Opinion
DOCKET NO. A-2773-13T1
03-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ABEL TIRADO, Defendant-Appellant.
Stuart A. Mickelberg, attorney for appellant. Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FO-12-281-14. Stuart A. Mickelberg, attorney for appellant. Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Abel Tirado appeals from a February 21, 2014 order finding him guilty of harassment, N.J.S.A. 2C:33-4(c), and fourth-degree contempt, N.J.S.A. 2C:29-9(b), for conduct in violation of a final restraining order (FRO) issued pursuant to New Jersey's Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.
On appeal, defendant argues:
POINT IWe affirm.
THE TRIAL COURT ERRED IN FINDING THAT THE STATE HAD PROVEN ITS CASE BEYOND A REASONABLE DOUBT.
POINT II
THE TRIAL COURT ERRED BY FINDING APPELLANT INTENDED TO VIOLATE THE RESTRAINING ORDER AND INTENDED TO FOLLOW OR HARASS [THE VICTIM].
These facts are taken from the trial record before the Family Part. The parties stipulated defendant was served with an amended FRO on June 8, 2010. Among other things, the FRO restrained defendant from further acts of domestic violence, and from additional contact and communication with E.T. (the victim).
The incident supporting the charges occurred on October 21, 2013, at approximately 6 p.m. The victim and her friend testified to these facts.
After grocery shopping, the two women stopped at a pizza restaurant in Woodbridge. The victim's vehicle was parked adjacent to and was visible from Route 35, also known as St. George's Avenue. As they sat at a table facing the restaurant's front window, the victim's friend directed the victim's attention to a driver in the parking lot whom she suggested was defendant. The victim looked out the window, clearly saw defendant's face, and noted he was driving a dark green Altima. She asserted she and defendant made eye contact. The friend confirmed she also felt defendant made eye contact with her. The victim then watched the Altima exit the parking lot onto Route 35.
Twenty to thirty minutes later, the women finished eating, exited the restaurant, and entered the victim's vehicle to return home. The victim exited the parking lot onto Remsen Avenue. While stopped at a traffic signal at Route 35, the victim saw defendant's Altima making a left turn onto Remsen Avenue. She testified the vehicle made the turn "slowly then continued and then stopped and then backed up and stopped right next to [her] vehicle," bringing his car parallel to hers. Defendant then stared at the victim. She dialed 9-1-1 as defendant continued to stare at her until the traffic signal changed. She made a left onto Route 35 and proceeded directly to the police station.
The victim's friend confirmed she saw defendant turn left onto Remsen Avenue and drive past the victim's vehicle. He then reversed, stopped adjacent to the victim's car and stared, and when the light turned green, the victim drove away. The friend testified the victim looked and sounded scared. She heard the victim say "I got scared" and testified the victim "looked panicked." She accompanied the victim to file a police report.
The prior week, the victim was driving on Route 9 towards Perth Amboy when she noticed defendant leaving a gas station. She then realized she was being followed by defendant, which continued for approximately one to two miles. Defendant took the same two exit ramps she took, and when she turned, defendant followed suit. Finally, she turned left and defendant turned right onto Oak Street. The victim did not report this incident.
Defendant testified in his defense. He explained he was working on October 21, 2013, when he noticed the victim's vehicle in the pizza restaurant parking lot. He wondered if his children were with her and drove into the parking lot to check. When he did not see the children inside he left to complete other errands, including stopping at the bank and cleaning out his car. As he turned onto Remsen Avenue heading home, he passed the victim's vehicle and admits he "paused" for a few seconds after passing her, stating he believed she might try to communicate with him. Defendant denied backing up or staring at the victim.
Following the bench trial, the judge found defendant guilty beyond a reasonable doubt of harassment and contempt for violating the FRO. As this was his third contempt conviction, the judge sentenced defendant to ninety days in jail, eighteen months probation, completion of anger management counseling, and imposed appropriate fines and penalties. Defendant appealed.
Our review of the trial court's determination following a bench trial is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "The general rule is that findings by a trial court are binding on appeal when supported by adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428 (2015). Factual findings are not to be disturbed unless this court is "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." In re Tr. Created By Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Fact-finding underpinning "family court decisions are entitled to special deference '[b]ecause of the family courts' special jurisdiction and expertise in family matters.'" In re State ex rel. A.D., 212 N.J. 200, 230 (2012) (alteration in original) (quoting Cesare, supra, 154 N.J. at 413); see also Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010).
We also afford special deference to credibility determinations. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)) (noting the trial court "has a 'feel of the case' that can never be realized by a review of the cold record."). "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (alteration in original) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). However, a judge's interpretation of the law is reviewed de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
We reject as lacking merit defendant's challenges to the sufficiency of the State's evidence to prove he intended to annoy or alarm the victim. R. 2:11-3(e)(2). We add these brief comments regarding his arguments.
Defendant suggests he did not commit harassment because he did not confront the victim, said nothing, made no gestures, and drove through the pizza restaurant parking lot "consumed" only with the thought he might see his children. We disagree.
A defendant is guilty of harassment if, "with purpose to harass another, he . . . [e]ngages 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). See also State v. J.T., 294 N.J. Super. 540, 545 (App. Div. 1996) (explaining that "[p]lacing oneself in a location and remaining there for some time may constitute a 'course of conduct.'"). "A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2-2(b)(1)).
In this matter, we properly defer to the trial judge's detailed credibility determinations, as she heard the testimony and saw the witnesses as they testified. The judge credited the victim's testimony, which was corroborated by her friend who witnessed the same events. More important, the trial judge found defendant not credible and rejected his claims of chance meetings with the victim on October 21, 2013.
Further, the defendant's conduct was properly viewed in light of the prior history of physical violence between the parties. See ibid. ("A finding of a purpose to harass may be inferred from the evidence presented."). Acts of passing the victim, even after he confirmed his children were not accompanying her; stopping his vehicle; backing up to be adjacent to her vehicle; and "eyeballing her" at a time when she was unable to proceed because the traffic signal was red, proves beyond a reasonable doubt his intent to harass. The victim described her reaction as panicked and alarmed. She called 9-1-1 and went to the police.
In summary, the trial judge considered the totality of the circumstances, H.E.S. v. J.C.S., 175 N.J. 309, 326 (2003), and identified the specific conduct by defendant she relied upon to conclude he engaged in harassment. In doing so, she made credibility determinations for each witness, as supported by the evidence presented. Defendant's harassing conduct violated the FRO. See N.J.S.A. 2C:29-9(b)(1) (stating an individual is guilty of contempt if he or she "purposely or knowingly violates any provision in an order" entered under the prevention of Domestic Violence Act). The substantial credible evidence in the record supports defendant's conviction.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION