N.J.S.A. 2C:12-10(a)(1) defines a “course of conduct” necessary to constitute “stalking” to include, among other things, “directly, indirectly, or . . . by any action, method or device, or means, following, monitoring, observing, surveilling . . . a person[.]”

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A course of conduct necessary to constitute stalking includes, among other things, directly, indirectly, or by any action, method or device, or means, following, monitoring, observing, surveilling a person originally appeared on NJ Family Issues on February 6, 2012.

The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, lists the types of relief the court may include in a final restraining order, N.J.S.A. 2C:25-29b. As to barring a defendant from places, the statute provides that a defendant may be restrained:

from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.

[N.J.S.A. 2C:25-29b(6).]

In Finamore v. Aronson, supra, 382 N.J. Super. at 520, we stated that “[t]he specific relief[] necessary to protect the victim must be distinctly described in the final restraining order.”

To establish a disorderly persons contempt of court, the State was required to prove that defendant “knowingly” violated the restraining order. N.J.S.A. 2C:29-9b; see State v. L.C., 283 N.J. Super. 441, 447 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996).

The 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. See N.J.S.A. 2C:2-2b(2); ^[1] cf. State v. Breakiron, 108 N.J. 591, 605-06 (1987) (inferences drawn from evidence to prove knowledge element in homicide prosecution); State v. Moore, 330 N.J. Super. 535, 544 (App. Div.) (inference permissible that the defendant knew car in which he was riding was being driven without consent of the owner), certif. denied, 165 N.J. 531 (2000).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

1. N.J.S.A. 2C:2-2b(2) states in 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.”

To establish a disorderly persons contempt of court, the State was required to prove that defendant knowingly violated the restraining order originally appeared on NJ Family Issues on January 23, 2012.

A person who pleads to or is found guilty of contempt for violating the terms of a TRO [N.J.S.A. 2C:29-9B] may be given probation.

If then that person is charged with violation of probation, a court must decide is whether a violation of a condition of probation has occurred and whether the violation is serious enough to justify revocation of probation. State v. Baylass, 114 N.J. 169, 175 (1989).

N.J.S.A. 2C:45-3(a)(4) provides that at any time before the termination of a period of suspension or probation,

[t]he court, if satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or if he has been convicted of another offense, may revoke the suspension or probation and sentence or resentence the defendant, as provided in this section.

Where a defendant is charged with a violation of probation, the court shall hold a hearing, as “part of the corrections process.” State v. Reyes, 207 N.J. Super. 126, 134 (App. Div.), certif. denied, 103 N.J. 499 (1986); State v. Lavoy, 259 N.J. Super. 594, 600 (App. Div. 1992). A charge of violation of probation is not a criminal prosecution. Reyes, supra, at 134. Thus, to sustain the charge, the court need only be satisfied by a “preponderance of the evidence [the] defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of probation.” State v. Jenkins, 299 N.J. Super. 61, 73 (App. Div. 1997).

Courts will not revoke probation for mere technical violations. State v. Moretti, 50 N.J. Super. 223, 248 (App. Div. 1958). In Moretti, the court stated, “if [defendant's] conduct is that of the ordinary well-behaved person, with no serious offenses charged against him and with no indication that he intends in the future to pursue the course which led to the original conviction, the courts and probation officer should not revoke probation upon technical violations.” Ibid.

“Once the court decides to impose a custodial sentence, it must weigh the aggravating and mitigating factors to determine” an appropriate sentence. Baylass, supra, 114 N.J. at 176.

The trial court must provide the defendant with an opportunity for allocution. State v. Blackmon, 202 N.J. 283 (2010). Further, when imposing sentence, the court must identify and weigh all of the relevant aggravating factors counterbalanced with the mitigating factors supported by credible evidence. State v. Dalziel, 182 N.J. 494, 504-05 (2005). A court shall apply such mitigating factors as are present in the record or state why such factors are rejected. State v. Bieniek, 200 N.J. 601, 609 (2010). When a court imposes a sentence for a violation of probation, the court must weigh all aggravating and mitigating factors and a violation of probation is not itself considered to be an aggravating factor. “The only aggravating factors the court may consider are those that existed at the time of the initial sentencing.” Baylass, supra, 114 N.J. at 176.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

If then that person is charged with violation of probation, a court must decide is whether a violation of a condition of probation has occurred and whether the violation is serious enough to justify revocation of probation originally appeared on NJ Family Issues on December 13, 2011.

