DV reversed where judge excuded defendant’s evidence S.S.S. v. M.A.G.

DV reversed where judge excuded defendant’s evidence S.S.S. v. M.A.G.

Argued September 29, 2010 - Decided

Before Judges Wefing and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-0710-10.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1623-09T2

PER CURIAM

Defendant, M.A.G., appeals from the final restraining order (FRO) entered against him on October 23, 2009, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The order barred him from having any contact with plaintiff, S.S.S., and directed him to stay away from her home, her job and from Rutgers-Newark where she was a student. We reverse and remand for a new trial due to the improper exclusion of evidence that was critical to M.A.G.'s defense.

I.

On October 19, 2009, plaintiff filed a domestic violence complaint in which she alleged:

The plaintiff and defendant were in a dating relationship but have been apart since December of 2008. On October 5th of this year [2009], the defendant came to the plaintiff's school w[h]ere he grabbed her arm and pushed her into a wall. The defendant has been calling the plaintiff and texting her since the October 5th incident and has made comments that the plaintiff and her current boyfriend will find out what is going to happen to them, which the plaintiff feels is a threat of harm.

Below the narrative section, the form contained the following preprinted language:

Which constitute(s) the following criminal offense(s). (Check all applicable boxes).

Of the fourteen possible boxes, the only box marked with a check was "harassment." "Assault" was not checked even though it was one of the fourteen boxes.

In the section of the complaint stating "Any prior history of domestic violence reported or unreported? If yes, explain," the complaint stated "[t]he defendant sexually assaulted the plaintiff in August 2007 which was not reported to the police. The defendant has pushed the plaintiff and pulled the plaintiff's hair numerous times during their past relationship." A judge granted plaintiff a temporary restraining order upon the filing of the complaint, and the TRO was served on defendant the same day. The complaint notified him that a final hearing was scheduled four days later, October 23, 2009.

On the scheduled date, both parties appeared pro se. Plaintiff testified that on October 4, 2009, defendant called her asking to speak with her the next day, which she assumed concerned their visitation the next day with the daughter they had given up for adoption. She agreed to meet with him.
On October 5, at the pre-arranged time, plaintiff left her classroom at Rutgers-Newark and walked outside, where she entered defendant's car. Despite her insistence that she needed to return to her class and had only a few minutes to spare, defendant drove to a motel. According to plaintiff, once they arrived at the motel, he took her cell phone from her and observed that she had been recently "speaking to a whole bunch of guys." He then "cursed [her] out, call[ing] [her] a whore and slut." Next, defendant "grabbed plaintiff by the arm and shoved her against the bedboard causing a bruise. According to plaintiff, defendant picked her up at school in Newark at 9:00 a.m.; the assault occurred in Jersey City at 9:30; and defendant returned her to school in Newark at 10:00.

Although plaintiff intended to immediately seek a TRO, her parents encouraged her to speak to her priest first. Over the next two weeks, defendant sent numerous text messages to plaintiff on her cell phone. She responded by repeatedly telling him to leave her alone. When defendant's attempts to speak to her became more frequent, plaintiff asked her boyfriend, Jorge Morales, to call defendant and tell him to leave her alone. Morales spoke to defendant, telling him that plaintiff would press charges against him unless he stopped calling.

According to plaintiff, on the morning of October 19, 2009, defendant sent her a text message which said, "tell your M-F'n dumbass boyfriend to call me . . . and be a man and you'll see what's going to happen to you." Defendant's statement made her "nervous," and caused her to change her telephone number. She filed the domestic violent complaint, and sought the TRO, that same day.

Defendant asserted that plaintiff's testimony was "all a lie" and nothing had happened. He also offered the judge a letter written by his employer, apparently stating the company's records showed that defendant arrived at work at 8:35 a.m. on October 5, 2009 and left work at 5:00 p.m. The judge refused to accept the letter because it was hearsay.

