Published Appellate Court Opinions

This appeal concerns two ordinances of the Borough of Highland Park that amended its municipal code to allow cannabis retailers, consumption lounges, and delivery services to operate in the Borough, subject to operating, licensing, and tax regulations.  Although the ordinances were enacted under express authority delegated by the Legislature through New Jersey's recreational marijuana statute, the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (known as CREAMMA), N.J.S.A. 24:6I-31 to -56, several concerned residents of the Borough challenged the ordinances in the Law Division as preempted by the federal Controlled Substances Act (CSA), 21 U.S.C. § 801.  They also claimed the ordinances are inconsistent with the New Jersey Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and other state and federal laws.  The Law Division judge dismissed the complaint as procedurally untimely and also substantively deficient for failure to state a claim.

In the published portion of this opinion, the court reverses the Law Division’s dismissal of the complaint as untimely under Rule 4:69-6(a), but affirms the dismissal of plaintiffs' preemption claims.  As to the former, the issues presented concern sufficient matters of public interest to qualify under Rule 4:69-6(c) for an enlargement of the 45-day filing period.  As to the latter, the court concludes that, as other state courts have found, the text of the CSA and federal marijuana enforcement policies do not require a finding of conflict preemption of CREAMMA or the Borough's ordinances.

In the unpublished portion of this opinion, the court remands plaintiffs' remaining state-law claims, which were dismissed without an opportunity for discovery and without a possible evidentiary hearing, if one proves necessary to resolve expert opinion and credibility issues.

Pursuant to the Solar Act of 2021, N.J.S.A. 48:3-114 to -120, the Legislature directed the Board of Public Utilities to create a solar facilities program for awarding contracts for grid supply solar facilities and net metered solar facilities greater than five megawatts.  In addition to setting renewable energy goals for the State, the Act directs the development of policy for grid supply solar siting so as not to compromise the State's commitment to preserving and protecting open space and farmland. 

To that end, the Board developed a competitive solar incentive (CSI) program in coordination with the New Jersey Department of Environmental Protection, the Department of Agriculture, and the State Agriculture Development Committee to issue recommendations and a straw proposal on siting requirements.  After a four-year process, which included extensive stakeholder engagement, the Board issued an order that launched the CSI Program. 

N.J.S.A. 48:3-119(c) sets forth seven categories of land where solar facilities shall not be sited unless authorized by a waiver.  N.J.S.A. 48:3-119(c)(7) prohibits siting solar facilities on certain agricultural soils where the grid supply solar facility exceeds the Statewide threshold of 2.5% of such soils unless authorized by the waiver process pursuant to N.J.S.A. 48:3-119(f).  N.J.S.A. 48:3-119(f) describes the waiver process but also states that in no case shall a grid supply solar facility occupy more than 5% of the unpreserved land containing prime agricultural soils and soils of Statewide importance located within any county's designated agricultural development area.

Appellant moved for reconsideration, arguing the Board misinterpreted the siting provisions of the Act codified in N.J.S.A. 48:3-119.  Among other arguments raised by appellant before the Board and on appeal, appellant claimed the Board misinterpreted the Act and ignored the legislative history.  Appellant alleged the 5% per county limit could be exceeded if the 2.5% Statewide limit was not exceeded.  The Board interpreted the siting provisions independently and held the 5% per county limit on development could not be waived. 

The court affirmed the Board's ruling and found the plain language of the Act demonstrated N.J.S.A. 48:3-119(f)'s limit on solar development to 5% of a county's agricultural land was unambiguous.  The 2.5% Statewide limit expressed in N.J.S.A. 483-119(c)(7) served a different purpose and was not a means for a solar developer to exceed the 5% per county restriction.  Moreover, applying the per county limit only after the Statewide limit has been reached could lead to the development of the entirety of a county's agricultural lands.

Given the Act's unambiguous language, the court did not need to resort to the legislative history.  Even so, the legislative history showed the Legislature intended to minimize the potential adverse environmental impacts of solar development and the Legislature never revised the 5% per county limit or stated the per county limit could be waived in either version of the bill before it became law. 

The Board's interpretation of the Act balanced the Legislature's intent to preserve the State's vital natural resources while encouraging the development of clean solar energy.  

The Borough of Englewood Cliffs retained Thomas J. Trautner and Chiesa Shahinian & Giantomasi PC, (collectively CSG), Albert Wunsch III, and Jeffrey Surenian and Jeffrey Surenian and Associates, LLC, (collectively Surenian) to represent it in affordable housing litigation.  After judgment was entered for developer 800 Sylvan Avenue, LLC. (Sylvan), a settlement was reached between the Borough and Sylvan.  Thereafter, political control of the Borough Council majority changed hands and the newly constituted Council sued CSG, Wunsch, and Surenian, alleging professional malpractice, breach of contract, unjust enrichment, civil conspiracy, and aiding and abetting arising from their representation of the Borough in the litigation.  The Borough also sued Sylvan, alleging claims of conspiracy and aiding and abetting. 

The trial court granted defendants' Rule 4:6-2(e) motions to dismiss the Borough's complaint with prejudice.  The trial court subsequently granted defendants' motion for sanctions, ordering the Borough to pay their attorney's fees and costs for filing a frivolous lawsuit.  The Borough appeals, arguing the sanction applications were procedurally deficient; as a public entity, it is immune from paying sanctions under the FLS; and the trial court abused its discretion in finding the Borough's lawsuit was frivolous.[1]

The court rejects the Borough's arguments and affirms based on our interpretation of the FLS that the Borough is not immune from sanctions, defendants' applications for sanctions were procedurally compliant with Rule 1:4-8, and the trial court did not abuse its discretion in imposing sanctions against the Borough.

[1] After their merit briefs were filed, the Borough and Jeffrey Surenian and Jeffrey Surenian and Associates, LLC filed a stipulation of dismissal dismissing all claims and counterclaims, including but not limited to claims for attorney's fees.

         M.R. appealed from a final decision of the Department of Corrections (DOC), denying his application for a certificate of eligibility for compassionate release under the Compassionate Release Act (CRA), N.J.S.A. 30:4-123.51e.  The DOC denied his application because two licensed physicians designated by the commissioner of the DOC had rendered medical diagnoses in which they found M.R. had neither a terminal condition nor a permanent physical incapacity as defined by the CRA.   

         M.R. argued on appeal the CRA and related regulations required the designated physicians to examine him physically and the DOC's decision was arbitrary, capricious, and unreasonable because the physicians had not physically examined him and had failed to make certain findings required under the CRA.  The court disagreed, concluding that, while a physician may request a physical examination, the CRA and related regulations did not require one.  The court also concluded the physicians had made the requisite findings.  Accordingly, the court affirmed the DOC's decision. 

On leave granted, in this medical negligence matter, we consider whether N.J.S.A. 2A:53A-41(a) under the New Jersey Medical Care Access and Responsibility and Patients First Act (Act), N.J.S.A. 2A:53A-37 to -42, requires plaintiffs to serve an affidavit of merit (AOM) from a physician board certified in both specialties if defendant physician is board certified in two specialties, and the treatment claimed to be negligent involves both specialties.

Plaintiffs rely on Buck v. Henry, 207 N.J. 377 (2011), in asserting they need only provide an AOM from a physician who specializes in either of the defendant doctor's specialties.  The trial court agreed and denied defendants' motions to dismiss for failure to provide the proper AOM and for reconsideration.

Defendant physician is board certified in internal medicine and gastroenterology.  He certified that his care and treatment of plaintiffs' decedent involved both specialties.  Plaintiffs only served an AOM from a physician board certified in internal medicine.

In considering defendants' dismissal motions, the trial court cited to two sentences from Buck:  "A physician may practice in more than one specialty, and the treatment involved may fall within that physician's multiple specialty areas.  In that case, an [AOM] from a physician specializing in either area will suffice."  Id. at 391.

Because the facts presented here are distinguishable from Buck and the discrete ruling in Buck was not specific to this issue, and in considering the legislative purpose of the Act, and the principles of law espoused in the subsequent cases of Nicholas v. Mynster, 213 N.J. 463, 480-88 (2013), and Pfannenstein ex. rel. Estate of Pfannenstein v. Surrey, 475 N.J. Super. 83, 90-91 (App. Div.), certif. denied, 254 N.J. 517 (2023), we conclude plaintiffs must serve an AOM from a physician board certified in each of defendant doctor's specialties.  We are also guided by the kind-for-kind, credential equivalency requirement articulated in N.J.S.A. 2A:53A-41(a).  Therefore, we reverse the court's orders denying defendants' motions to dismiss for a deficient AOM and for reconsideration.

However, because plaintiffs raised the issue of a waiver from the AOM requirement, and the issue was fully briefed and discussed during oral argument before the trial court, we remand for the court to determine the waiver argument on its merits.

This appeal addresses whether the trial court erred by admitting into evidence a statement defendant had made to police and barring in part the testimony of defendant's expert witness. 

Several months after the drug-induced death of the victim, a police detective interviewed defendant, eliciting from her information about her cell-phone usage before he advised her of her Miranda rights and information regarding her drug-selling activity and contact with the victim after he advised her of her rights.  The detective told defendant he was "not holding anything back" and was "laying it all out . . . on the table" but never mentioned the death of the victim and repeatedly used the present tense when discussing her.   Defendant confessed to selling heroin to the victim.  The parties did not raise before the trial court the admissibility of defendant's statement, and the statement was admitted into evidence. The trial court granted the State's pretrial motion to bar defendant's expert witness from testifying about drug use and addiction, finding him qualified only in toxicology and not in those fields.  A jury convicted defendant of committing a first-degree drug-induced death crime, in violation of N.J.S.A. 2C:35-9(a), along with other drug-related crimes. 

The court finds the trial court (1) committed plain error by admitting defendant's statement without first conducting a Rule 104 hearing to determine under a totality-of-the-circumstances test the voluntariness of defendant's statement and Miranda waiver; (2) erred in admitting the pre-Miranda questions and answers but that that error did not rise to the level of plain error because other evidence was admitted regarding defendant's cell-phone usage; and (3) abused its discretion by limiting defendant's expert testimony without conducting a Rule 104 hearing regarding the expert witness's qualifications and opinions.  The court remands the case and instructs the trial court to conduct evidentiary hearings regarding the voluntariness of defendant's statement, the qualifications of defendant's expert witness, and the admissibility of his opinions.   Whether defendant's convictions are affirmed or vacated for a new trial depends on the outcomes of those hearings.

     At issue in this interlocutory appeal is the propriety of a pretrial order compelling the administration of psychotropic medication in an attempt to restore competency, without a defendant's consent, when the accused has not been deemed a danger to self or others.  With defendant's constitutional rights in view, the court applies the four-pronged test enunciated by the United States Supreme Court in Sell v. United States, 539 U.S. 166 (2003), and concludes the motion judge erroneously determined the State satisfied the second Sell prong.  The court therefore reverses the order under review. 

     In doing so, the court departs from the majority of federal appellate courts and holds the standard of review under the Sell test is mixed; the court therefore reviews the motion court's legal conclusions de novo and its factual findings for clear error as to each Sell prong.  Having resolved the issues by applying the Sell standard, the court does not reach the constitutional arguments urged by defendant and amici curiae.

In this automobile insurance coverage dispute, the court considered defendant Wausau Underwriters Insurance Company's appeal from Law Division orders granting summary judgment to plaintiff Britney Motil, entitling her to $100,000 in underinsured motorist (UIM) insurance coverage, and denying reconsideration.  

This appeal presented the novel issue of whether plaintiff was entitled to UIM coverage as a "covered driver" injured in an automobile accident while driving a "covered auto" with an identified alternate garaging address under her parents' automobile policy.  Defendant disclaimed coverage, under the policy's uninsured motorist (UM)/UIM endorsement step-down provision, because plaintiff was neither a named insured nor a defined family member.  After a de novo review, the court concluded there was ambiguity between the declaration and the policy's step-down provision of $15,000 in UIM coverage because the declaration plainly provided:  $100,000 UM/UIM coverage for each person; plaintiff was a covered driver; the UM/UIM premium charged was the same for each vehicle; and plaintiff's vehicle was a covered vehicle with an alternate garaging address.  Further, the court concluded the policyholder's reasonable expectation of $100,000 UIM coverage should be afforded.  

The court affirmed the Law Division's orders finding plaintiff was entitled to $100,000 in UIM insurance coverage and denying reconsideration.

         In these cases that were consolidated for the purpose of issuing a single opinion, defendants appeal from their convictions following municipal court appeals because the Law Division decided their appeals without conducting hearings or permitting briefing.

         In both cases, the Law Division determined briefing was not required and, because defendants did not request argument, decided the appeals based solely on its review of the municipal court transcripts and the police body camera video introduced as evidence in the municipal court trials.  The court found it "is incumbent on counsel to . . . tell the court why briefing is necessary and to request argument if they want it."  On appeal, defendants argued the court deprived them of their rights to due process and counsel.

         The court reversed, concluding Rules 3:23-4 and -8 require that the Law Division schedule and conduct a hearing on a municipal appeal.  There is no requirement that a defendant request a hearing.  The court also noted, although the proceeding is technically designated an appeal, the Law Division must conduct a trial de novo on a municipal appeal.  At the trial de novo, the Law Division must make its own findings of fact and conclusions of law and, if the court finds the State proved its case beyond a reasonable doubt, sentence the defendant anew.

          The court also concluded, based on the arguments raised by defendants, it would be appropriate to permit, if not require, the parties to file briefs in these cases.  Finally, to avoid any appearance of bias or prejudice, the court required the appeals be assigned to a different judge on remand.

This appeal concerns issues of preclusion and the relationship between the statutory systems for the Commissioner of Education and the State Board of Examiners revoking or suspending an educator's certificate to teach in the New Jersey public schools under N.J.S.A. 18A:6-17.1, and the separate arbitration process specified since 2012 in N.J.S.A. 18A:6-38 to -39 2 (the TEACHNJ law) for a school district terminating or disciplining a teacher for improper conduct.

Appellant, a tenured teacher, was charged by the local board of education with unbecoming conduct.  The school board sought to terminate his employment in the district.  The contested matter was tried before an arbitrator.  The arbitrator found appellant had engaged in unbecoming conduct, but she imposed a milder sanction of a one-year suspension.  The arbitrator's decision was not challenged in court by either appellant or the school board.  The Board of Examiners then pursued the revocation of appellant's license based on his same improper conduct, and it is anticipated that contested case will be tried in the Office of Administrative Law.

Appellant contends the Board of Examiners and the Commissioner—even though they were not parties to the tenure arbitration—have no authority to pursue the revocation of his license because the arbitrator only suspended his employment for one year.  Among other things, appellant invokes a doctrine of "industrial double jeopardy" to support his preclusion argument.  He also contends the revocation proceedings violate his constitutional and civil rights.

The matter was presented to a Law Division judge, who confirmed the arbitration award but rejected appellant's arguments for preclusion.

This court affirms the trial court's decision and holds the Board of Examiners and the Commissioner are not precluded by the arbitration outcome from pursuing the revocation of appellant's teaching certificate.  The statewide teacher certificate revocation process authorized in N.J.S.A. 18A:6-38 and -39 operates separately from the teacher tenure arbitration process under N.J.S.A. 18A:6-17.1.  The manifest legislative intent is for the two statutes to be administered independently of one another.  The proceedings involve non-identical parties, and also different stakes, procedures, and avenues and standards of appellate review. 

The court rejects appellant's assertion of industrial double jeopardy and his claims of the violation of his constitutional and civil rights.

Plaintiff, who was fired from her job as a physician, appeals from an order of the Superior Court, Law Division staying her complaint against defendants pending arbitration.  Plaintiff's claims included allegations of sexual assault, intentional infliction of emotional distress, and a statutory retaliation claim under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.

Defendants moved to compel arbitration pursuant to plaintiff's employment contract.  The trial court granted the motion, finding the contract's arbitration clause was valid and enforceable.

The court engaged in a de novo review of the employment contract using well-settled contract principles, and it held the mandatory arbitration clause was ambiguous and therefore unenforceable against plaintiff.  Holding the arbitration clause unenforceable, the court declined to reach the question of whether the Federal Arbitration Act applies.

In a separate opinion concurring with the result, a member of the panel would reverse for a different reason, discerning no ambiguity in the arbitration provision and concluding, unlike the contract at issue in Antonucci v. Curvature Newco, Inc., 470 N.J. Super. 553 (2022), the present contract is not governed by the FAA.  Accordingly, plaintiff's LAD claims would not be arbitrable pursuant to N.J.S.A. 10:5-12.7.

In this matter, the court considers the novel issue of the circumstances under which a municipality may decline to adopt a Resolution of Support (ROS) for an applicant seeking to obtain a Class 5 Cannabis Retailer License (CRL) from the State of New Jersey Cannabis Regulatory Commission (the Commission) under N.J.S.A. 24:6I-31 to -56, the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA).

Plaintiff filed an order to show cause (OTSC) and a verified complaint against the Township of West Milford, the Council of West Milford Township (collectively referred to as the Township), and SoulFlora, Inc. after the Township effectively denied plaintiff's request for a ROS for its CRL application by not placing it on a public meeting agenda for consideration by the governing body.  The Township asserts its de facto denial was predicated on a Township ordinance prohibiting businesses with CRLs to be located less than 2,500 feet from each other.  The proposed location of plaintiff's cannabis business was less than 500 feet from SoulFlora's. 

Plaintiff sought injunctive relief to prevent SoulFlora from establishing a cannabis business; enjoining the Township from issuing a ROS to any other new cannabis business applicants; revoking SoulFlora's ROS; and requesting attorneys' fees and costs.  The court affirms denial of plaintiff's OTSC under Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982).  The court holds plaintiff did not have a likelihood of success on the merits, finding the Township's effective denial of plaintiff's request for a ROS was not arbitrary, capricious, or unreasonable since under CREAMMA, municipalities are delegated the authority to promulgate location and density requirements for cannabis retail businesses and are statutorily vested with the right to decline to provide local support for applicants who fail to meet those requirements. 

The court reverses the with-prejudice dismissal of the claims against the Township and remands to the trial court to issue a statement of reasons pursuant to Rule 1:7‑4(a), along with an accompanying order.   The court affirms the dismissal of the complaint against SoulFlora with prejudice, while finding that it is an indispensable party for notice purposes only. 

          In this matter, the court considers whether the trial court properly dismissed plaintiff's complaint with prejudice after finding it was barred by the entire controversy doctrine and res judicata.  Plaintiff's putative class action complaint, filed in Essex County, sought to claw back funds she paid in full satisfaction of a final default judgment, entered in a prior lawsuit adjudicated in Bergen County.  The court holds that the entire controversy doctrine precludes plaintiff from relitigating a final default judgment through the filing of a new complaint in a different court when she failed to pursue any of her substantive arguments in the previous litigation. 

          Plaintiff defaulted on paying an outstanding credit card balance, so the bank closed out her account and assigned her outstanding debt to defendants.  Through a complaint filed in Bergen County, defendants obtained a final default judgment against plaintiff, which she did not move to vacate or otherwise appeal.  Plaintiff fully satisfied the judgment through wage garnishments.

          Plaintiff filed a putative class action complaint in Essex County against defendants seeking a declaratory judgment voiding the debt and any judgments enforcing that debt, as well as treble damages and disgorgement of amounts previously paid to defendants, based on the assertion that defendant was not licensed, as required by the New Jersey Consumer Finance Licensing Act (CFLA), N.J.S.A. 17:11C-1 to -49. 

          Since the entire controversy doctrine precludes plaintiff from pursuing the Essex County litigation predicated on substantive defenses that could have been raised in the prior Bergen County litigation, there was no amendment to the pleading that could have rendered plaintiff's complaint viable.  Thus, dismissal of the complaint with prejudice based on the entire controversy doctrine was appropriate.  The court affirms the Essex County order.

          Following the 2020 decennial United States Census, the City of Jersey City Ward Commission (the Commission) redrew the six election wards for the City of Jersey City (the City).  In these two consolidated appeals, plaintiffs challenge the ward boundaries and map adopted by the Commission.  Plaintiffs contend that the new ward map violates the Municipal Ward Law (the MW Law), N.J.S.A. 40:44-9 to -18, the New Jersey Civil Rights Act (the CR Act), N.J.S.A. 10:6-1 to -2, and their rights of free speech, free association, and equal protection under the New Jersey Constitution.  They also argue that the Commission did not comply with the Open Public Meetings Act (the OPMA), N.J.S.A. 10:4-6 to -21.

The court affirms in part and reverses in part the dismissal of plaintiffs' complaints in lieu of prerogative writs.  The court affirms the dismissal of the claims asserting violations of plaintiffs' constitutional rights, the CR Act, and the OPMA.  The court reverses the dismissal of the claims of violations of the MW Law.  Resolution of those statutory claims requires some, albeit limited, fact-finding.  Therefore, the court remands the MW Law claims for a focused and limited proceeding on whether the Commission had a rational basis for the ward boundaries and map it adopted.

In this matter, the court considers whether the trial court properly denied defendant's motion to suppress evidence seized after a search of the vehicle defendant was operating following a traffic stop.  When the officer approached defendant's vehicle, he noticed a burnt smell of marijuana emanating from it.  The officer did not intend to search the vehicle at that point.  However, after the dispatcher informed the officer defendant had an outstanding warrant necessitating defendant's arrest, and the officer smelled a perceptible odor of raw marijuana on defendant's person as they sat together in the patrol car, the officer decided to search the vehicle.

The court concludes that the officer's testimony regarding the odors established probable cause for the subsequent search of the vehicle.  In addition, the finding of probable cause arose in unforeseeable and spontaneous circumstances.  There were not two stops as argued by defendant.  The discovery of the warrant and new smell emanating from defendant's person permitted the officer to continue the investigation.  The search was permissible under the automobile exception to the warrant requirement as articulated in State v. Witt, 223 N.J. 409 (2015).  The court affirms the order denying defendant's suppression motion.

          Along with another offense, a grand jury indicted defendant on first-degree unlawful possession of a weapon under N.J.S.A. 2C:39-5(b)(1) and N.J.S.A. 2C:39-5(j).  Pursuant to a plea agreement, defendant pled guilty to first-degree unlawful possession of a weapon.  At sentencing, defendant argued N.J.S.A. 2C:39-5(j) was not subject to the Graves Act, N.J.S.A. 2C:43-6(c), which requires a mandatory period of parole ineligibility because N.J.S.A. 2C:43-6(c) did not enumerate N.J.S.A. 2C:39-5(j).  The sentencing judge disagreed and held N.J.S.A. 2C:39-5(j) is a grading statute, and sentenced defendant to a ten-year sentence with a five-year period of parole ineligibility, pursuant to the Graves Act.

          Defendant's appeal was initially heard on the court's sentencing oral argument calendar.  It was then transferred to the plenary calendar given the question of law raised, and to resolve differing interpretations of the Graves Act and N.J.S.A. 2C:39-5(j) in unpublished opinions, and reported uneven practices in the trial courts.  The central question on appeal was whether N.J.S.A. 2C:39-5(j) is a substantive offense not subject to the Graves Act or whether N.J.S.A. 2C:39-5(j) acts as a grading statute, thereby enhancing the penalty, which is subject to the Graves Act.

          The court concluded N.J.S.A. 2C:39-5(j) is not a separate offense but instead a grading statute that is subject to the Graves Act penalty.  Reading the statute to the contrary would lead to an absurd result because a person convicted of a first-degree unlawful weapons offense could serve less time than a person convicted of a lesser-degree offense by virtue of parole eligibility.  The court concluded the more sensible reading of N.J.S.A. 2C:39-5(j) was as a grading statute and therefore affirmed defendant's sentence.

Plaintiffs first sued two pharmaceutical companies in federal court in Texas asserting claims under the federal False Claims Act and the New Jersey False Claims Act (NJFC Act), N.J.S.A. 2A:32C-1 to -18.  After the claims under the NJFC Act were dismissed without prejudice, plaintiffs sued the same pharmaceutical companies in New Jersey re-asserting the NJFC Act claims.   Because the allegations in plaintiffs' complaints had previously been publicly disclosed and because plaintiffs were not the original source of that information, the court holds that plaintiffs' complaints were properly dismissed under the public disclosure bar of the NJFC Act.  See N.J.S.A. 2A:32C-9(c).

This appeal requires us to determine whether defendant Boys and Girls Clubs of America (BGCA), an out-of-state non-profit national youth organization, is subject to the specific personal jurisdiction of our state courts in a lawsuit pertaining to the alleged sexual abuse of plaintiffs by a counselor employed by defendant Boys and Girls Club of Hudson County (Hudson County BGC), a New Jersey non-profit youth member organization affiliated with BGCA. 

The motion judge found specific personal jurisdiction over BGCA regarding plaintiffs' sexual abuse claims.  The court disagrees and reverses. 

Jurisdictional discovery revealed BGCA had no influence or control over Hudson County BGC's hiring, training, or supervision of the counselor.  Consequently, our state courts have no specific personal jurisdiction over BGCA in this matter because BGCA did not purposefully avail itself of benefits in or from New Jersey.

In State v. Witt, our Supreme Court held police cannot conduct a search pursuant to the automobile exception to the warrant requirement once a vehicle has been towed away and impounded.  223 N.J. 409, 448-49 (2015).  John's Law generally requires police to impound a vehicle for at least twelve hours when the driver is arrested for driving while intoxicated (DWI).  This case addresses the novel question of whether police may conduct a search under the automobile exception when they are required to impound a vehicle pursuant to John's Law, but the vehicle has yet to be removed from the scene of the stop.

The trial judge suppressed a handgun found under the front passenger seat, reasoning that because the officers were required to impound the vehicle, they were also required to obtain a search warrant even though the search occurred roadside.  After considering the plain text and rationale of Witt, the court reverses the suppression order, holding the inherent exigency justifying a warrantless search at the scene continues to exist so long as the detained vehicle remains at the location of the stop.  The court reasons the inherent exigency is not abated by the fact the vehicle will eventually be removed from the scene.  Nor is such exigency abated when the decision is made to remove the vehicle, regardless of whether the decision is made in the exercise of police discretion or in compliance with a statutory impoundment mandate.  The court concludes the authority to conduct an automobile-exception search lapses only after the vehicle has been removed to a secure location, not in anticipation of such removal.  So long as police satisfy the foundational requirements of probable cause, spontaneity, and unforeseeability, a contemporaneous on-the-spot search is permitted regardless of the ultimate disposition of the vehicle.  Accordingly, the court declines to create a new bright-line rule making vehicles subject to John's Law categorically ineligible for an on-scene search under the automobile exception.

In this appeal the court addresses whether an entire county prosecutor's office must be recused from a criminal prosecution when the county prosecutor has a personal, disqualifying conflict.  The court holds that so long as the prosecutor has been completely screened from and has no oversight of the matter, the prosecutor's office should not be disqualified.  Accordingly, the court affirms the trial court's order denying defendant's motion to disqualify the entire Monmouth County Prosecutor's Office from continuing to prosecute defendant and multiple co-defendants in this criminal matter.

In this case the court is asked to answer three questions:  first, whether a governmental body, serving as a Redevelopment Agency, is obligated to apply electric vehicle ("EV") parking credits, as required under N.J.S.A. 40:55D-66.20 ("the EV statute"), when determining a concept plan's consistency with a redevelopment plan adopted pursuant to the Local Redevelopment and Housing Law ("LRHL") (N.J.S.A. 40A:12A-1 to -89); second, under section (f) of the EV statute, when applying EV credits, how the credits are to be rounded up; and last, whether a rounded-up EV credit may reduce the total required parking by more than the ten percent limit set forth under section (e) of the EV statute.

The court held that EV credits are to be applied when determining a concept plan's consistency with a redevelopment plan.  Otherwise, a plan that was confirmed as consistent by the Borough would not be the same as the one to be potentially approved at time of preliminary site plan approval.  The court also concluded that when applying EV credits to the total number of calculated spaces and that number includes any decimal, based on the plain language of the statute, the calculation must be rounded up to the next whole parking spot.  However, also based on the plain language of the statute, the court rejected the contention that a rounded-up EV credit can reduce the total required parking by more than the ten percent limit set forth under section (e) of the EV statute, which is more specific than section (f) and therefore controls.

Applying these principles, the court affirmed the Law Division's denial of plaintiff's motion for summary judgment and grant of defendant's cross-motion for summary judgment.

Plaintiff, a tenured professor, was fired after a university received a series of student complaints.  The university issued charges against plaintiff and conducted dismissal proceedings pursuant to its faculty handbook, a document which, among other things, detailed the process for removing a tenured professor.  The university's board of trustees found by clear and convincing evidence that plaintiff had engaged in willful misconduct and terminated his employment.

Plaintiff filed suit, alleging the board failed to establish adequate cause for termination by clear and convincing evidence.  The trial court granted the board's motion for summary judgment, finding the board was not arbitrary, capricious, or unreasonable in its decision to terminate plaintiff in accordance with the agreed-upon guidelines established in the faculty handbook.

After a de novo review of the trial court's summary judgment order, the court affirmed, holding that the administrative agency standard of review used to analyze the internal decision-making of public universities applied to a private university's termination of a tenured professor.

In this medical malpractice action, the court granted defendant Perry Loesberg, M.D. leave to appeal Law Division's order's denying his motions to dismiss plaintiff's amended complaint due to their failure to serve an affidavit of merit (AOM) within 120 days of the filing of defendant's answer in accordance with N.J.S.A. 2A:53A-27.  The court affirms, concluding the orders were supported by the record because there were extraordinary circumstances warranting an extension of the AOM 120-day filing deadline. 

Prior to defendant being named in the amended complaint, a court order granted plaintiff's motion to waive the filing of an AOM as to the then-named defendants.  The lack of a Ferreira conference after defendant answered the amended complaint, coupled with the prior court order and defendant's discovery response failure to raise the lack of an AOM as a defense, constituted "an almost perfect storm" of events that warrant affording plaintiff additional time to submit an AOM.  See A.T. v. Cohen, 231 N.J. 337, 350 (2017).  A Ferreira conference should have been conducted to bring the parties together to address the applicability of the AOM waiver order on the claims against the newly-added defendant.  Permitting plaintiff to file an AOM outside the 120-day statutory deadline and denying defendant's motions to dismiss prevents an injustice.

In this appeal, as an issue of first impression, the court was asked to consider whether N.J.S.A. 43:21-19(i)(10)— from the time of its enactment in 2010—provided an exemption for court reporters under the Unemployment Compensation Law ("UCL"), N.J.S.A. 43:21-1 to -71, or whether court reporters must still establish a Federal Unemployment Tax Act ("FUTA") exemption pursuant N.J.S.A. 43:21-19(i)(1)(G).  The court determined N.J.S.A. 43:21-19(i)(10) does provide such an exemption and there is no requirement for court reporters to establish a FUTA exemption.

The court noted the express language of N.J.S.A. 43:21-19(i)(10) provides that services performed by court reporters "shall not be deemed to be employment subject" to the UCL.  The court presumed the Legislature understood the implications of removing court reporters from N.J.S.A. 43:21-19(i)(7)(Y) and the corresponding FUTA mandate and placing the amendment in a different section.  The DOL asserted there were no scenarios in which the new statute, N.J.S.A. 43:21-19(i)(10), would apply to court reporters in a manner distinct from the operation of the prior exemption under N.J.S.A. 43:21-19(i)(7)(Y).  The court rejected that interpretation, which would have rendered N.J.S.A. 43:21-19(i)(10) meaningless because the amended statute must be read in harmony with N.J.S.A. 43:21-19(i)(7)(Y) and the rest of the statute.  The court further determined the Legislature was fully aware of the prior requirement for court reporters to establish a FUTA exemption under N.J.S.A. 43:21-19(i)(7)(Y), which is why it amended the statute to remove the requirement for a FUTA exemption under N.J.S.A. 43:21-19(i)(10).

The court noted that although a sensible reading of N.J.S.A. 43:21-19(i)(10) provides an exemption for court reporters, to the extent the statutory language resulted in more than one reasonable interpretation, the legislative history unequivocally established the Legislature intended to dispense with the requirement to establish a FUTA exemption.  Accordingly, the court reversed the Commissioner's holding with respect to the applicability of N.J.S.A. 43:21-19(i)(10) and concluded petitioners are exempt from the time of the enactment of the statute in 2010.

         The court granted defendant leave to appeal from two orders entered by the Family Part, which denied a motion to amend his answer to include a counterclaim for divorce and his subsequent motion for reconsideration.  On appeal, the court reversed both orders.

          The court concluded defendant should have been permitted to amend to include a counterclaim because discovery was not concluded, there was no trial date, and the interest of justice required it.  The proposed counterclaim alleged defendant learned of conduct between plaintiff and a third party, which constituted grounds for divorce based on irreconcilable differences and extreme cruelty.  Moreover, based on defendant's proposed pleading and extant business litigation in the Law Division involving the parties and the third party, the case appeared to be complex in that defendant's counterclaim sounded in claims against plaintiff for:  dissipation, marital fault, and bad faith.

         Plaintiff argued to the trial court and on appeal that Rule 5:4-2(e) barred defendant's ability to amend the answer to include incidents that occurred during the marriage because defendant knew about the claims and failed to file a counterclaim with his initial answer.  The court concluded Rule 5:4-2(e) was inapplicable because it applies when a party seeks to amend an already existing counterclaim.  Moreover, the court harmonized Rule 5:4-2(d) and (e) with Rule 4:9-1 and held the amendment of Family Part pleadings are subject to the liberal interest of justice standard in Rule 4:9-1, and courts should permit a party to amend where the request is timely, and not futile, frivolous, or harassing. 

In this appeal, the court held that the rule announced in State v. Smith, 251 N.J. 244, 253 (2022), that "reasonable and articulable suspicion of a tinted windows violation arises only when a vehicle's front windshield or front side windows are so darkly tinted that police cannot clearly see people or articles within the car," should be afforded pipeline retroactivity.  The court also determined a defendant who had not filed a notice of appeal when a retroactive decision was issued, but was subsequently granted leave to file as within time under Rule 2:4-4 and State v. Molina, 187 N.J. 531, 535-36 (2006), is deemed within the "pipeline" for retroactivity purposes.

In this appeal, the court considered whether a Remediation in Progress waiver (RIP waiver) issued by the New Jersey Department of Environmental Protection (NJDEP) conveys a property interest to the recipient that is constitutionally protected by the right to due process.  The court concluded it does not.

The owner or operator of an industrial establishment is subject to the Industrial Site Recovery Act (ISRA) when they cease operations or transfer ownership or operation of the industrial establishment.  N.J.S.A. 13:1K-9(a).  Before doing so, the ISRA requires the owner or operator of an industrial establishment to remediate its industrial establishment and obtain a final remediation document.  N.J.S.A. 13:1K-9(b).  To expedite transfers and cessations of contaminated industrial sites, the ISRA permits alternatives to obtaining a final remediation document prior to the cessation of operations or transfer of property, including an RIP waiver.  N.J.A.C. 7:26B‑5.4.  An RIP waiver allows the owner or operator of an industrial establishment to apply to NJDEP to close or transfer ownership or operations, provided that the industrial establishment is already in the process of remediation and specific requirements are met.  N.J.S.A. 13:1K‑11.5; N.J.A.C. 7:26B-5.4.

An RIP waiver is contingent on remediation being in progress; if remediation falls out of compliance, the RIP waiver applicant no longer qualifies for the suspension under N.J.S.A. 13:1K-11.5, and NJDEP may rescind the RIP waiver.

Clarios, LLC, appealed from a decision by NJDEP to deny its request for an adjudicatory hearing concerning NJDEP's decision to rescind Clarios's RIP waiver for the premises at issue, 760 Jersey Avenue, New Brunswick.  Clarios argued NJDEP's grant of the RIP waiver in 2007 created a property interest protected by a right to due process in that the RIP waiver operates like a license—well-recognized to be in the nature of a property right—that permits the receiving party to conduct certain activities and exempts it from obligations subject to the State's stipulations.

The court rejected Clarios's assertion.  The only benefit conferred by the RIP waiver is that the owner or operator may effect such close of operations or transfer of ownership prior to "obtaining departmental approval of a remedial action workplan or a negative declaration or without the approval of a remediation agreement."  N.J.S.A. 13:1K‑11.5(a).  The RIP waiver does not suspend the need to remediate the industrial establishment.  It waives only the requirement to provide for remediation before the close of operations or the transfer of ownership.  In addition, the regulation that provides for the issuance of RIP waivers explicitly limits the authority of the waiver to relieve the recipient of "the obligations to remediate the industrial establishment pursuant to ISRA . . . and any other applicable law."  N.J.A.C. 7:26B-1.8(b).

          In this appeal, as an issue of first impression, the court addresses whether a New Jersey court may consider a motion to terminate the registration requirements of an individual subject to Megan's Law[1] in New Jersey but residing in another state.  The court holds that although a New Jersey court may have jurisdiction to decide the motion, it must decide on a case-by-case basis whether the registrant has standing to bring the motion. 

          J.R. committed a sex offense in 1993 that subjected him to Megan's Law in New Jersey.  Upon moving to Montana in 2021, J.R. was subject to registration there because Montana statute requires registration for individuals who committed a sexual offense in another state for which they were required to register.  He then filed a motion to terminate his registration obligation in New Jersey pursuant to N.J.S.A. 2C:7-2(f).

          The court agrees with the Megan's Law judge that J.R. no longer had a registration obligation in New Jersey and his obligation in Montana was dependent on his prior conviction in New Jersey, which would remain regardless of the outcome of the motion.  The court rejects J.R.'s contention that he continued to have a Megan's Law "status" in New Jersey.  He neither faced harm from the denial of the motion nor could he benefit from the granting of the motion because it would not alter his registration obligation in Montana.  Because he was not suffering a harm that a New Jersey court could address, J.R. lacked standing to have a New Jersey court decide his motion, and we affirm the Megan's Law judge's decision.

          Because registration requirements vary across the country, there may be instances where a registrant's obligation to register in another jurisdiction would be impacted by the outcome of a motion to terminate in New Jersey.  Therefore, a court must examine the legislative scheme in the jurisdiction where the registrant resides to determine whether the motion presents a justiciable controversy that amounts to standing.

[1]  N.J.S.A. 2C:7-1 to -23.

