On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FO-20-158-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and St. John.
Following a three-day trial, defendant, Santos Ortiz-Martinez, was convicted of criminal contempt, N.J.S.A. 2C:29-9(b), a disorderly person's offense, for knowingly violating a domestic violence Final Restraining Order (FRO). Defendant was sentenced to one-year probation conditioned upon entry within thirty days, in a batterer's intervention program, an anger management program, or a program combining both goals. Appropriate assessments were also imposed. Defendant appeals, and we affirm.
After a six-year relationship, defendant's former girlfriend and mother of his three children, M.A., signed a complaint, as plaintiff, against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.
An FRO was entered against defendant on November 13, 2008, that prohibited defendant from "having any (oral written, personal, electronic or other) form of contact or communication with plaintiff," and plaintiff's daughters, and from "stalking, following, or threatening to harm, stalk or to follow plaintiff" and plaintiff's daughters. Defendant was also barred from plaintiff's residence and place of employment, and the children's school. The FRO was personally served on defendant on November 13, 2008.
Less than one month later, defendant was charged with the disorderly person's offense of criminal contempt, N.J.S.A. 2C:29-9(b), by "having contact with the victim after being advised no contact is allowed." The charges were amended by court order, to add the charge of entering the victim's workplace in violation of the FRO. The matter was tried in the Family Part, Union County.
The State called three witnesses, M.A., her brother, C.A., and her friend, R.D. Defendant did not call any witnesses and exercised his right not to testify. On November 16, 2008, while she was at her place of employment in Plainfield, M.A. observed defendant standing about twenty feet from her staring at her. He did not say anything to her, but pointed at her for about thirty seconds, accompanied by a facial expression that she felt was putting pressure on her or exhibiting that he was following her. She considered defendant's facial expression as one "to be afraid of." M.A. then went to the ladies' room and asked R.D. to lend her a cellphone to call the police. M.A. went outside but decided not to call the police. When she returned inside, defendant was still present and continued to observe her. M.A. then went back outside and called the police.
R.D. saw defendant that night eating at the bar. Defendant told R.D. to "tell [M.A.] not to be afraid, that [he's] not going to do anything to her." R.D. stated that the police arrived promptly after she lent her cellphone to M.A. and that the police escorted defendant from the premises.
On the date of the incident, defendant called C.A. and told him that he discovered where M.A. worked. C.A. had been a friend of defendant's for three years and identified both defendant's voice and his telephone number.
On the evening of December 6, 2008, at approximately 10:30 p.m., M.A. and R.D., while at a bar in Elizabeth, once again encountered defendant. According to M.A., defendant looked at her and laughed for about a minute. R.D. corroborated M.A.'s version, and noted that defendant stood by their table for about a minute, laughing. M.A. and R.D. left the bar around 1:00 a.m. and found that the right, driver's side tire of their vehicle, which was inflated earlier in the evening, was flat. They drove the car to a gas station to re-inflate the tire, which upon closer inspection appeared slashed. While they were standing near the car, defendant drove his car up to the curb, blew his car horn, and whistled at M.A. Defendant stated to M.A. that she was "driving such a nice car," in a manner that led M.A. to conclude that he had slashed her tire.
Prior to the trial judge's finding defendant guilty beyond a reasonable doubt, he placed his findings on the record. Although there were discrepancies in the testimony, he determined that the witnesses were credible and that the testimony was corroborated. The trial judge concluded that defendant knew there was an FRO, and that he made the communications at M.A.'s place of employment, with the intent to intimidate her, and at the gas station, which ...