STATE OF NEW JERSEY v. JOSEPH WEISGERBER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6142-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH WEISGERBER,

Defendant-Appellant.

__________________________________

February 28, 2014

Submitted March 21, 2012 - Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Camden County,

Docket No. FO-04-0797-10.

Stephen R. Bishop, attorney for appellant.

Warren W. Faulk, Camden County Prosecutor,

attorney for respondent (Robin A. Hamett, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joseph Weisgerber was tried before a Superior Court Judge assigned to the Law Division, Criminal Part and found guilty of fourth degree contempt, N.J.S.A. 2C:29-9(b). The trial court found defendant violated a restraining order previously issued by the Family Part under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, that prohibited defendant from having any contact with his former wife A.L., or the three children born of the marriage.1 The court sentenced defendant to thirty days in the Camden County Correctional Facility. We affirm.

As a threshold issue, defendant acknowledged before the trial court that he was present on November 28, 2005, when the Family Part issued a final domestic violence restraining order that enjoined him from having any contact with his former wife or their children. Defendant was also present on February 24, 2006, at which time the court amended the original order to expand the scope of the restraints to bar defendant from his former wife's residence, place of employment, "and any and all locations [she] may be found." The court also granted defendant's former wife custody of their three children and continued to bar defendant from having any contact with them.

On April 6, 2010, the Winslow Township Police Department issued a summons against defendant charging him with the disorderly persons offense of harassment, N.J.S.A. 2C:33-4(a), alleging that on April 5, 2010, defendant made an obscene gesture with his middle finger to A.L., and called her a "bitch." A warrant was also issued that same day for defendant's arrest charging him with fourth degree criminal contempt of the domestic violence restraining order.

As a defense, defendant submitted an alibi affidavit averring that on the date and time this alleged incident occurred he was visiting a friend's house located in Vineland. Defendant listed the names of three individuals who reside in the home as alibi witnesses.

At trial, the State called A.L. as its principal witness. She testified that on April 5, 2010, at approximately 6:30 p.m., she was at her home with her three children and four other children she was caring for at the time. As the children were playing outside in front of the house, a white "utility work van" drove up to the property. She then saw defendant standing outside the van's passenger side with the vehicle's door open.

When asked to clarify the circumstances that led her to see defendant, A.L. explained that, although she did not see the van pull up the property, she saw three of the children running towards the road. At that point, she saw defendant and "screamed" for the children to stop and "get inside the house." According to A.L., defendant then turned and got back in the van. As A.L. ran towards the van in an effort "to get a make, license plate, anything I could give the cops," the van began to drive away at a high rate of speed, and defendant allegedly "gave [her] the finger out the side window and called [her] a f-ing bitch." A.L. was not able to get any further identifying information about the van. The State called A.L.'s teenaged son as its second and final witness. His testimony corroborated A.L.'s account of what occurred.

Defendant called two alibi witnesses. Kevin Bonham testified that he resides in Vineland with his wife. He has known defendant for thirteen years and considers him a friend. On the date in question, defendant was at Bonham's residence when Bonham arrived home from work at approximately five o'clock in the evening. Bonham testified that defendant was "just kind of hang[ing] out" there. When asked what time defendant left his house that day, Bonham testified "[a]pproximately, 9:30 [p.m.]" On cross-examination, Bonham testified that he was able to recall the specific details of that day because defendant's mother called his house the following day and told him about the charges filed against defendant.

William Jackson testified as defendant's second alibi witness. On the date in question, he resided with the Bonhams at their house in Vineland. He and defendant were together that day at the Bonham residence using the computer until Jackson left at approximately 6:00 p.m., to report to a temporary place of employment. He returned at around 6:30 p.m. or 6:40 p.m. to find defendant still there. Although he was not entirely certain, he believed defendant left Bonham's house between 9:30 and 10:30 in the evening. He recalled the details of what occurred that day because he achieved a certain level of proficiency at a computer game he was playing at the time.

The trial judge found the State had met its burden of proving beyond a reasonable doubt, that defendant committed the disorderly person offense of harassment under N.J.S.A. 2C:33-4(a), and as a consequence committed the fourth degree offense of contempt by violating the order of the court restraining him from contacting A.L. and his children.

Against this record, defendant now appeals raising the following arguments.

POINT I

THE TRIAL COURT ERRED BY FAILING TO PERMIT DEFENDANT TO CROSS EXAMINE THE STATE'S WITNESSES' CREDIBILITY PURSUANT TO F.R.E. 6072

POINT II

THE TRIAL COURT ERRED BY FAILING TO PERMIT DEFENDANT TO CROSS EXAMINE THE STATE'S WITNESSES' CREDIBILITY PURSUANT TO F.R.E. 6083

We will not disturb the trial court's evidential rulings on appeal absent a showing of abuse of discretion. State v. Kemp, 195 N.J. 136, 149 (2008); R. 2:10-2. The arguments raised by defendant here lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Statements made by A.L. in two prior contempt complaints and in response to defendant's past motions seeking to vacate the restraints were properly rejected by the trial judge as irrelevant to the factual and legal issues in this case.

The trial judge here was uniquely positioned to evaluate the credibility of the witnesses who testified, observe their demeanor, and determine their credibility. State v. Santos, 210 N.J. 129, 139 (2012). The trial judge's findings were amply supported by the record and therefore entitled to our deferential standard of review. State v. Locurto, 157 N.J. 463, 474 (1999).

1 The restraining order was amended to include a provision forbidding contact with the children after defendant entered a guilty plea to a crime against one of the children.

2 We presume defendant meant to cite N.J.R.E. 607.

3 Again, we presume defendant meant to cite N.J.R.E. 608.