S.M. v. J.O NO. A-1691-09T3 Prevention of Domestic Violence Act (DV Act), N.J.S.A. 2C:25-17 to -35

S.M., Plaintiff-Respondent,

v. J.O.,

Defendant-Appellant. ____________________________________

Submitted January 25, 2011 - Decided April 7, 2011 Before Judges Carchman and Waugh.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-3394-09Y.

Law Offices of Dwight H. Simon Day, LLC, attorneys for appellant (Dwight H. Simon Day, on the brief).

Lowenstein Sandler, PC, attorneys for respondent (Michael David Lichtenstein and Priya R. Masilamani, of counsel and on the brief).

PER CURIAM Defendant J.O. (Jerome)1 appeals from the final restraining

order (FRO) entered by the Family Part pursuant to the

1 pseudonyms.

For the sake of convenience, we refer to the parties by

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1691-09T3

Prevention of Domestic Violence Act (DV Act), N.J.S.A. 2C:25-17 to -35. We affirm.

I. We discern the following facts and procedural history from

the record on appeal. S.M. (Sarah) and Jerome were in a dating relationship from

October 2007 until April 2008. On April 3, 2008, Jerome was watching Sarah's four-year old son, J.H. (Jason). The following morning, when Sarah picked Jason up from Jerome's residence, he was bruised and ill. Jason died a few hours later.

Jerome was arrested and charged with aggravated manslaughter in connection with Jason's death. Sarah then ceased all contact with Jerome. She told his parents that she did not want to be contacted by them or him. In June 2008, Jerome was released on bail pending trial.

On June 25, 2009, Sarah filed a complaint against Jerome, seeking the protection of the DV Act. The complaint alleged that, at 7:30 p.m. on June 23, 2009, Jerome

harassed her by coming to her residence unannounced and uninvited with two other male friends. When [Sarah] exited from her car [Jerome] and his friends began looking into her car. [Sarah's] neighbor then approached [Jerome] who quickly ran into his vehicle and drove past [Sarah], looking at [her] in a menacing manner.

2

A-1691-09T3

Sarah also alleged that Jerome had "also been seen on numerous occasions, driving by her grandmother's home" and had been seen by her neighbor driving by Sarah's car and house. A temporary restraining order was issued on the basis of Sarah's complaint.

The plenary hearing was held on August 11, 2009. Sarah testified that she was living with her mother in Belleville when Jerome was released from jail in late June 2008. About a week after his release, Sarah saw him, accompanied by his father and three other men, at a Quick Check store across the street from her mother's home. She testified that Jerome looked across the street at the house, went into the store, and then continued to look across the street at the house after exiting the store. Sarah observed him standing outside her mother's home for approximately five minutes.

Sarah moved to her grandmother's house in Newark after seeing Jerome near her mother's home. After he also appeared near her grandmother's home, Sarah moved to her father and stepmother's home in Bayonne. Jerome subsequently appeared near the residence in Bayonne.

Sarah testified that she had not provided Jerome with the address, and that she had told her family not to inform him where she was residing. Sarah stated that she moved from

3

A-1691-09T3

Bayonne back to Newark in October 2008 because she was afraid of Jerome.

Sarah further testified that she was walking to her house in Newark on June 23, 2009, when she saw Jerome and a friend in a car parked near the front of her house. According to Sarah, they "were with another car as well. You could tell they were together, like they [were] making noise and all this stuff. And I looked at him and he looked at me in a menacing way, and he smiled like yea, I know where you live now." Jerome and his friends then drove away.

That same evening, shortly after Sarah went into the house, her neighbor, J.G. (Jeff), informed her that he had just seen people around her car. Jeff testified that, as he was parking on the same street that Sarah had parked on, he observed two cars double-parked around her car. Jeff asked the three men standing around Sarah's car what they were doing. They responded that the car was not his, and drove away. Jeff identified Jerome as the passenger in one of the cars. He testified that he recognized one of the cars based on a sticker on the back of the car, and that he had seen the car in the neighborhood three or four times between late May and mid-July 2009. Jeff testified that he had not seen Jerome in the area prior to May 2009.

