STATE OF NEW JERSEY v. J.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.B.,

Defendant-Appellant.

June 11, 2015

Submitted December 10, 2014 Decided

Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FO-15-149-11.

Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

On October 26, 2012, a Family Part judge found that defendant J.B. forwarded two electronic mailings (e-mails) in violation of the no-contact provisions in a restraining order issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Accordingly, defendant was convicted of the disorderly persons offense of contempt of a judicial order, N.J.S.A. 2C:299(b). Having reviewed the record and considered defendant's arguments on appeal, we affirm.

I

On April 6, 2009, the complainant obtained a temporary restraining order (TRO) against defendant, which order prohibited him from contacting her in any fashion. The parties have two children, although defendant denies he is the father of the younger child. We refer to the older child as "Carl." At the time, defendant resided in Philadelphia; he does not dispute service of the TRO, which states on page five

THIS ORDER SHALL REMAIN IN EFFECT UNTIL FURTHER ACTION OF THE COURT AND SERVICE OF SAID ORDER ON THE DEFENDANT.

Additionally, above defendant's signature acknowledging receipt, the TRO states

DEFENDANT MUST SIGN THIS STATEMENT: I hereby acknowledge the receipt of the Restraining Order. I understand that pursuant to this Court Order, I am not to have any contact with the named plaintiff even if the plaintiff agrees to the contact or invites me into the premises and that I may be arrested and prosecuted if I violate this Order.

The final restraining order (FRO) hearing was rescheduled one week from the original date because defendant, who participated in a colloquy regarding the court date on the record by phone, could not be present. The case was carried to April 20, 2009, at which time defendant failed to appear and the FRO was entered. The contempt complaint was filed on August 31, 2010.

A bench warrant issued for defendant's arrest when he did not appear at the first scheduled date for the contempt trial. Defendant turned himself in approximately two years later and was released on bail. This appeal is from defendant's October 26, 2012 conviction after the bench trial on the contempt complaint.

We have not been provided with a transcript of the September 2012 proceeding at which defendant was first advised of his right to counsel. Immediately before starting the trial, however, the Family Part judge asked defendant, "[i]s it your intent to proceed pro se in this matter?" Defendant replied that he was told when he appeared in September that if he "did not show up with counsel[,] this would go through to trial regardless." When the judge again asked if defendant intended to proceed without counsel, defendant said "yes."

The judge next confirmed defendant's understanding that he had the right to an attorney, including assigned counsel if he could not afford a lawyer. Defendant replied in the affirmative. After the judge asked defendant whether he had applied for assigned counsel, defendant explained that, because he lived in Georgia, it was not "convenient" for him.

At that point, defendant reversed course and denied being informed of the assigned counsel process, repeating that he was just told the matter would proceed even if he did not have an attorney. The judge found, based on defendant's statements, that he had waived his right to counsel.

II

At trial, the complainant testified that, while the parties lived together, defendant physically and mentally abused her. During that time, defendant was consumed with ideas regarding the end of the world. He referred to himself on the internet as "Dr. Evil," and maintained, and participated in, blogs "about the end of the world." His email address was distinctive because it included end-of-the-world terminology. Complainant's e-mail address was also distinctive, consisting of the children's names. The parties were familiar with each other's e-mail addresses.

The complainant said defendant sent her the two e-mails at issue on May 27, 2010. They are reproduced below

can we negotiate

1 message

dr evil < [defendant's e-mail]>

Thu, May 27, 2010 at 11:56 AM

To: [complainant's e-mail]

