SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5357-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.J.,

Defendant-Appellant.

————————————————————————————

Argued May 18, 2017 – Decided

Before Judges Hoffman and O'Connor.

On appeal from Superior Court of New Jersey, 

Chancery Division, Bergen County, Docket No. 

FO-02-0280-15.

James D. Addis argued the cause for appellant.

Elizabeth R. Rebein, Assistant Prosecutor, 

argued the cause for respondent (Gurbir S. 

Grewal, Bergen County Prosecutor, attorney; 

Ms. Rebein, of counsel and on the brief).

PER CURIAM

Defendant A.J. appeals from a May 19, 2015 order finding him 

guilty of harassment, N.J.S.A. 2C:33-4(c), and contempt, N.J.S.A.

NOT FOR PUBLICATION WITHOUT THE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.

July 12, 2017
2 A-5357-14T2

2C:29-9(b), for violating a New York State order of protection.1 

He contends the record lacks sufficient evidence to support either 

conviction. He further asserts the trial court failed to elicit 

a knowing, voluntary, and intelligent waiver of his right to 

counsel. For the reasons that follow, we affirm the contempt 

conviction and reverse the harassment conviction.

I.

We discern the following facts from the trial record. 

Following their divorce, defendant and K.O. had a contentious 

relationship. On June 6, 2014, a judge in New York State entered 

an order of protection prohibiting defendant from communicating 

with K.O. or their two children in any manner, including indirectly 

through third parties. On November 19, 2014, the court entered a 

temporary order of visitation, modifying the order of protection 

to allow defendant to communicate with K.O. "by e-mail with respect 

to the subject children." The modified order also afforded 

defendant parenting time with the children, allowed him to attend 

the children's functions, and provided for defendant to pick up 

and return the children at a police precinct. The visitation 

 

1 N.J.S.A. 2C:29-9(b)(2) proscribes the purposeful or knowing 

violation of an order entered under the provisions of the

Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -

35, "or an order entered under the provisions of a substantially 

similar statute under the laws of another state or the United 

States."
3 A-5357-14T2

order additionally granted defendant parenting time from 10 a.m. 

on December 24, until 6 p.m. on December 25, 2014.

Defendant failed to appear at the police precinct at 10 a.m. 

on December 24, as he mistakenly believed the pickup time was at 

6 p.m. According to defendant, "[A]t 1:12 p.m., I received a text 

from my attorney saying that I missed my pickup[;] it was 10 a.m." 

Notwithstanding the order of protection, defendant called K.O. 

Defendant testified, "I was very cordial with her on the phone. 

She said she would call me back. And then I never heard from her 

again until later on that afternoon." Defendant then sent K.O. 

three text messages trying to coordinate an alternative time to 

pick up the children. When K.O. did not immediately respond to 

defendant's messages, he sent an additional text message stating, 

"I don't mean to bother you but it's now over [forty] minutes 

since I reached out to you, can you please let me know the status. 

Thank you and sorry for the mix up this morning."

At 6:36 p.m., K.O. sent defendant an email declining his 

request "to schedule a visitation that deviates from the courtmandated visitation schedule." K.O. did offer to "arrange for an 

additional phone call tomorrow . . . [i]f you'd be interested in 

this."
4 A-5357-14T2

At 6:50 p.m., defendant responded by sending an email 

addressed to K.O., but inserting "The Problem" between her first 

and last name. The email stated:

Once again, you are again in contempt of court 

and your behavior will once again be brought 

before the judge in family court. Your 

actions clearly do not represent the best 

interest of the children and I pray for you. 

Based upon the recent remarks presented in 

court, I thought you would go above and beyond 

to satisfy the requests of the judge, but 

apparently, you think and feel that you are 

above the law. You[r] actions do not hurt me, 

but they are damaging the well[-]being of the 

children and again, I pray for you. So telling 

me that you already have plans (even [though]

you are at home) because of the holiday season 

is erroneous since I was willing and able to 

meet you at any other location for your 

convenience. 

With that I wish you all the best.

At trial, K.O explained that defendant's email made her feel 

"[i]ncredibly nervous. He has tried to hold me in contempt of 

court before." On January 12, 2015, after meeting with her 

attorney, K.O. went to the local police department and filed 

complaints for harassment and contempt against defendant. 

On March 25, 2015, defendant appeared in court and stated his 

intention to apply for a public defender. On April 22, 2015,

defendant returned to court and advised the judge that his 

application for a public defender had been denied. At that point, 
5 A-5357-14T2

the judge questioned defendant to confirm defendant was making a 

knowing and voluntary waiver of his right to counsel.

The case proceeded to trial on May 19, 2015, with the State 

presenting testimony from K.O. and the police officer who took her 

complaint. Defendant, appearing pro se, testified on his own 

behalf. At the conclusion of the testimony and summations, the 

trial judge found defendant guilty of both harassment and contempt. 

