RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0303-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

O.D.C.

1

,

Defendant-Appellant.

_______________________

Submitted May 25, 2021 — Decided June 10, 2021

Before Judges Yannotti and Mawla.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Burlington County, 

Docket Nos. FO-03-0306-20 and FO-03-0378-20.

Kalavruzos, Mumola, Hartman & Lento, LLC, 

attorneys for appellant (W. Les Hartman, of counsel 

and on the brief; Jessica A. Wilson, on the brief).

Scott A. Coffina, Burlington County Prosecutor, 

attorney for respondent (Alexis R. Agre, Assistant 

Prosecutor, of counsel and on the brief).

1 We utilize the parties' initials pursuant to Rule 1:38-3(c)(12).

NOT FOR PUBLICATION WITHOUT THE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.
2

A-0303-20

PER CURIAM

Defendant O.D.C. appeals from an August 18, 2020 judgment of 

conviction for contempt, N.J.S.A. 2C:29-9(b)(2), of a final restraining order 

(FRO) entered pursuant to the Prevention of Domestic Violence Act (PDVA), 

N.J.S.A. 2C:25-17 to -35. We affirm. 

By way of background, three children were born of defendant's marriage 

to M.C. The parties became estranged and were in the midst of divorce 

proceedings throughout this matter. Defendant was also involved in a 

relationship with a girlfriend, A.B., who had children of her own. In November 

2018, M.C. filed a domestic violence complaint and following a trial received 

an FRO on December 18, 2018, which restrained defendant from having any 

contact with M.C. and their children. On March 27, 2019, the parties appeared 

for a hearing on an enforcement motion filed by M.C. alleging he violated the 

FRO. A Family Part judge entered an amended FRO, which continued to 

restrain defendant from contacting M.C., but granted him the ability to 

communicate with the children through the eldest child's cell phone and 

parenting time pursuant to an order entered in the parties' non-dissolution case. 

The FRO further noted M.C. should contact the police and file a criminal 

complaint "to address violations of the FRO[.]"
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On July 30, 2019, defendant was tried for contempt of the amended FRO 

based on a complaint-warrant filed on behalf of M.C. The complaint-warrant

alleged defendant downloaded a tracking application onto the eldest daughter's 

cell phone and used the cell phone to send messages to M.C. Defendant was 

convicted of contempt, sentenced to one year of probation, and ordered to pay 

fines and penalties. 

On August 28, 2019, defendant sent the following text to M.C. and A.B.:

Listen, [I] know I caused you guys a lot of problems, I 

regret for ever coming into either of [your] lives. I truly 

do. I wish I could have been what you guys needed in 

life. I always just wanted what was best for the kids. 

Please tell them I loved every[]day, and every[]day I 

woke up just wanting to spend more time with them. 

[A.B.], tell [your daughter] I love[] her and always will. 

She was someone I always aspired my kids to be. 

[M.C.], I know [you] hate me but I love [our kids] more 

than []anything please . . . just don't let them forget how 

much I loved them. I truly hope that they all have the 

best life they can possibly and I'm sorry for everything. 

I'm sorry for all the pain I caused [you] both. 

Please tell [. . . j]ust forget about me, they need 

to l[i]ve happy lives and it's up to [you] guys to take 

care of them. I'm sorry I'm leaving [you two] with this 

burden, but it's best for them. I'm toxic. I don't deserve 

to be around them. Please take care of them, and please, 

please tell them I love them all so much. 

[A.B.], [you are] the executor please just make 

sure my kids are cared for[.]
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I love them so [much.]

Goodbye[.]

Please tell them they deserved them me as their shit 

father.

On October 29, 2019, a second complaint-warrant was filed on M.C.'s 

behalf alleging defendant committed fourth-degree contempt, N.J.S.A. 2C:29-

9(a), for communicating with her in violation of the amended FRO. The State 

downgraded and tried the charge as a disorderly person's contempt, N.J.S.A. 

2C:29-9(b)(2).2 The State presented testimony from M.C. and defendant

testified in his defense. 

M.C. testified the amended FRO in place at the time defendant sent his 

text prohibited contact or communication between the parties. She explained 

when she received defendant's text, she contacted his mother and together they 

contacted A.B. M.C. explained why she waited until October to report the 

contempt to police as follows:

We were just in court in August and he was found guilty 

of violating the restraining order. And we're in court a 

lot with the divorce and the custody issues, and 

honestly I'm tired. Like I feel like it's a lose, lose for 

2 The trial also included a violation of probation charge for which the State 

presented the testimony of a probation officer, but it is unrelated to the issues 

presented on appeal.
5

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me. Like either I'm being harassed by him, and if I 

speak up, then I'm in the court all the time like this . . . .

