NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant S.F. appeals from his contempt conviction, N.J.S.A. 2C:29-9(b), for violating a temporary restraining order (TRO) entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to-35. Defendant urges reversal of his conviction, arguing the State's evidence failed to prove beyond a reasonable doubt that his conduct violated the TRO. We affirm.
At the time of the underlying incidents, defendant and his wife N.F. had been married for three years. On October 1, 2014, N.F. filed a domestic violence complaint, alleging that "defendant pushed her causing her to fall." The complaint further stated that "defendant has been emotionally abusive for quite some time" and that "there was one prior occasion where [] defendant pushed her within the past couple of weeks." At 6:25 p.m., the court issued a TRO, which in part enjoined defendant's commission of further acts of domestic violence, prohibited any oral, written, personal, electronic or other forms of contact with N.F., and precluded defendant from "making or causing anyone else to make harassing communications to [N.F.]" The police served defendant with the TRO that day at 7:09 p.m.
Following issuance of the TRO, defendant contacted N.F.'S brother, S.H., to have S.H. pressure N.F. to drop the charges against him. The next day, N.F. filed a complaint alleging that defendant violated the terms of the TRO by speaking with S.H. The complaint certified that defendant attempted to convince S.H. to speak with N.F., and said "Tell her to drop it or I'll divorce her" and "Did you talk to her?" As a result, defendant was charged with contempt for violating the terms of the TRO, a disorderly persons offense.1
At the February 27, 2015 trial on the contempt charge, S.H. testified that defendant contacted him a few times via phone on October 1, 2014, the first of which occurred at 1:06 p.m. and lasted nine minutes. Despite signing for the TRO at 7:09 p.m., defendant spoke with S.H. again at 7:53 p.m., and sent him multiple text messages. S.H. testified that this was a very unusual amount of contact with defendant, as their relationship was casual and they were not close. S.H. opined that defendant was contacting him to wear down, annoy, or harass N.F.:
Well, he was basically indirectly using me as an avenue to get to her to see if she could drop the charges, but I didn't even know what the charges were at that point. And he [kept] forcing — he was really aggressive towards the fact that, "You need to have her drop the charges. You need to have her — come here, come back to Virginia. You need to come get her. And I was just confused. I didn't know what exactly took place at that point. So that was the conversation basically.
In addition to S.H.'s testimony, N.F. related the factual events that preceded her initial request for a TRO and her conversations with her brother after defendant received the TRO. She explained that she believed defendant was taking advantage of her close relationship with her family to pressure her not to file a complaint or speak out. She claimed that defendant's speaking with her brother was "[v]ery annoying," noting:
[A]ll this time, he's been telling me, "Do not involve family. Do not involve — let's deal with it." And now, all of the sudden, my brother's involved. Like he's using my brother to [pressure] me to talk to me, and then I would feel okay, you know, let it go. It's been happy for so long, so let's — let's let it go this time, too.
Defendant testified on his own behalf. He asserted that his contacts with S.H. were the result of his concern for N.F.'s well-being as she suffers from epileptic seizures. Defendant denied ever attempting to use S.H. to coerce N.F. into dropping the charges. Despite signing for the TRO, he claimed he never had the opportunity to review or analyze the document, and — given his limited time living in the United States — was not even aware what a "restraining order" entailed.
At the conclusion of all evidence, the trial judge found defendant guilty of contempt:
This Court finds beyond a reasonable doubt that the State proved its case. This Court finds beyond a reasonable doubt that there was no relationship between this defendant and the brother; that it was a very limited relationship and that it was very unusual for this defendant, based on the testimony of the brother, which was not refuted by the defendant, it was very unusual for the defendant to reach out for the brother. And the brother testified that he has never been contacted by the defendant to talk about the marriage with his sister.
