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Kabbeko v. Crescitelli


November 13, 2007


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FV-06-648-07.

Per curiam.



Submitted September 26, 2007

Before Judges Cuff and Simonelli.

Defendant appeals from the entry of a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17, to -35. We affirm.

On December 3, 2006, plaintiff filed a domestic violence complaint against defendant and obtained a temporary restraining order (TRO) from the Vineland municipal court. In connection with the domestic violence incident, a criminal complaint was also filed against defendant, charging him with kidnapping, in violation of N.J.S.A. 2C:13-1b, terroristic threats, in violation of N.J.S.A. 2C:12-3a, and simple assault, in violation of N.J.S.A. 2C:12-1a. Defendant was arrested. He was denied bail because he was enrolled in the Intensive Supervision Program.

On December 6, 2006, plaintiff and defendant appeared for a FRO hearing before Judge Harold Johnson, Jr. in the Superior Court, Chancery Division, Family Part. Defendant asked the court for an adjournment to allow him time to retain an attorney to represent him. Judge Johnson granted the adjournment and rescheduled the hearing to December 20, 2006.

On December 20, 2006, plaintiff and defendant appeared for the FRO hearing before Judge Fineman. When Judge Fineman asked defendant if he admitted or denied the victim's allegations, defendant stated, "I have counsel that's supposed to be representing me, but he's not here as of right now." Defendant claimed Carlos Andujar, Esq. and/or Craig Mitnick, Esq. represented him. Defendant also claimed Andujar told him the hearing was to be rescheduled. When pressed further by Judge Fineman as to who represented him, defendant responded, "I'm not exactly sure."

In an effort to ascertain who, if anyone, represented defendant, Judge Fineman instructed his staff to call Andujar's and Mitnick's offices. They did so and were advised Andujar and Mitnick did not represent defendant in the domestic violence matter. Neither Andujar, Mitnick, nor any other attorney has verified they represented defendant in the domestic violence matter or would have represented him if it had been adjourned. In addition, Andujar has not verified that he advised defendant that the FRO hearing had been rescheduled.

Judge Fineman proceeded with the hearing on December 20, 2006, and continued it the next day. Defendant appeared the next day without an attorney and did not request an adjournment or advise Judge Fineman that he had retained an attorney to represent him. After hearing testimony from plaintiff, her witness, and defendant, and affording defendant the opportunity to cross-examine, Judge Fineman found plaintiff and defendant had a dating relationship and defendant committed an act of domestic violence on her. Accordingly, he entered a FRO against defendant.

Defendant contends Judge Fineman abused his discretion when he denied defendant's request for an adjournment. He also contends Judge Fineman violated his constitutional right to have counsel represent him at the FRO hearing. We disagree.

Trial courts are mandated by statute to proceed in a summary manner in domestic violence cases within ten days of the filing of a complaint. N.J.S.A. 2C:25-29a. The PDVA "was enacted with the expressed intent that courts . . . promptly and appropriately offer protection to victims of domestic violence." Depos v. Depos, 307 N.J. Super. 396, 399 (Ch. Div. 1997) (quoting Sperling v. Teplitsky, 294 N.J. Super. 312, 318 (Ch. Div. 1996)). "The legislative intent for such mandates is to assure the victim the maximum protection from abuse the law can provide. N.J.S.A. 2C:25-18. To assure such protection, the court's response must be swift because any delay may pose serious and irreversible consequences to the victim. Thus, domestic violence proceedings are 'immediate.'" Id. at 399-400; see N.J.S.A. 2C:25-18. However, "'the ten-day provision does not preclude a continuance where fundamental fairness dictates allowing a defendant additional time'" when the defendant did not receive meaningful notice and an opportunity to respond to the charges. H.E.S. v. J.C.S., 175 N.J. 309, 323 (2003) (quoting H.E.S. v. J.C.S., 349 N.J. Super. 332, 342-43 (App. Div. 2002), aff'd in part, rev'd in part, 175 N.J. 309 (2003)).

Here, defendant received ample and meaningful notice of the charges against him. Even if defendant did not "read" the domestic violence complaint before appearing at the FRO hearing, he knew exactly what charges plaintiff brought against him because he was arrested and jailed on charges of kidnapping and terroristic threats resulting from the domestic violence incident. Moreover, Judge Johnson granted defendant a two-week adjournment, which was more than ample time for him to retain an attorney and prepare a defense.



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