TAMIKA PATON v. ANDRE PARRISH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TAMIKA PATON,

Plaintiff-Respondent,

v.

ANDRE PARRISH,

Defendant-Appellant.

_______________________________

September 13, 2013

Before Judges Lihotz and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-16476-11.

Andre Parrish, appellant pro se.

Tamika Paton, respondent pro se.

PER CURIAM

Defendant Andre Parrish appeals from a Special Civil Part order of judgment after trial, finding him liable to plaintiff Tamika Paton for damages she suffered from an assault. Defendant maintains the trial judge failed to credit his defense. We have considered defendant's arguments in light of the record and applicable law. We affirm.

The parties had a prior dating relationship. After it ended, plaintiff befriended J.M., another of defendant's former girlfriends and the mother of his child. It would be an understatement to say there was tension in the women's relationship with defendant.

At trial, plaintiff recounted her version of events, which occurred during the late evening of May 11, 2010. According to plaintiff, she and her two friends accompanied J.M. to defendant's residence to retrieve J.M.'s daughter's clothing. J.M. felt defendant disrespected her when he threw a bag of clothing toward her from his second floor balcony. She lost control of her temper and began yelling, screaming, and repeatedly ringing the doorbell. She then ripped the mailboxes off the wall. Defendant's sister responded to the bell, asking J.M. to stop. Defendant appeared on the second-floor balcony stating: "I['ve] got something for you[,] bitches."

Coincidently, two of defendant's relatives arrived at the residence and exited their vehicle during J.M.'s rampage. A melee broke out among the relatives, defendant's sister, plaintiff and J.M. At some point, the front door of the residence was knocked in. Defendant stood in the entry armed with a baseball bat. He first struck J.M., breaking her jaw and then he hit plaintiff in the head and legs with the bat. Plaintiff acknowledged punching defendant in the face after being struck.

Defendant admitted striking the women, but claimed he did so to prevent their entrance into his home and the possible resultant harm to his property and family. He stated his concern was based on two events that occurred earlier that month, including: plaintiff's knife assault upon him on May 5 and her theft, bleaching, and burning of his clothing on May 10, which she published on Facebook. Defendant believed plaintiff and J.M. carried bleach in the car suggesting they intended to throw it in his face. He also testified they had a frying pan. Defendant's mother called 9-1-1. The police arrived, broke up the fracas, but made no arrests at the scene.

Subsequently, on September 26, 2011, criminal charges were filed against defendant. He ultimately pled guilty to the disorderly person's offense of simple assault, resulting from his attack on plaintiff. J.M. and plaintiff separately initiated domestic violence proceedings against defendant.

Plaintiff filed a Special Civil Part complaint to recover damages resulting from the assault. She produced bills for hospital treatment she received in the early hours of May 12, 2010. Following testimony, the judge determined: "I don't believe they [plaintiff and J.M.] came to your house for good reasons." Nevertheless, she rejected his claim of self-defense, concluding defendant did not use "proper force" when repelling plaintiff, noting police found neither bleach nor a frying pan. Based on the hospital bills, the judge reduced the sum due by twenty-five percent, mitigating recovery based on plaintiff's participation in the fight, and awarded her $38311 in damages. This appeal ensued.

"Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review[.]" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "'[W]e do 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[.]'" Ibid. (quoting In re Trust Created By Agreement Dated December 20, 1961, ex. rel. Johnson, 194 N.J. 276, 284 (2008) (internal quotation marks omitted)). See also Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009) ("It is a basic tenant of our jurisprudence that a trial court's factual findings should not be disturbed if there is sufficient credible evidence in the record to support the findings.") (internal quotation marks and citations omitted)). Our deference is warranted because we recognize trial judges have the "opportunity to make first-hand credibility judgments about the witnesses who appear on the stand[,]" developing a "'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). However, we do not afford the same deference to a judge's "interpretation of the law and the legal consequences that flow from established facts[,]" but rather, we review the judge's legal conclusions de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted).

