STATE OF NEW JERSEY v. MICHAEL NOVACK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1249-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

MICHAEL NOVACK,

Defendant-Appellant.

_________________________________

Argued telephonically November 3, 2 011 Decided December 6, 2011

Before Judges Yannotti and Kennedy.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part, Bergen County, Docket No. FO-02-259-10.

Anthony J. Iacullo argued the cause for appellant (Iacullo Martino, attorneys; Mr. Iacullo, of counsel and on the brief; Joshua H. Reinitz, on the brief).

David A. Malfitano, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Malfitano, of counsel and on the brief).

PER CURIAM

Defendant appeals from a Family Part order finding him guilty of a violation of probation and committing him to the Bergen County jail for sixteen days. We affirm the conviction but vacate the sentence and remand for re-sentencing.

The events giving rise to the violation of probation occurred on June 22, 2010, in the Ramsey Municipal Court. We briefly recite the procedural history preceding defendant's court appearance that day so that the events may be understood in context.

On September 23, 2009, K.C. obtained a temporary restraining order (TRO) against defendant, with whom she had a dating relationship, based upon a domestic violence complaint alleging harassment and stalking. On October 14, 2009, the defendant was charged with contempt, in violation of N.J.S.A. 2C:29-9B, for violating the terms of the TRO by making harassing communications to K.C. On December 1, 2009, defendant appeared in the Family Part in Bergen County and pled guilty to contempt and was given probation for one year with a condition that there shall be "no contact with victim."

On January 15, 2010, a violation of probation notice was issued against defendant predicated upon acts alleged to have occurred on January 10, 2010. That violation of probation was dismissed by the Family Part on March 3, 2010, but, in the order of dismissal, the trial judge noted that "defendant shall not be within 100 yards of the victim" and is "restrained from having any communications with the victim or her children."

Thereafter, on June 25, 2010, a second violation of probation notice was issued against defendant predicated upon events alleged to have occurred at the municipal court in Ramsey on June 22, 2010. The violation of probation charged that while defendant and K.C. were in the municipal courtroom, "the defendant deliberately walked by [K.C.] and called her a psychopath."

A hearing on the violation of probation was held in the Family Part on October 6 and 28, 2010. The facts which follow are drawn from testimony given during those proceedings.

On June 22, 2010, at approximately 5:00 p.m., defendant and K.C. arrived separately at the municipal court. Seating for those attending the municipal court was provided by several rows of folding chairs. There was also a row of folding chairs along the back wall of the courtroom that was separated from the row of folding chairs ahead of it, by an aisle approximately three feet wide. K.C. was seated in the last row of folding chairs between the aisle and the folding chairs along the wall. Two witnesses testified that defendant, while walking in the aisle behind K.C.'s chair, uttered the words "psychopath" in a voice loud enough for her to hear. K.C. testified that she heard the word, as well. Defendant denied that he had uttered the word "psychopath" and called witnesses on his own behalf.

The trial judge, after listening to the testimony of K.C. and the various witnesses, found that the defendant did say the word "psychopath" as he walked behind K.C. She found that it was a "harassing comment" and noted that the comment was "directed at the victim here. [Defendant] couldn't keep his mouth shut."

Based on this finding of fact, the trial judge found that the defendant "violated a substantial term of his probation." Thereafter, following comments by both the prosecutor and defense counsel, the trial judge sentenced defendant to sixteen days in the Bergen County Jail, to be served every other weekend commencing on Friday at 6:00 p.m. and ending on Sunday at 6:00 p.m. The trial judge stayed the sentence pending appeal.

On appeal, appellant presents the following argument:

POINT I

INSUFFICIENT EVIDENCE EXISTED TO SUSTAIN THE VIOLATION OF PROBATION.

POINT II

THE COURT FAILED TO FOLLOW REQUIRED PROCEDURES AT SENTENCING AND IMPOSED AN EXCESSIVE SENTENCE WITHOUT JUSTIFICATION.

We affirm the conviction but vacate the sentence and remand for re-sentencing.

We review the record to determine if the findings of fact reached in the Family Part were based upon sufficient credible evidence. State v. Johnson, 42 N.J. 146, 162 (1964). We accord substantial deference to the trial court's credibility determinations. State v. Barone, 147 N.J. 599, 615 (1997). "We are not to review the record from the point of view of how we would have decided the matter if we were the court of first instance." Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div.), certif. denied, 172 N.J. 355 (2002). Findings by the trial judge are considered binding on appeal when supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999).