The burden of proof in a criminal case ⎯ beyond a reasonable doubt ⎯ is stricter than the burden of proving a violation of the PDVA, which only requires proof by a preponderance of the evidence. See J.D. v. M.D.F., 207 N.J. 458, 474 (2011) (noting that “a judgment of acquittal of the predicate act will not undercut the court’s authority to impose restraints or other relief permitted by the Act”). Moreover, a criminal prosecution is brought by the State of New Jersey, not by plaintiff, so there is no identity of the parties for purposes of issue or claim preclusion. See In re Estate of Dawson, 136 N.J. 1, 20-21 (1994); Velasquez v. Frank, 123 N.J. 498, 505-06 (1991); see also State v. Silva, 394 N.J. Super. 270 (App. Div. 2007) (holding that, reciprocally, factual findings in an FRO hearing by the Family Part are not the proper subject of judicial notice in related prosecution in the Criminal Part).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

The burden of proof in a criminal case “beyond a reasonable doubt” is stricter than the burden of proving a violation of the PDVA, which only requires proof by a “preponderance of the evidence” originally appeared on NJ Family Issues on November 29, 2011.

The decision whether to stay a civil action during a tandem criminal case is not constitutionally required but rather rests in the sound discretion of the trial court. State v. Kobrin Sec., Inc., 111 N.J. 307, 314 (1988). See also United States v. Kordel, 397 U.S. 1, 12 n.27, 90 S. Ct. 763, 770, 25 L. Ed. 2d 1, 10-11 (1970); People v. Coleman, 533 P.2d 1024, 1039 (Cal. 1975). It is not a violation of the Fifth Amendment or Due Process to require a defendant to make the choice to testify, even though giving testimony at a civil proceeding may help criminal prosecutors, as opposed to invoking his Fifth Amendment rights and suffering any adverse civil consequences which flow therefrom. Kobrin, supra, 111 N.J. at 312-13. “[W]hatever the difficulties of invoking the fifth-amendment privilege, there is no constitutional inhibition that a defendant in a criminal case not `be put to the difficult choice of having to assert the privilege in a related civil case . . . .’” Id. at 313 (quoting DeVita v. Sills, 422 F.2d 1172, 1178 (3d Cir. 1970)). See also Ott v. Bd. of Educ., 160 N.J. Super. 333, 337-38 (App. Div. 1978). In other words, as long as a defendant has the right to invoke his Fifth Amendment privilege in the civil proceeding, there is no constitutional right to be relieved of the burden of that choice. United States v. Simon 373 F.2d 649 (2d Cir.), cert. granted sub nom. Simon v. Wharton, 386 U.S. 1030, 87 S. Ct. 1485, 18 L. Ed. 2d 591, vacated as moot, 389 U.S. 425, 88 S. Ct. 577, 19 L. Ed. 2d 653 (1967).

Of course, “[t]here may be cases where the requirement that a criminal defendant participate in a civil action . . . [may] violate[] concepts of elementary fairness in view of the defendant’s position in an inter-related criminal prosecution.” Kobrin, supra, 111 N.J. at 314 (internal quotations omitted). “On the other hand, the fact that a man is indicted cannot give him a blank check to block all civil litigation on the same or related underlying subject matter.” Ibid.

Rather, in the exercise of its discretionary judgment, a trial court “must weigh competing interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254-55, 57 S. Ct. 163, 166, 81 L. Ed. 2d 153, 158 (1936). “The court, in its sound discretion, must assess and balance the nature and substantiality of the injustices claimed on either side[,]” Kobrin, supra, 111 N.J. at 314 (quoting Gordon v. Fed. Deposit Ins. Corp., 427 F.2d 578, 580 (D.C. App. 1970)), with the understanding that justice is meted out in both civil and criminal litigation. Where the risk of exposing a defendant exercising the constitutional privilege to adverse consequences is slight, then “[t]he overall interest of the courts that justice be done may very well require that the compensation and remedy due a civil plaintiff should not be delayed (and possibly denied).” Kobrin, supra, 111 N.J. at 315-16 (quoting Gordon, supra, 427 F.2d at 580).

