KRINAL M. SHAH v. MAYUR KARNIK

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3561-07T23561-07T2

KRINAL M. SHAH,

Plaintiff-Respondent,

v.

MAYUR KARNIK,

Defendant-Appellant.

______________________________________

 

Submitted March 16, 2009 - Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FV-08-0640-08.

Jack Venturi & Associates, attorneys for appellant (Jef D. Henninger, on the brief).

Krinal M. Shah, respondent pro se.

PER CURIAM

Defendant, Mayur Karnik, appeals from a February 6, 2008 final restraining order (FRO) issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. We affirm.

On November 26, 2007, plaintiff, Krinal Shah, filed a complaint seeking the ex parte issuance of a temporary restraining order (TRO) against defendant, her estranged husband. Plaintiff alleged that on November 19, 2007, defendant, via e-mail, threatened to come to her school, strangle her and throw her into the river, as well as to damage her car. Plaintiff also alleged that three days later, via another e-mail, defendant threatened that he would kill plaintiff and himself if she filed for divorce. In response to the question on the complaint whether there had been any previous history of domestic violence, plaintiff indicated that she was "beat up" by defendant the previous summer. The court issued a TRO and scheduled the matter for a final hearing.

The hearing on the issuance of the FRO took place over three hearing dates. At the first hearing, December 12, 2007, plaintiff appeared pro se, while defendant was represented by counsel. The e-mail or instant messages containing the allegedly harassing language were partially in English and also partially in Gujurati. A court-appointed interpreter, present in court, translated the Gujurati portions of the messages. The court then inquired whether defendant was satisfied that the interpreter's translation "accurately translate[d] [defendant's] correspondence or communications in those emails?" Defense counsel responded: "If they are correspondence, the translation is accurate. We'll stipulate to the translation being accurate, Judge." The documents were thereafter never formally moved into evidence by plaintiff. Instead, the court later refers to the documents as being evidence and therefore the reason why "the Court should have those documents." The court adjourned the proceeding. When the matter was before the court again on January 30, 2008, defendant appeared with new counsel.

At the start of the January 30 hearing, the court preliminarily stated to the parties that when the matter was last before it, an interpreter was present who interpreted "what's been marked into evidence as P-1 through P-5[.]" The court then inquired of defense counsel whether defendant had reviewed the interpreter's translation, and the following exchange took place:

[DEFENDANT'S ATTORNEY]: I don't have anything that's marked. I'm not sure what has been discussed. I got a bunch of emails. I did try to get a copy of the tape, but it wasn't going to be available until today. So, I'm not exactly sure what happened the last time.

THE COURT: Meaning the tape of - -

[DEFENDANT'S ATTORNEY]: Of - - I think there may have been some testimony that was taken the last time.

THE COURT: Correct, counsel, and we have P-1 through 5, which was marked into evidence.

The court then commenced the testimonial stage of the trial, and the only objection to P-1 through P-5 occurred when defense counsel attempted to elicit testimony from defendant that would explain how dialogue on Instant Messenger would look if it was printed out from the message archives versus a document that was printed out from Notepad. Defense counsel proffered that a message printed out from Notepad, such as two messages admitted into evidence as part of plaintiff's case, could be altered. The court initially refused to allow defense counsel to elicit this testimony, at which point defense counsel argued that the court had allowed plaintiff to admit a document from Notepad into evidence and that if the court was not going to permit defendant to provide the proffered testimony "then [plaintiff's] document should not be admitted as evidence of any kind of a threat because she has not established that it came from him when it comes out of Notepad." The court ultimately allowed the testimony and defendant was then shown a series of seven documents, collectively marked "D-3 for [identification] purposes."

Through these defense exhibits, defendant explained how a printout from an Instant Messenger dialogue box of a person "having a chat with another person in Yahoo" would look versus a message copied from the Instant Messenger dialogue box and pasted into Notepad. Defendant explained that a printout directly from Instant Messenger is dated and time-stamped, while a printout from Notepad is "paste[d] in paints and file and then you can print it[,]" but that in Notepad, the message itself can be changed, altered, or manipulated. At the conclusion of the presentation of defendant's case, the court, over plaintiff's objection, admitted defense exhibits that defendant identified as two instant messages between the parties. Defendant did not seek to introduce the documents marked for identification as D-3.

