STATE OF NEW JERSEY v. PERRY SPERENDI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2772-05T12772-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PERRY SPERENDI,

Defendant-Appellant.

 

Argued February 28, 2007 - Decided March 21, 2007

 
Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FO-13-138-06.

David A. Parinello argued the cause for appellant.

Patricia B. Quelch, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Paul Alexander, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Perry Sperendi, appeals from a conviction under N.J.S.A. 2C:29-9b, a fourth-degree offense, for violating a final restraining order entered under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -33. We affirm.

The Family Part entered a final restraining order (FRO) against defendant on January 10, 2005. Among other things, the order prohibited defendant from having any contact, either oral, written or otherwise, with the victim, Joyce Bodnar.

On July 22, 2005, Bodnar filed a complaint against defendant, alleging that he violated the FRO by contacting her. That case was tried before Judge Peer on January 27, 2006.

Bodnar testified that she had known defendant since 1994; she had been his girlfriend, and broke up with him in October 2004. She testified that she filed her domestic violence complaint because he was calling her "up to twenty times a day at least and . . . was coming to [her] house unannounced." She claimed that he "came to [her] work in Red Bank and locked himself in [her] office and wouldn't leave."

Bodnar claimed that on July 22, 2005, at approximately 10:30 p.m., she received a call from defendant on his cell phone. She knew it was defendant because her cell phone's caller ID identified the caller as defendant. He told her that she was "ruining his life." She further testified that he had called her "several times prior to that phone call," but during those calls, he used a calling card, and while she answered "once or twice," the caller showed an unknown ID. After the July 22 incident, she contacted the police.

On cross-examination, she acknowledged that he had called her on other occasions, but she did not have a conversation with him; instead, after he said her name, she hung up on him. On those occasions, she identified him by the sound of his voice; however, she did not call the police.

Patrolman Walter Perski, of the Freehold Borough Police, testified that Bodnar told him that her former boyfriend, defendant, had called her and she had a final restraining order against him. The officer was not sure if she told him the calls were made to her cell phone or her home phone. He testified on cross-examination that, according to his report, Bodnar came to the police station, not the night of the incident as she testified, but at 10:30 the following morning. He also acknowledged that she never showed him a caller ID with defendant's name or phone number on it. All he remembered seeing was "a block" on the phone.

Upon the completion of the testimony and after hearing closing arguments from counsel, the court found that defendant made the July 22 phone call as Bodnar claimed. The court found Bodnar's testimony to be credible. Though her testimony was somewhat inconsistent with the officer's testimony, the judge did not find the discrepancies sufficient to alter his opinion that defendant made at least one call to Bodnar in violation of the restraining order. Upon finding defendant guilty, as this was defendant's second violation, the court imposed a thirty-day prison sentence, a one-year period of probation, and appropriate fines and penalties. See N.J.S.A. 2C:25-30. The judge stayed the sentence pending appeal.

In an unpublished decision dated February 22, 2006, we vacated the January 10, 2005 final restraining order. Bodnar v. Sperendi, No. A-2833-04 (App. Div. Feb. 22, 2006).

Initially, we note that defendant agrees that it is irrelevant in a criminal contempt proceeding whether the restraining order in effect at the time of the violation is later vacated. See State v. Sanders, 327 N.J. Super. 385, 387-88 (App. Div. 2000). What defendant does challenge on appeal is whether the State proved "beyond a reasonable doubt that defendant violated the restraining order." Having reviewed the record in light of the law and defendant's contention, we find sufficient support for the trial judge's decision that defendant violated the final restraining order by contacting Bodnar on her cell phone.

Bodnar testified that she had known defendant for ten years, and was familiar with his voice. She recognized his voice on the telephone on multiple occasions, and on one occasion, her caller ID identified defendant as the caller. While the officer's testimony did not support Bodnar's claim that she showed the officer the caller ID numbers when she went to the police station to report the call, the judge found Bodnar's testimony to be credible. The record supports that conclusion. That her testimony was somewhat inconsistent with the officer's testimony does not mean the judge was required to reject her testimony. Credibility findings are for the trial court, not the Appellate Division. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Barone, 147 N.J. 599, 615 (1997); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). The trial judge's factual findings here were supported by substantial evidence in the record and are entitled to our deference. Locurto, supra, 157 N.J. at 470-71; Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Affirmed.

 

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A-2772-05T1

March 21, 2007