Published Appellate Court Opinions

Defendant was convicted of third-degree stalking and he appealed. The court affirms the constitutionality of the anti-stalking statute as it was amended in 2009, N.J.S.A. 2C:12-10, holding that it is not facially overbroad nor unconstitutionally broad or vague as applied to defendant. The court rejects defendant's other claims that he was deprived of a fair trial.

The court held this indigent defendant should not have been required to proceed unrepresented in his appeal of a municipal court conviction. It resulted in a consequence of magnitude. Defendant did not waive his right to counsel, assumed he would be assigned a third attorney after two were relieved, and did not engage in such egregious conduct as to constitute a forfeiture of his right to representation. The conviction was thus reversed and the matter remanded for a new trial de novo in the Law Division.

During defendant's robbery trial, in his case-in-chief, he moved into evidence a 9-1-1 tape of his call to police. The trial judge admitted the evidence under two exceptions to the hearsay rule: present sense impression, N.J.R.E. 803(c)(1), and excited utterance, N.J.R.E. 803(c)(2). The judge allowed the State, in rebuttal, to introduce defendant's sanitized criminal history for impeachment purposes pursuant to N.J.R.E. 806 and gave the Model Jury Charge (Criminal), "Credibility - Prior Conviction of a Defendant," (rev. Feb. 24, 2003). The court concluded that the admission of the prior criminal history was proper, accompanied by the limiting instruction. Although defendant did not testify, the rule allows the use of impeaching material when hearsay is introduced.

In defendant's original appeal, the court reversed three convictions of theft of immovable property and remanded for a new trial, leaving the other six convictions intact. State v. Kosch, 444 N.J. Super. 368 (App. Div.), certif. denied, 227 N.J. 369 (2016). The trial judge then resentenced defendant on the other six convictions – to the same aggregate sentence – without disposing of the three remanded charges; the court reversed because, among other things, the trial judge failed to comply with the prior mandate. State v. Kosch, 454 N.J. Super. 440 (App. Div. 2018). The State then voluntarily dismissed the three remanded charges, and the judge resentenced defendant; to reach an aggregate sentence the equivalent of the original sentence, the judge imposed for the first time a fifteen-year extended term on one of the remaining convictions – to which defendant had originally been sentenced to a non-extended seven-year term.

In this third appeal, the court followed State v. Rodriguez, 97 N.J. 263 (1984), and adhered to State v. Young, 379 N.J. Super. 498 (App. Div. 2005), in finding no double jeopardy or due process violations because the new sentence did not exceed in the aggregate that which was originally imposed and which defendant had begun serving. But the court also held that just because the sentencing judge possessed the constitutional authority to impose the same aggregate sentence didn't mean he should have. The court remanded for resentencing because, by imposing the same sentence, the judge failed to adequately appreciate the impact caused by the absence of three convictions on which the original sentence was imposed.

In the aftermath of Super Storm Sandy and the ensuing statewide gasoline shortage, appellant, the executive director of a regional sewerage authority, permitted some essential employees to fuel their private vehicles from the Authority's gasoline pump. She also permitted a member of the Authority's board of commissioners, who was an employee and authorized to sign authority checks, to gas up his private vehicle after asking him to find food for the Authority's employees at nearby restaurants and to "commandeer" a local gas station to meet the needs of the essential employees.

By permitting the board member to use Authority gas, the Local Finance Board (LFB) concluded appellant violated N.J.S.A. 40A:9-22.5(c), a provision of the Local Government Ethics Law (LGEL), N.J.S.A. 40A:9-22.1 to -22.25, which provides: "No local government officer or employee shall use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others."

The court reversed, concluding that this provision of the LGEL, unlike others, requires proof of a specific intent on the part of the local officer to secure the unwarranted privilege or advantage. In addition, the court concludes the gasoline appellant secured for the board member and employee was not an "unwarranted privilege or advantage" under the statute.

