RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0612-24
E.L.,1
Plaintiff-Respondent,
v.
J.V.,
Defendant-Appellant. _________________________
Argued March 12, 2026 – Decided April 6, 2026
Before Judges Marczyk and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-2717-24.
Adamo Ferreira (Adamo Ferreira, LLC) argued the cause for appellant.
Ana Maria Meizys argued the cause for respondent.
PER CURIAM
1 We use initials to protect the identities of the parties. R. 1:38-3(d)(10). Defendant J.V. appeals from the trial court's October 3, 2024 final
protective order (FPO) entered against him and in favor of plaintiff E.L. under
the Victim's Assistance and Survivor Protection Act (VASPA), N.J.S.A.
2C:14-13 to -21. We affirm.
I.
Plaintiff was defendant's tenant from August 2019, when defendant
became the owner of plaintiff's residence, to May 2024, at which time
defendant's daughter became the owner of the property. Plaintiff has resided at
the property at issue for over twenty-one years.
Plaintiff filed a VASPA complaint and was granted a temporary
protective order (TPO) against defendant on June 27, 2024. In her complaint,
she alleged defendant committed the predicate acts of lewdness, cyber-
harassment, and stalking. Specifically, plaintiff claimed defendant repeatedly
waited for her outside her home and followed her by car, approximately two
times per week since January 2024, and more frequently prior to 2024. She
asserted that on April 11, 2024, defendant waited for her outside her door,
uninvited, and attempted to grab her by the shoulders when she walked out.
Plaintiff also claimed defendant contacted her from unknown numbers four
times and threatened her father and the father of her children. She alleged that
A-0612-24 2 on January 8, 2024, defendant texted her he "wanted to be with" her and
"bought the home because [plaintiff] came with it." Plaintiff further asserted
defendant told her if she did not consent to sex with him he "would do it his
way and . . . would not keep his desire to do it within himself." She also
claimed that on January 18, 2024, defendant texted her he was revoking her
ability to use the yard because she refused to have sex with him. He also told
her he "would do it 'the hard way'" if she refused, which she interpreted to
mean he would sexually assault her. Plaintiff alleged defendant caused her
fear over the prior three years, since he became owner of her building.
The FPO hearing took place over three dates between July and October
2024. Plaintiff was self-represented, and defendant was represented by
counsel. The court began by questioning plaintiff, during which she recounted
her experiences with defendant, explaining since 2021, he had followed her
nearly "all time time[,] every day," but beginning in January 2024, he had done
so only about twice per week. She further explained she filed police reports
prior to January 2024 but did not include those in her VASPA complaint, as
they preceded VASPA's enactment. Plaintiff also stated she blocked
defendant's phone number because of the inappropriate and sexual messages he
would leave her.
A-0612-24 3 Plaintiff testified that on January 8, 2024, she received a text message
from an unfamiliar number, in which the sender identified themself as
defendant. The message asked plaintiff to open the door and said, "it was only
going to be a little while." Plaintiff explained she did not respond to the
message because it was not sent from defendant's regular phone number, which
she had already blocked. Despite her lack of response, plaintiff explained
defendant nevertheless came to her home that same day and asked her to open
the door.
Plaintiff also testified she received additional text messages on January
18, 2024, from that same number. She provided the court with copies of those
text messages, which were written in Spanish, and presented an uncertified
English translation of them. Defendant's counsel objected, arguing plaintiff's
exhibits did not indicate the sender's phone number, and thus, the message
might have come from someone other than defendant. The court questioned
plaintiff concerning the authenticity of the first message and found it to be
from defendant because he "identifie[d] himself as [defendant], the owner of
the house that she lives in."
Defendant's counsel thereafter requested the court interpreter to translate
the text messages written in Spanish into the record. The court then further
A-0612-24 4 asked plaintiff how she knew defendant sent the January 18, 2024 text
messages. Plaintiff responded she knew because the sender described what
defendant "proposed" to do in the past, "what [defendant] ha[d] done[,] and
what [defendant is] doing." Defendant's counsel objected on the grounds of
improper speculation. After examining the same messages on plaintiff's phone
and determining they matched the printed copies, the court allowed the
interpreter to read the following text messages into the record:
INTERPRETER: [Number one.] Ma'am, I am [defendant], the owner of the house. I need you to open the door. We have to talk only. Let me see you for a little while, please. Only a few minutes.
