Published Appellate Court Opinions

We granted Academy Express LLC's application to file an emergent motion to stay New Jersey Transit's award or execution of a contract for regular route local bus services in Hudson County pending Academy Express's appeal of NJ Transit's decision to award the contract to Orange, Newark, Elizabeth Bus Inc. (ONE Bus) and permitted ONE Bus to intervene as an interested party, entering a temporary stay pursuant to Rule 2:9-8 pending our disposition of the motion. Having considered the briefs and oral argument — and without prejudice to the merits panel's ultimate disposition of the matter — we deny the motion and dissolve our temporary stay, concluding Academy Express has not demonstrated a reasonable probability of success on the merits.

The powers of NJ Transit are "vested in the voting members of the board." N.J.S.A. 27:25-4(e). The corporation has been statutorily exempted from the need to bid the contracting-out of bus routes, N.J.S.A. 27:25-6(b), N.J.S.A. 27:25-11(g)(3)(d), and may choose the proposal the Board determines to be "the most advantageous to the corporation, price and other factors considered," N.J.S.A. 27:25-11(c)(1),(2). The Board also has broad discretionary authority to reject any proposal when it determines "it is in the public interest to do so," N.J.S.A. 27:25-11(c), and "shall" consider the "adequacy of performance by a carrier or its affiliates under other contracts . . . with NJ Transit" under its "contracting out" regulations, N.J.A.C. 16:85-2.3(a)(4).

Given that broad authority, NJ Transit could certainly consider the recently settled qui tam action against Academy Express and its affiliated companies and determine it was in the public interest to reject a proposal from a carrier that had only weeks before entered into a multi -million-dollar settlement with the State in a massive fraud case involving the same routes covered by these contracts. See Keyes Martin & Co. v. Dir., Div. of Purchase & Prop., 99 N.J. 244, 262 (1985) (upholding Director's rejection of a bid "in the public interest" based on an appearance of wrongdoing attributable to a possible conflict of interest).

In this class action matter arising out of the purchase of a vehicle, the court considers whether defendants' material breach of an arbitration agreement––the failure to pay the administration fees––precludes them from asserting the waiver of the right to pursue a class action in the subsequent Superior Court litigation.

The arbitration agreement clearly informed consumer purchasers they were waiving their right to pursue a class action in court and in arbitration. Although defendants cannot compel arbitration because of their failure to pay the requisite fees, their breach of the agreement does not eradicate the other provisions to which plaintiff agreed––namely the waiver of the right to pursue a class action in court. This court affirmed the orders denying class certification.

Following years of litigation and a trial, the Borough of Englewood Cliffs (the Borough) was found to have failed for decades to comply with its constitutional obligations to provide its fair share of affordable housing. Thereafter, the Borough entered into settlement agreements to allow affordable housing to be built. Following a change in the membership of the Borough's council, however, the Borough moved to vacate the settlement agreements, contending that two council members who had voted for the agreements had conflicts of interest. That argument was in direct contradiction to the position the Borough had taken before the trial court and in a related litigation where the Borough had argued that there were no conflicts of interest.

The court affirms the trial court's rejection of the Borough's arguments for several reasons, including that the Borough was judicially estopped from claiming any conflict. The record establishes that for years the Borough has stalled various efforts to allow affordable housing to be built. The court emphasizes that the time for delaying constitutional compliance is over.

In this appeal, the court held that a statement elicited in violation of defendant's Sixth Amendment rights could be used for impeachment purposes, and the defendant's status as a juvenile waived to adult court had no impact on this conclusion. In doing so, the court relied upon the United States Supreme Court ruling in Kansas v. Ventris, 556 U.S. 586, 592 (2009), which held that voluntary statements obtained in violation of a defendant's Sixth Amendment right to counsel are admissible to impeach a defendant's inconsistent testimony at trial. Although the New Jersey Constitution provides a more robust right to counsel than the Federal Constitution, see State v. Sanchez, 129 N.J. 261, 275 (1992), the court reasoned that excluding the statement for all purposes "would add little appreciable deterrence" to police conduct. Ventris, 556 U.S. at 593.

