proceed to trial without an attorney shall not be granted until the judge is satisfied from an inquiry on the record that the defendant has knowingly and voluntarily waived the right to counsel following an explanation by the judge of the range of penal consequences and an advisement that the defendant may have defenses and that there are dangers and disadvantages inherent in defending oneself.

[R. 7:8-10.]

First, the municipal court record provided no information regarding prior adjournments, such as why they were granted and at whose request. The May 4, 2011 hearing record reflects, almost one year following issuance of the first set of summonses, the State had not provided discovery and defendant was leaving the country. Otherwise, the assumption defendant was responsible for the delay is unsupported.

Second, we cannot find support for the finding defendant's conduct was purposely dilatory. Following the May 4, 2011 hearing, where the judge related some information regarding the effect of proceeding self-represented, she hired counsel, who submitted a June 10, 2011 letter informing of his representation and again pursuing discovery, which the State apparently had still not released. Having hired counsel, the record also makes clear counsel failed to fulfill his obligations to defendant by withdrawing from representation without the appropriate motion. The Law Division judge ignored the circumstances where the municipal court judge told defendant to get her attorney "on the phone or get him here or you're going to have to try the case by yourself" and then refused to allow her to comply with this directive to contact counsel.2 At the very least, the obligation to contact counsel to determine the circumstances of withdrawal or availability to proceed was required.

In this regard, we do not understand the Law Division judge's comments "I mean we all know, when you hire an attorney you have to both hire and pay that attorney." The record does not include information that counsel's failure to appear was the result of defendant's non-payment. Moreover, the Law Division judge confirmed this fact stating, "Why [trial counsel] wasn't there [at trial], I have no idea."

Third, the May 4 discussion regarding the effect of proceeding as a self-represented litigant was extremely limited. We recognize defendant's comments at this hearing suggest the issue had been raised on a prior occasion; however, that transcript was not presented. Considering only the information imparted on May 4, 2011, we cannot ignore defendant hired counsel, evincing a desire not to proceed without representation. Also, her thwarted attempt to contact counsel on the day of trial supports her desire to have legal representation, not to waive it.

Fourth, during the trial de novo, the judge's finding of "a deliberate attempt to stall this matter" is not supported. At that time, the State proposed the record contained an unidentified individual's statement that defendant was smiling, which demonstrates she acted willfully in delaying the proceedings. Reliance on this statement plucked from the record without more information regarding the context of the assertion or the person making the statement is erroneous.

Finally, the unfounded mention of countervailing equities is insufficient to outweigh defendant's right to be represented. The State offered no proof of prejudice or disadvantage. Further, as previously noted, no support shows delay was attributed solely to defendant.

The failure to receive adequate advice concerning one's right to counsel warrants a new trial. State v. Gonzalez, 114 N.J. 592, 595 (1989) (remanding the matter "to the municipal court for a new trial" because it was "undisputed that defendant received inadequate advice of his right to counsel."); State v. Hishmeh, 266 N.J.Super. 162, 168 (App. Div. 1993); R. 7:8-10. Indeed, the deprivation of the right to counsel before the municipal court is not cured by representation during trial de novo. State v. Abbondanzo, 201 N.J.Super. 181, 185 n.1 (App. Div. 1985) (citing State v. Sugar, 84 N.J. 1, 16 (1980)).

We also conclude the judge failed to consider defendant's discovery assertions. Further, the record does not clearly disclose what evidence the State released or why the MVR videotapes, containing allegedly exculpatory evidence, purportedly sent by the State, were never provided. On remand, prior to trial, the municipal court judge must first address precisely what discovery the State released as required by Rules 7:7-7 and 7:7-8; what it did not release, despite assertions to the contrary; and what relief may be appropriate.

Based on our conclusion that a new trial must be conducted, we decline to address defendant's challenges to the imposed consequences of conviction.

Reversed and remanded for a new trial in the municipal court, before a different municipal court judge.

