STATE OF NEW JERSEY v. MICHAEL MELNICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2876-06T42876-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL MELNICK,

Defendant-Appellant.

______________________________

 

Submitted: March 4, 2009 - Decided:

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Essex County, Docket No. FO-07-474-06.

Sara Sencer McArdle, attorney for appellant.

Paula T. Dow, Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Melnick appeals from his conviction for fourth-degree contempt for violation of a final restraining order (FRO) entered following a hearing on the complaint filed against him by his former wife pursuant to the Prevention of Domestic Violence Act (PDVA). N.J.S.A. 2C:25-17; N.J.S.A. 2C:29-9b. He argues the State failed to prove its case beyond a reasonable doubt and the court failed to adequately evaluate the credibility of his witnesses. He further contends that even if he were present on the street outside his former wife's home, it did not constitute a violation of the restraining order. We have considered these arguments in light of the record and applicable legal standards. We affirm.

Michael and Katy Melnick were involved in ongoing matrimonial litigation for several years. Katy obtained a temporary restraining order against Michael on January 5, 2006, and an FRO on January 26, 2006. The FRO barred defendant from contacting Katy or going to her residence or place of employment. Michael acknowledged receipt of the order on the same date.

The violation of the FRO occurred on March 28, 2006, a few weeks after one of the divorce proceedings, when Michael went to Katy's residence in Newark. She testified she was home, around 10:00 p.m., in her laundry room next to the garage with the door wide open, about to take out the trash. She saw a flash of light outside of her garage door, which was partly opened, and clearly observed Michael with his camera, taking pictures of her car and the house. Katy testified that Michael was about one-and-a-half car lengths away from her at the time. Katy questioned Michael why he was there and he responded, "oh, you bought a new car." Frightened at the intrusion, Katy screamed, causing Michael to flee from the scene. Katy saw Michael get into his car and drive away, and then went to her boyfriend's house where she felt more safe and secure. When she got there, she asked her boyfriend whether she should go to the police station to report what had happened and he suggested she wait until the morning. Katy informed the police about this incident the next day. As a result, Michael was charged with fourth-degree contempt for violating the FRO.

Defendant's girlfriend, Barbara Georgakis, testified on his behalf. She stated that she accompanied him to his divorce proceeding on March 15, 2006, and they parked in the courthouse garage. They observed a red Toyota SUV, which Michael told her he had seen Katy driving the week before when she dropped their son off for visitation at the designated location. Georgakis took pictures of the car with her camera phone and mailed them to Michael's email address. When she and Michael returned home, they sent a letter to Central Jersey Legal Services with the pictures of the SUV and the picture at Katy's house that Michael had taken several months prior to demonstrate that Katy was not entitled to free legal counsel because she leased the vehicle and owned the home. The certified mail letter was received by Legal Services on March 27, 2006; however, Georgakis had no knowledge as to whether Legal Services notified Katy of its receipt.

Georgakis further testified she was home sick on March 28, 2006, and Michael was home all day and night with her, only leaving the house to pick up his son from school around 11:25 a.m. Georgakis further claimed she fell asleep with Michael by her side at around 9:45 p.m. She explained that Katy's house in Newark was about twenty minutes away from their house.

Michael's mother also testified at the trial. She stated that Katy called her at about 7:00 p.m. on March 28 and was very agitated, indicating she did not understand why Michael did not believe she was not entitled to free legal counsel. The witness was not at Michael's house at any time that day.

Michael testified on his own behalf. He stated he was home the entire day and evening of March 28, 2006, working on the computer and caring for his ill girlfriend, other than when he picked up his son from school around noon. Michael denied that he went to Katy's home any time that evening. He claimed his former wife filed this action because she was trying to retaliate against him for sending the letter to Legal Services and contesting her entitlement to free representation in the divorce action. Katy, however, had testified that as of the time she reported the incident to the police that formed the basis of this charge, she was unaware of the letter that had been sent to Legal Services.

In his ruling, Judge Petrolle made express credibility determinations and set forth the reasons for his findings. He found Katy to be more credible and believable than Michael, and rejected as not believable the alibi offered by Michael and his girlfriend. More particularly, noting Georgakis' involvement in every aspect of Michael's divorce action, and observing her manner and conduct on the witness stand, the court found her to be biased and her testimony contrived. Moreover, the court found unbelievable the fact that Georgakis just happened to be available to be home all day with Michael, not feeling well, and in a position to once again assist him in providing an alibi for this serious charge.

The court was satisfied that Michael's mother had a conversation with her former daughter-in-law about the letter to Legal Services. However, based on its observation of the witness, the court was not satisfied the conversation that occurred on the evening in question covered that particular topic. Rather, the court found that because she "loves her son, she would like to believe it to have been on that occasion, she brings a bias to it."

The court disbelieved Michael's testimony and found he went to the house on the evening of March 28 to take photographs of the car and the house. The judge astutely commented that "when you ask the question why would he go there if he already had the photographs, it's fair to infer that his purpose is . . . motive for going there [was] to connect the car to her, connect the car to the house that she owned."

In contrast, Judge Petrolle found Katy, the victim, to be sincere in her testimony. He found it was a natural reaction for a woman alone in the house to leave when confronted by a person who is ordered not to be there in violation of a restraining order, and a reasonable response to go to her boyfriend's for comfort and protection and contact the police the following day. The court found her testimony to be "believable, to be natural, to have been forthright, and genuine." The court further found the victim followed proper processes in a natural manner in response to improper conduct on the part of defendant. Accordingly, the court found Michael guilty beyond a reasonable doubt of contempt for violating the provisions of the FRO pursuant to N.J.S.A. 2C:29-9b.

