Published Appellate Court Opinions

In these matters, the court considered the scientific reliability of expert testimony that shaking alone can cause the injuries associated with shaken baby syndrome (SBS), also known as abusive head trauma (AHT).  The State sought to admit the testimony to prove aggravated assault and child endangerment charges against defendants Darryl Nieves and Michael Cifelli, fathers of infant sons who exhibited associated symptoms while in their respective fathers' care.  Following a hearing in the Nieves matter pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the trial judge concluded that expert testimony of shaking-only SBS/AHT was not scientifically reliable and barred admission of the evidence at trial.  The trial judge in the Cifelli matter adopted the finding. 

The court affirmed the judge's decision in Nieves, holding that the State failed to establish SBS/AHT's general acceptance within the medical community through expert testimony, supporting authoritative scientific studies, and judicial opinions.  Where, as here, the underlying theory integrates multiple scientific disciplines, the proponent must establish cross-disciplinary validation to establish reliability.  The State failed to do that here.  Despite its seeming acceptance in the pediatric medical community, the evidence showed a real dispute surrounding the hypothesis that the biomechanical principles underlying SBS/AHT actually supported the conclusion that shaking only can cause the injuries associated with SBS/AHT.

In this matter, the court considered whether defendant's act of making and disseminating a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divorce, and asking community members to "press" her husband to deliver the get constituted the predicate act of harassment, in violation of N.J.S.A. 2C:33-4(a), to justify the issuance of a final restraining order under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.  The court held that defendant's communication was protected by the Free Speech Clause of the First Amendment and the New Jersey Constitution and did not fall into any of the narrow exceptions—incitement to imminent violence or true threats—which would rob it of its protected status.  The court likewise concluded that because defendant's communication was not impermissibly invasive of plaintiff's privacy and was animated by a legitimate purpose, the acquisition of a get, rather than a purpose to harass, it was not violative of the harassment statute.  Lastly, the court held that plaintiff's allegation that there was a general tendency of violence toward get refusers in the Jewish community was inapposite because the claim was not supported by the record and because the theoretical possibility that a third party will commit a criminal act cannot render otherwise permissible speech unlawful.  As a result, the court vacated the final restraining order entered against defendant.

The court interprets Exemption 11 of the Highlands Act, N.J.S.A. 13:20-28(a)(11), which exempts entirely from all provisions of the Act and "any rules or regulations" adopted by the DEP pursuant to it:

the routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines, rights of way, or systems, by a public utility, provided that the activity is consistent with the goals and purposes of this act,

to exempt only "routine" upgrades to a utility's lines, rights of way or systems in the Preservation Area, rejecting the DEP's interpretation that "routine" modifies only "maintenance and operations" and does not modify "upgrade." 

Applying its interpretation, the court vacates the Highlands Applicability Determination issued to the Tennessee Gas Pipeline Company exempting its proposed compressor station in the Preservation Area from permitting review and remands the matter to the DEP for consideration of whether Tennessee's new compressor station can qualify as a "routine upgrade" to its pipeline system, thus bringing it within Exemption 11.

During the investigation of an alleged drug distribution network, the State Police obtained wiretap orders authorizing the interception of communications on various cellular phones pursuant to the New Jersey Wiretapping and Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to -37.  By leave granted, the State challenged an order suppressing all intercepted communications that followed the interception of a privileged marital communication between one of the defendants and his codefendant spouse.  The trial court entered the order under N.J.S.A. 2A:156A-21, which in pertinent part mandates the suppression of "the entire contents of all intercepted wire, electronic[,] or oral communications obtained during or after any interception" that is "unlawfully intercepted" or "not made in conformity with" the wiretap order or authorization.  N.J.S.A. 2A:156A-21(a) and (c). 

The court affirms the order based on its interpretation of the Act.  The State concedes that at the time of the interception of the initial privileged marital communication, N.J.R.E. 509 did not include a crime-fraud exception, and, as a result, the initial and subsequent 305 intercepted privileged marital communications are inadmissible at defendants' trial under the then-extant version of N.J.R.E. 509.  The State argues interception of the initial privileged marital communication did not trigger the mandatory suppression of all subsequent wiretap interceptions during the investigation under N.J.S.A. 2A:156A-21 because interception of the privileged marital communication was neither unlawful nor made in violation of the wiretap orders. 