FootNotes

1. Before the Law Division, the State and the judge applied the following three-part test we articulated in Slattery, supra, 239 N.J. Super. at 549-50, to aid consideration of whether a defendant adequately waives the right to counsel:(1) A non-indigent defendant must be afforded a reasonable opportunity to obtain an attorney of his choice. . . . (2) Before a defendant is forced to go to trial without counsel, he must be fully advised of the consequences. . . . (3) Prior to the peremptory trial date, a hearing should be conducted at which the defendant will be called upon to decide what course he wishes to follow.

2. There are many inappropriate comments made by the municipal court judge that are concerning. Of note, after suggesting counsel should have appeared, we consider the statement telling defendant: "You can sue him for malpractice" as a serious lapse in judgment.  source http://www.leagle.com/decision/In%20NJCO%2020160408530/STATE%20v.%20LAWRENCE

STATE OF NEW JERSEY VS. RICHARD BARD A-1016-14T3

STATE OF NEW JERSEY VS. RICHARD BARD 

A-1016-14T3 

(NEWLY PUBLISHED FOR APRIL 19, 2016) 

In this police citizen encounter, we examine whether the totality of presented facts and circumstances, including defendant's refusal to comply with a police directive to show his hands, support an objectively reasonable suspicion defendant was armed, justifying detention and a limited protective frisk for weapons. We distinguish the factual circumstances described from those set forth in United States v. Davis, 94 F. 3d 1465 (10th Cir. 1996), wherein the court concluded investigatory detention was not justified under facts that included the defendant's pocketed hands. Noting any analysis turns on individualized facts, in this matter the decision to stop and frisk was constitutionally supported because defendant appeared nervous and moved his hand to his back pocket as he walked toward police at 1:30 a.m., in the high crime area, then continued to conceal his hand, despite requests for him to expose it to the officer's view. Suppression was properly denied. 

State v. Chad Bivins (A-23-14; 074374)

State v. Chad Bivins (A-23-14; 074374) 

Because the State did not provide adequate proof that the individuals found in a car had been present at the targeted residence when the warrant was being executed moments before their apprehension, the warrant did not provide authority for the search of the two off-premises individuals. 

JAIME TAORMINA BISBING VS. GLENN R. BISBING, III A-5047-14T1

JAIME TAORMINA BISBING VS. GLENN R. BISBING, III 

A-5047-14T1 

In this appeal, the court examines the effect of a non-relocation agreement on a subsequent request by the primary custodial parent to relocate to a distant state. The court reverses and remands for a relocation hearing to determine first whether the primary custodial parent negotiated the non-relocation clause of the matrimonial settlement agreement (MSA) in bad faith. If so, a "best interests of the child" analysis must be conducted. Second, if bad faith is not demonstrated, the trial court must then consider whether the parent proved a substantial unanticipated change in circumstances warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis. If the MSA was negotiated in good faith, yet the parent fails to satisfy her burden of proving a substantial unanticipated change in circumstances, the court must apply the same "best interests" analysis as required in the first step. Only if the noncustodial parent is unable to demonstrate that the custodial parent negotiated the MSA in bad faith, and the custodial parent is able to prove a substantial unanticipated change in circumstances occurred, should the custodial parent be accorded the benefit of the Baures analysis. 

STATE OF NEW JERSEY VS. EBONEE R. WILLIAMS A-0591-13T2

STATE OF NEW JERSEY VS. EBONEE R. WILLIAMS 

A-0591-13T2 

During plea negotiations, defendant gave a formal statement with the advice of counsel, after acknowledging that the statement could be used against her in the event of a trial. When plea negotiations failed, the trial court ruled defendant's statement could be used to impeach her if she testified at trial. The Appellate Division holds that N.J.R.E. 410 generally prohibits the use of any statement made during plea negotiations to impeach the person making the statement. However, consonant with the interpretation of Fed. R. Evid. 410 in United States v. Mezzanatto, 513 U.S. 196, 115 S. Ct. 797, 130 L. Ed. 2d 697 (1995), the Appellate Division holds that a defendant can waive N.J.R.E. 410's protection against use of such statements for impeachment, and that such a waiver is valid and enforceable absent an affirmative indication that the waiver was entered into unknowingly or involuntarily. The Appellate Division remands to allow the trial court and the parties to address whether waiver occurred here. 

