Published Appellate Court Opinions

     Plaintiffs brought claims against defendant, owner of a resort property in Atlantic City, alleging violations of the Consumer Fraud Act (CFA) and the Real Estate Timeshare Act (RETA).  After a trial, the jury found defendant liable to plaintiffs under both the CFA and RETA and awarded damages under both statutes.  After merging the verdicts, the trial court awarded treble damages under the CFA, as well as attorney's fees and prejudgment interest against defendants.  Defendant appealed.
     On appeal, the court held that:  the parol evidence rule did not bar plaintiffs from introducing evidence of fraud during trial; plaintiffs were permitted to bring claims pursuant to the CFA and RETA simultaneously; RETA and its accompanying regulations require that a purchaser be given a reasonable opportunity to review a public offering statement; the trial court did not err by submitting a question of contract interpretation to the jury; the trial court did not err by permitting evidence of defendant's alleged RETA violations to go to the jury nor did it present those violations as separate causes of action upon which damages could be award; and finally, the trial court did not err when it increased plaintiffs' attorney's fee award after reconsideration.
 

     The court granted defendant Mohammad Ramadan leave to appeal from the Law Division's April 4, 2024 order denying his motion to dismiss count two of an indictment charging him with first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3.  Defendant argued the prosecutor gave the grand jury the wrong legal instruction, advising that an attempt to purposefully cause "serious bodily injury resulting in death" constituted a sufficient alternative mental state for the offense of attempted murder.  Defendant claimed this error warranted dismissal of the attempted murder count.
     The court determined that providing the grand jury with incorrect mental state instructions, even though also presenting statements of the correct mental state, created the inherent possibility that the grand jury indicted defendant for attempted murder based on an impermissible mental state.  The court cited State v. Gilliam, 224 N.J. Super. 759 (App. Div. 1988), which reversed an attempted murder conviction based upon a similar misstatement of the required mens rea.  
     The court reversed the trial court's order and dismissed the count of first-degree attempted murder.
 

     In this Medicaid lien dispute, plaintiff Estate of Leonor R. Dizon (Estate), by its administrator ad prosequendum, Teresa Finamore, appealed from a Law Division order denying its application to extinguish the Division of Medical Assistance and Health Services' (Division) lien asserted against the Estate's assets pursuant to N.J.S.A. 30:4D-7.2 (estate asset statute).  
     The Division's lien sought the recovery of $214,391.95 in Medicaid benefits Dizon (decedent) received after turning fifty-five years old.  The Division filed its lien against all the Estate's assets, including any award the Estate received from its pending survivorship action, N.J.S.A. 2A:15-3.  The Estate disputed that a survivorship award was subject to a Division lien under the estate asset statute for all of decedent's Medicaid benefits paid, arguing that its interest in the survivorship claims did not constitute property of the estate at the time of decedent's death, as required by the statute.  Instead, it contended, the Division was only entitled to reimbursement from an award for decedent's tort-related medical expenses for her injuries pursuant to a separate statutory provision specifically addressing third-party liability recovery, N.J.S.A. 30:4D-7.1.  
     The court concluded the Division's lien was valid against all the Estate's assets under the estate asset statute, which included any survivorship action award, and therefore affirmed the trial court.  
 

     Appellants, Central Regional Board of Education (Board) members Ronald Donnerstag, Kristin Lanko, Lisa Snider, Wendy Vacante, Matthew Delprete, Patricia Fortus, Jaime Cestare, Scott Alfano, and Lynne Sweezo, appeal the School Ethics Commission's final agency decisions dismissing their twelve-count complaint under the School Ethics Act (Act), N.J.S.A. 18A:12-21 to -34, seeking disciplinary action against fellow Board member, respondent Merissa Borawski.  Appellants' allegations targeted Borawski's posts and repost uploaded to her public social media account while she was a Board member-elect and a Board member regarding labor union membership, COVID-19 mandates, and State gender identity curriculum.  In addition, appellants allege Borawski violated Governor Philip Murphy's Executive Order 251 by not wearing a facemask at a public Board meeting while a Board member.  
     The court affirms the Commission's grant of Borawski's motion to dismiss allegations in counts one, two, three, four, five, eight, nine, ten, eleven, and twelve that she violated N.J.S.A. 18A:12-24.1(a) regarding her social media posts and reposts criticizing COVID-19 mandates and gender identity curriculum, and non-compliance with Executive Order 251.  The Commission correctly determined appellants failed to comply with N.J.A.C. 6A:28-6.4(a)(1) because there was no order issued by a court or administrative agency that Borawski violated state law or regulations.
     The court affirms the Commission's grant of Borawski's motion to dismiss allegations in counts six and seven that she violated N.J.S.A. 18A:12-24.1(e) regarding her social media posts and repost criticizing COVID-19 mandates and applauding the acquittal of an alleged racist.  The Commission correctly determined that it did not have jurisdiction under the Act over Borawski's posts because the posts were made when she was a Board member-elect.
     The court reverses the Commission's grant of Borawski's motion to dismiss allegations in count three that she violated N.J.S.A. 18A:12-24.1(e) by not complying with Executive Order 251, and remand for the Commission to address the merits of the count.  The Commission arbitrarily determined Borawski's conduct was not a nexus with her role as a Board member and did not have the potential to undermine the authority of the Board.
     The court affirms the Commission's summary decision finding that the allegations in counts two, four, five, eight, nine, ten, eleven, and twelve did not violate N.J.S.A. 18A:12-24.1(e).  There was no evidence Borawski's conduct compromised the Board. 
     The court reverses the Commission's summary dismissal of Borawski's allegations in count one that she violated N.J.S.A. 18A:12-24.1(e) regarding her social media post challenging labor union membership and remand to the Commission to determine the appropriate penalty.   The Commission's decision was arbitrary, capricious, and unreasonable as it was contrary to the credible evidence in the record that the post compromised the Board because it resulted in an unfair labor practice charge being filed against the Board.  We remand to the Commission to recommend to the Commissioner of Education the extent of Borawski's penalty.
 

     Appellants, Central Regional Board of Education (Board) members Ronald Donnerstag, Kristin Lanko, Lisa Snider, Wendy Vacante, Matthew Delprete, Patricia Fortus, Jaime Cestare, Scott Alfano, and Lynne Sweezo, appeal the School Ethics Commission's final agency decision dismissing their five-count complaint under the School Ethics Act (Act), N.J.S.A. 18A:12-21 to -34, seeking disciplinary action against fellow Board member, respondent Heather Koenig.  The allegations targeted Koenig's posts and reposts uploaded on her public social media account while she was a Board member-elect and Board member, and her violation of Governor Philip Murphy's Executive Order 251 by not wearing a facemask at a public board meeting while a sitting Board member.  
     The court affirms the Commission's dismissal of counts two and five when it granted Koenig's motion to dismiss.   The Commission correctly determined count two failed to comply with N.J.A.C. 6A:28-6.4(a)(1) because there was no order issued by a court or administrative agency finding that Koenig violated state law or regulations when she did not wear a mask at her Board member swearing-in.  The Commission correctly determined count two's allegation that Koenig violated N.J.S.A. 18A:12-24.1(e) did not establish she was acting on behalf of the Board or compromised the Board.   The Commission also correctly determined it did not have jurisdiction under the Act over the allegations in count five that she violated N.J.S.A. 18A:12-24.1(e) because the social media posts were made when Koenig was a Board member-elect, not a sitting Board member.
     The court reverses the Commission's dismissal of count three when it granted Koenig's motion to dismiss.  The count alleges Koenig violated N.J.S.A. 18A:12-24.1(e) by not wearing a face mask at a Board meeting because she compromised the Board as her action was perceived to be speaking for the Board and may have encouraged others to follow suit.  The Commission's decision was arbitrary, capricious, and unreasonable. The allegation is remanded to an Administrative Law Judge to conduct a fact-finding hearing and issue an initial decision to the Commission.  
     The court affirms the Commission's summary dismissal of count four alleging that Koenig's social media post and reposts criticizing the Governor's mask mandate violated N.J.S.A. 18A:12-24.1(e).  There was insufficient nexus between her conduct and her position as a Board member, and there was no indication that the Board was compromised by this conduct.
     The court reverses the Commission's summary dismissal of count one alleging that Koenig's social media post encouraging Board employees to rescind their membership in their labor unions violated N.J.S.A. 18A:12-24.1(e). The dismissal was arbitrary, capricious, and unreasonable as it was contrary to the credible evidence in the record that the post compromised the Board by resulting in an unfair labor practice charge filed against the Board.  We remand to the Commission to recommend to the Commissioner of Education the extent of Koenig's penalty. The penalty, however, shall not be imposed until the Commission makes a final agency decision regarding count three.
 