Defendant then offered in evidence his E-ZPass records showing that he crossed the Bayonne Bridge into Brooklyn at 8:16 a.m. According to defendant it was impossible for him to cross the Bayonne Bridge at 8:16 a.m., arrive at work at 8:35 a.m. and be able to arrive at Rutgers-Newark to pick plaintiff up by 9:00 a.m. The judge refused to accept the E-ZPass records stating, "it doesn't necessarily flow that way." The judge likewise refused to accept defendant's cell phone records, telling him he "could have used any other phone" to call plaintiff. When defendant asked the judge if the judge wanted him to bring a CD of the surveillance camera at his place of employment that would show what time he arrived and what time he left on October 5, 2009, the judge answered "this is your trial date. Today is your hearing date. It's not like I want you to do certain things. This is not -- I'm not asking you to do anything. This is -- these are your proofs."

After making detailed credibility findings, in which he explained why plaintiff was credible and defendant was not, the judge found that defendant assaulted plaintiff on October 5, 2009. He stated:

. . . [Plaintiff] seeks to be left alone. In fact, she was patient about not proceeding with the complaint, but was forced by the defendant because of his continued attempt to contact her and he does not understand that no means no. . . .

So the conduct of the defendant, as the court finds the testimony of the plaintiff credible, is in the nature of an assault. And an assault is one of 14 acts that was included in the Prevention of Domestic Violence Act.

In this case, the grabbing of the arm, causing her pain, exercising control over her, pushing her against the bed board, causing pain to her with the force of his hand as he was pushing her, impacting the pin she had on her chest.

[The testimony] [m]eets the requirement of an assault under the statute. . . . The court finds that she has met her burden of proof by a preponderance of the evidence that the defendant committed the act of assault upon her on the 5th of October, 2009.

The judge also found that the entry of an FRO was necessary to protect plaintiff from further acts of domestic violence:

Therefore, the court finds that defendant is guilty of an act of domestic violence. Her request that she be left alone ha[s] not been observed. His insistence, in this case, requires that the court issue a final restraining order for her protection. And the court will do so.

After the judge made his findings and was about to sign the FRO, defendant asked the judge if he could telephone his employer who, according to defendant, could reach the courthouse in twenty minutes. The judge told defendant it was already 4:10 p.m. and the hearing was over, and therefore the court would not accept any further testimony.

On appeal, defendant raises the following claims:

I. THIS COURT MUST REVERSE BECAUSE [THE] JUDGE . . . DID NOT FIND THAT [PLAINTIFF] PERCEIVED [DEFENDANT] TO BE AN IMMEDIATE THREAT TO PERSON OR PROPERTY.

II. THIS COURT MUST REVERSE BECAUSE [THE] JUDGE . . . ERRED BY REFUSING TO ADMIT INTO EVIDENCE [DEFENDANT'S] E-ZPASS RECORDS.

III. THIS COURT MUST REVERSE BECAUSE THE DUE PROCESS RIGHTS OF THE PRO SE DEFENDANT WERE VIOLATED BY THE COURT'S DENIAL OF AN OVERNIGHT CONTINUANCE TO PERMIT [DEFENDANT] TO PRESENT A WITNESS TO REFUTE CHARGES RAISED FOR THE FIRST TIME DURING TRIAL.

IV. THE COURT MUST REVERSE THE JUDGMENT BECAUSE THE FAMILY PART SUA SPONTE AMENDED THE COMPLAINT TO PLEAD ASSAULT WITHOUT GIVING [DEFENDANT] NOTICE OF THE CHARGE OR AN OPPORTUNITY TO DEFEND.

V. THIS COURT MUST REVERSE THE JUDGMENT BECAUSE THE PLAINTIFF DID NOT SATISFY HER BURDEN OF PERSUASION.

II.

We begin our analysis with Point III, in which defendant maintains that because the E-ZPass records that he sought to admit in evidence were admissible as an exception to the hearsay rule, the judge abused his discretion in refusing to consider those records. We agree. N.J.R.E. 803(c)(6) provides that a business record is admissible as an exception to the hearsay rule, provided that the writing was "made at or near" the time in question, was prepared in the "regular course of business" and it was the "regular practice of that business" to keep such a record. Business records maintained in a computer system are not treated differently from hard copies merely because they are stored electronically. Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 15 (App. Div. 1996). Although no reported decision has ever considered whether E-ZPass records qualify as a business record under N.J.R.E. 803(c)(6), such records are not qualitatively different from the many records that have been so admitted. See Garden State Bank v. Graef, 341 N.J. Super. 241, 245 (App. Div. 2001) (bank's computer printouts of customer's loan history qualified as a business record); State v. Vogt, 130 N.J. Super. 465, 468 (App. Div. 1974) (I.B.M. computer cards on which telephone tracing equipment had recorded time and originating telephone number of allegedly annoying telephone calls admissible as a business record); Hackensack Hosp. v. Tiajoloff, 85 N.J. Super. 417 (App. Div. 1964) (hospital books of account showing services rendered admissible to prove that services were rendered as stated in the account), certif. denied, 44 N.J. 396 (1965).

