                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3968-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

C.F.,

     Defendant-Appellant.
______________________________

                    Submitted May 7, 2020 – Decided May 27, 2020

                    Before Judges Alvarez and DeAlmeida.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Ocean County, Docket
                    No. FO-15-0019-18.

                    Bathgate Wegener & Wolf, PC, attorneys for appellant
                    (Ryan S. Malc, on the brief; C.F., on the pro se briefs).

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Chief
                    Appellate Attorney, of counsel; Shiraz I. Deen,
                    Assistant Prosecutor, on the brief).

PER CURIAM
        Defendant C.F.1 appeals from the December 19, 2017 order of the Family

Part convicting him of contempt for violating a final restraining order (FRO).

We affirm.

                                          I.

        The following facts are derived from the record.            In 2011, K.M.,

defendant's former spouse, obtained an FRO prohibiting him from having any

contact or communication with her. In June 2017, the court amended the FRO

to permit communications between the parties concerning the health, education,

and general welfare of the couple's child to comport with an order of the Family

Part in their divorce proceeding.

        In July 2017, K.M. received text messages from the child's cellphone that

she believed were from defendant. She texted defendant, asking if he intended

not to comply with the amended FRO. He responded with texts calling K.M. a

"crazy ass," a "spiteful ass," and a "shrew," along with other harassing and

insulting comments.       The texts "frightened" K.M. and made her "nervous"

because she was to pick up the child from defendant the next day. K.M. reported

defendant's alleged violation of the amended FRO to police.




1
    We use initials to protect the identity of the parties' child. R. 1:38-3(d)(13).
                                                                             A-3968-17T1
                                          2
      A few days later, K.M. was copied on a series of emails from defendant

to a court-ordered parenting coordinator. When viewing the emails, K.M. was

able to see defendant had saved her email address under a modification of her

name incorporating a vulgar term. Defendant admitted to having saved K.M.'s

email address under that name. K.M. felt "appalled" and "[e]mbarrassed" to be

called the vulgarity to the parenting coordinator. She reported this alleged

violation of the amended FRO to police.

      Defendant was charged with one count of contempt, contrary to N.J.S.A.

2C:29-9(b)(2) (the text messages); one count of contempt, contrary to N.J.S.A.

2C:29-9(a) (the emails); and one count of harassment, contrary to N.J.S.A.

2C:33-4(a) (the emails).

      Defendant was tried in a bench trial before Judge Deborah L Gramiccioni.

He represented himself at trial. Over defendant's objection, the court appointed

an attorney, Patrick Cimino, to serve as standby counsel.       In response to

defendant's observation that Cimino did not regularly represent criminal

defendants, the court explained:

            [H]e is an attorney. . . . . [T]he fact of the matter is
            . . . that all counsel, when they go through law school
            [have] much more training than you in criminal law, in
            rules of evidence and the like. And so, in fact, most of
            the lawyers that appear before me today are not


                                                                        A-3968-17T1
                                       3
               "criminal lawyers." They're not "family lawyers."
               They're generalists, which is a lot of people's practices.

      The court also warned defendant he risked losing an ineffective assistance

of counsel claim if he represented himself at trial and was convicted. Defendant

accepted that risk, and claimed he would not hold standby counsel responsible

"in any ill way[.]"

      During trial, defendant objected to the State's use of the word "victim" to

describe K.M., stating she should be referred to as "accuser not the victim, or

alleged victim." The judge noted that she understood "it's the alleged victim at

this point."

      At the conclusion of trial, Judge Gramiccioni found defendant guilty on

the contempt charge relating to the text messages, concluding the messages did

not concern the health, education, or general welfare of the child, and the

language used by defendant was objectionably offensive and harassing. While

the judge found defendant sent the emails that referred to K.M. with a derogatory

term, she also found the State did not prove he intended to violate the amended

FRO or harass K.M. As a result, the court found defendant not guilty of the two

counts relating to the emails.

      On the single count of contempt of which he was convicted, the court

sentenced defendant to thirty days in the county jail, a mental health evaluation,

                                                                            A-3968-17T1
                                           4
and a year of probation. When explaining the basis for ordering the mental

health evaluation, the court noted defendant's behavior had been "erratic and

confusing at times" during trial.

      This appeal followed. C.F.'s counsel raises the following argument for

our consideration:

            THE TRIAL COURT ERRED BY NOT ORDERING
            PRO BONO COUNSEL TO TAKE [THE] LEAD
            ROLE IN THE TRIAL.

      C.F. filed a supplemental pro se brief raising the following arguments for

our consideration:

            POINT I

            DEFENDANT/APPELLANT WAS APPOINTED
            COUNSEL THAT WAS NOT A CRIMINAL
            ATTORNEY.   DEFENDANT DID NOT HAVE
            ADEQUATE ASSISTANCE OF COUNSEL IN THAT
            THE COURT APPOINTED A PERSONAL INJURY
            ATTORNEY TO REPRESENT HIM IN A CRIMINAL
            CASE.

            POINT II

            JUDGE   GRAMICCIONI  ERRED    IN  NOT
            APPOINTING MR. CIMINO TO REPLACE
            DEFENDANT AS COUNSEL.      THE COURT
            STATED THAT IF SHE FOUND THAT
            DEFENDANT     COULD     NO     LONGER
            ADEQUATELY REPRESENT HIMSELF SHE
            COULD APPOINT CO-COUNSEL AS COUNSEL.


