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Buynie v. Balzamo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 19, 2007

KAREN BUYNIE, PLAINTIFF-RESPONDENT,
v.
JOSEPH BALZAMO, JR., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, FV-02-1668-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 4, 2007

Before Judges Coburn and Fuentes.

Defendant, Joseph Balzamo, appeals from a final restraining order issued pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, and filed on February 15, 2007. In support of his request for reversal of the order, he offers the following arguments:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO EXCLUDE THE TESTIMONY OF MRS. BUYNES FOR HER VIOLATION OF THE COURT'S SEQUESTRATION ORDER.

POINT II

THE TRIAL COURT'S DECISION SHOULD BE REVERSED AND THE FINAL RESTRAINING ORDER VACATED BECAUSE THE EVIDENCE DOES NOT FACTUALLY OR AS A MATTER OF LAW SUPPORT THE COURT'S FINDING THAT DEFENDANT COMMITTED DOMESTIC VIOLENCE OR THAT A RESTRAINING ORDER IS NECESSARY.

A. Defendant Did Not Assault Plaintiff By Auto.

B. Defendant Did Not Harass Plaintiff.

C. A Domestic Violence Restraining Order Is Not Necessary Here.

After carefully considering the record and briefs, we are satisfied that the judgment is based on findings of fact that are adequately supported by the evidence, R. 2:11-3(e)(1)(A), and that all of the arguments made are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We affirm for those reasons and substantially for the reasons expressed by Judge Jerejian in his cogent and comprehensive oral opinion delivered at the conclusion of the trial. Nevertheless, we add the following comments.

As Judge Jerejian found, there was a history here of abusive conduct by the defendant toward plaintiff, which included demeaning her, striking her and pulling her hair on a number of occasions. On the critical day on which the final restraining order was based, defendant acted in a threatening manner and, as found by the judge, drove off while his car door was open and while portions of the bodies of plaintiff and her mother were in the car. The judge found that defendant's conduct caused the women to fall and suffer personal injuries. He concluded that defendant had committed simple assault, N.J.S.A. 2C:12-1(a), and harassment, N.J.S.A. 2C:33-4(c), conclusions entirely consistent with the evidence. Therefore, we reject defendant's claim that he committed neither offense.

The judge's ruling permitting the mother to testify was well within his discretion despite the sequestration order. First of all, the mother was not in court when plaintiff testified, and she was not called as a witness during plaintiff's case. She was only present in court when defendant testified. Generally speaking, the reason for sequestration is to preclude witnesses for the same side from hearing each other's testimony so that there is greater assurance that the testimony is not affected by what has been heard. State v. DiModica, 40 N.J. 404, 413 (1963). When there has been a violation of a sequestration order, the judge retains discretion to order relief short of refusing admission of the testimony.

State v. Dayton, 292 N.J. Super. 76, 90-91 (App. Div. 1996) (internal citations omitted). When, as here, the case is being decided by the judge, we do not doubt his ability to judge the extent to which testimony may have been affected by other testimony. Furthermore, in this case defendant admitted his presence and admitted driving off with his door open while plaintiff and her mother had parts of their bodies in the car. The mother's testimony added nothing of substance to the case, and the judge relied on his finding that the plaintiff was a reliable and believable witness while defendant was not. Therefore, even assuming error, we are satisfied that defendant suffered no resulting prejudice.

Affirmed.

20071219

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