On cross-examination, M.C. further explained her reasons for reporting 

the contempt in the following colloquy with defense counsel:

[Defense counsel:] Okay. And so what changed [o]n 

October 28[,] that caused you to at 9:50 at night drive 

to the police station . . . and report that text? 

[M.C.:] I went at night because I had to put all three 

kids to bed. But I believe that we were in court a little 

bit before that, and I had spoken to [the] [j]udge . . .

about the harassment that . . . [defendant] was doing 

and violating the restraining order, and he said to go to 

the police station. 

[Defense counsel:] So your purpose in going to the 

police station that night was to report to the police the 

harassment that you felt [defendant] was doing to you? 

[M.C.:] Yes. I had told them about a few things that 

were happening at the time. 

[Defense counsel:] So your intent that night was not to 

solely report this text? 

[M.C.:] There was, I think, three matters that I spoke 

to the police about. 

[Defense counsel:] And what were those three matters? 

[M.C.:] That he continued to call [in] wellness checks 

[regarding the children] up to three times day. And I 

had started a new job, and he was harassing them and 

me, and my job was on the line because he wouldn't 

leave them alone.
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Defense counsel sought to elicit testimony from M.C. that her true motive 

for reporting the contempt was that defendant had allowed the children to 

celebrate Halloween over M.C.'s religious objections and M.C. reported the 

contempt in retaliation. M.C. denied this was her motive and explained she 

allowed the children to play dress-up in costumes although she did not celebrate 

Halloween. 

Defendant testified M.C. reported the contempt because she objected to 

defendant celebrating the children's birthdays and Halloween over her religious 

objections. Defendant admitted he sent M.C. the text and admitted the amended 

FRO contained no exceptions regarding the bar on communication between the 

parties. However, he denied sending the text with the purpose of harassing M.C. 

Instead, he claimed it was to ensure his "kids were taken care of." He claimed 

the text was his "last will and testament" because he believed he would be dead 

the next day. On cross-examination, defendant claimed he intended to take his 

own life and had "practiced for hours" how to cut his arm, yet testified when 

police responded to the incident, they took him home rather than to the hospital 

despite his testimony he had damaged his arms. 

The trial judge found defendant guilty of violating probation and 

purposely and knowingly committing contempt of the amended FRO. The judge 
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noted the amended FRO stated defendant was "prohibited from having any oral, 

written, personal, electronic, or other form of contact or communication with 

[M.C.]" The judge found the State proved the contempt because the amended 

FRO 

was served personally upon [defendant] on March 27[], 

2019, at approximately 2:18. . . . 

The fact that he was present, was served with the

. . . amended [FRO], and the fact that he made reference 

to actually the other individual for which he sent a text 

message to, as well as [ . . . M.C.] the victim in this 

matter, the [c]ourt does find that it was his conscious 

purpose to send that text message. He referenced their 

children, and again he referenced [M.C.] by name. 

The judge also rejected defendant's claim the text was intended to be his last 

will and testament because the amended FRO contained no exceptions to the bar 

on communication between the parties.

The judge concluded the State met its burden of proof beyond a reasonable 

doubt because it proved the existence of the amended FRO, defendant was 

served with it, and he sent the text in violation of its clear terms because he 

testified "[i]t was his purpose and intention for this message to be sent to get to 

A.B., as well as [M.C.], as he stated[,] a last will and testament." 

The trial judge rejected defense counsel's argument that the case be 

dismissed on de minimis grounds. The judge found as follows: 
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This was a text message between the parties, and it was 

a rather long text message where [defendant] spoke to 

[M.C.] by name, the children by name, and then 

discussed their relationship. The . . . [c]ourt doesn't 

find that that is de minimis as it relates to the 

proceeding here today. And . . . certainly not only is 

[it] not de minimis, but . . . [based upon] the testimony 

of [M.C.], it calls for alarm, because she contacted 

[defendant's] parents when she received this text 

message. So the [c]ourt doesn't find it to be de minimis, 

it does find it to be a violation. 

The judge sentenced defendant on the violation of probation ordering him 

to complete his probation as previously ordered, have a psychiatric evaluation, 

and pay mandatory fines and penalties. He also sentenced defendant on the 

contempt charge to a mandatory thirty-days in Burlington County jail and a oneyear term of probation to run concurrent with his sentence on the violation of 

probation. 

Defendant raises the following points on this appeal:

POINT I:

[DEFENDANT]'S TEXT MESSAGE DID NOT 

VIOLATE THE TERMS OF THE FINAL 

RESTRAINING ORDER.