State v. Patrick McFarlane (A-7-15;

State v. Patrick McFarlane (A-7-15; 075938) 

The trial judge’s statement during a subsequent, unrelated status conference that he always gives sixty-year sentences to defendants convicted by a jury of first-degree murder undermines public confidence in our system of criminal sentencing. Consequently, the matter is remanded for resentencing by a different judge. 

The doctrine of lenity, a corollary to the doctrine of strict construction, dictates that when ambiguities “cannot be resolved by either the statute’s text or extrinsic aids,” a criminal statute must be interpreted in favor of the defendant.

When interpreting statutory language, the goal is to divine and effectuate the Legislature’s intent.  DiProspero v. Penn, 183 N.J. 477, 492 (2005). In furtherance of that goal, we begin each such inquiry with the language of the statute, giving the terms used therein their ordinary and accepted meaning. Ibid. When the Legislature’s chosen words lead to one clear and unambiguous result, the interpretive process comes to a close, without the need to consider extrinsic aids.  State v. D.A., 191 N.J. 158, 164 (2007) (citation omitted). We seek out extrinsic evidence, such as legislative history, for assistance when statutory language yields “more than one plausible interpretation.” DiProspero, supra, 183 N.J. at 492-93.

When interpreting penal statutes, the doctrines of strict construction and lenity also provide guidance.  D.A., supra, 191 N.J. at 164. The doctrine of lenity, a corollary to the doctrine of strict construction, dictates that when ambiguities “cannot be resolved by either the statute’s text or extrinsic aids,” a criminal statute must be interpreted in favor of the defendant.  State v. Gelman, 195 N.J. 475, 482 (2008) (citations omitted).

Doctrine of Lenity argued to reverse fro violation State v DGM

 Doctrine of Lenity argued to reverse fro violation State v DGM

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

D.G.M.,

Defendant-Appellant.

___________________________________________________

March 20, 2015

UPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

APPROVED FOR PUBLICATION

March 20, 2015

APPELLATE DIVISION

Before Judges Fisher, Accurso¹ and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FO-10-000135-13.

Peter D. Espey argued the cause for appellant (Hardin Kundla McKeon & Poletto, PA, attorneys; Mr. Espey, on the brief).

Jeffrey L. Weinstein, Assistant Prosecutor argued the cause for respondent (Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney; Mr. Weinstein, of counsel and on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

In this appeal of a contempt conviction, we consider whether defendant violated the "no contact or communication" provision of an amended final restraining order (FRO) – obtained by J.R. (Joan, a fictitious name), pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35 – by sitting near and briefly filming Joan at their six-year-old son's soccer game. Although such conduct falls within the FRO's prohibition on "communication," we conclude that defendant could not have fairly anticipated this result. In applying the doctrine of lenity, we reverse.

I

The record reveals that in 2006 Joan and defendant had a short romantic relationship which produced one child and a good deal of subsequent rancor. In 2010, Joan commenced a domestic violence action and obtained an FRO, which was later amended on a few occasions for child-related reasons. For example, an amended FRO entered in 2012 directed that defendant and Joan would communicate only by "the on-line family wizard system or [defendant's] father's cell phone." This amended FRO – in effect on the date in question – did not otherwise alter the standard provision in the original FRO that "prohibited" defendant "from having any (oral, written, personal, electronic or other) form of contact or communication with" Joan, as well as other individuals not relevant here.²

As noted, the parties have a child and both are involved in the child's life. The Supreme Court has recognized the right "to raise one's children [is an] essential, basic civil right[] . . . far more precious . . . than property rights."  Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed.2d 551, 558 (1972) (internal citations and quotation marks omitted). This fundamental right, however, may be limited and when defendant committed an act of domestic violence in 2010, a Family judge properly limited defendant's ability to communicate or contact the child's mother by entering an FRO. That consequence has generated further conflict, as evidenced by the proceedings leading to subsequent amendments to the FRO. And those amendments have chafed further, as revealed by the circumstances leading to this contempt prosecution.

