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State v. Melnick

April 3, 2009


On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Essex County, Docket No. FO-07-474-06.

Per curiam.



Submitted: March 4, 2009

Before Judges Axelrad and Lihotz.

Defendant Michael Melnick appeals from his conviction for fourth-degree contempt for violation of a final restraining order (FRO) entered following a hearing on the complaint filed against him by his former wife pursuant to the Prevention of Domestic Violence Act (PDVA). N.J.S.A. 2C:25-17; N.J.S.A. 2C:29-9b. He argues the State failed to prove its case beyond a reasonable doubt and the court failed to adequately evaluate the credibility of his witnesses. He further contends that even if he were present on the street outside his former wife's home, it did not constitute a violation of the restraining order. We have considered these arguments in light of the record and applicable legal standards. We affirm.

Michael and Katy Melnick were involved in ongoing matrimonial litigation for several years.*fn1 Katy obtained a temporary restraining order against Michael on January 5, 2006, and an FRO on January 26, 2006. The FRO barred defendant from contacting Katy or going to her residence or place of employment. Michael acknowledged receipt of the order on the same date.

The violation of the FRO occurred on March 28, 2006, a few weeks after one of the divorce proceedings, when Michael went to Katy's residence in Newark. She testified she was home, around 10:00 p.m., in her laundry room next to the garage with the door wide open, about to take out the trash. She saw a flash of light outside of her garage door, which was partly opened, and clearly observed Michael with his camera, taking pictures of her car and the house. Katy testified that Michael was about one- and-a-half car lengths away from her at the time. Katy questioned Michael why he was there and he responded, "oh, you bought a new car." Frightened at the intrusion, Katy screamed, causing Michael to flee from the scene. Katy saw Michael get into his car and drive away, and then went to her boyfriend's house where she felt more safe and secure. When she got there, she asked her boyfriend whether she should go to the police station to report what had happened and he suggested she wait until the morning. Katy informed the police about this incident the next day. As a result, Michael was charged with fourth-degree contempt for violating the FRO.

Defendant's girlfriend, Barbara Georgakis, testified on his behalf. She stated that she accompanied him to his divorce proceeding on March 15, 2006, and they parked in the courthouse garage. They observed a red Toyota SUV, which Michael told her he had seen Katy driving the week before when she dropped their son off for visitation at the designated location. Georgakis took pictures of the car with her camera phone and mailed them to Michael's email address. When she and Michael returned home, they sent a letter to Central Jersey Legal Services with the pictures of the SUV and the picture at Katy's house that Michael had taken several months prior to demonstrate that Katy was not entitled to free legal counsel because she leased the vehicle and owned the home. The certified mail letter was received by Legal Services on March 27, 2006; however, Georgakis had no knowledge as to whether Legal Services notified Katy of its receipt.

Georgakis further testified she was home sick on March 28, 2006, and Michael was home all day and night with her, only leaving the house to pick up his son from school around 11:25 a.m. Georgakis further claimed she fell asleep with Michael by her side at around 9:45 p.m. She explained that Katy's house in Newark was about twenty minutes away from their house.

Michael's mother also testified at the trial. She stated that Katy called her at about 7:00 p.m. on March 28 and was very agitated, indicating she did not understand why Michael did not believe she was not entitled to free legal counsel. The witness was not at Michael's house at any time that day.

Michael testified on his own behalf. He stated he was home the entire day and evening of March 28, 2006, working on the computer and caring for his ill girlfriend, other than when he picked up his son from school around noon. Michael denied that he went to Katy's home any time that evening. He claimed his former wife filed this action because she was trying to retaliate against him for sending the letter to Legal Services and contesting her entitlement to free representation in the divorce action. Katy, however, had testified that as of the time she reported the incident to the police that formed the basis of this charge, she was unaware of the letter that had been sent to Legal Services.

In his ruling, Judge Petrolle made express credibility determinations and set forth the reasons for his findings. He found Katy to be more credible and believable than Michael, and rejected as not believable the alibi offered by Michael and his girlfriend. More particularly, noting Georgakis' involvement in every aspect of Michael's divorce action, and observing her manner and conduct on the witness stand, the court found her to be biased and her testimony contrived. Moreover, the court found unbelievable the fact that Georgakis just happened to be available to be home all day with Michael, not feeling well, and in a position to once again assist him in providing an alibi for this serious charge.

The court was satisfied that Michael's mother had a conversation with her former daughter-in-law about the letter to Legal Services. However, based on its observation of the witness, the court was not satisfied the conversation that occurred on the evening in question covered that particular topic. Rather, the court found that because she "loves her ...

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