     A jury convicted defendant on several offenses, including two counts of second-degree terroristic threats, N.J.S.A. 2C:12-3(a).  The terroristic threats convictions related to statements defendant directed at the victim, who presided as the judge over defendant's municipal court case.  Defendant was also convicted of making the threats during a declared period of national, State or county emergency, namely, the COVID-19 pandemic.
    Defendant argued the terroristic threats convictions should be reversed because the jury was not charged pursuant to State v. Fair, 256 N.J. 213 (2024), on whether a reasonable person similarly situated to the victim, in this case a municipal court judge with several years of experience as an attorney and a prosecutor, would have viewed defendant's words as threatening violence.  Defendant also raised an as-applied substantive due process challenge to his conviction for making the threats during a declared emergency, arguing there was no nexus between his threats and the state of emergency. 
    The court reversed the terroristic threats convictions and ruled Fair has pipeline retroactivity.  Although defense counsel seemingly argued the Fair standard in summations, the trial court charged the jury under the then-existing model charges, which did not provide an objective means of measuring whether defendant's statements constituted terroristic threats.  
     The court also held where the State seeks to enhance a third-degree terroristic threats offense by charging a defendant with making threats during a declared period of national, State or county emergency, there must be some rational relationship between the threats and the underlying emergency.  Otherwise, the conviction will be vulnerable to an as-applied challenge for vagueness on substantive due process grounds.  Reversal was warranted here because the threats defendant directed at the victim did not result from or having anything to do with the pandemic or pandemic-related restrictions, and his municipal court case.
 

     As a matter of first impression, the court addressed the procedural issue of whether the trial court properly entertained plaintiffs' motions to dismiss after they had filed an answer to defendant's counterclaim asserting a defense under Rule 4:6-2(e) or whether plaintiffs were required to file the motion prior to filing their answer.  The court concluded the trial court correctly considered the motion under Rule 4:6-2.  It determined that Rule 4:6-2, when read in conjunction with Rule 4:6-3, contemplates that a party who raises a Rule 4:6-2(e) defense in its answer will be permitted to make an application to the court prior to trial in much the same way as a motion for summary judgment.
    The court also addressed whether, in considering defendant's counterclaims for defamation and trade libel, the trial court properly determined plaintiff's statement that defendant was a criminal or engaged in criminal behavior was substantially true and therefore a defense to these causes of action, even though defendant was never convicted of a crime. The court concluded that a conviction is not necessary to render substantially truthful a statement that a person was a criminal or engaged in criminal behavior, and defendant's admissions during her testimony in an underlying federal criminal prosecution rendered plaintiff's statements substantially true irrespective of whether there is a record of a successful prosecution against her.
 

