STATE OF NEW JERSEY v. STEPHEN LANGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1836-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN LANGAN,

Defendant-Appellant.

________________________________

November 24, 2010

Argued: November 4, 2010 - Decided:

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FO-13-448-09.

Michael J. Gunteski argued the cause for appellant (Jacobwitz, Defino, Latimer & O'Toole, attorneys; Mr. Gunteski, on the brief).

Patricia Quelch, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Mary R. Juliano, Assistant Prosecutor, on the brief).

PER CURIAM

Following a bench trial in the Family Part, a judge found defendant, Stephen Langan, guilty of fourth-degree contempt, N.J.S.A. 2C:29-9(b) (Count One); and petty disorderly persons defiant trespass, N.J.S.A. 2C:18-3(b)(1) (Count Two). The trial judge sentenced defendant to concurrent terms of one year probation and required defendant to attend and complete a domestic violence program. Defendant contends the judge erred by not dismissing the charges and by failing to consider his affirmative defense. We disagree and affirm.

Defendant and C.M. were married for twelve years and had two children together. On July 22, 2008, while still married to defendant but after she filed for divorce, C.M. obtained a temporary restraining order (TRO) that barred defendant from returning to the marital home and prohibited defendant from having any contact with her. On August 11, 2008, C.M. and defendant consented to a new TRO with an understanding that "[e]ither party can make an application for a final hearing before the court." Defendant stipulated that he was served with the new TRO.

The new TRO permitted defendant to visit the children under conditions "as arranged between counsel in the FM litigation." Defendant was allowed to pick up and drop off the children at the curbside of the marital home. He was not allowed at the home for any other purpose. The new TRO continued to bar defendant from having any form of communication with C.M.

On March 6, 2009, around 7:00 p.m., C.M. observed defendant from her kitchen window standing at her mailbox on the property of the marital home. C.M. stepped out onto her porch and observed defendant going through her mail in the mailbox. Defendant remained on C.M.'s property for approximately five to ten minutes. C.M. reported the incident immediately to the police, and after defendant left, C.M. discovered that defendant had left a support check in an unstamped envelope in her mailbox, and had opened her mail.

Defendant testified at the trial that he did not appear at the home that night because he was at a restaurant until around 8:30 p.m. His friend, Patrick Murphy, testified that he was at the restaurant with defendant until approximately 9:00 p.m. Another friend, Michael Zitzner, testified that he was with defendant and Murphy at the restaurant and that he offered to deliver the support check to C.M.'s home that night. Defendant testified that he accepted Zitzner's offer.

C.M. was clear that she recognized defendant going through her mail on her property. Zitzner was approximately five feet three inches tall, had blond hair, and was very thin. Defendant was six feet one inch tall and weighed 240 pounds. C.M. is "very sure" that she did not confuse defendant for Zitzner.

The judge concluded that C.M. made a credible witness and stated that "[s]he was quiet, testified in a relaxed fashion. She had a good recall of the facts." The judge found that defendant, Zitzner, and Murphy did not make good witnesses. The judge observed that Zitzner "was defensive, and very flip during the entire course of his testimony." He also found Murphy's testimony "incredible under the circumstances." The judge explained that "[March 6] was not a day where the defendant was supposed to visit the children, and he had no right or purpose to be [on C.M.'s property]." The judge found that the State proved beyond a reasonable doubt that defendant violated the new TRO and that he committed an act of defiant trespass.

On appeal, defendant argues that the State failed to prove the elements of defiant trespass, and that he knowingly and purposefully violated the new TRO. He contends that the judge erred by not considering his affirmative defense under N.J.S.A. 2C:18-3(d)(3), and erred by not dismissing the charges as de minimis infractions pursuant to N.J.S.A. 2C:2-11.

I

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, due to the family courts' special jurisdiction and expertise in such matters, we defer to a family court's fact-finding. Id. at 413. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)(quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).
When a trial judge has heard the testimony of witnesses, had the opportunity to observe their demeanor, and has rendered detailed findings of fact, our review of those findings is extremely narrow. State v. Locurto, 157 N.J. 463, 470-71 (1999). An appellate court does not "engage in an independent assessment of the evidence as if it were the court of first instance." Id. at 471. Instead, we must "'give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). So long as the judge's findings of fact "'could reasonably have been reached on sufficient credible evidence present in the record . . . [considering] the proofs as a whole[,]'" they are binding on us. Ibid. (quoting Johnson, supra, 42 N.J. at 162).

