June 23, 2008
SAMREEN QURESHI, PLAINTIFF-RESPONDENT,
NASIR SYED, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-002493-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 19, 2008
Before Judges Lintner and Alvarez.
Defendant, Nasir Syed, appeals from a domestic violence final order restraining him from contact with plaintiff, Samreen Qureshi, pursuant to the Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. He contends that the trial court erred as a matter of law in finding that a predicate act of harassment or an assault had been committed. It is his contention that, even if the judge's finding that defendant grabbed plaintiff by the arm on one occasion stands, it did not constitute an act of violence which warrants the issuance of a restraining order. We affirm.
The trial in the matter was conducted on April 4, 2007, the date on which the final restraining order issued. Curiously, each party produced an independent witness who testified in accord with his or her version of the facts.
A reviewing court is bound by a trial court's findings "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Generally, we give particular deference to the Family Part, because it "possess[es] special expertise in the field of domestic relations." Id. at 412. A trial judge's credibility determinations are entitled to great deference as they "are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). Deference need not be accorded to a trial court's findings of fact, however, if its determination is "so wide of the mark as to be 'clearly mistaken.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Maggio v. Pruzansky, 222 N.J. Super. 567, 577 (App. Div. 1988); Formosa v. Equitable Life Assurance Soc'y, 166 N.J. Super. 8, 20 (App. Div.), certif. denied, 81 N.J. 53 (1979)). We are obliged to give due deference only to those credibility findings that can be sustained by the record.
The parties had previously dated. Plaintiff had filed a prior domestic violence complaint which was ultimately dismissed. Because of the dismissal, the trial court did not permit plaintiff to testify about prior allegations, nor did the court rely upon any past history of domestic violence in making findings of fact and reaching conclusions of law.
Plaintiff testified that on March 22, 2007, at approximately 11:30 a.m., defendant approached her as she walked toward the cafeteria of the college they both attended. He grabbed her arm, and pushed her into a wall. Plaintiff said that as he grabbed her, defendant told her, "[i]ts not over yet. I will kill you." She crouched down in a defensive position and cried out for help. Another student, later identified as William J. Meyer, began yelling at defendant. Meyer stepped between the parties, held plaintiff's arm, and walked her to the nearby bookstore where she sat on the floor while calling 911 from her cell phone.
Meyer recounted that at approximately 11:15 a.m. he was heading into the campus bookstore when he heard a woman yelling, "[s]top it, let go." He turned and saw defendant pulling on plaintiff by her left arm and her coat as she attempted to get away from him. Meyer yelled "[k]nock it off" at defendant, and ran down the stairs towards the parties, at which point defendant released plaintiff. While Meyer stood between them, plaintiff crouched down on the ground, visibly frightened, next to the wall while fumbling with her phone.
Defendant's witness was Brian Collins, also a student at the college. Collins said that as he was walking toward the computer lab, he heard screams, looked up, and saw plaintiff with her left arm around defendant's left side. He did not see defendant push plaintiff, and that, to the contrary, based on her behavior, he thought that plaintiff might be "mentally handicapped." On cross, Collins said he did not see which party approached the other first.
Neither Collins nor Meyer heard any conversation between the parties. Neither was acquainted with them.
Defendant also testified. His version was that plaintiff came up to him from the rear, grabbed his left arm and that he struggled with her. He said that plaintiff then shouted, "[d]on't hurt me, let go of me," to which he responded, "[j]ust leave me alone." Although he recalled seeing someone from a distance, his testimony was that he was able to pull away from plaintiff without assistance from anyone else. He said he met Collins after the incident, and that Collins volunteered to be his witness.
The trial judge gave Meyer's account more weight than he did Collins's testimony. As he said, "whether the difference was reconciled by the timing as to when they looked up," or for some other reason, the accounts of Meyer and plaintiff were more credible, and more consistent with each other than the accounts of Collins and defendant. He therefore found defendant was guilty of an assault as well as an act of harassment.
Although we concur with the judge's finding as to an act of harassment, we do not concur with the finding of assault. As set forth in Cannel, New Jersey Criminal Code Annotated, comment 5 on N.J.S.A. 2C:12-1 (2008), simple assault is limited to cases involving injury, whether it be "actual, threatened or attempted." We cannot conclude from our review of the record that defendant was attempting to injure plaintiff, nor did the trial judge reach that conclusion. The judge explained, "I can't actually say that he pushed her," he did not find defendant threatened plaintiff, and found only that defendant grabbed plaintiff's arm.
Harassment means to "'annoy'; 'torment'; 'wear out' and 'exhaust.'" State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (quoting Webster's II New College Dictionary 504 (1995)), certif. denied, 188 N.J. 577 (2006). It requires both a purpose to harass as well as action and can include an offensive touching. N.J.S.A. 2C:33-4(b). A finding of harassment can be based on only one offensive touching. See State v. Avena, 281 N.J. Super. 327, 339-40 (App. Div. 1995) (affirming harassment conviction based on employer's touching of employee's hips on one occasion).
According due deference to the judge's credibility findings, defendant's act of unexpectedly and forcefully grabbing plaintiff by the arm as they were passing each other, constituted an act of harassment. The judge's determination was not so wide of the mark as to be clearly mistaken, and his findings are adequate, and supported by the record. We further find no error in his conclusion that the conduct was engaged in with the purpose to harass. "A finding of a purpose to harass may be inferred from the evidence presented." State v. Hoffman, 149 N.J. 564, 577 (1997). Common sense and ordinary experience lead to the inescapable conclusion there was no other explanation for defendant's behavior. Ibid. Accordingly, as the judge found, a final restraining order was necessary in order to "prevent further abuse." N.J.S.A. 2C:25-29(b), see Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006).
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