RESTRAINING ORDER DOES NOT NEED TO BE SERVED FOR YOU TO BE VIOLATED OF ITS PROVISIONS IN NEW JERSEY
DOCKET NO. A-0728-21
Decided April 11, 2023
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division of New Jersey affirmed a finding of contempt of a Temporary Restraining Order (TRO) after defendant was telephonically served by police, but not physically served.
In State v. Ragab, on December 10, 2020, L.M. (Lindy)1 met with her ex-boyfriend at a hair salon in Englewood where her brother worked, for a parenting time exchange of their four-year-old daughter. During the exchange, defendant allegedly cornered her “in a back room alone, grabbed her by her arms and repeatedly commented about getting back together.” When Lindy’s daughter walked into the room, defendant released his grip and walked away. Based on defendant’s alleged conduct, Lindy applied for and was granted a TRO against defendant on December 14, 2020.
Englewood Police Department (EPD) Sergeant Carlos Marte testified that he served the defendant with the TRO telephonically on December 15, 2020. Marte testified that his practice for serving restraining orders is to make two attempts with his officers to personally serve the restrained party, followed by a telephonic third attempt. Marte testified that during the phone call he introduces himself, explains why he is calling, asks if the person on the phone is the restrained individual named in the TRO, and if he is, Marte tells him that he is being telephonically served with a TRO, reviews the restraint provisions of the restraining order with the person, and arranges a time for the defendant to come into the police station and pick up a tangible copy.
On January 4, 2021, Lindy called defendant, whose sister was in the car with him at the time. Defendant put his phone on speaker so that his sister could listen to the conversation and record it on her phone. During the call, Lindy told defendant that if he signed a document allowing her to take their daughter to Columbia, she would dismiss the restraining order she had against him.
Plaintiff received five calls at separate times from an “No Caller ID” unknown number. A few of the calls Plaintiff recognized Defendant’s voice and she reiterated that she has a restraining order and he is not supposed to contact her. She recorded one of the conversations with defendant.
The judge noted defendant did not dispute calling Lindy. Rather the issues were “whether [he] knowingly or purposely violated the [TRO], that is whether he knew there was a restraining order in effect when he made the calls, and exactly when he made those calls.” The judge found that during defendant’s phone conversation with R.Y.: “Never once during the entire back and forth [between defendant and R.Y.] did [defendant] deny or even question that there was a restraining order.” The judge further found that Sergeant Marte attempted to serve the defendant with the TRO twice in person, and upon being unsuccessful, Marte served defendant telephonically on December 15, 2020.
The Judge found that because of the telephonic service of the TRO, and the multiple times plaintiff mentioned the restraining order to defendant over the phone, defendant had actual notice of the restraining order and violated it, finding him guilty of contempt beyond a reasonable doubt.
Defendant appealed and the Appellate Division affirmed for the same reasons.
The case is important to understand that even if you are physically served with either Temporary Restraining Order (TRO) or a Final Restraining Order (FRO), if you are found to have actual notice of the existence of a restraining order and you violate its provisions, you could be found guilty like the above matter. In reading the opinion above, even if police did not serve defendant telephonically, because plaintiff mentions the restraining order multiple times, that alone could be enough for a defendant to have actual knowledge of a restraining order for a contempt hearing.
If someone mentions that they have a restraining order against you, or you have been served telephonically or physically with a TRO or FRO, or if you have been charged with contempt of a restraining order, contact the experienced attorneys at Hark & Hark today to ensure you have adequate representation and your liberties are protected so you do not wind up violating.
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