On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FO-20-239-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Ashrafi.
Defendant Jeffrey Odom appeals from his conviction after a bench trial of disorderly persons contempt for violation of a domestic violence restraining order, N.J.S.A. 2C:29-9b. We affirm.
At his trial, defendant stipulated that his ex-wife, G.S., had obtained a restraining order against him in early 2007 pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and that the restraining order had been served upon him. The order barred defendant from the residence of his ex-wife and from having any contact or communication with her.
According to the testimony of G.S., on February 10, 2008, shortly after 4:30 p.m., she stepped outside her residence to smoke a cigarette. She saw defendant walking on her driveway toward his white truck parked at the end of the driveway. Defendant turned toward her and smirked, and then got into the truck and drove away, passing by the house again before leaving the area. She called the police to report the violation, and defendant was charged.
Defendant testified and denied that he had been at or near his ex-wife's residence. He testified that he was sick on the date alleged, and he was home all afternoon watching television and making phone calls. Defendant testified he was living on the bottom floor of his mother's bi-level house. His mother was upstairs in her living area the entire day and had called to him several times that afternoon, mainly about getting a roast into the oven.
In addition, defendant had made six or seven phone calls that day to a friend, Sharon Baldwin, and the calls were documented by his cell phone bill. From the billing record, defendant testified that he had called Baldwin at 3:55 p.m. and at 5:08 p.m. He also testified that all the calls were made from his residence.
The defense called police officer Marcus Giametta, who testified that he went to defendant's home at 6:30 p.m. that evening to notify defendant of the charge. Giametta testified that he touched the hood of defendant's white Ford Explorer to see if the engine was warm as evidence of whether it had recently been driven. The hood was cold. The officer also testified that it was still fairly light out at about 5:20 p.m. that day when he spoke to G.S. at her home, and that defendant's residence is less than two miles from G.S.'s home.
Sharon Baldwin and defendant's mother, Violet Lambert, testified as alibi witnesses for defendant. Baldwin testified about several telephone conversations she had that day with defendant, stating with certainty that she knew defendant was calling from his residence because she could hear the sound of his fish tank in the background. She testified that the call to her at 3:55 p.m. lasted a few minutes and the call at 5:08 p.m. lasted about half an hour.
Lambert testified that defendant was home all day on February 10, 2008, and that she spoke to him several times from the top of the stairs to his area on the first floor. In rebuttal, the prosecution called Detective Carlos Rodriguez of the Union County Prosecutor's Office to impeach the testimony of defendant's mother. Rodriguez testified that he spoke to Lambert by telephone about two months after the incident, and she told him that she spoke to defendant at about noon on the date of the incident and then took a nap, not seeing him or speaking to him again until it was "getting dark."
In his decision, the trial judge discussed the conflicting testimony and found G.S. and the police officers credible but defendant and his alibi witnesses not entirely credible. The judge found that Baldwin's testimony did not account for defendant's whereabouts at the relevant time, and the testimony of defendant's mother had been discredited by her statement to Detective Rodriguez that she had slept most of the afternoon and did not see defendant at the time of the alleged offense. The police officer's testimony about the hood of the white Explorer being cold did not help the defense because it occurred at least one and a half hours after defendant allegedly drove ...