State v. Hoffman

Decision Date25 June 1997
PartiesSTATE of New Jersey, Plaintiff-Appellant, v. Brian P. HOFFMAN, Defendant-Respondent.
CourtNew Jersey Supreme Court

James F. Smith, Assistant Prosecutor, for plaintiff-appellant (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney; Jack J. Lipari, Assistant Prosecutor, on the letter brief).

Christine M. Cote, Atlantic City, for defendant-respondent (Cooper Perskie April Niedelman Wagenheim & Levenson, attorneys).

The opinion of the Court was delivered by


This is a domestic violence case that raises two significant issues: whether the act of mailing a torn-up support order on two occasions by one former spouse to the other constitutes a violation of the harassment statute, N.J.S.A. 2C:33-4(a); and whether the same mailings constitute violations of a final domestic violence restraining order. The trial court held that the act of mailing the torn-up support order violated both statutes. In a published opinion, the Appellate Division concluded that the mailings violated neither statute. 290 N.J.Super. 588, 599-601, 676 A.2d 565 (1996). A dissenting member of the panel would have affirmed the convictions. Id. at 609-12, 676 A.2d 565. This appeal is before us as of right. R. 2:2-1(a)(2). We now reverse in part and affirm in part.



Defendant Brian P. Hoffman and Mary Hoffman were married for seven years. The family unit included two children born of the marriage and three children from Mary's former marriage. A fire in the marital home in June 1991 forced the family to relocate from Somers Point to Linwood.

Approximately three months after relocating to the Linwood home, defendant commenced a course of conduct that led to the issuance of a final restraining order. In September 1991, defendant was arrested for assaulting Mary during an argument. On September 24, 1991, a temporary restraining order was issued against defendant pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 to -16, which was repealed and replaced by the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to 33 ("1991 Act"). Those charges were dismissed on November 19, 1991, with Mary's consent.

Five days later, defendant and Mary argued again and defendant once again assaulted Mary. She filed a second assault charge against defendant. On December 19, 1991, Mary again dropped the charges. Although Mary gave a sworn statement that she had not been threatened or coerced into withdrawing the criminal charges, she later informed the Cape May County Prosecutor that she had been coerced into dropping the two assault charges by defendant's threats on her and her children's lives.

Approximately two weeks later, defendant's abusive behavior began once again, and on January 31, 1992, another temporary restraining order was issued pursuant to N.J.S.A. 2C:25-28(h). A final restraining order was entered by the Chancery Division, Family Part, on February 6, 1992. The content of that order played a significant role in what was to follow.

That final order (1) prohibited defendant from committing future acts of domestic violence, pursuant to N.J.S.A. 2C:25-29(b)(1); (2) prohibited defendant from having contact with Mary and her three children from her prior marriage, pursuant to N.J.S.A. 2C:25-29(b)(6); (3) barred defendant from the Somers Point and Linwood homes, pursuant to N.J.S.A. 2C:25-29(b)(6); (4) prohibited defendant from making harassing communications to Mary, her three children from the prior marriage, and her mother, pursuant to N.J.S.A. 2C:25-29(b)(7); and (5) directed defendant to pay child support, pursuant to N.J.S.A. 2C:25-29(b)(4). In addition, the final order awarded Mary exclusive possession of the Linwood home and temporary custody of the two children born of the marriage.


Although the parties had separated before the end of January 1992, that did not end the alleged pattern of harassing behavior. On February 6, 1992, defendant allegedly violated the final restraining order by surreptitiously entering the Somers Point home. Mary filed a complaint against defendant on April 7, 1992, with the Atlantic County Family Part, charging him with contempt of court, contrary to N.J.S.A. 2C:29-9(b), for violating the restraining order. That complaint relied on information that Mary had received from her next-door neighbor. The neighbor had heard noises from the family home and had gone over to investigate. After the neighbor called out defendant's name several times, defendant allegedly responded "yes--yeah, it's okay." The neighbor also saw defendant's car, a red Volvo, in the driveway.

On February 7, 1992, in an apparent attempt to abide by the restraining order, defendant went to the Linwood home with police escorts to retrieve his belongings. While there, he allegedly destroyed articles of Mary's clothing by ripping or cutting them. Mary did not file charges against defendant for that incident.