The court concludes that not every interception of a privileged marital communication is unlawful and requires application of N.J.S.A. 2A:156A-21's suppression remedy.  The court finds incidental interceptions of privileged communications during the mandatory intrinsic minimization process attendant to the execution of every wiretap order are anticipated by, and authorized by, the Act, and do not trigger N.J.S.A. 2A:156A-21's suppression remedy. 

The court holds that, because the State Police knew the initial interception was of a communication between married spouses, made no effort to minimize the interception, and monitored the communication beyond the time necessary to determine if it was privileged, the interception was unlawful under the Act and violated the wiretap order, which expressly required minimization.  The court rejects the State's argument suppression is not required because the initial marital communication, and the 305 subsequent marital communications, were intercepted based on the good faith but erroneous belief the crime-fraud exception recommended by the Court in State v. Terry, 218 N.J. 224 (2014), and later enacted, N.J.S.A. 2A:84A-22(2)(e), L. 2015, c. 138, § 2, eff. Nov. 9, 2015, would apply retroactively such that the interceptions would be supported on that basis. 

In this legal-malpractice case, the corporate plaintiff and its president appeal from an order granting defendants' summary-judgment motion.  The trial court found plaintiffs' expert had failed to analyze how defendants' alleged breaches of the standard of care would have impacted a potential jury verdict or settlement and had not opined that defendants' alleged malpractice proximately caused any damages.  The judge also dismissed the president's individual claim because the undisputed facts showed she and defendants did not have an attorney-client relationship.   

The court affirms, holding plaintiffs had not established proximate cause as a matter of law and that expert testimony was necessary in this case to prove proximate causation and damages.  With respect to the president's individual claim of legal malpractice, the court holds she failed to demonstrate the existence of an attorney-client relationship between herself and defendants. 

Defendant appeals from Family Part orders enforcing provisions of a marital settlement agreement (MSA).  A critical area of dispute centered on plaintiff's desire to obtain a get—a divorce recognized under Jewish religious law through a process known as a beis din proceeding.  Before a verdict was reached in the Family Part divorce trial, the parties reached an agreement on all issues, including each party's obligations with respect to participation in beis din proceedings.

The court rejects defendant's argument that the Family Part judge violated his First Amendment rights by ordering him to participate in beis din proceedings and to sign an arbitration agreement with the beis din.  The court acknowledges the fundamental principle that civil courts may not become entangled in religious proceedings.  The First Amendment's Establishment Clause bars a state from placing its support behind a religious belief, while the Free Exercise Clause bars a state from interfering with the practice of religion.  U.S. Const. amend. I.  The court concludes the Family Part judge was asked to enforce a civil contract, not a religious one.  The court holds the MSA is a legally binding contract based on ample consideration from both parties and entered into knowingly and voluntarily.  The Family Part judge therefore had the lawful authority to enforce the agreement as written.

New Jersey Supreme Court precedent permits civil courts to resolve controversies involving religious groups if resolution can be achieved by reference to neutral principles of law and does not require the interpretation of religious doctrine.  Defendant agreed in the MSA to abide by the beis din ruling, whatever that might be.  The Family Part judge did not interpret religious doctrine and scrupulously avoided entanglement with religion because the judge applied well-established principles of civil contract law, not rabbinical law.  The latter body of law remained solely within the province of the beis din and was not interpreted or applied by the Family Part judge.

The court concludes that the orders defendant challenges served the secular purpose of enforcing the parties' contractual obligations under the MSA, which in turn serves the secular purpose of encouraging divorce litigants to resolve their disputes by negotiating and entering an MSA.

In May 2019, defendants were found in possession of two loaded handguns while driving a car on public roads.  Neither defendant had a permit to carry a handgun.  Both defendants were indicted for second-degree unlawful possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b)(1).  Following the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022), defendants moved to dismiss those criminal charges, arguing that the version of the gun-carry permit statute in effect at the time of their arrest, N.J.S.A. 2C:58-4 (2018), was facially unconstitutional under Bruen.  The trial court agreed and dismissed the charges.  This court granted the State leave to appeal the order.

