July 31, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL DEANDREA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FO-18-138-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2006
Before Judges Stern, Collester and Sabatino.
Defendant Michael DeAndrea appeals his criminal contempt conviction under N.J.S.A. 2C:29-9(b) for violating a domestic violence temporary restraining order (TRO).
On August 3, 2005, his wife, Elizabeth, filed a complaint under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. A temporary restraining order (TRO) was issued which alleged harassment after a spousal argument earlier that evening which barred defendant from "the residence of plaintiff," the marital home at 294 Long Hill Road, Hillsborough Township. The TRO was served on defendant at his friend's house at about 12:15 a.m. by Hillsborough Police Officer Craig Heindrichs, who accompanied defendant back to the marital home to retrieve personal belongings. Heindrichs explained to defendant that if he forgot anything, he was to call the Hillsborough Police Department to arrange for an officer to accompany him into the house. Defendant took some personal belongings and left without incident. Officer Heindrichs remained for a few moments talking to Mrs. DeAndrea. After he left, Mrs. DeAndrea took the children and went to spend the night at her next door neighbor's house at 296 Long Hill Road.
Mrs. DeAndrea later testified that about five minutes after she left her home, she saw her husband's pick-up truck pull into the driveway of the marital home. She called 9-1-1 to report that defendant returned to the house. The police dispatcher radioed Officer Heindrichs at 12:44 a.m., and he returned to Long Hill road, arriving five or six minutes later. He testified:
When I pulled up there, Mr. DeAndrea was parked in his blue pickup truck on the southbound shoulder. He was facing northbound. He was parked in between 294 and 296 Long Hill Road. As I was coming up there, he started pulling away. At that time I stopped him and had him exit his vehicle.
On cross-examination there was the following exchange:
Q: Okay. Did it appear to you that the defendant was trying to flee the scene, in your -- in your opinion or your observation?
A: I thought he was trying to leave the scene. I'm not sure if flee is --
Q: Okay. Do you recall how fast he was driving?
A: Normal speed.
Q: Okay. Did the defendant actually -- when you stopped him, I mean, did he stop?
A: Yeah, he stopped and listened to all .
. . I asked him if he pulled down the driveway. He said he didn't pull down the driveway. Asked what he was doing. He said he was waiting to call headquarters and see if I could come back there because he needed to retrieve some more items.
Later the subject of calls from defendant to police headquarters came up again.
Q: Did he tell you whether he had made the phone call or not -- or whether he was waiting to make the phone call?
A: He might have said that he had made the phone call or he was waiting. I don't recall.
Testifying on his own behalf, defendant said that when he left the marital home and headed back to his friend's house a mile away, he realized that he had forgotten some items from the house, notably cash and diabetic supplies. He said he turned around and drove back to his house, hoping to find that Officer Heindrichs was still there. When he saw the lights were out and Heindrichs had left, he said he backed up on the grass, did a K turn in the road and backed into his neighbor's driveway. He then called police headquarters from his cell phone, identified himself, and requested Officer Heindrichs to return to his residence to help him retrieve additional personal items. He was told that Heindrichs was on his way back. Defendant's cell phone records confirmed that he made two calls to police headquarters: one at 12:38 a.m., apparently a dropped call, and a longer one at 12:40 a.m.
Defendant said he waited less than five minutes before Heindrichs arrived and pulled in front of the driveway at 294. Defendant said he then moved out of his neighbor's driveway at 296 and pulled up adjacent to the police car. After Heindrichs told him he was not to return, defendant explained that he called to ask for assistance in getting additional items from the house. He was placed under arrest at that point. He testified that he did not understand the TRO to restrain him from the entire property and maintained he had no intention of violating the terms of the TRO.
In her decision the trial judge stated:
The Court found Patrolman Heindrichs to be a credible witness. The Court found the plaintiff to be a credible witness. The Court found the defendant's testimony to be inherently consistent, except with one point, but the Court also found a lack of eye contact and -- and body language that suggested that because of the lack of eye contact that perhaps the defendant was not telling the entire truth, just as a preliminary.
She then made the following factual findings:
[I]f . . . defendant's version were true and all he did was a K turn that caused part of the vehicle to go onto the lawn of the premises and he never drove down the driveway, with no lighting in the area, as the plaintiff -- as the State's witness testified, the victim, how would she have known he was there?
