06-12-09 STATE OF NEW JERSEY V. JEREMIAH HUPKA
A-4882-07T4
Defendant, a sheriff's officer and part-time municipal
police officer, pled guilty to fourth-degree criminal sexual
contact. As part of his plea bargain with the State, he
consented to the forfeiture of his current positions, and
further agreed not to seek any employment in law enforcement in
the future. However, the plea bargain reserved the issue of
whether an order of permanent future forfeiture of all public
employment, N.J.S.A. 2C:51-2(d), should be entered, pending
further briefing and argument by the parties. The judge
subsequently entered an order barring defendant from all future
public employment, finding defendant's offense "involv[ed] or
touch[ed] on" his official positions.
We reversed, concluding that under the circumstances
presented, defendant's offense was not "related directly to
[his] performance in, or circumstances flowing from, [his]
specific public office[s][.]" Ibid. Therefore, forfeiture of
all future public employment was not appropriately ordered.
In her dissent, Judge Lihotz concludes that under the
circumstances presented, the offense required forfeiture of all
future public employment under the statute.
Richard Sadowski
Assistant Editor
Wednesday, June 17, 2009
6-15-09 State v. Baum and Moore (A-44-07)
6-15-09 State v. Angela Baum and Jermel Moore (A-44-07)
Defendant Jermel Moore’s motion to suppress evidence found
during a warrantless search of the vehicle in which he was
riding should have been denied because he did not have standing
to argue that the driver’s right against self-incrimination was
violated and because the search was not unreasonable.
Richard Sadowski
Assistant Editor
Defendant Jermel Moore’s motion to suppress evidence found
during a warrantless search of the vehicle in which he was
riding should have been denied because he did not have standing
to argue that the driver’s right against self-incrimination was
violated and because the search was not unreasonable.
Richard Sadowski
Assistant Editor
Wednesday, June 03, 2009
05-27-09 STATE V. DOCAJ A-4592-06T4
05-27-09 STATE OF NEW JERSEY V. GJELOSH DOCAJ, a/k/a JERRY
DOCAJ, a/k/a JERRY DOCOJ
A-4592-06T4
An isolated error in the model jury charge on
passion/provocation manslaughter was harmless when examined
within both the context of the charge itself and the evidence
and arguments presented at trial.
Richard Sadowski
Assistant Editor
DOCAJ, a/k/a JERRY DOCOJ
A-4592-06T4
An isolated error in the model jury charge on
passion/provocation manslaughter was harmless when examined
within both the context of the charge itself and the evidence
and arguments presented at trial.
Richard Sadowski
Assistant Editor
Saturday, May 23, 2009
Tuesday, May 19, 2009
05-18-09 STATE V. ROBBINS A-0365-08T4
05-18-09 STATE V. GEORGE L. ROBBINS
A-0365-08T4
In order to successfully challenge the defendant's
enrollment in the Pretrial Intervention ("PTI") Program, the
State's appeal must be filed within fifteen days of the order of
enrollment to obtain a stay of the order. The Rules provide
that an order of enrollment into PTI over the Prosecutor's
objection is final for purposes of appeal, but must be filed
within fifteen days to stay defendant's participation in the
program.
A-0365-08T4
In order to successfully challenge the defendant's
enrollment in the Pretrial Intervention ("PTI") Program, the
State's appeal must be filed within fifteen days of the order of
enrollment to obtain a stay of the order. The Rules provide
that an order of enrollment into PTI over the Prosecutor's
objection is final for purposes of appeal, but must be filed
within fifteen days to stay defendant's participation in the
program.
05-13-09 State v. Pollock A-5958-07T4
05-13-09 State of New Jersey v. Geoffrey Pollock
A-5958-07T4
Defendant appealed his conviction for a per se violation of
N.J.S.A. 39:4-50, driving with a blood alcohol concentration of
0.08 percent or more. We are called upon to determine whether
the semiannual-recalibration requirement for Alcotest machines,
established by the Supreme Court in State v. Chun, 194 N.J. 54,
cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41
(2008), is applicable to cases in which the test was
administered prior to Chun and in compliance with the then
existing annual-recalibration protocol. Because we determined
that the change mandated by Chun wasto such, we affirmed the conviction.
A-5958-07T4
Defendant appealed his conviction for a per se violation of
N.J.S.A. 39:4-50, driving with a blood alcohol concentration of
0.08 percent or more. We are called upon to determine whether
the semiannual-recalibration requirement for Alcotest machines,
established by the Supreme Court in State v. Chun, 194 N.J. 54,
cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41
(2008), is applicable to cases in which the test was
administered prior to Chun and in compliance with the then
existing annual-recalibration protocol. Because we determined
that the change mandated by Chun wasto such, we affirmed the conviction.
05-12-09 State v. Green A-1892-07T4
05-12-09 State of New Jersey v. Robert Dwayne Green
A-1892-07T4
It was error for the Criminal Division Manager to refuse
defendant the opportunity to submit an application for pre-trial
intervention. Pursuant to Rule 3:28 and the accompanying PTI
Guidelines, a defendant must be allowed to apply for PTI, even
if the application is unlikely to be granted due to the
prosecutor's opposition. Accordingly, we reversed the Law
Division order denying defendant's PTI appeal motion, and
remanded with direction that the Criminal Division Manager allow
defendant to submit an applicmerits of the application.
A-1892-07T4
It was error for the Criminal Division Manager to refuse
defendant the opportunity to submit an application for pre-trial
intervention. Pursuant to Rule 3:28 and the accompanying PTI
Guidelines, a defendant must be allowed to apply for PTI, even
if the application is unlikely to be granted due to the
prosecutor's opposition. Accordingly, we reversed the Law
Division order denying defendant's PTI appeal motion, and
remanded with direction that the Criminal Division Manager allow
defendant to submit an applicmerits of the application.
05-05-09 State v. J.K. A-1314-07T4
05-05-09 State v. J.K.
A-1314-07T4
The pipeline retroactivity holding of State v. Bellamy, 178
N.J. 127 (2003), remains viable notwithstanding additional data
now available on the number of sex offenders civilly committed
under the SVPA who pled guilty to a predicate offense before
adoption of the SVPA, without advice of potential SVPA
consequences, and whose case wasappeal when Bellamy was decided.
A-1314-07T4
The pipeline retroactivity holding of State v. Bellamy, 178
N.J. 127 (2003), remains viable notwithstanding additional data
now available on the number of sex offenders civilly committed
under the SVPA who pled guilty to a predicate offense before
adoption of the SVPA, without advice of potential SVPA
consequences, and whose case wasappeal when Bellamy was decided.
05-04-09 State v. Mosner A-1650-07T4
05-04-09 State v. David Mosner
A-1650-07T4
Admission into the Pre-Trial Intervention program can be
conditioned on the defendant's guilty plea to a motor vehicle
offense carrying a mandatory 180-day term of imprisonment where
the defendaineffective.
A-1650-07T4
Admission into the Pre-Trial Intervention program can be
conditioned on the defendant's guilty plea to a motor vehicle
offense carrying a mandatory 180-day term of imprisonment where
the defendaineffective.
04-21-09 State v. Finesmith A-1056-08T4
04-21-09 State v. Ross Finesmith
A-1056-08T4
Under the "reasonable continuation" doctrine, a single
search warrant may provide authorization for the executing
officers to make more than one entry into the premises
identified in the warrant if they are unable to locate an item
of evidence specified in the warrant during their initial entry.
In order for a re-entry into premises to be considered a
reasonable continuation of the search authorized by the warrant,
two conditions must be satisfied: first, the subsequent entry
must be a continuation of the original search, rather than a new
and separate search; and second, the decision to conduct a
second entry to continue the search must be reasonable under the
totality of the circumstances.
A-1056-08T4
Under the "reasonable continuation" doctrine, a single
search warrant may provide authorization for the executing
officers to make more than one entry into the premises
identified in the warrant if they are unable to locate an item
of evidence specified in the warrant during their initial entry.
In order for a re-entry into premises to be considered a
reasonable continuation of the search authorized by the warrant,
two conditions must be satisfied: first, the subsequent entry
must be a continuation of the original search, rather than a new
and separate search; and second, the decision to conduct a
second entry to continue the search must be reasonable under the
totality of the circumstances.
5-12-09 State v. Fortin (A-27-08)
5-12-09 State v. Steven R. Fortin (A-27-08)
Because defendant had prior notice of the former statute’s death
penalty procedures, there is no impediment to proceeding to the
penalty phase under the former statute. If the jury concludes
that the State has proven beyond a reasonable doubt that the
aggravating factors outweigh the mitigating factors, rendering
defendant subject to a death sentence under the former law, then
imposing a life-without-parole sentence under the new law would
not violate the Ex Post Facto Clause. If the jury finds in
favor of a non-death sentence, defendant must be sentenced under
the law as it existed at the time of the offense, to a term of
thirty years to life with a thirty-year parole disqualifier.
Because defendant had prior notice of the former statute’s death
penalty procedures, there is no impediment to proceeding to the
penalty phase under the former statute. If the jury concludes
that the State has proven beyond a reasonable doubt that the
aggravating factors outweigh the mitigating factors, rendering
defendant subject to a death sentence under the former law, then
imposing a life-without-parole sentence under the new law would
not violate the Ex Post Facto Clause. If the jury finds in
favor of a non-death sentence, defendant must be sentenced under
the law as it existed at the time of the offense, to a term of
thirty years to life with a thirty-year parole disqualifier.
5-4-09 State v. Coder (A-28-08)
5-4-09 State v. Terry W. Coder (A-28-08)
In defendant’s criminal trial on charges of sexual assault on a
minor, the out-of-court statements by the victim – a three-year-
old child – as testified to by her mother, were properly
admitted because the statements were relevant and admissible
under the tender years exception to the hearsay rule.
Additionally, because the child’s statements were not
testimonial, they did not implicate the defendant’s
Confrontation Clause rights.
In defendant’s criminal trial on charges of sexual assault on a
minor, the out-of-court statements by the victim – a three-year-
old child – as testified to by her mother, were properly
admitted because the statements were relevant and admissible
under the tender years exception to the hearsay rule.
Additionally, because the child’s statements were not
testimonial, they did not implicate the defendant’s
Confrontation Clause rights.
Sunday, May 10, 2009
Latest Cases and Court Rules in Municipal Court program Thursday, May 14 8 - 9:30 a.m.
Latest Cases and Court Rules in Municipal Court program Thursday, May 14
8 - 9:30 a.m.
Speaker: Kenneth Vercammen, Esq. Edison, NJ
The NJSBA 2009 Annual Meeting and Convention Municipal Court programs are Thursday, May 14. If you haven't already registered, what are you waiting for? Don't miss the opportunity to earn up to 10 CLE credits at over 60 informative and timely programs.
The NJSBA Municipal Court Section is sponsoring 4 seminars in one day on Thursday May 14, 2009 at the annual convention in AC. Get 6 credits plus breakfast and lunch for a one day fee:
Register online now!
Municipal Court Practice Track:
(includes full day convention access to all other tracks, vendors, and food buffets
Breakfast Buffet at Exhibition Hall
Municipal Court Practice Section Municipal COURT TRACK
8:00 am - The Latest Cases and Court Rules in Municipal Court
Thursday, May 14 8 - 9:30 a.m.
Speaker: Kenneth Vercammen, Esq. Edison, NJ
10:00 am - DWI in the Age of Chun, 1.5 credits
Speaker: Jeffrey Evan Gold, Esq.
Luncheon Buffet at Exhibition Hall
1:00 pm - What to Look for in Alcotest Discovery, 1.5 credits
Speaker: Arnold N. Fishman, Esq.