In addition, acknowledging New Jersey's "special protections" accorded to juveniles in criminal proceedings, the court held that any inherent impulsivity or vulnerability due to defendant's age was remedied by the preclusion of his statement in the prosecution's case-in-chief. The court declined to expand New Jersey's juvenile protections so far such that a juvenile waived to adult court would be permitted to lie under oath, without permitting the State the opportunity to confront the defendant with his or her prior inconsistent statement.

In the midst of the COVID-19 pandemic, the parties in this legal malpractice action exchanged minimal discovery before the court issued its notice pursuant to Rule 4:36-2, advising that discovery would end in sixty days and any application for an extension must be made before the discovery end date (DED). Thirty days later, the court issued a trial date.

The parties secured a consensual sixty-day discovery extension, see Rule 4:24-1(c), but when defendants moved before expiration of the DED for a further extension, the judge denied the motion, concluding the exceptional circumstances standard applied because a trial date was set, and defendants failed to meet that standard. Plaintiff's motion for reconsideration was similarly denied, but not before defendants sought summary judgment, essentially arguing the lack of expert opinion doomed plaintiff's complaint. The judge granted defendants summary judgment.

The court reversed. The court construed Rule 4:24-1(c), which states a judge shall grant an extension motion upon good cause if made before the DED, but also states a court may grant a discovery extension only in exceptional circumstances once an arbitration or trial date is set. The court concluded that while court administrators may send notices setting future arbitration and trial dates before discovery ends, the plain language of the Rule, read in pari materia with other rules, requires judges to apply the good cause standard if the motion for a discovery extension is made before the DED. Plaintiff met the good cause standard.

Defendants' motions for summary judgment to dismiss the complaint as untimely because it was filed four and a half years after decedent's death were denied by the trial court, which allowed the action to proceed by applying the minority tolling provision found in N.J.S.A. 2A:14-2(a), concluding the Legislature did not make clear whether the Act intended to distinguish between minors who died and minors who survived.

The court reversed, finding minority tolling applies only to actions brought on behalf of minors, and not to actions brought on behalf of decedents or their estates. The word "minor" requires a living human being and the plain legal meaning of "minor's 13th birthday" demonstrates the Legislature's intent that only living minors have birthdays. Plaintiffs were limited to wrongful death and survival claims causes of action, each of which applies a two-year statute of limitations. The court vacated the orders denying summary judgment but remanded to the trial court for findings as to whether defendants had substantially complied with those statutes.

Defendant was convicted of the lesser-included offense of passionprovocation manslaughter and attempted murder. His son was acquitted of all charges. The judge sentenced defendant to an aggregate sentence of twenty-years' imprisonment subject to NERA.

Defendant testified in his own behalf at trial, asserting self-defense and defense of his son. Defendant admitted during cross-examination that the statement he provided to police on the night of the incident failed to include critical details, for example, that his son was present or that defendant stabbed the two victims. Defendant admitted that he lied to police.

During the course of his summation, the prosecutor expressed his personal opinion that defendant was guilty, repeatedly called defendant a "liar," told the jury "we know he's a liar," and said defendant's testimony was "a story created by a liar." The court concluded the prosecutor's repeated derogatory comments amounted to plain error requiring reversal.

The court also held the judge's charge was fatally deficient because the judge never told the jury that self-defense and defense of others also applied to passion-provocation manslaughter, and the judge failed to instruct the jury on the lawful use of a weapon for a protective purpose with respect to the two weapons convictions.

