Published Appellate Court Opinions

In State v. North Beach 1003, LLC, 451 N.J. Super. 214, 223 (App. Div. 2017), this court held that the Department of Environmental Protection (DEP) had the authority to "condemn private property to take perpetual easements for shore protection purposes" as part of the Manasquan Inlet to Barnegat Inlet Hurricane and Storm Damage Reduction Project to reduce flooding in the aftermath of Superstorm Sandy. This court also held that "easements that allow for publicly funded beach protection projects can include public access and use." However, this court expressly did not extend its holding to properties that were protected from flooding by an existing revetment.

In these sixty-seven consolidated condemnation appeals, this court affirmed the trial judge's final judgments upholding DEP's taking of permanent easements where the properties were protected by the revetment. This court agreed with the trial judge's conclusions that DEP properly determined that the revetment provided insufficient protection, and that the taking was not the product of fraud, bad faith, or manifest abuse of power.

In State v. North Beach 1003, LLC, 451 N.J. Super. 214, 223 (App. Div. 2017), this court held that the Department of Environmental Protection (DEP) had the authority to "condemn private property to take perpetual easements for shore protection purposes" as part of the Manasquan Inlet to Barnegat Inlet Hurricane and Storm Damage Reduction Project to reduce flooding in the aftermath of Superstorm Sandy. This court also held that "easements that allow for publicly funded beach protection projects can include public access and use." However, this court expressly did not extend its holding to properties that were protected from flooding by an existing revetment.

In these sixty-seven consolidated condemnation appeals, this court affirmed the trial judge's final judgments upholding DEP's taking of permanent easements where the properties were protected by the revetment. This court agreed with the trial judge's conclusions that DEP properly determined that the revetment provided insufficient protection, and that the taking was not the product of fraud, bad faith, or manifest abuse of power.

In State v. North Beach 1003, LLC, 451 N.J. Super. 214, 223 (App. Div. 2017), this court held that the Department of Environmental Protection (DEP) had the authority to "condemn private property to take perpetual easements for shore protection purposes" as part of the Manasquan Inlet to Barnegat Inlet Hurricane and Storm Damage Reduction Project to reduce flooding in the aftermath of Superstorm Sandy. This court also held that "easements that allow for publicly funded beach protection projects can include public access and use." However, this court expressly did not extend its holding to properties that were protected from flooding by an existing revetment.

In these sixty-seven consolidated condemnation appeals, this court affirmed the trial judge's final judgments upholding DEP's taking of permanent easements where the properties were protected by the revetment. This court agreed with the trial judge's conclusions that DEP properly determined that the revetment provided insufficient protection, and that the taking was not the product of fraud, bad faith, or manifest abuse of power.

Plaintiff alleged defendant violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, by terminating his employment in retaliation for his opposition to defendant's requests that he make false statements concerning, and seek a baseless restraining order against, a co-employee in retaliation for the co-employee's filing of a complaint alleging defendant violated the LAD. The motion court granted defendant summary judgment, finding plaintiff did not present evidence establishing the prerequisite for a LAD retaliation claim under the Supreme Court's decision in Carmona v. Resorts International Hotel, Inc., 189 N.J. 354 (2007). More particularly, the motion court found plaintiff failed to demonstrate there was a good faith and reasonable basis for his co-employee's LAD complaint.

The court reverses the summary judgment order, finding Carmona's good faith and reasonable basis prerequisite for a LAD-retaliation claim applies to the protected activity under N.J.S.A. 10:5-12(d) triggering the alleged retaliatory actions. Unlike the plaintiff in Carmona, plaintiff did not allege he was retaliated by engaging in the protected activity of filing a LAD complaint. See N.J.S.A. 10:5-12(d). Instead, plaintiff alleged he was retaliated against for engaging in protected activity under N.J.S.A. 10:5-12(d) by opposing "acts forbidden under" the LAD—defendant's requests he make false statements and obtain a baseless restraining order against the co-employee in retaliation for her filing of a LAD complaint. The court holds that to satisfy the Carmona prerequisite for his LAD retaliation claim, plaintiff was required to demonstrate he had a good faith and reasonable basis to oppose defendant's requests because he alleged that protected activity triggered the alleged retaliation against him.

These two appeals raise challenges to the use of the Registrant Risk Assessment Scale (RRAS) to determine the risk of re-offense by persons who have been convicted of possessing or distributing child pornography. Defendants both pled guilty to second-degree endangering the welfare of a child by distributing child pornography in violation of N.J.S.A. 2C:24-4(b)(5)(a)(iii). Following the completion of their custodial sentences, they were both found to pose a moderate risk of re-offense and were designated as Tier Two registrants under the Registration and Community Notification Laws, N.J.S.A. 2C:7-1 to -23, commonly known as Megan's Law.

