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                                                         Superior Court of New Jersey

                                                                                                                            Appellate Division

                                                                                                             DOCKET NO. A-6485-01T3

 

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State of New Jersey,

 

     Plaintiff

 

 

           v.

 

 

Peter Harris,

 

     Defendant

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Civil Action

 

On Appeal from a Final Judgment of the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County

 

 

 

Sat below:

Hon. Laura M. LeWinn, JSC

 

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                Appellant's Brief and Appendix

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                                                                                                 The Law Office of

                                                                                                David Perry Davis

                                                                                                31 Jefferson Plaza

                                                                                                Princeton, NJ 08540

                                                                                                (732) 274‑9444

                                                                                                Attorney for defendant

                       Table of Contents

Cover Page.................................................. i

Table of Contents.......................................... ii

Table of Authorities...................................... iii

Table of Contents to Appendix.............................. iv

Procedural History.......................................... 1

Statement of Facts.......................................... 1

Legal Argument

     I.   THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S CONDUCT CONSTITUTED HARASSMENT IN VIOLATION OF N.J.S.A. 2C:33‑4   3

     II.  THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S CONDUCT CONSTITUTED A VIOLATION OF THE PARTIES' MUTUAL RESTRAINING ORDERS . .......................................... 5

     III. THE TRIAL COURT ERRED IN FAILING TO MERGE THE CONVICTIONS FOR SENTENCING PURPOSES................................ 5

Conclusion.................................................. 6

                 Table of Contents to Appendix

Complaint (11/22/01) and judgment of conviction (6/3/02) Da 1

 

Final Restraining Order issued under the Prevention of Domestic Violence Act (Peter Harris v. Kelly Harris) (October 30, 2000)

..................................................... Da 2-5

 

Amended Final Restraining Order issued under the Prevention of Domestic Violence Act (Peter Harris v. Kelly Harris) (October 30, 2000)................................... Da 6-9

 

Amended Final Restraining Order issued under the Prevention of Domestic Violence Act (Peter Harris v. Kelly Harris) (October 30, 2000)................................. Da 10-13

 

Final Judgment of Divorce (April 4, 2001).......... Da 14-21

 

Consent order naming Peter Harris the Parent of Primary Residence and Kelly Harris the Parent of Alternate Residence (October 2001)..................................... Da 22-23

 

Transcript of Prior court appearance (Complainant's perjury)

(January 2001)..................................... Da 24-41

 

     Transcript of proceedings below (follows appendix)

                 Table of Contents to Appendix

New Jersey Statutes

N.J.S.A. 2C:33‑4............................................ 3

New Jersey Case Law

Cesare v. Cesare,

     154 N.J. 394, 416 (1998)......................... 3, 4

Corrente v. Corrente,

     218 N.J.Super. 243 (App.Div. 1995)................ 4, 5

Gallo v. Gallo,

     66 N.J.Super. 1, 5, (App.Div.1961)................... 3

Manalapan Realty v. Township Comm.,

     140 N.J. 366, 378 (1995)............................. 3

Murray v. Murray,

     267 N.J.Super. 406 (App.Div.1993)................. 4, 5

Pascale v. Pascale,

     113 N.J. 20, 33, (1988).............................. 3

Peranio v. Peranio,

     280 N.J.Super. 47 (App.Div.1995)..................... 5

Rova Farms Resort, Inc. v. Investors Ins. Co.,

     65 N.J. 474, 484 (1974).............................. 3

Smith v. Moore,

     298 N.J.Super. 121, 126 (App.Div. 1997).............. 4

State v. L.C.,

     283 N.J.Super. 441 (App.Div.1995), certif. denied,

     143 N.J. 325 (1996).................................. 5

State v. Best,

     70 NJ 56, 60‑61 (1976)............................... 6

State v. Hoffman,

     149 N.J. 564, 576, (1997)......................... 3, 4

State v. Wilmouth,

     302 N.J. Super. 20 (App.Div. 1997)................... 5

                      Procedural History

     The parties were married on June 12, 1999 and are the parents of one child, Tyler Harris, who was four at the time of the judgment of conviction under appeal (Da 14).  They separated on October 30, 2000, when mutual Final Restraining Orders were entered under the Prevention of Domestic Violence Act (Da 2, Da 10) following an incident wherein Mrs. Harris threw a cup of hot tea in Mr. Harris' face and he pushed her backward, injuring her shoulder.  The parties were divorced on April 2, 2001 and agreed to a shared parenting agreement whereby each party has the child approximately 50% of the time (Da 14).  By Consent Order entered October 30, 2001, defendant was named the parent of primary residence (Da 22).

     On November 22, 2001, defendant was charged with harassment and violation of a restraining order following an allegation that he had "[told ] the complainant that she was insane and that he would get custody of there [sic ] child as a result of her insanity." (Da 1).

     A bench trial was held on June 3, 2002.  Defendant was convicted (Da 1).  This appeal followed.

                      Statement of Facts

    Pursuant to the parties' Judgment of Divorce (Da 14), Mrs. Harris was awarded temporary possession of the former marital residence until November of 2001, at which point defendant was to retake possession.

    In November of 2001, defendant returned to the former marital residence.  He had not been there since the entry of the mutual restraining orders a year earlier.  The interior of the house had been destroyed.  There were holes in the walls and there was a pack of feral cats living in the attic, animal feces throughout the residence, and a dead and badly decomposed animal carcass in the garage.  A number of items that were awarded to defendant in the Judgment of Divorce had been removed, including a valuable picture.  Mrs. Harris admitted the she had improperly taken the items, which were "indisputably the defendant's" (T26-21 to 26-23).  Although she testified she "didn't know" about the dead cat, the feral animals and the animal feces in the house (T27-11 to 27-23), she admitted that the SPCA had contacted her regarding potentials charges relating to abandonment of animals and a dead kitten in the residence (T35-14 to 35-24).

