G. C v. N. M

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0314-07T10314-07T1

G. C.,

Plaintiff-Respondent,

v.

N. M.,

Defendant-Appellant.

_________________________________________________

 

Argued September 17, 2008 - Decided

Before Judges Stern and Payne.

On appeal from Superior Court of New Jersey

Chancery Division - Family Part, Union County, FV-20-1809-07.

Susan McCue argued the cause for appellant

(Central Jersey Legal Services Inc., attorneys; Ms. McCue, on the brief).

Jared B. Weiss argued the cause for

respondent (Fruchter & Associates, LLC,

attorneys; Harvey Fruchter, of counsel;

Mr. Weiss, on the brief).

PER CURIAM

Defendant, N. M. (fictitiously, Ms. Martinez or Martinez), appeals from a final restraining order entered against her pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. On appeal, she presents the following arguments:

Point I - THE COURT DID NOT MAKE THE PROPER FINDINGS TO SUPPORT THE ENTRY OF A FINAL RESTRAINING ORDER PURSUANT TO SILVER V. SILVER, 387 N.J. Super. 112 (App. Div. 2006).

Point II - THE COURT DID NOT MAKE SUFFICIENT FINDINGS TO SUPPORT A FINDING OF ASSAULT BY THE DEFENDANT UPON THE PLAINTIFF PURSUANT TO N.J.S.A. 2C:12-1.

The record discloses evidence that would support the conclusion that, prior to the incidents at issue, Martinez and plaintiff, G. C. (fictitiously, Mr. Coro or Coro), had been dating for approximately five years. From November 2006 to late January or early February 2007, they had lived together at Coro's residence in Pennsylvania. Martinez had then moved out, relocating in Elizabeth, New Jersey.

On March 28, 2007, while at work at a local Ikea store, Martinez received a series of harassing telephone calls from Coro. Upset as a result, Martinez left work early to return to her apartment. While she was there, Coro forced his way into the apartment and committed both assault and rape. In a subsequent hospital examination, Martinez was found to have sustained a tear on her upper lip; bruising to the left side of her face; swelling near her eye; numerous bruises and scratches on her arms, wrists and hands; a cut on her finger; bruises on both hips, her shoulders, and breasts; eight bites on her breasts; bruises to her inner thighs directly below her vagina; and a tear in her vaginal wall.

Following the attack, Coro left the apartment, taking with him Martinez's cell phone and two chains that she had been wearing. Realizing that her cell phone was missing, Martinez went to the building's parking lot and entered her car with the objective of pursuing Coro to regain the telephone. As she attempted to leave the lot, her car, a green or grey minivan, was hit head-on by Coro, who was driving into the lot in his truck. Martinez retaliated by causing an additional front-end collision between the two vehicles -- an act that she has admitted.

Thereafter, both vehicles proceeded onto North Broad Street, a thoroughfare on the border between Elizabeth and Hillside, New Jersey, with Coro's vehicle in front and Martinez following him. According to the testimony of mail carrier Kimberly Ashley, when at the corner of North Broad Street and Queen Court, Martinez rear-ended Coro's vehicle, causing damage. Nonetheless, both vehicles continued along North Broad Street, creating the impression that a hit-and-run accident had occurred. After witnessing the accident, Ashley stopped in a store on the corner of North Broad Street and King Street to purchase a drink and to check the lottery. Upon exiting the store and attempting to cross North Broad, she was nearly hit by Martinez, who had returned to the area, followed by Coro. Martinez proceeded to park her van, which was emitting steam and leaking fluid, and exited, returning to her apartment. Coro, likewise, parked.

At this point, Ashley called 9-1-1 in Hillside to report what had occurred. Hillside officers, and then Elizabeth police responded, finding Coro at the scene. However, upon investigation of the accident, the police determined that it arose from an incident of domestic violence. Martinez was interviewed, and Coro was arrested. Criminal charges of aggravated sexual assault and burglary were pending against Coro at the time of the domestic violence hearing.

Police testimony at the hearing confirmed that a number of witnesses had seen Martinez strike Coro's truck with her minivan. Additionally, a photograph confirmed damage to the rear of Coro's truck, although it was unclear whether that damage arose from the March incident or an earlier accident.

Following these incidents, on March 29, 2007, Martinez filed a complaint pursuant to the PDVA and obtained a temporary restraining order against Coro based upon allegations of sexual assault. In her complaint, Martinez claimed a prior history of domestic violence, described as comprised of "numerous assaults in the past. Always accuses her of being with someone else."