The legal question in this appeal is whether, as a matter of law, a police officer is ineligible for ordinary disability benefits as a member of the Police & Firemen's Retirement System (PFRS) if the officer separates from service by irrevocably resigning from employment to resolve pending drug-related disciplinary charges. Recognizing that N.J.S.A. 43:16A-8(2) requires disability retirees to return to duty once their disability has "vanished or has materially diminished," and emphasizing that an irrevocable resignation makes returning to duty impossible and therefore deprives the PFRS Board of Trustees from terminating benefits, this court held that such a member is ineligible.

The court granted the State leave to appeal from an order granting defendant's motion to withdraw his guilty plea prior to sentencing.

Defendant entered into a plea agreement calling for a five-year Drug Court probationary term with an alternate sentence of a four-year prison term subject to an eighteen-month period of parole ineligibility if he was terminated from Drug Court. Before sentencing, defendant was charged with armed robbery and related weapon offenses. Defendant remained incarcerated on the new charges while awaiting trial. After being acquitted of the new charges, he moved to withdraw his guilty plea. By the time the motion was heard, defendant had accrued an additional 366 days of jail credit. The trial court granted the motion, finding defendant's reasonable expectations at the time of his plea were not met because of the additional jail credit.

The court reverses and remands for sentencing, finding the trial court abused its discretion in granting the motion. Defendant did not present a colorable claim of innocence. His reasonable expectations as they existed at the time of the plea hearing were met by enforcing the plea agreement despite the unanticipated accrual of additional jail credit before sentencing.

Appellant was denied promotion to the position of sergeant when his employer chose the first, third and fourth police officers from a certified list, skipping over appellant who placed second; the first and third are Caucasian officers, while appellant and the fourth are African-American. The Civil Service Commission denied appellant's claim of retaliation arising from grievances about an earlier promotion; in so acting, the Commission did not conduct an evidentiary hearing but simply rejected what it called appellant's "mere allegations" that the employer retaliated against him. The court remanded for an evidentiary hearing so the parties' factual disputes could be resolved and so the Commission might determine – even if not expressly or clearly raised previously – whether the employer's reasons for skipping over appellant were unlawfully pretextual.

In these four small claim suits, plaintiffs sought relief from defendants because their negligence caused damage to plaintiffs' vehicles. Of interest, plaintiffs sought damages because databases like CarFax mention the vehicles' newly-acquired accident histories that – plaintiffs claimed – diminished the vehicles' value even though they were repaired to their pre-accident condition and function. In finding these damages recoverable, the court held that fixing an amount for the stigma of this accident history did not require undue speculation. Such a claim, the court held, is merely subject to proof, which plaintiffs provided via an expert who testified that the "scarlet letter" of an accident history reduces a vehicle's value; in other words, the court found the claim cognizable because it is reasonable to assume that, all other things being equal, a buyer will likely pay less for a vehicle with an accident history than a vehicle without.

Defendant appeals from the judgment memorializing the verdict and from the trial court's order denying his motion for a new trial. Among other things, defendant contends that the jury's award of wrongful death damages is unsupported by the evidence, particularly without any expert testimony to substantiate the pecuniary value of the loss of Patrick's advice, guidance, and companionship. This court rejects defendant's contention and reaffirms the long-standing principle, as expressed in Lesniak v. County of Bergen, 117 N.J. 12, 32-33 (1989), that expert testimony is not required to establish the pecuniary value of such services in claims for wrongful death. This holding is consistent with the common law in the fourteen other jurisdictions that, like New Jersey, restrict recovery in wrongful death actions to pecuniary loss, but do not require expert testimony to substantiate damages.

Defendant is charged in an indictment with attempted theft by extortion, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-5(c). The evidence presented to the grand jury shows that while defendant was located in Maryland, he called and emailed the victim's attorney in New Jersey and communicated threats to disclose private facts about the victim, who resided in New York, unless the victim agreed to contribute monies to an alleged charity defendant operated. The Law Division judge dismissed the indictment, finding New Jersey lacked territorial jurisdiction over the alleged crime, N.J.S.A. 2C:1-3.

