Published Appellate Court Opinions

The sole issue presented in plaintiff's appeal from the grant of summary judgment to defendants is whether the Casino Control Act, which grants the Division of Gaming Enforcement authority to regulate gaming-related advertising, N.J.S.A. 5:12-70(a)(16), preempts plaintiff's Consumer Fraud Act (CFA) and common law claims alleging a casino hotel falsely advertised a poker tournament. Based on its review of the two statutes, and relevant case law, including the Supreme Court's test for determining preemption of the CFA in Lemelledo v. Beneficial Management Corp.,

A municipal board of education (BOE) challenged the grant of a use and bulk variances by a local zoning board of adjustment (ZBA) to permit construction of multi-family residential structures. The BOE alleged it had standing to bring the suit because the additional families would further tax an already overcrowded school district. In addition, the BOE argued that the ZBA violated the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, because it failed to include on its meeting agenda any item reflecting its intention to adopt a memorializing resolution. The trial court rejected these arguments, and this court affirmed.

The court concluded that the BOE lacked standing, because it was not an "interested party," N.J.S.A. 40:55D-4, based on a generalized claim that more families might overburden the school district. The court also concluded that the ZBA did not violate the OPMA, because it included the particular meeting as a "special meeting" on its annual published notice of meetings. See Witt v. Gloucester Cty. Bd. of Chosen Freeholders, 94 N.J. 422, 433 (1983) (holding that "[p]ublication of an agenda . . . is required only in those instances where no annual notice has been provided in accordance with N.J.S.A. 10:4-18

In these consolidated pretrial detention appeals, the court concludes that the Criminal Justice Reform Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26, does not authorize a court to detain arrestees who are undocumented immigrants in order to thwart their potential removal from the country by federal immigration officials. Construing the Act in light of its legislative history and persuasive federal authority, the court concludes the risk of a defendant's failure to appear justifying detention must arise from the defendant's own misconduct, not the independent acts of a separate arm of government that may prevent a defendant from appearing. Inasmuch as the trial court detained defendants in part out of concern that their possible removal from the country would prevent their appearance at trial, the detention orders are reversed and the matters remanded for reconsideration.

The Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26, strikes a balance: it authorizes the pretrial detention of persons charged with serious crimes who pose a risk of flight, danger, or obstruction that cannot be offset by conditions, but guarantees such detained persons the right to a speedy trial. A defendant cannot be detained for more than 180 days after indictment and the start of trial, unless the court finds (1) defendant's release would pose a "substantial and unjustifiable risk" to the safety of a person or the community;and (2) the failure to commence trial was not due to unreasonable delays by the prosecutor. N.J.S.A. 2A:162-22(a)(2)(a).

In this appeal the court holds that the trial court properly exercised its discretion in balancing the risk to the community and defendants' right to a speedy trial when it ordered the release of two defendants three years after they had been detained and found that the failure to commence the trial was due to unreasonable delays caused by the State.

After the Salem County Hospital Corporation (SCHC) filed an application for a certificate of need (CN) to transfer ownership of the Memorial Hospital of Salem County, intervenors Carneys Point Rehabilitation and Nursing Center and Golden Rehabilitation and Nursing Center objected to SCHC's requests within that application to convert thirty existing medical/surgical beds to long-term care (LTC) beds and implement a previously approved CN for twenty-six psychiatric beds. Intervenors argued that with regard to the LTC beds: 1) SCHC's application was not filed in accordance with N.J.A.C. 8:33-4.1(a), which requires a finding by the Commissioner that a need exists for such beds in the area and the issuance of a call notice inviting competing applications from other providers in the area, and 2) the administrative record failed to establish a need for LTC beds. They also contended that with respect to the psychiatric beds, N.J.A.C. 8:33-3.3(j) prohibited the transfer of a previously unimplemented CN subject to exceptions which were inapplicable in this case.

The Commissioner granted SCHC's application for transfer of ownership as well as its requests for the LTC and psychiatric beds. It concluded that with regard to the LTC beds, "the addition of [thirty] LTC beds will have a minimal impact on the health care system as a whole and will contribute to the financial viability of Salem Hospital." With respect to the psychiatric beds, the Commissioner noted that the November 17, 2017 CN approval letter "addressed the requirements of N.J.S.A. 26:2H-8(a) [to] (f)" and incorporated that analysis by reference.

The court concludes that, despite the general deference owed to administrative agencies on appeal, the Commissioner failed to apply the relevant statutory factors to determine that there was a need for LTC beds in Salem County and he improperly awarded those beds without issuing a call notice in the New Jersey Register inviting competing applications for the provision of LTC beds. Further, even if the Commissioner's final decision can be interpreted as having determined a need for LTC beds in the area, the record contained insufficient support for such a finding. The court also concludes that the Commissioner was required to conduct an independent analysis of the actual need for a proposed service regardless of whether the transaction has an otherwise meritorious purpose, such as to support a hospital's financial viability. The court agrees, however, with the Commissioner's approval of the open adult acute care psychiatric beds to SCHC consistent with an unimplemented CN.

In this appeal, the court considered the trial judge's handling of a plaintiff's mid-trial request for a twenty-four-hour adjournment or a mistrial when plaintiff's medical witness unexpectedly failed to appear to testify. The judge denied plaintiff's request for any form of relief and granted defendant's motion for involuntary dismissal pursuant to Rule 4:37-2(b), resulting in the dismissal of plaintiff's personal injury complaint with prejudice

The court holds that the judge's denial of an adjournment or a mistrial under the circumstances constituted a mistaken exercise of discretion. Because plaintiff's claim was completely dependent upon the non-appearing witness's testimony and plaintiff's inability to produce the witness was not the result of inexcusable neglect or willful failure, the court determines that the judge should have afforded some measure of relief to prevent the irretrievable loss of the claim and infringement of plaintiff's substantial rights. Accordingly, the court reverses the dismissal order and remands for a new trial.

A resident of a rooming house was stabbed to death by another resident. The assailant had recently been released from prison for a violent crime, although the rooming house owner and operator were not aware of that criminal history.

The decedent's estate brought a wrongful death and survival action against the rooming house owner and operator, arguing they had a duty to conduct a criminal background check before allowing the assailant to reside on the premises. The Law Division judge rejected that argument, and granted summary judgment to the defendants.

The court affirms, agreeing with the motion judge that the owner and operator of a New Jersey rooming house have no statutory or common-law duty to conduct criminal background checks of prospective new residents.

No statute or regulation in the State or opinion from another state has recognized such a duty. The imposition of such a duty also could have significant pubic ramifications.

Defendant was convicted of first-degree kidnapping, conspiracy to kidnap,and felony murder, and sentenced to a sixty-year prison term. In her appeal, defendant raised numerous issues regarding her convictions as well as the sentence imposed.

The court first agreed that the jury's verdict could only be understood as supporting a conviction of second-degree kidnapping, not first-degree kidnapping for which she was sentenced, because the jury was not asked to determine whether defendant "release[d] the victim unharmed and in a safe place prior to apprehension."N.J.S.A. 2C:13-1(c)(1). The court, however, rejected defendant's argument that a new trial was required, holding instead, in accord with State v. Casilla, 362 N.J. Super. 554 (App. Div. 2003), that the verdict simply had to be molded to reflect a conviction of second-degree kidnapping.

Second, while the molding of the kidnapping conviction required resentencing, the court also mandated resentencing – and before a different judge – because the judge based the sentence on his declaration, based on his own understanding of the evidence, that defendant "ordered [the victim's] execution" even though the jury acquitted defendant of both first-degree murder and conspiracy to commit murder. The court held that, while federal constitutional principles may permit an enhancement of a sentence based on conduct for which the defendant was acquitted, see United States v. Watts, 519 U.S. 148 (1997), New Jersey constitutional principles do not. Because an acquittal means the State failed to overcome the accused's presumption of innocence – leaving the accused's innocence "established," State v. Hill, 199 N.J. 545, 559 (2009) – the sentencing judge here violated defendant's due process rights and her right to trial by jury by disregarding the jury's acquittal verdict and enhancing the sentence because of his personal own view of the evidence.