4

A-1691-09T3

Sarah told the judge that she was seeking the FRO because she was "afraid for [her] life." She told the judge that she had testified before the grand jury that returned the indictment charging Jerome with aggravated manslaughter. In addition, she was scheduled to testify for the prosecution in Jerome's trial.2

Sarah's brother, A.M. (Alex), testified that Jerome approached him during the summer of 2008 and asked him where Sarah was residing. Alex also maintained that he refused to tell Jerome where Sarah was living because she had told him not to disclose her address.

D.F. (Denise), the sister of Sarah's boyfriend, testified that she encountered Jerome while she was driving at some point prior to June 23. According to Denise, Jerome had followed her when she left her brother's home, tailgating her as she drove. He then pulled up next to her car, looked at her, and laughed.

At the close of Sarah's case, Jerome moved for a directed verdict. The motion was denied. He then testified on his own behalf, but generally limited the specifics of his testimony to his whereabouts on June 23, 2009. According to Jerome, he worked until 8:00 p.m. that day, and he did not see Sarah. He

2 According to Sarah's brief, Jerome pled guilty to second-degree manslaughter in March 2010 and was sentenced to seven years in prison.

5

A-1691-09T3

denied that he had seen Sarah since his release from prison, but admitted that he had spoken to Alex after his release from jail.

After hearing testimony, the judge reserved decision so that she could determine whether there was a "no-contact order" as a condition of Jerome's bail. In an oral decision delivered on October 5, 2009, the judge found that entry of a FRO was warranted. She noted that Jerome's bail order had only recently been amended to include a no-contact provision, prohibiting him from contacting Sarah. The judge found that the testimony of Alex was not credible. She also found that no history of domestic violence existed between the parties prior to Jason's death.

The judge concluded that Jerome's actions from summer 2008 through summer 2009, as alleged by Sarah, constituted a "continuum of acts designed to harass or intimidate the plaintiff." She also found that Jerome knew or had reason to know that Sarah did not want to be contacted by him, but that he continually appeared in the vicinity of Sarah's residence despite her relocation three to four times since April 2008.

The FRO prohibiting Jerome from contacting or communicating with Sarah, her family members, and whomever she was residing with was entered on October 27, 2009. This appeal followed.

6

A-1691-09T3

II. On appeal, Jerome contends that there was insufficient

credible evidence to support the trial judge's finding that he harassed and stalked Sarah. He further contends that the judge erred by admitting a hearsay statement made by Sarah, and by relying on facts asserted in her counsel's letter amending the complaint to allege stalking.

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

The DV Act provides protection for "victims of domestic violence," including "any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship." N.J.S.A. 2C:25-19(d). The parties had such a relationship, so the DV Act is applicable.

7

A-1691-09T3

In adjudicating a domestic violence case, the trial judge has a two-fold task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Ibid. "The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim." Id. at 126.

In finding that Jerome had engaged in harassment, the trial judge outlined her reasons as follows:

Still, consistent with Cesare, [supra, 154 N.J. 394] while a single sufficiently egregious action may constitute domestic violence, even if there is no history of abuse between the parties, the [c]ourt may also determine that an ambiguous incident qualifies as domestic violence based on a finding of previous acts of violence. The [c]ourt does not here find a previous act or history of domestic violence. The [c]ourt does regard the . . . actions by the defendant . . . to be one unbroken continuum of acts designed to harass or intimidate the plaintiff.

. . . [A]lthough it's clear that a pattern of abusive and controlling behavior is a classic characteristic of domestic violence, the need for an Order of Protection upon the commission of the predicate [act] of domestic violence may arise even in the absence of such a pattern where there is one sufficiently egregious action once a finding has been made that a

8

A-1691-09T3

predicate act of domestic violence has occurred.