....
INTERPRETER: Number two[.] Good morning, I only want to see you. Let me in and no one will find out. I give you my word about the [c]ourt, everything, that can end if you want. I can give you everything that you want and for you I would give everything. You know how many women would like to go around with me without even thinking about it? I promise you. I would not take pictures of you anymore. Please understand, don't be afraid. I am [defendant], I know that I made you go through a lot in court and in the yard, . . . and with the tenants from the second floor, but baby, . . . only you can stop it, if you make the right decision to go around with me and be my . . . woman. I would give you everything. You will never lack anything. . . . [Y]ou're looking at everything that you went through with your ex-partner and also because he was in . . . jail and what he did with you, I
A-0612-24 5 know everything, or do you want me to do the same he did to you? Educate me. I am offering you Heaven, but I see that you like to live in hell. But it will be the way you want . . . . If you like it that way, that['s the] way it's going to be, but with the desire that I have for you to make you my woman and then you reject me like that.
Number three. I think without your authorization it would be better. Do you know how many times and years I have been waiting so that I can have you? And I am going to do it, you know? In reality, I never wanted the house. I wanted [the house] because you live in it. If you notice, I already took everyone out except you. And amongst the tenants of the second floor, it was you because I never wanted to make . . . an agreement, only with my wife[,] and I couldn't see you any[more], forever, when I go in, [it] is to go and see you. And the thing about the inspectors, I don't have a problem. Look, they didn't do anything with me already. No tickets. I have . . . paid no tickets. They are not going to do anything. If you notice, no one has [done] anything. I can change the lease when I want to. I don't want to scare you. I only want to enjoy [you.] . . . I want to do[] Kama Sutra with you. . . .
Number four. It's only a warning. Don't you ever dare to do anything against me with the[se] messages, because no one is going to believe you, not even the [j]udge, and I will tell you . . . because number one, it's not even my number; number two, they will all take what you are doing like it's because I wanted to evict you. Number three, I don't think you want to speak or expose yourself in front of the whole world in court to explain what I wrote to you[,] and
A-0612-24 6 remember what they already did with you[,] and [if] the neighbors . . . found out . . . they would support me. . . . [T]hey already have . . . their opinion of you, so everyone will know what it is. Kisses.
The text messages were subsequently admitted into evidence without
objection. Plaintiff explained she did not initially report those text messages
to the police because of defendant's threats, but she later did so in February
2024. The police report was moved into evidence without any objection.
Defendant denied sending plaintiff the text messages that were read into
the record. He offered phone records, which he argued demonstrated the calls
and texts to plaintiff did not come from his phone number, as well as travel
documents indicating he was in Colombia during the time those messages were
sent, which he claimed precluded him from sending the messages. At the
court's direction, plaintiff unblocked defendant's known phone number, and
defendant called plaintiff's phone. The call appeared on plaintiff's phone as
originating from defendant's known number, not the number associated with
the disputed text messages.
Plaintiff next testified about an incident on April 11, 2024, in which
defendant stood outside her apartment door and, upon her exit, attempted to
grab her by the arms and hug her. She recounted she responded by pushing
defendant away, telling him to "leave [her] in peace," running back inside, and
A-0612-24 7 closing the door. She claimed defendant then stated "he was the owner" of her
home, and "[she] had to do whatever he said." Plaintiff recalled defendant was
still standing outside her home approximately two minutes later, when she
again exited after her taxi arrived. At this point, she took a picture of him,
which the court admitted into evidence without objection. She explained that
encounter left her "very scared," noting it caused her to suffer a panic attack
for which she had to take medication "to calm down." When defendant was
asked why he appeared to be covering himself in the proffered picture, the
court interpreted his response to mean he "just does that whenever."
On direct examination, defendant admitted to being outside plaintiff's
home on April 11, 2024, and explained he was standing in front of a van
belonging to one of his customers. Upon being asked by the court to explain
why he was there, defendant testified he was there to talk to plaintiff regarding
repairs "because she never answers." Defendant also testified it was a
coincidence he had been parked in front of plaintiff's home when she came out
on that date.
Plaintiff further testified regarding an incident on June 13, 2024, in
which defendant followed her, in a car that was not his, when she left her
home. Plaintiff alleged defendant regularly switched cars and followed her.
A-0612-24 8 She explained defendant followed her from one car length away, while she was
walking for two blocks until she got into a taxi, adding the encounter made her
feel "terrorized." Plaintiff stated she took a picture of defendant as she was
coming out of her apartment, which the court admitted into evidence.
However, defendant denied plaintiff's photo depicted him and stated he did not
recall being in the pictured vehicle on that date.
At various points throughout the proceedings, both parties also testified
regarding their adversarial landlord-tenant relationship, including disputes
about repairs and rental payments. Defendant testified his arguments with
plaintiff escalated to the point where his wife prohibited him from talking to
plaintiff and insisted on being the one to communicate with her thereafter.
Plaintiff testified, although she was served with an eviction notice in 2024, she
never received any notice from defendant regarding his sale of the house to his
daughter or of her need to vacate the home. She also asserted she never
received notice repairs needed to be made to her home, and she never
prohibited defendant or others from making repairs. Defendant testified as to
plaintiff's failure to pay rent in 2021, a subsequent unsuccessful eviction
proceeding, and the sale of the property to his daughter in May 2024, after
which he ceased being plaintiff's landlord.
A-0612-24 9 Following the parties' testimony, the trial court rendered an oral
decision. It found plaintiff to be "completely credible," observing her
testimony was "consistent, despite repeated attempts and cross[-]examination
to expose contradictory statements," along with her "emotional" demeanor and
refusal to look at defendant. The court noted it only considered the police
report as corroborative evidence regarding plaintiff's credibility, establishing
"she did, in fact, go to the police at some point because she was alarmed . . .
about [the] January 8[] and . . . 18[] messages." Regarding the April 11, 2024
incident, it stated it "believe[d] plaintiff . . . [that] defendant was outside . . .
for no reason[] other than to confront, see, talk [to], bother, [or] communicate
with her." The court also noted it believed plaintiff regarding the June 13
incident, that defendant followed her in his vehicle until she got into a taxi.
In contrast, the court found defendant's testimony to be less credible,
noting it did not believe his assertion it was a coincidence he was parked
outside plaintiff's home on April 11, 2024, because plaintiff went in and out of
the building twice, or that he "just happened to want to put his hood up at th[e]
precise moment when a picture was being taken" of him. However, it did
believe defendant's testimony he was not able to communicate with plaintiff
because she was ignoring him, reasoning plaintiff explained she was afraid of
A-0612-24 10 him. It also did not find credible defendant's denial of sending plaintiff the
disputed text messages, reasoning the content included self-identification and
contained knowledge of details only defendant would have known. The court
noted "defendant had the means to create another . . . phone number, because
he told [plaintiff] that's what he was going to do." It also found defendant
being in Colombia at the time the text messages were sent was not "a bar" to
him sending them.
The court concluded plaintiff demonstrated, by a preponderance of the
evidence, defendant committed the predicate act of stalking, but not lewdness
or cyber-harassment. Regarding its stalking finding, it found defendant
engaged in a "course of conduct" that included "follow[ing] her, monitor[ing]
her, [and] communicat[ing] with her . . . on at least two occasions, if not
more." It also referenced the power dynamic between the parties, noting their
landlord-tenant relationship. Specifically, the court found it "reasonable" for
plaintiff to be scared of defendant, given her testimony of her fear and her
demeanor in court, noting plaintiff was "very vulnerable because she's a tenant
who had been threatened with eviction," and defendant told her he would stop
the court proceedings if she gave him what he wanted and slept with him. The
court further explained there was "evidence of coercion and control" in the text
A-0612-24 11 messages defendant sent plaintiff, reasoning he told plaintiff she can only stop
the eviction proceedings if she slept with him and that "no one would believe
her."
The court ultimately found plaintiff needed the protection of an FPO to
prevent further "stalking, control[,] and harassment by . . . defendant [and] so
she can live in peace." It analyzed plaintiff's need for protection under prong
two of Silver v. Silver, 2 finding an extensive history between the parties.
