SHAIFFU SHARMA v. ADITYA SHARMA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3896-06T13896-06T1

SHAIFFU SHARMA,

Plaintiff-Respondent,

v.

ADITYA SHARMA,

Defendant-Appellant.

_______________________________________

 

Argued March 4, 2008 - Decided

Before Judges Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FV-09-003439-06.

Philip Nettl argued the cause for appellant (Benedict and Altman, attorneys; Mr. Nettl, on the brief).

David F. Salvaggio argued the cause for respondent (Salvaggio Garibian, L.L.C., attorneys; Mr. Salvaggio and Jill D. Turkish, on the brief).

PER CURIAM

In this domestic violence case, defendant Aditya Sharma appeals from the restraining order entered against him on November 29, 2006, thereafter amended on March 1, 2007. After careful review of the record, we find no harmful error in either the conduct of plaintiff's counsel or in the trial court's evidentiary rulings, and therefore we affirm.

Defendant, a native of India residing in the United States on a temporary visa, married plaintiff Shaiffu Sharma, also a native of India, in India on November 28, 2005, in accordance with an arranged marriage. On May 28, 2006, after having lived with defendant in Jersey City for six months, plaintiff filed a domestic violence action against defendant in the Jersey City Municipal Court and obtained a temporary restraining order against him. The complaint alleged that defendant had committed domestic violence against plaintiff by striking her in the forearm with a closed fist on May 28, 2006, causing redness and swelling. The complaint also alleged prior domestic violence, namely, that defendant had hit plaintiff in the face one month earlier. Defendant disputed these contentions, denying that any domestic violence had taken place, although he conceded that the parties argued.

A bench trial on the domestic violence complaint was conducted in the Superior Court on June 21, August 15, September 20, October 4, and November 1, 2006. Both parties were represented by counsel in the proceedings. The trial judge placed her oral decision on the record on November 29, 2006. On the question of credibility, the trial judge accepted plaintiff's version of events.

The trial judge found that defendant had assaulted plaintiff on May 28, 2006. She noted that the swelling and redness of plaintiff's forearm witnessed by two Jersey City police officers corroborated plaintiff's testimony that she had been assaulted that day. She made this finding although the swelling and redness was not observable in the poor quality Polaroid taken at the police station.

The trial judge also found that defendant had struck plaintiff in the face in March 2006, causing her to bleed around the nose. The trial court stated that plaintiff's testimony about this incident was corroborated by the credible testimony of a neighbor, Kathleen Burke. The trial court also found that defendant had smashed with a rolling pin the computer that plaintiff used to look for employment.

Due to the fact that plaintiff had no job, no money, and a limited ability to pursue employment due to her immigration status, the trial court found that plaintiff was "under the full control of the defendant" and that she had initially feared going to the authorities. The trial court also observed that the email communications between the parties that were placed into evidence showed "a troubled marriage and an unstable relationship."

The trial court found that plaintiff had proven her allegations of domestic violence by a preponderance of the credible evidence and that the entry of a restraining order was necessary in accordance with N.J.S.A. 2C:25-29(a). While plaintiff's counsel sought $19,650 in attorney fees and $2,200 in costs, the trial court allowed only $8,000 in attorney fees and $1,103.37 in costs, because the proceedings had been unnecessarily protracted due to the unsubstantiated allegations and unnecessary issues raised by plaintiff.

On appeal, defendant contends that the egregious conduct of plaintiff's counsel denied him the opportunity for a fair trial, challenges various evidentiary rulings made by the trial court, and contends that the verdict was against the weight of the evidence.

Our review is limited, since we may not overturn the factual findings and legal conclusions of the trial judges unless we are "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In cases in which the evidence is largely testimonial, we must give special deference to the findings of fact of the trial judges, since they are better able to determine the credibility of the witnesses due to their opportunity to hear and observe the witnesses. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Further, we must accord deference to the family judges' fact-findings due to their special expertise in this kind of litigation. Id. at 412-13.

Defendant argues that plaintiff's counsel's egregious conduct denied him a fair trial, noting such matters as her reference to CDs that had been ruled inadmissible, her improper insertion of inadmissible material in her cross-examination questions, and her inaccurate recounting of testimony in her written summation. Much of the case law relied upon by defense counsel in support of this argument deals with jury trials and is not germane to bench trials. A judge by training and experience is capable of setting aside inadmissible material from the record when evaluating the evidence and reaching a decision. State v. Kern, 325 N.J. Super. 435, 444 (App. Div. 1999). We note, for example, that the prejudicial CD information ruled inadmissible which plaintiff's counsel nevertheless interjected in her written summation was expressly rejected and not considered by the trial court. We find no basis to overturn the result here based on plaintiff's counsel's conduct.

We agree with defense counsel that the trial court improperly admitted into evidence anonymous statements about defendant written in his college yearbook. These statements were hearsay statements made by unidentified declarants and were introduced to show defendant in a negative light. While plaintiff argues that these statements were admissible to show defendant's reputation as to character under N.J.R.E. 803(c) (21), no foundation was laid for their admissibility. See Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 310-12 (2006) (requiring the establishment of "the relationship of both the subject and the witness to the relevant community and the existence of an expressed community opinion regarding a trait of the subject's character"). Although improperly admitted, we note that some of the statements are positive and when read as a whole, the entries have a teasing quality to them so that no reasonable reader would take them too seriously. As a result, any error here is harmless.

The trial court also erred in allowing plaintiff's statement in the police report to be admitted into evidence. That statement, which described the assault by her husband, should have been redacted. The police report, a hearsay document, was properly admitted as an exception to the hearsay rule, as a business record under N.J.R.E. 803(c)(6). However, plaintiff's statement contained in the police report was hearsay, and admissible only if it independently fell within an exception to the hearsay rule. N.J.R.E. 805. Since plaintiff's consistent statement in the police report does not fall within an exception to the hearsay rule, it should have been redacted from the document. See Sas v. Strelecki, 110 N.J. Super. 14, 22-23 (App. Div. 1970) (holding that the consistent statement of plaintiff in a police report was not admissible because there was no attack on plaintiff's credibility based on a charge of recent fabrication). However, since the statement in the police report essentially repeats the description of the assault that plaintiff gave at trial, the admission of that statement was harmless error in the context of this case.

The trial court also erred in denying defendant's request to admit into evidence the budget document which plaintiff testified that she prepared. Since the statement was made by a party opponent and was being offered against that party opponent, it was admissible under N.J.R.E. 803(b)(1). However, the relevant content of that document was in evidence through plaintiff's testimony, so any error here was harmless.

In the context of all of the evidence in the case, and the substantial evidence in support of plaintiff's claim, these minor evidentiary errors were not capable of producing an unjust result. The record, including the testimony of plaintiff, which the trial court found believable and which was corroborated in part by the independent testimony of two police officers and a neighbor, provided sufficient credible evidence to support the trial court's finding of domestic violence.

Affirmed.

We note that the statement fails to fall within the exception from the hearsay rule set forth in N.J.R.E. 803(a)(2) for prior consistent statements of a witness. The statement also does not fall within the exception from the hearsay rule set forth in N.J.R.E. 803(b) for statements by a party opponent, because the statement was not offered against the declarant, but rather was offered by the declarant.

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A-3896-06T1

RECORD IMPOUNDED

April 4, 2008