Opinion
DOCKET NO. A-6216-10T3
07-03-2012
CHRISTOPHER D. CZACHOWSKI, Plaintiff-Respondent, v. LAURA MERMINI, Defendant-Appellant.
Park, Weinstein, & Caporrino, LLP, attorneys for appellant (James A. Caporrino, on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Parrillo.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-000208-12.
Park, Weinstein, & Caporrino, LLP, attorneys for appellant (James A. Caporrino, on the brief).
Respondent has not filed a brief. PER CURIAM
Defendant Laura Mermini appeals from a final restraining order (FRO) entered against her and in favor of plaintiff Christopher D. Czachowski under the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. We affirm.
The parties were in a two-and-one-half year relationship that was, by both accounts, tumultuous at times. By the end of their relationship in June 2011, plaintiff had discovered that defendant had been using an excessive amount of drugs and on or about July 1, 2011, plaintiff supposedly left threatening messages on the voice mails of persons whom plaintiff believed to be defendant's cocaine and methamphetamine dealers.
Between June 29 and July 6, 2011, the parties exchanged text messages and phone calls and on July 2 alone, defendant sent seventy-two text messages to plaintiff. These messages demonstrate, by her own admission, that defendant gave plaintiff's phone number and address to individuals with whom plaintiff was in dispute, and then told plaintiff of this fact, threatening him that "[yo]u did this to [yo]urself," and "people have your info[rmation] and know where to look."
On July 12, 2011, plaintiff was beaten and pistol whipped by unidentified assailants, who pointed a gun at him, outside his home in Kearny. The next day, plaintiff filed a domestic violence complaint against defendant alleging "multiple threats via text [and] phone calls," and that "def[endant] gave pl[aintiff's] address [and] phone number to people which resulted in pl[aintiff] being beaten [and] pistol whipped outside of his home." A temporary restraining order was issued that same day.
At the conclusion of the plenary hearing on July 22, 2011 and after receiving the testimony of both parties and a witness on plaintiff's behalf, the trial judge entered an FRO against defendant based on the predicate act of harassment, N.J.S.A. 2C:25-19a(13). The court concluded:
[W]ith respect to the harassment allegation, that element of the complaint has been met. It is clear from both parties' testimony that they engaged in a course of communications during that period of time, and that could very well . . . constitute harassment on both parts. There is no restraining order complaint by [defendant], but the text messages that were introduced as P-1 certainly indicate and demonstrate that she gave [plaintiff's] phone number and address out to people that she knew he was in a dispute with. One of the text messages, for example, says that she gave out his address apparently because she felt or believed that Ms. [B] had given out her address. Quote -- another one states, . . . "One more thing. I gave your number out because people are upset." And she later said, "You did this to yourself." And then there's another comment about, "People have your information and know where to look."
I also find credible the testimony that was given by [plaintiff] and Ms. [B] that there were some 72 messages left on July 2nd, and that there were other phone calls between [defendant] and [plaintiff] where she either implicitly or explicitly threatened to harm him.
. . . The repeated text messaging including explicit and implicit threats to disseminate the information as to where he could be located by the persons that she knew he was in a dispute with, and that those people knew where to look for him is a communication in a manner likely to cause annoyance or alarm. And the repeated text messages, the repeated threats over that period of time in question here to have both -- again, an explicit and implicit to have someone do something to [plaintiff] constitutes a course of alarming conduct with purpose to alarm or seriously annoy him.
For those reasons, there will be a finding that [defendant] committed an act of harassment against [plaintiff]. And given the . . . long history of tumultuous behavior between the two of them, the restraining order will remain in effect.
On appeal, defendant contends the evidence was insufficient to support a finding of domestic violence on the basis of an act of harassment. We disagree.
In a non-jury case, findings of fact by the trial court "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We will not disturb these findings on appeal unless the trial judge's findings are "'so wholly insupportable as to result in a denial of justice.'" Id. at 483-84 (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). This is especially true in family courts, which have "special jurisdiction and expertise in family matters." Cesare, supra, 154 N.J. at 413.
Here, the judge found defendant guilty of harassment as defined by N.J.S.A. 2C:33-4(a), conduct constituting domestic violence pursuant to N.J.S.A. 2C:25-19a(13). In relevant part, N.J.S.A. 2C:33-4a defines the petty disorderly persons offense of harassment as making a "a communication . . . in offensively coarse language, or any other manner likely to cause annoyance or alarm" if the communication was made "with purpose to harass another."
In State v. Hoffman, 149 N.J. 564, 576 (1997), our Supreme Court set forth the elements of N.J.S.A. 2C:33-4a:
A violation of subsection (a) requires the following elements: (1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient.Thus, an essential element of harassment is that there be a purpose to harass in making the offensive communication. Hoffman, supra, 149 N.J. at 576. Absent proof of such purpose, a communication that might otherwise be characterized as offensive, coarse, or annoying does not constitute harassment. D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994).
In this case, the judge found plaintiff's proofs credible that defendant repeatedly communicated with plaintiff and that she had given his name, address and other information to individuals whom plaintiff believed were unsavory characters and with whom he was in dispute. Given the circumstances then extant, it was reasonable for the judge to conclude that these numerous threatening communications were done in a manner likely to cause plaintiff alarm or, at the very least, annoyance, and with the purpose to harass. And although the judge did not explicitly so state, it is implicit in his final determination, given the ultimate harm suffered by plaintiff, that issuance of the FRO was deemed necessary to protect plaintiff from immediate danger and further abuse. See N.J.S.A. 2C:25-29.
As noted, after finding plaintiff to be a credible witness, the trial judge made detailed findings of fact, which are binding on us on appeal for they are amply supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999); Rova Farms Resort, supra, 65 N.J. at 483-84. The facts establish acts of harassment prohibited under the Act, N.J.S.A. 2C:25-19a(13).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION