March 27, 2008
ALEJANDRA M. SEGURA, PLAINTIFF-RESPONDENT,
ENZO D. VACCA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-1154-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 14, 2008
Before Judges Cuff and Simonelli.
Defendant, Enzo D. Vacca, appeals from a Final Restraining Order (FRO) entered on March 19, 2007, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The trial judge entered a FRO based upon finding that defendant's communications to plaintiff, Alejandra M. Segura, constituted harassment under N.J.S.A. 2C:33-4a. Defendant contends the trial judge failed to find that any of his actions were done with the purpose to harass Segura and proceeded with the trial after becoming aware he was represented by counsel. Defendant also contends his conduct cannot be considered an act of domestic violence. We reverse.
Plaintiff testified at the FRO trial that she and defendant had a six-month romantic relationship that terminated on September 6, 2006. After plaintiff ended the relationship, defendant duplicated a screen name of one of plaintiff's very good friends in order to speak to her online to see what she was doing. Defendant also followed plaintiff home three times because he wanted to give her chocolate, and he repeatedly sent text or online messages to plaintiff stating the following: "Yo bitch, tell Tony*fn1 I said hi."; "[Your] friends aren't real"; "[I'm] the only one that's always been there for [you]"; and "I'm your real friend. I'm the only real friend that you've ever had[.]"
In about November or December 2007, plaintiff repeatedly told defendant to leave her alone and threatened to call the police. Plaintiff did not contact the police until March 10, 2007, when someone spit on her car. Defendant sent plaintiff a message that his friends had spit on her car. This incident prompted plaintiff to seek a temporary restraining order on March 12, 2007, on the grounds of harassment.
The parties appeared for the FRO trial on March 19, 2007.*fn2
Plaintiff did not testify that defendant threatened her, or that she felt alarmed or anxious about her safety, or that the parties had a history of domestic violence. Nevertheless, based on plaintiff's undisputed testimony, the judge entered a FRO, finding as follows:
It appears that the parties had a dating relationship for six months that has ended, that subsequent to the end of the relationship that the defendant has repeatedly sent her text messages, that she has asked him to stop, that he does not stop and that they continue.
The Court finds that this conduct is in violation of New Jersey Statute 2C:33-4, that of harassment and that he has made communications to her likely to cause annoyance and/or alarm. He has repeatedly been told to stop. He continues with the conduct that this Court finds, in fact, is an act of harassment. As this matter comes under the auspices of the Domestic Violence Statute, that act of harassment then becomes an act of domestic violence. In order to prevent any future acts of domestic violence, it is necessary that this Court enter a final restraining order.
We agree that the judge erred by failing to find a purpose to harass. Although a purpose to harass may, in some cases, be "inferred from the evidence" and from "[c]ommon sense and experience[,]" a finding that defendant acted with a purpose or intent to harass another is integral to a determination of harassment. State v. Hoffman, 149 N.J. 564, 576-77 (1997); State v. Duncan, 376 N.J. Super. 253, 261 (App. Div. 2005); Peterson v. Peterson, 374 N.J. Super. 116, 123 (App. Div. 2005); Bresocnik v. Gallegos, 367 N.J. Super. 178, 180 (App. Div 2004).
We also agree that defendant's conduct cannot be considered an act of domestic violence. The judge addressed defendant's communications under the "catchall" provision of N.J.S.A. 2C:33-4a, finding they were made in a "manner likely to cause annoyance or alarm." However, our Supreme Court has recognized that
Because subsection (a) has criminalized communications that are made anonymously or in offensively coarse language or at extremely inconvenient hours, we assume that the Legislature did not intend to criminalize communications under subsection (2) that are made in inoffensive language, at convenient hours, or in the communicator's own name. (Emphasis added.) [Hoffman, supra, 149 N.J. at 584.]
Defendant's communications, albeit unwanted, were not made in offensive or threatening language, or in another's name, and there is no evidence they were made at inconvenient hours. Thus, we cannot conclude defendant's messages rose to the level of annoyance contemplated by N.J.S.A. 2C:33-4a to qualify as an act of domestic violence.
Finally, defendant advised the judge his attorney informed him not to say anything at the FRO hearing. Given the "serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as 'a serious crime against society[,]'" once the judge knew defendant had an attorney, she should have provided him the opportunity to adjourn the trial and consult with his attorney. Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App. Div. 2006) (citing Bresocnik, supra, 367 N.J. Super. at 181).