The judge found S.H.'s testimony "very credible," describing it as "much more credible than the testimony of the defendant," who "provided very contradictory answers [] to very basic questions." The judge determined that defendant "intentionally and [purposely] reached out to [N.F.] through her brother for purposes of getting a message to her," with knowledge that N.F. "would clearly be annoyed or alarmed" by "phone calls from her brother asking her about something that was very private to her." The judge concluded that after defendant received the TRO, defendant spoke with S.H. as an intermediary with the purpose to harass N.F. On March 18, 2015, defendant filed a motion for reconsideration, which was denied. This appeal followed.
On appeal, defendant argues the State failed to prove the intent required for harassment, and therefore, for a contempt conviction. We are not persuaded.
Our review of a judgment entered following a bench trial is very limited. Findings made by the trial court are binding on appeal when supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord particular deference to the trial judge's findings regarding the testimony of the parties. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Family Part judges in particular possess special expertise in family and domestic violence matters. Ibid.
N.J.S.A. 2C:29-9(b) provides:
[A] person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the "Prevention of Domestic Violence Act of 1990,".... In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act....
We have held that,
"To convict a defendant of the... crime of contempt of a restraining order issued pursuant to the [PDVA]," the State must [establish beyond a reasonable doubt that]:
(1) a restraining order was issued under the [PDVA]; (2) the defendant's violation of the order; (3) that defendant acted purposely or knowingly; and (4) the conduct that constituted the violation also constituted a crime or disorderly persons offense.
[State v. Krupinski, 321 N.J.Super. 34, 43 (App. Div. 1999) (internal quotations and citations omitted)].
In this matter, there is no dispute that a TRO had been entered or that defendant knew the order was entered and had been provided with a copy, which he acknowledged receiving. To the extent defendant claims he did not understand the TRO, the trial judge found nothing to support that bald statement. Likewise, the fifth paragraph of the TRO unequivocally prohibited defendant "from making or causing anyone else to make harassing communications to [N.F.]" That prohibition "encompass[es] the elements of harassment proscribed in [N.J.S.A. 2C:33-4(a)]." State v. Castagna, 387 N.J.Super. 598, 606 (App. Div.), certif. denied, 188 N.J. 577 (2006). Notably, defendant did not ask S.H. to make — and S.H. did not make — "a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language." N.J.S.A. 2C:33-4(a). However, the trial judge reasoned defendant did ask S.H. to make a communication in "any other manner likely to cause annoyance or alarm" because it invaded N.F.'s privacy after the TRO. Ibid. We note that the phrase "any other manner likely to cause annoyance or alarm" encompasses "only those types of communications that also are invasive of the recipient's privacy." State v. Hoffman, 149 N.J. 564, 583 (1997). However, the communication restrictions in a TRO give the victim a legitimate expectation of privacy. A defendant's intentional violations of those restrictions with the intent to harass can show that a defendant is using "modes of communicative harassment that `also are invasive of the recipient's privacy.'" See Cesare, supra, 154 N.J. at 404 (quoting Hoffman, supra, 149 N.J. at 583-84).
Here, defendant made multiple phone calls to S.H., and sent him multiple text messages, following receipt of the TRO. N.F. testified that such communication was "[v]ery annoying," especially the use of her brother as a conduit. Moreso, S.H. testified that "defendant was contacting [him] to wear [his] sister down or to try to annoy or harass her." While we agree that texting alone is not an invasion of privacy, see L.M.F. v. J.A.F., Jr., 421 N.J.Super. 523, 534-36 (App. Div. 2011), the testimony presented at trial was sufficient to support of a finding of an intent to harass. See Castagna, supra, 387 N.J. Super. at 607 ("[A] purpose to wear another person down to the point of submission by `causing' another to make a communication in a manner likely to annoy or alarm would suffice.").
We conclude the trial judge sufficiently assessed the testimonial evidence in making his factual findings. The court's determination that defendant's conduct was a knowing violation of the TRO is adequately supported by substantial and credible evidence found in the record and will not be disturbed. Rova Farms, supra, 65 N.J. at 484.
Affirmed.
