STATE OF NEW JERSEY VS. ANTHONY A. CALABRESE (FO-15-0215-17, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3417-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY A. CALABRESE,
Defendant-Appellant.
_______________________________
Argued October 15, 2018 – Decided November 13, 2018
Before Judges Messano and Fasciale.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FO-15-0215-17.
Mitchell J. Ansell argued the cause for appellant
(Ansell Grimm & Aaron, PC, attorneys; Mitchell J.
Ansell, on the brief).
Hillary H. Bryce argued the cause for respondent
(Bradley D. Billhimer, Ocean County Prosecutor,
attorney; Hillary H. Bryce, Supervising Assistant
Prosecutor, on the brief).
PER CURIAM
After a bench trial, defendant appeals from his conviction of disorderly
persons contempt, N.J.S.A. 2C:29-9(b)(2), for violating a temporary restraining
order (TRO) previously obtained by his ex-girlfriend under the Prevention of
Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We affirm.
On appeal, defendant argues:
POINT I
THE STATE FAILED TO PROVE EVERY
ELEMENT OF N.J.S.A. 2C:29-9 BEYOND A
REASONABLE DOUBT AS THE TRO MARKED S-1
IN EVIDENCE WAS NO LONGER IN EFFECT ON
SEPTEMBER 24, 2016, AS IT HAD BEEN
SUPERSEDED BY AN ATRO ISSUED ON
OCTOBER 6, 2016. (PARTIALLY RAISED BELOW).
POINT II
THE FINDINGS OF FACT AND CONCLUSIONS OF
LAW MADE BY THE TRIAL [JUDGE] WERE
AGAINST THE WEIGHT OF THE EVIDENCE.
THEREFORE, THE CONVICTION IN THIS
MATTER MUST BE VACATED. (NOT RAISED
BELOW).
We conclude that defendant's contention in Point I is without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the
following brief remarks. In August 2016, the ex-girlfriend obtained and served
the TRO on defendant. In September 2016, the municipal court amended the
TRO (ATRO) to include information as to the history of domestic violence
between the parties. The TRO and ATRO prohibited defendant from contacting
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the ex-girlfriend. Although the State moved only the TRO into evidence – and
even assuming defendant had not received the ATRO – the TRO remained
binding on defendant. See State v. Gandhi, 201 N.J. 161, 189 (2010) (stating
that "a defendant is bound to obey [a] court's order until the order is vacated
through a judicial proceeding"). "[A]s long as a court order exists and a
defendant has knowledge of it [like here], the defendant may be prosecuted for
a violation thereof." Id. at 190.
Our review of a finding of guilt in a contempt proceeding is limited to
determining "whether the record contains sufficient [credible] evidence to
support the judge's conclusion." State v. J.T., 294 N.J. Super. 540, 544 (App.
Div. 1996) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). Factual findings
of the trial judge are generally accorded deference given the judge's "opportunity
to make first-hand credibility judgments about the witnesses who appear on the
stand; [the judge] has a 'feel of the case' that can never be realized by a review
of the cold record." 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)). Nevertheless, in evaluating a trial judge's findings in a criminal
case, we must ensure that the State has carried its burden of proving a
defendant's guilt beyond a reasonable doubt.
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To obtain a conviction of the disorderly persons offense of contempt for
violating a TRO issued under the Act, the State must prove beyond a reasonable
doubt that defendant knowingly violated such an order. N.J.S.A. 2C:29-9(b)(2);
see also State v. Finamore, 338 N.J. Super. 130, 138 (App. Div. 2001). "[T]he
evidence must allow at least a reasonable inference that a defendant charged
with violating a [TRO] knew his conduct would bring about a prohibited result."
State v. S.K., 423 N.J. Super. 540, 547 (App. Div. 2012). N.J.S.A. 2C:2-2(b)(2)
states in relevant part: "A person acts knowingly with respect to the nature of
his conduct or the attendant circumstances if he is aware that his conduct is of
that nature, or that such circumstances exist, or he is aware of a high probability
of their existence."
After defendant received the TRO, the ex-girlfriend received six calls and
two voicemails on her cell phone between 4:00 a.m. and 4:08 a.m. These calls
came from defendant's phone. One of the voicemails, which the ex-girlfriend
testified contained defendant's voice, said "[a]nswer the phone, you stupid
bitch." At the trial, defendant – who knew about the TRO and its requirement
that he not contact the ex-girlfriend – defended the charges by attempting to
show he did not make the calls. That is, he suggested that the six calls emanated
from a "spoofing app."
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The judge found the ex-girlfriend credible. She characterized her
testimony as "straightforward[;] she was direct . . . and responsive." The judge
added that
she was clear – that the calls were made to her phone.
She did not notably appear to overreach in her
testimony. And, much of her testimony concerning her
receipt of the calls was, in this [c]ourt's view, un-
assailed.
. . . [A]nd very importantly, . . . in terms of
evaluating [her] credibility, . . . she was corroborated
by [an officer] in this matter.
. . . [The officer] used the same phone number
[used to call the ex-girlfriend] to call . . . defendant and
indeed spoke to . . . defendant . . . .
....
In this [c]ourt's view, . . . especially in light of
[the ex-girlfriend's] unequivocal testimony that she
recognized . . . defendant's voice . . . and maintained
corroborating evidence, . . . via [the] screen shots[,] . .
. the calls indeed occurred . . . .
[The ex-girlfriend's] testimony was, again,
corroborated by her actions that very same day that she
received the calls. . . . [The officer and the ex-
girlfriend] appeared credible . . . .
The judge did not believe the testimony from defendant's mother – who testified
that it was not her son's voice on the voicemail – which the judge stated was an
"overreach." And the judge flat out rejected – as "speculative" and "illogical" –
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defendant's defense that "spoofing apps" were purportedly the cause of the calls
to the ex-girlfriend.
The judge applied the correct law and found defendant guilty beyond a
reasonable doubt. We conclude there exists sufficient credible evidence in the
record to support the judge's findings, which we will not disturb.
Affirmed.
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