STATE OF NEW JERSEY VS. E.C. Â (14-05-0553, MERCER COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5204-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
E.C.,
Defendant-Appellant.
___________________________
Submitted June 7, 2017 – Decided August 2, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. 14-05-0553.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Laura Sunyak,
Assistant Prosecutor, of counsel and on the
brief; Stephen E. Parrey, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant was indicted and charged with three counts of first-
degree attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1 (counts one,
two and three); third-degree terroristic threats, N.J.S.A. 2C:12-
3(a) (count four); third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(7) (count five); two counts of second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts six and seven);
two counts of third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d) (counts eight and nine); fourth-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count
ten); second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1)
(count eleven);1 two counts of second-degree aggravated arson,
N.J.S.A. 2C:17-1(a)(1) (counts twelve and thirteen); and two
counts of second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4 (counts fourteen and fifteen). The charges
stemmed from defendant setting fire to his home where he resided
with his fiancée, their seven-year-old daughter, A.C., and his
fiancée's sixteen-year-old son, D.C., whom defendant had raised.
On April 29, 2016, defendant entered a negotiated guilty plea
to counts six, eleven, and fourteen in exchange for dismissal of
1
Although the indictment referenced N.J.S.A. 2C:12-1(b)(7), which
is not the correct statutory citation for aggravated arson, a
subsequent amendment corrected the error.
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the remaining counts and a recommended aggregate ten-year prison
term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.2
The agreement included a provision that the State would seek no-
victim contact orders in relation to the two minor victims, but
defendant would argue against the no contact order with his
biological daughter, A.C.
In his plea allocution, defendant admitted torching his home
with tiki oil after an argument with his fiancée while A.C. and
D.C. were sleeping upstairs in their bedroom. Unbeknownst to
defendant, his fiancée managed to escape. However, as the home
filled with smoke, defendant went to the children's bedroom,
repeatedly slashed D.C.'s face with a knife and dangled A.C. by
her arms over the edge of the roof until firefighters coaxed
defendant into submission and were able to rescue her. Defendant's
fiancée was the victim of the aggravated arson charged in count
six, D.C. was the victim of the aggravated assault charged in
count eleven, and A.C. was the victim of the child endangerment
charged in count fourteen.
2
On the State's motion, technical amendments were made to all
three counts without objection. See R. 3:7-4. Counts six and
fourteen were amended to reflect November 14, 2013, as the date
of the offense. Count eleven was amended to reflect 2013 as the
date of the offense and O.C. as the victim, and to correct the
statutory citation.
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On July 21, 2016, defendant was sentenced in accordance with
the plea agreement. The trial court ordered defendant to have no
contact with the children for the duration of his sentence and
mandatory parole supervision period. When defense counsel
questioned the court's authority for imposing "a no contact
provision . . . as part of a sentence to state prison[,]" the
court responded that "in the context of a domestic violence case,
. . . it can last for the term of the period of incarceration or
parole." A judgment of conviction was entered on July 22, 2016
and this appeal followed.
On appeal, defendant raises a single argument:
POINT I
THE COURT'S IMPOSITION OF AN ORDER PREVENTING
DEFENDANT FROM HAVING CONTACT WITH HIS MINOR
DAUGHTER IS UNLAWFUL AND MUST BE VACATED.
Because the court had the authority to impose the no contact order
under the Prevention of Domestic Violence Act (PDVA), N.J.S.A.
2C:25-17 to -35, we affirm.
In State v. Beauchamp, 262 N.J. Super. 532, 538-39 (App. Div.
1993), we discussed the effect of remedial orders entered pursuant
to the PDVA by a sentencing court. "[W]e distinguish[ed] between
those provisions of the judgment of conviction which were
designated as conditions of parole and those which were intended
to regulate defendant's conduct as would any order issued pursuant
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to the [PDVA]." Id. at 538. We concluded that "[t]he latter
. . . were within the plenary authority of the court at the time
the judgment of conviction was entered," and "the Superior Court
retains the same plenary power to enter appropriate remedial orders
against the defendant as are authorized by the [PDVA] and are
customarily entered in the Family Part." Id. at 538-39.