The record reveals that defendant appeared at the child's soccer game on November 17, 2012. The FRO then in effect did not prohibit his attendance but it did prohibit defendant from having "any . . . contact or communication" with Joan, who also attended the game. Based on the allegation that defendant violated the FRO "by sitting directly next to" Joan during the soccer game and "us[ing] a cellular phone to videotape or take pictures" of her, defendant was charged with violating the FRO, a disorderly persons offense, N.J.S.A.2C:29-9(b).

At the conclusion of a one-day trial, defendant was convicted in only one respect.³ In coming to that result,⁴ the judge greatly relied on the video captured by defendant's cellphone that the judge described in the following way:

[Joan] was seated in . . . a lawn chair, a folding chair. The defendant . . . videoed her. He was videoing other things, too, but you could see the camera panning. He approached her, he was within a few feet of her. She turned to her right. As soon as she saw him, he immediately took the camera and . . . pointed it in [the] direction of the field.^[5]

In making these comments, the judge mentioned defendant had placed his chair "within a few feet" of Joan, but he also discussed how defendant testified "he was maybe 10 or 15 feet away" and, ultimately, the judge never made a definitive finding as to the distance between Joan and defendant.

We do not interpret the judge's decision as convicting defendant for violating the FRO by being too near Joan. The decision instead rests on defendant's act of filming or photographing Joan:

I am satisfied beyond a reasonable doubt that the defendant in fact did violate the terms of the restraining order. There is no question in my mind but that based upon what I have just stated, that recording her was a form of contact. And he should have known better. He had no right to contact her. So I find the defendant guilty beyond a reasonable doubt.

[Emphasis added.]

Because defendant was acquitted in all other respects, we examine the sufficiency of the judge's conclusion that defendant violated the FRO's "no contact" provision by recording Joan's image with his cellphone or, in the trial judge's words, whether "recording [her] was a form of contact."

II

We commence our analysis of that narrow issue by first assuming – once it is determined a plaintiff meets the definition of a victim of domestic violence, N.J.S.A. 2C:25-19(d), the defendant committed an act of domestic violence as defined by the Act, N.J.S.A. 2C:25-19(a), and there is a need to prevent further domestic violence, S.K. v. J.H., 426 N.J. Super. 230, 232 (App. Div. 2012); Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006) – that the Act places no other limit on a court's power to restrain a defendant from engaging in a host of activities including but not limited to filming or photographing the victim. The Act authorizes entry of an order restraining a defendant, for example, from a range of locations – the residence, property, school or place of employment of the victim or the victim's family or household members and from "any specified place . . . frequented regularly by the victim or other family or household members." N.J.S.A.2C:25-29(b)(6). And the Act authorizes restraints on various forms of interaction with the victim; a judge may "restrain the defendant from making contact with the plaintiff or others" and may further "forbid[] the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim."  N.J.S.A. 2C:25-29(b)(7).

Considering this broad grant of authority, N.J.S.A. 2C:25-29(b) (directing that courts are empowered to "grant any relief necessary to prevent further abuse"); see also State v. S.K., 423 N.J. Super. 540, 545 (App. Div. 2012); Zappaunbulso v. Zappaunbulso, 367 N.J. Super. 216, 226-27 (App. Div. 2004), there is no doubt that the judge who entered and amended the FRO could have crafted the order in any number of ways that would have rendered what occurred here a violation of the restraining order. For example, defendant could have been precluded from attending the child's soccer games, or other school events, Finamore v. Aronson, 382 N.J. Super. 514, 520-21 (App. Div. 2006), or he could have been barred from coming closer to Joan than a particular amount of feet. We also assume N.J.S.A. 2C:25-29(b) allows our courts to specifically prohibit a defendant from photographing or filming a domestic violence victim or others. In short, we find nothing in the Act that would limit the flexibility possessed by courts in imposing restraints for the protection of a domestic violence victim.⁶ The real issue in dispute, therefore, concerns whether the FRO prohibited defendant from filming or photographing Joan.

