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ALIX PEREZ, Defendant/Appellant v. .WILLIAMS DAVION Plaintiff/Respondent |
IN THE SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION DOCKET NO. ____________ CIVIL ACTION ON APPEAL FROM SUPERIOR COURT OF UNION COUNT- FAMILY PART. TRIAL COURT CASE NO. FV-20-00098622 SAT BELOW The Honorable Frederic R. McDaniel |
| BRIEF AND APPENDIX ON BEHALF OF
PLAINTIFF/APPELLANT |
TABLE OF CONTENTS
TABLE OF JUDGMENTS AND RULINGS……………………………………ii
TABLE OF APPENDIX…………………………………………………………iii
TABLE OF AUTHORITIES………………………………………………………iv
TABLE OF RULES…………………………………………….…………………v
Preliminary Statement…………………………………………………………….1
Procedural History and Statement of Facts……………………………………….1
Argument………………………………………………………………………….2
Appellant was inadequately represented………………………………………….2
The Trial Court Abused its Discretion……………………………………………4
Conclusion…………………………………………………………………………5
CERTIFICATE OF SERVICE……………………………………………………7
APPENDIX……………………………………………………………………….8
FIRST RESTRAINING ORDER…………………………………….……………8
ORDER DENYING THE APPELLANT’S MOTION FOR RECONSIDERATION……………………………………………………………8
EXHIBIT 1………………………………………………………………..………a
EXHIBIT 2…………………………………………………………………..……f
EXHIBIT 3………………………………………………………………..………h
EXHIBIT 4………………………………………………………………………..p
EXHIBIT 5………………………………………………………………………..q
TABLE OF JUDGMENTS, ORDERS, AND RULINGS
- Final Restraining Order ……………………………………………….…..…………. 8
- Order Denying Appellant’s Motion for Reconsideration …………….……..………. 12
TABLE OF APPENDIX
- Exhibit 1- Respondent’s Domestic Violence Complaint and Request for Temporary Restraining Order……………………………………………………………………… a
- Exhibit 2- Robert Malcic’s witness statement…………………………………………. f
- Exhibit 3- Appellant’s Motion to Reconsider…………………………………………. h
- Exhibit 4- Ms. Allen’s email to the Court …………………………………………….. p
- Exhibit 5- Appellant’s text to Ms. Allen ………………………………………………. q
TABLE OF AUTHORITIES
Cases
A.S. Goldstein Co. v. Bloomfield Plaza, 272 N.J. Super. 59, 66 (App.Div.), certif. denied,137 N.J. 309 (1994) 3
Ernest Smith v. Malamut & Associates LLC., Case No. HUD-L-000261-21 1
H.E.S. v J.C.S., 175 NJ 309, 321-23 815. A 2d. 425 (2003)…………………………………..…..4
Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) 4
J.F. v B.K., 308 NJ. Super. 387, 391-92, 706 A. 2d 203 (App. Div 1998)………………………………………………………………………………………………………………………4
L.D. v. W.D., 327 N.J. Super. 1, 4, 742 A.2d 588 (App. Div. 1999)…………………………………………………………………………………………………………………….4
McKeown-Brand v. Trump Castle Hotel Casino, 132 N.J. 546, 559, 626 A.2d 425 (1993)……………………………………………………………………………………………..4
State v. Allah, 170 N.J. 269, 283 (2002)………………………………………………………….3
State v. Carter, 91 N.J. 86, 106 (1982); 4
State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010) 4
State v. Morton, 155 N.J. 383, 453 (1998), 4
Strickland v. Washington, 466 U.S. 668 (1984)…………………………………………………………………………………………………………………….3
United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657…………………………………………………………………………………………………3
Williams Davion v. Alix Perez, Case No. FV-20-00098622…………………………………………………………………………………….…….1
Rules
N.J.R.E. 401 2
PRELIMINARY STATEMENT
This appeal arises from the Trial Court’s decision in Williams Davion v. Alix Perez, Case No. FV-20-00098622, where the learned Judge Honorable Frederic R. McDaniel entered an Order granting Respondent’s Domestic Violence Civil Complaint, and issued a Temporary Restraining Order in that regard. The said Court further denied Appellant’s Motion for Reconsideration. In this appeal, the Appellant argues, inter alia, that the judge got the facts wrong. Appellant further contends that the judge’s findings was not complete insofar as he did not hear from Appellant’s two witnesses and he only reviewed two of the 14 pieces of evidence that Appellant’s attorney submitted to the court.
PROCEDURAL HISTORY AND STATEMENT OF FACTS
Appellee filed a Domestic Violence Complaint and a request for a Temporary Restraining Order on or about December 23, 2021. In the said Complaint, the Appellee alleged that the Appellant endangered his life and that on December 20, 2021, the Appellant subjected Appellee to yelling, profanity, name calling, and threatened to hit Appellant. The Appellee further alleged that the Appellant has a history of domestic violence where the Appellant previously slapped Appellee on his body, and threatened to hit Appellee. (Exhibit 1).
The matter was heard before the Trial Court, where both parties presented their case. On or about January 26, 2022, the Appellant’s Attorney submitted 14 pieces of evidence, and two witnesses to the Court for Appellant’s defense. The Court allowed the Appellee to submit testimony that was not listed in the Temporary Restraining Order or presented to the Appellant. However, the Judge only considered two of Appellant’s 14 pieces of evidence. The Judge also failed to consider the Appellant’s two witnesses, whose testimonies would show that the Appellant did not commit domestic violence. (Exhibit 2). The Judge also kept interrupting and yelling at the Appellant during trial. As a result, the Appellant could not answer all questions fully, hence resulting to the credibility finding against the Appellant.
