STATE OF NEW JERSEY v. T.G

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4018-07T44018-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

T.G.,

Defendant-Appellant.

_________________________________________________

 

Submitted September 9, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey,

Chancery Division, Atlantic County, Docket No. FO-01-215-08.

Law Offices of Gary P. Levin, attorney for appellant (Gary P. Levin, on the brief).

Theodore F. L. Housel, Atlantic County

Prosecutor, attorney for respondent

(Courtney M. Cittadini, Assistant County

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, T.G., appeals from judgments of conviction entered by a judge of the Family Part, following a bench trial, declaring him guilty of contempt arising from violation of a final restraining order (FRO) entered under the provisions of the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:29-9, and harassment, N.J.S.A. 2C:33-4a. On appeal, defendant makes the following arguments:

A. THE TRIAL COURT IMPROPERLY FOUND DEFENDANT - APPELLANT GUILTY BECAUSE THE EVIDENCE DID NOT SUPPORT A FINDING THAT DEFENDANT'S PURPOSE WAS TO HARASS [S.G.] OR THAT DEFENDANT - APPELLANT COMMITTED AN ACT OF HARASSMENT.

1. THE TRIAL COURT IMPROPERLY FOUND DEFENDANT - APPELLANT GUILTY OF VIOLATING AN ORDER ENTERED UNDER THE PROVISIONS OF THE PREVENTION OF DOMESTIC VIOLENCE ACT WHEN IT FAILED TO FIND THAT DEFENDANT - APPELLANT ACTED WITH A PURPOSE TO HARASS.

2. THE TRIAL COURT IMPROPERLY FOUND DEFENDANT - APPELLANT GUILTY OF HARASSMENT WHEN THE TRIAL COURT DETERMINED DEFENDANT - APPELLANT UTTERED INTENSIVELY COARSE LANGUAGE AND NEVER DETERMINED AN INTENT TO HARASS.

Following our review of the arguments of counsel in light of the record on appeal and applicable precedent, we affirm.

The record reflects that, on December 3, 2007, an FRO was entered against defendant that, among other things, prohibited him from "having any (oral, written, personal, electronic or other) form of contact or communication with" his then-wife, S.G.; prohibited harassment of her; and prohibited him from following her.

At the time the FRO was entered, the parties had separated, having done so in July 2007, following an approximately nine-year marriage and the birth of two children: a girl, age 8, and a boy, age 6. On January 5, 2008, both S.G. and defendant attended a basketball game at a local church, in which their son was to play and their daughter was to perform as a cheerleader. S.G. was accompanied at the game by her fifteen-year-old son, her mother, and her boyfriend, W.F., the coach of the younger son's basketball team. S.G. acted as the cheerleading coach. Defendant, who had custody of the younger two children that day, was accompanied by his stepdaughter and her baby.

The record establishes that, following destruction of the parties' home by fire, a two-year period in which S.G. was believed to be suffering from a fatal illness, the rebuilding of the parties' home, and the establishment of S.G. in business, S.G. engaged in a year-long affair with W.F., commencing in May 2006. The affair was discovered by defendant in May 2007, and its existence, in defendant's words, "splintered" the family.

The basketball game provided the first opportunity for defendant to see S.G. with W.F. At first, matters were amicable. According to defendant's testimony, S.G. greeted defendant as he entered the gym, and she spoke to him again at the midpoint and at the end of the game. Defendant testified that S.G. and W.F. could be seen kissing and hugging during the course of the game. At its conclusion, S.G. and W.F. left the gym with the daughter and proceeded down a hallway to the church's nursery for an awards ceremony focused on the cheerleaders. Rather than waiting at the gym or church door, defendant followed S.G. down the hall, accompanied by his stepdaughter and her baby. There, defendant waited outside of the closed door of the nursery for his daughter to emerge. S.G., observing defendant through a window in the closed door, testified that he appeared to be aggravated.

