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L.B. v. M.P.

January 5, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-626-09.

Per curiam.



Submitted November 4, 2009

Before Judges Lihotz and Ashrafi.

Defendant appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered on August 27, 2008, after trial. He contends that his Sixth Amendment rights were violated because he did not voluntarily waive his right to counsel and that plaintiff's evidence failed to establish a predicate act of domestic violence. We affirm.

Plaintiff and defendant had a dating relationship for about fifteen months. According to plaintiff's testimony at trial, she ended the relationship on June 30, 2008. During the next several days, they spoke on the phone, and plaintiff allowed defendant to come to her condominium to talk in an effort to part peacefully. On July 5, 2008, however, plaintiff told defendant she did not want any further contact with him. Later that day, he repeatedly tried to talk to her in person or over the telephone. She resisted and finally told him that she felt scared by his pursuit and she would call the police if he did not stop. The next day, she changed the locks on her condominium.

A few days later, defendant called the dental office where plaintiff worked, but she did not want to speak with him. When he called a second time, she spoke to him, declined his invitation to lunch, and told him she did not want to speak with him again. His contacts persisted by phone and in person outside her home. She again told him that he was scaring her and she had no choice but to call the police if he continued.

Over the next several days, she spoke about the incidents to her parents, who lived outside New Jersey, and to other family members. On July 15, her father came to New Jersey and accompanied her to the police station, where she filed a domestic violence complaint and obtained a temporary restraining order.

Plaintiff and defendant appeared in the Superior Court on July 24, 2008, for a hearing on her complaint. Plaintiff did not have a lawyer but had discussed the matter with a family lawyer and was accompanied to court by her father. Attorney Anthony Alfano represented defendant for the hearing. Alfano spoke to plaintiff and her father and also spoke on the phone to their family attorney. On behalf of his client, Alfano promised that defendant would have no further contact of any kind with her. Plaintiff agreed to drop her complaint with that understanding.

The parties appeared before a Family Part judge to dismiss the complaint and to vacate the temporary restraining order. Alfano assured the judge and plaintiff that defendant understood that if he "shows his face anywhere, 'anywhere,' anyplace within the vicinity of [plaintiff], she will not hesitate, obviously, to file a new restraining order . . . ." He also said:

I'm also putting on the record that he has no reason to be anywhere near her. He doesn't have a place of employment or anything which is within close proximity to where she lives or where she works. So there's no reason for her - for my client to have any contact or to be anywhere near her.

Relying on these representations, plaintiff voluntarily dismissed her domestic violence complaint and the temporary restraining order. In accepting the dismissal, the judge explained to plaintiff that in the future she would not be able to re-instate the same complaint if defendant failed to abide by his promises. He also said that the prior acts would be considered in determining whether she is entitled to a restraining order if any new acts of domestic violence were to occur. Plaintiff said she understood. When the judge asked defendant whether he had any questions, he answered no.

Fifteen days after dismissal of the first complaint, on August 8, 2008, defendant contacted plaintiff. He called and left a message on her home phone that a package had arrived for her at his residence and he wanted instructions about what he should do with it. She did not respond to the message. She testified at trial that she had never lived at his residence or used his address. She was not expecting anything at his ...

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