STATE OF NEW JERSEY v. RYAN ZYLSTRA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5862-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RYAN ZYLSTRA,

Defendant-Appellant.

December 14, 2010

Submitted October 12, 2010 - Decided

 
Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FO-02-1168-09.

DiLorenzo & Rush, attorneys for appellant (Chris M. DiLorenzo, of counsel and on the brief).

CameliaM. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ryan Zylstra appeals from a disorderly persons conviction resulting from his violation of a final restraining order (FRO) issued under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. See N.J.S.A. 2C:29-9(b). Defendant was subject to the mandatory sentencing provisions of N.J.S.A. 2C:25-30, as this was his second contempt conviction. Accordingly, he was placed on a year's probation, required to serve thirty days in county jail,1 pay a $50 Violent Crimes Compensation Board penalty, and a $75 Safe Neighborhood assessment. We affirm.

The complaint alleged that defendant on February 23, 2009, while in Wayne Township, violated the FRO "by following the [complainant], [K.P.], . . . and did continue to follow the complain[ant] in a vehicle, through Wayne Township into the Town of Oakland . . . ." The December 4, 2008 FRO prohibited defendant from contact with K.P., from following her, or from going to her home or place of employment.

K.P. testified at the contempt trial that on the date in question, when she arrived at her job at approximately 9:00 a.m., she noticed defendant driving by on a side road. After work, she went to a gym in Wayne.

When K.P. left the gym at about 7:30 p.m., she saw defendant again, this time parked directly in front of the facility. As she put it, she had a "perfect view" of him seated in his car. K.P. was also familiar with the license plate on defendant's vehicle, and recognized the number. She walked from the front door of the gym to her own car, parked a short distance from defendant. He drove away after a moment, headed towards West Paterson on Hamburg Turnpike.

K.P. proceeded in the opposite direction on Hamburg Turnpike towards Oakland. Once she rounded the corner, within a minute, defendant pulled in behind her; there were no cars between them. K.P. slowed to a crawl and put on her hazard lights, maneuvering onto the right-hand shoulder. Defendant followed her for a couple of miles, finally turning off at a side road. While being followed, K.P. called defendant's mother; she also called and attempted to speak with defendant's attorney. K.P.'s mother testified briefly, corroborating that her daughter sent her a text message when defendant passed her at the front door of her workplace that morning. K.P. immediately reported the day's events to the police. This was the sum and substance of the trial.

When the judge found defendant in contempt of the domestic violence restraining order, he stated the obvious the testimony of the victim in this case "is not contradicted by any testimony on behalf of the [d]efendant." The judge reiterated K.P.'s testimony, and concluded that "the actions of the [d]efendant constitute a knowing violation of the restraining order."

On this appeal, defendant argues:

POINT I

DEFENDANT'S ACTIONS AT WORLD'S GYM DO NOT AMOUNT TO A VIOLATION OF THE FINAL RESTRAINING ORDER NOR SUPPORT A FINDING OF GUILTY BEYOND A REASONABLE DOUBT

POINT II

THE DEFENDANT'S ACTIONS IN DRIVING HIS VEHICLE BEHIND THE COMPLAINANT'S VEHICLE DID NOT AMOUNT TO A KNOWING FOLLOWING OF THE COMPLAINANT IN VIOLATION OF THE RESTRAINING ORDER

POINT III

COMPLAINANT'S OBSERVATION OF DEFENDANT IN MAHWAH IS IRRELEVANT AS TO PROOF OF GUILT IN THIS CASE

POINT IV

ALTERNATIVELY, THE DECISION MUST BE REVERSED AND THE CASE REMANDED FOR A NEW TRIAL BECAUSE THE TRIAL COURT IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT

We review the trial court's factual findings deferentially. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence"). As the Supreme Court recently noted in State v. Nunez-Valdez, 200 N.J. 129, 141 (2009), "[a] reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record." The Court added, "[a]n appellate court 'should 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. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

The judge's determination that the restraining order had been violated was supported by ample, substantial, and credible evidence in the record. We affirm based upon his analysis, and add the following brief comments solely by way of response to the contentions raised by defendant on appeal.

Defendant asserts first that his presence outside K.P.'s gym did not constitute a violation of the FRO. That argument lacks merit. Nothing in the record legitimized his presence. The only reasonable inference that can therefore be drawn from the State's proofs is that he was at the gym for the sole purpose of contact with K.P. in violation of the FRO.

Defendant's second point, that following K.P.'s car was not a violation of the FRO, also lacks merit. When defendant followed the complainant's vehicle, even after she put on her hazard lights and drove slowly in the shoulder, he engaged in conduct that lends itself to only one explanation. He was following K.P., thereby violating the order.

Defendant's third point is that K.P.'s observation of defendant as she walked into her workplace was irrelevant. To the contrary, it was highly probative, as it set the stage for defendant's subsequent contacts with K.P. over the course of the day. It was properly admitted as circumstantial evidence of his intent during the later events.

Defendant's final claim is that the court impermissibly shifted the burden of proof to him and away from the State. In support of the contention, defendant mischaracterizes the court's closing comments. The judge said, as quoted in the transcript, that the victim's testimony "is not contradicted by any testimony on behalf of the defendant." The court did not say, as defendant asserts in his brief, that the victim's testimony needed to be but was "not contradicted by any testimony of the defendant." The court was merely commenting upon the absence of any proofs refuting any portion of the victim's testimony. The comments did not indicate the court impermissibly shifted the burden of proof to defendant.

A

1 The sentence was stayed pending the disposition of this appeal.