III

The FRO – insofar as it purports to bar the conduct the judge found occurred⁷ – prohibited defendant "from having any (oral, written, personal, electronic or other) form of contact or communication with" Joan (emphasis added). Although the judge interpreted defendant's momentary filming of Joan as a form of "contact," we nevertheless examine whether defendant's actions may be interpreted as a form of "communication."⁸ "Contact" and "communication" are not defined by the Act or the FRO in question.⁹

A

"Contact" has numerous commonly-used meanings. In this context, we assume the Legislature in enacting N.J.S.A. 2C:25-29(b)(7) – and the Family judge in crafting the FRO – intended to limit the word to its common and ordinary meaning when used as a verb, since in both the statute and the FRO the word was used as a verb.¹⁰ In that regard, we think it likely "contact" as used here means "to get into contact or in touch with." 3 The Oxford English Dictionary 806 (2d ed. 1989). Indeed, since the FRO bars defendant from having "any form of contact or communication" with Joan, we can reasonably assume the Legislature intended a meaning similar to or in harmony with "communication," a neighboring word in the statute and FRO. See Shelton v. Restaurant.com, Inc., 214 N.J. 419, 440 (2013); Germann v. Matriss, 55 N.J. 193, 220 (1970). But, while this may suggest the two words should be understood as having a similar scope or reach, "contact" certainly also includes, as any dictionary definition would suggest, a prohibition on the defendant actually "touching" the victim.  See Cooper, supra, 144 P. 3d at 457-58 (reasoning that "contact" in this context includes "physically touching or communicating"). It would be quite anomalous to conclude that the Act, which was designed specifically to prevent domestic violence, would not authorize a restraining order that prohibits the defendant from physically touching the victim. We also think – although with less certainty – that "contact" in this setting may fairly be interpreted as prohibiting a defendant from closely approaching the victim, i.e., "invading" a domestic violence victim's "personal space," or close enough to be heard in a normal tone of voice.¹¹

"Communication," as its ordinary dictionary definition suggests in this context should be understood as the "imparting, conveying, or exchange of ideas, knowledge, information, etc. (whether speech, writing or signs)."  See 3 Oxford English Dictionary, supra, at 578. This scope of banned behavior would obviously extend to a host of words or conduct, which, unlike "contact," would not necessarily be dependent on the distance between the defendant and the victim. A defendant prohibited from having any form of "communication" with a domestic violence victim might reasonably be found to have violated an FRO by telephoning the victim even when separated by many miles, or by gesturing at or toward the victim from across a room, from a passing automobile, or from the opposite side of a soccer field or baseball diamond. See, e.g., State v. Tunley, 294 P.3d 1092 (Hawaii Ct. App. 2013) (holding that defendant's "lengthy staring and grinning at" the complainant from "across the street" constituted a communication barred by the restraining order); State v. Elliott, 987 A.2d 513, 522-23 (Me. 2010) (upholding a conviction for violating a restraining order when the defendant "monitor[ed]" the complainant by parking in locations along the route of complainant's daily commute); Elliott v. Commonwealth, 675 S.E.2d 178, 181-82 (Va. 2009) (holding that defendant engaged in "contact of any type" but did not violate a restraining order by gesturing toward the victim's home from a block away; a dissenting judge disagreed with that interpretation).

B

The large and ever-growing body of law emanating from the Act demonstrates it is too late in the day for a defendant to suggest that either "contact" or "communication" would not include the words and conduct described in the section above. But this case provides a different and more unusual example.

Here, as we have observed, the judge found defendant to have violated the FRO by filming Joan while seated near her. Although the judge defined defendant's conduct as "contact" with Joan, we do not interpret his findings as suggesting defendant was "in contact" with Joan simply because he was seated nearby. Instead, we discern from the judge's findings that it was the act of filming that constituted the forbidden "contact." In that regard, we think this conduct – if prohibited at all by this portion of the FRO – must fall within the scope contemplated by the word "communication" or only that part of "contact" which is synonymous with "communication." That is, if defendant violated the FRO it was because he was engaged in sending a message or conveying thoughts by pointing a cellphone's camera at Joan.