However, it noted it was limiting its findings to the allegations in plaintiff's
complaint. As to those allegations, the court found "a pattern of coercive
control by . . . defendant [who was] in [a] superior position . . . [a]s a landlord
in control of [the] property, which was also referenced obliquely in his text
[from] January 18." See 387 N.J. Super. at 120.
Accordingly, the court entered an FPO against defendant and in favor of
plaintiff, which included terms allowing defendant to access his nearby
business.
II.
Defendant argues the trial court erred in finding the predicate act of
stalking and in granting an FPO because it failed to consider N.J.S.A. 2C:14 -
2 387 N.J. Super. 112 (App. Div. 2006). A-0612-24 12 16(a)(2). He also contends the court's findings of fact were not based on
adequate, substantial, or credible evidence. He next asserts the court erred by
admitting and considering improper evidence and failed to consider proper
evidence. He further maintains the court erred by failing to preserve evidence
for appeal. Lastly, he contends the trial court improperly acted as an advocate
on behalf of plaintiff during the trial.
In VASPA cases, "[w]e defer to a trial court's factual findings 'when
supported by adequate, substantial, credible evidence.'" C.R. v. M.T., 257 N.J.
126, 139 (2024) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Our
"deference is especially appropriate 'when the evidence is largely testimonial
and involves questions of credibility.'" Ibid. (quoting MacKinnon v.
MacKinnon, 191 N.J. 240, 254 (2007)). Thus, we shall not disturb a trial
court's factual findings "unless they 'went so wide of the mark that a mistake
must have been made.'" Ibid. (quoting MacKinnon, 191 N.J. at 254).
However, we review questions of statutory interpretation de novo. Ibid.
VASPA, in pertinent part, provides:
Any person alleging to be a victim of nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt at such conduct, or stalking or cyber- harassment, and who is not eligible for a restraining order as a "victim of domestic violence" as defined by . . . [the Prevention of Domestic Violence Act
A-0612-24 13 (PDVA), N.J.S.A. 2C:25-17 to -35], may, except as provided in subsection b. of this section, [ 3 ] file an application with the Superior Court pursuant to the Rules of Court alleging the commission of such conduct or attempted conduct and seeking a [TPO].
[N.J.S.A. 2C:14-14(a)(1).]
The statute was adopted to authorize courts "to issue protective orders
for persons victimized by acts of stalking . . . in situations for which the
domestic violence statutes are inapplicable because the victim lacks a prior or
existing spousal, household, or dating relationship, or . . . [a] child in
common[] with the offender." 4 Assemb. Health Comm. Statement to S. 1517,
at 1 (Mar. 20, 2023) (L. 2023, c. 127).
At an FPO hearing:
3 Subsection b. addresses "nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt at such conduct, or stalking or cyber-harassment has been committed by an unemancipated minor" or "committed against an unemancipated minor by a parent, guardian, or other person having care, custody[,] and control of that child" and provides alternative avenues to seek redress. 4 VASPA replaced and expanded the scope of protections afforded under the Sexual Assault Survivor Protection Act, which provided protection for persons not eligible under the PDVA but was limited to "acts of nonconsensual sexual contact, sexual penetration, or lewdness, or attempts thereof, committed against" a victim. Assemb. Health Comm. Statement to S. 1517, at 1 (Mar. 20, 2023) (L. 2023, c. 127).
A-0612-24 14 [T]he standard for proving the allegations made in the application for a protective order shall be a preponderance of the evidence. The court shall consider but not be limited to the following factors:
(1) the occurrence of one or more acts of nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt at such conduct, or acts of stalking or cyber-harassment against the alleged victim; and
(2) the possibility of future risk to the safety or well-being of the alleged victim.
[N.J.S.A. 2C:14-16(a).]
A court may not deny an FPO due to an "alleged victim's failure to report the
incident to law enforcement." N.J.S.A. 2C:14-16(b).
We review a "trial court's evidentiary rulings . . . 'under the abuse of
discretion standard because, from its genesis, the decision to admit or exclude
evidence is one firmly entrusted to the trial court's discretion.'" State v. Prall,
231 N.J. 567, 580 (2018) (quoting Est. of Hanges v. Metro. Prop. & Cas. Ins.
Co., 202 N.J. 369, 383-84 (2010)).
