Published Appellate Court Opinions

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.

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.

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.

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

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.

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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.

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 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.

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).

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.

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 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.

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.