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J.A.K v. E.M.A


April 13, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FV-10-000310-10.

Per curiam.



Argued January 25, 2011

Before Judges Yannotti and Espinosa.

Defendant appeals from the entry of a final restraining order based upon harassment. For the reasons that follow, we affirm.

Plaintiff and defendant were engaged in a dating relationship, which included sexual relations, for approximately one week in the spring of 2009. Both testified at the hearing. The court found plaintiff's testimony credible in all respects and defendant's version of events lacking in credibility.

Plaintiff testified that she ended the relationship, told defendant that she no longer wanted to see him and asked him to please stop calling her. Nonetheless, defendant continued to call, leaving "numerous voice mails multiple times during the day, mostly about how he wanted to see [her], how he didn't understand why [she] was treating him this way, and that he was so much better for [her.]" The phone calls came at all hours of the day, first thing in the morning, at 8:00 a.m., 10:00 a.m., in the afternoon, and even at 1:00 a.m and 2:00 a.m. She blocked his phone numbers but then he began to call her "continuously" from private numbers. Plaintiff estimated that defendant left thousands of voicemail messages in the months from May 2009 to March 2010, sometimes calling seven or eight times in a row.

There were times when plaintiff picked up the phone to plead with defendant to leave her alone and stop calling her. On one occasion in November 2009, he called her over and over again. She picked up the phone to plead with him to leave her alone and hung up. He called her back, very aggravated, yelling at her that he could not understand why she would not pick up the phone and calling her a "slut," a "whore," and other names. She called the Ringwood State Police and was advised that she should come to the station. On her way there, defendant called her again. She decided to take the call and tell him that she was driving to the police station. Defendant laughed at her. Plaintiff described his response as "really qui[te] sick." He said there was nothing the police could do for her, they could not touch him, that it was all very funny that he's been harassing her for all this time and the police could not help her. When she arrived at the police station, defendant was still on the phone, yelling at her. She handed the phone to an officer, who introduced himself, and defendant hung up. The officer told plaintiff he would call defendant to tell him to stop calling her.

Plaintiff did not file a complaint or seek a restraining order at that time. The calls and text messages continued. Patricia Brosman, a former roommate of plaintiff's, testified that on one occasion, plaintiff put the phone on speaker phone so she could hear what defendant was saying. Brosman testified that the person on the phone was screaming, using awful names, calling plaintiff "f***ing bitch," "asshole" and "slut."

Six voicemails plaintiff received from defendant on February 27, 2009, were played at the FRO hearing. The court described the messages as requests from defendant that plaintiff respond to him - to call him, to come over, that he wanted her to yell at him, stating, "I know you want to." Plaintiff's phone rang for a seventh time that evening while she was out to dinner with her boyfriend and two of her teenaged students. Her boyfriend picked up the phone and spoke to defendant in a manner that plaintiff described as "very clearly angry." They were both extremely upset at what was happening. As they were leaving the restaurant, defendant arrived. Plaintiff testified that she was "petrified" by defendant showing up, apparently unafraid of her boyfriend or the police.

Defendant testified that plaintiff's boyfriend attacked him that evening. Defendant filed a report with the police that resulted in an aggravated assault charge against the boyfriend. Plaintiff went to the police station in response to requests from the police and sought a temporary restraining order against defendant, which was granted. Based on the evidence presented, the court found that plaintiff had proven, by a preponderance of the credible evidence, that defendant committed an act of domestic violence, and entered a FRO. In this appeal, defendant presents the following issues for our consideration:





We are satisfied that neither of these arguments have merit.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104.

The FRO was based upon a finding that defendant had committed acts of harassment. N.J.S.A. 2C:33-4 states, in pertinent part:

[A] person commits a petty disorderly persons offense if, with 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; . . .

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

In State v. Hoffman, 149 N.J. 564 (1997), our Supreme Court identified the elements required to establish a violation of subsection (a) of the harassment statute, N.J.S.A. 2C:33-4:

(1) defendant made or caused to be made a communication;

(2) defendant's purpose in making or causing the communication to be made was to harass another person; and

(3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient.

[149 N.J. at 576.]

The Court observed that, "in enforcing subsection (a) of the harassment statute, we must focus on the mode of speech employed." Id. at 583. The statute criminalizes speech that invades one's privacy by "its anonymity, offensive coarseness, or extreme inconvenience" because it is "aimed, not at the content of the offending statements but rather at the manner in which they were communicated." Id. at 583-84 (quoting State v. Fin. Am. Corp., 182 N.J. Super. 33, 39-40 (App. Div. 1981)). In short, this section "proscribes a single act of communicative conduct when its purpose is to harass. Under that subsection, annoyance means to disturb, irritate, or bother." Id. at 580.

Plaintiff testified there were times defendant called her at 8:00 a.m., 1:00 p.m., 1:00 a.m. and 2:00 a.m. When asked by his attorney if that was accurate, defendant acknowledged that it was. In addition to plaintiff's testimony regarding the content of his communications, the evidence included the testimony of her former roommate that she heard the person on the phone [defendant] screaming, using awful names, and calling plaintiff "f***ing bitch," "asshole" and "slut." Defendant conceded that he "possibly" cursed in his calls to plaintiff. Therefore, although defendant argues that he merely engaged in innocuous communications with plaintiff, by his own admission the nature of his communications fell within two of the enumerated categories targeted by the statute as invading one's privacy.

The next question is whether he engaged in such conduct with the intent "to disturb, irritate, or bother" plaintiff. Defendant contended he lacked such an intent and was unaware that his attentions were unwanted. The court found defendant had "no credibility" in his proffers of alternative explanations for his behavior and, in our view, correctly found that the circumstances supported a finding that defendant acted with the intent to "disturb, irritate, or bother" plaintiff.

To constitute a violation of subsection (c), there must be a "course of alarming conduct or of repeatedly committed acts," which, as the trial court found, was satisfied here by the "non-stop deluge of text and voice mails." In addition, the actor must have the intent "to alarm or seriously annoy." N.J.S.A. 2C: 33-4(c); Hoffman, supra, 149 N.J. at 580. The pattern of defendant's behavior, calling and texting her at all hours of the day and night and into the early morning hours, ignoring her repeated pleas to be left alone, and using coarse language is ample evidence of such intent.



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