STATE OF NEW JERSEY VS. BARTHOLOMEW P. MCINERNEY(08-10-2334, MIDDLESEX COUNTY AND STATEWIDE)
A-0545-16T4
| N.J. Super. Ct. App. Div. | Jun 9, 2017Background
- Plaintiff (R.G.) and defendant (R.G.) are adult brothers; defendant lived in New York for ~36 years while plaintiff and sister cared for elderly parents in New Jersey. Dispute began when plaintiff placed their mother in a skilled facility; defendant opposed the move and exchanged heated emails/texts with plaintiff.
- Defendant sent coarse, threatening, and accusatory texts and emails; plaintiff produced some of those messages at a final hearing.
- On September 5, 2015, a confrontation at the facility escalated; defendant shoved plaintiff multiple times and plaintiff fell, leading to a simple-assault charge.
- Family Part judge entered a final domestic violence restraining order (DVR) concluding defendant committed harassment and simple assault and that plaintiff faced immediate danger.
- Defendant appealed, arguing lack of Family Part jurisdiction, improper admission of evidence regarding a prior incident involving defendant’s son, and insufficiency of evidence to satisfy Silver’s two-prong test for a final DVR.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under the Prevention of Domestic Violence Act | The amended statute covers persons who "was at any time a household member," bringing adult siblings within jurisdiction | Former-relationship of decades ago does not create a domestic-relationship victim status | Court: Jurisdiction proper under 2015 amendment to N.J.S.A. 2C:25-19(d) (statute broadened coverage) |
| Admissibility of testimony about prior incident (defendant & son) | Testimony was relevant as prior history of domestic violence and existence of out-of-state protection orders | Evidence was hearsay, character-bad-acts evidence, and no Cofield analysis; inadmissible | Court: Admission was error; testimony was inadmissible hearsay and 404(b)-type evidence improperly used; reversal warranted |
| Whether texts/emails constituted criminal harassment | Plaintiff: texts and emails (vulgar threats, promises to "tear family apart") show intent to harass and support harassment predicate | Defendant: messages were reactionary, contextual (response to plaintiff’s communications), and lacked proof of intent to harass | Court: Insufficient evidence defendant acted with requisite purpose to harass; vulgar language alone insufficient; harassment finding reversed |
| Whether a final DVR was necessary under Silver (immediate danger/prevent further abuse) | Plaintiff: escalation, communications, and alleged prior acts indicate immediate danger | Defendant: dispute was an intense family conflict, not a pattern of abuse/controlling behavior; key evidence improperly admitted | Court: After excluding improper evidence, record fails Silver’s second prong; final DVR not supported; order reversed |
Key Cases Cited
- Cesare v. Cesare, 154 N.J. 394 (N.J. 1998) (standard of appellate review and liberally construing Act to protect victims)
- J.D. v. M.D.F., 207 N.J. 458 (N.J. 2011) (plaintiff's subjective fear insufficient; must prove improper purpose for harassment)
- Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) (two-prong test for final restraining order: predicate act plus immediate danger based on history)
- Tribuzio v. Roder, 356 N.J. Super. 590 (App. Div. 2003) (assessing whether past domestic relationship provides opportunity for abusive/control behavior)
- Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995) (warning against treating ordinary family disputes as domestic violence)
- State v. Cofield, 127 N.J. 328 (N.J. 1992) (framework for admissibility of other-crimes evidence under Rule 404(b))
- State v. Castagna, 387 N.J. Super. 598 (App. Div. 2006) (purpose to harass is critical and may be inferred from circumstances)