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Cotner v. Silva

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 29, 2007

SUSAN COTNER, PLAINTIFF-APPELLANT,
v.
ROBERT V. SILVA, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-1079-02.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 16, 2007

Before Judges Lefelt, Parrillo and Sapp-Peterson.

After an eight-day trial, the court found that defendant Robert Silva committed an act of domestic violence by punching his ex-girlfriend in the face, breaking her nose and a tooth. Upon reconsideration, the trial judge after considering additional evidence, reversed herself, finding that it would have been impossible for defendant to have committed the assault and subsequently arrive at his daughter's home when he did. Plaintiff appeals, and we affirm.

From the evidence, the following time line for the alleged events can be constructed. Defendant left the Basking Ridge Country Club sometime after 11:50 p.m., allegedly drove to the Raritan condo he shared with plaintiff, where he allegedly assaulted her, and supposedly arrived at his daughter's Budd Lake home at 12:50 a.m. The country club was about seventeen miles from plaintiff's condo and defendant's daughter's home was approximately 29 miles from the condo.

It was defendant's position at trial that he did not even see plaintiff, much less punch her. Instead, plaintiff claimed that he left the country club around midnight and drove directly to his daughter's house.

The trial court found from the evidence that defendant had assaulted plaintiff. As part of its finding that defendant could have assaulted plaintiff, the court found that defendant had made two phone calls from outside plaintiff's condominium at 12:09 and 12:12 a.m. rather than from outside the country club from which both parties had conceded defendant had made his calls. The trial judge concluded that defendant tried to make it seem as if the calls came from the country club in order to firm up his alibi, which she then rejected.

Subsequently, the trial judge reconsidered her determination that defendant had assaulted plaintiff. The judge considered "newly discovered evidence" of un-redacted Verizon cell phone records which indicated that the 12:09 p.m. and 12:12 p.m. phone calls had been picked up by a cell tower that was 1.4 miles northwest of the country club and 12 miles in a straight line from the condominium. Accordingly, the trial judge reversed her decision, believing that the calls were indeed made from the country club and that it was, therefore, impossible for defendant to have assaulted plaintiff within the previously determined timeline.

Plaintiff appeals, arguing that the phone records were not newly discovered, defendant failed to provide an adequate foundation for admissibility of the records, and the trial judge's decision reversing her previous domestic violence finding was so clearly erroneous that it mandates reversal.

Plaintiff's first argument is that the call records were not newly discovered and therefore should not have warranted reconsideration. Defendant argues the records were not available because a court order was required for disclosure and the court would not have issued any such order initially because neither party contested the location of the two cell phone calls defendant made from the country club parking lot.

A motion to produce additional evidence should ordinarily be granted when "that evidence would probably alter the judgment and by due diligence could not have been discovered before the court announced its decision." Quick Chek Food Stores v. Springfield Twp., 83 N.J. 438, 445 (1980). In this instance, the evidence related to a specific finding that the trial court believed was crucial. In addition, neither party initially contested the location from which defendant had made the two calls. Therefore, defendant reasonably saw no need to prove the location by any means other than his own testimony.

Once the judge articulated her theory of the evidence, which accused defendant of fabricating the location of the calls to bolster his story, the location of the calls became highly relevant. Because of this occurrence, we agree with the trial judge that the evidence should be considered sufficiently new to warrant its consideration. See Langley v. Allstate Ins. Co., 206 N.J. Super. 365, 370-71 (App. Div. 1985).

Although the foundation testimony defendant offered to admit the Verizon call records was somewhat spotty, we note that for computer generated documents, a witness need not have any first hand knowledge of the facts recorded. Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 18 (App. Div. 1996). A witness must simply (1) be able to demonstrate that the computer record is what the proponent claims; (2) be familiar with the record system; and (3) be able to establish that it was the regular practice of the business to make the record. Ibid.; accord Garden State Bank (Now Summit Bank) v. Graef, 341 N.J. Super. 241, 245 (App. Div. 2001).

In this case, defendant supplied testimony from Nicole Hyack, a Senior Compliance Analyst for Verizon. Hyack testified that she had produced the report. Consequently, she could verify that the record was what defendant claimed. While she did not have perfect knowledge regarding the entire system, she recognized the "Call Detail Look-up" report and testified that it was made from the master list generated by the Network and that such records were kept by Verizon in the ordinary course of business, and relied on by the company. This report indicated, in the one column that was relevant, the cell tower which accepted the phone calls placed by defendant. Her lack of understanding regarding other column headings on the record was not fatal as she had sufficient knowledge of the relevant section. We, therefore, agree with the trial judge that the records were admissible as Verizon's business records. N.J.R.E. 803(c)(6).

Finally, we cannot conclude that the trial court's ultimate determination was so wide of the mark as to warrant reversal. It is true that the trial court focused on the timeline and did not modify its original determinations that plaintiff's injuries were the result of an assault, defendant was physically capable of assaulting plaintiff despite his medical problems, and plaintiff was more credible than defendant. Even though the judge failed to address specifically all of her original determinations, we cannot conclude that her ultimate conclusion was arbitrary. Just because defendant could assault plaintiff and plaintiff was in fact assaulted, does not mean that defendant assaulted her.

Similarly, the judge finally concluded "that defendant met his burden on reconsideration of demonstrating his defense of impossibility by credible and competent evidence." Essentially, this conclusion indicates that because defendant did in fact make the calls from the country club, the court's original findings and conclusions were unlikely. Thus, the court impliedly found that defendant's story had become more believable than plaintiff's.

We admit to serious difficulty with the trial court initially making a finding that was contradicted by the evidence and contrary to the factual positions accepted and advocated, in part, by both parties. Had we heard the evidence initially, we probably would not have made such a finding. Nevertheless, the court's reconsideration realigned her findings with the record and led to her impliedly determining that defendant's story was more credible than plaintiff's.

In our view, plaintiff's contention that the trial court "should have corrected the mistake it made in its initial decision and found again for the plaintiff" simply constitutes unhappiness with the court's ultimate credibility assessment of the parties' respective positions. That is not a sufficient basis to overturn this judgment. State v. Locurto, 157 N.J. 463, 472-74 (1999).

Affirmed.

20070629

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