(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
STATE OF NEW JERSEY V. AURELIO CHENIQUE-PUEY (A-87-95)
Argued February 13, 1996 -- Decided July 17, 1996
POLLOCK, J., writing for a unanimous Court.
The issue on appeal is whether charges of making terroristic threats to kill may be tried jointly with
charges of contempt of a domestic-violence restraining order.
Aurelio Chenique-Puey was convicted of making terroristic threats to kill and of contempt of a
domestic-violence restraining order in a consolidated jury trial in the Law Division. On appeal, the Appellate
Division reversed, ruling that separate trials were required because evidence of the restraining order unfairly
prejudiced Chenique-Puey on the terroristic-threats charge.
The Supreme Court granted the State's petition for certification.
HELD: The trial court erred by denying Aurelio Chenique-Puey's motion to sever his indictment for
contempt of the domestic violence restraining order and terroristic threats to kill. Evidence of a
restraining order obtained by the victim against Chenique-Puey unduly prejudiced Chenique-Puey's
trial on terroristic threats.
1. In the Prevention of Domestic Violence Act, the Legislature has made clear its intention to assure victims
of domestic violence get the maximum protection from abuse the law can provide. However, courts must
balance the vigilant protection of a victim of domestic violence with the right of a defendant to a fair trial.
Resolution of the appeal requires a careful balancing of two competing values: the expeditious determination
of a compelling issue with the protection of the rights of the accused. (pp. 5-6)
2. Mandatory joinder of offenses is required when multiple criminal offenses charged are based on the same
conduct or arise from the same episode, if such offenses are known to the appropriate prosecuting officer at
the time the first trial is begun and are within the jurisdiction and venue of a single court. Notwithstanding
the preference for joinder, the trial court has discretion to order separate trials if joinder would prejudice
unfairly a defendant. The decision whether to sever an indictment rests in the sound discretion of the trial
court. The appellate court should defer to the trial court's decision, absent an abuse of discretion. Central
to the court's inquiry is whether, assuming that charges were tried separately, evidence of the offenses sought
to be severed would be admissible in the trial of the remaining charges. If the evidence would be admissible
at both trials, then the trial court may consolidate the charges. (pp. 6-7)
3. To convict a defendant of the fourth-degree crime of contempt of a restraining order issued pursuant to
the Prevention of Domestic Violence Act, the State must prove: 1) the issuance of a restraining order
pursuant to the Act; 2) defendant's violation of the order; 3) that defendant acted purposely or knowingly;
and 4) the conduct that constituted the violation also constituted a crime or disorderly persons offense.
Here, evidence of a domestic-violence restraining order was an essential element of the State's proofs on the
contempt charge. Furthermore, evidence of Chenique-Puey's past acts of violence against his victim were
admitted properly to show that his attack was committed purposely and knowingly. Therefore, there was no
error in Chenique-Puey's conviction for contempt. (pp. 8-9)
4. At Chenique-Puey's trial for terroristic threats to kill, his prior acts of domestic violence would be
admissible only for the limited purpose of demonstrating that the victim had reason to believe that Chenique-Puey would make good on his threats to kill her and her companion. Such evidence, however, is
inadmissible to show that Chenique-Puey "acted in conformity" with these prior bad acts. The trial court
should have given a charge on the limited purpose for which the prior-acts evidence was admitted. Evidence
of the restraining order is inadmissible, however, to prove terroristic threats. Admission of the restraining
order could have prejudiced unduly Chenique-Puey by bolstering the victim's testimony regarding his prior
bad acts. The order creates the inference that if the court found Chenique-Puey guilty of domestic violence
in a prior proceeding, that he is more than likely guilty of the terroristic-threat charge. (pp. 9-10)
5. In the future, trial courts should sever and try sequentially charges of contempt of a domestic-violence
restraining order and of an underlying criminal offense when the charges arise from the same criminal
episode. First, the court should try the charge on the underlying offense. Evidence of a previously-issued
domestic violence restraining order generally will not be admissible in that trial. If, however, the defendant
testifies, the order would be admissible for the limited purpose of impeaching his or her testimony.
Following a verdict on the underlying offense, the trial court should immediately proceed to try the contempt
charge before the same jury. In that trial, the jury may consider the evidence presented in the trial of the
underlying offense. Any slight inconvenience to the victim of separate proceedings before the same jury is
outweighed by a defendant's right to a fair trial. (pp. 10-11)
6. Severing the contempt and terroristic-threat count should not create a double-jeopardy problem. A
defendant who moves to sever the trial of a charge of contempt of a domestic violence restraining order from
the trial of an underlying offense should be precluded from asserting that double jeopardy or collateral
estoppel bars the subsequent prosecution. Double jeopardy concerns would arise only if the State sought to
try the offenses separately. (p. 11)
Judgment of the Appellate Division in respect of Chenique-Puey's conviction for contempt is
REVERSED and the contempt conviction is REINSTATED. Judgment of the Appellate Division vacating the
conviction of terroristic threats to kill is AFFIRMED and REMANDED to the Law Division.
JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE
POLLOCK's opinion. CHIEF JUSTICE WILENTZ did not participate.
SUPREME COURT OF NEW JERSEY
A-
87 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
AURELIO CHENIQUE-PUEY,
Defendant-Respondent.
Argued February 13, 1996 -- Decided July 17, 1996
On certification to the Superior Court,
Appellate Division.
Gary Schlyen, Chief Assistant Prosecutor,
argued the cause for appellant (Ronald S.
Fava, Passaic County Prosecutor, attorney).
Steven M. Gilson, Designated Counsel, argued
the cause for respondent (Susan L. Reisner,
Public Defender, attorney).
Lisa Sarnoff Gochman, Deputy Attorney
General, argued the cause for amicus curiae,
Attorney General of New Jersey (Deborah T.
Poritz, Attorney General, attorney).
The opinion of the Court was delivered by
POLLOCK, J.
The issue is whether charges of making terroristic threats
to kill, contrary to N.J.S.A. 2C:12-3b, may be tried jointly with
charges of contempt of a domestic-violence restraining order,
contrary to N.J.S.A. 2C:25-29b(1). Defendant, Aurelio Chenique-Puey, was convicted of both offenses in a consolidated jury trial
in the Law Division. In an unpublished opinion, the Appellate
Division reversed, ruling that separate trials were required. We
agree that joinder prejudiced the defendant on the threats charge
but not on his contempt conviction. Accordingly, we affirm
defendant's contempt conviction and remand for a new trial on the
count concerning terroristic threats.
This case arises out of the turbulent relationship of defendant and Tina Lee. Although never married, the couple cohabited from 1983 until 1987. In 1986, they had a daughter. Because of incessant arguing and fighting, however, they separated in 1987.
According to Lee, defendant subsequently harassed her by banging on the door and windows of her home, and by both threatening to kill and cursing her. Defendant repeatedly warned Lee not to let him catch any men in her apartment.
In the fall of 1987, defendant obtained a court order granting visitation rights for his daughter. Then, Lee obtained a temporary domestic-violence restraining order, which was made permanent on December 1, 1987. The order prohibited defendant from "returning to the scene of the domestic violence" and "from having any contact with the plaintiff or harassing plaintiff or plaintiff's relatives in any way." It also curtailed defendant's child-visitation rights.
Defendant was not present at the hearings that led to the
issuance of the restraining orders. Lee did not notify defendant
of those hearings because she was unaware of his current
residence. Although she knew of his work address, she did not so
inform the court.
Several days following the grant of the permanent order,
defendant appeared outside of Lee's apartment and demanded entry.
Lee informed him that she had obtained a restraining order
against him and slipped his copy under the door.
A few days later, defendant called Lee to tell her that he
was very upset by the contents of the order. He cursed Lee and
threatened: "I'm going to get you for this."
Lee did not have any further contact with defendant until
1991. In the interim, defendant was convicted and imprisoned on
unrelated charges. He was paroled on November 12, 1991.
Five days after his release from prison, on Sunday, November
17, 1991, defendant knocked on the door of Lee's apartment and
demanded to see their daughter. At the time, Lee was watching a
football game on television with two of her children and her
boyfriend, Clifford McKnight. Lee refused to admit defendant and
told him to leave. Defendant responded that he wanted to see his
daughter.
Defendant proceeded to taunt McKnight through an open rear
window. According to Lee and McKnight, defendant reached his arm
through the window bars and waved a knife at them. After failing
to provoke McKnight, defendant threatened to return to the
apartment with a shotgun and kill the couple.
When defendant left the premises, Lee called the police and
filed a criminal complaint against defendant. Defendant was
indicted on charges of third degree terroristic threats, contrary
to either N.J.S.A. 2C:12-3a or N.J.S.A. 2C:12-3b, or both; fourth
degree unlawful possession of a weapon, a knife, contrary to
N.J.S.A. 2C:29-5d; and fourth degree contempt of a judicial
restraining order, contrary to N.J.S.A. 2C:29-9b.
At the start of trial, defendant moved for a severance of
the contempt charge. He argued that joinder of this offense
would prejudice him because evidence of the restraining order
would convince the jury that he had in fact made the alleged
terroristic threats against Lee. The trial court denied the
motion.