In this matter, arising out of a failure to accommodate and discrimination action under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50, a jury returned a verdict for plaintiff awarding her compensatory damages and $10 million in punitive damages.  On appeal, the court affirmed the finding of liability and the compensatory damage award but remanded for further proceedings on the amount of punitive damages, and specifically, for substantial consideration of the factors discussed by our Supreme Court in Baker v. National State Bank, 161 N.J. 220 (1999), and the United States Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). 

The Supreme Court granted defendant's petition for certification and modified this court's remand instructions.  The Court held that when reviewing a punitive damages award against a public entity, a trial court must not only consider the Baker/BMW factors, but also needs to apply heightened scrutiny as required under Lockley v. State, Department of Corrections, 177 N.J. 413 (2003).

On remand, the trial court concluded the punitive damages award was "reasonable" and "comport[ed] with due process."

In the present appeal, the court established a hybrid standard of review when considering an award of punitive damages against a public entity.  The court should accord a deferential standard of review to a judge's determination of whether the jury's punitive damages award is "reasonable" and "justified in the circumstances of the case" under N.J.S.A. 2A:15-5.14(a).  However, when a party challenges the punitive damages award on constitutional due process grounds, the court should review the trial court's decision as to the amount of the punitive damage award de novo. 

After considering the Baker/BMW factors using the heightened scrutiny required under Lockley, we concluded the punitive damages award was not unreasonable or disproportionate to the harm caused by defendant's upper management representatives in their disregard of the LAD.  Although mindful the source of the damages award is public funds, the court concluded the award was necessary to deter future unlawful conduct and to encourage high-level officials to conform their behavior.

        In this appeal, the court considers whether the Governor can be compelled by mandamus to act on an appointment power when the statute at issue neither expressly requires, nor provides a deadline for, the exercise of that discretionary function.  Seventeen municipalities challenge the Governor Murphy's inaction, demanding he fill long-standing vacancies on the Council on Affordable Housing (COAH).  The court rejects appellants' contentions that the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329, requires the chief of the executive branch to fill those appointments and that Governor Murphy's inaction violates that obligation and undermines the public policy reflected in the FHA. 

      Persuaded by the Governor's responding argument, this court held it cannot compel the Chief Executive to make appointments to COAH because mandamus – the relief appellants seek – cannot be applied against the Governor, generally.  Further, even if mandamus were applicable to the Governor, the remedy is unavailable here because appellants seek to compel an exercise of discretion.   The court thus held the Governor cannot be compelled by mandamus to fill COAH's vacancies.  Accordingly, the court dismissed the appeal.

         Following a long-term marriage, plaintiff filed a complaint for divorce and the parties, represented by counsel, entered a comprehensive marital settlement agreement (MSA).  Plaintiff sought an uncontested divorce "on the papers" and filed the certification required by the Administrative Office of the Courts for such a proceeding.  However, defendant sought an uncontested divorce hearing by way of Zoom, which the court in turn scheduled.  Plaintiff died before the uncontested hearing.

         His estate, represented by the parties' eldest son, sought to be named the real party in interest and to enforce the MSA, among other relief.  Defendant cross-moved to dismiss the complaint because of plaintiff's death.  The trial judge denied the motion and dismissed the complaint.  It ruled that under Carr v. Carr, 120 N.J. 336 (1990), plaintiff's death abated the divorce and there were no unusual or exceptional circumstances warranting invocation of an equitable remedy, such as a constructive trust, to prevent an unjust enrichment by defendant. 

         The court reversed and remanded for entry of an order permitting the estate to be substituted as the real party in interest and incorporating the MSA into a final judgment.  Although defendant did not engage in conduct warranting the imposition of a constructive trust, the trial court overlooked the fact the parties had a fully signed MSA that was fair and equitable, whose validity defendant did not challenge, and that but for the delay in scheduling the uncontested hearing, both parties intended to proceed with the uncontested divorce.  Therefore, the equities and our public policy of encouraging and enforcing settlements in matrimonial matters did not warrant discarding the MSA and dismissing the matter. 

          While the appeal was pending, the Legislature amended the intestacy and equitable distribution statutes.  The amendments to the equitable distribution statute authorize Family Part judges to effectuate equitable distribution where a party dies during a divorce proceeding and the complaint has not been previously dismissed pursuant to Rule 4:6-2.  The Legislation is effective January 8, 2024. 

        The court reviewed the plain language of the new statutes and the legislative statement accompanying their passage, and concluded the Legislature intended to afford pipeline retroactivity to pending cases.  Therefore, the new statutes applied to this case and provided independent grounds to uphold and enforce the parties' MSA.

This interlocutory appeal concerns whether the New Jersey courts have personal jurisdiction over a defendant Utah company and its sole owner who entered into a contract to reserve a booth for plaintiff, a New Jersey company, at a biannual trade show in Germany planned for 2020.  The 2020 trade show was eventually cancelled because of the COVID-19 pandemic, and the company and its owner declined to refund plaintiff's payment or apply it to the next show in 2022.

Defendants argue they lacked the required "minimum contacts" to be sued in New Jersey, stressing that plaintiff originally initiated the parties' relationship in 2011 by asking defendants to arrange for space at an earlier trade show in 2012.  They further contend it would offend constitutional principles of fair play and substantial justice to compel them to litigate this civil case in this distant state.

The court affirms the motion judge's finding of personal jurisdiction.  Although cases that have found specific jurisdiction often have involved a defendant that first initiated contact with a plaintiff in the forum state, the court holds it is not dispositive that the New Jersey plaintiff originally initiated contact with the Utah company and its owner years before the present transaction.  The record shows the Utah defendants sought and procured renewal contracts with plaintiff for the next four biannual trade shows, including 2020.  In addition, the Utah defendants repeatedly solicited new or renewal business from at least ten other New Jersey pet company exhibitors during that time frame.

Given that conduct, the Utah defendants "purposely availed" themselves of doing business with New Jersey customers to a level sufficient to satisfy the criteria for in personam jurisdiction under the Due Process Clause.

In addition, the norms of fair play and substantial justice are not offended here.  Defendants could have included a forum selection clause in their form contract but failed to do so.  The parties have already taken depositions remotely, and defendants can request the trial court—in this modest non-jury case with few witnesses—to consider in its discretion allowing them to appear remotely at trial.

     After Hurricane Sandy struck New Jersey in October 2012, high water levels flooded several communities, causing extensive damage to infrastructure.  After the floodwaters receded, municipalities and businesses worked with their electric utility, Jersey Central Power & Light (JCP&L), to restore power on the boardwalk for the spring 2013 tourist season.  After being notified that required repairs had been completed and municipal inspectors had approved the repair work, JCP&L restored power to the boardwalk in May 2013.  Months later, a fire broke out, causing severe damage to boardwalk businesses.  After an investigation revealed that the source of the fire was likely malfunctioning electrical equipment which had been submerged beneath the boardwalk during the storm, multiple plaintiffs sued for damages, alleging negligence by various parties, including JCP&L. 

     Defendant JCP&L moved for summary judgment and the trial court granted it, finding plaintiffs' expert issued a net opinion on the question of JCP&L's duty to inspect customer owned electrical equipment.  The trial court next found plaintiffs failed to make any showing on the question of duty, warranting summary judgment.

     Plaintiffs appealed, contending the trial court erred by barring the expert's opinion and granting summary judgment dismissing plaintiffs' various theories which supported the proposition that there is an existing duty on the part of JCP&L to inspect customer owned and maintained equipment.  Plaintiffs further argued that if such a duty did not already exist, the severe nature of the superstorm and the JCP&L's "knowledge" that an electrical inspection may have been negligently performed at the fire origin site, supported the imposition of an enhanced duty to re-inspect the work of state-licensed municipal inspectors before restoring power.

     The court held that:  the trial court engaged in a proper exercise of discretion when it barred plaintiffs' expert testimony; public utility JCP&L had no duty to inspect the privately-owned electrical equipment of a commercial businesses as a pre-condition to restoring power.  The court therefore affirmed the trial court's order.

In this case of first impression, the court addressed the disclosure of a body worn camera (BWC) video statement recorded pursuant to the Body Worn Camera Law (BWCL), N.J.S.A. 40A:14-118.3 to -118.5, under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access. The recorded statement was made by a father, a plaintiff in the action, who had alleged sexual misconduct perpetrated against his special needs minor son by a relative. Law enforcement determined there was insufficient probable cause to charge.
The court concluded plaintiffs' argument that the BWCL's exemption provision, N.J.S.A. 40A:14-118.5(l), abrogates OPRA's exemptions was without merit. The court further concluded OPRA's exemption, N.J.S.A. 47:1A-9(b), applied to preclude disclosure of the BWC recording because our case law has long-established that information received by law enforcement regarding an individual who was not arrested or charged is confidential and not subject to disclosure. See N. Jersey Media Grp., Inc. v. Bergen Cnty. Prosecutor's Off., 447 N.J. Super. 182, 204 (App. Div. 2016). A review of the plain language of the BWCL's inspection provision, N.J.S.A. 40A:14-118.5(k), which provides that a review of a BWC recording is subject to OPRA, demonstrated the four exemptions listed in N.J.S.A. 40A:14-118.5(l) are in addition to OPRA's exemptions. Further, reading OPRA in pari materia with the BWCL demonstrated the Legislature did not intend to preclude the application of OPRA's exemptions to BWC recordings.
The court further rejected plaintiffs' argument they were entitled to the BWC recording under the common law right of access. The court concluded the common law right of access did not compel release of the BWC recording because under the balancing of interests factors established by the Supreme Court in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), law enforcement's and the individual's interests in confidentiality outweigh the public's and plaintiffs' interests in disclosure.
Therefore, the court affirmed the judge's order that plaintiffs were not entitled to disclosure of the BWC recording under either OPRA or the common law right of access.

This matter presents a question of first impression concerning the rights and responsibilities of New Jersey gun permit applicants under the Second Amendment to the United States Constitution as recently interpreted by the United States Supreme Court in N.Y. State Rifle & Pistol Assoc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022).    Petitioner appeals the denial of his application for a Firearms Purchaser Identification Card (FPIC) and a permit to purchase a handgun (PPH).  He raises several contentions, including a challenge to the constitutionality of a statute that requires denial of an FPIC/PPH application if it includes any knowingly false information, N.J.S.A. 2C:58-3(c). 

Bruen adopted a new test for resolving Second Amendment challenges, requiring modern regulations be consistent with this Nation's tradition of firearms regulation as shown by a well-established and representative historical analogue.  The court upholds the constitutionality of the falsification disqualification provision even though there appears to be no historical analogue for it.  Bruen acknowledged the constitutionality of "shall-issue" licensing regimes, which require gun permit applicants to file an application that prompts a background check.  Truthfulness on an application is an integral part of the background investigation process acknowledged in Bruen.  The falsification disqualifier safeguards the integrity of the licensing system without imposing additional substantive limits on who can purchase a firearm. 

The court further notes the plain text of the Second Amendment does not cover lying on an application form.  Because that conduct is not protected by the Second Amendment, the court concludes its regulation is not subject to the new "analogical" paradigm. 

The court also rejects petitioner's contention the falsification disqualifier applies only to material falsehoods.  Relatedly, the court rejects petitioner's contention the falsification disqualifier does not apply in this case because he retracted the false statement in his application during the Law Division hearing.  Petitioner's admission at the hearing that he had, in fact, been treated by a psychiatrist came too late, precluding the licensing authority from conducting a follow-up investigation before the hearing. 

Because the falsification disqualification provision categorically requires denial of petitioner's application, the court chooses not to address petitioner's facial and as-applied challenges to the trial court's alternative determination that issuance of an FPIC and PPH "would not be in the interest of public health, safety or welfare" under N.J.S.A. 2C:58-3(c)(5).

These two consolidated appeals by codefendant brothers in an armed robbery case concern a surveillance video recorded at the crime scene.  The key approximately six-second portion of the video shows three men, two of whom were allegedly armed, escorting the victim behind a deli moments before he was robbed.  The State contended the culprits in the video were the two brothers and their father.  The video was played without objection during the trial and the State's closing argument.

During its deliberations, the jury requested that the video be shown again multiple times, in slow motion and with pauses.  Over defense counsel's objection, the trial judge granted the jury's requests, and the videos were replayed in the courtroom under the judge's supervision.  On appeal, defendants argue the slow-motion video replays were unduly prejudicial, citing research showing that such slow-motion replays can increase juror perceptions of an actor's intentionality.

In this opinion of first impression, the court holds that, subject to offsetting concerns of undue prejudice, surveillance video footage may be presented to jurors during a trial and in summation in slow motion or at other varying speeds, or with intermittent pauses, if the trial court in its discretion reasonably finds those modes of presentation would assist the jurors' understanding of the pertinent events and help them resolve disputed factual issues.

The courts further holds—again subject to offsetting concerns of undue prejudice—that trial judges in their discretion may grant a jury's requests during deliberations to replay the videos in such modes one or more times, provided that the playbacks occur in open court under the judge's supervision and in the presence of counsel.

Going forward, the court offers several non-exclusive factors to assist judges when considering whether to allow surveillance videos to be shown in varying speeds or with intermittent pauses during the trial and summations, and on a jury's request during deliberations.  The court further recommends that the Model Criminal Jury Charge Committee consider crafting an instruction to guide jurors when surveillance videos are presented in such modes.

Other issues raised on appeal are addressed in the unpublished portion of this opinion.

In this appeal, the court addressed the novel issue of whether N.J.S.A. 18A:16-6 allows school board employees to wait until the final disposition of a civil or administrative action filed against them before seeking defense costs and indemnification from a school board.  The court concluded an employee cannot wait until the action is completed and must provide the school board with reasonable notice after the initiation of the proceeding.  The court observed the procedure under N.J.S.A. 18A:16-6.1 is distinguishable, which provides that an employee cannot seek reimbursement of defense costs and indemnification until the conclusion of a criminal or quasi-criminal action. 

Petitioners sought reimbursement of attorney fees and costs from the Trenton Board of Education following the favorable resolution of an administrative action against vice principal, Maria Azzaro, stemming from alleged improper grading practices and other improprieties.  The court affirmed the Commissioner of Education's final agency decision denying petitioners' request and held that bringing an action under N.J.S.A. 18A:16-6 twelve years after the initiation of an administrative action was not reasonable under the facts of the case.

In this medical malpractice action, plaintiff, as administratrix ad prosequendum for the estate of decedent, sued a nursing facility and a hospital alleging negligent care that resulted in pressure wounds and, ultimately, decedent's physical decline and death.  Plaintiff asserted direct claims of administrative negligence against both facilities as well as claims based on vicarious liability for nursing malpractice.  Plaintiff served a single affidavit of merit ("AOM") executed by a registered nurse who opined that the nursing home, the hospital, and members of their nursing and nursing administrative staff deviated from the applicable standards of care.  The AOM did not distinguish between the nursing staffs at the separate facilities and did not name any individual nurses.

The trial court conducted two Ferreira conferences.  Defendants objected to the AOM because the nurse who executed it was not qualified to render an opinion as to direct administrative negligence claims against the facilities and the AOM did not identify any individual nurses for whom the facilities could be held vicariously liable.  Plaintiff did not seek to conduct any pre-AOM discovery and declined the opportunity to serve a supplemental AOM.  Defendants moved to dismiss for failure to serve an appropriate AOM, and the trial court dismissed the complaint on that basis.  Plaintiff subsequently settled her claims against the hospital.  On appeal, plaintiff abandoned her direct administrative negligence claim against the nursing home and proceeded based only on vicarious liability.

The court affirmed, concluding the AOM was not sufficient to support plaintiff's vicarious liability claim because it indiscriminately combined the nursing staffs of two separate facilities and did not identify any individual nurses.  The court also concluded plaintiff's claim was in essence an administrative negligence claim because it was based on the nursing home's systemic failure to provide adequate care rather than a claim based on the negligence of any individual nurses.

         In this appeal, the court considers whether a non-resident, religious organization is subject to personal jurisdiction in New Jersey related to allegations of sexual abuse of a child in New Jersey by a priest of the religious organization.  Plaintiff D.T. alleges that Michael McCarthy, a former Catholic priest, sexually abused him in New Jersey in 1971.  At that time, plaintiff was fourteen years old, and McCarthy was serving as a priest and teacher in the Archdiocese of Philadelphia (the Archdiocese).  Plaintiff appeals from an order dismissing his claims against the Archdiocese for lack of personal jurisdiction.  Because there are no facts establishing that the Archdiocese purposefully availed itself of any benefits in or from New Jersey related to McCarthy's alleged abuse of plaintiff, the court affirms.

In this appeal, the court considers whether a non-resident, religious organization is subject to personal jurisdiction in New Jersey related to allegations of sexual abuse of a child in New Jersey by a priest of the religious organization.  Plaintiff alleges that Father John Butler, a Catholic priest, sexually abused him from approximately 1995 to 1998, when plaintiff was approximately nine to twelve years old.  At that time, Butler was serving as a priest in New Jersey, and the Diocese of Richmond, Virginia (Richmond) had encouraged and allowed Butler to go to New Jersey to serve as a priest, knowing that Butler had sexual propensities towards children.

Richmond appeals from an order finding that it was subject to specific personal jurisdiction in New Jersey related to Butler's actions in New Jersey.  Because the facts establish that Richmond purposefully availed itself of the benefits of allowing Butler to go to New Jersey to serve as a priest, the court holds that there is specific personal jurisdiction over Richmond and affirms.

The main issue in this criminal appeal is whether the Luring, Enticing Child by Various Means statute, N.J.S.A. 2C:13-6(a), requires the State to prove a defendant lured or enticed a "child," in this case an undercover law enforcement officer posing as a fourteen-year-old girl, into traveling or accompanying the defendant to some location other than the victim's own home.

The court rejects defendant's contention that because he enticed the "child" to meet him alone, and defendant traveled to the "child's" home, a judgment of acquittal should have been entered.  By its plain language, the statute forbids an adult from "luring or enticing a child to meet or appear at any other place."  The child's home can be the "other place."  Here, that location is a place "other" than where the defendant was when he communicated with the child.

There is no reason to construe the expansive language of "any other place" as somehow containing an unwritten exception for places where the child is already located.  When the prohibited meeting was arranged, the course of action into which the child was lured was staying alone, isolated, and vulnerable.

Applying these principles, the court affirms the conviction and sentence for second-degree luring, N.J.S.A. 2C:13-6 (a); second-degree attempted sexual assault, N.J.S.A. 2C:5-1(a)(3) and 2C:14-2(c)(4); third-degree attempted endangering the welfare of a child, N.J.S.A. 2C-24-4(a)(1); 2C:5-1(a)(1) and (a)(3); and third-degree attempted promoting obscene material to a minor, N.J.S.A. 2C:34-3(b)(1), 2C:5-1(a)(1) and (a)(3).

The unpublished portion of this opinion rejects unrelated arguments raised by defendant alleging evidentiary errors.

This matter arises from a petition to invalidate the candidacies of two individuals elected to the Trenton City Council.  Plaintiffs alleged Yazminelly Gonzalez did not satisfy the requirement that she reside in Trenton for one year prior to the election.  They also alleged defendant Jasi Mikae Edwards was ineligible for office because she had a criminal history in Pennsylvania.  The court affirmed the trial court's order dismissing both challenges.

The court first addressed plaintiffs' failure to establish standing under N.J.S.A. 19:29-2, which provides a petition challenging an election must be signed by at least fifteen voters in the county or, alternatively, by a candidate defeated in the election.  Plaintiffs' petition had at most three signatures.  Moreover, a subsequent attempt to add a defeated candidate to the petition was untimely.

Despite plaintiffs' failure to establish standing, the court addressed the substantive issue of whether Gonzalez was eligible to run for Council.  The court ultimately affirmed the trial judge's credibility findings that Gonzalez satisfied the residency requirements set forth in N.J.S.A. 40A:9-1.13, in that she resided in Trenton for more than a year prior to her election.

As to Edwards, the court observed plaintiffs conflated the forfeiture and eligibilty provisions of N.J.S.A. 2C:51-2.  The court noted the distinction between criminal offenses requiring the forfeiture of office pursuant to N.J.S.A. 2C:51-2(a) and offenses rendering a candidate ineligible from holding office under N.J.S.A. 2C:51-2(d).  N.J.S.A. 2C:51-2(a) authorizes forfeiture of public office when a person is convicted while "holding" public office if the offense:  involves dishonesty, is a crime of at least the third degree, or involves or touches upon the candidate's public office.  Importantly, Edwards was not convicted—while holding public office—of any predicate offense under N.J.S.A. 2C:51-2(a).  Instead, her conviction occurred in 2019, prior to her holding office.  N.J.S.A. 2C:51-2(a) does not bar a person from seeking public office in the future based on a past conviction.

The court noted an individual may run for public office so long as the candidate was not convicted of an offense "involving or touching on his public office." N.J.S.A. 2C:51-2(d).  Plaintiffs did not allege Edwards' prior conviction touched on her public office.  Although the court does not deem a shoplifting offense to be trivial, Edwards' conviction for shoplifting occurred prior to her election to Council, and she disclosed it when she became a candidate.   Therefore, the court determined Edwards' conviction did not implicate N.J.S.A. 2C:51-2(d).

Lastly, the court further concluded that even if this matter involved a forfeiture claim, plaintiffs lacked standing under N.J.S.A. 2C:51-2(b)(2), because only the county prosecutor or the Attorney General have standing to challenge the holder of public office "when the forfeiture is based upon a conviction of an offense under the laws of another state or of the United States. . . ." 

In this tax sale foreclosure appeal, the court addressed whether the United States Supreme Court's recent decision in Tyler v. Hennepin County, 598 U.S. 631 (2023), which declared a taxing authority's confiscation of a property owner's equity violated the Fifth Amendment Takings Clause, bars a third-party tax sale certificate holder's foreclosure of a property owner's equity under the New Jersey Tax Sale Law (TSL), N.J.S.A. 54:5-1 to -137, and if barred, whether pipeline retroactivity is afforded.  The court also addressed whether the motion judge's decision to vacate final judgment under Rule 4:50-1(f), based primarily on defendant having redemption funds and significant property equity, was an abuse of discretion. 

Defendant Alessandro Roberto[1] owned a mixed residential and commercial use property located in Paterson.  In 2010 and 2016, defendant failed to pay his municipal sewer tax bills resulting in plaintiff's $606 purchase of three property tax sale certificates.  Almost eleven years after the last tax sale certificate was purchased, plaintiff commenced a tax sale foreclosure.  As the matter was uncontested, plaintiff obtained final judgment for $32,973.15.  Defendant moved to vacate final judgment pursuant to Rules 4:50-1(e) and (f), arguing entitlement to equitable relief because he had redemption funding, would lose significant equity, and suffered COVID-19 related financial difficulties.  The Chancery Division judge vacated final judgment pursuant to Rule 4:50-1(f).

Plaintiff 257-261 20th Avenue Realty, LLC appealed from the Chancery Division orders, which conditionally vacated final judgment and permitted redemption, vacated final judgment upon satisfaction of the conditions, and dismissed the action with prejudice.  Plaintiff argued the judge erred in finding exceptional circumstances existed to vacate final judgment.  Defendant argued the totality of facts weighed in favor of exceptional circumstances to vacate final judgment and the judge did not abuse his discretion.  After the judge's decision and the submission of merits briefs on appeal, the United States Supreme Court decided Tyler. 

The court affirmed the decision to vacate final judgment, based on the judge's detailed findings of exceptional circumstances under Rule 4:50-1(f), discerning no abuse of discretion.  The court also concluded cause existed to vacate judgment as the application of Tyler to New Jersey's similar TSL framework established that the confiscation of a New Jersey property owner's equity, through a tax sale foreclosure, violates the Fifth Amendment Takings Clause.  As Tyler established a new principle of law, pipeline retroactivity is afforded.

[1]  Defendant's first name was incorrectly pleaded as Alesandro. 

In this matter of first impression, the court considered whether a joint venture formed for the sole purpose of bidding on a public contract is required to be registered as a contractor under the Public Works Contractor Registration Act (PWCRA), N.J.S.A. 34:11-56.48 to - 56.57, at the time of the bid submission.  The court held that the PWCRA applies to a joint venture and requires registration at the time of bid submission to local governments.  The court likewise concluded the lack of a PWCRA registration certificate by the joint venture renders the bid substantially non-compliant and non-conforming with the local governments' bid specifications.  Lastly, the court held a local government's decision to require all bidders to comply explicitly with the PWCRA as set forth in the bid specification was not arbitrary, capricious, or unreasonable because it was consistent with the local finance and public contract laws.  Accordingly, the court affirms the rejection of the joint venture's bid and the award of the public contract to the lowest responsible bidder.

The issue in this appeal is whether the trial court erred in its application of the law or abused its discretion in its denial of appellants' fee applications.  In a guardianship matter filed by Adult Protective Services (APS), the trial court appointed appellants to serve as the counsel and the temporary guardian of the alleged incapacitated person (AIP), who had no assets and a limited income.  After working together to obtain services for the AIP, appellants and APS agreed the AIP needed only a limited guardianship, and the trial court granted that relief. 

Appellants moved for an order requiring APS to pay their fees and costs, arguing they were entitled to fees pursuant to Rule 4:42-9(a)(3), which permits a trial court to award fees in a guardianship matter pursuant to Rule 4:86-4(e), which in turn authorizes a court to compensate appointed counsel and the guardian ad litem in a guardianship matter "out of the estate of the [AIP] or in such other manner as the court shall direct."  The trial court denied the fee applications, finding courts do not have the statutory authority to require APS to pay the fees of court-appointed counsel and temporary guardians and that APS had not engaged in any misfeasance warranting fee-shifting.  The court agreed, concluding the Adult Protective Services Act, N.J.S.A. 52:27D-406 to -425, did not give courts the authority to order APS to pay fees under these circumstances.  

The main issue in this criminal appeal is whether the trial judge erred during jury selection in denying defense counsel's requests to remove for cause two potential jurors who are police officers.  The officers are employed by police departments in different municipalities from where the alleged offenses occurred, investigated, and were prosecuted, but within the same county.

The court rejects defendant's contention that because interaction with the county prosecutor's office is inherently a "necessary component of their jobs as police officers," active-duty police officers who work in the same county where the criminal charges arose must be stricken for cause from juries upon a defendant's request.  Instead of applying a categorical bar, the court continues the tradition of State v. Reynolds, 124 N.J. 559, 565 (1991), in which the Supreme Court recognized the concerns about the potential bias of police-officer-jurors, but which also declined to endorse a strict policy to remove them for cause.  The Court in Reynolds instructed judges "should be inclined to excuse a member of the law enforcement community" from the jury on a defendant's request, leaving it to the trial courts to perform an individualized assessment of each juror's ability to be fair and impartial.  Ibid.

Extending the nuanced approach of Reynolds, the Court holds that a per se finding of cause to strike a criminal juror in law enforcement should only apply to employees of the same police department or prosecutor's office that investigated or prosecuted the charged offense.  To aid trial judges and counsel, the court presents non-exhaustive factors that should be considered in evaluating, on a juror-by-juror and case-by-case basis, whether there is cause to remove a juror employed in law enforcement.  If, on the whole, those factors establish cause, the trial court "shall" remove the juror, as is required under the recently reinforced language of Rule 1:8-3(b).

Applying these principles, the court affirms the trial judge's denial of defendant's request to strike for cause one of the two police officers, but finds error with respect to the other officer, based on the officers’ respective voir dire responses.  However, the latter officer was never summoned to the jury box, so the error in failing to remove the juror for cause was harmless.

The unpublished portion of this opinion rejects unrelated arguments raised by defendant alleging evidentiary and sentencing errors.

         On leave granted in this child sexual abuse case, the court affirmed the trial court's denial of summary judgment to defendants Watchtower Bible and Trust Society of New York, Inc. and East Hackensack Congregation of Jehovah's Witnesses (defendants).

         Plaintiff C.P., now an adult, was sexually abused by her grandfather in the 1970's and 1980's.  He was authorized to serve as an elder for defendants' congregations.  Plaintiff alleges defendants owed her a "special duty" to protect her from her grandfather's sexual criminal acts because they knew he had engaged in sexual conduct with at least three minors, including herself, but did not discipline him and negligently retained him as an elder.

         In 1994, plaintiff filed a lawsuit against her grandfather and other family members, which resulted in a sizeable jury award in her favor.  Plaintiff did not name defendants in the 1994 lawsuit because the Charitable Immunity Act (CIA) as it existed at the time precluded actions against non-profit, educational, and religious institutions for willful, wanton, or grossly negligent conduct resulting in sexual abuse.  In 1995, the CIA was amended to permit such causes of action.  N.J.S.A. 2A:53A-7(a).  In 2006, the CIA was again amended to provide an exception to immunity for negligence claims where the supervision, hiring, and retention of an employee, agent, or servant led to sexual abuse.  N.J.S.A. 2A:53A-7.4.

         In 2021, plaintiff filed suit against defendants under the Child Victims Act (CVA), L. 2019, c. 120, which provided a two-year revival window for victims to file otherwise time-barred claims for sexual crimes committed against them while minors.  N.J.S.A. 2A:14-2(b).  The CVA also amended the CIA to allow retroactive liability against religious and other organizations.  N.J.S.A. 2A:53A-7 and N.J.S.A. 2A:14-2(b).

         The court agreed with the trial court that defendants were not entitled to summary judgment because plaintiff's claims asserted in her 2021 complaint were not cognizable under the CIA in 1994.  The court further found the trial court properly supported its decisions rejecting the applicability of the entire controversy doctrine and judicial estoppel.

In this probate dispute, the court considered whether application of N.J.S.A. 3B:3-14 conflicts with federal regulations governing ownership of United States Savings Bonds to warrant preemption by virtue of the Supremacy Clause, Article VI, Clause 2, of the United States Constitution.  Under N.J.S.A. 3B:3-14, divorce automatically revokes a disposition of property in a governing instrument made by a divorced individual to his or her former spouse before the divorce.  Defendant ex-wife filed a claim against her ex-husband's estate seeking payment of outstanding obligations under the parties' divorce settlement agreement (DSA) when her ex-husband died intestate prior to satisfying the obligations.  The ex-husband's estate sought to offset payment of the DSA's outstanding obligations with payment defendant received as the pay-on-death (POD) beneficiary when she redeemed federal savings bonds owned by her ex-husband.  

Although her ex-husband had not changed or revoked the POD beneficiary designation on the bonds following the divorce as permitted under federal regulations and the DSA was silent as to the disposition of the bonds, the trial court applied the presumptive revocation provision of N.J.S.A. 3B:3-14 to grant the estate partial summary judgment, allowing the redemption of the savings bonds to partially satisfy the DSA obligations.  The court reversed, holding that because federal regulations govern the rights and obligations created by a beneficiary's bond ownership, absent evidence of fraud, breach of trust, or other wrongful conversion of property, the regulations take precedence and preempt the inconsistent provisions of N.J.S.A. 3B:3-14.  The court held that by determining defendant's beneficiary designation was automatically revoked under N.J.S.A. 3B:3-14 by virtue of the divorce, the trial court misinterpreted the DSA and failed to give effect to defendant's federal ownership rights, "render[ing] the award of title meaningless."  Free v. Bland, 369 U.S. 663, 669 (1962).

The court considered the final agency decision of the Commissioner of Education granting the Board of Education of the Borough of Kinnelon's motion for summary decision, denying appellant's cross-motion for summary decision, and removing appellant from her position on the Board.

The Commissioner ruled a ten-day letter filed by a parent of a child in need of special education services constituted a substantial conflict of interest sufficient to remove the parent from her duly elected position on the Board of Education.  Our Supreme Court of New Jersey previously addressed circumstances wherein a due process claim that included a request for specific monetary relief was determined to be a substantial conflict between a board member and the board, requiring removal.  Bd. of Educ. of City of Sea Isle City v. Kennedy, 196 N.J. 1, 22 (2008).  The question the court considered here is whether the submission of a ten-day letter raises a similarly substantial conflict of interest.  The court concluded, based on the record, it did not.

In this appeal of first impression, the court must determine whether the "clean slate" statute, N.J.S.A. 2C:52-5.3, which permits an expungement of a New Jersey criminal record if ten years have passed "from the date of the person's most recent conviction," applies to a conviction from another state.  (Emphasis added).  The trial court entered an order expunging petitioner's New Jersey criminal record after determining her 2017 Virginia misdemeanor conviction did not preclude eligibility for expungement under the "clean slate" statute because an out-of-state conviction does not constitute a "most recent conviction."  The State contends the trial court erred in its interpretation of the "clean slate" statute, arguing petitioner's Virginia conviction must be considered, and because it was entered within ten years of her petition for expungement, her petition should have been denied. 

The court reverses because the text of the "clean slate" statute and related expungement statutes do not support the trial court's interpretation to preclude consideration of an out-of-state conviction from the phrase "most recent conviction."  Moreover, such interpretation defies common sense given the "clean slate" statute's purpose to expunge a criminal record of an applicant who has not violated the law within ten years of their last New Jersey conviction.  Consequently, petitioner's Virginia offense presently disqualifies her from expungement of her New Jersey criminal record under the "clean slate" statute.

New Jersey's black bear hunt has drawn considerable public and judicial scrutiny over the years.  At issue on this appeal is the validity of the emergency rule that precipitated the December 2022 hunt. 

On November 15, 2022, the State authorized the adoption of a new Comprehensive Black Bear (Ursus americanus) Management Policy (CBBMP) and related amendments to the State Fish and Game Code (Game Code), N.J.A.C. 7:25-5.1 to -5.39, pursuant to its emergency rulemaking authority under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, thereby permitting a two-week black bear hunt that was scheduled to commence three weeks later on December 5, 2022.  The emergency rule was approved by respondents New Jersey Fish and Game Council (Council); Council Chairman Frank J. Virgilio; New Jersey Department of Environmental Protection (DEP); DEP Commissioner Shawn M. LaTourette; and Governor Philip D. Murphy.

Following the November 30, 2022 emergent application of appellants Animal Protection League of New Jersey, Angela Metler, Doreen Frega, and others to move for a stay of the November 15, 2022 concurrent emergency rule and proposed 2022 CBBMP, the court temporarily stayed the hunt and considered appellants' application.  On December 5, 2022, the court denied appellants' motion and lifted the stay; the Supreme Court denied appellants' ensuing emergent application for relief.  The black bear hunt thus proceeded.  Thereafter, the 2022 CBBMP and amendments to the Game Code rule were adopted pursuant to formal rulemaking. 

Noting the issues raised on appeal concern matters of public interest, the court considered the merits of appellants' contentions on a full record and concludes the State violated the emergency rulemaking requirements under section N.J.S.A. 52:14B-4(c) of the APA, both by failing to demonstrate enactment of the rule was necessary on fewer than thirty days' notice and the hunt was necessary to avert imminent peril.  Accordingly, the court reverses the State's emergency rulemaking.   

Prior to this non-jury trial, defendant served an offer of judgment, which plaintiff rejected. At the close of plaintiff’s case in chief, the trial judge granted defendant’s motion for involuntary dismissal under Rule 4:37-2(b). Defendant then applied for counsel fees and costs pursuant to Rule 4:58-6, which the judge denied.

The court holds that because a successful motion under Rule 4:37-2(b) results in the "dismissal of the action" and no verdict in the plaintiff's favor is rendered, the denial of fees and costs was manifestly correct.  The policy reasons underlying the zero-recovery exceptions to Rule 4:58-3(c) would be undermined if such fee-shifting were permitted. 

This appeal concerns the interpretation and application of N.J.S.A. 15A:2.1(d), a provision within the New Jersey Nonprofit Corporation Act, N.J.S.A. 15A:1-1 to 14-26.  In relevant part, Section 2.1(d) states:

No corporation organized under this act shall have or issue capital stock or shares.  No dividend shall be paid and no part of the income or profit of a corporation organized under this act shall be distributed to its members . . . but a corporation may pay compensation in a reasonable amount to its members . . . for services rendered, may pay interest on loans or other credit advances by members . . . [and] may confer benefits on its members in conformity with its purposes . . . .

[(emphasis added).]

Plaintiff paid $7,500 to become a member of defendant Atlantis Yacht Club, a nonprofit organization formed under N.J.S.A. 15A-2.1.  His payment was memorialized in a Certificate of Interest ("COI").  In 2015, plaintiff informed the Club he was withdrawing as a member.  Pursuant to the Club's by-laws, upon his withdrawal plaintiff would be eligible to receive a repayment from the Club to "redeem" his COI at such time when a new member joined. 

By the time plaintiff withdrew in 2015, the Club had raised its membership fee to $25,000.  Under the extant by-laws, the Club was authorized to pay plaintiff (subject to adjustments for any unpaid charges) the amount of the new member's fee, minus a $5,000 capital assessment, for a net sum of $20,000.  When a new member eventually joined in 2020, the Club notified plaintiff that it would pay him the $20,000 redemption amount in installments over three years.  The Club accordingly paid plaintiff a first installment in 2020 of $3,333.33, informing him that his second- and third-year annual payments in 2021 and 2022 would each be $8,333.33. 

Before the second-year installment to plaintiff was due in July 2021, the Club had what is described as a "compliance review" conducted by a law firm.  The firm advised the Club that making such a payment to withdrawing members at a higher amount than their original membership fee would risk the Club’s nonprofit status.  That advice prompted the Club to rescind its scheduled installment payments to plaintiff.   

Plaintiff sued the Club to enforce its promise to pay him the additional installments.  The Law Division judge ruled in plaintiff's favor.  The Club now appeals. 

The novel legal question presented is whether the payment arrangement was, as the Club contends, an illegal contract because it would entail the "distribution" to a member of "income or profit of the corporation" disallowed for nonprofits under N.J.S.A. 15A:2–1(d).  

The court affirms the trial judge's decision. The funds a new member pays the Club for a COI is a form of collateral to secure against future sums the member may owe the Club.  Any higher amount paid to the withdrawing member at the time of the COI’s redemption is not "income or profit of the corporation" within the meaning of N.J.S.A. 15A:2-1(d).

In this guardianship action, defendant appeals from a January 7, 2022 judgment that terminated her parental rights to her two biological children, who have resided in a non-adoptive home since shortly after their removal in March 2019.  At the time of trial, the Division's plan for the children was termination of parental rights followed by placement with their maternal relatives in Dubai.  Concurrently, the Division was exploring select home adoption. 