POINT II:

THE TRIAL COURT FAILED TO TAKE INTO 

CONSIDERATION [DEFENDANT]'S EXTENSIVE 

HISTORY OF PSYCHIATRIC ILLNESS WHICH 
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PREVENTED HIM FROM FORMULATING THE 

REQUISITE INTENT TO COMMIT CONTEMPT.

POINT III:

[DEFENDANT] CAN ESTABLISH THE COMMONLAW DEFENSE OF NECESSITY.

POINT IV:

[DEFENDANT]'S ORIGINAL COUNSEL WAS 

CONSTITUTIONALLY INEFFECTIVE.

"The scope of appellate review of a trial court's fact-finding function is 

limited. The general rule is that findings by the trial court are binding on appeal 

when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 

154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Invs. Ins., 65 

N.J. 474, 484 (1974)). "Deference is especially appropriate 'when the evidence 

is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting

In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Moreover, 

"[b]ecause of the family courts' special jurisdiction and expertise in family 

matters, appellate courts should accord deference to family court factfinding." 

Id. at 413. However, we do not defer to the judge's legal conclusions if "based 

upon a misunderstanding of . . . applicable legal principles." T.M.S. v. W.C.P., 

450 N.J. Super. 499, 502 (App. Div. 2017) (quoting N.T.B. v. D.D.B., 442 N.J. 

Super. 205, 215 (App. Div. 2015)).
10 A-0303-20

I.

In Point I defendant re-asserts the purpose of his text was to have it serve 

as his "last will and testament for his children" rather than violate the amended 

FRO. Defendant repeats the argument that M.C.'s delay in reporting the 

contempt shows she did not fear defendant, but instead retaliated against him 

for the parties' dispute over Halloween and to gain an upper hand in the parties' 

divorce. Defendant also repeats the claim the complaint should have been 

dismissed on de minimis grounds. Defendant claims the trial judge failed to 

reference a February 7, 2020 amended FRO, which permits communication 

regarding the children between the defendant and M.C. and claims the judge 

incorrectly relied on the March 27, 2019 amended FRO.

In contempt proceedings, "the primary consideration is vindication of the 

authority of the court . . . [as] court orders must be obeyed." In re Adler, 153 

N.J. Super. 496, 501 (App. Div. 1977) (internal quotation marks omitted); see 

also State v. Gandhi, 201 N.J. 161, 189 (2010) ("Restraining orders are entered 

for purposes of shielding a victim who needs protection and who is compelled 

to seek judicial assistance to obtain that security; thus, we have insisted on full 

compliance with restraining orders no matter the flaws a defendant may discern 

in their form or entry.").
11 A-0303-20

A person is guilty of contempt "if that person purposely or knowingly 

violates any provision in an order entered under the provisions of the [PDVA.]" 

N.J.S.A. 2C:29-9(b)(1). If the violation is not itself a crime or a disorderly 

person's offense, then contempt is a disorderly person's offense. N.J.S.A 2C:29-

9(b)(2). The State satisfies its burden by proving a "knowing violation of an 

existing domestic violence restraining order." State v. Finamore, 338 N.J. 

Super. 130, 132 (2001). 

N.J.S.A. 2C:2-2(b) defines the requisite mens rea as follows: 

(1) Purposely. A person acts purposely with respect to 

the nature of his conduct or a result thereof if it is his 

conscious object to engage in conduct of that nature or 

to cause such a result. 

(2) Knowingly. 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. 

"[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). 

The statute "may not be construed in a manner that precludes otherwise 
12 A-0303-20

reasonable conduct unless the orders issued pursuant to the [PDVA] specifically 

proscribe particular conduct by a restrained [party]." State v. Krupinski, 321 

N.J. Super. 34, 45 (App. Div. 1999).

We reject the arguments defendant has repeated related to the trial judge's 

contempt findings and affirm substantially for the reasons expressed in the 

judge's oral opinion. We add the following comments. 

The State clearly proved defendant knew there was an amended FRO in 

place prohibiting him from contacting M.C., yet he sent the text to her in 

violation of the court ordered restraints. We have no reason to second guess the 

judge's rejection of defendant's claim that he merely intended to communicate 

his last will and testament to M.C. or the assertion that M.C. reported the 

contempt to retaliate against defendant, especially given her credible 

explanation for the delay in reporting the contempt. In light of our standard of 

review, there is substantial credible evidence in the record to support the judge's 

findings of fact. 

