STATE OF NEW JERSEY v. J.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.L.,

Defendant-Appellant.

________________________________________________

April 4, 2014

Argued December 3, 2013 Decided

Before Judges Sabatino and Hayden.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Burlington County, Docket No. FO-03-38-13.

Louis Cappelli, Jr., argued the cause for appellant (Florio Perrucci Steinhardt & Fader, LLC, attorneys; Mr. Cappelli, on the brief).

Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief).

PER CURIAM

Defendant J.L. (Jared)1 appeals from the September 25, 2012 Family Part order finding him guilty of contempt of a temporary restraining order (TRO) issued under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, a disorderly persons offense, N.J.S.A. 2C:29-9(b). For the reasons that follow, we reverse.

The record reveals that on June 5, 2012, S.H. (Sarah) obtained a TRO against defendant alleging domestic violence. The TRO prohibited him from having any contact with Sarah and barred him from her residence. On June 11, 2012, defendant was charged with contempt for violating the TRO by allegedly stopping a vehicle outside Sarah's residence. On June 20, 2012, the trial judge dismissed the TRO after a hearing because "plaintiff's allegation of domestic violence ha[d] not been substantiated." The contempt charge, however, remained pending.

The first scheduled hearing on the contempt charge was adjourned because Sarah was not available to testify. Defendant appeared on the next scheduled date and requested a brief postponement, stating that his attorney could not attend because defendant owed him money. He informed the judge that his attorney had recently represented him in the domestic violence proceeding and some child support hearings. The judge denied his request due to the age of the case and the fact that the State was not seeking incarceration as a possible sentence.

Sarah testified that on June 11, 2012, when she returned home from a program she attended, her mother, P.R. (Patricia), met her outside. Patricia told her in a panic that she saw defendant's mother's burgundy pickup truck outside the home earlier. Sarah also noted that her mother's house was located on a busy street where many vehicles made U-turns after realizing they went the wrong way. Sarah acknowledged that shortly after the alleged domestic violence event and this incident, she had reconciled with defendant and was living with him at that time. Finally, she stated that defendant drove a silver Nissan Altima.

Sarah's mother testified that on the day in question, she received a phone call from D.E. (Debbie), defendant's mother, whom she had met once. Debbie asked where Sarah was and when she would be returning home. A few hours after this conversation, Patricia looked out her window and saw that a burgundy pickup truck had pulled up in front of her house and she thought it was Debbie's truck. She testified that she "believed" defendant was driving the truck. When she went outside, the truck drove away, and she picked up a rock for protection. Sarah arrived shortly thereafter; the truck was gone and did not return.

Debbie testified that she owned a maroon and silver pickup truck, and defendant owned a new silver Nissan Altima. She stated that she drove a school bus in the mornings and afternoons, and worked as a pool contractor between bus runs. Debbie further testified that she did not see defendant that day because he lived too far away to visit on a work day. She recalled making a phone call "one day" to Patricia to check on how Sarah was doing, but denied driving by Patricia's home.

Debbie further testified that defendant was working at a car dealership in Moorestown on June 11, 2012, and he was upset when he found out she had called Patricia. She observed that, although defendant might use her truck if his car broke down, this did not happen as his car was brand new, and she had used her truck for her contracting work that day.

The judge found defendant guilty of contempt for violating the TRO. In assessing credibility, the judge stated that, as a witness, Sarah was "fairly valueless" to the State's case, since her relevant testimony contained only hearsay, and she was biased in favor of defendant because they had subsequently reconciled. Her testimony did, however, show the court that her mother was genuinely concerned for her safety. The judge also determined that Debbie was less credible as she had a motive to provide favorable testimony for her son.

The judge found that Patricia's credibility "far outshine[d]" the credibility of the other witnesses, as it contained a "ring of truth." The judge determined that defendant was guilty beyond a reasonable doubt based upon Patricia's credible testimony that she "saw a burgundy pickup truck which she recognized as the type of vehicle operated by the defendant's mother" and "she believed that the vehicle was operated by [defendant.]" The judge highlighted that Patricia demonstrated this belief by picking up a rock, indicating she feared for her safety. The judge sentenced defendant to one year of probation, completion of an anger management course, and $125 in fines and penalties. This appeal followed.

On appeal, defendant first contends that the trial judge should have granted his request for an adjournment to allow time to retain his attorney. We disagree.

We review a motion for an adjournment, which involves the court's ability to control its own calendar, under a deferential standard. State v. Miller, 216 N.J. 40, 65 (2013). "'[W]hether a trial court should grant or deny a defendant's request for an adjournment to retain counsel requires a balancing process informed by an intensely fact-sensitive inquiry.'" Id. at 66 (quoting State v. Hayes, 205 N.J. 522, 538 (2011)). In reviewing a trial court's discretionary determination on a defendant's motion to adjourn, "'there are two conditions which must exist to warrant' reversal of the conviction." Ibid. (quoting Hayes, supra, 205 N.J. at 539). First, "'the judicial action must have been clearly unreasonable in the light of the accompanying and surrounding circumstances.'" Ibid. (quoting Hayes, supra, 205 N.J. at 539). Second, the decision must have prejudiced the defendant such that "'the defendant suffered manifest wrong or injury.'" Id. at 66-67 (quoting Hayes, supra, 205 N.J. at 537).