Several considerations guide a court in resolving the question of a stay. One such factor, of course, is the status of the criminal case, including whether the defendant has been indicted. Nat’l Freight, Inc. v. Ostroff, 133 N.J. Super. 554, 558-59 (Law Div. 1975). In National Freight, the court reasoned that a stay was against the interests of justice because a criminal trial may never occur at all, noting that “[i]ndictments have not yet been found and nor is there any certainty that any will be.” Id. at 558. In denying the defendant’s application to place the civil action, based on the same facts giving rise to criminal complaints against him, on the inactive list, the court concluded:

to say that the civil suit must remain in statu[s] quo indefinitely is to import to the courts an impotency unworthy of them. To compel other parties to sit supinely by while their rights or possibility of recovery are eroded is to invite contempt for the law as well as permit any guilty party to secrete or dissipate the fruits of his wrongdoing.

[Id. at 559.]

Another, more significant, consideration is the extent to which the facts and issues in the criminal and civil cases overlap, namely, whether the two actions are nearly identical in scope. Kobrin, supra, 111 N.J. at 314; Walsh Sec., Inc. v. Cristo Prop. Mgmt., 7 F. Supp. 2d 523, 527 (D.N.J. 1998).

Another, closely-related consideration is the burden on defendant of moving forward with the civil action.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Whether to stay a civil action during a tandem criminal case originally appeared on NJ Family Issues on November 14, 2011.

N.J.S.A. 2C:43-12 and -13, governing PTI, do not require a guilty plea as a condition for entry into the program. Indeed, N.J.S.A. 2C:43-12e provides:

At any time prior to trial but after the filing of a criminal complaint, or the filing of an accusation or the return of an indictment, with the consent of the prosecutor and upon written recommendation of the program director, the assignment judge or a judge designated by him may postpone all further proceedings against an applicant and refer said applicant to a program of supervisory treatment approved by the Supreme Court.

Further, N.J.S.A. 2C:43-13b provides that during the period of supervisory treatment “the charge or charges on which the participant is undergoing supervisory treatment shall be held in an inactive status,” and N.J.S.A. 2C:43-13d provides: “Upon completion of supervisory treatment, and with the consent of the prosecutor, the complaint, indictment or accusation against the participant may be dismissed with prejudice.”

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

PTI originally appeared on NJ Family Issues on October 26, 2011.

Under State v. Clawans, 38 N.J. 162, 170-71 (1962), “failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him.” The instruction of jurors as to such an adverse inference is proper only when it can be said “with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about his testimony.” State v. Velasquez, 391 N.J. Super. 291, 306 (App. Div. 2007) (quoting Burgess v. United States, 440 F.2d 226, 237 (D.C. Cir. 1970)). In Velasquez, the court emphasized “the need for trial courts to exercise caution in authorizing this inference,” in particular, against a criminal defendant, who has no burden to produce evidence in his defense. Id. at 306-07.

Subsequently, in State v. Hill, 199 N.J. 545, 566 (2009), our Supreme Court addressed this very concern and held that “Clawans charges generally should not issue against criminal defendants.” The Court stated: “It is difficult to foresee a situation where a Clawans charge might play a proper role in a case against a criminal defendant.” Ibid.

A Clawans charge “buttress[es] the State’s argument” and potentially “lessen[s]” the State’s burden of proving the defendant guilty beyond a reasonable doubt. Hill, supra, 199 N.J. at 569.

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

The failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him originally appeared on NJ Family Issues on October 19, 2011.

An adjudication of delinquency based on criminal sexual contact triggers the registration requirements under N.J.S.A. 2C:7-2b(2) (commonly known as “Megan’s Law”).

In relevant part, our state’s criminal code defines “sexual contact” as “an intentional touching by the victim or actor, either directly or through clothing, of the victim’s or actor’s intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.” N.J.S.A. 2C:14-1d.

