May 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER DEGIULIO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FO-10-156-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 1, 2009
Before Judges Lihotz and Messano.
Following a non-jury trial, defendant Christopher A. DeGiulio was convicted of harassment against his former wife, Kathleen A. Kish. N.J.S.A. 2C:33-4(a), (b), and (c). As a result, and based upon the existence of a prior domestic violence restraining order (FRO) entered against him, defendant was also found guilty of purposely violating a judicial order, N.J.S.A. 2C:29-9(b). Finding this was the second violation of the FRO by defendant, the judge imposed a mandatory thirty-day custodial sentence, placed defendant on probation for one year, ordered him to perform twenty hours of community service, and imposed appropriate fines and penalties. Defendant raises the following points on appeal:
AS A MATTER OF LAW,  DEFENDANT'S CONVICTIONS UNDER N.J.S.A. 2C:33-4 ARE NOT SUPPORTED BY THE COMPETENT EVIDENCE IN THE RECORD . . . AND, THEREFORE,  DEFENDANT'S CONVICTIONS AND SENTENCE MUST BE REVERSED AND SET ASIDE.
A. AS A MATTER OF LAW, THE CONVICTION FOR HARRASSMENT IS NOT SUPPORTED BY THE COMPETENT EVIDENCE IN THE RECORD BELOW.
B. THE TRIAL COURT'S AMENDMENT OF THE COMPLAINT AFTER CONCLUSION OF TRIAL TO CHARGE DEFENDANT WITH A VIOLATION OF N.J.S.A. 2C:33-4(a) AND/OR N.J.S.A. 2C:33-4(b) CONSTITUTED REVERSIBLE ERROR.
AS A MATTER OF LAW, DEFENDANT'S CONVICTION . . . DID NOT VIOLATE THE TERMS OF THE FRO ENTERED ON NOVEMBER 2, 2006 AND HIS CONVICTION UNDER N.J.S.A. 2C:29-9(b) SHOULD BE REVERSED.
WHEN SENTENCING DEFENDANT TO [THIRTY] DAYS IN JAIL, THE TRIAL COURT MISCONSTRUED AND/OR MISAPPLIED THE APPLICABLE LAW RESULTING IN A MANIFEST ABUSE OF DISCRETION WHICH SHOULD BE REVERSED.
We have considered these contentions in light of the record and applicable legal standards. We reverse.
Defendant and Kish divorced in 2005, and together shared joint legal custody of their thirteen-year old son with Kish designated as the primary custodial parent. Pursuant to an amended FRO previously entered on November 2, 2006, and by consent of the parties, parenting exchanges were to take place in the parking lot of a McDonald's restaurant on Route 31 in Clinton. The order designated a particular area of the parking lot in which the exchange was to occur. A prior custody order provided that defendant would pick up his son "after school" on Friday. The issues raised concern a parenting exchange scheduled to take place on Friday, June 29, 2007.
Kish testified that prior to the date in question, the exchanges had been acrimonious, defendant having "a difficult time agreeing to where and how[.]" Court involvement through a parenting coordinator was necessary to finalize the terms of the orders. School was no longer in session, and Kish was unsure what time the exchange was to take place. Defendant contacted his son to tell him he would pick him up at three o'clock, but Kish noted defendant "hadn't communicated [this] to me," and she had not received "48 hours notice" of the time. She decided, apparently without direct communication to defendant, to "stick to the time," which was going to be "five something."
Near three o'clock, her son's cell phone began ringing. Kish knew it was defendant "wondering where [their son] was." She told her son, "we're sticking to [five] and [your] dad knows it." She decided to do some errands and then drive her son to the McDonalds. They arrived around five. Defendant was not there, but arrived shortly thereafter and parked next to her. Her son exited the car, entered defendant's, and she began to back out of the parking space. She saw defendant's car "start to come up" on hers, stopping very close, then his tires "squealed," and she thought there would be a collision.
An unknown person in another car rolled down his window and told her that he had seen the incident. Kish was distraught, left the lot, but returned immediately to ascertain this person's identity. He was still there, and he called the police at Kish's request. When they responded, she was escorted to headquarters and provided a written statement regarding the incident.
Kish testified that she avoided all eye contact with defendant, and that she heard "a combination of the sound of, like, [defendant] jerking [the car] in [reverse], and then putting his foot on the accelerator at the same time, and like revving up the engine[.]" She claimed defendant, on prior occasions, "exemplifie[d] road rage."
On cross-examination, Kish acknowledged she did not speak to defendant at all during the incident, and that her "entire claim" was that defendant's car "c[ame] close to [hers]." She had filed various charges against defendant in 2003, 2004, and 2005, all of which were ultimately dismissed. She further admitted that she had been diagnosed with bipolar disorder in May 2004, but claimed that diagnosis was only made "at the hospital," during a "brief psychotic episode." She admitted she left the hospital "against medical advice," and was no longer taking any medication as prescribed. In the fall of 2004, her doctor advised that she did not have bipolar disorder. Kish testified that because of her relationship with defendant, she had "been in counseling programs as a result of domestic violence." Kish further noted that defendant had been found guilty of simple assault in 2006, and a final restraining order was entered. She claimed defendant had violated the restraining order and was found guilty "once before," and sentenced to one year probation.
Michael Arthurs testified that he was in the parking lot at McDonalds on the day in question. He saw Kish trying to back out of her space, when defendant's car "chirped the tires and backed out in front of it," making Kish hit her brakes to "avoid colliding" with it. He claimed defendant's car backed up further, letting Kish's car out of the space, but then defendant "chirped the tires again and pulled up alongside, kind of putting the nose [of his car] in front of the nose of [Kish's car]." In court, Arthurs identified Kish, but could not identify defendant as the other driver. The whole incident happened very fast, but Arthurs claimed it appeared to have been "intentionally done," and the other driver was "aggressive" and gave Kish "nasty looks." Arthurs proceeded to get his food and pulled into a parking spot to eat. Kish returned, spoke to him, and he volunteered to follow her to police headquarters, though he denied that he called the police.
Defendant moved to dismiss the complaint, arguing the State had failed to prove any "intent to harass" on his part. He contended there was "no words," "no hand gestures," "no eye contact," and, at worst, "one near collision." When the State began to voice its opposition, the judge interrupted, stating, "I can save you some time." He denied the motion, concluding that the State had made out a "prima facie case."
Defendant testified that he was waiting at McDonalds on the day in question, believing the parties "were supposed to exchange at three o'clock, just like [they] had done for the past six months." When Kish and his son did not arrive, he returned to his apartment, and he called his son, who told him they would be there at five. Defendant returned to the parking lot at 5:15 p.m.
After his son got into his car, defendant began to back out first, because "without exception," "it had been established . . . [he] was always the . . . first one to leave." He claimed both cars tried to back out, and seeing Kish's reverse lights on, he thought she was "going to back into [him]." He "accelerated around her," and drove off.
On cross-examination, defendant admitted that he recently filed a motion to increase his parenting time, and that defendant was opposing it. He denied being angry about it, though, noted "it's been pretty contentious for four years now but  I have regular emotions like most people." He acknowledged he had been found guilty of violating the restraining order once before "for emailing an article [to Kish] from our church's website on forgiveness." He was "bothered" by the fact that the exchange had not occurred at 3:15, but had come to expect Kish's "erratic behavior." He thought she was "playing a game with [him]."
The parties' son testified that his father would usually "pull out" of the McDonald's parking lot first. On the day in question, as defendant backed out of the parking space, he saw his mother "halfway out of . . . [her] parking space." "[S]he was waiting there for a minute," and the boy "saw the brake lights." After "waiting a few seconds," he told his father "pull around her," that it "would be no big deal," and defendant did. The boy said there was no conversation between his parents, his father gave Kish no "looks," but acknowledged defendant was upset because he believed the exchange was to take place earlier. When his father was arrested shortly thereafter, the boy went to the police station and waited for his mother to pick him up.