3:00 pm - Municipal Court Bench/Bar Forum. 1.5 credits
Panelists: Hon. Joan Robinson Gross, P.J.M.C.
Hon. Robert F. Schaul, JMC
Hon. E. Ronald Wright, JMC
Paris P. Eliades, Esq. Courter Kobert & Cohen, PC
Jeffrey E. Gold, Esq.
Deborah Veach, Esq. Municipal Prosecutor, Township of Teaneck
Other important programs:
-Equity Jurisprudence Committee Litigation TRACK (CHANCERY)
Thursday, May 14 1 - 2:30 p.m.
Chancery judges and general equity practitioners will discuss a variety of topics, including foreclosure mediation, equity practice in the current economic crisis and other priceless tips for chancery litigators.
Moderator: Alexandra V. Gallo, Esq., McElroy Deutsch, Mulvaney & Carpenter, LLP
Speakers: Hon. Harriet Derman, P.J.Ch.
Hon. Glenn Berman, J.S.C.
Hon. Harriet Farber Klein, J.S.C.
Frederick W. Alworth, Esq. Gibbons, PC
Thomas P. Scrivo, Esq. McElroy, Deutsch, Mulvaney & Carpenter, LLP
Kevin M .Wolfe, Esq. Chief Civil Practice Liaison, Administrative Office of the Courts
-Prosecuting and Defending the Police Officer
Criminal Law Section Litigation TRACK (CRIMINAL)
Thursday, May 14 3 - 4:30 p.m.
Moderator: Robert Brass, Esq. Picillo Caruso Pope Edell Picini, PC
Speakers: Paul J. Bradley, Esq. Supervising Assistant Prosecutor, Essex County Prosecutor's Office
Kevin P. McCann, Esq. NJSBA Treasurer
John L. Molinelli, Esq. Bergen County Prosecutor
Brian J. Neary, Esq
Anthony J. Pope, Esq. Picillo Caruso Pope Edell Picini, PC
Speaker: Kenneth Vercammen, Esq. Edison, NJ
The NJSBA 2009 Annual Meeting and Convention Municipal Court programs are Thursday, May 14. If you haven't already registered, what are you waiting for? Don't miss the opportunity to earn up to 10 CLE credits at over 60 informative and timely programs.
The NJSBA Municipal Court Section is sponsoring 4 seminars in one day on Thursday May 14, 2009 at the annual convention in AC. Get 6 credits plus breakfast and lunch for a one day fee:
Register online now!
Municipal Court Practice Track:
(includes full day convention access to all other tracks, vendors, and food buffets
Breakfast Buffet at Exhibition Hall
Municipal Court Practice Section Municipal COURT TRACK
8:00 am - The Latest Cases and Court Rules in Municipal Court
Thursday, May 14 8 - 9:30 a.m.
Speaker: Kenneth Vercammen, Esq. Edison, NJ
10:00 am - DWI in the Age of Chun, 1.5 credits
Speaker: Jeffrey Evan Gold, Esq.
Luncheon Buffet at Exhibition Hall
1:00 pm - What to Look for in Alcotest Discovery, 1.5 credits
Speaker: Arnold N. Fishman, Esq.
3:00 pm - Municipal Court Bench/Bar Forum. 1.5 credits
Panelists: Hon. Joan Robinson Gross, P.J.M.C.
Hon. Robert F. Schaul, JMC
Hon. E. Ronald Wright, JMC
Paris P. Eliades, Esq. Courter Kobert & Cohen, PC
Jeffrey E. Gold, Esq.
Deborah Veach, Esq. Municipal Prosecutor, Township of Teaneck
Other important programs:
-Equity Jurisprudence Committee Litigation TRACK (CHANCERY)
Thursday, May 14 1 - 2:30 p.m.
Chancery judges and general equity practitioners will discuss a variety of topics, including foreclosure mediation, equity practice in the current economic crisis and other priceless tips for chancery litigators.
Moderator: Alexandra V. Gallo, Esq., McElroy Deutsch, Mulvaney & Carpenter, LLP
Speakers: Hon. Harriet Derman, P.J.Ch.
Hon. Glenn Berman, J.S.C.
Hon. Harriet Farber Klein, J.S.C.
Frederick W. Alworth, Esq. Gibbons, PC
Thomas P. Scrivo, Esq. McElroy, Deutsch, Mulvaney & Carpenter, LLP
Kevin M .Wolfe, Esq. Chief Civil Practice Liaison, Administrative Office of the Courts
-Prosecuting and Defending the Police Officer
Criminal Law Section Litigation TRACK (CRIMINAL)
Thursday, May 14 3 - 4:30 p.m.
Moderator: Robert Brass, Esq. Picillo Caruso Pope Edell Picini, PC
Speakers: Paul J. Bradley, Esq. Supervising Assistant Prosecutor, Essex County Prosecutor's Office
Kevin P. McCann, Esq. NJSBA Treasurer
John L. Molinelli, Esq. Bergen County Prosecutor
Brian J. Neary, Esq
Anthony J. Pope, Esq. Picillo Caruso Pope Edell Picini, PC
Kenneth Vercammen named Super Lawyer for 2009 in the Criminal Law- DWI practice area.
Kenneth
Vercammen was selected to the 2015 Super Lawyers list. The Super Lawyers list is
issued by Thomson Reuters. A description of the selection methodology can be
found at www.superlawvers.com/about/selection process detail.html. No aspect of
this advertisement has been approved by the Supreme Court of New Jersey.
Also, Kenneth Vercammen also passed the
test to become one of the few Municipal Court Law Attorneys.
SUPREME COURT OF NEW JERSEY
It is ORDERED that, pursuant to Rule
1:39-5(a), the following named attorneys, having applied to the Board on Attorney
Certification and having been found qualified by the Board, are hereby
authorized to designate themselves as Municipal Court Law Attorneys before the
public, the bar, and the courts of this State in accordance with the Rules of
this Court during their good behavior for a term of five years from the date of
this Order. ….. …… Kenneth Vercammen Middlesex
SUPER LAWYERS SELECTION PROCESSOVERVIEW
In selecting attorneys for Super Lawyers, Law & Politics employs a rigorous, multiphase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.
The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.
The Super Lawyers selection process involves three basic steps: creation of the candidate pool; evaluation of candidates by the research department; and peer evaluation by practice area.
PUBLICATION
The final published list represents no more than 5 percent of the lawyers in the state. The lists are published annually in state and regional editions of Super Lawyers magazines and in inserts and special advertising sections in leading city and regional magazines and newspapers. All attorneys selected for inclusion in Super Lawyers, regardless of year, can be found on superlawyers.com.
http://www.superlawyers.com/new-jersey/lawyer/Kenneth-A-Vercammen/73f0b3a6-71c1-4ae1-a5d0-803ddb2739a9.html
Latest Cases and Court Rules in Municipal Court
Latest Cases and Court Rules in Municipal Court
Thursday, May 14 8 - 9:30 a.m.
Speaker: Kenneth Vercammen, Esq. Edison, NJ
The NJSBA 2009 Annual Meeting and Convention Municipal Court programs are Thursday, May 14. If you haven't already registered, what are you waiting for? Don't miss the opportunity to earn up to 10 CLE credits at over 60 informative and timely programs.
The NJSBA Municipal Court Section is sponsoring 4 seminars in one day on Thursday May 14, 2009 at the annual convention in AC. Get 6 credits plus breakfast and lunch for a one day fee:
Register online now!
Municipal Court Practice Track:
(includes full day convention access to all other tracks, vendors, and food buffets
Breakfast Buffet at Exhibition Hall
Municipal Court Practice Section Municipal COURT TRACK
8:00 am - The Latest Cases and Court Rules in Municipal Court
Thursday, May 14 8 - 9:30 a.m.
Speaker: Kenneth Vercammen, Esq. Edison, NJ
10:00 am - DWI in the Age of Chun, 1.5 credits
Speaker: Jeffrey Evan Gold, Esq.
Luncheon Buffet at Exhibition Hall
1:00 pm - What to Look for in Alcotest Discovery, 1.5 credits
Speaker: Arnold N. Fishman, Esq.
3:00 pm - Municipal Court Bench/Bar Forum. 1.5 credits
Panelists: Hon. Joan Robinson Gross, P.J.M.C.
Hon. Robert F. Schaul, JMC
Hon. E. Ronald Wright, JMC
Paris P. Eliades, Esq. Courter Kobert & Cohen, PC
Jeffrey E. Gold, Esq.
Deborah Veach, Esq. Municipal Prosecutor, Township of Teaneck
Other important programs:
-Equity Jurisprudence Committee Litigation TRACK (CHANCERY)
Thursday, May 14 1 - 2:30 p.m.
Chancery judges and general equity practitioners will discuss a variety of topics, including foreclosure mediation, equity practice in the current economic crisis and other priceless tips for chancery litigators.
Moderator: Alexandra V. Gallo, Esq., McElroy Deutsch, Mulvaney & Carpenter, LLP
Speakers: Hon. Harriet Derman, P.J.Ch.
Hon. Glenn Berman, J.S.C.
Hon. Harriet Farber Klein, J.S.C.
Frederick W. Alworth, Esq. Gibbons, PC
Thomas P. Scrivo, Esq. McElroy, Deutsch, Mulvaney & Carpenter, LLP
Kevin M .Wolfe, Esq. Chief Civil Practice Liaison, Administrative Office of the Courts
-Prosecuting and Defending the Police Officer
Criminal Law Section Litigation TRACK (CRIMINAL)
Thursday, May 14 3 - 4:30 p.m.
Moderator: Robert Brass, Esq. Picillo Caruso Pope Edell Picini, PC
Speakers: Paul J. Bradley, Esq. Supervising Assistant Prosecutor, Essex County Prosecutor's Office
Kevin P. McCann, Esq. NJSBA Treasurer
John L. Molinelli, Esq. Bergen County Prosecutor
Brian J. Neary, Esq
Anthony J. Pope, Esq. Picillo Caruso Pope Edell Picini, PC
It's not too late! There's still time to register. Don't get left behind!
Thursday, May 14 8 - 9:30 a.m.
Speaker: Kenneth Vercammen, Esq. Edison, NJ
The NJSBA 2009 Annual Meeting and Convention Municipal Court programs are Thursday, May 14. If you haven't already registered, what are you waiting for? Don't miss the opportunity to earn up to 10 CLE credits at over 60 informative and timely programs.
The NJSBA Municipal Court Section is sponsoring 4 seminars in one day on Thursday May 14, 2009 at the annual convention in AC. Get 6 credits plus breakfast and lunch for a one day fee:
Register online now!
Municipal Court Practice Track:
(includes full day convention access to all other tracks, vendors, and food buffets
Breakfast Buffet at Exhibition Hall
Municipal Court Practice Section Municipal COURT TRACK
8:00 am - The Latest Cases and Court Rules in Municipal Court
Thursday, May 14 8 - 9:30 a.m.
Speaker: Kenneth Vercammen, Esq. Edison, NJ
10:00 am - DWI in the Age of Chun, 1.5 credits
Speaker: Jeffrey Evan Gold, Esq.
Luncheon Buffet at Exhibition Hall
1:00 pm - What to Look for in Alcotest Discovery, 1.5 credits
Speaker: Arnold N. Fishman, Esq.
3:00 pm - Municipal Court Bench/Bar Forum. 1.5 credits
Panelists: Hon. Joan Robinson Gross, P.J.M.C.
Hon. Robert F. Schaul, JMC
Hon. E. Ronald Wright, JMC
Paris P. Eliades, Esq. Courter Kobert & Cohen, PC
Jeffrey E. Gold, Esq.
