Published Appellate Court Opinions

Defendant was sentenced to life imprisonment for murder in 2001, filed his first post-conviction relief petition in 2007, and filed his second petition in 2015. The Appellate Division ruled defendant's second petition was untimely under Rule 3:22-12's time limits. Those limits cannot be relaxed by invoking Rule 1:1-2. In 2009, the Supreme Court amended Rule 1:3-4(c) to prohibit enlargement of the time limits in Rule 3:22-12, and added Rule 3:22-12(c) prohibiting relaxation except as provided by Rule 3:22-12 itself. Moreover, in 2010, the Supreme Court amended Rule 3:22-4(b) and Rule 3:22-12(a)(2) to require second petitions to be filed within one year of specified events. Because that time limit applies "notwithstanding any other provision of this rule," it cannot be relaxed by showing excusable neglect and a fundamental injustice, as permitted for first petitions under the 2010 amendment. These amendments to the procedural rules of court apply to previously-convicted defendant, who had no vested right to file a petition fourteen years out of time.

In this case, we affirm the summary judgment dismissal of plaintiff's qui tam complaint which alleged defendant Steven Lonegan violated the New Jersey False Claims Act (FCA), N.J.S.A. 2A:32C-1 to -18, by submitting a false statement in a request for public campaign funds. Although the trial court dismissed on other grounds, we affirm the grant of summary judgment because we hold plaintiff lacks standing to bring the FCA complaint. We conclude the record clearly shows plaintiff is not the original source of the information supporting the allegations in his complaint.

In Pugliese v. State-Operated School District of City of Newark, 440 N.J. Super. 501 (App. Div. 2015), the court vacated and remanded for reconsideration anew an arbitrator's award sustaining tenure charges against appellants. In this appeal, the court had to construe N.J.S.A. 18A:6-14 and determine what impact its decision to remand had on the suspended educators' entitlement to back pay while the remand was pending. The statute provides for an educator's suspension without pay for 120 days or until the issuance of a final determination of the disputed tenure charges, whichever is sooner. If the matter is not resolved within 120 days, compensation must resume until a determination is reached. In this case, the court concluded that the entitlement to compensation after 120 days continues under the statute despite the fact there was an initial award terminating employment that was vacated and remanded, without a dismissal of the tenure charges.

N.J.S.A. 2C:44-3(a) permits imposition of an extended prison term when a defendant was convicted of at least two separate prior crimes but only if "the latest" of those crimes was committed or the defendant's "last release from confinement" occurred – "whichever is later" – within ten years of the charged crime. Because the last of defendant's prior crimes was committed in Florida ten years and three weeks before the crime charged here, and because defendant was not "confined" – he was sentenced in Florida to a probationary term and being on probation is not the same as being "confined" – the court reversed and remanded for further proceedings, including development of the State's late claim that the consequences of defendant's violation of the Florida probationary term within the ten-year period permits a finding of "confinement" within the meaning of N.J.S.A. 2C:44-3(a).

In these appeals, the court reviewed orders compelling arbitration because the automobile sales contracts executed by plaintiffs included an agreement to arbitrate all disputes. Although the record revealed disputed facts about contract-formation issues that the trial courts must be resolved before arbitration may be compelled, the court also recognized there was no dispute that the parties mutually agreed to rescind those sales contracts. Consequently, among other things, the court held that the trial judges erred in compelling arbitration of any claims relating to the agreements to rescind, which did not contain arbitration provisions. The orders under review were reversed and both cases remanded for trial court proceedings to determine, among other things, whether plaintiffs' claims were based on the sales contracts or on the agreements to rescind.

In these appeals, the court reviewed orders compelling arbitration because the automobile sales contracts executed by plaintiffs included an agreement to arbitrate all disputes. Although the record revealed disputed facts about contract-formation issues that the trial courts must be resolved before arbitration may be compelled, the court also recognized there was no dispute that the parties mutually agreed to rescind those sales contracts. Consequently, among other things, the court held that the trial judges erred in compelling arbitration of any claims relating to the agreements to rescind, which did not contain arbitration provisions. The orders under review were reversed and both cases remanded for trial court proceedings to determine, among other things, whether plaintiffs' claims were based on the sales contracts or on the agreements to rescind

In this appeal the court interprets two statutes concerning the right of Camden citizens to vote on the classification of their school district. That vote will determine whether members of the Camden City Board of Education (Board) are elected or appointed by the mayor. Plaintiffs contend that a vote on that issue was required in April 2014, under a 2010 amendment to the Municipal Rehabilitation and Economic Recovery Act (MRERA), N.J.S.A. 52:27BBB-63.1(c). Defendants counter that because the school district was placed into full State intervention in 2013, the classification vote is not required until the district satisfies certain performance indicators under the Quality Single Accountability Continuum Act (QSAC), N.J.S.A. 18A:7A-49(e). MRERA and QSAC contain provisions that set forth different frameworks for school district classification votes.