During summations, defendant again moved for a judgment of acquittal. The judge rendered an oral decision noting first that the provisions of the final FRO entered on November 2, 2006 prohibited defendant "from having any oral, written, personal or other form of contact or communication with [Kish]," and also prohibited him from "stalking, following or threatening to harm, to stalk or follow" her. He found Arthurs' version of the incident to be "believable" and "more reliable" than either defendant's or Kish's version. Noting the complaint charged defendant with a violation of section (c) of N.J.S.A. 2C:33-4, the judge likened the circumstances to those presented in our decision in Tribuzio v. Roder, 356 N.J. Super. 590 (App. Div. 2003). He further concluded that defendant's "cutting off . . . his ex-wife's vehicle . . . and  actually looking at her . . . would be a violation of the restraining order[.]" Noting the complaint did not charge any violation of subsections (a) or (b) of N.J.S.A. 2C:33-4, the judge nonetheless concluded that defendant had "threat[ened] to do an offensive touching" by cutting off Kish's car and "backing into her[.]" He further concluded that this was a "communication" under subsection (a) of the statute.
The judge then considered whether the State had proven beyond a reasonable doubt that defendant acted with "[t]he purpose to harass." Based upon all the "circumstances surrounding the event," he concluded it had. The judge amended the complaint to allege violations of all three sections of the statute and found defendant guilty of harassment. He then concluded that defendant had violated the prior order by "having a communication with [Kish] during this exchange of the child[.]" He imposed the sentence referenced above, defense counsel acknowledging that defendant "ha[d] to get the 30 days as required by statute[.]" This appeal ensued. By order entered May 29, 2008, we stayed defendant's sentence pending the outcome of the appeal.
A person is guilty of harassment if, with "the purpose to harass another," he
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Defendant was charged only with violating section (c) in the complaint. Although no express objection was made by defendant to the judge's conclusion that he violated all three sections of the statute, we do not view defense counsel's silence as dispositive. In her summation, the prosecutor specifically limited her remarks to the proofs she contended demonstrated a violation of section (c). She also noted when the judge asked about any "communication" between defendant and Kish, that the complaint was "not based on [any] communication," as required by section (a). Instead, the judge amended the complaint sua sponte after hearing the summations. We believe this was error, and that defendant's conviction under either sections (a) and (b) must be reversed.
Rule 7:14-2 permits the amendment of a complaint to conform to the "evidence adduced at trial," but "no such amendment shall be permitted which charges a different substantive offense, other than a lesser included offense." If "[a] defendant could be found guilty of one [offense] and not the other,  they are not dependent upon each other and are 'different.'" State v. Burten, 219 N.J. Super. 339, 344 (Law Div. 1986), aff'd. o.b. 219 N.J. Super. 156 (App. Div.), certif. denied, 107 N.J. 144 (1987). It is clear that the offenses defined by the three sections of N.J.S.A. 2C:33-4 require different proofs and are not dependent on each other. "Each of th[e] three subsections is 'free-standing, because each defines an offense in its own right.'" State v. Hoffman, 149 N.J. 564, 576 (1997) (quoting State v. Mortimer, 135 N.J. 517, 525 (1994)). Therefore, the amendment was improper under the Rule. See State v. VanRiper, 250 N.J. Super. 451, 456 (App. Div. 1991) (reversing defendant's conviction for careless driving after the judge's sua sponte amendment because it was different from the original charge); State v. Koch, 161 N.J. Super. 63, 65-67 (App. Div. 1978) (reversing defendant's disorderly persons conviction on de novo appeal when original charge was a motor vehicle offense).
Perhaps more importantly, Rule 3:1-6 provides that "[p]roceedings involving charges constituting disorderly persons offense or a petty disorderly persons offense shall be heard in Superior Court as required by law, and shall be governed by the rules in Part III insofar as applicable." There is no provision in Part III of our Rules that permits a judge to amend the complaint to conform to the proofs at trial, unless the amended charge was a lesser included offense of the original charge. N.J.S.A. 2C:1-8(d). In this case, defendant was charged specifically with violating section (c) of N.J.S.A. 2C:33-4 only, and no motion was ever made to amend the complaint. Under these circumstances, the judge mistakenly concluded defendant was guilty of harassment for violating section (a) or (b). To the extent defendant was convicted of those offenses, we reverse.