The court holds that defendants did not have standing to challenge the gun permit statutes because neither defendant had applied for a handgun-carry permit. Nevertheless, the court addresses the merits of the constitutional challenge and holds that the justifiable need requirement in N.J.S.A. 2C:58-4(c) (2018) was severable and the remaining provisions of N.J.S.A. 2C:58-4 (2018), as well as N.J.S.A. 2C:39-5(b)(1), were constitutional and enforceable.  Accordingly, the court reverses the order dismissing the charges and remands with direction that the trial court reinstate both counts of unlawful possession of a handgun without a permit.

In this appeal from an order denying defendant's motion to suppress evidence seized following the 5:00 a.m. execution of a knock-and-announce search warrant at a residence, the court finds the law enforcement officers did not wait a reasonable period after knocking and announcing their presence before forcibly breaching and entering the home's front door.  The court determines that based on the circumstances presented, the officers' forcible entry into the home after waiting less than five seconds after after knocking and announcing their presence was unreasonable and rendered the subsequent search of the home and seizure of evidence unconstitutional.  The court determines the exclusionary rule requires suppression of the evidence, reverses the order denying the suppression motion, and remands for further proceedings.

         Plaintiff, who is incarcerated at a federal prison located in New Jersey, wants to marry someone who is incarcerated at a federal prison located in a different state.  He sued the New Hanover Township Municipal Clerk and Registrar, claiming she had violated his civil rights contrary to the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, by applying the requirement in N.J.S.A. 37:1-7 and -8 that couples appear in person to obtain a marriage license.  He appeals an order denying his motion for a preliminary injunction and granting defendant's cross-motion to dismiss the complaint.  He argues the enforcement of the in-person requirement was unconstitutional and contends the motion judge should have used his equitable powers to enjoin enforcement of the requirement. 

         The court rejects both arguments.  The court holds the statutes at issue do not create an unconstitutional bar of a prisoner's right to marry but instead apply to individuals who want to marry and are reasonably related to the legitimate goal of ensuring the validity of marriages.  The court also holds the motion judge could not have used his equitable powers to enjoin defendant's enforcement of the statutory in-person requirement.  Accordingly, the court affirms the dismissal of plaintiff's complaint and the denial of plaintiff's motion for a preliminary injunction.

          On February 23, 2017, the New Jersey Department of Environmental Protection (DEP) issued a flood hazard area applicability determination (FHA Determination) to Hampton Farm, LLC (Hampton Farm).  Shortly thereafter, appellant Musconetcong Watershed Association (MW Association) requested the DEP to conduct an adjudicatory hearing so it could challenge the FHA Determination.  Four years later, on April 6, 2021, the DEP denied that request.  MW Association timely appealed from the April 6, 2021 decision.  It also sought leave to appeal from the February 23, 2017 FHA Determination, contending it had become final when the DEP denied MW Association's request for a hearing.  On an interlocutory motion, a two-judge panel of the court denied leave.  The court now reconsiders, reverses that interlocutory ruling, and grants leave to appeal.

          The court holds that the DEP's FHA Determination became a final agency decision subject to appeal when the DEP denied MW Association's request for an adjudicatory hearing to challenge the FHA Determination.  At that time, all administrative remedies were exhausted.  To address the DEP's four-year time delay in deciding MW Association's request for an adjudicatory hearing, the court holds that any party, including a third-party objector, has the right to petition the DEP to rule on a pending request for an adjudicatory hearing under N.J.A.C. 1:1-4.1(a).  The DEP will then have thirty days from receipt of the petition to "inform all parties of its determination" regarding that request.  N.J.A.C. 1:1-4.1(a).

          The court also holds that MW Association did not have a right to an adjudicatory hearing because no statute conferred that right to MW Association, which is a third-party objector, and MW Association did not have a particularized property interest warranting a hearing.  Accordingly, the court affirms the April 6, 2021 final agency decision.

