NEW JERSEY LAW JOURNAL 
   
Visitation Denial Trial Opens

In first known prosecution for not making children available, state can show prior instances of wrongdoing to prove requisite mens rea

By Henry Gottlieb

The prosecution won two crucial legal arguments last week at thee opening of New Jersey's most sensational matrimonial trial of the year: the criminal case of a mother who didn't make her children available for an ex-husband's court-ordered visitation.

On Wednesday, Somerset County Superior Court Judge Edward Coleman let the jury hear testimony of alleged prior instances of wrongdoing by defendant Marian Falzarano. That was a blow to the defense strategy of portraying her as a guileless victim of a vindictive ex-husband and a zealous prosecutor.

The next day, Coleman rejected a defense plea that his charge to the jury, scheduled for this week, make clear that Faltarano could be found guilty only under narrow circumstances.

Defense lawyer James Wronko, of Somerville's Wronko, O'Hara & Miller, wanted the jurors to be told that they couldn't convict unless they found that the defendant made a purposeful attempt to deprive her ex-husband of his visitation rights. Coleman ruled, however, that the prosecution must prove only that the defendant knowingly violated a visitation order

The judge's decisions may turn out to have no impact on the outcome of State V. Faizarano, 98-02-0070-I, but if Faltarano is convicted, the ml-rulings will be fodder for a higher court in a trail-blazing case.

Since 1991, when the state made interference with visitation or custody a crime punishable by up to five years in prison, there has been no reported case of a prosecution against a custodial spouse whose sole offense was failure to make the children available for visitation required by a court-imposed schedule. These violations have been handled by family judges who have the power to issue contempt sanctions.

If the prosecution wins, noncustodial spouses like Falzarano's ex-husband will be emboldened to ~e the criminal process as a tool to increase their leverage in visitation and custody battles, matrimonial lawyers say.

Conversely, if the defense wins, county pros-prosecutors are likely to tell future complainants exactly what Wronko told the jury in his opening statement: "This case does not belong in a criminal courtroom."

No One Home for Christmas

The central facts are not in dispute. In 1996, a divorce judgment gave Falzarano custody of her two children by her ex-husband, Thomas Lowenthal; he got the right to schedule week-night, weekend and holiday visitations.

They had a hostile relationship, though, and on one of those scheduled visitations Christmas Day 1997 no one was home when Lowenthal arrived at the Bernards Township home that Falzarano shared with her new husband, and her daughters Kristen, 1 1 , and Kerri, 9.

An investigation initiated by the police at Lowenthal's request disclosed that Falzarano and the children had spent the holiday as they had for years, at her sister's home in Katonall, N.Y

Falzarano has argued that she thought she had the right to take the children to New York, but the Bernards Township police referred the case to the Somerset County Prosecutor's Office, and Falzarano was indicted in February 1998 on charges of violating N.J.S.A. 2C: 1 3-4a(4).

The section says a parent interferes with custody a third-degree crime with no presumption of nonimprisonment if he or she "takes, detains, entices or conceals a minor child from the other parent in violation of the custody or parent-mg time order." ("Parenting time" is now the legal term for what had traditionally been called visitation.)

Fitting a mother for an orange prison jump-suit for taking two children to their aunt's on Christmas would seem excessive, but there's more to the prosecution's case than a single episode of interference. And there is plenty of evidence that Falzarano, given her ex-husband's determination to exercise his rights, was on notice that she was slouching toward what the 1991 law defines as criminality.

In October 1996, after one of his daughters wasn't made available for a scheduled weekend visit, Lowenthal summoned a policeman to the house, and the policeman, at Lowenthal's request, handed Falzarano a copy of the interference with custody statute.

In December 1996, Judge Graham Ross, a family judge in Somerset County, found that Falzarano had violated the visitation order and he issued a formal notice that she "shall subject her-self to criminal sanctions if she did it again. In February I 997 after another aborted scheduled visitation, Lowenthal complained to the police again, and this time Ross found Falzarano in contempt of court.
 

Prior Instances Reflect Mental State

During a hearing before jury selection on Monday, Assistant Prosecutor Merrill Mezzacappa won an argument over the admissibility of the prior instances of Falzarano's failure to make the children available.

Wronko argued that to include the prior instances would prejudice the jury against the defendant and that if the state wanted to attack her credibility about the alleged Christmas-Day crime, it had plenty of other means.

Mezzacappa argued, however; that the probative value outweighed the potential prejudice and that she had the right to introduce the evidence to show that Falzarano knew that not making the children available could lead to criminal prosecution.

This was especially important, the assistant prosecutor argued, because the defense was likely to include evidence that Falzarano was innocent of a knowing violation of the statute, because she believed she had a right to take the children to New York for Christmas.

The prior instances, Mezzacappa argued in a brief, "reveal that defendant knew her failure to comply was serious enough to warrant criminal consequences." If the defense argues that she violated the statute unknowingly, "the state will wish to rebut this reasoning by arguing that the defendant did not reasonably, mistakenly violate the visitation order," Mezzacappa continued.

The judge agreed. "Frankly, I don't think a jury could decide this case without some history," he said.

It wasn't much consolation for Wronko that the judge said he would give a limiting instruction warning the jury against considering the prior instances as evidence that Falzarano had a predilection for these types of offenses. Many defense lawyers, including Wronko, aren't convinced that limiting instructions from judges stop jurors from being influenced by juicy tidbits.

The good news for Wronko was the judge's decision to keep the jury from knowing that Judge Ross, in addition to warning Falzarano about possible criminal penalties, held her in contempt.

Criminal lawyers have been known to joke about the injustice of the jury system; their clients are never judged by thier peers: other crominals. In this case Falzarano and her ex-husband will have the matter decied by people very much like them.

The vast magiority of the potental panelists interviewed during Thrusdays's voir hire were white, middle- and upper-middle-class suburbanites, and many were professionals or managers in large corporations, or the spouses of such people. Lowenthal is a sales executive for Reynolds Metals Corp., and Falzarnano is a nurse.

And of the 14 potential panelists in the first wave in the jury box, seven told the judge they had been divorced. Of the eight men and the six women ulimately selected as jurors and alternates, four saide they had been through divorces.
 
And of the 14 potential panelists in the first wave in the jury box, seven told the judge they had been divorced. Of the eight men and six women ultimately selected as jurors and alter nates, four said they had been through divorces.
The lawyers' challenges appeared to reflect their strategies. The defense is portraying the wife as a victim of a crafty husband who has enlisted law enforcement officials to get back at his wife. me prosecution says Lowenthal is a victim: a father who lost an opportunity to be with Ins children.

Of the eight potential panelists challenged by the prosecutor, seven were women. After Mezzacappa's sixth challenge of a female, Wronko requested a mini-hearing on whether the assistant prosecutor's selections were biased. She rejected the suggestion during a sidebar conference, and the judge accepted her explanations for the challenges.

Many of the defense challenges were directed at fathers. Of the 14 people finally selected, only three were men with children.

Separating Fact From Passion

Mezzacappa sought in her opening to defuse Wrorko's chief goals: to convince the jury that Falzarano reasonably believed that she had permission to take the children to New York; to create the impression that the case is a matrimonial matter that shouldn't be in criminal court; and to impress upon the jurors that the children's wishes to he with their mother on Christmas deserved consideration.

The prosecutor, like many prosecutors in cases of seemingly minor misconduct, urged the jurors to do their duty: decide the case on the facts, not the passions.

Mezzacappa said it may not be a crime like stealing or killing, but it is a crime nonetheless, as defined by the statute. She said the girls had no right to decide where they would go for the holiday that was a parental decision that Falzarano had agreed to and she urged the jury to consider Lowenthal's pain at not being able to see his daughters on Christmas.

Wronko started off with his main point: "I started out as a criminal lawyer and ended up in the middle of a matrimonial matter," he said.

He sought to portray Lowenthal as a spurned husband who used the police and the prosecutor's office as a tool to make life difficult for his ex-spose. He called the case a waste of judicial resources, and he asked, even if Falzarano's behavior could be faulted, "does that make her a criminal?"

In his direct testimony, Lowenthal said one of his daughters told him the week before Christmas that she preferred to go to New York for the holiday, but he said he told her there would be no change in his plans.

And he said he received no communication from his wife to suggest that the girls wouldn't be available. He testified that when he went to the house, there was no answer, and that he went to the police to report the girls' absence.

In an attempt to portray Lowenthal as a man trying to make a record to help a potential prosecution, Wronko elicited testimony on cross-exam-ination about how Lowenthal went to the police on the three occasions that his children weren't available.

But Lowenthal insisted he was motivated by "frustration at not seeing my daughters. I was never quite sure my daughters would show up," he said.

Two Bernards Township police officers testified that in the two incidents before the Christmas Day absence that led to the indictment, they showed Falzarano warnings about possible criminal charges. One officer; Sgt. Brian Bobowicz, said Lowenthal wanted criminal charges filed after one of the earlier incidents, and "he was unhappy" when the prosecutor's office declined to bring charges at that time.

The prosecution concluded its presentation on Thursday; the case was adjourned Friday, and is scheduled to conclude today with the defense's case. Among the potential witnesses are Falzarano and her daughters.

Knowing vs. Purposeful Violation

It will be clear soon enough the jury might get the case as early as Monday afternoon whether Wronko was successful in convincing them that the prosecution was unnecessary or that Falzarano did not knowingly violate the court order.

His job was made tougher on Thursday after a ruling on one of the jury charges.

Wronko argued that to satisfy the intent of the statute, the jury should be told that to convict Falzarano her conduct had to have been a purposeful attempt to deprive Lowenthal of a visitation.

Matrimonial lawyers have said that the "Interference With Custody" law was motivated by concerns that there was nothing at the time to deter noncustodial spouses - usually fathers from failing to return their children after visitation. 

The purpose of the law was to provide ample punishment for a spouse who, for example, picked up the children for what was supposed to be a Sunday outing in the park, and disappeared with them into another state or country with no intention of returning them to the custodial parent.

To find a parent guilty of interference with custody under most sections of the statute requires a finding that the taking, detaining or concealing of a minor child was done with the purpose of depriving the child's other parent of custody or visitation rights.

And Wronko argued that such purposefulness should also be applied in the section under which his client was charged. The omission of purposefulness from the section, 2C:13-4a(4), was an oversight by the legislature, he argued. With such an application, the prosecutor would have to prove that it was in Falzarano's mind to keep Lowenthal from seeing the children.

The judge ruled, however, that under the plain language of the fourth section the one Falzarano is charged under it's only required that her offense be a knowing one. Coleman's reasoning was simple. By leaving the purposeful standard out, the legislature meant to apply the easier-to-prove standard, a knowing violation.

Coleman said he would wait until Monday to decide another dispute over the charge. The statute permits an affirmative defense that a child over 14 was taken at his or her own volition, which means Workroom, in the case of two girls of 1 1 and 9, can't use that particular affirmative defense.

Mezzacappa asked the judge to tell the jury, flat out, that there can be no affirmative defense based on the children's wishes. Wronko argued that there's no reason for such an instruction because being barred from doing so the children's wishes aren't part of his affirmative defense.

It's clear, though, that he wished it were. In an argument that he would probably have loved the jury to hear, he railed against the notion that a parent can be indicted if the children don't want to spend a day with the other parent.

"What it says is that you have to force that child to go, you have to push them into the car, and, if she doesn't do that, that's a criminal offense," Wronko argued. He and the state's matrimonial bar will find out this week if the jury agrees.