A hearing on Martinez's application for a final restraining order commenced approximately one month later on May 2, 2007. At the conclusion of the day's hearing, Coro, like Martinez, filed a domestic violence complaint alleging assault, criminal mischief and harassment. A temporary restraining order was entered. In his complaint, Coro also reported prior domestic violence occurring in November 2006, February 2007 and March 2007 and consisting of workplace harassment, an attempt to obtain access to Coro's home security system, an attempt to obtain coverage under Coro's insurance as his alleged wife, theft of and damage to Coro's clothing, stalking, and blocking access to Coro's car. Additionally, Coro claimed that on May 10, 2006, Martinez had grabbed his crotch, stating that his privates belonged to her. On May 3, 2007, Martinez amended her complaint to add charges of assault and harassment arising from the March 28, 2007 incident. On May 31, 2007, Coro, too, amended his complaint to allege stalking, false imprisonment, terroristic threats, and burglary arising from the acts occurring prior to March 28.

At the conclusion of a seven-day testimonial hearing, the Family Part judge dismissed all charges by Coro arising out of conduct occurring before March 28. Focusing on what occurred on March 28, the judge found that Coro had committed a sexual assault on Martinez while at her apartment. Thereafter, the judge concluded, Martinez had assaulted Coro, utilizing her car to do so. The judge stated:

[W]hat happened after [the sexual assault occurred] is that the plaintiff, Ms. Martinez, doesn't complain to anyone. She doesn't call anyone. She doesn't try to get help. Instead, she decided that she's going to inflict injury on [Coro]. And so she takes her car out, she drives it out to the driveway. Now she says he strikes her. He says she struck him. I don't know who is telling the truth in that regard on that first impact. But it is clear that when the postal carrier saw this incident, it was Ms. Martinez who was the aggressor. It was Ms. Martinez who was going 50 miles an hour, chasing after Mr. Coro. It was Ms. Martinez who rammed his vehicle.

The impact was apparently quite severe, according to the postal carrier, the 9-1-1 call.

As a consequence of the two findings of assault, the judge entered final restraining orders against both Martinez and Coro.

Following entry of the restraining orders, Martinez moved for reconsideration. In doing so, she argued that the judge had made insufficient findings of fact and conclusions of law to support the determination that Martinez had committed an assault, and, although the judge had determined that Martinez had assaulted Coro, he had failed to make the second finding required by our decision in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), namely, that given the totality of the circumstances, a restraining order against Martinez should be issued.

After hearing argument, the judge held that the evidence supported the conclusion that, in ramming the rear of Coro's vehicle, Martinez had purposely attempted to cause bodily injury, thereby committing an attempted assault. He observed: "Clearly, there could be no other purpose for ramming the rear of . . . Mr. Coro's vehicle except when that purpose was to cause bodily injury." The judge additionally found that the evidence supported entry of a restraining order against Martinez -- Silver's second prong. In that regard, the judge stated:

Now, with regard to the second prong, and that is that there's an immediate danger of future acts of domestic violence, I . . . thought I said it was a tortured relationship on both sides. . . . [T]he totality of the circumstances were that Ms. Martinez was infatuated with the defendant. In fact, I think she said she still loved him. But she . . . did a number of things that leads this court to believe that there . . . is a future danger of domestic violence.

When there was this dispute in the Poconos[] house, when she was staying outside with her children sleeping in the car in his driveway, . . . the various testimony with regard to her . . . grabbing his private parts and saying, "This is mine." I mean, we have a tortured relationship, and it's not one-sided. It's two-sided.

She didn't have any fear of him when she chased him out of that parking lot and chased him down the road and rammed his vehicle. She's just as much a danger to him as he is to her.

The judge thus found the entry of a restraining order against Martinez to have been proper, and he denied reconsideration.

This appeal followed.

On appeal, Martinez again argues that the judge failed to make the proper findings to support the entry of a final restraining order pursuant to Silver. Martinez contends that, in considering the totality of the circumstances, as Silver requires, the court found that the parties had a tortured relationship and that Martinez was still in love with and infatuated by Coro -- findings that "do[] not logically lead to a conclusion that one party is a danger to the other to support entry of a final restraining order." Additionally, Martinez argues that, because the judge dismissed Coro's claims based upon Martinez' conduct prior to March 28, that conduct could not support the conclusion that Martinez was a danger to Coro. She argues, as well, that such conduct could not provide a foundation for entry of a restraining order because the conduct was denied by Martinez, and the judge made no credibility findings with respect to the parties' disparate testimony. As a final matter, Martinez argues that her conduct on March 28 was simply a reaction to Coro's sexual assault, and that "[b]ut for the illegal actions of Mr. Coro, the actions of Ms. Martinez would not have taken place." Therefore, there was no possibility of their reoccurrence and no continuing danger to Coro.