On appeal, defendant argues the judge erred in rejecting his battered person's syndrome defense, which provides legal immunity. Further, defendant challenges the sufficiency of plaintiff's evidence of injury, arguing her testimony was "nothing but lies." Finally, defendant cites N.J.S.A. 2C:3-4, -5 and -6 to support his claim that he had a right to use deadly force to protect his home and family from the attack by J.M., plaintiff and their friends. We consider these arguments in turn.

"Battered [Person's] Syndrome is recognized as 'a collection of common behavioral and psychological characteristics exhibited in [victims] who repeatedly are physically and emotionally abused over a prolonged length of time[.]'" State v. Hess, 207 N.J. 123, 149 (2011) (quoting State v. B.H., 183 N.J. 171, 182 (2005) (citation omitted). Evidence of the syndrome requires expert testimony. See State v. B.H., 364 N.J. Super. 171 (App. Div. 2003) (discussing past precedents admitting expert testimony to prove the syndrome). State v. Ellis, 280 N.J. Super. 533, 545 (App. Div. 1995). Here, defendant neither raised this defense at trial nor did he offer any expert testimony assessing whether he suffered from the cited syndrome. Consequently, we reject his arguments of error on this issue.

Defendant's trial testimony raised self-defense. Our Criminal Code provides "the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4a.

A defendant's credibility is crucial to a claim of self-defense. B.H., supra, 183 N.J. at 184-85. Here, although the trial judge's findings were limited, she concluded defendant's conduct was not in response to the possible attack by plaintiff and J.M. She noted defendant and his relatives outnumbered the two women. Also, her comments impliedly reject defendant's assertion that plaintiff and J.M. were armed with bleach and a frying pan. The judge pointed to defendant's own admission that the women were unarmed when he struck them. Further, neither bleach nor a frying pan were found at the scene or seized from plaintiff. Finally, the judge relied on defendant's guilty plea to the charge of simple assault, which includes conduct that "purposely, knowingly or recklessly" causes bodily injury to another. N.J.S.A. 2C:12-1a(1).2 His sentence reflects the statute's provision: "[s]imple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense." N.J.S.A. 2C:12-1a.

We also reject defendant's reliance on the defense of justifiable force. N.J.S.A. 2C:3-6a states:

Subject to the provisions of this section and of section 2C:3-9, the use of force upon or toward the person of another is justifiable when the actor is in possession or control of premises or is licensed or privileged to be thereon and he reasonably believes such force necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by such other person in or upon such premises.

However, the use of justifiable force is limited as follows:

(1) Request to desist. The use of force is justifiable under this section only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor reasonably believes that:

(a) Such request would be useless;

(b) It would be dangerous to himself or another person to make the request; or

(c) Substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.

[N.J.S.A. 2C:3-6b.]

During trial, defendant's proofs failed to satisfy these prerequisites, which would justify his use of force. He did not testify he gave plaintiff a warning, which went unheeded. Arguably, defendant may have been prevented from issuing a warning when his residence door was battered open; however, the trial judge essentially rejected this finding by citing defendant's ability to warn the women after J.M. destroyed the mailboxes and simply await the police arrival. Instead, he taunted: "I['ve] got something for you, bitches." The judge concluded this comment reflected defendant's intention to do harm to the women, and did not express fear for his safety or that of his dwelling. We will not interfere in this credibility determination as it has sufficient evidentiary support in the record. Brunson, supra, 199 N.J. at 397.

Affirmed.

1 The final judgment is not included in the record. The trial judge stated the judgment was $3831, and also $3841.63. We have used the judge's initial recitation of the judgment amount.

2 The record includes neither the transcript of the criminal proceeding nor the judgment of conviction. However, during trial, the judge was provided with documents reflecting the simple assault charged included the mental state element of subsection a(1) as stated, rather than a(2) which requires negligent conduct using a deadly weapon.