     This appeal raises a question of first impression under New Jersey law, requiring the court to consider the interplay between the right against self-incrimination, the right to privacy in one's home and effects, and the right to the assistance of counsel.  Following defendant's arrest for assaulting his daughters, police administered Miranda warnings and defendant asserted his right to confer with an attorney.  The interrogation process immediately ceased.  Police went back to the still detained defendant a few hours later and asked him to consent to a search of his home, which he granted.  Defendant contends that police did not scrupulously honor his earlier request to consult with an attorney, rendering his consent invalid.  
     The court surveyed cases in other jurisdictions and analyzed different options for how to account for defendant's request to confer with an attorney:  (1) treat the prior request as a factor in the totality-of-the-circumstances test used to determine whether consent was given voluntarily; (2) require police when asking for consent to clarify whether a prior request to confer with counsel pertained only to the right against self-incrimination and not to the waiver of other constitutional rights; or (3) treat the prior request to confer with an attorney as a per se bar from asking for consent.  After considering the heightened protections accorded to suspects in custody under the New Jersey Constitution and common law, New Jersey's history and tradition of honoring the protective role that defense attorneys play, and the stricter rules in this State for proving the validity of a consent search, the court establishes a bright-line rule to provide clear guidance to police:  when a person in custody asks to speak with an attorney, police may not thereafter ask the arrestee to consent to a search when there has been no break in custody.  Doing so renders the consent presumptively involuntary.  
     In this case, the trial judge found that the State met its burden of proving the elements of the inevitable discovery exception to the exclusionary rule by clear and convincing evidence.  The court finds no error in the trial judge's application of the inevitable discovery doctrine and affirms defendant's convictions for unlawful possession of the assault firearm and large capacity ammunition magazines police found when executing the consent search.
     The court also affirms defendant's conviction for endangering the welfare of a child, rejecting defendant's contention the trial judge erred in instructing the jury by failing to sua sponte redact language in the model jury charge not pertinent to the evidence presented by the prosecutor.  The court, however, reverses and remands for a new trial on the downgraded simple assault charges because the judge did not adequately respond to a question posed by the jury concerning a parent's authority to use corporal punishment.

     The primary issue addressed by the court in this appeal is whether the indictment of a partner in a law firm, who withdrew his appearance following the indictment, creates a conflict of interest requiring the law firm to be disqualified from representing defendants, the State of New Jersey and other State entities.  Because the underlying indictment was not related to the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14, and contract claims filed by plaintiff in the civil action, the court concluded no conflict of interest existed pursuant to the Rules of Professional Conduct or the Office of the Attorney General, Outside Counsel Guidelines (2022).  The court affirmed the trial court's order denying plaintiff's motion for disqualification.

     The court held a Track One Recovery Court candidate is legally eligible for entry into Recovery Court under the second section of N.J.S.A. 2C:35-14(a)(5), where a firearms charge has been resolved and is no longer pending at the time the applicant seeks admission into Recovery Court.

     The State appealed the trial court order granting defendant Thomas Canales' motion to dismiss the seven-count indictment for sexual assault, endangering the welfare of a child, and criminal sexual contact relating to three girls under the age of thirteen and one adult female, in separate incidences occurring over a four-month period.  Two successive jury trials were held on all charges, with the first declared a mistrial based on jury deadlock.  The second trial led to a conviction, which the court vacated and remanded for retrial based on an evidentiary error.  On remand, the trial court dismissed the indictment under the fundamental fairness doctrine applying the factors articulated in State v. Abbati, 99 N.J. 418 (1985).
     On appeal, the court concluded the trial judge mistakenly exercised discretion in dismissing the indictment.  The trial judge overlooked the court's prior conclusion that the State proffered substantial evidence during the second trial while evaluating the strength of the State's case, and erroneously weighed putative testimony subject to a jury's credibility determination on retrial.  The court concluded that, on this record, consideration of the Abbati factors and prevailing law warranted reversal and remand for a new trial.

 

