On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0021-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2011
Before Judges J. N. Harris and Fasciale.
Defendant Calvin Fireall appeals from the Law Division's de novo finding of guilt of the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(a). We affirm.
These are the facts taken from the trial record generated in the Somers Point Municipal Court. Heather Martina and Fireall are the parents of a four-year-old child and had been engaged in ongoing custody disputes related to their son.
Martina testified that when she awoke on October 30, 2009, her cell phone indicated that it had received a series of "[fifty] to [fifty-five] missed restricted calls." Martina had not answered any of the calls, and she had no idea who had placed them until November 12, 2009, when Fireall told her that he had called her numerous times "about two weeks ago."
The next restricted call -- meaning that Martina's cell phone did not reveal the telephone number of the caller -- was received thirteen days later, on November 12, 2009. Martina answered the call and heard the voice of Fireall. There ensued a short discussion about a court case involving the couple's son, with Martina telling Fireall, "I want nothing to do with you," and then terminating the call.
Fireall called back the same day. Martina hung up. Then a third call was received by Martina from Fireall. Martina stated that Fireall said to her, "when [I] get full custody of our son, [you're] never going to see him ever again."
Martina testified further that throughout the day of November 12, 2009, she received "[l]ike [twenty] to [twenty-six]" restricted phone calls that she ignored. Finally fed up, Martina went to the Somers Point Police Department where she answered a restricted phone call that she claimed was from Fireall, and handed the cell phone to Sergeant Anthony Disciascio. The police officer told the caller to stop calling Martina's cell phone. The caller then said to Disciascio, "would you advise [Martina] that our son is sick."
Fireall also testified. He claimed that he was the one being harassed and victimized, and that he did not make the several restricted calls to Martina. Specifically, Fireall stated, "I did not call this girl. I wasn't present to call this girl. The people who were with me during the time said I didn't call this girl."
At the conclusion of the trial in the municipal court, Fireall was found guilty. The municipal court judge made the following sparse finding:
I've listened carefully to the testimony and I'm convinced beyond a reasonable doubt that you made the phone calls. Whatever that proves I'm not exactly sure. It proves that on this day you were trying to get a hold of her and you shouldn't have been. ... So all you're charged with is simple harassment. I'm ...