On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FV-03-940-05.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2005
Before Judges Coburn, Lisa and Reisner.
Defendant, Joseph Camarata, appeals from a final restraining order entered under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, in favor of plaintiff, Karen Pazienza. The predicate offense was harassment (N.J.S.A. 2C:33-4a and c). See N.J.S.A. 2C:25-19a(13). Plaintiff has filed no response to defendant's appeal.
Defendant makes two arguments on appeal: (1) the record does not support the finding of harassment, and (2) the integrity of the trial court's fact-finding process was compromised by the failure to provide defendant with a copy of all of the allegations against him. We reject the first argument. Although there is some merit to defendant's second argument, we conclude that in the context of this case defendant was not deprived of a fair trial, and any error was harmless and does not warrant reversal. Accordingly, we affirm.
The parties had a dating relationship that lasted about ten years until they broke up in May 2003. They had previously broken up about five times, but each time reconciled after about one week. The reconciliations were achieved primarily by defendant's persistent communications with plaintiff via telephone calls and emails.
Following the June 2003 break up, defendant followed the same pattern, frequently calling and emailing plaintiff in an effort to restore their relationship. This time, however, plaintiff resisted the entreaties and repeatedly told defendant to stop contacting her. She eventually obtained a caller ID feature on her telephone and avoided defendant's calls. She also blocked out her home website to avoid emails there. However, defendant continued to send emails to plaintiff's worksite and began sending text messages to her cell phone. According to plaintiff, defendant's attempted contacts with her sometimes numbered six to eight per day.
The domestic violence complaint that forms the subject of this appeal was precipitated by an incident that occurred on December 19, 2004. Plaintiff lived in Burlington County with her seven-year-old daughter from another relationship. Defendant lived in Middlesex County. At about 9:16 p.m., plaintiff received a text message that stated: "Kar, I never wanted to move on. I wanted you back. I can see you are watching Desperate Housewives now." (Emphasis added). Indeed, plaintiff and her daughter were watching the television program, "Desperate Housewives." Plaintiff became extremely apprehensive. She believed defendant was looking in her house. She began pacing, looking out her windows and checking the locks. She called her fiancé, extremely upset. She was not able to sleep that night and stated she "became very alarmed, fearful for my safety and my daughter's." This was especially so because of defendant's escalating contacts with her leading up to that incident.
The next morning, plaintiff did not go to work. Instead, she went to the courthouse and applied for a restraining order. The complaint alleged the conduct constituting domestic violence by describing the Desperate Housewives incident and a course of conduct over the previous two months as follows: "DEF SENT A TXT MSG TO PLA 'I CAN SEE YOU ARE WATCHING DESPERATE HOUSEWIVES NOW.' DEF SENT 5 TEXT MSG 8/W 12/19-12/20 'CALL ME' 'PLEASE CALL ME' 'CAN'T SLEEP, AGAIN' 'I NEVER WANTED TO BREAK UP' NOV-DEC '04 DEF SENT PLA 44 TXT MESGS. . . ."
The complaint further asserted that there was positive prior history of domestic violence and, on the three lines provided on the face of the complaint stated: "'YOU SHOULD NEVER HAVE BROKEN UP W/ ME' 'MARRY ME' PLA ASKED DEF TO STOP CALLING HER 6 WKS AGO. DEF BEGAN EMAILING AND SENDING TEXT MSG. (SEE ATTACHED)."
At the hearing, plaintiff appeared pro se and defendant was represented by counsel. Early in plaintiff's testimony but before she described with particularity any prior incidents of domestic violence, this colloquy occurred between the judge and defense counsel:
[DEFENSE COUNSEL]: Your Honor, also for the record, I note that the domestic violence complaint indicates that there's some attachment, but there was no attachment. I don't know if what you're looking --
THE COURT: That's because that's a confidential statement that -- that is not under amended rules that need not be released, but the Court has it.
There was no further discussion about the referenced attachment during the course of the hearing.
On appeal, defendant continues to assert that the complaint with which he was served did not contain an attachment. On our own motion, we issued an order to supplement the appellate record and directed the trial judge to furnish us, under seal, with a copy of the "confidential statement" to which the judge referred. The judge furnished us with two separate documents:
(1) a one-page document dated December 20, 2004 signed by plaintiff, entitled "Victim's Voluntary Statement Detailing A Prior History Of Domestic Violence" (Victim's Voluntary Statement), and (2) a four-page document (three pages on a prescribed form plus an extra page for additional entries) dated December 20, 2004, apparently completed by plaintiff, entitled "Confidential Victim Information Sheet (Do Not Give To Defendant)."
The judge informed us that it was the second document that she referred to in the above-quoted colloquy and which she would not release to defendant. The first document was apparently attached to the complaint in the court file, and the judge apparently believed it was attached to the complaint served on defendant and in the hands of his counsel at the hearing. Had the colloquy been further developed, this misunderstanding would have undoubtedly been ascertained, and the judge surely would have provided defendant with a copy of the victim's voluntary statement that was supposed to be ...