Furthermore, we reject as without merit, defendant's argument that the 

trial judge relied upon the wrong version of the amended FRO. Defendant's 

contempt occurred sixth months prior to the February 7, 2020 amended FRO, 

which permitted the parties to communicate through the OurFamilyWizard 
13 A-0303-20

application regarding the children. Defendant committed contempt when the 

terms of the March 27, 2019 amended FRO controlled, which prohibited him 

from communicating with M.C. in any manner. The February 2020 amended 

FRO was irrelevant. Even if it was applicable, defendant still committed 

contempt because he communicated via text and relayed alarming information 

to M.C. having nothing to do with a parenting issue.

For these reasons, we also reject defendant's repeated argument that his 

conduct warranted dismissal on de minimis grounds. In State v. Hoffman our 

Supreme Court stated, "in the area of domestic violence, as in some other areas 

in our law, some people may attempt to use the process as a sword rather than 

as a shield." 149 N.J. 564, 586 (1997). The trial court must therefore serve "as 

the gatekeeper" by applying the "[s]elf-regulating provision in the Code, . . . 

[namely] the de minimis infraction provision." Ibid. N.J.S.A. 2C:2-11(b) states 

a court may dismiss a prosecution if it finds the defendant's conduct "[d]id not 

actually cause or threaten the harm or evil sought to be prevented by the law 

defining the offense or did so only to an extent too trivial to warrant the 

condemnation of conviction." 

"Sympathetic considerations play no part in a determination" under the de 

minimis statute. State v. Brown, 188 N.J. Super. 656, 670 (App. Div. 1983). 
14 A-0303-20

"An objective consideration of surrounding circumstances is authorized." State 

v. Smith, 195 N.J. Super. 468, 472 (Law Div. 1984). "Judicial discretion . . . 

takes into account the law and the particular circumstances of the case before 

the court." Higgins v. Polk, 14 N.J. 490, 493 (1954). 

We affirm the rejection of defendant's de minimis defense for the reasons 

articulated by the trial judge. Defendant's communication of thoughts of selfharm, even if couched as an effort to communicate his final wishes to his

children, were still addressed in a communication he sent directly to M.C. Given 

the history of domestic violence, the trial judge did not abuse his discretion in 

finding this conduct was not trivial and did not require a dismissal on de minimis

grounds pursuant to N.J.S.A. 2C:2-11(b).

II.

We reject the argument raised in defendant's Point II, namely, the judge 

failed to consider defendant's psychiatric history and whether he possessed the 

capacity to formulate the requisite intent to commit contempt. Defendant argues 

he was "severely decompensated and in need of help," and the text was a "cry 

for help" and akin to an emergency call for assistance following an automobile 

accident. In support of his argument, defendant includes his medical records as 

a part of his appellate appendix. 
15 A-0303-20

Rule 2:5-4(a) states: "The record on appeal shall consist of all papers on 

file in the court . . . below, with all entries as to matters made on the records of 

such courts . . . ." We do not consider questions not properly presented to a trial 

court unless the issue raised relates to the jurisdiction of the trial court or 

concerns a matter of great public interest. Nieder v. Royal Indem. Ins., 62 N.J. 

229, 234 (1973).

Defendant did not adduce the medical records evidence before the trial 

judge. Therefore, we cannot consider evidence not presented to the trial judge 

for the first time on appeal. Furthermore, this was not defendant's strategy at 

trial as demonstrated by the following colloquy during the State's summation:

[Prosecutor: Defendant] also acknowledged that he 

knowingly typed [M.C.'s] address into that phone, that 

he knowingly sent that text message to her. What we 

are supposed to take away from this is that because he 

was suicidal at the time, it's de minimis, and it really 

doesn't count because he wasn't in the right frame of 

mind. And I would argue that that is certainly –

[Defense counsel]: I object, Your Honor. . . . 

THE COURT: Okay. What's your objection? 

[Defense counsel]: I — in my closing, and certainly 

during our testimony, we did not state that he was not 

in his right mind when he sent that text and that's our 

excuse. That is not what we said. 

THE COURT: Okay. Thank you. 
16 A-0303-20

For these reasons, the judge did not err for not considering defendant's 

psychological condition. 

III.

In Point III, defendant argues the common law defense of necessity 

applied because of his "clearly documented history of mental illness," which 

required him to communicate his last will and testament to his children through 

the only means possible. We disagree.

A defendant asserting the necessity defense must establish the following:

(1) There must be a situation of emergency arising 

without fault on the part of the actor concerned;

(2) This emergency must be so imminent and 

compelling as to raise a reasonable expectation of harm, 

either directly to the actor or upon those he was 

protecting;

(3) This emergency must present no reasonable 

opportunity to avoid the injury without doing the 

criminal act; and

(4) The injury impending from the emergency must be 

of sufficient seriousness to outmeasure the criminal 

wrong.