The court rejected the applicability of the ongoing-storm rule, which arbitrarily relieves commercial landowners from any obligation to try to render their property safe while sleet or snow is falling. The court held a commercial landowner has a duty to take reasonable steps to render a public walkway abutting its property—covered by snow or ice—reasonably safe. The court imposed a duty of ordinary care and identified factors to consider when determining whether the landowner breached that duty, emphasizing that reasonableness is the polestar.

The spousal privilege prevents a spouse or partner in a civil union of the accused from testifying against the accused. N.J.S.A. 2A:84A-17(2) and N.J.R.E. 501(2). One exception to the privilege is when "the accused is charged with an offense against the spouse or partner, a child of the accused or of the spouse or partner, or a child to whom the accused or the spouse or partner stands in the place of a parent." N.J.S.A. 2A:84A-17(2)(b) and N.J.R.E. 501(2)(b). The court in this opinion determines that the term "child" in the spousal privilege exception refers to an unemancipated child.

Defendant pled guilty to an accusation charging him with the third degree offense of strict liability vehicular homicide pursuant to N.J.S.A. 2C:11-5.3a.The State agreed to recommend probation conditioned on defendant serving 364 days in the county jail. Mitigating factor five, N.J.S.A. 2C:44-1b(5), allows a judge to consider whether the victim's conduct induced or facilitated the commission of the crime. The trial judge held mitigating factor five was inapplicable in this case as a matter of law because N.J.S.A. 2C:11-5.3d provides: "It shall not be a defense to a prosecution under this section that the decedent contributed to his [or her] own death by reckless or negligent conduct." This court reverses and holds N.J.S.A. 2C:11-5.3d does not preclude a judge from finding and applying mitigating factor five. This court remands the matter for resentencing because the record shows a basis to find mitigating factor five.

Defendant Amy Amzler filed a motion to enforce plaintiff Mark Amzler's alimony obligation, as required under the parties' 2009 matrimonial settlement agreement (MSA). The MSA included an anti- Lepis1 provision, which stated that a "voluntary reduction in income of either party" would not constitute a substantial change in circumstances for the purpose of reviewing the alimony obligation. Plaintiff opposed the motion and filed a cross-motion seeking to modify or terminate his alimony obligation, as he had recently retired, before reaching full retirement age, due to medical issues. The trial court terminated plaintiff's alimony obligation, applying N.J.S.A. 2A:34-23(j)(2), which governs the review of alimony awards where the obligor retires before reaching full retirement age.

As a matter of first impression, the court held that N.J.S.A. 2A:34-23(j)(2) applies only to alimony orders entered after the effective date of the 2014 amendments to the alimony statute. The court relied on Landers v. Landers, 444 N.J. Super. 315, 324 (App. Div. 2016), where it held that N.J.S.A. 2A:34-23(j)(1) applies only to alimony orders established after the effective date of the 2014 amendments. In construing the statute, the Landers court held that although subsection (j)(1) does not explicitly state that it applies only to orders or agreements established after the 2014 amendments, "the particular language used in subsection (j)(3) clarifies the Legislature's intent to apply (j)(1) only to orders entered after the amendments' effective date."2 Id. at 324. In the current matter, the court found that there was no sound basis to depart from its reasoning in Landers and that construing subsection (j)(2) consistent with its construction of subsection (j)(1) conforms to the Legislature's intent in enacting subsection (j). Thus, the court held that N.J.S.A. 2A:34-23(j)(3), which governs the review of final alimony orders or agreements established before the effective date of the 2014 amendments to the alimony statute, is applicable to this case. Accordingly, the court vacated the orders under review and remanded the matter to the trial court to reconsider the parties' applications, applying the correct

1 Lepis v. Lepis, 83 N.J. 139 (1980).2 Subsection (j)(3) provides that it applies when "there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act." N.J.S.A. 2A:34-23(j)(3).

provision of the statute and considering whether the anti-Lepis provision in the MSA prohibits a reduction of plaintiff's alimony obligation.

Following defendant's guilty plea for accepting a $300 bribe while employed with the Jersey City Tax Assessor's Office, the State filed a complaint and order to show cause seeking the complete forfeiture of defendant's pension benefits pursuant to N.J.S.A. 43:1-3.1. Defendant principally argued that forfeiture of his entire pension (which he was already receiving) was an excessive fine in violation of the Eighth Amendment of the United States Constitution and Article I, Paragraph 12 of the New Jersey Constitution.

