O.R. v. A.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2457-11T4

O.R.,

Plaintiff-Respondent,

v.

A.G.,

Defendant-Appellant.

__________________________

Argued Telephonically November 15, 2012 Decided December 3, 2012

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FV-13-356-12.

Jessica N. Mazur argued the cause for appellant (Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., attorneys; Ms. Mazur, of counsel and on the brief).

James R. Lambert argued the cause for respondent.

PER CURIAM

Defendant A.G. appeals from a December 12, 2011 order entering a Final Restraining Order (FRO) in favor of his ex-wife, plaintiff O.R., pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25 -17 to -35.1 For the reasons that follow, we affirm.

I

After an eighteen-year marriage, the parties separated in 2008, and were divorced in December 2010. They had one adult son together. According to plaintiff's testimony at the FRO hearing, the divorce was particularly contentious because, after the parties separated but before the divorce was finalized, she had two children with another man. She testified that during and after the divorce proceedings, defendant repeatedly stalked her and threatened her. She described her efforts to avoid him by moving to different locations. The parties had lived together in Brooklyn, but plaintiff moved first to Staten Island and then to Monmouth County, New Jersey, in an effort to get away from defendant.

However, plaintiff testified that defendant was able to locate her. She testified that defendant repeatedly sent her threatening messages through two mutual friends of theirs - F.G. and A.R. According to plaintiff, defendant told these two that he was going to kill plaintiff or make her "disappear," and that her two young children would then be placed in foster care.

On August 18, 2011, plaintiff filed an emergent application for a restraining order in Monmouth County. Her application recited:

The plaintiff alleges that the defendant sent her a message through a mutual friend stating[,] Can you deliver this message, "I [am] going to kill her (plaintiff) and send the kids to a foster home." Last Wednesday 8/10/2011 she observed him outside her residence in [Monmouth County] for over 15 minutes.

At the FRO hearing, both parties were represented by counsel. In her testimony, plaintiff explained that the "mutual friend" referenced in the complaint was F.G., but that F.G. would not testify because she was afraid. However, plaintiff testified that defendant had repeatedly sent the same types of messages to her through another mutual friend named A.R. Plaintiff also testified that defendant's uninvited appearance outside her Monmouth County home on the night of August 10, 2011 was only the most recent of many such incidents, in which he would show up outside her home to spy on her. After these incidents, defendant would then emphasize to plaintiff that he had her under surveillance, by commenting to her on details he had observed within her residence. She testified that defendant lived in Brooklyn and, to her knowledge, had no reason to be in Monmouth County except to harass her. She testified that she found his conduct frightening and upsetting, and that she had repeatedly called defendant and begged him to leave her alone.

In support of her allegations, plaintiff produced testimony from A.R., a retired police detective who had worked for the parties in a business the parties owned together. He testified that he considered himself a friend of both parties. According to A.R., he had witnessed numerous conflicts between the parties at work, sometimes physically interposing himself between them to prevent the conflict from escalating. He could not testify as to most of what they said to each other on those occasions, because they were speaking primarily in Russian, but he testified that their hostility was evident.

A.R. corroborated plaintiff's testimony about the threats from defendant, confirming that defendant had told him on multiple occasions that he would kill plaintiff and put her children in foster care. A.R. testified that he inferred from their conversations that defendant intended that he tell plaintiff about the threats. He stated, "[t]here [were] many times that [defendant] said things to me that he thought I was going to tell [plaintiff]." A.R. sometimes refrained from passing on the threats because he did not want to upset her. However, when defendant began threatening plaintiff's children, A.R. felt he had to tell plaintiff about the threats. According to A.R., defendant also admitted to him that he repeatedly drove to plaintiff's New Jersey home and parked outside. A.R. warned defendant that he was going to get in serious trouble if he did not leave plaintiff alone.

According to A.R., he was willing to testify at the hearing, although he was a friend of both parties, because he was afraid that if defendant were not restrained he would escalate his conduct against plaintiff and possibly wind up in jail. A.R. also testified that defendant tried to intimidate him into not testifying, by threatening to tell his current boss if he testified.

