                             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                        NOT FOR PUBLICATION WITHOUT THE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-4729-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ROBERT MOSTYN,

     Defendant-Appellant.
_____________________________________________

               Argued August 15, 2017 – Decided October 5, 2017

               Before Judges Messano and Sumners.

               On appeal from Superior Court of New Jersey,
               Chancery Division, Family Part, Bergen County,
               Docket No. FO-02-0218-16.

               Hilary L. Brunell argued the cause for
               appellant (Mason Thompson, LLC, attorneys; Ms.
               Brunell, on the briefs).

               Michael R. Philips, Assistant Prosecutor,
               argued the cause for respondent (Gurbir S.
               Grewal, Bergen County Prosecutor, attorney;
               Mr. Philips, of counsel and on the brief).

PER CURIAM

        Defendant Robert Mostyn appeals from the Family Part's June

28,     2016   judgment     of   conviction    finding     him   guilty    of      the

disorderly persons offense of contempt of a domestic violence
restraining   order,   N.J.S.A.    2C:29-9(b)(2),    and   the     petty

disorderly persons offense of defiant trespass, N.J.S.A. 2C:18-

3(b)(1).   The judge imposed a 30-day sentence, and suspended same

pending defendant's completion of a one-year period of probation.

                                       I.

     The evidence adduced at defendant's bench trial revealed that

on September 15, 2015, the victim, J.A., a college student at a

university in Florida, obtained a temporary restraining order

(TRO) against defendant, her ex-boyfriend, pursuant to Fla. Stat.

Ann. § 784.046 (West 2015).       The TRO prohibited defendant from

having any contact or communication with J.A., entering or being

within 500 feet of J.A.'s residence and her school in Florida, and

entering specific locations in New Jersey, including a gym.

     On September 21, police served defendant with the TRO at his

home.   During the ten minutes he spent at defendant's home, Police

Officer John Rodriguez provided defendant with a copy of the TRO,

watched him read it, and explained defendant could not make contact

with J.A. or go to the specific locations.        Defendant read the

TRO, acknowledged he understood its terms and then signed it.

     That evening, defendant met with Anthony Colasanti, a New

Jersey attorney and family friend.      Colasanti was not a member of

the Florida bar, did not practice in Florida and testified he had

never seen a Florida restraining order.

                                   2                             A-4729-15T2
     Colasanti provided the following instructions to defendant:

          [T]he intent of this order is that you have
          no contact, not get within 500 feet of [J.A.],
          and if you're telling me that [she] is in
          Florida, I see no basis on this order
          restricting you or limiting you [sic] movement
          in New Jersey. But if [J.A.'s] in New Jersey
          . . . , you can't go within 500 feet of her.
          You can't go by her house; you can't go by her
          school; you can't go by wherever is [sic] says
          you can't go by, so you better make sure that
          she'd [sic] either in Florida or she's in New
          Jersey.

               . . . .

               [Defendant] told me that he had been a
          member at the [gym] for . . . years and years,
          and again, I said to him[,] if she's in
          Florida, you want to go the [gym], make sure
          she's in Florida. Do not go there if she's
          in New Jersey.

Colasanti did not ask defendant how he knew J.A. was in Florida.

     The next morning, September 22, defendant testified that he

spoke with his cousin who attended the same university as J.A. and

shared mutual friends with J.A.       As a result, defendant believed

J.A. was in Florida and went to the gym.1

     That same morning, Detective Brad Smith of the Ramsey Police

Department responded to a call that defendant was seen at the gym.


1
  Defendant's cousin did not testify at trial. J.A. did testify
and acknowledged she was in Florida on September 22.     She also
described in detail defendant's alleged physical assault that led
to his arrest in Florida and issuance of the TRO.



                                  3                           A-4729-15T2
Detective   Smith   reviewed   surveillance   videos,   which   verified

defendant's presence at the gym in the morning.     After other units

located defendant driving his car, police conducted a traffic stop

and arrested defendant. He waived his Miranda2 rights and provided

a taped statement that was introduced into evidence at trial.           We

quote briefly from that statement:

            Q: Okay. Are you aware you are not permitted
            to be [at the gym]?

