State of New Jersey v. F.B.I. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2566-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
F.B.I.,
Defendant-Appellant.
_______________________
Submitted March 11, 2024 – Decided July 26, 2024
Before Judges Gilson and Bishop-Thompson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket Nos. FO-04-0327-23 and FO-04-0170-23.
Kenneth R. Manyin, attorney for appellant.
Grace C. MacAulay, Camden County Prosecutor,
attorney for respondent (Jason Magid, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from two convictions of disorderly contempt of a
domestic violence final restraining order (FRO) in violation of N.J.S.A. 29-
9(b)(2). Having reviewed the record and the governing law, we affirm.
On September 6, 2016, a Family Part judge issued an FRO (the September
2016 FRO) under the Prevention of Domestic Violence Act (PDVA), N.J.S.A.
2C:25-17 to -35, against defendant F.B.I.,1 the husband of L.I. The FRO barred
defendant from L.I.'s residence and place of employment. The FRO also
prohibited "any oral, written, personal, electronic, or other form of contact or
communication with [L.I.]," from "making or causing anyone else to make any
harassing communications to [L.I.]," or from "stalking, following, or threatening
to harm, to stalk or follow [L.I.]." The FRO also granted L.I. temporary custody
of their son and denied defendant visitation. Three days later, defendant was
personally served with the FRO.
Nearly three years later, on April 1, 2019, an amended FRO (the April
2019 FRO) was entered granting sole custody of the son to L.I. On that date,
defendant was incarcerated and the FRO was issued by default. The amended
FRO was admitted at the hearing without objection.
1
We identify the parties by initials to protect the identity of the victim of domestic
violence. R. 1:38-3(d)(9), (10), and (13).
A-2566-22
2
On April 25, 2023, a bench trial was held concerning defendant's violation
of the 2016 FRO on two separate dates: August 9, 2022 (the August violation)
and October 3, 2022 (the October violation). The State's case consisted of the
testimony of L.I., Gloucester Police Department Officer Simms, and Camden
County Sherriff's Officer Andrew Johnson. Defendant did not testify or call any
witnesses.
L.I. was the State's first witness. According to L.I., on August 9, 2022,
defendant used his sister to see his son at L.I.'s home. Defendant's sister asked
to see her nephew. L.I. went upstairs to get him and when they returned,
defendant was sitting on her couch. Defendant and their son went outside to
play. After an hour, the son came inside and told his mother that defendant had
called for an ambulance, concerned that he was going to pass out from the heat.
L.I. went outside to check on defendant. After the ambulance arrived, defendant
declined to be transported by ambulance to the hospital. Instead, he asked L.I.
to drive him and L.I. agreed to do so.
While in route to the hospital, defendant asked L.I. to take him to his
sister's home. Defendant called his sister and said: "[G]et my trial clothes
ready." Fearing for her safety, L.I. told defendant she needed to give her
housekeys to her stepbrother. When L.I. arrived at her stepbrother's workplace,
she realized he was not working that day. L.I. called him and was told that he
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was at their parent's home. L.I. drove to her parents' home and relayed what had
happened to her mother, who called the police. Defendant left before the police
arrived.
L.I. recounted the October incident at her home. In response to a "faint"
knock on her front door, L.I. asked who was there. When there was no response,
she looked out of her window and asked again. Defendant responded, saying he
was hungry, thirsty, and cold and asking if he could have something to eat. L.I.
told defendant that he was not supposed to be at her home and that they had a
court appearance the next day. Nonetheless, she told defendant she would get
him some food, but he would have to leave.
As L.I. was preparing the food for defendant, she heard the alarm signal
the front door was opened. She rushed to the door and discovered their son had
opened it. According to L.I., they spoke for approximately fifteen minutes at
the front door. Defendant restated that he was hungry, cold, thirsty, needed help,
and wanted to sit with their son for a few minutes. As defendant sat with their
son, L.I. sent a text to her friend, informing her of defendant's presence and
asking her to contact L.I.'s mother. Shortly thereafter, the police arrived.
Officer Simms testified that he responded to an incident at L.I.'s residence
with a restraining order in place. Simms saw defendant in L.I.'s residence and
arrested him.
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Officer Johnson testified that he served defendant with the initial FRO on
September 9, 2016. Johnson, however, did not recall how he served defendant.
On this evidence, the trial court found defendant guilty of disorderly
persons contempt. In an oral opinion, the court first articulated the relevant
standard of proof the State is obligated to meet and reviewed in detail the
testimonial and documentary evidence. Following this analysis, the court
focused on the application of the amended April 2019 FRO to the statute. The
court reasoned the FRO was amended for "the sole purpose of dealing with
custody of the minor child." The court concluded: "The restraining order in no
way was modified as to the person who was protected. It was in no way modified
as to the type of contact that was prohibited." The court determined defendant
was "clearly" aware of the 2016 FRO.
The trial court also credited the testimony of the State's witnesses. The
court found L.I. credible because she was "calm," "very pleasant,"
"thoughtful[]," and "provide[d] very specific details" regarding the events. L.I.
also maintained eye contact, and her demeanor remained unchanged when
questioned by the State and defense counsel. The court found Simms "calm,"
"professional," and "unaffected by questions." Johnson was likewise "calm,"
"agreeable," with a "pleasant demeanor and tone," and testified "uniformly on
direct and cross-examination."
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After providing defendant with the opportunity to address the court and
considering the arguments of counsel, defendant was sentenced to thirty days in
prison for the August violation and sixty days in prison for the October violation,
to run concurrently. Defendant was given jail credit of 119 days for time served
while awaiting trial.
Defendant now appeals contending the trial judge committed a series of
errors by finding the amended April 2019 FRO was "in effect," rejecting
defendant's arguments regarding the admission of hearsay evidence and the
State's failure to produce the 9-1-1 dispatch call, misapplying the elements of
N.J.S.A. 2C:29-9(b)(2), and abusing its discretion in making credibility
determinations. After considering the record developed at the bench trial and
mindful of our standard of review, we affirm.
Our review of Family Part orders is limited. Cesare v. Cesare, 154 N.J.
394, 411 (1998). Generally, "findings by the trial court are binding on appeal
when supported by adequate, substantial, credible evidence." Id. at 411-12
(citing Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484
(1974)). We "accord particular deference to the Family Part because of its
'special jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J.
Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J. at 412); see also
Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 587 (App. Div. 2016)
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(recognizing that "our review of the Family Part's determinations regarding child
support is limited").
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 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)).
Our review of a finding of guilt in a contempt proceeding is generally
limited to determining "whether the record contains sufficient evidence to
support the judge’s conclusion." State v. J.T., 294 N.J. Super. 540, 544 (App.
Div. 1996) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). Because a
violation of a restraining order is punishable as a criminal act, a defendant is
entitled to the rights of all criminal defendants. We must, therefore, ensure the
State has carried its burden of proving the defendant's guilt beyond a reasonable
doubt. See N.J.S.A. 2C:1-13(a); State v. Krupinski, 321 N.J. Super. 34, 45 (App.
Div. 1999).
To be guilty of the disorderly persons offense of contempt of an FRO
under N.J.S.A. 2C:29-9(b)(2), the State must prove beyond a reasonable doubt
that defendant was served with the FRO and knowingly committed behavior that
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violated the order. State v. L.C., 283 N.J. Super. 441, 447-48 (App. Div. 1995).
A person acts "knowingly" with respect to the nature of his conduct or the
attendant circumstances if he is aware that his conduct is of that nature, or that
such circumstances exist, or he is aware of a high probability of their existence.
N.J.S.A. 2C:2-2(b)(2).
Based on those governing principles, the trial court's oral opinion was
sound. We agree with the trial court's legal conclusion that the amended April
2019 FRO did not supersede the protections afforded to L.I under the September
2016 FRO. Defendant was aware of the 2016 FRO, and even if he was not
served with the amended 2019 FRO, he knew that he could not have any
communication with L.I. or be in her residence.
We have carefully considered the record and defendant's arguments that
the State's failure to produce the transcript of the 9-1-1 dispatch call to Officer
Simms constituted a Brady2 violation and that Simms's testimony concerning the
call was inadmissible hearsay, and find they are without merit sufficient to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
2
Brady v. Maryland, 373 U.S. 83 (1963).
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