The offense of fourth degree criminal sexual contact is predicated on the actor committing sexual contact through the use of force or coercion without the victim sustaining serious injury. N.J.S.A. 2C:14-3b; N.J.S.A. 2C:14-2c(1). The Legislature defined “sexual contact” as “an intentional touching by the victim or actor, either directly or through clothing, of the victim’s or actor’s intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.” N.J.S.A. 2C:14-1d. “Intimate parts” includes the buttocks. N.J.S.A. 2C:14-1e. N.J.S.A. 2C:14-3b provides: “An actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2 c.(1) through (4).”

As our Supreme Court recently reaffirmed:

When interpreting statutory language, the goal is to divine and effectuate the Legislature’s intent. In furtherance of that goal, the court begins each such inquiry with the language of the statute, giving the terms used therein their ordinary and accepted meaning. When the Legislature’s chosen words lead to one clear and unambiguous result, the interpretive process comes to a close, without the need to consider extrinsic aids.

[State v. Shelley, 205 N.J. 320, 323-324 (2011).]

Labeling these outrageous acts mere “horseplay” runs counter to the clear language defining the offense of criminal sexual contact.

The court recognized the severe penal consequences that flow from an adjudication of delinquency based on fourth degree criminal sexual contact. When, as here, the victims are under the age of thirteen, criminal sexual contact also falls within the crimes designated by the Legislature as requiring a defendant to register as a sex offender under N.J.S.A. 2C:7-2b(2). Because the juveniles in this case were fourteen years old on the day they allegedly committed this offense, the registration requirements continue for their entire lifetime. In Re Registrant J.G., supra, 169 N.J. at 338-40. Criminal sexual contact also is statutorily designated as a predicate sexually violent offense that permits the State to seek a defendant’s civil commitment as a sexually violent predator. N.J.S.A. 30:4-27.26 to -27.29.

Although the court was not unsympathetic to the arguments criticizing the application of the lifelong registration requirements in N.J.S.A. 2C:7-2b(2) to fourteen-year-old offenders, the court was bound to uphold such application because that outcome is mandated by the Legislature. The court’s role is not to question the wisdom of legislative enactments, but to enforce them as long as they are not contrary to constitutional principles. See New Jersey State Bar Ass’n v. State, 387 N.J. Super. 24, 43 (App. Div.), certif. denied, 188 N.J. 491 (2006).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

An adjudication of delinquency based on criminal sexual contact triggers the registration requirements under Megan’s Law originally appeared on NJ Family Issues on October 10, 2011.

The attorney-client privilege “is the oldest privilege known to common law.” Halbach v. Boyman, 369 N.J. Super. 323, 328 (App. Div. 2004). The Legislature has codified it in N.J.S.A. 2A:84A-20 and it is reaffirmed in N.J.R.E. 504(1). The protection of attorney-client privilege is not absolute and may be set aside for specific reasons, one of which is when the “communication in the course of legal services sought or obtained in aid of the commission of a crime or fraud . . . .” N.J.R.E. 504(2)(a).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The protection of attorney-client privilege is not absolute and may be set aside for specific reasons, one of which is when the communication in the course of legal services sought or obtained in aid of the commission of a crime or fraud originally appeared on NJ Family Issues on September 28, 2011.

The U.S. deported nearly 393,000 people in the fiscal year that ended September 30, 2010, half of whom were considered criminals. Of those, 27,635 had been arrested for drunken driving, more than double the 10,851 deported after drunken driving arrests in 2008, according to Immigration and Customs Enforcement data provided to The Associated Press.

Secure Communities is the Homeland Security Department’s system of identifying immigrants for deportation through fingerprints taken by local officers when booking people on criminal charges. The local law enforcement agencies routinely send the prints to the FBI for criminal background checks. The FBI shares the fingerprints with Homeland Security to look for potentially deportable immigrants, who can be in the country illegally or legally.

Source: July 22, 2011, Traffic crime, drunken driving deportations way up, by SUZANNE GAMBOA, Associated Press.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

If you are not a citizen, and you are arrested for drunk driving, you may be deported! originally appeared on NJ Family Issues on July 29, 2011.