Approximately twenty minutes later, S.G. left the nursery. According to her, she told defendant that their daughter would be out shortly, and after asking him how she had done, S.G. received defendant's praise as a cheerleading coach. However, S.G. testified that, shortly thereafter, defendant became angry and started yelling at S.G., repeatedly saying: "You must keep him ten feet away from me at all times or I'll kill him" and "I'm going to kill him, [h]is day is coming." When W.F. exited the nursery, defendant confronted him, approaching within six inches and again repeatedly yelling: "You must stay ten feet away from me at all times or I'll kill you." And further, "I'm not afraid of you. We can take it outside. We can handle this like men. It may not be today but someday your day's going to come." W.F., according to both S.G. and defendant, merely stood there with his hands in his pockets, conduct that appears to have enraged defendant. S.G.'s mother called 9-1-1.

Somewhat later, according to S.G., W.F. started to walk away, and after the distance between him and defendant had increased to fifteen or twenty feet, defendant abruptly started walking in W.F.'s direction. At this point, according to S.G., she became worried that violence would ensue. However, defendant's stepdaughter intervened, saying to defendant: "It's not worth it." She then started to escort defendant from the building, holding defendant by the arm. S.G., W.F. and the mother proceeded to the police station, where S.G. swore out a complaint against defendant. In a statement given to the police, S.G. stated that defendant had yelled profanities at W.F., screaming at a six-inch range, "stay ten feet away from me or I'll kill you. Come on you fucking piece of shit. Let's [take] it outside." Defendant returned to his residence with the two children where, following the arrival of three police cars and preliminary questioning, he was arrested.

The testimony of W.F. at trial substantially corroborated that of S.G..

Defendant's testimony differed from S.G.'s in significant respects. He acknowledged that he and his stepdaughter had gone to the nursery to await defendant's daughter. He also acknowledged that he had spoken to S.G. and to W.F. outside the nursery, and defendant acknowledged that he had requested W.F. to stay ten feet away from him. However, he testified that he did so because W.F. was blocking the passage of defendant's daughter, making it impossible for her to reach her father, and also because he did not want any trouble. Defendant denied that he felt any anger toward W.F., stating that he was merely "disgusted" at what had occurred. Defendant testified:

I didn't know anyone that could do to my family what those individuals together had done, forcing me to watch the game, you know, I mean to me inspired no sort of hatred or anger but, rather, a lot of disgust. . . .

The subterfuge that went into the hiding of all this and now it's out in the open is really what disgusted me. But I was not angry if that's what you're trying to get at.

Defendant insisted that his tone had, at all times, remained civil and that his words had remained polite. While acknowledging that he could have resolved the situation with his daughter by simply asking W.F. to "please move," he testified that he chose a more "legalistic" approach. Defendant denied that he had been in any respect restrained by his daughter.

Defendant's stepdaughter confirmed defendant's view of the events.

At the conclusion of the trial, the Family Part judge, crediting S.G.'s testimony and characterizing that of defendant as what he wished he had said, found both that defendant had violated the restraining order entered against him, and that he was guilty of harassment. Minimum fines and penalties were imposed.

In reviewing the judge's factual findings in this criminal matter, we are bound by the standards set forth in State v. Johnson, 42 N.J. 146 (1964), which provide that deference be given to the credibility determinations of the trial judge, and that his factual conclusions be overturned only if those conclusions are not supported by credible evidence in the record. Id. at 162. Deference to Family Part judges is particularly warranted as the result of their recognized experience in domestic relations cases. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We review the judge's legal conclusions de novo. Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995). Under these standards, we find the verdicts against defendant to have been fully supported.

N.J.S.A. 2C:29-9b provides that a person is guilty of a crime of the fourth degree if he "purposely or knowingly violates any provision in an order entered under the provisions of the 'prevention of Domestic Violence Act of 1991.'" In this matter, an FRO was entered pursuant to that Act, prohibiting defendant from committing an act of harassment against S.G., having contact with her, and following her. N.J.S.A. 2C:33-4a provides that a person is guilty of an act of harassment if, with purpose to harass, he "makes a communication . . . in offensively coarse language, or any other manner likely to cause annoyance or alarm."