We next consider whether defendant's conviction for violating N.J.S.A. 2C:33-4(c) can stand. He contends the State failed to prove a "course of alarming conduct or of repeatedly committed acts," committed "with purpose to alarm or seriously annoy" his ex-wife. We agree.
Section (c) of N.J.S.A. 2C:33-4 "proscribes a course of alarming conduct or repeated acts with a purpose to alarm or seriously annoy an intended victim." Hoffman, supra, at 149 N.J. at 580; and see Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995) ("Integral to a finding of harassment under N.J.S.A. 2C:33-4(c) is the establishment of the purpose to harass, along with a course of alarming conduct or repeated acts intended to alarm or seriously annoy another[.]") (internal citations omitted). However, in State v. J.T., 294 N.J. Super. 540 (App. Div. 1996), we said,
Placing oneself in a location and remaining there for some time may constitute a "course of conduct" . . . . "Conduct" may be any positive or negative act and its accompanying state of mind, and does not require any minimum amount of time, duration, or separate components. It can be the chosen manner of conducting oneself at a particular time or period.
[Id. at 545 (citations and quotations omitted).]
Relying upon J.T., and Tribuzio, supra, the State contends that defendant's actions on the day in question amount to a "course of conduct" prohibited by N.J.S.A. 2C:33-4(c). Specifically in addressing a violation of section (c), the trial judge cited the facts of Tribuzio, noting "a similar confrontation in a parking lot" took place here, where defendant "t[ook] some time to actually look at [Kish]." Tribuzio, however, is inapposite because the defendant there was charged with a violation of section (a) of the statute. Supra, 356 N.J. Super. at 598.
In J.T., the evidence demonstrated that after the issuance of an FRO, the defendant sat on the lawn behind a fence to his wife's backyard early in the morning, got up when she emerged from the home so that she could see him, and remained there for some two and one-half hours before the police arrived. J.T., supra, 294 N.J. Super. at 542-43. We do not dispute that such facts were sufficient to establish a "course of conduct" under N.J.S.A. 2C:33-4(c).
Here, however, the facts as accepted by the trial judge were far different. By all accounts, the incident was fleeting, encompassing just the amount of time necessary for defendant and Kish to back out of their respective parking spaces simultaneously, for both to stop, and for defendant to speed away. The events unfolded quite naturally, as they likely do in parking lots everyday. Defendant may have given Kish a "nasty look," as Arthurs testified, but she did not see it at all. And, to the extent the judge found Arthurs' testimony on this count to be credible, the witness described the events as happening "real quick."
We recognize that our scope of review is limited, and that we are required to accord substantial deference to the trial judge's findings of fact in a non-jury trial. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). The judge's legal interpretation of the statute, however, and "the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995). "The only question before us is whether the record contains sufficient evidence to support the judge's conclusion." J.T., supra, 294 N.J. Super. 544 (citing State v. Johnson, 42 N.J. 146, 161 (1964)).
We conclude that the State failed to prove beyond a reasonable doubt that defendant engaged in "a course of alarming conduct" "with purpose to alarm or seriously annoy" his ex-wife. We therefore reverse defendant's conviction for harassment.
Despite our conclusion that defendant's conviction for harassment must be reversed, we must nonetheless consider whether the State proved beyond a reasonable doubt that defendant violated N.J.S.A. 2C:29-9(b).*fn1 That statute provides that "a person is guilty of a disorderly persons offense if [he] knowingly violates an order entered under the provisions of" the Prevention of Domestic Violence Act (the PDVA), N.J.S.A. 2C:25-17 to -35. Our conclusion that defendant did not commit harassment is not dispositive of whether he committed contempt under the statute. See Hoffman, supra, 149 N.J. at 589 (finding that defendant could be guilty of contempt even though he was not guilty of harassment).
The FRO issued in this case prohibited defendant from: 1) committing future acts of domestic violence; 2) contacting or communicating with Kish; 3) making harassing communications to her; and 4) stalking, following or threatening to harm her. N.J.S.A. 2C:25-29(b)(1), (7), and (17).*fn2 We conclude that the evidence was insufficient to prove that defendant violated the terms of the FRO and was therefore guilty of contempt.
