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State v. R.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 19, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
R.P., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Middlesex County, Docket No. FO-12-257-08 and FO-12-258-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 1, 2010

Before Judges Lisa and Baxter.

Defendant R.P. appeals from his March 10, 2008 conviction on a charge of violating a domestic violence final restraining order (FRO), N.J.S.A. 2C:29-9.*fn1 We reject defendant's argument that the trial judge erred by denying his motion to dismiss the contempt charges as de minimis infractions unworthy of prosecution. We affirm.

I.

On July 23, 2007, a Family Part judge issued an FRO against defendant under the provisions of the Prevention of Domestic Violence Act of 1991 (The Act), N.J.S.A. 2C:25-17 to -35. The FRO barred defendant from any contact with his estranged wife, K., other than by text message or e-mail, and only if necessary to discuss an issue affecting their children. The FRO also permitted defendant to attend his daughters' athletic events and to communicate with them by e-mail and text messaging. On August 24, 2007, Judge Toto issued an amended FRO that addressed defendant's telephone contact with his daughters. The amended FRO limited such calls to one per night between 7:30 p.m. and 7:45 p.m.

In October 2007, K. filed two complaints charging defendant with violations of the FRO. In particular, W-2007-0467 charged him with sending e-mails on topics not related to the children's activities. It also charged defendant with calling K. on the telephone, despite the provision of the FRO that prohibited such contact. W-2007-0481 charged defendant with telephoning K. on thirteen occasions between 7:56 p.m. and 11:37 p.m., again despite the order prohibiting defendant from attempting to contact his estranged wife. The latter complaint also encompassed an allegation that on October 18, 2007, defendant came to the former marital home while K. was not present and left family mementoes at the garage door. The items consisted of beach chairs, a math compact disc and the children's headbands.

During a two-day trial before Judge Currier on March 7 and 10, 2008, which covered 213 transcript pages, K. testified that, in addition to the thirteen telephone calls on October 19, 2007, defendant had also violated the FRO by contacting her mother and her best friend in an effort to persuade her to dismiss the FRO. She also asserted that defendant had sent his cousin to the parties' children's softball game to offer K. an apology for defendant's call to K.'s mother a few days earlier.

After the State rested, defendant moved for acquittal, arguing that some of the conduct the State alleged did not constitute a violation of the FRO, and the remaining conduct, even if it did constitute a violation, was so trivial as to require dismissal. After considering lengthy arguments from both sides, Judge Currier granted defendant's motion in part, determining that nothing in the FRO prohibited defendant from contacting K.'s mother or best friend. Consequently, the judge dismissed those allegations.

As to K.'s claim that defendant had violated the FRO by leaving the beach chairs and other items at the garage door, Judge Currier concluded that because K. was not home at the time, any violation of the FRO encompassed by such conduct was de minimis, and she dismissed those allegations as well. Thus, the only charge that remained after the judge decided defendant's Rule 3:18-1 motion for involuntary dismissal were the allegations in W-2007-0481 and -0467 that defendant had violated the no-contact provision of the FRO by telephoning K. on thirteen occasions on the night of October 19, 2007.

Defendant contended during the Rule 3:18-1 hearing that he had never been served with a written copy of the August 24, 2007 amended FRO, and was therefore unaware of the time limitation contained in that order. To resolve that issue, during a recess in the proceedings, Judge Currier listened to the tape of the August 24, 2007 proceeding before Judge Toto. By listening to the tape, Judge Currier determined that defendant was indeed present in the courtroom on August 24, 2007 at the time Judge Toto orally issued the ruling that limited defendant's phone calls to the period between 7:30 p.m. and 7:45 p.m. Thus, Judge Currier rejected defendant's contention that he was unaware that he was violating the FRO by calling at times other than the interval in question.

After the judge ruled that the allegations concerning the thirteen telephone calls on October 19, 2007 were sufficient to survive defendant's Rule 3:18-1 motion for acquittal, defendant took the stand to explain his actions. Defendant testified that he was not responsible for all thirteen of the telephone calls made on October 19, 2007, suggesting that his parents or his brother, whose telephones he sometimes used, might have made some of the telephone calls.

