STATE OF NEW JERSEY v. MOHAB ELSANHOURY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4774-07T44774-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MOHAB ELSANHOURY,

Defendant-Appellant.

__________________________________

 

Submitted April 22, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. FO-09-325-08 and FO-09-383-08.

Marc J. Friedman, attorney for appellant.

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Jane L. Weiner, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Mohab Elsanhoury appeals his conviction for criminal contempt for violating a domestic violence restraining order, N.J.S.A. 2C:29-9(b), and for harassment, N.J.S.A. 2C:33-4. The harassment count was merged into the contempt count at the time of sentencing. We affirm.

I

We glean the following facts from the record. On February 6, 2008, the Chancery Division, Family Part entered a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The FRO prohibited Elsanhoury from having contact with Deborah Milian and from going to her residence. Prior to the entry of the FRO, Elsanhoury and Milian had dated for approximately four years. They have one daughter who was age three-and-one-half at the time of trial. It appears that the parties have had a contentious and litigious relationship concerning their daughter.

Milian filed two separate criminal complaints against Elsanhoury for violating the FRO. Each complaint charged Elsanhoury with contempt for violating the FRO and with harassment. The first complaint was filed on February 15, 2008, and was premised on Milian's allegation that Elsanhoury contacted the Division of Youth and Family Services (DYFS) and made a false allegation of abuse of their daughter against her. The second complaint was filed on March 10, 2008, and was premised on Milian's allegation that Elsanhoury went to her home, rang the bell, and banged on the front door.

Both complaints were tried before Judge Salvatore Bovino in the Family Part on April 29, 2008. After presentation of the State's case, Judge Bovino dismissed the charge related to the call to DYFS. Consequently, we need not set forth the testimony concerning that allegation.

Concerning the second charge, Milian testified that on March 10, 2008, she returned home at approximately nine or ten p.m. About ten minutes later, the doorbell rang. She looked out the window and saw Elsanhoury standing at the front door, looking up, ringing the doorbell, and banging on the door. She then saw him get into a white van, which she had never previously seen, and leave. At the conclusion of her direct examination, she admitted that she had a criminal conviction in New York.

On cross-examination, Milian testified that she worked as a legal secretary. After the alleged incident, she spoke to her mother and then her lawyer, prior to contacting the police. She explained that both the doorbell and the front door were on the first floor, whereas she lived on the second floor. She testified that her landlord lived on the first floor. She asked the landlord on the following day about the banging on the door, but the landlord said that she had heard nothing. Milian also testified that before she left for the police station, she had to dress her daughter. However, she later admitted that the child was already dressed, having been put to bed with her clothes on.

Elsanhoury testified that he had been in court at least fifteen times with respect to Milian and their child. He testified that he had no knowledge of Milian's address. Although his attorney had requested information about where his daughter was living, they never received that information.

Elsanhoury stated that he was not at Milian's home on March 10, 2008. He also testified that he did not own a white van, nor did he have any friends who own such a van. He testified that, at the time of the alleged incident, he was at home in Belleville.

After the trial was completed, Judge Bovino found Elsanhoury guilty on both counts of the second complaint. The harassment charge was merged into the contempt charge. Elsanhoury was given a non-custodial sentence, and assessed applicable fines and penalties. This appeal followed.

II

On appeal, Elsanhoury raises the following issue:

THE FINDING OF GUILT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

The gist of Elsanhoury's argument is that there was insufficient evidence to warrant a finding that Milian's testimony was truthful. To support his position, Elsanhoury points to inconsistencies in Milian's testimony, Milian's prior conviction, and his own testimony that he did not even know where Milian resided.

Although the standards of proof may be different, our scope of review of the factual findings of a judge sitting without a jury is quite limited, whether the context is criminal or civil. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We are obligated to "review the record in the light of the contention [that the trial court erred in determining the facts], but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." Johnson, supra, 42 N.J. at 161.

Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord Locurto, supra, 157 N.J. at 470-71. When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid. See also Cesare v. Cesare, 154 N.J. 394, 411 (1988); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007).

Because the matter was tried as a disorderly persons offense in the Family Part, the following language of N.J.S.A. 2C:29-9(b) is applicable: "a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of [the Prevention of Domestic Violence Act]." There is no question that Elsanhoury knew there was an FRO and that the FRO prohibited him from going to Milian's residence. The question at trial was whether he did so.

Judge Bovino addressed the issue of credibility in his oral opinion, as follows:

The issue is one of credibility . . ., the person's believability having considered their demeanor, the nature of their testimony, consistency, inconsistency within, between, among the witnesses that testified corroborated by documentary evidence, impeached by documentary evidence. Most of these offenses take place in the privacy of a home environment not very often corroborated by independent witnesses, no video tape as to what happened. Miss Milian is adamant that she observed Mr. Elsanhoury at her home on, on March 10th, having both parties acknowledge they have been in court on March 10th on a variety of court matters. Mr. Elsanhoury enters a general denial that it couldn't be me because I was home by myself. So obviously he has no, no alibi witnesses so to speak. He's not obligated to disprove the State's allegations. The State is obligated to prove the allegations.

Miss [Milian] does acknowledge that she was previously convicted of a criminal offense. It's not clear from the record as to what the nature or degree of that offense is. I assume for the record that it was an indictable offense. If it wasn't an indictable offense I suspect the State would not have raised the issue. Obviously the judgment of conviction would be evidential in terms of credibility, but the testimony was that that incident took place [in] 1996 . . . .

. . . .

Having had the opportunity to observe the demeanor of the witnesses, Miss Milian was cross examined rather extensively as to what happened. She was extensively cross examined on both incidents, the incident involving the injury to the child and the incident of March 10th as to how Mr. Elsanhoury was dressed, where the car was parked, type of car, tires on the car, doors on the car, how close she was to Mr. Elsanhoury. The one thing that's consistent in her testimony is that Mr. Elsanhoury was at her house on March 10th at about 9:00 o'clock or so.

Having considered the standards of credibility and believability I'm satisfied that the testimony of [Miss Milian] is more than sufficient to persuade me that Mr. Elsanhoury was at her house on March 10th. I'm satisfied beyond a reasonable doubt that Mr. Elsanhoury is of the mind that it's his way [or] no way, and if he doesn't get what he wants he'll take it to another level.

Based upon our review of the record, we conclude that Judge Bovino's finding, made by the required standard of beyond a reasonable doubt, that Elsanhoury did, in fact, go to Milian's residence is amply supported by the record, especially given his opportunity to view the witnesses and the judge's feel of the case. Having reached that conclusion, our task is complete.

 
Affirmed.

Because the harassment count was merged into the contempt count, we do not address it separately.

(continued)

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A-4774-07T4

July 17, 2009