In this criminal prosecution, the court granted the State's motion for leave to appeal from an order suppressing evidence seized from a motor vehicle without a warrant. Police conducted an investigatory stop after surveilling the car for more than an hour and developing information that the front seat passenger, defendant Kyle A. Smart, was engaged in drug activity. At the roadside stop, no evidence of drug activity was observed in plain view; the occupants of the car neither made incriminating statements nor furtive movements; and the driver denied consent to search. Police then requested a K-9 unit. The dog alerted to the presence of narcotics, leading to a warrantless search of the car and seizure of a loaded handgun and drugs from the cabin.

Finding police had reasonable and articulable suspicion to pull over the vehicle, the motion judge upheld the stop and further determined probable cause arose when the canine sniff revealed the presence of narcotics in the car. However, the judge found the circumstances giving rise to probable cause were not "unforeseeable and spontaneous," justifying a warrantless search under the automobile exception to the warrant requirement pursuant to State v. Witt, 223 N.J. 409, 450 (2015). Accordingly, the judge suppressed the evidence seized.

Although the court agrees with the State that police could not have secured a warrant before the car was stopped and, in that sense, they did not "sit" on probable cause, under the circumstances proscribed by Witt, the court disagrees with the State's contention that probable cause was unforeseeable and spontaneous within the meaning of Witt. Because probable cause did not arise until the canine alerted for the presence of narcotics, the court concludes those circumstances were not unforeseeable and spontaneous and, as such, the automobile exception to the warrant requirement did not apply to this warrantless search. The court thus affirms the motion judge's order for slightly different reasons.

In this appeal, the court considered the propriety of a negotiated plea agreement provision, permitting the State to revoke its sentencing recommendation if the defendant is arrested on new charges that are not adjudicated prior to sentencing. Because the court concluded a no-new-arrest or no-new-charges provision violates a defendant's right to due process and is fundamentally unfair, the court vacated defendant's conviction and remanded the matter to allow the parties to negotiate a new plea agreement or permit defendant to withdraw his guilty plea. The court's decision does not affect those plea agreement provisions that limit the State's right to revoke its sentencing recommendation or recommend a harsher sentence if a defendant fails to appear at sentencing, provided the defendant is afforded a fair hearing pursuant to established case law.

These six back-to-back appeals arising from Law Division orders in two vicinages have been consolidated for the issuance of a single opinion. They require the court to consider an issue of first impression –– whether in the context of Rule 4:6-2(e) motions to dismiss with prejudice, insurance policies issued by defendants did not cover business losses incurred by plaintiffs that were forced to close or limit their operations as a result of Executive Orders issued by Governor Philip Murphy to curb the COVID-19 global health crisis.

We affirm because we conclude the motion judges were correct in granting Rule 4:6-2(e) dismissals of plaintiffs' complaints with prejudice for failure to state a claim on the basis that plaintiffs' business losses were not related to any "direct physical loss of or damage to" as required by the terms of their insurance policies. We conclude plaintiffs' business losses were also not covered under their insurance policies' civil authority clauses, which provided coverage for losses sustained from governmental actions forcing closure or limiting business operations under certain circumstances. We further conclude defendants' denial of coverage was not barred by regulatory estoppel. In the alternative, we conclude that even if plaintiffs' business losses otherwise satisfied the requirements of the relevant clauses, coverage was barred by their insurance policies' virus exclusions and endorsements because the Executive Orders were a direct result of COVID-19.

After settling her medical malpractice suit with plaintiff's estate, defendant-doctor Bowers was prepared to try her third-party contribution claim against third-party defendant Comiskey, who also treated plaintiff but was never named as a direct defendant. Comiskey moved to dismiss, arguing the Joint Tortfeasor Contribution Law, (the JTCL), N.J.S.A. 2A:53A-1 to -5, predicated a contribution-only claim upon plaintiff's recovery of a "money judgment" against Bowers. The settlement and release executed by the parties did not satisfy the JTCL. The motion judge denied Comiskey's motion, finding it was untimely, and because the settlement was placed on the public website of the Division of Consumer Affairs, as required by regulation, the settlement was the equivalent of a money judgment.

