JOYCE BODNAR v. PERRY SPERENDI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2833-04T12833-04T1

JOYCE BODNAR,

Plaintiff-Respondent,

vs.

PERRY SPERENDI,

Defendant-Appellant.

__________________________________

 

Argued: January 30, 2006 - Decided February 22, 2006

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Monmouth County, Docket No. FV-13-1230-05B.

Vincent E. Halleran, Jr., argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant Perry Sperendi appeals from a Final Restraining Order entered pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Defendant argues that the trial judge failed to find that any of his actions were done with the purpose to harass plaintiff Joyce Bodnar and that defendant's conduct cannot be considered an act of domestic violence. He also argues that the trial judge used the wrong burden of proof. We reverse.

Bodnar and Sperendi had a long-term romantic relationship that terminated at the end of 2004. Notwithstanding plaintiff's expressed desire to terminate the relationship, defendant called her repeatedly over a three-month period to inquire about her health. He admitted at trial that he called plaintiff repeatedly but denied that he had an intention or purpose to annoy her or cause her alarm. Plaintiff admitted that he never uttered a threat and that she did not feel any threat to her safety from his repeated calls. She did, however, find those calls to be annoying.

At the conclusion of the trial, the judge found that he could discern a purpose to harass plaintiff based on the number and duration of the calls. He also found that the calls constituted harassment. The judge said:

The Court makes the finding that the acts of Mr. Sperendi constituted harassment under the statute, both the cumulative number of calls and their alleged purpose to assist her. The sheer volume of them would be enough if continued over a long period of time.

While Mr. Sperendi, who seems like a gentleman, the behavior he indicates would cease without a restraining order. Ms. Bodnar does not believe so. The only time it ceased was when she got a restraining order.

The judge proceeded to enter a Final Restraining Order that Sperendi is barred from Bodnar's residence, her place of employment and is prohibited from any contact or communication with plaintiff or members of her family.

At the outset, we reject defendant's contention that the trial judge failed to find that he acted with the purpose to harass. The trial judge made the requisite finding as required by N.J.S.A. 2C:33-4. See State v. Hoffman, 149 N.J. 564, 577 (1997). Contrary to defendant's contention, the trial judge was allowed to infer a purpose to harass from defendant's conduct. Id. at 577. Accord State v. McDougald, 120 N.J. 523, 566-67 (1990). Moreover, the trial judge applied the appropriate standard of proof. N.J.S.A. 2C:25-29a provides that "the standard for proving the allegations in the complaint shall be by a preponderance of the evidence." Finally, the long-term dating relationship allowed plaintiff to be considered a "victim of domestic violence," N.J.S.A. 2C:25-19d, thereby conferring jurisdiction to enter relief pursuant to the Act.

Plaintiff's complaint, which addresses unwanted communications from defendant, implicates N.J.S.A. 2C:33-4a and -4c. Subsections a and c provide:

[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;

. . . .

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

Subsection a of this statute generally targets a single communication, whereas subsection c addresses a course or pattern of conduct. Hoffman, supra, 149 N.J. at 580. Although the trial judge did not delineate which subsection was implicated by defendant's conduct, we infer that he focused on subsection c given his reference to the cumulative number of calls.

The Supreme Court and this court have addressed the issue of harassment through communications on several occasions. In Hoffman, the Court sought to elucidate the conduct encompassed by subsection a of the harassment statute, N.J.S.A. 2C:33-4. In so doing, the Court distinguished the conduct sought to be regulated by subsection c. The Court observed that subsection a generally focuses on a single comment, whereas subsection c is directed to a course of conduct. Id. at 580. Furthermore, the annoyance or alarm caused by a single comment need not be serious, whereas the annoyance caused by a course of conduct must be serious. Id. at 580-81. The Court noted that generally the harassment statute, N.J.S.A. 2C:33-4, is designed "to make criminal, private annoyances that are not entitled to constitutional protection." Id. at 576. The Court also noted that the Model Penal Code (MPC) addressed the annoyance contemplated by subsection c as follows:

In defining a 'prohibited course of alarming conduct' (currently prohibited by N.J.S.A. 2C:33-4(c)), the commentary to the MPC states, '[a]larm, of course, may be induced in an infinite variety of ways, but the requirement excludes from the offense actions not productive of anxiety or distress.' M[odel] P[enal] C[ode] and C[ommentaries] . . . 250.4, cmt. 5, at 368 [(Official Draft and Revised Comments 1980)].

[Id. at 579.]

The Court provided a further illustration of conduct encompassed by subsection c. Justice Coleman wrote:

For example, if a person were to ring a former companion's doorbell at 3:00 p.m. on Sunday, flash bright lights into her windows on Monday at 6:00 p.m., throw tomatoes into her front door on Tuesday at 6:30 p.m., throw eggs on her car on Wednesday, and repeat the same conduct over a two-week period, a judge could find that subsection (c) has been violated. We do not imply by that example that five or more episodes are required to establish a course of alarming conduct . . . . We conclude only that serious annoyance under subsection (c) means to weary, worry, trouble, or offend.

Thus, the difference between 'annoyance' and 'serious annoyance' is a matter of degree.

[Id. at 580-81.]

Subsequent to Hoffman, this court has considered whether repeated telephone calls without the utterance of any threats fall within the conduct prohibited by subsection c. In Sweeney v. Honachefsky, 313 N.J. Super. 443 (App. Div. 1998), the parties enjoyed a brief romance. After the plaintiff decided to terminate the relationship, the defendant left notes in the plaintiff's car, spoke to her on the telephone, and came to her home to speak to her during the week following the break-up. Id. at 445. The plaintiff told the defendant not to call her again. Ibid. The plaintiff also admitted that she realized his communications were motivated by a desire to reconcile and that his communications were not offensive, although unwanted. Ibid. Following a final talk, the parties drove away in separate cars. Ibid. She decided to seek a restraining order when she saw his car and believed that he might be following her. Ibid. We reversed the final restraining order entered against the defendant. Id. at 448. In doing so, we commented:

Perhaps it would have been wiser for him not to have tried to effect a reapproachment with plaintiff, but although his continued attentions may have been unwelcome, it is difficult to fit them comfortably into the rubric of domestic violence, which, when harassment is the gravamen, requires a purpose to achieve that result on a course of alarming conduct.

[Id. at 447.]

Similarly, in Bresocnik v. Gallegos, 367 N.J. Super. 178 (App. Div. 2004), we also held that defendant's reconciliation efforts by way of some letters and e-mails never read by plaintiff could not be considered a course of alarming conduct or repeated acts with the purpose to seriously annoy plaintiff. Id. at 179-81.

 
Here, plaintiff admitted that defendant never uttered a threat and she felt no alarm or anxiety about her safety. She concedes that his messages expressed his concerns about her well-being. While his verbal ministrations were unwanted, we cannot conclude that they rose to the level of serious annoyance contemplated by N.J.S.A. 2C:33-4c and qualify as an act of domestic violence. Therefore, the January 10, 2005 Final Restraining Order is reversed.

Reversed.

(continued)

(continued)

7

A-2833-04T1

RECORD IMPOUNDED

February 22, 2006