RECORD IMPOUNDED 

 

SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2511-21 

E.S.N.,1

 Plaintiff-Respondent, 

v.

L.R.B., 

 Defendant-Appellant. 

___________________________

Submitted November 29, 2023 – Decided December 13, 2023 

Before Judges Firko and Susswein. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Gloucester County, 

Docket No. FV-08-1017-22.

Tonacchio, Spina & Compitello, attorneys for appellant 

(Stephen R. Cappetta, on the brief). 

Respondent has not filed a brief. 

PER CURIAM 

1

 We use initials to protect the privacy of the parties and the confidentiality of 

these proceedings. R. 1:38-3(d)(10). 

NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-2511-21

 Defendant L.R.B. appeals from a March 17, 2022 final restraining order 

(FRO) entered in favor of his former live-in paramour, plaintiff E.S.N., pursuant 

to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, 

based on the predicate act of assault, N.J.S.A. 2C:12-1(a). On appeal, defendant 

contends there is insufficient evidence supporting the judge's finding he 

committed the predicate act of assault, and the judge erred by concluding an 

FRO is necessary to protect plaintiff from future acts of domestic violence. We 

disagree and affirm. 

I.

 The parties began dating in May 2021 and resided together. On February 

13, 2022, which was Super Bowl Sunday, plaintiff alleged in her initial domestic 

violence complaint that she was emptying her bag, which contained defendant's 

clothing. He stated, "that's my f****** bag," grabbed plaintiff's left hand or 

wrist, and pulled her away from the bag. Plaintiff alleged defendant threatened 

to shut off her phone line if she attempted to contact the police about the 
3 A-2511-21

incident. In her initial complaint, plaintiff also alleged there was a prior history 

of domestic violence between the parties.2

 At the ensuing trial, which commenced on February 24, 2022, both parties 

were self-represented. Plaintiff testified the parties resided together for eight 

months. Plaintiff explained she has post-traumatic stress disorder (PTSD) and 

is under the care of a psychologist and a psychiatrist. She testified she has 

congestive heart failure requiring medications. She also takes medications for 

other unspecified conditions. 

Plaintiff testified that on the day of the incident, February 13, 2022, after 

defendant kept her up all night, she wanted a cup of coffee, but defendant poured 

a cup for himself "out of spite" instead, leaving none for her. According to 

plaintiff, defendant had been drinking brandy. She went to sleep on the floor. 

As plaintiff proceeded to make herself a cup of coffee, she testified defendant 

"start[ed] with his mouth again," and after she told him to stop or else she would 

call the police, he "punched" her on the side of her face. Plaintiff testified that 

after punching her, defendant stated, "now you have a f****** reason to call the 

police." She testified that after falling down backwards over a space heater, she 

2

 Docket No. FV-08-0646. The prior complaint mentioned in plaintiff's initial 

domestic violence complaint is not contained in the appendix. The judge

indicated the prior complaint was dismissed by plaintiff. 
4 A-2511-21

ran into the bathroom, became "frozen," and called 9-1-1. The punch to the face 

incident is not referenced in the initial complaint. Defendant did not object to 

plaintiff's testimony regarding the assault at trial. 

 Plaintiff testified that when the police arrived, they "demanded" she come 

out of the bathroom. Plaintiff claimed an officer "got in her face" and advised 

her that a temporary restraining order (TRO) was being issued against defendant. 

Plaintiff testified that defendant "assaulted [her] one time before." Plaintiff 

testified defendant was "joking" and "laughing" with the officers. She then 

testified she chose to decline a TRO because the officers convinced her not to 

put defendant outside of the home in the "weather out there." Five minutes later, 

plaintiff testified she changed her mind, spoke to the 9-1-1 dispatcher again, and 

requested a TRO, which was ultimately granted. 

 Plaintiff testified she went to the emergency room at Voorhees Virtual 

Hospital on the day of the assault—February 13, 2022—and provided a copy of 

her medical record to the judge. Plaintiff testified she sustained "contusions to 

[her] jaw and lip" as a result of the assault. The judge admitted the medical 

record into evidence without objection from defendant. The judge questioned 

plaintiff as to why she told the physician at the emergency room that she had 

been "punched in the face" but did not mention that defendant struck her in her 
5 A-2511-21

TRO application. Plaintiff responded that the police officers were 

"intimidating" her, "scared" her, and "did not help [her]." Defendant was then 

given the opportunity to cross-examine plaintiff but declined to do so. 

 Plaintiff presented B.G. as a fact witness. He resides in the same 

apartment building as the parties. B.G. testified that defendant "bangs on the 

walls, bangs on the doors for hours, from [five] in the morning," defendant has 

"caused lots of problems with the neighborhood," and "had the cops come 

multiple times." B.G. testified that defendant "harasses [plaintiff] while the cops 

are there," and the "arresting officers . . . weren't doing anything about it" and 

"just told [him] to go f*** himself two times." 

 B.G. testified he did not witness defendant hit plaintiff, but saw "bruises 

on her face," a "cut on her nose," and "scrapes on her arm" on the day of the 

incident. B.G. stated on prior occasions that he observed plaintiff with "black 

eyes." B.G., who apparently was on the scene when the officers arrived, testified 

they did not photograph plaintiff's injuries on the date of the incident. Defendant 

cross-examined B.G. about the wall banging at 5:00 a.m. B.G. responded he 

lives "two doors down" from the parties, and the banging is "really loud" and 

"wakes him up." 
6 A-2511-21

 Plaintiff also presented V.R. as a fact witness. V.R. is B.G.'s girlfriend. 

V.R. also testified defendant was banging on the door two days before the 

incident occurred—"like a Friday." V.R. testified that on the day of the incident, 

there was an "altercation" with defendant, and the "cops were there." V.R. 

testified that she and B.G. took plaintiff to the emergency room on the day of 

the incident and on another unspecified occasion. 

The record shows the judge observed plaintiff nodding off during V.R.'s 

testimony. The judge interrupted and asked plaintiff if she was sleeping in the 

courtroom during the proceedings. Plaintiff answered she had a "bad" 

concussion, was "sick," and medication prescribed by her doctor made her 

"sleepy," but she was "clear-minded" enough to proceed. The judge nonetheless 

adjourned the proceedings at that point because he was concerned about 

plaintiff's ability to focus and coherently proceed with her case. Defendant 

waived cross-examination of V.R., and the matter was adjourned until March 

17, 2022. 

The next day, on February 25, 2022, plaintiff amended her complaint to 

include allegations that she had testified to but that were not in the initial 

complaint. In her amended complaint, plaintiff alleged the parties argued on 

February 13, 2022, defendant was drunk, and that he kept her up all night. 
7 A-2511-21

Plaintiff also included in her amended complaint that on February 13, 2022,

defendant punched the left side of her face causing her to fall backwards over a 

space heater and hit her head on the kitchen floor. Plaintiff also alleged in the 

amended complaint she told defendant she was calling the police, and he 

responded, "now you have a f****** reason to call." Plaintiff further alleged in 

the amended complaint that she got up, ran into the bathroom, locked the door, 

and called 9-1-1. She claimed the inside of her mouth was bleeding where she 

bit her tongue when defendant struck her. 

After the police arrived, plaintiff went to the emergency room at Virtua 

Voorhees Hospital where she was evaluated, underwent two CT scans, and was 

diagnosed with post-concussion syndrome. Plaintiff alleged she needs surgery 

as a result of the injury inflicted by defendant—cervical radiculopathy—and she

has developed heart palpitations because of resulting trauma from the incident. 

The amended complaint alleged the predicate acts of assault and harassment, 

and that defendant committed a prior act of domestic violence against plaintiff. 

 On March 17, 2022, when the trial resumed, plaintiff testified she was 

diagnosed with post-concussion syndrome, which causes her to "nod" out. 

Plaintiff stated she "need[s] to feel protected" and take care of herself physically. 
8 A-2511-21

Plaintiff added she suffers from "memory loss" and unbearable headaches. 

Defendant waived cross-examination, and plaintiff rested her case. 

 Defendant testified the parties resided together for about three years. He 

stated plaintiff has PTSD, and he "went through a lot about that with her." 

Defendant testified the "reason" plaintiff is in court is "because she just wanted 

to commandeer [his] residence." He testified plaintiff had a "problem" with 

"some guys . . . harassing her" or [she] needed some money." Defendant claimed 

plaintiff needed a place to stay, he was living alone, and he told plaintiff that 

she could come live with him. He claimed he felt "sorry" for plaintiff because 

she had multiple health issues and had been on hospice care. Defendant wanted 

plaintiff to watch his residence while he was working nights. Defendant testified 

the parties eventually became an "item." 

 Defendant asserted plaintiff has a "Dr. Jekyll and Mr. Hyde" personality. 

According to defendant, plaintiff "went off the deep end about a cup of coffee" 

on the day of this incident. He stated he "never put [his] hands" on plaintiff and 

"she has swung at [him]." 

The judge asked defendant to review plaintiff's February 13, 2022 medical 

record and explain the reference to her diagnosis of "contusion" to the face and 

history of "trauma, patient was punched in the face." Defendant testified he "did 
9 A-2511-21

not touch her," he "did not punch her," and the officers "checked her over and 

there was nothing wrong with her." Defendant testified he did not accompany 

plaintiff to the emergency room. Defendant stated the officers saw "no blood" 

coming from plaintiff's mouth as she had claimed, and she was having one of 

her "PTSD moment[s]." Defendant testified that whatever happened to plaintiff 

"was not because of [him,]" and there was "nothing wrong with her" when the 

police "escorted him out of the house." 

