RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4729-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT MOSTYN,

Defendant-Appellant.

_____________________________________________

Argued August 15, 2017 – Decided

Before Judges Messano and Sumners.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Bergen County, 

Docket No. FO-02-0218-16.

Hilary L. Brunell argued the cause for 

appellant (Mason Thompson, LLC, attorneys; Ms. 

Brunell, on the briefs).

Michael R. Philips, Assistant Prosecutor, 

argued the cause for respondent (Gurbir S. 

Grewal, Bergen County Prosecutor, attorney; 

Mr. Philips, of counsel and on the brief).

PER CURIAM

Defendant Robert Mostyn appeals from the Family Part's June 

28, 2016 judgment of conviction finding him guilty of the 

disorderly persons offense of contempt of a domestic violence 

NOT FOR PUBLICATION WITHOUT THE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.

October 5, 2017
2 A-4729-15T2

restraining order, N.J.S.A. 2C:29-9(b)(2), and the petty 

disorderly persons offense of defiant trespass, N.J.S.A. 2C:18-

3(b)(1). The judge imposed a 30-day sentence, and suspended same 

pending defendant's completion of a one-year period of probation.

I.

The evidence adduced at defendant's bench trial revealed that 

on September 15, 2015, the victim, J.A., a college student at a 

university in Florida, obtained a temporary restraining order 

(TRO) against defendant, her ex-boyfriend, pursuant to Fla. Stat. 

Ann. § 784.046 (West 2015). The TRO prohibited defendant from 

having any contact or communication with J.A., entering or being 

within 500 feet of J.A.'s residence and her school in Florida, and 

entering specific locations in New Jersey, including a gym.

On September 21, police served defendant with the TRO at his 

home. During the ten minutes he spent at defendant's home, Police 

Officer John Rodriguez provided defendant with a copy of the TRO, 

watched him read it, and explained defendant could not make contact 

with J.A. or go to the specific locations. Defendant read the 

TRO, acknowledged he understood its terms and then signed it. 

That evening, defendant met with Anthony Colasanti, a New 

Jersey attorney and family friend. Colasanti was not a member of 

the Florida bar, did not practice in Florida and testified he had 

never seen a Florida restraining order. 
3 A-4729-15T2

Colasanti provided the following instructions to defendant:

[T]he intent of this order is that you have 

no contact, not get within 500 feet of [J.A.], 

and if you're telling me that [she] is in 

Florida, I see no basis on this order 

restricting you or limiting you [sic] movement 

in New Jersey. But if [J.A.'s] in New Jersey 

. . . , you can't go within 500 feet of her. 

You can't go by her house; you can't go by her 

school; you can't go by wherever is [sic] says 

you can't go by, so you better make sure that 

she'd [sic] either in Florida or she's in New

Jersey.

. . . .

[Defendant] told me that he had been a 

member at the [gym] for . . . years and years, 

and again, I said to him[,] if she's in 

Florida, you want to go the [gym], make sure 

she's in Florida. Do not go there if she's 

in New Jersey. 

 

Colasanti did not ask defendant how he knew J.A. was in Florida.

The next morning, September 22, defendant testified that he 

spoke with his cousin who attended the same university as J.A. and 

shared mutual friends with J.A. As a result, defendant believed 

J.A. was in Florida and went to the gym.

1 

That same morning, Detective Brad Smith of the Ramsey Police 

Department responded to a call that defendant was seen at the gym. 

 

1 Defendant's cousin did not testify at trial. J.A. did testify 

and acknowledged she was in Florida on September 22. She also 

described in detail defendant's alleged physical assault that led 

to his arrest in Florida and issuance of the TRO. 
4 A-4729-15T2

Detective Smith reviewed surveillance videos, which verified 

defendant's presence at the gym in the morning. After other units 

located defendant driving his car, police conducted a traffic stop 

and arrested defendant. He waived his Miranda2 rights and provided 

a taped statement that was introduced into evidence at trial. We 

quote briefly from that statement:

Q: Okay. Are you aware you are not permitted 

to be [at the gym]?

