Important Information About the Relationship Between Domestic Violence & Criminal Cases in New Jersey

There are instances where a Domestic Violence case has other pending criminal charges that are being heard simultaneously or in different court cases. These cases can get complex when it comes to protecting a defendant’s Fifth Amendment rights against Self-Incrimination. J.E.B. v. C.B. is a recent New Jersey Appellate Division decision that was decided that provided a great deal of clarity regarding a defendant’s right not to testify to impact their criminal case when they are also a party to a New Jersey Temporary Restraining Order (TRO) or a Final Restraining Order (FRO) hearing.

Key Facts from J.E.B. v. C.B.

Defendant C.B., the son of plaintiff J.E.B., appeals the entry of December 10, 2020, Final Restraining Order (FRO) under the Prevention of Domestic Violence Act (PDVA), codified at N.J.S.A. 2C:25-17 to 35. Defendant argued that the judge erred in refusing to grant his request to adjourn the trial to obtain the necessary witnesses. He also asserted that the judge erred in drawing an adverse inference against him for choosing not to testify during the Final Restraining Order (FRO) hearing.

The plaintiff obtained a Temporary Restraining Order (TRO) against the defendant on August 30, 2019, based on allegations that the defendant committed predicate acts of assault, terroristic threats, and criminal restraint the day prior. The defendant was arrested and charged with criminal offenses arising from the incident that led to the Temporary Restraining Order (TRO) filing. The case was initially scheduled for a final hearing on September 12, 2019, but the plaintiff did not appear, resulting in the issuance of an extended Temporary Restraining Order (TRO). More than a year later, at the defendant’s request, the court entered an order on October 2, 2020, rescheduling the Final Restraining Order (FRO) hearing for November 5, 2020, and ordered the Hopatcong Police Department to personally serve the plaintiff with an order advising her that failure to appear at the Final Restraining Order hearing may result in dismissal of the case.

Plaintiff appeared on November 5, 2020, but requested and received an adjournment until November 19, which the defendant consented to retain counsel. On November 19, the plaintiff appeared but sought another adjournment because she had not yet retained counsel. The judge granted her request and ordered the case to be tried or dismissed on December 10, 2020.

The Final Restraining Order (FRO) proceeded via Zoom on December 10, 2020. Defendant requested an adjournment for three weeks to a month with the justification that the defense counsel explained that after receiving the grand jury transcript in the criminal action, he found significant inconsistencies between the plaintiff’s domestic violence allegations and what is in the grand jury transcripts. The judge denied the defendant’s adjournment request, and the Final Restraining Order (FRO) hearing proceeded.

After hearing and summarizing the testimony on the record, the judge found that the plaintiff had testified credibly and observed that the plaintiff recalled the incident where the defendant had come into the house furiously. The judge noted that no countervailing or contradictory evidence was presented either through another party, another witness, or the defendant himself. The judge further found that the defendant committed predicate acts of assault, terroristic threats, and criminal restraint. The trial court judge determined that both prongs were met under Silver v. Silver.

On appeal, the defendant raised the point that the trial court erred in denying the defendant’s request for an adjournment to obtain necessary witnesses, and the trial court erred in drawing an adverse inference against the defendant for electing not to testify during the Final Restraining Order (FRO) hearing.

Essential Takeaways from J.E.B. v. C.B.

According to New Jersey precedent, reversal is only warranted if the findings were manifestly unsupported or inconsistent with the competent, relevant, and reasonably credible evidence to offend justice’s interests.

Defendant’s argument that the trial judge abused her discretion by not granting an adjournment of the final hearing was not accepted by the appellate court. The Court reasoned that the defendant had much time to prepare for the hearing due to the many postponements over a year.

Next, the Court considered the Defendant’s argument that the judge erred by making an adverse inference against him based on his decision not to testify at trial because there was a pending criminal matter against him at the time. Again, the Appellate Court did not find an error.

The Domestic Violence Act states that:

If a criminal complaint arising out of the same incident, which is the subject matter of a complaint brought [under the Act], has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is unavailable.

While a defendant is entitled to invoke his right against self-incrimination under the Fifth Amendment and N.J.R.E. 503, the Appellate Court found that defendant could have testified at the FRO hearing, and his testimony could not have been used affirmatively against him in the “pending criminal matter” under the Act. Accordingly, as the finder of fact, the judge did not err in drawing an adverse inference against the defendant based on his decision not to testify.

Furthermore, the Appellate Court reaffirmed that an adverse inference is only permitted where additional evidence supports an adverse finding. Here, the Court found that the Final Restraining Order (FRO) was based on substantiative evidence, including the plaintiff’s credible testimony. The judge’s decision was not based solely on the defendant’s refusal to testify.

How the Bianchi Law Group Can Help

The Bianchi Law Group is a criminal defense firm in New Jersey made up of a team of Former Prosecutors. Our firm primarily focuses on Criminal Defense, Domestic Violence, DUI/DWI, and Municipal Court cases. Our team of former prosecutors has prosecuted a wide range of criminal and domestic violence cases and now represent clients in criminal defense and domestic violence restraining order hearings. The Bianchi Law Group is equipped with experienced Criminal Defense attorneys in New Jersey to help individuals looking for a New Jersey lawyer.

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The Bianchi Law Group partners Robert (Bob) Bianchi and David Bruno are certified along with only 250 New Jersey attorneys as certified criminal trial attorneys by the New Jersey Supreme Court. Bob and Dave regularly appear as national legal analysts to comment and debate on major news networks such as Court TV, the Law and Crime Network, Fox News, CNN, HLN, MSNBC, and Fox Business.

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