In his testimony, defendant insisted that he had never threatened plaintiff, and that plaintiff had never begged him to leave her alone. He also denied appearing outside her house on August 10, 2011. Defendant did admit telling A.R. that he would tell A.R.'s boss if A.R. testified at the FRO hearing. According to defendant, plaintiff's domestic violence complaint was filed in retaliation for his filing of a civil lawsuit concerning a business they had owned together. He admitted that he filed the lawsuit after plaintiff filed for the restraining order, but insisted that she knew he was going to file the lawsuit.

In an attempt to show that plaintiff's domestic violence complaint was false and was motivated by a desire to obtain an advantage in the business litigation, defendant produced a purported Russian language translation of three out of fifteen voicemail messages that plaintiff had left on his cell phone over the past two years. Ultimately, the judge concluded that it was not a word-for-word translation and was unreliable. Without objection from either party, the judge used the services of a Russian-speaking court clerk to translate another voicemail message on defendant's cell phone.2 That translation revealed that plaintiff had in fact called defendant begging him to leave her alone.

In an oral opinion placed on the record immediately after the hearing on December 12, 2011, the judge found plaintiff and A.R. to be entirely credible witnesses. By contrast, she did not credit defendant's testimony, for reasons she explained in detail, including her evaluation of his demeanor. She found that defendant committed terroristic threats and harassment, by intentionally communicating death threats to mutual friends whom defendant knew would tell plaintiff about them, and by parking outside her house at night with the purpose to frighten and annoy her. See State v. Dispoto, 189 N.J. 108, 116 (2007) (a defendant's threats need not be communicated directly to the victim).

The judge reasoned that the parking incident must be viewed in the context of defendant's past history of threats and harassment. She found that defendant's actions were motivated by anger, resentment, and a desire to exert a continuing control over plaintiff. The judge also found that plaintiff was fearful due to defendant's conduct and that a restraining order was required to prevent future abuse.

II

In reviewing the trial judge's decision, we are bound by her factual findings so long as they are supported by sufficient credible evidence. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We owe particular deference to the judge's credibility determinations, and to the expertise of the Family Part in dealing with matters within its jurisdiction. Id. at 412-13. Having reviewed the record, we find no basis to disturb the trial judge's factual findings or her detailed credibility determinations. While we owe no special deference to a trial judge's legal interpretations, Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995), we review those legal interpretations in light of the judge's factual findings. On this appeal, defendant first contends that the court should not have considered allegations of terroristic threats that defendant communicated to A.R., because those threats were not specified in the complaint. In the circumstances of this case, we cannot agree. In H.E.S. v. J.C.S., 175 N.J. 309, 324-25 (2003), the Court held that due process requires that a defendant charged with domestic violence receive reasonable advance notice of the factual and legal bases for the complaint. In that case, the plaintiff asserted a completely new allegation of domestic violence less than twenty-four hours before the FRO hearing, and the judge denied defendant's request for an adjournment sufficient to allow him to formulate a defense to the new charges. Id. at 321.

We conclude that H.E.S. is not on point here. We agree with defendant that, because F.G. did not testify at the hearing, F.G.'s statement to plaintiff -- that defendant allegedly made a threatening remark to F.G. about plaintiff -- could not be admitted to prove that defendant in fact made the remark to F.G. See N.J.R.E. 801(c). However, plaintiff's testimony that F.G. communicated frightening information to her was admissible, because plaintiff was subject to cross-examination at the hearing.

Moreover, apart from F.G.'s information, the judge properly considered defendant's statements to A.R. to support the complaint. First, the complaint did not specify the identity of the person to whom the terroristic threats were made. Therefore, defendant would not necessarily have relied on the identity of the person in preparing a defense, and defendant's counsel did not assert any such reliance. Second, the TRO application was filed in August, and the FRO hearing did not take place until December. Defendant, who was represented by counsel, had ample time to prepare for the hearing, and could have requested further information from plaintiff's counsel concerning the allegations. At the hearing, defendant's counsel did not assert surprise or ask for an adjournment to address plaintiff's allegation that defendant had made terroristic threats to A.R. as well as to F.G.

