Violation of retraining order reversed where no intent to knowingly violate the order. State v Sapio

Violation of retraining order reversed where no intent to knowingly violate the order. State v Sapio
STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PHILIP A. SAPIO,

Defendant-Appellant.

«

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

______________________________________

February 24, 2015

Submitted January 28, 2015 – Decided

Before Judges Fuentes and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FO-13-0543-13.

Uniglicht Legal Group, L.L.C., attorneys for appellant (Ian S. Bloom, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a bench trial, defendant was convicted of a disorderly persons charge of contempt, N.J.S.A. 2C:29-9(b), for violating a final domestic relation order (FRO) issued pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, and sentenced to thirty days incarceration. Because the FRO did not prohibit defendant from engaging in the conduct that resulted in his conviction, we reverse.

I

C.S. and defendant had been in a dating relationship. On August 2, 2010, C.S. obtained a temporary restraining order (TRO) against defendant. The order stated, among other things, that defendant was prohibited from C.S.'s

[p]lace of employment, National Vision in four Walmart locations, Route 9 in Howell, Walmart and Sam's Club on Main St in Freehold, Walmart on Rt 66 in Neptune. 

The record is unclear but we surmise the TRO was dismissed. It is undisputed defendant was never charged with violating this order.

Fourteen months later, on October 6, 2011, C.S. obtained another TRO. In addition to other prohibitions, this TRO barred defendant from the following locations: C.S.'s residence, her "place(s) of employment," and the "Super Gym" in Jackson. On November 7, 2011, a FRO was issued against defendant that barred defendant from these same locations.

On June 11, 2013, a complaint was filed in the Howell Township Municipal Court alleging that, on June 10, 2013, defendant knowingly violated the FRO by entering C.S.'s 

place of employment (Walmart, Howell Twp.) [when] [t]he order specifically restricts the above action. [This] is in violation of and [is] contrary to N.J.S.A. 2C:29-9(b), a disorderly persons offense.

Because the underlying contempt charge was predicated on a disorderly persons offense, this matter was transferred to the Family Part in accordance with N.J.S.A. 2C:25-30.

The evidence during the trial revealed that, on June 10, 2013, C.S. was employed by Opsin Eye Care (Opsin), a business that provides optometry services at various locations. C.S. worked out of Opsin's offices in Howell Township, Neptune and Freehold. Opsin's office at the Howell Township location is within the National Vision Center, a business that sells eyewear. Opsin and National Vision Center are separate entities, and each rents space from Walmart to conduct its respective business. One gains access to the Opsin in Howell Township by going through the main door of the Walmart store and entering the National Vision Center, which is immediately inside of the door. Opsin operates its business behind a walled area that separates the two entities.

On June 10, 2013, C.S. was not working at the Howell Township location. Around noontime, defendant entered the Walmart, bought a pair of boots, and left. While he was leaving the store, he encountered an employee of Opsin that he knew, who had just used the restroom in Walmart and was returning back to work. After briefly exchanging pleasantries, defendant left. There is no evidence defendant entered Opsin or the National Vision Center. The following day, the complaint alleging he violated the FRO was issued.

At the conclusion of the trial, the court found defendant knowingly violated the FRO because he entered Walmart, which the court determined was C.S.'s place of employment. The trial court stated:

[The August 3, 2010 TRO] defined with specificity what the place of employment was for the complaining witness is National Vision in four Wal-Mart locations. So it says to me that her employment was at the Wal-Marts . . . 

Then and we don't have a final with 

respect to that [TRO], but in [the November 7, 2011 FRO] which is a final that was issued with respect to [the October 6, 2011 TRO] . . . , it just simply says . . . places of employment . . . [and] doesn't define it. 

I think that I find beyond a reasonable doubt that the place of employment for the complaining witness is the Wal-Mart property. And . . . the defendant is actually seen in the aisle that goes right in front of the National Vision Center and it's near where the bathrooms are . . . I do not think that the place of employment is limited by the corporate property at all. 

