Get Divorced and move on plus Domestic Violence cases

Saturday, July 3, 2021

PTI rejection reversed here where prior dismissed charges addressed STATE v. ANTHONAY C. MCIVER

PTI rejection reversed here where prior dismissed charges addressed STATE v.

ANTHONAY C. MCIVER a/k/a ANTHONAY MCIVEE BUBBA, ANTHONAY MCIVER, and ANTHONAY CHARISH MCIVER,

Defendant-Appellant. ______________________________

Submitted April 20, 2021 – Decided May 11, 2021

Before Judges Moynihan and Gummer.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 18-09- 0819.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-0699-19

PER CURIAM
Defendant Anthonay C. McIver, who pleaded guilty to one count of third-

degree forgery, N.J.S.A. 2C:21-1(a)(1), appeals an order denying her motion for entry into the pre-trial intervention program. Because the prosecutor improperly considered inapplicable factors in rejecting defendant's PTI application, we reverse and remand to the prosecutor for reconsideration of defendant's eligibility for PTI.

At the age of nineteen, defendant was arrested after a bank had accused her of attempting to deposit a fraudulent check. She later admitted she had used without permission her mother's checkbook from a closed account, forged her mother's name on checks, deposited the checks with the intent to defraud the bank, and withdrew from the bank approximately $25,000. She was able to withdraw the funds because the bank made them available for withdrawal soon after deposit before the checks had cleared. In reality, the funds were never transferred to defendant's account because her mother's account had been closed.

After a grand jury returned a twenty-count indictment charging defendant with third-degree forgery, N.J.S.A. 2C:21-1(a)(1); third-degree uttering, N.J.S.A. 2C:21-1(a)(3); third-degree theft, N.J.S.A. 2C:20-3(a); and third- degree attempt at theft, forgery, and uttering, N.J.S.A. 2C:5-1(a)(1), defendant

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applied for PTI. Citing PTI guidelines1 1(b) through 1(e) and 3(i)(4), the criminal division manager rejected the application because admitting defendant into PTI, which the manager described as a "rehabilitative model for victimless crimes," would "deprecate the seriousness of [defendant's] crime." Pointing out defendant had used her mother's checkbook to deposit $77,961.90 in fraudulent checks, had victimized her mother and the bank by withdrawing $25,376, and was attempting to deposit another fraudulent check in the amount of $20,300 when she was arrested, the manager concluded defendant's pattern of criminal behavior would have continued "for an unknown amount of time" had she not been caught. Because of the amount of the deposits and withdrawals, the manager found not credible defendant's assertion she had stolen the money because she and her boyfriend were struggling financially to pay their bills. The manager recognized defendant's criminal history included an additional arrest but no convictions.

Defendant subsequently pleaded guilty to one count of third-degree forgery, N.J.S.A 2C:21-1(a)(1). As part of the negotiated plea, she agreed to

1 As explained in State v. Johnson, 238 N.J. 119, 128 (2019), assessment of a defendant's suitability for PTI used to be conducted under "Guidelines" provided in Rule 3:28 with consideration of factors in N.J.S.A. 2C:43-12(e). Rule 3:28 was amended and those guidelines were eliminated effective July 1, 2018, months before the December 17, 2018 denial of defendant's application.

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pay restitution of no more than $25,000 and represented she had the ability to pay that amount over time.

After the plea, defense counsel submitted to the prosecutor a letter regarding defendant's "compelling reasons" for admission into PTI, referencing a purportedly similar application, which had been granted. In response, the prosecutor initially asked what "substantial and meaningful step" defendant was "willing to make towards restitution." The prosecutor ultimately rejected defendant's application as untimely given she already had pleaded guilty.

Defendant moved to compel PTI admission. The State opposed the motion, arguing in part defendant's application was untimely. The State also argued defendant's admission was properly denied considering the nature of the offense, the facts of the case, the "extent to which [her] crime constitute[d] part of a continuing pattern of anti-social behavior"; defendant's "record of criminal and penal violations and the extent to which [she] may present a substantial danger to others"; and the "value of supervisory treatment would be outweighed by the public need for prosecution" given the nature of the crime. See N.J.S.A. 2C: 43-12(e)(1), (2), (8), (9), and (14). In its opposition brief, to support its assertion defendant's history reflected a pattern of anti-social behavior and inability to comply with the law, the State disclosed facts regarding the prior

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arrest referenced by the criminal division manager: defendant had been arrested on similar charges for stealing approximately $1100 from her grandmother. According to the State, the charges were dismissed because her grandmother did not wish to proceed. The State also faulted defendant for refusing to pay restitution to a presumably insured bank.2

