April 29, 2008
JEANNINE HENDRICK, PLAINTIFF-RESPONDENT,
BRIAN D. RAY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FV-02-2052-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 25, 2008
Before Judges C.S. Fisher and C.L. Miniman.
Defendant Brian D. Ray appeals from the Final Restraining Order entered on April 19, 2007, by Judge Edward A. Jerejian who found that defendant made terroristic threats to plaintiff on April 8, 2007.
The judge recited plaintiff's testimony that she and defendant had a dating relationship for about three and a half years, which ended about two months before the alleged act of domestic violence. He recited plaintiff's testimony:
Plaintiff testifies that two years ago she was assaulted by defendant, who drinks regularly. He drank. He wanted to drive. She didn't want him to drive. She took the keys. She says he threw her on the floor and basically pounded on her. She had a black eye, blood all over from her nose. She thought her nose was broken. It was a serious physical altercation. And then since that point, she has not been physically assaulted, but has been verbally abused. . . . She states on this particular occasion they met up, saw each other briefly. She was dressed up to go out. He took offense to that, accused her of having sex with others, and then at some point when this phone call came in, he made various threats to her that he wants her gone, that he wants her dead, that he wants her family dead. And at the point that the tape kicks in, he mentions about an AK-47. He says that it could shoot her through a wall, that she's going to die, her dog is going to die, that he's for real . . . . He said, send him, please send him, I'll kill him and then he's going to kill her.
Defendant testified. He said that he never physically assaulted her. He's not abusive to her at all. And when he testified he denied making these threats. That's way I wanted to hear the tape. So I . . . don't find the defendant credible. I don't see how you can.
After reviewing the legal standards governing domestic violence, the judge determined that plaintiff was credible and that she was assaulted two years ago. The judge also found:
I don't think there's any dispute that he in fact threatened her. Defendant intended to so threaten the plaintiff. I find that he did and that a reasonable person would have believed the threat. I think she does believe it, and I think it's reasonable for her to believe it.
The judge determined from a preponderance of the evidence that defendant made terroristic threats "to commit a crime of violence with the purpose to terrorize another" contrary to N.J.S.A. 2C:12-3(a). The judge also concluded that defendant had "threaten[ed] to kill with the purpose of putting someone in imminent fear of death" contrary to N.J.S.A. 2C:12-3(b), even though defendant was not physically near plaintiff when he made the threats.
Defendant presents the following issue for our consideration:
POINT I -- THE TRIAL COURT ERRED IN GRANTING A FINAL RESTRAINING ORDER AGAINST THE DEFENDANT, BRIAN RAY, IN FAVOR OF PLAINTIFF, JEANNINE HENDRICK, AS THE FACTS DO NOT SUPPORT A FINDING THAT THE DEFENDANT COMMITTED TERRORISTIC THREATS AND THUS DID NOT VIOLATE THE DOMESTIC VIOLENCE ACT.
Essentially, defendant argues that plaintiff was retaliating against him for ending their relationship two months earlier and that his counsel had stated on the record "that at various times the Plaintiff was making comments, smiling and laughing throughout the entire proceeding." Defendant also argues that the elements of N.J.S.A. 2C:12-3 were not satisfied because the defendant was in Maple Shade and plaintiff was in New York City at the time of the threats, he had no AK-47 or other type of gun and no reasonable person would have believed his threats.
After carefully reviewing the record in the light of the arguments presented, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons articulated by Judge Jerejian in his thoughtful oral opinion delivered on April 16, 2007. We add the following comments.
The judge properly found that defendant's course of conduct evidenced a purpose to terrorize. That purpose "may be inferred from the evidence presented." State v. Hoffman, 149 N.J. 564, 577 (1997). The term "purposely" is defined in the New Jersey Code of Criminal Justice as follows:
A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. "With purpose," "designed," "with design" or equivalent terms have the same meaning.
"[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Here, Judge Jerejian's conclusion that defendant threatened to commit a crime of violence with the purpose to terrorize plaintiff is fully supported by substantial, credible evidence in the record. It was defendant's "conscious object to engage in conduct of that nature," which he knew or should have known would "cause such a result." N.J.S.A. 2C:2-2(b)(1). "At its core, the 1991 [Prevention of Domestic Violence] Act effectuates the notion that the victim of domestic violence is entitled to be left alone." Hoffman, supra, 149 N.J. at 584.
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