Defendant's first argument on appeal challenges the court's credibility assessments of his witnesses and resulting factfinding and conclusion that the State proved its case beyond a reasonable doubt. Though mindful of our deference to and limited scope of review of the trial court's factual determinations and assessment of credibility, defendant contends they were so wide of the mark that the interest of justice mandates an independent review and contrary conclusion. According to defendant, there was nothing in his mother's testimony that should have caused the court to conclude that she did not accurately remember the date she had the conversation with her daughter-in-law regarding the letter to Legal Services. Nor, he contends, was there a basis to credit Katy's testimony that she was unaware the letter had been sent and thus had no motive to fabricate the incident on March 28, 2006 in retaliation for defendant writing the letter. Defendant further argues the record supported his claim that he would have no reason to go to Katy's house to take the pictures and the court's conclusion that he needed to connect the car to the home was completely unfounded. Furthermore, defendant submits there was nothing in his or his girlfriend's testimony that should have caused the court to completely discount their alibi regarding the night in question.

Our scope of review of a judgment in a non-jury case is extremely limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord due deference to the credibility findings and the "feel of the case" by the trial judge who has heard and observed the witnesses. State v. Locurto, 157 N.J. 463, 470-71 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988); Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961). This is particularly so with Family Part judges who possess special expertise in these type of matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

From our review of the record, we are satisfied that Judge Petrolle carefully accessed the testimony and evidence in making his credibility assessments, factual findings, and legal conclusions, and that such determinations are amply supported by the record and based upon the applicable law. Accordingly, we discern no basis to disturb them on appeal. We note the court did not completely discount the testimony of defendant's mother. Rather, the court found she was more preoccupied with telling her views of her daughter-in-law than what was said during the phone conversation between the two and seemed a bit too eager about getting the divorce proceedings finalized between her daughter-in-law and son, leading the court to conclude her testimony was not completely without bias as to the exact date the specific conversation occurred regarding the Legal Services letter. Based on his observation of the manner and conduct of the parties and defendant's girlfriend, the trial judge had ample opportunity to assess each of their biases, motives, and overall credibility. Accordingly, we perceive no basis to second-guess the judge's conclusion to discredit their testimony and credit the testimony of defendant's former wife, as we are satisfied there is ample basis in the record to support his findings.

Alternatively, defendant argues that even if he were on the street outside Katy's home on the night in question, this alone did not constitute a violation of the FRO. According to defendant, because he was on the street in front of her home at night, not actually on her property, for the sole purpose of taking a photograph for use in their divorce litigation, and did not anticipate his former wife seeing him, he did not violate the restraining order. See N.J.S.A. 2C:29-9b (a person is guilty of a crime of the fourth-degree if that person purposely or knowingly violates a PDVA order); State v. Wilmouth, 302 N.J. Super. 20, 22-23 (App. Div. 1997) (in order to be guilty of a contempt violation there must be a knowing violation of the order). He emphasizes that if the encounter occurred at all it was not intended to annoy, harass or alarm his former wife. Moreover, he was only there for a short time and when she viewed him by chance and addressed him, he quickly responded and left. Thus, if the incident occurred at all, it was de minimis and should not have led to a criminal contempt conviction.

We disagree. When interpreting a statute, a court first looks to the plain meaning of the statute. State v. Hoffman, 149 N.J. 564, 578-79 (1997). Regarding violations of restraining orders, knowingly taking the chance of the spouse enforcing the restraining order is considered a knowing violation of the order. State v. Washington, 319 N.J. Super. 681, 690 (Law Div. 1998).

Defendant was well aware that on January 26, 2006, a FRO had been entered against him. Regardless, on March 28, 2006, he purposely and knowingly went to Katy's house in order to take pictures of her SUV and the house, thus violating the second paragraph of the FRO. He also contacted her, thus violating the third paragraph of the FRO. Accordingly, based on the sufficient credible evidence in the record, the trial court properly found that defendant was guilty of fourth-degree contempt for violating the provisions of the FRO. N.J.S.A. 2C:29-9b. In denying defendant's motion for a directed verdict, the court stated:

I understand the argument that [defense counsel] makes that going along a public street and proceeding along that street which takes you in front of the house that you['re] prohibited from going to arguably is not a violation. However, when you stop at the house, right in front of it, you take photographs of the house, you are in a position where you draw comment from the occupant of the house that you['re] prohibited from going to, and once a comment is made you yourself respond knowing that you['re] to have no contact. You['re] taking photographs there at that location, you have plenty of contact with the location, that's more th[a]n merely walking along the street that takes you passed there. You've gone there.

This is not a situation where defendant remained on public property for a legitimate purpose and innocently came into contact with his former wife, such as at a school function or sporting event involving the parties' son. Defendant had full knowledge he was not permitted at his wife's property by the express terms of the FRO. In fact, to minimize problems during the contentious divorce, and presumably to avoid having defendant come anywhere near the house and have confrontations occur, the matrimonial order provided that all visitation pick ups and drop offs were to occur at the police station. The fact of the matter is that defendant had the requisite intent to violate the FRO by intruding on his wife's privacy by being present in front of her house at night taking pictures of her house and car.

Affirmed.

 

We intend no disrespect by the use of the parties' first names in this opinion.

(continued)

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12

A-2876-06T4

RECORD IMPOUNDED

April 3, 2009