At trial, the Division elicited hearsay testimony and lay opinion from the adoption caseworker concerning the Division's conversations with the consulate and unspecified attorneys in Dubai.  Referencing those conversations, the worker testified that placement with the maternal relatives was not a viable option for the children under Dubai law unless the court makes certain findings about defendant's inability to care for the children and defendant consented to the transfer.  The trial judge relied on that hearsay testimony and lay opinion to find there were no alternatives to termination under the second part of prong three of the best interests of the child test, N.J.S.A. 30:4C-15.1(a)(3).

The court concludes the admission of the caseworker's testimony constituted harmful error.  The feasibility of adoption or a Kinship Legal Guardianship (KLG)-type arrangement under United Arab Emirates law is best elicited through expert testimony.  Further, it appears the testimony elicited by the Division at trial may not have been accurate.  Post-judgment, the Division has been exploring placement with the maternal relatives in Dubai – in the absence of defendant's consent.  Because the Division's plan appears to be a form of KLG, the Division has not clearly and convincingly proven all alternatives to termination have been ruled out. 

The court therefore remands the matter to the trial judge to reopen the guardianship proceedings. On remand, the judge should consider whether adoption or a KLG-type custodial arrangement with the maternal relatives in Dubai is feasible under Dubai law only after considering the testimony from a qualified expert; and whether, under the current circumstances, termination would not do more harm than good, under the fourth prong, N.J.S.A. 30:4C-15.1(a)(4).  The court does not foreclose the judge from considering whether defendant has continued therapeutic services and whether she could safely parent the children in the foreseeable future under the second prong, N.J.S.A. 30:4C-15.1(a)(2).

          In this appeal, the court affirmed the Tax Court's opinions finding plaintiff Cargill Meat Solutions Corp. is subject to the litter-generating tax under the Clean Communities Program Act (the Act), N.J.S.A. 13:1E-213 to -223, which imposes a tax on the sale of litter-generating products in this state involving manufacturers, wholesalers, distributors, and retailers.  Cargill is a Delaware corporation headquartered in Kansas that manufactures litter-generating packaged meat products throughout the country.  Cargill stores and distributes meat products through its Swedesboro facility.

          The court affirmed the Tax Court's finding that Cargill was not subject to the wholesaler-to-wholesaler exemption under N.J.S.A. 13:1E-716 and rejected Cargill's argument that it should not be considered a manufacturer under the Act because its operations occur out-of-state.  The court also affirmed the Tax Court's determination that the monies in the Clean Communities Program Fund were not appropriated under the Annual Appropriations Act and did not violate the Appropriations Clause of the New Jersey Constitution, or the commerce and due process clauses of the United States Constitution.

This appeal pertains to the civil personal injury prosecution of statutory and common law claims arising from allegations of sexual abuse committed fifty-five years ago against a child by his sister, who also was a minor when the acts occurred. 

In 2019, the New Jersey Legislature enacted the Child Victims Act (CVA), L. 2019, c. 120, which supplemented and amended the statute of limitations for statutory and common law causes of actions for sexual abuse. The CVA enacted two statutes of limitations that expanded the time for filing  personal injury claims resulting from the commission of one of the following four enumerated sexual offenses:  (1) "the commission of sexual assault"; (2) "any other crime of a sexual nature"; (3) "a prohibited sexual act as defined in [N.J.S.A. 2A:30B-2]"; (4) "or sexual abuse as defined in [the Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1]."  N.J.S.A. 2A:14-2a; N.J.S.A. 2A:14-2b.  Pertinent to this appeal is the enacted statute of limitations which provided a two-year revival window for victims to file otherwise time-barred claims for sexual crimes committed against them when they were minors.  N.J.S.A. 2A:14-2b.

The court considered the dismissal of plaintiff's CSAA claims, concluding a derivative statutory passive abuser claim against a parent was properly dismissed by the motion judge as not cognizable under the CSAA because the alleged sexual abuse was committed by a minor.  Because the CSAA defines sexual abuse as sexual contact or sexual penetration committed by an adult, a CSAA claim alleging sexual assault by minor does not present a valid cause of action. 

The court further considered the motion judge's dismissal of plaintiff's common law claims stemming from the alleged sexual abuse committed by a minor, which were timely filed under the two-year revival window.  The court concluded the common law claims are actionable independent of the CSAA. 

This administrative appeal concerns a State roadway project's alteration of a commercial property owner's access to a State highway.  It is the first published opinion to address certain provisions adopted in 2018 that extensively revised the State Highway Access Management Code (the "Access Code"), N.J.A.C. 16:47-1.1 to -14.1.

The pivotal legal issue concerns whether the roadway project's replacement of appellant's direct access to State Highway 66 through an existing driveway with access through a shared driveway connecting to an adjacent landowner's parcel comprises a "revocation" or "removal" of appellant's means of access, or, alternatively, whether the change is simply a "modification" of access.  The configuration will enable motorists going to appellant's property from Route 66 to turn into the shared driveway, briefly travel on an easement through the adjacent property, and then branch off to an internal driveway on appellant's lot leading to appellant's commercial building.  

The court affirms the Department of Transportation's final agency decision deeming the new configuration a "modification" of appellant's access to Route 66, rather than a "revocation" of access under N.J.S.A. 27:7-94, or a “removal" of access under N.J.A.C. 16:47-2.1.  Under the revised 2018 version of the Access Code, the configuration is a modification because it entails "replacing all ingress or all egress between a State highway and a lot or site with ingress or egress via a private easement on a different lot or site."  N.J.A.C. 16-47-2.1.

The configuration is not a revocation or a removal because it does not eliminate all access to Route 66 and does not require motorists to traverse another public street in order to connect to appellant's premises.  The Department did not misapply its authority and regulatory expertise in deeming the roadway changes a modification.

         In these consolidated matters, appellants are public adjusters who challenge final agency decisions by the commissioner of the Department of Banking and Insurance, finding appellants' contracts violated the New Jersey Public Adjuster's Licensing Act (PALA), N.J.S.A. 17:22B-1 to -20 and regulations enacted by the commissioner governing the conduct of public adjusters.  N.J.A.C. 11:1-37.1.  The commissioner found appellants violated PALA because their contracts did not comply with N.J.A.C. 11:1-37.13(b)(5), which requires every public adjuster contract include "(i) [t]he procedures to be followed by the insured if [they] seek[] to cancel the contract, including any requirement for a written notice; [and] (ii) [t]he rights and obligations of the parties if the contract is cancelled at any time[.]"  The commissioner found appellants violated these regulations because their contracts did not contain language permitting consumers to cancel their contracts at any time.

         The court reviewed PALA's legislative history and found no evidence the Legislature intended public adjuster contracts contain provisions for cancellation at any time.  The plain language of the regulations only requires that public adjuster contracts set forth the procedures to be followed in the event of a cancellation and advise consumers of their rights in the event of cancellation.  Therefore, the commissioner misinterpreted the regulations, and her findings were ultra vires of her authority under PALA.  As a result, the court reversed the findings appellants violated N.J.A.C. 11:1-37.13(b)(5)(i) and (ii) and remanded for a recalculation of the penalties and costs imposed on appellants.

In these matters, the court considered the scientific reliability of expert testimony that shaking alone can cause the injuries associated with shaken baby syndrome (SBS), also known as abusive head trauma (AHT).  The State sought to admit the testimony to prove aggravated assault and child endangerment charges against defendants Darryl Nieves and Michael Cifelli, fathers of infant sons who exhibited associated symptoms while in their respective fathers' care.  Following a hearing in the Nieves matter pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the trial judge concluded that expert testimony of shaking-only SBS/AHT was not scientifically reliable and barred admission of the evidence at trial.  The trial judge in the Cifelli matter adopted the finding. 

The court affirmed the judge's decision in Nieves, holding that the State failed to establish SBS/AHT's general acceptance within the medical community through expert testimony, supporting authoritative scientific studies, and judicial opinions.  Where, as here, the underlying theory integrates multiple scientific disciplines, the proponent must establish cross-disciplinary validation to establish reliability.  The State failed to do that here.  Despite its seeming acceptance in the pediatric medical community, the evidence showed a real dispute surrounding the hypothesis that the biomechanical principles underlying SBS/AHT actually supported the conclusion that shaking only can cause the injuries associated with SBS/AHT.

In this matter, the court considered whether defendant's act of making and disseminating a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divorce, and asking community members to "press" her husband to deliver the get constituted the predicate act of harassment, in violation of N.J.S.A. 2C:33-4(a), to justify the issuance of a final restraining order under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.  The court held that defendant's communication was protected by the Free Speech Clause of the First Amendment and the New Jersey Constitution and did not fall into any of the narrow exceptions—incitement to imminent violence or true threats—which would rob it of its protected status.  The court likewise concluded that because defendant's communication was not impermissibly invasive of plaintiff's privacy and was animated by a legitimate purpose, the acquisition of a get, rather than a purpose to harass, it was not violative of the harassment statute.  Lastly, the court held that plaintiff's allegation that there was a general tendency of violence toward get refusers in the Jewish community was inapposite because the claim was not supported by the record and because the theoretical possibility that a third party will commit a criminal act cannot render otherwise permissible speech unlawful.  As a result, the court vacated the final restraining order entered against defendant.

The court interprets Exemption 11 of the Highlands Act, N.J.S.A. 13:20-28(a)(11), which exempts entirely from all provisions of the Act and "any rules or regulations" adopted by the DEP pursuant to it:

the routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines, rights of way, or systems, by a public utility, provided that the activity is consistent with the goals and purposes of this act,

to exempt only "routine" upgrades to a utility's lines, rights of way or systems in the Preservation Area, rejecting the DEP's interpretation that "routine" modifies only "maintenance and operations" and does not modify "upgrade." 

Applying its interpretation, the court vacates the Highlands Applicability Determination issued to the Tennessee Gas Pipeline Company exempting its proposed compressor station in the Preservation Area from permitting review and remands the matter to the DEP for consideration of whether Tennessee's new compressor station can qualify as a "routine upgrade" to its pipeline system, thus bringing it within Exemption 11.

During the investigation of an alleged drug distribution network, the State Police obtained wiretap orders authorizing the interception of communications on various cellular phones pursuant to the New Jersey Wiretapping and Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to -37.  By leave granted, the State challenged an order suppressing all intercepted communications that followed the interception of a privileged marital communication between one of the defendants and his codefendant spouse.  The trial court entered the order under N.J.S.A. 2A:156A-21, which in pertinent part mandates the suppression of "the entire contents of all intercepted wire, electronic[,] or oral communications obtained during or after any interception" that is "unlawfully intercepted" or "not made in conformity with" the wiretap order or authorization.  N.J.S.A. 2A:156A-21(a) and (c). 

The court affirms the order based on its interpretation of the Act.  The State concedes that at the time of the interception of the initial privileged marital communication, N.J.R.E. 509 did not include a crime-fraud exception, and, as a result, the initial and subsequent 305 intercepted privileged marital communications are inadmissible at defendants' trial under the then-extant version of N.J.R.E. 509.  The State argues interception of the initial privileged marital communication did not trigger the mandatory suppression of all subsequent wiretap interceptions during the investigation under N.J.S.A. 2A:156A-21 because interception of the privileged marital communication was neither unlawful nor made in violation of the wiretap orders. 

The court concludes that not every interception of a privileged marital communication is unlawful and requires application of N.J.S.A. 2A:156A-21's suppression remedy.  The court finds incidental interceptions of privileged communications during the mandatory intrinsic minimization process attendant to the execution of every wiretap order are anticipated by, and authorized by, the Act, and do not trigger N.J.S.A. 2A:156A-21's suppression remedy. 

The court holds that, because the State Police knew the initial interception was of a communication between married spouses, made no effort to minimize the interception, and monitored the communication beyond the time necessary to determine if it was privileged, the interception was unlawful under the Act and violated the wiretap order, which expressly required minimization.  The court rejects the State's argument suppression is not required because the initial marital communication, and the 305 subsequent marital communications, were intercepted based on the good faith but erroneous belief the crime-fraud exception recommended by the Court in State v. Terry, 218 N.J. 224 (2014), and later enacted, N.J.S.A. 2A:84A-22(2)(e), L. 2015, c. 138, § 2, eff. Nov. 9, 2015, would apply retroactively such that the interceptions would be supported on that basis. 

In this legal-malpractice case, the corporate plaintiff and its president appeal from an order granting defendants' summary-judgment motion.  The trial court found plaintiffs' expert had failed to analyze how defendants' alleged breaches of the standard of care would have impacted a potential jury verdict or settlement and had not opined that defendants' alleged malpractice proximately caused any damages.  The judge also dismissed the president's individual claim because the undisputed facts showed she and defendants did not have an attorney-client relationship.   

The court affirms, holding plaintiffs had not established proximate cause as a matter of law and that expert testimony was necessary in this case to prove proximate causation and damages.  With respect to the president's individual claim of legal malpractice, the court holds she failed to demonstrate the existence of an attorney-client relationship between herself and defendants. 

Defendant appeals from Family Part orders enforcing provisions of a marital settlement agreement (MSA).  A critical area of dispute centered on plaintiff's desire to obtain a get—a divorce recognized under Jewish religious law through a process known as a beis din proceeding.  Before a verdict was reached in the Family Part divorce trial, the parties reached an agreement on all issues, including each party's obligations with respect to participation in beis din proceedings.

The court rejects defendant's argument that the Family Part judge violated his First Amendment rights by ordering him to participate in beis din proceedings and to sign an arbitration agreement with the beis din.  The court acknowledges the fundamental principle that civil courts may not become entangled in religious proceedings.  The First Amendment's Establishment Clause bars a state from placing its support behind a religious belief, while the Free Exercise Clause bars a state from interfering with the practice of religion.  U.S. Const. amend. I.  The court concludes the Family Part judge was asked to enforce a civil contract, not a religious one.  The court holds the MSA is a legally binding contract based on ample consideration from both parties and entered into knowingly and voluntarily.  The Family Part judge therefore had the lawful authority to enforce the agreement as written.

New Jersey Supreme Court precedent permits civil courts to resolve controversies involving religious groups if resolution can be achieved by reference to neutral principles of law and does not require the interpretation of religious doctrine.  Defendant agreed in the MSA to abide by the beis din ruling, whatever that might be.  The Family Part judge did not interpret religious doctrine and scrupulously avoided entanglement with religion because the judge applied well-established principles of civil contract law, not rabbinical law.  The latter body of law remained solely within the province of the beis din and was not interpreted or applied by the Family Part judge.

The court concludes that the orders defendant challenges served the secular purpose of enforcing the parties' contractual obligations under the MSA, which in turn serves the secular purpose of encouraging divorce litigants to resolve their disputes by negotiating and entering an MSA.

In May 2019, defendants were found in possession of two loaded handguns while driving a car on public roads.  Neither defendant had a permit to carry a handgun.  Both defendants were indicted for second-degree unlawful possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b)(1).  Following the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022), defendants moved to dismiss those criminal charges, arguing that the version of the gun-carry permit statute in effect at the time of their arrest, N.J.S.A. 2C:58-4 (2018), was facially unconstitutional under Bruen.  The trial court agreed and dismissed the charges.  This court granted the State leave to appeal the order.

The court holds that defendants did not have standing to challenge the gun permit statutes because neither defendant had applied for a handgun-carry permit. Nevertheless, the court addresses the merits of the constitutional challenge and holds that the justifiable need requirement in N.J.S.A. 2C:58-4(c) (2018) was severable and the remaining provisions of N.J.S.A. 2C:58-4 (2018), as well as N.J.S.A. 2C:39-5(b)(1), were constitutional and enforceable.  Accordingly, the court reverses the order dismissing the charges and remands with direction that the trial court reinstate both counts of unlawful possession of a handgun without a permit.

         Plaintiff, who is incarcerated at a federal prison located in New Jersey, wants to marry someone who is incarcerated at a federal prison located in a different state.  He sued the New Hanover Township Municipal Clerk and Registrar, claiming she had violated his civil rights contrary to the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, by applying the requirement in N.J.S.A. 37:1-7 and -8 that couples appear in person to obtain a marriage license.  He appeals an order denying his motion for a preliminary injunction and granting defendant's cross-motion to dismiss the complaint.  He argues the enforcement of the in-person requirement was unconstitutional and contends the motion judge should have used his equitable powers to enjoin enforcement of the requirement. 

         The court rejects both arguments.  The court holds the statutes at issue do not create an unconstitutional bar of a prisoner's right to marry but instead apply to individuals who want to marry and are reasonably related to the legitimate goal of ensuring the validity of marriages.  The court also holds the motion judge could not have used his equitable powers to enjoin defendant's enforcement of the statutory in-person requirement.  Accordingly, the court affirms the dismissal of plaintiff's complaint and the denial of plaintiff's motion for a preliminary injunction.

In this appeal from an order denying defendant's motion to suppress evidence seized following the 5:00 a.m. execution of a knock-and-announce search warrant at a residence, the court finds the law enforcement officers did not wait a reasonable period after knocking and announcing their presence before forcibly breaching and entering the home's front door.  The court determines that based on the circumstances presented, the officers' forcible entry into the home after waiting less than five seconds after after knocking and announcing their presence was unreasonable and rendered the subsequent search of the home and seizure of evidence unconstitutional.  The court determines the exclusionary rule requires suppression of the evidence, reverses the order denying the suppression motion, and remands for further proceedings.

          On February 23, 2017, the New Jersey Department of Environmental Protection (DEP) issued a flood hazard area applicability determination (FHA Determination) to Hampton Farm, LLC (Hampton Farm).  Shortly thereafter, appellant Musconetcong Watershed Association (MW Association) requested the DEP to conduct an adjudicatory hearing so it could challenge the FHA Determination.  Four years later, on April 6, 2021, the DEP denied that request.  MW Association timely appealed from the April 6, 2021 decision.  It also sought leave to appeal from the February 23, 2017 FHA Determination, contending it had become final when the DEP denied MW Association's request for a hearing.  On an interlocutory motion, a two-judge panel of the court denied leave.  The court now reconsiders, reverses that interlocutory ruling, and grants leave to appeal.

          The court holds that the DEP's FHA Determination became a final agency decision subject to appeal when the DEP denied MW Association's request for an adjudicatory hearing to challenge the FHA Determination.  At that time, all administrative remedies were exhausted.  To address the DEP's four-year time delay in deciding MW Association's request for an adjudicatory hearing, the court holds that any party, including a third-party objector, has the right to petition the DEP to rule on a pending request for an adjudicatory hearing under N.J.A.C. 1:1-4.1(a).  The DEP will then have thirty days from receipt of the petition to "inform all parties of its determination" regarding that request.  N.J.A.C. 1:1-4.1(a).

          The court also holds that MW Association did not have a right to an adjudicatory hearing because no statute conferred that right to MW Association, which is a third-party objector, and MW Association did not have a particularized property interest warranting a hearing.  Accordingly, the court affirms the April 6, 2021 final agency decision.

          Finally, because the court has reversed the ruling on the interlocutory motion, the DEP has two options concerning its FHA Determination.  It can either (1) elect to address MW Association's challenges to its February 23, 2017 FHA Determination and a new briefing schedule will be issued; or (2) request a remand so it can expand and update the factual findings supporting its FHA Determination. 

     Plaintiff, who had been terminated from his position as assistant commissioner for the Department of Health, filed a complaint against the State, alleging a claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.  In his second amended complaint, plaintiff asserted a defamation claim against Governor Philip D. Murphy.  A Law Division judge granted defendants' motion to dismiss the defamation claim, concluding plaintiff had not pleaded the element of actual malice with sufficient specificity.  
     In his fourth amended complaint, plaintiff again asserted a defamation claim against Governor Murphy, referencing in particular statements made during May 29, 2020 and June 1, 2020 press briefings.  Defendants moved to dismiss the defamation claim pursuant to Rule 4:6-2(e).  The judge denied the motion, concluding plaintiff had pleaded sufficient facts in the fourth amended complaint to demonstrate actual malice.  
     The court reversed, concluding the judge had misapplied the actual-malice standard.  After conducting a de novo review, the court held plaintiff's conclusory allegations did not meet the actual-malice standard and, as a result, plaintiff's defamation claim failed.  Reversing the denial of defendants' motion to dismiss, the court remanded the case with a direction that the judge enter an order dismissing the defamation claim.  
 

Plaintiffs sued defendants, a law firm and three individuals associated with the firm, claiming that their rights of privacy had been violated when defendants failed to redact their personal identifiers contrary to the directive of Rule 1:38-7.  Plaintiffs also contended that defendants violated one plaintiff's right of privacy by including records of that plaintiff's arrest and criminal charges.  The court holds that Rule 1:38-7 did not create a private cause of action for a violation of the Rule.  Instead, the remedy for a violation of Rule 1:38-7 is set forth in the Rule, which states that a party or other interested individual can move, on an expedited basis, to replace documents containing unredacted personal identifiers with redacted documents.  R. 1:38-7(g).  The court also holds that plaintiffs failed to state viable causes of action for invasions of privacy or infliction of emotional distress.   Accordingly, the court affirms the dismissal of plaintiffs' complaint. 

Defendant City of Jersey City's (City) Code of Ordinances Section 105 permits any individual to request a "determination of significance" from the City's Historic Preservation Officer (HPO) regarding whether a subject building warrants preservation.  Consistent with local ordinances, plaintiff, who owns a circa-1900 building in Jersey City, sought a determination of significance before applying for a demolition permit.  The City's HPO concluded plaintiff's building likely would not be approved for demolition due to its historic, architectural, and cultural significance.

Pursuant to local zoning ordinance, plaintiff appealed to defendant Zoning Board of Adjustment (ZBA), which upheld the determination of significance.  Thereafter, he filed a complaint in lieu of prerogative writs in the Law Division alleging defendants' actions were arbitrary, capricious, and unreasonable.  The Law Division found the ZBA's decision was not arbitrary, capricious, or unreasonable and dismissed the complaint. 

The court concludes the HPO's issuance of a determination of significance — an advisory opinion seemingly intended to prevent plaintiff's submission of an application for a demolition permit — is not a procedure authorized by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163.  The MLUL does not authorize HPOs to unilaterally grant or deny historic preservation designations that bind a zoning officer in determining whether a demolition permit shall issue; that advisory function belongs solely to the Historic Preservation Commission, as detailed in the MLUL, and cannot be delegated to other entities or individuals.  The Commission, in turn, may designate a site as historic only if it is voted upon by a majority of the full governing body. 

The court reverses and remands to allow plaintiff to apply for a demolition permit in accordance with the MLUL.  The court also concludes Jersey City's Code of Ordinances Sections 105-3, 105-4, and 105-7 are ultra vires and inconsistent with the objectives and procedures concerning historic preservation mandated by the MLUL to the extent they delegate powers reserved for a municipality's historic preservation commission to the HPS.   

M.P., a juvenile, is charged with gun possession and participation in a murder.  He appeals the trial judge's decision to admit the statement he gave to detectives during a stationhouse interrogation, which was attended by his mother.  M.P. asks the court to adopt a new categorical rule that would prohibit police from conducting a stationhouse interrogation of a juvenile unless the minor has consulted with an attorney.  M.P. relies on neuroscience and behavioral science research that shows juveniles are not only more impulsive and compliant than adults but also tend to lack the cognitive skills to comprehend Miranda rights.  He contends that in view of advances in the scientific understanding of adolescent brain development, no juvenile should be subjected to a stationhouse interrogation—with or without parental participation—until the juvenile has consulted with counsel.

The court explains it has no authority to pronounce any such per se requirement.  While acknowledging there have been significant reforms to New Jersey's juvenile justice system in recent years based on scientific research on how a juvenile's brain develops and how it functions differently from a fully mature adult brain, the court holds those studies do not grant it authority to substantially rework the State's juvenile interrogation jurisprudence, and certainly not to overturn New Jersey Supreme Court precedents.  The court concludes that while the rules and principles announced in those precedents are not immutable, it is for our Supreme Court and the Legislature—not an intermediate appellate court—to weigh the benefits and costs of the major juvenile justice system policy shift M.P. proposes.

The court also declines M.P.'s request to revise the Miranda warnings to make them more comprehensible to adolescents.  While noting the current warnings are not sacrosanct and might be improved based on juvenile brain research, the court concludes the task of revising the warnings to address the inherent differences between adults and juveniles would benefit from a collaborative process the court cannot provide. 

Turning to the application of existing precedents to the present case, although the court is mindful of the deference it owes to the trial judge's factual findings, it concludes that considering all relevant circumstances, including M.P.'s intellectual challenges, mental conditions, highly emotional state, and the role his mother played, the State failed to prove beyond a reasonable doubt that M.P. knowingly, intelligently, and voluntarily waived his right against self-incrimination.  The court therefore reverses the trial judge's decision. 

The court rejects the State's argument that reviewing courts should not consider an interrogee's personal characteristics, such as intelligence and education background, if those circumstances were not known by or "noticeable" to police.  The court holds those circumstances remain relevant notwithstanding they may not manifest outwardly during an interrogation.  The court explains that reviewing courts do not employ a purely objective test when determining whether the State proved a valid Miranda waiver beyond a reasonable doubt, but rather consider the characteristics of the accused and not just the details of the interrogation.   

The court also rules the guidance the Supreme Court provided in State in Int. of A.A., 240 N.J. 341, 354 (2020)—which held police should provide an opportunity for a juvenile and parent to consult privately after Miranda warnings are given—did not mandate a new rule of police procedure but rather amplified the existing totality-of-the-circumstances test.  Accordingly, the court reasons the rationale undergirding A.A. should be given retroactive effect.

The court considered plaintiff's challenge to a trial court order vacating a final judgment by default in a tax sale foreclosure.  Plaintiff obtained a final judgment by default on its tax sale lien and defendants timely moved to vacate the order, alleging defective service of process.  The trial court found sufficient defects with process to warrant vacating the final judgment, which reopened the redemption period and allowed defendant to redeem. 

The court affirmed, concluding service of process was defective pursuant to both the general court rules governing personal service, as well as the RULLCA-specific statute governing service of process on LLCs, N.J.S.A. 42:2C-17.  The court noted the differences between service rules in RULLCA and the Business Corporations Act (BCA), N.J.S.A. 14A:1-1 to: 18-11, in finding plaintiff's waiver argument unavailing.  Although RULLCA and the BCA contain some similarities, the rules governing service are distinct and materially different.  Service upon a corporation in New Jersey is governed by Rule 4:4-4(a)(6) and N.J.S.A. 14A:4-2, whereas service upon an LLC is governed by Rule 4:4-4(a)(5), and RULLCA, N.J.S.A. 42:2C-17. 

The RULLCA service of process provision contains an additional method of service lacking in the BCA, providing, as a permissive alternative, that where personal service in accordance with the court rules fails despite reasonably diligent efforts, service may be made upon the State filing office.  N.J.S.A. 42:2C-17(b).  The BCA service of process provisions do not authorize the State to accept process as an agent of a corporation.  R. 4:4-4(a)(6); N.J.S.A. 14A:4-2.

Because final judgment was vacated, the court followed Green Knight Cap., LLC v. Calderon, 252 N.J. 265 (2022), in holding the period of redemption reopened and continued until barred by a valid final judgment of the Superior Court.  The court interpreted the holding in Green Knight, in conjunction with Rule 4:64-6(b) and the tax sale law, N.J.S.A. 54:5-86(a), to mean the redemption period reopens when a final judgment in foreclosure is timely vacated.

Defendant injected himself with fentanyl-laced heroin, lost control of an SUV he had been driving, his vehicle crashed into a gas station, and tragically killed three persons and injured others.  He pled guilty to three counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and was sentenced to an aggregate prison term of thirty years, with the requirement that he serve over twenty-five years before he is eligible for parole.

Defendant appeals from the denial of his motion to suppress and his sentence.  He argues that the warrantless search of his clothes, conducted at a hospital over an hour after his arrest, was unlawful, and that he is entitled to a resentencing.  The court holds that the search of his clothes was a lawful search incident to his arrest.  The court also holds that the sentencing court conducted the appropriate analysis and did not abuse its discretion in sentencing defendant to three consecutive prison terms of ten years for the death of each victim.  Accordingly, the court affirms defendant's convictions and his sentence. 

          Appellant Karen McKnight appeals from the Board of Review's (the "Board") August 26, 2022 final agency decision, which held her liable to return an overpayment of $6,277 for unemployment benefits she was allegedly ineligible to receive for the weeks ending June 30, 2018 through May 4, 2019, pursuant to N.J.S.A. 43:21-16(d).  The central issue on appeal is whether a claimant, who is otherwise separated from full-time employment, may include wages received from a part-time position, which they continue to maintain, in the calculation of their average weekly wage for purposes of unemployment benefits.  The court concluded that the exclusion of the wages contravenes the legislative purpose of the unemployment benefits statute and is arbitrary as legally unsupported.  Therefore, the court reversed and remanded for a recalculation of benefits.

          This appeal arises out of an action challenging the suspension of a company that had been providing towing services in a municipality.  As a matter of first impression, the court holds that the company had limited constitutional due process rights when it was suspended from the Township's towing lists.  The court also holds that plaintiff received the process due its limited property interest.  In addition, the court rejected plaintiff's arguments that its suspension from the towing lists violated its constitutional substantive due process and equal protection rights.  Consequently, the court affirmed the summary judgment dismissal of plaintiff's claims against the Township, its police chief, and one of its police officers. 

         In this appeal from the Law Division's grant of summary judgment to defendants, the court was asked to consider, for the first time, whether a motor vehicle subject to a recall notice alone is sufficient to establish a claim pursuant to the New Jersey Lemon Law statute, N.J.S.A. 56:12-29 to -49.  Defendant issued a recall notice that encompassed plaintiff's vehicle.  Plaintiff subsequently brought the vehicle to the dealer to have the recall repair performed.  Primarily due to disruptions resulting from the COVID-19 pandemic, defendant's ability to complete the recall was delayed.

         A Law Division judge granted defendant summary judgment.  The court affirmed and held the existence of a recall notice alone is not sufficient to establish the "nonconformity" element of a Lemon Law claim.  In addition, because plaintiff primarily used the vehicle for business purposes, it is excluded from the Lemon Law's coverage.

The court considers whether the Superior Court has jurisdiction to adjudicate claims for monetary damages, filed years after the statutory deadline for filing a tax appeal, based on allegations that municipal officials committed fraud and other torts by assessing real property in a manner inconsistent with law and at an amount above its true market value.  The court concludes that the Superior Court lacks jurisdiction to hear such claims because they are substantively equivalent to a tax appeal properly venued in the Tax Court or a county board of taxation, and the statutory deadlines for challenging local property tax assessments may not be circumvented by a late-filed complaint seeking damages for alleged torts arising from the tax assessment process.  In light of these conclusions, the court affirms the trial court order dismissing the complaint in this matter with prejudice for failure to state a claim upon which relief can be granted.

Plaintiff and decedent were partners for twenty-five years but never married.  During their relationship, decedent owned an income-producing property in fee simple, which, unbeknownst to plaintiff, he transferred during his lifetime to himself and plaintiff as joint tenants with rights of survivorship.  Decedent signed and recorded the transfer deed.  Plaintiff discovered her interest in the property only after decedent passed away.  Plaintiff sought injunctive relief to quiet title and was granted summary judgment, based on the trial court's holding that all elements of a valid inter vivos gift were present.

Defendant, who is decedent's son and administrator of the estate, urges reversal, claiming material issues of fact precluded summary judgment, specifically challenging the validity of the inter vivos gift of real property.

The court affirms.  Defendants presented no evidence to rebut the presumptions of donative intent, delivery and acceptance raised by the recorded transfer deed.  Acceptance is presumed subject to plaintiff's right to disclaim her interest within a reasonable time of becoming aware of it.  The additional element of relinquishment required for a valid inter vivos gift in New Jersey was also satisfied upon recordation of the transfer deed because decedent could not unilaterally restore his former fee simple estate.

         These consolidated cases require us to consider the scope of the statutory self-critical analysis privilege and determine whether materials developed as part of self-critical analysis conducted pursuant to a facility's patient safety plan are subject to discovery, disclosure, and admissible at trial.  This analysis hinges upon whether the facilities involved in these cases met the requirements imposed by the Patient Safety Act (PSA), N.J.S.A. 26:2H-12.23 to -12.25, and related regulations, rendering the materials sought by plaintiffs privileged and protected from disclosure.

Defendants argue the trial court erred by ruling incident/investigation reports concerning separate incidents resulting in injuries at two facilities are not privileged under the PSA and therefore discoverable.  The court reversed the trial court's orders. 

Surveying the case law interpreting the PSA and regulations, the court notes that the PSA was designed to reduce medical errors by promoting internal self-reporting and self-critical analysis related to adverse events and near misses by health care facilities.  N.J.S.A. 26:2H-12.25 renders the entire self-critical-analysis process privileged, shielding a health care facility's deliberations and determinations from discovery or admission into evidence.  N.J.S.A. 26:2H-12.25(g), does not condition the privilege on the finding of a Serious Preventable Adverse Event (SPAE).  That an event is not reportable does not abrogate the self-critical-analysis privilege.  The privilege unconditionally protects the process of self-critical analysis, the results of the analysis, and the resulting reports developed by a facility in its compliance with the PSA.  A court may not order the release of documents prepared during the process of self-critical analysis. 

N.J.S.A. 26:2H-12.25(c) requires health care facilities to report every SPAE that occurs in that facility to the Department of Health (DOH).  The documents, materials and information submitted to the DOH pursuant to this requirement are absolutely privileged and shall not be "subject to discovery or admissible as evidence or otherwise disclosed in any civil, criminal, or administrative action or proceeding."  N.J.S.A. 26:2H-12.25(f).  The statute provides no rationale or standard for parsing the contents of the documents, allowing for some portions to be privileged and others not privileged. 

However, when information sought to be protected from disclosure is not submitted to the DOH, the path to a privilege is different.  N.J.S.A. 26:2H-12.25(g) establishes the self-critical analysis privilege for internal documents that are the product of an 'investigative process that may or may not lead to reporting to the DOH.  Any documents, materials, or information developed by a health care facility as part of a process of self-critical analysis conducted pursuant to N.J.S.A. 26:2H-12.25(b) is not subject to discovery, disclosure or admissible as evidence in any civil, criminal, or administrative proceeding. 

Accordingly, if documents are submitted to the DOH pursuant to N.J.S.A. 26:2H-12.25(f) or meet the requirements of N.J.S.A. 26:2H-12.25(g), they are absolutely privileged and not subject to discovery.  Under either of those circumstances, a trial court does not engage in a redaction process and release the redacted document.  The entire document is statutorily protected from disclosure. 

At the same time, the PSA expressly preserves plaintiffs' right to discover facts through conventional means of discovery if obtained from any source or context other than those specified in the PSA.  Moreover, documents created outside the self-critical analysis process are subject to discovery. 

In each case, plaintiffs are free to engage in discovery of facts from non-privileged sources.  Additionally, if defendants produced voluminous medical records in response to a discovery request in either case, plaintiff may request, and the court may order, that defendants provide a "narrative to steer them to information contained in thousands of pages of medical records" in accordance with Brugaletta v. Garcia, 234 N.J. 225, 252 (2018).

This appeal presents a question of first impression regarding whether a claim can be made under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, where (1) an employer merges with another employer, (2) the employee does not apply for a position with the new employer, but (3) the employee contends that while all other employees were offered employment with the new employer, the employer did not extend the same offer, for reasons proscribed by the LAD.

Because of the LAD's remedial purpose, plaintiff's claim that the decision not to transition her employment from Graham Curtin, P.A. –– the closing employer –– to McElroy Deutsch, Mulvaney & Carpenter, LLP. –– the new employer –– was based on discriminatory factors may constitute a viable cause of action.  There are genuine disputes of material facts regarding whether the decision not to employ her at McElroy Deutsch, Mulvaney & Carpenter was, in fact, discriminatory.  Therefore, the court reverses the motion court's summary judgment dismissal of plaintiff's complaint.

In addition, because the motion court did not address the specifics of plaintiff's claims for wrongful termination, retaliatory termination, and aiding and abetting harassment based on age, disability, and use of disability leave,  we do not either.       

Following the robbery of a store in West New York, police retrieved surveillance video from a nearby building and sent a still photo from the video to the New Jersey Regional Operations Intelligence Center (NJROIC) to help identify the perpetrator using facial recognition technology (FRT).  When the NJROIC could not find a match, police sent all the raw video footage to the Facial Identification Section of the New York Police Department Real Time Crime Center (NYPD RTCC), where a detective captured a still image, compared it against the center's databases, and offered defendant as a possible match.

Police subsequently included the photo from the NYPD RTCC along with five filler photos to construct photo arrays to show two eyewitnesses.  The eyewitnesses identified defendant as the perpetrator, and he was subsequently charged.

Defendant sent the State a discovery demand containing thirteen items seeking information regarding the FRT used to identify him.  He also moved to suppress the out-of-court identifications by the eyewitnesses.  The trial court conducted a Wade[1] hearing and denied the suppression motion.  Meanwhile the State obtained documents from the NYPD RTCC answering two of the thirteen discovery demands.  Defendant moved to compel the State to answer the remaining discovery requests, arguing the discovery was:  necessary to impeach the eyewitness identification; impeach the police investigation; and exculpatory.  Defendant's motion included a declaration from an FRT expert, detailing why the information sought was relevant and explaining the vulnerabilities of FRT, including problems with its reliability.  The trial court denied the motion to compel.

On leave granted, defendant re-asserts the arguments made to the trial court.  Amici joins in defendant's arguments on appeal.

The court held the discovery dispute was a separate matter than the Wade hearing and defendant was entitled to the discovery to construct a defense and for impeachment purposes.  Discovery into the FRT was necessary because it is a novel and untested technology, and no New Jersey court has addressed the issue.  Moreover, the discovery sought was attainable because:  the State raised no proprietary objections; had already obtained some discovery from the NYPD RTCC; and the items sought regarded defendant's identification and reliability of the identification process.

The court reversed and remanded for entry of an order compelling the State to provide the eleven remaining items of discovery.  The trial court is authorized to enter a protective order, order the in-camera review of the materials received from the State, and hold a Daubert[2] hearing, if necessary.

[1]  United States v. Wade, 338 U.S. 218 (1967).

[2]  Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).

