Plaintiff-man and defendant-woman were in a prior romantic relationship. After the relationship soured, both parties obtained Temporary Restraining Orders (TROs) against one another. After a trial, the court granted defendant a Final Restraining Order (FRO); while plaintiff's TRO was dismissed.
During the relationship, defendant set up a location tracking app on plaintiff's phone. After she obtained the FRO against him, she often tracked his location through the app, and then filed 55 police reports stating plaintiff had violated the FRO.
On multiple occasions he was approached by police in connection with defendant and on one occasion he was charged and ultimately found guilty of violating the FRO.
Subsequently, the guy discovered the tracking app on his phone and figured out the ruse.
He filed an application in New Jersey Superior Court in Ocean County seeking a TRO, alleging the predicate acts of stalking and harassment. At the trial, he testified he lives in fear of being followed.
After plaintiff rested his case, defendant requested the court dismiss the TRO as "a specious, nearly frivolous application."
The trial court agreed with her, finding that the plaintiff had not proven a prima facie case of either the predicate act of harassment or stalking.
The trial judge discussed the act of harassment as defined under N.J.S.A. 2C:33-4 and reasoned: There's no history—there's no repeated committed acts with the purpose to alarm. At the most, there's an application that the defendant put on his phone. . . . I just don't know how that's repeated committed acts with purpose to do anything.
The court also found plaintiff's testimony did not establish any proof of the predicate offense of stalking under N.J.S.A. 2C:12-10. The trial judge explained: There's no proof. I don't know. He has fears . . . she'll do anything to ruin his life. Fears of being followed, but he doesn't offer the court . . . anything showing that he was ever followed. He said there was only one interaction. . . . So there's just no . . . proof here that there's repeatedly maintaining a visual or physical proximity to a person.
The court dismissed the TRO on October 17, 2023.
The man appealed to the New Jersey Appellate Division, arguing that the trial court erred in granting defendant's motion for dismissal.
In a written ruling released today, Appellate Judges Currier and Marczyk agreed.
A trial court's determination of whether an FRO should be granted is governed by a two-step inquiry set forth in Silver v. Silver. Under the first step, a trial court must determine, by a preponderance of the evidence, whether one or more predicate acts were committed by defendant against plaintiff. Second, the trial court asks whether an FRO is necessary to protect plaintiff from immediate danger or further acts of domestic violence.
Plaintiff asserts he presented sufficient evidence to support the predicate acts of stalking and harassment.
Stalking is a predicate act of domestic violence under N.J.S.A. 2C:25-19(a), as defined in N.J.S.A. 2C:12-10, which provides, in pertinent part: a. As used in this act: (1) "Course of conduct" means repeatedly maintaining a visual or physical proximity to a person . . . or repeatedly conveying, or causing to be conveyed, verbal or written threat or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person. (2) "Repeatedly" means on two or more occasions. . . . . b. A person is guilty of stalking . . . if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress. [N.J.S.A. 2C:12-10.]
The statute is not limited by section (b) to a "stalker-defendant who purposefully or knowingly intended that his course of conduct would cause a reasonable victim to fear bodily injury or death." State v. Gandhi. Instead, the statute "prohibits a defendant from purposefully or knowingly engaging in a course of conduct, as defined in N.J.S.A. 2C:12-10(a)(1), that would cause such fear in an objectively reasonable person."
Here, the trial judge determined, at the close of plaintiff's case, that plaintiff did not establish defendant engaged in repeated conduct and that plaintiff's fears were not objectively reasonable.
However, in giving all reasonable inferences to plaintiff, reasonable minds could differ whether defendant was using the app to track plaintiff, whether defendant filed police reports attempting to cause plaintiff to violate the FRO, and whether defendant instigated plaintiff's FRO violation. Plaintiff's testimony regarding defendant's alleged conduct could constitute repeated behavior: defendant's continuous use of the app and the filing of approximately fifty-five police reports. Plaintiff expressed his fear for his wellbeing several times, reiterating the serious consequences resulting from a violation of an FRO. Therefore, plaintiff presented sufficient evidence to withstand a motion for an involuntary dismissal.
For the same reasons, the court erred in concluding plaintiff did not establish the predicate act of harassment. Under N.J.S.A. 2C:33-4(c), harassment is defined as: "[A] person commits a petty disorderly persons offense if, with purpose to harass another, he engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person."
Our Supreme Court has stated a violation of subsection (c) "requires proof of a course of conduct . . . that is alarming or it may be a series of repeated acts if done with the purpose 'to alarm or seriously annoy' the intended victim." J.D. v. M.D.F. "Seriously annoy" is defined as meaning "to weary, worry, trouble, or offend."
Plaintiff's testimony cited above, if taken as true and given all reasonable inferences, established that defendant tracked plaintiff's location, filed numerous police reports attempting to cause him to violate the FRO, and confronted him on one occasion which resulted in a violation of the FRO. Again, reasonable minds may differ and find plaintiff established the predicate act of harassment.
We reverse the order dismissing the FRO and remand to the trial court for a new trial. After hearing all of the evidence presented by both parties, the court must analyze the Silver prongs and determine whether plaintiff is entitled to an FRO.
The winning attorney is Richard A. Amdur, Jr. Esq.
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