Testimony in the record, accepted by the trial judge as accurately reporting the events that occurred, establishes that defendant, knowing of the relationship between S.G. and W.F., first followed S.G. and W.F. to the church nursery, then orally contacted S.G., yelled at S.G. regarding the distance from defendant that W.F. was required to maintain, and, finally, continued his diatribe against W.F., using offensively coarse language in the process and attempting to pick a fight. Although the trial judge did not find specifically that defendant "knowingly" violated the FRO in acting in the fashion that the judge found had occurred, that knowledge can be inferred from defendant's evident understanding that an FRO remained in effect and from the circumstances surrounding defendant's actions. State v. Breakiron, 108 N.J. 591, 605-06 (1987).

That defendant followed and contacted S.G. is clear. Further, we are satisfied that the evidence was sufficient to support the legal conclusion that defendant was guilty of harassment of her as defined in N.J.S.A. 2C:33-4a. Such a finding requires both evidence of a purpose to harass and evidence that harassment as statutorily defined did, in fact, occur. State v. Hoffman, 149 N.J. 564, 577 (1997). Here again, the trial judge did not explicitly find a purpose to harass. Nonetheless, we regard that determination to have been implicit in his verdict and sustainable as a matter of fact. In this regard, purpose can be inferred from the evidence presented and from common sense and experience. Ibid. Here, the evidence suggested considerable animosity on defendant's part arising from the circumstances of S.G.'s infidelity and the couple's intention to divorce. The day the incident occurred was the first time that defendant had directly encountered W.F., who was observed kissing and hugging S.G.. After an initial period of civility, defendant reacted to what he was observing with a violent verbal outburst that could not be justified, despite defendant's testimony that his communications with W.F. were uttered for the purpose of getting W.F. to move out of his daughter's path. Such explanation defies common sense. Moreover, it cannot be said that defendant's conduct was a justifiable reaction to a hostile act by W.F., there being none. In view of the circumstances presented, it is difficult to conclude that defendant's conduct was anything other than "purposely" harassing.

Moreover, we are satisfied that defendant's conduct constituted harassment of S.G., as well as W.F. In reaching this conclusion, we recognize that S.G. was the recipient of only a portion of defendant's angry directives. Nonetheless, the record discloses that defendant's outburst, however directed, caused alarm to S.G., who testified that she was concerned that matters would turn physical and that defendant would become physically violent.

In reaching the conclusion that defendant's conduct was harassing, we note that the confrontation that occurred escalated well beyond the scope of the marital arguments and attendant threats that were the subject of decisions in which harassment was not found to have occurred. See, e.g., Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995) (finding no intent to harass when estranged husband, seeking money to pay bills, called wife on two occasions at work and had her phone disconnected); Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995) (finding no purpose to harass when husband, in the course of a dispute over disposition of his property, told his wife, "I'll bury you"); D.C. v. T.H., 269 N.J. Super. 458 (App. Div. 1994) (finding threat to mother, arising from boyfriend's corporal punishment of natural father's child, did not constitute harassment). See also Murray v. Murray, 267 N.J. Super. 406 (App. Div. 1993) (holding that husband's statements that wife was not physically or sexually attractive were not uttered with the purpose of harassment); E.J. v. G.R., 241 N.J. Super. 567 (App. Div. 1990) (mother's admitted loss of temper and violence toward child on one occasion did not constitute harassment of father).

Accordingly, we affirm.

N.J.S.A. 2C:25-17 to -35.

S.G. testified that, according to the court's order, defendant was merely to drop off and pick up his kids from the game. However, the judge orally permitted defendant to remain at the game with S.G.'s permission.

(continued)

(continued)

11

A-4018-07T4

 

September 21, 2009