An abuse of discretion occurs when a trial court's decision "was not
premised upon consideration of all relevant factors, was based upon
consideration of irrelevant or inappropriate factors, or amounts to a clear error
in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).
A-0612-24 15 An improper evidentiary ruling will call for reversal if it "is 'so wide of the
mark' that it constitutes 'a clear error in judgment,'" State v. Garcia, 245 N.J.
412, 430 (2021) (citing State v. Medina, 242 N.J. 397, 412 (2020)), such that it
is "clearly capable of producing an unjust result." Manata v. Pereira, 436 N.J.
Super. 330, 349 (App. Div. 2014) (quoting R. 2:10-2).
When no objection is made to the admission of evidence, but it is
challenged on appeal, the plain error standard applies. See R. 2:10-2; State v.
Santamaria, 236 N.J. 390, 405 (2019). Plain error is a "high bar" to clear.
Santamaria, 236 N.J. at 404. "[T]he error will be disregarded unless a
reasonable doubt has been raised whether the jury came to a result that it
otherwise might not have reached." State v. Singh, 245 N.J. 1, 13 (2021)
(quoting State v. R.K., 220 N.J. 444, 456 (2015)). In civil cases, relief under
the plain error rule "is discretionary and 'should be sparingly employed.'"
Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 129 (1999) (quoting Ford v.
Reichert, 23 N.J. 429, 435 (1957)); see also Bldg. Materials Corp. of Am. v.
Allstate Ins. Co., 424 N.J. Super. 448, 487 n.14, (App. Div. 2012).
A.
Defendant asserts the trial court erred in finding he committed the
predicate act of stalking because plaintiff did not establish he "purposefully or
A-0612-24 16 knowingly" engaged in a course of conduct that would cause a reasonable
person to fear for their safety or suffer other emotional distress. He notes the
trial court found he stalked plaintiff based on two text messages he was alleged
to have sent to plaintiff from an unknown phone number, which he avers was
not associated with him, and because he was outside plaintiff's home on two
occasions. Defendant argues the court's findings, however, failed to account
for the fact he owns three properties adjacent to plaintiff's rental unit,
including one in which his daughter and grandchild reside, and that he works
directly across the street from plaintiff's rental unit as a mechanic, which
requires him to park and test vehicles on the street at issue. Thus, he contends
the court erred in finding he repeatedly monitored or followed plaintiff or had
an unlawful purpose for being near plaintiff's home, claiming it was "natural"
for the parties to cross paths as neighbors and because of their landlord-tenant
relationship.
Defendant contends the trial court also failed to analyze whether a
reasonable person in plaintiff's situation would fear for their safety, claiming it
would not have found so if it had conducted such an analysis. Specifically, he
claims the court did not compare plaintiff's subjective feelings to that of an
ordinary, reasonable person. Defendant insists the trial court should have
A-0612-24 17 inquired whether a reasonable person would have been under emotional
distress if confronted by their landlord who ran a business on the same block.
VASPA permits "[a]ny person alleging to be a victim of . . . stalking[,]
. . . who is not eligible for a restraining order" under the PDVA, to seek a
protective order. N.J.S.A. 2C:14-14(a)(1). VASPA defines stalking as:
[P]urposefully or knowingly engaging in a course of conduct directed at or toward a person that would cause a reasonable person to fear for the reasonable person's own safety[,] . . . or suffer other emotional distress, because the conduct involves: repeatedly maintaining a visual or physical proximity to a person; directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about a person, or interfering with a person's property; repeatedly committing harassment against a person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or towards a person.
[Ibid.]
It further defines "repeatedly" as "on two or more occasions." Ibid.