    On November 22, 2001, during an exchange of the child, defendant shouted at Mrs. Harris regarding the deplorable condition of the residence and the missing items (T 11-3 to 13-10).  During the course of the argument, defendant made derogatory comments concerning Mrs. Harris' mental health as evidenced by the conditions she chose to live in, and allegedly indicated that he would take court action regarding a modification to the custody arrangement of the parties' child, again as a result of the unsanitary conditions she had the forced the child to endure.  The trial Court's factual findings on this issue are not challenged in this appeal.  The sole issue is whether an exchange of this type justifies a finding of harassment and supports a judgment of conviction for a violation of the parties' mutual restraining order.

 

J                       LEGAL ARGUMENT

    I. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S CONDUCT CONSTITUTED HARASSMENT IN VIOLATION OF N.J.S.A. 2C:33‑4.

    The general rule is that findings of a trial Court are binding on appeal when supported by adequate, substantial and credible evidence.  Pascale v. Pascale, 113 N.J. 20, 33, (1988) (quoting Gallo v. Gallo, 66 N.J.Super. 1, 5, (App.Div.1961)), Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).  It is not the role of the Appellate Division to re‑weigh the factual determinations of the trial court, which alone has the opportunity to view the demeanor of and judge the credibility of witnesses.  Cesare v. Cesare, 154 N.J. 394, 416 (1998).

    However when, as here, the issue on appeal concerns an issue of law and not a question of fact, review by the Appellate Division is de novo.  Manalapan Realty v. Township Comm., 140 N.J. 366, 378 (1995).

    In State v. Hoffman, 149 N.J. 564, 576 (1997), our Supreme Court set forth the elements of N.J.S.A. 2C:33‑4(a):

    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.

    In overturning the lower court's harassment conviction in Hoffman, the Appellate Division noted that the speech at issue (there, the mailing of a ripped-up support order), taken in the context of the parties' relationship, did not constitute a sufficient invasion of the victim's privacy so as to justify the harassment conviction. 

    Even without disturbing any of the trial court's factual findings or credibility determinations, the conduct the trial Court found in the matter under appeal should have been found to be similarly non-actionable.  By Mrs. Harris' own testimony, Mr. Harris' statements were made to communicate his belief that her choosing to subject the parties' child to unsanitary squalor justified the re-evaluation of the shared parenting arrangement and that he wanted his property returned.

    In the domestic violence context, the Court should consider the totality of the parties' relationship and should not find harassment, either on a criminal or civil level, absent a course of conduct and truly egregious conduct with no legitimate communicative intent. See, e.g., Cesare v. Cesare, 154 N.J. 394, 397‑98 (1998), Corrente v. Corrente, 218 N.J.Super. 243 (App.Div. 1995), Smith v. Moore, 298 N.J.Super. 121, 126 (App.Div. 1997), Murray v. Murray, 267 N.J.Super. 406, (App.Div.1993).  As these findings were not made below and in any case cannot be supported by the record before this Court, the finding that defendant's statements constituted actionable harassment must be reversed.

 

    II. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S CONDUCT WARRANTED A FINDING THAT HE HAD VIOLATED THE PARTIES' MUTUAL RESTRAINING ORDER.

    In State v. Wilmouth, 302 N.J. Super. 20 (App.Div. 1997), the Appellate Division reversed a conviction for the violation of a domestic violence order, holding "the Domestic Violence Act affords critically needed protections in appropriate situations. It was not intended to attempt to regulate and adjudicate every loss of temper, angry word, or quarrel between persons connected by a familial relationship . . . It is essential that all institutions involved in the administration and enforcement of the Act do so in a manner that promotes rather than subverts its policies and purposes." (Emphasis added). See, e.g., State v. L.C., 283 N.J.Super. 441 (App.Div.1995), certif. denied, 143 N.J. 325 (1996), Corrente v. Corrente, 281 N.J.Super. 243 (App.Div.1995), Peranio v. Peranio, 280 N.J.Super. 47 (App.Div.1995), Murray v. Murray, 267 N.J.Super. 406 (App.Div.1993).

    Again, the facts as found by the trial Court do not support the finding that the exchange between the parties warranted a finding that the Domestic Violence Order was violated.  Defendant returned to his home after a 13 month absence to it "destroyed" with feral animals, dead cats, holes in the walls, and many items missing (T45-5 to 45-19).  His conduct under the circumstances was precisely the type of "loss of temper, angry word, or quarrel between persons connected by a familial relationship" that the Appellate Division in Wilmouth found to be non-actionable.

 

 

    III.  THE TRIAL COURT ERRED IN FAILING TO MERGE THE CONVICTIONS FOR SENTENCING PURPOSES.

    When sentencing a defendant for multiple charges resulting from a single course of conduct, a trial Court is required to merge the counts that do not arise from separate and distinct acts.  In considering the question of merger the polestar is the constitutional principle that no person shall be punished twice for the same act. See, e.g., State v. Wade, 169 N.J. 302, 60‑61 (2001), State v. Best, 70 N.J. 56, 60‑61 (1976).

    In this matter, the trial court found defendant guilty of contempt and harassment and proceeded to sentence him immediately for both convictions (T72-3 to 72-5).  The failure to merge the counts constituted reversible error.

                          Conclusion

    For the above reasons, the court's June 3, 2002 judgment of conviction should be reversed and the complaint dismissed.

 

Respectfully submitted,

 

 

 

David Perry Davis, Esq.