            A: I know, but I mean, I thought she would
            have to be the one to call up and complain,
            but she's not there.    None of her family
            members are, I can't believe, like I got
            arrested.

            Q: So you're aware that there is a restraining
            order barring you from –

            A: Temporary restraining order, yeah, but if
            she's around. Like I asked – I told my mom
            and everything, she said it's not a good idea
            but. I'm like, I don't really know, it can't
            be, she's not home. Like when she's not home,
            she didn't call it in . . . .

During his trial testimony, defendant admitted going to the gym,

but insisted he relied on Colasanti's advice that he was barred

from specific locations only if J.A. was in New Jersey.




2
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).


                                   4                             A-4729-15T2
     Defense counsel argued the affirmative defense of ignorance

or mistake pursuant N.J.S.A. 2C:2-4.   That section of our Criminal

Code provides in relevant part:

          a.   Ignorance or mistake as to a matter of
          fact or law is a defense if the defendant
          reasonably    arrived  at   the  conclusion
          underlying the mistake and:

          (1)   It negatives the culpable mental state
          required to establish the offense[.]

               . . . .

          c.   A belief that conduct does not legally
          constitute an offense is a defense to a
          prosecution for that offense based upon such
          conduct when:

               . . . .

          (3)   The actor otherwise diligently pursues
          all means available to ascertain the meaning
          and application of the offense to his conduct
          and honestly and in good faith concludes his
          conduct is not an offense in circumstances in
          which a law-abiding and prudent person would
          also so conclude.

          The defendant must prove a defense arising
          under subsection c. of this section by clear
          and convincing evidence.

          [Ibid.]

In summation, defense counsel argued the "affirmative defense"

under subsection (c) applied because defendant took reasonable

steps after being served with the TRO and relied on Colasanti's




                                  5                         A-4729-15T2
advice in good faith. In addition, counsel argued defendant lacked

a culpable "mens rea."

     The State countered by arguing the restraining order clearly

prohibited defendant from going within 500 feet of the gym and was

not limited to only when J.A. was in New Jersey.                   The State

contended defendant's claim was limited to subsection (c)(3) of

the statute, and defendant did not diligently pursue all available

means to ascertain the import of the restraining order, nor did

he honestly and in good faith conclude his conduct was permitted.

     The    judge   found   the   TRO   was    clear   and   unambiguous   and

defendant was aware of its terms.             The TRO did not provide that

"defendant [was] to refrain from entering [the gym] only when

[J.A.] was there."     The judge also found that defendant could not

have advised Colasanti at the time of the consultation that J.A.

was definitively in Florida.

     The judge specifically found that defendant's testimony about

the September 22 phone call with his cousin in Florida was not

credible.    The judge noted that the TRO resulted from defendant's

failure to stay away from J.A. after a no contact order in Florida

went unheeded.      The judge further observed that defendant chose

to violate the TRO the morning after police served him.            The judge

commented on defendant's demeanor during J.A.'s testimony and

during defendant's testimony.       In finding defendant guilty of both

                                        6                             A-4729-15T2
offenses, the judge concluded defendant had failed to demonstrate

by clear and convincing evidence "there was reliance on a mistake

of law."

     Before us, defendant raises the following arguments:

           POINT I

           THE DEFENDANT FORMED A GOOD FAITH BELIEF,
           BASED ON ADVICE OF COUNSEL, THAT HE WOULD NOT
           BE IN VIOLATION OF A FLORIDA RESTRAINING ORDER
           WHEN HE WENT TO HIS NEW JERSEY GYM.         HE
           THEREFORE DID NOT KNOWINGLY VIOLATE THE ORDER
           OR COMMIT THE CRIME OF TRESPASS.

           A. SCOPE OF REVIEW

           B. THE FAMILY COURT ERRED IN APPLYING THE
           MISTAKE OF LAW DOCTRINE.

                1. THE MISTAKE OF LAW DOCTRINE UNDER
                N.J.S.A. 2C:2-4 WAS APPLICABLE TO
                THE SPECIFIC INTENT CRIMES OF
                CONTEMPT AND TRESPASS.

