On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FV-21-000-355-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...