Defendant also asserted that because K. repeatedly hung up the telephone whenever she heard his voice or recognized his telephone number on her caller ID, he was left with no choice other than attempting to repeatedly call back. He asserted that the coming weekend was one of the weekends allocated to him as parenting time, and he wanted to be certain before driving the considerable distance from his parents' home in Queens to Middlesex County that his daughters would be available to spend time with him.

At the conclusion of the testimony, Judge Currier found defendant guilty of violating the FRO. In particular, she rejected his claim that the thirteen telephone calls on the night of October 19, 2007 were necessary to clarify his parenting time:

Defendant states that he's calling about parenting time. And that it was urgent that he speak with [K.] on October 19. And yet he also testified at some point that he had not seen the children since August. The [c]court does not find it credible that he would have known that this particular weekend was his weekend after two months of not seeing the children. He had spoken to them earlier in the evening or there had been phone calls he had placed. He had spoken to them the night before.

It doesn't matter though why the defendant was calling. He's not permitted to make phone calls to the victim other than under very specific circumstances. And surely he's not calling the children between 11 and 12 o'clock at night. And so I find based upon all the above that the defendant is guilty of violation of a restraining order that was set forth on Warrant-2007-0467-1222.

After finding defendant guilty of violating the FRO, Judge Currier sentenced defendant to a one-year term of probation. As a condition of probation, the judge ordered him to undergo a mental health evaluation and successfully complete any counseling or treatment that might be recommended. Appropriate fines and penalties were imposed.

On appeal, defendant raises the following claims:*fn2

I. COMPLAINT 2007-467 - THIS IS REGARDING AN E-MAIL SENT BY THE APPELLANT'S BROTHER REGARDING ROOFING MATERIALS AND A PHONE CALL BY THE APPELLANT INQUIRING [ABOUT] THE TIME OF HIS DAUGHTER'S GAME. APPELLANT IS REQUESTING COMPLAINT SHOULD HAVE BEEN DISMISSED UNDER THE RULES OF DE MINIMIS INFRACTIONS.*fn3

II. COMPLAINT 2007-481 - THIS IS REGARDING THIRTEEN PHONE CALLS MADE TO APPELLANT'S DAUGHTERS BUT PREVENTED FROM CONTACTING HIS CHILDREN BY HIS WIFE. ALSO BUT NOT PART OF THE COMPLAINT WAS APPELLANT ACCUSED OF LEAVING HIS CHILDREN'S ITEMS IN FRONT OF THE HOUSE [SIC]. APPELLANT IS REQUESTING THAT BOTH ISSUES SHOULD HAVE BEEN DISMISSED UNDER THE RULES OF DE MINIMIS INFRACTIONS.

II.

"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. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).

When a trial judge has heard the testimony of witnesses, had the opportunity to observe their demeanor, and has rendered detailed findings of fact, our review of those findings is extremely narrow. State v. Locurto, 157 N.J. 463, 470-71 (1999). An appellate court does not "engage in an independent assessment of the evidence as if it were the court of first instance." Id. at 471. Instead, we must "'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.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). So long as the judge's findings of fact "'could reasonably have been reached on sufficient credible evidence present in the record . . . [considering] the proofs as a whole'" they are binding upon us. Ibid. (quoting Johnson, supra, 42 N.J. at 162).

To prove a violation of N.J.S.A. 2C:29-9, the State is required to prove beyond a reasonable doubt that a defendant "purposely or knowingly violate[d] any provision in an order entered under the provisions of the 'Prevention of Domestic Violence Act of 1991' . . . . " Before addressing defendant's de minimis claims, we pause to briefly describe the purposes of the Act. "At its core, the 1991 Act [recognizes] that the victim of domestic violence is entitled to be left alone. To be left alone is, in essence, the basic protection the law seeks to assure these victims. . . . [T]hose who commit acts of domestic violence have an unhealthy need to control and dominate their partners and frequently do not stop their abusive behavior despite a court order." State v. Hoffman, 149 N.J. 564, 584-85 (1997) (internal citations omitted). Thus, "[a]n abuser who spontaneously appears or makes surprising communications without any legitimate purpose enhances the victim's apprehension. The fears of a domestic violence victim and the turmoil she or he has experienced should not be trivialized." Id. at 586.