At trial, defendant did not testify. Instead, he produced
two witnesses, Pedro and Marisa Moncho, who claimed that they had
accompanied defendant to Lee's apartment on two prior occasions.
First, on November 12, 1991, the three visited the apartment
without incident. While there, defendant talked with Lee and
measured his daughter for clothes.
The second occasion, which occurred on November 17, 1991,
gave rise to the events that underlie the present charges. The
Monchos' version differed sharply from Lee's version. According
to the Monchos, they knocked on the door and heard a child
inside, but no one answered. Through the open, rear window they
looked inside the apartment. Lee told them that she would not
let them in and that they should leave. According to Pedro
Moncho, defendant then told Lee that he would return on another
day and the two men left. The Monchos denied that Chenique-Puey
had a knife or made any sort of threats to Lee and McKnight.
The jury accepted Lee's version and convicted defendant of
the terroristic threats and contempt counts, but acquitted him of
unlawful possession of a knife. The court sentenced defendant as
a persistent offender to an extended term of seven years on the
terroristic threats conviction and imposed a nine months
concurrent sentence on the contempt conviction.
In reversing, the Appellate Division held that separate
trials were required because evidence of the restraining order
unfairly prejudiced defendant on the terroristic-threats count.
We granted the State's petition for certification.
142 N.J. 514
(1995).
Domestic violence persists as a grave threat to the family, particularly to women and children. In the Prevention of Domestic Violence Act, the Legislature has made clear its intention to "assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Recognizing the decisive role of the judiciary, the Legislature declared that "it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like
setting by providing access to both emergent and long-term civil
and criminal remedies and sanctions." Ibid. Recently, this
Court responded by declaring that "there is no such thing as an
act of domestic violence that is not serious." Brennan v. Orban,
____ N.J. ____, slip op. at 16-19 (1996).
As with most issues that confront the judiciary, however,
the trial of a domestic violence case is multidimensional.
Courts must balance the vigilant protection of a victim of
domestic violence with the right of a defendant to a fair trial.
The issue is whether, without unduly prejudicing the defendant's
right to a fair trial, charges of contempt of a domestic-violence
restraining order can be consolidated for trial with charges of
making terroristic threats. Resolution of the issue requires a
careful weighing of two competing values: the expeditious
determination of a compelling issue with the protection of the
rights of the accused.
Joinder of offenses is governed generally by Rule 3:7-6 which provides in pertinent part:
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.
Mandatory joinder is required when multiple criminal offenses charged are "based on the same conduct or aris[e] from the same
episode, if such offenses are known to the appropriate
prosecuting officer at the time of the commencement of the first
trial and are within the jurisdiction and venue of a single
court." R. 3:15-1(b).
Notwithstanding the preference for joinder, Rule 3:15-2(b)
vests a trial court with discretion to order separate trials if
joinder would prejudice unfairly a defendant. State v. Oliver,
133 N.J. 141, 150 (1993). The rule provides:
If for any other reason it appears that a
defendant or the State is prejudiced by a
permissible or mandatory joinder of offenses
... in an indictment or accusation the court
may order an election or separate trials of
counts ... or direct any other appropriate
relief.
The decision whether to sever an indictment rests in the
sound discretion of the trial court. State v. Briley,
53 N.J. 498, 503 (1969). An appellate court will defer to the trial
court's decision, absent an abuse of discretion. State v.
Erazo,
126 N.J. 112, 131 (1991); State v. Brown,
118 N.J. 595,
603 (1990).
Central to the inquiry is "whether, assuming the charges
were tried separately, evidence of the offenses sought to be
severed would be admissible under [N.J.R.E. 404(b)] in the trial
of the remaining charges." State v. Pitts,
116 N.J. 580, 601-02
(1989). If the evidence would be admissible at both trials, then
the trial court may consolidate the charges because "a defendant
will not suffer any more prejudice in a joint trial than he would
in separate trials." State v. Coruzzi,
189 N.J. Super. 273, 299
(App. Div.), certif. denied,
94 N.J. 531 (1983). The focus in
this case, then, is whether evidence of the issuance of a
domestic violence restraining order is properly admissible at
both defendant's trials for contempt and terroristic threats to
kill.
To convict a defendant of the fourth-degree crime of contempt of a restraining order issued pursuant to the Prevention of Domestic Violence Act ("the Act"), the State must prove: (1) a restraining order was issued under the Act; (2) the defendant's violation of the order; (3) that defendant acted purposely or knowingly; and (4) the conduct that constituted the violation also constituted a crime or disorderly persons offense. N.J.S.A. 2C:29-9(b); G. Miller, 33 New Jersey Practice, Criminal Law, §264 (West Supp. 1996).