The court placed on the record its decision on defendant's motion and sentenced her on the same day. Before the court rendered its decision on her motion, the prosecutor advised the court the State was not seeking restitution as part of the sentence.3 The court nevertheless noted in its decision defendant's argument she should not have to pay restitution based on her assumption the bank had insurance. The court found the application was untimely but did not deny defendant's motion for that reason. The court denied defendant's motion based on its conclusion defendant had failed to establish clearly and

2 The State apparently made that assertion based on defendant's initial rejection of a proposed plea offer that included restitution. Defendant ultimately agreed as part of her plea to pay up to $25,000 over time in restitution. Defense counsel at sentencing denied the prosecutor's assertion defendant had refused to pay restitution because the bank was insured and clarified he "just wanted to ascertain whether or not the bank or the victim was seeking restitution."

The court later explained the bank was not seeking restitution through the criminal process but likely had sold the "bad debt" to a collection agency, which might "be coming after her civilly in order to get the money back."

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convincingly the PTI denial was "a patent and gross abuse of discretion." The court found defendant's actions were "not a one-time event," taking place over several months, and were "done on purpose." Noting defendant's crime was not "a minor shoplifting offense," the court cited to the "big amount of money" involved. The court sentenced her to a three-year probation period.

On appeal, defendant argues the court erred in denying her motion because the prosecutor improperly had considered a dismissed adult charge, citing State v. K.S., 220 N.J. 190 (2015); referenced the presumption against admission into PTI for people who commit a "breach of the public trust" when defendant's crime did not qualify as a public-trust offense, citing Rule 3:28-4(b)(1)(iv); and treated a substantial up-front payment as a precondition to PTI admission, citing Rule 3:28-5(d). In response, the State argues the prosecutor correctly rejected defendant's application as untimely4 and properly considered the factors of N.J.S.A. 2C:43-12(e). The State contends the prosecutor's reference to a dismissed charge was not an improper inference of guilt but instead was a "consideration of defendant as a whole . . . reveal[ing] an individual who will

4 We do not address this timeliness argument except to note the court expressly stated it was not denying defendant's motion due to the untimeliness of her application. The court stated it did not find "it would be one of those rules where you can't bend it a little bit in the interest of justice" and chose to decide the motion on "the merits."

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not be deterred from future criminal conduct." The State again faults defendant for refusing to pay restitution.

PTI "is an alternative procedure to the traditional process of prosecuting criminal defendants." State v. Leonardis, 71 N.J. 85, 89 (1976). It provides prosecutors with another way of resolving charges against qualified defendants while still meeting the goals of our criminal justice system. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 473 (2018). It enables qualified defendants "to avoid a trial and the stigma accompanying a verdict of guilt to any criminal offense." State v. Bell, 217 N.J. 336, 347 (2014).

In determining whether a defendant should be diverted into PTI, a prosecutor must make an "individualized assessment of the defendant," State v. Roseman, 221 N.J. 611, 621-22 (2015), considering the defendant's "amenability to correction" and potential "responsiveness to rehabilitation," N.J.S.A. 2C:43- 12(b). See also State v. Watkins, 193 N.J. 507, 520 (2008). In making that assessment, prosecutors are required to consider the seventeen non-exclusive factors listed in N.J.S.A. 2C:43-12(e). State v. Lee, 437 N.J. Super. 555, 562 (App. Div. 2014). The weight given to the various factors is left to the prosecutor's discretion. State v. Wallace, 146 N.J. 576, 585-86 (1996). The decision to divert a defendant into PTI "is a quintessentially prosecutorial

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function." Id. at 582. Accordingly, courts give prosecutors "broad discretion" in making that determination. K.S., 220 N.J. at 199.

That discretion, however, "is not unbridled." Wallace, 146 N.J. at 582. A court may overturn a prosecutor's denial of a PTI application if a defendant establishes clearly and convincingly the denial was "a patent and gross abuse" of prosecutorial discretion. Watkins, 193 N.J. at 520. A defendant meets that standard by proving the PTI denial "(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Bender, 80 N.J. 84, 93 (1979); see also Lee, 437 N.J. Super. at 563; State v. Maguire, 168 N.J. Super. 109, 115 n.1 (App. Div. 1979) (finding abuse of discretion occurs when a decision "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention").

