Domestic violence article

Defense of the Domestic Violence Contempt Charge

By: Nina C. Remson, Esq.

A Temporary Restraining Order (TRO) or Final Restraining Order (FRO) entered against a defendant pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17, et seq. is a civil order. However, it has criminal implications in the event that it is violated. For that reason, it is very important that if you represent the defendant that you try to get the TRO dismissed either voluntarily or at trial. If you cannot get the restraining order dismissed and the defendant violates it, he or she may be subject to criminal contempt charges.

What is a domestic violence contempt charge?

N.J.S.A. 2C:29-9(b) provides that a person is guilty of a crime of the 4th degree, if that person purposely or knowingly violates any provision of an order entered under the provisions of the Prevention of Domestic Violence Act, or substantially similar statute from another state, when the conduct which constitutes the violation could also constitute a crime or disorderly persons offense. Otherwise, it is a disorderly persons offense if that person knowingly violates the order. Violation of provisions of orders entered under 2C:25-29(b) (3), (4), (5), (8) and (9) are specifically excluded. The statute specifically excludes violations of certain provisions of the restraining order from prosecution. These are the provisions of the restraining order that provide for parenting time, compensatory damages to the victim, counseling for the defendant, defendant paying the victim's rent or mortgage and temporary possession of personal property. They encompass Part II of the TRO/FRO. To enforce Part II violations, the alleged victim must file a civil motion or Order to Show Cause for enforcement of litigant's rights in the Family Court pursuant to R. 1:10-3 or 5:3-7.

Violation of any other provision of a domestic violence restraining order could lead to a contempt charge under N.J.S.A. 2C:29-9(b). These include violation of those provisions barring defendant from contact or communication with the victim or other individuals named in the order, provisions barring defendant from the victim's residence or other locations named in the order, possession of a firearm, and any other act of domestic violence against the victim.

Grading of contempt:

If an act of domestic violence is allegedly committed by the defendant while there is a TRO or FRO in effect and that new underlying offense is a crime or disorderly persons offense, the contempt charge will be a 4th degree indictable offense. If the underlying charge alleged is a petty disorderly persons charge, such as harassment, or some other violation of a Part I provision of the restraining order, the contempt will be charged as a disorderly persons charge.

Probable Cause:

If a police officer finds probable cause for a contempt charge, such as visible signs of abuse, he must arrest the defendant. However, where probable cause has not been determined, the complaining party may file his or her own complaint. The Court may schedule the matter for a hearing to determine probable cause to move the case for trial. If no probable cause is found, the case will be dismissed. Otherwise, there will be a trial.

Warrant v. Summons:

A criminal or quasi-criminal complaint may issue on a warrant or a summons in accordance with R. 3:3-1. A warrant should issue when a judge, clerk, deputy clerk, municipal court administrator or deputy court administrator finds probable cause that the defendant committed the offense alleged AND (1) defendant is charged with one of crimes enumerated in the court rule (murder, kidnapping, aggravated manslaughter, manslaughter, robbery, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, second degree aggravated assault, aggravated arson, arson, burglary, first and second degree drug charges, crimes involving possession or use of a firearm or conspiracies or attempts to commit such crimes); (2) defendant failed to appear after having been served a summons; (3) there is reason to believe defendant is dangerous to himself or herself, other persons or property; (4) there is an outstanding warrant for defendant; (5) defendant's identity or address is unknown and a warrant is necessary in order to obtain jurisdiction over defendant; OR (6) there is reason to believe defendant will not appear in response to a summons. The charges may issue on a warrant regardless of whether it's a 4th degree or disorderly persons contempt as long as the R.3:3-1 criteria is met. Otherwise, the complaint will be issued on a summons. In such case, the defendant will be served with the complaint and usually given an ROR (Released on his/her Own Recognizance) bail.

Bail:

Pursuant to R. 3:4-1, bail must be set within 12 hours after arrest. The purpose of bail is to assure the defendant's appearance at court. The court will consider whether the defendant is a flight risk or a danger to the community and, in contempt cases, MUST conduct a search of the Domestic Violence Central Registry before setting bail. The Court will consider the defendant's prior record and may also consider the following factors: 1. nature of the crime charged, maximum punishment and likelihood of conviction; 2. prior missed court appearances; 3. reputation in the community; 4. mental and physical condition; 5. community and family ties; and 6. employment.

The court may consider other mitigating or aggravating factors in setting the bail.

If the defendant is not given an ROR (released on own recognizance) bail, the bail on the contempt charge will generally be between $500-$2500 with a 10% cash option available. This means that the defendant, or someone on his or her behalf, may post cash in the sum of 10% of the bail amount. Upon sentencing or dismissal, as long as the defendant has not failed to appear, he or she will be able to get that cash posted returned. The person who posted the bail must be present with their bail receipt to retrieve the bail or to assign same to the defendant or court for payment of fines. If a bail bond is posted, the defendant will typically have to pay a non-refundable fee to the bail bond company (usually 10% of the bail bond).

