By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Elder Abuse Attorney
In our last part of this series, I consider the findings made to determine if there was harassment and/or simple assault, either of which was sufficient to determine if a restraining order was warranted. Harassment requires one of the following three events to have occurred under N.J.S.A. 2C:33-4:
A person commits an . . . offense if, with purpose to harass another, he:
- Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
- Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
- Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
The defendant clearly engaged in coarse language and alarming contact through his emails, text messages, and verbal threats in the hospital. The question the court wrestled here was the question of intent of the defendant to harass the plaintiff. With the text messages and emails admitted into evidence, the court found the defendant was frustrated that the plaintiff ignored his phone calls and the defendant used coarse and threatening language to express his anger. However, the court did not find that these messages alone were sufficient to show the defendant had a purpose to harass the plaintiff. There were even some threats made after the defendant accused the plaintiff of malfeasance in taking care of the mother’s, which the court held was not offensive but done to respond to what the defendant thought was an improper course of action to take. The court therefore concluded harassment could not be found.
However, simple assault is a different matter. The defendant repeatedly shoving the plaintiff, as the plaintiff testified and the defendant admitted, during their argument shows a desire to inflict physical harm upon the plaintiff, and the court therefore concluded the predicate act of assault was sufficiently provided for by the evidence. But there was no prior history of domestic violence, as explained earlier, nor any evidence to demonstrate a pattern of abusive and controlling behavior by the defendant over the plaintiff, which is required under Silver to warrant the entrance of an order, so the court held no restraining order could be granted.
This is an important case because it breaks down the requirements of domestic violence, no matter if it is parent-child, sibling-sibling, or elderly-caretaker. The victim must have had something done to him or her, and be in fear of danger or abuse from the other person. Prior acts do not come in unless they are between the plaintiff and defendant, lest they be subject to the evidentiary rules, which makes them unlikely to be admitted as they tend to show a propensity to commit domestic violence and could be considered too prejudicially against the defendant. Intent to commit the crime is also critical to warrant a finding of a predicate act. This case will affect how domestic violence cases are conducted by the trial court, dictating the specific findings that will need to be made for a restraining order to be entered properly.
To discuss your NJ Elder Abuse matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.