Given the amount of prosecutorial discretion involved, our "scope of review is severely limited." State v. Negran, 178 N.J. 73, 82 (2003). But when "the prosecutor has made a legal error, there is a relatively low threshold for judicial intervention because '[t]hese instances raise issues akin to questions of law, concerning which courts should exercise independent judgment in fulfilling

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their responsibility to maintain the integrity and proper functioning of PTI as a whole.'" Watkins, 193 N.J. at 520-21 (quoting State v. Dalglish, 86 N.J. 503, 510 (1981)); see also State v. Maddocks, 80 N.J. 98, 104 (1979) (finding "[i]ssues concerning the propriety of the prosecutor's consideration of a particular [PTI] factor are akin to 'questions of law'"). "Remand is the proper remedy when, for example, the prosecutor considers inappropriate factors, or fails to consider relevant factors." K.S., 220 N.J. at 200; see also State v. Johnson, 238 N.J. 119, 129 (2019) (remand to the prosecutor "may be appropriate so she or he may rightly reconsider the application").

In K.S., our Supreme Court directly addressed the issue of whether a prosecutor can rely on dismissed adult criminal charges in denying a PTI application. Id. at 193. The Court held "[f]or the prior dismissed charges to be considered properly by a prosecutor in connection with an application, the reason for consideration must be supported by undisputed facts of record or facts found at a hearing" and "when no such undisputed facts exist or findings are made, prior dismissed charges may not be considered for any purpose." Id. at 199. In K.S., the PTI director concluded the defendant's arrest history evidenced "a pattern of anti-social behavior," and the prosecutor stated the defendant's criminal history suggested the current offense was "'part of a continuing pattern

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of anti-social behavior.'" Id. at 200. The Court found because the defendant's prior charges had been dismissed, he had no record of criminal violations and noted the record did not contain any admissions made by the defendant in the dismissed matters. Id. at 202. The Court concluded: "[u]se of prior dismissed charges alone as evidence of a history of and propensity for violence or a pattern of anti-social behavior, where defendant's culpability or other facts germane to admission into [PTI] have not been established in some way, constitutes an impermissible inference of guilt." Ibid.

In State v. Waters, 439 N.J. Super. 215, 235 (App. Div. 2015), we considered a trial court's decision overturning a PTI denial in part due to a purported improper consideration of prior dismissed charges. We reversed the trial court's decision in part because the prosecutor had denied relying on the prior charges, even though the designated PTI director had. Ibid. We have nearly the opposite situation here. In her rejection letter, the criminal division manager referenced defendant's prior arrest, did not provide any details about it other than acknowledging it did not result in a conviction, and stated her rejection was based on "deprecation concerns." Instead of denying reliance on the prior dismissed charge, like the prosecutor in Waters, this prosecutor established reliance. In its brief in opposition to defendant's motion, the State

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listed the N.J.S.A. 2C:43-12(e) factors supporting the PTI denial, including "[t]he extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior," N.J.S.A 2C:43-12(e)(8), and "[t]he applicant's record of criminal and penal violations and the extent to which he may present a substantial dangers to others," N.J.S.A. 2C:43-12(e)(9). The State then disclosed the details about the prior dismissed charge, apparently with no documentary support in the record, arguing it demonstrated "a pattern of anti- social behavior and an inability to comply with the law" and "ongoing criminal conduct."

The State on appeal denies the invocation of defendant's prior dismissed charge was an improper attempt to "infer guilt," K.S., 220 N.J. at 199, and characterizes it as "a consideration of the defendant as a whole." That argument is not persuasive because it is not supported by the record – the clear purpose of detailing defendant's prior dismissed charge was to infer guilt – and is contrary to the K.S. Court's express prohibition of the consideration of prior dismissed charges, when not otherwise supported, "for any purpose." Ibid. The prosecutor's consideration of this inappropriate factor constitutes a gross and patent abuse of the prosecutor's discretion and merits reversal and remand to the prosecutor.

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In the letter rejecting defendant's application for PTI, the criminal division manager identified Guideline 3(i)(4), which already had been repealed, as a reason for the rejection, stating defendant's admission "would deprecate the seriousness of the crime." Repealed Guideline 3(i)(4) made no reference to deprecation; it provided the PTI application procedure for defendants charged with the types of crime requiring the prosecutor, pursuant to repealed Guideline 3(i), to consider "the nature of the offense" in reviewing the application. Repealed Guideline 3(i)(1)(c) created a presumption of PTI rejection when the defendant's crime was "a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime." When the manager issued the rejection letter, the public-trust presumption was set forth in Rule 3:28-4(b)(1)(iv).

