Published Appellate Court Opinions

In this Title Nine action, defendant appeals from a Family Part order finding he abused or neglected his fifteen-year-old stepdaughter by sexually assaulting her. Defendant principally argues the court erred by finding the child's statements concerning the assault were corroborated under N.J.S.A. 9:6-8.46(a)(4) based on her consistent repetition of what occurred, a doctor's report containing a diagnosis she was sexually assaulted, and a psychologist's report stating she suffered from post-traumatic stress disorder as a result of sexual abuse.The court found the child's consistent repetition of her version of the events did not constitute corroboration of her statements concerning the sexual assault under N.J.S.A. 9:6-8.46(a)(4), and the diagnoses contained in the doctor's and psychologist's reports did not provide corroboration because they constituted inadmissible complex diagnoses. The court, however, determined that admissible objective findings in the doctor's report, including descriptions of the child's physical injuries, and defendant's admissions concerning the circumstances surrounding the sexual assault provided some evidence supporting the child's sexual assault allegation, satisfied N.J.S.A. 9:6-8.46(a)(4)'s corroboration requirement, and permitted the court's reliance on the child's statements in making its abuse or neglect finding.

Defendant appeals the denial of his motion to suppress the warrantless seizure of a small amount of marijuana from his vehicle. A police officer seized the marijuana after stopping defendant's vehicle for an equipment violation. During the stop, the officer smelled the odor of marijuana coming from inside the car while questioning defendant through the open passenger side window.The State contends the officer's slight intrusion inside the vehicle's window, for the sole purpose of better hearing defendant over the noise of passing traffic, did not constitute a search. Defendant argues it was a search, and that it was unlawful because the officer was not legally in the "smelling area" when he detected the odor of marijuana and developed the probable cause to seize it. Assuming without deciding that the officer conducted a search when he leaned his head inside defendant's open window, the panel concludes that the officer's slight, momentary intrusion inside the car window to hear defendant's responses was reasonable. Consequently, the search did not violate the Constitutional protection against "unreasonable searches and seizures." The marijuana was then properly seized pursuant to the "plain smell" exception to the warrant requirement. The trial court order denying the suppression motion is affirmed.

Tried to a jury, this negligence case arose out of a motor vehicle accident in which the defendant driver struck plaintiff, a pedestrian, as he was attempting to walk one February evening across an eight-lane state highway. Plaintiff alleged defendant was not using her headlights and had failed to observe him in the road until it was too late for her to stop. Defendant asserted that plaintiff unreasonably failed to use a nearby crosswalk located up to about 150 feet from where he crossed. The jury found plaintiff was 75% at fault and defendant was 25%, producing a judgment in defendant's favor pursuant to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8. On appeal, plaintiff argues, among other things, the trial court issued inappropriate jury instructions concerning the traffic laws and should have taken judicial notice concerning the asserted legality of his attempted crossing. Plaintiff further argues the court erred in allowing, over objection, an investigating police officer, who had not witnessed the accident, to render lay opinion testimony estimating the speed of defendant's car under what is known as the "Searle formula." The trial court properly charged the jury in this setting with both N.J.S.A. 39:4-33, which directs that "[a]t intersections where traffic is directed by a police officer or traffic signal, no pedestrian shall enter upon or cross the highway at a point other than a crosswalk," and N.J.S.A. 39:4-34, which provides that, in the absence of a traffic signal or police officer directing traffic, a pedestrian shall cross "where not prohibited, at right angles to the roadway." The question of whether plaintiff was obligated to use the crosswalk was a fact-dependent jury issue, turning on the actual proximity of the crosswalk, the lighting conditions, and whether it was too dangerous to reach from plaintiff's location. The matter was unsuitable for judicial notice under N.J.R.E. 201. The investigating police officer was not designated in discovery as a defense expert and had denied at his deposition having expert status. Given the esoteric nature of the Searle formula, the officer's testimony was inadmissible under the guise of the lay opinion rule, N.J.R.E. 701, but this error was harmless.

