CAROLYN KOGUT v. RANDHIR JHAMB

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5756-03T15756-03T1

CAROLYN KOGUT,

Plaintiff-Respondent,

v.

RANDHIR JHAMB,

Defendant-Appellant.

_____________________________________________________________

 

Submitted November 9, 2005 - Decided January 20, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, FV-18-000951-04.

Burns & Bobrow, attorneys for appellant (Joseph H. Burns, on the brief).

Respondent's brief was suppressed.

PER CURIAM

Defendant Randhir Jhamb appeals from a final restraining order (FRO) entered against him in favor of plaintiff Carolyn Kogut, with whom he had an intimate dating relationship. The FRO also designated plaintiff's ex-husband, Steven Kogut, and her children as protected parties with whom defendant is prohibited from having contact or communication.

In this appeal, defendant challenges certain evidentiary rulings made by the trial judge concerning letters defendant allegedly wrote to plaintiff's ex-husband and to tenants in his building. Defendant argues the ex-husband was erroneously permitted to offer inadmissible testimony of prior bad acts under N.J.R.E. 404(b). In addition, defendant contends the trial court's decision was against the weight of evidence and the FRO was overreaching in that it should not have included plaintiff's ex-husband as a protected party. We affirm the trial court's decision to enter the FRO and the scope of the relief afforded.

"The trial court is granted broad discretion in determining the relevance of evidence." Verdiccio v. Ricca, 179 N.J. 1, 34 (2004) (citing Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). Under our rules, all relevant evidence is admissible. N.J.R.E. 402. "In determining whether evidence is relevant, the inquiry focuses upon 'the logical connection between the proffered evidence and a fact in issue.'" Verdicchio, supra, 179 N.J. at 33 (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). Even relevant evidence may be excluded if its probative value is substantially outweighed by undue prejudice. N.J.R.E. 403. "Determinations pursuant to N.J.R.E. 403 should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that its finding was so wide off [sic] the mark that a manifest denial of justice resulted.'" Verdicchio, supra, 179 N.J. at 34 (quoting Green, supra, 160 N.J. at 492).

Plaintiff sought an FRO against defendant, complaining of harassing letters he allegedly sent to her and to the parents of her children's classmates. The letters were laced with profanity and contained derogatory and vulgar statements regarding plaintiff. They contained explicit demeaning and degrading remarks of a sexual nature directed at plaintiff. Plaintiff alleged that defendant was the author of the letters because only he had the knowledge of certain matters contained therein. The letters were not signed and defendant denied writing them. Through their investigation, the police were unable to make any determination with regard to the source of the exhibits. The trial court found, however, by a preponderance of the evidence that defendant was the author. Based on that finding, the court granted the FRO and prohibited defendant from "having any oral, written, personal, electronic, or other form of contact with plaintiff, and with Steven Kogut, her former husband, and with their children."

Defendant asserts that the trial court improperly allowed testimony from plaintiff and from plaintiff's ex-husband regarding anti-Semitic letters they earlier received that allegedly were also sent by defendant. Such evidence of prior bad acts, defendant contends, should have been excluded under State v. Cofield, 127 N.J. 328 (1992) and N.J.R.E. 404(b). Cofield recognized and applied a rule of general application, designed to avoid the overuse of extrinsic evidence of other crimes or wrongs. Cofield, supra, 127 N.J. at 338; State v. Marrero, 148 N.J. 469, 483 (1997). That rule is as follows:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

We reject defendant's assertion that the trial court erred by failing to satisfy the four-part test for admission of other crime evidence set forth in Cofield. First, we note, as did the Cofield court, that "the underlying danger of admitting other crime evidence is that the jury may convict the defendant because he is a 'bad' person in general." Id. at 336. Here, there was no jury and the court was fully capable of recognizing and avoiding the potential prejudice of inappropriate use of other-crimes evidence. After all, the Court observed:

Determinations on the admissibility of other-crime evidence are left to the discretion of the trial court: "The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard."

[State v. Marrero, supra, 148 N.J. at 483 (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)).]

Second, an appellate court "must review the record in light of the contention advanced, but not initially from the point of view of how [it] would decide the matter if [it] were the court of first instance." Harris v. Peridot Chem. (N.J.), Inc., 313 N.J. Super. 257, 278-79 (App. Div. 1988). "Only where there is a 'clear error of judgment' should the 'trial court's conclusion with respect to that balancing test' be disturbed." Marrero, supra, 148 N.J. at 483 (quoting State v. DiFrisco, 137 N.J. at 496-97 (1994)).

Here, defendant denied the earlier letters were written by him or that he had had prior altercations with defendant's ex-husband. The trial court admitted the evidence as relevant to the issue of identity, not to show that defendant acted in conformity with a prior propensity. The similarity of the letters and nature of their contents were probative in determining the identity of the author of the letters that were the subject of the present FRO proceeding. Given the narrow scope of our review, we are satisfied the trial court did not abuse its discretion in considering such evidence.

Next, defendant argues that the trial court's verdict is against the weight of evidence. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)). Since the trial court "'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)) (alterations in original). Thus, we will not disturb the "factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484. This is especially true in family court matters. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

The trial court found plaintiff to be very credible. The judge believed plaintiff's testimony that "nobody could know the information in these letters except the defendant, who helped her with her divorce, took some of her divorce documents . . . and was intimate with her." By contrast, the trial court found defendant's testimony was not completely credible. Defendant absolutely denied any type of relationship with plaintiff other than as friends. He maintained that he was married and committed to his wife. The trial court questioned that commitment, observing that "[a]ny person who is committed to his marriage as the defendant claims to be would not put himself in a position of being criticized for appearing in public and drinking at the home of a woman who is separated from her husband unless he had an interest in her."

Based on the contents of the letters and plaintiff's credible testimony as well as defendant's guarded demeanor in his testimony, the trial court concluded that there was sufficient evidence to permit an inference that, more likely than not, defendant was the author of the harassing letters. The evidence amply supports such a conclusion and we will not disturb it.

Next, defendant argues that the trial court's grant of the FRO should not have been extended to include plaintiff's ex-husband. N.J.S.A. 2C:25-29 governs a trial court's grant of an FRO and provides in pertinent part:

b. In proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse. . . . At the hearing the judge of the Family Part of the Chancery Division of the Superior Court may issue an order granting any or all of the following relief:

. . . .

(7) An order restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.

(emphasis added).

Plainly, the statute authorizes the issuance of orders restraining a defendant from making contact with persons other than the victim or the victim's family members.

The trial judge explained that she was including plaintiff's ex-husband as a protected party because of his continuing status as a functional member of plaintiff's family. The judge commented that "[a]lthough [plaintiff's ex-husband] is no longer married to the plaintiff he is part of the family group, that is children and both parents." Moreover, plaintiff and her ex-husband share equal custody of the children and they live only a half-mile apart. The trial court determined that plaintiff's ex-husband "is the father not only in name, but in function."

In sum, we are satisfied the record reflects both a factual and a legal basis for the inclusion of plaintiff's ex-husband in the FRO in accordance with N.J.S.A. 2C:25-29(b)(7).

 
Affirmed.

N.J.R.E. 404(b) states: "Evidence of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute."

(continued)

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9

A-5756-03T1

RECORD IMPOUNDED

January 20, 2006