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Hoke v. Trout


July 1, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, No. FV-08-60-08.

Per curiam.



Submitted June 18, 2008

Before Judges Wefing and Collester.

Defendant appeals from a final restraining order entered against him under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff (who has not participated in this appeal) had a dating relationship with defendant, and the two lived together for a short period of time. They were no longer living together at the time of the underlying incident, which occurred on the evening of July 8, 2007. Plaintiff testified that defendant came to her home, demanding that she turn over to him some Valium pills she was holding for him. She said that when she would not do so, he threatened to go home and kill himself and that she replied if he returned the next day, sober, she would give him the pills. She said she would not give him the pills that evening because he said he was going to use them to kill himself. She testified that defendant would not let her leave and cut the telephone lines in the apartment. She also testified that defendant rooted through her home, searching for her pain-killing medication that had been prescribed for her. He found it in her desk, grabbed it, and left.

Plaintiff went to the police station and obtained a temporary restraining order, alleging that defendant had committed an act of criminal mischief. On the return day of the order to show cause, because plaintiff was unable to establish that she had suffered a monetary loss from the cutting of her phone lines, the trial court permitted her to amend her complaint to allege harassment in addition to criminal mischief. N.J.S.A. 2C:17-3(b)(2). In light of that amendment, the trial court adjourned the matter to permit defendant to prepare his defense.

Trial resumed on the adjourned date with plaintiff's cross-examination and the testimony of defendant and his mother. Defendant denied cutting plaintiff's phone lines, denied threatening to kill himself and denied taking plaintiff's prescription medications. He said he had gone to plaintiff's home to talk to her, and they had gotten into an argument because he had gone to her pastor without her permission to ask the pastor to counsel them about their relationship. He said he left without further incident. Defendant's mother testified that plaintiff called her that evening after defendant had allegedly cut her telephone lines.

The trial court placed its opinion on the record at the close of the proceedings, making the following findings: that defendant abused prescription medications, including Valium; that defendant did take plaintiff's prescription medications and left with them; that the parties argued; that defendant would not leave when told to do so and threatened to kill himself. It then analyzed those findings under the harassment statute, N.J.S.A. 2C: 33-4, and concluded that defendant had committed harassment under N.J.S.A. 2C:33-4(c).

Defendant makes two arguments on appeal.

I. The Trial Court committed reversible error when it determined that the factual findings it made supported the conclusion that Appellant had committed harassment in violation of N.J.S.A. 2C:33-4.

II. In the event that Appellant's actions would be deemed in violation of the harassment statute, said actions did not rise to the level of domestic violence under the Prevention of Domestic Violence Act, and its interpretation, as there was no prior history of domestic violence between the parties.

There are two premises to defendant's first argument: that the trial court found that defendant did not have a purpose to harass and that the incident of July 8 cannot be considered a "course of alarming conduct." We reject both propositions.

As to the first, we consider defendant's reading of the transcript of August 1, 2007, to be too restrictive. The lines to which defendant refers are in the context of the trial court considering whether defendant had committed an act of harassment under N.J.S.A. 2C:33-4(a). When the trial court turned to N.J.S.A. 2C:33-4(c), it specifically found that defendant had acted "with the purpose to alarm or seriously annoy the plaintiff."

As to the second, we are not persuaded by defendant's assertion that the incident of July 8 cannot, by itself, constitute harassment under N.J.S.A. 2C:33-4(c). There need not be a series of repeated acts to constitute a "course of alarming conduct." State v. J.T., 294 N.J. Super. 540, 545 (App. Div. 1996). It was entirely appropriate for the trial court to consider defendant's entire course of conduct during the time he was at her home, demanding Valium and threatening to kill himself.

Nor are we persuaded by defendant's second contention, that absent a prior history of domestic violence between the parties, his conduct on the date in question did not rise to the level of an act of domestic violence. Reduced to its essentials, defendant's contention is the equivalent of an assertion that one is entitled to perform one act of harassment without incurring any consequences.



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