          Finally, because the court has reversed the ruling on the interlocutory motion, the DEP has two options concerning its FHA Determination.  It can either (1) elect to address MW Association's challenges to its February 23, 2017 FHA Determination and a new briefing schedule will be issued; or (2) request a remand so it can expand and update the factual findings supporting its FHA Determination. 

     Plaintiff, who had been terminated from his position as assistant commissioner for the Department of Health, filed a complaint against the State, alleging a claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.  In his second amended complaint, plaintiff asserted a defamation claim against Governor Philip D. Murphy.  A Law Division judge granted defendants' motion to dismiss the defamation claim, concluding plaintiff had not pleaded the element of actual malice with sufficient specificity.  
     In his fourth amended complaint, plaintiff again asserted a defamation claim against Governor Murphy, referencing in particular statements made during May 29, 2020 and June 1, 2020 press briefings.  Defendants moved to dismiss the defamation claim pursuant to Rule 4:6-2(e).  The judge denied the motion, concluding plaintiff had pleaded sufficient facts in the fourth amended complaint to demonstrate actual malice.  
     The court reversed, concluding the judge had misapplied the actual-malice standard.  After conducting a de novo review, the court held plaintiff's conclusory allegations did not meet the actual-malice standard and, as a result, plaintiff's defamation claim failed.  Reversing the denial of defendants' motion to dismiss, the court remanded the case with a direction that the judge enter an order dismissing the defamation claim.  
 

Plaintiffs sued defendants, a law firm and three individuals associated with the firm, claiming that their rights of privacy had been violated when defendants failed to redact their personal identifiers contrary to the directive of Rule 1:38-7.  Plaintiffs also contended that defendants violated one plaintiff's right of privacy by including records of that plaintiff's arrest and criminal charges.  The court holds that Rule 1:38-7 did not create a private cause of action for a violation of the Rule.  Instead, the remedy for a violation of Rule 1:38-7 is set forth in the Rule, which states that a party or other interested individual can move, on an expedited basis, to replace documents containing unredacted personal identifiers with redacted documents.  R. 1:38-7(g).  The court also holds that plaintiffs failed to state viable causes of action for invasions of privacy or infliction of emotional distress.   Accordingly, the court affirms the dismissal of plaintiffs' complaint. 

Defendant City of Jersey City's (City) Code of Ordinances Section 105 permits any individual to request a "determination of significance" from the City's Historic Preservation Officer (HPO) regarding whether a subject building warrants preservation.  Consistent with local ordinances, plaintiff, who owns a circa-1900 building in Jersey City, sought a determination of significance before applying for a demolition permit.  The City's HPO concluded plaintiff's building likely would not be approved for demolition due to its historic, architectural, and cultural significance.

Pursuant to local zoning ordinance, plaintiff appealed to defendant Zoning Board of Adjustment (ZBA), which upheld the determination of significance.  Thereafter, he filed a complaint in lieu of prerogative writs in the Law Division alleging defendants' actions were arbitrary, capricious, and unreasonable.  The Law Division found the ZBA's decision was not arbitrary, capricious, or unreasonable and dismissed the complaint. 

The court concludes the HPO's issuance of a determination of significance — an advisory opinion seemingly intended to prevent plaintiff's submission of an application for a demolition permit — is not a procedure authorized by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163.  The MLUL does not authorize HPOs to unilaterally grant or deny historic preservation designations that bind a zoning officer in determining whether a demolition permit shall issue; that advisory function belongs solely to the Historic Preservation Commission, as detailed in the MLUL, and cannot be delegated to other entities or individuals.  The Commission, in turn, may designate a site as historic only if it is voted upon by a majority of the full governing body. 

The court reverses and remands to allow plaintiff to apply for a demolition permit in accordance with the MLUL.  The court also concludes Jersey City's Code of Ordinances Sections 105-3, 105-4, and 105-7 are ultra vires and inconsistent with the objectives and procedures concerning historic preservation mandated by the MLUL to the extent they delegate powers reserved for a municipality's historic preservation commission to the HPS.   

