STATE OF NEW JERSEY v. B.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4646-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

B.A.,

Defendant-Appellant.

________________________________

January 28, 2013

Argued January 9, 2013 - Decided

Before Judges Ashrafi and Lisa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FO-14-126-12.

James S. Friedman argued the cause for appellant.

Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

Defendant appeals from her conviction of the disorderly persons offense of contempt for violating a final restraining order entered under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, in violation of N.J.S.A. 2C:29-9(b). She argues that the trial evidence was insufficient to establish her guilt beyond a reasonable doubt and that her conviction must be reversed because the trial court failed to make an express finding that she possessed the requisite mental state at the time of the offense. We reject these arguments and affirm.

Defendant and B.Q. were co-workers. Although they were both married, they entered into a dating relationship which continued for about two years. When B.Q.'s wife learned of the relationship, the parties ended it.

In a domestic violence complaint, B.Q. alleged that defendant had been contacting him and his wife by text messaging, telephone and face book. He sought a restraining order prohibiting any further contact. A temporary restraining order was issued on October 31, 2011. After a hearing, a final restraining order was issued on November 30, 2011, which prohibited defendant, among other things, "from having any (oral, written, personal, electronic or other) form of contact or communication with" B.Q., his wife, or their children. Defendant was in court when the final restraining order was issued and she was served with a copy of it.

On December 3, 2011, B.Q. reported to the police that defendant contacted him by telephone on that date, and a complaint was issued against defendant for the offense that is now before us.

At the trial before Judge Thomas J. Critchley, Jr., B.Q. testified that shortly after issuance of the final restraining order, he began receiving phone calls at home, in which no one spoke. On December 3, 2011, he received one of these calls, but this time someone did speak. She said "you're a bastard, you've been ruined." He said he immediately recognized defendant's voice and asked why she was making these calls, to which she responded "have me arrested if you can, or something to that effect." B.Q. immediately called the police and, as we stated, the complaint was issued. After that, the "strange phone calls ceased."

By way of background, B.Q. explained that when he and defendant ended their relationship, an ethics complaint against him was filed with their employer's human resources department, which resulted in his termination from employment. He suspected that defendant "initiated, in some fashion, the complaint that led to [his] termination," and thus blamed her for his firing.

Defendant testified and denied ever making any calls to B.Q. after the final restraining order was issued. She acknowledged her awareness of the entry of the order and that it prohibited her from any form of contact.

The State produced a detective who presented various telephone records. Judge Critchley, after discussing the telephone records in making his findings, ultimately disregarded them because they were inconclusive. He therefore made his findings based upon the competing testimony of defendant and B.Q.

The judge made detailed credibility findings and concluded that B.Q. was more credible than defendant. The judge recognized the common sense likelihood that after an extended relationship, which included telephone contact over an extended period of time, B.Q. would be able to recognize defendant's voice on the telephone. The judge also noted that the timing and content of what was said was consistent with the events that had occurred. The judge was therefore convinced beyond a reasonable doubt that defendant made the call on December 3, 2011. He accordingly found her guilty. The sentence consisted only of imposition of the mandatory monetary assessments, a $50 Violent Crime Compensation Board penalty and $75 Safe Neighborhood Services assessment.

In arguing that the trial evidence was insufficient to establish her guilt, defendant essentially repeats before us the credibility argument she made before Judge Critchley, which he rejected. We will not interfere with the credibility determinations and factual findings of a trial court sitting without a jury that is supported by substantial credible evidence in the record. State v. Johnson, 42 N.J. 146, 162 (1964). The evidence here amply supports the judge's credibility determinations and factual findings, and we have no occasion to interfere with them.

Defendant also argues that her conviction must be set aside because the judge did not explicitly find that her conduct was knowing or purposeful, as required by N.J.S.A. 2C:29-9(b). She relies on State v. Finamore, 338 N.J. Super. 130 (App. Div. 2001). That reliance is misplaced.

In Finamore, we were confronted with a former husband and wife who had a child, for which there was ongoing visitation and therefore ongoing authorized contact between them, notwithstanding the issuance of a domestic violence restraining order. Id. at 132-35. The defendant was charged with violating the restraining order after an exchange of calls back and forth between the parties, which involved visitation arrangements. Id. at 136. Defendant contended that he did not believe he was violating the order because he was allowed to speak to his former wife regarding visitation. Ibid. We concluded that the scope of the no-contact order was ill-defined, as a result of which, in those circumstances, a specific finding about the defendant's mental state was required. Id. at 137-38. We distinguished such a situation from one in which an order was "intended to preclude any and all contact between the parties." Ibid.

In the case before us, there was no ambiguity or disagreement about the scope of the no-contact provision. It was absolute, and defendant knew it. She never contended, for example, that she might have dialed B.Q.'s number by mistake, and therefore did not knowingly or purposefully call him as prohibited by the order. Nor did she suggest that for some reason the call was outside the scope of the order. Her contention at all times was that she never made any calls to B.Q.

In these circumstances, there was no need for an express finding that defendant knowingly violated the order. That finding is implicit in the totality of Judge Critchley's decision.