RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3214-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERARD L. BROWN,

Defendant-Appellant.

_______________________

Submitted April 12, 2021 – Decided May 4, 2021

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Monmouth County, 

Docket No. FO-13-0038-20 and Complaint No. W2019-445-1325.

Eileen S. Den Bleyker, attorney for appellant. 

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Monica do 

Outerio, Assistant Prosecutor, of counsel and on the 

brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant appeals from a February 28, 2020 judgment of conviction, 

finding him guilty of harassment, N.J.S.A. 2C:33-4(a). Because defendant did 

not receive notice of the harassment charge prior to trial, he was deprived of his 

right to due process. Accordingly, we reverse his conviction for harassment. 

In 2019, defendant was charged pursuant to N.J.S.A. 2C:29-9(b)(2) with 

disorderly persons contempt for violating a domestic violence final restraining 

order (FRO). The FRO, issued in 2005, prevented defendant from contacting 

V.R. (Vera).

1

 Defendant and Vera never married but shared custody of their 

son, J.B. (John). The FRO barred defendant from Vera's residence and her place 

of employment. Regarding John, the FRO judge allowed defendant to pick him 

up and drop him off at Vera's home. During the FRO hearing, the judge stated, 

"Defendant is prohibited from having any kind of communication with [Vera,]" 

and then added "[a]nd not regarding communications with your son." From 

2005 until June 2019, defendant never communicated with Vera directly. 

On June 16, 2019, Father's Day, John was visiting at his father's home. 

Defendant planned to attend a family barbeque with his son. As they were 

leaving for the barbeque, defendant noticed John was not dressed appropriately 

for the occasion. Defendant instructed John to change his shirt, and he refused. 

1

 We refer to the parties by initials to protect their privacy. R. 1:38-3(d)(10).
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After John declined to change his shirt a second time, defendant indicated

he would contact Vera to take John home. However, because it was a long drive, 

defendant rethought his original plan and decided to drive John to Vera's home. 

Defendant then contacted Vera to inform her of the events that transpired 

between father and son because he wanted everyone to be "on the same page." 

Unbeknownst to defendant, John already texted his mother. In his text, 

John told his mother "Dad is trying to starve me out . . . because I won't ch[an]ge 

a shirt . . . ." John explained defendant was refusing to make breakfast based on 

the shirt incident. Upon receiving the text, Vera agreed to take John home. 

After defendant decided to drive John to Vera's home, John advised his 

mother agreed to pick him up. Upon learning this information, defendant texted 

Vera. The texts read:

Hello, there's no need to pick [John] up, I am coming to 

Long Branch in an hour. I had asked [John] to change 

his shirt because we were going somewhere for 

breakfast and I asked him to change into something 

much nicer and he refused. I kindly told him fine, he 

can make his own breakfast or warm up anything in the 

fridge. Sorry, but I'm not letting a 17-year-old 

determine when he listens. I've been nothing but nice 

to [John] and I demand respect. I did tell him that by 

you picking him up is not coparenting, you need to 

contact me first to see what [is] going on and then 

decide what to do. I've taken him to . . . a barbecue in 

Long Branch with family. 
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. . . Any questions feel free to call. . . . But we [are]

going out, it's still my weekend. I will bring [John] 

home at 3:00. . . . He is texting you and I just read to 

him what I wrote to you so we all be on the same page. 

Two hours later, defendant texted the following to Vera:

You can't teach [John] to be a man, but you certainly 

have stunted his growth tremendously by sheltering 

him. Today was absolutely why [John] does not know 

how to figure things out and handle situations without 

your help. [John] was safe, it was a normal situation 

between father and son, and you interfered as usual. 

Have a good day.

Vera did not respond to defendant's text messages. 

Defendant knew the FRO prohibited him from contacting Vera. However, 

defendant did not believe his texts were a violation of the FRO because he 

understood there was an exception in the FRO allowing him to text Vera "in case 

of a situation involving the child." 

After sending the text messages to Vera, the police contacted defendant to 

advise he violated the FRO. Defendant searched for a copy of the 2005 FRO to 

confirm the violation of the order but was unable to locate the document. 

On June 16, 2019, defendant was charged with disorderly-persons 

contempt, N.J.S.A. 2C:29-9(b)(2), for violating the FRO. On January 17, 2020, 

the court conducted a one-day trial on the contempt charge. Defendant and Vera 
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were the only witnesses who testified. At the conclusion of the testimony, the 

trial judge requested written summations from counsel. 

In a February 28, 2020 ruling from the bench, the trial judge set forth his 

findings of fact and conclusions of law. He noted the judge who issued the 2005 

FRO said "a few confusing things," including communications related to the 

parties' son. The trial judge remarked the FRO judge's statement was not the 

"clearest" way of explaining the scope of communications between defendant 

and Vera regarding their child. 