     Former redeveloper Blackridge Realty, Inc. ("Blackridge") challenged the legality of an amendment ("Plan Amendment") to the City of Long Branch's ("City") Redevelopment Plan and a two-million-dollar payment made by redeveloper 290 Ocean, LLC to the City as part of its redevelopment agreement.
     290 Ocean proposed a redevelopment project to the City that would require an amendment to the Redevelopment Plan.  The resulting Plan Amendment relaxed several previous restrictions contained within the original Redevelopment Plan that had applied to Blackridge's redevelopment project.  The City's planner, City council, and mayor all approved the Plan Amendment, finding it consistent with the City's Master Plan and in the City's best interest.  The City and 290 Ocean negotiated a redeveloper agreement, which included a provision requiring 290 Ocean to pay a two-million-dollar fee to the City to be used to partially off-set the cost to construct a senior center.  
     Soon after the Plan Amendment was adopted and 290 Ocean's redeveloper agreement with the City was finalized, Blackridge filed a Complaint in Lieu of Prerogative Writs challenging the Plan Amendment's legality and the payment.  The trial court granted summary judgment to the City and 290 Ocean.  
     The court concludes 290 Ocean's two-million-dollar payment was a lawful, negotiated fee intended to defray the City's costs as authorized in N.J.S.A. 40A:12A-8(f) of the Local Redevelopment and Housing Law ("LRHL").  It determines the LRHL does not impose any restrictions limiting payments to the recovery of costs the municipality will incur as a direct result of the redevelopment project, as long as the fee is negotiated at arm's length and collected to effectuate the purposes of the LRHL and the City's Master Plan.  Unlike the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-42, the LRHL contains no explicit nexus requirement regarding the amount of payment a municipality may charge a redeveloper to defray its costs associated with redevelopment.  The LRHL instead empowers a municipality to "negotiate and collect revenue from a redeveloper to defray the costs of the redevelopment entity" in order "to carry out and effectuate the purposes of [the LRHL] and the terms of the [municipality's] redevelopment plan."  N.J.S.A. 40A:12A-8(f).  The statute's plain terms permit a municipality to "negotiate" any payment amount from a redeveloper without requiring a causal connection between the payment and the redeveloper's proposed project, as long as the municipality demonstrates the payment will defray costs to the municipality associated generally with redevelopment.  The language authorizing a municipality to "negotiate and collect revenue from a redeveloper to defray the costs of the redevelopment entity" is plain, unambiguous, and markedly different from the language set forth in the MLUL payment provision.  Compare N.J.S.A. 40A:12A-8(f) with N.J.S.A. 40:55D-42.  
     The Court cautions, regardless of which statute applies, the need for transparency with respect to any municipality's negotiated payment from a redeveloper remains.  Transparency avoids the appearance that "'[a]pprovals would be granted or withheld depending upon the board members' arbitrary sense of how much an applicant should pay.'"  See Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 359 (App. Div. 2008) (quoting Nunziato v. Plan. Bd. of Edgewater, 225 N.J. Super. 124, 134 (App. Div. 1988)).  It notes transparency is critically important when a municipality provides a benefit to a redeveloper, so the public is assured the negotiations proceeded at arms-length.  Transparency is fundamental to maintain public trust, to ensure accountability, and to prevent the appearance of favoritism or impropriety in government decision-making.  See Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478, 492 (1991) (emphasizing the necessity of transparency to uphold public trust and confidence in governmental processes).  The court concludes the City had been transparent in its negotiation of payment with 290 Ocean and its intended use of the funds.
     The court also concludes the Plan Amendment was a lawfully-enacted alteration to the Redevelopment Plan that did not amount to impermissible spot zoning, and Blackridge did not have designated developer status that would allow it to veto the Plan Amendment. Therefore, it affirms the decision of the trial court.
 

     In this appeal, we address the legal standards to be applied by a reviewing court concerning applications for termination or modification of permanent alimony under N.J.S.A. 2A:34-23(j)(3) based on the retirement of an obligor when the judgment or order establishing the alimony obligation was entered prior to the 2014 amendment of N.J.S.A. 2A:34-23.  
     Based on the language in subsection (j)(3), after an obligor has shown they have reached a "good faith retirement age," a prima facie showing of changed circumstances may be established by an obligor satisfying the standards set out in the Court's seminal holding of Lepis v. Lepis, 83 N.J. 139 (1980).  A typical method of showing a prima facie changed circumstance is through proof of a decrease in an obligor's financial circumstances due to their retirement affecting their continuing ability to pay alimony at the level set forth in the current judgment or order.  Here, we hold under subsection (j)(3), that a prima facie change of circumstance can also be shown by an obligee's financial disclosure or other evidence in the record exhibiting:  (1) an obligee has adequately saved for retirement and no longer has a continuing need for alimony as set forth in the order or judgment to maintain the standard of living enjoyed during the marriage; or (2) an obligee had the ability to adequately save for retirement after the final judgment of divorce and, if they had done so, would no longer have a continuing need for alimony as set forth in the order or judgment to maintain the standard of living enjoyed during the marriage.  
     Discovery and a hearing are necessary if genuine issues of material fact exist related to an obligee's ability to have adequately saved for retirement affecting their continuing need for alimony.  At a hearing, under subsection (j)(3) the obligor has the burden to prove by a preponderance of evidence that a modification or termination of alimony is warranted based on the factors set forth in N.J.S.A. 2A:34-23(j)(3)(a to -h).
 