We do not accept Martinez' arguments. What we sought to do in Silver and in our preceding decisions in Kamen v. Egan, 322 N.J. Super. 22 (App. Div. 1999), Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995), and Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995), was to distinguish between the domestic disputes likely to occur between estranged individuals as their relationships terminated and acts of violence or other conduct that were of sufficient severity to require judicial intervention by means of the PDVA. As we observed in Peranio: "The Act is intended to assist those who are truly the victims of domestic violence. It should not be trivialized by its misuse in situations which do not involve violence or threats of violence." 280 N.J. Super. at 229. We thus required, following a determination that a predicate act as defined by N.J.S.A. 2C:25-29a had been established, that the judge also consider "whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Silver, supra, 387 N.J. Super. at 127. In that regard, we observed:

Although it is clear that a pattern of abusive and controlling behavior is a classic characteristic of domestic violence, see Cesare v. Cesare, [ 154 N.J. 394, 397-98 (1998)], the need for an order of protection upon the commission of a predicate act of "domestic violence," as specifically defined in N.J.S.A. 2C:25-19a, may arise even in the absence of such a pattern where there is "one sufficiently egregious action." Id. at 402.

[Silver, supra, 387 N.J. Super. at 128.]

In the present case, unlike Kamen, Corrente and Peranio, Martinez committed an unambiguous assault when she, on at least two occasions, rammed Coro's truck with her van. Although it is likely that the assaults occurred as retaliation for the rape that preceded them, we, like the trial judge, find it significant that Martinez took it upon herself to wreak vengeance, rather than immediately calling the police so that legal mechanisms for punishment could be invoked. To that extent, the volatility of the parties' relationship, noted by the judge, was significant, because it signaled the likelihood that conduct of like nature would be repeated, thereby placing Coro's future safety in jeopardy. In this circumstance, we find the judge's entry of a restraining order against Martinez to have been properly founded on adequate evidence in the record, Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974), and that the judge's application of the law was sound. Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

Martinez additionally argues that the judge did not make sufficient findings to support the conclusion that she had committed an assault upon Coro pursuant to N.J.S.A. 2C:12-1. In this regard, Martinez argues that the only crime that she could have committed, under the circumstances, was an attempted assault, since no bodily injury resulted from her acts, and that evidence of purposeful conduct, necessary for a finding of attempted assault, was lacking. See Cannel, New Jersey Criminal Code Annotated, cmt. 3 on N.J.S.A. 2C:5-1 (criminal attempt). Again, we disagree.

As we have stated, Martinez's initial purpose in getting into her car after the rape was to pursue Coro so that she could recover the cell phone that he had taken from Martinez's residence. After the confrontation occurring in the driveway leading to the parking lot of Martinez's apartment, Coro's ramming into the front of Martinez's van and Martinez's reciprocal action, Coro threw the cell phone out of the window. Despite the fact that the reason for pursuit had disappeared, Martinez nonetheless followed Coro's truck in her car, eventually hitting him in the rear. There is nothing in the circumstances presented to suggest that Martinez's conduct at this point was negligent, or that it constituted anything other than purposeful behavior, as that state of mind is defined by N.J.S.A. 2C:2-2b(1); see also State v. Ambroselli, 356 N.J. Super. 377, 384 (App. Div. 2003); State v. McAllister, 211 N.J. Super. 355 (App. Div. 1986); State v. Battle, 209 N.J. Super. 255, 258-59 (App. Div.), certif. denied, 105 N.J. 560 (1986). Martinez's course of conduct gives rise to no other inference.

Affirmed.

At the hearing, Coro testified that Martinez had traveled with her two children to the Poconos where Coro was living. She camped outside his residence in her car for the night, and blocked his driveway, making it impossible for him to leave in his car.

The existence of crimes such as passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2), demonstrates that provocation alone will not excuse criminal conduct.

Coro has conceded that, because of the absence of bodily injury, Martinez could not be found to have committed assault by auto. N.J.S.A. 2C:12-1c.

(continued)

(continued)

12

A-0314-07T1

RECORD IMPOUNDED

December 9, 2008