Deborah Veach, Esq. Municipal Prosecutor, Township of Teaneck
Other important programs:
-Equity Jurisprudence Committee Litigation TRACK (CHANCERY)
Thursday, May 14 1 - 2:30 p.m.
Chancery judges and general equity practitioners will discuss a variety of topics, including foreclosure mediation, equity practice in the current economic crisis and other priceless tips for chancery litigators.
Moderator: Alexandra V. Gallo, Esq., McElroy Deutsch, Mulvaney & Carpenter, LLP
Speakers: Hon. Harriet Derman, P.J.Ch.
Hon. Glenn Berman, J.S.C.
Hon. Harriet Farber Klein, J.S.C.
Frederick W. Alworth, Esq. Gibbons, PC
Thomas P. Scrivo, Esq. McElroy, Deutsch, Mulvaney & Carpenter, LLP
Kevin M .Wolfe, Esq. Chief Civil Practice Liaison, Administrative Office of the Courts
-Prosecuting and Defending the Police Officer
Criminal Law Section Litigation TRACK (CRIMINAL)
Thursday, May 14 3 - 4:30 p.m.
Moderator: Robert Brass, Esq. Picillo Caruso Pope Edell Picini, PC
Speakers: Paul J. Bradley, Esq. Supervising Assistant Prosecutor, Essex County Prosecutor's Office
Kevin P. McCann, Esq. NJSBA Treasurer
John L. Molinelli, Esq. Bergen County Prosecutor
Brian J. Neary, Esq
Anthony J. Pope, Esq. Picillo Caruso Pope Edell Picini, PC
It's not too late! There's still time to register. Don't get left behind!
Sunday, April 26, 2009
Rivas v Colon Domestic Violence order reversed when defendant not provided right of cross-examination or to call witnesses
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5132-07T2
MELISSA RIVAS,
Plaintiff-Respondent,
v.
LEONARD COLON,
Defendant-Appellant.
________________________________________________________________
Argued January 12, 2009 - Decided
Before Judges Carchman and Simonelli.
On appeal from the Superior Court of
New Jersey, Chancery Division, Family
Part, Bergen County, Docket No.
FV-02-2119-08.
John W. Gregorek argued the cause for
appellant (Denbeaux and Denbeaux,
attorneys; Mr. Gregorek, on the brief).
William Rodriguez argued the cause for
respondent.
PER CURIAM
In this appeal from the issuance of a final restraining order (FRO), defendant Leonard Colon asserts that the family part judge's conduct of the trial violated his right to a fair trial. We agree and reverse and remand for a new trial.
These are the relevant facts. Plaintiff Melissa Rivas filed a complaint pursuant to the Prevention of Domestic Violence Act (DVA), N.J.S.A. 2C:25-17 to -35. In her complaint, plaintiff alleges that defendant
did endanger plaintiff's life, health or well being . . . by, on 05/05/2008 at 08:00 PM defendant was on the phone w/ 7yr old daughter. He had the child relaying messages to [plaintiff] and [plaintiff's] boyfriend which made the child uncomfortable. After believing [defendant] had hung up, [plaintiff] told the child that what [defendant] was doing was wrong and disrespectful. The [defendant] heard this and became enraged. [Defendant] showed up at [plaintiff's] home 10 mins. later. He was banging on the door and screaming for [plaintiff's] boyfriend to come outside and be a man. He screamed that [plaintiff] was a fucking bitch and other degrading things. [Plaintiff] was afraid so she called the police. He got in his car, backed up and idled in his car for a few minutes then zoomed back into her driveway as if he was going to do something else. He ended up leaving. The 7yr old was crying and upset. After the police came [defendant] called [plaintiff] back raging and cursing about her and her boyfriend. The call lasted about 8 mins. . . .
5/5/08-When [defendant] showed up @ [plaintiff's] home it was with the intention to physically confront [plaintiff's] boyfriend.
Included in the complaint was a brief history of past allegations of domestic violence.
Based on these allegations, another family part judge issued a temporary restraining order (TRO), among other things, restraining defendant from returning to the scene of the domestic violence, barring defendant from plaintiff's residence and place of business and confirming custody of the parties' three children. Additionally, the order confirmed the support and parenting time for defendant, consistent with a judgment of divorce previously entered in a dissolution action in the family part. The TRO was entered on May 6, 2008, and the final hearing scheduled for May 14, 2008.
The final hearing was abbreviated. Following the parties being sworn, the judge read the allegations from the complaint and then asked plaintiff if there had been prior restraining orders. Plaintiff confirmed that there had been three prior TROs that had been dismissed. After hearing an explanation from plaintiff as to the reason for the dismissal, the judge commented: "[t]he fact that you keep dismissing and he goes and he does it again, and each time it gets worse and worse. Sir, what do you have to say about this?"
Defendant proceeded to state that the allegations were false and to discuss past allegations. After hearing some colloquy regarding events that had allegedly taken place in November 2007, the following dialogue ensued:
THE COURT: What day are you talking about?
MS. RIVAS: November 7th of —
THE COURT: All right. I'm not concerned about that. I'm —
MS. RIVAS: Okay.
THE COURT: — more concerned about the more recent allegations.
MS. RIVAS: Okay.
THE COURT: All right. So — I mean, the history is clear. It's — it's documented in prior restraining orders, but, you know, the — the acts at this time, the terroristic threats and the harassment.
Sir, I believe her and I believe that you are a continuing threat. That you threaten to blow up her car, her parents' car, business. The — the — the diapers. The whole thing. The prior history with the physical abuse.
MR. COLON: Okay.
THE COURT: your position is this is all fabricated, that you've never engaged in this behavior. Is that correct?
MR. COLON: Yes.
THE COURT: All right. I find that —
MR. COLON: I — I have —
THE COURT: — you're not telling the truth. I find that —
MR. COLON: Okay.
THE COURT: — you have committed the acts of domestic violence set forth in the plaintiff's complaint. I find that her testimony is credible. I find that she is entitled to a final restraining order based upon the acts of domestic violence, and, specifically, the threats, terroristic threats and harassment.
I'm ordering that you be barred from plaintiff's residence, place of employment. From oral — oral, written, personal, electronic, or other communication with the plaintiff, Dino Guadalupe and Raphael Rivas, from making or causing anyone else to make harassing communications to the plaintiff, Dino Guadalupe and Raphael.
Prohibited from stalking, following, threatening to harm, stalk, or follow, the above named individuals.
The judge then entered orders incorporating the orders previously entered in the divorce proceeding. Finally, she entered a civil penalty of $400 and executed a FRO. This appeal followed.
On appeal, defendant asserts that he was not afforded due process, specifically, that the determination was not supported by the record adduced at the hearing, nor was he afforded cross-examination or an opportunity to introduce evidence on his own behalf.
The DVA was designed to provide maximum protection to victims of domestic violence. N.J.S.A. 2C:25-18. See also In re E.F.G., 398 N.J. Super. 539, 546 (App.Div. 2008) (noting that "affording the victims of domestic violence the maximum protection the law has to offer is a matter of vital and significant public policy in New Jersey."). The procedures for implementing the DVA are designed to provide immediate and long-term relief in a summary manner. Pressler, Current N.J. Court Rules, comment 4.3 on R. 5:7A (2009). Yet, the summary nature of the proceedings does not dispense with the requirement that litigants be afforded due process in the resolution of a domestic violence complaint. Peterson v. Peterson, 374 N.J. Super. 116, 125 (App.Div. 2005). See also H.E.S. v. J.C.S., 175 N.J. 309, 324 (2003) (finding due process violation where defendant received the domestic violence complaint against him only one day prior to return date, defendant's request for adjournment was denied, and an FRO was granted based on allegations not contained in the complaint); Franklin v. Sloskey, 385 N.J. Super. 534, 540 (App.Div. 2006) (finding a due process violation where the trial court granted an FRO when plaintiff did not file a domestic violence complaint nor applied for a TRO).
"The conduct of the domestic violence hearing itself must accord with at least minimal requirements of due process, including the right of defendant to conduct cross-examination and to offer the testimony of witnesses, and the court must make findings of fact, particularly credibility findings." Pressler, Current N.J. Rules, comment 4.3 on R. 5:7A (2009). As we noted in Peterson:
We are mindful of the heavy burden on Family Part judges, and the "burgeoning domestic violence case-load in the Superior Court." But we are troubled by the informality of the proceedings and the failure to afford defendant essential procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses in his own defense.
[Peterson, supra, 374 N.J. Super. at 124 (citing Brennan v. Orban, 145 N.J. 282, 303 (1996) and quoting Smith v. Moore, 298 N.J. Super. 121, 123 (App.Div.1997))].
None of these safeguards were afforded to defendant here. Not only was no mention made of cross-examination or the right to call witnesses, aside from the judge's recitation of the allegations of the complaint together with a colloquy with plaintiff about alleged past acts of domestic violence, no testimony was adduced as to the facts that formed the basis of the complaint before the judge that day. Plaintiff never was asked nor did she testify to any of the events of May 5, 2008; those facts were described solely by the judge. This is not the "adequate, substantial [or] credible evidence" that we require to sustain a finding of domestic violence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
We recognize that prior acts of domestic violence, if established, can be considered by the trial judge in granting a FRO, N.J.S.A. 2C:25-29a(1), but these past acts cannot form the sole basis for proving the allegations of the present complaint under N.J.S.A. 2C:25-19a. See Silver v. Silver, 387 N.J. Super. 112, 125 (App.Div. 2006) (noting that when considering a domestic violence complaint, the judge must first "determine 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:25-19a has occurred"(emphasis added)).
As we previously noted, we recognize the increasing dockets that are dominating the domestic violence calendar, but due process is so fundamental to our system of justice that it cannot be subordinated in the face of time pressures. From a practical perspective, this case took ten minutes to complete. To afford defendant his basic due process rights required the expenditure of but a few minutes of additional time.
Defendant is entitled to a new trial on the final restraining order. We vacate the November 14, 2008 FRO and remand for a new trial. At oral argument on this appeal, plaintiff's attorney requested that the temporary restraining order remain in place, and defendant, through counsel, agreed.
Accordingly, we reinstate the November 6, 2008 temporary restraining order, which shall remain in effect pending the hearing on the final restraining order. That trial shall be conducted within ten days of the receipt of this opinion.
We reverse and remand to the family part for a new trial. We do not retain jurisdiction.
A-5132-07T2
RECORD IMPOUNDED
February 9, 2009
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5132-07T2
MELISSA RIVAS,
Plaintiff-Respondent,
v.
LEONARD COLON,
Defendant-Appellant.
________________________________________________________________
Argued January 12, 2009 - Decided
Before Judges Carchman and Simonelli.
On appeal from the Superior Court of
New Jersey, Chancery Division, Family
Part, Bergen County, Docket No.
FV-02-2119-08.
John W. Gregorek argued the cause for
appellant (Denbeaux and Denbeaux,
attorneys; Mr. Gregorek, on the brief).
William Rodriguez argued the cause for
respondent.
PER CURIAM
In this appeal from the issuance of a final restraining order (FRO), defendant Leonard Colon asserts that the family part judge's conduct of the trial violated his right to a fair trial. We agree and reverse and remand for a new trial.
