STATE OF NEW JERSEY v. JAMES DIGABRIELE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1851-05T51851-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES DIGABRIELE,

Defendant-Appellant.

_____________________________________________________________

 

Argued September 26, 2006 - Decided December 7, 2006

Before Judges Weissbard, Payne and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, FD-07-448-05.

Barry A. Kozyra argued the cause for appellant

(Kozyra & Hartz, attorneys; Mr. Kozyra, of

counsel; Mr. Kozyra and Raj Gadhok, on the brief).

Leeann Cunningham, Assistant Prosecutor, argued

the cause for respondent (Paula T. Dow, Essex

County Prosecutor, attorney; Ms. Cunningham, of

counsel and on the brief).

PER CURIAM

Defendant, James DiGabriele, appeals from a disorderly persons contempt conviction for knowingly violating a final domestic violence restraining order (FRO). N.J.S.A. 2C:29-9(b). He was sentenced to a six-month suspended jail term and ordered to pay penalty assessments totaling $125 to the Victims of Crime Compensation Board and the Safe Neighborhoods Services Fund.

Defendant presents the following arguments:

POINT I

THE TRIAL COURT SHOULD HAVE DRAWN A NEGATIVE INFERENCE FOR THE STATE'S FAILURE TO ANSWER DISCOVERY REQUESTS AND DEBELLIS' REFUSAL TO PRODUCE DOCUMENTS AS TO THE SEPTEMBER 2 INCIDENT.

POINT II

THE TRIAL COURT MISAPPLIED THE HOLDING IN STATE V. MONTIJO INVOLVING NEGLIGENTLY DESTROYED EVIDENCE TO THE MATTER SUB JUDICE WHICH INVOLVED THE STATE'S UNEXPLAINED REFUSAL TO RESPOND TO AND PRODUCE DISCOVERY.

POINT III

THE TRIAL COURT IMPROPERLY INTERFERED WITH ATTEMPTS TO PRESENT A DEFENSE TO THE CHARGE AND TO CHALLENGES TO THE CREDIBILITY OF THE COMPLAINING WITNESS WHICH DEPRIVED MR. DIGABRIELE OF A FAIR TRIAL.

POINT IV

THE STATE FAILED TO PROVE MR. DIGABRIELE'S KNOWLEDGE OF THE FRO'S CONTENTS ON SEPTEMBER 2, 2005 BY PROOF BEYOND A REASONABLE DOUBT.

POINT V

THE STATE FAILED TO PROVE IDENTIFICATION OF THE DEFENDANT ON SEPTEMBER 2, 2005 BY PROOF BEYOND A REASONABLE DOUBT.

POINT VI

MR. DIGABRIELE'S ALLEGED CONDUCT DID NOT RISE TO THE LEVEL OF A CRIMINAL CONTEMPT VIOLATION AND THE TRIAL COURT SHOULD HAVE GRANTED THE MOTION TO DISMISS OR TRANSFER THE APPLICATION TO THE ASSIGNMENT JUDGE.

POINT VII

THE TRIAL COURT'S CUMULATIVE ERRORS TAINTED MR. DIGABRIELE'S RIGHT TO A FAIR TRIAL AND THEREFORE REQUIRES REVERSAL OF THE VERDICT AND REMAND FOR RELIEF AS MAY BE DIRECTED BY THE COURT.

After reviewing the record and the applicable law, we are satisfied defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). But a few comments are in order.

On October 24, 2000, after the parties were divorced, Ms. DeBellis filed a domestic violence complaint and she was granted a temporary domestic violence restraining order. Following a hearing on February 14, 2001, the trial court entered the FRO, which prohibits defendant "from having any (oral, written, personal or other) form of contact or communication" with Ms. DeBellis. The FRO contains the following handwritten comments:

Angelo Sarno, Esq. for [defendant] and George Schneider, Esq. for [plaintiff]. Both parties are present. Charges sustained as to an act of assault.

Defendant shall remain at least one block away from plaintiff at all times, except plaintiff and defendant may be together in order to attend therapy with [their son] Daniel.

Defendant was initially charged with contempt for contacting Ms. DeBellis on her cell phone on December 14, 2004. Defendant was arrested and released after posting bail in the amount of $530. This matter was originally scheduled for trial on June 24, 2005, but the trial was adjourned until July 29, 2005. On July 29, 2005, the trial was again adjourned until September 2, 2005. The scheduling orders dated June 24, 2005, and July 29, 2005, state that defendant and his current attorney, Barry Kozyra, were both present in court when the orders were entered.

Defendant was also charged with contempt for violating the FRO on September 2, 2005. On that date, Ms. DeBellis alleged that while she was sitting in the hallway outside of Judge Petrolle's courtroom waiting for the initial contempt charge to be tried, defendant approached her, cursed at her, and threatened to make her life miserable. This resulted in the signing of a second contempt charge. By agreement, the two contempt charges were consolidated for trial, which took place on October 21, 25, and November 10, 2005.

Ms. DeBellis and defendant's father were the only two trial witnesses. Defendant's father, who has the same name as his son, testified he was the person who placed the telephone call to Ms. DeBellis on December 14, 2004. He also testified he was present with his son at the courthouse on September 2, 2005, and he denied that his son said anything to Ms. DeBellis. At the conclusion of the trial, the court determined that defendant was guilty of contempt for violating the FRO on September 2, 2005, but defendant was found not guilty of violating the FRO on December 14, 2004. The trial court's findings and conclusions included the following:

Now in connection with the December 14th testimony, we also have the testimony of James DiGabriele, the father of the defendant, who says that he made the phone call. And in connection with the events of September 2nd, we have the testimony of James DiGabriele, the father of the defendant, who says that he was present with the defendant and the defendant did not approach Ms. DeBellis.