Plaintiff alleged his employer wrongfully terminated him based on a perceived disability in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.  The disability allegedly perceived by defendants was that plaintiff was "suffering from COVID-19."  A Law Division judge granted defendants' motion to dismiss pursuant to Rule 4:6-2(e), finding plaintiff had failed to plead a viable cause of action for perceived disability discrimination under the LAD. 

The court affirmed, agreeing that even assuming defendants believed plaintiff had COVID-19, the facts plaintiff had alleged in his pleadings – on July 23, 2020, plaintiff felt ill in that he felt "cold, clammy, and weak"; he was able to report to work and stay until the end of the day; the next day he was able to go to a free clinic to obtain a COVID-19 test; he did not allege he had gone to a hospital or a doctor's office or that he had otherwise sought medical attention or treatment; some unspecified time later, he reported he "was feeling better"; he was feeling well enough that he felt able to and offered to return to work; and he was terminated on July 29, 2020, after he had reported his condition had improved and he felt well enough to work – were not sufficient to establish a prima facie case under the LAD that he was terminated because his employer perceived he had a disability.

The court reverses the trial judge's denial of defendant's motion to suppress drugs police found following a motor vehicle stop based on observed traffic violations.  This case presents a novel question concerning the vehicle registration search exception to the warrant requirement.  That exception authorizes police to enter a lawfully stopped vehicle to conduct a pinpointed search for a registration certificate if the motorist is unable or unwilling to produce that document after having been provided a meaningful opportunity to comply with the police request for it.  State v. Terry, 232 N.J. 218, 222 (2018).  In this case, defendant parked and exited the vehicle before police could effectuate the stop.  The court addresses whether police may initiate a search under this "very narrow" exception when the detained motorist is outside the vehicle when police request the registration certificate, and the officer determines it would be unsafe to allow the motorist to reenter the vehicle to retrieve it. 

The court concludes that providing a detained motorist a meaningful opportunity to produce the registration certificate is an indispensable prerequisite to conducting a registration search—one that can only be excused when the motorist is unable or unwilling to comply with the police request for the vehicle credentials.  The court holds a motorist is not "unable" to produce a registration certificate within the meaning of the exception when the sole reason for such inability is a police officer's discretionary decision to prevent reentry.  The court reasons that any contrary interpretation of the registration search exception would undermine, if not eviscerate, the protection of privacy rights afforded by the meaningful-opportunity element by leaving its application to the mercy of unreviewable police discretion. The court declines to create a categorical exemption to the meaningful-opportunity requirement when police determine, in the exercise of their discretion, the motorist should not be allowed to reenter the stopped vehicle for reasons of officer safety. 

Although the police in this case were permitted for their own safety to place defendant in the police car and prevent him from reentering the detained vehicle throughout the investigative detention, that decision had the effect of foreclosing a warrantless registration search.  The court notes that strict enforcement of the meaningful-opportunity prerequisite in these circumstances would not deprive police the ability to investigate whether a car was stolen since they can obtain the information contained in the paper registration certificate by conducting a Motor Vehicle Commission database look-up.    

The court also addresses significant recent revisions to N.J.S.A. 39:3-29—the statute that prescribes a motorist's duty to possess and exhibit a registration certificate to police during a motor vehicle stop and that undergirds the registration search exception to the warrant requirement.  Under the revised statutory framework, motorists are no longer required to possess a paper copy of the vehicle registration certificate.  Rather, they are now permitted to keep and exhibit the registration certificate in either paper or electronic form.

To avoid the futility and needless privacy intrusion of a physical search for a paper document that may not even exist, and that need not be kept in the vehicle in any event, the court holds, prospectively, that police may not enter a detained vehicle under the authority of the registration search exception to search for a paper document without first asking the motorist whether the registration is kept in paper rather electronic form.

R.K. appeals from the denial termination of his registration obligations imposed by Megan's Law.  In June 2000, R.K. was convicted of endangering the welfare of a child and lewdness and was sentenced to a three-year term of probation conditioned upon 194 days in jail, which equaled time served, registration under Megan's Law, and Community Supervision for Life (CSL).

In April 2001, R.K. was convicted of engaging in prostitution as a patron, arising from an incident that took place in November 2000, less than seven months after he was convicted of endangering the welfare of a child. 

In February 2004, R.K.'s probation was revoked on multiple grounds, including committing the prostitution offense.  He was resentenced to a four-year prison term, which he completed on April 26, 2006.  He has not been convicted of any subsequent offense that has not been vacated. 

In December 2021, R.K. filed a motion to terminate his CSL and Megan's Law registration obligations.  The State opposed the motion, arguing R.K. does not meet the criteria for termination of Megan's Law registration obligations and that he remains a danger to the safety of others.  The trial court denied termination of his registration requirements.  R.K. appeals that decision.  The same order terminated CSL. 

On appeal, R.K. argues he is eligible under N.J.S.A. 2C:7-2(f) to terminate his Megan's Law registration requirements.  The court rejects his argument, finding it directly contrary to the clear and unambiguous language of N.J.S.A. 2C:7-2(f), established public policy, and the spirit of Megan's Law. 

N.J.S.A. 2C:7-2(f) allows Megan's Law registrants to apply for termination of registration requirements "upon proof that the person has not committed an offense with 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others." 

Within months of being sentenced to probation and released from jail, R.K. committed a prostitution offense, was convicted, and was sentenced.  The court holds that pursuant to the plain language of N.J.S.A. 2C:7-2(f), at the moment R.K. committed the new offense on November 27, 2000, he was permanently and categorically ineligible for termination of his Megan's Law registration requirements.  The fact he was subsequently found in violation of probation and resentenced to a prison term, which he has served, did not restart the clock for eligibility for termination of his registration requirements. 

The court granted defendant Shahaad I. Jones leave to appeal from an order denying his motion to suppress evidence — a handgun and large capacity magazine — seized without a warrant from his person.  The court finds the motion court erred by deciding the suppression motion without an evidentiary hearing because defendant's brief submitted in accordance with Rule 3:5-7(b) raised fact issues as to whether the warrantless search of defendant was justified under the plain view exception to the warrant requirement. 

The court also determined the motion court erred by concluding the statutory rebuttable presumption under N.J.S.A. 40A:14-118.5(q) — that, where law enforcement either fails to adhere to the statutory retention requirements found in N.J.S.A. 40A:14-118.3 to -118.5 for body worn camera (BWC) recordings, or intentionally interferes with a BWC's ability to accurately capture audio and video recordings, the law presumes exculpatory evidence was destroyed or not captured — applies only at trials and not at suppression hearings.  The court finds the plain language of N.J.S.A. 40A:14-118 does not support the motion court's determination and holds that because the statute expressly states the presumption is applicable in "criminal prosecutions," the rebuttable presumption applies in suppression hearings. 

The court reverses the motion court's order denying defendant's suppression motion and remands for further proceedings, including for a determination of whether defendant demonstrates an entitlement to the rebuttable presumption under N.J.S.A. 40A:14-118.5(q), and, if so, whether the State rebuts the presumption. 

Law enforcement officers arrested defendant when he appeared for what he understood to be a sexual encounter with a fourteen-year-old girl with whom he believed he had exchanged text messages on the two preceding days.   In fact, defendant exchanged the messages with a detective using two different cellular phone applications.  After seizing defendant's phone, the officers obtained a search warrant for the phone and an order requiring defendant provide the phone's passcode.   

The court reverses an order denying defendant's motion to quash the search warrant, which authorized a search of all the phone's data.  The court holds the affidavit supporting issuance of the warrant did not establish probable cause to search all the phone's data.  The court also determines probable cause to search all the data on a phone is not established by merely demonstrating the phone's data may include evidence of criminal activity.  The court further concludes a search of data on a cell phone must be limited to only the particular data for which law enforcement establishes probable cause to believe includes evidence of criminal activity, and a search warrant affidavit must define the locations of such data on the phone to the extent possible based on available technology.

M.H., a Tier II registrant, filed a motion to terminate his Megan's Law obligations under N.J.S.A. 2C:7-2(f).  The court affirmed the denial of registrant's application as he committed a failure to report offense within fifteen years of his conviction. 

The court also rejected M.H.'s facial and as applied due process and equal protection challenges to subsection (f).  In doing so, the court relied principally on the reasoning set forth in Doe v. Poritz, 142 N.J. 1 (1995), which upheld as constitutional Megan's Law's registration and community notification provisions, and In re Registrant A.D., 441 N.J. Super. 403, 420 (App. Div. 2015).  The court also rejected registrant's reliance on State in Interest of C.K., 233 N.J. 44 (2018), as that case addressed a juvenile's challenge to subsection (g), and the authority relied upon by the court in concluding subsection (g) was unconstitutional to juveniles is inapplicable to M.H.'s challenges to subsection (f). 

In this appeal from summary judgment in a breach of contract action, defendants argue plaintiff law firm violated rules of professional conduct by failing to disclose in its retainer agreement the unit of incremental billing – one tenth of an hour – it would utilize during the course of representation.  Plaintiff and defendants entered two retainer agreements, both of which disclosed a required initial deposit, the hourly rates of each attorney at the firm, and which party was responsible for certain administrative costs. 

Plaintiff represented defendants for more than two years pursuant to the parties' retainer agreements, sending monthly and bimonthly invoices throughout the duration demonstrating work billed in increments of one-tenth of an hour.  When defendants refused to remain current with outstanding fees, plaintiff ceased representation and instituted the breach of contract action. The trial court granted summary judgment.  Defendants urged reversal on appeal.

The court affirmed summary judgment as properly granted, and held the retainer agreement was lawful and ethical where, among other things, it sufficiently apprised the clients of the express terms of the agreement in accordance with RPC 1.5(b), and the parties' course of conduct for two years demonstrated assent to those terms.

          Plaintiffs are tenants at a luxury apartment building complex.  They claim they were defrauded by defendant landlords' knowingly false promises in its advertisements, brochures, and oral statements to prospective tenants that the apartment complex would have "elevated, 24/7 security" and that security personnel would be stationed 24/7 at a podium near each building's entrance.  Plaintiffs allege they relied on these representations in deciding to lease the apartments at the rent level charged. 

          Upon moving into the apartments, plaintiffs learned that the apartment complex's security cameras did not function, and security personnel were only stationed at the front of the building from approximately 11:00 a.m. to 5:00 p.m. on weekdays, with shorter hours on weekends, as opposed to being present 24/7, and at times were present during those hours when performing other assigned tasks. 

          The lease contained a three-day attorney review clause and had several addendums, including a waiver of the right to file a class action against the landlord.  The lease did not contain an arbitration agreement. 

          Plaintiffs filed a class action complaint alleging common law fraud and violations of the New Jersey Consumer Fraud Act against their landlord.  Prior to discovery or class certification, defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted, or, in the alternative, to strike plaintiffs' class action allegations.  Defendants argued the class action waiver in plaintiffs' lease agreements were clear and unambiguous and the lease was not a contract of adhesion.  Plaintiffs argued the lease was a contract of adhesion, the class waiver was unconscionable, and the caselaw upholding class action waivers were inapplicable because the contracts in those cases included an arbitration provision.  The trial court denied the motion in its entirety.  Defendants' motion for leave to appeal that interlocutory ruling was granted. 

          The court affirmed the denial of defendants' motion, holding that a waiver of the right to maintain a class action is unenforceable absent an arbitration agreement.  Noting that the class action waiver dismantled or disabled important procedures provided in our Part IV rules, and that the public policy of this state favors a class action where numerous claims involve a common nucleus of facts, the court adopts a bright-line rule that in the absence of an arbitration agreement, class action waivers are unenforceable as a matter of law and public policy. 

          In this appeal, the court considers the propriety of a Law Division order, excluding several allegations of sexual abuse against defendant that were memorialized in the child-victim's videorecorded statement to law enforcement.  The trial judge had admitted the entire statement under the tender-years exception to the hearsay rule, N.J.R.E. 803(c)(27).  At that time, the judge found the statement trustworthy, noting the alleged victim, who was eight years old when she gave her statement, would be called as a witness at trial.  

          Prior to trial, the State informed the defense the child was unable to recall all but one incident.  During the ensuing N.J.R.E. 104 hearing, the alleged victim, now fifteen years old, acknowledged she no longer recalled certain sexual conduct asserted in her tender-years statement.  The trial judge granted defendant's in limine motion, limiting the child's testimony to the only allegation she recalled, and ordered her videorecorded statement redacted accordingly.  The judge determined the child's lack of memory rendered her unavailable for cross-examination on the incidents she could not recall, thereby violating defendant's right of confrontation. 

           During jury selection in the now-adjourned trial, the court granted the State's emergent application to file a motion for leave to appeal, granted leave, and now reverses the Law Division order.  The court holds defendant's right of confrontation is not violated by admission of the child's entire videorecorded statement under N.J.R.E. 803(c)(27), previously deemed trustworthy by the trial judge, provided the victim testifies at trial and is subject to cross-examination.  The court therefore concludes the trial judge improperly parsed, and erroneously excluded, those alleged incidents the victim does not recall. 

In Docket No. A-1900-22, the court first granted the State leave to appeal from the propriety of a Law Division judge's pretrial decision that barred the admission of location data from the alleged victim's cell phone and a voice mail purportedly sent from the defendant to his co-defendant.  The motion judge barred the evidence because it was provided by the State after the judge's December 9, 2021 decision that mandated the production of any outstanding discovery by January 6, 2022. 

While that appeal was pending, in Docket No. A-2279-22, the court also granted the State leave to appeal from a February 21, 2023 Law Division order issued by the same judge, denying the State's motion for reconsideration of an October 7, 2022 order.  That order had barred the admission of two text messages allegedly sent by defendant as cumulative to other stipulated N.J.R.E. 404(b) evidence and fraught with impermissible hearsay. 

The court considered the lengthy procedural history in view of the governing legal principles, including its discretionary standard of review.  Unable to conclude on the record provided that the motion judge abused his discretion in either appeal, the court affirmed.

Plaintiff information technology firm brought multiple claims against defendants, its former employee and the law firm that hired him as its in-house technology specialist.  Among other claims, plaintiff alleged the former employee breached his non-compete agreement with plaintiff by taking the job with the law firm, a long-term client of plaintiff.  Plaintiff also alleged the law firm tortiously interfered with the non-compete agreement between plaintiff and its former employee.  After a trial, the Chancery Division enforced the non-compete agreement and found the law firm had tortiously interfered with the agreement between plaintiff and its former employee.

The Chancery Division entered judgment against defendants for damages, including awarding of attorney's fees against the law firm as damages for its tortious interference.  Defendants appealed.

On appeal, the court held the Chancery Division properly awarded attorney's fees as damages for the law firm's tortious interference with contractual relations as an exception to the American Rule, pursuant to DiMisa v. Acquaviva, 198 N.J. 547 (2009).

Defendant appeals an order entered in the Family Part permitting the Division of Child Protection and Permanency to use expunged records obtained from the Monmouth County Prosecutor's Office in a Title 9 litigation concerning the alleged abuse and neglect of his son.  Defendant argues the trial court erred by authorizing the Division to utilize records that were expunged, sealed automatically, and precluded any subsequent use.  We conclude the Division was permitted to use the expunged records pursuant to N.J.S.A. 2C:52-19 because the statute allows the release and use of expunged records upon good cause shown and affirm.

          Registrants filed motions to terminate their Megan's Law registration requirement under N.J.S.A. 2C:7-2(f), arguing the fifteen-year offense-free requirement on juveniles adjudicated delinquent of qualifying Megan's Law offenses did not apply.  The court affirmed the denial of registrants' motions to terminate their Megan's Law obligations because both juveniles were age fifteen or older at the time of their sexual offenses and N.J.S.A. 2C:7-2(f) applies to every person required to register under Megan's Law, including juveniles.

     In this class action matter arising out of a contract dispute, plaintiffs appeal from a July 15, 2022 order granting defendants' motion to stay proceedings against Verizon and to compel arbitration in accordance with the arbitration agreement appearing in the Verizon Customer Agreement.  In an oral opinion of the same date, the trial judge first severed a limitation on damages provision from the agreement before enforcing the arbitration clause.  In reaching its decision, the court did not discuss any provision of the agreement other than the limitation on damages and severability clause.  Nor did the trial judge address why the reasoning of MacClelland v. Cellco P'ship, 609 F. Supp. 3d 1024 (N.D. Cal. 2022), which found the exact same arbitration clause unenforceable as permeated with unconscionability, should not apply with equal force here. 
     Exercising de novo review, the court held that the arbitration agreement is unenforceable in its entirety as it is permeated by provisions which are unconscionable and violative of New Jersey public policy.  The court affirmed the trial judge's determination striking the agreement's limitation on damages, reversed the order staying the proceedings and compelling arbitration, and remanded for proceedings consistent with its decision.
 

     Pursuant to N.J.S.A. 18A:66-36 (Section 36), a member of the Teachers' Pension and Annuity Fund (TPAF) who has "completed [ten] years of service" and has "separated voluntarily or involuntarily from . . . service[] before reaching service retirement age" is eligible to receive deferred retirement benefits, provided the separation was "not by removal for conduct unbecoming a teacher or other just cause."  N.J.S.A. 18A:6-7.1 permanently disqualifies teachers and other school employees who have been convicted of certain crimes from employment in all school systems under the supervision of the Department of Education. 
     Petitioner had accumulated eleven years of service credit when his teaching certificate was revoked by the State Board of Education based on a disqualifying criminal conviction under N.J.S.A. 18A:6-7.1. The conviction was the result of crimes he committed while employed at a mortgage company before he became a teacher and were unrelated to his position as a teacher.  The TPAF Board denied the petitioner's application for deferred retirement benefits, reasoning his separation from membership in the pension plan was based upon a "removal for conduct unbecoming a teacher."  
     The court reversed, relying on In re Hess, where the court held that under the equivalent Public Employees' Retirement System statute forfeiture of deferred pension benefits was "conditioned on an involuntary removal due to misconduct related to employment." 422 N.J. Super. 27, 37 (App. Div. 2011).  And, Masse v. Board of Trustees, Public Employees' Retirement System, where the Court distinguished between removal based on misconduct and forfeiture of pension rights "unrelated to [the employee's] service."  87 N.J. 252, 263 (1981). 

     In 2017, a malware/cyberattack infected Merck's computer and network systems.  Prior to that date, someone had gained access to the computer systems of a Ukrainian company that had developed an accounting software called M.E. Doc used by Merck and other companies in Ukraine.  The malware was delivered into the accounting software.  Ultimately, over 40,000 machines in Merck's network were infected, resulting in "massive disruptions" to Merck's global operations.  The malware spread to at least sixty-four different countries, including Russia.  
     Merck sought coverage for its losses under defendants' "all risks" property insurance policies.  Defendants denied coverage under the "Hostile/Warlike Action" exclusion included in all their policies.  Although defendants conceded the word "warlike" might not be applicable, they asserted the word "hostile" should be read in the broadest possible sense, as meaning "adverse," "showing ill will or a desire to harm," "antagonistic," or "unfriendly."  Defendants contend that any action that "reflects ill will or a desire to harm by the actor" falls within the hostile/warlike action exclusion, as long as the actor was a government or sovereign power.
     The court found the plain language of the exclusion does not support defendants' interpretation.  The exclusion of damages caused by hostile or warlike action by a government or sovereign power in times of war or peace requires the involvement of military action.  The exclusion does not state the policy precluded coverage for damages arising out of a government action motivated by ill will. 
     The court also considered the history of the war exclusion, which has been included in policies for more than a century.  The few applicable cases reaffirm that similar exclusions have never been applied outside the context of a clear war or concerted military action.
     The court concludes the exclusion did not include a cyberattack on a non-military company that provided accounting software for commercial purposes to non-military consumers, regardless of whether the attack was instigated by a private actor or a "government or sovereign power."  Defendants could not assert the exclusion to bar coverage for Merck's losses.
 

         In this medical malpractice litigation, plaintiff, individually and as executrix of her late husband's estate, moved to compel defendants to permit her expert to conduct an onsite inspection of decedent's electronic medical record (EMR).  Plaintiff contended that pursuant to Rule 4:18-1, she had the right to inspect and examine the "metadata" associated with the EMR, which exceeded more than 2,000 pages and had already been produced in PDF format by defendants.  Plaintiff agreed that defendants would control the log in to the computer system and the mouse guiding the expert's review.  Plaintiff also agreed not to access the system through the use of thumb drives or discs to copy any information.  Plaintiff also sought production of an "audit trail" of the EMR for nearly a full year after decedent's discharge.

         Defendants objected, arguing the discovery request was unduly burdensome and posed security risks and the risk of exposing other patient's EMR.  They argued that plaintiff should identify specific entries in the record for which she sought metadata, and they would produce it, subject to assertions of confidentiality or privilege.  Defendants also objected to producing the audit trail, claiming it, too, was unduly burdensome and irrelevant.

         The Law Division judge granted plaintiff's motion, and the court granted defendants leave to appeal.

         The court concluded that plaintiff was entitled to access metadata in decedent's EMR pursuant to Rules 4:10-2(f) and 4:18-1, and that defendants bore the burden of demonstrating the discovery request was unduly burdensome.  The court agreed with the motion judge's conclusion that defendants failed to do so, and the proposed inspection was reasonable.  The court affirmed that portion of the judge's order granting the inspection as modified by reasonable restrictions, including a time limit for the inspection of four hours.

         The court, however, reversed that portion of the judge's order requiring defendants to produce a post-discharge audit trail that extended beyond the date of the last entries made to decedent's EMR, finding plaintiff failed to demonstrate the potential for relevant information from such a broad request. 

Plaintiff appeals from the order of the Superior Court, Chancery Division, Family Part, Camden County's dismissing her domestic violence complaint against defendant.  The Family Part found plaintiff failed to satisfy her burden under the second prong of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).  On appeal, plaintiff argued the trial court misapplied the facts to the law regarding Silver's "second inquiry."

The court concluded plaintiff satisfied her burden under both prongs of Silver, and also held the Family Part erred when it considered whether plaintiff's current husband and defendant's father could protect her in the future, when the proper focus of a Silver "second inquiry" should be on defendant's likelihood to continue his course of abusive behavior, not whether external factors exist which might thwart defendant's efforts to continue the abuse.

The court reversed and remanded to the Family Part for entry of a final restraining order against defendant.

          The court affirms the New Jersey Commissioner of Education's final agency decision finding petitioner Stephanie Angus is entitled to sick leave under N.J.S.A. 18A:30-1 during the period the Board of Education of the Borough of Metuchen excluded Angus from working in her position as a tenured teacher, pursuant to a directive from the New Jersey Department of Health, because of her exposure to a person who tested positive for COVID-19.  The court determined Angus qualified for sick leave under N.J.S.A. 18A:30-1's plain language, which in part defines sick leave to include an absence from an employee's "post of duty . . . because he or she has been excluded from school by the school district's medical authorities on account of a contagious disease." 

          The court rejected the Board of Education's claim N.J.S.A. 18A:30-1 qualifies an employee for sick leave when the employee is excluded from school "on account of a contagious disease" only where the employee personally suffers from the disease.  The court reasoned the Board's interpretation is not supported by the statute's plain language.  The court also determined acceptance of the Board of Education's interpretation of N.J.S.A. 18A:30-1 would render the exclusion-from-work-on-account-of-a-contagious-disease sick leave qualification superfluous because the statute otherwise separately defines sick leave to include an employee's absence from work where the employee suffers a personal disability due to an illness.  

At issue in this appeal is whether a warrant is required to seize a vehicle pursuant to the plain-view exception.  The court granted the State leave to appeal from a Law Division order, which suppressed evidence seized from a motor vehicle that police believed defendant used during the commission of a fatal shooting.  The motion judge essentially reasoned police improperly impounded the car because probable cause did not arise spontaneously prior to the warrantless seizure.  The judge suppressed the evidence seized, following issuance of a warrant to search the car, as fruit of the poisonous tree.

The State argued police were permitted to seize the vehicle pursuant to the plain-view exception to the warrant requirement while they awaited issuance of the search warrant.  The State further contended the "unforeseeability and spontaneity" requirement espoused in State v. Witt, 223 N.J. 409 (2015), applies to the automobile – not the plain-view – exception to the warrant requirement. 

The court concludes the motion judge mistakenly conflated the discrete rules for the warrantless search and seizure of an automobile, and erroneously reintroduced the inadvertence prong of the plain-view exception to the warrant requirement, eliminated by our Supreme Court in State v. Gonzales, 227 N.J. 77 (2016).  The court therefore reverses the Law Division order and remands for further proceedings. 

Plaintiff Delaware River Joint Toll Bridge Commission (Commission) is a bi-state entity created by an interstate compact between the State of New Jersey and the Commonwealth of Pennsylvania and approved by the United States Congress.  In this matter, arising out of a construction project to replace the Scudder Falls Bridge that connects the two states, the court considered whether the Commission was authorized to approve, use, and enforce a project labor agreement (PLA) as a mandatory requirement in its bid specifications.  

This mandate required all bidding contractors and subcontractors to enter into a PLA with certain named unions affiliated with the local building and construction trades councils, recognizing those unions as the sole and exclusive bargaining representatives of the bidder's project workforce.

Defendant George Harms Construction Co. was prevented from bidding on the project because it was a party to a collective bargaining agreement with United Steel Workers (USW), which was excluded from the PLA.  Harms threatened to seek an injunction if the Commission did not add USW as a signatory union to the PLA.

Only one company bid on the project, submitting a bid $69 million over the projected cost of the project and $71 million more than Harms' projected bid.

The Commission sought a declaratory judgment permitting it to award the contract, including the PLA, to the successful bidder.  Harms answered and asserted numerous counterclaims, including a violation of competitive bidding laws.  The trial court dismissed the complaint as moot (the project was completed during the litigation) and granted summary judgment to the Commission on the counterclaims.

The court preliminarily determined the issue was not moot because of the importance of interstate compacts and the high likelihood that the Commission would use a PLA in a future contract.

The issue, then, was whether the Commission had the authority under its compact to approve and use a PLA in its bidding process.  The compact itself is silent on PLAs.  Therefore, the panel looked to the two states' treatment of PLAs.

The court engaged in an extensive analysis of the case law and legislative history in New Jersey and Pennsylvania regarding PLAs.  Currently New Jersey has a statute governing PLAs, N.J.S.A. 52:38-1 to -7.  Pennsylvania does not have any legislation.  The case law, emanating from the Commonwealth Court disfavors PLAs unless the project involves "extraordinary circumstances" and the PLA treats union and nonunion contractors evenly.  Therefore, New Jersey and Pennsylvania do not have parallel or substantially similar state legislation or common law regarding the use of PLAs.

The court concluded the Commission did not have the power to create and authorize use of the mandatory PLA for its project because: (1) there is no express authority for unilateral action in the compact; (2) New Jersey and Pennsylvania have not enacted complementary or parallel legislation and do not have similar common law on PLAs; and (3) the Commission has not consented to exercise of single-state jurisdiction.

The court affirmed the dismissal of the declaratory judgment complaint, albeit for different reasons than articulated by the trial court.  The court reversed the dismissal of the counterclaims and remanded to the trial court.

     Plaintiff filed a products-liability complaint against defendant, alleging the invisible tooth aligners he purchased on-line damaged his teeth and resulted in lasting injuries.  Defendant moved to dismiss the complaint, citing an arbitration provision that was embedded in the first of three hyperlinked underlined documents that appeared in different colored font.  The hyperlinked document, entitled "Informed Consent," included not only the arbitration agreement but also explanations of the benefits and risks of using the aligners, representations by plaintiff regarding his oral health, and his consent to the treatment.  Users could not proceed to open an account and order the aligners unless they clicked on a box next to the three hyperlinked documents, "I Agree," and another button, "FINISH MY ACCOUNT."
      The Law Division denied defendant's motion, relying extensively on our recent decision in Wollen v. Gulf Stream Restoration & Cleaning, LLC, 468 N.J. Super. 483 (App. Div. 2021).  The court reversed, drawing distinctions between the "browsewrap" agreement at issue in Wollen, and the "clickwrap" agreement in this case.  See, e.g., Skuse v. Pfizer, Inc., 244 N.J. 30, 55 n.2 (2020) ("Contracts that require 'that a user consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with the internet transaction' are sometimes called 'clickwrap' agreements," and "are 'routinely enforced by the courts.'"  Skuse, 244 N.J. at 55 n.2 (first quoting Feldman v. Google, Inc., 513 F. Supp. 2d 229, 236 (E.D. Pa. 2007); and then quoting HealthPlanCRM, LLC v. AvMed, Inc., 458 F. Supp. 3d 308, 334–35 (W.D. Pa. 2020)).

     The court determined an insured's satisfaction of its deductible or copayment obligation under a standard automobile policy does not operate to also reduce the $15,000 statutory Personal Injury Protection (PIP) limits of liability.  In reaching its decision, the court examined the policies' declaration pages, PIP policy provisions, and the incorporated Buyer's Guide, and concluded Travelers did not clearly express to reasonable insureds, like plaintiffs, that the limits of liability would be reduced if their claims exceeded $15,000.  The court also evaluated the legislative history of New Jersey's no-fault scheme and determined its decision did not violate the Legislature's overarching goal of reducing the costs of auto insurance.  
     Further, the court held absent legislative and regulatory approval, defendant was likely precluded from providing less than $15,000 of PIP medical expense benefits, regardless of the clarity of its policies or declaration pages.  Finally, the court distinguished our previous decision in IMO Industries Inc. v. Transamerica Corp., 437 N.J. Super. 577, 622 (App. Div. 2014), as that case involved a commercial general liability policy between sophisticated parties and relied in part on Benjamin Moore & Co. v. Aetna Co., 179 N.J. 87, 93 (2004), which involved a commercial general liability policy whose express language clearly indicated to the insured that the insurer's limit was reduced by the policy's deductible.  

     The court holds that the January 3, 2002 amendment to the criminal statute of limitations, N.J.S.A. 2C:1-6, does not apply retroactively to an offense when the limitations period in effect when the offense was committed had expired.  Accordingly, the court reverses an order denying defendant's motion to dismiss an April 2022 criminal complaint charging him with a May 1990 second-degree sexual assault, N.J.S.A. 2C:14-2(c)(2).  The criminal statute of limitations in effect in May 1990 provided that a prosecution for a sexual assault had to be commenced "within five years after it is committed."  N.J.S.A. 2C:1-6(b)(1) (1989).  
     Effective January 3, 2002, the statute was amended to carve out an exception for circumstances in which the prosecution includes DNA or fingerprint evidence.  L. 2001, c. 308, § 1.  The amendment provides that the limitations period "does not start to run until the State is in possession of both the physical evidence and the DNA or fingerprint evidence necessary to establish the identification of the actor by means of comparison to the physical evidence."  The State argued that the 2002 amendment "tolled" the running of the statute of limitations related to defendant's May 1990 alleged sexual assault until May 2021, when it collected DNA from defendant.  
     The court rejects the State's construction of the 2002 amendment.  The court's interpretation of the amendment as applying prospectively avoids a violation of the ex post facto clauses of both the federal and New Jersey constitutions.  U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3.  The court, therefore, reverses the order denying defendant's motion and remands with direction that the trial court enter an order dismissing, with prejudice, the criminal complaint in this matter. 
 

The court affirms Law Division's orders denying defendants' motion to enforce an unsigned settlement agreement arising from a voluntarily entered mediation.  The court agreed with the Law Division that, in accordance with Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 215 N.J. 242, 262 (2013), no agreement was reached because the parties did not sign the agreement before the mediation concluded.  The court, as did the Law Division, rejected defendants' argument that Willingboro's holding did not apply because, there, the mediation was court-ordered, and, in the present case, the mediation was voluntary.  Based upon the principles set forth in Willingboro, whether mediation is court-ordered or voluntary is a distinction without a difference. Furthermore, the parties' post-mediation conduct evidence there was no meeting of the minds that a settlement was reached.   

Defendant appeals from the trial court's order denying his motion to dismiss an indictment, which charged him with fifteen counts of second-degree child endangerment, N.J.S.A. 2C:24-4(b)(4), (5)(a)(i), (5)(a)(ii); and one count of third-degree child endangerment, N.J.S.A. 2C:24-4(b)(5)(b)(iii).  These provisions were enacted in 2018 as part of the child erotica amendment to the endangerment statute.  L. 2017, c. 141 (the child erotica amendment).  Finding that the statute is both unconstitutionally vague and overbroad, the court reversed.

N.J.S.A. 2C:24-4(b)(4) makes it a second-degree crime to photograph or film a child in a sexually suggestive manner, which necessarily requires the viewing and possession of such material.  N.J.S.A. 2C:24-4(5)(a)(ii) makes it a second-degree crime to possess child erotica with intent to distribute it.  Finally, N.J.S.A. 2C:24-4(5)(b)(iii) makes it a third-degree crime to possess child erotica.  The amendment's expanded definition of child pornography, which includes child erotica (i.e., images that "portray a child in a sexually suggestive manner"), is at odds with New York v. Ferber, 458 U.S. 747 (1982); Osborne v. Ohio, 495 U.S. 103 (1990); and Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

The child erotica amendment is overbroad because it precludes the private possession of material the United States Supreme Court has said is protected by the First and Fourteenth Amendments.  Based on the amendment's definition of "portray a child in a sexually suggestive manner," any image of a child could appeal to sexual interests and thus be proscribed.  Therefore, the amendment is also vague because a person of ordinary intelligence would not understand the limits of permissible conduct.

    In this case of first impression, the court determines that N.J.S.A. 2C:58-3(c)(5), which precludes the issuance of a handgun purchase permits (HPP) or a firearms purchaser identification card (FPIC) "where the issuance would not be in the interest of the public health, safety or welfare" is constitutional, applying the analytic paradigm adopted by the United States Supreme Court's recent Second Amendment decision in New York State Rifle & Pistol Association v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022).  Considering the historical traditions and analogues present leading up to and during the ratification of the Second Amendment, the court holds that N.J.S.A. 2C:58-3(c)(5) "is consistent with this Nation's historical tradition of firearm regulation," and that individuals who engaged in repetitive misconduct without being convicted of a crime or felony-equivalent offense, are not "law-abiding citizens" whom the Second Amendment protects.  

    The court also holds that expunged records may be considered when determining whether to grant a HPP or revoke a FPIC.  The court affirms the denial of appellant's HPP application and revocation of his previously issued FPIC.  

    The court reverses the forfeiture and compelled sale of appellant's firearms under N.J.S.A. 2C:58-3(f), which addresses revocation of FPICs and carry permits but provides no basis for the forfeiture of firearms already possessed.  
 

In this interlocutory appeal, the court considered the protective breadth of the Expungement of Records statute, N.J.S.A. 2C:52-1 to -31.1 (the expungement statute), against the statutory provisions regulating Transportation Network Companies N.J.S.A. 39:5H-1 to -27 (the TNC statute), where a conviction for aggravated assault bars employment as a rideshare driver and Uber's potential culpability under a theory of negligent hiring or employment.  T.C., an Uber driver, had a previous conviction for aggravated assault of a law enforcement officer.  Uber had knowledge of T.C.'s prior conviction for aggravated assault—in the form of the two background checks—for some period of time prior to the entry of an order of expungement. 

The court addressed the narrow issue of whether the expungement gives T.C.'s employer the ability to assert T.C.'s rights so as to imply ignorance of the prior assault conviction.  The court read N.J.S.A. 2C:52-19 to prevent the evidence of an expunged record to be used against the person for whom the expungement is meant to benefit: the recipient of the expungement.  The court does not read N.J.S.A. 2C:52-19 to give instant cover to third parties without further examination of that third-party's conduct, duty and responsibility in a negligent hiring claim.  The court remanded for further development of the record.

In these appeals, calendared back-to-back and consolidated to issue a single opinion, the court granted plaintiff Norma Davis leave to challenge two separate Law Division discovery orders arising from her lawsuit alleging that defendants Disability Rights New Jersey, Gwen Orlowski, and Ellen Catanese terminated her employment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.  The orders were stayed pending these appeals. 

In A-0269-22, the trial court order (cell phone record order) granted in part and denied in part plaintiff's motion to quash defendants' subpoena to her cellular provider seeking her cell phone records.  Plaintiff used her cell phone to perform her work duties while allowed to work from home.  The order required plaintiff:  (1) to produce a redacted copy of her personal cell phone records indicating work-related calls and texts made and received during her normal workday from January 1, 2018 to January 31, 2020; and (2) to submit to the court a copy of the redacted records provided to defendants, as well as a Vaughn[1] index of an unredacted copy of the records showing all calls and texts made and received during that period.  National Employment Lawyers Association/New Jersey (NELA) filed an amicus brief in support of plaintiff.

In A-0270-22, the trial court order (social media posts order) granted in part and denied in part defendants' motion to compel plaintiff to provide copies of her private social media posts, profiles, and comments (collectively "social media posts" or "social media content") from January 1, 2020 to August 29, 2022, depicting an emotion, attaching a picture of herself, or mentioning:  Disability Rights or her lawsuit's allegations; her vacations or celebrations; her being ill or worrying about being ill; and her work.  NELA and New Jersey Association of Justice (NJAJ) filed amicus briefs in support of plaintiff. 

The court is unpersuaded by plaintiff's and amici's arguments that the trial judge abused his discretion in entering orders which abridged her privacy interests.  The court concludes the judge appropriately considered plaintiff's privacy interests in her social media posts and cell phone bills and did not err in allowing defendants' discovery of limited private social media posts and cell phone bills to defend against her claims that her termination violated the LAD, causing her emotional distress.  The court, however, remands for the judge to add the requirement in the social media posts order –– similar to the cell phone record order –– that plaintiff submit a redacted copy of her private social media posts to defendants and the trial court as well as an unredacted copy of the posts with a Vaughn index to the trial court.

[1]  As pronounced in Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). 

At issue in this medical negligence matter is the kind-for-kind specialty requirement embodied in the New Jersey Medical Care Access and Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A-37 to -42.  This appeal requires the court to determine whether the affidavit of merit (AOM) of a board-certified hematology expert satisfied the PFA's equivalency requirement where neither defendant doctor specialized, nor was board certified, in hematology when they rendered care to the decedent.  Instead, both defendants specialized in internal medicine at the time of the alleged treatment, and one was board certified in that specialty, but plaintiff's proffered expert did not specialize in internal medicine.  The trial court denied defendants' motion to dismiss plaintiff's complaint for failure to provide a sufficient AOM, essentially concluding the affiant's hematology subspecialty was "subsumed" in defendants' internal medicine specialty and, as such, the affiant was qualified to opine that defendants deviated from the standards of medical care by improperly prescribing heparin to the decedent.

The court granted defendants leave to appeal from the April 14, 2022 Law Division order.  The court holds the PFA's kind-for-kind specialty requirement embodied in N.J.S.A. 2A:53A-41(a) is not satisfied when the AOM's affiant specialized in a subspecialty of the treating doctor's specialty but did not specialize, nor was board certified, in the physician's specialty when the alleged medical negligence occurred.  The court therefore concludes plaintiff failed to satisfy the PFA's equivalency requirements and reverse the trial court's order denying defendants' dismissal motion.  In doing so, the court rejects plaintiff's alternate argument that she satisfied the waiver exception to the PFA under N.J.S.A. 2A:53A-41(c), which would have rendered moot defendants' appeal.

Appellants, parents of children enrolled in the Lakewood Public School District (District or Lakewood), filed a petition alleging the District was not providing its public-school students a thorough and efficient education as required by our State's Constitution.  N.J. Const. art. VIII, § 4, ¶ 1.  They contend this is due to the failure of the New Jersey Department of Education (DOE) to adequately fund the District.  To that end, they assert the School Funding Reform Act (SFRA), N.J.S.A. 18A:7F-43 to -70, which sets certain standards for the DOE, is unconstitutional as applied to Lakewood.  The record demonstrates Lakewood's school district is in a unique and precarious position.  Due, in large part, to demographic trends in the area.  Lakewood Township has seen a population rise in recent decades, primarily resulting from a thriving Orthodox Jewish community.  As a result of this demographic shift, the township has approximately 37,000 school-aged children, however, only about 6,000 are enrolled in the secular public schools.  The majority—eighty-four percent—are enrolled in private religious schools.  Testimony before the Administrative Law Judge (ALJ) established this demographic trend is likely to continue and accelerate.

Like other districts, Lakewood's state-issued school aid is calculated based upon its 6,000 enrolled public-school students.  The total budget for the most recent school year at the time of that decision was $143.45 million.  Of that, over half—$78 million—went to transportation and special education tuition for non-public students.  This is an abnormal and unsustainable imbalance.  The court concluded the record generated before the ALJ cannot fairly be said to support a finding Lakewood's students are receiving a constitutionally sound education.

The court held the Commissioner utilized an incorrect standard in rejecting the ALJ's finding, and further held the Commissioner owed appellants a thorough review of their substantive argument:  the funding structure of the SFRA was unconstitutional as applied to Lakewood's unique demographic situation.  The court reversed and remanded for the agency to consider the substantive arguments pertaining to SFRA in light of our Supreme Court's previous directive in Abbott ex rel. Abbott v. Burke (Abbott XX), 199 N.J. 140, 146 (2009):  the State has a continuing obligation to "keep SFRA operating at its optimal level" and "[t]here should be no doubt that we would require remediation of any deficiencies of a constitutional dimension, if such problems do emerge." 

The court granted defendants leave to appeal from the Law Division's orders denying summary judgment and reconsideration.  Plaintiff was injured while driving his motorcycle when defendants' tractor trailer pulled into plaintiff's lane of travel.  Plaintiff admitted having several drinks throughout the day and that he was speeding at the time of the accident, but, at his deposition, equivocated as to whether he was intoxicated.  Blood was drawn at the hospital, and defendants' expert extrapolated from that sample that plaintiff's BAC at the time of the accident was between .159 and .162.  Police issued no motor vehicle summonses to plaintiff.

In moving for summary judgment, defendants relied upon N.J.S.A. 39:6A-4.5(b), which provides:

Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of [N.J.S.A.] 39:4-50, [N.J.S.A. 39:4-50.4a], or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.

[(Emphasis added).]

The motion judge denied the motion, concluding that the statute did not apply to plaintiff because he was not convicted of DWI and also because there were material disputed facts as to whether plaintiff was legally intoxicated at the time of the accident.

The court affirmed, agreeing with the motion judge that there were material factual disputes as to plaintiff's state of intoxication at the time of the accident.  More importantly, the court concluded the plain language of the statute denied a cause of action only to those plaintiffs actually convicted of DWI. 

     In this matter arising out of the purchase of a vehicle, the court considered whether parties may expand the scope of judicial review of an arbitration agreement governed by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16.  The agreement here contained a clause that permitted a court to review an arbitrator's award for errors of New Jersey law.  Guided by the United States Supreme Court's holding in Hall St. Assocs., LLC v. Mattel, Inc., 552 U.S. 576 (2008), the court concluded that when the FAA controls an arbitration agreement, its vacatur terms are exclusive and cannot be modified by contract.  Therefore, the pertinent clause in the arbitration agreement is unenforceable and severable from the remainder of the agreement.  The court affirmed the trial court's order dismissing plaintiffs' complaint seeking to vacate the arbitration award.

     On April 13, 2022, plaintiffs, individually and as representatives of a proposed class, filed a complaint seeking relief under the Wage Payment Law (WPL) and the Wage and Hour Law (WHL), alleging defendant failed to pay them for pre- and post-shift work.  Defendant moved to partially dismiss the complaint, arguing plaintiffs sought the retroactive application of L. 2019, c. 212 (Chapter 212), which became effective August 6, 2019.  
     Chapter 212 amended both statutes, permitting employees to seek liquidated damages equal to 200% of the wrongfully withheld wages.  Additionally, Chapter 212 permitted successful WPL claimants to recover counsel fees and costs, previously allowed only under the WHL.  And, Chapter 212 extended the "look-back" period under the WHL, i.e., that period of time for which an employee could seek unlawfully withheld wages, from two to six years, prior to the "commencement" of the action in court.  The WPL has never had a similar provision, and Chapter 212 did not amend the WPL in this regard.
     The Law Division judge granted defendant's motion dismissing plaintiffs' WPL and WHL claim based on violations that occurred prior to August 6, 2019.  The court granted leave to appeal and reversed.
     Relying largely on the Court's recent decision in W.S. v. Hildreth, 252 N.J. 506 (2023), the court held that plaintiffs were entitled to the statutory remedies available as of the date they "commenced" their action in court.  See W.S., 252  N.J.  522 ("Applying the law in effect at the time a complaint is filed . . . is not applying a statute retroactively; it is applying a statute prospectively to cases filed after its effective date.").  The court also held that based on the legislative history of Chapter 212, the Legislature clearly intended to permit a six-year look back period under the WPL.       
 

    This appeal raises the novel issue of whether the statutory bar set forth in N.J.S.A. 39:6A-4.5(a) precludes plaintiff's wrongful death and survivor claims stemming from the second of two separate motor vehicle accidents occurring a half hour apart at the same location, the latter of which resulted in the death of the uninsured driver as he attempted to retrieve a cell phone from his disabled vehicle.  In considering this question, the court addressed whether decedent was "operating" his uninsured vehicle at the time of the second accident for the purposes of N.J.S.A. 39:6A-4.5(a).  The court further distinguished Perrelli v. Pastorelle, where the Supreme Court determined the statutory bar to recovering damages under N.J.S.A. 39:6A-4.5(a) applied to the owner of an uninsured vehicle, even where the owner was injured while a passenger in the vehicle.  206 N.J. 193, 208 (2011).  The court ultimately concluded the statutory bar pursuant to N.J.S.A. 39:6A-4.5(a) was not implicated because decedent was not operating his vehicle.

          In this medical malpractice matter, defendants Herve Boucard, M.D. and Hamilton Gastroenterology Group, PA appeal from a July 26, 2022 order, which denied defendants' motion to bar the standard of care opinions of plaintiff's expert, Dr. Andrew Bierhals, at trial.  That expert opined that codefendant Yang, who settled prior to trial, did not deviate from the standard of care, contrary to plaintiff's prior position that Yang (as well as Boucard and others) was negligent.  On appeal, defendants argue that Glassman v. Friedel, 249 N.J. 199 (2021), which precludes a plaintiff from disavowing the negligence of an initial tortfeasor who settled in a later action against a successive tortfeasor, should be extended to cases involving a settling joint tortfeasor. 

          The court concludes that Glassman is expressly limited to successive tortfeasors and an extension of its holding to joint tortfeasors is not warranted.  Glassman sets forth a method of fixing damages caused by a first, independent source of injury to afford a credit to a successive tortfeasor who would otherwise have no remedy against the settling tortfeasor.  Glassman's assignment of damages to a preceding event is not possible where, as here, plaintiff seeks to establish fault as to a single, indivisible injury where two or more persons are subject to common liability.

          Equally important is the fact that, unlike a successive tortfeasor, joint tortfeasors are not left without remedies against a settling codefendant.  Whereas Glassman expressly prohibits an allocation of fault against an initial tortfeasor, a joint tortfeasor may seek an allocation of liability against the settling codefendant at trial.  Any percentage of fault thus allocated "operates as a credit to the remaining defendants."  In addition, the right of contribution assures that a joint tortfeasor can seek a remedy for the fault allocated to settling codefendants.  It is plain that the equitable concerns underpinning Glassman do not exist in the joint tortfeasor context.

          Finally, the court is unpersuaded by defendant's argument that it would be unfair to allow plaintiff to disavow its prior position that Yang was negligent.  Defendant bears the burden of proving Yang's negligence for purposes of an allocation.  That plaintiff will not assist him in that endeavor does not evince any intent to manipulate or mislead the court; rather, the court finds it to be sound trial strategy.  Given the remedies available to defendant, the court concludes it is unwarranted to invoke the extraordinary remedy of judicial estoppel as it is not "necessary to secure substantial equity."  Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir. 1996) (quoting Gleason v. United States, 458 F.2d 171, 175 (3d Cir. 1972)).

          The question presented on this appeal is whether University Hospital is a state administrative agency whose final decisions are directly appealable to this court under Rule 2:2-3(a)(2).  University Hospital is an acute care facility and trauma center located in Newark.  It was established in 2012, when the Legislature enacted and the Governor signed the New Jersey Medical and Health Sciences Education Restructuring Act (the Act), N.J.S.A. 18A:64M-1 to -43.  The Act states that University Hospital was established "as a body corporate and politic [that] shall be treated and accounted for as a separate non-profit legal entity from Rutgers, The State University," and as "an instrumentality of the State."  N.J.S.A. 18A:64G-6.1a(a).

          In 2019, University Hospital issued a request for proposals (RFP) to design, construct, and operate a pharmacy at its hospital.  Sumukha, LLC (Sumukha), one of the unsuccessful bidders, appeals from University Hospital's denial of its protest of the award of the contract to Shields Pharmacy of University, LLC (Shields).  The court holds that the Legislature did not intend to make University Hospital a state administrative agency when it created the Hospital "as a body corporate and politic" that is not situated in an executive branch department.  Consequently, we dismiss this appeal without prejudice to Sumukha's right to file an action in the Law Division.

          We consider whether plaintiff, an alleged victim of sexual abuse by a teacher, is barred from seeking pain and suffering damages under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12.3, because he has not incurred the requisite amount of medical expenses.  Despite the Legislature's recent amendments to the TCA regarding child sexual abuse claims, it did not eliminate the statutory threshold regarding medical expenses.  Therefore, we affirm the trial court's order barring plaintiff from seeking pain and suffering damages.

     At issue in this post-conviction relief matter is whether defendant's "open" guilty plea during trial was premised on his attorney's "guarantee" that the judge would sentence him to a time-served sentence pursuant to an alleged agreement reached in chambers.  Citing the transcript of the plea hearing to the contrary, the PCR judge – who was not the trial judge – denied defendant's petition.  Thereafter, PCR counsel moved for reconsideration based on the certification of plea counsel, which supported defendant's assertions, but was acquired beyond the twenty-day time limitation prescribed by Rule 1:7-4(b) and Rule 4:49-2.  The PCR judge denied the motion as untimely and did not reach the merits of defendant's motion.  
     Because plea counsel's certification was belatedly provided to the PCR judge, this court affirms the denial of defendant's petition and his motion for reconsideration.  However, the court concludes PCR counsel provided ineffective assistance following receipt of plea counsel's certification.  
     Although PCR counsel's obligation to defendant was discharged upon filing an appeal with this court, PCR counsel filed an untimely reconsideration motion.  PCR counsel had other available options that would have led to a timely-filed second PCR petition under Rule 3:22-12(a)(2)(B).  PCR counsel could have sought authority from the Office of the Public Defender to file a second PCR petition on defendant's behalf, or he could have provided plea counsel's certification to defendant to file a pro se second petition.  
     Because the court concludes PCR counsel's representation was deficient, defendant is entitled to a new PCR proceeding.  Because defendant's assertions against plea counsel are now supported by the sworn statements of that same attorney, the court concludes defendant's claims cannot be resolved on the existing record. 
     The court therefore affirms both orders under review.  In light of PCR counsel's ineffectiveness, however, the court remands the matter for an evidentiary hearing.  

          The court considers whether a police officer, who walked onto the driveway of a home without permission or a warrant, was lawfully there when he observed illegal narcotics in a hole in the home's front porch.  Because the driveway was part of the home's curtilage, the court holds that the officer conducted an unlawful search and his subsequent observation of contraband in the hole in the porch did not satisfy the plain-view exception.  Accordingly, the court reverses the trial court's denial of defendant's motion to suppress the seized contraband. 

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without a hearing.  The petition alleges ineffective assistance of counsel regarding both his prior attorneys.  Defendant's claim is primarily based on counsels' representation of him during two statements he gave to police, prior to the filing of any charges.  Defendant lied to the police during his first statement, at which he was represented by his first attorney.  He then retained a different attorney and gave a second statement in which he admitted to but tried to explain the prior misrepresentations.  Defendant was charged with hindering apprehension by false statements and false swearing by inconsistent statements, in addition to the substantive offense of permitting or encouraging the release of a child abuse record.

Defendant testified during the first jury trial, which ended in a mistrial based on defense counsel's failure to provide the State notice of his retraction defense.  Defendant exercised his right to remain silent during the second trial, which resulted in convictions on all counts.  On direct appeal, the court affirmed the convictions for false swearing and hindering apprehension and vacated the conviction for unlawful disclosure of a child abuse record.

In support of his petition for PCR, defendant provided an expert report from a veteran criminal attorney which opined that counsels' representation fell below the constitutional standard.  The PCR judge declined to consider the report because the petition presented mixed questions of law and fact which were for the court to determine, and she did not need the assistance of an expert report to decide the issues.

Under both the federal and state constitutions, it is well established that the right to effective counsel does not attach until the filing of charges.  Defendant sought to expand this right to representation occurring during the investigation.  The court found a defendant may not bring a PCR petition based on ineffective assistance of counsel for representation that occurred prior to being charged.

The court also found defendant failed to demonstrate either counsel was ineffective, and the PCR judge did not abuse her discretion in declining to consider defendant's expert report.

          Plaintiff, a fully commissioned real estate salesperson, alleged on behalf of himself and a putative class of those similarly situated that defendant, a licensed real estate broker, had violated the Wage Payment Law (WPL), N.J.S.A. 34:11-4.1 to -4.14.  This court's prior opinion, Kennedy v. Weichert Co., No. A-0518-19 (App. Div. July 2, 2021), affirmed the trial court's order:  denying defendant's motion to dismiss for failure to state a claim; and declaring pursuant to Hargrove v. Sleepy's, LLC, 220 N.J. 289, 302 (2015), that the "ABC test," N.J.S.A. 43:21-19(i)(6)(A), (B), and (C), applied to determine plaintiff's employment status as an employee or independent contractor.

         The Supreme Court granted defendant's motion for leave to appeal but then remanded the matter for this court to consider recent amendments to the Real Estate Brokers and Salesmen Act (the Brokers Act), N.J.S.A. 45:15-1 to -29.5, enacted after this court's prior opinion.

         On remand, the court concluded the recent amendments foreclosed application of the ABC test to determine the employment status of fully commissioned real estate salespersons.  The court also concluded that pursuant to binding precedent from the Court, the written agreement between the parties did not, as a matter of law, define plaintiff's status.  See, e.g., MacDougall v. Weichert, 144 N.J. 380, 388 (1996).

         However, given the paucity of the record, the court declined to adopt a specific test to apply in deciding plaintiff's status pending "the development of a more complete record that permits exposition of the actual business relationship between the parties."

Plaintiff, Shlomo Hyman, is a rabbi formerly employed by defendants as a Judaica studies teacher.  After an investigation concluded defendant had engaged in behavior that violated Orthodox Jewish standards of conduct, defendants terminated him.  Defendants then sent an email to the parents of the Yeshiva students informing them that Rabbi Hyman would not be returning as "[his] conduct had been neither acceptable nor consistent with how a rebbe in our Yeshiva should interact with students." Plaintiff alleged the communication defamed him and served to label him as a pedophile, impairing his future employment prospects.

Plaintiff now appeals from an April 16, 2021 order granting defendants' motion for summary judgment dismissing his claim for defamation based on the ministerial and ecclesiastic abstention doctrines.  Plaintiff argues the court erred in dismissing his defamation claim because the ministerial exception recognized in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 181 (2012) applies only to employment discrimination claims, and because further discovery was required to determine whether the motivation behind the dissemination of a letter concerning the termination was ecclesiastic in nature.

The court affirmed the dismissal of the lawsuit, concluding, as a matter of first impression, that the ministerial exception operates to bar any tort claim provided (1) the injured party is a minister formerly employed by a religious institution and (2) the claims are related to the religious institution's employment decision.  Because both conditions are satisfied in this case, the ministerial exception alone bars plaintiff's defamation claim.  Therefore, the court found it unnecessary to address whether the ecclesiastic abstention doctrine was an independent basis to dismiss the action.

          In this appeal of an order compelling arbitration, the court held that the requirement imposed by Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014) – that, to be enforceable, an arbitration provision must contain an express waiver of the right to seek relief in a court of law – was not intended to apply to sophisticated commercial litigants possessing comparatively equal bargaining power.

          A public employer appealed from two Chancery Division orders denying its request to restrain a grievance arbitration filed by the union.  The issue before the court was whether a union grievance based on language from an expired collective negotiations agreement is arbitrable when a successor collective negotiations agreement clearly and unambiguously addresses the disputed issue raised in the grievance.  The court concluded that the language contained in the successor collective agreement superseded the language in the expired agreement.  The language in the successor agreement limited compensation for work performed during a weather-related State of Emergency declared by the Governor, contrary to the union's interpretation the language applied to COVID-19.  Since the grievance was not within the scope of the successor agreement implemented after impasse, it was not arbitrable.  The court reversed the orders requiring grievance arbitration.

Defendant contends he was subjected to discriminatory policing when he was stopped and frisked based on the be-on-the-lookout (BOLO) description of the person who committed an armed robbery in the vicinity minutes earlier.  The BOLO alert described the robber as a Black male wearing a dark raincoat.  However, the victim did not provide the race of the perpetrator when she reported the crime.  The State acknowledges it does not know why the police dispatcher assumed the robber was Black.

The court address three issues of first impression.  As a threshold matter, the court holds that decisions made and actions taken by a dispatcher can be attributed to police for purposes of determining whether a defendant has been subjected to unlawful discrimination in violation of Article I, Paragraphs 1 and 5 of the New Jersey Constitution. 

Second, the court holds that "implicit bias" can be a basis for establishing a prima facie case of police discrimination under the burden-shifting paradigm adopted in State v. Segars, 172 N.J. 481 (2002).  Reasoning that the problem of implicit bias in the context of policing is both real and intolerable, the court holds evidence that supports an inference of implicit bias shifts a burden of production to the State to provide a race-neutral explanation.  The State's inability to offer a race-neutral explanation for the dispatcher's assumption that the robbery was committed by a Black man constitutes a failure to rebut the presumption of unlawful discrimination under Segars.

Third, the court addresses whether and in what circumstances the independent source and inevitable discovery exceptions to the exclusionary rule apply to the suppression remedy for a violation of Article I, Paragraphs 1 and 5.  After balancing the cost of suppression against the need to deter discriminatory policing and uphold public confidence in the judiciary's commitment to safeguard equal protection rights, the court concludes the independent source doctrine does not apply in these circumstances.  That exception allows a reviewing court to redact unlawfully obtained information to determine whether the remaining information is sufficient to justify a search.  The court concludes that any such redaction remedy would undermine the deterrence of discriminatory policing and send a message to the public that reviewing courts are permitted to essentially disregard an equal protection violation so long as police also relied on information that was lawfully disseminated.  The court reasons that if simple redaction were permitted in these circumstances, the independent source exception might swallow the exclusionary rule.   

With respect to the inevitable discovery doctrine, the court holds it may apply in racial discrimination cases only if the State establishes by clear and convincing evidence that the discriminatory conduct was not flagrant.  Because the State concedes it does not know why the dispatcher assumed the robber was Black, it cannot meet that burden.  The court, therefore, reverses the denial of defendant's motion to suppress.   

Defendant, Smith & Wesson, appeals from a June 30, 2021 Chancery Division order directing it to respond to a subpoena issued the Attorney General and the Acting Director of the New Jersey Division of Consumer Affairs.  Defendant also appeals a second June 30, 2021, Chancery Division order denying its cross-motion to dismiss, stay, or quash the subpoena. 

Faced with defendant's first-filed federal complaint against plaintiffs' motion to quash the subpoena, and with plaintiffs' subsequently filed order to show cause to enforce the subpoena, the Chancery Division judge assumed jurisdiction, finding special equities which justified avoiding the first-filed doctrine.  The judge then found the subpoena valid.  Defendant appealed, arguing the judge erred by misapplying the first-filed doctrine and by rejecting its constitutional attacks on the subpoena.   

The court held that:  special equities exist which support avoidance of the first filed doctrine; NAACP v. Alabama does not require resolution of defendant's constitutional claims at this stage of the litigation; defendant's federal constitutional claims are not ripe for consideration; and the subpoena is valid.

Affirmed.

Defendants – an attorney and law firm – have a client that produced a report, which asserts plaintiffs unlawfully conducted gambling-related business in forbidden countries. At the client's behest, the defendant attorneys forwarded the report to the New Jersey Division of Gaming Enforcement. When the media learned of the report, plaintiffs sued the defendant attorneys, as well as their anonymous client and other fictitious persons, alleging defamation and other torts. Plaintiffs successfully obtained an order compelling the defendant attorneys to provide their client's identity. The court granted the defendant attorneys' motion for leave to appeal.

Although RPC 1.6 generally imposes on attorneys the ethical obligation to refrain from disclosing a client's identity without the client's consent, the court held that this interest in preserving confidentiality cannot be used to thwart justice and, in appropriate circumstances, a client's right to anonymity may be overcome in favor of an injured party's right to seek redress in our courts. To resolve the conflict between these interests, there must be a deeper examination of the claim's merits than occurred here. The court, therefore, vacated the disclosure order and remanded for the judge's inquiry into the veracity of the report that lies at the heart of plaintiffs' civil action, leaving to the judge's discretion the methodology to be employed.

Defendant was initially charged with carjacking.  While he was awaiting trial, he sent a letter to the victim's home address, urging her to reconsider her identification of him as the robber.  That resulted in an additional charge of witness tampering.

The court rejects defendant's contention that the witness tampering statute, N.J.S.A. 2C:28-5(a), is overbroad and impermissibly vague on its face.  A person commits witness tampering if he or she knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to do one or more specified actions, such as testify falsely or withhold testimony.  Defendant contends the "reasonable person" feature renders the statute unconstitutional and, to avoid constitutional infirmity, the statute must be construed to require the State to prove he knew his conduct would cause a prohibited result. 

First addressing defendant's overbreadth challenge, the court reaffirms that preventing the intimidation of, and interference with, potential witnesses or informers in criminal matters is an important governmental objective.  The court also notes a defendant who is awaiting trial for a violent crime has no First Amendment right to communicate directly with the victim.  Were it otherwise, a court setting the conditions of pretrial release under the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, might be foreclosed from imposing a "no contact" order.  The court concludes the witness tampering statute is not overbroad weighing the importance of the exercise of speech against the gravity and probability of harm resulting from that speech.

With respect to defendant's vagueness challenge, the court declines to embrace a new rule that would categorically prohibit the Legislature from using a reasonable-person test to determine a defendant's culpability.  The court rejects the argument that the "reasonable person" feature in the witness tampering statute is analytically indistinguishable from the portion of the bias intimidation statute, N.J.S.A. 2C:16-1(a)(3), that was struck down on vagueness grounds in State v. Pomianek, 221 N.J. 66 (2015).  The invalidated portion of the bias intimidation statute employed a subjective test under which a defendant's culpability was determined from the perspective of the specific victim who was targeted.  That led the Supreme Court to conclude that "guilt may depend on facts beyond the knowledge of the defendant or not readily ascertainable by him [or her]."  Pomianek, 221 N.J. at 89.

The "reasonable person" standard employed in the witness tampering statute, in contrast, does not account for, much less depend on, what the victim actually perceived or believed.  Rather, the witness tampering statute uses an objective standard, effectively eliminating the concern expressed in Pomianek regarding idiosyncratic personal characteristics of the victim about which a defendant might be unaware. 

The court also notes the bias intimidation statute employed a convoluted culpability provision that focused on the victim's speculation as to the defendant's purpose.  That formulation had not been used in any preexisting statute and was never replicated in New Jersey or any other jurisdiction.  The objective "reasonable person" formulation employed in the witness tampering statute, in contrast, appears throughout the New Jersey Code of Criminal Justice.

         In this opinion, the court addresses the novel issue of whether a party to a pending litigation may compel a non-party State agency to turn over its employees' State-issued and personal cell phones to that party's expert for forensic examination, even when the agency has already produced the relevant records from the devices.  Having reviewed this issue in light of the record, the arguments of the parties, and the applicable law, the court concludes that the trial court misapplied its discretion when it required the New Jersey Department of Health (Department) to give the cell phones to plaintiffs' expert for evaluation.  The trial court's order violated civil discovery rules and case law by requiring the production of materials not in the Department's possession, custody, or control, not allowing for privilege and confidentiality review, and being unnecessary and unduly burdensome.  The order also contravened the employees' constitutional right to privacy.  Therefore, the court reverses the trial court's order mandating that the Department turn over any State-issued or personal electronic devices for examination by plaintiffs' expert, and remands the matter for resolution of any outstanding issues relating to the completeness of the Department's response to plaintiffs' subpoena.

The court affirms Law Division orders consolidating and dismissing seven inverse condemnation actions against the Department of Environmental Protection under the entire controversy doctrine, leaving plaintiffs to their remedies in the DEP's condemnation action against their homeowners association, in which plaintiffs have been participating since 2019.

The case arises out of the State's acquisition of a perpetual storm damage reduction easement by eminent domain in the Association's unbuildable, two-and-a-half-acre beach lot along the Atlantic Ocean in Point Pleasant Beach as part of the Manasquan Inlet to Barnegat Inlet Storm Damage Reduction Project.  Plaintiffs are seven of the twenty-two homeowner members of the Association, each holding a non-exclusive easement appurtenant for recreational purposes in the Association's beach. 

When the court declared DEP had the authority to partially condemn the Association's beach for shore protection in 2016, it entered orders permitting members of the Association to present claims for severance damages allegedly caused to their homes by the partial taking of the beach lot before the condemnation commissioners.  Plaintiffs appeared at the commissioners' hearing in 2019 and have appealed from the commissioners' report and award.  They have an order in the condemnation action ensuring that among the issues to be tried to a jury will be "the separate just compensation due to each of the respective [plaintiffs] by reason of the taking . . . of property of each . . . and any damages to their respective residential lots."  Because plaintiffs' rights to separate awards for just compensation for the loss of value to their homes, if any, resulting from DEP's exercise of eminent domain as to the beach lot are fully protected through their participation in the earlier filed condemnation action, the court affirms dismissal of their inverse condemnation actions under the entire controversy doctrine.

          The court also affirms rejection of plaintiffs' claim that their recreational easements provided them the right to exclude non-Association members from the Association's beach, as neither the express wording of the easement nor the Association's reservation of the right to operate the beach commercially in a 2005 settlement of public trust litigation supports that claim.

In this appeal from proceeding filed in the Family Part involving the cremation remains and personal effects of the parties' son, who died unexpectedly and suddenly at age twenty, the mother unilaterally decided to have the body cremated without informing the father that their son had died, preventing him from participating in that decision and attending the memorial service.  The mother has sole possession of the cremation remains and the son's remaining personal effects and refuses to divide them with the father.  

The court concluded the father had ample opportunity to litigate Colleen's alleged alienation of their son's affection and interference with his parenting time and communication with his late son in the Family Part during the years leading up to his son's eighteenth birthday.  He chose not to do so, and instead waited until the dispute over the cremation remains and personal effects erupted more than two years after their son turned eighteen to first raise those issues.  The court deemed those issues waived and, in turn, concluded that a plenary hearing regarding the parties conduct during the last five years of their son's life is not required as the evidence overwhelming demonstrated the mother had a closer relationship with their son.  Applying a four-prong test, the court held the mother shall have control over the cremation remains.  

The court affirmed the termination of child support, retroactive to the date of death.  

The court also provides guidance on the proper procedure to be utilized in future similar disputes, by filing a complaint in the Probate Part, rather than applications in the Family Part.  

These consolidated appeals present an issue of first impression – whether plaintiffs state viable claims for breach of contract, unjust enrichment, conversion, or money had and received, because the universities they attended transitioned to total online instruction rather than an in-person, on-campus education experience for which they paid, during the statewide health emergency caused by the COVID-19 pandemic.  The universities contend they are immune from liability pursuant to the Emergency Health Powers Act (EHPA), N.J.S.A. 26:13-1 to -36, because their decisions to pause in-person instruction were made in compliance with the executive orders issued by the Governor during a public health emergency to limit the spread of COVID-19 among students, faculty, and the community.  

The court affirms the Rule 4:6-2(e) dismissal of plaintiffs' complaints for failure to state a claim upon which relief can be granted, concluding the universities are immune from liability under N.J.S.A. 26-13-19.  

In this appeal, plaintiff American Civil Liberties Union of New Jersey (ACLU) contended defendant County Prosecutors Association of New Jersey (CPANJ) is a public agency subject to records requests under the Open Public Records Act (OPRA) and the common law right of access.  The ACLU requested CPANJ to produce documents regarding CPANJ's funding, the context and contents of its meetings and events (including dates, times, and locations), and the people performing its operating functions.  CPANJ denied the records request in its entirety, contending it is "not a public agency subject to the dictates of OPRA or requests made under the common law right of access." 

The court held CPANJ is not a public agency subject to OPRA and is not a public entity subject to the common law right of access.  Therefore, disclosure of the requested records was properly denied.  

This case addresses the issue of whether sales tax should be included when calculating the "full retail value" of merchandise under New Jersey's shoplifting gradation statute.  N.J.S.A. 2C:20-11(c).  Defendant pled guilty to shoplifting an Xbox One with an advertised price of $499.99.  Shoplifting constitutes a crime of the third degree "if the full retail value of the merchandise exceeds $500 but is less than $75,000" and a crime of the fourth degree "if the full retail value of the merchandise is at least $200 but does not exceed $500."  N.J.S.A. 2C:20–11(c)(2) and (c)(3).    The State utilized sales tax in grading defendant's offense, and he was therefore charged with a third-degree offense.  

The court analyzed the theft statute, which specifically utilizes sales tax to calculate the "amount involved" in its statutory gradation scheme.  However, the court observed the shoplifting statute contains no such provision.  The court concluded because the Legislature did not determine sales tax should be included in the valuation of full retail value in enacting the shoplifting gradation statute, it was improper for sales tax to have been utilized to increase defendant's charge to a third-degree offense.   

Defendant's car was subjected to a warrantless search incident to an unrelated sting operation planned and carried out by New Jersey State Police.  The State Police detained defendant after a parking lot melee involving three other persons, including the target of the sting operation.  Due to the cold weather, state troopers detained defendant in his car.  After a state trooper opened defendant's car door and placed him inside, the trooper smelled the odor of marijuana.  Based on the trooper's detection of marijuana, the State Police sought defendant's consent to search the car.  After initially refusing, defendant consented, and the State Police conducted a search of the car.  The State Police found no marijuana in the car, but they recovered an illegal gun.  Defendant filed a motion to suppress the gun, arguing the initial entry into his vehicle constituted an unconstitutional search.  The trial court denied the motion, finding the State Police's justification that it was too cold to detain defendant outside was sufficient under the totality of the circumstances.

The Court held that the trial court mistakenly applied State v. Woodson, 236 N.J. Super. 537 (App. Div. 1989), and State v. Conquest, 243 N.J. Super. 528 (App. Div. 1990), and that the opening of the car door constituted an impermissible search.

Reversed and remanded.  

 Defendant was charged with first-degree murder, two weapons offenses, and hindering apprehension.  Tried to a jury, defendant was convicted of the lesser-included offense of second-degree passion-provocation manslaughter, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon, and not guilty of hindering apprehension.  The trial court found aggravating factors one, three, four, and nine, N.J.S.A. 2C:44-1(a)(1), (3), (4), and (9), and mitigating factor seven N.J.S.A. 2C:44-1(b)(7), but rejected mitigating factor nine, N.J.S.A. 2C:44-1(b)(9).  Following merger of the weapons counts, he was sentenced to a nine-and-one-half-year term, subject to the parole ineligibility and parole supervision imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2.  

The court addressed the judicial factfinding undertaken by the trial court as part of its sentencing analysis.  The court concluded that the trial court's findings regarding the degree of provocation and sufficient time to cool off before delivering the fatal blows were contrary to the jury's verdict and violated the doctrine of fundamental fairness.  
The court also held that aggravating factor four applies to a defendant taking "advantage of a position of trust or confidence" relating to the victim "to commit the offense," not to a minor's subsequent participation in an attempted coverup of the homicide.  

The court also addressed the need for a trial court to provide a detailed explanation of how it reconciles its application of aggravating factor three and mitigating factor seven, the weight assigned to those factors, and how those factors are balanced with respect to a defendant who had no prior juvenile or criminal history and no subsequent criminal history in the decade that elapsed before his arrest.  

 The court vacated defendant's sentence and remanded for resentencing, directing the trial court to not consider whether defendant was adequately provoked or had adequate time to cool off before inflicting the fatal blows, to not apply aggravating factor four, and to apply mitigating factor fourteen.  The court further directed that the trial court reconsider whether aggravating factor three applies and if so, the weight to be given to it.  

Plaintiff Fritzy Rivera was shot by her estranged husband after leaving a friend's apartment at Cherry Hills Towers.  She alledged defendant Vikco, Inc.'s negligence in failing to provide a safe environment as property manager of Cherry Hills Towers allowed him to enter the apartment complex through an open security gate.  Defendant was not the property manager when the assault occurred, but plaintiff contends the open security gate was a practice established by defendant and continued by the new property management company.

The motion court denied defendant's summary judgment motion to dismiss plaintiff's complaint.  Having granted defendant leave to appeal, we reverse. 

We disagree with the court's reasoning that there was a genuine issue of material fact to be determined by the jury as to whether defendant owed plaintiff a duty to provide a safe environment at Cherry Hill Towers when it was not the apartment complex's property manager at the time of the shooting.  Whether defendant owed plaintiff a duty is a question of law to be determined by the court, not by a jury at trial.  Under the circumstances of this case, we conclude our common law does not support plaintiff's theory that defendant's duty to provide a safe and secure environment at Cherry Hill Towers continued after its management services were discontinued.   Summary judgment is granted to Vikco.

Plaintiff brought a subrogation claim against defendants to recoup insurance benefits it paid to its insured on account of damage caused by a fire at a construction site.  In an effort to obtain relevant information pertaining to the cause of the fire, the civil action parties served a subpoena duces tecum on the Somerset County Prosecutor's Office (SCPO), a non-party law enforcement agency, and moved to compel production of its criminal investigation file relating to the ongoing prosecution of the individual who was suspected of starting the fire.  The trial judge rejected the SCPO's claim that the criminal investigation materials were privileged and confidential, and ordered it to turn over to the civil action parties:  (1) videos and photographs depicting the events giving rise to the criminal prosecution, (2) the suspect's statement to police, and (3) witness statements, or alternatively, witness contact information. 

The court granted the SCPO's motion for leave to appeal and reversed the disclosure order.  Because the materials sought were subject to a qualified privilege, the court determined that the trial judge failed to properly balance the competing interests at stake.  The court held that the civil action parties' discovery interests were subordinate to the State's paramount interest in preserving the integrity of an ongoing criminal prosecution and the underlying evidential record.  The court acknowledged that the privilege was not absolute but pointed out that the materials were not essential to the resolution of the subrogation claim and the presence of significant monetary damages did not of itself outweigh the SCPO's interests in protecting and maintaining the confidentiality of its criminal investigation materials.  Further, the civil parties failed to meet their burden of demonstrating that at least some of the information could not be obtained from other sources. 

In this contract payment dispute between a general contractor and its subcontractor, the court held as a matter of first impression that a "pay-if-paid" provision in a construction contract is enforceable as a matter of law.  The court adopted the construction industry's definition of "pay-if-paid" provisions as conditions precedent to payment that shift the risk of a project owner's nonpayment from the general contractor to the subcontractor, by virtue of which the subcontractor is paid by the general contractor only if the owner pays the general contractor for that subcontractor's work.  The court held that subject to the parties' implied duty to not frustrate conditions precedent to performance, such provisions are neither unfair, unconscionable, nor against public policy so long as the contract specifies a clear and unambiguous intent to shift the risk of nonpayment.

 
Given the court's holding regarding the enforceability of a "pay-if-paid" provision and determination that the subcontractor expressed a clear and unambiguous intent to be bound by such terms, the court concluded that a counterclaim relying on the "pay-if-paid" provision to bar payment to the subcontractor based on the owner's nonpayment for the subcontractor's work adequately suggested a cause of action for breach of contract to withstand dismissal under Rule 4:6-2(e) for failure to state a claim.  Consequently, the court affirmed the motion judge's order denying the subcontractor's motion to dismiss the counterclaim pursuant to Rule 4:6-2(e).  However, the court reversed the motion judge's order granting summary judgment dismissal of the subcontractor's claims for payment because there was a factual dispute as to whether the owner's nonpayment was precipitated by the general contractor's wrongful conduct.

Our Supreme Court granted leave to defendants Henry Trino, Charlene Trino, Airel Trino, and Kevin Garcia to appeal the denial of their summary judgment motions to dismiss the complaint by plaintiffs Silvana Lansigan Delvalle, as administrator of Raniel Hernandez's estate and individually, and Ralph Hernandez.  These appeals were calendared back-to-back and consolidated to issue a single opinion. 

Plaintiffs' common law claims of negligence and intentional infliction of emotional distress, as well as the claim based on the principal of Portee v. Jaffee, 84 N.J. 88 (1980), arise from the accidental drowning of their son Raniel, while he was swimming, intoxicated, at a pool party hosted by the Trinos. 

 The trial court denied summary judgment to defendants on the ground there were genuine issues of material facts in dispute with respect to their negligence.  As to Garcia, the dispute involved his active role in Raniel's drowning.  Concerning the Trinos, the dispute involved the common law duty owed to an intoxicated Raniel and the implementation of reasonable pool safety protections to prevent his drowning.  The motion court did not address dismissal of plaintiffs' intentional infliction of emotional distress and Portee claims.

We reverse. Garcia should have been granted summary judgment because the undisputed record indicates he had no role in Raniel's decision to enter the pool, nor did he have a duty to rescue Raniel.  Furthermore, there is no indication Garcia failed to exercise good faith when he tried to save Raniel.  The Trinos should have been granted summary judgment because the Social Host Liability Act, N.J.S.A. 2A:15-5.5 to 5.8, does not govern plaintiff's drowning and, under our current state law, they owed Raniel no common law duty to prevent him from swimming while intoxicated.  As for the intentional infliction of emotional distress and Portee claims, they fail as a matter of law.  Defendants' conduct in not knowing or indicating how Raniel drowned did not constitute intentional infliction of emotional distress, and there is no viable Portee claim because plaintiffs did not witness the drowning.

This appeal raises the novel issue of whether it is appropriate for a trial court to consider acquitted conduct to determine a registrant's Megan's Law tier designation. The court held the trial court properly considered acquitted conduct because of the non-punitive, civil nature of a Megan's Law proceeding, the public safety purpose underpinning the statute, and the less demanding standard utilized to make a tier designation. The court determined this situation was distinguishable from imposing an enhanced criminal sentence based on acquitted conduct, which our Supreme Court recently held to be improper. State v. Melvin, 248 N.J. 321, 352 (2021). This is because the trial court's utilization of acquitted conduct was not for the purpose of increasing the registrant's punishment, but for a legitimate public safety purpose consistent with In re Registrant C.A., 146 N.J. 71, 80 (1996). The court remanded, however, for the trial court to conduct a more comprehensive review of the record and to consider portions of the trial transcript and other documents identified by the registrant, which he contends rebuts the acquitted conduct relied upon by the court to increase his tier classification.

The court granted leave to appeal to consider the enforceability of a forum selection clause contained in commercial loan agreements executed by sophisticated parties.  The court concluded such provisions are enforceable despite allegations that the contracts in which they are embedded are unenforceable due to fraud, unless the alleged fraud improperly induced assent to the forum selection clause specifically.  In doing so, the court relied upon the United States Supreme Court ruling in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967), and the New Jersey Supreme Court ruling in Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 216-17 (2019), both of which applied this principle to enforce arbitration provisions.  The court also acknowledged authority from other jurisdictions that have applied this rule to uphold forum selection clauses and explained that its holding aligns with the majority approach. 

In addition, distinguishing McNeil v. Zoref, 297 N.J. Super. 213, 219 (App. Div. 1997), the court held the entire controversy doctrine does not vitiate an otherwise-enforceable forum selection clause when the enforcing party is severable from the litigation.  Following Wilfred v. MacDonald Inc. v. Cushman Inc., 256 N.J. Super. 58, 65 (App. Div. 1992), the court also concluded no appreciable inconvenience would result from enforcing the forum selection clause, thereby requiring the parties to litigate their claims in Utah.  

Finally, the court held that the seven-factor analysis detailed by the New Jersey Supreme Court in Cole v. Jersey City Med. Ctr., 215 N.J. 265, 280-81 (2013) to determine whether a party waived the right to enforce an arbitration provision applies equally to the question of whether a party waived the right to enforce a forum selection clause.  The court further explained that the analysis required under Cole is necessarily fact-intensive and therefore declined to exercise original jurisdiction under Rule 2:10-5. 

The Legislature has declared that no business entity may be awarded a public contract unless, prior to or along with its bid, the business entity submits "a statement setting forth the names and addresses" of the individuals owning more than ten percent of the entity.  N.J.S.A. 52:25-24.2 (emphasis added).  In this appeal, the court held that the Legislature did not intend the word "addresses" to be synonymous with "home addresses" and that the statute's requirement is met when the bidder provides its owners' mailing addresses.

The court granted leave to appeal to consider the denial of cross-motions for summary judgment – based on stipulated facts – about whether plaintiff Paul M. Carelli was entitled to enforcement of a contractual provision, upon the early termination of his third four-year term as the Borough of Caldwell's administrator, that purported to allow him a severance package "equal to one month salary for each year of service." The court concluded that this contractual provision was unenforceable because, in allowing a severance package of more than eight months' salary, it was inconsistent with N.J.S.A. 40A:9-138, which imposes both a ceiling and a floor on a municipal administrator's severance to "any unpaid balance of his [or her] salary and his [or her] salary for the next 3 calendar months." For that reason, the court reversed and remanded for entry of summary judgment dismissing Carelli's complaint.

In this appeal the court addresses a question of first impression:  is a licensed practical nurse a "licensed person" as defined in and covered by the Affidavit of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to -29.  Defendant Susan Junod, a licensed practical nurse, appeals from orders declaring that plaintiff did not need to file an AOM to pursue professional-negligence claims against her and denying her motion to dismiss the complaint for failure to provide an AOM.  The court affirms both orders because the AOM statute applies only to certain specified "licensed person[s]" and a licensed practical nurse is not included in the statute.

Ameribuilt Contractors appeals the workers' compensation judge's February 1, 2022 order rejecting a proposed settlement and disqualifying its assigned insurance counsel, Brown & Connery, LLP (B&C), on the basis of a perceived conflict between Ameribuilt's workers' compensation carrier, Travelers Property Casualty Insurance Co. (Travelers), and Travelers' ostensible insured, respondent Robert Alam.  The court concludes that the judge erred in finding that a conflict existed and, thus, there was no basis for the disqualification.  Accordingly, the court is constrained to reverse.

A trial judge may order the removal of counsel where there is a violation of the Rules of Professional Conduct.  Here, the judge disqualified B&C based on a violation of R.P.C. 1.7, which states, in pertinent part, that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest."  In evaluating whether a conflict exists, however, we are mindful that "[a] corporation is regarded as an entity separate and distinct from its shareholders."  Tully v. Mirz, 457 N.J. Super. 114, 123 (App. Div. 2018) (quoting Strasenburgh v. Straubmuller, 146 N.J. 527, 549 (1996)).  Additionally, "a corporation is regarded in law as an entity distinct from its individual officers, directors, and agents."  Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 761 (1989) (citation omitted).

Guided by these well-established legal principles, the court concludes that the trial judge erred in finding a conflict between Travelers and Alam.  In reaching that conclusion, we hold that the judge failed to distinguish Ameribuilt, the corporation, from Alam, an owner and shareholder.

Defendant appealed from a judgment of guardianship after trial, terminating her parental rights to four of her children.  The panel addressed whether the trial court improperly considered evidence of the children's relationship with their foster parents in violation of prong two of the best-interests test.  That prong was recently amended by the Legislature, which removed the sentence:  "[s]uch harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child."  N.J.S.A. 30:4C-15.1(a)(2) (amended 2021).  The Legislature did not alter the other components of the best-interests standard.

The panel rejected the argument that, by deleting the above language from prong two, the Legislature intended to bar all evidence concerning a child's relationship with resource caregivers, even in the context of the other prongs of the best-interest standard.  Prong two as amended emphasizes consideration of whether a parent is able to overcome harm to the child as well as whether the parent can cease causing future harm.  The amendment clearly isolates those specific inquiries from consideration of the bonds a child has forged with resource caregivers.  Nevertheless, the amendments to prong two do not mean that such a bond may never be considered within any part of the best-interests analysis.  Neither the legislative history nor the plain text necessitates such a sweeping conclusion. 

The panel construed the deletion from prong two to give greater effect to the alteration, in a manner that remains coherent with prong four.  The amended statute requires a court to make a finding under prong two that does not include considerations of caregiver bonding, and then weigh that finding against all the evidence that may be considered under prong four—including the harm that would result from disrupting whatever bonds the child has formed. 

Petitioner, James Meyers, a retired New Jersey State Police captain, appeals from a final decision of the State Health Benefits Commission (SHBC) which discontinued his fully paid health care insurance coverage under the State Health Benefits Plan, and imposed a premium deduction against his monthly retirement check. Petitioner administratively appealed the deduction, contending the SHBC was estopped from terminating his free health care insurance coverage.

In an initial decision, an administrative law judge (ALJ) found that the SHBC was estopped from deducting monthly health insurance premiums from petitioner's retirement payments. In a final decision, the SHBC rejected the ALJ's findings and concluded that it had the right to deduct a premium contribution from petitioner's monthly retirement payments to pay for his family's health insurance coverage. Petitioner appealed the final decision, arguing that the SHBC was equitably estopped from discontinuing no-cost health insurance coverage.

The court held that petitioner was not eligible to receive no-cost health care coverage in retirement under N.J.S.A. 52:14-17.28d(b)(3), because he did not have the requisite creditable service time as of the effective date of the statute. The court also held that principles of equitable estoppel could not be applied on these facts, where petitioner was statutorily ineligible for such coverage.

          N.J.A.C. 11:3-29.4(e) limits an insurer's liability for a medical expense benefit not set forth in the fee schedules established by the New Jersey Department of Banking and Insurance to a reasonable amount considering the fee schedule amount for similar services.  The regulation further states when a current procedural terminology (CPT) code for the service performed has been changed since the fee schedule was last amended, the provider shall bill the actual and correct code found in the most recent version of the CPT book, and the insurer shall pay the amount.  The process of matching the current code with the most recent version of the fee schedule is referred to as "cross-walking."  Where cross-walking is not possible because the fee schedule does not contain a reference to similar services, the insurer's liability for the medical expenses is limited to the usual, customary, and reasonable (UCR) fee. 

Plaintiff treated a patient using electromyography and nerve conduction velocity (NCV) tests and received approval from defendant under CPT code 95913, which is defined as thirteen or more nerve studies.  This code replaced CPT codes 95903, 95904, and 95934.  Plaintiff conducted twenty separate NCV tests, billed defendant using CPT code 95913, but cross-walked the types of tests back to the prior codes, 95903, 95904, and 95934.  Defendant reimbursed plaintiff using the more expensive prior CPT code, 95903, and capped the reimbursement at thirteen tests. 

The parties arbitrated their dispute and a dispute resolution professional (DRP) ruled in favor of defendant.  A majority of a DRP appellate panel affirmed.  The trial court also affirmed the reimbursement, applying the UCR methodology.

On appeal, the court exercised its supervisory authority to resolve a split in the interpretation of CPT code 95913 among DRPs and conducted a de novo review of the parties' arguments interpreting N.J.A.C. 11:3-29.4(e).  The court reversed the trial court's application of the UCR methodology, holding that under N.J.A.C. 11:3-29.4(e), the appropriate methodology, absent an updated fee schedule, for reimbursements sought under CPT code 95913, was to cross-walk the tests performed back to CPT codes 95903, 95904, and 95934.

This appeal stems from a final agency decision by the Division of Medical Assistance and Health Services (DMAHS) denying C.L.'s request for Medicaid benefits due to excess resources.  DMAHS determined an annuity C.L. purchased from the Croatian Fraternal Union of America (CFUA), which she understood to be irrevocable, was revocable and counted as a resource, thereby disqualifying her from Medicaid benefits.  DMAHS further determined the federal injunction against it regarding the identical annuity contract for a different annuitant did not apply in this case because C.L. purchased the annuity prior to the injunction being entered. 

The court reversed and determined the annuity contract language was unambiguous and the annuity was irrevocable, notwithstanding language in the contract, which allowed CFUA to amend the contract.  The court held the plain, ordinary meaning of the contract language expressly stated it was irrevocable, and DMAHS's interpretation would render those provisions meaningless contrary to established contract law and misleading pursuant to New Jersey Department of Banking and Insurance regulations. 

Plaintiff L.R. is the mother of a disabled student attending the Camden City Public Schools.  She served defendant Cherry Hill Board of Education and its record custodian with an Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -17, request for all settlement agreements from all lawsuits in which defendant was sued by a student and/or their parent.  The request asked defendant to redact the parent and student names leaving only their initials.  Defendant produced the documents sought but redacted all personally identifiable information (PII), including initials.

Plaintiff appealed.  Following the decisions in L.R. v. Camden City Public School District (L.R. I), 452 N.J. Super. 56 (App. Div. 2017), and L.R. v. Camden City Public School District (L.R. II), 238 N.J. 547 (2019), the trial judge dismissed the complaint finding plaintiff was not entitled to the initials because she:  (1) Was not authorized to obtain the information by means of a court order; and (2) lacked a common law right of access to student records because defendant had a legitimate claim of confidentiality under the Family Educational Records and Privacy Act, 20 U.S.C. 1232g, and the New Jersey Pupil Records Act, N.J.S.A. 18A:36-19. 

Following this appeal, the Department of Education promulgated new regulations governing public access to student records under OPRA in response to L.R. II.  The regulations define PII and student records that may be released pursuant to a court order provided the records do not contain any PII.  N.J.A.C. 6A:32-2.1.  They also state student "records removed of all [PII]" may be released without consent.  N.J.A.C. 6A:32-7.5(g)(1). 

On appeal, the court affirmed, holding the new regulations were not retroactive, and even if they were defendant's redaction of the initials was consistent with the regulations and the trial judge's ruling that plaintiff was not entitled to unredacted records.  The court held plaintiff's reliance on Keddie v. Rutgers, 148 N.J. 36, 40 (1997), establishing the public's common law right to records, and C.E. v. Elizabeth Public School District, 472 N.J. Super. 253 (App. Div. 2022), establishing the right to settlements entered before the Office of Administrative Law under OPRA, were inapposite because those cases involved the failure to produce documents not whether a defendant should have redacted the PII altogether.

This case presents a question of first impression regarding the scope of the Transportation Network Company Safety and Regulatory Act (TNCSRA or Act), N.J.S.A. 39:5H-1 to -27. The TNCSRA, which was enacted in 2017, comprehensively regulates companies and drivers that use a digital network such as a mobile phone application (app) to connect a "rider" to a "prearranged ride." Plaintiff was injured in a motor vehicle accident while he was operating his motorcycle as an Uber Eats delivery driver. The novel legal issue raised in this appeal is whether the Act—which requires "transportation network companies" to provide at least $1.5 million in underinsured motorist coverage—protects drivers while they are delivering food and not just when they are in the process of transporting passengers. The court concludes that the Act by its literal terms applies only to the prearranged transport of riders and not to the prearranged delivery of food.

In determining the scope of the statute's intended reach, that is, its "overall meaning," the court pays special attention to the definition section, noting that the very existence—or non-existence—of specific definitions reveals the basic concepts and principles the Legislature deemed to be especially important, warranting precise and explicit formulations. The Legislature's decision to define certain terms but not others, the court reasons, can provide insight into the overall meaning of the statutory scheme and the scope of its reach. In this instance, nothing in the definition section—or any other section of the Act for that matter—refers to the delivery of food. The absence of any reference to food delivery in the definition section stands in stark contrast to the interrelated definitions that refer explicitly and repeatedly to "rides" and "riders," which clearly denote the transport of human passengers.

Because the primary question posed in this case is easily resolved under a plain-text analysis, the court acknowledges that it need not consider extrinsic sources to determine legislative intent. The court nonetheless adds in the interest of completeness that nothing in the legislative history supports plaintiff's contention that the Act applies to food delivery services. The court further notes that regulations promulgated by the Motor Vehicle Commission support the court's interpretation as to the scope of the Act.

The court acknowledges that by enacting the TNCSRA, the Legislature recognized the commercial and societal value of new technologies that use mobile digital networks to connect customers with service providers. But while the use of an app is necessary to trigger the Act's provisions, that alone is not sufficient. The court concludes that to fall within the Act's jurisdiction—and thus to invoke the protections of its minimum insurance coverage provisions—the app-based connection must be used to arrange a ride for a human passenger.

The court further acknowledges that while the TNCSRA is of comparatively recent vintage, it was enacted before the COVID-19 pandemic, during which the imperative for social distancing simultaneously increased the demand for home delivery of food and reduced the demand for ridesharing. The court emphasizes that the evolution of the supply and demand marketplace since the TNCSRA was enacted does not change its plain text. While there may be circumstances, not present here, where it is necessary and appropriate to teach an old law to do new tricks, a statute's text does not evolve sua sponte. Reviewing courts, moreover, must afford due deference to the legislative process. Accordingly, the court stresses, it is for the political branches, not the Judiciary, to amend a statute to account for new developments and to fill any "holes" in the statute's scope and reach.

Indicted on charges of first- and second-degree sexual assault, Victor Alvarez, a lawful permanent resident, rejected an offer to plead guilty to fourth-degree criminal sexual contact or third-degree criminal restraint in exchange for a recommended sentence of two years' probation based on likely erroneous immigration advice. He testified at trial that he is innocent of any non-consensual contact with the victim and only prevented her from driving to ensure her safety. The jury convicted him of first -degree aggravated sexual assault, and he was sentenced to a fifteen-year NERA term.

The court affirms the dismissal of his PCR petition based on his trial testimony, finding he cannot, as a matter of law, establish he suffered any prejudice from immigration counsel's or plea counsel's deficient advice about the plea because it was a plea he'd have to perjure himself to accept.

The court reverses the trial court's order dismissing defendant's PCR petition as time-barred following guilty pleas to shoplifting and receiving stolen property entered post-Padilla v. Kentucky and remands for an evidentiary hearing. The court finds defendant established excusable neglect as his Texas immigration counsel, who has represented defendant since shortly after he was placed in ICE detention in 2014, certified he failed to advise defendant until September 2019 of the availability of a PCR application in New Jersey, and that there is a reasonable probability if defendant's factual assertions that he pleaded guilty to receiving stolen property, not because he was guilty, but based on incorrect advice about the immigration consequences of risking trial and a jail term, are found to be true, "enforcement of the time bar would result in a fundamental injustice." R.3:22-12(a)(1)(A).

Appellant challenges a Law Division order confirming an arbitration award which sustained tenure charges filed by respondent West New York Board of Education ("Board") against her; demoted her from assistant principal to a fourth-grade teacher; and determined she was not entitled to back pay withheld from her under N.J.S.A. 18A:6-14 for a one-hundred-and-twenty-day suspension-without-pay period that was imposed upon the Board's certification of the charges. This appeal requires us to consider issues of first impression: (1) whether the arbitrator had the authority to demote appellant under N.J.S.A. 18A:6-16; and (2) whether the arbitrator had the right to deny appellant back pay arising from her suspension-without-pay period after determining her employment should not be terminated.

The court affirms the arbitrator's determination that appellant was not entitled to back pay withheld from her during her suspension-without-pay period based upon his determination that her conduct was unbecoming of a teaching staff member. The court reverses and remands because upon determining appellant's conduct was unbecoming but that she should not be terminated, the arbitrator lacked the statutory authority to demote her from her assistant principal position and he could only reduce her compensation. Appellant should be reinstated to her assistant principal position. On remand, the arbitrator must determine to what extent, if any, appellant's compensation should be further reduced through suspending her without pay or withholding salary increments, or a combination thereof.

In this matter, the court considered whether a municipality may approve a resolution to place non-binding public opinion questions before the electorate when initiative petitions concerning the identical issues are on the same ballot. The majority concluded the municipality was not authorized under N.J.S.A. 19:37-1 to pass the resolutions regarding the public opinion questions because the electorate was considering the same issues on the ballot in their vote on the initiative questions.

The court also considered the trial court's order that denied plaintiffs' application for an award of attorney's fees under the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2. Because defendants' actions of passing the unauthorized resolutions deprived plaintiffs of their substantive right to initiative, the majority reversed the court's order denying plaintiffs a counsel fee award.

Judge Smith dissented.

A jury convicted defendant of two counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), two counts of second-degree vehicular homicide, N.J.S.A. 2C:11-5(a), one count of third-degree possession of gamma hydroxybutyrate (GHB), N.J.S.A. 2C:35-10.2(a), and one count of third-degree possession of gamma-butyrolactone (GBL), N.J.S.A. 2C:35-10(a)(1) and (3). The State contended defendant was the under the influence of GHB and had not slept for more than twenty-four hours when his car slammed into the back of another car stopped at a toll booth at Exit 14C of the New Jersey Turnpike at more than fifty miles per hour. The driver of the other car and his five-year-old daughter died as a result. The judge imposed an aggregate thirty-seven-year term of imprisonment, with a twenty-seven-year, two-month, and eleven-day period of parole ineligibility.

The court rejected defendant's challenge to the admissibility of the statement he gave to State Troopers while hospitalized the morning after the accident and after he was given his Miranda rights. Defendant contended, in part, that detectives failed to inform him that two people died in the crash, telling him only that they were investigating the accident, before he waived his rights. The court distinguished the facts from those presented in State v. Diaz, 470 N.J. Super. 495 (App. Div. 2022), which was filed before the Court issued its opinion in State v. Sims, 250 N.J. 189 (2022), reversing our earlier decision in that case.

The court reversed defendant's convictions for aggravated manslaughter, however, finding it was plain error for the judge to not provide ins tructions on second-degree reckless manslaughter as a lesser-included offense of aggravated manslaughter. The court rejected the State's argument that any error was harmless, given the jury's guilty verdict on the two vehicular homicide counts, noting the judge never explained the heightened degree of recklessness required to convict defendant of aggravated or reckless manslaughter committed by driving a vehicle, versus the element of recklessness required to sustain a conviction for vehicular homicide.

Plaintiffs' complaint alleged wrongful eviction under the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, fraud, negligent misrepresentation, and other claims. Defendants filed an answer and counterclaim, asserting plaintiffs' negligence caused damage to the property and rendered portions of it "unusable." The parties cross-moved for summary judgment on the wrongful eviction cause of action, and the judge granted defendants summary judgment and denied plaintiffs' motion.

Defendants then made an offer of judgment, which plaintiffs accepted the next day. Plaintiffs' proposed order for judgment was limited to "the remaining counts" of the complaint and sought to preserve appeal of the interlocutory summary judgment orders. Defendants objected, citing Rule 4:58-4(c), which provides: "If a claimant asserts multiple claims for relief or if a counterclaim has been asserted against the claimant, the claimant's offer shall include all claims made by or against that claimant. If a party not originally a claimant asserts a counterclaim, that party's offer shall also include all claims by and against that party." (emphasis added). The judge entered defendants' proposed order of judgment that was not limited to "the remaining counts" of the complaint.

Plaintiffs appealed, in part arguing the interlocutory orders were appealable despite their acceptance of defendants' offer of judgment, citing, as they did in the Law Division, our decision in City of Cape May v. Coldren, 329 N.J. Super. 1, 10 (App. Div. 2000). The court affirmed the order of judgment without considering the merits of plaintiffs' arguments regarding the interlocutory orders by distinguishing Coldren on its facts and noting that decision was issued prior to adoption of Rule 4:58-4(c). Plaintiffs' acceptance of the offer of judgment settled all claims "by and against" defendants, including any claims dismissed on summary judgment.

Fulton Bank (the Bank) foreclosed on a mortgage recorded prior to the filing of Iron Gate at Galloway's Homeowners' Association's (HOA) Declaration of Covenants. The HOA was created and the Declaration filed pursuant to Galloway Township's major subdivision approval of the relevant lots. The Bank sold the remaining lots after foreclosure, but at closing refused to pay the HOA fees accrued during its period of ownership. The Bank filed a motion under the foreclosure docket number, contending it owed no fees because foreclosure on the earlier-filed mortgage effectively nullified the Declaration of Covenants. The court concluded that the Bank was liable for the fees in arrears because the Declaration constituted an equitable servitude running with the land, as outlined in Highland Lakes Country Club & Cmty. Ass'n v. Franzino, 186 N.J. 99 (2006).

In this matter of first impression, the court considered whether the holding in State v. Cain, 224 N.J. 410 (2016), prohibiting expert witnesses from opining on a defendant's state of mind in drug cases, should also apply to grand jury proceedings. The court concluded that Cain's holding does apply to grand jury proceedings because concerns about the prejudicial effect of such testimony on petit jury deliberations are equally present during one-sided grand jury presentations, if not more so. Consequently, the court reversed in part the trial court order denying defendant's motion to dismiss the indictment charging defendant with numerous drug-distribution related offenses and remanded for further proceedings because a police officer testified before the grand jury, based on his training and experience, that defendant had possessed controlled dangerous substances with the intent to distribute them.

The court reverses and remands the decision by the State Parole Board to deny state prison inmate Eugene Berta parole and to set a future eligibility term (FET) of seventy-two months. The court applies principles recently reaffirmed by the New Jersey Supreme Court in State v. Acoli, 250 N.J. 431 (2022). The court, however, does not grant parole as in Acoli, but rather remands for the Board to reconsider its decision and, if it chooses again to deny parole, to more fully explain its reasons for doing so and for imposing such a lengthy FET.

In 1984, Berta was convicted of murdering his girlfriend and was sentenced to a life term with a thirty-year period of parole ineligibility. The Board denied his first application for parole in 2015. The latest denial of parole was based on three supposedly negative circumstances: (1) Berta was committed to incarceration for multiple offenses; (2) he has a "serious" and "persistent" history of institutional disciplinary infractions; and (3) his continued denial of guilt constitutes "insufficient problem resolution."

The court concludes the Board improperly relied on the first two purportedly negative circumstances. Berta's jury trial convictions for murder and possession of a firearm for an unlawful purpose were merged at the sentencing hearing and thus he was not committed to state prison based on multiple offenses. As to Berta's record of institutional infractions, the court concludes that the Board was unreasonable in characterizing Berta's infraction history as persistent given that he has been infraction-free for nearly twenty years.

As to Berta's denial of guilt, the court concludes that the Board has yet to satisfactorily explain why that circumstance, viewed in context with his overall rehabilitative efforts, establishes by a preponderance of the evidence that he is substantially likely to re-offend. While Berta's ongoing refusal to accept responsibility for the murder he committed is a relevant circumstance, the court holds that admitting guilt is not a categorical prerequisite to parole. Accordingly, the Board shoulders the burden to explain why Berta's refusal to acknowledge his guilt foreshadows that he will commit a future crime. Although the court recognizes the Board's expertise in assessing inherently subjective circumstances such as "negative attitudes" and "insufficient problem resolution," it is not enough for the Board to state a conclusion, especially in view of in-depth psychological evaluations that show that Berta presents a low risk of re-offense.

The court also addresses the Board's decision to impose an FET almost three time as long as the presumptive twenty-seven-month FET that applies to inmates convicted of murder. The Board is authorized to set a higher FET only "if the future parole eligibility date which would be established pursuant to [N.J.A.C. 10A:71-3.21(a)] is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future behavior." (emphasis added). The court views the "clearly inappropriate" standard to be a high threshold to vault. To impose a higher FET, the Board must overcome the presumption by explaining why a twenty-seven-month FET is clearly inappropriate. Furthermore, the court holds that the Board cannot simply pick a number out of thin air. The court stresses that: (1) an FET must not be imposed as a form of punishment; and (2) the decision to impose an FET beyond the presumptive FET, like the underlying decision to deny parole, must be tied directly to the goal of reducing the likelihood of future criminal behavior. The court also emphasizes that it will not permit the Board to use Berta's ongoing refusal to admit guilt as an artifice to convert his life sentence into a sentence of life without parole.

Judge Geiger joins in the result and issues a concurring opinion.

We granted Academy Express LLC's application to file an emergent motion to stay New Jersey Transit's award or execution of a contract for regular route local bus services in Hudson County pending Academy Express's appeal of NJ Transit's decision to award the contract to Orange, Newark, Elizabeth Bus Inc. (ONE Bus) and permitted ONE Bus to intervene as an interested party, entering a temporary stay pursuant to Rule 2:9-8 pending our disposition of the motion. Having considered the briefs and oral argument — and without prejudice to the merits panel's ultimate disposition of the matter — we deny the motion and dissolve our temporary stay, concluding Academy Express has not demonstrated a reasonable probability of success on the merits.

The powers of NJ Transit are "vested in the voting members of the board." N.J.S.A. 27:25-4(e). The corporation has been statutorily exempted from the need to bid the contracting-out of bus routes, N.J.S.A. 27:25-6(b), N.J.S.A. 27:25-11(g)(3)(d), and may choose the proposal the Board determines to be "the most advantageous to the corporation, price and other factors considered," N.J.S.A. 27:25-11(c)(1),(2). The Board also has broad discretionary authority to reject any proposal when it determines "it is in the public interest to do so," N.J.S.A. 27:25-11(c), and "shall" consider the "adequacy of performance by a carrier or its affiliates under other contracts . . . with NJ Transit" under its "contracting out" regulations, N.J.A.C. 16:85-2.3(a)(4).

Given that broad authority, NJ Transit could certainly consider the recently settled qui tam action against Academy Express and its affiliated companies and determine it was in the public interest to reject a proposal from a carrier that had only weeks before entered into a multi -million-dollar settlement with the State in a massive fraud case involving the same routes covered by these contracts. See Keyes Martin & Co. v. Dir., Div. of Purchase & Prop., 99 N.J. 244, 262 (1985) (upholding Director's rejection of a bid "in the public interest" based on an appearance of wrongdoing attributable to a possible conflict of interest).

In this class action matter arising out of the purchase of a vehicle, the court considers whether defendants' material breach of an arbitration agreement––the failure to pay the administration fees––precludes them from asserting the waiver of the right to pursue a class action in the subsequent Superior Court litigation.

The arbitration agreement clearly informed consumer purchasers they were waiving their right to pursue a class action in court and in arbitration. Although defendants cannot compel arbitration because of their failure to pay the requisite fees, their breach of the agreement does not eradicate the other provisions to which plaintiff agreed––namely the waiver of the right to pursue a class action in court. This court affirmed the orders denying class certification.

In the midst of the COVID-19 pandemic, the parties in this legal malpractice action exchanged minimal discovery before the court issued its notice pursuant to Rule 4:36-2, advising that discovery would end in sixty days and any application for an extension must be made before the discovery end date (DED). Thirty days later, the court issued a trial date.

The parties secured a consensual sixty-day discovery extension, see Rule 4:24-1(c), but when defendants moved before expiration of the DED for a further extension, the judge denied the motion, concluding the exceptional circumstances standard applied because a trial date was set, and defendants failed to meet that standard. Plaintiff's motion for reconsideration was similarly denied, but not before defendants sought summary judgment, essentially arguing the lack of expert opinion doomed plaintiff's complaint. The judge granted defendants summary judgment.

The court reversed. The court construed Rule 4:24-1(c), which states a judge shall grant an extension motion upon good cause if made before the DED, but also states a court may grant a discovery extension only in exceptional circumstances once an arbitration or trial date is set. The court concluded that while court administrators may send notices setting future arbitration and trial dates before discovery ends, the plain language of the Rule, read in pari materia with other rules, requires judges to apply the good cause standard if the motion for a discovery extension is made before the DED. Plaintiff met the good cause standard.

Following years of litigation and a trial, the Borough of Englewood Cliffs (the Borough) was found to have failed for decades to comply with its constitutional obligations to provide its fair share of affordable housing. Thereafter, the Borough entered into settlement agreements to allow affordable housing to be built. Following a change in the membership of the Borough's council, however, the Borough moved to vacate the settlement agreements, contending that two council members who had voted for the agreements had conflicts of interest. That argument was in direct contradiction to the position the Borough had taken before the trial court and in a related litigation where the Borough had argued that there were no conflicts of interest.

The court affirms the trial court's rejection of the Borough's arguments for several reasons, including that the Borough was judicially estopped from claiming any conflict. The record establishes that for years the Borough has stalled various efforts to allow affordable housing to be built. The court emphasizes that the time for delaying constitutional compliance is over.

In this appeal, the court held that a statement elicited in violation of defendant's Sixth Amendment rights could be used for impeachment purposes, and the defendant's status as a juvenile waived to adult court had no impact on this conclusion. In doing so, the court relied upon the United States Supreme Court ruling in Kansas v. Ventris, 556 U.S. 586, 592 (2009), which held that voluntary statements obtained in violation of a defendant's Sixth Amendment right to counsel are admissible to impeach a defendant's inconsistent testimony at trial. Although the New Jersey Constitution provides a more robust right to counsel than the Federal Constitution, see State v. Sanchez, 129 N.J. 261, 275 (1992), the court reasoned that excluding the statement for all purposes "would add little appreciable deterrence" to police conduct. Ventris, 556 U.S. at 593.

In addition, acknowledging New Jersey's "special protections" accorded to juveniles in criminal proceedings, the court held that any inherent impulsivity or vulnerability due to defendant's age was remedied by the preclusion of his statement in the prosecution's case-in-chief. The court declined to expand New Jersey's juvenile protections so far such that a juvenile waived to adult court would be permitted to lie under oath, without permitting the State the opportunity to confront the defendant with his or her prior inconsistent statement.

Defendants' motions for summary judgment to dismiss the complaint as untimely because it was filed four and a half years after decedent's death were denied by the trial court, which allowed the action to proceed by applying the minority tolling provision found in N.J.S.A. 2A:14-2(a), concluding the Legislature did not make clear whether the Act intended to distinguish between minors who died and minors who survived.

The court reversed, finding minority tolling applies only to actions brought on behalf of minors, and not to actions brought on behalf of decedents or their estates. The word "minor" requires a living human being and the plain legal meaning of "minor's 13th birthday" demonstrates the Legislature's intent that only living minors have birthdays. Plaintiffs were limited to wrongful death and survival claims causes of action, each of which applies a two-year statute of limitations. The court vacated the orders denying summary judgment but remanded to the trial court for findings as to whether defendants had substantially complied with those statutes.

Defendant was convicted of the lesser-included offense of passionprovocation manslaughter and attempted murder. His son was acquitted of all charges. The judge sentenced defendant to an aggregate sentence of twenty-years' imprisonment subject to NERA.

Defendant testified in his own behalf at trial, asserting self-defense and defense of his son. Defendant admitted during cross-examination that the statement he provided to police on the night of the incident failed to include critical details, for example, that his son was present or that defendant stabbed the two victims. Defendant admitted that he lied to police.

During the course of his summation, the prosecutor expressed his personal opinion that defendant was guilty, repeatedly called defendant a "liar," told the jury "we know he's a liar," and said defendant's testimony was "a story created by a liar." The court concluded the prosecutor's repeated derogatory comments amounted to plain error requiring reversal.

The court also held the judge's charge was fatally deficient because the judge never told the jury that self-defense and defense of others also applied to passion-provocation manslaughter, and the judge failed to instruct the jury on the lawful use of a weapon for a protective purpose with respect to the two weapons convictions.

In this criminal prosecution, the court granted the State's motion for leave to appeal from an order suppressing evidence seized from a motor vehicle without a warrant. Police conducted an investigatory stop after surveilling the car for more than an hour and developing information that the front seat passenger, defendant Kyle A. Smart, was engaged in drug activity. At the roadside stop, no evidence of drug activity was observed in plain view; the occupants of the car neither made incriminating statements nor furtive movements; and the driver denied consent to search. Police then requested a K-9 unit. The dog alerted to the presence of narcotics, leading to a warrantless search of the car and seizure of a loaded handgun and drugs from the cabin.

Finding police had reasonable and articulable suspicion to pull over the vehicle, the motion judge upheld the stop and further determined probable cause arose when the canine sniff revealed the presence of narcotics in the car. However, the judge found the circumstances giving rise to probable cause were not "unforeseeable and spontaneous," justifying a warrantless search under the automobile exception to the warrant requirement pursuant to State v. Witt, 223 N.J. 409, 450 (2015). Accordingly, the judge suppressed the evidence seized.

Although the court agrees with the State that police could not have secured a warrant before the car was stopped and, in that sense, they did not "sit" on probable cause, under the circumstances proscribed by Witt, the court disagrees with the State's contention that probable cause was unforeseeable and spontaneous within the meaning of Witt. Because probable cause did not arise until the canine alerted for the presence of narcotics, the court concludes those circumstances were not unforeseeable and spontaneous and, as such, the automobile exception to the warrant requirement did not apply to this warrantless search. The court thus affirms the motion judge's order for slightly different reasons.

In this appeal, the court considered the propriety of a negotiated plea agreement provision, permitting the State to revoke its sentencing recommendation if the defendant is arrested on new charges that are not adjudicated prior to sentencing. Because the court concluded a no-new-arrest or no-new-charges provision violates a defendant's right to due process and is fundamentally unfair, the court vacated defendant's conviction and remanded the matter to allow the parties to negotiate a new plea agreement or permit defendant to withdraw his guilty plea. The court's decision does not affect those plea agreement provisions that limit the State's right to revoke its sentencing recommendation or recommend a harsher sentence if a defendant fails to appear at sentencing, provided the defendant is afforded a fair hearing pursuant to established case law.

After settling her medical malpractice suit with plaintiff's estate, defendant-doctor Bowers was prepared to try her third-party contribution claim against third-party defendant Comiskey, who also treated plaintiff but was never named as a direct defendant. Comiskey moved to dismiss, arguing the Joint Tortfeasor Contribution Law, (the JTCL), N.J.S.A. 2A:53A-1 to -5, predicated a contribution-only claim upon plaintiff's recovery of a "money judgment" against Bowers. The settlement and release executed by the parties did not satisfy the JTCL. The motion judge denied Comiskey's motion, finding it was untimely, and because the settlement was placed on the public website of the Division of Consumer Affairs, as required by regulation, the settlement was the equivalent of a money judgment.

On leave granted, the court reversed. The court reviewed a line of cases from the Supreme Court and the Appellate Division that have consistently construed the right to contribution under the JTCL as requiring entry of a money judgment against the contribution claimant.

The court also raised concern about continued application of the Court's holding in Young v. Steinberg, 53 N.J. 252 (1969). In Young, the Court held that "[a] suit for contribution based on a settlement which has been elevated to the status of a judgment by formal court proceeding, and which discharges the injured party's claim against a non-settling joint tortfeasor, comports with the intent of our statutory scheme." Id. at 255 (emphasis added). At trial, the contribution claimant must still "establish a common liability . . . and the quantum of the damages ensuing from the joint offense." Ibid.

The court noted Young was decided prior to enactment of the Comparative Negligence Act (the CNA), N.J.S.A. 2A:15-5.1 to -5.8. As a result, pro rata apportionment of damages under the JTCL was supplanted by apportionment of liability and damages based on comparative fault.

These six back-to-back appeals arising from Law Division orders in two vicinages have been consolidated for the issuance of a single opinion. They require the court to consider an issue of first impression –– whether in the context of Rule 4:6-2(e) motions to dismiss with prejudice, insurance policies issued by defendants did not cover business losses incurred by plaintiffs that were forced to close or limit their operations as a result of Executive Orders issued by Governor Philip Murphy to curb the COVID-19 global health crisis.

We affirm because we conclude the motion judges were correct in granting Rule 4:6-2(e) dismissals of plaintiffs' complaints with prejudice for failure to state a claim on the basis that plaintiffs' business losses were not related to any "direct physical loss of or damage to" as required by the terms of their insurance policies. We conclude plaintiffs' business losses were also not covered under their insurance policies' civil authority clauses, which provided coverage for losses sustained from governmental actions forcing closure or limiting business operations under certain circumstances. We further conclude defendants' denial of coverage was not barred by regulatory estoppel. In the alternative, we conclude that even if plaintiffs' business losses otherwise satisfied the requirements of the relevant clauses, coverage was barred by their insurance policies' virus exclusions and endorsements because the Executive Orders were a direct result of COVID-19.

The trial court dismissed plaintiffs' personal injury complaint against Cumberland County because plaintiffs served their notice of claim on the county clerk rather than the clerk of the board of county commissioners. Recognizing that N.J.S.A. 59:8-7 and -10 do not specifically identify the county office or officer to be served with a notice of claim, the court held as a matter of first impression that service on the county clerk suffices.

In January 2007, defendant sold a business to a relative of the plaintiffs. All but $12,500 of the $196,5000 purchase price was financed by defendant. The loan was secured by a mortgage on plaintiffs' residence and the personal guaranty of plaintiff Vadim Chepovetsky. Shortly thereafter, the buyer defaulted. The maturity date of the mortgage was February 22, 2012. Litigation in 2008 did not result in a judgment. In 2011, plaintiffs filed a joint Chapter Seven bankruptcy. The debt schedules list defendant as an unsecured creditor. The bankruptcy trustee abandoned his interest in the plaintiffs' residence. A discharge was granted to plaintiffs and a final decree was entered closing the case a no-asset bankruptcy. Defendant received timely notice of the bankruptcy filing and the discharge.

Thereafter, plaintiffs filed this action to quiet title. Defendant filed a counterclaim, seeking to enter judgment for personal liability against plaintiffs on the guaranty and to fix the amount due on the mortgage. Plaintiffs did not raise the affirmative defense of discharge in bankruptcy. Plaintiffs' complaint was dismissed for failing to provide discovery. The court conducted a bench trial on the counterclaim. Plaintiffs did not attend the trial and their attorney did not raise the defense of discharge in bankruptcy. The court entered judgment for $410,800 against Chepovetsky but not Svetlana Nashtatik.

Thereafter, plaintiffs moved to vacate the judgment, alleging it was void due to their bankruptcy discharge, and to vacate the dismissal of their complaint, because they were not required to respond to defendant's discovery demands related to a debt discharged in bankruptcy. They also argued that foreclosure was barred by the six-year statute of limitations imposed by N.J.S.A. 2A:50-56.1. Defendant opposed the motion, relying on equitable principles, including unclean hands, and asserted that plaintiffs did not prove that Chepovetsky's liability on the guaranty was discharged.

The trial court vacated the judgment and the order dismissing the quiet title action. The court found the judgment was void ab initio because Chepovetsky's "personal debt" to defendant was discharged in bankruptcy. The court stated it was unaware of the discharge in bankruptcy when it entered judgment against Chepovetsky. The court found the order dismissing the complaint was "improvidently entered" and reinstated the complaint, noting that pursuant to 11 U.S.C. § 524, plaintiffs were "not obligated to do anything" and were "entitled to disregard" discovery that was part of an attempt to collect a discharged debt. The court also found that the mortgage matured on February 22, 2012, and defendant failed to institute a timely foreclosure action within six years. Therefore, an action to quiet title was appropriate.

We granted defendant leave to appeal. Applying the Supremacy Clause, the court held that the nature, extent, and enforceability of a discharge in bankruptcy is controlled by the Bankruptcy Code and interpretative federal case law. Pursuant to 11 U.S.C. § 524, debtors are not required to defend a postdischarge collection action. Consequently, they were not required to provide discovery, and the failure to plead discharge in bankruptcy as an affirmative defense did not waive that defense or estop plaintiffs from asserting it. Enforcing the waiver of the affirmative defense of discharge in bankruptcy under Rule 4:5-4 would violate the Supremacy Clause and be inconsistent with substantial justice. The court rejected defendant's reliance on the Rooker-Feldman doctrine.

The court held that Chepovetsky's personal liability on the guaranty was discharged in bankruptcy and that Nashtatik was not a guarantor of the loan. Accordingly, the judgment imposing personal liability on Chepovetsky was void ab initio and properly vacated.

As to the mortgage lien, the court held that defendant was entitled to a judgment fixing the amount due on the mortgage, explaining that a discharge in bankruptcy only discharges the personal liability of the debtors, and the mortgage lien remains enforceable against their real property if the foreclosure action is timely filed. The court expressed no opinion on whether a future action to foreclose the mortgage would be time-barred by the applicable statute of limitations. The ruling that foreclosure was time-barred was vacated, with that issue to be reconsidered on remand.

The court affirmed the provisions of the trial court order designating registrant B.B. as a Tier II offender under the Registration and Community Notification Laws, N.J.S.A. 2C:7-1 to -23, commonly known as Megan's Law, and ordering notification of schools and community organizations pursuant to N.J.S.A. 2C:7-8(c)(2). However, the court: (1) concluded it was an abuse of the trial court's discretion to give a score of nine on factor six of the Risk Assessment Scale, "duration of offensive behavior," because the State did not prove by clear and convincing evidence that B.B.'s sexual offenses took place over two years and held that a score of three, applicable to sexual offenses that took place over one or two years was appropriate; and (2) vacated a provision of the trial court order excluding B.B.'s personal identifiers from the Sex Offender Internet Registry, N.J.S.A. 2C:7-12 to -18. The court found that the evidence on which the trial court relied for that determination was not expert testimony or other evidence specific to the unique aspects of B.B.'s offenses or character relevant to his risk of re-offense. The court noted, but did not decide, the question of whether Article IV, Section 7, Paragraph 12 of the State Constitution and its implementing statute, N.J.S.A. 2C:7-13(c), preclude a court from excluding the personal identifiers of a Tier II offender subject to community notification pursuant to N.J.S.A. 2C:7-8(c)(2) from the State Offender Internet Registry.

Plaintiff's complaint about a June 21, 2018 automobile accident was filed on June 29, 2020. Defendants moved to dismiss the complaint for failure to commence the action timely, citing the two-year statute of limitations set forth in N.J.S.A. 2A:14-2(a). In opposition, plaintiff contended the complaint was timely filed, asserting the Supreme Court had tolled the statute of limitations in its June 11, 2020 Fourth Omnibus Order related to the COVID-19 pandemic and effectively had added fifty-five days to the statute-of-limitations period. The trial court granted defendants' motion, finding the Supreme Court in its Omnibus Orders related to the COVID-19 pandemic had not added time to the statute of limitations but had deemed the period of time from March 16, 2020, to May 10, 2020, a legal holiday for purposes of computing time.

The court agreed with the trial court, finding the Supreme Court had issued an order on March 17, 2020, in which the Court cited its constitutional rule-making authority under Article VI, section 2, paragraph 3 of the New Jersey Constitution to deem the relevant time period a legal holiday. Noting the express language in the Fourth Omnibus Order "affirm[ing] the provisions of [its] prior orders" and that the Supreme Court had not cited any new or different authority for its directive regarding the computation of time, the court concluded the Supreme Court in the Fourth Omnibus Order was exercising its constitutional rule-making authority to deem March 16, 2020, through May 10, 2020, a legal holiday and was not adding time to the statute of limitations.

The court considered a matter of first impression relating to the application of the New Jersey Law Against Discrimination (LAD). Specifically, the court considered whether the LAD applies to claims arising from a sexual predator's criminal assaults against a young schoolgirl where those crimes were committed on a school bus. Under the circumstances of this case, the court concluded the LAD did not apply, especially where, as here, there was no evidence that the predator's compulsive and repetitive behavior was the result of any proven intention to discriminate specifically against young women. The court found the LAD was simply not intended to provide a civil remedy for child sex abuse committed by compulsive pedophiles. Even if it was, it concluded a victim must demonstrate the discriminatory conduct would not have occurred 'but for' the student's protected characteristic. The court concluded the plaintiffs did not meet that burden. The court's opinion construing the LAD did not address or preclude relief under other laws that were not invoked by plaintiffs on appeal.

In this appeal, the court affirmed the dismissal of plaintiffs' complaint challenging the Medical Aid in Dying for the Terminally Ill Act, N.J.S.A. 26:16-1 to -20, which allows qualified terminally ill patients to request and obtain from his or her physician a prescription for medication that the patient can choose to self-administer to end his or her life in a "humane and dignified manner." The court held that plaintiffs, a terminally ill patient, a doctor, and a pharmacist, lacked standing to challenge the Act because the legislation provides that participation under its provisions is voluntary for patients and health care professionals. It also concluded that plaintiffs' constitutional challenges to the legislation, premised on the New Jersey Constitution's single object rule and right to enjoy and defend life and the United States Constitution's Free Exercise Clause, lacked merit.

In these appeals, trial courts in two vicinages reached opposite conclusions regarding whether, pursuant to the enactment of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:6I-31 to -56, N.J.S.A. 54:47F-1, N.J.S.A. 40:48I-1, N.J.S.A. 18A:61F-1, N.J.S.A. 2C:35-23.1, and N.J.S.A. 2C:52-6.1,¹ a defendant may be admitted into pretrial intervention (PTI) where they have a prior conditional discharge for marijuana charges. One court concluded the defendant could not be admitted into PTI, finding the Legislature did not end the PTI eligibility bar where a defendant received a conditional discharge. The other court held that while the Legislature did not amend the PTI statute, the legislative intent of CREAMMA included removing the statutory bar to PTI eligibility where a defendant obtained a conditional discharge.

After reviewing CREAMMA, the PTI statute, the expungement statute, and considering extrinsic evidence, including the legislative histories of each enactment, the court found no evidence the Legislature intended to repeal, amend, or supersede the bar to PTI eligibility following the completion of a supervisory program and granting of a condition discharge. If, in fact, the Legislature intended such a modification, the remedy should be left to it rather than the court, which declines to insert language that is unsupported by the extant legislative evidence and intent. As a result, the court reversed the trial court decisions granting three defendants' admission into PTI and upheld the trial court's ruling barring the fourth defendant PTI admission.

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¹ L. 2021, c. 16.

The court affirms defendant's jury trial conviction for second-degree robbery of a bank. The court first addresses defendant's contention that the trial judge erred by permitting the jury to hear testimony that the investigating police officer had been contacted by and "consulted" with another police department immediately before filing criminal charges. Defendant contends that such testimony violated the Confrontation Clause. After reviewing New Jersey's Confrontation Clause case law, the court concludes that the police officer's brief answer to the prosecutor's leading question concerning the consultation with the other police department violated defendant's Sixth Amendment rights because it created an inescapable inference that the other department possessed and shared incriminating evidence about the current offense that was not presented to the jury. The court nonetheless concludes that the constitutional error was harmless beyond a reasonable doubt.

The court next addresses defendant's contention that the trial judge abused his discretion by allowing a police witness to narrate surveillance video as it was being played to the jury. The court surveys the law in New Jersey explaining when a police witness may offer a lay opinion. The court also surveys cases in other jurisdictions that specifically address the admissibility of video narration testimony. The court declines to adopt a rule that would categorically prohibit such testimony, holding instead that a trial court has discretion to permit a witness to offer descriptive comments while a video is being played if the court finds that those specific comments would be helpful to the jury. To assist trial judges in making that determination, the court compiles a list of six factors to consider. In this instance, the court declines to second-guess the trial judge's rulings that sustained some objections to the video narration testimony and overruled others.

The court notes that the use of surveillance video evidence at trial is becoming more common because of the proliferation of government, commercial, and residential surveillance cameras. To improve the process by which the admissibility of police narration testimony is determined, the court recommends a new practice and procedure whereby the trial judge would conduct an in limine hearing when the prosecutor intends to present narration testimony in conjunction with playing a video to the jury. At that hearing, the court should rule upon the specific narration comments that will be permitted and those that will be foreclosed, providing clear instructions for the witness to follow. That in limine procedure would obviate the need for a series of spontaneous objections in the presence of the jury.

The court also notes that there presently is no model jury instruction pertaining to lay opinion testimony. The court recommends that the Model Jury Charge Committee consider whether it would be appropriate to draft a model instruction specifically tailored to address video narration testimony.

The court next considers defendant's contention, raised for the first time on appeal, that the trial court erred by allowing the bank teller to make an in-court identification after having selected the photograph of another person from a photo array. After reviewing the foundational principles that undergird New Jersey's eyewitness identification jurisprudence, the court rejects defendant's request to categorically ban "first-time" in-court identifications. The court declines to impose new bright-line preconditions on when an eyewitness may identify the perpetrator at trial. Rather, the court retains the rule that the decision to allow an in-court identification is made on a case-by-case basis, mindful that suppression of identification testimony is rarely warranted and that the reliability of an identification and the weight to give to it is generally for the jury to decide with the benefit of cross-examination and appropriate jury instructions.

The court also addresses defendant's contention that the trial court should have revised the model jury charge sua sponte to explain the inherent suggestiveness of the in-court identification procedure. The court concludes that the trial judge did not commit plain error by relying on the current model jury charge. The court acknowledges, however, that the time has come to reexamine that instruction. After reviewing the case law and scientific literature, the court accepts that the inherent suggestiveness of in-court identifications is comparable to the suggestiveness of one-on-one show-up identifications. And yet, the court notes, the model jury instructions pertaining to in-court identifications are less detailed and precise than the model instruction that explains the risk of misidentification in a show-up procedure. The court recommends that the Model Jury Charge Committee consider revising the model instruction pertaining to in-court identifications, for example, by incorporating language currently used to explain the suggestiveness of one-on-one show-up identifications.

A tenured teacher asked the board of education about switching from a full-time role to a part-time position with benefits. The board approved her transfer but failed to inform her of the impact it would have on her tenured status. When the teacher re-applied for a full-time role, she did not get the job. The teacher appealed and an administrative law judge found for the board. However, the Commissioner of Education reversed the initial decision, finding instead that the teacher did not knowingly waive her right to a full-time position because the board had a duty to inform the teacher of the consequences of going part-time under Bridgewater-Raritan Educ. Ass'n v. Bd. of Educ. of Bridgewater-Raritan Sch. Dist., 221 N.J. 349 (2015).

The court affirmed the Commissioner's decision and interpretation of Bridgewater-Raritan, which established a school's duty, under N.J.S.A. 18A:16-1.1, to provide notice to replacement teachers concerning the limitations on service time towards tenure. The court held that Bridgewater-Raritan compels school boards to notify in advance a full-time tenured teacher who voluntarily takes a part-time teaching position that she is at risk of not getting her full-time job back.

A former public school bus driver appealed from a PERS final agency decision declaring her ineligible to file an accidental disability retirement application when separation from service was based upon an irrevocable resignation, not related to a disability, in accordance with N.J.A.C. 17:1-6.4.

On appeal, the court was required to determine whether a school employee, who irrevocably resigned while an employment grievance was pending, could file an application for ordinary or accidental disability retirement benefits, when the charges underlying the grievance did not relate to a disability. For the reasons stated in the court's opinion, it concluded that , in the first instance, a public school employee's irrevocable resignation from employment rendered the school employee ineligible for ordinary or accidental retirement benefits because the school employee's separation from service was based upon a resolution of the pending grievance, and not an alleged disability.

N.J.S.A. 34:15-28.2(a) permits a workers' compensation judge to enforce a court order, statute or regulation by imposing "an additional assessment not to exceed 25% of moneys due for unreasonable payment delay." In this case, the parties settled petitioner's total disability claim, and, the judge imposed the maximum assessment when the county was sixteen days late in making payment required under the order.

The court reversed, concluding the judge erred as a matter of law because she considered litigation delays occurring prior to the settlement and entry of the order for payment in fashioning the award. The court also concluded the judge mistakenly exercised her discretion regarding the amount of the award, because she imposed the maximum additional assessment for a relatively short delay.

The plaintiffs whose claims are implicated in these interlocutory cross-appeals were members of defendant Rutgers-Newark's 2014-15 women's basketball team. Four plaintiffs describe themselves as African-American and gay, one as African-American and bisexual, and the sixth as Hispanic and heterosexual. They claim they were retaliated against and subjected to a hostile environment in violation of the Law Against Discrimination by defendants because, among other things, their interim coach, defendant William Zasowski, referred to them as "dykes," and "nappy-headed sisters," and asked the team captain for the names of the team members who were gay and, when they complained and sought a school investigation, defendants retaliated. The trial judge granted in part and denied in part defendants' summary judgment motion.

The court concluded that the judge did not err in denying summary judgment on plaintiffs' hostile environment claims and did not err in denying summary judgment on the retaliation claims of two plaintiffs; the court held, however, that the judge erred in granting summary judgment on the retaliation claims of the other four plaintiffs. The court held that both the hostile environment and retaliation claims should be considered, not individually as argued by defendants, but in light of the fact that plaintiffs were members of small, tightly-knit group and that each plaintiff could rely on the experiences of the others even if they did not directly experience or witness defendants' alleged discriminatory comments and epithets, thereby distinguishing Godfrey v. Princeton Theological Seminary, 196 N.J. 178 (2008) in this setting.

The court vacates an order of the Tax Court awarding Green Township, pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1, "$45,589.35 in counsel fees and costs for its defense of [defendant Penny] Holenstein"¹ in her official capacity as Municipal Tax Assessor. Wolosky v. Fredon Twp., 31 N.J. Tax 373, 405 (Tax 2019). Because the motion for sanctions was filed 679 days after the entry of a final judgment, and after this court affirmed the dismissal of plaintiff's 2016 complaint challenging a property tax assessment, Wolosky v. Fredon Twp., No. A 1980-16 (App. Div. July 24, 2018), we conclude the Tax Court mistakenly exercised its discretion when it reopened the case and considered the motions as timely filed. We therefore vacate the award of sanctions in favor of Green Township.

Plaintiff also appeals from an order denying his motion for counsel fees against defendant Fredon Township. Because the record does not support a finding that Fredon Township acted frivolously, we affirm the denial of plaintiff's motion for sanctions.

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¹ We refer to Penny Holenstein individually as Holenstein, and refer to Michael and Penny Holenstein, collectively, as the Holensteins.

Plaintiff Christine Savage, a former sergeant with defendant Township of Neptune Police Department, appealed from an order enforcing a "non-disparagement provision" in a settlement agreement. In the underlying employment discrimination case, plaintiff alleged defendants engaged in continuing sexual discrimination, harassment, and unlawful retaliation, in violation of New Jersey's Law Against Discrimination (LAD) N.J.S.A. 10:5-1 to -50, the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, and Article I, Paragraph 6 of the New Jersey Constitution. On July 23, 2020, the parties settled the employment discrimination action and entered into an agreement, which included a non-disparagement provision, but not a non-disclosure provision.

Defendants Michael J. Bascom, the former Police Director for Neptune Township, and James M. Hunt, the Chief of the Neptune Police Department, filed a motion in September 2020, to enforce the settlement, arguing that plaintiff violated the non-disparagement provision during an interview with a television news reporter that aired on Channel 4, NBC news on August 11, 2020. The trial judge granted defendants' motion, finding that N.J.S.A. 10:5-12.8(a) only barred confidentiality or non-disclosure agreements (also referred to as NDAs), and that plaintiff violated the non-disparagement provision in the agreement when she commented during the televised interview that the Neptune Police Department had not changed, and it was still a "good old boys club." The judge subsequently awarded defendants $4,917.50 in counsel fees and costs for breach of the non-disparagement clause.

On appeal, plaintiff argues that the judge erred in granting the motion because the non-disparagement provision was against public policy and unenforceable under N.J.S.A. 10:5-12.8(a), and thus the judge also erred in denying her cross-motion for counsel fees under N.J.S.A. 10:5-12.9. In the alternative, plaintiff argues that even if the non-disparagement provision were enforceable, by adjudicating this dispute as a motion to enforce, rather than as a separate breach of contract action, the judge deprived her of her right to have a jury decide the disputed facts.

The court reversed the order granting defendants' motion to enforce the settlement agreement and held that although the terms of the non-disparagement provision are enforceable and the judge properly adjudicated this matter by motion, the judge nonetheless erred in finding that plaintiff violated the terms of the non-disparagement provision during the televised interview. Because defendants' enforcement motion was not successful, the court vacated the judge's award of $4,917.50 in counsel fees to defendants. However, the court affirmed the judge's order denying plaintiff's cross-motion for counsel fees and costs under N.J.S.A. 10:5-12.9.

The issue raised in this appeal is whether the First Amendment or Article I, Paragraph 6 of the New Jersey Constitution prevents a private employer from terminating one of its at-will employees for posting racially insensitive comments about the Black Lives Matter movement on her personal Facebook account. Defendants AtlantiCare Medical System Incorporated and Geisinger Health System Incorporated (AtlantiCare) employed plaintiff Heather J. McVey as a Corporate Director of Customer Service. During the height of the nationwide protests concerning the murder of George Floyd by police in Minnesota, McVey posted that she found the phrase "Black Lives Matter" to be "racist," believed the Black Lives Matter movement "causes segregation," and asserted that Black citizens were "killing themselves." McVey's Facebook profile prominently stated that she was an AtlantiCare Corporate Director. After it discovered the comments, AtlantiCare fired McVey and she filed a complaint alleging wrongful discharge. The court concluded that the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution did not bar a private employer from terminating an at-will employee under the circumstances presented in this case, and held that the trial court properly dismissed McVey's complaint.

Plaintiffs, the parents of a special needs child, sued defendants to enforce an Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, request. The OPRA request sought all settlements entered into by the school board before the New Jersey Office of Administrative Law (OAL) in petitions filed by or on behalf of students subject to an individualized education program or an accommodation plan.

The court affirmed the trial court's decision to enforce the OPRA request and award plaintiffs' attorney's fees. The court concludes that pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400(d)(1)(A), and state regulations implementing the IDEA, settlements entered before the OAL are public records and defendants were required to disclose them after redacting personally identifiable information.

Defendant appealed the denial of his motion to suppress evidence taken by police from an opaque bag and closed shoebox located in his mother's room in a home owned by his aunt; his aunt had previously barred defendant from the home. Police did not seek a warrant but instead sought and obtained the consent of defendant's aunt to search her home. No effort was made to obtain defendant's mother's consent to search her room, even though the trial judge found she was a tenant, because she spoke only Creole. Notwithstanding questions about the validity of the consent to search defendant's mother's room, the court concluded in reversing that there was no evidence to support a finding that police had a reasonably objective belief that either defendant's aunt or his mother had the authority to consent to a search of the opaque bag and closed shoebox because the record revealed this property belonged only to defendant, who did not consent. That defendant had no possessory interest or reasonable expectation of privacy in the premises where the closed containers were found was irrelevant to the analysis about the validity of the search of the containers.

In this nursing malpractice case, plaintiff Nicole Hoover appeals from an April 1, 2021 order denying reconsideration of a February 19, 2021 order that dismissed her claims with prejudice for failure to provide an appropriate Affidavit of Merit (AOM) against nurse/defendant Nicole Baughman.

After a total-knee replacement surgery, plaintiff sued Wexler, her orthopedic surgeon; defendant, a Registered Nurse First Assistant who was assisting Wexler in the surgery; and others, alleging negligence in the performance of the surgery. Shortly after filing suit, plaintiff filed and served a single AOM applicable to all defendants. The AOM was executed by Dr. Robert Tonks, M.D., a board-certified orthopedic surgeon who has experience performing total knee replacement surgery. The court granted defendant's motion to dismiss, determining that the AOM statute required plaintiff to submit an AOM from either a registered nurse or a physician who is familiar with the nursing standard of care and protocols of nurses.

The court finds that the like-credentialed requirements of the Patients First Act, N.J.S.A. 2A:53-41, applies only to physicians and not to other licensed professionals under the AOM statute, N.J.S.A. 2A:53A-26 to -29. See Meehan v. Antonellis, 226 N.J. 216 (2016) (holding section 41 applies only to physicians and "[t]here is simply no textual support for the application of the like-qualified requirements of section 41" to actions against other licensed professionals under section 27). Because there is no heightened "like-for-like" requirement that prohibited Tonks from authoring an AOM against defendant, he need only have satisfied N.J.S.A. 2A:53A-27's requirement that he "have particular expertise in the general area or specialty involved in the action."

The court concludes that Tonks is a qualified affiant under the statute. Defendant does not dispute Tonks' expertise in knee-replacement surgery. She concedes she was a member of the operative team and that she actively assisted in the surgery as a perioperative registered nurse. Notably, the central allegation against defendant and Wexler is identical: one or both negligently severed plaintiff's popliteal artery and vein. Under these circumstances, the court finds that Tonks is an expert who satisfies section 27 of the AOM statute and that plaintiff need not have filed an AOM from a registered nurse. Whether and to what extent Tonks may serve as an expert against defendant at trial must be fleshed out in discovery, and the court expresses no opinion on that subject.

Accordingly, the court reverses and remands for further proceedings consistent with the court's opinion.

The court clarified when an insurance company may be relieved of providing insurance coverage to an insured who refuses to cooperate in defending a personal injury victim's claim pursuant to the terms of the insurance policy. An insurance company's satisfaction of either of the two variables identified in Hager v. Gonsalves, 398 N.J. Super. 529 (App. Div. 2008), constitutes appreciable prejudice sufficient to forfeit any obligation on the part of an insurance company to provide coverage to an insured.

Under the first variable, a trial court must determine whether an insurer's substantial rights have been irretrievably lost as a result of the insured's breach of the insurance policy. Under the second variable, a trial court must examine an insurer's likelihood of success in defending against an accident victim's claim had the insured not failed to cooperate.

In analyzing the appreciable prejudice variables, the court held the first variable applied to an irretrievable loss of substantial rights related to coverage determinations by an insurer. To conclude otherwise would render the second appreciable prejudice variable redundant. The two variables are intended to address different aspects of appreciable prejudice.

In this appeal, the court addresses the enforceability of an arbitration provision in an agreement signed by a fifteen-year-old minor to gain access to a commercial trampoline park. The court holds that the arbitration provision is not enforceable because the minor had the right to disaffirm the agreement and the limited exceptions to that right did not apply. Accordingly, the court reverses and vacates the order granting defendants' motion to compel arbitration of plaintiff's claims and dismissing his complaint with prejudice. The matter is remanded with instruction that plaintiff's complaint be reinstated so that his claims can be litigated in the Law Division.

The court holds that an adult can waive his or her right to bring claims in a court and can be compelled to arbitrate personal injury claims when the adult had reviewed a clearly worded arbitration provision before entering a commercial recreational park.

The court also remands for entry of a new order because the trial court erred in dismissing the Law Division action. Instead of dismissing the action, the trial court should have stayed the Law Division action, including the claims against defendants who are not parties to the arbitration provision.

Plaintiffs in this case are affiliated companies engaged in selling extended service contracts 31 to motor vehicle owners over the telephone. They claim that defendants hired away key managers and more than forty members of their sales force, siphoned customers, and misappropriated alleged trade secrets.

Relying upon several legal theories, plaintiffs filed suit to recover damages and obtain injunctive relief. In a series of orders, the motion judge granted summary judgment to defendants, dismissing all of plaintiffs' claims now at issue on appeal. In ruling on summary judgment, the motion judge disregarded two certifications submitted by plaintiffs from a codefendant who "switched sides" and became employed by plaintiffs after his deposition.

This court holds that the "sham affidavit" doctrine adopted by the Supreme Court in Shelcusky v. Garjulio, 172 N.J. 185, 199-202 (2002), can extend to a "side switching" situation. In particular, the doctrine can apply where, as here: (1) a codefendant is deposed, (2) that deponent thereafter obtains a job with the plaintiff, (3) the deponent then aids his new employer by signing certifications recanting his deposition testimony, and (4) the plaintiff offers those certifications in opposing summary judgment motions by the other defendants.

Applying the sham affidavit doctrine to this record, the court rules the motion judge appropriately disregarded the side-switching employee's certifications because the employee failed, as Shelcusky requires, to "reasonably explain[]" why he "patently and sharply" contradicted his earlier deposition testimony. Id. at 201.

However, the court rules the judge erred in rejecting as evidence a recorded telephone conversation of a different codefendant who was also rehired by one of plaintiffs' companies after his deposition.

Because the recording should have been considered as evidence weighing against defendants' summary judgment motion, the court remands this matter to allow the Law Division in the first instance to reconsider its dismissal of the lawsuit in its entirety.

In this case of first impression, the court considered whether a victim in a criminal matter has standing to appeal from a trial court order granting defendant's motion for a civil reservation, where the victim neither moved to intervene before the trial court nor this court, and the parties to the underlying action did not appeal. Because the victim was aggrieved by the trial court's order, and the civil reservation was neither raised during plea negotiations nor made a condition of defendant's guilty plea, the court held the victim has standing to appeal.

However, the court's decision was subject to certain caveats. The court held the victim should have moved to intervene for leave to appeal and file a brief before this court. Because the court would have granted the victim's motion and considered her brief on the merits, the court concluded the victim's procedural missteps were not fatal in this case.

As for the merits of the victim's claims, the court concluded the trial court's decision was procedurally and substantively flawed. Because it is unclear from the record evidence whether defendant faces a "precarious financial situation" absent a civil reservation, the court disagreed with the trial court's decision that defendant satisfied the requisite "good cause" standard for entry of the civil reservation order.

Moreover, defendant's admission to the pretrial intervention (PTI)program was conditioned on his guilty plea. Until defendant completes – or is terminated from – the PTI program, his guilty plea is considered "inactive" under the PTI statute and the applicable Attorney General guidelines. Thus, the order under review was premature.

The court therefore vacated the order under review and remanded for further proceedings.

Defendant appealed from the trial court's finding that the parties' written palimony agreement was valid because, among other reasons, the court found both parties were represented by counsel. While this appeal was pending, the Supreme Court decided Moynihan v. Lynch, 250 N.J. 60 (2022) and struck down as unconstitutional a provision of the Statute of Frauds, N.J.S.A. 25:1-5(h), requiring parties to a palimony agreement receive the advice of counsel for such agreements to be valid. The court granted defendant's request for supplemental briefing as to whether Moynihan applied retroactively. The court affirms the trial court's findings upholding the parties' agreement and concludes Moynihan applies retroactively because of the constitutional dimensions of the Supreme Court's holding, which also furthers our State's jurisprudence encouraging the settlement of disputes in family matters.

These three consolidated appeals in personal injury cases pose related but distinct questions involving the application of Rule 4:19. The appeals concern when, if ever, a plaintiff with alleged cognitive limitations, psychological impairments or language barriers can be accompanied by a third party to a defense medical examination ("DME"), or require that the examination be video or audio recorded in order to preserve objective evidence of what occurred during the examination.

With the input of the parties' counsel and amici, the court revisits and updates the opinion from twenty-four years ago in B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998) (authorizing the "unobtrusive" audio recording of a neuropsychological DME of a plaintiff who claimed in her civil action that she was suffering emotional distress). The court also considers 2016 Policy Statement of the American Board of Professional Neuropsychology disfavoring the third-party observation and recording of DMEs and urging practitioners to refuse such conditions except where required by law.

In the absence of more specific guidance within the present text of Rule 4:19, the court adopts adopt the following holdings.

First, a disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by trial judges on a case-by-case basis,with no absolute prohibitions or entitlements.

Second, despite contrary language in Carley, it shall be the plaintiff's burden to justify to the court that third-party presence or recording, or both, is appropriate in a particular case.

Third, given advances in technology since 1998, the range of options should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff.

Fourth, to the extent that examiners hired by the defense are concerned that a third-party observer or a recording might reveal alleged proprietary information about the content of the exam, the parties shall cooperate to enter into a protective order, so that such information is solely used for the purposes of the case and not otherwise divulged.

Fifth, if the court permits a third party to attend the DME, it shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam.

Sixth, if a foreign or sign language interpreter is needed for the exam (as is the case in two of the appeals before us) the examiner shall utilize a neutral interpreter agreed upon by the parties or, if such agreement is not attained, an interpreter selected by the court.

The three cases are accordingly remanded to the respective trial courts to reconsider the conditions of each DME, consistent with the guidance expressed in this opinion.

This case involved a high school student injured when struck by another defendant's car while walking home from school. Because the student lived less than two and a half miles from his high school, he was not eligible for mandatory busing under N.J.S.A. 18A:39-1 and, therefore, was required to walk to and from school.

The Board adopted various policies and procedures related to student busing transportation. The Board also adopted procedures for parents seeking to contest the designation of a route as hazardous. The procedure required the parent to contact the Board's transportation supervisor to discuss the route designation and any transportation issues.

Following these policies and applying its adopted criteria, the Board determined the route taken by this student to and from school on the day of the accident was non-hazardous for high school students.

Sometime between 2010 and 2016, the Township assigned a traffic safety officer to work with the Board in evaluating the safety of various student walking routes. Due to cuts to the Board's school budget, the Board asked the Township's traffic safety officer to determine whether busing costs could be reduced. The Township's traffic safety officer determined the route travelled by this student on the day of the accident to be dangerous for students of any age, including high school students, and so advised the Board. The Board denied receiving such a recommendation.

The student and his parents filed suit alleging negligence against the Board, the Township, and the driver. The Board and the Township moved for summary judgment.

The court affirmed the denial of summary judgment to the Board. The court concluded a jury would have to resolve certain factual disputes regarding the Board's duty to plaintiffs, if any, and whether the Board breached such duties. The court identified the following factual issues regarding the Board's conduct: whether the Board breached a duty to plaintiffs by not adhering to its policies and procedures regarding the designation of hazardous routes; whether the Board violated its procedure governing situations where a parent seeks to contest the designation of a hazardous route or other busing issues; and whether the Board should have reevaluated the specific road travelled as a matter of general practice or based on information provided by the Township's traffic safety officer.

Additionally, the court determined a jury must assess whether the Board's failure to undertake these actions constituted a ministerial act, which is not entitled to immunity, or a discretionary act, which is entitled to immunity. The court agreed the motion judge properly denied summary judgment to the Board because there were factual disputes regarding whether the Board's actions or inactions related to the student's transportation were reasonable under the circumstances after considering the Board's obligations under its own transportation policies.

The court reversed the denial of summary judgment to the Township. Under N.J.S.A. 18A:39-1.5(b), the Township had no duty beyond working in conjunction with the Board to determine criteria for the designation of a hazardous route and the Board admitted the Township satisfied its legal duty under the statute. The Board also conceded it made the decisions related to student transportation and designation of hazardous routes without input or participation by the Township.

A.M. suffers from end-stage multiple sclerosis, a progressive condition that renders her physically incapable of conducting any activities of daily life and requires twenty-four-hour daily medical care. After serving eight years of her forty-year sentence for the murder of her husband, she petitioned for release on parole to a medical facility pursuant to the Compassionate Release Act (CRA), N.J.S.A. 30:4-123.51e.

Subsection (f)(1) of the CRA authorizes a court to grant a petition for release on parole where there is clear and convincing evidence the inmate suffers from a "permanent physical incapacity" rendering the inmate "permanently physically incapable of committing a crime if released" and the conditions "under which the inmate would be released would not pose a threat to public safety." N.J.S.A. 30:4-123.51e(f)(1). Here, the motion court conducted hearings, determined A.M. satisfied the permanent physical incapacity and public safety requirements, but denied her petition based on its conclusion N.J.S.A. 30:4-123.51e(f)(1) vested it with discretion to do so.

The court reverses the denial of A.M.'s petition for compassionate release parole, concluding the plain language of the CRA does not vest a court with discretion to deny a petition where it otherwise determines there is clear and convincing evidence satisfying the permanent physical capacity and public safety criteria for release set forth in N.J.S.A. 30:4-123.51e(f)(1).

Although the court affirmed defendant's aggravated manslaughter conviction and sentence, it reversed defendant's convictions for second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1), and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1), based on errors in the judge's final charge.

Despite charging self-defense, because he concluded defendant's return to the scene with a gun was "unreasonable," the judge refused to provide instructions on the unlawful purpose count that explains the use of a firearm for a "protective purpose." However, the model charge clearly explains the difference between self-defense, which requires both an honest and reasonable belief in the need to use force, and the use of a weapon for a protective purpose, which only requires an honest belief, not a reasonable one. See State v. Williams, 168 N.J. 323, 334–35 (2001) (explaining the difference between the two concepts).

Regarding the unlawful possession count, the judge failed to orally provide instructions regarding the permissible inference a jury may draw from the lack of any permit in defendant's name in the State Police database. Although the written instructions the judge provided included that portion of the model charge, the court held State v. Lindsey, 245 N.J. Super. 466, 475 (App. Div. 1991), and the current iteration of Rule 1:8-8(b)(2), do not relieve the judge of the obligation to orally provide instructions and not rely on copies of the written charge given to the jury.

By leave granted, defendant appeals from a trial court order, denying his motion to dismiss an indictment that charges him with two counts of first-degree aggravated sexual assault by penile-vaginal penetration, and two counts of second-degree endangering the welfare of a child. The indictment was returned four months after the East Orange Police Department issued complaint-warrants; seven years after the alleged victim reported the crimes to the police; and fourteen years after the last incident allegedly occurred. The alleged victim, who was five and six years old at the time of the alleged incidents, is defendant's biological daughter.

On appeal, as he did before the motion judge, defendant contends his right to due process was violated in three respects. Initially, defendant maintains the State's delay in presenting the case to the grand jury violated his right to due process under the Fourteenth Amendment and, as such, the motion judge misinterpreted the standard enunciated by the Supreme Court in State v. Townsend, 186 N.J. 473 (2006). Secondly, defendant claims the indictment, and the State's ensuing response to his bill of particulars, failed to provide sufficient notice of the dates and locations of the sexual assaults under the criteria established in State in the Interest of K.A.W., 104 N.J. 112 (1986). Finally, defendant asserts the cumulative effect of the State's delayed prosecution and its vague indictment warrant dismissal under the fundamental fairness doctrine.

Because the court concludes defendant failed to demonstrate "actual prejudice" under the second Townsend prong, the court declines to address defendant's assertion under the first Townsend prong that the judge erred in requiring him to establish the State acted in bad faith. The court concludes defendant's due process rights were not violated by the State's delay in seeking the indictment and affirms the motion judge's decision in that regard. However, the court clarifies the burden of proof required under the first Townsend prong.

Turning to the sufficiency of the indictment under the K.A.W. factors, the court cannot discern from the record on appeal whether the State discharged its obligation to narrow the dates of the alleged incidents. Notably, the record is devoid of any evidence that the State attempted to question the victim about life events occurring around the time of the two alleged incidents. Accordingly, the court remanded the matter for the State to furnish the motion judge with documentary evidence of its efforts, if any, to narrow the time frame alleged in its responses to defendant's bill of particulars.

In view of its remand order, the court declined to address defendant's fundamental fairness argument.

The court resolves the jurisdictional question of whether the Commissioner of the Department of Banking and Insurance ("DOBI") may pursue an administrative action against two out-of-state companies and their two licensed New Jersey affiliates for engaging in alleged improper insurancerelated practices in this State—or whether the Commissioner must instead rely on the Attorney General to bring a lawsuit against those companies in the Superior Court.

Specifically, the court interprets N.J.S.A. 17:32-20 ("Section 20"), which the Legislature enacted in 1968 as part of the Non-Admitted Insurers Act, N.J.S.A. 17:32-16 to -22. In pertinent part, Section 20 reads:

Whenever it shall appear to the commissioner that any insurer, or any employee, agent, promotional medium, or other representative thereof, has violated, is violating, or is about to violate the provisions of this act, the Attorney General, upon the request of the commissioner, shall institute a civil action in the Superior Court for injunctive relief and for such other relief as may be appropriate under the circumstances.

[N.J.S.A. 17:32-20 (emphasis added).]

The court holds that Section 20 does not restrict the Commissioner to the path of a Superior Court action in this circumstance. Based on the text, legislative history, and public policies of the statute as a whole, as well as principles of primary jurisdiction, the Commissioner has the authority to choose to pursue an administrative complaint against the companies instead of a lawsuit brought by the Attorney General.

Consequently, the court remands this matter to DOBI and directs that a previously stayed hearing in the Office of Administrative Law be reactivated.

This criminal prosecution arises out of a head-on collision that killed a passenger in defendant’s car. Defendant had driven the car into the lane of oncoming traffic, and an accident reconstruction expert estimated he had been speeding at over 80 mph in a 25 mph zone at the moment of impact. His blood sample was extracted at a hospital later that day, yielding apparent test results from the State Police laboratory of a blood alcohol content (BAC) well over the legal limit.

A grand jury charged defendant with vehicular homicide, drunk driving, and other offenses. After seven witnesses for the State had testified, a testifying nurse revealed that the State had inadvertently misattributed to defendant the blood sample of a deceased hospital patient, which the hospital had mistakenly released, and which the State then failed to authenticate. In addition, it came to light that defendant's own blood sample had been irretrievably lost.

The trial judge declared a mistrial and found the State had acted in bad faith in its misattribution of the blood samples. The judge denied defendant’s motion to dismiss all charges with prejudice, but did dismiss with prejudice the three counts of the indictment that hinged on the BAC level. Defendant appealed; the State did not cross-appeal the judge’s finding of bad faith.

The court holds the proper remedy in this unusual situation is to re-present the matter to a new grand jury, solely based on the reckless driving allegations, without proof or contentions by the State of defendant's intoxication or impairment. The court rejects defendant’s claim of a double jeopardy violation, as the mistrial was justified on the grounds of manifest necessity. The court also rejects defendant’s argument that it is fundamentally unfair to maintain any charges against him.

Defendant appeals his conviction after a trial de novo in the Law Division of driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50. He also appeals his sentence, arguing the court erred when it considered his conviction to be a second DWI offense for sentencing purposes.

The court affirms defendant's conviction. However, because the State did not prove beyond a reasonable doubt that his prior DWI conviction was not based on an Alcotest breath sample test result rendered inadmissible by the holding in State v. Cassidy, 235 N.J. 482 (2018), the court vacates his sentence, and remands for resentencing as a first offense.

Cassidy arose from the misconduct of State Trooper Marc Dennis who falsified Alcotest calibration records over a number of years. The Cassidy Court held that breath sample test results obtained on Alcotest instruments calibrated by Dennis are inadmissible, calling into question the validity of tens of thousands of DWI convictions based on such results. The Cassidy Court directed the State to provide notice to all defendants whose prior convictions were subject to challenge because they were based on test results from Alcotest instruments calibrated by Dennis. The State subsequently compiled a list of defendants who received notice as directed by Cassidy.

In the present appeal, defendant was convicted of DWI during the time Dennis was falsely certifying Alcotest calibration records. At sentencin g for the present offense, defendant argued the State was required to produce the calibration records from his prior conviction to prove that Dennis was not involved in his conviction. The trial court agreed with the State's argument that the absence of defendant's name on the list of defendants who were sent a Cassidy notice was sufficient proof that defendant's prior conviction was not tainted by Dennis.

The court held that in the absence of evidence of how the Cassidy list was compiled and that it definitively includes all prior DWI convictions that relied on test results from Alcotest instruments calibrated by Dennis, the absence of a defendant's name on the list was insufficient proof that the defendant's prior conviction was not invalidated by Cassidy. The court made a similar holding with respect to the State's assertion, without supporting evidence, that Dennis was not involved in any DWI convictions that arose out of Camden County. The court noted that the burden of Dennis's malfeasance as a law enforcement officer falls on the State, which cannot escape on the grounds of convenience and expediency its obligation to prove that a prior conviction on which it relies for an enhanced sentence in a subsequent prosecution was not tainted by his misconduct.

Defendant appeals from a final restraining order (FRO) entered under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on a predicate act of assault, N.J.S.A. 2C:12-1. The court agrees with defendant's argument that procedural due process requires trial judges, before trial, inform defendants in domestic violence proceedings, both of the serious consequences resulting from the entry of an FRO and of their right to retain legal counsel. Because the judge in this case did not advise defendant of his legal exposure or of his due process right to counsel, the court vacates the order and remands for a new trial.

Defendant was charged with sexual crimes committed against two child victims, one of whom was his daughter and the other the daughter of defendant's girlfriend. The judge denied defendant's motion for severance, accepting the State's proffer that joinder was permitted under Rule 3:7-6, because evidence regarding both victims would be admissible pursuant to Rule 404(b) if the two sets of crimes were tried separately. See State v. Chenique-Puey, 145 N.J. 334, 341 (1996) ("If the evidence would be admissible at both trials, then the trial court may consolidate the charges because 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.'" (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div. 1983)). The court reversed, concluding the judge misapplied Rule 404(b) in denying the severance motion.

The court also questioned the continued vitality of the Chenique-Puey analytic paradigm, noting that unlike situations where the State seeks to introduce evidence of uncharged crimes at trial, and must meet Cofield's rigorous four-prong test at a N.J.R.E. 104 hearing, a defendant's severance motion in these circumstances is most often decided solely on the State's proffer. In this case, the State's proffer in opposition to defendant's motion misstated some evidence and included evidence never adduced, or even admissible, at trial.

The court also traced some historical background regarding Rule 3:7-6, proposed revisions to the Rule never adopted by our Supreme Court, and case law interpreting the Rule in the context of severance motions.

The court in this case interprets and applies the New Jersey Supreme Court's recent decision in State v. Sims, __ N.J. __ (2022). Defendant appeals from his jury trial conviction for aggravated arson. During police investigation of a nightclub fire, detectives determined that defendant was a suspect. After discovering that he had open traffic warrants, the detectives arrested him on authority of those warrants even though their true purpose was to question him about the nightclub fire. After defendant waived his Miranda¹ rights and before posing any substantive questions, the detectives informed him they wanted to talk about the nightclub, not the traffic warrants. Defendant contends that his incriminating statements should have been suppressed because the interrogating detectives did not inform him during the Miranda waiver colloquy that he would be charged with aggravated arson.

In Sims, the majority re-affirmed that, when administering Miranda warnings, police are not required to advise an interrogee that he or she is suspected of committing a particular crime not yet charged by an arrest or complaint-warrant. The court highlights that while the majority in Sims rejected any such per se suspect-notification rule, it expressly retained the principle that the failure by police interrogators to disclose a defendant's suspect status can be a relevant factor as part of the totality of the circumstances. The court stresses, moreover, that the totality-of-the-circumstances analytical paradigm is rigorous because under New Jersey law, the State bears the burden of proving that a defendant knowingly, intelligently, and voluntarily waived his or her Fifth Amendment rights beyond a reasonable doubt. The court explains that it is the formidable proof-beyond-a-reasonable doubt standard, rather than a bright-line suspect notification requirement, that safeguards the Fifth Amendment rights of interrogees who have not been formally charged with the crime that is the subject-matter of the custodial interrogation.

The court also reaffirms that in applying the totality-of-the-circumstances test, it has little tolerance for police interrogation tactics that affirmatively mislead an interrogee as to the seriousness of the crime that is the subject-matter of the interrogation. In this case, the court agrees with the trial court's finding that defendant was "[b]y no means . . . misled or unaware of the nature of the questions." The court thus concludes that the State proved beyond a reasonable doubt that defendant knowingly, intelligently, and voluntarily waived his Fifth Amendment rights.

The court addresses concerns raised by the dissenting justices in Sims that individuals should not be taken from their homes or off the street without being told the reason for their arrest and should not be detained for hours without explanation. Sims, __ N.J. __ (slip op. at 1) (Albin, J., dissenting). The court notes that, in this case, defendant was immediately told the reason for his arrest —the open traffic warrants—and thereafter was quickly informed as to the true reason why the detectives wanted to question him.

The court rejects defendant's contention that the trial court abused its discretion by allowing the lead investigating detective to testify as both a fact witness and as an arson expert. The court concludes that the trial court took reasonable precautions to clearly delineate for the jury the detective's role as a fact witness and his role as an arson expert.

The court also concludes that the trial judge did not commit plain error by allowing the jury to watch a recording of the stationhouse interrogation in which the detectives repeatedly accused defendant of being the arsonist shown in a surveillance video. The court declines to apply the "invited error" doctrine, rejecting the State's argument that defendant is precluded from raising this issue on appeal because he did not object to the jury viewing this portion of the interrogation recording even as he sought to redact of other portions of the recording. Instead, the court applies the plain error standard of review. The court determines that the trial judge should have issued a limiting instruction explaining to the jury that the accusatory statements made by the detectives during the interrogation is not testimony and could only be considered in the context of understanding how the interrogation was conducted and how defendant responded to those accusations. Ultimately, however, the court concludes that any error in failing to instruct the jury does not rise to the level of plain error considering the strong evidence of guilt. The court also reasons that defendant did not suffer unfair prejudice by the jury hearing the detectives' accusatory remarks because it appears that defense counsel had made a strategic decision not to object as shown by counsel's argument in summation that the detectives were "overzealous" and were so convinced of defendant's guilt that they stopped looking for the true culprit.

________________________________________________________________
¹Miranda v. Arizona, 384 U.S. 436 (1966).

Defendant's bedroom was searched pursuant to a warrant after law enforcement received cyber tips about emails and Instagram messages containing images of child endangerment which were linked to an email address which incorporated defendant's last name and first initial. Among other devices, officers retrieved a cell phone from defendant's bedroom, but were unable to access the cell phone because it was passcode protected. The State filed a motion to compel production of the passcode by defendant. The Law Division denied the motion, finding the State failed to establish defendant's ownership of the phone. The State appealed.

The court held that the motion court erred by misapplying the foregone conclusion standard set forth in State v. Andrews, 243 N.J. 447 (2020), which established a testimonial exception to a defendant's right against self - incrimination under the United States Constitution as well as in New Jersey statutory and common-law. The court also held that the motion court erred by overlooking facts in the record which were probative on the issue of defendant's ownership or possession of the cell phone.

After many years of litigation, the parties reached a settlement agreement, reserving for the matrimonial court's consideration a single issue about a bank account; the wife claimed the account was a marital asset and the husband claimed it consisted of investor funds. After a plenary hearing, the judge found the Investment Advisers Act deprived the court of subject matter jurisdiction, 15 U.S.C. § 80b-14a. An order was entered denying the wife's claim "without prejudice." Her reconsideration motion filed three months later was denied as untimely.

Soon after the wife appealed, the court entered an order that limited the appeal to a review of the order denying reconsideration. Later, however, the court allowed the parties to brief all issues, including the merits of the order denying the claim on jurisdictional grounds and whether the merits panel was barred from reconsidering the earlier motion order by the law of the case doctrine.

The court held that the order denying the wife's claim to the account "without prejudice" caused sufficient uncertainty about its finality that the interests of justice permitted the court's consideration of the jurisdictional ruling. The court also held that 15 U.S.C. § 80b-14a grants state courts concurrent jurisdiction, so the case was remanded for a disposition of the wife's claim to the account on its merits.

Defendant opposed the State's motion to admit the statement, arguing he did not knowingly and voluntarily waive his Miranda rights because the detective falsely responded to his immigration status concerns. Following an evidentiary hearing, the trial court granted the motion.

Due to the complexity of federal immigration law, the court recommended that law enforcement officers not engage in speculation and risk misadvising an interrogee. If an interrogee asks about the immigration impact of giving a statement, the officer can merely state that they cannot give any legal advice, and reiterate that the interrogee has the right to consult with an attorney and to have an attorney present during questioning.

The court rejected the argument that the State improperly shifted the burden of proof to defendant to produce a witness to corroborate a central facet of his defense, and the claim of prosecutorial misconduct during summation.

The court affirmed defendant's sentence, finding the trial court properly applied and weighed the aggravating and mitigating factors, which were in equipoise. Accordingly, a midpoint sentence was appropriate. Because the length of the term and period of parole ineligibility were lower than midpoint, the sentence was not manifestly excessive or unduly punitive.

________________________________________________________________
¹ Miranda v. Arizona, 384 U.S. 436 (1996).
² State v. Cofield 127 N.J. 328, 338 (1992).

Defendant appealed his conviction for certain persons not to possess a weapon after the court denied his motion to suppress evidence seized with a warrant issued from an ex parte domestic violence restraining order. The court reversed and vacated defendant's conviction.

Police officers were called to defendant's home, where the victim alleged that defendant kicked her. Police arrested defendant for simple assault and asked the victim if she wanted to seek a temporary restraining order (TRO), which she did. The victim told police that knives and a pistol were in the home.

One officer called a Municipal Court judge and summarized the incident without being under oath and without the judge taking notes. The judge spoke to the victim, but the officer only overheard the victim's portion of the conversation. The call was recorded but subsequently destroyed pursuant to the police department's thirty-one-day record retention policy.

Based on that call, the judge issued a TRO and a telephonic warrant for police to search defendant's home for weapons. Police recovered knives and defendant moved to suppress. The trial court upheld the validity of the warrant and denied suppression notwithstanding the recording of the call was destroyed. Defendant appealed. Cognizant of the principles enunciated in State v. Hemenway, 239 N.J. 111 (2019), and State v. Cassidy, 179 N.J. 150 (2004), the court determined that the search warrant was invalid because the procedural failures did not provide a reliable record to assure the Municipal Court judge properly authorized the warrant.

The court did not conclude the thirty-one-day retention policies was bad faith per se, but that the policy fell below the obligation to retain evidence in criminal matters and that defendant was manifestly prejudiced by the destruction. Moreover, while a properly reconstructed record can remedy certain procedural failures, the reconstruction here was wholly inadequate. The motion judge only heard from the officer who overheard one side of the call—not the Municipal Court judge who issued the warrant.

Reversed and conviction vacated.

Defendant was indicted and charged with violating N.J.S.A. 2C:27-2 based on evidence that, during his 2018 campaign for office of mayor, he agreed to accept from an attorney $10,000 to become the city's tax attorney once defendant was elected; defendant was defeated at the polls. Defendant moved for a dismissal of the indictment. The trial judge granted the motion by relying on United States v. Manzo, 851 F. Supp. 2d 797 (D.N.J. 2012), which interpreted the statute to exclude from criminal liability unsuccessful candidates who accept bribes. The court rejected that interpretation and reversed.

In these two appeals, the court granted the State leave to appeal from two orders, in unrelated matters, partially quashing two communication data warrants (CDWs) requiring Facebook, Inc. n/k/a Meta Platforms, Inc. (Facebook) to turn over, among other things, two of its users' prospective electronically stored communications for a period of thirty days as part of separate ongoing criminal investigations.

On appeal, the court was required to determine as a matter of first impression whether CDWs or wiretap orders had to be served on Facebook, to secure the prospective electronically stored communications. For the reasons stated in the court's opinion, it concluded that only CDWs were required, where, as here, the communications sought were from information that would be stored by Facebook as compared to simultaneous transmission of information through interception. However, it also concluded the CDWs relied upon in these two matters were too lengthy in duration under our State's warrant procedures, and therefore required modification from thirty days to ten days in duration, as prescribed by Rule 3:5-5(a).

Defendant appeals from his jury trial convictions for first -degree robbery and related crimes. He contends the trial court erred in ruling the State could use defendant's hospital-bed statements for impeachment purposes after ruling that the interrogating detectives had failed to properly administer Miranda warnings. Miranda v. Arizona, 384 U.S. 436 (1966). Defendant also contends the trial court erred in permitting a victim to make an in-court identification notwithstanding that her recollection was tainted when a detective told her that photographs of her stolen watch, that were taken by the perpetrator during the robbery, had been extracted from defendant's cell phone.

At the time of the interrogation, defendant was in a hospital intensive care unit awaiting overdue dialysis. Defendant was hooked up to an intravenous line (IV) and an electrocardiogram (EKG). A notation in his medical chart shows that he was suffering from "toxic/metabolic derangement." The Miranda waiver colloquy and ensuing interrogation was not audio- or videorecorded, even though the detectives had traveled to the hospital for the purpose of interviewing defendant.

The court concludes the detectives were not qualified to make a medical judgment as to defendant's cognitive capacity. Because the hospital -bed interrogation was not electronically recorded, the trial judge could not independently assess defendant's outward condition. Importantly, the trial judge candidly acknowledged that he did not have the benefit of an expert medical witness and thus did not fully understand the meaning of some of the terms used in defendant's hospital chart to describe defendant's medical condition at the time of the police interrogation.

The court recognizes that judicial review of the circumstances of a custodial interrogation must be "searching and critical" to ensure protection of a defendant's constitutional rights. Furthermore, the State bears the burden to prove the voluntariness of defendant's hospital-bed admissions beyond a reasonable doubt. The court therefore deems it necessary to remand the case for the State to present expert testimony concerning defendant's medical condition and for the trial court to make specific findings of fact and law as to the impact of that condition on the voluntariness of defendant's statements to police, considering the totality of all relevant circumstances.

The court rejects the State's alternative argument on appeal that even if the trial court erred in permitting the statements to be used for impeachment purposes, that error was harmless. The record in this case clearly shows that the trial court's ruling to allow defendant's statements to be admitted for impeachment purposes significantly impacted defendant's decision to waive his right to testify on his own behalf. The court follows New Jersey and United States Supreme Court precedent that almost any error in allowing otherwise inadmissible evidence to be admitted for impeachment purposes results in reversal because an appellate court cannot not logically term "harmless" an error that presumptively kept the defendant from testifying.

The court concludes the information as to defendant's name, which was conveyed to the victim before trial, was suggestive in that it had the capacity to influence the victim's in-court identification. However, that circumstance was fully presented to the jury through skillful cross-examination. Indeed, the victim candidly acknowledged that her positive in-court identification was influenced by a deduction she drew from the information provided by the detective, not from her independent recollection of the physical appearance of the robber. The court concludes that in these circumstances, there was little danger that the jury might overstate its inherent ability to evaluate evidence offered by an eyewitness who honestly believed her identification of the perpetrator is accurate. The court thus concludes that the trial judge did not abuse his discretion in ruling that any inherent unreliability in the victim's in-court identification would be better addressed to the jury by way of cross-examination and appropriate instructions.

Defendant Rami A. Amer appeals from his convictions for a series of "smash and grab" burglaries, arguing, in part, that his charges should have been dismissed because he was not brought to trial within the timeframe permitted under the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15. The court concludes defendant was timely brought to trial under the IAD after he agreed, through counsel, to a trial date beyond the initial 180-day deadline. The court also determines that even absent defendant's waiver, the filing of certain motions by defense counsel tolled the time limit under the IAD during the pendency of the motions. Accordingly, the court affirms defendant's convictions, but remands for resentencing to allow the sentencing judge to address the overall fairness of the consecutive sentences imposed, consistent with the Court's guidance in State v. Torres, 246 N.J. 246, 272 (2021).

In this appeal, the court considered whether two of the seven subsections of New Jersey's Uniform Interstate Family Support Act's long arm statute permitted exertion of personal jurisdiction over a nonresident alleged to have fathered a child through a sexual relationship with a New Jersey resident that occurred in New York. The court held that the out-of-state act that allegedly caused conception, even though coupled with the nonresident's knowledge that plaintiff was a New Jersey resident, could not be the nonresident's "act" under N.J.S.A. 2A:4-30.129(a)(5), which authorizes personal jurisdiction when "the child resides in this State as a result of the [nonresident's] acts or directives." The court also found unavailing N.J.S.A. 2A:4-30.129(a)(7), which allows for the exertion of personal jurisdiction whenever commensurate with due process, because the nonresident defendant lacked sufficient contacts with this State. As a matter of first impression, the court also held that the policies underlying N.J.R.E. 408 precluded consideration in the jurisdictional analysis of a letter sent to plaintiff by defendant's New Jersey lawyer proposing an amicable resolution.

The court considered defendant Ford Motor Company's (Ford) appeal from a final judgment awarding plaintiff Deborah Marino, Executrix for the Estate of Anita Creutzberger, (decedent) damages for decedent's death from peritoneal mesothelioma. Ford contended that the trial court erred in ruling that Ford violated a consent order and in implementing sanctions.

Decedent's husband and son worked at several Ford car dealerships where brake dust would spread and cover them. They brought dust home on their clothing where it was laundered by decedent. Decedent's estate sued Ford alleging decedent was exposed to asbestos from Ford brakes and that this exposure caused her mesothelioma. Among other allegations, the estate asserted that Ford negligently violated its duty to protect dealership workers and their families by failing to provide them with the same warnings and guidance for handling its asbestos products that it provided to its own employees.

The parties resolved a discovery dispute with a consent order. Ford agreed to search for Ford training materials that referred to asbestos or handling asbestos products and to produce any responsive documents and a corporate witness having knowledge of facts relating to Ford's training.

During the deposition of this designated witness, the employee denied any knowledge of relevant training manuals and any recent testimony regarding the same. Plaintiff's counsel confronted the employee with a 1974 Ford training manual, which the employee admitted he had seen and then confirmed he had been questioned about in another case a few months earlier.

The trial court, upon plaintiff's motion, sanctioned Ford by: (1) directing verdict to plaintiff on the issues of duty and breach; and (2) ordering that the jury be advised that Ford violated a court order and withheld evidence, so duty and breach of duty had been resolved against them. The court subsequently concluded that the sanctions order necessarily included a directed verdict on general, but not specific, causation. Ford appealed.

This court's review found little support for Ford's claims that it acted in good faith in responding to plaintiff's discovery requests and did not violate the consent order. The trial court's sanctions directly corresponded to the violation. The trial court's subsequent inclusion of a directed verdict on general causation flowed from the fact that a duty to warn only exists when the product is dangerous. Ford presented experts to opine against specific causation of decedent's mesothelioma, but these experts also discussed general causation, mooting Ford's argument that it was prejudiced by the order's directed verdict for general causation.

The court discerned no abuse of the trial court's discretion to impose sanctions for violating the consent order and affirmed.

This court addressed whether an amended agreement between the Township of Bordentown and the Fair Share Housing Center satisfied the Township's Third Round obligations under Mount Laurel. This court held the trial court correctly found the amended agreement sets forth a plan that provides a realistic opportunity for the Township to meet its Mount Laurel obligations. We also reiterated that performing work for developers in other Mount Laurel cases does not in-and-of-itself create a conflict of interest for the special master appointed by the trial judge.

Defendant E.R. appealed from her judgments of conviction, arguing the trial court erred when it entered an order affirming the prosecutor's denial of her application for admission to the pretrial intervention program (PTI), N.J.S.A. 2C:43-12. The court concludes the State: (1) failed to detail the level of mental health supervision defendant required, considering her lack of a criminal history and her recent, significant efforts to rehabilitate herself; (2) neglected to explain how the level of supervision defendant would receive on PTI differed significantly from the level she would receive on probation and why the necessary level of supervision through PTI would be inadequate; and (3) failed to address why defendant's lack of criminal history and compliance with mental health treatment were not weighed in favor of her entry into PTI. Accordingly, the court vacates the underlying order denying defendant entry into the PTI program, and remands for further proceedings.

The court holds an attorney cannot be disqualified for a conflict of interest pursuant to RPC 1.9 and RPC 1.10(b) based solely on the content of the initial pleadings where the factual basis for the alleged conflict of interest is contested. The two-pronged analysis required by City of Atlantic City v. Trupos, 201 N.J. 447, 467 (2010) mandates a factfinding before a court can conclude disqualification is required because an attorney represented a former client in a substantially related matter.

The sole issue raised in this administrative appeal is whether an appointing authority may unilaterally reduce a sanction from major to minor discipline after the employee is served with a Final Notice of Disciplinary Action (FNDA). Because the Civil Service Act and accompanying regulations generally permit an employee to appeal only major disciplinary actions, the reduction in sanction divests the Civil Service Commission of jurisdiction to hear the employee's appeal from an adverse administrative decision.

The court reviewed the statutory and regulatory schemes and rejected the employee's argument that the governing provisions prohibit the appointing authority from reducing the penalty after an FNDA has been issued. The court also found unavailing the employee's contention that the reduction in penalty and resulting divestiture of the Commission's jurisdiction violated his right to due process. In doing so, the court distinguished the present matter – involving a reduction in penalty – from its prior decision in Hammond v. Monmouth County. Sheriff's Department, 317 N.J. Super. 199 (App. Div. 1999), which held an appointing authority may not add charges to the FNDA.

Because the court determined no provision of the Act or accompanying regulations proscribed the appointing authority's inherent discretion to reduce a penalty after an FNDA has been issued to a Civil Service employee, the court concluded the Commission properly upheld the Administrative Law Judge's initial decision, dismissing the employee's complaint on summary decision for lack of subject matter jurisdiction.

Defendant, Michelangelo Troisi, appeals the Law Division order denying his de novo appeal of a guilty finding against him in Princeton Municipal Court for violating N.J.S.A. 39:4-97.3, use of hands-free and hand-held wireless communication devices while driving. At the municipal court trial, defendant argued that the manner in which he was using his cell phone while driving was not a violation of the plain meaning of the statute. Defendant testified and admitted that his conduct in the car required him to divert his attention from steering his vehicle on a public road for enough time to enter his six-digit passcode, open the Google Maps app, and place the cursor in the search window. The municipal court judge found defendant guilty of violating N.J.S.A. 39:4-97.3 and imposed a fine.

Defendant appealed de novo to the Law Division, which found defendant guilty of the traffic violation for substantially the same reasons as the municipal court: defendant's actions in his car exceeded the bounds of the statute.

Applying well-established principles of statutory construction, the court held that making multiple keystrokes on a cellphone to locate and use an app such as Google Maps while driving would constitute an offense under N.J.S.A. 39:4-97.3 and that the Law Division and municipal court did not abuse their discretion in finding that defendant's conduct was a violation. The court also held that the statute was not unconstitutionally vague because it fairly puts motorists on notice of what category of activity is impermissible.

The court affirms the Board of Review (Board) decision, which denied a re-hearing after the Appeals Tribunal and agreed with the Division of Unemployment and Temporary Disability Insurance (Division) decision to seek repayment of unemployment benefits improperly awarded to petitioner.

Petitioner voluntarily left employment in October 2019, before the onset of the COVID-19 pandemic. Petitioner filed for and was awarded unemployment benefits for eight weeks, beginning in April 2020. In July 2020, the Division notified petitioner that he was not eligible for unemployment benefits under N.J.S.A. 43:21-5 because he did not leave for good cause attributable to work and his circumstances did not meet the criteria the under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 15 U.S.C. §§ 9001 to 9141. Thus, he was ineligible for Pandemic Unemployment Assistance (PUA) benefits. The Division imposed the refund for petitioner to repay the improper unemployment benefits.

Petitioner appealed, and the Appeal Tribunal affirmed that petitioner was disqualified for such unemployment benefits. The Board agreed. Petitioner brought this appeal, arguing that because the Division erroneously gave petitioner the funds, it is estopped from seeking a refund.

The court agreed after considering the CARES Act's expansion of benefits under the PUA, petitioner was not eligible for benefits during the relevant time period. The Division is required to seek repayment from individuals who are ineligible for unemployment benefits, and petitioner did not show that he was in fact eligible, and the Board's decision was not administered arbitrarily, capriciously, or unreasonably. Further, the State is not estopped from seeking repayment because petitioner did not show a manifest injustice by the Division's decision to seek the required repayments it erroneously awarded.

The court affirmed an order dismissing plaintiff's complaint and compelling arbitration under a construction Agreement to build a home in New York.

Plaintiff entered into the Agreement with defendant, a construction company headquartered in Connecticut. The Agreement contained a choice of law provision to govern by the law of the place where the project was located, excluding that jurisdiction's choice of law rules, and a provision providing that, if the parties selected arbitration as the method of binding dispute resolution, then the Federal Arbitration Act (FAA) would govern. Thus, the parties selected the law of New York, the place of the project, and the FAA to govern the Agreement.

Plaintiff sued defendants in New Jersey alleging defendants had not achieved substantial completion of the project, breached the contract and the implied covenant of good faith and fair dealing, committed fraud and negligent misrepresentation, breached New York lien law, breached their fiduciary duties, committed conversion, unjustly enriched themselves, and violated the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -224, and the New Jersey Racketeer Influenced Corrupt Organization Act (RICO), N.J.S.A. 2C:41-1 to -6.2.

The trial court delivered an oral opinion dismissing the complaint for the matter to be submitted to arbitration. The court concluded that, under New Jersey law, the arbitration provision is clear and unambiguous as to the requirement that the parties submit to arbitration and as to the parties' waiver of their right to a jury trial. The court noted that the litigants are sophisticated parties that freely entered into the Agreement to build a house for over $10 million.

The court considered whether the law of New Jersey or New York applied to the enforceability and construction of the arbitration provision. Here, the parties clearly and unambiguously chose New York law, where the project was located. Thus, the law of New York applied.

The court then concluded a New York court would likely enforce the arbitration provision as it was less broad than those the New York Court of Appeals upheld in Singer v. Jefferies & Co., 575 N.E.2d 98, 99-101 (1991), Atlas Drywall Corp. v. Dist. Council of New York City & Vicinity of United Bhd. of Carpenters & Joiners, 177 A.D.2d 612, 612-14 (2d Dept. 1991), and Nationwide Gen. Ins. Co. v. Invs. Ins. Co. of Am., 332 N.E.2d 333, 335 (1975). Moreover, Congress and the New Jersey Legislature have declared policies favoring arbitration. Martindale v. Sandvik, Inc., 173 N.J. 76, 84-85 (2002). Here, the court discerned no error in the order compelling arbitration because the arbitration provision is clear and unambiguous in waiving the right to a jury trial and covers the alleged disputes.

The court consolidates the appeals brought by three codefendants who were tried together for drug and firearms offenses. All three were charged and convicted for the "kingpin" offense, leader of a narcotics trafficking network, N.J.S.A. 2C:35-3. The State at trial relied principally on recorded jailhouse telephone conversations to establish defendants' roles in the drug trafficking conspiracy. The case hinges on what it means to be a "high-level" member of the conspiracy.

All three defendants moved for judgment of acquittal at the close of the State's case. The trial judge addressed defendants' motions collectively and did not analyze the facts pertaining to each defendant's individual role. The court concludes that the trial judge erred in denying the acquittal motion of the lowest-ranking defendant, Berry. While there can be multiple "leaders" within a given drug trafficking organization, not every participant in a drug trafficking conspiracy meets the definition of being a leader. Even giving the State the benefit of all favorable inferences from the evidence, the court concludes the State failed to prove that Berry exercised substantial authority and control over others. Berry essentially forwarded messages and instructions from codefendant Daniels, who was incarcerated in county jail. While that was an important function, the court notes that a participant may perform an essential function in the operations of an illicit drug operation without necessarily being a high-ranking member of that network for purposes of the leader offense.

As part of an illegal gambling investigation, which included wiretap evidence, defendant was charged with third-degree promoting gambling, third-degree conspiracy to promote gambling, and second-degree financial facilitation of criminal activity. The Bergen County Prosecutor's Office also filed a civil forfeiture complaint against numerous bank accounts and other assets held by defendant and his company. Pursuant to a negotiated plea agreement, defendant waived his right to indictment, pled guilty to third-degree promoting gambling, and consented to the civil forfeiture of $3 million, in exchange for a recommended sentence of probation conditioned upon 180 days in jail and the dismissal of the charges filed against his wife.

At the plea hearing, defendant acknowledged he accepted bets for some of his employees, naming two of them, and admitted to participating in "a pay-and-collect situation with both of those individuals" and the bookmaker. Defendant further admitted he maintained written records of the bets that indicated the amount he needed to collect from the employees. On November 3, 2006, defendant was sentenced in accordance with the plea agreement. That same day he signed a consent order to enter judgment forfeiting $3 million in the civil forfeiture action. Defendant did not appeal his conviction or sentence or file a motion for relief from the forfeiture judgment.

On September 30, 2019, almost thirteen years after he was sentenced, defendant filed a first petition for post-conviction relief (PCR). Defendant sought an evidentiary hearing, withdrawal of his guilty plea, and the return of the forfeited funds. He argued that the time limitation imposed by Rule 3:22-12(a)(1) should be relaxed. Defendant raised claims of actual innocence, newly discovered evidence, ineffective assistance of counsel, and that the BCPO withheld exculpatory evidence. Defendant recanted his admissions during the plea hearing and contended that he never acted as a bookmaker.

The PCR court denied the petition without an evidentiary hearing, rejecting defendant's claims that trial counsel was ineffective and noting defendant received the benefit of a favorable plea deal. The PCR court also rejected defendant's claims of newly discovered evidence, actual innocence, that his plea was coerced, and that the prosecutor withheld exculpatory evidence. The PCR court further concluded that defendant did not demonstrate excusable neglect, his claims were speculative and had no basis in fact, and were time barred.

The court affirmed, noting that defendant pled guilty, was sentenced, and signed the consent order for judgment of forfeiture in 2006, his term of probation ended in 2007, and the county prosecutor he accused of misconduct resigned in January 2016, yet he waited until September 2019 to file his petition. The court found no exceptions applied to the five-year time limitation imposed by Rule 3:22-12 and that enforcing the time-bar did not result in a fundamental injustice.

The court rejected defendant's argument that the time limit for filing his petition should be relaxed due to his actual innocence and declined to apply a federal equitable doctrine to override the clear mandate of Rule 3:22-12.

The court also rejected defendant's claim that the forfeited funds must be returned as a matter of law. The court noted defendant did not contest the civil forfeiture action, consented to the forfeiture of $3 million, had not filed for relief pursuant N.J.S.A. 2C:64-8, and did not file a motion for relief from the forfeiture judgment under Rule 4:50-1. The court held that defendant was bound by the forfeiture judgment and any attempt to set it aside must be filed in the Civil Part and was now time barred by Rule 4:50-2.

At issue in this appeal is the propriety of the prosecutor's closing remarks on a seven-minute segment of surveillance footage, included as part of the one-hour video recording admitted in evidence but not played for the jury by either side during trial. Although the trial judge denied the prosecutor's request to play the previously unseen segment on summation, the judge afforded the jurors the option of viewing this footage during their deliberations.

Upon the jury's ensuing request, the seven-minute segment was played for the first time in open court. Because defendant was not afforded an opportunity to address the footage, the court concludes the prosecutor's remarks exceeded the bounds of proper conduct and the trial judge's evidentiary decision compounded the error, thereby denying defendant a fair trial. Accordingly, the court vacates defendant's conviction for possession of a weapon by a convicted felon and remands for a new trial.

During the parties' divorce proceedings defendant was declared incapacitated due to a breakdown and multiple psychiatric hospitalizations. Following an investigation and filing of a complaint in the Probate Part by the guardian ad litem, the parties' adult children were appointed as co-guardians for defendant. The guardians, assisted by the guardian ad litem and an experienced divorce attorney, settled the case, and entered a comprehensive PSA.

Nearly two years after the divorce, the Probate Part deemed defendant competent and dissolved the guardianship. Approximately one year after dissolution of the guardianship defendant filed a Rule 4:50-1(f) motion to declare the PSA invalid. She argued her children should not have been appointed co-guardians because they were financially dependent on plaintiff and controlled by him and engaged in misconduct. The Family Part judge denied the motion.

On appeal, the court held the appointment of a party's adult child to serve as their guardian in a divorce proceeding pursuant to Rule 4:26-2(a) does not in itself render the subsequent settlement of the case unconscionable. The party seeking to undo the settlement must demonstrate misconduct by the guardian and that the settlement is unconscionable.