These are the relevant facts. Plaintiff Melissa Rivas filed a complaint pursuant to the Prevention of Domestic Violence Act (DVA), N.J.S.A. 2C:25-17 to -35. In her complaint, plaintiff alleges that defendant
did endanger plaintiff's life, health or well being . . . by, on 05/05/2008 at 08:00 PM defendant was on the phone w/ 7yr old daughter. He had the child relaying messages to [plaintiff] and [plaintiff's] boyfriend which made the child uncomfortable. After believing [defendant] had hung up, [plaintiff] told the child that what [defendant] was doing was wrong and disrespectful. The [defendant] heard this and became enraged. [Defendant] showed up at [plaintiff's] home 10 mins. later. He was banging on the door and screaming for [plaintiff's] boyfriend to come outside and be a man. He screamed that [plaintiff] was a fucking bitch and other degrading things. [Plaintiff] was afraid so she called the police. He got in his car, backed up and idled in his car for a few minutes then zoomed back into her driveway as if he was going to do something else. He ended up leaving. The 7yr old was crying and upset. After the police came [defendant] called [plaintiff] back raging and cursing about her and her boyfriend. The call lasted about 8 mins. . . .
5/5/08-When [defendant] showed up @ [plaintiff's] home it was with the intention to physically confront [plaintiff's] boyfriend.
Included in the complaint was a brief history of past allegations of domestic violence.
Based on these allegations, another family part judge issued a temporary restraining order (TRO), among other things, restraining defendant from returning to the scene of the domestic violence, barring defendant from plaintiff's residence and place of business and confirming custody of the parties' three children. Additionally, the order confirmed the support and parenting time for defendant, consistent with a judgment of divorce previously entered in a dissolution action in the family part. The TRO was entered on May 6, 2008, and the final hearing scheduled for May 14, 2008.
The final hearing was abbreviated. Following the parties being sworn, the judge read the allegations from the complaint and then asked plaintiff if there had been prior restraining orders. Plaintiff confirmed that there had been three prior TROs that had been dismissed. After hearing an explanation from plaintiff as to the reason for the dismissal, the judge commented: "[t]he fact that you keep dismissing and he goes and he does it again, and each time it gets worse and worse. Sir, what do you have to say about this?"
Defendant proceeded to state that the allegations were false and to discuss past allegations. After hearing some colloquy regarding events that had allegedly taken place in November 2007, the following dialogue ensued:
THE COURT: What day are you talking about?
MS. RIVAS: November 7th of —
THE COURT: All right. I'm not concerned about that. I'm —
MS. RIVAS: Okay.
THE COURT: — more concerned about the more recent allegations.
MS. RIVAS: Okay.
THE COURT: All right. So — I mean, the history is clear. It's — it's documented in prior restraining orders, but, you know, the — the acts at this time, the terroristic threats and the harassment.
Sir, I believe her and I believe that you are a continuing threat. That you threaten to blow up her car, her parents' car, business. The — the — the diapers. The whole thing. The prior history with the physical abuse.
MR. COLON: Okay.
THE COURT: your position is this is all fabricated, that you've never engaged in this behavior. Is that correct?
MR. COLON: Yes.
THE COURT: All right. I find that —
MR. COLON: I — I have —
THE COURT: — you're not telling the truth. I find that —
MR. COLON: Okay.
THE COURT: — you have committed the acts of domestic violence set forth in the plaintiff's complaint. I find that her testimony is credible. I find that she is entitled to a final restraining order based upon the acts of domestic violence, and, specifically, the threats, terroristic threats and harassment.
I'm ordering that you be barred from plaintiff's residence, place of employment. From oral — oral, written, personal, electronic, or other communication with the plaintiff, Dino Guadalupe and Raphael Rivas, from making or causing anyone else to make harassing communications to the plaintiff, Dino Guadalupe and Raphael.
Prohibited from stalking, following, threatening to harm, stalk, or follow, the above named individuals.
The judge then entered orders incorporating the orders previously entered in the divorce proceeding. Finally, she entered a civil penalty of $400 and executed a FRO. This appeal followed.
On appeal, defendant asserts that he was not afforded due process, specifically, that the determination was not supported by the record adduced at the hearing, nor was he afforded cross-examination or an opportunity to introduce evidence on his own behalf.
The DVA was designed to provide maximum protection to victims of domestic violence. N.J.S.A. 2C:25-18. See also In re E.F.G., 398 N.J. Super. 539, 546 (App.Div. 2008) (noting that "affording the victims of domestic violence the maximum protection the law has to offer is a matter of vital and significant public policy in New Jersey."). The procedures for implementing the DVA are designed to provide immediate and long-term relief in a summary manner. Pressler, Current N.J. Court Rules, comment 4.3 on R. 5:7A (2009). Yet, the summary nature of the proceedings does not dispense with the requirement that litigants be afforded due process in the resolution of a domestic violence complaint. Peterson v. Peterson, 374 N.J. Super. 116, 125 (App.Div. 2005). See also H.E.S. v. J.C.S., 175 N.J. 309, 324 (2003) (finding due process violation where defendant received the domestic violence complaint against him only one day prior to return date, defendant's request for adjournment was denied, and an FRO was granted based on allegations not contained in the complaint); Franklin v. Sloskey, 385 N.J. Super. 534, 540 (App.Div. 2006) (finding a due process violation where the trial court granted an FRO when plaintiff did not file a domestic violence complaint nor applied for a TRO).
"The conduct of the domestic violence hearing itself must accord with at least minimal requirements of due process, including the right of defendant to conduct cross-examination and to offer the testimony of witnesses, and the court must make findings of fact, particularly credibility findings." Pressler, Current N.J. Rules, comment 4.3 on R. 5:7A (2009). As we noted in Peterson:
We are mindful of the heavy burden on Family Part judges, and the "burgeoning domestic violence case-load in the Superior Court." But we are troubled by the informality of the proceedings and the failure to afford defendant essential procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses in his own defense.
[Peterson, supra, 374 N.J. Super. at 124 (citing Brennan v. Orban, 145 N.J. 282, 303 (1996) and quoting Smith v. Moore, 298 N.J. Super. 121, 123 (App.Div.1997))].
None of these safeguards were afforded to defendant here. Not only was no mention made of cross-examination or the right to call witnesses, aside from the judge's recitation of the allegations of the complaint together with a colloquy with plaintiff about alleged past acts of domestic violence, no testimony was adduced as to the facts that formed the basis of the complaint before the judge that day. Plaintiff never was asked nor did she testify to any of the events of May 5, 2008; those facts were described solely by the judge. This is not the "adequate, substantial [or] credible evidence" that we require to sustain a finding of domestic violence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
We recognize that prior acts of domestic violence, if established, can be considered by the trial judge in granting a FRO, N.J.S.A. 2C:25-29a(1), but these past acts cannot form the sole basis for proving the allegations of the present complaint under N.J.S.A. 2C:25-19a. See Silver v. Silver, 387 N.J. Super. 112, 125 (App.Div. 2006) (noting that when considering a domestic violence complaint, the judge must first "determine 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:25-19a has occurred"(emphasis added)).
As we previously noted, we recognize the increasing dockets that are dominating the domestic violence calendar, but due process is so fundamental to our system of justice that it cannot be subordinated in the face of time pressures. From a practical perspective, this case took ten minutes to complete. To afford defendant his basic due process rights required the expenditure of but a few minutes of additional time.
Defendant is entitled to a new trial on the final restraining order. We vacate the November 14, 2008 FRO and remand for a new trial. At oral argument on this appeal, plaintiff's attorney requested that the temporary restraining order remain in place, and defendant, through counsel, agreed.
Accordingly, we reinstate the November 6, 2008 temporary restraining order, which shall remain in effect pending the hearing on the final restraining order. That trial shall be conducted within ten days of the receipt of this opinion.
We reverse and remand to the family part for a new trial. We do not retain jurisdiction.
A-5132-07T2
RECORD IMPOUNDED
February 9, 2009
Tuesday, April 21, 2009
Judge must decide if failure to signal effects traffic State v Chapman
This is an appeal from a conviction in a trial de novo on a traffic offense charge of failing to signal before making a turn, in violation of N.J.S.A. 39:4-126. Defendant was found guilty in the City of Burlington Municipal Court by Judge Montalto and fined $206 and $33 in costs. On appeal to the Superior Court, Judge Morley found defendant guilty after a trial de novo on the record, Rule 3:23-1, but reduced the fine to $56. Defendant now appeals his conviction to us and is self-represented, as he was in the Municipal Court and the Law Division.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1715-07T4 1715-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONALD L. CHAPMAN, SR.,
Defendant-Appellant.
_____________________________
Argued March 18, 2009 - Decided
Before Judges Baxter and King.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 41-07.
Ronald L. Chapman, Sr., argued the cause pro se.
Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Paszkiewicz, of counsel and on the brief).
PER CURIAM
This is an appeal from a conviction in a trial de novo on a traffic offense charge of failing to signal before making a turn, in violation of N.J.S.A. 39:4-126. Defendant was found guilty in the City of Burlington Municipal Court by Judge Montalto and fined $206 and $33 in costs. On appeal to the Superior Court, Judge Morley found defendant guilty after a trial de novo on the record, Rule 3:23-1, but reduced the fine to $56. Defendant now appeals his conviction to us and is self-represented, as he was in the Municipal Court and the Law Division.
The State's case was presented by Officer Matthew Mercuri. The officer described the violation which he said he observed at 10:01 p.m. on April 28, 2007, a Saturday evening. The record is unclear on the nature of the intersection, specifically if either street is a one-way street and if the intersection is controlled by stop signs, or any other traffic signs. We had great difficulty understanding from the transcribed record the nature of the Jones and York Streets intersection, where the violation allegedly occurred.
After oral argument we became concerned that this information may be critical to the appellant's claim that "no other traffic or persons could have been affected." N.J.S.A. 39:4-126 states in pertinent part:
No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section 39:4-123, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway, or start or back a vehicle unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.
[Emphasis added.]
See State v. Williamson, 138 N.J. 302, 304 (1994); State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994) (statute does not include requirement that a turn will affect other traffic, merely that it have the potential to do so).
We conclude upon our review of this record that supplementation of the record is necessary for the trier-of-fact to determine whether the failure to signal could have affected other traffic, either pedestrian or vehicular, under the statute. Specifically, during appellate oral argument, defendant argued that no one could have been puzzled by his intentions, or endangered by his failure to signal, because York Avenue is a one-way street, and Jones Avenue comes to a dead-end at its intersection with York. If that contention is correct, his claim that his failure to signal could not have endangered anyone may well have merit; however, the present state of the record does not enable us to evaluate this contention. We order this remand for supplementation of the "defective" record pursuant to Rule 3:23-8(a)(3). Judge Morley shall take such additional testimony from each party as the interests of justice requires, hear argument, and decide afresh the question of guilt or innocence on the charge. We think this is the "fast and fair way to adequately develop the record" for decision on the trial de novo and on further appeal, if necessary. State v. Hermanns, 278 N.J. Super. 19, 26 (App. Div. 1994); see also Pressler, Current N.J. Court Rules, comment 1 on R. 1:1-2 ("the achievement of procedural due process in the service of substantial justice on the merits" is the "guiding principle" of interpretation and application of court rules). The case is remanded to Judge Morley to supplement the record and reconsider his judgment in light of any additional testimony offered by the parties on the nature of the intersection.
Remanded with instructions; we do not retain jurisdiction.
A-1715-07T4
April 20, 2009
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1715-07T4 1715-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONALD L. CHAPMAN, SR.,
Defendant-Appellant.
_____________________________
Argued March 18, 2009 - Decided
Before Judges Baxter and King.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 41-07.
Ronald L. Chapman, Sr., argued the cause pro se.
Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Paszkiewicz, of counsel and on the brief).
PER CURIAM
This is an appeal from a conviction in a trial de novo on a traffic offense charge of failing to signal before making a turn, in violation of N.J.S.A. 39:4-126. Defendant was found guilty in the City of Burlington Municipal Court by Judge Montalto and fined $206 and $33 in costs. On appeal to the Superior Court, Judge Morley found defendant guilty after a trial de novo on the record, Rule 3:23-1, but reduced the fine to $56. Defendant now appeals his conviction to us and is self-represented, as he was in the Municipal Court and the Law Division.