N.J.S.A. 2C:25-27(a) provides:
When a defendant is found guilty of a
crime or offense involving domestic violence
and a condition of sentence restricts the
defendant's ability to have contact with the
victim, the victim’s friends, co-workers, or
relatives, or an animal owned, possessed,
leased, kept, or held by either party or a
minor child residing in the household, that
condition shall be recorded in an order of the
court and a written copy of that order shall
be provided to the victim by the clerk of the
court or other person designated by the court.
Under the PDVA, domestic violence occurs when an individual commits
one or more predicate acts, enumerated in N.J.S.A. 2C:25-19(a),
upon a person protected under the Act as defined in N.J.S.A. 2C:25-
19(d).
Defendant points out that "nearly two years after the
incident, but prior to sentencing, N.J.S.A. 2C:25-19(a) was
amended to include a catchall provision among the enumerated
offenses," specifically:
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Any other crime involving risk of death or
serious bodily injury to a person protected
under the "[PDVA.]
[N.J.S.A. 2C:25-19(a)(18).]
Accordingly, defendant argues the court "was without authority to
impose a no-contact order with respect to A.C. because this
catchall provision should not be given retroactive effect."
Defendant asserts, "[a]pplication of the catchall provision
against defendant would violate fundamental protections against
ex post facto laws" because neither aggravated arson nor child
endangerment were enumerated offenses prior to the effective date
of the amendment. We disagree.
Both the United States and the New Jersey Constitutions
prohibit ex post facto laws. U.S. Const. art. I, § 10, cl. 1;
N.J. Const. art. IV, § 7, ¶ 3. "The purpose of the Ex Post Facto
Clauses is to guarantee that criminal statutes 'give fair warning
of their effect and permit individuals to rely on their meaning
until explicitly changed.'" State v. Muhammad, 145 N.J. 23, 56
(1996) (emphasis omitted) (quoting Weaver v. Graham, 450 U.S. 24,
28-29, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 23 (1981)).
"The Ex Post Facto Clause is 'aimed at laws that retroactively
alter the definition of crimes or increase the punishment for
criminal acts.'" State v. Perez, 220 N.J. 423, 438 (2015) (quoting
6 A-5204-15T4
Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115 S. Ct.
1597, 1601, 131 L. Ed. 2d 588, 594 (1995)).
[T]o violate the Ex Post Facto Clauses, the
statute in question must either (1) punish as
a crime an act previously committed, which was
innocent when done; (2) make more burdensome
the punishment for a crime, after its
commission; or (3) deprive a defendant of any
defense available according to the law at the
time when the crime was committed.
[Muhammad, supra, 145 N.J. at 56 (citations
omitted).]
Applicable to this appeal is whether the August 10, 2015
amendment to the PDVA violates the Ex Post Facto Clauses by making
"more burdensome the punishment for a crime, after its commission."
Ibid. Significantly, "two critical elements must be present for
a criminal or penal law to be ex post facto: it must be
retrospective, that is, it must apply to events occurring before
its enactment, and it must disadvantage the offender affected by
it." Weaver, supra, 450 U.S. at 29, 101 S. Ct. at 964, 67 L. Ed.
2d at 23 (emphasis and footnotes omitted).
Under the first element, "[a] law is retrospective if it
'appl[ies] to events occurring before its enactment' or 'if it
changes the legal consequences of acts completed before its
effective date.'" Riley v. N.J. State Parole Bd., 219 N.J. 270,
285 (2014) (second alteration in original) (quoting Miller v.
Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96 L. Ed. 2d
7 A-5204-15T4
351, 360 (1987)). In Riley, the Court held that the Ex Post Facto
Clauses precluded retroactive application of the New Jersey Sex
Offender Monitoring Act (SOMA), N.J.S.A. 30:4-123.89 to -
123.99, to the defendant, who had completed his sentence and was
under no form of parole supervision before passage of SOMA. Id.
at 298.
Under the second element, "[t]here is no ex post facto
violation . . . if the change in the law is merely procedural and
does not increase the punishment, nor change the ingredients of
the offen[s]e or the ultimate facts necessary to establish guilt."
Perez, supra, 220 N.J. at 438-39 (emphasis omitted) (quoting State
v. Natale, 184 N.J. 458, 491 (2005)). In Doe v. Poritz, 142 N.J.
1, 73 (1995), the Court held that the imposition of post-release
registration and notification requirements of Megan's Law did not
violate ex post facto prohibitions because it did not constitute
punishment. Rather, the legislation "is clearly and totally
remedial in purpose[,] . . . designed simply and solely to enable
the public to protect itself from the danger posed by sex
offenders[.]" Ibid. The Court further noted that "[t]he fact
that some deterrent punitive impact may result does not . . .
transform those provisions into 'punishment' if that impact is an
inevitable consequence of the regulatory provision[[.]" Id. at
75.
8 A-5204-15T4
Although the constitutional bar against ex post facto
punishments may be applied to a civil measure if the purpose or
effect of the measure is punitive in nature, Riley, supra, 219
N.J. at 285-86, "the relief a court may grant and the remedies
that are made available under the [PDVA] are curative." D.N. v.
K.M., 429 N.J. Super. 592, 606 (App. Div. 2013), certif. denied,
216 N.J. 587 (2014). Unlike the Criminal Code, the PDVA is
essentially civil in nature and "is designed to remediate
behavior." Id. at 605. To that end,
[t]he Act empowers a court to restrain a
defendant's contact and communication with the
victim or members of the victim's family,
N.J.S.A. 2C:25-29(b)(6), (7); modify
parenting time, N.J.S.A. 2C:25-
29(b)(3); restrict the right to purchase or
possess firearms, N.J.S.A. 2C:25-29(b);
enjoin use of a residence, N.J.S.A. 2C:25-
29(b)(2); require completion of various
counseling programs, N.J.S.A. 2C:25-29(b)(5);
and impose civil penalties "of at least $50,
but not to exceed $500[,]" N.J.S.A. 2C:25-
29.1. However, . . . these provisions are
designed to protect a victim from future
infliction of violence. The Act does not pit
the power of the State against the defendant.
Rather, a putative victim of domestic violence
presents evidence to the court and seeks
available relief, not unlike many other
remedial statutes designed to protect a
specific class of plaintiffs from the wrongful
conduct of another.
[Ibid.]
9 A-5204-15T4
We reject defendant's contention that application of the
catchall provision under the PDVA against defendant violated the
constitutional proscriptions on ex post facto legislation because
neither the purpose nor the effect of the provision is punitive.
Rather, the provision is remedial in nature, designed to protect
domestic violence victims. The August 10, 2015 statutory amendment
to the PDVA expanded the definition of an act of domestic violence
to include any "crime involving risk of death or serious bodily
injury to a person protected under the [PDVA.]" N.J.S.A. 2C:25-
19(a)(18). Under N.J.S.A. 2C:25-19(d), a person protected under
the PDVA includes any person "who has been subjected to domestic
violence by a person with whom the victim has a child in common,"
or "any person who is 18 years of age or older" and has been
subjected to domestic violence by "a present" or former "household
member."
N.J.S.A. 2C:25-27(a) confers authority on the court to order
the no-contact provision to protect "a minor child residing in the
household" when "a defendant is found guilty of a crime or offense
involving domestic violence[.]" Under this provision, contrary
to defendant's assertion, the minor child need not be the victim
of the act of domestic violence in order to be afforded protection,
but need only reside in the household when defendant is found
guilty of a crime involving domestic violence. Here, the plain
10 A-5204-15T4
language of N.J.S.A. 2C:25-27(a) encompasses defendant's
conviction for aggravated arson, a crime involving domestic
violence committed upon a person protected under the PDVA, his
fiancée. No contact with A.C., "a minor child residing in the
household" when defendant was found guilty of a crime involving
domestic violence against his fiancée is clearly among the civil
remedies authorized by the PDVA. See State v. J.F., 262 N.J.
Super. 539, 544 (App. Div. 1993) (upholding the validity of the
"no further contact with family" provision contained in the
judgment of conviction).
Affirmed.
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