AIMEE COOK SCHMIDT v. BRIAN K. BAILEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4691-04T14691-04T1

AIMEE COOK SCHMIDT,

Plaintiff-Respondent,

v.

BRIAN K. BAILEY,

Defendant-Appellant.

_______________________________

 

Submitted February 27, 2006 - Decided March 20, 2006

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey,

Family Part, Gloucester County, Docket No.

FV-08-1211-05.

Telsey & Puma, attorneys for appellant (Andrea

Rhea, on the brief).

Andrew S. Zeldin, attorney for respondent.

PER CURIAM

This is a domestic violence case. Defendant, Brian K. Bailey, appeals from the entry of a final restraining order against him, contending there was insufficient evidence to support the Family Part's determination that he assaulted plaintiff, Aimee Cook Schmidt. We affirm.

The relevant facts are not substantially in dispute. The parties were married in 1994, divorced in 1997, and had one child, Zachary, who was ten years old at the time of the incident, and with whom they shared parenting time. On March 19, 2005, Zachary was at baseball practice with defendant, who was an assistant coach of the team. After practice, Zachary became upset and threw his water bottle down. When he refused his father's request to pick it up, defendant grabbed his son by the back of the neck. Plaintiff, who had been watching in her parked car, exited the car and twice asked defendant to release his grip. According to plaintiff, defendant only "got angrier and switched his fingers to the front of [Zachary's] throat, pushing his fingers into [his] windpipe."

Plaintiff then intervened, attempting to get in between the two of them and pry defendant's fingers from their son's throat. She eventually succeeded in freeing Zachary from defendant's grip, but not until after a struggle in which defendant "pushed" and "pulled" at plaintiff. Even after Zachary entered plaintiff's car, defendant continued pushing plaintiff out of the way to get to their son. When he reached the car, defendant grabbed at Zachary, pushed down the electric window and tore at his son's shirt. Defendant himself admits that he continued pursuing his son even after Zachary broke free of his grip. During the struggle between plaintiff and defendant, plaintiff's finger and knuckle were cut. The responding police officer observed the injury to plaintiff's hand and Zachary's ripped shirt. Police photographs revealed "red marks around [Zachary's] neck . . . ."

On these facts, the judge concluded that defendant had committed an act of assault upon plaintiff, N.J.S.A. 2C:12-1, prohibited under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-19(a)(2). Specifically, the judge found:

But, I do think that the conduct of the defendant here was reckless as it relates to the plaintiff.

I do think it is sensible, anticipated and foreseeable that if a child is being choked that a mother or parent will intervene and try to defend the boy in this case. I think that one can anticipate when someone has to try to get into what they deem to be a safety issue with their son

. . . that it's anticipated that somebody might get hurt. So, was she proper in trying to do what she did under the circumstances? Yes she was. Did she suffer an injury? By case law, yes, she suffered an injury, that's not disputed. Do I find that the conduct of the defendant was reckless? I find it mostly reckless in a sense that once mom got involved he should have backed off and he didn't back off and a minor injury occurred, but nonetheless it's an injury.

I make that finding by a preponderance of the credible evidence. I would say that I did find that the plaintiff was credible in this matter. The defendant did not dispute a lot of what went on, there was a similarity in testimony. Some of the finer points were disagreed upon, but obviously what happened with the young boy is undisputed, what happened when the mom stepped in is undisputed, what happened with regard to the ripped shirt really wasn't contested, and the fact that there was some type of struggle, his hands against her hands and so on so forth is something that is really found credibly to have occurred by the Court.

We agree and affirm substantially for the reasons stated on the record by Judge McCaffrey on March 30, 2005. We add, however, the following comments.

The PDVA incorporates by reference various criminal statutes, the violation of which may constitute an act of domestic violence if committed against "a person protected under this act." N.J.S.A. 2C:25-19a; Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). The criminal statute found to have been violated in this domestic violence complaint is assault, N.J.S.A. 2C:12-1, which can, by definition, be committed by purposeful, knowing or reckless conduct.

A simple assault under N.J.S.A. 2C:12-1a(1) encompasses conduct that "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." "Bodily injury" is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a. As noted, a "reckless" mental state suffices for this disorderly persons offense. In this regard, N.J.S.A. 2C:2-2b(3) defines reckless as:

A person acts recklessly with respect to a material element of an offense [causing injury to the victim] when he consciously disregards a substantial and unjustifiable risk that the material element . . . will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

We are satisfied that sufficient credible evidence supports the trial court's finding that defendant recklessly caused bodily injury to plaintiff. State v. Locurto, 157 N.J. 463, 471, 472 (1999) (citing State v. Barone, 147 N.J. 599, 615 (1997)); Cesare v. Cesare, 154 N.J. 394, 412 (1998). Plaintiff's intervention to protect her son from defendant's excessive and inappropriate physical force was entirely foreseeable, as was her subsequent injury at the hands of defendant who then pushed and pulled at her as she struggled to free her son. By forcefully resisting plaintiff and continuing to grab his son, defendant acted in conscious disregard of a very real and unjustifiable risk of harm to which he exposed plaintiff. Under the circumstances, we are persuaded the court's findings support its conclusion of assault of plaintiff by defendant.

The final restraining order is affirmed.

 

N.J.S.A. 2C:25-19a(2) incorporates by reference all forms of assault under N.J.S.A. 2C:12-1. Some forms of simple and aggravated assault may be committed by reckless, as well as purposeful or knowing conduct.

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6

A-4691-04T1

RECORD IMPOUNDED

March 20, 2006