 Following the completion of testimony, the judge issued an oral decision. 

The judge found jurisdiction was established under the PDVA because the 

parties had a dating relationship and had resided together. The judge determined 

that defendant had committed the predicate act of assault but not the predicate 

act of harassment. In his thoughtful decision, the judge questioned plaintiff's 

credibility because "her thoughts were jumbled," she seemed "confused" when 

she testified, and she was sometimes "unresponsive" when the judge tried to 

"redirect" her. 

The judge was unpersuaded by plaintiff's filing of an amended complaint 

after the first day of the hearing to include a "narrative of being punched in the 

face" and that she had gone to the emergency room. The judge did not find 

plaintiff's correction of the deficiency in the original TRO to be a "compelling 
10 A-2511-21

reason to believe her story." And the judge emphasized defendant "adamantly" 

denied he struck plaintiff. 

Relying instead on the admitted medical record, the judge highlighted that 

plaintiff "stated to someone at the emergency department that she had been 

punched in the face." The judge went on to explain that based upon plaintiff's 

statement, the hospital practitioners performed a CT scan of plaintiff's head, 

brain, and facial bones, "looking for things that would have been consistent with 

being struck in the face . . . [b]ecause that's what [plaintiff] came in saying 

happened to her." The judge concluded the reasonable inference to be drawn 

from the medical record was plaintiff was credible about what she told hospital 

staff, and defendant punched her in the face on February 13, 2022, 

notwithstanding the fact that plaintiff neglected to tell the judge who issued the 

TRO "about being punched in the face at all." 

The judge noted neither party called the investigating officers as witnesses 

to corroborate their respective version of events. The judge stated plaintiff's fact 

witnesses—B.G. and V.R.—did not witness the February 13, 2022 incident, but 

B.G. credibly testified he saw "bruises" on plaintiff's face and a "cut on her nose" 

that day. Based upon the "sufficient corroboration of plaintiff's version of 

events," the judge concluded she met her burden of proving by a preponderance 
11 A-2511-21

of the evidence that defendant assaulted her. The judge found plaintiff required 

protection from defendant because she appeared "almost like a wounded animal 

in the courtroom" at the beginning of the hearing "when she was in the same 

room near . . . defendant" and needs to be "free of the threat of further physical 

violence" requiring issuance of an FRO. This appeal followed. 

II. 

In a domestic violence case, we accord substantial deference to the family 

judge's findings, which "are binding on appeal when supported by adequate, 

substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) 

(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). 

Deference is especially appropriate when much of the evidence is testimonial 

and implicates credibility determinations. Cesare, 154 N.J. at 412. We do not 

disturb the judge's factual findings and legal conclusions 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." Ibid. (quoting Rova Farms, 65 N.J. at 484). However, we review de 

novo "the trial judge's legal conclusions and the application of those conclusions 

to the facts." Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)(citing 
12 A-2511-21

Manalapan Realty, L.P. v. Twp. of Comm. of Manalapan, 140 N.J. 366, 378 

(1995)).

When determining whether to grant an FRO pursuant to the PDVA, the 

trial judge must make two determinations. Silver v. Silver, 387 N.J. Super. 112,

125-27 (App. Div. 2006). The first Silver prong is "whether the plaintiff has 

proven, by a preponderance of the credible evidence, that one or more of the 

predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125. 

Upon finding the commission of a predicate act, the judge must then 

address the second Silver prong—whether an FRO is necessary to protect the 

plaintiff from future acts or threats of violence. Id. at 126. In other words, the 

judge must find that "relief is necessary to prevent further abuse." J.D. v. 

M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)); see also 

Silver, 387 N.J. Super. at 127 (explaining the judge must find that an FRO is 

necessary to protect "the victim from an immediate danger or to prevent further 

abuse"). 

The second prong, like the first, "must be evaluated in light of the previous 

history of domestic violence between the plaintiff and defendant including 

previous threats, harassment and physical abuse," as well as "whether immediate 

danger to the person or property is present." Silver, 387 N.J. at 124 (quoting 
13 A-2511-21

Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995) (citing N.J.S.A. 

2C:25-29(a)(1)-(2))). 

Applying these principles, we conclude there is no basis to disturb the 

judge's factual findings or legal conclusions. He had the opportunity to hear and 

consider the testimony of the parties, plaintiff's witnesses B.R. and V.R., and 

plaintiff's medical record. The judge had the opportunity to assess the parties' 

and witness's credibility based on believability and demeanor. His factual 

findings are supported by substantial credible evidence, and those facts were 

correctly applied to the law. Defendant points to no evidence in the record that 

undermines the judge's findings. 

The judge determined that plaintiff proved the predicate act of simple 

assault, N.J.S.A. 2C:12-1(a), which provides: 

A person is guilty of assault if the person: 

(1) Attempts to cause or purposely, 

knowingly or recklessly causes bodily 

injury to another; or 

(2) Negligently causes bodily injury to 

another with a deadly weapon; or 

(3) Attempts by physical menace to put 

another in fear of imminent serious bodily 

injury. 
14 A-2511-21

 The judge found plaintiff testified and amended her complaint to state 

defendant "punched" her in the face on the day of the incident and went to the 

hospital that day for evaluation and treatment. Thus, the judge determined 

plaintiff did not "fabricate [] a story about having been punched in the face by 

someone" in a hospital emergency room and undergo CT scanning "to create an 

emergency room record upon which she could eventually rely upon at trial." In 

his decision, the judge underscored the fact that plaintiff "forgot to tell" the 

judge who issued the TRO about being "punched in the face," but the emergency 

room record and the credible testimony of B.G., who saw "bruises and a cut 

contemporaneous with the events alleged to have been a punch on that same 

date," and who "was there and saw the aftermath," established the incident 

occurred. The judge found there was "sufficient corroboration of plaintiff's 

version of events" to find she met her burden of proof to establish defendant 

committed the predicate act of assault. We discern no error in the judge's factual 

findings or statutory interpretation on this issue.

"Bodily injury is defined as 'physical pain, illness or any impairment of 

physical condition.'" State ex rel. S.B., 333 N.J. Super. 236, 242 (2000) (quoting 

N.J.S.A. 2C:11-1(a)). "Not much is required to show bodily injury. For 

example, the stinging sensation caused by a slap is adequate to support an 
15 A-2511-21

assault." State v. Stull, 403 N.J. Super. 501, 505 (App. Div. 2008) (quoting N.B. 

v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997)). "[P]hysical discomfort, or a 

sensation caused by a kick during a physical confrontation, as well as pain, as 

that word is commonly understood, is sufficient to constitute bodily injury for 

purposes of a prosecution for a simple assault." S.B., 333 N.J. Super. at 244. 

Defendant's punching of plaintiff in the face is a bodily injury for purposes of 

assault. 

A plaintiff need establish only a single predicate act. Cesare, 154 N.J. at 

402. Therefore, we need not address defendant's arguments or analyze the 

judge's dismissal of the harassment claim under N.J.S.A. 2C:33-4. The judge's 

analysis satisfactorily addresses the first inquiry under Silver. 

The second inquiry is whether the judge should enter a restraining order 

that provides protection for the victim. Silver, 387 N.J. Super. at 127. 

"Although this second determination . . . is most often perfunctory and selfevident, the guiding standard is whether a restraining order is necessary, upon 

evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to 

protect the victim from an immediate danger or to prevent further abuse." Ibid. 

The factors which the court should consider include, but are not limited 

to: 
16 A-2511-21

(1) The previous history of domestic violence between 

the plaintiff and defendant, including threats, 

harassment and physical abuse; 

(2) The existence of immediate danger to person or 

property; 

(3) The financial circumstances of the plaintiff and 

defendant; 

(4) The best interests of the victim and any child; 

(5) In determining custody and parenting time the 

protection of the victim's safety; and 

(6) The existence of a verifiable order of protection 

from another jurisdiction. 

[N.J.S.A. 2C:25-29(a).] 

 The judge evaluated defendant's conduct "in light of the previous history 

of violence between the parties. Silver, 387 N.J. Super. at 125-26 (quoting 

Peranio v. Peranio, 280 N.J. State 47, 54 (App. Div. 1995)). The judge noted 

plaintiff previously filed a TRO against defendant, but later dismissed it. The 

initial TRO complaint and the amended TRO complaint alleged a prior history 

of domestic violence. Plaintiff testified defendant assaulted her in the past, and 

he did not rebut her testimony on this issue. The judge found plaintiff was 

punched in the face, had a cut on her nose, and required treatment at an 

emergency room. These findings are sufficiently supported in the record. 
17 A-2511-21

 Defendant claims he no longer resides with plaintiff and wishes to have 

no future interactions with her, militating against the need for an FRO under the 

second Silver prong. But the judge explicitly found plaintiff was physically 

harmed by plaintiff and emphasized her "subjective" fear of him when she saw 

him in the courtroom. Here, the judge correctly determined defendant's 

egregious act of assaulting plaintiff and her requiring treatment at an emergency 

room and multiple CT scans supported the issuance of an FRO. In sum, plaintiff 

presented sufficient credible evidence to support both Silver prongs, and under 

the totality of the circumstances, we see no evidentiary errors, oversight, or 

abuse of discretion. 

 Affirmed.