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(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.

    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).

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.

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.

contempt. Defendant's conviction for terroristic threats, however, is more problematic.

    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.

separate proceedings before the same jury will be slight and that preserving a defendant's right to a fair trial outweighs that slight inconvenience.

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