A: I know, but I mean, I thought she would 

have to be the one to call up and complain, 

but she's not there. None of her family 

members are, I can't believe, like I got 

arrested. 

Q: So you're aware that there is a restraining 

order barring you from –

A: Temporary restraining order, yeah, but if 

she's around. Like I asked – I told my mom 

and everything, she said it's not a good idea 

but. I'm like, I don't really know, it can't 

be, she's not home. Like when she's not home, 

she didn't call it in . . . .

During his trial testimony, defendant admitted going to the gym,

but insisted he relied on Colasanti's advice that he was barred

from specific locations only if J.A. was in New Jersey. 

 

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966). 
5 A-4729-15T2

Defense counsel argued the affirmative defense of ignorance 

or mistake pursuant N.J.S.A. 2C:2-4. That section of our Criminal 

Code provides in relevant part:

a. Ignorance or mistake as to a matter of 

fact or law is a defense if the defendant 

reasonably arrived at the conclusion 

underlying the mistake and:

(1) It negatives the culpable mental state 

required to establish the offense[.]

. . . .

c. A belief that conduct does not legally 

constitute an offense is a defense to a 

prosecution for that offense based upon such 

conduct when:

. . . .

(3) The actor otherwise diligently pursues 

all means available to ascertain the meaning 

and application of the offense to his conduct 

and honestly and in good faith concludes his 

conduct is not an offense in circumstances in 

which a law-abiding and prudent person would 

also so conclude.

The defendant must prove a defense arising 

under subsection c. of this section by clear 

and convincing evidence.

[Ibid.]

In summation, defense counsel argued the "affirmative defense" 

under subsection (c) applied because defendant took reasonable 

steps after being served with the TRO and relied on Colasanti's 
6 A-4729-15T2

advice in good faith. In addition, counsel argued defendant lacked 

a culpable "mens rea." 

The State countered by arguing the restraining order clearly 

prohibited defendant from going within 500 feet of the gym and was 

not limited to only when J.A. was in New Jersey. The State 

contended defendant's claim was limited to subsection (c)(3) of 

the statute, and defendant did not diligently pursue all available 

means to ascertain the import of the restraining order, nor did 

he honestly and in good faith conclude his conduct was permitted.

The judge found the TRO was clear and unambiguous and

defendant was aware of its terms. The TRO did not provide that 

"defendant [was] to refrain from entering [the gym] only when 

[J.A.] was there." The judge also found that defendant could not 

have advised Colasanti at the time of the consultation that J.A. 

was definitively in Florida.

The judge specifically found that defendant's testimony about 

the September 22 phone call with his cousin in Florida was not 

credible. The judge noted that the TRO resulted from defendant's 

failure to stay away from J.A. after a no contact order in Florida 

went unheeded. The judge further observed that defendant chose 

to violate the TRO the morning after police served him. The judge 

commented on defendant's demeanor during J.A.'s testimony and 

during defendant's testimony. In finding defendant guilty of both 
7 A-4729-15T2

offenses, the judge concluded defendant had failed to demonstrate 

by clear and convincing evidence "there was reliance on a mistake 

of law."

Before us, defendant raises the following arguments:

POINT I

THE DEFENDANT FORMED A GOOD FAITH BELIEF, 

BASED ON ADVICE OF COUNSEL, THAT HE WOULD NOT 

BE IN VIOLATION OF A FLORIDA RESTRAINING ORDER 

WHEN HE WENT TO HIS NEW JERSEY GYM. HE 

THEREFORE DID NOT KNOWINGLY VIOLATE THE ORDER 

OR COMMIT THE CRIME OF TRESPASS.

A. SCOPE OF REVIEW

B. THE FAMILY COURT ERRED IN APPLYING THE 

MISTAKE OF LAW DOCTRINE.

1. THE MISTAKE OF LAW DOCTRINE UNDER 

N.J.S.A. 2C:2-4 WAS APPLICABLE TO 

THE SPECIFIC INTENT CRIMES OF 

CONTEMPT AND TRESPASS.