This appeal requires the court to determine whether the assignment judge correctly granted defendant's motion to overrule the State's rejection of his petition for a Graves Act waiver pursuant to N.J.S.A. 2C:43-6.2, "which embodies the so called 'escape valve' to the mandatory sentence requirements otherwise embodied in the Graves Act," N.J.S.A. 2C:43-6(c). State v. Alvarez, 246 N.J. Super. 137, 139 (App. Div. 1991). In granting defendant's application, the assignment judge concluded that based on the disparity in the prosecutor's treatment of similarly situated defendants and the discrepancy in the State's assessment of defendant's criminal record, defendant demonstrated "'arbitrariness constituting an unconstitutional discrimination or denial of equal protection' in the prosecutor's decision," State v. Benjamin, 228 N.J. 358, 372 (2017) (quoting Alvarez, 246 N.J. Super. at 148), that fell within the Alvarez proscription. The judge explained that while Benjamin precluded defendants challenging the denial of a Graves Act waiver from obtaining discovery of prosecutorial decisions in cases other than their own, as the judge responsible for reviewing all waiver cases, he was in the best position to determine whether the Alvarez standard had been violated. The court affirms the judge's decision and rejects the State's challenge. The court is satisfied that the judge's robust review and analysis were sound, and fulfilled the role contemplated in Benjamin, to "ensure[] that prosecutorial discretion is not unchecked." 228 N.J. at 373.

Plaintiff commenced this collection action in July 2009, and in 2010 obtained a default judgment that defendant did not seek to vacate, under Rule 4:50, until 2018. The trial judge conducted an evidentiary hearing and found plaintiff's claim accrued no later than March 2004 – more than four years before the complaint was filed – meaning the action was time-barred when filed, N.J.S.A. 12A:2-725(1), and plaintiff's filing of the action violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 – 1692p. The judge, however, also determined that defendant's failure to respond to the complaint or plaintiff's post-judgment collection efforts was inexcusable. Balancing these circumstances, the trial judge concluded defendant was entitled to relief from the judgment and dismissal of the complaint.

In affirming, the court held that the judge's decision to vindicate the federal policy in favor of curbing "abusive debt collection practice" rather than the state interest in the finality of judgments was not an abuse of discretion.

In these appeals, the court holds, as a matter of first impression, that a valid grand jury subpoena is sufficient to obtain prescription drug information maintained in New Jersey's Prescription Monitoring Program (PMP) when law enforcement personnel are investigating a prescriber.

Plaintiff filed a complaint against defendants Millville and its police department under OPRA, N.J.S.A. 47:1A-1 to -13, seeking copies of DWI/DUI, drug possession, and drug paraphernalia summonses and complaints issued by Millville police officers. The trial judge granted relief but the court reversed. The court observed that the creation of a complaint-summons starts with a police officer – at the direction of the Attorney General – inputting information into an electronic system created and maintained by the Administrative Office of the Court. Once completed, the complaint-summons is retained by the municipal court, whose authority falls under the aegis of the judiciary. The court therefore held that the municipality and its police department are not the custodians of these records and they could not be compelled to search for and turnover these records in response to an OPRA request.

Defendants appeal the Chancery Division's denial of their motion to vacate a default judgment of mortgage foreclosure. Defendants' house was severely damaged by Superstorm Sandy, and they ceased paying their mortgage loan.

Defendants filed a federal lawsuit against their flood insurance company and homeowners' insurer policies, seeking payment for the storm damage. They named the mortgage holder as a co-defendant, claiming the storm extinguished their obligation to pay the mortgage. The federal court dismissed the complaint against all three defendants.

The mortgage holder's successor then filed the present state-court foreclosure action. Defendants defaulted and final judgment was entered against them. Defendants argue the foreclosure action was barred under the Entire Controversy Doctrine, because the mortgagee had the opportunity to file a counterclaim for foreclosure in the previous federal action.

This court affirms the Chancery judge's ruling that the foreclosure action was not barred by the Entire Controversy Doctrine.

The federal case seeking insurance payments lacked a sufficient nexus to the mortgage to preclude the foreclosure case. In addition, the mortgage holder's contractual right to direct the use of any insurance proceeds does not eliminate the mortgage debt or the right to foreclose on the defaulted loan.

The biological mother of two children appeals from the Judgment of Guardianship entered by the Family Part terminating her parental rights to her two sons. The judge assigned to manage this case made the decision to terminate appellant's parental rights after conducting a one-day trial in which she was not present nor represented by counsel. At the first case management conference, appellant complained to the judge about her inability to communicate with the attorney assigned by the Public Defender – Office of Parental Representation (OPR). Without a formal motion or prior notice to appellant, the judge granted OPR counsel's oral application to be relieved as counsel of record for appellant. The judge thereafter told appellant she had only two options: (1) retain private counsel or (2) proceed without a lawyer

This court holds the Family Part violated appellant's constitutional and statutory right to be represented by competent counsel. The trial judge's response to appellant's dissatisfaction with her assigned OPR counsel is irreconcilable with the approach the Supreme Court established in N.J. Div. of Child Prot. & Perm. v. R.L.M. (In re R.A.J.), 236 N.J. 123, 149-51 (2018). This court vacates the Judgment of Guardianship against appellant, and remands for the matter to be tried before a different judge.

