E.A. VS. G.D. (FV-02-0248-19, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )


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  •                                       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    NOT FOR PUBLICATION WITHOUT THE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-1069-18T4
    E.A.,
    Plaintiff-Respondent,
    v.
    G.D.,
    Defendant-Appellant.
    _____________________________
    Argued November 18, 2019 – Decided December 3, 2019
    Before Judges Fasciale and Mitterhoff.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Family Part, Bergen County,
    Docket No. FV-02-0248-19.
    Brett M. Rosen argued the cause for appellant (Law
    Offices of Jonathan F. Marshall, attorneys; Jeff Edward
    Thakker, of counsel; Brett M. Rosen, on the briefs).
    Michael A. Orozco argued the cause for respondent
    (Price Meese Shulman & D'Arminio, PC, attorneys;
    Michael A. Orozco, on the brief).
    PER CURIAM
    Defendant appeals from a September 21, 2018 final restraining order
    (FRO) entered under the Prevention of Domestic Violence Act of 1991 (PDVA),
    N.J.S.A. 2C:25-17 to -35. Judge Mitchell I. Steinhart conducted the trial,
    entered the FRO, and rendered an oral opinion.
    Plaintiff, defendant's former girlfriend, obtained a temporary restraining
    order (TRO) alleging that defendant engaged in criminal coercion, harassment,
    and cyber harassment. 1     The judge conducted the FRO hearing and took
    testimony from the parties and defendant's friend (the friend). The judge found
    that plaintiff was credible, that defendant committed the predicate acts, and that
    the FRO was necessary for plaintiff's protection.
    On appeal, defendant argues:
    POINT I
    THE     [JUDGE] ERRONEOUSLY     DENIED
    [DEFENDANT'S]   REQUEST     FOR     AN
    ADJOURNMENT; THE FRO SHOULD BE
    VACATED AS [DEFENDANT'S] RIGHT TO DUE
    PROCESS WAS VIOLATED.
    POINT II
    THE [JUDGE'S] FINDINGS ON THE FIRST AND
    SECOND      SILVER     ELEMENTS     ARE
    INCONSISTENT; THERE WAS AN INSUFFICIENT
    BASIS FOR ENTERING THE FRO.
    1
    Although she also alleged that defendant engaged in terroristic threats, the
    judge disagreed.
    A-1069-18T4
    2
    POINT III
    THE    [JUDGE]  SHOULD    HAVE    ASKED
    [DEFENDANT] IF HE AGREED TO THE ENTRY OF
    EXHIBIT P-1; ISSUES REGARDING THE
    AUTHENTICITY OF THE DOCUMENT BECAME
    CLEAR DURING THE COURSE OF THE HEARING.
    POINT IV
    WHAT [PLAINTIFF'S BOYFRIEND] SAID TO
    [DEFENDANT] WAS NOT "HEARSAY," AND THE
    [JUDGE'S] RULING ON THIS ISSUE PREVENTED
    THE PROPER DEVELOPMENT OF THE RECORD.
    POINT V
    THERE WAS INSUFFICIENT EVIDENCE TO
    SUPPORT THE FINDINGS OF DOMESTIC
    VIOLENCE AND THE NEED FOR AN FRO.
    POINT VI
    [DEFENDANT] SHOULD HAVE BEEN ENTITLED
    TO COUNSEL.
    POINT VII
    UNLESS AND UNTIL THE JUDICIARY PROVIDES
    FOR THE ASSIGNMENT OF DEFENSE COUNSEL
    IN PDVA FRO CASES, THE RULES OF COURT DO
    NOT SECURE . . . [DEFENDANT'S] DUE-PROCESS
    RIGHTS.
    POINT VIII
    IN THE EVENT OF A REMAND, [DEFENDANT]
    WISHES TO PRESERVE HIS JURISDICTIONAL
    ARGUMENTS.
    We affirm.
    A-1069-18T4
    3
    At the time she obtained the TRO, plaintiff was living with her mother in
    New Jersey. At the FRO hearing, plaintiff testified that she previously dated
    defendant.   Defendant sent plaintiff multiple text messages, which led to
    plaintiff obtaining the TRO. Defendant also posted revealing photographs of
    plaintiff and her personal information online, which led to people contacting
    her. The judge read the details of many of the text messages—appearing on
    approximately fifty-one pages—into the record. In finding plaintiff credible,
    the judge found that the text messages corroborated her testimony. The judge
    said "I don't believe all the excuses that conveniently came from . . . defendant."
    In a domestic violence case, we accord substantial deference to a judge's
    findings, which "are binding on appeal when supported by adequate, substantial,
    credible evidence," especially when—like here—much of the evidence is
    testimonial and implicates credibility determinations. Cesare v. Cesare, 
    154 N.J. 394
    , 412 (1998). We do not disturb the judge's factual findings and legal
    conclusions, unless we are "'convinced that they are so manifestly unsupported
    by or inconsistent with the competent, relevant and reasonably credible evidence
    as to offend the interests of justice.'" 
    Ibid. (quoting Rova Farms
    Resort, Inc. v.
    Inv'rs Ins. Co., 
    65 N.J. 474
    , 484 (1974)).
    A-1069-18T4
    4
    When determining whether to grant an FRO pursuant to the PDVA, the
    judge must make two determinations. Silver v. Silver, 
    387 N.J. Super. 112
    , 125-
    27 (App. Div. 2006). Under the first Silver prong, "the judge must determine
    whether the plaintiff has proven, by a preponderance of the credible evidence,
    that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has
    occurred." 