I think that it's a reasonable interpretation of what place of employment is the Wal-Mart proper. And I find in particular that the defendant in this case was within feet of a common bathroom that the complaining witness would have to utilize and that he's within feet of the National Vision Center . . . 

Am I saying that anywhere that he's found in the Wal-Mart that he would be found guilty, no. But in this case is he guilty, yes, because he's within feet of a common bathroom that his complaining witness has to use when she's working at this location . . . .

And in fact if she had to describe where she worked, she would say National Vision Center or [Ospin Eye Care] or whatever. But if she had to give someone well where do you work, meaning where do you work, what would she say. She'd say I work in the Wal-Mart.

II

Defendant raises the following points for our consideration. 

POINT I: THE APPELLANT WAS NEVER PROHIBITED FROM ENTERING THE WALMART LOCATED IN HOWELL, NEW JERSEY AND THEREFORE DID NOT VIOLATE THE FINAL RESTRAINING ORDER.

POINT II: THE PROSECUTION FAILED TO PROVE APPELLANT KNOWINGLY VIOLATED THE TERMS OF THE FINAL RESTRAINING ORDER.

We defer to a trial court's factual findings provided "the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463 (1999) (citation omitted); Cesare v. Cesare, 154 N.J. 394 (1998). We are bound to uphold the trial court's conclusions drawn from those facts 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, supra, 154 N.J. at 412 (citation omitted). We do not, however, owe any deference to a trial court's "interpretation of . . . the legal consequences that flow from established facts . . . ."  Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

To obtain a conviction of the disorderly persons offense of contempt for violating a domestic violence order, the State must prove beyond a reasonable doubt that defendant knowingly violated such order. N.J.S.A.2C:29-9; State v. Finamore, 338 N.J. Super. 130, 138 (App. Div. 2001). "[T]he evidence must allow at least a reasonable inference that a defendant charged with violating a restraining order knew his conduct would bring about a prohibited result."  State v. S.K., 423 N.J. Super. 540, 547 (App. Div. 2012).  N.J.S.A. 2C:2-2(b)(2) states in relevant part: "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:25-29(b) sets forth the relief that may be included in a final restraining order.  N.J.S.A. 2C:25-29(b)(6) specifically provides that a court may order that a defendant be restrained from 

entering the residence, property, school, or place of employment of the victim . . . and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.

In Finamore v. Aronson, 382 N.J. Super. 514, 520 (App. Div. 2006), we stated that "[t]he specific relief[] necessary to protect the victim must be distinctly described in the final restraining order."

The State charged defendant with knowingly violating the restrictions imposed upon him by the FRO. The locations listed in the FRO from which defendant is barred are: C.S.'s home, the Super Gym, and her "place(s) of employment." On June 10, 2013, defendant was employed by Opsin. She was not employed by Walmart and did not work in its store. Her place of employment was where Opsin was located. Although Opsin was physically within a building owned by Walmart, to which Opsin paid rent, C.S.'s place of employment was not located within the Walmart store itself. Opsin had its own confined area within the National Vision Center that was adjacent to the Walmart store.

The FRO does not set forth with any specificity that defendant was barred from the Walmart store. N.J.S.A. 2C:25-29(b)(6). The fact C.S. may have had to traverse over or through other locations to reach her place of employment does not convert such locations into areas from which defendant is banned. Potentially, defendant is prohibited from entering these locations, but only if a court finds C.S. regularly frequents them and they are specifically identified in a domestic violence order.  N.J.S.A. 2C:25-29(b)(6). Accordingly, because the FRO did not prohibit defendant from entering the Walmart store, the State failed to prove beyond a reasonable doubt that defendant knowingly violated the FRO when he entered the store on June 10, 2013. Under these circumstances, defendant's conviction cannot stand.

Reversed.