On leave granted, the court reversed. The court reviewed a line of cases from the Supreme Court and the Appellate Division that have consistently construed the right to contribution under the JTCL as requiring entry of a money judgment against the contribution claimant.

The court also raised concern about continued application of the Court's holding in Young v. Steinberg, 53 N.J. 252 (1969). In Young, the Court held that "[a] suit for contribution based on a settlement which has been elevated to the status of a judgment by formal court proceeding, and which discharges the injured party's claim against a non-settling joint tortfeasor, comports with the intent of our statutory scheme." Id. at 255 (emphasis added). At trial, the contribution claimant must still "establish a common liability . . . and the quantum of the damages ensuing from the joint offense." Ibid.

The court noted Young was decided prior to enactment of the Comparative Negligence Act (the CNA), N.J.S.A. 2A:15-5.1 to -5.8. As a result, pro rata apportionment of damages under the JTCL was supplanted by apportionment of liability and damages based on comparative fault.

The trial court dismissed plaintiffs' personal injury complaint against Cumberland County because plaintiffs served their notice of claim on the county clerk rather than the clerk of the board of county commissioners. Recognizing that N.J.S.A. 59:8-7 and -10 do not specifically identify the county office or officer to be served with a notice of claim, the court held as a matter of first impression that service on the county clerk suffices.

In January 2007, defendant sold a business to a relative of the plaintiffs. All but $12,500 of the $196,5000 purchase price was financed by defendant. The loan was secured by a mortgage on plaintiffs' residence and the personal guaranty of plaintiff Vadim Chepovetsky. Shortly thereafter, the buyer defaulted. The maturity date of the mortgage was February 22, 2012. Litigation in 2008 did not result in a judgment. In 2011, plaintiffs filed a joint Chapter Seven bankruptcy. The debt schedules list defendant as an unsecured creditor. The bankruptcy trustee abandoned his interest in the plaintiffs' residence. A discharge was granted to plaintiffs and a final decree was entered closing the case a no-asset bankruptcy. Defendant received timely notice of the bankruptcy filing and the discharge.

Thereafter, plaintiffs filed this action to quiet title. Defendant filed a counterclaim, seeking to enter judgment for personal liability against plaintiffs on the guaranty and to fix the amount due on the mortgage. Plaintiffs did not raise the affirmative defense of discharge in bankruptcy. Plaintiffs' complaint was dismissed for failing to provide discovery. The court conducted a bench trial on the counterclaim. Plaintiffs did not attend the trial and their attorney did not raise the defense of discharge in bankruptcy. The court entered judgment for $410,800 against Chepovetsky but not Svetlana Nashtatik.

Thereafter, plaintiffs moved to vacate the judgment, alleging it was void due to their bankruptcy discharge, and to vacate the dismissal of their complaint, because they were not required to respond to defendant's discovery demands related to a debt discharged in bankruptcy. They also argued that foreclosure was barred by the six-year statute of limitations imposed by N.J.S.A. 2A:50-56.1. Defendant opposed the motion, relying on equitable principles, including unclean hands, and asserted that plaintiffs did not prove that Chepovetsky's liability on the guaranty was discharged.

The trial court vacated the judgment and the order dismissing the quiet title action. The court found the judgment was void ab initio because Chepovetsky's "personal debt" to defendant was discharged in bankruptcy. The court stated it was unaware of the discharge in bankruptcy when it entered judgment against Chepovetsky. The court found the order dismissing the complaint was "improvidently entered" and reinstated the complaint, noting that pursuant to 11 U.S.C. § 524, plaintiffs were "not obligated to do anything" and were "entitled to disregard" discovery that was part of an attempt to collect a discharged debt. The court also found that the mortgage matured on February 22, 2012, and defendant failed to institute a timely foreclosure action within six years. Therefore, an action to quiet title was appropriate.