"A breach of the public trust occurs when a governmental agency or officer, vested with the public trust, causes harm to the public by breaching its trust." State v. Denman, 449 N.J. Super. 369, 378 (App. Div. 2017). To be found in breach of the public trust, the defendant "must owe some sort of fiduciary duty directly to the public at large in order to breach the public trust." Ibid. In Denman, we found the prosecutor had erred in applying the public-trust presumption to the defendant and the imposition on defendant of the Guideline

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3(i)(4) procedures constituted "a gross and patent abuse of the prosecutor's discretion." Id. at 379. We similarly find here the application of the public- trust presumption on defendant, to whom it clearly did not apply, to be a gross and patent abuse of the prosecutor's discretion.

The last issue on appeal – whether and in what way the prosecutor considered restitution in the denial of defendant's application – is rendered moot by our remand based on the first two bases of appeal and the State's decision not to seek restitution. Defendant premises her argument on this issue on the prosecutor's email responding to defense counsel's "compelling reasons" letter and the State's brief in opposition to her motion, both of which were submitted before the State advised the court of its decision not to seek restitution. Because restitution is no longer an issue in this case and given our remand, we see no reason why it should be considered in determining defendant's eligibility for admission to PTI.

Reversed and remanded to the prosecutor for reconsideration of defendant's eligibility for PTI. We do not retain jurisdiction.

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FRO reversed where victim coached by mother here D.M.R. v. M.K.G

D.M.R.,1 Plaintiff-Respondent,

v. M.K.G. .

Mishandling of Witnesses at Teleconference Hearing and Trial Court Advocacy on Behalf of Litigant Deprived Defendant of Due Process RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-4085-19

Submitted March 17, 2021 – Decided May 11, 2021

Before Judges Fuentes, Whipple, and Rose.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FV-01-1206-20.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

WHIPPLE, J.A.D.

1 We use initials to protect the identity of victims of domestic violence and to preserve the confidentiality of these proceedings. R. 1:38-3(d)(10).

APPROVED FOR PUBLICATION May 11, 2021

APPELLATE DIVISION

On January 23, 2020, in Pathri v. Kakarlamath, 462 N.J. Super. 208 (App. Div. 2020), acknowledging our rules provided little real guidance, we addressed how a judge should assess a party's request to appear at trial and present testimony by way of contemporaneous video transmission. Little did we know that within two months our entire court system would begin to rapidly transform from in-person to virtual court proceedings, utilizing various remote video and telephonic platforms, in an effort to continue operations amid the social distancing measures necessitated by the COVID-19 pandemic.

Since that time, New Jersey Courts have operated primarily remotely via platforms like Zoom, Microsoft Teams, and telephone conferences, with the goal of preserving the quality of justice our courts have traditionally striven to provide when court was conducted in-person. Trial courts and staff have undertaken a herculean effort in rising to this unprecedented challenge. However, despite their efforts, the formality of the courtroom can fall away. Everyone may not have the same access to technology. These proceedings often involve unrepresented litigants unfamiliar with court proceedings, which presents its own challenges now amplified by the virtual proceeding. Moreover, judges do not have the same mechanisms to control the proceeding that they would have in a live courtroom. Through that lens we address this appeal.

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I.
Defendant M.K.G. appeals from the May 29, 2020 final restraining order

(FRO) entered against her pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on a single alleged predicate act, harassment, N.J.S.A. 2C:33-4(a). Defendant raises the following issues on appeal:

POINT I: THE TRIAL COURT ERRED IN DETERMINING THAT [M.K.G.] COMMITTED THE PREDICATE ACT OF HARASSMENT, N.J.S.A. 2C:33-4(a).

POINT II: THE TRIAL COURT ERRED IN FAILING TO CONDUCT THE REQUIRED LEGAL ANALYSIS TO ENTER [AN FRO] UNDER SILVER V. SILVER,[2] AND ITS PROGENY.

POINT III: [M.K.G.] WAS DEPRIVED OF DUE PROCESS OF LAW DUE TO NUMEROUS TRIAL IRREGULARITIES STEMMING FROM A REMOTE PROCEEDING. (NOT RAISED BELOW).

A. Based upon the record, defendant had insufficient notice and opportunity to prepare a defense in her case.

B. Plaintiff testified in the presence of and with coaching from his mother--the only other witness in the remote proceeding.

2 387 N.J. Super. 112 (App. Div. 2006). 3

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C. The trial court engaged in inappropriate questioning of [M.K.G.] regarding the credibility of a plaintiff's witness.