                2. A MISTAKE OF LAW WAS FORMED AFTER
                REASONABLE EFFORTS WERE MADE TO
                DETERMINE WHETHER THE VISIT TO THE
                NEW JERSEY GYM WOULD VIOLATE THE
                TERMS OF THE FLORIDA NO CONTACT
                ORDER.

                3. THE FAMILY COURT'S FINDINGS WITH
                REGARD          TO         MATERIAL
                MISREPRESENTATION WERE LEGALLY AND
                FACTUALLY INCORRECT.

We have considered these arguments in light of the record and

applicable legal standards.     We affirm.




                                  7                         A-4729-15T2
                                           II.

     "An appellate court must accept a trial court's factual

finding if it is supported by sufficient credible evidence in the

record."    State v. Arthur, 184 N.J. 307, 320 (2005) (citing State

v. Locurto, 157 N.J. 463, 472 (1999)). "Unlike an appellate court,

a trial judge has the 'opportunity to hear and see the witnesses,'

which includes observing gestures and facial expressions."                          State

v. Yough, 208 N.J. 385, 403 (2011) (quoting Locurto, supra, 157

N.J. at 471).

     We    owe    no     deference,      however,         to   the   "trial    court's

interpretation of the law . . . and the consequences that flow

from established facts[,]" which we review de novo.                           State v.

Hubbard,    222    N.J.    249,    263     (2015).        Questions    of     statutory

interpretation present purely legal issues, which we also review

de novo.    State v. Grate, 220 N.J. 317, 329 (2015).

     We    explained      the    distinction       between       subsection    (a)   and

subsection (c) of N.J.S.A. 2C:2-4 in State v. Wickliff, 378 N.J.

Super.    328    (App.    Div.    2005).         There,    the    defendant,    a    bail

collection agent, entered certain premises to apprehend a fugitive

and was convicted of trespass.                   Id. at 331.         On appeal, the

defendant argued the judge improperly denied him the opportunity

to present certain evidence about his training and failed to

properly instruct the jury on his mistake of law defense, namely,

                                            8                                   A-4729-15T2
that he was taught under federal law applicable to New Jersey he

had license or privilege as a bounty hunter to enter the residence.

Id. at 333-34, 337.      We reversed because of the judge's "compound

error" in barring certain evidence and wrongly instructing the

jury.      Id. at 341.

      We explained that under N.J.S.A. 2C:2-4(a)(1), a defendant

may invoke the mistake of law defense if he "reasonably arrived

at   the    conclusion   underlying   the   mistake"   and   his   mistake

"negatives the culpable mental state required to establish the

offense."     Id. at 334 (quoting N.J.S.A. 2C:2-4(a)(1)).     Subsection

(a) "does not really create a separate defense; rather it serves

to emphasize that a mistake may negate the culpability element

required for conviction of an offense."        Id. at 334.    Subsection

(a) "was, in effect, technically unnecessary because it simply

confirms that 'no person may be convicted of an offense unless

each element . . . is proven beyond a reasonable doubt.'"            Ibid.

(alteration in original) (quoting State v. Sexton, 160 N.J. 93,

100 (1999)).      "The mistakes of law covered by subsection (a) do

not involve errors over whether actions are criminal; they are

mistakes concerning legal issues that are relevant to proof of the

elements of an offense."      Id. at 335 (citing Cannel, New Jersey

Criminal Code Annotated, comment 2 on N.J.S.A. 2C:2-4 (2005)).



                                      9                            A-4729-15T2
       We contrasted this with the affirmative defense contained in

the "narrow terms" of subsection (c), whereby conduct is excused

by the defendant's "ignorance of the legal standard established

by the statute [he] is alleged to have violated."                      Ibid.      The

defense offered by subsection (c) is available under "limited

conditions," and "[i]n such cases, it is incumbent on the defense

to establish its theory of mistake of law by clear and convincing

evidence."    Id. at 336, 339 (citing N.J.S.A. 2C:2-4(c)).

