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State of New Jersey v. Barry R. Silvers

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 11, 2011

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FO-14-84-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 24, 2011

Before Judges A.A. Rodriguez and LeWinn.

Defendant appeals from the January 12, 2010 order of the Family Part finding him guilty, after trial, of violating a domestic violence final restraining order (FRO), N.J.S.A. 2C:29- 9(b). He was sentenced to a one-year term of probation; the appropriate statutory assessments and fines were imposed. On appeal, he contends that his conviction must be reversed because the record does not support the judge's conclusion that he knowingly violated the FRO. We disagree, and affirm.

L.N. obtained a temporary restraining order (TRO) against defendant on May 9, 2009. The TRO was personally served on defendant at 7:50 p.m. on the same date. It prohibited defendant from having any contact with L.N. and from "making or causing anyone else to make harassing communications to" her.

L.N. obtained an FRO against defendant on June 2, 2009, which contained the same prohibition.

L.N. testified that on May 9, June 24, July 19, and August 5, 2009, she received telephone calls from Joan Lind, a friend of defendant's, who said defendant had asked her to call and speak to L.N. about resuming the relationship with him. On May 9, Lind called and "yell[ed] at" her "for getting the restraining order."

The August 5 call lasted about forty-five minutes; Lind told L.N. that "defendant . . . was there and that she was very concerned for him, that he was very, very sick and [L.N.] need[ed] to go back with him. [She had] . . . him all wrong." Lind said that defendant "has been constantly nagging her and she . . . keeps calling [L.N.] just to get him off her back."

L.N. testified that the August 5 phone conversation lasted so long because she was "plead[ing] with [Lind] to . . . leave [her] alone."

L.N. asked Lind if she was aware of the FRO and Lind answered that she was, and knew that defendant was not allowed to contact her. L.N. testified that she received a total of "[s]ix or seven" phone calls from Lind; on June 24 and July 19, Lind called her several times a day.

Mount Olive Police Officer Mark Martini spoke to L.N. on August 15, 2009, when she came to headquarters to file a complaint against defendant for violating the FRO. L.N. told Martini about the phone calls from Lind and showed him Lind's telephone number on her cell phone. Martini called and spoke to Lind who told him "that she didn't really know [L.N.], but had contacted her several times. She wasn't trying to cause any problem, but she sa[id] she was asked by [defendant] to contact her." Martini stated that he did not record his conversation with Lind.

Lind testified as a State's witness. She has known defendant for about seven years. He is a private investigator and did some work for her in the past.

Defendant called her around 9:00 p.m. on May 9, very upset that he had just been served with a TRO. She denied that defendant asked her to call L.N. Defendant did suggest that "maybe [she] could find out what's wrong." She said she would "try" and then "during the week [she] thought [']let me see . . . what's wrong.'" Lind acknowledged that she spoke to L.N. on May 9 after the TRO was issued and L.N. said "she didn't want to be contacted by [Lind]." She also acknowledged that she called L.N. between May 9 and August 5.

Lind testified that she did not recall calling L.N. on June 24 or July 19. She stated that she called L.N. on August 5 in response to L.N.'s call to her. They spoke for about forty minutes, and L.N. never told her to stop contacting her; L.N. was "rattling on and on . . . sa[ying] that [defendant] is a bad person." When she spoke to Martini, Lind told him she called

L.N. "on behalf of" defendant "as a concerned friend" but not at his request.

At the conclusion of the State's case, defendant moved for a directed verdict. The judge denied the motion, finding it "crystal clear . . . that there was a third party . . . contact, and . . . at least the initial . . . call[] was done at the request of [defendant]." The judge added that he had to "think through the thing that we've been going over and over again about whether the follow[-]up calls were . . . a continuation and at the prompting of [defendant]."

Defendant testified that he called Lind at 8:15 p.m. on May 9, after he was served with the TRO. Defendant stated that he and L.N. had been engaged but L.N. broke off the relationship. When he felt he "wasn't getting anywhere" in his efforts to resume his relationship with L.N., he asked Lind if "maybe she could get through." Defendant acknowledged that Lind had spoken to L.N. on his behalf prior to May 9. He denied, however, that he ever asked Lind to contact L.N. on his behalf after he was served with the TRO.