In her complaint, Sarah alleged that Jerome engaged in harassment, as defined in N.J.S.A. 2C:33-4. That statute defines harassment, in relevant part, as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; [or]

....

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4.]3 Harassment is one of the predicate offenses listed in the DV Act. N.J.S.A. 2C:25-19(a)(13).

Under the facts of this case, Sarah was required to show (1) that Jerome acted with a purpose to harass; and (2) the occurrence of an act prohibited by subsection (a) or (c) of N.J.S.A. 2C:33-4. Cannel, N.J. Criminal Code Annotated, comment

3

There was no allegation that Jerome engaged in the type of conduct that falls within N.J.S.A. 2C:33-4(b) ("striking, kicking, shoving, or other offensive touching, or threatens to do so").

9

A-1691-09T3

3 on N.J.S.A. 2C:33-4 (2010). Jerome maintains the trial judge erred in finding that he had a purpose to harass and that he committed an act prohibited by subsection (a) or (c). We disagree.

Proof of a purpose to harass is an essential element of N.J.S.A. 2C:33-4. See L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). "'A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result.'" State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)). There must be proof that a defendant's conscious object was to "annoy," "torment," "wear out," or "exhaust." State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (quoting Webster's II New College Dictionary 504 (1995) (internal quotation marks omitted)), certif. denied, 188 N.J. 577 (2006). Merely knowing that someone would be annoyed, as opposed to having a conscious objective to annoy, is insufficient to prove a purpose to harass. See State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989).

"A finding of a purpose to harass may be inferred from the evidence presented," and "[c]ommon sense and experience may inform that determination." Hoffman, supra, 149 N.J. at 577. Because direct proof of intent is often absent, "purpose may and

10

A-1691-09T3

often must be inferred from what is said and done and the surrounding circumstances," and "[p]rior conduct and statements may be relevant to and support an inference of purpose." Castagna, supra, 387 N.J. Super. at 606. See also State v. Avena, 281 N.J. Super. 327, 340 (App. Div. 1995) ("While [the appellate court] might or might not have made the same inferences, [its] role is one of determining whether the trial judge's inferences were rationally based on evidence in the record.").

In considering whether a party's conduct rises to the level of harassment, the trial courts should consider any prior history of domestic violence and must "'weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard.'" Pazienza v. Camarata, 381 N.J. Super. 173, 183 (App. Div. 2005) (quoting Cesare, supra, 154 N.J. at 405). Further,

consideration of prior communications and conduct is not only permitted but required in the domestic violence context. "In determining whether a defendant's conduct is likely to cause the required annoyance or alarm to the victim, that defendant's past conduct toward the victim and the relationship's history must be taken into account. The incidents under scrutiny must be examined in light of the totality of the circumstances." State v. Hoffman, 149 N.J. 564, 585 (1997).

[Pazienza, supra, 381 N.J. Super. at 183-84.] 11

A-1691-09T3

Here, the trial judge found that there was no history of domestic violence prior to Jason's death, which ended the parties' relationship. Nevertheless, she concluded that Jerome's actions between June 2008, when Jerome was released on bail, and June 2009, when the TRO was issued, constituted "one unbroken continuum of acts designed to harass or intimidate the plaintiff." It is apparent from her decision that the judge found Sarah's testimony, as well as that of her neighbor Jeff, to be credible.

It was reasonable for the judge to conclude, based on the testimony she found credible and in light of the criminal charges pending against Jerome and Sarah's role as a likely trial witness, that Jerome's continued appearances at her various residences evidenced a purpose to harass Sarah. Hoffman, supra, 149 N.J. at 577; Castagna, supra, 387 N.J. Super. at 606.

We next turn to the issue of whether there was sufficient proof that Jerome engaged in conduct encompassed by N.J.S.A. 2C:33-4(a) or (c). There were no allegations of direct communication by Jerome. We are reluctant to hold that conduct such as Jerome's cannot constitute a communication within the meaning of N.J.S.A. 2C:33-4(a), which states that a person commits harassment if he "[m]akes, or causes to be made, a

12

A-1691-09T3

communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm." However, because we conclude that Jerome’s conduct matches the provisions of N.J.S.A. 2C:33-4(c) most closely, we focus on that provision.

