CHRISTINA SWEENEY v. CRAIG P. UNGARO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5687-04T35687-04T3

CHRISTINA SWEENEY,

Plaintiff-Respondent,

v.

CRAIG P. UNGARO,

Defendant-Appellant.

_______________________________

 

Submitted: December 20, 2005 - Decided:

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Cape May County, FV-05-451-05.

Jacobs and Barbone, attorneys for appellant (Edwin J. Jacobs, Jr., on the brief).

Paul J. Baldini, attorney for respondent.

PER CURIAM

Defendant Craig Ungaro appeals from a Final Restraining Order (FRO) entered on cross-complaints under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (DVA), in favor of his girlfriend, Christina Sweeney. Following a lengthy hearing in which both parties, who were represented by counsel, testified and presented witnesses, the Family Part judge found the predicate offense of assault, N.J.S.A. 2C:12-1a, was committed by both parties. Plaintiff does not appeal the simultaneous entry of an FRO against her. On appeal, defendant contends that an act of domestic violence by him was not proven since he acted in defense of himself and his property, and apart from self-defense, there was an insufficient basis for a finding by the court that he committed an act of domestic violence. We disagree and affirm substantially for the reasons articulated on the record by Judge Rauh.

The record clearly indicates the parties dated from June 2004 through March 7, 2005. Their relationship, however, was far from stable, as defendant was also involved with another woman during some or all of that period of time.

The parties had a few drinks with their acquaintances the evening of March 7, 2005. Plaintiff brought dinner over to defendant's apartment later that evening. Around l0 p.m. a woman telephoned, who plaintiff assumed was defendant's other girlfriend, and plaintiff became visibly upset. Plaintiff claimed she threw the leftover food onto the stove to show her displeasure and started to leave. According to plaintiff, defendant prevented her from retrieving her keys by pushing and shoving her. After she retrieved her keys, she started to exit through the front door when her purse strap became caught. He then hit her with the metal door as she was trying to disengage her purse strap from the door handle. Plaintiff testified that when she put her foot in the doorjamb to stop defendant from hitting her with the door, he grabbed her around the shoulders and neck and began to strangle her. Plaintiff bit defendant to stop him from strangling her. Plaintiff extricated herself, drove to the police station and was evaluated at an emergency room. The x-ray of plaintiff's arm was negative; however, plaintiff testified she suffered severe abrasions to her neck, chest and arm as illustrated by the photographs that were admitted into evidence. Plaintiff's friend, Dorothy Russo, who observed her after the incident, also testified as to her injuries.

Defendant testified that plaintiff was insanely jealous of his other girlfriend, came over that night drunk, and went into a rage when Jennifer Seurman, a business associate, telephoned him. Defendant claimed plaintiff began punching and screaming at him when he requested she leave his apartment. According to defendant, as he was trying to shut the door to get plaintiff out of the apartment, she kicked a hole in the wall and bit him. He introduced into evidence a photograph showing the bite. Defendant claimed plaintiff was the aggressor, and he was just protecting himself and his property from further damage. Seurman testified that she heard plaintiff screaming at defendant.

The judge heard the testimony of the parties and a multitude of witnesses, viewed the pictures and made a credibility assessment that defendant was the aggressor. The judge noted that defendant had provided no explanation for the marks and scratches on each side of Christina's neck and found the injuries appeared too extensive to be explained by defendant's account of his efforts to defend himself.

Our scope of review of a trial judge's factfinding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord due deference to the credibility findings and the feel of the case by the trial judge who has heard and observed the witnesses. Pascale v. Pascale, 113 N.J. 20, 33 (1988); Gallo v. Gallo, 66 N.J. Super. l, 5 (App. Div. l961). This is particularly so with Family Part judges who possess special expertise in these types of matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Considering the provisions of the DVA and its broad legislative intent, we are satisfied there was sufficient credible evidence in the record to sustain the court's factual and legal conclusion of the predicate offense of assault under N.J.S.A. 2C:12-1a, and the finding that defendant committed an act of domestic violence against plaintiff meriting the entry of an FRO. The events that evening were sufficient to justify the restraining order regardless of the lack of prior domestic violence between the parties.

 
Affirmed.

(continued)

(continued)

5

A-5687-04T3

 

January 6, 2006