Plaintiff and defendant had a dating relationship that had ended, and on May 20, 2020, defendant went to plaintiff's house at 12:30 a.m. to discuss a dog, whose ownership is unclear, but that had been part of both of their lives. Each party related a different version of what happened during the incident that night. On May 21, a municipal court judge issued an ex parte temporary restraining order (TRO) against defendant. At the initial FRO hearing in the Family Part on May 28, 2020, the court determined that plaintiff wished to proceed and advised defendant of the consequences of an FRO. The Family Part judge heard the case telephonically, and both parties appeared pro se, also telephonically. The court asked defendant if she wished to proceed with a trial that day. She stated that she did. The court then asked defendant whether she wanted to consult an attorney or retain one to represent her. She first responded she did not, and she wanted to proceed with the trial that day. Defendant then asked whether it would be "in [her] best interest to talk to an attorney." The judge responded, "it never hurts you." He asked defendant additional questions about the case, and then stated "it's up to you . . . . [I]f you want to postpone to talk to a lawyer, we can. It's up to you. I can't make the

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decision for you." Defendant responded, "I don't really think that it's necessary, Your Honor."

The judge said he would proceed with the trial. However, thereafter, it became clear that defendant had never been served with a copy of the TRO complaint. The court attempted to reschedule the hearing for June 17, but defendant informed the court that she had military duties on weekdays during the month of June and was unsure whether she would be able to call the court to attend the trial. The judge asked whether defendant was available the very next morning, May 29, and she stated she was. The judge then confirmed that the court would email both parties an invitation to appear at the hearing via Zoom. He asked the parties if they had used Zoom before, and defendant stated that she had not.3

The judge then told defendant he would email her the TRO complaint "so you get service today." He explained the harassment allegation against her "just so she knows, in case she doesn't get the complaint . . . ." He suggested defendant could look at the complaint again, but he "just read it to [her] so [she] already know[s] what it's about." The judge then confirmed for plaintiff

3 The May 28, 2020 transcript states the hearing was held via Zoom, but the judge stated that the parties were "on the phone."

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that defendant had been served the complaint "[f]or all intents and purpose[s] . . . . [Defendant] acknowledged it and we're going to email it to her."

The following day the parties appeared via Zoom. Plaintiff testified that he and defendant had a prior dating relationship and around 12:30 a.m. on May 20, 2020, he awoke and heard his dog barking and his brother running down the steps. Then, he heard his mother on the phone with the police and heard banging on his window and front door. Plaintiff saw defendant outside his house with four men and two vehicles, and defendant was repeatedly calling his phone. He also testified that a man was knocking on his window. Plaintiff further testified that his mother told him defendant was the first one to knock. The judge then asked plaintiff if his mother was going to testify, to which he responded:

PLAINTIFF: I mean, my mom's right next to me. She has work, but she can -- I mean, my mom was the first one to answer the door when [defendant] knocked, and then the guy started to knock and it was kind of just . . . aggressive. It was kind of --

MOTHER: Well, you didn't know what was happening because you were still (indiscernible) --

PLAINTIFF: Yeah, I -- I was --

THE COURT: She can't help you out. You can't -- she -- if that's your mom, she can't help you testify, all right? She'll have to remain quiet. All right.

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Plaintiff testified that he heard the "people [defendant] brought . . . banging on the windows of the house and trying to get in by jiggling the doorknob and banging on the door and yelling for me to come outside." He said the police came, he filed a criminal complaint, and "they drove off." The judge asked defendant if she had any questions for plaintiff, and she said she did not.

Plaintiff's mother testified she was asleep when someone was aggressively pounding on the door, and she went to answer it. She testified defendant asked her whether her son was home and told her to go get her son. There were three men standing behind defendant, the mother said, and they were yelling at her to "bring my pussy son outside." She said the men were aggressive, but defendant was not, but all were intimidating to the mother. She asked them to leave, she shut the door, and the mother said she heard or saw the men bang on her son's window and shake the door handle; she then called the police. The mother testified that since that night, defendant had emailed plaintiff "regarding a dog" and also attempted to contact her other son. The mother's testimony was unclear about who was knocking on the doors and windows. No one testified they saw defendant banging on the door or shaking the door handle. The mother testified she smelled alcohol "on breath" but did

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not identify on whose breath. Again, defendant was offered an opportunity to ask questions of plaintiff's mother and declined.

Defendant's account of the incident differed. She testified she had gone to plaintiff's house to reclaim the dog he had gifted to her while she was in boot camp for military training. Defendant testified that when she broke up with plaintiff, he didn't want the dog anymore and that she needed to take it. Plaintiff had brought the dog to defendant's house and left it in her back yard while she was out of state for work. Defendant had been informed by her own mother that plaintiff wanted ownership of the dog. On the night of the incident, defendant was playing cards and decided to pick up her brother. On the way to getting her brother, defendant wanted to stop at plaintiff's house to discuss the dog. Defendant testified that she knocked on the door and asked to speak to plaintiff about the dog. Plaintiff's mother answered the door and said she wouldn't wake plaintiff, so defendant said she walked away from the door. Defendant also testified that she was "only there with my mom and my two [female] friends."