The message may not have been understandable to strangers but likely had meaning for the parties. Moreover, whether the message was intelligible is not the point. A defendant's mere act of filming or even simply staring at a victim sends a message and, in many instances, a message sufficiently alarming or annoying, or even threatening, so as to constitute the type of conduct the Legislature had in mind when enacting N.J.S.A. 2C:25-29(b)(7). Cf., State v. J.T., 294 N.J. Super. 540, 544 (App. Div. 1996). Accordingly, we hold a defendant restrained by a similarly-worded FRO engages in a "communication" by pointing a camera at a domestic violence victim from a standpoint close enough as to be observed by the victim. For this reason, we conclude that defendant engaged in communication with defendant when he filmed her, albeit very briefly, with his cellphone.

IV

Our determination that defendant's conduct was a form of communication forbidden by the FRO, however, does not necessarily lead to an affirmance of defendant's conviction. Defendant is entitled to the application of the rule of lenity, first described by Justice Holmes as a principle that an accused is entitled to "fair warning . . . of what the law intends to do if a certain line is passed."  McBoyle v. United States, 283 U.S. 25, 27, 51 S. Ct. 340, 341, 75 L. Ed. 816, 818 (1931); see also United States v. Bass, 404 U.S. 336, 347-48, 92 S. Ct. 515, 522, 30 L. Ed.2d 488, 496 (1971); State v. Gelman, 195 N.J. 475, 482 (2008). Stated another way, "where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant." Bass, supra, 404 U.S. at 348, 92 S. Ct. at 523, 30 L. Ed. 2d at 497.

To be sure, in making this determination, courts may resolve statutory ambiguities by resort to extrinsic aids.  Gelman, supra, 195 N.J. at 482. In fact, in prosecutions pursuant to N.J.S.A. 2C:29-9, the court is required to consider something outside the statute – the FRO itself – in determining whether the statute has been violated. Accordingly, whether a defendant has been given "fair warning" that his conduct constitutes a criminal act requires resort to and a consideration of the clarity of the FRO. As we have already explored, an understanding of the reach of the "no contact or communication" provision of the FRO required an interpretation of that language. Because, until today's holding, no defendant would fairly be expected to understand that the filming or photographing of the victim falls with the scope of "contact" or "communication" contained in either N.J.S.A. 2C:25-29(b)(7), or an FRO crafted in accordance with that statute, we are compelled to employ the doctrine of lenity and reverse this conviction.

Before he could be fairly convicted, defendant had the right to know where the line existed between permitted and prohibited conduct. Although we are satisfied there is a host of prohibited conduct that a defendant would understand to be prohibited despite the generalities employed in the FRO, the precise conduct found by the judge to support the conviction – the filming of Joan – is not as assuredly encompassed by the Act, or the FRO entered here,¹² as most other conduct normally considered by our domestic violence courts. Because the Act does not further define the terms contained in N.J.S.A. 2C:25-29(b)(7), and because of the dearth of decisional law that would convey that this type of conduct is prohibited, the doctrine of lenity must preclude defendant's conviction here.

Moreover, the State was obligated to prove defendant's knowing violation of the FRO beyond a reasonable doubt.  N.J.S.A. 2C:29-9(b); see also S.K., supra, 423 N.J. Super. at 546; State v. L.C., 283 N.J. Super. 441, 447 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). Because, until today's decision, it was not clear whether the brief filming of a victim in an open and public place constituted a form of prohibited communication, defendant could not have known to a sufficient certainty that he was violating the FRO by engaging in the conduct found to have occurred by the trial judge.

Reversed.

1 Although not originally on the panel, the parties have consented to Judge Accurso's participation without the need for further argument.

2 In the FRO, the word "any" is presented in bold type.

3 Defendant was also charged with violating the FRO and making harassing communications in a separate complaint; the judge acquitted defendant of those charges.