Plaintiff in this wrongful death and survival action principally appeals from the trial court's ruling to exclude from evidence at trial a Certificate of Death that was issued following an examination by the county deputy medical examiner. On the date of the accident, decedent and plaintiff were shopping at defendant's supermarket. Decedent was using a motorized cart. As she went down a narrow aisle, her cart's basket caught on a cash register station, causing the station to fall on her. The accident injured her leg. Decedent stated she was fine and went home, but four days later she was taken to the hospital with complications. She died the following morning.After a deputy medical examiner inspected decedent's body, a Certificate of Death was issued. The Certificate stated that the manner of her death was an "accident" and that the cause of death was "complications of blunt trauma of [the] right lower extremity." The examiner's associated report reiterated these conclusions in more detail. The panel holds that the State Medical Examiner Act, N.J.S.A. 52:17B-92, despite its broad language, does not provide an absolute right to a civil plaintiff to admit the full contents of the Certificate of Death. The hearsay opinions within the Certificate were properly excluded by the trial court under N.J.R.E. 808, the net opinion doctrine, and pertinent case law. Further, the hearsay exception for vital statistics, N.J.R.E. 803(c)(9), does not require admission of the examiner's opinions.

This appeal involves the scope of a shareholder's right to inspect a corporation's records under N.J.S.A. 14A:5-28 and the common law. Plaintiff, a Merck & Co., Inc. shareholder, appeals from the dismissal of his complaint seeking various Merck corporate records. The panel affirms. It concludes that plaintiff's demand exceeds the scope of "books and records of account, minutes, and record of shareholders," which the court was empowered to permit him to inspect under N.J.S.A. 14A:5-28(4). Plaintiff also misreads a 1988 amendment to the statute, which allows a court to limit a shareholder's inspection, rather than expand it as plaintiff contends. Finally, plaintiff misplaces reliance on the common law. To the extent N.J.S.A. 14A:5-28 does not abrogate residual common law rights of inspection, plaintiff's demand exceeds inspection previously allowed under the common law.

These appeals address the issue of territorial jurisdiction in the context of the strict liability for drug-induced death statute, N.J.S.A. 2C:35-9(a), which provides that "[a]ny person who manufactures, distributes or dispenses . . . [a] controlled dangerous substance (CDS) classified in Schedules I or II . . . is strictly liable for a death which results from the injection, inhalation[,] or ingestion of that substance, and is guilty of a crime of the first degree. " New York has no comparable statute. In A-2893-17, the trial court dismissed the strict liability charge against defendants Noel E. Ferguson and Anthony M. Potts, New York residents who allegedly purchased heroin from defendant Shameik Byrd in Paterson and later distributed some of the heroin to the victim in New York, where he died of a heroin overdose. In A-2894-17, the trial court denied Byrd's motion to dismiss the same count of the indictment. The court found that, because Byrd allegedly distributed heroin in New Jersey that ultimately resulted in the user's death, Byrd's conduct fell within the purview of N.J.S.A. 2C:35-9(a). N.J.S.A. 2C:1-3(a)(1) confers territorial jurisdiction in New Jersey when "[e]ither the conduct which is an element of the offense or the result which is such an element occurs within this State." Here, the proofs before the grand jury established that, as to Ferguson and Potts, the distribution and ingestion of heroin and the victim's death all occurred in New York. Accordingly, the State is without territorial jurisdiction to prosecute Ferguson and Potts for strict liability drug-induced death under N.J.S.A. 2C:35-9. The panel concludes there is territorial jurisdiction to prosecute Byrd in New Jersey because his alleged distribution that ultimately resulted in the victim's death occurred in New Jersey, thus satisfying the "conduct" prong of N.J.S.A. 2C:1-3(a)(1). Consequently, the panel affirms the trial court orders.

The petitioning law firm made application against its former client in the Family Part seeking an award of attorney's fees and costs for post-judgment services rendered to the client to enforce alimony arrears, child support arrears, and equitable distribution owed to her by her ex-husband. The law firm also sought Imposition of a charging lien and entry of a judgment by the Family Part. The court holds the petitioning law firm was not entitled to a charging lien for unpaid services rendered post-judgment to enforce previously awarded relief obtained through the efforts of prior counsel.The court further holds that the petitioning law firm could obtain judgment in the Family Part against its former client for the reasonable amount of unpaid fees without filing a separate action in the Law Division. The court remanded the issue of the reasonableness of the fees sought by law firm to the Family Part for the development of a reviewable record.