Defendant also told the court she had no violent history with plaintiff; they had never fought or had any confrontation. Plaintiff did not dispute these assertions. Defendant confirmed that she had emailed plaintiff and his brother regarding the dog after the incident. She testified that "now that I know that

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[the dog] has a home, I have no reason to reach out to [plaintiff]." Defendant stated that she had just returned home from the military and that she had only contacted plaintiff after their breakup one time, because of the dog. Defendant further testified that she thought plaintiff's mother was "getting mad about the dog and everything else." Defendant reiterated that she was only at plaintiff's house to see if they found a home for the dog. The judge offered plaintiff an opportunity to question defendant, so both plaintiff and the judge questioned defendant:

THE COURT: Okay. Any -- [plaintiff], you want to ask [defendant] any questions?

PLAINTIFF: I just -- she said -- you said there was no guys, right?

DEFENDANT: No.

PLAINTIFF: Okay. And you said the only reason you came to the house was to talk?

DEFENDANT: Yes, because that was the same day that you were writing my mom about [the dog].

PLAINTIFF: So, if any of my brothers -- if any of my brothers would say what would happen, would that -- would that be any concern of -- Judge, I'm sorry -- or if my -- if my --

THE COURT: (Indiscernible) question if her -- if your brothers testified and verified there were men there, would that change her testimony?

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PLAINTIFF: No. If there was -- if there was, like, video cameras across my neighbor's house -- my neighbors have video cameras, and I mean, both my brothers were awake. So, would any of that (indiscernible) --

THE COURT: It's up to you, sir. I'm not telling you how to try your case.

PLAINTIFF: Would it change her testimony, I'm sorry.

THE COURT: [Defendant], if he has a video of you with men there, would that -- would that -- does that concern you?

DEFENDANT: No, Your Honor. II.

After hearing the remote testimony, the judge granted the FRO for plaintiff:

The facts are as follows, and some of the facts really aren't contested. [D]efendant . . . went out of the way to go to the plaintiff's house. That's number one. I find in this case that it was -- it was an intentional, purposeful deviation from the normal route . . . . Second, the time. This is between 12:30 a.m. and 1 a.m. I understand you're concerned about a dog, but I don't believe you.

....

You may have been there to talk about the dog. That part may be true, because it looks like there's facts on both sides that there w[ere] issues with the dog, but . . . driving out of your way . . . in the middle of the night tells me you went there to conduct

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business that was not in the ordinary course . . . . And there was offensive language and disturbing or threatening comments at the door.

I don't know if [defendant] was fully engaged in all that. There was some male there calling -- telling the mother to get her pussy son out of the house, but youwerepartofit.... Itwasalarming,itwas[at] extremely inconvenient hours, and it was for no legitimate business purpose.

....

This seems to have some hostility associated with it, and I'm going to enter [an FRO] for that purpose.

In his findings, the judge stated that he didn't know if plaintiff was afraid, but the judge found the totality of the circumstances to be "scary." He found the mother credible, and opined she had no reason to make up stories about whether additional parties had been at her house that night. The judge pointed to the "extra concern about a mother protecting her children that was persuasive." The court entered an FRO at the end of the hearing, forbidding defendant from contacting plaintiff, his mother, and two brothers who live in the house. The judge advised defendant that criminal charges remained pending against her. This appeal followed.

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A.
Addressing defendant's argument that she was deprived of due process

because of numerous irregularities stemming from the remote proceeding, we conclude some of her arguments have merit.

Our Supreme Court has found that due process is violated when a defendant must go forward with an FRO trial twenty-four hours after being served with a domestic violence complaint. H.E.S. v. J.C.S., 175 N.J. 309, 323-24 (2003). Here, defendant was not served with a copy of the complaint at the time of the first hearing. When the court discovered this deficiency, the court emailed her a copy of the TRO complaint and scheduled the matter for trial the following day. This provided defendant less than twenty-four hours' notice to prepare and defend herself. We acknowledge the record demonstrates defendant agreed to proceed; however, she was not represented by counsel.

Furthermore, the trial court has an independent duty to determine the cause of failure to serve a defendant, even if he or she does not object to the failure to serve or request an adjournment. A.M.C. v. P.B., 447 N.J. Super. 402, 419-23 (App. Div. 2016). The PDVA and New Jersey Domestic Violence

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Procedures Manual4 "ensure that individuals charged with committing domestic violence offenses are treated fairly and receive the full panoply of due process rights guaranteed by our federal and State constitutions." Id. at 421.