The judge rendered a decision from the bench on January 12, 2010. After reviewing the evidence, the judge found that there were "approximately seven calls" to L.N. from Lind between May 9 and August 5. The judge discussed what he viewed as "the competing theories" that Lind's calls to L.N. were either at defendant's "request, direction" or "simply on his behalf unknowingly . . . by a well[-]meaning friend and third party."

The judge found beyond a reasonable doubt that Lind called L.N. "initially at the direct direction of [defendant] and then continu[ed] to do it . . . ." The judge found L.N.'s "suggestion that [Lind] said she was being nagged by [defendant] to be instructive on that point. It seems to comport with common sense." The judge added, "And . . . when you look at all the circumstances, it's a reasonable understanding of what happened. In other words, why would a stranger . . . over two and a half months . . . continue on behalf of a friend to still call the protected victim?" The judge continued:

The nature of the acts here is that [Lind], who didn't know [L.N.] and had no reason in the world to contact her except on behalf of [defendant], kept contacting her over a two-month period. . . . My assessment of her testimony and where she stands in this case is that she was most definitely on [defendant's] side in this. I guess [she] felt bad that she had gotten him into trouble, as remarked just after her testimony . . . .

The judge concluded, "overall, in this context, . . . the much more likely understanding of what happened is the State's theory that it was done not only on behalf of, but at the request of defendant . . . . [M]y certainty level is beyond a reasonable doubt . . . ."

The judge also found that Lind's communications were harassing because L.N., "the protected party, . . . holding . . . protection based on sexual assault and harassment*fn1 , receiv[ed] a communication from a third party, to feel sorry for [defendant] and try to get back together with him[. This] is a harassing communication . . . ."

On appeal, defendant raises the following contentions for our consideration:

THE TRIAL COURT'S FINDING THAT THE THIRD PARTY CONTACT TO THE PROTECTED PARTY WAS A DIRECT DIRECTION BY DEFENDANT WAS A CLEAR ERROR IN JUDGMENT AS IT WAS NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL, CREDIBLE EVIDENCE, AND THEREFORE THE CONVICTION SHOULD BE REVERSED.

A. The Standard of Appellate Review.

B. The Trial Court Made an Impossible Leap in Judgment by Finding that the State Proved Each Element of the offense of Contempt Beyond a Reasonable Doubt, and, as Such, Abused its Discretion by Making an Unreasonable Finding Which Was Against the Weight of The Evidence.

C. Defendant Was Improperly Found Guilty Of A Third Party's Volitional Act.

Having reviewed these contentions in light of the record and the controlling legal principles, we discern no basis to reverse the order at issue.

Our standard of review of fact findings by trial judges is limited. Particularly where, as here, the critical issue is credibility, our task is "restricted to the test of whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 472 (1999) (internal quotation marks omitted). As defendant acknowledges, an appellate court will "rarely" reject a trial judge's credibility determinations, and does so only when we are satisfied that such determinations are "'so plainly unwarranted that the interests of justice demand intervention and correction.'" Id. at 471 (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). N.J.S.A. 2C:29-9(b) provides:

[A] person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an [FRO]. . . when the conduct which constitutes the violation could also constitute a crime or disorderly persons offense. In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an [FRO] . . . . [(Emphasis added).]

As the trial judge noted in his decision, our statutes define "knowingly" as follows:

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. [N.J.S.A. 2C:2-2(b)(2).]

Based upon his credibility determinations, the judge found the testimony of L.N. and Officer Mancini established beyond a reasonable doubt that all of Lind's telephone calls to L.N. were made at defendant's request and, therefore, with his knowledge. The judge found incredible defendant's and Lind's claims that she made those calls "on his behalf" without his knowledge.

We defer to the judge's credibility determinations when borne out by the record, as they are here. Locurto, supra, 157 N.J. at 472. That deference, in turn, leads us to concur with the conclusions drawn from those determinations.

Affirmed.


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