                                                                        A-3968-17T1
                                       5
            POINT III

            COUNSEL   WAS     INEFFECTIVE    IN   NOT
            OBJECTING TO EVERY TIME THE STATE
            REFERRED TO [K.M.] AS "THE VICTIM" RATHER
            THAN AS THE PLAINTIFF.

            POINT IV

            THE    CONSTANT    AND    CONTINUOUS
            REFERENCE TO PLAINTIFF AS THE VICTIM
            COMPLETELY ERODES THE PRESUMPTION OF
            INNOCENCE OF DEFENDANT, AND IMPLIES A
            FOREGONE CONCLUSION OF GUILT.

            POINT V

            COUNSEL WAS INEFFECTIVE IN FAILING TO
            OBJECT TO PLAINTIFF'S TESTIMONY THAT
            DEFENDANT SENT 100 TEXT MESSAGES IN ONE
            NIGHT TO PLAINTIFF WHICH WAS WHY SHE
            SOUGHT [A] RESTRAINING ORDER.

            POINT VI

            COUNSEL WAS INEFFECTIVE IN FAILING TO
            PREPARE   DEFENDANT    FOR    CROSS[-]
            EXAMINATION.

                                     II.

      "[T]he Sixth Amendment grants a defendant the right represent himself in

criminal proceedings." State v. Gallagher, 274 N.J. Super. 285, 294 (App. Div.

1994) (citing Faretta v. California, 422 U.S. 806, 821 (1975)); accord Div. of

Child Prot. & Permanency v. R.L.M., 236 N.J. 123, 131 (2018). "[A] state may

                                                                      A-3968-17T1
                                      6
not constitutionally impose a lawyer upon an unwilling defendant . . . . The

right to defend is personal, and it is the defendant, not his lawyer or the

prosecutor, who will bear the consequences of a conviction." Gallagher, 274

N.J. Super. at 295 (citation omitted). The right to represent oneself obtains even

though "the defendant may conduct his defense ultimately to his own detriment

. . . ." Ibid. (citing Faretta, 422 U.S. at 834).

      The United States Supreme Court "made explicit that trial judges may

appoint standby counsel – even over a defendant's objection – 'to relieve the

judge of the need to explain and enforce basic rules of courtroom protocol or to

assist the defendant in overcoming routine obstacles that stand in the way of the

defendant's achievement of his own clearly indicated goals.'" In re Commitment

of D.Y., 218 N.J. 359, 377 (2014) (quoting State v. Davenport, 177 N.J. 288,

301 (2003); McKaskle v. Wiggins, 465 U.S. 168, 184 (1984)).              "Standby

counsel is appointed for two main purposes: to act as a 'safety net' to insure that

the litigant receives a fair hearing and to allow the trial to proceed without the

undue delays likely to arise when a layperson represents his own case ." Id. at

377-78 (quoting State v. Ortisi, 308 N.J. Super. 573, 591 (App. Div. 1998)).

"Standby counsel also serves to protect the integrity of the proceeding when a




                                                                           A-3968-17T1
                                          7
litigant is uncooperative with the court and opposing counsel, or refuses to

proceed at all." Id. at 378.

      "[T]he trial judge may terminate self-representation by a defendant who

deliberately engages in serious and obstructionist misconduct." Ibid. (quoting

Faretta, 422 U.S. at 834 n.46); see also State v. Wiggins, 158 N.J. Super. 27, 32-

33, (App. Div. 1978). Directing standby counsel to replace a defendant should

occur when "the defendant's conduct unmistakably prevents a fair trial . . . ."

State v. Reddish, 181 N.J. 553, 605-06 (2004) (citing Faretta, 422 U.S. at 825).

      Having reviewed the record in light of these precedents, we conclude the

trial court scrupulously respected defendant's right to represent himself at trial.

The judge informed defendant of the potential shortfalls of representing himself.

He acknowledged the inherent risk and elected to proceed. The court appointed

standby counsel to assist defendant in presenting his defense and cross -

examining the State's witnesses. Standby counsel is a member of the bar who

comported himself well at trial. Defendant frequently sought his advice and

permitted standby counsel to question witnesses, address the court, and clarify

defendant's arguments.         Defendant's argument that standby counsel was

insufficiently experienced in criminal matters is meritless. Defendant does not

have the right to appointed standby counsel of his choosing.


                                                                           A-3968-17T1
                                         8
      Nor do we see any basis for defendant's argument that Judge Gramiccioni

should have replaced defendant with standby counsel during the trial.

Defendant, despite his lack of legal training, questioned witnesses, cross -

examined the victim, and presented a defense centered largely on his contention

that K.M. frequently initiated contact with him outside the parameters of the

amended FRO, leading him to believe his text messages did not violate the order.

In addition, defendant argued the email identification of K.M. with a vulgar

name was not intended for distribution to others, an argument that proved

successful, given that he was acquitted of the two charges relating to the emails.

      Because defendant elected to represent himself, his ineffective assistance

of counsel claims are limited to the actions of his standby counsel. Ortisi, 308

N.J. Super. at 592. Those claims, however, are "particularly suited for post-

conviction review because they often cannot reasonably be raised in a prior

proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). This is true here,

given that defendant claims his standby counsel requested to be relieved as

counsel during a court conference that was not recorded. We therefore decline

to address defendant's ineffective assistance of counsel claims on direct appeal.

      Affirmed.




                                                                          A-3968-17T1
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