STATE OF NEW JERSEY v. A.Z.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.Z.,

Defendant-Appellant.

__________________________________

October 28, 2016

Argued October 17, 2016 Decided

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FO-03-252-15.

Mark J. Molz argued the cause for appellant.

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

PER CURIAM

After a non-jury trial, the Family Part found defendant A.Z. guilty of a disorderly persons contempt offense, N.J.S.A. 2C:29-9(b), for violating the Final Restraining Order ("FRO") previously obtained against him by his ex-wife L.Z.1 under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm.

L.Z. obtained an FRO against defendant after a hearing in the Family Part on March 26, 2010. Among other things, the FRO specifically prohibits defendant from appearing at plaintiff's residence, the address of which is set forth in the FRO. The FRO also prohibits defendant from having contact with L.Z., or from following her, along with other enumerated prohibited acts. Defendant does not dispute that the FRO was duly served upon him after it was issued.

On April 1, 2015, defendant and L.Z. had a child support hearing scheduled at the Burlington County Courthouse. The record indicates there have been many previous support and enforcement hearings between the parties. According to the testimony, defendant was late for the hearing, which resulted in L.Z. leaving the courthouse apparently before the hearing could be completed because she needed to return home in time for their children to get back from school.

L.Z. testified that as she approached her residence she observed a vehicle blocking her driveway. The vehicle was parked across the driveway in a perpendicular manner. Although the vehicle was not one that she thought was owned by defendant, L.Z. recognized defendant seated in the vehicle along with a female companion. According to L.Z., she became frightened and drove her own car down to the end of the cul-de-sac on the street and waited there for "three to four minutes." L.Z. then drove back to her property, and noticed that the other car was now pointing in a different direction. The other car then drove away, without L.Z. notating its license plate.

L.Z. reported the incident to the County Prosecutor's Office, which subsequently brought the present contempt action against defendant in the Family Part pursuant to N.J.S.A. 2C:29-9(b). Three witnesses testified at the ensuing trial: L.Z. for the State, countered by defendant and his female companion. Both defendant and his companion denied that they had been in a car at L.Z.'s residence on the day in question.

After considering the proofs, the trial judge concluded that the prosecution had sustained its burden of proving beyond a reasonable doubt that defendant had been at L.Z.'s residence on April 1, and thereby had knowingly violated the terms of the FRO. In his short oral ruling, the judge made the following pertinent findings

The issue this morning is -- is basically the credibility of -- of the witnesses.

I ve heard the testimony. I'm satisfied that the -- the testimony of [L.Z.] is in fact credible. Her testimony is that she observed [defendant] blocking her driveway in a secluded area. [Defendant] indicates that he didn't do that. [Defendant's female companion], who's obviously an interested party as she has been described as both a close friend or the fiancé of [defendant]. I'm satisfied that he was in fact present at the time based upon the credibility of the parties. I'm likewise satisfied that it does constitute harassment.

There are numerous cases in domestic violence field indicating that this kind of activity is a violation of the Domestic Violence Act either by harassment, the presence, the observation, the -- creating the -- the uncomfortable circumstances. On that basis, the Court is satisfied beyond a reasonable doubt that a violation was committed and the Court enters a finding of guilty.

Defendant now appeals, contending that the trial judge's oral findings are insufficient to support his determination. We disagree.

Our scope of review is limited. The factual findings of a judge who has considered the testimony of witnesses at a non-jury trial generally require considerable deference. We generally do not set aside a trial court's finding of guilt unless it was "clearly a mistaken one and so plainly unwarranted that the interests of justice demand . . . correction." State v. Johnson, 42 N.J. 146, 162 (1964). Moreover, as the Supreme Court has instructed in a Family Part context, appellate courts are required to afford deference to trial courts on appeal "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998). See also State v. Locurto, 157 N.J. 463 (1999) (similarly reinforcing these principles).

Defendant contends that the judge's opinion is inadequate because he made an explicit finding that L.Z. was credible without reciprocally making a finding that he and his companion were not credible. This argument is unpersuasive, as it is readily implicit in the judge's opinion that the judge found L.Z.'s account of the events more believable than that of the defense witnesses.

Defendant further argues that the court noted the female companion's potential bias in favor of him as his paramour or close friend, but did not comment on L.Z.'s potential bias as a former spouse who has been involved in ongoing litigation with him about support issues. Defendant posits that L.Z. may have fabricated her testimony, because she was angry at defendant for being late for the hearing and because he allegedly has not paid his support obligations. Although the judge did not explicitly discuss these points in his oral ruling, it is manifest from the testimony at trial that both defendant and L.Z., as former spouses with ongoing disputes, each had potential areas of bias, but the judge nonetheless found her version of the facts to be the more credible one. We will not second-guess that determination, given the judge's first-hand ability to have observed each of the witnesses and to consider their demeanor.

Affirmed. The stay of the weekend custodial portion of defendant's sentence we issued on July 31, 2015 is rescinded, effective in thirty days. The trial court shall administer the implementation of the sentence in the ordinary course.

1 We use initials for the former spouses to protect the ex-wife's privacy under the statute.