Now there's a question in my mind in light of the nature of the phone call, a brief exchange about who it was, and then a hang up, in what Ms. DeBellis says in the face of some cursing on the phone, I don't recall her being specific about what the cursing was. We have the contradictory testimony of . . . the father.

We have something else that is of concern to the [c]ourt. We have the contention . . . that this phone call was a phone call that was an incident in a practice of telephone calls being exchanged between the parties.

It's no doubt that the restraining order prohibits the phone call, but in human relationships, especially where there's a child involved, the [c]ourts appear to recognize that there will be some phone calls and Ms. DeBellis testified that there was a practice concerning phone calls.

. . . .

[W]hether [the father] made the phone call or the defendant made the phone call doesn't become an issue for the [c]ourt because what's disturbing to the [c]ourt is the refusal, the suppression of the [telephone records] by the witness, not by the State . . . but by their witness of information that would have been readily available that she even admitted she had and didn't produce. That raises for this court a doubt as to whether that phone call should not be treated as part of a regular practice.

. . . .

Not every contact is a violation of a restraining order. And in this case in light of all I've said, I find this defendant not guilty of the complaint for the phone call on . . . December 14th, 2004.

On the other hand, let me make it very clear, I recognize the love a father has for his son and I respect it. It may be that [the father] remembers making that phone call, I don't know. Looking at the September 2nd, 2005 [incident], it may be that he doesn't remember his son getting up and walking away from him. But I believe the testimony of Ms. DeBellis that [defendant] got up, walked over to her, addressed her, and said to her, you're a fucking nut, I'm going to make your life miserable. And I believe that's a violation of the restraining order. It certainly can only be by its word referred to being purposeful and knowing.

. . . Under the circumstances, I find that claim by Ms. DeBellis to be a credible claim. I don't doubt that the phone call for December 14th was made, it's the manner in which it should be treated that leads me to the conclusion that the defendant is not guilty on that complaint.

I have no doubt that the testimony given by Ms. DeBellis is the truth as to what occurred on the 2nd of September, 2005 and for that reason I find beyond a reasonable doubt that the defendant is guilty of that offense.

The scope of our review is limited. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). We should only intervene if we are thoroughly satisfied that the trial judge's finding is clearly mistaken and "so plainly unwarranted that the interests of justice demand intervention and correction." Id. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). In this case, the trial court's credibility findings were critical to its ultimate determination that defendant violated the FRO on September 2, 2005. The trial court's findings and credibility assessments are amply supported by the record and are binding on us. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

We reject defendant's argument that the State failed to prove "identification of the defendant on September 2, 2005, by proof beyond a reasonable doubt." Prior to their divorce, the parties were married for approximately three years, and Ms. DeBellis testified defendant was her former husband. The record fully supports the trial court's determination that the State proved beyond a reasonable doubt that defendant violated the FRO on September 2, 2005.

We are also in agreement with the trial court's determination that defendant knowingly violated the FRO on September 2, 2005. As noted by the trial court: (1) defendant was present in court with his attorney when the FRO was issued on February 14, 2001, (2) defendant was unsuccessful in his attempt to have the FRO dissolved, and (3) defendant was arrested and charged with violating the FRO on December 14, 2004. In light of these circumstances, defendant was undoubtedly aware of the FRO on September 2, 2005.

As for the State's alleged discovery violation, defendant failed to demonstrate that any exculpatory information was improperly withheld by the State. There is no proof that the State ever possessed "any audio tapes or video tapes" regarding the events that occurred on September 2, 2005, and there is no way of knowing whether such tapes, if any, would have provided exculpatory evidence. See State v. Montijo, 320 N.J. Super. 483, 493 (Law Div. 1998) ("[P]ermitting an adverse inference, would simply perpetuate the fiction that the [discovery information] was in fact exculpatory, a conclusion which is not only unknowable but questionable at best.").

As for the telephone records regarding the call made to Debbie Cannella at the Essex County Prosecutor's office on September 2, 2005, the assistant prosecutor represented to the court that "Ms. Cannella, Debbie Cannella, is on call as a possible rebuttal witness. Mr. Kozyra is aware of that because he has already spoken with her." Although Ms. Cannella was available to testify for either defendant or the State, defendant elected not to call her as a witness. This suggests that Ms. Cannella (and the telephone records requested by defendant) would not have contradicted Ms. DeBellis's testimony.

Lastly, the record confirms that defendant's de minimis claim is procedurally barred because he elected to proceed to trial rather than request an adjournment to allow him to file an appropriate motion with the assignment judge. See N.J.S.A. 2C:2-11. If we were to address the issue, however, we are satisfied that defendant's argument that his "conduct did not rise to the level of a criminal contempt violation" is without merit. The very purpose of the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, is to protect victims of domestic violence from abuse, which includes verbal abuse, harassment, and threats. See N.J.S.A. 2C:25-19; Cesare, supra, 154 N.J. at 401; Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Short of inflicting physical harm, there is little defendant could have done that would have fit more squarely within the Act's proscriptions.

Affirmed.

 

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A-1851-05T5

December 7, 2006