State of New Jersey v. D.G.M., 110 A.3d 978

Background

In 2010 Joan obtained a final restraining order (FRO) against D.G.M. under the Prevention of Domestic Violence Act; the FRO prohibited "any (oral, written, personal, electronic or other) form of contact or communication" with Joan and was amended in 2012 to limit communication methods for child-related reasons.
The parties share a child and both attended the child's soccer game on November 17, 2012; the FRO did not bar attendance at such events.
Defendant sat near Joan and used his cellphone to videotape or photograph her briefly during the game; the video shows he pointed the phone at Joan for about three seconds and then redirected it to the field.
Defendant was charged under N.J.S.A. 2C:29-9(b) with knowingly violating the FRO; after a one-day trial he was convicted based on the judge's finding that "recording her was a form of contact."
The appellate court accepted that the Act permits broad restraining terms but addressed whether the FRO's "no contact or communication" language clearly encompassed brief public filming and whether defendant had fair notice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether pointing a cellphone camera at the victim in public violated the FRO's prohibition on "any ... form of contact or communication"	Filming/photographing is an expressive act that conveys a message and therefore is a form of communication barred by the FRO	Brief public filming did not unambiguously fall within "contact" or "communication," so defendant lacked fair notice that such conduct was prohibited	Court: Filming at close enough range to be observed by the victim can constitute "communication," but conviction reversed under lenity because defendant lacked fair notice that brief public filming was criminalized by this FRO
Whether the statutory grant of authority to craft broad FROs makes the challenged conduct plainly criminal under N.J.S.A. 2C:29-9(b)	The Act and FRO language are broad; courts may forbid many forms of interaction including filming	Even if the Act allows such orders, the specific FRO here did not clearly notify defendant that brief filming was proscribed	Court: The Act allows broad orders, but the particular FRO did not give sufficiently clear notice that brief public filming was forbidden; lenity applies
Whether the conviction should stand despite ambiguity because the act was plainly threatening or alarming	Filming can be alarming and thus within the scope of prohibited communications regardless of subtlety	Ambiguity as to whether brief filming in public is proscribed requires resolving doubt for defendant	Court: Even if filming can be alarming, given lack of decisional law and plain notice, doubts resolved in defendant's favor
Whether the State proved a knowing violation beyond a reasonable doubt	The State argued defendant knew he was violating an FRO that barred all forms of contact/communication	Defendant could not have known with requisite certainty that brief filming in public violated the FRO	Court: State must prove knowing violation; because fair warning was lacking, the conviction cannot stand

Key Cases Cited

Stanley v. Illinois, 405 U.S. 645 (constitutional protection of parental rights)
McBoyle v. United States, 283 U.S. 25 (rule of lenity; fair warning requirement)
United States v. Bass, 404 U.S. 336 (resolve statutory ambiguity in favor of defendant)
State v. Gelman, 195 N.J. 475 (use of extrinsic aids to resolve statutory ambiguity)
S.K. v. J.H., 426 N.J. Super. 230 (standards for entry of restraining orders under the Act)
Finamore v. Aronson, 382 N.J. Super. 514 (FROs can exclude attendance at school events)
State v. J.T., 294 N.J. Super. 540 (conduct that communicates alarm can fall within protective-order prohibitions)