M.P., a juvenile, is charged with gun possession and participation in a murder.  He appeals the trial judge's decision to admit the statement he gave to detectives during a stationhouse interrogation, which was attended by his mother.  M.P. asks the court to adopt a new categorical rule that would prohibit police from conducting a stationhouse interrogation of a juvenile unless the minor has consulted with an attorney.  M.P. relies on neuroscience and behavioral science research that shows juveniles are not only more impulsive and compliant than adults but also tend to lack the cognitive skills to comprehend Miranda rights.  He contends that in view of advances in the scientific understanding of adolescent brain development, no juvenile should be subjected to a stationhouse interrogation—with or without parental participation—until the juvenile has consulted with counsel.

The court explains it has no authority to pronounce any such per se requirement.  While acknowledging there have been significant reforms to New Jersey's juvenile justice system in recent years based on scientific research on how a juvenile's brain develops and how it functions differently from a fully mature adult brain, the court holds those studies do not grant it authority to substantially rework the State's juvenile interrogation jurisprudence, and certainly not to overturn New Jersey Supreme Court precedents.  The court concludes that while the rules and principles announced in those precedents are not immutable, it is for our Supreme Court and the Legislature—not an intermediate appellate court—to weigh the benefits and costs of the major juvenile justice system policy shift M.P. proposes.

The court also declines M.P.'s request to revise the Miranda warnings to make them more comprehensible to adolescents.  While noting the current warnings are not sacrosanct and might be improved based on juvenile brain research, the court concludes the task of revising the warnings to address the inherent differences between adults and juveniles would benefit from a collaborative process the court cannot provide. 

Turning to the application of existing precedents to the present case, although the court is mindful of the deference it owes to the trial judge's factual findings, it concludes that considering all relevant circumstances, including M.P.'s intellectual challenges, mental conditions, highly emotional state, and the role his mother played, the State failed to prove beyond a reasonable doubt that M.P. knowingly, intelligently, and voluntarily waived his right against self-incrimination.  The court therefore reverses the trial judge's decision. 

The court rejects the State's argument that reviewing courts should not consider an interrogee's personal characteristics, such as intelligence and education background, if those circumstances were not known by or "noticeable" to police.  The court holds those circumstances remain relevant notwithstanding they may not manifest outwardly during an interrogation.  The court explains that reviewing courts do not employ a purely objective test when determining whether the State proved a valid Miranda waiver beyond a reasonable doubt, but rather consider the characteristics of the accused and not just the details of the interrogation.   

The court also rules the guidance the Supreme Court provided in State in Int. of A.A., 240 N.J. 341, 354 (2020)—which held police should provide an opportunity for a juvenile and parent to consult privately after Miranda warnings are given—did not mandate a new rule of police procedure but rather amplified the existing totality-of-the-circumstances test.  Accordingly, the court reasons the rationale undergirding A.A. should be given retroactive effect.

The court considered plaintiff's challenge to a trial court order vacating a final judgment by default in a tax sale foreclosure.  Plaintiff obtained a final judgment by default on its tax sale lien and defendants timely moved to vacate the order, alleging defective service of process.  The trial court found sufficient defects with process to warrant vacating the final judgment, which reopened the redemption period and allowed defendant to redeem. 

The court affirmed, concluding service of process was defective pursuant to both the general court rules governing personal service, as well as the RULLCA-specific statute governing service of process on LLCs, N.J.S.A. 42:2C-17.  The court noted the differences between service rules in RULLCA and the Business Corporations Act (BCA), N.J.S.A. 14A:1-1 to: 18-11, in finding plaintiff's waiver argument unavailing.  Although RULLCA and the BCA contain some similarities, the rules governing service are distinct and materially different.  Service upon a corporation in New Jersey is governed by Rule 4:4-4(a)(6) and N.J.S.A. 14A:4-2, whereas service upon an LLC is governed by Rule 4:4-4(a)(5), and RULLCA, N.J.S.A. 42:2C-17. 

The RULLCA service of process provision contains an additional method of service lacking in the BCA, providing, as a permissive alternative, that where personal service in accordance with the court rules fails despite reasonably diligent efforts, service may be made upon the State filing office.  N.J.S.A. 42:2C-17(b).  The BCA service of process provisions do not authorize the State to accept process as an agent of a corporation.  R. 4:4-4(a)(6); N.J.S.A. 14A:4-2.