Here, the trial court did not err in finding plaintiff proved, by a
preponderance of the evidence, defendant committed the predicate act of
stalking. It found, based on the parties' testimony and evidence, defendant
engaged in a "course of conduct," including following, monitoring, and
A-0612-24 18 communicating with plaintiff on at least two occasions, if not more. The court
credited plaintiff's "consistent" testimony regarding defendant repeatedly
waiting for her outside her home, sending her threatening text messages, and
following her at least twice, finding plaintiff "completely credible" and noting
her fearful, emotional demeanor. Contrary to defendant's assertion, it also
clearly considered the fact defendant works close to plaintiff's home in finding
it was not a coincidence he was parked outside plaintiff's home on April 11,
2024, and in including terms in the FPO that allowed defendant to access his
nearby business. Accordingly, its findings clearly established defendant acted
"purposefully or knowingly" in engaging in a "course of conduct." See
N.J.S.A. 2C:14-14(a)(1).
The court also clearly analyzed whether a reasonable person in plaintiff's
situation would fear for their safety, finding plaintiff's fear was reasonable,
given the coercion and control asserted by defendant, including his threats to
evict her and his efforts to coerce her into a relationship as a condition of
avoiding legal or housing consequences. See N.J.S.A. 2C:14-14(a)(1).
Accordingly, we determine there is no basis to disturb the court's conclusion
defendant committed the predicate act of stalking.
B.
A-0612-24 19 Defendant next contends, even if the trial court correctly determined he
committed the predicate act of stalking, it erred in its analysis of whether a
future risk to plaintiff's safety or well-being existed by analyzing the matter
under the PDVA and applying Silver, 387 N.J. Super 112, instead of VASPA.
He notes VASPA mandates the consideration of "the possibility of future risk"
to the safety or the "well-being" of the alleged victim under N.J.S.A. 2C:14-
16(a)(2) and asserts the court failed to consider this factor by improperly
conducting its analysis under the PDVA and the second prong of Silver.
Under VASPA, courts must consider "the possibility of future risk to the
safety or well-being of the alleged victim" in determining whether to grant an
FPO. N.J.S.A. 2C:14-16(a)(2). In C.R., our Supreme Court held the plain
language of this factor "creates a standard that is permissive and easily
satisfied." 257 N.J. at 132. There, the Court found the plaintiff demonstrated
a possibility of future risk to her safety or well-being based on her credible
testimony "a sexual assault 'destroyed' her, she was intensely traumatized, and
. . . was 'terrified' for her safety." Ibid. It also noted "[a] 'possibility of future
risk' is less demanding than 'necessary' protection," as required under prong
two of Silver. Id. at 146; see also Silver, 387 N.J. Super. at 127.
A-0612-24 20 Here, the trial court adequately addressed "the possibility of future risk"
to plaintiff's "safety or well-being," despite structuring its analysis under prong
two of Silver and concluding plaintiff "need[ed] the protection of th[e FPO] to
prevent any more stalking, control[,] and harassment by . . . defendant." It
clearly found "a pattern of coercive control by . . . defendant in his superior
position . . . [a]s a landlord in control of [the] property." While the court
referenced the more demanding Silver framework, its findings nevertheless
satisfy the "permissive and easily satisfied" standard of N.J.S.A. 2C:14 -
16(a)(2). See C.R., 257 N.J. at 132, 146. Accordingly, the court did not err in
granting plaintiff the FPO by failing to consider N.J.S.A. 2C:14-16(a)(2).
C.
Defendant also argues the trial court's credibility determinations were
"manifestly unsupported" by the competent, relevant, and credible evidence in
the record and asserts it substituted credibility determinations for objective
evidential facts. Specifically, he asserts the court improperly relied on
credibility determinations regarding key evidence, including text messages he
was alleged to have sent to plaintiff, which he contends were not proven to be
from any phone number associated with him and were fabricated by plaintiff.
He highlights the phone records he presented did not match the phone number
A-0612-24 21 from which the text messages at issue were sent. Regarding the January 18,
2024 text messages, defendant contends he was out of the country and not
available to enter the rental unit. He asserts the trial court should have
required plaintiff to present additional evidence to conclude he sent those
messages. Defendant further contends plaintiff's failure to block the phone
number associated with the January 2024 text messages is inconsistent with the
court's finding plaintiff was in fear of defendant stalking or harassing her.
