STATE OF NEW JERSEY v. S.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4052-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

S.D.,

Defendant-Appellant.

__________________________________

February 22, 2013

Submitted February 4, 2013 - Decided

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Middlesex County, Docket No. F0-12-207-11G.

S.D., appellant pro se.

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Brian D. Gillet,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant S.D. appeals from the March 11, 2011 judgment of the Family Part finding him guilty of contempt for violating a final restraining order (FRO) entered against him on January 28, 2010, N.J.S.A. 2C:29-9(b),1 and of the disorderly persons offense of criminal mischief, N.J.S.A. 2C:17-3(a). He was sentenced to one year probation.2 We affirm.

The January 28, 2010 FRO barred defendant from, among other things, any oral or written contact with his estranged wife, D.D., and from her residence in Parlin, where she lived with their ten year old son, A.D., who is autistic and suffers from insomnia. According to the State's proofs, at around 4:00 a.m. on June 2, 2010, D.D. was awake in her home, having taken care of A.D., who had just fallen asleep. She heard her two watch dogs barking and looked out her window. The street light and outside light at the house illuminated defendant pulling the storm door very hard and kicking the electrical outlet outside the front door. She also saw defendant place something in her mailbox before he left on a silver, fold-up bicycle.

Fearful, D.D. did not venture outside but waited until the morning to retrieve the letter in the mailbox, which was addressed to her, care of her attorney, and expressed defendant's dissatisfaction concerning his supervised visitation with A.D. She also observed at the time damage to the storm door as well as to the outdoor electrical outlet near the front door, estimated to cost about $125 to repair. None of this damage was present the day before. She then reported the matter to the police and complaint warrants were issued.

Defendant denied being present at D.D.'s home. Although he admitted writing the letter found in D.D.'s mailbox, he claimed he had mailed it to D.D.'s attorney. Defendant explained that he was at his home all evening the former marital residence, where he currently resides with his girlfriend, M.T., who testified similarly.

At the close of evidence, the Family Part judge found the testimony of defendant and M.T. "lacking in credibility." In contrast, the judge credited the account of D.D., whom he found to be "forthright," "as she responded directly to the questions asked of her and her demeanor comported accordingly." Consequently, he adjudicated defendant guilty of contempt for violation of the outstanding FRO and of criminal mischief, reasoning:

But, again, the testimony that has been presented clearly establishes opportunity and an ability for the defendant to have left [his] residence unnoticed from the window of the second floor as had been testified to was a practice that took place in the past.

For all of the aforementioned reasons and based upon these findings, the Court does find that the State has established its burden of proof beyond a reasonable doubt that on June 2nd, 2010, the defendant, by way of his presence at [D.D.'s residence], as well as the communication left by him in the mailbox of [D.D.] did, indeed, violate the provisions of the final restraining order that was in effect and . . . additionally, the State has established the defendant did purposely damage the tangible property belonging to the victim, [D.D.], by pulling the door in a hard fashion to have upset its placement on the hinges, and that he, by reason of the kick to the electrical outlet thereby damaging those two items by his conduct does find him guilty of both

. . . charges.

On appeal, defendant essentially argues that the trial court's factfindings were wrong. When error in factfinding of a judge is claimed, the scope of our review is exceedingly narrow. State v. Johnson, 42 N.J. 146, 161-62 (1964). Thus, the aim of our review is "to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record[,]" considered as a whole. Id. at 162. We do not weigh the evidence anew or make independent findings of fact, but rather ascertain whether there is adequate evidence to support the judgment. Id. at 161. "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." Id. at 162. In this regard, we give special "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." Id. at 161; see also State v. Locurto, 157 N.J. 463, 470-71 (1999).

Governed by this standard of review, we are satisfied that the factfindings of the trial judge, informed by his opportunity to see and hear the witnesses first hand, meet the aforementioned criteria and therefore should not be disturbed. Suffice it to say, defendant's actions in coming upon his estranged wife's property, placing the letter in her mailbox, slamming her front door and kicking her outside electrical outlet causing damage to both all clearly violate the outstanding FRO and amply support his adjudication of guilt.

1 An amended FRO was entered on March 24, 2010.

2 On September 8, 2011, defendant pled guilty to violating his probation for which he was sentenced to an additional six months probation.