Published Appellate Court Opinions

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 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.

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 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.

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.

In reversing a partial summary judgment entered in defendants' favor, the court rejected the notion that plaintiffs – in alleging an invasion of their privacy in an office building's restroom – could only claim the presence of a hidden recording device by demonstrating their images were actually captured. In adhering to the general principles delineated in Soliman v. Kushner Cos., 433 N.J. Super. 153 (App. Div. 2013), the court concluded that an intrusion on seclusion occurs when a recording device is surreptitiously present notwithstanding whether the victim was ever recorded because the tort is intended to protect the victim's peace of mind and the comfort associated with the expectation of privacy.

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).

A court issued wiretap orders pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37, which were later suppressed. The estate of an aggrieved person moved to unseal the intercepted conversations and evidence derived for use in a state civil forfeiture action and a federal civil rights action. The Appellate Division holds disclosure for use in civil litigation is permissible "upon a showing of good cause" under N.J.S.A. 2A:156A-17(c), and disapproves the contrary ruling in In re Disciplinary Proceedings Against Spinelli, 212 N.J. Super. 526 (Law Div. 1986). Section 17(c) has no federal counterpart under Title III, which does not prevent such disclosure of the fruits of a state wiretap order. Suppression does not preclude disclosure in these circumstances.

The trial court may order disclosure only if the need for disclosure outweighs the harms disclosure is likely to cause, subject to review for abuse of discretion. If a disclosure would reveal a person was a confidential informant for a particular agency, in a particular investigation, during a particular period, or in a particular way, the court must consider whether it is publicly known that the person cooperated with that agency, in that investigation, during that period, or in that way.

An individual who has been discharged from probation, albeit with an imperfect record while on probation, and who has subsequently paid all outstanding fines, is not barred from applying for expungement. The trial court erred in holding that petitioner was barred for applying for expungement under N.J.S.A. 2C:52-2(a)(2), because she was discharged from probation "without improvement."

The panel reversed the Division of Child Protection and Permanency's administrative finding that an allegation a father abused or neglected his young daughter was "not established" rather than "unfounded." N.J.A.C. 3A:10-7.3(c)(3), (4). The finding meant there was some, but not a preponderance of evidence, he harmed her or "placed [her] at risk of harm." The Division's finding was unreasonable because its investigation was incomplete. The Division did not consider evidence related to an order to show cause the father's estranged wife filed in their pending divorce, or a video she took of the incident. A matrimonial judge ordered the Division to investigate both parents, but it only investigated the father. The Division's finding also lacked sufficient support in the record the Division did compile. The father tried to stop his daughter from throwing things during a tantrum by holding her arms. She broke free and fell, but suffered no injury. That evidence did not show that he placed her at risk of harm.

The court reverses the denial of defendants' motion to suppress drugs and guns found after a plain view sighting through the open door of an apartment. The police used a tool to force entry into the locked apartment building twice before approaching the fourth-floor apartment door. The State, conceding a lack of probable cause, argued that the forced entry into the building did not violate defendants' expectation of privacy because of the size of the apartment building. The court refused to "condone the police forcing entry into a locked residential apartment building while on an investigative hunt for suspected criminal activity."

Finding the pace of the proceedings here to be glacial in comparison to that which the Court found "troubling" in Division of Child Protection and Permanency v. E.D.-O., 223 N.J. 166, 194 (2015), the court concluded that the Department of Children and Families' inexcusable failure to provide complete discovery for a period of years – a circumstance that delayed the start of an evidentiary hearing about events that occurred more than six years earlier – fully justified an ALJ's dismissal of the Department's abuse and license-removal proceedings against the defendant and warranted the court's conclusion that the Department's reversal of the ALJ's ruling was arbitrary, capricious and unreasonable.

The court holds that the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:23B-1 to -32, does not require an arbitrator to hold an in-person hearing at a physical location. Thus, unless the parties contract for an in-person arbitration hearing, or they show specialized need for such a hearing, arbitrators can conduct hearings by telephone conference or by other electronic means.

