V.P. v. K.C.B. (FV-18-0406-20, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 9, 2022
• Docket: A-2515-19
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2515-19

V. P., 1

Plaintiff-Respondent,

v.

K.C.B.,

Defendant-Appellant. ________________________

Submitted December 6, 2021 – Decided February 9, 2022

Before Judges Sumners and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0406-20.

Wronko Loewen Benucci, attorneys for appellant (Kevin Hewitt, Jr., of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

1 We use initials to identify the parties because the names of victims of domestic violence are excluded from public access under Rule 1:38-3(d)(10). Defendant appeals from a final restraining order (FRO) entered against

her pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A.

2C:25-17 to -35, for committing the predicate acts of harassment and stalking

against plaintiff, her former boyfriend. Defendant argues:

POINT I

THE TRIAL COURT HAS AN AFFIRMATIVE DUTY TO INTERVENE TO ENSURE A FAIR TRIAL WHICH WAS NEGATED BY ITS REPEATED ADMISSION OF HEARSAY AND PREJUDICIAL EVIDENCE.

POINT II

THE TRIAL COURT ERRED IN ITS CREDIBILITY DETERMINATIONS AND ITS FACTUAL FINDINGS ARE NOT SUPPORTED BY CREDIBLE EVIDENCE.

POINT III

THE TRIAL COURT INCORRECTLY FOUND THAT THE PLAINTIFF HAD PROVED THE PREDICATE ACT OF HARASSMENT.

POINT IV

THE TRIAL COURT INCORRECTLY FOUND THAT THE PLAINTIFF HAD PROVED THE PREDICATE ACT OF STALKING.

2 A-2515-19 POINT V

THE TRIAL COURT INCORRECTLY FOUND AN FRO WAS NEEDED TO PROTECT THE VICTIM UNDER [THE] SECOND PRONG OF SILVER.[2]

Having considered these arguments in light of the record and applicable legal

principles, we affirm.

I

At the FRO trial, plaintiff alleged defendant harassed and stalked him,

constituting predicate acts of domestic violence. N.J.S.A. 2C:25-19(a)(13)-(14).

Harassment is defined, in relevant part, as "[e]ngag[ing] in any . . . course of

alarming conduct or of repeatedly committed acts with purpose to alarm or

seriously annoy such other person." N.J.S.A. 2C:33-4(c). Stalking occurs when

someone "purposefully or knowingly engages in a course of conduct directed at

a specific person that would cause a reasonable person to fear for his safety or

the safety of a third person or suffer other emotional distress." N.J.S.A. 2C:12-

10(b). For the purposes of stalking:

(1) "Course of conduct" means 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,

2 Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).

3 A-2515-19 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 toward a person.

(2) "Repeatedly" means on two or more occasions.

(3) "Emotional distress" means significant mental suffering or distress.

(4) "Cause a reasonable person to fear" means to cause fear which a reasonable victim, similarly situated, would have under the circumstances.

[N.J.S.A. 2C:12-10(a).]

The testimony revealed the parties were involved in a steady romantic

relationship for over a year, until they broke up in November 2018, and then

began dating on-again, off-again for several months, eventually ending their

relationship for good at the end of March 2019. Defendant claimed the

relationship ultimately ended when she found out that plaintiff was dating

another woman.

Before and after the parties' relationship ended, plaintiff became

concerned when he believed defendant was following him because he began

seeing her or running into her at unexpected places and times. He found trackers

4 A-2515-19 under his car on January 12, May 10, 28, and 31, June 2 and 7, and July 4, 2019.

In fact, defendant admitted she "placed trackers 3 on [his] car prior to when [they]

stopped talking" but "didn't have anything to do with them past . . . April." She

acknowledged that if a tracker was placed on plaintiff's car in April it would

remain there until it was removed but its limited battery life was two weeks to a

month. Plaintiff stated trackers were also found on the cars of his parents and a

female friend. Defendant claimed she had "nothing to do with" those trackers.

Plaintiff said that on July 27, 2019, he, "a friend[,] and her sister were

visiting or in the area, so we went to have pizza together . . . , and I think within

like, [ten] minutes of sitting down, . . . I saw . . . defendant walk around outside,

. . . poke[] her head in, look[] at me, smirk[], [and] walk[] away." Defendant

admitted she saw him at a pizzeria when she was there to pick up some food but

said nothing to him and immediately walked away.

On August 10, plaintiff attended a Somerset Patriots minor league

baseball game with his co-workers and saw defendant there. He testified that as

he was in the stadium, he "[saw] her walking by. [She] look[ed] at me, ma[de]

a smirk[,] and then walk[ed] away." He believed she was there to follow him.