i don't wish to cause you any problems. but, i do want to see my boys. what you're doing is r[i]diculous but i understand why you think it's necessary in order to protect your own credibility and smear mine. i do think that this reimaging of yourself as your mother and me as her first husband is biz[arr]e and freud would have a field day with it. but then, much of the things you have done are rather abnormal in my opinion. you have certainly failed to use good judgement and yes, when confronted with the reality of your choices i have failed to use good judgement in the past as well. but, now is a different time and place. you seem happy and i've never been happier. i have the person back in my life after 16 years that was the standard by which i judged every other woman. who has made everything make sense and have purpose again for me and you have whatever it is you have which seems to be working for you. i can assure you i have no intention of disrupting that for you or ruining what i've got. but, they're still my kids too. i was with [carl] for the first 5 years of his life. longer than my other kids and my attachment to him is stronger for that. i'm never going to just let him go. i need to see him and at some point i will. i'm hoping that we can arrange that civil[l]y. in which case i won't attempt to expose or undermine you before your future hubby. there will be no talk of prostitution or videos or photos or any of the things you may wish to conceal. if it's your wish to keep your past secret from your husband every day of your lives then that's your choice. better him than me. i will keep it all in the vault if i can have some cooper[]ation. if you're unwilling to do what's decent and fair you'll only be putting off the inevitable. eventually if needed i will get my day in court and you won't prevail against me. i'm hoping it doesn't have to be that way. in that case the dynamic would certainly be different and i would use everything at my disposal. it would be better just to let me see them where you can still have some control over the matter. you'll have the ability to choose time, date, place, etc. and if you don't like what[']s transpiring you'll have the benefit of being able to dial 911. if you desire to put it off, as i said, it's inevitable and after a decision is rendered you'll have little control. i'm hoping you'll consider it. perhaps we would all actually get along. ya never know. if you do decide to at[ ]least give it a try i would have no problem with financial compensation as well, if that interests you. i hope you'll consider it. congratulations on your engagement and your new baby.

oh and, i don't know if you've been paying any attention to what's going on in the world, but everything i've been studying, speaking, and warning about is rapidly approaching. what i know, may quite literally be needed for their sake very soon. as "crazy" as that may sound.

take care

one last thing

1 message

dr evil < [defendant's e-mail]>

Thu, May 27, 2010 at 4:47 PM

To: [complainant's e-mail]

i know vanessa would love to see [carl]. as long as you've known her it's not right to shut her out like that. she has very little as it is because of her mother's priorities. regardless of what you think of me, i'm 800 miles away. don't be mean to nessy.

The complainant explained that defendant's daughter from another relationship, Vanessa, is nicknamed "Nessy." She lived with defendant and the complainant for an unspecified number of years. The complainant added that defendant had constantly raised "issues" regarding her alleged prostitution and videos allegedly depicting her engaged in sexual activity.

The complainant had received many more e-mails from defendant, both before and after the ones sent on May 27, 2010. Local police advised her that, because they did not have the equipment necessary to identify the source of the emails, they could not prosecute and therefore refused to take action. When defendant in the May 27 e-mails threatened to ruin the complainant's wedding day, she nonetheless insisted on filing these contempt charges.

The State's only witness was the complainant. Defendant attempted to obtain her acknowledgment of certain items to which the prosecutor objected. The judge sustained the objection, reminding defendant that he could testify should he wish to identify the items and move them into evidence.

After the State rested, the judge explained the right to testify to defendant. He said he understood, then said "I don't think that I intend to testify."

Defendant's only witness was his wife, and he proffered her testimony as a forensic expert because of her job experience as a software analyst. Despite opining that the only definitive way to verify the source of the emails was by contacting the service provider, she had not done so. Based on the computer printouts she was shown, "you can't prove or disprove that it's a legitimate email . . . . there's no security certificate assigned to it," nor was there any verification of the IP addresses from which the e-mails were sent or received.

Defendant's wife's testimony having ended, the judge asked defendant if he had any other witnesses. Defendant said "no." The judge then told him that the case would be "done" once she stepped down, and that he would decide the matter after he heard closing arguments. The judge asked him a second time if he had other witnesses, and defendant repeated "no."

Defendant and the prosecutor made closing statements. As the judge began to render his decision, defendant interrupted and said he had other evidence. From references by the prosecutor and defendant on the record, we discern that the "other evidence" concerned text messages allegedly sent by the complainant approximately two months after the TRO was entered regarding child support. The judge pointed out that to admit the evidence, defendant would have to testify. Defendant argued that "I made a closing statement with regard to the email, but I have not rested." The judge observed that regardless of texts about child support, defendant had been served with a TRO which continued in effect until dissolved by another order. Defendant then argued that since he did not know that the restraining order would continue indefinitely, "it's not a violation."

When the judge instructed defendant to take the witness stand so the matter could move forward, defendant changed his mind, and said "[t]hat's fine." Defendant also contended that the initial restraining order was invalid because it was entered in violation of an "interstate compact" since he filed for custody first in Pennsylvania. Finally, the judge said: "Sir, are you telling me that you're done? What do you want to do here? I'm trying to be as accommodating to you as possible. Tell me what you want to do."