The trial court concluded that defendant's federal conviction mandated a complete pension forfeiture and did not violate the Excessive Fines Clause as receipt of pension benefits was a contractual arrangement between a public employee and employer conditioned on rendering honorable service, as opposed to a property right, and thus did not constitute a fine. The court concludes, contrary to the trial court, that defendant's right to receive pension benefits was a property right and the total forfeiture of his pension was a fine within the meaning of the Eighth Amendment. Although the trial court did not address whether the forfeiture was unconstitutionally excessive, the court concludes defendant's conduct was sufficiently egregious to warrant a complete pension forfeiture and did not violate the Eighth Amendment.

The court holds that a career service employee who is disciplined by an appointing authority for violating the New Jersey State Policy Prohibiting Discrimination in the Workplace (State Policy), N.J.A.C. 4A:7-3.1, may not appeal directly to the Civil Service Commission (Commission), but instead must first appeal either in a departmental hearing or, if applicable, in accordance with the procedure in a collective negotiations agreement. The court interprets the plain language of N.J.A.C. 4A:7-3.2(n) and N.J.A.C. 4A:7-3.2(n)(3) to permit a direct appeal to the Commission from a finding an employee violated the State Policy only where no discipline is imposed.

For the first time in this appeal, the biological mother of a five-year-old child argues the judgment of guardianship, which terminated her parental rights, must be vacated and the case remanded for a new trial because the resource parent, with whom the Division of Child Protection and Permanency (DCPP) placed the child, worked as a domestic violence liaison in the district office that was responsible to investigate and manage this case from its inception. At oral argument, this court requested supplemental briefs from the parties exclusively on this issue.

This court holds the DCPP violated the Conflict of Interest Law, N.J.S.A. 52:13D-12 to -27, and the ethical standards and protocols promulgated by the Department of Children and Families in its Policy Manual when it failed to transfer this case to another regional office based on the resource parent's assignment as a domestic violence liaison. The Division's failure to take timely and effective action to address this material conflict of interest tainted the management of this case from its incepti.

Independent of this ethical transgression, the Family Part judge who presided over this trial did not: (1) make credibility findings regarding the biological mother's testimony, (2) identify which of the two psychologists who testified as expert witnesses he found more persuasive, or (3) incorporate the opinions offered by the experts in his analysis of the four statutory prongs in N.J.S.A. 30:4C-15.1(a). This court remands this matter for the judge to conduct a plenary hearing to determine whether reunification with her biological mother is in the child's best interest at this stage of her emotional, psychological, and cognitive development. The judge must assess what psychological and/or emotional harm the child may suffer if she were to be removed from the custody of the resource parent and returned to the physical custody of her biological mother.

Finally, pursuant to N.J.S.A. 52:13D-21(h), this court directs the Appellate Division Clerk's Office to forward a copy of this opinion to the State Ethics Commission Office.

In this consolidated appeal, Delaware Riverkeeper Network, Maya Van Rossum and Delaware Riverkeeper in one appeal, and Stony Brook-Millstone Watershed Association, Save Barnegat Bay, Raritan Headwaters Association, NY/NJ Baykeeper, Hackensack Riverkeeper and Association of New Jersey Environmental Commissions in the other, challenge the issuance of the Tier A municipal separate storm sewer system permit, claiming that it does not comply with federal and state law. They maintain that the permit does not include effluent limits and monitoring as required by federal law, and that the New Jersey Department of Environmental Protection's (DEP) inclusion of best management practices rather than effluent limits was a further violation of applicable law. Appellants also argue that the permit requirements are neither "clear, specific, and measurable," nor provide for meaningful review and that the DEP violated federal law by issuing permits without the public's involvement. Acknowledging its deferential standard of review, the court affirms the final agency decision.

Appellants filed for benefits under New Jersey's Medicaid — Aged, Blind and Disabled (ABD) program. Both were disabled and lived with other family members; each applicant's total "countable income" was below the federal poverty level (FPL) for a family of their size, but each applicant's individual Social Security Disability benefits exceeded the FPL for a family of one. The Department of Human Services, Division of Medical Assistance and Health Services (the Division) applied N.J.A.C. 10:72-4.4(d)(1), which stated that an applicant was ineligible if his or her "countable income . . . exceed[ed] the poverty income guideline for one person[.]" The Division denied the applications.

The court held that the regulation did not violate the federal Medicaid statute, Title XIX of the Social Security Act, but did violate New Jersey's Medicaid statute, N.J.S.A. 30:4D-1 to -19.5, which defines a "qualified applicant" as, among other things, a disabled individual "whose income does not exceed 100% of the [FPL], adjusted for family size," N.J.S.A. 30:4D-3(i)(11), and defines FPL as "the official poverty level based on family size[.]" N.J.S.A. 30:4D-3(p).

