STATE OF NEW JERSEY v. MICHAEL FORSTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1588-07T41588-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL FORSTER,

Defendant-Appellant.

______________________________

 

Submitted October 28, 2008 - Decided

Before Judges Collester and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Hudson

County, Docket No. FO-09-102-08-K.

Alexis Lazzara, attorney for appellant.

Edward J. DeFazio, Hudson County Prosecutor,

attorney for respondent (Jane Weiner,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Michael Forster appeals from an order of the Family Part adjudicating him guilty of contempt of a final restraining order (FRO), contrary to N.J.S.A. 2C:29-9(b), and harassment, contrary to N.J.S.A. 2C:33-4(a). We affirm.

Defendant and Christine Forster were married in 1990 and divorced on October 25, 1999. Two children were born of the marriage: one born on July 28, 1994, and the other born on September 24, 1996. Prior to their divorce, defendant and Christine entered into a property settlement agreement which provided for joint custody with Christine as primary residential custodian. In 2002, Christine filed for a temporary restraining order (TRO) alleging that defendant was "physical with me in a violent way." Following a hearing on February 21, 2002, Judge Hector Velazquez found defendant guilty of domestic violence based on harassment and issued a FRO against defendant barring him from Christine's home, prohibiting him from having any oral, written, personal or other form of communication with Christine and prohibiting him from engaging in harassing communications with her or the children. Thereafter, defendant and Christine engaged in minimal contact for the sake of their children in events such as family functions and telephone contacts. In 2004, defendant, with Christine's consent, visited Christine's home for the younger daughter's communion party.

On May 28, 2007, Christine filed the complaint in this matter against defendant charging contempt for violating the FRO and for harassment. The incident giving rise to the complaint began with a phone call from the younger daughter to her father. Christine testified that after the daughter spoke with her father, he demanded to speak with her. He then proceeded to berate her, calling her "stupid" for introducing the daughters to her boyfriend. After that conversation, defendant called her at 6 a.m. on May 30, and left a message on her voicemail. Defendant's version of the events of May 28, 2007, was that the daughter called him while upset and crying and told him that her mother's boyfriend called her "chubby," made remarks about her teeth and said he was a "sex machine." Defendant testified that Christine then grabbed the phone from the daughter and screamed, "I want you completely out of my life and I never want to communicate with you again," and then hung up. Defendant claimed that he never screamed or berated Christine and did not ask to speak with her. He admitted to making the call on May 30, but he said it was only with the intent of finding out about his daughters.

No other witnesses were called as to the incident. At the conclusion of the hearing Judge Salvatore Bovino found Christine to be a more credible witness than defendant, and as a result he found defendant was guilty of violating the FRO and harassment. Subsequently, defendant filed a motion for reconsideration in which alleged ineffective assistance of trial counsel, stating that his attorney failed to present all material facts and that the State did not prove its case beyond a reasonable doubt. Following oral argument on November 13, 2007, Judge Bovino denied the motion after determining that defendant failed to present sufficient evidence to support a claim of ineffective assistance of counsel.

On appeal defendant makes the following arguments:

POINT I - THE FAMILY COURT SHOULD RETAIN JURISDICTION BECAUSE THE FORSTER FRO AND PSA ARE IN DIRECT CONFLICT.

POINT II - THE TRIAL COURT ERRONEOUSLY CONVICTED THE DEFENDANT BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, AND HE WAS DENIED A FAIR TRIAL THEREBY VIOLATING HIS DUE PROCESS RIGHTS.

POINT III - THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR RECONSIDERATION TO REVERSE OR AMEND ITS FINDINGS BECAUSE THE COURT DID NOT HAVE A FULL AND FAIR OPPORTUNITY TO HEAR ALL THE MATERIAL FACTS IN THIS CASE.

POINT IV - THE TRIAL COURT ERRONEOUSLY CONVICTED THE DEFENDANT BECAUSE THE STATE FAILED TO PROVE ITS CASE BEYOND A REASONABLE DOUBT.

A. THE TRIAL COURT'S ERRONEOUS CONVICTION WAS INSUFFICIENT AS A MATTER OF LAW OR IN THE ALTERNATIVE AGAINST THE WEIGHT OF THE EVIDENCE.

B. THE TRIAL COURT IMPROPERLY DENIED THE FORSTER MOTION FOR RECONSIDERATION.

POINT V - THE TRIAL COURT ERRED BY NOT CONSIDERING THE MANIFEST INJUSTICE IN CONVICTING THE DEFENDANT BASED ON THE COMPLAINANT'S WHIM AND SELECTIVE PROSECUTION, WHICH IS IN DIRECT CONFLICT WITH THE BASIC TENETS OF THE PREVENTION OF DOMESTIC VIOLENCE ACT OF 1991.

Under our scope of review we will not disturb a trial judge's factual findings unless they are demonstrated to lack support in the record by substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Moreover, because of the special jurisdiction of the Family Part and its expertise in family matters, we accord special deference to the judges' fact finding as well as the conclusions that logically flow from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Furthermore, we also give special deference to a trial judge's credibility findings. State v. Locurto, 157 N.J. 463, 471 (1999).

In this case, there is substantial, credible evidence in the record to support the trial judge's factual findings and the determination that defendant was guilty beyond a reasonable doubt on both charges. Judge Bovino found defendant initiated the conversation with Christine, and that contact alone was sufficient to violate the terms of the FRO. The fact that there had been prior voluntary contact between them in no way justified defendant's actions in this case. Therefore, Judge Bovino correctly found that defendant "purposely or knowingly violate[d] . . . an order entered under the provision of the Prevention of Domestic Violence Act of 1991[,]" which constituted a violation of N.J.S.A. 2C:29-9(b). Furthermore, Judge Bovino specifically found that defendant "made a communication . . . likely to cause annoyance . . .," which in these circumstances caused harassment under N.J.S.A. 2C:33-4(a).

With regard to defendant's claim of ineffective assistance of counsel, there is a two-prong test defendant must satisfy. First, it must be shown that counsel's performance was deficient as it fell below an objective standard of reasonableness, and second, that counsel's deficient performance prejudiced the defense to the extent that there is a reasonable probability that counsel's errors changed the outcome. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Allah, 170 N.J. 269, 283 (2002); State v. Fritz, 105 N.J. 42, 57-58 (1987). Bald assertions that counsel was ineffective are insufficient to satisfy defendant's prima facie burden. State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). Furthermore, tactical decisions by counsel are not a basis for a finding of insufficient representation absent a showing of a series of professional errors since there is a presumption that counsel's conduct is within the range of professional assistance. State v. Sheika, 337 N.J. Super. 228, 241 (App. Div.), certif. denied, 169 N.J. 609 (2001).

In this case Judge Bovino found that defendant did not satisfy his prima facie burden under either prong of the Strickland case. We agree. The decision to call or not to call defendant's friend, Sharon Harvey, who was allegedly present during the telephone conversation, falls within the purview of trial strategy. Trial counsel determined that defendant's testimony with respect to the incident was sufficient to present the facts to the court. We perceive no basis for reversal based upon insufficient representation of counsel.

Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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A-1588-07T4

April 22, 2009