April 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 conversation, Karen Berkey said she hoped defendant would "rot in jail."
Defendant also testified that although she had been served with the TRO, she had not read its provisions closely enough to realize that she was prohibited from attempting any contact with members of Daniel's family. When asked about the telephone message Iacovitti had described, defendant asserted that she "left no such message" and "it could have been a message from a prior date replayed or it could have been a message left by somebody else." Finally, when asked whether she had gone to the Berkey residence on July 27, 2007 and stood in the driveway, defendant denied doing so. She claimed she "was not anywhere near the area at all," but was instead "about thirty miles north, where [she] live[s]."
Defendant's mother, Marrina Pushkareva, testified she knew defendant was not at the Berkey residence in Eastampton Township on July 27, 2007, because when she spoke to defendant on the telephone during the afternoon of July 27, defendant was with her friend Erin. Marrina also said that during the evening of July 27, 2007, she could tell that her daughter was in a pub because she could hear noise in the background.
In finding defendant guilty, Judge Haas made extensive credibility findings, concluding that Karen Berkey's testimony was "straightforward and clear and concise." The judge observed that although Karen did not get along with defendant, Berkey nonetheless "told [the judge] the truth." The judge likewise accepted Daniel Berkey's testimony, characterizing it as credible, clear, calm and concise, and commented that Berkey did not "overstate" his case. The judge explained that although "there's been a breakup here, . . . I don't find that what [Daniel Berkey is] doing here is motivated by that."
As to defendant's mother, the judge characterized her as a "credible witness for the most part," but she did not "provide the type of [alibi] testimony that defendant would like it to be." Finally, the judge concluded that defendant was not credible. The judge reasoned:
I couldn't find that testimony was credible. [I]t doesn't ring true to me that somebody who had just treated you so harshly would be one that somebody would call to get a ride [from], and I believe that the call was made for the purpose of making that threat, that the defendant was upset [by] what the Berkeys had done to her, in her mind, by calling the police and getting her in jail[.] I don't believe the defendant's testimony that Mrs. Berkey then threatened her and said that she could rot in jail. I think the defendant called with the purpose of threatening her, and I do believe that occurred. So I find the defendant guilty of that charge.
On appeal, defendant argues the State's principal witnesses, Daniel and Karen Berkey, were not credible and that the judge erred when he found otherwise. She also maintains that the State failed to prove her guilt beyond a reasonable doubt.
A person is guilty of contempt of a domestic violence restraining order if "that person purposely or knowingly violates any provision in an order entered under the provisions of the 'Prevention of Domestic Violence Act of 1991' . . . when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense." N.J.S.A. 2C:29-9b. Here, the underlying substantive offense charged by the State was harassment. A person is guilty of that offense if, with purpose to harass another, he or she "[m]akes . . . a communication . . . [in] any . . . manner likely to cause annoyance or alarm[.]" N.J.S.A. 2C:33-4a.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Where, as here, the trial judge sits as the finder of fact, his or her credibility findings are accorded great deference because of the judge's unique opportunity to see and hear the witnesses. State v. Locurto, 157 N.J. 463, 470-71 (1999). The Court reasoned:
The contention that the trial court erred in its determination of the facts, whether underlying or ultimate, may be urged on appeal in any non-jury case . . . . The appellate tribunal. . . . must review the record . . ., but not . . . from the point of view of how it would decide the matter if it were the court of first instance. It should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.
The aim of the review at the outset is . . . to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record. This involves consideration of the proofs as a whole . . . . When the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal. That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect. [Ibid. (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)).]
Applying those principles, we are satisfied that defendant's contentions are meritless. The evidence in the record amply supports Judge Haas's conclusion that defendant's July 6, 2007 telephoned threat to burn the house to the ground was both a violation of the restraining order and an act of harassment. Unquestionably, the restraining order prohibited defendant from contacting members of Daniel Berkey's household, which certainly included his mother, and by doing so, defendant was in contempt of the provisions of the TRO. Clearly, her threat to burn down the house also constituted an instance of harassment.
In addition, the record amply supports Judge Haas's determination that defendant's repeated phone calls to the Berkey residence and her presence in the driveway of the Berkey home on July 27, 2007 were a further violation of the restraining order. Moreover, the record supports the judge's finding that those repeated phone calls, many of them occurring over the course of a single day, constituted harassment. The purpose of those calls was to cause annoyance or alarm to Daniel Berkey, thereby satisfying N.J.S.A. 2C:33-4(a).
On appeal, defendant presents a number of reasons in support of her contention that Judge Haas erred by accepting the testimony of Karen and Daniel Berkey as credible. Among other reasons, defendant points to Daniel Berkey's criminal convictions and argues that such convictions should have caused Judge Haas to find Daniel's testimony not worthy of belief. As the State correctly argues, such evidence of Daniel's alleged prior convictions was not before the trial court. Consequently, we will not consider it on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Defendant presents other arguments regarding credibility. As we have observed, Judge Haas heard and saw the witnesses, and was in a far better position than we are on a cold record to evaluate their credibility. Locurto, supra, 157 N.J. at 471. We have been presented with no meritorious basis upon which to question the judge's credibility determinations.
In conclusion, Judge Haas's finding that defendant was guilty of two separate violations of a domestic violence restraining order and committed two acts of harassment is wholly in accord with governing statutes and is amply supported by substantial credible evidence in the record. His decision is, therefore, affirmed.