The State's case was presented by Officer Matthew Mercuri. The officer described the violation which he said he observed at 10:01 p.m. on April 28, 2007, a Saturday evening. The record is unclear on the nature of the intersection, specifically if either street is a one-way street and if the intersection is controlled by stop signs, or any other traffic signs. We had great difficulty understanding from the transcribed record the nature of the Jones and York Streets intersection, where the violation allegedly occurred.
After oral argument we became concerned that this information may be critical to the appellant's claim that "no other traffic or persons could have been affected." N.J.S.A. 39:4-126 states in pertinent part:
No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section 39:4-123, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway, or start or back a vehicle unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.
[Emphasis added.]
See State v. Williamson, 138 N.J. 302, 304 (1994); State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994) (statute does not include requirement that a turn will affect other traffic, merely that it have the potential to do so).
We conclude upon our review of this record that supplementation of the record is necessary for the trier-of-fact to determine whether the failure to signal could have affected other traffic, either pedestrian or vehicular, under the statute. Specifically, during appellate oral argument, defendant argued that no one could have been puzzled by his intentions, or endangered by his failure to signal, because York Avenue is a one-way street, and Jones Avenue comes to a dead-end at its intersection with York. If that contention is correct, his claim that his failure to signal could not have endangered anyone may well have merit; however, the present state of the record does not enable us to evaluate this contention. We order this remand for supplementation of the "defective" record pursuant to Rule 3:23-8(a)(3). Judge Morley shall take such additional testimony from each party as the interests of justice requires, hear argument, and decide afresh the question of guilt or innocence on the charge. We think this is the "fast and fair way to adequately develop the record" for decision on the trial de novo and on further appeal, if necessary. State v. Hermanns, 278 N.J. Super. 19, 26 (App. Div. 1994); see also Pressler, Current N.J. Court Rules, comment 1 on R. 1:1-2 ("the achievement of procedural due process in the service of substantial justice on the merits" is the "guiding principle" of interpretation and application of court rules). The case is remanded to Judge Morley to supplement the record and reconsider his judgment in light of any additional testimony offered by the parties on the nature of the intersection.
Remanded with instructions; we do not retain jurisdiction.
A-1715-07T4
April 20, 2009
Judge must decide if failure to signal effects traffic State v Chapman
This is an appeal from a conviction in a trial de novo on a traffic offense charge of failing to signal before making a turn, in violation of N.J.S.A. 39:4-126. Defendant was found guilty in the City of Burlington Municipal Court by Judge Montalto and fined $206 and $33 in costs. On appeal to the Superior Court, Judge Morley found defendant guilty after a trial de novo on the record, Rule 3:23-1, but reduced the fine to $56. Defendant now appeals his conviction to us and is self-represented, as he was in the Municipal Court and the Law Division.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1715-07T4 1715-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONALD L. CHAPMAN, SR.,
Defendant-Appellant.
_____________________________
Argued March 18, 2009 - Decided
Before Judges Baxter and King.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 41-07.
Ronald L. Chapman, Sr., argued the cause pro se.
Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Paszkiewicz, of counsel and on the brief).
PER CURIAM
This is an appeal from a conviction in a trial de novo on a traffic offense charge of failing to signal before making a turn, in violation of N.J.S.A. 39:4-126. Defendant was found guilty in the City of Burlington Municipal Court by Judge Montalto and fined $206 and $33 in costs. On appeal to the Superior Court, Judge Morley found defendant guilty after a trial de novo on the record, Rule 3:23-1, but reduced the fine to $56. Defendant now appeals his conviction to us and is self-represented, as he was in the Municipal Court and the Law Division.
The State's case was presented by Officer Matthew Mercuri. The officer described the violation which he said he observed at 10:01 p.m. on April 28, 2007, a Saturday evening. The record is unclear on the nature of the intersection, specifically if either street is a one-way street and if the intersection is controlled by stop signs, or any other traffic signs. We had great difficulty understanding from the transcribed record the nature of the Jones and York Streets intersection, where the violation allegedly occurred.
After oral argument we became concerned that this information may be critical to the appellant's claim that "no other traffic or persons could have been affected." N.J.S.A. 39:4-126 states in pertinent part:
No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section 39:4-123, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway, or start or back a vehicle unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.
[Emphasis added.]
See State v. Williamson, 138 N.J. 302, 304 (1994); State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994) (statute does not include requirement that a turn will affect other traffic, merely that it have the potential to do so).
We conclude upon our review of this record that supplementation of the record is necessary for the trier-of-fact to determine whether the failure to signal could have affected other traffic, either pedestrian or vehicular, under the statute. Specifically, during appellate oral argument, defendant argued that no one could have been puzzled by his intentions, or endangered by his failure to signal, because York Avenue is a one-way street, and Jones Avenue comes to a dead-end at its intersection with York. If that contention is correct, his claim that his failure to signal could not have endangered anyone may well have merit; however, the present state of the record does not enable us to evaluate this contention. We order this remand for supplementation of the "defective" record pursuant to Rule 3:23-8(a)(3). Judge Morley shall take such additional testimony from each party as the interests of justice requires, hear argument, and decide afresh the question of guilt or innocence on the charge. We think this is the "fast and fair way to adequately develop the record" for decision on the trial de novo and on further appeal, if necessary. State v. Hermanns, 278 N.J. Super. 19, 26 (App. Div. 1994); see also Pressler, Current N.J. Court Rules, comment 1 on R. 1:1-2 ("the achievement of procedural due process in the service of substantial justice on the merits" is the "guiding principle" of interpretation and application of court rules). The case is remanded to Judge Morley to supplement the record and reconsider his judgment in light of any additional testimony offered by the parties on the nature of the intersection.
Remanded with instructions; we do not retain jurisdiction.
A-1715-07T4
April 20, 2009
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1715-07T4 1715-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONALD L. CHAPMAN, SR.,
Defendant-Appellant.
_____________________________
Argued March 18, 2009 - Decided
Before Judges Baxter and King.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 41-07.
Ronald L. Chapman, Sr., argued the cause pro se.
Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Paszkiewicz, of counsel and on the brief).
PER CURIAM
This is an appeal from a conviction in a trial de novo on a traffic offense charge of failing to signal before making a turn, in violation of N.J.S.A. 39:4-126. Defendant was found guilty in the City of Burlington Municipal Court by Judge Montalto and fined $206 and $33 in costs. On appeal to the Superior Court, Judge Morley found defendant guilty after a trial de novo on the record, Rule 3:23-1, but reduced the fine to $56. Defendant now appeals his conviction to us and is self-represented, as he was in the Municipal Court and the Law Division.
The State's case was presented by Officer Matthew Mercuri. The officer described the violation which he said he observed at 10:01 p.m. on April 28, 2007, a Saturday evening. The record is unclear on the nature of the intersection, specifically if either street is a one-way street and if the intersection is controlled by stop signs, or any other traffic signs. We had great difficulty understanding from the transcribed record the nature of the Jones and York Streets intersection, where the violation allegedly occurred.
After oral argument we became concerned that this information may be critical to the appellant's claim that "no other traffic or persons could have been affected." N.J.S.A. 39:4-126 states in pertinent part:
No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section 39:4-123, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway, or start or back a vehicle unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.
[Emphasis added.]
See State v. Williamson, 138 N.J. 302, 304 (1994); State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994) (statute does not include requirement that a turn will affect other traffic, merely that it have the potential to do so).
We conclude upon our review of this record that supplementation of the record is necessary for the trier-of-fact to determine whether the failure to signal could have affected other traffic, either pedestrian or vehicular, under the statute. Specifically, during appellate oral argument, defendant argued that no one could have been puzzled by his intentions, or endangered by his failure to signal, because York Avenue is a one-way street, and Jones Avenue comes to a dead-end at its intersection with York. If that contention is correct, his claim that his failure to signal could not have endangered anyone may well have merit; however, the present state of the record does not enable us to evaluate this contention. We order this remand for supplementation of the "defective" record pursuant to Rule 3:23-8(a)(3). Judge Morley shall take such additional testimony from each party as the interests of justice requires, hear argument, and decide afresh the question of guilt or innocence on the charge. We think this is the "fast and fair way to adequately develop the record" for decision on the trial de novo and on further appeal, if necessary. State v. Hermanns, 278 N.J. Super. 19, 26 (App. Div. 1994); see also Pressler, Current N.J. Court Rules, comment 1 on R. 1:1-2 ("the achievement of procedural due process in the service of substantial justice on the merits" is the "guiding principle" of interpretation and application of court rules). The case is remanded to Judge Morley to supplement the record and reconsider his judgment in light of any additional testimony offered by the parties on the nature of the intersection.
Remanded with instructions; we do not retain jurisdiction.
A-1715-07T4
April 20, 2009
No TRO if no harassment Balarin v Balarin
No TRO if no harassment
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4191-07T34191-07T3
LUIS BALARIN,
Plaintiff-Respondent,
v.
MARIA BALARIN,
Defendant-Appellant.
_________________________________________________
Submitted December 3, 2008 - Decided
Before Judges Stern and Payne.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County, Docket No. FV-16-000979-08.
Bastarrika, Guzman & Soto, LLP, attorneys
for appellant (Jose I. Bastarrika, of
counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant, Maria Balarin, appeals from the denial, by order
dated March 28, 2008, of her motion for reconsideration of a Final Restraining Order ("FRO") entered November 26, 2007. Defendant argues that the elements of harassment were not proven, that she was not permitted "to cross examine the plaintiff-respondent," that the trial judge did not "render findings of credibility as to the factual witness," and that the trial judge failed to "inquire as to whether or not [defendant] wished to obtain counsel" before the hearing commenced.
The FRO was entered on November 26, 2007, and the motion for reconsideration was dated (and defendant says was filed on) December 17, 2007, twenty-one days later. As a result of defendant's motion for reconsideration, the Family Part entered an "Amended Final Restraining Order" on March 28, 2008, defendant having prevailed in terms of having "collateral issues" addressed in the FM proceedings. Based on tolling, see R. 2:4-3, we consider the amended FRO as opposed to merely the denial of reconsideration.
Defendant is correct that the record reflects that she received no advice as to the right to counsel before the original FRO proceedings began. She says she would have retained counsel, and the trial judge on the motion for reconsideration acknowledged an attorney could have helped her. But the judge also said that defendant could have asked for counsel and the proceedings could not have been re-done after an FRO was entered. We need not address this issue in light of our disposition.
In the words of defendant's brief, plaintiff's complaint alleged that defendant "made numerous phone calls to [plaintiff], had called him vulgarities, and had appeared at his home with the parties' children" incident to a dispute as to which parent was going to take a son to a doctor's appointment. The finger of one of parties' sons was broken during a prior visitation with plaintiff and the parties disputed how the doctor's appointment was to be handled. Defendant says she couldn't take the son for the appointment and asked plaintiff to do so. The plaintiff testified at the November 26, 2007 hearing about what happened incident to that "request" as follows:
Okay. So at 7:30, my kids call me on that day and asked me to take them to the doctor, on the very same day. I told them to just tell their mother to take them, and that if she needed me to take them to the doctors she has to give me prior notice so that I can make arrangements if I cannot take them. And, so, I just told them that, and we finished the conversation and they call, with her cell phone, about seven more times. This is the home where I live with my fianc�e, my newborn son, and her -- her family.
So, after responding the seven times, every time my kids will talk I will hear her [in] the background telling them what to say until she will start talking to me and cursing me out, and I will hang up the phone.