The court addressed two issues of first impression in New Jersey: (1) whether the swabbing of a defendant's hands for gunshot residue (GSR) constitutes a search under applicable constitutional doctrines, and if so, (2) whether such a search is valid under the search incident to arrest exception to the warrant requirement. The court held that the swabbing of a defendant's hands for GSR is a search under the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution because it intruded upon a reasonable expectation of privacy. Balancing the intrusion of GSR testing on an individual's privacy against promoting vital governmental interests, the court further concluded that if an individual is lawfully arrested and in police custody, a delayed search of the arrestee's person for GSR evidence after the arrestee is transported to police headquarters is constitutionally permissible under the search incident to arrest exception as long as the delay itself and the scope of the search are objectively reasonable. In this case, given the existence of probable cause, the timeline, location, and limited intrusion involved in the testing, as well as the ready destructibility of GSR evidence, the court was satisfied that the search was objectively reasonable in time and scope to pass constitutional muster. Accordingly, the court reversed the Law Division's order suppressing the GSR evidence and remanded for further proceedings.

Because the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7, provides a permanent home for children, we affirm the decision of the Commissioner of Education that the children must now go to school where their kinship legal guardian lives. Neither the educational stability law, N.J.S.A. 30:4C-26; N.J.S.A. 18A:7B-12(a)(2), nor the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 to 1482, allows the children to remain enrolled in the school district where their biological mother is located.

A jury found defendant Kyle P. Brown guilty of third-degree arson, N.J.S.A. 2C:17-1(b), and second-degree causing or risking widespread injury or damage, N.J.S.A. 2C:17-2(a)(1), as a result of setting fire to, and causing an explosion of, his parked car in a sparsely-filled parking lot adjacent to his apartment building in the early morning hours.

The court holds the trial judge did not err in denying defendant's motion for acquittal of third-degree arson and second-degree causing or risking widespread injury or damage because there was sufficient evidence to establish that he caused a fire and explosion as set forth in N.J.S.A. 2C:17-1(b), and an explosion as set forth in N.J.S.A. 2C:17-2(a)(1).

In the unpublished portion of this opinion, the court affirms the trial judge's ruling on all other issues.

In this appeal, the court examined whether a child's biological mother, who voluntarily surrendered her parental rights to allow her own mother, the child's maternal grandmother, to adopt the child, had standing as the child's legal sibling, per N.J.S.A. 9:2-7.1, to seek visitation rights against a non-relative adoptive mother. The court found the biological mother did not have standing under N.J.S.A. 9:2-7.1.

The child was placed with his non-relative adoptive mother following the death of his maternal grandmother. Several years later, a Family Part judge granted the biological mother's request to visit with the child pending his adoption. The visits continued for approximately one year until the child's non-relative adoptive mother adopted the child and stopped the visits. The biological mother filed a complaint to reinstate her visits post-adoption and her complaint was dismissed by another Family Part judge without an evidentiary hearing.

In adhering to the legal precepts expressed in Major v. Maguire, 224 N.J. 1 (2016) and In re D.C., 203 N.J. 545 (2010), the court determined the biological mother lacked standing as a legal sibling and was not entitled to visits under any other legal framework. Accordingly, the court affirmed the Family Part judge's dismissal of her complaint without an evidentiary hearing.

Defendant argued that unused prior service credits could be applied to reduce the period of mandatory parole supervision imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court held that prior service credits could not be applied to reduce the period of parole supervision required under NERA.

In this appeal, the court affirmed the trial court's denial of class certification to three plaintiffs who asserted claims under the Fair and Accurate Credit Transactions Act (FACTA) of 2003, 15 U.S.C. §§ 1681 to 1681x, which prohibits retailers who accept credit or debit cards from printing more than the last five digits of the card number or expiration date upon any receipt. The complaint was dismissed as to all three plaintiffs for lack of personal jurisdiction over defendants.

Plaintiff Ellen Baskin is a New Jersey resident who made a purchase at one of defendants' New Jersey stores and plaintiffs Kathleen O'Shea and Sandeep Trisal are New York residents who made purchases at defendants' New York stores.

The court agreed with the trial court that plaintiffs failed to establish that class action was warranted under Rule 4:32-1(b)(3). Specifically, plaintiffs only alleged technical violations of FACTA, and they did not assert they were victims of identity theft, fraud, or other harm. The court determined that individual actions in the small claims section would be a superior means to adjudicate claims of technical violations of FACTA. Thus, the superiority and predominance requirements of Rule 4:32-1(b)(2) were not met.

The court held that the New Jersey courts do not have general jurisdiction over defendants or specific jurisdiction to entertain the claims of the New York plaintiffs. However, the court determined that the trial court erred in dismissing Baskin's complaint because she is a New Jersey resident with an alleged FACTA claim emanating from a transaction at one of defendants' New Jersey stores. Therefore, the court reversed dismissal of Baskin's claims and reinstated the complaint as to her individual claims only.