STATE OF NEW JERSEY VS. H.S.G. (FO-02-0371-19, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-5188-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
H.S.G., 1
Defendant-Appellant.
________________________
Submitted June 3, 2020 – Decided July 14, 2021
Before Judges Fuentes and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FO-02-0371-19.
Galantucci & Patuto, attorneys for appellant (David J.
Altieri, on the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Craig A. Becker, Assistant Prosecutor, of
counsel and on the brief).
1
We use initials to protect the identity of victims of domestic violence and to
preserve the confidentiality of these proceedings. R. 1:38-3(d)(9)-(10).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
On February 26, 2019, a Family Part judge in Bergen County issued a
restraining order (TRO) under the Prevention of Domestic Violence Act,
N.J.S.A. 2C:25-17 to -35, against defendant H.S.G., a man with whom plaintiff
had had a romantic relationship. The TRO prohibited defendant from having
"any oral, written, personal electronic, or other form of contact or
communication with [p]laintiff," and, inter alia, "barred" him from plaintiff's
residence and place of employment.
On March 23, 2019, defendant was arrested on the charge of fourth degree
contempt under N.J.S.A. 2C:29-9(a), for purposely and knowingly violating the
TRO "by calling [plaintiff] via cell phone, and going to [plaintiff's] house and
having a verbal argument[.]" On March 25, 2019, the Bergen County
Prosecutor's Office downgraded the contempt charge to a disorderly persons
offense, N.J.S.A. 2C:29-9(b)(2), and transferred the prosecution of this
complaint to the Family Part. On June 19, 2019, defendant was tried before
Judge Avis Bishop-Thompson.
The State's case consisted entirely of the testimony of Fair Lawn Police
Officers Juan Rodriguez and Brad Pindyck. Defendant did not testify or call
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any witnesses. On this evidence, Judge Bishop-Thompson found defendant
guilty of the disorderly persons offense of contempt. After providing defendant
with the opportunity to address the court and considering the arguments of
counsel, Judge Bishop-Thompson found aggravating factors N.J.S.A. 2C:44-
1(a)(3) and (9), and mitigating factor N.J.S.A. 2C:44-1(b)(10). The Judge
sentenced defendant to a probationary term of twelve months, and imposed the
mandatory monetary penalties.
On appeal, defendant raises the following argument:
THE TRIAL COURT ERRED IN FINDING THAT
THE DEFENDANT ACTED KNOWINGLY.
After considering the record developed at trial and mindful of our standard
of review, we affirm.
Fair Lawn Police Officer Rodriguez was the State's first witness. He
testified that on March 23, 2019, defendant walked into police headquarters and
"stated that he was assaulted by his ex-girlfriend." Based on this initial
encounter, Officer Rodriguez considered defendant at this point as a "victim of
domestic violence." Defendant sat down "at the lobby area and then he actually
explained what had occurred during the time he was at [plaintiff's] house."
As Officer Rodriguez began to explain to him his rights as a victim of
domestic violence, defendant took out his cellphone and showed him a video
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recording of the incident: "Apparently there was screaming, shouting and he
was just holding the phone and she was just pushing him, striking him."
Defendant specifically identified the woman in the video as his former
girlfriend. Officer Rodriguez testified that based on what he saw in the video,
he and another Fair Lawn Police Officer responded to the woman's residence
and arrested her for the disorderly persons offense of simple assault, N.J.S.A.
2C:12-1(a). Rodriguez explained that since the police officers viewed defendant
as the victim of this assault, they allowed him to remain in the lobby of the
police headquarters.
When the police officers returned to headquarters, Officer Rodriguez
explained to defendant that they had his former girlfriend in custody and that he
needed to fill out "a couple [of] forms . . . and that was it." However, when
Officer Rodriguez checked the domestic violence registry to determine whether
the woman had an active domestic violence restraining order against her, he
realized it was defendant who had violated the terms of an active TRO. Officer
Rodriguez testified that he immediately released the woman and arrested
defendant.
Fair Lawn Police Officer Brad Pindyck was the State's second and final
witness. He transported defendant from Fair Lawn Police headquarters to the
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Bergen County Jail in the backseat of his police vehicle. Officer Pindyck
explained that this type of police car is equipped with mobile video recording
devices. "It's a front end rear mounted dash cam/back seat cam." He testified
that recording video devices were activated during the entire trip to the jail,
including audio.
Officer Pindyck authenticated the video recording and it was thereafter
admitted into evidence without objection. The transcript of the audio recording
reflected in the trial transcript is mostly indiscernible. It indicates that defendant
was aware of the TRO, but claimed that he was told by unidentified sources that
"if you don’t get a court day it’s expired."
Defense counsel's summation to Judge Bishop-Thompson focused on
defendant's state of mind:
Here we have clear evidence that one element, the most
fundamental element, the mens rea, his mental state, his
state of mind, cannot be met because he had no idea, he
could not have acted knowingly as required by the
statute if he did not know that there was a TRO in
effect. In fact, he had heard to the contrary that it had
been dropped.
In rebuttal, the prosecutor highlighted in his summation that the evidence
undermined defendant's claims that he acted under the good-faith impression
that the TRO was no longer legally viable:
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[Defendant] was served with a restraining order. The
language in the restraining order is very clear. It says
that this restraining order is active until further order of
the court and upon service to the defendant. There is
no evidence before this court that suggest[s] this
defendant was served with an order by a court
dismissing a case. He should have known because he
was served with a restraining order that if he was to go
near [plaintiff] he is in violation of that restraining
order. If the language is clear within the order itself,
then that is enough to impute knowledge on this
defendant.
In her oral opinion, Judge Bishop-Thompson first articulated the relevant
standard of proof the State is obligated to meet, and reviewed in great detail the
testimonial and documentary evidence. At the end of this analysis, the Judge
concurred with counsel's assessment of the central question in the case: " [D]id
defendant purposely or knowingly violate the provisions of the TRO on March
the 23rd." The judge found defendant's claim of good faith ignorance
unsupported by the record.
The temporary restraining order provided to defendant
made it very clear that the provisions could only be
modified by court order.
In particular, looking at page 5 of 5 in the middle of
[the] page, notice to defendant, it says notice to appear
to plaintiff and defendant. Defendant knew that he was
to appear for the final hearing on March 6th, 2019 at
8:30 a.m. The bottom of that particular box there is in
bold, 'important, the parties cannot themselves change
the terms of the order on their own. This order may
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only be changed or dismissed by the Superior Court.
The named defendant cannot have any contact with
plaintiff without permission of the court.'
So in the absence of any documentation indicating a
dismissal order was indeed entered and provided to the
defendant, defendant . . . had been put on notice since
March 1st that there was an active TRO in place, no
other court documentation had been provided to
defendant indicating that the temporary restraining
order had been dismissed. In the absence of such
documentation, he was on notice he was to stay away
from [plaintiff] and he did not.
Therefore, I find that defendant purposely and
knowingly violated a provision of the temporary
restraining order that had been entered on . . . February
the 26th, 2019.
The decision is also based upon the argument, again,
apparently that he didn’t know. I find that aside from
being internal[ly] inconsistent I find that to be
incredulous because of the language which governs the
operation of the temporary restraining order and how
long the temporary restraining order would remain in
effect.
Our standard of review involving "the findings and conclusions of a trial
court following a bench trial are well-established." Allstate Ins. Co. v.
Northfield Med. Ctr., P.C., 228 N.J. 596, 619 (2017). We do not "engage in an
independent assessment of the evidence as if [we] were the court of first
instance," State v. Locurto, 157 N.J. 463, 471 (1999), and will "not weigh the
evidence, assess the credibility of witnesses, or make conclusions about the
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evidence," Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486,
498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)).
Against this standard of review, Judge Bishop-Thompson's findings are
unassailable. We also agree with Judge Bishop-Thompson's legal conclusion.
Defendant was, if not actually, constructively aware of the legal viability of the
TRO at the time he went to his former romantic partner's residence and had this
confrontation. We thus affirm substantially for the reasons expressed by Judge
Bishop-Thompson in her thoughtful oral opinion.
Affirmed.
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