2. A MISTAKE OF LAW WAS FORMED AFTER 

REASONABLE EFFORTS WERE MADE TO 

DETERMINE WHETHER THE VISIT TO THE 

NEW JERSEY GYM WOULD VIOLATE THE 

TERMS OF THE FLORIDA NO CONTACT 

ORDER.

3. THE FAMILY COURT'S FINDINGS WITH 

REGARD TO MATERIAL 

MISREPRESENTATION WERE LEGALLY AND 

FACTUALLY INCORRECT.

We have considered these arguments in light of the record and 

applicable legal standards. We affirm.
8 A-4729-15T2

II.

"An appellate court must accept a trial court's factual 

finding if it is supported by sufficient credible evidence in the 

record." State v. Arthur, 184 N.J. 307, 320 (2005) (citing State 

v. Locurto, 157 N.J. 463, 472 (1999)). "Unlike an appellate court, 

a trial judge has the 'opportunity to hear and see the witnesses,'

which includes observing gestures and facial expressions." State 

v. Yough, 208 N.J. 385, 403 (2011) (quoting Locurto, supra, 157 

N.J. at 471).

We owe no deference, however, to the "trial court's 

interpretation of the law . . . and the consequences that flow 

from established facts[,]" which we review de novo. State v. 

Hubbard, 222 N.J. 249, 263 (2015). Questions of statutory 

interpretation present purely legal issues, which we also review 

de novo. State v. Grate, 220 N.J. 317, 329 (2015).

We explained the distinction between subsection (a) and 

subsection (c) of N.J.S.A. 2C:2-4 in State v. Wickliff, 378 N.J. 

Super. 328 (App. Div. 2005). There, the defendant, a bail 

collection agent, entered certain premises to apprehend a fugitive 

and was convicted of trespass. Id. at 331. On appeal, the 

defendant argued the judge improperly denied him the opportunity 

to present certain evidence about his training and failed to 

properly instruct the jury on his mistake of law defense, namely, 
9 A-4729-15T2

that he was taught under federal law applicable to New Jersey he 

had license or privilege as a bounty hunter to enter the residence. 

Id. at 333-34, 337. We reversed because of the judge's "compound 

error" in barring certain evidence and wrongly instructing the 

jury. Id. at 341.

We explained that under N.J.S.A. 2C:2-4(a)(1), a defendant 

may invoke the mistake of law defense if he "reasonably arrived 

at the conclusion underlying the mistake" and his mistake 

"negatives the culpable mental state required to establish the 

offense." Id. at 334 (quoting N.J.S.A. 2C:2-4(a)(1)). Subsection 

(a) "does not really create a separate defense; rather it serves 

to emphasize that a mistake may negate the culpability element 

required for conviction of an offense." Id. at 334. Subsection 

(a) "was, in effect, technically unnecessary because it simply 

confirms that 'no person may be convicted of an offense unless 

each element . . . is proven beyond a reasonable doubt.'" Ibid.

(alteration in original) (quoting State v. Sexton, 160 N.J. 93, 

100 (1999)). "The mistakes of law covered by subsection (a) do 

not involve errors over whether actions are criminal; they are 

mistakes concerning legal issues that are relevant to proof of the 

elements of an offense." Id. at 335 (citing Cannel, New Jersey 

Criminal Code Annotated, comment 2 on N.J.S.A. 2C:2-4 (2005)). 
10 A-4729-15T2

We contrasted this with the affirmative defense contained in

the "narrow terms" of subsection (c), whereby conduct is excused 

by the defendant's "ignorance of the legal standard established 

by the statute [he] is alleged to have violated." Ibid. The 

defense offered by subsection (c) is available under "limited 

conditions," and "[i]n such cases, it is incumbent on the defense 

to establish its theory of mistake of law by clear and convincing 

evidence." Id. at 336, 339 (citing N.J.S.A. 2C:2-4(c)).

