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Broxton v. Senior

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 5, 2006

TIFFANY BROXTON, PLAINTIFF-RESPONDENT,
v.
CORY SENIOR, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FV-21-000-355-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 15, 2006

Before Judges Lefelt and Parrillo.

Defendant Cory Senior appeals from a final restraining order entered on January 5, 2006. After reviewing the record in light of the contentions advanced on appeal, we affirm. The order in question was entered under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. The complainant was plaintiff Tiffany Broxton with whom defendant had resided as her boyfriend. She has not participated in this appeal.

The incident in question occurred on December 19, 2005 at the parties' home. Both agree that a verbal argument ensued between them and they began pushing each other. Their versions differ thereafter. According to plaintiff, after she shoved him, defendant grabbed her, pushed her toward the couch, and put his hand over her mouth and nose to stop her from screaming. Because she could not breathe, plaintiff bit defendant's hand and in response, he punched her two or three times in her head and eye before eventually getting off her. Defendant disputed this account, claiming plaintiff grabbed him, threw him across the room, got on top of him and held him by the throat. Unable to get her off of him or to breathe, he hit her in self-defense. At the conclusion of the hearing, the trial judge found that defendant committed a simple assault upon plaintiff, N.J.S.A. 2C:12-1, constituting an act of domestic violence, N.J.S.A. 2C:25-19a(2), and accordingly entered a final restraining order against defendant. In so doing, the judge specifically credited the testimony of plaintiff over that of defendant. She reasoned:

I definitely found the plaintiff far more credible than the defendant and, therefore, I accept her version as to what happened as being the accurate one. Yes, she pushed him, but she pushed him, as she explained and as I indicated just a moment ago, it really was something that was done in self-defense.

Given the history between the parties and how the defendant had behaved toward her in the past, when he was close to her and yelling at her and angry with her, so I guess she pushed him, but it was to protect herself. And then, thereafter, . . .he was on top of her, putting his hand over her mouth and she couldn't breathe. Yes, she bit him. She had to because she was trying to protect herself and get him off of her. Yes, in her statement she says that she kicked him in the groin. That was because he was on top of her and was trying to smother her. So, all done, in my opinion, to protect herself.

So under 2C:12-1, a person commits an act of -- commits a simple assault if they purposely, knowingly or recklessly cause bodily injury and in this particular case he did, after she shoved him to get him away from her, he then came after her. He grabbed her, threw her down and was on top of her, held her mouth, covered her mouth with his hand. And, yes, she bit him so she could start breathing again, get his hand off and then, he started punching her and, certainly, at that point, he was committing an act of assault.

She mentions that she was bruised as a result and, therefore, there was some bodily injuries.

On appeal, defendant raises the following arguments for our consideration:

I. HEARING JUDGE AMY O'CONNOR ASSUMED A BIASED, PREJUDICIAL AND ADVERSARIAL POSITION TOWARD DEFENDANT THROUGHOUT THE HEARING WHICH DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR HEARING.

II. HEARING JUDGE REFUSED TO FIND INCONSISTENCY OF STATEMENT v. TESTIMONY.

III. JUDGE ERRED IN SETTING FORTH NO INDEPENDENT FACTUAL BASIS FOR FINDING PLAINTIFF FAR MORE CREDIBLE THAN DEFENDANT ACCEPTING HER VERSION OF EVENTS.

IV. HEARING JUDGE WAS BIASED IN ONLY ASKING DEFENDANT WHY DIDN'T HE CALL THE POLICE IF THERE WAS A THREAT OF HARM AND NEVER ASKING PLAINTIFF.

V. JUDGE WAS BIASED, PREJUDICIAL, ADVERSARIAL IN GIVING CREDIBILITY AND ACCEPTING HEARSAY FROM PLAINTIFF AND FAVORING PLAINTIFF ABOUT PRIOR EXPERIENCE TO JUSTIFY SELF-DEFENSE.

VI. JUDGE BIASED TO JUSTIFY SELF-DEFENSE FOR PLAINTIFF'S ACTIONS WHO ADMITTED UNLAWFUL, UNCONSENTED FORCE AGAINST DEFENDANT, FAILING TO MEET THE REQUIREMENT OF APPLICABILITY OF NECESSITY AND JUSTIFICATION.

VII. PLAINTIFF'S STATEMENT AND TESTIMONY ARE INCONSISTENT WHEN COMPARED, SUPPORTING LACK OF CREDIBILITY AS WELL AS DEFENDANT'S ACCUSATION THAT SHE IS THE AGGRESSOR AND PERPETRATOR OF THE CRIME OF ASSAULT AND HARASSMENT IN THE PRESENCE OF A CHILD.

VIII. PLAINTIFF SHOULD BE THE ONE WITH SUPERVISEFD VISITATION SINCE SHE IS THE ONE WHO CREATED THE VIOLENT INCIDENT WITH A CHILD PRESENT.

IX. PLAINTIFF'S COURSE OF CONDUCT SHOULD HAVE AUTOMATICALLY BEEN EQUATED WITH INTENT, PLAN, DESIGN OR PURPOSE WHICH ARE A REQUISITE ELEMENT OF ATTEMPT TO COMMIT CRIME NAMELY HARASSMENT, ASSAULT, DOMESTIC VIOLENCE.

X. THE FINAL RESTRAINING ORDER ON 1/5/06 IS BASED UPON THE COURT'S FINDING THAT FIRST INITIAL FORCE USED BY PLAINTIFF WAS A FORM OF SELF-DEFENSE . . . BUT FAILS TO RECITE SPECIFICALLY ANY FACTS OR ACTS THAT SHE WAS DEFENDING HERSELF FROM WHEN ENTERING HOME.

After analyzing the record in light of the arguments presented by defendant, we conclude that these issues are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say, the judge's detailed findings of facts that defendant committed an act of domestic violence against plaintiff are binding on us on appeal for they are amply supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Needless to say, because of "the family courts' special jurisdiction and expertise in family matters", we accord substantial deference to family court fact finding", especially when based on credibility determinations. Cesare v. Cesare, 154 N.J. 394, 413 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988); see also Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989) (holding that trial court's fact findings bind appellate court if supported by evidence, especially when the evidence is testimonial and trial court has had opportunity to observe witnesses and evaluate their credibility). Accordingly, we affirm substantially for the reasons expressed by the trial judge in her oral opinion of January 5, 2006.

Affirmed.

20061205

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