[State v. Romano, 355 N.J. Super. 21, 29 (App. Div. 

2002) (citing State v. Tate, 194 N.J. Super. 622, 628 

(App. Div. 1984), rev'd on other grounds, 102 N.J. 64 

(1986)).]
17 A-0303-20

"The 'necessity' defense is based on public policy" and it "[e]ssentially . . . 

'reflects a determination that if, in defining the offense, the legislature had 

foreseen the circumstances faced by the defendant, it would have created an 

exception.'" Ibid. (citing Tate, 102 N.J. at 73). "Thus, 'the defense is available 

at common law only when the legislature has not foreseen the circumstances 

encountered by a defendant.'" Ibid. (citing Tate, 102 N.J. at 74). 

In Romano, we reversed the defendant's DWI conviction where he drove 

his car while intoxicated in order to escape assailants who had severely beaten 

him. Id. at. 36. We noted the trial judge interpreted defendant's necessity 

defense as a duress defense and shifted the burden of proof to defendant to prove 

the defense rather than requiring the State to disprove it. Id. at 23. We 

concluded the necessity defense applied and defendant was entitled to a 

judgment of acquittal because "the Legislature did not weigh the competing 

value of driving while intoxicated to escape a brutal, and possibly deadly attack, 

against the values served by ridding the roads of drunk drivers." Ibid. We held

the facts were "so bizarre and remote from the public policy underlying the law 

that even a [c]ourt as committed as this one to the strict enforcement of the 

drunk-driving statutes can pause to make certain that no injustice has been 

done." Id. at 33 (citing State v. Fogarty, 128 N.J. 59, 74 (1992)). 
18 A-0303-20

Defendant likens his case to Romano and argues the facts here are "so 

remote from the public policy underlying the [PDVA] that the [c]ourt must pause 

to make certain that no injustice is done." He alleges because he thought he was 

going to successfully commit suicide after he sent the text and would be dead 

by the morning, his actions are "clearly an injury of sufficient seriousness to 

outweigh the criminal wrong." 

We reject defendant's arguments because he failed to raise the necessity 

defense at trial. See Nieder, 62 N.J. at 234. Even if the defense was raised, the 

record does not demonstrate the second, third, or fourth Romano factors were 

met. Defendant was neither hospitalized, nor administered emergency 

psychiatric treatment. Furthermore, defendant had alternatives to violating the 

amended FRO such as expressing his wishes to other persons who could deliver 

his message to the children or doing so in a writing not addressed to M.C. 

Moreover, defendant's conduct was not beyond the Legislature's 

considerations when it enacted the PDVA. The purpose of the PDVA is to 

"assure the victims of domestic violence 'the maximum protection from abuse 

the law can provide.'" Hoffman, 149 N.J. at 584 (quoting N.J.S.A. 2C:25-18). 

The Act "effectuates the notion that the victim of domestic violence is entitled 

to be left alone. To be left alone is, in essence, the basic protection the law seeks 
19 A-0303-20

to assure these victims." Ibid. Defendant's conduct was exactly contrary to and 

violative of the public policy of the PDVA. Accepting defendant's logic that he 

had to violate the amended FRO in order to communicate his thoughts would 

elevate impulsive conduct by a perpetrator of domestic violence to the detriment 

of a victim of domestic violence, thereby nullifying the PDVA's purpose.

IV.

Finally, defendant argues his trial counsel was ineffective. He claims 

counsel "was a pro-bono appointed [a]ttorney, whose primary practice area was 

medical malpractice in Philadelphia, Pennsylvania [and] she was completely 

unfamiliar with criminal law and procedure as a whole and specifically in New 

Jersey." He argues counsel "failed to contact the Office of the Public Defender 

to request that they hire an expert to assess [defendant's] ability to formulate the 

requisite intent for the offense", she "failed to file a de minimis motion with the 

Assignment Judge", and she "failed to plead the 'necessity' defense." 

"Ineffective-assistance-of-counsel claims are particularly suited for postconviction review because they often cannot reasonably be raised in a prior 

proceeding. . . . Our courts have expressed a general policy against entertaining 

ineffective-assistance-of-counsel claims on direct appeal because such claims 

involve allegations and evidence that lie outside the trial record." State v. 
20 A-0303-20

Preciose, 129 N.J. 451, 460 (1992). For these reasons, we decline to consider 

defendant's claims raised for the first time on appeal because they include 

allegations outside of the appellate record. 

Affirmed.