She said she saw headlights go down the driveway and she called the police. She doesn't know how far down the driveway, and the defendant wasn't in the driveway when she next looked when the police arrived. That is, it's somewhat corroborated by the defendant's testimony that when he called the police the police said -- the dispatcher said that officer Heindrichs was on the way. The timing of that is such that defendant had, even by his own testimony, done more than just drive by, do a K turn, and park 20 feet from the driveway before he called the police because they were already there, so the victim had seen his headlights, called the police, the dispatcher had sent -- had contacted officer or Patrolman Heindrichs and Patrolman Heindrichs was on the way.
The timing just doesn't square, and I find, also, the defendant's testimony that although the police officer blocked him in, he was able to go around the police car and go up next to him. Police officers are trained to block cars in effectively, not to block them in so that somebody can drive around them.
The absence . . . within the defendant's own testimony of events that square with each other and the absence of credibility with regard to pulling around the police car after it had blocked in his car lead this Court to believe that the defendant was taking the known facts and creating a story that was consistent with the facts he couldn't change and coming up with a version that very much favored him and would tend to show that the -- that he did not violate the restraining order.
The Court finds that the defendant went back with at least five minutes of opportunity to call the police before he actually arrived back at the premises. He didn't do so.
I do find that he pulled into the driveway at the premises, as plaintiff . . . testified, plaintiff in the underlying DV action, because that's the only way that she could have seen that he was there and that she called the police and that he was in the premises for a period of time, came out, parked where the officer said he did, facing the wrong way in the shoulder of the road between the two driveways, and that the officer blocked -- when he arrived blocked the defendant's egress from the shoulder of the road, not from 296.
There's just too much here in the defendant's story that doesn't square with his own -- elements of his own story. I believe that he knew he was going back there and he knew that he was violating the restraining order when he drove into the driveway.
I further find that driving into the driveway, by the defendant's own testimony, was known by him to -- to be a violation. There was some testimony at the very end of the redirect about whether he thought going into the house or going onto the land at the residence, the land at 294 Long Hill Road was a violation, and he said he didn't know. But he also testified that he backed into 296 because he thought that if he backed into 294 he would be violating the restraining order, and I think he knew -- based on that, I think he knew perfectly well that being on the premises in any fashion, forwards, backwards, or land, or driveway was a violation.
And so I do find that he knowingly violated. I think that he realized that he shouldn't be there at some point and he called the police to try to mitigate what he had already done, but at the time that he drove into the driveway, he knew what he was doing and he did violate the restraining order Defendant appeals and argues:
POINT I -- EVEN ASSUMING ARGUENDO THAT DEFENDANT DROVE INTO HIS DRIVEWAY A SHORT WAY, SUCH ACTION WAS NOT VIOLATIVE OF THE TRO.
POINT II -- THE COURT'S RELIANCE ON STATE V. J.T. WAS MISPLACED, AND IT MISAPPLIED THE LAW WHEN IT CONVICTED DEFENDANT FOR BEING "ON THE PREMISES."
POINT II -- THERE WAS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE CONVICTION.
N.J.S.A. 2C:29-9(b) provides in pertinent part that
[A] person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act "Prevention of Domestic Violence Act of 1990". . . .
Defendant argues that even assuming he backed up into his driveway to turn his pickup around, the evidence was insufficient to support the conviction that he "knowingly" violated the terms of the TRO which barred him from his "residence," which he interpreted to mean his house some 200 to 300 feet from the entrance to his driveway.
Our scope of review of a trial court's factfinding is one of deference, requiring only that the findings are supported by adequate, substantial and credible evidence in the record. State v. Locurto, 157 N.J. 463, 472-75 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Deference is especially appropriate when it involves questions of credibility. In re Return of Weapons by J.W.D., 149 N.J. 108 (1997). We will not upset the factual findings and legal conclusions of a trial unless we are convinced that they are "manifestly unsupported or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice. Rova Farms, supra, 65 N.J. at 484.
Moreover, particular deference is given to the findings of the Family Part because of its "special expertise" in the field of domestic relations. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Nonetheless, our review is not that of a rubber stamp. Peterson v. Peterson, 374 N.J. Super. 116, 122 (App. Div. 2005); DYFS v. J.Y., 352 N.J. Super. 245, 261, 263 (App. Div. 2002). The Domestic Violence Act is not to be construed to prohibit otherwise reasonable action unless particularly described and proscribed in a domestic violence order. State v. Krupinski, 321 N.J. Super. 34, 45 (App. Div. 1999). Since the violation of a domestic violence order is punishable as a crime of the fourth degree or, as in this case, a disorderly persons offense, a defendant is entitled to the panoply of rights of all criminal defendants including the presumption of innocence and requiring the State to prove every element of the offense beyond a reasonable doubt. Therefore, our review of the findings and conclusions of the Family Part in the instant case compels us to consider the surrounding and underlying circumstances relevant to the issue of whether there was a knowing violation of the order by the defendant.
