The Appellate Division continued in relevant part: Although the TRO here did not expressly prohibit defendant from directing remarks to – or making gestures at – Irene via the Nest camera, the order expressly prohibited defendant from “having any oral” or “electronic, or other form of contact or communication with his estranged wife.” Acknowledging the Nest camera was working, defendant admitted under oath he positioned himself toward the camera and directed his comments about Irene and a lewd gesture at Irene, whose virtual presence in his home was expressly authorized by the TRO.
For reasons that are neither clear from the record nor pertinent to this appeal, defendant consented to the activation of three Nest home security cameras in his home as a condition precedent to supervised parenting time with his daughter. Pursuant to that arrangement, defendant opened his home and permitted Irene to enter through electronic means to observe defendant’s interactions with their daughter. Indeed, the purpose of the Nest cameras was to ensure Irene’s ability to observe those interactions, following a three-month lapse in defendant’s parenting time.
Under the circumstances here, defendant was aware of the high probability that Irene would hear his comments and observe his lewd gesture, which clearly were directed at her. The medium chosen by defendant was not unlike sending a video or message via text or email. As Justice Albin observed in the Fourth Amendment context, “the law must adapt to technological advances.” State v. Hubbard (2015) (Albin, J., concurring); see also C.C. v. J.A.H. (App. Div.), certif. denied, 244 N.J. 339 (2020) (holding “the proliferate and exceedingly intimate communications between the parties constituted a dating relationship within the meaning of the Act and supported entry of the final restraining order”).
Based on our de novo review of the record and governing principles, we therefore conclude defendant acted knowingly and his contact violated the TRO. Accordingly, we reverse the Family Part order, reinstate the complaint, and direct that the matter be remanded to another judge with no prior involvement with this family. See State in the Interest of C.F. (App. Div. 2019) (“In an abundance of caution, we direct that this matter be remanded to a different judge for the plenary hearing to avoid the appearance of bias or prejudice based upon the judge’s prior involvement with the matter.”)
At first glance, the defendant could argue that he directed his communication to an inanimate object that he resented being in his home, the camera). The more logical approach is to equate his actions to the sending of a text or video message. Under those circumstances, it does not make sense to claim he was directing his message to the phone or computer as opposed to the ultimate likely recipient.
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