Published Appellate Court Opinions

In this case of first impression addressing the proliferation of forensic evidentiary technology in criminal prosecutions, this appeal required the court to determine whether defendant is entitled to trade secrets of a private company for the sole purpose of challenging, at a Frye hearing, the reliability of science underlying novel DNA analysis software and expert testimony. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). At the hearing, the State produced an expert who relied on his company's complex probabilistic genotyping software program to testify that defendant's DNA was present, thereby connecting defendant to a murder and other crimes. So long as the State utilized the expert, this court held that defendant is entitled to the discovery of the software's proprietary source code and related documentation under a protective order.

This appeal from the Division of Property Management and Construction's (DPMC) rejection of a bid protest and award of the contract for the Comprehensive Renovation and Restoration of the New Jersey Executive State House project to the lowest bidder presents an issue of first impression—whether a prime contractor bidder is required to name its building control systems subcontractor in its bid. See N.J.S.A. 52:32-2.

The DPMC and the court denied the protestor's earlier applications for a stay of the decision and a request to accelerate the appeal. Significant expenses were incurred by the successful bidder, and substantial work on the project progressed, while the appeal was pending. This included the award of thirty-six subcontracts.

The court found setting aside the contract award would severely impact the Executive State House, jeopardize the work already completed, the project in general, and risk damage to the historic structure. Therefore, it would be contrary to the public interest to void the contract even for any remaining uncompleted portion of the construction. Accordingly, the court dismissed the appeal as moot.

Because the issues raised arguably involve a matter of public importance capable of repetition while evading review, the court addressed the merits. The court found no merit in appellant's arguments, holding that the DPMC properly interpreted the subcontractor naming provisions of N.J.S.A. 52:32-2. Bidders are only required to identify subcontractors who would install the actual HVACR system but not those who would engage in a separate trade by performing the more specialized work of installing building management control systems.

In this appeal the court addressed the predicate state court findings necessary for a federal petition for Special Immigrant Juvenile Status (SIJS). Specifically, a state court must analyze the five prongs of the federal regulations set forth in 8 C.F.R. § 204.11(c) (2020) under state law before an applicant can file a petition to the United States Citizenship and Immigration Services (USCIS) for SIJS. The trial court erroneously concluded that a child was not dependent on New Jersey courts due to the existence of a Canadian custody order that awarded custody to plaintiff, her paternal grandmother a New Jersey resident who registered the Canadian custody order in New Jersey pursuant to the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA), N.J.S.A. 2A:34-79.

The court disagreed with the trial court's determination that "the juvenile is not dependent on this court and has not been placed in the custody of an agency or individual appointed by this court." The trial court here used the conjunction "and," but the federal regulations and federal statute use the disjunctive "or."

Specifically, prong two provides that the state court must determine whether the "juvenile is dependent on the court or has been placed under the custody of an agency or an individual appointed by the court." H.S.P., 223 N.J. at 210 (referring to 8 C.F.R. § 204.11(c)(3) (2020); 8 U.S.C. § 1101(a)(27)(J)).

The court reversed and remanded the matter to the Family Part for further proceedings

Petitioner Diane Lapsley appealed from an order of a judge of compensation concluding that injuries she sustained in a February 3, 2014 accident arose out of and in the course of her employment as a Sparta Township librarian pursuant to the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -146. After clocking out and exiting the library premises, petitioner was struck by a snowplow in an adjacent parking lot that happened to be owned by the township. The compensation judge concluded that petitioner's injuries were compensable pursuant to the premises rule, N.J.S.A. 34:15-36, which provides that "[e]mployment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment, excluding areas not under the control of the employer . . . ."

The court held that a mechanical application of the premises rule in the context of a public-entity employer deviates from well-settled principles applicable to private employers and invites an overbroad and unwarranted expansion of public-entity liability for workers' compensation claims. The court identified employer-directed control of an employee's use of a parking lot as a critical element in the application of the premises rule. See Novis v. Rosenbluth, 138 N.J. 92, 93 (1994). An injury will be compensable if it is sustained while the employee is using the lot where the manner of ingress or egress is dictated by the employer, or in an area where the employee parks at the employer's direction. Conversely, use of a shared parking lot that accommodates multiple tenants, without specific instruction from an employer, is not sufficient to satisfy to the premises rule.

The stipulated facts of this case established that petitioner's employer exercised no control of its employee's use of the common-use parking lot. Petitioner was off-the-clock at the time of the accident and had exited the library premises. Library employees were not given any instructions about where in the subject lot to park or indeed whether to park in that particular lot, on the street, or anywhere else in town where parking may be available. Nor were library staff instructed on the manner of ingress or egress. The lot was shared with other municipal employees and members of the public alike.

Under these facts, the court concluded that there was no reasoned basis to depart from the general rule that the library's "use" of the common-use parking lot for its employees' benefit was not sufficient to satisfy the premises rule. Accordingly, the court reversed the compensation judge's order finding the accident was compensable.

The tax court entered an October 18, 2019 judgment affirming tax assessments on approximately 4036 acres of watershed land owned by plaintiff City of Newark situated in defendant Township of Jefferson for the tax years 2009 to 2019. City of Newark v. Twp. of Jefferson, 31 N.J. Tax 303, 311-18 (Tax 2019). Rejecting the expert testimony of both parties' appraisers, the tax court found while plaintiff may have overcome the presumption of the correctness of the assessments, it failed to maintain its burden of proof to modify the assessments.

This court reversed, holding the assessment was defective and not entitled to the presumption of validity because it was primarily based on a settlement discussion rather than the value of the property. The assessment was also problematic because the assessor relied on another sale he failed to verify. The tax court made no findings regarding the validity of the assessment methodology and the record does not support its validity. The court remanded the matter for reconsideration and further findings on this issue and directed the tax court to make an independent finding of the value of the property for tax purposes.

This litigation arises out of the lease of a building in which defendants-tenants intended to open a restaurant. The lease agreement contemplated an extensive rebuilding and repair of the premises. During the renovations, plaintiffs-landlord raised numerous issues regarding the quality of the construction. They eventually instituted suit seeking the termination of the lease and imposition of a forfeiture as well as an increase in rent. After a bench trial, the Chancery court entered judgment in favor of defendants, finding plaintiffs' claims meritless.

Nevertheless, the Chancery court considered plaintiffs' application for counsel and expert fees. The Chancery court determined there was no contractual or statutory basis for an award of fees. The trial court also recognized that defendants relied on their professionals – architects and engineers – as well as the municipal officials who approved the construction, issued permits and a certificate of occupancy. However, because "the safety of the public" was compromised by the faulty construction, the Chancery court found that equitable principles demanded the remedy of counsel fees. Therefore, in determining an award of fees was warranted by principles of equity, the trial court awarded plaintiffs nearly $1,000,000 in counsel and expert fees.

This court concluded that the general concept of public safety has not been recognized as an exception to the American rule and the policy preventing fee-shifting. There was no statutory or contractual basis for the award nor did the litigation fit into any exception under Rule 4:42-9. In addition, the Chancery court found defendants had not acted willfully or engaged in any intentional misconduct. Therefore, the panel concluded the award was not supported by equitable principles. The order granting counsel and expert fees is reversed.

In this appeal, the court held that an in-house attorney employed under a multi-year contract, and who was subject to termination based only on cause as defined in the agreement, was not precluded by Rule of Professional Conduct 1.16 to pursue contractual damages if wrongfully discharged. In reaching this decision, the court followed similar holdings in Nordling v. Northern State Power Co., 478 N.W.2d 498 (Minn. 1991), and Karstetter v. King County Corrections Guild, 444 P.3d 1185, 1191 (Wash. 2019), and found factually distinguishable the decision in Cohen v. Radio-Electronics Officers Union, Dist. 3, 146 N.J. 140 (1996), which limited an attorney's award of damages for a breach of contract to quantum merit.

In addition, the court concluded the trial court's award of $260,026.88 in damages was supported by sufficient credible evidence and made in accordance with applicable law. The court, however, remanded for the trial court to apply prejudgment interest to the damages award.

In this appeal, the court held that an in-house attorney employed under a multi-year contract, and who was subject to termination based only on cause as defined in the agreement, was not precluded by Rule of Professional Conduct 1.16 to pursue contractual damages if wrongfully discharged. In reaching this decision, the court followed similar holdings in Nordling v. Northern State Power Co., 478 N.W.2d 498 (Minn. 1991), and Karstetter v. King County Corrections Guild, 444 P.3d 1185, 1191 (Wash. 2019), and found factually distinguishable the decision in Cohen v. Radio-Electronics Officers Union, Dist. 3, 146 N.J. 140 (1996), which limited an attorney's award of damages for a breach of contract to quantum merit.

In addition, the court concluded the trial court's award of $260,026.88 in damages was supported by sufficient credible evidence and made in accordance with applicable law. The court, however, remanded for the trial court to apply prejudgment interest to the damages award.

In this appeal, the court addressed the judicial review of a prosecutor's decision to deny a defendant's request for a waiver of the Graves Act mandatory minimum term of parole ineligibility pursuant to N.J.S.A. 2C:43-6.2. In State v. Andrews, 464 N.J. Super. 111 (App. Div. 2020), the court recently held that a prosecutor's disparate treatment of similarly situated defendants can be a relevant consideration as part of the robust judicial review of prosecutorial discretion. In Andrews, the prosecutor failed to address the trial judge's concerns regarding other cases where Graves Act waivers were granted. In the present appeal, in contrast, the prosecutor proffered specific reasons for distinguishing defendant Rodriguez from the other defendants identified by the trial judge who had previously been granted a Graves Act waiver. The court identified several basic principles to guide a trial judge in determining whether other defendants are similarly situated to the defendant challenging the prosecutor's decision to deny a waiver. Applying those principles, the court concluded that defendant failed to establish that the prosecutor acted in an arbitrary or discriminatory fashion. The court further concluded that defendant failed to establish that the prosecutor's decision in this case constituted a patent and gross abuse of discretion.

The trial court determined that a board of education's decision to certify tenure charges against plaintiff in private violated her alleged right to demand a public proceeding. The school district's appeal pitted that part of the Tenured Employees Hearing Law, N.J.S.A. 18A:6-10 to -25, which declares a charge against a tenured employee "shall no" be discussed by a board of education "at a public meeting," N.J.S.A. 18A:6-11, against that part of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21, which permits a public body to exclude the public from personnel discussions "unless" the affected employee "request[s] in writing that the matter . . . be discussed at a public meeting," N.J.S.A. 10:4-12(b)(8). Because the Legislature's broad strokes in the Open Public Meetings Act were expressly subjected to exceptions existing in other legislation, N.J.S.A. 10:4-12(b)(1), and because tenured employees have other greater procedural rights than non-tenured employees, the court held that N.J.S.A. 18A:6-11's unambiguous declaration that such proceedings "shall not" take place in public – enacted nineteen days after enactment of the Open Public Meetings Act – demonstrates that the Legislature did not intend to allow tenured board-of-education employees the right – granted other public employees by N.J.S.A. 10:4-12(b)(8) – to demand a public hearing. For that reason, defendant was not required to serve this tenured employee with a Rice notice, see Rice v. Union Cnty. Reg'l H.S. Bd. of Educ., 155 N.J. Super. 64 (App. Div. 1977), which serves the purpose of advising public employees of their right to demand a public hearing via N.J.S.A. 10:4-12(b)(8).

In this appeal, the court considers whether words and gestures directed to a domestic violence complainant, by way of a consensually-activated home security camera, violated the strictures of the restraining order issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. During the plea hearing, the Family Part judge sua sponte rejected defendant's factual basis for the disorderly persons offense of contempt for violating the restraining order and dismissed the complaint. The judge found as a matter of law that defendant did not knowingly violate the restraining order. Instead, the judge concluded the electronic transmission of defendant's comments and lewd gesture to his estranged wife during his parenting time, were not expressly prohibited under the restraining order and, as such, defendant did not knowingly "contact" his estranged wife.

Although the restraining order did not expressly prohibit defendant from directing remarks to – or making gestures at – his estranged wife via the home security camera, the order expressly prohibited defendant from "having any oral" or "electronic, or other form of contact or communication with [her]." Because defendant directed his comments and gesture to his estranged wife, by way of a camera that was specifically activated so that she could observe his parenting time, defendant was aware of the high probability that she would hear his comments and observe his lewd gesture. Accordingly, this court vacated the trial judge's order and remanded for reinstatement of the complaint.

Following a jury trial, defendant was convicted of sexual assault related offenses stemming from the sexual abuse of his daughter from the time she was five to the time she was twelve years old. The victim reported the molestation to police when she was thirty-one years old and, four years earlier, disclosed the abuse to her sister-in-law who testified at trial that the disclosure seemed credible to her because of defendant's "weird vibes" and her "intuition." During the investigation, detectives conducted a lengthy interrogation of defendant following the administration of Miranda warnings. In his recorded statement, despite repeated denials of the allegations, defendant made incriminating admissions relying on the fact that the victim had said "it happened." During the trial, after detailing his training and experience conducting interrogations, the interrogating detective assessed the veracity of defendant's denials during questioning after the recorded statement was played for the jury. Defendant produced eight character witnesses, each of whom testified at trial about his impeccable reputation in the community and was asked on cross-examination whether the witness' opinion of defendant would change if he or she knew that defendant had admitted to police inappropriately touching his daughter, the very allegations that were the subject of the trial.

The court reversed the convictions, reasoning that the evidentiary errors raised by defendant for the first time on appeal, either in isolation or in combination, were clearly capable of producing an unjust result pursuant to Rule 2:10-2 in the circumstances of the case. Specifically, the court found that the detective's testimony, which clearly conveyed the impression that defendant was being deceptive during questioning and, given the detective's expertise, impermissibly colored the jury's assessment of defendant's credibility, constituted impermissible lay opinion mandating reversal notwithstanding the trial judge's sua sponte curative instruction. Additionally, the testimony of the victim's sister-in-law did not satisfy the reasonable time requirement of the fresh complaint rule and injected inferential propensity evidence into the case in violation of N.J.R.E. 404. Finally, the prosecutor's inquiry into defendant's character witnesses' knowledge of defendant's alleged criminal conduct not evidenced by a criminal conviction was impermissible under N.J.R.E. 608 and 405.

In 1996, when he was sixteen years old, defendant fatally shot his mother. Defendant was waived to the Law Division, tried as an adult, and convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Following merger, defendant was sentenced to life imprisonment subject to a thirty-year period of parole ineligibility. The court has previously affirmed the conviction and sentence on direct appeal and the denial of four petitions for post-conviction relief.

In May 2013, defendant moved to correct an illegal sentence under Rule 3:21-10(b)(5). He argued that the sentencing court did not consider his youth and associated mitigating factors and that his life term deprived him of an opportunity to earn his release through demonstrated maturity and rehabilitation. He further argued that it is likely that he will serve much longer than thirty years because the State Parole Board can repeatedly deny parole even if demonstrated maturity and rehabilitation.

Defendant further argued that mere eligibility for parole does not amount to a meaningful opportunity for release because the State Parole Board regularly contravenes the intentions and expectations of sentencing judges, thereby overruling sentencing decisions and usurping the power of sentencing judges. Defendant asserted that the State Parole Board's decision-making process is statutorily and constitutionally deficient because it is not required to consider the court-accepted brain science that children are constitutionally different and not deserving of the most severe punishments.

Defendant claimed he was entitled to resentencing under State v. Zuber, 227 N.J. 422 (2017), and Article I, Paragraph 12, of the New Jersey Constitution, which prohibits "cruel and unusual punishments" Defendant will be eligible for parole in 2026 at age forty-seven.

The court affirms the denial of defendant's Rule 3:21-10(b)(5) motion to correct an illegal sentence, holding that defendant's sentence is not illegal or the functional equivalent of life without parole. The court adheres to the holding in State v. Bass, 457 N.J. Super. 1 (App. Div. 2018), concluding that defendant is not entitled to resentencing under Zuber, even though the sentencing court had not considered the factors enumerated in Miller v. Alabama, 567 U.S. 460, 477-78 (2012), when it imposed the sentence. Any rehabilitative actions undertaken by defendant while incarcerated were matters for the State Parole Board to consider and did not render the sentence unconstitutional. The court thus rejected defendant's argument that he is entitled to resentencing under Zuber.

The court also holds that defendant's challenges to the parole process are not ripe since he is still serving the statutorily mandated thirty-year period of parole ineligibility and is not yet eligible for parole. The court notes that if defendant is eventually denied parole and receives a future eligibility term, he may appeal that decision and challenge the constitutionality of the statutory and regulatory framework governing parole at that time.

Plaintiff appeals the trial court's denial under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, to his right of his access to various records, including his own Rutgers University graduate student records, and his request for attorney's fees and costs (collectively "attorney's fees").

The court concludes OPRA only allows plaintiff to obtain copies of his own academic transcripts, discipline records, and financial records subject to redaction to preclude the identity of other students. The court remands for the trial court to determine whether plaintiff is entitled to any attorney's fees related to his efforts to obtain these records.

The court also remands for the trial court to issue findings of facts and conclusions of law regarding plaintiff's entitlement to attorney's fees related to defendants' voluntary release of information pertaining to specific university professors' and administrators' disclosable records. No position is taken as to whether plaintiff is entitled to any attorney's fees that shall considered on remand. All other aspects of the trial court's order are affirmed.

The court holds that a grand jury witness, including a law enforcement witness, has absolute immunity from a civil rights claim under New Jersey law for grand jury testimony that is alleged to have omitted relevant information. Accordingly, the court adopts and applies to the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, the ruling by the United States Supreme Court in Rehberg v. Paulk, 566 U.S. 356, 367-69 (2012), which held that a witness testifying before a grand jury has absolute immunity from a civil rights claim under 42 U.S.C. § 1983. The court did not decide whether a witness who lies to a grand jury has absolute immunity because there was no evidence that the witness in this case lied.

Consequently, the court affirmed an order granting summary judgment to a detective who was alleged to have violated the NJCRA in a civil action by failing to tell a grand jury certain information that may have raised questions about an eye witness' identification of a criminal defendant who was later acquitted at trial.

In this criminal appeal, defendant principally contends the trial judge should not have admitted opinion testimony from a police officer and a civilian eyewitness estimating the range of heights and ages of children they had observed near defendant in a public park. The witnesses saw the group of children, accompanied by several adults, playing on equipment in a playground. The State relied on their testimony to prove that one or more of the children was under the age of thirteen, a statutory grading element of the charged offenses of lewdness and sexual assault by contact.

The trial court rejected defendant’s contention that the opinion testimony was too speculative to be considered by the jury. On appeal, defendant reiterates this argument, contending as a general proposition that witnesses commonly misjudge the ages and heights of other persons.

For the reasons that follow, we affirm the court’s evidentiary ruling. In the circumstances presented, the two witnesses had an adequate opportunity to view the physical characteristics and activities of the group of children to enable them to provide lay opinions under N.J.R.E. 701 about the perceived ranges of the children’s heights and ages.

Although we appreciate the inherent risks of imprecision and mistake when eyewitnesses estimate the heights or ages of other persons, such lay opinions nonetheless may be admissible under Rule 701 and helpful to the trier of fact, subject of course to cross-examination and other forms of impeachment.

In evaluating the admissibility of such evidence, a court should consider a variety of factors, such as (1) distance, (2) length of time of the observation, (3) any observed activity of the person, (4) physical comparisons with the height or size of nearby objects or other persons, (5) whether the eyewitness attests to a range rather than a specific height or age, (6) whether the observed individual has a comparatively similar age or height as the witness, (7) whether there is corroborating proof, and (8) the totality of circumstances. In appropriate cases, the court may exclude or limit the opinion testimony in its discretion under N.J.R.E. 403 and, if warranted, provide jurors with a limiting or cautionary instruction.

Because it is contrary to the Supreme Court’s evidence rules and case law governing lay opinion, we decline to apply the 1916 categorical pronouncement of the Court of Errors and Appeals that age “is not within the category of things . . . which . . . can be proved by opinion testimony."State v. Koettgen, 89 N.J.L. 678, 683 (E. & A. 1916), discussed in Part II, infra. Rather, we apply a contextual, case-by-case analysis of admissibility of such proof consistent with our modern Rules of Evidence and prevailing case law principles.

In this criminal appeal involving a high speed vehicular pursuit of a fleeing suspect, the court affirmed the trial court's decision to preclude defendant from using the Attorney General's Guidelines on Vehicular Pursuit of a Fleeing Suspect as substantive evidence on the issue of causation in the aggravated assault while eluding arrest charge under N.J.S.A. 2C:12-1(b)(c). The court agreed with the trial court that the jury might confuse deviation from the Guidelines with causation and its prejudicial value outweighed its probative value.

The Guidelines were properly permitted to be utilized by defendant during cross-examination for the limited purpose of impeachment.

This medical negligence case arises from a 2011 surgery that defendant Dr. David Nenna performed on plaintiff to remove surgical hardware from a prior surgery. Four years later plaintiff discovered defendant left three washers in his leg.Due to medical concerns, however, plaintiff who is a paraplegic, was unable to have a second surgery to remove the hardware.

Plaintiff did not claim any physical pain or limitation as a result of the retained washers. Rather, plaintiff sought to recover damages only for the emotional distress caused by knowing surgical washers were in his leg that could not be removed. In support of his claim for damages, he provided a certification briefly describing his mental anguish, as to which he would testify at trial. The trial judge granted defendant's motion for summary judgment finding plaintiff had failed to establish emotional distress damages because he did not provide supporting medical or expert proof.

The court held that emotional distress damages ordinarily must be supported by medical or expert proof. Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 235-36 (App. Div. 2014). There are two exceptions to this general rule. The first exception is for cases involving intentional torts such as racial or sexual discrimination. Where a tortfeasor's conduct is willful, the Court has explained "the victim may recover all natural consequences of that wrongful conduct, including emotional distress and mental anguish damages . . . ." Tarr v. Ciasulli,181 N.J. 70, 82 (2003).

The second exception are cases in which "[t]he nature of [the] particular harm mitigates against the reason for an enhanced standard of proof in the first instance – the elimination of spurious claims." Innes, 435 N.J. Super. at 236. For example, medical or expert proof has not been required when plaintiffs have suffered from malicious use of process, Baglini v. Lauletta, 338 N.J. Super. 282, 307 (App. Div. 2001), wrongful birth arising from inadequate genetic counselling, Geler v. Akawie, 358 N.J. Super. 437, 457 (App. Div. 2003), and where a funeral home failed to ensure that orthodox ritual requirements were met. Menorah Chapels at Millburn v. Needle, 386 N.J. Super. 100, 116 (App. Div. 2006).

After only physically inspected the properties and examining the assessment records and tax map, plaintiffs purchased tax sale certificates on vacant lots in Brick Township. They paid accruing taxes and bided their time until entitled to commence foreclosure actions. Once their foreclosure actions were underway, plaintiffs finally obtained title searches and learned the properties were encumbered by a conservation easement, which rendered the properties undevelopable. That discovery prompted plaintiffs to commence these actions, seeking rescission of their tax sale certificate purchases and reimbursement of taxes paid. The chancery judge granted summary judgment in favor of Brick Township, and in distinguishing Twp. of Middletown v. Simon, 193 N.J. 228 (2008), the court affirmed because, unlike Middletown's conduct there, Brick Township's tax assessor was as much in the dark about the conservation easement as plaintiffs and, unlike Middletown, the township took no active steps to deprive plaintiffs of the value of their investments.