Here, the judge's decision to deny the adjournment was not clearly unreasonable in the light of the accompanying and surrounding circumstances. The judge properly considered the relevant factors subsequently reiterated in Miller, supra, 216 N.J. at 66-67, noting there was already a previous adjournment, the matter was already sixty-eight days old, it would inconvenience the litigants, witnesses, and the court, and defendant was not facing a consequence of magnitude, as he was not facing any jail time, loss of a driver's license, or a fine exceeding $750.2 Thus, we reject as without merit defendant's claim that the judge should have appointed an attorney for defendant under Rule 7:3-2(b).

Under these circumstances, the judge did not abuse his discretion, or violate defendant's constitutional rights in denying his request for an adjournment as the judge's determination was not "clearly unreasonable," and defendant has not shown that he suffered a "manifest wrong or injury." Miller, supra, 216 N.J. at 66-67.

Defendant next argues that the evidence presented at trial was insufficient to find him guilty of contempt beyond a reasonable doubt. He points out that not a single witness positively identified him as being in the truck, and that Patricia's "belief" that he was in front of the house, based upon the presence of a vehicle that she thought looked like Debbie's, is simply insufficient for a conviction.

A person is guilty of contempt "if that person purposely or knowingly violates any provision in an order entered under the provisions of the [Act.]" N.J.S.A. 2C:29-9(b). Conduct that constitutes a violation of a domestic violence restraining order, which would otherwise not constitute a crime, is treated as a criminal disorderly persons offense, and is normally prosecuted in the Family Part without indictment. Ibid.; State v. Bowser, 272 N.J. Super. 582, 584 (Law Div. 1993).

Since the violation of a restraining order is punishable as a crime, a defendant is entitled to the rights of all criminal defendants, including the presumption of innocence and requiring the State to prove every element of the offense beyond a reasonable doubt. See N.J.S.A. 2C:1-13(a); State v. Krupinski, 321 N.J. Super. 34, 45 (App. Div. 1999). Reasonable doubt has been defined as:

"an honest and reasonable uncertainty in [the mind of the fact finder] about the guilt of the defendant after [the fact finder has] given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have.

Proof beyond a reasonable doubt is proof, for example, that leaves [the fact finder] firmly convinced of the defendant's guilt."

[State v. Wakefield, 190 N.J. 397, 470 (2007) (quoting State v. Medina, 147 N.J. 43, 61 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 688 (1997)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).]

Our review of a trial judge's finding of guilt in a contempt proceeding is limited to determining "whether the record contains sufficient [credible] evidence to support the judge's conclusion." State v. J.T., 294 N.J. Super. 540, 544 (App. Div. 1996) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). We must accord substantial deference to the trial judge's findings of fact in a non-jury trial. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

"Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "Because a 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." Ibid. (alteration in original) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). However, we must nonetheless bear in mind in reviewing the record and the trial court's finding, the State's heavy burden of proving guilt beyond a reasonable doubt in a contempt trial.

Here, the record does not establish an evidential basis for concluding beyond a reasonable doubt that defendant purposely or knowingly violated the terms of the TRO. Even after giving deference to the trial judge's credibility findings and accepting Patricia's testimony as true, Patricia's "belief" that defendant was in the truck outside of her home is insufficient to prove beyond a reasonable doubt that defendant was driving the truck and, therefore, guilty of contempt. See Wakefield, supra, 190 N.J. at 470.

Patricia never testified that she saw defendant, or anyone, in the truck or even whether the driver was a man or a woman. Her belief, which she did not explain, appears to be based on Debbie's earlier phone call and the similarities of the trucks. The fact that Patricia panicked and picked up a rock out of fear after seeing the burgundy truck demonstrates the strength of her belief but not its validity and sheds no light on its genesis. It is undisputed that defendant does not live with his mother and he has his own vehicle. The brief presence of a truck similar to Debbie's does not amount to proof beyond a reasonable doubt that defendant was in the truck and thus violated the TRO.

We do not question the sincerity of Patricia's belief, in her own mind, that the burgundy truck must have been driven by defendant. However, that belief is not anchored to objective facts in the record that suffice to meet the rigors of the State's high burden of proof in this quasi-criminal case. Consequently, we reverse defendant's conviction for contempt as there is insufficient credible evidence in the record to support a finding of guilt beyond a reasonable doubt. See Wakefield, supra, 190 N.J. at 470; J.T., supra, 294 N.J. Super. at 544.

Affirmed in part, reversed in part.

1 To protect the privacy of the alleged victim, we use fictitious names.

2 We note that defendant did not state that he was indigent, could not afford his attorney at all, or request appointment of counsel. Rather, he asked for an adjournment so that his attorney could appear, presumably after he paid him for his past representation.