So, at 10:30 that morning they ran -- the - - the bell rang and my two kids showed up in the front of the house, and I told them that I was going to work, that I was working, because I do work -- I do a little work from the home, and that I couldn't take them to the doctor, but if the issue was the co-payment to tell the mother just to give the doctor my address and I will make the payments for the co-payment if that was what was bothering her.
So I told them to just go back to their mother's car because she was waiting outside the house, my fianc�e's house. They went and stood inside the car. She came out of the car to the driveway and she started screaming on top -- top of her lungs that I was a bad father, that she's going to tell my fianc�e who I'm, you know, who Luis really is, and that they should know, and that I'm a bastard, and -- I mean, this goes on, and on, and on, and on since we got divorced. She's never really -- she continues to harass me for no reason, to the extent, Your Honor, that I don't understand why my kids are waiting outside. They should be in school right now.
Defendant brought the children to testify, but plaintiff successfully asked the trial judge to preclude that because they should not be "involved" in the dispute between their parents.
According to defendant's testimony:
There was no screaming and yelling. My sons are present here today because they were the ones who made the call, and there was four calls, and I have phone records to show that. It was not eight calls made, and my sons made the call to their father, asking if he would please take them to the doctor, and it was because my son broke his thumb on the Sunday, which is also here on this complaint, November 11th, in the presence of his father and his father neglected to take him to the hospital to get x-rays because he felt that this thumb was not broken. It was only when I was called by my son, who is present here today, to tell me, mom, I think I broke my finger and my father won't take me to the hospital, I had to call the Pompton Lakes Police Department, which I have records of the police report that was filed, to send a police officer to his fianc�e's home to ask and send the child to the hospital. And I did not have the fianc�e's address. I went based on the phone number.
Defendant further explained what happened on the day the thumb was broken:
Austin, my 12-year-old son, called me at -- shortly after 3:00 p.m. on my cell phone and said he fell, he was crying, and he thinks he broke his thumb, he heard a snap. And I asked him, my son Austin, to put his father on the phone, asked his father to please take him to the hospital, and he said, he's fine, he's just got some swelling, this will make a man out of him, and hung up the phone on me.
I had to call again. I repeated the call about three times. He answered the phone, what the f-- do you want, and finally, just -- he hung up the phone on me numerous times, which is a pattern, and I ended up calling the Pompton Lakes Police Department, giving them the number where my son called me from, and asking for them to please check on my son because I got -- I received a call from my 12-year-old son who stated he believed he broke his finger and the father refused to take him to the hospital.
Now, I also have hospital records and the police report.
Plaintiff further explained that the son had "a very low tolerance of pain," ice was applied, and the son was asked to call his mother. He said defendant refused to give him "the insurance information," but he took the child to the hospital where x-rays revealed the finger was broken. However, defendant insisted that plaintiff didn't arrive at the hospital until 7:10 p.m., almost four hours after her calls and over one hour after the police visit. Defendant also testified plaintiff was home the next morning and could have taken their son to the hand specialist.
The trial judge ruled:
The Court: All Right. Let me tell you how -- simple this is to me. I find I have jurisdiction over this matter.
I find that you committed the predicate offense of harassment by instructing your boys to call him four times and by then going to his house. I find that you were harassing him and I'm going to enter a final order. You are not to contact him any further. You are not to instruct anyone else to contact him. He can -- he can make separate arrangements for -- for visitation or for communication with the children, but you're all finished with this type of conduct. That was totally, totally harassment.
Ms. Balarin: My sons are here, Your Honor, and you can ask them personally.
The Court: They couldn't -- you just admitted to me enough for me to sustain the case. I don't need another witness. You harassed him. You told them to call him four times, and when he made --
Ms. Balarin: I didn't tell my son to call four times.
The Court: Excuse me. Excuse me. Wait in the back of the courtroom for a copy of the order. You're permanently restrained from contacting him.
Defendant subsequently retained counsel. At the motion for reconsideration hearing on February 14, 2008, defendant's counsel stated he did not receive the transcript of the trial, which he had ordered, although he suggested defendant couldn't afford an expedited copy. The judge said he would read the transcript when it arrived before deciding the application and whether to grant a new trial.
On March 28, 2008, further colloquy was conducted on the motion for reconsideration after the judge had reviewed the original transcript. The judge then ruled:
she would have had better representation if she had a attorney here, is -- I mean there's no way you can doubt that. There's -- I've seen very few instances in my entire career where a person is better off going to court without an attorney than with an attorney.
But this is an important matter. The -- the defendant knows that. The plaintiff knows that. People come in here every day of the week, and if I were to go back and interfere with a judgment of the Court because someone said they were too nervous to tell the Court that they wanted to get counsel and wanted a chance where they could get counsel, nothing would be final.
And really it's only for that reason, as far as the -- the case is concerned, the circumstances of the case are concerned, you know, there might be an -- an impact on credibility. There might be a lot of impacts with a counsel, but that's not for me to decide now.
It's too bad that, especially with such a good attorney, she -- she wasn't represented that day, but I'm not going to reconsider and -- and make this into anything but what it is. It's a permanent order, based upon the fact that she didn't exercise her right to have counsel.
Plaintiff did not file a response to the appeal and does not defend the FRO before us. We acknowledge that we are bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1988). This is especially true when questions of credibility are involved. Id. at 412. We also acknowledge that "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we must accord special deference to the fact finding of the Family Part. Id. at 413.
However, the Family Part's legal conclusions are subject to our plenary review, Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007), and we must determine if plaintiff proved "by a preponderance of the credible evidence" that defendant violated a statute incorporated into N.J.S.A. 2C:25-19. See Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). Moreover, even if the predicate act is proven, the FRO can issue only if necessary "to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. See also N.J.S.A. 2C:25-29(a), (b); Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995).
In this case, the record does not demonstrate that harassment occurred within the meaning of the statute. See N.J.S.A. 2C:33-4. Certainly the defendant's words do not suffice. See N.J.S.A. 2C:33-4(a); State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). Moreover, particularly in the absence of proof of a history of domestic violence, the circumstances do not suggest a purpose to harass. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. Castagna, 387 N.J. Super. 598, 605-07 (App. Div.), certif. denied, 188 N.J. 577 (2006); State v. B.H., 290 N.J. Super. 588, 597 (App. Div. 1996), aff'd in part and rev'd in part, 149 N.J. 564 (1997). In any event, given the absence of proof of a pattern or history of improper conduct and the fact that the incident was a reaction to the son's injury, the FRO was not necessary to protect plaintiff. Silver, supra, 387 N.J. Super. at 127-28.
Accordingly, the judgment is reversed and the FRO shall be vacated. The parties may address any relevant issues to the Family Part incident to any FM proceedings therein.
A-4191-07T3
RECORD IMPOUNDED
February 17, 2009
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4191-07T34191-07T3
LUIS BALARIN,
Plaintiff-Respondent,
v.
MARIA BALARIN,
Defendant-Appellant.
_________________________________________________
Submitted December 3, 2008 - Decided
Before Judges Stern and Payne.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County, Docket No. FV-16-000979-08.
Bastarrika, Guzman & Soto, LLP, attorneys
for appellant (Jose I. Bastarrika, of
counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant, Maria Balarin, appeals from the denial, by order
dated March 28, 2008, of her motion for reconsideration of a Final Restraining Order ("FRO") entered November 26, 2007. Defendant argues that the elements of harassment were not proven, that she was not permitted "to cross examine the plaintiff-respondent," that the trial judge did not "render findings of credibility as to the factual witness," and that the trial judge failed to "inquire as to whether or not [defendant] wished to obtain counsel" before the hearing commenced.
The FRO was entered on November 26, 2007, and the motion for reconsideration was dated (and defendant says was filed on) December 17, 2007, twenty-one days later. As a result of defendant's motion for reconsideration, the Family Part entered an "Amended Final Restraining Order" on March 28, 2008, defendant having prevailed in terms of having "collateral issues" addressed in the FM proceedings. Based on tolling, see R. 2:4-3, we consider the amended FRO as opposed to merely the denial of reconsideration.
Defendant is correct that the record reflects that she received no advice as to the right to counsel before the original FRO proceedings began. She says she would have retained counsel, and the trial judge on the motion for reconsideration acknowledged an attorney could have helped her. But the judge also said that defendant could have asked for counsel and the proceedings could not have been re-done after an FRO was entered. We need not address this issue in light of our disposition.
In the words of defendant's brief, plaintiff's complaint alleged that defendant "made numerous phone calls to [plaintiff], had called him vulgarities, and had appeared at his home with the parties' children" incident to a dispute as to which parent was going to take a son to a doctor's appointment. The finger of one of parties' sons was broken during a prior visitation with plaintiff and the parties disputed how the doctor's appointment was to be handled. Defendant says she couldn't take the son for the appointment and asked plaintiff to do so. The plaintiff testified at the November 26, 2007 hearing about what happened incident to that "request" as follows:
Okay. So at 7:30, my kids call me on that day and asked me to take them to the doctor, on the very same day. I told them to just tell their mother to take them, and that if she needed me to take them to the doctors she has to give me prior notice so that I can make arrangements if I cannot take them. And, so, I just told them that, and we finished the conversation and they call, with her cell phone, about seven more times. This is the home where I live with my fianc�e, my newborn son, and her -- her family.
So, after responding the seven times, every time my kids will talk I will hear her [in] the background telling them what to say until she will start talking to me and cursing me out, and I will hang up the phone.
So, at 10:30 that morning they ran -- the - - the bell rang and my two kids showed up in the front of the house, and I told them that I was going to work, that I was working, because I do work -- I do a little work from the home, and that I couldn't take them to the doctor, but if the issue was the co-payment to tell the mother just to give the doctor my address and I will make the payments for the co-payment if that was what was bothering her.
So I told them to just go back to their mother's car because she was waiting outside the house, my fianc�e's house. They went and stood inside the car. She came out of the car to the driveway and she started screaming on top -- top of her lungs that I was a bad father, that she's going to tell my fianc�e who I'm, you know, who Luis really is, and that they should know, and that I'm a bastard, and -- I mean, this goes on, and on, and on, and on since we got divorced. She's never really -- she continues to harass me for no reason, to the extent, Your Honor, that I don't understand why my kids are waiting outside. They should be in school right now.
Defendant brought the children to testify, but plaintiff successfully asked the trial judge to preclude that because they should not be "involved" in the dispute between their parents.
According to defendant's testimony:
There was no screaming and yelling. My sons are present here today because they were the ones who made the call, and there was four calls, and I have phone records to show that. It was not eight calls made, and my sons made the call to their father, asking if he would please take them to the doctor, and it was because my son broke his thumb on the Sunday, which is also here on this complaint, November 11th, in the presence of his father and his father neglected to take him to the hospital to get x-rays because he felt that this thumb was not broken. It was only when I was called by my son, who is present here today, to tell me, mom, I think I broke my finger and my father won't take me to the hospital, I had to call the Pompton Lakes Police Department, which I have records of the police report that was filed, to send a police officer to his fianc�e's home to ask and send the child to the hospital. And I did not have the fianc�e's address. I went based on the phone number.
Defendant further explained what happened on the day the thumb was broken:
Austin, my 12-year-old son, called me at -- shortly after 3:00 p.m. on my cell phone and said he fell, he was crying, and he thinks he broke his thumb, he heard a snap. And I asked him, my son Austin, to put his father on the phone, asked his father to please take him to the hospital, and he said, he's fine, he's just got some swelling, this will make a man out of him, and hung up the phone on me.
I had to call again. I repeated the call about three times. He answered the phone, what the f-- do you want, and finally, just -- he hung up the phone on me numerous times, which is a pattern, and I ended up calling the Pompton Lakes Police Department, giving them the number where my son called me from, and asking for them to please check on my son because I got -- I received a call from my 12-year-old son who stated he believed he broke his finger and the father refused to take him to the hospital.
