STATE OF NEW JERSEY VS. CALVIN L. SANCHIOUS, JR. (FO-18-0237-19, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-4778-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CALVIN L. SANCHIOUS, JR.,
Defendant-Appellant.
___________________________
Submitted March 22, 2021 – Decided April 13, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FO-18-0237-19.
Pasquale Marago, attorney for appellant.
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Lauren E. Bland, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
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 roommate under the Prevention of Domestic
Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We affirm.
Defendant and T.B. lived together in a home owned by T.B. Defendant
harassed and assaulted T.B., resulting in T.B. applying for a TRO. On March
13, 2019, a TRO was entered against defendant. 1 Later that day, defendant was
charged with contempt of the TRO after he called T.B.'s cell phone twice and
called out to him while standing on nearby property.
The final restraining order (FRO) trial was originally set for May 30, 2019
but was adjourned on defendant's requests to June 5 to give him time to obtain
a transcript. Judge Robert B. Reed conducted a bench trial. He found defendant
guilty of contempt, N.J.S.A. 2C:29-9(b)(2), and sentenced defendant to a thirty-
day sentence of imprisonment, to be served on weekends.
On appeal, defendant raises the following points for this court's
consideration, which we have renumbered:
1
A final restraining order (FRO) was subsequently entered.
A-4778-18
2
POINT I
THE CASE AGAINST [DEFENDANT] SHOULD
HAVE BEEN DISMISSED ON MAY 30, 2019 WHEN
THE STATE WAS UNPREPARED TO BEGIN
TRIAL.
POINT II
[DEFENDANT] WAS DENIED A FAIR TRIAL
WHEN THE TRIAL OCCURRED ON JUNE 5, 2019
DESPITE [DEFENDANT'S] INABILITY TO
OBTAIN THE RELATED TRO TRIAL TRANSCRIPT
TO USE FOR IMPEACHMENT PURPOSES PRIOR
TO THE START OF THE TRIAL.
POINT III
THE GUILTY VERDICT AGAINST [DEFENDANT]
WAS AGAINST THE WEIGHT OF THE TRIAL
EVIDENCE.
I.
We reject defendant's argument that the judge improperly adjourned the
May 30 trial date and should have dismissed the charge against him. We defer
to the trial judge in matters concerning adjournment requests and scheduling,
State ex rel. Comm'r of Transp. v. Shalom Money St., LLC, 432 N.J. Super. 1,
7 (App. Div. 2013), and will review a judge's decision to grant or deny an
adjournment request for abuse of discretion, Kosmowski v. Atl. City Med. Ctr.,
175 N.J. 568, 574 (2003). "Abuse of discretion only arises on demonstration of
'manifest error or injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting
A-4778-18
3
State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the judge's "decision
is made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis," Milne v. Goldenberg, 428 N.J.
Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171
N.J. 561, 571 (2002)).
Defense counsel submitted his first adjournment request on May 24, 2019,
six days before trial, because he had "just entered the case and only recently
received discovery" and because "[defendant] believe[d] that a transcript of the
FRO hearing related to [the] matter [was] indispensable to his defense." A judge
denied the request. Defense counsel submitted a second adjournment request on
May 29, 2019, the day before the original trial date, which stated:
I will require some time to prepare my case with
[defendant]. Otherwise, I ask the [judge's] permission
to withdraw from the matter. I understand from
Criminal Case Management that [defendant] indicated
to the [c]ourt on or about May 16, 2019 that he would
be hiring me but I had not yet had that conversation
with defendant.
The State consented to both requests and requested a separate adjournment
because the assistant prosecutor would be on vacation on the first scheduled trial
date of May 30. The judge denied the requests without a statement of reasons.
A-4778-18
4
At the May 30, 2019 status conference, the following colloquy occurred on the
record:
THE COURT: Okay, so [defense counsel], I
understand from my team leader that you wanted to get
a copy of the transcript from the prior FRO hearing
between the parties, is that correct?
[DEFENSE COUNSEL]: Judge, at this point we
abandoned that idea . . . [b]ecause we made some
adjournment requests and they were both denied, and
[the assistant prosecutor] made an adjournment request
because she's on vacation this week, and that was
denied, and we were told we had to be here for trial.
THE COURT: By the [Presiding Judge].
[DEFENSE COUNSEL]: Yes.
THE COURT: Okay.
[DEFENSE COUNSEL]: So[,] we are prepared for
trial. The victim's not here, so based on the fact that
[defendant] was told he had to be here for trial and the
victim's not here, we're going to have to request a
dismissal at this point.
THE STATE: The State finds that disingenuous since
there was a defense request—I'm mistaken—two
defense requests for adjournment on which the assistant
prosecutor, who is presently on vacation, relied and
joined in that request, consented to it, and now away.
Had the witnesses been subpoenaed, I'd try the case
right now, no problem. They haven't been because the
defense requested an adjournment, having been new to
the case as of last week.
A-4778-18
5
So the State not only opposes that request, but also
would deem on the record it would be completely
disingenuous in terms of making representation to the
[c]ourt of needing an adjournment, the State consenting
thereto, and then turning around immediately and
asking for a dismissal.
....
THE COURT: You're . . . new to the case, [defense
counsel]. You filed an appearance when?
[DEFENSE COUNSEL]: I filed an appearance on the
24th.