Accordingly, the court affirms an order that denied the application of defendant Hereford Insurance Company to compel an arbitration organization, Arbitration Forums, Inc., to hold an in-person arbitration hearing concerning the reimbursement of personal injury protection (PIP) benefits.

The court granted the State's motion for leave to appeal in these four appeals involving seven juveniles, all charged with crimes or disorderly persons offenses under Title 35 and 36 of the Criminal Code. N.J.S.A. 2A:4A-71(b) provides such complaints "shall be referred for court action, unless the prosecutor otherwise consents to diversion." When the complaints were screened by intake services, the prosecutor did not consent.

In two of the appeals, the Family Part judge, without notice or hearing, diverted complaints charging the juveniles with criminal offenses, concluding that N.J.S.A. 2A:4A-73(a), vested the judge, not the prosecutor, with discretion to divert any juvenile complaint. The court reversed, noting that Rule 5:20-1(c) provides complaints charging juveniles with crimes "shall not be diverted unless the prosecutor consents thereto."

In the other two appeals, the juveniles were charged with disorderly persons offenses under Title 35 and 36 of the Criminal Code. In one of the appeals, the judge diverted the case without any hearing. The court reversed.

In the other appeal, the judge held a hearing, noted the prosecutor's objection and ordered diversion. The court affirmed, concluding that although the failure to include these offenses within the scope of Rule 5:20-1(c) may have been inadvertent, the plain language of the Rule did not limit the judge's discretion to divert the complaints over the State's objection. The court referred the opinion to the Committee on Practice in the Family Part for consideration.

Empower Our Neighborhoods (EON), a community based advocacy group, partially succeeded on an election law claim. They obtained a judgment eliminating the district residency requirements, pursuant to Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), for circulators of: recall petitions, petitions nominating independent candidates in general elections, petitions selecting candidates from local parties, and petitions nominating Board of Education members. The court affirmed Judge Mary Jacobson's decision that EON's success was sufficient to merit the award of counsel fees, apportioned among the defendants based on the extent of their responsibility for the constitutional tort.

The court remanded for a new trial a criminal matter in which the jury was instructed only as to murder, N.J.S.A. 2C:11 3(a)(1). One of two co-defendants testified at trial that he unwittingly killed the victim while struggling to take a gun away from someone——not the victim——who was trying to shoot him. He was convicted of murder, and his co-defendant was also convicted of murder as his accomplice. The court concluded the jury should have also been given a molded self-defense instruction, N.J.S.A. 2C:3-4(a), and been instructed as to the lesser-includeds of aggravated manslaughter, N.J.S.A. 2C:11 4(a)(1), and manslaughter, N.J.S.A. 2C:11-4(b)(1). The failure to do so prejudiced defendants' rights to a fair trial.

The court addresses certain legal questions that arise when a case that involves the custody of a child under a Title 9 abuse or neglect FN complaint filed by the Division of Child Protection and Permanency is interrupted by a private custody case initiated by a member of the child’s family. To ensure legal protection for the parents, the court suggests a method of handling FD non-dissolution complaints when they are heard in the midst of FN abuse or neglect litigation. The FD hearing should be incorporated into the FN litigation and attorneys for the parents and children should participate. The court does not reverse here because the mother consented to the result. The court also affirms the finding of educational neglect and the dismissal of the FN litigation despite the objection of the mother.

In this medical malpractice action, defendant's trial testimony concerning reliance on a medical publication in treating plaintiff was materially different from his denial during discovery of any knowledge of such literature. The court's majority holds defense counsel's failure to discharge his duty of candor to the court and counsel by disclosing the anticipated material change in defendant's testimony resulted in plain error, and the trial court erred by denying plaintiff's motion for a new trial.

The dissent concludes counsel's failure to object to defendant's testimony was part of a deliberate trial strategy, as the publication at issue supported plaintiffs' theory of the case. Considered in the context of the extensive expert testimony presented during a lengthy trial, defendant's testimony about the medical article did not constitute plain error, and the trial court did not err by so holding when it denied plaintiff's motion for a new trial.