Regarding the contempt charge, the judge found "defendant committed . . . a violation of the [FRO] by having communication with the defendant (sic) during this exchange of the child . . . . And also . . . committed harassment." Defendant could not be guilty of contempt for "contacting or communicating with Kish" under these facts because the parties were effecting a parenting-time exchange of their son, something specifically permitted under the FRO and other court orders. Nor was there any evidence that he was "stalking [or] following" Kish in violation of the FRO. Defendant would only be guilty of contempt, therefore, if he had committed an "act of domestic violence" against Kish, made "harassing communications to her," or "threaten[ed] to harm her."
In finding defendant was guilty of harassment under section (a), the judge concluded that he had made a "communication," N.J.S.A. 2C:1-14(q), through his actions in the parking lot that day. He concluded that by "backing into--towards [Kish's] car . . . and by cutting off the car," defendant was communicating a "sign or gesture . . . which caused annoyance or alarm" to his ex-wife.
But, it was undisputed that no words were ever exchanged between defendant and Kish, she never looked at defendant during the entire episode, never testified he had cut off her car, and never saw the "nasty looks" Arthurs claimed defendant gave his ex-wife. Therefore we believe there was insufficient proof to determine beyond a reasonable doubt that defendant had made either an "harassing communication" that violated the FRO, or a "communication" under N.J.S.A. 2C:33-4(a).
The only remaining question, therefore, is whether defendant committed "an act of domestic violence" against Kish, or "threaten[ed] to harm her." We conclude the evidence was insufficient to prove that defendant did either.
Defendant would have committed an act of domestic violence if he was guilty of having harassed Kish. See, N.J.S.A. 2C:25-19(a) (defining "domestic violence" as "the occurrence of one or more . . . acts," including harassment). In finding defendant guilty of violating N.J.S.A. 2C:33-4(b), the judge found that he had threatened Kish with an "offensive touching," by "backing [his car] out so that [it] almost str[uck] her vehicle." In reaching this conclusion, the judge, as noted above, relied extensively on Arthurs' testimony, but did not refer at all to the testimony of the parties' son.
He testified that there was clearly a misunderstanding about who was going to pull out of their respective parking spots first. As he described it, "Usually, my dad would pull out so he pulled out and then also [so] did my mom . . . ." Defendant testified similarly. Even Arthurs, in describing this part of the encounter, claimed that defendant backed his car out "in front of" Kish's that had already started to back out of its space. Arthurs testified at that point Kish had to "hit the brakes  to avoid colliding." Kish, herself, made virtually no visual observations of defendant's car, instead testifying that as she backed out she could "hear [defendant] putting [his car] into reverse," and that she could "feel [defendant's] car it was so close."
To be guilty of harassment, defendant must have acted with a purpose to harass. Hoffman, supra, 149 N.J. at 577. In addition, he must have subjected Kish to an "offensive touching, or threaten[ed] to do so." N.J.S.A. 2C:33-4(b). Based upon the evidence in the record, defendant could not be guilty of harassment based upon the fact that his car almost struck Kish's as they both backed out of their respective parking spaces.
To be guilty of violating N.J.S.A. 2C:29-9(b), defendant must have "knowingly" violated the terms of the order. Since he did not commit any violation of N.J.S.A. 2C:33-4, he could only be guilty of contempt if the proofs demonstrated that he knowingly "threaten[ed] to harm" Kish in violation of the FRO. Expressing some level of anger during the parenting exchange as a result of what he may have perceived as an unjustified delay is insufficient to prove the requisite mental state. See State v. Finamore, 338 N.J. Super. 130, 138-39 (App. Div. 2001) (finding proofs insufficient to demonstrate a knowing violation of the FRO). As we have said in the past, the PDVA "was not intended to attempt to regulate and adjudicate every loss of temper, angry word, or quarrel between persons connected by a familial relationship." State v. Wilmouth, 302 N.J. Super. 20, 23 (App. Div. 1997).
As a result of our holding, we need not address defendant's final point regarding his sentence.