Here, the trial court's factual findings were supported by adequate,
substantial, credible evidence in the record. It found plaintiff's testimony
"completely credible," noting her consistent accounts of defendant's repeated
harassment and her emotional demeanor during the proceedings. Additionally,
in finding defendant sent plaintiff the proffered text messages, it reviewed the
messages on her phone, which the court observed contained self-identifying
information and details only defendant would know, and had the texts read into
the record by an interpreter at defense counsel's request and with no objection
to their admission. The court also specifically rejected defendant's argument
he could not have sent the messages and found he had the means to create
another phone number. We therefore conclude there is no basis to determine
A-0612-24 22 the court's findings were manifestly unsupported by the record. Thus, there we
discern no reason to disturb the court's credibility determinations.
D.
Defendant further claims the trial court erred in admitting improper
evidence and by failing to preserve evidence for appeal. Specifically, he
contends it erred in admitting purported text messages from him written in
Spanish without a certified translation and without the entirety of the
conversation, contrary to Standard 4.4 of the New Jersey Judiciary Language
Access Plan (LAP), citing Administrative Directive #01-17, "New Jersey
Judiciary Language Access Plan" (Jan. 10, 2017).
Defendant also claims he was improperly denied the chance to examine
plaintiff's cell phone to verify the text messages at issue were still on her
phone and the completeness of the messages. Rather, he asserts the trial court
determined the proffered messages were identical to the ones on plaintiff's
phone, despite not knowing Spanish. Defendant avers he was forced to accept
the court's conclusion regarding the text messages without independent
examination, as the court did not copy or otherwise preserve plaintiff's cell
phone for appellate review through copying or photographing the messages.
Citing L.M.F. v. J.A.F. for the proposition evidence can be preserved in
A-0612-24 23 tangible form as part of the record, including by printing out electronic
evidence for trial, he asserts the trial court failed to preserve evidence for
appeal that would have allowed him to prove the number in plaintiff's cell
phone was not his. See 421 N.J. Super. 523, 527 n.2 (App. Div. 2011).
Defendant also asserts the court failed to draw a negative inference from
plaintiff's delay in reporting the alleged events and instead excused the delay
based on "manufactured reasons not testified to by . . . [p]laintiff," including
"fear, language barriers, lack of transportation, [and] confusion as to the legal
system on the cycle of domestic violence." He notes plaintiff's exhibits were
consistently identified throughout trial and entered into evidence, whereas
none of his own were.
Section 4.4 of the LAP states "[u]nless otherwise permitted by the court,
all evidentiary documents are to be presented in English and all non-English
documents intended to be introduced into evidence must be accompanied by a
Statement/Certificate of translation." Administrative Directive #21-23,
"Updated New Jersey Judiciary Language Access Plan" (Nov. 14, 2023). 5
However, Section 4.4's "Best Practices" also provides:
[I]n certain circumstances a judge may need to assess a recording or electronic message in a language other
5 Defendant relied on an earlier version of the LAP. A-0612-24 24 than English without the benefit of prior transcription and translation. For example, in an emergent domestic violence hearing, where pretrial discovery is not permitted unless good cause is shown, the judge will generally not require the victim to provide a transcript and translation of a cell phone recording. Instead, the judge may seek to have a court interpreter interpret the recording or electronic message during the hearing. However, for reasons identified below, providing accurate interpretation of recordings or messages, in any language, may be difficult or impossible, and legal and operational concerns may arise. If the file is short and clear enough, the interpreter may be able to render an interpretation if safeguards as described below are taken.
[(Emphasis added).]
Here, the court complied with the LAP in allowing the court interpreter
to translate and read the substance of the text messages into the record
pursuant to defense counsel's request. Section 4.1.1 of the LAP allows the
translations of "short and simple documents." Plaintiff also took steps to
comply with the LAP by providing a translated copy, albeit not certified, and
the court took steps to verify the proffered text message exhibits matched the
messages in plaintiff's phone. Thus, the court did not err in admitting the text
messages into evidence.
Additionally, contrary to defendant's contention, the trial court did not
err in failing to draw a negative inference from plaintiff's delay in reporting the
A-0612-24 25 alleged events, given VASPA prohibits courts from denying FPOs due to an
applicant's "failure to report the incident to law enforcement." N.J.S.A. 2C:14 -
16(b).