3 Defendant bought the trackers on the internet and linked them to send signals to her cell phone.

5 A-2515-19 She was neither a baseball nor Patriots fan, according to plaintiff, and they had

never gone to a game together before. Defendant testified she saw him at a

Patriots game, but it was on September 10 for Bark in the Park night, when fans

took their dogs to the game. She was there because an animal shelter she

volunteered was an event sponsor. She denied being at the Patriots game on

August 10.

On September 25, plaintiff was meeting a friend at a parking lot in the

Princeton area before taking her to Philadelphia when he saw defendant

following him. She claimed she was on her way to dinner with a colleague when

they saw each other in a parking lot. She accused plaintiff of following her,

thinking he wanted her to return an ankle bracelet that he brought her, which she

gave him and then drove off. Later that night, defendant went to Philadelphia

to meet a different friend who had recently moved there but she did not see

plaintiff, contending she was unaware that he was also in Philadelphia that night.

Plaintiff said that on October 8, he had gone to funeral home with a friend

and when he came out, defendant was sitting on a bench outside the funeral

home. She then walked away. She claimed the location was a Methodist church

fifteen minutes away from her home and she was there to meet a friend at a

restaurant which happened to be across the street. She said that, after seeing

6 A-2515-19 plaintiff, she immediately walked away without saying anything, but he

followed her for a couple of minutes.

On October 12, plaintiff was in a park with a friend, who stated "there's

someone watching us" from nearby bushes. Plaintiff could not positively

identify the person, who was wearing a hoodie and crouched in the bushes, but

he believed it was a female. That day, defendant made a Facebook post stating

she was hospitalized for a poison ivy infection. She testified she had poison ivy

before October 12, and was not in the park that day because she was doing

animal rescue.

On October 24, plaintiff obtained a temporary restraining order (TRO)

against defendant based upon the allegations of harassment and stalking,

N.J.S.A. 2C:12-10(b).

Plaintiff claimed that due to his history with defendant, the trackers she

placed on his car, and seeing him on several occasions at unexpected places, he

was seeking final restraints. He testified, "I live in, basically, paranoia. If I hear

a sound outside my window at three in the morning, I'm jumping out of bed to

see if there's some person in my car. It's, you know, and then . . . , in fear for

my family[.]" He further indicated that "fear is what's causing me to do this

right now. . . . [I]t's almost like it's been controlling my life because [until now]

7 A-2515-19 I . . . haven't done [anything] about it." He wanted "boundar[ies]" to prevent

defendant's future contact with him.

Franklin Township Detective Ordel Taylor, who testified on behalf of

plaintiff, discussed his investigation into plaintiff's complaints about defendant,

relying upon his reports and notes. He did a license plate reader inquiry on

defendant's car, which determined her car was in Philadelphia on September 25.

The judge overruled defendant's hearsay objection to Taylor's testimony that

GPS trackers were found on his parents' car and on his friend's car. Taylor

confirmed there were five global positioning systems (GPS) trackers on the cars

of plaintiff and his friend and family, and determined they belonged to defendant

based on information he found on her cell phone following her arrest. The judge

overruled defense counsel's objection to Taylor's testimony regarding: (1) his

discovery through social media that defendant checked herself into the

emergency room for a poison ivy infection shortly after plaintiff reported to the

police that someone was hiding in the woods at a park watching him and a friend;

and (2) defendant's car being in Philadelphia on September 25, based on

information from license plate readers. The judge, over defendant's objection,

also allowed plaintiff to testify about Taylor's investigative efforts during which

8 A-2515-19 he searched defendant's phone because it was merely a repeat of Taylor's

testimony.

At the trial's conclusion, the judge issued an FRO against defendant under

Silver based on harassment and stalking. In his bench decision, the judge found

plaintiff's testimony was "inherently believable," citing his demeanor and direct

responses to questions. The judge also found Taylor credible. On the other

hand, he found defendant's testimony evasive and incredible, coming across as

an embittered ex-girlfriend. He found it was hard to believe that on September

25 she just happened to be in the Princeton area and Philadelphia on the same

night as plaintiff when she lived in Warren.

The judge found defendant had no legitimate reason for her contacts with

plaintiff on September 25, October 8, October 15, and October 14, 2019,

especially after he previously told her leave him alone. 4 The judge thus

determined defendant's contacts were solely to harass plaintiff under N.J.S.A.

2C:33-4(c) because she "engag[ed] in . . . [a] course of alarming conduct or of

repeatedly committed acts with [the] purpose to alarm or seriously annoy [him]."

4 The judge did not find defendant harassed or stalked plaintiff at the Patriots game on August 10. Although he found plaintiff was credible, the judge suggests the contact occurred on September 10, the date defendant admitted attending a Patriots game. However, the judge provided no specific explanation for his finding.