II

On the record presented we are satisfied that the State's credible proofs were sufficient to support a conclusion beyond a reasonable doubt that defendant was guilty of defiant trespass. In relevant part, N.J.S.A. 2C:18-3b provides that:

A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(1) Actual communication to the actor . . . .

Defendant had actual notice that he was not permitted to enter C.M's property except at curbside to pick up and drop off the children. Defendant entered onto C.M.'s property on a night when he was not scheduled to pick up the children.

III

We are also satisfied that the State's credible proofs were sufficient to support a conclusion beyond a reasonable doubt that defendant was guilty of violating the new TRO that allowed him to be at C.M.'s residence on visitation days only.

Pursuant to N.J.S.A. 2C:29-9(b), "a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the 'Prevention of Domestic Violence Act [Act] of 1991,' P.L.1991, c.261 (C.2C:25-17 et al. . . . .)."

Defendant drove to C.M's property, entered it, remained there for five to ten minutes, placed a support check in her mailbox, and opened and read her mail. From defendant's conduct, the State demonstrated circumstantially that he purposely and knowingly violated the Act. "Circumstantial evidence can support a verdict against a defendant if it is sufficient to generate a belief of guilt beyond a reasonable doubt." State v. Papistas, 80 N.J. Super. 420, 424 (App. Div. 1963); see State v. Jenewicz, 193 N.J. 440, 451 (2008) ("A defendant's state of mind at the time of an alleged crime is inherently intangible and, therefore, is proven predominantly through witness testimony and circumstantial evidence.").

Defendant consented to the new TRO after C.M. charged him with harassment pursuant to N.J.S.A. 2C:25-19a, stipulated that he was served with the TRO and knew of its existence on the night in question, and appeared on the marital residence property.

IV

Defendant argues that the judge erred by not considering his affirmative defense under N.J.S.A. 2C:18-3(d)(3). "It is an affirmative defense to [defiant trespass] that . . . [t]he actor reasonably believed that the owner . . . would have licensed [defendant] to enter or remain . . . ." Ibid. The affirmative defense is unavailable to defendant because there is no evidence to support it. See N.J.S.A. 2C:1-13b(1) (The State is not required to disprove an affirmative defense "unless and until there is evidence supporting such defense. . . .").

Defendant cannot credibly argue that he reasonably believed that C.M. "would have licensed him to enter or remain" on her property. Defendant testified that he did not go to C.M.'s house that night. It is inconsistent to argue, then, that he did go to her house and believed that C.M. permitted him to enter the marital property. Defendant's defense is that he was not there.

Defendant explained that he himself had placed support checks in the mailbox on previous occasions when he went to pick up his children. Defendant admitted, however, that he stopped delivering support checks to the mailbox because C.M. had objected. After C.M. complained, it had been months since defendant attempted to deliver support checks to her mailbox. Instead, defendant delivered her support checks to C.M.'s lawyer, as C.M. had requested. There is no credible evidence that it was reasonable for defendant to believe that he was entitled to enter C.M.'s property to go through her mail.

V

We reject defendant's argument the trial judge erred by not dismissing the charges pursuant to the de minimis infraction statute, N.J.S.A. 2C:2-11. The de minimis statute provides:

De Minimis Infractions. The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it [sic] finds that the defendant's conduct:

a. Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;

b. Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or

c. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The assignment judge shall not dismiss a prosecution under this section without giving the prosecutor notice and an opportunity to be heard. The prosecutor shall have a right to appeal any such dismissal.

[Ibid.]

Putting aside the fact that defendant's de minimis application was made to the trial judge rather than to the assignment judge, defendant stayed on C.M.'s property for five to ten minutes, was visible from the kitchen window, and opened C.M.'s mail. The Act "effectuates the notion that the victim of domestic violence is entitled to be left alone. To be left alone is, in essence, the basic protection the law seeks to assure these victims." State v. Hoffman, 149 N.J. 564, 584 (1997). "An abuser who spontaneously appears . . . without any legitimate purpose enhances the victim's apprehension." Id. at 586. Defendant's violation of the TRO was not trivial or inconsequential.