The E-ZPass records defendant offered in evidence satisfy the criteria of N.J.R.E. 803(c)(6) because: each entry is compiled at the precise time the vehicle passes through the E-ZPass toll location, i.e., "at or near the time of observation," N.J.R.E. 803(c)(6); and such record is compiled in the ordinary course of the system E-ZPass uses to collect toll revenue, i.e., "in the ordinary course of business and it was the regular practice of that business to make [the record]," ibid. The judged erred when he ruled that defendant's E-ZPass records were inadmissible hearsay.

This error was costly to defendant, as it denied him the opportunity to prove that he could not have been in Jersey City at the time he supposedly assaulted plaintiff at the motel. We are not inclined to view this error as harmless. The evidence produced at trial was a classic "he said-she said" dispute, with neither party presenting any witnesses or exhibits to substantiate his or her version of events. Under such circumstances, the wrongful exclusion of defendant's E-ZPass records had the clear capacity to produce an unjust result. See R. 2:10-2. We thus reverse the entry of the FRO and remand for a new trial. If, during the retrial, defendant again seeks to admit his E-ZPass records, the court shall not exclude them as inadmissible hearsay. Defendant shall be required, however, to lay the necessary foundation. See N.J.R.E. 901.

III.

In light of our determination that the exclusion of defendant's E-ZPass records constituted reversible error, it is not necessary for us to address defendant's remaining contentions. For the sake of completeness, we nonetheless will briefly address defendant's contention in Point IV that he was denied a fair trial when the judge sua sponte amended the complaint from a charge of harassment to a charge of assault. Relying on the Court's decision in H.E.S. v. J.C.S., 175 N.J. 309, 324-25 (2003), and our decision in J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998), defendant asserts that his due process rights were violated when he was forced to confront an assault charge even though the only box checked on the complaint was harassment.

Defendant's argument is unconvincing. In both H.E.S., 175 N.J. at 324-25, and J.F., 308 N.J. Super. at 391, the plaintiff was permitted to testify to acts of domestic violence not even mentioned in the complaint. Here, in contrast, the facts pertaining to the October 5, 2009 assault were contained in the complaint that was served upon defendant. The only defect here was that instead of both the "assault" and "harassment" boxes being marked with a check on the face of the domestic violence complaint, only "harassment" was marked. Nonetheless, the narrative portion of the complaint described the alleged October 5, 2009 assault in detail.

Moreover, the record demonstrates defendant was not surprised by the fact that he would need to defend himself not only against the allegation he had assaulted plaintiff but also that he had harassed her by making a number of phone calls, one of which included a threat. At the trial, defendant attempted to introduce in evidence a letter from his employer attesting to his presence at work all day on October 5, 2009. Obviously, that letter was intended as alibi evidence to defend against the assault charge. It had nothing to do with any of the telephone calls defendant allegedly made in the aftermath of October 5, 2009. Therefore, the fact that defendant brought with him a letter to court from his employer demonstrates that he was not surprised by, and indeed was well aware of, the fact that he was facing an assault charge, and a harassment charge, as the predicate acts.

"Due process requires that a finding of domestic violence be based upon the act or acts of domestic violence alleged in the complaint." Pazienza v. Camarata, 381 N.J. Super. 173, 184 (App. Div. 2005). Clearly, the "act" of assault was specified in plaintiff's complaint. Plaintiff's testimony as to the events of October 5, 2009 was consistent with the allegations on the face of her complaint. Therefore, defendant had sufficient notice and an opportunity to prepare his defense. We reject defendant's claim, raised in Point IV, that his due process rights were violated when the judge found him guilty of assault even though the box next to assault on the preprinted complaint had not been marked.

IV.

Reversed and remanded for a new trial.