A.DS-L. v. C.M.

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                                NOT FOR PUBLICATION WITHOUT THE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-2511-17T4

A.DS-L.,

          Plaintiff-Respondent,

v.

C.M.,

     Defendant-Appellant.
______________________________

                    Submitted January 14, 2019 – Decided January 28, 2019

                    Before Judges Fasciale and Rose.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Passaic County,
                    Docket No. FV-16-0755-18.

                    Bastarrika, Soto, Gonzalez, & Somohano, LLP,
                    attorneys for appellant (Erin L. Thompson, on the
                    brief).

                    Kassem & Associates, PC, attorneys for respondent
                    (Nabil N. Kassem and Dominque J. Carroll, on the
                    brief).

PER CURIAM
      Defendant appeals from a December 22, 2017 final restraining order

(FRO) sought by plaintiff, his wife, under the Prevention of Domestic Violence

Act (PDVA),  N.J.S.A. 2C:25-17 to -35. Defendant argues that the judge's

findings are unsupported by credible evidence, and that the judge placed too

much weight on plaintiff's injuries as depicted in several photographs. We

disagree and affirm.

       In a domestic violence case, we accord substantial deference to a Famil y

Part judge's findings, which "are binding on appeal when supported by adequate,

substantial, credible evidence." Cesare v. Cesare,  154 N.J. 394, 411-12 (1998).

We accord that deference especially when much of the evidence is testimonial

and implicates credibility determinations. Id. at 412. We do not disturb the

judge's factual findings and legal conclusions, 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 Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,  65 N.J. 474, 484

(1974)).

      When determining whether to grant an FRO pursuant to the PDVA, the

judge must make two determinations. Silver v. Silver,  387 N.J. Super. 112, 125-

27 (App. Div. 2006). Under the first Silver prong, "the judge must determine


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whether the plaintiff has proven, by a preponderance of the credible evidence,

that one or more of the predicate acts set forth in  N.J.S.A. 2C:25-19(a) has

occurred." Id. at 125.

      In her complaint, plaintiff alleged that defendant committed the predicate

acts of assault, harassment, terroristic threats, criminal restraint, criminal

mischief, and "other crime" involving serious bodily injury.        At the FRO

hearing, plaintiff testified that defendant woke her up, demanded jewelry, pulled

her by the hair, and elbowed, kicked, and choked her. She produced numerous

photographs depicting her injuries.      The judge's findings focused on the

allegations of harassment and assault.

      A person is guilty of harassment where, "with purpose to harass another,"

he or she:

             a. Makes, or causes to be made, a communication or
             communications anonymously or at extremely
             inconvenient hours, or in offensively coarse language,
             or any other manner likely to cause annoyance or alarm;

             b. Subjects another to striking, kicking, shoving, or
             other offensive touching, or threatens to do so; or

             c. Engages in any other course of alarming conduct or
             of repeatedly committed acts with purpose to alarm or
             seriously annoy such other person.

             [ N.J.S.A. 2C:33-4(a) to (c).]


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Harassment requires that the defendant act with the purpose of harassing the

victim. J.D. v. M.D.F.,  207 N.J. 458, 486 (2011). A judge may use "[c]ommon

sense and experience" when determining a defendant's intent. State v. Hoffman,

 149 N.J. 564, 577 (1997). The judge found defendant guilty of harassment, by

a preponderance of the evidence, under  N.J.S.A. 2C:33-4(b). He found that the

photographs – some of which the police took – showed plaintiff sustained a

"series of injuries," and that it was "more likely than not" that defendant inflicted

those injuries.

      There are many different types of assault. Simple assault is committed

when a person "[a]ttempts to cause or purposely, knowingly or recklessly causes

bodily injury to another."       N.J.S.A. 2C:12-1(a)(1).      Bodily injury means

"physical pain, illness or any impairment of physical condition."  N.J.S.A.

2C:11-1(a). Under  N.J.S.A. 2C:12-1(b)(1), a person is guilty of aggravated

assault if he or she "[a]ttempts to cause serious bodily injury to another, or

causes such injury purposely or knowingly or under circumstances manifesting

extreme indifference to the value of human life recklessly causes such injury."

Serious bodily injury means "bodily injury which creates a substantial risk of

death or which causes serious, permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ."  N.J.S.A. 2C:11-


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1(b). Relying on the photographs and plaintiff's testimony, the judge found

defendant guilty of "assault."1

      Under the second Silver prong, a judge must also determine whether a

restraining order is required to protect the plaintiff from future acts or threats of

violence.  387 N.J. Super. at 127. The commission of one of the predicate acts

of domestic violence set forth in  N.J.S.A. 2C:25-19(a) does not, on its own,

"automatically . . . warrant the issuance of a domestic violence [restraining]

order." Corrente v. Corrente,  281 N.J. Super. 243, 248 (App. Div. 1995).

Although that determination "is most often perfunctory and self-evident, the

guiding standard is whether a restraining order is necessary, upon an evaluation

of the factors set forth in  N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the


1
  Defendant later pled guilty to third-degree aggravated assault on a domestic
violence victim – this plaintiff –  N.J.S.A. 2C:12-1(b)(12). A person is guilty
under this statute if he:

             Attempts to cause significant bodily injury or causes
             significant bodily injury purposely or knowingly or,
             under circumstances manifesting extreme indifference
             to the value of human life, recklessly causes significant
             bodily injury to a person who, with respect to the actor,
             meets the definition of a victim of domestic violence,
             as defined in subsection d. of section 3 of P.L.1991, c.
             261 ([ N.J.S.A.] 2C:25-19).

A judge sentenced defendant to probation, no contact with plaintiff, and ordered
domestic violence counseling.
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victim from an immediate danger or to prevent further abuse." Silver,  387 N.J.

Super. at 127.

      Plaintiff testified that after defendant had attacked her, she started to cry,

experienced a panic attack, and felt like he was going to kill her. She said that

she was "very much" in fear of defendant. The essence of plaintiff's testimony

was that she needed the FRO to protect herself. The judge found that plaintiff

satisfied prong two of Silver, noting especially that plaintiff had reason to fear

defendant.

      We recognize that the judge struggled overall with whether plaintiff was

credible. But he found plaintiff's testimony "more likely than not" – that is, that

plaintiff's testimony was more likely to be credible than incredible. He reached

that determination by recognizing the burden of proof was by a preponderance

of the evidence, and by weighing the testimony from the witnesses, including a

friend of the parties, and defendant's mother. We are not to second-guess those

findings, especially here, where the findings are supported by substantial

evidence in the record.

      Affirmed.




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