    Id. at 125.
    Here, plaintiff alleged that defendant engaged in criminal
    coercion, harassment, and cyber harassment.
    A person is guilty of harassment where, "with purpose to harass another,"
    he or she:
    a. Makes, or causes to be made, a communication or
    communications anonymously or at extremely
    inconvenient hours, or in offensively coarse language,
    or any other manner likely to cause annoyance or alarm;
    b. Subjects another to striking, kicking, shoving, or
    other offensive touching, or threatens to do so; or
    c. Engages in any other course of alarming conduct or
    of repeatedly committed acts with purpose to alarm or
    seriously annoy such other person.
    [N.J.S.A. 2C:33-4(a) to (c).]
    Harassment requires the defendant to act with the purpose of harassing the
    victim. J.D. v. M.D.F., 
    207 N.J. 458
    , 486 (2011). A judge may use "[c]ommon
    A-1069-18T4
    5
    sense and experience" when determining a defendant's intent. State v. Hoffman,
    
    149 N.J. 564
    , 577 (1997).
    The judge found defendant guilty of harassment.            After making his
    credibility findings and detailing what the multiple text messages said, the judge
    stated:
    [F]or all those reasons . . . I find . . . defendant had the
    purpose to harass, made . . . comments,
    communications in a manner likely to cause annoyance
    or alarm to . . . plaintiff, and engaged in alarming
    conduct of repeated texts with the purpose to seriously
    annoy . . . plaintiff, and that to worry, trouble or offend
    her.
    ....
    There's absolutely no relevant purpose for . . . defendant
    to have sent most of these texts except to annoy, alarm
    or bother . . . plaintiff.
    In addition to finding that defendant committed the predicate act o f
    harassment, the judge made specific findings as to plaintiff's allegation that
    defendant engaged in cyber harassment, which differs from the act of
    harassment. N.J.S.A. 2C:33-4.1 governs the elements of cyber harassment and
    states:
    a. A person commits the crime of cyber[]harassment if,
    while making a communication in an online capacity
    via any electronic device or through a social
    networking site and with the purpose to harass another,
    the person:
    A-1069-18T4
    6
    (1) threatens to inflict injury or physical harm to any
    person or the property of any person;
    (2) knowingly sends, posts, comments, requests,
    suggests, or proposes any lewd, indecent, or obscene
    material to or about a person with the intent to
    emotionally harm a reasonable person or place a
    reasonable person in fear of physical or emotional harm
    to his person; or
    (3) threatens to commit any crime against the person or
    the person's property.
    In finding defendant engaged in cyber harassment, the judge noted that "the
    texts, the sending of . . . plaintiff the two e[xp]licit photos was only meant to put
    her in fear, emotional harm[.]"
    As to criminal coercion, the judge first defined the offense and then made
    his findings. In pertinent part, under N.J.S.A. 2C:13-5(a), a person is guilty of
    criminal coercion if:
    [W]ith purpose unlawfully to restrict another's freedom
    of action to engage or refrain from engaging in conduct,
    he threatens to:
    (1) Inflict bodily injury on anyone or commit any other
    offense, regardless of the immediacy of the threat;
    (2) Accuse anyone of an offense;
    (3) Expose any secret which would tend to subject any
    person to hatred, contempt or ridicule, or to impair his
    credit or business repute[.]
    A-1069-18T4
    7
    The judge found that defendant used the photographs depicting plaintiff in the
    nude to ruin her relationship with her parents and affect her future study in
    school.
    Under the second Silver prong, a judge must also determine whether a
    restraining order is necessary to protect the plaintiff from future acts or threats
    of 
    violence. 387 N.J. Super. at 127
    . The commission of one of the predicate
    acts of domestic violence set forth in N.J.S.A. 2C:25-19(a) does not, on its own,
    "automatically . . . warrant the issuance of a domestic violence [restraining]
    order." Corrente v. Corrente, 
    281 N.J. Super. 243
    , 248 (App. Div. 1995).
    Although that determination "is most often perfunctory and self-evident, the
    guiding standard is whether a restraining order is necessary, upon an evaluation
    of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the
    victim from an immediate danger or to prevent further abuse." Silver, 387 N.J.
    Super. at 127.
    The judge found the FRO was necessary to protect plaintiff, by relying on
    her credible testimony that she was frightened, that she did not leave her hotel
    room, and that she was scared for her own safety.          The judge stated that
    plaintiff's "life, health and well-being have been and are endangered by . . .
    defendant's acts[.]"
    A-1069-18T4
    8
    To the extent we have not addressed defendant's other arguments, it is
    because they are without sufficient merit to warrant discussion in a written
    opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add these brief remarks.
    Defendant received due process. The judge granted defendant's request
    to adjourn the first FRO date, which was approximately for one month. At trial,
    the judge explained the nature of the proceeding, and defendant indicated that
    he understood what was about to occur. Then, the judge asked defendant if he
    was prepared to proceed, to which defendant voluntarily and knowingly replied
    "[y]es."
    Applying the governing principles, we conclude there is no basis to disturb
    the trial judge's factual findings or legal conclusions. The judge heard testimony
    from the parties, rejected the friend's testimony as irrelevant, and had ample
    opportunity to assess credibility. There exists sufficient evidence in the record
    to support both Silver prongs, and we see no evidentiary errors nor any abuse of
    discretion.
    Affirmed.
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    9