Now, I also have hospital records and the police report.
Plaintiff further explained that the son had "a very low tolerance of pain," ice was applied, and the son was asked to call his mother. He said defendant refused to give him "the insurance information," but he took the child to the hospital where x-rays revealed the finger was broken. However, defendant insisted that plaintiff didn't arrive at the hospital until 7:10 p.m., almost four hours after her calls and over one hour after the police visit. Defendant also testified plaintiff was home the next morning and could have taken their son to the hand specialist.
The trial judge ruled:
The Court: All Right. Let me tell you how -- simple this is to me. I find I have jurisdiction over this matter.
I find that you committed the predicate offense of harassment by instructing your boys to call him four times and by then going to his house. I find that you were harassing him and I'm going to enter a final order. You are not to contact him any further. You are not to instruct anyone else to contact him. He can -- he can make separate arrangements for -- for visitation or for communication with the children, but you're all finished with this type of conduct. That was totally, totally harassment.
Ms. Balarin: My sons are here, Your Honor, and you can ask them personally.
The Court: They couldn't -- you just admitted to me enough for me to sustain the case. I don't need another witness. You harassed him. You told them to call him four times, and when he made --
Ms. Balarin: I didn't tell my son to call four times.
The Court: Excuse me. Excuse me. Wait in the back of the courtroom for a copy of the order. You're permanently restrained from contacting him.
Defendant subsequently retained counsel. At the motion for reconsideration hearing on February 14, 2008, defendant's counsel stated he did not receive the transcript of the trial, which he had ordered, although he suggested defendant couldn't afford an expedited copy. The judge said he would read the transcript when it arrived before deciding the application and whether to grant a new trial.
On March 28, 2008, further colloquy was conducted on the motion for reconsideration after the judge had reviewed the original transcript. The judge then ruled:
she would have had better representation if she had a attorney here, is -- I mean there's no way you can doubt that. There's -- I've seen very few instances in my entire career where a person is better off going to court without an attorney than with an attorney.
But this is an important matter. The -- the defendant knows that. The plaintiff knows that. People come in here every day of the week, and if I were to go back and interfere with a judgment of the Court because someone said they were too nervous to tell the Court that they wanted to get counsel and wanted a chance where they could get counsel, nothing would be final.
And really it's only for that reason, as far as the -- the case is concerned, the circumstances of the case are concerned, you know, there might be an -- an impact on credibility. There might be a lot of impacts with a counsel, but that's not for me to decide now.
It's too bad that, especially with such a good attorney, she -- she wasn't represented that day, but I'm not going to reconsider and -- and make this into anything but what it is. It's a permanent order, based upon the fact that she didn't exercise her right to have counsel.
Plaintiff did not file a response to the appeal and does not defend the FRO before us. We acknowledge that we are bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1988). This is especially true when questions of credibility are involved. Id. at 412. We also acknowledge that "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we must accord special deference to the fact finding of the Family Part. Id. at 413.
However, the Family Part's legal conclusions are subject to our plenary review, Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007), and we must determine if plaintiff proved "by a preponderance of the credible evidence" that defendant violated a statute incorporated into N.J.S.A. 2C:25-19. See Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). Moreover, even if the predicate act is proven, the FRO can issue only if necessary "to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. See also N.J.S.A. 2C:25-29(a), (b); Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995).
In this case, the record does not demonstrate that harassment occurred within the meaning of the statute. See N.J.S.A. 2C:33-4. Certainly the defendant's words do not suffice. See N.J.S.A. 2C:33-4(a); State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). Moreover, particularly in the absence of proof of a history of domestic violence, the circumstances do not suggest a purpose to harass. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. Castagna, 387 N.J. Super. 598, 605-07 (App. Div.), certif. denied, 188 N.J. 577 (2006); State v. B.H., 290 N.J. Super. 588, 597 (App. Div. 1996), aff'd in part and rev'd in part, 149 N.J. 564 (1997). In any event, given the absence of proof of a pattern or history of improper conduct and the fact that the incident was a reaction to the son's injury, the FRO was not necessary to protect plaintiff. Silver, supra, 387 N.J. Super. at 127-28.
Accordingly, the judgment is reversed and the FRO shall be vacated. The parties may address any relevant issues to the Family Part incident to any FM proceedings therein.
A-4191-07T3
RECORD IMPOUNDED
February 17, 2009
No TRO if no harassment Balarin v Balarin
No TRO if no harassment
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4191-07T34191-07T3
LUIS BALARIN,
Plaintiff-Respondent,
v.
MARIA BALARIN,
Defendant-Appellant.
_________________________________________________
Submitted December 3, 2008 - Decided
Before Judges Stern and Payne.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County, Docket No. FV-16-000979-08.
Bastarrika, Guzman & Soto, LLP, attorneys
for appellant (Jose I. Bastarrika, of
counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant, Maria Balarin, appeals from the denial, by order
dated March 28, 2008, of her motion for reconsideration of a Final Restraining Order ("FRO") entered November 26, 2007. Defendant argues that the elements of harassment were not proven, that she was not permitted "to cross examine the plaintiff-respondent," that the trial judge did not "render findings of credibility as to the factual witness," and that the trial judge failed to "inquire as to whether or not [defendant] wished to obtain counsel" before the hearing commenced.
The FRO was entered on November 26, 2007, and the motion for reconsideration was dated (and defendant says was filed on) December 17, 2007, twenty-one days later. As a result of defendant's motion for reconsideration, the Family Part entered an "Amended Final Restraining Order" on March 28, 2008, defendant having prevailed in terms of having "collateral issues" addressed in the FM proceedings. Based on tolling, see R. 2:4-3, we consider the amended FRO as opposed to merely the denial of reconsideration.
Defendant is correct that the record reflects that she received no advice as to the right to counsel before the original FRO proceedings began. She says she would have retained counsel, and the trial judge on the motion for reconsideration acknowledged an attorney could have helped her. But the judge also said that defendant could have asked for counsel and the proceedings could not have been re-done after an FRO was entered. We need not address this issue in light of our disposition.
In the words of defendant's brief, plaintiff's complaint alleged that defendant "made numerous phone calls to [plaintiff], had called him vulgarities, and had appeared at his home with the parties' children" incident to a dispute as to which parent was going to take a son to a doctor's appointment. The finger of one of parties' sons was broken during a prior visitation with plaintiff and the parties disputed how the doctor's appointment was to be handled. Defendant says she couldn't take the son for the appointment and asked plaintiff to do so. The plaintiff testified at the November 26, 2007 hearing about what happened incident to that "request" as follows:
Okay. So at 7:30, my kids call me on that day and asked me to take them to the doctor, on the very same day. I told them to just tell their mother to take them, and that if she needed me to take them to the doctors she has to give me prior notice so that I can make arrangements if I cannot take them. And, so, I just told them that, and we finished the conversation and they call, with her cell phone, about seven more times. This is the home where I live with my fianc�e, my newborn son, and her -- her family.
So, after responding the seven times, every time my kids will talk I will hear her [in] the background telling them what to say until she will start talking to me and cursing me out, and I will hang up the phone.
So, at 10:30 that morning they ran -- the - - the bell rang and my two kids showed up in the front of the house, and I told them that I was going to work, that I was working, because I do work -- I do a little work from the home, and that I couldn't take them to the doctor, but if the issue was the co-payment to tell the mother just to give the doctor my address and I will make the payments for the co-payment if that was what was bothering her.
So I told them to just go back to their mother's car because she was waiting outside the house, my fianc�e's house. They went and stood inside the car. She came out of the car to the driveway and she started screaming on top -- top of her lungs that I was a bad father, that she's going to tell my fianc�e who I'm, you know, who Luis really is, and that they should know, and that I'm a bastard, and -- I mean, this goes on, and on, and on, and on since we got divorced. She's never really -- she continues to harass me for no reason, to the extent, Your Honor, that I don't understand why my kids are waiting outside. They should be in school right now.
Defendant brought the children to testify, but plaintiff successfully asked the trial judge to preclude that because they should not be "involved" in the dispute between their parents.
According to defendant's testimony:
There was no screaming and yelling. My sons are present here today because they were the ones who made the call, and there was four calls, and I have phone records to show that. It was not eight calls made, and my sons made the call to their father, asking if he would please take them to the doctor, and it was because my son broke his thumb on the Sunday, which is also here on this complaint, November 11th, in the presence of his father and his father neglected to take him to the hospital to get x-rays because he felt that this thumb was not broken. It was only when I was called by my son, who is present here today, to tell me, mom, I think I broke my finger and my father won't take me to the hospital, I had to call the Pompton Lakes Police Department, which I have records of the police report that was filed, to send a police officer to his fianc�e's home to ask and send the child to the hospital. And I did not have the fianc�e's address. I went based on the phone number.
Defendant further explained what happened on the day the thumb was broken:
Austin, my 12-year-old son, called me at -- shortly after 3:00 p.m. on my cell phone and said he fell, he was crying, and he thinks he broke his thumb, he heard a snap. And I asked him, my son Austin, to put his father on the phone, asked his father to please take him to the hospital, and he said, he's fine, he's just got some swelling, this will make a man out of him, and hung up the phone on me.
I had to call again. I repeated the call about three times. He answered the phone, what the f-- do you want, and finally, just -- he hung up the phone on me numerous times, which is a pattern, and I ended up calling the Pompton Lakes Police Department, giving them the number where my son called me from, and asking for them to please check on my son because I got -- I received a call from my 12-year-old son who stated he believed he broke his finger and the father refused to take him to the hospital.
Now, I also have hospital records and the police report.
Plaintiff further explained that the son had "a very low tolerance of pain," ice was applied, and the son was asked to call his mother. He said defendant refused to give him "the insurance information," but he took the child to the hospital where x-rays revealed the finger was broken. However, defendant insisted that plaintiff didn't arrive at the hospital until 7:10 p.m., almost four hours after her calls and over one hour after the police visit. Defendant also testified plaintiff was home the next morning and could have taken their son to the hand specialist.
The trial judge ruled:
The Court: All Right. Let me tell you how -- simple this is to me. I find I have jurisdiction over this matter.
I find that you committed the predicate offense of harassment by instructing your boys to call him four times and by then going to his house. I find that you were harassing him and I'm going to enter a final order. You are not to contact him any further. You are not to instruct anyone else to contact him. He can -- he can make separate arrangements for -- for visitation or for communication with the children, but you're all finished with this type of conduct. That was totally, totally harassment.
Ms. Balarin: My sons are here, Your Honor, and you can ask them personally.
The Court: They couldn't -- you just admitted to me enough for me to sustain the case. I don't need another witness. You harassed him. You told them to call him four times, and when he made --
Ms. Balarin: I didn't tell my son to call four times.
The Court: Excuse me. Excuse me. Wait in the back of the courtroom for a copy of the order. You're permanently restrained from contacting him.
Defendant subsequently retained counsel. At the motion for reconsideration hearing on February 14, 2008, defendant's counsel stated he did not receive the transcript of the trial, which he had ordered, although he suggested defendant couldn't afford an expedited copy. The judge said he would read the transcript when it arrived before deciding the application and whether to grant a new trial.
On March 28, 2008, further colloquy was conducted on the motion for reconsideration after the judge had reviewed the original transcript. The judge then ruled:
she would have had better representation if she had a attorney here, is -- I mean there's no way you can doubt that. There's -- I've seen very few instances in my entire career where a person is better off going to court without an attorney than with an attorney.