Moreover, the urgent rush to trial the following day is not supported by the record. It was within the bounds of the court's discretion to maintain the TRO and reschedule the FRO trial to a point in time when defendant could adequately prepare her defense. Indeed, during the second hearing, it was clear defendant did not fully apprehend her right to call witnesses:

THE COURT: [D]o you have anything else you want to tell me? Any other witnesses? Any other evidence?

DEFENDANT: I just have the witnesses of the people that were with me.

THE COURT: Are they going to testify? DEFENDANT: They can but they're not here with me. THE COURT: Today's the trial.

"A brief adjournment may be required if the judge determines that the defendant did not have adequate notice and needs time to prepare." Supreme Court of N.J. & Attorney Gen. of N.J., State of New Jersey Domestic Violence Procedures Manual (Oct. 9, 2008), § 4.12, available at https://www.njcourts.gov/courts/assets/family/dvprcman.pdf.

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When presiding over any adjudication, judges must "preserve the integrity of the judicial process, even from the appearance of impropriety." Id. at 422. Based on our review of the record, the court's conclusion at the first hearing that "for all intents and purposes she is served" fell short of due process.

B.
Although there are obvious, understandable challenges facing judges

who seek to administer effective trials using videoconferencing technology, court directives and due process must nevertheless be maintained. Specifically, each witness must be alone while remotely testifying. "The purpose of sequestration is to discourage collusion and expose contrived testimony." Morton Bldgs. Inc. v. Rezultz, Inc., 127 N.J. 227, 233 (1992) (citing 1 Stephen A. Saltzberg & Michael M. Martin, The Federal Rules of Evidence Manual 736 (5th ed. 1990)). The presence of plaintiff's mother throughout this trial was problematic. Additionally, the parties should not address one another directly, as they did here. These longstanding guardrails remain in place alongside technological advances so that courts may continue to fairly and effectively serve the public amid a grave public health crisis.

In a bench trial such as this, a judge may examine witnesses to clarify testimony, aid the court's understanding, elicit material facts, and assure the

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efficient conduct of the trial. State v. Medina, 349 N.J. Super. 108, 131 (App. Div. 2002); N.J.R.E. 614. However, even in a Zoom bench trial, "a trial judge must take special care to craft questions in such a manner to avoid being perceived as an advocate for any side of a dispute." L.M.F. v. J.A.F., 421 N.J. Super. 523, 537 (App. Div. 2011).

A judge should avoid crossing "that fine line that separates advocacy from impartiality. When that occurs there may be substantial prejudice to the rights of one of the litigants." Village of Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958). While a judge may have to question a pro se party to elicit necessary testimony, "[t]hat should be done in an orderly and predictable fashion . . . and not at the expense of the parties' due process rights." Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006).

Here, the trial court's questioning of plaintiff's mother at times approached advocacy:

THE COURT: Okay. Let me call Ms. -- this is [the judge]. I'm going to recall [plaintiff's mother]. [Mother], come back to the -- to the video.

[MOTHER]: Yes, Your Honor.

THE COURT: Okay. You heard [defendant's] testimony. Does that -- do you have any (indiscernible)?

[MOTHER]: That is concerning to me because I do have the ability -- I guess a question would be to you

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what if I (indiscernible) and once I get in contact with the [realtor] for the house next door, if I can produce the video showing that there were gentlemen standing in my backyard, [defendant], I am appalled that you're even lying about this right at this moment, but what --

THE COURT: (Indiscernible).

[MOTHER]: -- would happen to her if --

THE COURT: Your testimony is inconsistent with what she said and your recollection is there w[ere] men there and you think --

[MOTHER]: That -- yes.

THE COURT: -- and you think -- you think there's a recording from neighbors that show that?

[MOTHER]: Yeah, I -- that (indiscernible) 100 percent sure of, but I'm pretty sure that I could get it, and I also have two other children in this house that saw them standing on my back porch.

The judge's questioning of defendant also failed to meet the requisite standard of impartiality:

THE COURT: (Indiscernible) what was the urgency to go there at 1 -- at 12:30 or 1:00 in the morning? (indiscernible) --

DEFENDANT: Your Honor, I didn't go there with intentions -- like, I didn't leave the house saying, like, oh, I'm going to stop at [plaintiff's house]. It's just that the area we were in (indiscernible) "[Plaintiff's] house is right over here. Like, you think that we could stop? I really want to talk to him, figure out what's going on with [the dog]." When [plaintiff's mother] said that there were arrangements for his son to -- or

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her son to take [the dog] temporary, that's not true. I have a message (indiscernible) --

THE COURT: You're not answering my question. You're not answering my question, though. Why at 1:00 in the morning?

