Submitted October 11, 2018
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.
Judges Simonelli, Whipple and DeAlmeida.
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.
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.
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.
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
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, 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.
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.
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, ...