The court holds that the 2010 amendment to MRERA governs because its language is clear in granting Camden citizens the right to a school district classification vote, and nothing in QSAC restricts that right. Granting Camden citizens the right to a school district classification vote does not interfere with the State's full intervention because the Board will continue to serve in an advisory role until the conditions of QSAC are satisfied. Accordingly, the trial court's August 15, 2016 order dismissing plaintiffs' complaint is reversed. The case is remanded with direction that the trial court conduct a hearing within thirty days to determine when the school district classification vote will be held.

The case concerns the State's use, in a criminal prosecution, of defendant's answer filed in a parallel civil forfeiture action. As part of its proof that defendant was the occupant of a bedroom in which drugs were seized, the State introduced in evidence the defendant's forfeiture answer, in which he asserted that he owned $2900 in cash seized from the same bedroom. While rejecting defendant's Fifth and Sixth Amendment arguments, the court held that the process by which defendant was induced to file his answer in the civil forfeiture action was fundamentally unfair. Although the State should have been barred from introducing the answer, it was harmless error in light of the other evidence linking defendant to the premises.

The court also provided some procedural guidance for future forfeiture cases, and referred the issue to the Criminal and Civil Practice Committees for their consideration

The court holds the Jessica Lunsford Act, N.J.S.A. 2C:14-2, which imposes mandatory minimum sentencing and parole ineligibility requirements for aggravated sexual assault of a victim less than thirteen years old, does not violate the separation of powers doctrine by impermissibly impairing the State's right to engage in plea bargaining, nor does it impermissibly limit the trial court's authority to reject the plea agreement.

The court further holds the Jessica Lunsford Act was not superseded by the earlier enacted and later effective amendment to N.J.S.A. 2C:14-2(a)(7).

After determining defendant's plea allocution did not establish a factual basis for each element of theft by deception, N.J.S.A. 2C:20-4, because defendant did not admit he deceived the victims at the time he obtained their money, the court ruled the trial judge's reliance on the theft consolidation statute, N.J.S.A. 2C:20-2(a), to accept defendant's factual basis for a different form of theft was misplaced as that statute applies only in trial settings — not to plea proceedings.

Defendant's putative paramour filed a complaint against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, alleging he forcibly entered her residence and assaulted and threatened her. After considering the victim's sworn testimony, a Family Part judge issued an ex parte temporary restraining order (TRO) under N.J.S.A. 2C:25-28(g) and a warrant to search defendant's apartment and seize any firearms as authorized by N.J.S.A. 2C:25-28(j).

The police arrested defendant on fourth degree contempt, N.J.S.A. 2C:29-9(b)(1), when he refused to permit the officers to enter his apartment to execute the domestic violence search warrant. Once inside, the officers found in plain view cocaine and drug paraphernalia. Based on the sworn testimony of a detective, a Criminal Part judge issued a telephonic warrant to search the apartment for narcotics.

The remodeling of Courtroom No. 2 in Warren County has been the subject of years of litigation. The matter was first initiated by the Office of Public Defender (OPD), when it successfully objected to a criminal trial being conducted there, after renovations made in 2008. The OPD took the position that a defendant's right to a fair trial was prejudiced by the design of the courtroom. Warren County eventually filed an action for judgment under the Declaratory Judgment Act, N.J.S.A. 2A:16-5 to -62, that more recent modifications satisfied any constitutional concerns. The panel reversed the judge's decision that the OPD lacked standing to participate in the proceedings, remanded the case, and suggested the appointment of a special master to make findings and develop a more complete factual record under Rule 4:41-1.

Each defendant in these five back-to-back appeals by the State was convicted of fourth-degree operating a motor vehicle during a period of license suspension. N.J.S.A. 2C:40-26. The statute prescribes a sentence of a "fixed minimum " term of at least 180 days without parole eligibility. N.J.S.A. 2C:40-26(c). The State contended the trial court exceeded its authority by imposing intermittent sentences under N.J.S.A. 2C:43-2(b)(7). The panel concluded that a minimum period of parole ineligibility measured in days requires service of continuous twenty-four-hour periods, but does not require an uninterrupted 180-day term. The panel rejected the State's argument that intermittent periods of release were akin to parole.The panel held the trial court was authorized to impose weekend sentences running from Friday night to the same time Sunday night. Such a sentence would allow a defendant to accrue two days of credit each weekend toward the 180-day sentence. But, a sentence of nights only was not an authorized sentence, as aggregation of part-days is not permitted. The panel therefore modified two sentences; reversed two others; and remanded one for reconsideration.

Plaintiff was in line at the bank behind a man of the same race who passed a note to defendant-bank's teller demanding money. The teller complied and the robber left. Another employee, seeing the note and believing the man in front of the teller's window — plaintiff — was the robber, called 9-1-1 and provided a description, including the race of the suspect. Police arrived and questioned defendant, who claimed he suffered from PTSD as a result of the incident.

Plaintiff sued the bank alleging negligence in the violation of bank policies and in his misidentification as the robber. The court concludes, consistent with decisions in several other states, that there is no cause of action for negligent identification/misidentification, nor should New Jersey recognize such a tort, given the state's strong public policy to foster cooperation between citizens and law enforcement.