We granted defendant leave to appeal. Applying the Supremacy Clause, the court held that the nature, extent, and enforceability of a discharge in bankruptcy is controlled by the Bankruptcy Code and interpretative federal case law. Pursuant to 11 U.S.C. § 524, debtors are not required to defend a postdischarge collection action. Consequently, they were not required to provide discovery, and the failure to plead discharge in bankruptcy as an affirmative defense did not waive that defense or estop plaintiffs from asserting it. Enforcing the waiver of the affirmative defense of discharge in bankruptcy under Rule 4:5-4 would violate the Supremacy Clause and be inconsistent with substantial justice. The court rejected defendant's reliance on the Rooker-Feldman doctrine.

The court held that Chepovetsky's personal liability on the guaranty was discharged in bankruptcy and that Nashtatik was not a guarantor of the loan. Accordingly, the judgment imposing personal liability on Chepovetsky was void ab initio and properly vacated.

As to the mortgage lien, the court held that defendant was entitled to a judgment fixing the amount due on the mortgage, explaining that a discharge in bankruptcy only discharges the personal liability of the debtors, and the mortgage lien remains enforceable against their real property if the foreclosure action is timely filed. The court expressed no opinion on whether a future action to foreclose the mortgage would be time-barred by the applicable statute of limitations. The ruling that foreclosure was time-barred was vacated, with that issue to be reconsidered on remand.

The court affirmed the provisions of the trial court order designating registrant B.B. as a Tier II offender under the Registration and Community Notification Laws, N.J.S.A. 2C:7-1 to -23, commonly known as Megan's Law, and ordering notification of schools and community organizations pursuant to N.J.S.A. 2C:7-8(c)(2). However, the court: (1) concluded it was an abuse of the trial court's discretion to give a score of nine on factor six of the Risk Assessment Scale, "duration of offensive behavior," because the State did not prove by clear and convincing evidence that B.B.'s sexual offenses took place over two years and held that a score of three, applicable to sexual offenses that took place over one or two years was appropriate; and (2) vacated a provision of the trial court order excluding B.B.'s personal identifiers from the Sex Offender Internet Registry, N.J.S.A. 2C:7-12 to -18. The court found that the evidence on which the trial court relied for that determination was not expert testimony or other evidence specific to the unique aspects of B.B.'s offenses or character relevant to his risk of re-offense. The court noted, but did not decide, the question of whether Article IV, Section 7, Paragraph 12 of the State Constitution and its implementing statute, N.J.S.A. 2C:7-13(c), preclude a court from excluding the personal identifiers of a Tier II offender subject to community notification pursuant to N.J.S.A. 2C:7-8(c)(2) from the State Offender Internet Registry.

Plaintiff's complaint about a June 21, 2018 automobile accident was filed on June 29, 2020. Defendants moved to dismiss the complaint for failure to commence the action timely, citing the two-year statute of limitations set forth in N.J.S.A. 2A:14-2(a). In opposition, plaintiff contended the complaint was timely filed, asserting the Supreme Court had tolled the statute of limitations in its June 11, 2020 Fourth Omnibus Order related to the COVID-19 pandemic and effectively had added fifty-five days to the statute-of-limitations period. The trial court granted defendants' motion, finding the Supreme Court in its Omnibus Orders related to the COVID-19 pandemic had not added time to the statute of limitations but had deemed the period of time from March 16, 2020, to May 10, 2020, a legal holiday for purposes of computing time.

The court agreed with the trial court, finding the Supreme Court had issued an order on March 17, 2020, in which the Court cited its constitutional rule-making authority under Article VI, section 2, paragraph 3 of the New Jersey Constitution to deem the relevant time period a legal holiday. Noting the express language in the Fourth Omnibus Order "affirm[ing] the provisions of [its] prior orders" and that the Supreme Court had not cited any new or different authority for its directive regarding the computation of time, the court concluded the Supreme Court in the Fourth Omnibus Order was exercising its constitutional rule-making authority to deem March 16, 2020, through May 10, 2020, a legal holiday and was not adding time to the statute of limitations.

