July 29, 2008
SARA LOURENCO, PLAINTIFF-RESPONDENT,
JAIRO GIMENEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-0124-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 24, 2008
Before Judges Cuff and Fuentes.
Defendant Jairo Gimenez appeals from a final restraining order issued by the Family Part pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. Specifically, the court found that defendant committed the predicate offense of criminal trespass, N.J.S.A. 2C:18-3b.
After reviewing the record developed before the trial court, and in light of prevailing legal standards, we reverse.
Plaintiff is a twenty-year-old college student who attends Rider University. Defendant is twenty-one years old. Prior to the incident that gave rise to this complaint, the parties had a year-long dating relationship which the trial court properly characterized as "tumultuous." Plaintiff complained that defendant was prone to emotional outbursts and that he was jealous and controlling. Further, plaintiff's father disapproved of defendant, adding additional strain on the parties' relationship.
On February 18, 2007, plaintiff's father found defendant's car parked near plaintiff's dormitory building. The father then found defendant in plaintiff's room. The next day, plaintiff requested that the University issue a "Persona Non Grata" (PNG) letter to defendant, advising him that he was not permitted on campus. According to plaintiff, the University issued such an order on February 19, 2007. Defendant admits that he was aware of this restriction. The appellate record does not include a copy of this document. We assume, however, that the University has the legal authority to enforce such a restriction.
It seems clear to us, however, that plaintiff requested the University to issue the PNG in large part to appease her father's concerns, as opposed to out of actual fear for her safety. The following testimony illustrates the point:
[PLAINTIFF]: [T]he reason why I got the persona non grata was because people prop doors in my dorm room -- in my dorm area, my living area. Okay? And all of a sudden [defendant] shows up. He just shows up. He opens my door in my room and just walks right in. Like, I was flipping out because you know you're not supposed to be here. My dad told you not to come to the school and you tell me this?
[THE COURT]: And [defendant] was aware on that date that he shouldn't be there?
[PLAINTIFF]: No. My father told him.
That's why on February 19th I got the persona non grata so that he would be aware. [(Emphasis added).]
The record further reflects that after the issuance of the PNG, plaintiff continued to communicate with defendant by phone "on several occasions each day." In fact, on cross-examination, plaintiff was confronted with cellular phone records reflecting that on April 16, 2007, (the day before the date of their anniversary) she called defendant a total of thirteen times. In response to the trial judge's question, plaintiff admitted that the dating relationship did not end until the beginning of May 2007.
On July 25, 2007, plaintiff filed a domestic violence complaint against defendant alleging that on April 28, 2007, at 11:00 a.m., "[defendant] went to [plaintiff's] dorm room at Rider University and then to the sorority house looking for her. . . . [Defendant] began repeatedly calling, texting, e-mailing, and visiting the [plaintiff] after being told not to."
Against these facts, the trial court found that defendant had committed "criminal trespass," because he had been barred from visiting the University campus. In so doing, however, the court specifically found that the evidence did not support a finding that defendant harassed plaintiff by this conduct. The court also noted that plaintiff never requested assistance from the University police to enforce the PNG restriction.
We begin our analysis by emphasizing that under the Prevention of Domestic Violence Act, only the offense of criminal trespass is included among the offenses constituting domestic violence. N.J.S.A. 2C:25-19(a)(12). A person commits the petty disorderly persons offense of defiant trespass "if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by . . . [a]ctual communication to the actor." N.J.S.A. 2C:18-3b(1).
Here, defendant does not dispute that he was given actual notice that he was not privileged or licensed to enter the University campus. It is noteworthy, however, that the complainant here is not the University. Thus, as defendant argues before us, there is a question of whether defendant can be found guilty of this offense. We need not decide this issue, however, because we are satisfied that defendant's presence at the campus was prompted, in large part, by plaintiff's actions.
Indeed, as plaintiff herself acknowledged, she did not consider her romantic involvement with defendant to have been over until after the alleged incident that gave rise to this cause of action. Thus, even if defendant was present at the campus in violation of the PNG decree, his presence there was induced by plaintiff herself. Under these circumstances, the trial court's finding that defendant committed an act of domestic violence cannot be sustained. See Cesare v. Cesare, 154 N.J. 394 (1998); Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995).
This conclusion is further supported by the allegations reflected in plaintiff's domestic violence complaint. In this pleading, plaintiff alleges that defendant called her and otherwise communicated with her, supposedly in violation of the PNG. However, this restriction presumably prohibited defendant only from physically appearing on University grounds. It does not address e-mails and phone calls. Even if the restriction extended to such conduct, plaintiff admitted that she initiated a good deal of these communications.
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