STATE OF NEW JERSEY v. M.I.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4498-04T14498-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.I.,

Defendant-Appellant.

______________________________________________________________

 

Argued March 7, 2006 - Decided April 25, 2006

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FO-16-381-05.

Dennis J. Cummins argued the cause for appellant.

Terry Bogorad, Senior Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Ms. Bogorad, on the brief).

PER CURIAM

On November 22, 2004, L.D. filed a domestic violence complaint in which she alleged that her former boyfriend defendant M.I. approached her that date at 5:45 p.m. in the parking lot at her place of employment in Paramus, New Jersey, and threatened her. According to L.D., defendant pointed his finger at her, and said, "You put these things in motion, and now I'm going to get you." Later that evening, at approximately 9:30 p.m., after defendant had eaten and consumed alcohol at a steak house on Route 17 in Mahwah, his vehicle hit another vehicle and he left the scene. Some ninety minutes later defendant was arrested in Ramsey for driving while under the influence (DWI).

At 2:35 a.m., while defendant was in a jail cell in Ramsey, a police officer of the Wayne Police Department served defendant with the domestic violence complaint filed by L.D. and a temporary restraining order (TRO) issued by the Wayne Municipal Court Judge. Among other things, that TRO prohibited defendant from having any communication with L.D. When the police officer served the TRO, defendant's eyes appeared bloodshot, he smelled of alcohol, and he uttered profanities. In addition to serving the TRO, the officer, accompanied by several other police officers, transported defendant home in order to seize certain weapons referred to in the TRO. Approximately an hour later, the police left defendant's home.

Later that morning, defendant telephoned the home of L.D.'s mother and left L.D. a message that L.D.'s cats had gotten out of the house and that one of them might be dead. L.D. heard defendant's telephone message and called the Wayne Police Department. As a result of her call, a corporal in the Wayne Police Department filed a complaint charging defendant with contempt of court.

On January 5, 2005, the domestic violence complaint filed by L.D. on November 22, 2004 was dismissed and the TRO was vacated, but the contempt of court charge against defendant for violating the TRO was adjudicated. The judge found defendant guilty and placed him on probation conditioned on his attending anger management counseling and the payment of various assessments. Defendant appealed.

In his brief, defendant makes the following arguments:

POINT I: THE APPELLATE DIVISION SHOULD REVIEW BOTH FACTS AND LAW.

POINT II: THE DEFENDANT WAS INEBRIATED AND THE STATE DID NOT PROVE THAT HIS CONDITION ENABLED HIM TO UNDERSTAND THE TRO.

POINT III: THERE WAS REASON FOR THE DEFENDANT TO CALL THE COMPLAINING WITNESS.

We have considered those arguments in light of the record and applicable law and we affirm the conviction and sentence.

First, we reject defendant's argument that we should undertake a de novo review. Defendant asserts that R. 2:10-4 authorizes us to make de novo findings of fact. That rule provides that "[e]very summary conviction by a court for contempt shall be reviewable on the law and the facts." Rule 2:10-4, however, is inapplicable to the present circumstances since this is a review following a plenary hearing under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, not a review of a summary contempt proceeding. N.J.S.A. 2C:25-30 provides that "[A] violation by the defendant of an order issued pursuant to the Act constitutes an offense under subsection b. of N.J.S.A. 2C:29-9." The trial court in this context made ordinary findings of fact based on the testimony of three witnesses called on behalf of the State and the testimony of defendant on his own behalf.

Therefore, to review the judge's factual determination in this case, we are guided by several well established principles of appellate review. Our scope of review is limited to determining whether the findings by the trial judge could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole and giving due deference to the trier of fact who had the opportunity to hear and see the witnesses and have the "feel" of the case. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). See also State v. L.C., 283 N.J. Super. 441, 447-48 (App. Div. 1995) (applying substantial evidence rule to trial court's determination that defendant violated a TRO based upon a domestic violence complaint). We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." Johnson, supra, 42 N.J. at 161 (1964). We will not overturn factual findings of a trial judge unless we are convinced that the findings are "clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Locurto, supra, 157 N.J. at 471 (citing Johnson, supra, 42 N.J. at 162).

Defendant contends he was still intoxicated when he was served with the TRO and that the State did not prove that he understood what the TRO meant. Alternatively, defendant asserts he misunderstood and thought that he was only precluded from having face to face contact with L.D.. Finally, defendant argues that he was acting with good will when he called to inform L.D. that her cat was missing.

The trial judge found defendant guilty of contempt of court for violating the TRO. The judge reasoned as follows:

[H]e was properly served, he did understand [the TRO], [and] it was explained to him.

I also find that he spent several hours or an hour and a half or so within the company of the Wayne Police, as they went about [his] house. . . . I'm also noting that although the testimony didn't indicate what time he had his last drink, it was some . . . time before midnight when he left the steak house, and that would have given [him] several hours . . . to come down. And while I'm sure that there was a lot of paperwork exchanged that day, I do believe that he was sufficiently capable of understanding what was being said.

I do find, by his own admission, that a phone call was made at approximately 7:30 the next morning and a message left on the answering machine. The Court did have the benefit of listening to that message. While it's been described that the defendant was frustrated at the time . . . it's also rather apparent, from the language used and the tone of voice, that he was also angry, and it was not a pleasant message that was left for the victim.

Thus, it is apparent that the trial judge carefully scrutinized the evidence before him in making his factual findings and he explained in detail his assessment. We are satisfied there is substantial credible evidence in the record to support his ruling, giving due regard to the ability of the trial judge to weigh the credibility of the witnesses who testified as well as his opportunity to listen to the message defendant left on the answering machine. Locurto, supra, 157 N.J. at 470-71 (1999). We discern no basis to disturb the judge's rulings on appeal. Ibid. The State need only prove that the order was in existence at the time of the alleged contempt and it was not obeyed. State v. Sanders, 327 N.J. Super. 385, 387 (App. Div. 2000). "[I]t is irrelevant in a criminal contempt proceeding whether the temporary restraining order in effect at the time of the violation is later vacated or dismissed and no permanent restraint issues." Ibid.

By defendant's own admission, he telephoned L.D. between 6:00 a.m. and 6:30 a.m. on the morning he received the TRO to tell her about her cats. He acknowledges that he said her cats were missing in action and one of them was dead on the back road. The judge rejected defendant's claim that he did not comprehend or appreciate the meaning of the restraints. Cf. State v. Mernar, 345 N.J. Super. 591, 594 (App. Div. 2001) (remanding a criminal contempt action for sworn testimony regarding defendant's alcoholism and possible state of inebriation when he was allegedly handed the TRO). After listening to the audiotape of that message, the judge, functioning within his role as the trier of the facts, determined, beyond a reasonable doubt, that defendant had acted in defiance of the TRO. We affirm substantially for the reasons stated by the trial judge in his oral opinion of April 8, 2005.

 
Affirmed.

Because this case involves a temporary restraining order, the defendant is identified only by his initials.

(continued)

(continued)

7

A-4498-04T1

RECORD IMPOUNDED

April 25, 2006