In this appeal, the court was asked to determine whether sidewalk liability applies to an owner of a vacant church because in Gray v. Caldwell Wood Products, Inc., 425 N.J. Super. 496 (App. Div. 2012), we imposed liability on the owner of a vacant, boarded-up building that had been used for commercial purposes. For the reasons that follow, we hold that a vacant church maintains its status as a noncommercial property, not subject to a commercial property's sidewalk liability. We reject any reading of Gray that imposes liability on owners of vacant residential or noncommercial properties that have not been put to any commercial use.

The New Jersey Rules of Evidence and supporting case law do not require that lay testimony and even lay opinion testimony, although based on scientific, technical or even specialized knowledge, automatically triggers the need for the designation of the witness providing that testimony as an expert. The fact that a person with personal knowledge of facts relevant to a dispute may also qualify as an expert in the particular field associated with those facts does not convert his or testimony into expert testimony under N.J.R.E. 702 and 703.

The legal question – when enrollment into the PTI program is contingent on a defendant pleading guilty to a second-degree charge – is whether the civil consequences of wreaking devastating personal financial havoc on a defendant constitutes good cause under Rule 3:9-2. This court held that such a financial circumstance establishes good cause permitting a civil reservation. The court emphasized that the civil reservation eliminated the obstacle to avoiding an unnecessary criminal trial against defendant, who feared that the civil claimants would later use her plea of guilty as a devastating admission of civil liability.

The right to request and obtain government records under the Open Public Records Act (OPRA) is not limited to citizens of New Jersey. According, the out-of-state plaintiffs had standing to pursue their OPRA claims against the public entity defendants in these three cases.

The panel considers incumbent vendor Express Scripts, Inc.'s appeal of the Acting Director of the Division of Purchase and Property's final agency decision sustaining the Division's award of a three-year contract for Pharmacy Benefit Management to OptumRx, Inc. Although anticipated changes in Plan Design affecting the Contract make the question more difficult than it might otherwise appear, we conclude Optum's statement "reserv[ing] the right to modify Financial Contracted Terms based on changes by the State in formulary or any carve out of services set forth in the Agreement, including but not limited to Specialty Pharmacy services," constitutes a substantial deviation from a material, non-waivable price term in the Solicitation and thus reverse the decision of the Acting Director and order the Contract rebid as expeditiously as possible. Whether that can occur in sufficient time to allow the Vendor to prepare for open enrollment next October is a matter we leave to the Acting Director.

These consolidated appeals involve a challenge to decisions by two state agencies to finance a comprehensive renovation of the State Capitol complex. The agencies resolved to issue $300 million in bonds and to repay the bonds with rental payments pursuant to a lease of the State Capitol complex.

Plaintiff John S. Wisniewski, then a state legislator, filed a complaint challenging the agencies' actions on the basis that they violated the Debt Limitation Clause (DLC) of the New Jersey Constitution. At the time the complaint was filed, the bonds had already been sold and distributed into the marketplace. Consequently, the trial court dismissed the complaint as moot.

In No. A-4689-16, plaintiff appeals the trial court's determination that his complaint is moot. In Nos. A-4693-16 and A-4698-16, he appeals the final agency decisions. The panel finds the appeals are technically moot. Notwithstanding, the panel addresses the merits because the issue raised is a matter of significant public importance that is capable of repetition while evading review.

The panel concludes the issuance of the bonds to finance the renovations of the State Capitol complex did not violate the DLC. The panel further concludes the State Capitol Joint Management Commission acted within its delegated authority in approving the renovations and entering into the lease/leaseback agreement, and the New Jersey Economic Development Authority possessed the requisite authority to issue the bonds to fund the renovations.