Additionally, the complaint asserted that defendant had made terroristic threats in the past, which had led to the issuance of a prior TRO. Therefore, it should have come as no surprise to the defense when plaintiff introduced evidence of defendant's past history of making threats, in order to put the current allegations in context. See Cesare, supra, 154 N.J. at 413. Indeed, it is appropriate for a court hearing a domestic violence case to consider past episodes in order to determine whether plaintiff's current allegations rise to the level of domestic violence and whether restraints are required to protect the plaintiff from further abuse. N.J.S.A. 2C:25-29(a); Cesare, supra, 154 N.J. at 401-02; Silver v. Silver, 387 N.J. Super. 112, 119 (App. Div. 2006). The making of past death threats, in addition to the history of stalking, served to place in context plaintiff's allegation that defendant parked in front of her house at night in order to frighten and annoy her.

Defendant next argues that the evidence did not support a finding that he committed any of the predicate acts required for a finding of domestic violence under the Act, N.J.S.A. 2C:25-19(a)(3) (terroristic threats), and -19(a)(13) (harassment). Defendant focuses on the statements defendant made to A.R., which he claims did not threaten violence. He also contends that A.R. did not communicate the statements to plaintiff, and that there was no proof that he intended A.R. to communicate the statements to plaintiff. We find no merit in those contentions, which are contrary to the judge's factual findings.

We also conclude that defendant's argument is based on the wrong section of the statute concerning terroristic threats, N.J.S.A. 2C:12-3. Defendant contends that his alleged actions could not have violated N.J.S.A. 2C:12-3(b), which requires proof that the defendant "put [the victim] in imminent fear of death." However, defendant's actions clearly violated N.J.S.A. 2C:12-3(a), which requires proof that the defendant "threatens to commit any crime of violence with the purpose to terrorize another." The same conduct could also constitute harassment under N.J.S.A. 2C:33-4a (defining harassment as "mak[ing] or caus[ing] to be made a communication or communications . . . in offensively coarse language, or any other manner likely to cause annoyance or alarm"). See State v. Castagna, 387 N.J. Super. 598, 605-06 (App. Div.), certif. denied, 188 N.J. 577 (2006). The facts, as the judge found them, establish that defendant engaged in a "course of alarming conduct" toward plaintiff, with the "purpose to alarm or seriously annoy" her. N.J.S.A. 2C:33-4c.

Defendant also argues that the judge's finding, that he was parked outside plaintiff's home for fifteen minutes, was insufficient to support a finding that his conduct was "alarming" within the meaning of the anti-harassment statute. N.J.S.A. 2C:33-4c. We cannot agree. The judge's additional findings concerning defendant's prior course of conduct, including threats and stalking, support a conclusion that defendant's appearance outside plaintiff's home was purposeful and alarming. See State v. J.T., 294 N.J. Super. 540 (App. Div. 1996). That history, plus the judge's evaluation of plaintiff's and A.R.'s credible testimony concerning the frightening nature of defendant's conduct, justified the entry of the FRO.

Finally, defendant argues that the court should not have relied on a court employee who was not a certified court interpreter to translate the voicemail message. Because defendant did not object to the use of this translator at the hearing, we need not consider this argument. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, based on the entire record, we find that if it was error to use the translator, the error was harmless. R. 2:10-2; State v. Macon, 57 N.J.325, 336 (1971). To the extent not specifically addressed here, defendant's additional arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We use the parties' initials because this appeal concerns domestic violence. R. 1:38-3(c)(12), -3(d)(10).

2 The court clerk was not a certified court interpreter, but he was placed under oath and swore to give an accurate translation. Before turning to the court clerk, the judge had attempted to obtain the services of a certified Russian interpreter over the telephone, but that interpreter was unable to hear and translate the voicemail over the telephonic connection.