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R.L.U. v. J.P.

Superior Court of New Jersey, Appellate Division

December 4, 2018

R.L.U., Plaintiff-Respondent,
v.
J.P., Defendant-Appellant.

          Submitted October 11, 2018

          On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1615-17.

          DeGrado Halkovich, LLC, attorneys for appellant (Adamo Ferreira and Felicia Corsaro, on the brief).

          Respondent has not filed a brief.

          Before Judges Simonelli, Whipple and DeAlmeida.

          OPINION

          WHIPPLE, J.A.D.

         Defendant, J.P., appeals from an April 19, 2017 order granting a final protective order against him pursuant to the Sexual Assault Survivor Protection Act (SASPA), N.J.S.A. 2C:14-13 to -21. For the reasons that follow, we reverse.

         In 2005, defendant pled guilty to endangering plaintiff, R.L.U., when she was eleven-years-old. N.J.S.A. 2C:24-4(a). Defendant was sentenced to a three-year suspended term and parole supervision for life. He was ordered to have no contact with plaintiff and was required to register under Megan's Law.

         On March 13, 2017, plaintiff was working at a convenience store when defendant walked in and approached her for the first time since 2005. Defendant allegedly yelled, "he could not believe they let people like [her] work there," "she knew who the fuck he was," "that people like her ruin people's lives," "he knew the owner and was going to get her fired," and as he was leaving said, "don't worry, I got you homie." Ten days later, defendant returned to the convenience store, came up to the glass door, stared at plaintiff for five seconds, and then left. Plaintiff called the police who advised her to seek a restraining order under SASPA. The police also issued a municipal court summons charging defendant with harassment.

         On March 27, 2017, plaintiff was granted a temporary order of protection pursuant to SASPA. On April 19, 2017, a Family Part judge issued a final protective order following a two-day hearing. Prior to the Family Part judge hearing testimony from either party, defendant moved to dismiss, arguing SASPA, as applied, violated the ex post facto clause of the United States and New Jersey Constitutions. The Family Part judge denied the motion, reasoning SASPA was a civil statute designed to protect sexual assault victims and did not violate the ex post facto clause. Thereafter, having heard credible testimony from plaintiff that defendant had intercourse with her in 2005, the Family Part judge concluded the 2005 intercourse was a sexual assault and was a predicate act triggering the right to SASPA protection. On April 19, 2017, the court entered an order of protection. Consequently, the entry of such order against defendant constituted a parole violation, which triggered the revocation of defendant's parole.[1]

         On June 21, 2017, the Family Part judge denied defendant's motion for reconsideration. This appeal followed. On July 14, 2017, we denied defendant's application for a stay pending appeal.

         On appeal, defendant argues the Family Part judge erred by entering a SASPA order because SASPA requires a predicate act to have occurred after its enactment, not before. He argues the protective order imposed an ex post facto penalty and SASPA was unconstitutionally applied.

         We are constrained to agree with defendant's statutory interpretation argument and therefore do not reach his constitutional argument. SASPA cannot be used to impose a restraining order on defendant based on conduct that occurred before SASPA's effective date. SASPA does not permit such retroactive application. We do not fault the good intentions of the Family Part judge; however, the court's reliance upon the 2005 assault as a predicate for the 2017 order of protection was error.

         "We have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.Super. 551, 577 (App. Div. 2010). We defer to the factual findings of the Family Part judge because of her opportunity to make first-hand credibility judgments about the witnesses who appeared on the stand. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, ...


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