DEFENDANT: Your Honor, it was just because we were in that area on the way to [pick up my brother].

THE COURT: Yeah, but that doesn't make any sense to me. Why -- what was the urgency to do that at 1:00 in the morning when everybody's sleeping?

DEFENDANT: Your Honor, it wasn't really an urgency. It was really just I was out that way and I was like I really want to stop and talk to him.

THE COURT: Did you think he was sleeping?

DEFENDANT: Honestly, I've been home for like a week and a half and everybody's on quarantine, so I really didn't know if he'd be sleeping or not.

We conclude that the irregularities during the remote trial, including improper service of the TRO and the judge's colloquy substantially prejudiced defendant, depriving her of due process. Sreel, 28 N.J. at 132; see also Franklin, 385 N.J. Super. at 543.

III.
When determining whether to grant an FRO under the PDVA, a court

must undertake a two-part analysis. Silver v. Silver, 387 N.J. Super. 112, 125- 27 (2006). "First, the judge must determine whether the plaintiff has proven,

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by a preponderance of the credible 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. Second, the judge must determine whether a restraining order is necessary to protect the plaintiff from future danger or threats of violence. Id. at 126-27.

Since this case turned almost exclusively on the testimony of the witnesses, we defer to the Family Part judge's credibility findings, as he had the opportunity to listen to the witnesses and observe their demeanor. See Gnall v. Gnall, 222 N.J. 414, 428 (2015) (indicating reviewing courts should defer to the trial judge's credibility determinations). We discern no basis on this record to question the judge's credibility determinations.

Under the first prong of Silver, the court found defendant guilty of harassment. 387 N.J. Super. at 125. A person is guilty of harassment where, "with [the] purpose to harass another," he or she:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; [or]

....

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4(a) to (c).] 18

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Harassment requires the defendant act with the purpose of harassing the victim. J.D. v. M.D.F., 207 N.J. 458, 486 (2011). A judge may use "[c]ommon sense and experience" when determining a defendant's intent. State v. Hoffman, 149 N.J. 564, 577 (1997) (citing State v. Richards, 155 N.J. Super. 106, 118 (App. Div. 1978)). "'A finding of a purpose to harass may be inferred from the evidence presented' and from common sense and experience." H.E.S., 175 N.J. at 327 (quoting Hoffman, 149 N.J. at 577). Under the definition of harassment, "any other course of alarming conduct" and "acts with purpose to alarm or seriously annoy" are to be construed as "repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person's reasonable expectation of privacy." State v. Burkert, 231 N.J. 257, 284-85 (2017).

Having reviewed the record, we conclude that there was minimal but sufficient evidence to support the determination defendant committed the predicate act of harassment consistent with the PDVA in support of the first Silver prong. 387 N.J. Super. at 125. The court found specifically that defendant was at plaintiff's house at an inconvenient hour accompanied by other people and that she knocked on the door with a purpose to annoy. The

judge did not find defendant spoke in a crude or offensive manner or in a

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course of conduct with repeated acts. N.J.S.A. 2C:33-4(a) and (c). Nevertheless, we will not disturb the trial judge's finding that the defendant committed the predicate act of harassment. N.J.S.A. 2C:33-4(a).

However, the judge erred in finding plaintiff required an FRO to protect him from future acts of domestic violence. In determining whether a restraining order is necessary, the judge must evaluate the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6) and, applying those factors, decide whether an FRO is required "to protect the victim from an immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127. Whether a restraining order should be issued depends on the seriousness of the predicate offense, "the previous history of domestic violence between the plaintiff and defendant including previous threats [and] harassment[,]" and "whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995) (citing N.J.S.A. 2C:25-29(a)).

Here, the judge found an FRO was necessary to protect plaintiff from further harassment by defendant, but he made no findings and applied none of the factors. Plaintiff did not express fear of defendant; indeed, the judge stated that he did not know whether plaintiff was afraid. Moreover, even plaintiff's mother testified defendant was not aggressive.

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Defendant explicitly stated at numerous points during the trial that she had no reason to further contact plaintiff. Thus, the court erred when it failed to consider plaintiff's lack of need for future protection. Silver, 387 N.J. Super. at 127. It is undisputed that there was no previous history of domestic violence between the parties. Corrente, 281 N.J. Super. at 248. Because the trial court's application of the law was clearly erroneous, we are constrained to reverse the FRO against defendant.

Reversed.

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