On January 19, 2021, a three-judge appellate panel decided the Union county case of State v E.J.H. The principal issue under N.J.S.A. 2C:29-9 was whether a lewd gesture made through a visitation camera constituted criminal contempt.
Judge Rose wrote for the Court in relevant part: Pertinent to this appeal, “the evidence must allow at least a reasonable inference that a defendant charged with violating a restraining order knew his conduct would bring about a prohibited result.” State v. S.K. (App. Div. 2012). “The Act may not be construed in a manner that precludes otherwise reasonable conduct unless the orders issued pursuant to the Act specifically proscribe particular conduct by a restrained spouse.” State v. Krupinski (App. Div. 1999). “A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence.” N.J.S.A. 2C:2-2(b)(2).
Our decision in State v. D.G.M. (App. Div. 2015), alluded to without citation in the trial judge’s decision, does not support her decision here. In D.G.M., the complainant obtained a final restraining order (FRO) against the defendant pursuant to the Act, which “‘prohibited’ the defendant ‘from having any (oral, written, personal, electronic or other) form of contact or communication with'” the complainant. Thereafter, the defendant and the complainant attended their child’s soccer game. The defendant sat near the complainant and recorded the game and the complainant on his cell phone.
The State in D.G.M. charged the defendant with criminal contempt under N.J.S.A. 2C:29-9(b), and he was found guilty. On appeal, we held that the defendant had engaged in a form of “communication” with the complainant. We decided, however, the defendant’s conviction for contempt could not stand because he could not have known his specific conduct violated the FRO and could result in a criminal prosecution.
“Domestic violence” cases involving restraining orders end up being tried to conclusion much more often than a typical criminal case. This is because there are prohibitions against negotiating their resolutions and there is no right to a jury trial. On the other hand, negotiated resolutions are encouraged in criminal cases. Jury trials are also much more complicated and time-consuming. Therefore, parties have additional motivations to reach negotiated resolutions with criminal cases.
