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State v. Pushkareva

April 14, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EKATERINA PUSHKAREVA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Burlington County, Docket Nos. FO-03-70-08 and FO-03-148-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 1, 2009

Before Judges Baxter and King.

Defendant, Ekaterina Pushkareva, appeals from her December 17, 2007 conviction under two complaints that charged her with contempt of a domestic violence restraining order, N.J.S.A. 2C:29-9b. Each complaint also charged her with harassment, a petty disorderly persons offense, N.J.S.A. 2C:33-4a. The judge sentenced defendant to a one-year term of probation and imposed appropriate fines and penalties. At a separate proceeding on February 25, 2008, the judge made a minor modification to the sentence that has no bearing on the issues presented on appeal.

On appeal, defendant maintains that the judge erred by finding the State's witnesses credible and by concluding that the State proved her guilty beyond a reasonable doubt of the charges in question. We affirm.

I.

Defendant and Daniel Berkey were involved in a dating relationship, which came to an end in the early morning hours of July 6, 2007. On that date, Berkey pulled his vehicle over to the side of the road and directed defendant to get out, which she did. A few hours later, when defendant appeared at the house Berkey shared with his mother and other family members, he called police and obtained a temporary restraining order (TRO), pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

In relevant part, the July 6, 2007 TRO prohibited defendant from contacting Berkey and "all parties residing at [his] residence," and ordered her to stay away from the premises. The TRO was served upon defendant at 8:40 a.m. on July 6, 2007, as evidenced by her signature on the bottom of the first page. At trial, defendant acknowledged having been served with the TRO at that time. Immediately after police served defendant with the TRO, they transported her to a hospital for observation.

Karen Berkey, Daniel's mother, testified that later that morning, defendant called her from the hospital, threatening to burn down the Berkey home. The call was received between 10:30 a.m. and 11:00 a.m., a few hours after defendant was served with the TRO. Karen Berkey called police, who charged defendant with harassment and with violation of the domestic violence restraining order.*fn1

Daniel Berkey testified that defendant telephoned him a number of times on July 10 and 11, 2007. Although he did not answer the phone, Berkey recognized defendant's telephone number on his caller ID. On one occasion, he answered her call solely to direct her to stop calling. Patrolman Joseph Iacovitti testified that when he responded to the Berkey residence to investigate the complaint of a violation of the TRO, Daniel Berkey played for him a message that defendant had left on Berkey's answering machine. Iacovitti testified that he recognized defendant's voice from prior incidents, and was able to determine that the voice on the answering machine was hers.

The State's second contempt complaint concerned an incident on July 27, 2007, when Daniel Berkey walked to the side yard of his house and observed defendant standing in his driveway twenty-five feet from him. Although defendant tried to speak with him, he turned around, and went inside to call police.

Defendant testified. Although she admitted to calling Karen Berkey from the hospital, she denied threatening to burn down the Berkey home. Instead, defendant claimed she called Karen Berkey from the hospital only to ask her for a ride home. Defendant also claimed that during this ...


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