E.J.F. v. A.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

E.J.F.,

Plaintiff-Respondent,

v.

A.S.,

Defendant-Appellant.

November 20, 2015

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1570-14.

Sasha Intriago argued the cause for appellant (The Cintron Firm, LLC, attorneys; Mark J. Cintron, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a March 10, 2014 final restraining order (FRO) entered against him in favor of plaintiff, defendant's ex-girlfriend, pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. The trial judge found that defendant committed the predicate acts of burglary and simple assault upon plaintiff and that there was "good cause for plaintiff to fear [for] her health, safety and welfare." On appeal, defendant contends he was deprived of due process when he "was rushed into a final . . . hearing without sufficient opportunity to obtain counsel and prepare a full defense." He also contends the evidence failed to support the trial judge's decision. We are not persuaded by defendant's arguments and affirm.

Plaintiff testified that she and defendant broke up in January 2014 after a four-year dating relationship. On the evening of March 4, 2014, defendant went over to plaintiff's house; she asked him to leave and he refused. When plaintiff would not open her door to let defendant enter, he started banging on the glass pane in the door, eventually shattering the glass with his fist and showering plaintiff with broken glass. According to plaintiff, the glass "went like all over my mouth and I swallowed a piece of glass." Plaintiff went to the hospital after the incident where she received treatment in the emergency room. The next day, plaintiff filed a domestic violence complaint against defendant and was granted a temporary restraining order.

Defendant was arrested following the incident and remained incarcerated at the time of the FRO hearing on March 10, 2014. At the outset of the hearing, the judge informed defendant of the potential penalties he faced, and then asked: "[D]o you want to proceed today or do you want an adjournment so that you can get a lawyer?" Defendant replied, "Proceed." The court then asked if defendant wanted to waive his right to counsel, and defendant gave no verbal response.1

After plaintiff testified, defendant waived cross-examination. When defendant was given the opportunity to testify, defendant agreed with plaintiff's account of the incident, stating "[t]hat's what happened," and consented to the entry of the FRO.

Domestic violence is a civil offense, and defendants are not entitled to full criminal procedural protection. J.D. v. M.D.F., 207 N.J. 458, 474 (2011). Due process nevertheless requires the opportunity to seek legal representation. D.N. v. K.M., 429 N.J. Super. 592, 606 (App. Div. 2013), certif. denied, 216 N.J. 587 (2014). Additionally, courts must ordinarily grant a domestic violence defendant's request for more time to prepare. J.D., supra, 207 N.J. at 480.

Defendant's claim that he was rushed into proceeding without the benefit of counsel finds no support in the record. In D.N., we addressed a litigant's due process right to representation in a domestic violence proceeding, holding that "indigents mounting a defense or presenting allegations of domestic violence are not entitled to appointed counsel." D.N., supra, 429 N.J. Super. at 604. We noted that "the [PDVA] is remedial, not punitive, a difference that is significant" in the analysis as to whether the proceeding could result in a consequence of magnitude that would implicate the right to appointment of counsel. Id. at 606.

Here defendant did not indicate any desire for an adjournment of the proceedings, to obtain legal counsel, or for any other reason. Further, unlike the defendant in Peterson v. Peterson, 374 N.J. Super. 116 (App. Div. 2005), defendant had the full opportunity to cross-examine plaintiff, present his own witnesses, and to testify.

We next consider whether the facts support the trial court's finding of domestic violence and its issuance of an FRO. In this analysis, we recognize that we may not disturb a trial court's factual findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

A trial court considering a domestic violence complaint must first, "determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Here, the trial court found that the predicate acts of burglary (N.J.S.A. 2C:18-2) and assault (N.J.S.A. 2C:12-1) had occurred. Defendant's fist entered plaintiff's house, and the record supports the inference that defendant intended to break the pane of glass. See N.J.S.A. 2C:18-2. Similarly, although defendant may not have been able to specifically predict plaintiff would swallow the glass, some injury to plaintiff was sufficiently certain to support a finding of recklessness. See N.J.S.A. 2C:12-1(a)(1); N.J.S.A. 2C:2-3(c).

Once the court has determined that a defendant has committed a predicate act, it then must decide whether to issue a restraining order to protect the victim. Silver, supra, 387 N.J. Super. at 126. The commission of a predicate act does not automatically require that a restraining order be issued. Id. at 126-27. Rather, the court will only issue a restraining order if it is "necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.

We conclude that the totality of the circumstances supports the Family Part's finding that defendant committed the predicate acts of burglary and simple assault upon plaintiff, and that issuance of a final restraining order was justified. The court heard plaintiff's testimony and found "her to be an honest, credible, believable witness." After hearing plaintiff's testimony, defendant confirmed to the court "[t]hat's what happened," and consented to the entry of the FRO. The record also supports the judge's finding of "good cause for plaintiff to fear [for] her health, safety, and welfare."

Affirmed.

1 Although the trial transcript indicates "(No verbal response)" from defendant, the judge stated, "All right, thank you," and then questioned plaintiff to confirm that she was ready to proceed. While the record does not contain a spoken waiver of counsel by defendant, the record clearly indicates that defendant was aware of his right to counsel and his right to request a postponement and elected to proceed. Nevertheless, we note that we expect trial judges to elicit spoken responses in all such colloquies so that a clear record is created and issues of this nature are avoided.