It is sometimes necessary to get a bail bond when the court does not allow the discretionary 10% cash option or if the underlying offense for the charge is a first or second degree crime, whereupon the 10% cash option is prohibited by law and there will be additional bail required for that charge in addition to the bail for the contempt charge. The 10% cash option is only available for third and fourth degree crimes and disorderly and petty disorderly persons offenses.

The court may also impose bail restrictions, including no contact with the alleged victim and prohibition against possessing a firearm. These bail restrictions will remain in effect even if the underlying TRO is dismissed. Therefore, it is very important to advise your client to maintain no contact with the victim (and to observe any other bail restriction) even if the TRO is dismissed, inasmuch as a client may mistakenly believe that he or she can return to the home after the TRO is dismissed. If the client violates a bail restriction, the bail may be revoked and forfeited and he or she may be arrested and become a guest of the county jail pending the trial.

Prosecution of Contempt Complaints:

Jurisdiction for any contempt case lies in the county where the alleged violation was committed. Indictable 4th degree contempt charges are heard in the Criminal Part in the Superior Court. Disorderly persons charges are quasi-criminal offenses that are generally heard in the Municipal Court. However, domestic violence contempt charges that are disorderly persons offenses are heard in the Family Court and are prosecuted by an Assistant County Prosecutor.

Like any other criminal or quasi-criminal offense, the defendant is entitled to a public defender if he or she qualifies financially because the defendant could be sentenced to a jail or prison term or other sentence of magnitude. The defendant is presumed innocent. Each and every element of the offense must be proven by the State beyond a reasonable doubt.

Elements of Domestic Violence (DV) Contempt:

1. Knowing violation of Domestic Violence restraining order (if a Disorderly Persons Contempt); knowing or purposeful violation of Domestic Violence restraining order (if 4th Degree Contempt); 2. A valid domestic violence TRO or FRO was in existence at the time of the alleged contempt offense (entered by NJ court or other state under similar DV law); 3. In the case of a 4th degree contempt, the underlying violation must be for a criminal or disorderly persons offense; For a disorderly persons contempt, the underlying violation must be for a petty disorderly persons offense or a violation of Part I of the TRO/FRO.

Criminal Court Proceedings:

PTI or Pre-Trial Intervention is a diversionary program for first offenders with non-serious offenses. If the defendant complies with the program requirements, which are typically restitution to the victim, if applicable, counseling/treatment, negative drug screens, if applicable, payment of fines/mandatory penalties, reporting to probation, maintaining of employment, and no new arrests, then after the PTI period (generally 1 to 3 years), the charge would be dismissed. This may be negotiated by counsel on behalf of the client prior to an indictment in a 4th degree contempt case.

If the indictable contempt matter is not resolved with a diversionary program and is not downgraded to the Family Court for prosecution, it will be presented to a Grand Jury for indictment. If you are indicted, the matter will proceed through the criminal court process much like any other criminal matter. Certain affirmative defenses, such as self-defense, require written notice to the prosecutor within seven days before the arraignment (See NJ Court Rule 3:12-1). You will be entitled to receive "discovery" upon counsel’s written request, which will be provided at or shortly before the arraignment. At the arraignment, counsel will enter a plea of "not guilty" to the charges and will advise the court of the applicable motions (such as Miranda, Search and Seizure, etc.) and you will receive an initial plea offer. Your attorney will have an opportunity to negotiate a more suitable plea agreement if the initial offer is not acceptable to you. You may appear at additional status conferences and the matter will be scheduled for trial unless a plea agreement is reached. You have a right to a jury trial wherein the State must prove each and every element of the offense against you. You have the right to testify on your own behalf or to remain silent. The jury cannot consider your silence an indication of guilt. You have the right for your counsel to cross examine witnesses against you and to call witnesses in your defense. You are presumed innocent unless and until the jury returns a verdict to the contrary. If you are acquitted of the charges, you are eligible for an expungement. CLICK HERE TO READ MORE ABOUT EXPUNGMENTS

Potential Penalties:

Disorderly Persons (DP) Contempt is punishable by up to 180 days county jail and/or up to $1000 fine and other mandatory assessments. The defendant could be sentenced to a non-custodial term of probation or a jail term of up to 90 days as a condition of probation. A second or subsequent DP Contempt carries mandatory 30 minimum jail term (N.J.S.A. 2C:25-30).

Fourth Degree Criminal Contempt is punishable by up to 18 months in New Jersey State Prison, possible fines and mandatory assessments. Depending on the defendant’s prior record (if any), and an assessment of the "aggravating and mitigating factors," the defendant could be sentenced to a non-custodial term of probation or a term of probation that could include up to 364 days in the county jail or no jail at all.

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