Defendant said he wanted the charge dismissed because the complainant's e-mail account could have been hacked or she could have sent the emails to herself. Asked again if there was anything else he wanted to say, defendant said "no." The judge asked, "Are you done with your case? Can I proceed with my decision?" Defendant agreed, and the judge then said, "Okay. All right. Both sides rest."

The judge found the complainant to be an entirely credible witness. He also found that defendant was served with a TRO, which was never dissolved, and was in fact converted into an FRO.

The judge further found that the emails were properly authenticated because they contained personal information known only to the parties. This included defendant's daughter's nickname, references to the parties' older child, and threats to disclose unsavory information to the complainant's future husband, a recurring issue in the parties' relationship. Defendant's wife's testimony regarding "security codes and things of that nature" described techniques that would have made identification of the sender of the e-mails "definitive." The judge opined that the complainant's testimony regarding the email addresses and the content of the e-mails sufficed to establish the identity of the sender. Thus the judge concluded defendant was guilty of contempt because he sent the e-mails in violation of the restraining order.

In an effort to elicit some background information before imposing sentence, the judge asked defendant if he had any prior criminal history. Defendant denied any other convictions beyond motor vehicle offenses, until the prosecutor recited his criminal history.

Defendant was charged, but never convicted, with several felonies in Pennsylvania. He had been granted Pretrial Intervention, N.J.S.A. 2C:43-12(e) and Rule 3:28, in New Jersey in 2003, and had an older conviction for criminal mischief. Defendant had recently completed a term of probation in Georgia for a misdemeanor offense.

The judge sentenced defendant to probation for one year, a $1000 fine, and mandatory assessments. In order to set a payment schedule, the judge asked defendant if he was employed. Defendant refused to answer the question. The judge turned to defendant's wife and asked her the same question. She said defendant was self-employed although not earning income "self-investment for future gain."

Defendant raises four points for our consideration

The Court should vacate the judgment and sentence for violation of a final restraining order entered below for several reasons.

Point 1 The trial judge violated defendant's right to counsel.

Point 2 The trial court infringed defendant's right to testify on his own behalf at trial.

Point 3 Defendant could not have "knowingly violated" a final restraining order that was not served on him until the day of trial.

Point 4 The trial court erred in permitting the e[-]mails into evidence against defendant without sufficient foundation for their entry.

III

Where a judge has conducted a bench trial, our scope of review is quite narrow. We defer to the trial judge's factual findings as long as they supported by sufficient credible evidence. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We owe particular deference to the trial judge's credibility determinations because he had the opportunity to see and hear the witnesses and, based on his observations and their statements, to decide if their testimony was believable. See State v. Locurto, 157 N.J. 463, 470-71 (1999).

Nor will we overturn a judge's decision to admit or exclude evidence unless that determination was an abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). However, we do not defer to a judge's legal interpretations. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A.

As to defendant's first point, the record does not support the contention that his right to counsel was violated. It is undisputed that he enjoyed that right pursuant to the United States and New Jersey Constitutions, as well as Rule 3:42(c)(3). U.S. Const. amend VI; N.J. Const. art. I, 10; State v. Miller, 216 N.J. 40, 57 (2013). The transcript of the September 2012 proceeding, would have included the judge advising defendant of his right to counsel, according to defendant's own statements before the trial began. We do not have that transcript.

The trial transcript we do have, however, corroborates that defendant knew he was entitled to an attorney, knew that if he appeared without one he would be expected to proceed with the trial, and knew he had the right to apply for an assigned attorney. After all, he initially stated that making application was not "convenient." Although defendant now claims that his subsequent statement, that he was not familiar with the application process, controls, he first volunteered that to apply was not "convenient" because he lived out of state.

The record we do have does not depict a defendant being pressured to proceed in the absence of counsel. See State v. Gonzales, 114 N.J. 592, 608 (1989). Nor is it a situation where a defendant is convicted of violating a TRO in the absence of any explanation of his right to counsel. See State v. Ashford, 374 N.J. Super. 332, 335-37 (App. Div. 2004). This defendant, we are satisfied, understood he had the right to counsel and had the right to apply for assigned counsel.

The judge's determination that defendant understood his rights and waived them was therefore not erroneous. It was fully supported by the record.

