STATE OF NEW JERSEY v. ANTHONY A. CALABRESE

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                                NOT FOR PUBLICATION WITHOUT THE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-3417-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTHONY A. CALABRESE,

     Defendant-Appellant.
_______________________________

                    Argued October 15, 2018 – Decided November 13, 2018

                    Before Judges Messano and Fasciale.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Ocean County, Docket
                    No. FO-15-0215-17.

                    Mitchell J. Ansell argued the cause for appellant
                    (Ansell Grimm & Aaron, PC, attorneys; Mitchell J.
                    Ansell, on the brief).

                    Hillary H. Bryce argued the cause for respondent
                    (Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney; Hillary H. Bryce, Supervising Assistant
                    Prosecutor, on the brief).

PER CURIAM
      After a bench trial, defendant appeals from his conviction of disorderly

persons contempt,  N.J.S.A. 2C:29-9(b)(2), for violating a temporary restraining

order (TRO) previously obtained by his ex-girlfriend under the Prevention of

Domestic Violence Act (the Act),  N.J.S.A. 2C:25-17 to -35. We affirm.

      On appeal, defendant argues:

            POINT I
            THE STATE FAILED TO PROVE EVERY
            ELEMENT OF  N.J.S.A. 2C:29-9 BEYOND A
            REASONABLE DOUBT AS THE TRO MARKED S-1
            IN EVIDENCE WAS NO LONGER IN EFFECT ON
            SEPTEMBER 24, 2016, AS IT HAD BEEN
            SUPERSEDED BY AN ATRO ISSUED ON
            OCTOBER 6, 2016. (PARTIALLY RAISED BELOW).

            POINT II
            THE FINDINGS OF FACT AND CONCLUSIONS OF
            LAW MADE BY THE TRIAL [JUDGE] WERE
            AGAINST THE WEIGHT OF THE EVIDENCE.
            THEREFORE, THE CONVICTION IN THIS
            MATTER MUST BE VACATED. (NOT RAISED
            BELOW).

      We conclude that defendant's contention in Point I is without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the

following brief remarks. In August 2016, the ex-girlfriend obtained and served

the TRO on defendant. In September 2016, the municipal court amended the

TRO (ATRO) to include information as to the history of domestic violence

between the parties. The TRO and ATRO prohibited defendant from contacting

                                                                        A-3417-16T2
                                      2
the ex-girlfriend. Although the State moved only the TRO into evidence – and

even assuming defendant had not received the ATRO – the TRO remained

binding on defendant. See State v. Gandhi,  201 N.J. 161, 189 (2010) (stating

that "a defendant is bound to obey [a] court's order until the order is vacated

through a judicial proceeding").     "[A]s long as a court order exists and a

defendant has knowledge of it [like here], the defendant may be prosecuted for

a violation thereof." Id. at 190.

      Our review of a 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, 161 (1964)). Factual findings

of the trial judge are generally accorded deference given the judge's "opportunity

to make first-hand credibility judgments about the witnesses who appear on the

stand; [the judge] has 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. E.P.,  196 N.J. 88,

104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M.,  189 N.J. 261,

293 (2007)). Nevertheless, in evaluating a trial judge's findings in a criminal

case, we must ensure that the State has carried its burden of proving a

defendant's guilt beyond a reasonable doubt.


                                                                          A-3417-16T2
                                        3
      To obtain a conviction of the disorderly persons offense of contempt for

violating a TRO issued under the Act, the State must prove beyond a reasonable

doubt that defendant knowingly violated such an order.  N.J.S.A. 2C:29-9(b)(2);

see also State v. Finamore,  338 N.J. Super. 130, 138 (App. Div. 2001). "[T]he

evidence must allow at least a reasonable inference that a defendant charged

with violating a [TRO] knew his conduct would bring about a prohibited result."

State v. S.K.,  423 N.J. Super. 540, 547 (App. Div. 2012).  N.J.S.A. 2C:2-2(b)(2)

states in relevant part: "A person acts knowingly with respect to the nature of

his conduct or the attendant circumstances if he is aware that his conduct is of

that nature, or that such circumstances exist, or he is aware of a high probability

of their existence."

      After defendant received the TRO, the ex-girlfriend received six calls and

two voicemails on her cell phone between 4:00 a.m. and 4:08 a.m. These calls

came from defendant's phone. One of the voicemails, which the ex-girlfriend

testified contained defendant's voice, said "[a]nswer the phone, you stupid

bitch." At the trial, defendant – who knew about the TRO and its requirement

that he not contact the ex-girlfriend – defended the charges by attempting to

show he did not make the calls. That is, he suggested that the six calls emanated

from a "spoofing app."


                                                                           A-3417-16T2
                                        4
      The judge found the ex-girlfriend credible.           She characterized her

testimony as "straightforward[;] she was direct . . . and responsive." The judge

added that

             she was clear – that the calls were made to her phone.
             She did not notably appear to overreach in her
             testimony. And, much of her testimony concerning her
             receipt of the calls was, in this [c]ourt's view, un-
             assailed.

                   . . . [A]nd very importantly, . . . in terms of
             evaluating [her] credibility, . . . she was corroborated
             by [an officer] in this matter.

                   . . . [The officer] used the same phone number
             [used to call the ex-girlfriend] to call . . . defendant and
             indeed spoke to . . . defendant . . . .

                   ....

                    In this [c]ourt's view, . . . especially in light of
             [the ex-girlfriend's] unequivocal testimony that she
             recognized . . . defendant's voice . . . and maintained
             corroborating evidence, . . . via [the] screen shots[,] . .
             . the calls indeed occurred . . . .

                    [The ex-girlfriend's] testimony was, again,
             corroborated by her actions that very same day that she
             received the calls. . . .    [The officer and the ex-
             girlfriend] appeared credible . . . .

The judge did not believe the testimony from defendant's mother – who testified

that it was not her son's voice on the voicemail – which the judge stated was an

"overreach." And the judge flat out rejected – as "speculative" and "illogical" –

                                                                            A-3417-16T2
                                          5
defendant's defense that "spoofing apps" were purportedly the cause of the calls

to the ex-girlfriend.

      The judge applied the correct law and found defendant guilty beyond a

reasonable doubt. We conclude there exists sufficient credible evidence in the

record to support the judge's findings, which we will not disturb.

      Affirmed.




                                                                        A-3417-16T2
                                       6