Accordingly, evidence of the domestic-violence restraining order was an essential element of the State's proofs on the contempt charge. Furthermore, evidence of defendant's past acts of violence against Lee were admitted properly to show that his attack was committed purposely and knowingly. N.J.R.E. 404(b); see also State v. Ramseur, 106 N.J. 123, 266-67 (1987) (evidence of arguments between defendant and victim over year and a half leading up to killing was properly admitted to show defendant's hostility toward victim and his jealousy about her contacts with other men). We find no error in defendant's conviction for
contempt. Defendant's conviction for terroristic threats,
however, is more problematic.
The crime of terroristic threats is defined in N.J.S.A. 2C:12-3b as follows:
A person is guilty of a crime of the third degree if he threatens to kill another with purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.
At defendant's trial for terroristic threats to kill, his
prior acts of domestic violence would be admissible for the
limited purpose of demonstrating that Lee had reason to believe
that he would make good on his threats to kill her and her
companion. N.J.R.E. 404(b). Such evidence, however, is
inadmissible to show that defendant "acted in conformity" with
these prior bad acts. N.J.R.E. 404(a). The trial court should
have given a charge on the limited purpose for which the prior-acts evidence was admitted. State v. Cofield,
127 N.J. 328, 341-42 (1992).
Evidence of the restraining order is inadmissible, however,
to prove terroristic threats. Admission of the order could have
prejudiced unduly defendant by bolstering the victim's testimony
regarding defendant's prior bad acts. A jury could interpret the
order as a judicial imprimatur on the victim's testimony. The
order creates the inference that if a court found defendant
guilty of domestic violence in a prior proceeding, that defendant
is more likely guilty of the present terroristic-threat charges.
In the present case, moreover, the restraining order is not
merely cumulative evidence. But see State v. Steed,
665 A.2d 1072 (N.H. 1995) (holding that evidence of domestic-violence
restraining order was cumulative in case for criminal trespass).
Accordingly, we hold that the trial court should have severed the
charge on terroristic threats to kill from the trial of the
contempt of the domestic violence restraining order.
In the future, trial courts should sever and try sequentially charges of contempt of a domestic-violence restraining order and of an underlying criminal offense when the charges arise from the same criminal episode. See State v. Ragland, 105 N.J. 189 (1986).
First, the court should try the charge on the underlying offense. Evidence of a previously-issued domestic violence restraining order generally will be inadmissible in that trial. If, however, the defendant testifies, the order would be admissible for the limited purpose of impeaching the defendant's testimony. Following a verdict on the underlying offense, the trial court should immediately proceed to try the contempt charge before the same jury. In that trial the jury may consider the evidence presented in the trial of the underlying offense. Id. at 195-96. We anticipate that the inconvenience to the victim of
separate proceedings before the same jury will be slight and that
preserving a defendant's right to a fair trial outweighs that
slight inconvenience.
Contrary to the concerns of the Attorney General, severing the contempt and terroristic-threat counts should not create a double-jeopardy problem. A defendant who moves to sever the trial of a charge of contempt of a domestic violence restraining order from the trial of an underlying offense should be precluded from then asserting double jeopardy or collateral estoppel bars to the subsequent prosecution. Jeffers v. United States, 432 U.S. 137, 152, 97 S. Ct. 2207, 2217, 53 L. Ed.2d 168, 181 (1977) State v. Catanoso, 269 N.J. Super. 246, 274 (App. Div.), certif. denied, 134 N.J. 563 (1993).
Double jeopardy concerns would arise only if the State sought to try the offenses separately. Because that is not the case here, we do not address this issue.
The trial court erred by denying defendant's motion to sever his indictment for contempt of a domestic-violence restraining order and terroristic threats to kill. Evidence of a restraining order obtained by victim against defendant, although necessary for the contempt prosecution, unduly prejudiced defendant's trial on terroristic threats. Insofar as the judgment of contempt is
concerned, we reverse the Appellate Division and reinstate the
judgment of conviction. We affirm the judgment of the Appellate
Division vacating the conviction for terroristic threats to kill
and remand to the Law Division.
JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN and COLEMAN join
in JUSTICE POLLOCK's opinion. CHIEF JUSTICE WILENTZ did not
participate.
NO. A-87 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
AURELIO CHENIQUE-PUEY,
Defendant-Respondent.
DECIDED July 17, 1996
Justice Handler PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY