Published Appellate Court Opinions

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.

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.

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.

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.