On April 16, 1992, defendant again allegedly violated the final restraining order. Mary and her children had gone to the Somers Point home to clean up after the June 1991 fire and to take an inventory. Mary left the children at the home for approximately twenty minutes to drive to her attorney's office to pick up a child support check. As she was returning to the Somers Point home, she noticed defendant's car approximately eight houses from her home, approaching her from the direction of the Somers Point home. Mary became fearful for her children. As the vehicles of defendant and Mary passed each other, defendant slammed on his brakes, appeared to shout something, shook his hand in a fist, and pointed his index finger at her as if he were shooting a gun.

The next day, April 17, 1992, defendant again went to the Somers Point home; only this time he went inside. On that day, the Somers Point police arrested defendant and charged him with burglary, attempted larceny, unlawful possession of a weapon, criminal mischief, and contempt of the final restraining order.

On July 8, 1992, pursuant to a plea agreement, defendant pled guilty in the Law Division to criminal trespass and contempt, two fourth-degree offenses related to the April 17 episode. Other charges related to that episode were dismissed. Defendant was sentenced in August 1992 to three years of probation, and as a condition thereof, he was required to serve 364 days in jail.

Apparently unhappy because defendant had been permitted to plead guilty to the lesser charges for the April 17 episode with a favorable sentence recommendation, Mary filed a municipal court complaint on or about July 9, 1992, charging defendant with harassment for engaging in a course of alarming conduct, in violation of N.J.S.A. 2C:33-4(c). Defendant was also charged with contempt for making contact with Mary that was prohibited by the February 6 order, in violation of N.J.S.A. 2C:29-9(b). That complaint was related to the April 16 car incident.

While serving the county jail term for the April 17 episode, defendant mailed a package to Mary that she received on June 23, 1993. The envelope contained a Notice of Motion to modify a support order that had been entered a year earlier as part of the couple's divorce proceedings, a financial statement, and a torn-up copy of the support order. The next day, Mary received a notice from the post office informing her that it had a received a piece of certified mail for her. Mary picked up the certified mail on June 25. It contained another torn-up copy of the same support order and the other previously mentioned documents that she had received in the June 23 delivery.

Mary filed two complaints against defendant for the two mailings of the torn-up support order. Each complaint alleged that each of the mailings constituted two distinct offenses: an harassing communication, in violation of N.J.S.A. 2C:33-4(a), and contempt for violating the February 6, 1992, final restraining order, a violation of N.J.S.A. 2C:29-9(b).


A bench trial was conducted in the Family Part on August 5, 1993. Four contempt charges, consisting of the two mailings, the February 6, 1992, entry into the Somers Point home, and the April 16, 1992, car incident, were consolidated for trial. Three harassment charges, consisting of the two mailings alleged to be in violation of N.J.S.A. 2C:33-4(a) and the April 16, 1992, car incident alleged to be in violation of N.J.S.A. 2C:33-4(c), were also consolidated for trial.

The trial court found Mary to be an "extremely credible" witness and, on the basis of her testimony, concluded that the incidents of April 16, 1992, and the June 23 and June 25, 1993, mailings had occurred as she had reported them. However, the trial court granted defendant's motion for a directed verdict on the contempt charge for violating the final restraining order based on defendant's February 6 entry into the Somers Point home. The motion was granted because the court was not convinced beyond a reasonable doubt that defendant had entered the Somers Point home on that date. The trial court also acquitted defendant of the harassment charge related to the April 16 event. The court interpreted N.J.S.A. 2C:33-4(c) to require more than a single episodic act. It considered defendant's gesture with his hand and finger from his automobile to constitute a single act rather than a course of conduct that it deemed was required by N.J.S.A. 2C:33-4(c).

The trial court convicted defendant of the remaining five charges: the contempt charge relating to the April 16 incident; the charges of contempt and harassment for the June 23 mailing; and the charges of contempt and harassment for the June 25 mailing.

For sentencing purposes, the trial court merged defendant's harassment convictions with the accompanying contempt convictions related to the two mailings and sentenced him to concurrent terms of thirty days in the Atlantic County Justice Facility. For the April 16...

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