Filed: Sep. 06, 2013
Latest Update: Sep. 06, 2013
Summary: PER CURIAM. Plaintiff S.L. appeals from a May 9, 2012 order dismissing her complaint under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and vacating a temporary restraining order that had been issued on April 23, 2012. She submits the following contentions for our consideration: POINT I : THE PLAINTIFF ESTABLISHED THE PREDICATE ACT OF HARRASSMENT UNDER N.J.S.A. 2C:33-4(c). POINT II : THE PLAINTIFF PROVED BY A PREPONDERANCE OF THE EVIDENCE THAT DEFENDANT VIOLAT
Summary: PER CURIAM. Plaintiff S.L. appeals from a May 9, 2012 order dismissing her complaint under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and vacating a temporary restraining order that had been issued on April 23, 2012. She submits the following contentions for our consideration: POINT I : THE PLAINTIFF ESTABLISHED THE PREDICATE ACT OF HARRASSMENT UNDER N.J.S.A. 2C:33-4(c). POINT II : THE PLAINTIFF PROVED BY A PREPONDERANCE OF THE EVIDENCE THAT DEFENDANT VIOLATE..
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PER CURIAM.
Plaintiff S.L. appeals from a May 9, 2012 order dismissing her complaint under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and vacating a temporary restraining order that had been issued on April 23, 2012. She submits the following contentions for our consideration:
POINT I: THE PLAINTIFF ESTABLISHED THE PREDICATE ACT OF HARRASSMENT UNDER N.J.S.A. 2C:33-4(c).
POINT II: THE PLAINTIFF PROVED BY A PREPONDERANCE OF THE EVIDENCE THAT DEFENDANT VIOLATED N.J.S.A. 2C:14-2(a)(7) SEXUAL ASSAULT.
POINT III: THE PLAINTIFF PROVED BY A PREPONDERANCE OF THE EVIDENCE A VIOLATION OF N.J.S.A. 2C:14-3(a) CRIMINAL SEXUAL CONTACT.
POINT IV: THE PLAINTIFF PROVED BY A PREPONDERANCE OF THE EVIDENCE A VIOLATION OF N.J.S.A. 2C:14-4 LEWDNESS.
POINT V: THE PLAINTIFF PROVED BY A PREPONDERANCE OF THE EVIDENCE A VIOLATION OF N.J.S.A. 2C:18-3 CRIMINAL TRESPASS.
POINT VI: THERE IS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE TRIAL COURT FINDING THAT DEFENDANT WRIGHT HAD ANY CREDIBILITY AT ALL.
POINT VII: PLAINTIFF PROVED THE ELEMENTS NECESSARY FOR A GRANT OF A FINAL RESTRAINING ORDER BY A PREPONDERANCE OF THE EVIDENCE.
We find none of these contentions persuasive, and based upon our independent review of the trial record, we affirm.
Our scope of review of a Family Part judge's factual determinations is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). However, "a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010) (citations omitted). "When a question of law is at stake, the appellate court must apply the law as it understands it." Ibid. (citations omitted).
We defer to the trial court's findings that are "substantially influenced [by the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Id. at 336-37 (internal quotation marks and citations omitted). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).
We are "not permitted to `weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (citations omitted) (internal quotation marks omitted). We reverse only when we determine the trial court's findings were so clearly mistaken that the interests of justice demand intervention and correction. State v. Elders, 192 N.J. 224, 244 (2007) (citations omitted) (internal quotation marks omitted).
The trial judge appraised the evidence concerning defendant R.W.'s alleged conduct towards S.L. between January and April 2012. She reviewed the claims of harassment based upon R.W.'s driving on S.L.'s street, together with the allegations of sexual assaults that supposedly occurred at R.W.'s home, and later at S.L.'s residence. After reflecting upon all of the evidence, including evidence that R.W. and S.L. had several episodes of consensual sexual liaisons in January and February 2012, the judge made the following credibility findings regarding S.L.'s testimony:
You know what, I don't believe her. Her testimony is incredulous, I don't believe her. The reason I don't believe her is that the defendant says [on] January 24, 2012, they were at the Shore Motel in Toms River.
February 10, 2012, they were at the Sleep Inn, Toms River.
February 12, 2012, at his apartment. There was, in my view, consensual sex because I find that the photo of February 10, 2012, at the Sleep Inn certainly shows no one that was under anybody's influence. Those photos, I must say, are disgusting. They were . . . purposely portraying the sexual affinities of . . . the plaintiff in this matter.
The judge also considered, and believed, R.W.'s claim that S.L. demanded that he pay her $300 or else she would tell her mother (R.W.'s spouse1) about their sexual encounters. R.W. complied with what the judge politely called, "a threat."
The judge ultimately found "that there was no sexual assault. There was consent." As for the harassment claim, the judge disbelieved S.L.'s witness who testified that he saw R.W. driving near S.L.'s residence at a time when R.W. demonstrated that he was in Florida. The judge explained, "[R.W.] was not there on those times and, in fact, even if he was there[,] it's a public street. He has the right to drive up and down any public street he wants[,] and the fact that also [S.L.] was not involved at all." Accordingly, the judge dismissed the complaint and vacated the temporary restraining order.
The trial record fully supports the findings and conclusions of the trial judge. Being in the best position to assess the disparate version of events, the judge's assessment of who and what to believe is unassailable. We detect nothing in this case that warrants our intervention. See Elders, supra, 192 N.J. at 244.
Affirmed.
