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

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NOT FOR PUBLICATION WITHOUT THE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.
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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.
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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)).
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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
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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:
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(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[.]
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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[.]"
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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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