The court reverses the dismissal of the indictment. The court concludes that defendant's delivery of the threats into, and the victim's attorney's receipt of the threats in, New Jersey constitute conduct occurring in New Jersey that is an element of the crime of attempted theft by extortion, and therefore there is territorial jurisdiction over the crime charged in the indictment under N.J.S.A. 2C:1-3(a)(1).

This appeal affects members of the Public Employees' Retirement System (PERS) who converted their group life insurance policy into an individual policy, but died while their retirement applications were pending and whose beneficiaries chose "retired" benefits. In upholding N.J.A.C. 17:2-3.8(b) (clarifying the effective date for converted individual insurance policies) and N.J.A.C. 17:2-3.13 (addressing benefits payable to beneficiaries when members die with retirement applications pending), this court recognized the longstanding practice that beneficiaries of PERS members may receive either a "retired" benefit or an "active" benefit, but not both.

In this Consumer Fraud Act action, the Law Division found defendants engaged in an unconscionable commercial practice by filing a criminal complaint against plaintiff as a means of collecting a consumer debt. The parties settled on damages and defendants reserved the right to appeal the summary -judgment decision on liability. A different judge awarded plaintiff six percent of the counsel fees requested and no costs of suit or filing fees. Both parties now appeal.

This court holds defendants bargained away their right to challenge the summary judgment decision and dismisses their appeal pursuant to Winberry v. Salisbury, 5 N.J. 240, 255 (1950). With respect to the award of counsel fees, this court holds the Law Division did not follow the standards established by the Court in Rendine v. Pantzer, 141 N.J. 292, 316-45 (1995) and violated N.J.S.A. 56:8-19 because it failed to award plaintiff costs of suit and filing fees.

Atlantic County Assignment Judge Julio Mendez dismissed the condemnation complaint as a manifest abuse of power because the Casino Reinvestment Development Authority (CRDA) did not provide reasonable assurances that the proposed redevelopment would come to fruition in the foreseeable future. The CRDA sought to condemn the property in furtherance of its mandate to promote tourism in Atlantic City. At the time of the decision under review, the CRDA had no specific redevelopment plans under consideration for the Project; it had not issued a request for proposals (RFP) to prospective developers, and no developer had committed to redeveloping within the South Inlet Mixed Use Development Project area. Nevertheless, the CRDA maintained it had a right to "bank" the property for redevelopment at some unspecified time in the future. Agreeing with Judge Mendez, the court affirms.

Appellant A.Y. appeals from a judgment civilly committing him to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. He was convicted of the predicate act of second-degree sexual assault, N.J.S.A. 2C:14-2(c), and was diagnosed as suffering from Antisocial Personality Disorder and other conditions.

The State's experts opined appellant's personality disorder affects his cognitive, volitional, or emotional capacity, making it highly likely he will sexually reoffend if not kept under the care, control and treatment of a secure facility such as the STU. The State's experts relied, in part, on the results of the MnSOST-R and Static-99R actuarial instruments to determine whether A.Y. was highly likely to sexually reoffend.

Appellant argued he had regained volitional control over his sexually assaultive behavior through treatment and medication compliance. Appellant further argued the State's experts rendered inadmissible net opinions lacking any probability basis to find him highly likely to sexually reoffend. Appellant also argued the State's experts could not point to any methodology or objective standards used to reach their sexual recidivism risk findings.

The court found the State's experts relied on information reasonably relied on by experts in the field, the State's experts did not render inadmissible net opinions, the actuarial instruments were properly used by the State's experts in the formation of the basis of their opinions, and the methodology utilized by the State's experts satisfied the requirements imposed by the Court in In re Accutane Litig., 234 N.J. 340 (2018). Accordingly, the court determined the trial court did not abuse its discretion in admitting and considering the testimony of the State's experts, including their use and reliance upon the MnSOST-R and Static-99R actuarial instruments.

The court affirmed, finding the credible evidence in the record supported the trial court's finding that appellant suffered from a personality disorder that makes it highly likely he will not control his sexually violent behavior and will reoffend if not confined to the STU for treatment.