Plaintiffs, successful litigants in Open Public Records Act litigation against defendant school district, obtained an order of judgment awarding attorney's fees on August 28, 2020.  After the court affirmed the August 28, 2020 order of judgment, the parties failed to negotiate payment of the attorney's fees. Plaintiffs then sought a judgment for the attorney's fees in the Civil Judgment and Order Docket, which was entered on July 20, 2022.  When plaintiffs sought to enforce the July 20, 2022 judgment against defendants, including payment for post-judgment interest, the trial court ordered post-judgment interest be calculated from July 20, 2022 to August 29, 2022, the date of its order.  Plaintiffs appealed. 

On appeal, the court held that post-judgment interest accrues from the date of a trial court's entry of an order of judgment awarding attorney's fees pursuant to Rule 4:47, rather than the date the judgment was docketed.  Although the accrual date may be modified by the trial court in the interests of equity, there was no factual predicate proffered by defendants to support modification of the post-judgment interest accrual date in the record.  Accordingly, the court reversed the August 29, 2022 order as to the accrual date of post-judgment interest and remanded to the trial court for entry of an order awarding post-judgment interest accruing from August 28, 2020. 
 

In this medical malpractice case, plaintiff S.V. alleges that defendants prematurely discharged her sister ("J.V.") from their care after J.V. was treated for seventeen days on a voluntary admission basis for psychiatric care at defendants' facility.  The day after her psychiatric discharge, J.V. crashed her car into a utility pole, injuring plaintiff who was a passenger in the vehicle.

Plaintiff's medical expert contends defendants breached their professional standards of care by releasing J.V. prematurely while her medications were still being adjusted and her condition allegedly was not yet sufficiently stabilized.  This "premature release" theory is at the core of plaintiff's claim of negligence.  Notably, plaintiff did not argue below that defendants owed her a duty to warn her that J.V. was too unstable to drive a car, or of any other dangers relating to J.V.'s post-discharge condition. 

The Law Division judge denied defendants' motions for summary judgment.  Among other things, the judge rejected defendants' argument that they owed no legal duty to plaintiff in the circumstances presented.  This court granted leave to appeal, limited to the discrete issue of whether defendants owed a duty to plaintiff with respect to her claims.

The court reverses the summary judgment ruling, applying the four-factor criteria for a legal duty under Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).  Under the circumstances presented, defendants could not have reasonably foreseen that J.V., shortly after her discharge, would cause a motor vehicle crash that would injure plaintiff.  In addition, plaintiff's theory of liability—alleging that J.V., a voluntary mental health patient, should not have been discharged—clashes with the terms of our civil commitment laws.

The court holds that N.J.S.A. 19:13-8, which bars candidates for public office from being nominated by a political party, by way of direct petition, when they have already accepted the primary or general election nomination of another political party for the same office, does not violate the New Jersey Constitution.  The court, therefore, affirms the decisions by the New Jersey Secretary of State to reject the Moderate Party's request to list Tom Malinowski as its nominee on the November 2022 general election ballot for the United States House of Representatives, 7th Congressional District because Malinowski had already sought and accepted the Democratic Party's primary nomination for that office.

In this legal malpractice action, plaintiff sued the attorneys who represented him in connection with a failed residential construction project alleging damages in excess of $4,000,000.  He contends his prior counsel negligently negotiated the construction contract and incorrectly advised him he could cancel the contract, resulting in a substantial arbitration award in favor of the architect who designed the project, and unpaid counsel fees owed to subsequent counsel.  
 

After filing this action, plaintiff entered a security agreement with the architect in which he assigned to the architect a portion of his anticipated recovery in this action, after first paying his litigation costs and attorneys' fees, to satisfy the arbitration award.  Plaintiff also executed an acknowledgement of attorney charging lien in which he acknowledged a lien on his recovery in this action in favor of subsequent counsel in exchange for their agreement to forebear from collection efforts until resolution of this action.
 