4 Defendant was sentenced to a one-year probationary term.

5 Although the judge did not make a finding about the duration of the video, it is contained in the record on appeal and speaks for itself.  See State v. Diaz-Bridges, 208 N.J. 544, 566 (2012) (holding that when "factual findings are based only on . . . a recorded interrogation . . . equally available to the appellate court and are not dependent on any testimony uniquely available to the trial court, deference to the trial court's interpretation is not required"). Based on our examination, we note the entire video is approximately 100 seconds long. During the critical stage referred to by the judge, defendant pointed the cellphone at Joan for approximately three seconds and then, when she turned to look at him, he abruptly turned the cellphone and videotaped what occurred on the soccer field for approximately three seconds. Defendant then pointed the cellphone back at Joan for approximately five seconds while she watched the action on the soccer field.

6 We question but need not decide whether the conduct criminalized by N.J.S.A. 2C:29-9 – the violation of an FRO – may encompass a violation of a provision that is not expressly authorized by N.J.S.A. 2C:25-29(b). Stated another way, in recognizing the flexibility of a Family judge to craft an FRO that best protects the victim, we do not necessarily suggest the scope of N.J.S.A. 2C:29-9 expands with that flexibility.  See Cooper v. Cooper, 144 P.3d 451, 457 (Alaska 2006) (observing that the statute defining the scope of a restraining order "implies that only" a violation of an authorized provision may constitute the crime of violating a protective order); State v. Herren, 339 P.3d 1126, 1130 n.1 (Idaho 2014) (recognizing the unlikelihood that "a judge issuing a no contact order has the power to define conduct by a particular individual which would constitute a crime other than contempt").

7 The parties have argued the relevance or weight of various electronic communications. The judge, however, found these communications did not violate the FRO or constitute independent offenses. Consequently, we will not burden this opinion with their description.

8 In light of the disposition of this appeal, we need not determine whether double jeopardy principles bar upholding the conviction on grounds other than those expressed by the judge, i.e., by holding defendant engaged in a prohibited "communication" instead of a prohibited "contact."

9 The FRO also prohibits defendant "from stalking, following, or threatening to harm, to stalk or to follow" Joan and others. Stalking is defined as "a course of conduct directed at a specific person that would cause a reasonable person to fear for his [or her] safety or the safety of a third person or suffer other emotional distress," N.J.S.A. 2C:12-10(b), and "[c]ourse of conduct" is defined, in part, as "repeatedly maintaining a visual or physical proximity to a person," N.J.S.A. 2C:12-10(a)(1). Defendant was not charged with violating this portion of the FRO, and we need not decide whether the conduct the judge found to have occurred could form the basis for such a charge.  See H.E.S. v. J.C.S., 175 N.J. 309, 328-31 (2003) (determining that an ex-husband's placement of hidden cameras and microphones in his ex-wife's bedroom constituted stalking); N.G. v. J.P., 426 N.J. Super. 398, 404-05, 418-20 (App. Div. 2012) (concluding that defendant's picketing, while gesturing and making obscene remarks, of his sister's home on twenty-nine occasions constituted stalking).

10 For example, it cannot rationally be argued that the Act's intent was to use a common definition of the noun "contact," such as used in the following sentence: "The news reporter had a reliable contact within the halls of Congress."

11 Because our disposition of the appeal does not require it, we venture no further in defining how close a defendant may approach a victim without violating a similarly-worded FRO. When crafting an order restraining a defendant whose conduct suggests a likelihood of future testing of the order's limits, as may be what occurred here, the better practice may be for the Family judge to further define "contact" in the FRO by setting an actual distance in feet within which the defendant may not approach.

12 To be precise, defendant was convicted pursuant to N.J.S.A. 2C:29-9(b), which makes it a disorderly persons offense for a person to "knowingly" violate a domestic violence restraining order. This statute is clear; defendant was fairly apprised that his violation of the FRO would constitute an offense. But his conduct could not be criminalized under this statute if the FRO did not bar the conduct with sufficient clarity to communicate to the defendant that the conduct was barred. Accordingly, in assessing his guilt, the trier of fact was required to make a determination of whether defendant's conduct fell within the prohibitions described in the FRO and, in applying the doctrine of lenity, whether defendant fairly understood that his conduct violated those expressed prohibitions. In cases like this, whether there is an ambiguity sufficient to require application of the doctrine of lenity turns on the terms of the FRO and their interpretation.