The court considered a matter of first impression relating to the application of the New Jersey Law Against Discrimination (LAD). Specifically, the court considered whether the LAD applies to claims arising from a sexual predator's criminal assaults against a young schoolgirl where those crimes were committed on a school bus. Under the circumstances of this case, the court concluded the LAD did not apply, especially where, as here, there was no evidence that the predator's compulsive and repetitive behavior was the result of any proven intention to discriminate specifically against young women. The court found the LAD was simply not intended to provide a civil remedy for child sex abuse committed by compulsive pedophiles. Even if it was, it concluded a victim must demonstrate the discriminatory conduct would not have occurred 'but for' the student's protected characteristic. The court concluded the plaintiffs did not meet that burden. The court's opinion construing the LAD did not address or preclude relief under other laws that were not invoked by plaintiffs on appeal.

In this appeal, the court affirmed the dismissal of plaintiffs' complaint challenging the Medical Aid in Dying for the Terminally Ill Act, N.J.S.A. 26:16-1 to -20, which allows qualified terminally ill patients to request and obtain from his or her physician a prescription for medication that the patient can choose to self-administer to end his or her life in a "humane and dignified manner." The court held that plaintiffs, a terminally ill patient, a doctor, and a pharmacist, lacked standing to challenge the Act because the legislation provides that participation under its provisions is voluntary for patients and health care professionals. It also concluded that plaintiffs' constitutional challenges to the legislation, premised on the New Jersey Constitution's single object rule and right to enjoy and defend life and the United States Constitution's Free Exercise Clause, lacked merit.

In these appeals, trial courts in two vicinages reached opposite conclusions regarding whether, pursuant to the enactment of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:6I-31 to -56, N.J.S.A. 54:47F-1, N.J.S.A. 40:48I-1, N.J.S.A. 18A:61F-1, N.J.S.A. 2C:35-23.1, and N.J.S.A. 2C:52-6.1,¹ a defendant may be admitted into pretrial intervention (PTI) where they have a prior conditional discharge for marijuana charges. One court concluded the defendant could not be admitted into PTI, finding the Legislature did not end the PTI eligibility bar where a defendant received a conditional discharge. The other court held that while the Legislature did not amend the PTI statute, the legislative intent of CREAMMA included removing the statutory bar to PTI eligibility where a defendant obtained a conditional discharge.

After reviewing CREAMMA, the PTI statute, the expungement statute, and considering extrinsic evidence, including the legislative histories of each enactment, the court found no evidence the Legislature intended to repeal, amend, or supersede the bar to PTI eligibility following the completion of a supervisory program and granting of a condition discharge. If, in fact, the Legislature intended such a modification, the remedy should be left to it rather than the court, which declines to insert language that is unsupported by the extant legislative evidence and intent. As a result, the court reversed the trial court decisions granting three defendants' admission into PTI and upheld the trial court's ruling barring the fourth defendant PTI admission.

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¹ L. 2021, c. 16.

A tenured teacher asked the board of education about switching from a full-time role to a part-time position with benefits. The board approved her transfer but failed to inform her of the impact it would have on her tenured status. When the teacher re-applied for a full-time role, she did not get the job. The teacher appealed and an administrative law judge found for the board. However, the Commissioner of Education reversed the initial decision, finding instead that the teacher did not knowingly waive her right to a full-time position because the board had a duty to inform the teacher of the consequences of going part-time under Bridgewater-Raritan Educ. Ass'n v. Bd. of Educ. of Bridgewater-Raritan Sch. Dist., 221 N.J. 349 (2015).