During jury selection, defendants moved to dismiss arguing plaintiff lacked standing because he impermissibly assigned his tort claim to third parties prior to judgment.  The trial court agreed, finding plaintiff "is merely seeking a judgment that is to be paid directly to third parties" and would "receive the benefit of the judgment in name only."  The trial court recognized "[t]he language of the agreements at issue does not indicate an assignment of any claims" but found the assignment of future proceeds violates the rule against assignment of tort claims pre-judgment.
 

The court reversed, concluding plaintiff has standing and did not assign his legal malpractice claim to third parties.  Plaintiff has standing because he retains the right to recover a significant portion of any damages award.  He will recover his legal costs and attorneys' fees before any amounts are paid to his architect and prior counsel and will retain any excess award.  The court also concluded the assignment of the potential recovery in a tort action does not violate the rule against pre-judgment assignment of tort claims if the injured person prosecutes the action in their own name and has standing to do so.  
 

    Following denial of his motion to suppress evidence seized pursuant to a search warrant, defendant Jorge L. Gomez entered a guilty plea to second-degree possession of a firearm during the commission of a controlled dangerous substance ("CDS") offense, N.J.S.A. 2C:39-4.1(a).  He was sentenced to five years in prison with a minimum forty-two months of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).  
    Defendant contended that the search warrant application did not allege criminal conduct, and in the absence of allegations of the specific quantity of CDS, law enforcement needed to allege that defendant had been warned for a first offense of distributing marijuana before the search warrant could be issued.
    The court reviewed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act ("CREAMMA"), codified in relevant part at N.J.S.A. 24:6I-31 to -56; and N.J.S.A. 2C:35-5 to -10, and concluded the legislature did not intend to alter how police conduct investigations of those illegally distributing marijuana or alter the probable cause requirement for obtaining search warrants.  As a result, the court affirmed denial of defendant's suppression motion and affirmed his conviction.
 

Defendants moved to compel arbitration after approximately sixteen months of litigation in the trial court.  The trial court granted defendants' motion, finding they had not waived their asserted contractual right to arbitrate.  On appeal, plaintiff argued the trial court erred in compelling arbitration because defendants had waived their right to arbitrate through their litigation conduct.  In response, defendants contended the court lacked jurisdiction to decide the appeal because the trial court's order was "interlocutory" and the arbitration agreement at issue was governed by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16.

The court reversed the order.  The court held it had jurisdiction to decide the appeal because the FAA does not preempt Rule 2:2-3(a), a neutral procedural rule that identifies the types of orders that are appealable as of right.  Conducting a de novo review of the waiver factors established by the New Jersey Supreme Court in Cole v. Jersey City Medical Center, 215 N.J. 265, 280-81 (2013), the court found defendants had waived their right to arbitration by their litigation conduct, including their failure to indicate their intention to seek arbitration in their Rule 4:5-1(b)(2) certification or to fulfill their continuing obligation to amend the certification.
 

In this interlocutory appeal the court considers the first element of third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a), as applied to the conduct of third parties who allegedly aid or abet another person after that person injures the victim.  The State alleges defendants aided their son after he shot the victim and left him for dead.  More particularly, the State claims defendants failed to call 9-1-1 emergency services after defendants arrived at the scene of the injury, observed the injured victim, and learned he was shot.  Crucially, the State does not allege defendants aided or assisted their son in causing the injuries.
 

On appeal, the court affirms the Law Division order reconsidering and reversing an earlier order that denied defendants' motion to dismiss the endangering count.  Discerning no procedural irregularity in the court's reconsideration of the interlocutory order under review, the court considers de novo the plain language of N.J.S.A. 2C:12-1.2, as it applies to those who aid or assist another person who caused bodily injury to the victim.  
 

The court concludes, as did the trial judge, defendants cannot be held liable for aiding or abetting their son within the meaning of the endangering statute because defendants did not knowingly aid their son in causing bodily injury to the victim.  Accordingly, the court holds a third party cannot be held liable under N.J.S.A. 2C:12-1.2(a), unless the third party "knowingly solicited, aided, encouraged, purposely attempted or knowingly agreed to aid another person in causing bodily injury to the victim" as reflected in the pertinent model jury charge.  See Model Jury Charges (Criminal), "Endangering Injured Victim (N.J.S.A. 2C:12-1.2)" (rev. Mar. 14, 2016).