On or about March 2, 2022, the Court issued an Order finding the Appellant liable for domestic violence. Accordingly, the Court issued a Temporary Restraining Order against Appellant.
On or about March 3, 2022, the Appellant filed a Motion to Reconsider where the Appellant raised concerns that the Court did not consider the Appellant’s evidence and the 2 witnesses. (Exhibit 3).
On or about [ENTER DATE], the Trial Court issued an Order denying Appellant’s Motion to Reconsider.
ARGUMENT
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The Appellant was inadequately represented
To prove ineffective assistance, a defendant must show (1) that their trial lawyer’s performance fell below an “objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668 (1984).
In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-part test of showing both that counsel’s performance was seriously deficient and that the defect in performance prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); State v. Allah, 170 N.J. 269, 283 (2002).
In the instant action, Ms. Allen, the Appellant’s attorney, failed to enter all pieces of evidence to the Court. Notably, on or about March 1, 2022, the Appellant had about 17 pieces of evidence to submit to the e-court. However, Ms. Allen only entered 3 pieces of evidence. (Tr. P. 69, lines 5-19); see also (Exhibit 4- Ms. Allen’s email to the Court). The omitted evidence was exculpatory and would have greatly aided Appellant’s defense.
On or about March 1, 2022, Ms. Allen stated that two witness, James Perry and Robert Malic, would testify for the Appellant. Further, at the beginning of the TRO hearing, she stated that the defense was “prepared and ready”. (Tr. p.6, lines 9-12). However, Ms. Allen rested the case without calling the aforementioned witnesses. Appellant avers that the witnesses would have shown that Appellant never did any act that amounts to domestic violence on December 20th.
Ms. Allen also erroneously called Appellant to testify, before his witnesses. (Exhibit 5- Appellant’s text to Ms. Allen). For this reason, the Judge questioned the Appellant’s credibility, thus casting aspersions on Appellant’s allegations.
Further, Ms. Allen did not ask the court for leave to amend the TRO following the discovery of new evidence. Appellant avers that being granted leave to amend would not only have helped Appellant develop stronger arguments, but would have also helped Appellant introduce more witnesses in the case.
Ms. Allen also failed to object to the additional and/or new evidence that the Appellee was allowed to give.
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The Trial Court Abused its Discretion
Appellant avers that there was insufficient evidence to find that Appellant had committed domestic violence, and that the Trial Court abused its discretion by failing to consider inapplicable evidence from the Appellee.
“[T]he decision of the trial court cannot stand if the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted.” State v. Carter, 91 N.J. 86, 106 (1982); see also State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
At a minimum, due process requires that a party in a judicial hearing receive `notice defining the issues and an adequate opportunity to prepare and respond.'” H.E.S. v. J.C.S., 175 N.J. 309, 321-23, 815 A.2d 405 (2003) (quoting McKeown-Brand v. Trump Castle Hotel Casino, 132 N.J. 546, 559, 626 A.2d 425 (1993)). More particularly, due process forbids the trial court “`to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.'” Id. at 322, 815 A.2d 405 (quoting J.F. v. B.K., 308 N.J. Super. 387, 391-92, 706 A.2d 203 (App. Div. 1998)); see L.D. v. W.D., 327 N.J. Super. 1, 4, 742 A.2d 588 (App. Div. 1999) (explaining that “it is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint.”).
In the instant action, during cross examination, the Trial Court judge allowed the Appellee to present evidence that was not provided to the Appellant. (Tr. P. 37, lines 6-25; p. 38, lines 1-25; p. 39, lines 1-25; p. 40, lines 1-25; and p. 41, lines 1-25). The Judge also allowed the Appellee to present testimony that was not mentioned in the TRO. (Tr p. 30, lines 6-25; p. 31, lines 1-25; p. 32, lines 1-8).
The judge also failed to require the Appellee to file an amended domestic violence complaint so that Appellant may have proper notice of the additional allegations of domestic violence. Appellant further asserts that the judge erred when it determined credibility even before the case was over. (Tr. P. 62, lines 1-11; p. 78, lines 1-3).
Appellant avers that the court abused its discretion when the judge denied Appellant the chance to provide a context of the alleged acts of domestic violence complained of by Appellee. During the hearing, the judge kept interrupting the Appellant and challenging the veracity of his answers. The Appellant had to be given chance to state his position since the TRO was issued based on credibility determinations.
The Appellant further asserts that his due process rights were violated when the judge allowed the Appellee to present conflicting accounts of her alleged altercation with Appellant. In the TRO complaint, the Appellee alleged that Appellant punched and slapped him. However, during testimony, the Appellee alleged that the Appellee grabbed him by his hair and dragged him down the steps and continued to beat him.
CONCLUSION
For the reasons stated above, Appellant respectfully requests that this Honorable Court enter an Order:
- Reversing the Trial Court’s Judgment;
- Granting any other Order that this Honorable Court deems just and fit.
Dated:
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a copy of the foregoing brief on counsel for the Respondent by depositing a copy, contained in a first-class postage-paid wrapper or envelope, at an office of the United States Postal Service, addressed as follows:
[ENTER RESPONDENT’S ADDRESS]
APPENDIX
Final Restraining Order
Order denying Appellant’s Motion for Reconsideration
(Attach the Order)
Exhibit 1- Respondent’s Domestic Violence Complaint and Request for Temporary Restraining Order.
Exhibit 2- Robert Malcic’s witness statement
Exhibit 3- Appellant’s Motion to Reconsider
Exhibit 4- Ms. Allen’s email to the Court
Exhibit 5- Appellant’s text to Ms. Allen
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