N.J.S.A. 2C:45-3(a)(4) provides that at any time before the termination of a period of suspension or probation,

[t]he court, if satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or if he has been convicted of another offense, may revoke the suspension or probation and sentence or re-sentence the defendant, as provided in this section.

Where a defendant is charged with a violation of probation, the court shall hold a hearing, as "part of the corrections process." State v. Reyes, 207 N.J. Super. 126, 134 (App. Div.), certif. denied, 103 N.J. 499 (1986); State v. Lavoy, 259 N.J. Super. 594, 600 (App. Div. 1992). A charge of violation of probation is not a criminal prosecution. Reyes, supra, at 134. Thus, to sustain the charge, the court need only be satisfied by a "preponderance of the evidence [the] defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of probation." State v. Jenkins, 299 N.J. Super. 61, 73 (App. Div. 1997)(citations and internal quotation marks omitted).

Essentially, the question a court must decide is whether a violation of a condition of probation has occurred and whether the violation is serious enough to justify revocation of probation. State v. Baylass, 114 N.J. 169, 175 (1989). Courts will not revoke probation for mere technical violations. State v. Moretti, 50 N.J. Super. 223, 248 (App. Div. 1958). In Moretti, the court stated, "if [defendant's] conduct is that of the ordinary well-behaved person, with no serious offenses charged against him and with no indication that he intends in the future to pursue the course which led to the original conviction, the courts and probation officer should not revoke probation upon technical violations." Ibid.

As noted earlier, our review of a trial court's factfinding underlying a violation of probation is "exceedingly narrow." See Locurto, supra, 157 N.J. at 470. We defer to the trial court's finding of fact, especially those that are substantially influenced by the trial judge's opportunity to hear and to see the witnesses and to have a sense of the case. Johnson, supra, 42 N.J. at 161-62; State v. Elders, 192 N.J. 224, 244 (2007). Applying these principles, we reject defendant's contention that he did not violate probation.

We are satisfied that there is sufficient credible evidence to support the trial judge's finding that defendant violated the terms of his probation. The trial judge made an explicit finding of fact, based on witness testimony she found to be credible, that the defendant, while in the presence of K.C., harassed her by calling her a "psychopath." This harassing conduct was undertaken while the defendant and K.C. were in court awaiting a hearing. Defendant was not deterred from such conduct by his presence in a court of law. Accordingly, we are additionally satisfied that the record supports the trial judge's determination that defendant's conduct constituted a violation of a substantial condition of probation.

While we do not find that the court's imposition of a sixteen-day jail sentence to be served on alternate weekends "shocks the judicial conscience," State v. O'Donnell, 117 N.J. 210, 216 (1989), we nonetheless vacate the sentence and remand the matter for re-sentencing because of the trial court's failure to provide the defendant with an opportunity for allocution. State v. Blackmon, 202 N.J. 283 (2010). Further, when imposing sentence, the court must identify and weigh all of the relevant aggravating factors counterbalanced with the mitigating factors supported by credible evidence. State v. Dalziel, 182 N.J. 494, 504-05 (2005). A court shall apply such mitigating factors as are present in the record or state why such factors are rejected. State v. Bieniek, 200 N.J. 601, 609 (2010). When a court imposes a sentence for a violation of probation, the court must weigh all aggravating and mitigating factors and a violation of probation is not itself considered to be an aggravating factor. "The only aggravating factors the court may consider are those that existed at the time of the initial sentencing." Baylass, supra, 114 N.J. at 176.

The record before us does not contain any statement of aggravating and mitigating factors considered by the trial judge when it first sentenced the defendant to one year of probation. The trial judge first must identify such factors. Thereafter, the trial judge who conducted the violation of probation hearing will have to evaluate these factors in determining what an appropriate sentence would be for violation of probation. In circumstances such as these, "[o]nce the court decides to impose a custodial sentence, it must again weigh the aggravating and mitigating factors to determine" an appropriate sentence. Ibid.

Accordingly, the defendant is entitled to a consideration of the original aggravating and mitigating factors in light of the violation of probation and he must be permitted an opportunity for allocution. Because neither of these procedures was followed in this case, we vacate defendant's sentence and remand for re-sentencing at which time defendant must be given an opportunity for allocution and the court must appropriately weigh the aggravating and mitigating factors.

Affirmed in part, reversed in part and remanded.