NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6126-05T16126-05T1

DONNA M. AMBROSIO RUGLIO,

Plaintiff-Respondent,

v.

RICHARD RUGLIO,

Defendant-Appellant.

____________________________________

Argued September 25, 2007 - Decided

Before Judges Fuentes and Grall.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

Docket No. FV-14-1178-06.

Michael R. Ascher argued the cause for appellant

(Einhorn, Harris, Ascher, Barbarito, Frost &

Ironson, attorneys; Mr. Ascher, on the brief).

Michael E. Rodgers argued the cause for respondent.

PER CURIAM

Defendant Richard Ruglio appeals from a final restraining order entered by the Family Part pursuant to the Prevention of Domestic Violence Act. The trial court found that defendant committed the predicate offense of harassment based on defendant's use of the phrase "you'll be sorry," combined with the parties' history of domestic violence.

Defendant raises three points on appeal. He argues that the trial court committed reversible error because: (1) the evidence presented at trial does not support the finding that he intended to harass, threaten, or scare plaintiff when he said "you'll be sorry;" (2) the court erred when it relied on the parties' history of domestic violence to determine whether the incident at issue constituted harassment; and (3) the court abused its discretion in interrupting counsels' presentation of their cases and in allowing plaintiff's counsel to use leading questions on direct.

After reviewing the record before us, and in light of prevailing legal standards, we reject these arguments and affirm.

We gather the following facts from the evidence presented to the court over three non-sequential trial days. The parties had been married for five years as of the time the domestic violence complaint was filed. They have a four-year-old son, and have resided in defendant's home for the past six years.

On Memorial Day weekend of 2006, defendant was working on the landscaping of the parties' backyard, including placing bricks around large rocks already present in the yard, when, according to plaintiff, she expressed concern to defendant about the safety of the newly laid bricks because their son liked to play on the large rocks. She requested that defendant move the bricks. In response, plaintiff testified that defendant said "shut up, bitch," "leave me alone," "I can do what I want, it's my backyard," "get lost," and "if you don't like it, leave." Wanting to avoid a confrontation, plaintiff went back into the house.

The next day, while defendant was at work, plaintiff removed the new bricks. When defendant returned home that evening, plaintiff could tell that he was angry about the moved bricks. After doing other things upstairs, defendant went into the backyard. Once in the yard, he started replacing the bricks around the large rocks. A short while later, while inside the house, plaintiff heard her four-year-old son's "blood curdling" scream from the backyard. When she ran into the backyard to investigate, the boy said "my daddy hit me;" when she asked the child what he meant by this, he stated: "he punched me in the arms and hit me on my hand."

When plaintiff then asked the defendant what was going on, he replied: "mind your own business," "get out of here," and "you'll be sorry." Plaintiff testified that defendant was "very angry," "beat red," and "veins were coming out [of his neck]" when he made the statement "you'll be sorry." She interpreted the statement "you'll be sorry" to mean that she was going to get hit next.

Immediately after this exchange, plaintiff removed the boy from the backyard; drove to the police station with him to report the incident and obtain a temporary restraining order (TRO) based on harassment. She did not tell defendant where she was going or what her intentions were.

At trial, plaintiff testified to four other instances of domestic violence during her marriage. In the context of this history, she believed that defendant was going to hit her when he made the statement "you'll be sorry" on May 30, 2006. She testified to four specific events.

In January 2004, plaintiff confronted defendant about a diary he kept that detailed everything that happened in their marriage. She alleged that the diary entries stated the opposite of what had actually occurred between her and her husband. When she confronted him with this contradiction, defendant became upset, grabbed her by the arm, shook her, threw her on the bed, and tried to choke her.