At the conclusion of the testimonial stage of the trial, the court found that defendant had committed an act of harassment and that plaintiff was in need of further protection through a final restraining order. In reaching its decision, the court found:

The plaintiff has testified that she sustained burn marks as a result of being burnt by the defendant in the summer of 2006. The Court observed two [] one[-]inch scars and one [] two[-]inch scar on her right arm that are still visible to the Court as of January 30th of 2008. The Court notes that this - - there is no testimony by Mr. Karnik regarding how the plaintiff sustained these injuries and the Court does find that they were committed upon her at the hand of the defendant Mayur Karnik. So, the Court does find there is a history of domestic violence, at least one serious injury that was sustained by the plaintiff during the course of the marriage in the summer of 2006. The Court finds that specifically that Ms. Shah's testimony is credible and unrebutted regarding that incident.

. . . .

The Court does find the testimony of Krinal Shah to be credible that these communications were received from the defendant on November 19th, that she did in fact contact the police and that she downloaded these communications by Notepad. During cross-examination she candidly admitted that she did not know if Notepad could be altered, which the Court finds corroborates her credibility in this matter. If she did alter the Notepad, then she certainly would know that you could alter them, and the fact that she stated that she didn't know lends to her credibility that perhaps they could be altered, but the Court finds that she did not do so.

The Court specifically rejects the alibi testimony presented by Mr. Karnik's witness, although he testifies as to events that occurred on November 22nd, 2007.

On appeal, defendant contends that the electronic communications plaintiff was allowed to introduce into evidence were not properly authenticated and there was insufficient evidence to support the trial court's finding that defendant harassed plaintiff. We reject each of these contentions and conclude they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

At the outset, the record makes clear that although defendant's prior attorney stipulated to the accuracy of the translation, he did not stipulate to the admissibility of plaintiff's exhibit. Nor did plaintiff formally move to introduce the documents. Instead, the court simply treated them as admitted documents, and defense counsel never alerted the court that defendant only stipulated to the accuracy of the translation, not to the admissibility of the exhibits.

When the matter was before the court on the second day of trial on January 7, 2008, defendant's new attorney advised the court that he was unaware of what happened during the prior hearing, at which point the court indicated that plaintiff's exhibits had been admitted into evidence. Defense counsel indicated to the court, however, that he had requested the tape of the earlier proceeding and that it would be available that very day. The third trial day took place one week later. We presume that in the interim, there was sufficient time to listen to the December 12 tape of the proceedings.

At no time when the trial resumed on February 6, 2008, did defense counsel alert the court to the fact that it had mistakenly believed the documents had been admitted into evidence or, alternatively, had erroneously admitted the documents into evidence sua sponte. Consequently, we consider any challenge to the admissibility of the documents on the grounds that the documents were not properly authenticated, as waived. Because there was the opportunity to challenge the admissibility of the documents, we will not consider defendant's claim that the documents were not properly authenticated. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Turning to defendant's claim that the evidence failed to support the court's finding that defendant committed an act of harassment, we acknowledge that there was no direct evidence that the communications emanated from defendant. However, the e-mail was sent from an e-mail address assigned to defendant and the subject matter related to the parties' relationship. The court was permitted to accept this evidence as circumstantial evidence that defendant was in fact the person who authored and transmitted the messages.

Under N.J.S.A. 2C:33-4(a), a "person commits a petty disorderly persons offense if, with purpose to harass another, he . . . [m]akes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4(a). "A violation of subsection (a) requires the following elements: (1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient." State v. Hoffman, 149 N.J. 564, 576 (1997). A purpose to harass may be inferred from circumstantial evidence. See State v. Castagna, 387 N.J. Super. 598, 606 (App. Div. 2006) (citing State v. Siegler, 12 N.J. 520, 524 (1953)) (noting "there is rarely direct proof of intent, and purpose [to harass] may and often must be inferred from what is said and done and the surrounding circumstances").

 
The trial court had the opportunity to consider the testimony of the witnesses and to judge their credibility under both direct and cross-examination. The court found the testimony of plaintiff more credible. We defer to the trial court's credibility determination and, in doing so, we are satisfied there is substantial credible evidence in the record to support the court's finding that defendant committed an act of domestic violence and that a FRO was necessary to protect plaintiff. Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006). We defer to those findings. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (holding a trial court's findings of fact "are binding on appeal when supported by adequate, substantial, credible evidence").

Affirmed.

The transcript of the proceeding was included in the appellate record and consists of twenty pages of colloquy between the court, plaintiff, defense counsel, and the interpreter regarding the translation of the portion of the proffered messages that were in Gujurati.

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9

A-3561-07T2

RECORD IMPOUNDED

April 29, 2009