STATE OF NEW JERSEY VS. K.W. (FO-09-0144-19, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-3335-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
K.W.,
Defendant-Appellant.
_______________________________
Submitted April 29, 2020 – Decided May 13, 2020
Before Judges Haas and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FO-09-0144-19.
James R. Lisa, attorney for appellant.
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Jennifer J. Pinales, Assistant Prosecutor,
on the brief).
PER CURIAM
Following a bench trial, the trial judge found defendant K.W. guilty of
disorderly persons contempt of a Final Restraining Order (FRO), N.J.S.A.
2C:29-9(b)(2). The judge sentenced defendant to thirty days in jail, but stayed
the imposition of the sentence pending appeal.
On appeal, defendant argues that the State "failed to carry its burden of
proof beyond a reasonable doubt . . . to demonstrate that [defendant] was in
violation of the [FRO]." She also asserts that the judge's findings of fact and
conclusions of law were insufficient to support his decision. After reviewing
the record in light of the contentions advanced on appeal, we affirm.
Defendant and the victim, K.B., have two children together. On July 18,
2016, K.B. obtained a FRO against defendant. The FRO prohibited defendant
from "having any oral, written, personal, electronic, or other form of contact or
communication with" K.B. Defendant had been found guilty of contempt on
two prior occasions for violating the terms of the FRO.
K.B. testified that, on January 28, 2018, defendant called him on the
telephone. K.B. recognized the caller as defendant because he was familiar with
her voice. K.B. recorded the call, and played it at the trial. He testified that
there had been no changes or deletions to the recording. Defendant did not
testify at the trial, and did not call any witnesses on her own behalf.
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At the conclusion of the trial, the judge made the following concise
findings of fact and conclusions of law:
It is stipulated and I find that it has been shown by
beyond a reasonable doubt that there was a [FRO] in
place at the time involved here. That is Docket No. FV-
09-114-17.
[K.B.] testified that the recording that was
played, the one recording on January 28th was a call he
received from [defendant] that he recognized her voice.
She eventually, from just listening to the
recording, appeared to be agitated by something.
[K.B.] told her several times she had a wrong
number and then the call ended.
[K.B.'s] testimony that she placed the call to him,
that he recognizes her voice, establishes beyond a
reasonable doubt the elements of contempt under
[N.J.S.A.] 2C:29-9(b)(2), that [defendant] knew there
was a restraining order in place, knew that it prohibited
her from any contact or initiating any contact with
[K.B.], that she placed that phone call some time on
January 28th in violation of the order.
This appeal followed. As previously noted, defendant contends the record
did not support the judge's finding of guilt. We disagree.
Our scope of review of a trial court's determination is limited. We are
obligated to "review the record in the light of the contention, but not initially
from the point of view of how [we] would decide the matter if [we] were the
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court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual
findings of the trial judge are generally given deference, especially when they
"are substantially influenced by [the judge's] opportunity to hear and see the
witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy." Ibid. When we are satisfied that the findings of the trial court could
reasonably have been reached on sufficient, credible evidence present in the
record, our task is complete and we should not disturb the result. Id. at 162.
To be guilty of the disorderly persons offense of contempt of an FRO
under N.J.S.A. 2C:29-9(b), the State must prove beyond a reasonable doubt that
defendant was served with the FRO and knowingly committed the behavior that
violated the order. State v. L.C., 283 N.J. Super. 441, 447-48 (App. Div. 1995).
Applying these principles, we conclude there was sufficient credible
evidence in the record to support defendant's conviction of contempt of a FRO.
Defendant was plainly aware there was a FRO in place based on her prior
convictions for violating it. The FRO prohibited defendant from contacting K.B.
K.B. testified without contradiction that defendant called him on January
28, 2018. He recognized defendant's voice on the telephone when he answered
and tried to get her to end the call by telling her she had the wrong nu mber.
Thus, K.B. properly authenticated the telephone call. Although the judge
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recognized that "[t]he phone call itself was kind of hard to make out[,]"
defendant "appeared to be agitated."
Under these circumstances, there was ample evidence to support the
judge's conclusion that defendant was guilty of N.J.S.A. 2C:29-9(b). While
concise, the judge's oral decision was more than sufficient under Rule 1:7-4 to
support his findings of fact and conclusions of law. Therefore, we affirm
defendant's conviction and sentence.
Affirmed. The stay of the custodial portion of defendant's sentence is
vacated. The trial court shall administer the implementation of the sentence in
the ordinary course.
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