       Clearly, defense counsel's summation focused the judge's

attention only upon N.J.S.A. 2C:2-4(c)(3), arguing essentially

that defendant's conference with Colasanti evidenced a diligent

attempt to "ascertain the meaning and application of the offense

to   his   conduct,"   i.e.,      going    to    the    gym,   and     resulted    in

defendant's "good faith" conclusion that he would not violate the

TRO if he went to the gym.          Ibid.        Indeed, much of the judge's

oral    decision   focused   on    defendant's         reliance   on   Colasanti's

advice.    The judge sought to synthesize federal and New Jersey

decisional law which, in our opinion, had little to do with this

case.

       Nevertheless, it is clear that the judge understood that

defendant bore the heavy burden of proving the affirmative defense

by clear and convincing evidence.               He rejected defendant's claim

that he knew J.A. was in Florida based upon a phone conversation

                                      10                                    A-4729-15T2
between defendant and his cousin, or that Colasanti was provided

with definitive information regarding her whereabouts.                The judge

noted Colasanti was not familiar with Florida law.                  We defer to

the judge's factual findings which were largely dependent upon his

observation of the witnesses and their demeanor during trial.

Based on those factual findings, we cannot conclude that he erred

in determining that defendant had not established the affirmative

defense      available     under   N.J.S.A.    2C:2-4(c)(3)    by    clear   and

convincing evidence.

       At oral argument before us, defense counsel predominantly

focused her attention on subsection (a) and argued the judge failed

to address its application to the proofs at trial.                   We cannot

fault the judge in this regard, since the entire argument of

defense counsel at trial on this point was little more than a

single sentence.3

       To    be   guilty   of   either   the   fourth-degree   crime    or   the

disorderly persons offense of contempt of a domestic violence

restraining order, a person must "purposely or knowingly violate[]

an order entered under the provisions of the Prevention of Domestic

Violence Act of 1991" or the equivalent legislation of another

state.      N.J.S.A. 2C:29-9(b) (emphasis added).       N.J.S.A. 2C:18-3(b)



3
    Defendant is represented by different counsel on appeal.

                                         11                             A-4729-15T2
also requires the State prove a defendant acted knowingly in

committing a defiant trespass.    See id. ("A person . . . knowing

that he is not licensed or privileged to do so, . . . enters or

remains in any place as to which notice against trespass is given

by . . . [a]ctual communication to the actor[.]") (emphasis added).

The Criminal Code defines the requisite mental state:

          A person acts knowingly with respect to the
          nature of his conduct or the attendant
          circumstances if he is aware that his conduct
          is of that nature, or that such circumstances
          exist, or he is aware of a high probability
          of their existence. A person acts knowingly
          with respect to a result of his conduct if he
          is aware that it is practically certain that
          his conduct will cause such a result.
          "Knowing," "with knowledge" or equivalent
          terms have the same meaning.

          [N.J.S.A. 2C:2-2(b).]

     Although the judge did not specifically address subsection

(a) in his findings, he concluded the State had proven defendant's

guilt beyond a reasonable doubt, thereby implicitly rejecting any

argument that defendant did not knowingly violate the TRO or enter

the gym with knowledge that he was permitted to do so.           The

evidence supports the judge's factual findings, which in turn

support his legal conclusion.

     The judge noted several times in his decision that the terms

of the TRO were clear and unambiguous on their face.      Defendant

was fully aware that the TRO prohibited him from going to the gym.

                                 12                         A-4729-15T2
Yet, one day after being served with the TRO, defendant decided

to violate its terms.      When arrested, defendant acknowledged in

his statement that he understood he was not supposed to be at the

gym and that his mother told him it was not a good idea.            Defendant

did not tell police that he based his decision upon Colasanti's

advice; instead, he explained that he thought only J.A. could

"call up and complain."      The judge specifically noted there was

no exception in the TRO that permitted defendant to go to the gym

or   other   prohibited   places   if    J.A.   were   not   in   New   Jersey.

Rejecting defendant's testimony, the judge found defendant "had

no way to know for sure [if J.A.] was [at the gym]."

      In short, the judge's factual findings implicitly reject

defendant's mistake or ignorance defense and fully support the

judge's conclusion that defendant was guilty beyond a reasonable

doubt.

      Affirmed.




                                    13                                  A-4729-15T2