Because final judgment was vacated, the court followed Green Knight Cap., LLC v. Calderon, 252 N.J. 265 (2022), in holding the period of redemption reopened and continued until barred by a valid final judgment of the Superior Court.  The court interpreted the holding in Green Knight, in conjunction with Rule 4:64-6(b) and the tax sale law, N.J.S.A. 54:5-86(a), to mean the redemption period reopens when a final judgment in foreclosure is timely vacated.

Defendant injected himself with fentanyl-laced heroin, lost control of an SUV he had been driving, his vehicle crashed into a gas station, and tragically killed three persons and injured others.  He pled guilty to three counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and was sentenced to an aggregate prison term of thirty years, with the requirement that he serve over twenty-five years before he is eligible for parole.

Defendant appeals from the denial of his motion to suppress and his sentence.  He argues that the warrantless search of his clothes, conducted at a hospital over an hour after his arrest, was unlawful, and that he is entitled to a resentencing.  The court holds that the search of his clothes was a lawful search incident to his arrest.  The court also holds that the sentencing court conducted the appropriate analysis and did not abuse its discretion in sentencing defendant to three consecutive prison terms of ten years for the death of each victim.  Accordingly, the court affirms defendant's convictions and his sentence. 

          Appellant Karen McKnight appeals from the Board of Review's (the "Board") August 26, 2022 final agency decision, which held her liable to return an overpayment of $6,277 for unemployment benefits she was allegedly ineligible to receive for the weeks ending June 30, 2018 through May 4, 2019, pursuant to N.J.S.A. 43:21-16(d).  The central issue on appeal is whether a claimant, who is otherwise separated from full-time employment, may include wages received from a part-time position, which they continue to maintain, in the calculation of their average weekly wage for purposes of unemployment benefits.  The court concluded that the exclusion of the wages contravenes the legislative purpose of the unemployment benefits statute and is arbitrary as legally unsupported.  Therefore, the court reversed and remanded for a recalculation of benefits.

          This appeal arises out of an action challenging the suspension of a company that had been providing towing services in a municipality.  As a matter of first impression, the court holds that the company had limited constitutional due process rights when it was suspended from the Township's towing lists.  The court also holds that plaintiff received the process due its limited property interest.  In addition, the court rejected plaintiff's arguments that its suspension from the towing lists violated its constitutional substantive due process and equal protection rights.  Consequently, the court affirmed the summary judgment dismissal of plaintiff's claims against the Township, its police chief, and one of its police officers. 

         In this appeal from the Law Division's grant of summary judgment to defendants, the court was asked to consider, for the first time, whether a motor vehicle subject to a recall notice alone is sufficient to establish a claim pursuant to the New Jersey Lemon Law statute, N.J.S.A. 56:12-29 to -49.  Defendant issued a recall notice that encompassed plaintiff's vehicle.  Plaintiff subsequently brought the vehicle to the dealer to have the recall repair performed.  Primarily due to disruptions resulting from the COVID-19 pandemic, defendant's ability to complete the recall was delayed.

         A Law Division judge granted defendant summary judgment.  The court affirmed and held the existence of a recall notice alone is not sufficient to establish the "nonconformity" element of a Lemon Law claim.  In addition, because plaintiff primarily used the vehicle for business purposes, it is excluded from the Lemon Law's coverage.

The court considers whether the Superior Court has jurisdiction to adjudicate claims for monetary damages, filed years after the statutory deadline for filing a tax appeal, based on allegations that municipal officials committed fraud and other torts by assessing real property in a manner inconsistent with law and at an amount above its true market value.  The court concludes that the Superior Court lacks jurisdiction to hear such claims because they are substantively equivalent to a tax appeal properly venued in the Tax Court or a county board of taxation, and the statutory deadlines for challenging local property tax assessments may not be circumvented by a late-filed complaint seeking damages for alleged torts arising from the tax assessment process.  In light of these conclusions, the court affirms the trial court order dismissing the complaint in this matter with prejudice for failure to state a claim upon which relief can be granted.