Our conclusion about the correctness of the judge's decision is further supported by defendant's prior contacts with the criminal justice system and comfort level in the courtroom. See State v. Crisafi, 128 N.J. 499, 513-19 (1992) (finding that the defendant, "a court-wise criminal who fully appreciated the risks of proceeding without counsel," knowingly and intelligently waived his right to counsel). This defendant readily argued with the judge and the prosecutor and made his statements without hesitancy.

B.

Defendant next contends that the court infringed on his right to testify on his own behalf during the trial. The record does not bear out this claim either. Defendant was repeatedly told he had the right to testify during the State's presentation of its case. Defendant was repeatedly asked if he had witnesses other than his wife. At the close of her testimony, the judge explained that the case was over and that he would render a decision. When he asked defendant if he had other witnesses, defendant answered in the negative. Defendant and the prosecutor then made statements in summation. It was only after the judge began to render his decision in the case that defendant said he had other evidence. When after sparring on the subject the judge finally told defendant to take the witness stand so that he could testify, defendant, apparently reluctant to do so, again changed his mind, and said, "that's fine, that's fine."

Defendant then continued to argue with the judge, debating the validity of the restraining orders. As a result, the record does not support defendant's claim that the judge infringed upon his right to testify. Rather, the record compels the conclusion that defendant knowingly and intelligently waived his right to do so. See State v. Bey, 161 N.J. 233, 269-75 (1999); Crisafi, supra, 128 N.J. at 513-19.

C.

Defendant further contends that he cannot be found guilty of violating a restraining order of which he was unaware. See State v. Chenique-Puey, 145 N.J. 334, 341-42 (1996). However, he need not have been physically served with the FRO to know he was restrained from contact with the complainant. Defendant knew, at a minimum, about the restraints contained in the TRO, which provided that the nocontact provision continued in effect until another judicial order was entered. Thus defendant had actual notice of the restraints, regardless of whether he was served with the FRO.

As we have previously said, "[t]he law has long been settled that a contempt action may proceed against a defendant who has actual knowledge of the restraints imposed, even though the injunction was not regularly served." State v. Mernar, 345 N.J. Super. 591, 594 (App. Div. 2001). Knowledge may be proven by circumstantial evidence, like any other element of a crime. See State v. Finamore, 338 N.J. Super. 130, 138 (App. Div. 2001) (in deciding whether the State has proven beyond a reasonable doubt that a defendant knowingly violated a restraining order, the trial judge may consider all relevant evidence on that issue); see also State v. Mayberry, 52 N.J. 413, 437 (1968) (circumstantial evidence may be more satisfying and persuasive than direct). Defendant's signature acknowledging receipt of the TRO was circumstantial evidence of his knowledge of the terms of the order. That defendant failed to appear for the final hearing when the FRO issued does not negate his knowledge that a judicial order barred him from contact with the complainant, and that his conduct in sending her the e-mails in question was a violation of that order.

Furthermore, it is of no moment whether the conviction flows from the TRO or FRO. It is sufficient that the orders were in effect, and that defendant had actual knowledge of the restraints.

D.

Lastly, we address defendant's argument that the e-mails should not have been admitted into evidence because they were not authenticated. We review the trial judge's evidentiary rulings, including his decisions to admit evidence, for abuse of discretion. State v. Feaster, 156 N.J. 1, 82 (1998); State v. Koedatich, 112 N.J. 225, 313 (1988).

We begin with N.J.R.E. 901, providing that authentication as a predicate to the admissibility of a document "is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims."

This rule does not limit electronically generated evidence to electronically generated proof of authenticity. The authentication rule, after all, "does not require absolute certainty or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162 N.J. 132 (1999).

The judge found the complainant credible. The record supports his conclusion. The details found in the e-mails, which would only have been known to the parties, were so unique, like a fingerprint, as to constitute a sufficient basis for the conclusion that defendant sent them to the complainant. These details included: the parties' novel email addresses, references to Carl, the only child defendant acknowledged as his own, a nickname for defendant's child Vanessa, who had lived with the parties, and slanderous information regarding the complainant.

That the judge found the content of the communications a sufficient basis for authentication was therefore not an abuse of discretion. The standard for admission found in N.J.R.E. 901 was clearly met on this record.

Affirmed.