Clearly, defense counsel's summation focused the judge's 

attention only upon N.J.S.A. 2C:2-4(c)(3), arguing essentially 

that defendant's conference with Colasanti evidenced a diligent 

attempt to "ascertain the meaning and application of the offense 

to his conduct," i.e., going to the gym, and resulted in 

defendant's "good faith" conclusion that he would not violate the 

TRO if he went to the gym. Ibid. Indeed, much of the judge's 

oral decision focused on defendant's reliance on Colasanti's 

advice. The judge sought to synthesize federal and New Jersey 

decisional law which, in our opinion, had little to do with this 

case.

Nevertheless, it is clear that the judge understood that 

defendant bore the heavy burden of proving the affirmative defense 

by clear and convincing evidence. He rejected defendant's claim 

that he knew J.A. was in Florida based upon a phone conversation 
11 A-4729-15T2

between defendant and his cousin, or that Colasanti was provided 

with definitive information regarding her whereabouts. The judge 

noted Colasanti was not familiar with Florida law. We defer to 

the judge's factual findings which were largely dependent upon his 

observation of the witnesses and their demeanor during trial. 

Based on those factual findings, we cannot conclude that he erred 

in determining that defendant had not established the affirmative 

defense available under N.J.S.A. 2C:2-4(c)(3) by clear and 

convincing evidence.

At oral argument before us, defense counsel predominantly

focused her attention on subsection (a) and argued the judge failed 

to address its application to the proofs at trial. We cannot 

fault the judge in this regard, since the entire argument of 

defense counsel at trial on this point was little more than a 

single sentence.3

To be guilty of either the fourth-degree crime or the 

disorderly persons offense of contempt of a domestic violence 

restraining order, a person must "purposely or knowingly violate[] 

an order entered under the provisions of the Prevention of Domestic 

Violence Act of 1991" or the equivalent legislation of another 

state. N.J.S.A. 2C:29-9(b) (emphasis added). N.J.S.A. 2C:18-3(b)

 

3 Defendant is represented by different counsel on appeal.
12 A-4729-15T2

also requires the State prove a defendant acted knowingly in 

committing a defiant trespass. See id. ("A person . . . knowing

that he is not licensed or privileged to do so, . . . enters or 

remains in any place as to which notice against trespass is given 

by . . . [a]ctual communication to the actor[.]") (emphasis added). 

The Criminal Code defines the requisite mental state:

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. A person acts knowingly 

with respect to a result of his conduct if he 

is aware that it is practically certain that 

his conduct will cause such a result. 

"Knowing," "with knowledge" or equivalent 

terms have the same meaning.

[N.J.S.A. 2C:2-2(b).]

Although the judge did not specifically address subsection 

(a) in his findings, he concluded the State had proven defendant's 

guilt beyond a reasonable doubt, thereby implicitly rejecting any 

argument that defendant did not knowingly violate the TRO or enter 

the gym with knowledge that he was permitted to do so. The 

evidence supports the judge's factual findings, which in turn

support his legal conclusion.

The judge noted several times in his decision that the terms 

of the TRO were clear and unambiguous on their face. Defendant 

was fully aware that the TRO prohibited him from going to the gym. 
13 A-4729-15T2

Yet, one day after being served with the TRO, defendant decided 

to violate its terms. When arrested, defendant acknowledged in 

his statement that he understood he was not supposed to be at the 

gym and that his mother told him it was not a good idea. Defendant

did not tell police that he based his decision upon Colasanti's

advice; instead, he explained that he thought only J.A. could 

"call up and complain." The judge specifically noted there was 

no exception in the TRO that permitted defendant to go to the gym 

or other prohibited places if J.A. were not in New Jersey. 

Rejecting defendant's testimony, the judge found defendant "had 

no way to know for sure [if J.A.] was [at the gym]."

In short, the judge's factual findings implicitly reject 

defendant's mistake or ignorance defense and fully support the 

judge's conclusion that defendant was guilty beyond a reasonable 

doubt.

Affirmed.