The issue presented on this appeal is whether a county register or clerk has the authority to charge a "convenience fee" or surcharge for the electronic filing of documents concerning real property. The Legislature has prescribed the fees a county register or clerk may charge for the filing of documents, and a convenience fee is not one of the legislatively authorized fees. Accordingly, the court holds that a county register or clerk cannot impose such a fee. The court therefore reverses a June 23, 2017 order granting summary judgment to the Essex County Register of Deeds and Mortgages (Essex Register) and dismissing the complaint of plaintiff, the New Jersey Land Title Association (Association). The court remands with direction that the Association be granted partial summary judgment on its claim to enjoin, prospectively, the Essex Register from collecting the convenience fee. On remand, the trial court will also address the Association's claim for disgorgement of the fees previously paid.

Defendants, the Borough of Point Pleasant Beach and the Borough's Zoning Board of Adjustment, appeal the trial court's May 3, 2018 decision in this land use case. The court declared invalid and unenforceable a variance provision and associated deed restriction that requires one unit of the subject two-family dwelling to be occupied by the owner and not rented to a third-party tenant.

These owner-occupancy limitations were imposed by the Board in 1999 as a condition of approving a variance allowing plaintiff Maria I. Tirpak and her now-deceased husband to raze their then-existing dwelling and construct a new two-family dwelling in a zone limited to single-family residences. The Board also required the Tirpaks to memorialize the condition as a recorded deed restriction.

The trial court concluded the variance condition and deed restriction impermissibly discriminated against renters, and wrongfully predicated the allowable use of the property upon the identities of its occupants.

On appeal, defendants argue the trial court should have dismissed plaintiff's challenge to the restrictions as untimely. They further contend the trial court misapplied the law and principles of equity in nullifying the variance condition and deed restriction.

This appellate court rejects defendants' arguments, substantially for the sound reasons expressed in Assignment Judge Marlene Ford's May 3, 2018 written decision, which is published in tandem with this opinion at ___ N.J. Super. ___ (App. Div. 2019).

Defendant was charged with first-degree murder but convicted of aggravated manslaughter. He argued in his direct appeal that the trial judge should have severed his charges from those brought against a co-defendant and that, even though not requested, the trial judge should have sua sponte instructed the jury on self-defense. In rejecting his severance argument, the court recognized a self-defense theory was "presented" and defendant received its benefit when the jury convicted him "of aggravated manslaughter rather than first-degree murder." But, in rejecting the other argument, the court held that the judge was not required to instruct on self-defense because "the defense of self-defense would likely have been unsuccessful."

In appealing the later denial of his post-conviction relief petition after an evidentiary hearing, defendant argued his trial counsel was ineffective for failing to request jury instructions on self-defense. In reversing and remanding for a new trial, the court held that trial counsel should have requested those instructions and defendant was prejudiced as a result. Even though, in the direct appeal, the court inconsistently considered the role self-defense played at trial, the court in this post-conviction relief appeal concluded that the evidence supported a self-defense theory and appropriate jury instructions might have provided benefits for defendant even greater than he received when the jury found him guilty on a lesser-included offense of first-degree murder.

In State in the Interest of N.P., 453 N.J. Super. 480 (App. Div. 2018), the court determined a Family Part judge may not divert juvenile complaints from court action without first affording the State an opportunity to be heard. Following that decision, the Family Part judge duly noticed the State of its intention to divert complaints filed against C.F., A.G., and T.S., but conducted the hearings without providing notice to the juveniles.

In these three consolidated appeals, the court reverses the trial judge's orders. Because the matters were heard in open court, due process mandates notice to the juveniles, affording them the opportunity to be heard and to consult with counsel before their complaints are diverted from court action.

The Off-Track and Account Wagering Act, N.J.S.A. 5:5-127 to -160, does not permit persons with accounts in New Jersey's account-wagering system (AWS) from placing wagers with the AWS while located outside the State, and this restriction on wagering does not violate the Commerce Clause of the United States Constitution.