Further, defendant did not raise before the trial court the issue regarding
the court's failure to preserve evidence by copying the messages from
plaintiff's phone or otherwise preserving the evidence. "Generally, an
appellate court will not consider issues, even constitutional ones, which were
not raised [before the trial court]." State v. Galicia, 210 N.J. 364, 383 (2012).
Appellate courts do not "consider questions or issues not properly presented to
the trial court when an opportunity for such a presentation is available 'unless
the questions so raised on appeal go to the jurisdiction of the trial court or
concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super.
542, 548 (App. Div. 1959)). This matter involves neither an issue regarding
jurisdiction nor a matter of great public importance warranting departure from
this general rule. Nevertheless, copies of the text messages were entered into
evidence and preserved, and the court viewed plaintiff's phone and confirmed
they matched the exhibits moved into evidence. Additionally, defense counsel
A-0612-24 26 did not object to the introduction of the subject text messages or request they
be preserved in some other manner. We therefore find no error.
E.
Lastly, defendant argues the trial court "crossed the boundary" from
impartiality into advocacy in the manner it conducted the FPO hearing,
particularly in commencing the trial by conducting a direct examination of
plaintiff, assisting her in presenting her case by leading her through a series of
questions, and by helping her authenticate and admit evidence. He asserts the
court prompted plaintiff or "outright le[]d" her when her testimony failed to
match the complaint or establish evidence satisfying the VASPA statute.
Defendant contends the court did not similarly assist him in any regard and did
not admit any of his exhibits into evidence. He further claims the court argued
in plaintiff's favor when an objection was made, without her participation.
"[A] trial judge must take special care to craft questions in such a
manner to avoid being perceived as an advocate for any side of a dispute."
L.M.F., 421 N.J. Super. at 537. However, this concern is "less acute in the
context of bench trials, where judges serve as fact finders and have more
latitude in questioning witnesses." State v. Taffaro, 195 N.J. 442, 451 (2008).
In a bench trial, a judge may examine witnesses to clarify testimony, aid the
A-0612-24 27 court's understanding, elicit material facts, and assure the efficient conduct of
the trial. See State v. Medina, 349 N.J. Super. 108, 131 (App. Div. 2002);
N.J.R.E. 614. In the context of domestic violence trials, especially with pro se
litigants, a court's questioning of witnesses should be done in an "orderly and
predictable fashion . . . and not at the expense of the parties' due process
rights." Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006).
Here, the trial court elicited testimony about the allegations contained in
plaintiff's complaint by questioning plaintiff. Notably, only plaintiff was self -
represented and defendant, through counsel, identified exhibits and made
objections, many of which were sustained. While defendant contends "[t]he
entire trial [wa]s riddled with questions and comments" showing the court was
"too helpful" to plaintiff and "not helpful" to him, he fails to point to any
significant questions or comments to support his contention. Although the
court may have clarified plaintiff's statements in response to defense counsel's
objections, the record shows it also sustained many of defendant's objections
and limited plaintiff's testimony and thus did not improperly lead her to
favorable testimony.
As to defendant's assertion the court "did not assist [him] in any regard
and did not admit any of [his] exhibits into evidence," the court allowed him to
A-0612-24 28 present his phone records and flight information in arguing he did not send the
January 2024 text messages to plaintiff and made findings regarding both
exhibits in its decision, but defense counsel never moved for those exhibits to
be admitted into evidence. In contrast, the court did not admit all of plaintiff's
proffered exhibits, such as a photo from her security camera and video
evidence, sustained defense counsel's objections due to authentication issues
and a lack of relevance, and restricted the use of plaintiff's police report to
corroborate her credibility. It also ensured the FPO would not prohibit
defendant from accessing his nearby business. Thus, the trial court did not
cross the "line that separates advocacy from impartiality," see Taffaro, 195
N.J. at 451, or deny defendant due process in examining plaintiff, see Franklin,
385 N.J. Super. at 543.
In conclusion, we affirm the October 3, 2024 FPO because: the trial
court's findings were supported by adequate, substantial, and credible evidence
in the record; the court properly applied the governing VASPA statute and
standards; it did not abuse its discretion in its evidentiary rulings or in the
conduct of the trial; and the court sufficiently considered both the predicate act
of stalking and the possibility of future risk to plaintiff's safety.
Affirmed.
A-0612-24 29