N.J.S.A. 2C:33-4(c) provides that an act of harassment is committed if, with purpose to harass another, a person "[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." The record on this appeal, “examined in light of the totality of the circumstances," Hoffman, supra, 149 N.J. at 585, fully supports a finding of harassment under subsection (c).

Finally, under the circumstances of the case, especially Sarah's potential role as a witness against Jerome and his continued course of conduct in appearing at her residence each time she moved to a new one, we are satisfied that there was sufficient credible evidence to support the judge's finding that the FRO was necessary to protect Sarah from immediate danger or further acts of domestic violence. Silver, supra, 387 N.J. Super. at 126-27.

Because we have found a sufficient basis for the issuance of the FRO predicated on harassment, we need not dwell on the

13

A-1691-09T3

issue of stalking, which is a predicate act under 2C:25-19(a)(14). It is defined as follows:

A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.

[N.J.S.A. 2C:12-10(b).] "Course of conduct" is defined, in relevant part, as

repeatedly[4] maintaining a visual or physical proximity to a person; directly, indirectly, or through third parties, by any action . . . or means, following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person's property; repeatedly committing harassment against a person; . . . or threats implied by conduct.

N.J.S.A.

N.J.S.A. 2C:12-10(a)(1). "Cause a reasonable person means "to cause fear which a reasonable victim, similarly situated, would have under the circumstances." N.J.S.A. 2C:12- 10(a)(4).

to fear"

Jerome argues that there was insufficient proof that he purposefully engaged in a course of conduct that would cause a reasonable person to become fearful. We disagree.

4 2C:12-10(a)(2).

"Repeatedly" is defined as "two or more occasions." N.J.S.A.

14

A-1691-09T3

N.J.S.A. 2C:12-10 was "intended to protect victims who are repeatedly followed and threatened." H.E.S. v. J.C.S., 175 N.J. 309, 328 (2003) (citation omitted) (internal quotation marks omitted). In State v. Gandhi, 201 N.J. 161, 186 (2010) (quoting H.E.S., supra, 175 N.J. at 329), the Supreme Court held that the elements of stalking were satisfied when:

1) defendant engaged in speech or conduct that was directed at or toward a person, 2) that speech or conduct occurred on at least two occasions, 3) defendant purposely engaged in speech or a course of conduct that is capable of causing a reasonable person to fear for herself or her immediate family bodily injury or death.

A defendant need not have "purposefully or knowingly intended that his course of conduct would cause a reasonable victim to fear bodily injury or death." Gandhi, supra, 201 N.J. at 187. It is sufficient that the defendant "purposefully or knowingly engag[ed] in a course of conduct, as defined in N.J.S.A. 2C:12- 10(a)(1), that would cause such fear in an objectively reasonable person." Ibid.

Because it was likely that Sarah would testify as a witness against Jerome in his manslaughter trial, we are satisfied that the facts supporting the finding of harassment also support the finding of stalking. A reasonable person in Sarah's position, who had changed her residence several times to avoid visits by

15

A-1691-09T3

Jerome, against whom she was scheduled to testify at a criminal trial, would quite reasonably fear bodily injury.

We have reviewed the remaining issues raised on appeal and found them to be without merit. They do not warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We observe only the following.

Sarah's testimony concerning what she told Jerome's relatives was not hearsay, because it was offered for the fact that she told them and not for the truth of her statement to them. "'[I]f evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial.'" Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007) (quoting State v. Long, 173 N.J. 138, 152 (2002)).

Additionally, the judge's findings of fact were based on the testimony given at the hearing, rather than the content of counsel's letter about the amendment to the complaint. We are satisfied that the judge read the letter into the record solely to provide a complete record of the amendment.

Affirmed.

16

A-1691-09T3