Defendant appealed from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based upon predicate acts of sexual assault, N.J.S.A. 2C:14-2, lewdness, N.J.S.A. 2C:14-4, and harassment, N.J.S.A. 2C:33-4. He contended the trial court failed to make factual or credibility findings, and abused its discretion in entering an FRO after drawing an adverse inference when he chose not to testify. The court concluded the trial court failed to make sufficient findings of fact and conclusions of law, vacated the FRO, reinstated the amended temporary restraining order (TRO), and remanded for a new FRO hearing before a different judge.
Additionally, the court concluded, as a matter of law, it is not appropriate for a trial court to draw an adverse inference solely from defendant's invocation of his Fifth Amendment right to not testify in an FRO hearing. Despite the remedial nature of the PDVA, and the statute's language insulating a defendant's testimony from use in a criminal proceeding relating to the same act, a defendant's election to not testify cannot give rise to an adverse inference in an FRO hearing.