To preserve its constitutionality, the Juvenile Justice Code (Code) must be interpreted to prevent incarceration of all developmentally disabled juveniles in county detention facilities, because not all counties have access to an approved post-disposition short-term incarceration program. Because the Code prohibits the incarceration of developmentally disabled youth in a State facility, the inequity must be avoided of developmentally disabled juveniles in one county facing incarceration while those similarly situated in another do not. T.C., who was seventeen at the time of the offense, admitted participating with two other juveniles in the unarmed forcible theft of marijuana from the backpack of a fourth juvenile. Although he has already served the thirty days of incarceration imposed, the matter is not moot because he is serving juvenile probation that he could violate, and the issue is one of public importance that may evade review in the future. The disposition is reversed.

The trial court granted summary judgment to defendants, landlord and property manager of a multi-family apartment building, on the basis that they did not owe a duty of care to plaintiff, who at the time was an infant staying in the apartment with the tenant's consent, to protect him from the apartment's excessively-hot-uncovered radiator. We conclude that, under the circumstances of this case, the radiator is part of the building's heating system that defendants have control of under common law and N.J.A.C. 5:10-14.3(d), and should have been covered, and reverse.

The panel reversed the Board of Review's denial of unemployment compensation. The Board affirmed the Appeal Tribunal's decision that the claimant voluntarily quit her job as a group home worker without good cause related to her work. Her child care fell through unexpectedly and she could not find a co-worker to cover her shift. The panel held that the Board overlooked evidence that the claimant was entitled to benefits under N.J.A.C. 12:17-9.5, because she quit in the face of imminent discharge: her supervisor threatened she might be fired if she did not come in. Had the claimant been fired for staying home, she would have been eligible for benefits. Although "good cause related to the work" under the voluntary quit statute, N.J.S.A. 43:21-5(a), excludes compelling personal reasons, "good cause for being absent from work," in the regulation defining simple misconduct, includes "any compelling personal circumstance, which would normally prevent a reasonable person under the same conditions from reporting work." N.J.A.C. 12:17-10.2(b). The panel concluded that, in order to be eligible for benefits, the claimant was not required to wait to be fired when discharge was imminent.

Applying the doctrine of probable intent, see Fidelity Union Trust Co. v. Robert, 36 N.J. 561 (1962), the panel reverses summary judgment and holds that the trial court was obliged to consider extrinsic evidence to interpret a trust, even though the language on its face appeared clear. Relying on extrinsic evidence, including the settlor's alleged personal usage of the apparently plain term, "grandchildren," the trustee contended the settlor's gift to her "grandchildren" was intended to exclude the children of her daughter who married outside the settlor's faith. The panel rejects, as contrary to caselaw, the dictum in In re Estate of Gabrellian, 372 N.J. Super. 432, 443 (App. Div. 2004) that "[t]he doctrine of probable intent is not applicable where the documents are clear on their face and there is no failure of any bequest or provision." The matter is remanded for trial on the issue of the settlor's intent.

The court considered, among other things, whether a third party may take advantage of an estoppel doctrine – first recognized in Merchants Indemnity Corp. v. Eggleston, 37 N.J. 114 (1962) – that has been found to apply when an insurer, while reserving its rights or declining coverage, fails to clearly seek its insured's consent to the insurer's control of the defense. The court held that the insurer here could not, as a matter of law, be estopped from denying coverage because there was no clear evidence that the defunct insured changed its position to its detriment even if the insurer assumed the defense without consent. The court also rejected the argument that Eggleston permits avoidance of estoppel only if the insurer uses certain magic words in communicating with its insured; the insurer's disclaiming letter, which expressed the insurer's "willingness" to provide a "courtesy defense," could reasonably be interpreted as conveying an offer rather than a unilateral declaration of a right to control the defense. Consequently, the court reversed the summary judgment entered in favor of the parties seeking estoppel – the victim of the insured's alleged negligence and its property-damage insurer.

Defendant Amy Locane, who had been convicted of second-degree vehicular homicide, N.J.S.A. 2C:11-5(a), and third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2), was sentenced on our remand to precisely the same three-year term of imprisonment as on the first occasion. The panel remanded the matter a second time because the trial judge again erred in the application of the downgrade statute, N.J.S.A. 2C:44-1(f)(2). The judge found mitigating factors not supported by the record, and accorded too much weight to them. Further, the judge failed to find aggravating factors that were present, and thus accorded them insufficient weight. Not only did the mitigating factors fail to substantially outweigh the aggravating, but there were no compelling reasons requiring a downgrade. See ibid.

The panel further found that double jeopardy barred the State from appealing the concurrent terms that were improperly imposed for the offenses. The panel nonetheless discussed State v. Carey, 168 N.J. 413, 428 (2001), concluding that it creates a rebuttable presumption favoring consecutive sentences when a drunken driver inflicts grave harm on more than one victim. Ultimately, a careful and close application of the Yarbough factors must be made in vehicular homicide cases, as in every other instance. State v. Yarbough, 100 N.J. 627, 643-44 (1985).