The record does not substantiate some of the factual findings made by the trial judge. For example, her conclusion that the defendant placed the calls to the Hillsborough Police Department as a cover-up of his knowing violation of the restraining order cannot be justified on this record. Even Mrs. DeAndrea testified that defendant was unaware that she had left the marital home to go to the neighbor's house. Therefore, he had no way of knowing that he could have been observed when he briefly entered the driveway. Furthermore, the fact that he made calls to police headquarters gives credence to his explanation that he returned because he thought Heindrichs could still be at the residence. Seeing that he was not, he followed the direction given to him by calling police headquarters to request an officer return so that he could re-enter the house he left minutes before. His cell phone records established that the calls were made either prior to or within moments of the 9-1-1 call made by Mrs. DeAndrea.
The judge found that at the sight of the police car the defendant intended to flee or evade the police, which gave rise to an inference of guilt. But Heindrichs did not say that he observed defendant starting to flee from the scene. He said defendant started to move his car as if to leave. Also defendant's reasoning is more credible since it makes no sense that he would flee at the sight of a police car when he had called the police a few minutes earlier to request an officer.
Moreover, there is an insufficient factual basis for the judge's credibility finding that defendant was untruthful when he said he could have driven around the police car. Apparently, as a matter of judicial notice she said that, "police officers are trained to block cars effectively, not to block so that somebody can drive around them." We do not accept this as a proper judicial notice finding. In any event, Heindrichs testimony does not indicate that he blocked the defendant's vehicle, only that he pulled in front.
Based on careful study of the record, we find that there was not substantial evidence in the record to support the judge's conclusion that defendant knew that he was violating the Act when he came back to Long Hill Road. Defendant's legitimate need to retrieve his diabetes medication from the house was medically confirmed by hospital tests after his arrest, which showed that he was suffering from hyperglycemia. Moreover, assuming that defendant did briefly pull in to his driveway, there is insufficient evidence that defendant knew he was violating the condition of the TRO that he not return to the "residence," which he testified he believed to be the house. The case is unlike State v. J.T., 294 N.J. Super. 540 (App. Div. 1996), relied upon by the trial judge. In that case, the restraining order prohibited defendant from having contact with the victim including entering her residence. J.T. was found guilty of contempt based on the fact that he was sitting on the ground staring up at the victim's townhouse, positioning himself so he would be seen by her. The court properly rejected his contention that he was "doing nothing wrong" because he was some nine feet from the victim's property. In the instant case, the State does not allege that defendant intended to harass or alarm the victim by pulling into the driveway, only that he did it knowing that such entry violated the order. The record does not establish an evidential basis for concluding beyond a reasonable doubt that defendant knowingly violated a restraining order.
Moreover, while the purpose of the Domestic Violence Act is to provide maximum protection from abuse, defendant's conduct cannot reasonably be considered as constituting criminal or quasi-criminal conduct subjecting him to the penalties for such conduct. Under the factual circumstances including defendant's notification to police and request for assistance, his short entry into his driveway, which was brief in time, at best constituted "a trivial, non-actionable event." Krupinski, supra, 321 N.J. Super. at 45; State v. Wilmouth, 302 N.J. Super. 20, 23 (App. Div. 1997). As we stated in Wilmouth,
There are too many substantial and significant domestic violence matters requiring the urgent attention of the court system to squander judicial and prosecutorial resources on patently unmeritorious litigation which, moreover, unfairly subjects people to criminal penalties. The Domestic Violence Act affords critically needed protections in appropriate circumstances. It was not intended to attempt to regulate and adjudicate every loss of temper, angry word, or quarrel between persons connected by a familial relationship. [Ibid.]
Trivial actions in a matrimonial context do not justify the issuance of a restraining order, see, e.g., Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995), and trivial violations do not substantiate contempt. Although we appreciate the trial judge's endeavor to be vigilant in the enforcement of the Domestic Violence Act, the record facts simply do not warrant the criminal conviction.
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