Defendant pleaded guilty to two counts of violating N.J.S.A. 2C:40-26(b) by driving during a period of license suspension or revocation for a second or subsequent violation of N.J.S.A. 39:4-50, driving while under the influence, or N.J.S.A. 39:4-50a, refusal to provide a breath sample. The court sentenced defendant on each count to a 180-day term of imprisonment with a 180-day period of parole ineligibility as a condition of serving a two-year probationary term. The court ordered the custodial terms to be served consecutively and the probationary terms to be served concurrently.

Defendant argued his sentences are illegal because the Criminal Code does not authorize a spilt sentence with a term of imprisonment that includes a mandatory period of parole ineligibility. The court disagreed, finding the plain language of N.J.S.A. 2C:43-2(b)(2) authorizes sentences including terms of incarceration as a condition of probation, with the only limitation being the term of incarceration may not exceed 364 days. The court finds that because defendant's individual and aggregate custodial sentences require less than 364 days of imprisonment as a condition of probation, they are authorized by N.J.S.A. 2C:43-2(b)(2) even though the terms of imprisonment include mandatory periods of parole ineligibility.

The court also determined the sentencing court erred by failing to make findings supporting its imposition of consecutive sentences, see State v. Yarbough, 100 N.J. 627 (1985), and by imposing sentences that were both consecutive and concurrent, see State v. Rogers, 124 N.J. 113 (1991). The court remanded for resentencing.

In affirming defendant's conviction for murdering his former girlfriend, the court clarifies that evidence that satisfies a hearsay exception, such as defendant's prior threat to the victim, admissible as a statement of a party opponent, N.J.R.E. 803(b)(1), must also overcome the exclusion of other crimes, wrongs, and acts evidence under N.J.R.E. 404(b), as well as satisfy N.J.R.E. 403. The trial court mistakenly concluded that meeting the hearsay exception provided an independent basis for admitting the prior statement.Notwithstanding that mistake, the appellate court affirms the conviction, because the hearsay statement satisfied the Rule 404(b) test set forth in State v. Cofield, 127 N.J. 328, 338 (1992). In particular, its probative value as evidence of motive was not outweighed by its apparent prejudice.

Defendant pled guilty during trial to aggravated manslaughter. The victim was the boyfriend of his former girlfriend and mother of his daughter. The State introduced text messages defendant sent to her shortly before the homicide, alleging they were threatening and demonstrated defendant's jealous nature. Defendant moved pretrial to suppress the messages seized from her cellphone. Although the State asserted that police obtained consent before searching the phone, it objected to any evidentiary hearing on the issue, arguing that defendant lacked a reasonable expectation of privacy in those text messages and the requisite standing to challenge the search. Without holding an evidentiary hearing, the judge agreed with the State and denied the motion.

The court affirms, concluding that defendant had no reasonable expectation of privacy in the text messages once they were sent and received on another's phone, and that defendant lacked standing to challenge the search because he had no "proprietary, possessory or participatory interest in either the place searched or the property seized." State v. Randolph, 228 N.J. 566, 571 (2017) (quoting State v. Alston, 88 N.J. 211, 228 (1981)).

On leave granted, the New Jersey Department of Health Office of Emergency Medical Services appealed from a July 16, 2019 Law Division order lifting the summary suspension of plaintiff AmeriCare Emergency Medical Service, Inc.'s license to operate as an emergency medical service provider and permitting an action to proceed under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (CRA). Although there is no jurisdictional requirement that administrative remedies be exhausted in order to bring suit under the CRA, the party alleging a claim must show a violation of a substantive right or that someone "acting under color of law" interfered with or attempted to interfere with a substantive right. State v. Quaker Valley Farms, LLC, 235 N.J. 37, 64 (2018). Since AmeriCare could not make that showing without agency adjudication of its administrative claims, the panel reversed the Law Division order.