The court affirmed the Commissioner's decision and interpretation of Bridgewater-Raritan, which established a school's duty, under N.J.S.A. 18A:16-1.1, to provide notice to replacement teachers concerning the limitations on service time towards tenure. The court held that Bridgewater-Raritan compels school boards to notify in advance a full-time tenured teacher who voluntarily takes a part-time teaching position that she is at risk of not getting her full-time job back.

The court affirms defendant's jury trial conviction for second-degree robbery of a bank. The court first addresses defendant's contention that the trial judge erred by permitting the jury to hear testimony that the investigating police officer had been contacted by and "consulted" with another police department immediately before filing criminal charges. Defendant contends that such testimony violated the Confrontation Clause. After reviewing New Jersey's Confrontation Clause case law, the court concludes that the police officer's brief answer to the prosecutor's leading question concerning the consultation with the other police department violated defendant's Sixth Amendment rights because it created an inescapable inference that the other department possessed and shared incriminating evidence about the current offense that was not presented to the jury. The court nonetheless concludes that the constitutional error was harmless beyond a reasonable doubt.

The court next addresses defendant's contention that the trial judge abused his discretion by allowing a police witness to narrate surveillance video as it was being played to the jury. The court surveys the law in New Jersey explaining when a police witness may offer a lay opinion. The court also surveys cases in other jurisdictions that specifically address the admissibility of video narration testimony. The court declines to adopt a rule that would categorically prohibit such testimony, holding instead that a trial court has discretion to permit a witness to offer descriptive comments while a video is being played if the court finds that those specific comments would be helpful to the jury. To assist trial judges in making that determination, the court compiles a list of six factors to consider. In this instance, the court declines to second-guess the trial judge's rulings that sustained some objections to the video narration testimony and overruled others.

The court notes that the use of surveillance video evidence at trial is becoming more common because of the proliferation of government, commercial, and residential surveillance cameras. To improve the process by which the admissibility of police narration testimony is determined, the court recommends a new practice and procedure whereby the trial judge would conduct an in limine hearing when the prosecutor intends to present narration testimony in conjunction with playing a video to the jury. At that hearing, the court should rule upon the specific narration comments that will be permitted and those that will be foreclosed, providing clear instructions for the witness to follow. That in limine procedure would obviate the need for a series of spontaneous objections in the presence of the jury.

The court also notes that there presently is no model jury instruction pertaining to lay opinion testimony. The court recommends that the Model Jury Charge Committee consider whether it would be appropriate to draft a model instruction specifically tailored to address video narration testimony.

The court next considers defendant's contention, raised for the first time on appeal, that the trial court erred by allowing the bank teller to make an in-court identification after having selected the photograph of another person from a photo array. After reviewing the foundational principles that undergird New Jersey's eyewitness identification jurisprudence, the court rejects defendant's request to categorically ban "first-time" in-court identifications. The court declines to impose new bright-line preconditions on when an eyewitness may identify the perpetrator at trial. Rather, the court retains the rule that the decision to allow an in-court identification is made on a case-by-case basis, mindful that suppression of identification testimony is rarely warranted and that the reliability of an identification and the weight to give to it is generally for the jury to decide with the benefit of cross-examination and appropriate jury instructions.

The court also addresses defendant's contention that the trial court should have revised the model jury charge sua sponte to explain the inherent suggestiveness of the in-court identification procedure. The court concludes that the trial judge did not commit plain error by relying on the current model jury charge. The court acknowledges, however, that the time has come to reexamine that instruction. After reviewing the case law and scientific literature, the court accepts that the inherent suggestiveness of in-court identifications is comparable to the suggestiveness of one-on-one show-up identifications. And yet, the court notes, the model jury instructions pertaining to in-court identifications are less detailed and precise than the model instruction that explains the risk of misidentification in a show-up procedure. The court recommends that the Model Jury Charge Committee consider revising the model instruction pertaining to in-court identifications, for example, by incorporating language currently used to explain the suggestiveness of one-on-one show-up identifications.