Based on the filed charge, the trial judge correctly determined the State 

had to "prove defendant purposely or knowingly violated the restraining order."

Defendant testified he did not recall the parameters of the FRO and had no 

intention of purposely violating the FRO. Based on the testimony and 

documentary evidence, the judge found defendant did not willfully violate the 

FRO and acquitted defendant of the contempt charge. 

After finding defendant not guilty of contempt for violating the FRO, the 

judge sua sponte amended the charge against defendant to "a lesser charge of 

harassment . . . N.J.S.A. 2C:33-4(a)." However, the State never charged 

defendant with harassment. 

In finding defendant guilty of harassment, the trial judge explained:
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I think [harassment is] the more appropriate thing here, 

because I think these comments -- up until that point 

where I read were fine, but once you started with those 

comments directly against [Vera] and talking about 

how she is parenting, that clearly could be harassing 

and annoyed her, and based on her testimony and seeing 

her it upset her. That's really what harassment is.

After finding defendant guilty of harassment, the judge imposed monetary fines. 

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN SUA SPONTE 

AMENDING THE CHARGE TO HARASSMENT 

UNDER N.J.S.A. 2C:33-4(a) DEPRIVING 

DEFENDANT OF PROCEDURAL DUE PROCESS 

UNDER THE STATE AND FEDERAL 

CONSTITUTIONS AND VIOLATING PRINCIPLES 

OF FUNDAMENTAL FAIRNESS.

A. The Conviction Cannot Be Justified Under the 

Doctrine of Lesser Included Offenses, Nor That of 

Related Offenses.

POINT II

THE EVIDENCE IN THE RECORD IS 

INSUFFICIENT TO SUPPORT A CONVICTION 

UNDER N.J.S.A. 2C:33-4(a). (Not Raised Below).

A. Insufficient Evidence in the Record to Prove 

Defendant's Purpose Was to Harass.

B. Insufficient Evidence in the Record to Prove 

Defendant’s Conduct Was Undertaken in an "Other 

Manner Likely to Cause Annoyance or Alarm" 
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Resulting in an Unconstitutionally Overbroad 

Application of the Harassment Statute.

POINT III

THE CONDUCT ALLEGED IN THE COMPLAINT 

WAS LEGITIMATE, CAUSED NO 

DEMONSTRABLE HARM AND THE CHARGES 

SHOULD HAVE BEEN DISMISSED UNDER THE 

DE MINIMIS STATUTE. 

"A trial court's interpretation of the law and the legal consequences that 

flow from established facts are not entitled to any special deference." 

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). 

However, we defer to a trial court's "findings of fact because they 'are 

substantially influenced by [an] opportunity to hear and see the witnesses and to 

have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. 

Hubbard, 222 N.J. 249, 262 (2015) (quoting State v. Johnson, 42 N.J. 146, 161 

(1964)). 

Defendant argues his conviction for harassment violated his due process 

rights because he had no notice or opportunity to defend against the amended 

charge. The State agrees, explaining it "cannot dispute that this error exists and 

that it warrants reversal of the defendant's conviction for petty-disorderlypersons harassment." 
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Even if the State had not agreed, we are satisfied the trial judge violated 

defendant's due process rights by sua sponte amending the charge against 

defendant after completion of the trial. "Due process requires that the charging 

instrument not only inform a defendant respecting the nature of the charge, but 

it must also inform an accused of how many charges he or she faces and when 

they occurred." State v. Salzman, 228 N.J. Super. 109, 114 (App. Div. 1987)

(citing State In Interest of K.A.W., 104 N.J. 112 (1986)). 

Here, defendant did not receive notice of the harassment charge until after 

the trial concluded. As a result of the failure to notify him of the harassment 

charge prior to trial so he could properly defend himself, defendant was denied 

due process. Having reviewed the record, we are satisfied defendant's 

conviction for harassment must be reversed.2 

We remand the matter to the trial judge to vacate defendant's harassment 

conviction and enter a final judgment of acquittal on both the disorderly persons 

contempt charge for violation of the 2005 FRO and the amended harassment 

charge. The matter shall be deemed final such that the constitutional 

proscription against double jeopardy precludes a retrial of defendant for the 

2 Based on our reversal of the harassment conviction, we need not address 

defendant's remaining arguments on appeal. 
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events occurring on June 16, 2019. See State v. Currie, 41 N.J. 531, 536 (1964)

(explaining double jeopardy "justly assures that the State with its great resources 

will not be permitted to harass and oppress the individual by multiple 

prosecution or punishment for the same offense"). Additionally, the trial judge 

shall order a refund of all fines and penalties paid by defendant as a result of the 

harassment conviction. 

Reversed and remanded. We do not retain jurisdiction.