THE COURT: Okay. For the record, it's obviously
May 24th [today].
....
THE COURT: And then you made two requests for
adjournment of today's case, in light of your recent
retention. And it's my understanding that you also
wanted to obtain a copy of the transcript in the
proceeding. And that was, I don't know if it was in
writing, or if that was orally conveyed to my team
leader, because that was communicated to me, the
intention. And today, this afternoon you're saying,
Judge, in light of the denial on my two adjournment
requests, and being told I need to appear here for
purposes of trial, I'm abandoning that request.
[DEFENSE COUNSEL]: That's correct.
....
A-4778-18
6
THE COURT: [F]or purposes of what we're going to do
here today, yes, it's listed for trial. But, . . . and Judge
Rahill, as I know, denied the two requests for an
adjournment by the defense. I already had the person
that's in charge of IT at the county . . . identify how long
the transcript was, how much it would cost for the
purposes of a deposit, and what it would cost to get it
on an expedited basis, where there would be one to two
days versus seven to [ten] days, in light of the fact that
no fault of [defense counsel's], of course, he's only
recently in the case, the case is [seventy-six] days old,
as you know. That's a little on the older side for our FO
cases which have a backlog of [ninety] days. They go
past [ninety] days all the time, when it's necessary,
okay?
But, in any event, at least from my perspective, . . . it
would be necessary for you to be here to address in
greater detail how you would intend to proceed
forward, okay?
So I'm not going to grant your motion to dismiss for
failure of the State to be prepared to go to trial, when I
have the [assistant] prosecutor consenting to your
adjournment request, but the [presiding judge] saying
no, and further noting that you're coming in now and
saying I'm going to waive my right to get that transcript.
I'm not holding you to that if I'm not going to trial
today, and we're not granting your motion to dismiss,
because if there is relevant information in there, I want
to make sure that you get it and your client has a full
and fair opportunity to defend on the merits of this case.
[(Emphasis added).]
The judge then directed defense counsel to order the relevant FRO transcript on
an expedited basis, which counsel agreed to do.
A-4778-18
7
Under these facts, the judge was well within his discretion to adjourn the
trial. Defendant had recently retained defense counsel and counsel had not yet
obtained the relevant FRO transcript. The judge allowed counsel time to review
the matter and request the transcript, and even went so far as to ensure the
transcript could be ordered in time for trial. Defendant was in no way prejudiced
by the judge's action.
As to the defendant's argument that the judge should have dismissed the
charge, the judge was also well within his discretion in denying that request .
The State points out that to grant defendant's request on procedural grounds
would have been "contrary to the intent of domestic violence legislation, which
is to provide immediate relief and protection for victims of domestic abuse."
Indeed, courts must give "broad application" to the Domestic Violence Act. See
Cesare v. Cesare, 154 N.J. 394, 399 (1998). As such, the judge did not abuse
his discretion.
II.
We also reject defendant's argument that the verdict was against the
weight of the evidence. 2
2
Defendant improperly uses the standard for jury trials, that is, whether the verdict
is against the weight of the evidence. Defendant's trial was a bench trial.
A-4778-18
8
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 findings. State v. Lamb, 218 N.J. 300, 313 (2014) (citing State v.
Elders, 192 N.J. 224, 243 (2007)). The 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 judge's findings in a criminal case, this court must
ensure that the State has carried its burden of proving a defendant's guilt beyond
a reasonable doubt.
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)
A-4778-18
9
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, defendant left the residence he shared
with T.B. and walked across the street. Watching defendant on his phone from
the residence, T.B. received two calls from defendant. Defendant proceeded to
sit in a tree on property located near the driveway of the residence. Defendant
called out T.B.'s name and remarked that he had "nowhere to go." Defendant
stated that he realized he forgot his wallet, so he walked towards the house to
talk to a neighbor and stood on the sidewalk while the neighbor went inside the
residence to retrieve it. T.B. came outside and told the neighbor to call 9-1-1.
Defendant left the abutting property and went to a nearby Quick Check where
he was arrested for contempt.
At trial, defendant—who knew about the TRO and its requirement that he
not contact T.B.—defended the charges by attempting to show that he was not
on the property, but rather was on the sidewalk, and by denying that he spoke to
T.B. when he returned to the property. Officer Vacchiano, the arresting officer,
testified that he had personally gone over the terms of the TRO with defendant.
A-4778-18
10
The judge noted that "clearly the [d]efendant, by his own admission, was served
the order, and understood its terms. That's corroborated by the testimony of
Officer Vacchiano[.]" The judge gave weight to eyewitness testimony and
stated that "despite T.B.'s lack of corroboration . . . the testimony that
[defendant] addressed [T.B.], and in that regard had oral contact with [T.B.]"
meant that he violated the terms of the TRO.
After hearing testimony, the judge applied the correct law and found
defendant guilty beyond a reasonable doubt due to his conduct in speaking to
T.B.. The judge summarized by stating "[d]efendant is found guilty of contempt
on the basis that this [c]ourt is firmly convinced that [d]efendant . . . had oral
contact with the alleged victim. That is the sole and exclusive basis for the
[c]ourt's finding." We conclude that there exists sufficient credible evidence in
the record to support the judge's findings, which we will not disturb.
As to defendant's contention that he was denied a fair trial, we conclude
that it is without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
A-4778-18
11