The judge stated that defendant's phone call and text messages to 

K.O. were solely about the children, there was a reason for those 

communications. The email, however, was not about the children;

it was about defendant's "ex-wife." The judge stated that when 

defendant referred to his ex-wife as "The Problem," he was 

"shifting the blame" for his mix-up to her. Because the judge 

found the email did not constitute a permitted email concerning 

the children, but instead was a "lecturing" email attempting to 

shift the blame for defendant's own mistake to his ex-wife, he 

concluded the email violated the order of protection, as modified. 

The judge further concluded the email constituted "a criminal 

offense of harassment[,] [g]iven the history in this case."

II.

Our review of a Family Part judge's findings is deferential 

"to those findings of the trial judge which are substantially 

influenced by his [or her] opportunity to hear and see the 
6 A-5357-14T2

witnesses and to have the 'feel' of the case, which a reviewing 

court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999)

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "Deference 

is especially appropriate 'when the evidence is largely 

testimonial and involves questions of credibility.'" Cesare v. 

Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons 

to J.W.D., 149 N.J. 108, 117 (1997)).

The purpose of the Act is to assure victims of domestic 

violence "the maximum protection from abuse the law can provide." 

State v. Hoffman, 149 N.J. 564, 584 (1997) (quoting N.J.S.A. 2C:2-

18). To establish a disorderly person's contempt of court, the 

State must prove that defendant "purposely or knowingly" violated 

a restraining order. N.J.S.A. 2C:29-9(b); State v. L.C., 283 N.J. 

Super. 441, 447 (App. Div. 1995), certif. denied, 143 N.J. 325 

(1996). "[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."
7 A-5357-14T2

A person is guilty of harassment if he or she, with the 

purpose to harass another,

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.]

Under either section of this statute, a defendant must act 

with the purpose to harass. Bresocnik v. Gallegos, 367 N.J. Super.

178, 182-83 (App. Div. 2004). Subsection (a) targets specific 

modes of speech, including communications "at extremely 

inconvenient hours," and requires that the manner of speech be 

"likely to cause annoyance or alarm." Hoffman, supra, 149 N.J.

at 576 (quoting N.J.S.A. 2C:33-4(a)). Subsection (c) requires a 

course of repeated conduct, motivated by a higher degree of 

purpose, "to alarm or seriously annoy." Id. at 580. The 

harassment statute was not enacted to "proscribe mere speech, use 

of language, or other forms of expression." L.C., supra, 283 N.J. 

Super. at 450; see also State v. Fin. Am. Corp., 182 N.J. Super.

33, 36-38 (App. Div. 1981). Rather, since the First Amendment to 
8 A-5357-14T2

the United States Constitution "permits regulation of conduct, not 

mere expression," the speech punished by the harassment statute 

"must be uttered with the specific intention of harassing the 

listener." L.C., supra, 283 N.J. Super. at 450.

Regarding the harassment charge, "[a] finding of a purpose 

to harass may be inferred from the evidence presented[,]" and 

"[c]ommon sense and experience may inform that determination." 

Hoffman, supra, 149 N.J. at 577. Nonetheless, we note that 

purposeful conduct "is the highest form of [mens rea] contained 

in our penal code, and the most difficult to establish." State 

v. Duncan, 376 N.J. Super. 253, 262 (App. Div. 2005). Its 

establishment requires proof, in a case such as this, that it was 

the actor's "conscious object to engage in conduct of that nature 

or to cause [the intended] result," N.J.S.A. 2C:2-2(b)(1), i.e.,

to alarm or seriously annoy another person. A person's assertion 

that the conduct is harassing is not sufficient. J.D. v. M.D.F., 

207 N.J. 458, 484 (2011). Further, a "victim's subjective reaction 

alone will not suffice; there must be evidence of the improper 

purpose." Id. at 487.

Here, the judge made no specific finding defendant acted with 

this requisite purpose, nor may we view defendant's words as 

implicitly embodying a purpose to harass. Accordingly, in the 

absence of this integral finding, the judge's determination that 
9 A-5357-14T2

defendant committed harassment must be reversed. See Corrente v. 

Corrente, 281 N.J. Super. 243, 249-50 (App. Div. 1995).

We note, however, that reversal of defendant's harassment 

conviction does not impact defendant's contempt conviction arising 

out of the same conduct. In Hoffman, supra, 149 N.J. at 589, the 

Court sustained a contempt conviction without a finding of guilt 

on a related harassment complaint, because the mailing of letters 

by defendant to the victim constituted contact that was prohibited 

by the restraining order. Here, defendant's email to his ex-wife 

went beyond the proscription of the order of protection, which 

allowed communications "with respect to the subject children,"

thus violating the order.

Regarding the contempt conviction, we conclude the record 

supports the judge's factual findings, and the judge applied the 

correct legal principles in reaching his ultimate decision. 

Accordingly, we discern no basis to reverse the contempt 

conviction. As for the harassment conviction, we are constrained 

to reverse, based upon our review of the trial record.

Finally, we briefly address defendant's argument that the 

trial court failed to elicit a knowing, voluntary, and intelligent 

waiver of his right to counsel. Based upon our review of the 

court's colloquy with defendant on April 22, 2015, four weeks 

before the trial in this matter, we conclude this argument lacks 
10 A-5357-14T2

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). 

Affirmed in part, and reversed in part.