Nonetheless, the Court recognized in Hoffman that "in the area of domestic violence, as in some other areas of the law, some people may attempt to use the process as a sword rather than as a shield[,]" and a trial judge must therefore serve "as the gatekeeper" by applying the "self-regulating provision in the Code," namely "the de minimis infraction provision, N.J.S.A. 2C:2-11." Ibid. The de minimis statute provides:

De Minimis Infractions. The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it [sic] finds that the defendant's conduct:

a. Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;

b. Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or

c. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The assignment judge shall not dismiss a prosecution under this section without giving the prosecutor notice and an opportunity to be heard. The prosecutor shall have a right to appeal any such dismissal. [N.J.S.A. 2C:2-11]

Defendant asserts that the judge's decision was impermissibly grounded in "assumptions or speculations" that are "not supported by any facts presented during trial." He further maintains that his estranged wife "has established a conduct or nature of being willfully malicious and intentionally attempting to abuse the intent of the law and try anything . . . to force prosecution." Defendant's arguments are unpersuasive.

Putting aside the fact that defendant's de minimis application was made to a judge other than the Assignment Judge, we conclude that defendant's arguments are substantively without merit. In particular, we do not consider the thirteen telephone calls, all of which were outside the permitted period of time, and most of which were at a very late and inconvenient hour, to be "within a customary license or tolerance." N.J.S.A. 2C:2-11(a). Nor were these repetitive and oppressive telephone calls of such character as to "not actually cause or threaten the harm or evil sought to be prevented" by the Act. See N.J.S.A. 2C:2-11(b). Moreover, defendant's violation of the FRO was not "to an extent too trivial" as to require dismissal of the contempt charge. Ibid.

Further, we agree with Judge Currier that defendant's claim of extenuating circumstances -- that it was essential for him to call K. to make certain that the children would be available for his parenting time during the coming weekend -- was unconvincing. Therefore, such claimed "extenuation[]" did not satisfy the provision of subsection (c), that the conduct in question "cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense." N.J.S.A. 2C:2-11(c). In particular, Judge Currier rejected defendant's claim of extenuating circumstances as both implausible and lacking in credibility. As she astutely observed, defendant had not exercised parenting time with his daughters in more than two months, and it was thus unlikely that his desire to see them was of such urgency as to warrant the barrage of phone calls he made on the night in question. We have been presented with no meritorious reason to reject the judge's conclusion that, in light of the passage of months, it was unlikely that defendant would even have been able to determine whether the weekend in question was a weekend allocated to him for parenting time.

Judge Toto specifically limited defendant to a fifteen-minute time period each night during which he was permitted to make one telephone call to the former marital residence to speak to the children. Defendant's contact with K. was limited to e-mail or text messaging "regarding the children only." As Judge Currier correctly determined, defendant's telephone calls to the former marital home at 10 and 11 o'clock at night were certainly not calls intended for the children. Thus, such calls could only be interpreted as instances of the very conduct that the Act, and the FRO, were designed to prohibit. Had the trial judge excused this serious violation of the FRO as a de minimis infraction, the judge would essentially have eviscerated both the provisions of the FRO and N.J.S.A. 2C:29-9(b).

The violations of the FRO of which defendant was accused were not trivial or inconsequential. They are exactly the sort of alarming behavior the Court identified in Hoffman as provoking "fear[]" and "apprehension" in a victim of domestic violence. Hoffman, supra, 149 N.J. at 586. As the Court observed, a defendant who "makes surprising communications without any legitimate purpose enhances the victim's apprehension." Ibid.

Here, defendant's oppressive and repetitive telephone calls, many of which were made only moments after K. hung up the telephone once she heard his voice, are precisely the conduct the Legislature sought to prohibit when it enacted N.J.S.A. 2C:29-9(b). Judge Currier correctly determined that the violation of the FRO represented by defendant's prohibited telephone calls "should not be trivialized." Hoffman, supra, 149 N.J. at 586. Her refusal to dismiss the complaint as a de minimis infraction represents a proper exercise of her factfinding function and a wholly correct application of the facts to the governing law.

Affirmed.


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