In a prior appeal, State v. Kosch, 444 N.J. Super. 368 (App. Div.), certif. denied, 227 N.J. 369 (2016), the court vacated three of defendants' nine theft convictions and remanded for a new trial on those three theft-of-immovable-property counts; the court also held that "once those three counts are finally adjudicated, defendant should be resentenced on all " in light of potential merger issues, id. at 392-93. Without disposing of the three counts, which still remain unadjudicated, the judge reshaped the prior sentence and imposed the same aggregate prison term as before. Defendant appealed and the court reversed. Although the court recognized the new judgment was not a final order, the court granted leave to appeal out of time and reversed because the trial judge failed to comply with the "peremptory duty to obey" our mandate "precisely as it [was] written"; that mandate unambiguously precluded resentencing without an adjudication of the theft-of-immovable-property counts.

This appeal poses the legal question of whether N.J.S.A. 46:3-17.4, a statute that became effective in 1988, precludes a spouse's unsecured creditor from obtaining the forced partition of real property the spouse and his non-debtor spouse own together as tenants by the entirety. The panel affirms the trial court's ruling that the statute prohibits such non-consensual partition. The statute supersedes and nullifies earlier case law, such as Newman v. Chase, 70 N.J. 254, 262 (1976), which had allowed such a creditor's remedy in certain equitable circumstances.

In these appeals, consolidated for our opinion, plaintiff sued defendants under the Prevention of Cruelty to Animals Act (PCAA), N.J.S.A. 4:22-11.1 to -60, to recover civil penalties for acts that he contended constituted animal cruelty under its provisions. Plaintiff lacked standing to sue in his individual capacity and the cases were dismissed. He contends the complaints were filed as qui tam actions under N.J.S.A. 4:22-26 which provided, in relevant part, that a person who violates the PCAA shall pay a civil penalty according to a schedule in the statute "to be sued for and recovered, with costs, in a civil action by any person in the name of the New Jersey Society for the Prevention of Cruelty to Animals".

We decline to interpret N.J.S.A. 4:22-26 as authorizing private citizens, who otherwise would not have standing, to sue for civil penalties under the PCAA in qui tam actions against other parties, who they alleged may have committed acts of animal cruelty. The language relied on by plaintiff does not signal authority for qui tam litigation in light of the PCAA's other provisions nor was it supported by the legislative history or case law. We affirm the dismissal of these cases for lack of standing

The New Jersey Education Association challenged regulations pertaining to the disability retirement process for various State retirement systems. In upholding most of the regulations – except those requiring applicants to pay for subsequent independent medical examinations and related addenda – this court maintained the requirement that eligibility for disability retirement benefits requires members to show that they cannot work due to a disability.

The New Jersey Division Of Child Protection and Permanency (Division), and the Law Guardian on behalf of the two young children, appeal from the Family Part's order denying termination of parental rights following an extended eighteen-month trial at which twelve witnesses testified and hundreds of exhibits were admitted into evidence. This appeal involves the termination of parental rights of T.D., a mother suffering from multiple sclerosis and R.C., the father of her two youngest children, born in 2012 and 2014, and removed from the care of their parents shortly after birth. The trial judge found, in particular, that the Division did not provide meaningful services to the mother, who uses a wheelchair. Considering the limited standard of review of a decision not to terminate parental rights, we affirm.

This court consolidates these two insurance coverage cases for purposes of this opinion. The parties filed cross-motions for summary judgment. The motion judge reserved decision at the conclusion of oral argument and entered orders that same day that granted the insurers' motions for summary judgment and denied the insureds' cross-motions. The judge did not issue a written opinion or oral decision, nor make factual findings or conclusions of law as required by Rule 1:7-4(a). In a Final Judgment entered a month later, the judge dismissed the insureds' complaints with prejudice "for the reasons set forth in [the insurers'] motion papers."

Although the standard of review from the grant or denial of summary judgment is de novo, the function of an appellate court is to review the decision of the trial court, not to decide the motion tabula rasa. The requirements of Rule 1:7-4(a) are unambiguous and cannot be carried out by the motion judge by a nebulous allusion to "the reasons set forth in defendant[s]' motion papers." Reversed and remanded.