The second incident occurred in December 2004. Defendant had been away for a day on a hunting trip with one of his brothers. He returned home from the trip around 8:00 or 9:00 p.m., while his brother had arrived at his home at around 4:00 p.m. She asked defendant why he had arrived four to five hours later than his brother. Defendant responded that it was none of her business. A verbal argument ensued. According to plaintiff, this quickly escalated into a physical assault when defendant grabbed her by the arm, put her on the bed, and started to choke her with both of his hands and by putting his elbow on her throat. While on top of her, defendant continued to curse at her, saying "fuck you, bitch" and "hope you die, cunt." She was able to free herself and ran from the room.

The third incident took place in May 2005. Plaintiff was lying on the couch at home when defendant laid down on the opposite side of the couch and put his legs on top of her legs. She told defendant that he was hurting her and that he should move his legs. Defendant ignored her and lifted his leg and "slammed" his right foot onto her shin, leaving a bruise.

The fourth and final incident occurred in February 2006. After returning home from attending church with her son, plaintiff noticed that her desk had been "rifled through" and her mail had been opened. She confronted defendant about it, but he denied any involvement with it, and responded to her questions by saying: "shut up, bitch" "get out of here" "shut up, asshole," and "I could do whatever I want, this is my house." In a moment of anger, plaintiff hit her fist down on the desk defendant was sitting at, causing the computer keyboard to come off the desk.

Defendant rose from his chair, grabbed plaintiff by the neck with both of his hands, carried her into their son's bedroom, started shaking her head and banging it into the wall, and punching her arm. During this struggle, plaintiff testified that she was trying to push defendant off of her, and in doing so, scratched his face. Defendant than slammed her against the wall, after which he released his hold around her neck and threw her to the ground. She took her son and ran to a neighbor's house. A few days later, a neighbor took photographs of her injuries.

Plaintiff's god-mother, Barbara Brigliadoro testified that she saw marks on plaintiff's neck following the February 2006, incident. She testified that it looked like someone had grabbed plaintiff's neck based on the "red and white zig zags" on her neck.

A trial judge's findings of fact are not to be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Furthermore, deference is "especially appropriate" when the evidence is "largely testimonial" and deals with questions of credibility. Id. Here, we are satisfied that trial court's factual findings are well-supported by the record, and worthy of deference.

Against these facts, the trial court found that defendant had committed the predicate offense of harassment when he told plaintiff, in apparent angry tone, "you'll be sorry." We agree. Under N.J.S.A. 2C:33-4, a person is guilty of harassment if, with the purpose to harass, he/she makes or causes to be made, a communication or communications in a manner likely to cause annoyance or alarm. State v. Hoffman, 149 N.J. 564, 576 (1997). Here, the trial court appropriately analyzed defendant's statement within the necessary context. Cesare, supra, 154 N.J. at 414.

We are also satisfied that the trial court properly admitted and considered the parties' history of domestic violence. N.J.S.A 2C:25-29(a)(1); Cesare, supra, 154 N.J. at 403. A trial court must consider the "totality of the circumstances to determine whether the harassment statute has been violated" and part of this consideration is whether "a reasonable person in [the plaintiff's] situation would have believed the defendant's threat." Id. The trial court also properly considered defendant's prior conduct under N.J.R.E. 404(b), because it is relevant to determining defendant's intent.

Defendant's argument with respect to the trial judge's questions and general courtroom management lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

Plaintiff has two other sons from a previous marriage. These children are not at issue in this case.

Defendant corroborated this part of plaintiff's testimony. He testified that when he left the house a short time after the incident, he noticed plaintiff's car parked outside the local police station. He went inside and confirmed that his wife was filing a complaint against him, citing the incident in the yard.

The trial court admitted into evidence photographs of plaintiff taken on the night of the assault, and a few days thereafter. These photographs depict plaintiff's injuries.

The photographs taken of plaintiff's injuries from February 2006 were also admitted at trial. They show injuries on plaintiff's upper left arm and on the under part of her right arm.

(continued)

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A-6126-05T1

RECORD IMPOUNDED

November 14, 2007