9 A-2515-19 The judge further determined that defendant's conduct constituted stalking under

N.J.S.A. 2C:12-10(b) because she "engag[ed] in a course of conduct directed at

[plaintiff] that . . . would cause a reasonable person to fear for his safety or suffer

other emotional distress." He specifically pointed to the "number of occasions

[defendant] placed tracking devices on . . . plaintiff's car, the contin[ous] . . .

sightings of her in various locations[,] clearly would cause a reasonable person

. . . to suffer emotional distress . . . [as] plaintiff described[.]"

In determining that final restraints were required, the judge reasoned:

the only thing that appears to have stopped [defendant's] behavior . . . was the issuance of the [TRO] and . . . without a restraining order, . . . defendant, . . . in my opinion, will continue this harassment . . . in all likelihood and that . . . plaintiff needs to be protected for his own peace of mind, meaning his own . . . psychological welfare that a[n] . . . [FRO will provide].

II

In a domestic violence case, we accord substantial deference to the family

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

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

(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).

Deference is especially given when much of the evidence is testimonial and

implicates credibility determinations. Id. at 412. We do not disturb the judge's

10 A-2515-19 factual findings and legal conclusions, unless we are "convinced that they are so

manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice." Ibid. (quoting

Rova Farms, 65 N.J. at 484).

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

trial judge must make two determinations. Silver, 387 N.J. Super. at 125-27.

The first Silver prong is "whether the plaintiff has proven, by a preponderance

of the credible evidence, that one or more of the predicate acts set forth in

N.J.S.A. 2C:25-19(a) has occurred." Id. at 125.

Upon finding the commission of a predicate act, the judge must then

address the second Silver prong—whether an FRO is necessary to protect the

plaintiff from future acts or threats of violence. Id. at 126. In other words, the

judge must find that "relief is necessary to prevent further abuse." J.D. v.

M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)); see also

Silver, 387 N.J. Super. at 127 (explaining the judge must find that a FRO is

necessary to protect "the victim from an immediate danger or to prevent further

abuse"). The second prong, like the first, "must be evaluated in light of the

previous history of domestic violence between the plaintiff and defendant

including previous threats, harassment and physical abuse," as well as "whether

11 A-2515-19 immediate danger to the person or property is present." Silver, 347 N.J. at 124

(quoting Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995) (citing

N.J.S.A. 2C:25-29(a)(1)-(2))).

Applying those principles, we conclude there is no basis to disturb the

factual findings or legal conclusions of the trial judge. The judge heard the

testimony of the parties and Detective Taylor. The judge had the opportunity to

assess their credibility based on believability and their demeanor. Defendant

points to no evidence in the record that undermines the judge's credibility

findings.

We dismiss defendant's contentions that the judge abused his discretion in

allowing some of the testimony by Taylor and plaintiff. See State v. Prall, 231

N.J. 567, 580 (2018) ("The trial court's evidentiary rulings 'are reviewed 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.'")

(citing Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84

(2010)). Defendant incorrectly contends Taylor's testimony regarding his

reliance on the license plate query to show that she was in Philadelphia on

September 25 was inadmissible hearsay. Taylor relied on notes and reports

prepared during his investigation of defendant to testify "fully and accurately"

12 A-2515-19 because he could not remember all that he wrote. Therefore, under N.J.R.E.

803(c)(5)(A-C), his testimony was admissible as past recollection recorded.

And even though she contends on appeal for the first time that Taylor relied on

surveillance cameras videos without personal knowledge that they were accurate

depictions of the information recorded, no plain error occurred. See R. 2:10-2

("Any error or omission shall be disregarded by the appellate court unless it is

of such a nature as to have been clearly capable of producing an unjust result

. . . ."). There was no manifest injustice in the admission of the testimony

because defendant admitted she was in Philadelphia that day. In fact, many of

defense counsel's objections to testimony by plaintiff and Taylor were sustained.

The judge's finding that defendant harassed and stalked plaintiff is

supported in the record that following their breakup, she ignored his directive

that he wanted nothing to do with her and then admittedly placed tracking

devices on his car allowing her to know where he was. Defendant's contention

that she did not speak or interact with plaintiff is of no consequence; the fact she

tracked his whereabouts to observe him and who he was with satisfied the

elements of harassment and stalking. Likewise, her claim that her intent was

not to harass, as the GPS trackers were meant to be hidden, is belied by the

judge's sound findings. We discern no cause to upset the judge's adequate

13 A-2515-19 findings that an FRO was necessary to protect plaintiff as they are supported by

his determination that plaintiff gave credible testimony.

To the extent we have not specifically addressed any of defendant's

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

14 A-2515-19