But this is an important matter. The -- the defendant knows that. The plaintiff knows that. People come in here every day of the week, and if I were to go back and interfere with a judgment of the Court because someone said they were too nervous to tell the Court that they wanted to get counsel and wanted a chance where they could get counsel, nothing would be final.
And really it's only for that reason, as far as the -- the case is concerned, the circumstances of the case are concerned, you know, there might be an -- an impact on credibility. There might be a lot of impacts with a counsel, but that's not for me to decide now.
It's too bad that, especially with such a good attorney, she -- she wasn't represented that day, but I'm not going to reconsider and -- and make this into anything but what it is. It's a permanent order, based upon the fact that she didn't exercise her right to have counsel.
Plaintiff did not file a response to the appeal and does not defend the FRO before us. We acknowledge that we are bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1988). This is especially true when questions of credibility are involved. Id. at 412. We also acknowledge that "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we must accord special deference to the fact finding of the Family Part. Id. at 413.
However, the Family Part's legal conclusions are subject to our plenary review, Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007), and we must determine if plaintiff proved "by a preponderance of the credible evidence" that defendant violated a statute incorporated into N.J.S.A. 2C:25-19. See Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). Moreover, even if the predicate act is proven, the FRO can issue only if necessary "to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. See also N.J.S.A. 2C:25-29(a), (b); Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995).
In this case, the record does not demonstrate that harassment occurred within the meaning of the statute. See N.J.S.A. 2C:33-4. Certainly the defendant's words do not suffice. See N.J.S.A. 2C:33-4(a); State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). Moreover, particularly in the absence of proof of a history of domestic violence, the circumstances do not suggest a purpose to harass. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. Castagna, 387 N.J. Super. 598, 605-07 (App. Div.), certif. denied, 188 N.J. 577 (2006); State v. B.H., 290 N.J. Super. 588, 597 (App. Div. 1996), aff'd in part and rev'd in part, 149 N.J. 564 (1997). In any event, given the absence of proof of a pattern or history of improper conduct and the fact that the incident was a reaction to the son's injury, the FRO was not necessary to protect plaintiff. Silver, supra, 387 N.J. Super. at 127-28.
Accordingly, the judgment is reversed and the FRO shall be vacated. The parties may address any relevant issues to the Family Part incident to any FM proceedings therein.
A-4191-07T3
RECORD IMPOUNDED
February 17, 2009
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4191-07T34191-07T3
LUIS BALARIN,
Plaintiff-Respondent,
v.
MARIA BALARIN,
Defendant-Appellant.
_________________________________________________
Submitted December 3, 2008 - Decided
Before Judges Stern and Payne.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County, Docket No. FV-16-000979-08.
Bastarrika, Guzman & Soto, LLP, attorneys
for appellant (Jose I. Bastarrika, of
counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant, Maria Balarin, appeals from the denial, by order
dated March 28, 2008, of her motion for reconsideration of a Final Restraining Order ("FRO") entered November 26, 2007. Defendant argues that the elements of harassment were not proven, that she was not permitted "to cross examine the plaintiff-respondent," that the trial judge did not "render findings of credibility as to the factual witness," and that the trial judge failed to "inquire as to whether or not [defendant] wished to obtain counsel" before the hearing commenced.
The FRO was entered on November 26, 2007, and the motion for reconsideration was dated (and defendant says was filed on) December 17, 2007, twenty-one days later. As a result of defendant's motion for reconsideration, the Family Part entered an "Amended Final Restraining Order" on March 28, 2008, defendant having prevailed in terms of having "collateral issues" addressed in the FM proceedings. Based on tolling, see R. 2:4-3, we consider the amended FRO as opposed to merely the denial of reconsideration.
Defendant is correct that the record reflects that she received no advice as to the right to counsel before the original FRO proceedings began. She says she would have retained counsel, and the trial judge on the motion for reconsideration acknowledged an attorney could have helped her. But the judge also said that defendant could have asked for counsel and the proceedings could not have been re-done after an FRO was entered. We need not address this issue in light of our disposition.
In the words of defendant's brief, plaintiff's complaint alleged that defendant "made numerous phone calls to [plaintiff], had called him vulgarities, and had appeared at his home with the parties' children" incident to a dispute as to which parent was going to take a son to a doctor's appointment. The finger of one of parties' sons was broken during a prior visitation with plaintiff and the parties disputed how the doctor's appointment was to be handled. Defendant says she couldn't take the son for the appointment and asked plaintiff to do so. The plaintiff testified at the November 26, 2007 hearing about what happened incident to that "request" as follows:
Okay. So at 7:30, my kids call me on that day and asked me to take them to the doctor, on the very same day. I told them to just tell their mother to take them, and that if she needed me to take them to the doctors she has to give me prior notice so that I can make arrangements if I cannot take them. And, so, I just told them that, and we finished the conversation and they call, with her cell phone, about seven more times. This is the home where I live with my fianc�e, my newborn son, and her -- her family.
So, after responding the seven times, every time my kids will talk I will hear her [in] the background telling them what to say until she will start talking to me and cursing me out, and I will hang up the phone.
So, at 10:30 that morning they ran -- the - - the bell rang and my two kids showed up in the front of the house, and I told them that I was going to work, that I was working, because I do work -- I do a little work from the home, and that I couldn't take them to the doctor, but if the issue was the co-payment to tell the mother just to give the doctor my address and I will make the payments for the co-payment if that was what was bothering her.
So I told them to just go back to their mother's car because she was waiting outside the house, my fianc�e's house. They went and stood inside the car. She came out of the car to the driveway and she started screaming on top -- top of her lungs that I was a bad father, that she's going to tell my fianc�e who I'm, you know, who Luis really is, and that they should know, and that I'm a bastard, and -- I mean, this goes on, and on, and on, and on since we got divorced. She's never really -- she continues to harass me for no reason, to the extent, Your Honor, that I don't understand why my kids are waiting outside. They should be in school right now.
Defendant brought the children to testify, but plaintiff successfully asked the trial judge to preclude that because they should not be "involved" in the dispute between their parents.
According to defendant's testimony:
There was no screaming and yelling. My sons are present here today because they were the ones who made the call, and there was four calls, and I have phone records to show that. It was not eight calls made, and my sons made the call to their father, asking if he would please take them to the doctor, and it was because my son broke his thumb on the Sunday, which is also here on this complaint, November 11th, in the presence of his father and his father neglected to take him to the hospital to get x-rays because he felt that this thumb was not broken. It was only when I was called by my son, who is present here today, to tell me, mom, I think I broke my finger and my father won't take me to the hospital, I had to call the Pompton Lakes Police Department, which I have records of the police report that was filed, to send a police officer to his fianc�e's home to ask and send the child to the hospital. And I did not have the fianc�e's address. I went based on the phone number.
Defendant further explained what happened on the day the thumb was broken:
Austin, my 12-year-old son, called me at -- shortly after 3:00 p.m. on my cell phone and said he fell, he was crying, and he thinks he broke his thumb, he heard a snap. And I asked him, my son Austin, to put his father on the phone, asked his father to please take him to the hospital, and he said, he's fine, he's just got some swelling, this will make a man out of him, and hung up the phone on me.
I had to call again. I repeated the call about three times. He answered the phone, what the f-- do you want, and finally, just -- he hung up the phone on me numerous times, which is a pattern, and I ended up calling the Pompton Lakes Police Department, giving them the number where my son called me from, and asking for them to please check on my son because I got -- I received a call from my 12-year-old son who stated he believed he broke his finger and the father refused to take him to the hospital.
Now, I also have hospital records and the police report.
Plaintiff further explained that the son had "a very low tolerance of pain," ice was applied, and the son was asked to call his mother. He said defendant refused to give him "the insurance information," but he took the child to the hospital where x-rays revealed the finger was broken. However, defendant insisted that plaintiff didn't arrive at the hospital until 7:10 p.m., almost four hours after her calls and over one hour after the police visit. Defendant also testified plaintiff was home the next morning and could have taken their son to the hand specialist.
The trial judge ruled:
The Court: All Right. Let me tell you how -- simple this is to me. I find I have jurisdiction over this matter.
I find that you committed the predicate offense of harassment by instructing your boys to call him four times and by then going to his house. I find that you were harassing him and I'm going to enter a final order. You are not to contact him any further. You are not to instruct anyone else to contact him. He can -- he can make separate arrangements for -- for visitation or for communication with the children, but you're all finished with this type of conduct. That was totally, totally harassment.
Ms. Balarin: My sons are here, Your Honor, and you can ask them personally.
The Court: They couldn't -- you just admitted to me enough for me to sustain the case. I don't need another witness. You harassed him. You told them to call him four times, and when he made --
Ms. Balarin: I didn't tell my son to call four times.
The Court: Excuse me. Excuse me. Wait in the back of the courtroom for a copy of the order. You're permanently restrained from contacting him.
Defendant subsequently retained counsel. At the motion for reconsideration hearing on February 14, 2008, defendant's counsel stated he did not receive the transcript of the trial, which he had ordered, although he suggested defendant couldn't afford an expedited copy. The judge said he would read the transcript when it arrived before deciding the application and whether to grant a new trial.
On March 28, 2008, further colloquy was conducted on the motion for reconsideration after the judge had reviewed the original transcript. The judge then ruled:
she would have had better representation if she had a attorney here, is -- I mean there's no way you can doubt that. There's -- I've seen very few instances in my entire career where a person is better off going to court without an attorney than with an attorney.
But this is an important matter. The -- the defendant knows that. The plaintiff knows that. People come in here every day of the week, and if I were to go back and interfere with a judgment of the Court because someone said they were too nervous to tell the Court that they wanted to get counsel and wanted a chance where they could get counsel, nothing would be final.
And really it's only for that reason, as far as the -- the case is concerned, the circumstances of the case are concerned, you know, there might be an -- an impact on credibility. There might be a lot of impacts with a counsel, but that's not for me to decide now.
It's too bad that, especially with such a good attorney, she -- she wasn't represented that day, but I'm not going to reconsider and -- and make this into anything but what it is. It's a permanent order, based upon the fact that she didn't exercise her right to have counsel.
Plaintiff did not file a response to the appeal and does not defend the FRO before us. We acknowledge that we are bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1988). This is especially true when questions of credibility are involved. Id. at 412. We also acknowledge that "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we must accord special deference to the fact finding of the Family Part. Id. at 413.
However, the Family Part's legal conclusions are subject to our plenary review, Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007), and we must determine if plaintiff proved "by a preponderance of the credible evidence" that defendant violated a statute incorporated into N.J.S.A. 2C:25-19. See Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). Moreover, even if the predicate act is proven, the FRO can issue only if necessary "to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. See also N.J.S.A. 2C:25-29(a), (b); Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995).
In this case, the record does not demonstrate that harassment occurred within the meaning of the statute. See N.J.S.A. 2C:33-4. Certainly the defendant's words do not suffice. See N.J.S.A. 2C:33-4(a); State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). Moreover, particularly in the absence of proof of a history of domestic violence, the circumstances do not suggest a purpose to harass. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. Castagna, 387 N.J. Super. 598, 605-07 (App. Div.), certif. denied, 188 N.J. 577 (2006); State v. B.H., 290 N.J. Super. 588, 597 (App. Div. 1996), aff'd in part and rev'd in part, 149 N.J. 564 (1997). In any event, given the absence of proof of a pattern or history of improper conduct and the fact that the incident was a reaction to the son's injury, the FRO was not necessary to protect plaintiff. Silver, supra, 387 N.J. Super. at 127-28.
Accordingly, the judgment is reversed and the FRO shall be vacated. The parties may address any relevant issues to the Family Part incident to any FM proceedings therein.
A-4191-07T3
RECORD IMPOUNDED
February 17, 2009
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