Published Appellate Court Opinions

The court reverses defendant's drug possession conviction and holds that when the State refuses a defense attorney's diligent pre-indictment request to preserve and produce recordings, which the State or its law enforcement agencies created and are directly relevant to adjudicating an existing charge, the defendant is entitled to an adverse inference charge. In this drug case, despite the attorney's timely preservation request, the State allowed the automatic erasure of a booking room video that likely recorded the search of defendant, which allegedly uncovered the drugs he was charged with possessing. The court also holds the court erred by allowing the State to introduce evidence that defendant gave a false name during the earlier traffic stop.

In this appeal, the court addresses whether, in a pretrial detention hearing, defendant's pregnancy should be given greater consideration than any other pretrial detention factor in a judge's assessment under the Criminal Justice Reform Act (Act), N.J.S.A. 2A:162-15 to -26.

At the detention hearing, the trial judge noted defendant's extensive juvenile history, current serious second-degree charges and multiple failures to appear, and considered the Pretrial Services recommendation for no release. Although stating that all pertinent factors under N.J.S.A. 2A:162-20 weighed in favor of detention, the judge concluded that defendant's eight-week pregnancy required her release with conditions.

Because the trial judge abused his discretion in giving defendant's pregnancy greater weight than all other pertinent factors in his determination to release her, we reverse. Pregnancy, like any other medical condition, is considered only for its impact on the risk of a defendant posing a danger to the community, obstructing justice or failing to appear in court. N.J.S.A. 2A:162-20.

Appellant resigned in anticipation of employment with a different employer. However, before she began work with the second employer, it withdrew the offer and appellant applied for unemployment benefits. The Appeal Tribunal disqualified appellant from receiving benefits because she left employment without good cause attributable to the work. N.J.S.A. 43:21-5(a). Appellant argued she was eligible for benefits pursuant to a 2015 amendment, which provides the disqualification

shall not apply to an individual who voluntarily leaves work with one employer to accept from another employer employment which commences not more than seven days after the individual leaves employment with the first employer, if the employment with the second employer has weekly hours or pay not less than the hours or pay of the employment of the first employer, except that if the individual gives notice to the first employer that the individual will leave employment on a specified date and the first employer terminates the individual before that date, the seven-day period will commence from the specified date.

[L. 2015, c. 41 (emphasis added).]

The Board of Review affirmed, concluding the exception only applied if the employee "commences" work with the second employer.

The court affirmed, concluding the plain language of the statute and relevant legislative history demonstrated the exception applied only if the employee started employment with the second employer and was subsequently terminated. The court's opinion disagrees with another panel's interpretation of the amendment in McClain v. Board of Review, ___ N.J. Super. ___ (App. Div. 2017).

Appellant is subject to community supervision for life (CSL) under the Violent Predator Incapacitation Act, N.J.S.A. 2C:43-6.4. His application to live in Sweden with his wife and children was summarily denied by the Parole Board, which treated it as a request to terminate CSL. The court reverses and remands to the Parole Board to consider the merits of appellant's application, including whether the Board could supervise or monitor his compliance with the conditions of CSL or impose special conditions.

In these back-to-back appeals, Bed Bath & Beyond, Inc. (BB&B) and its subsidiary BBB-VSI appeal the denial by the Treasury Department's Unclaimed Property Administration (UPA) of their claim for a refund of the value of certain unclaimed merchandise return certificates. These certificates were provided by BB&B and BBB-VSI to customers who returned merchandise without a receipt. They could only be redeemed for other merchandise or services, and not for cash. The court concludes that for BB&B certificates issued between July 1, 1999 to June 30, 2010, the unused balances of these certificates should have been refunded by the UPA because they were not "property" within the scope of New Jersey's Uniform Unclaimed Property Act, N.J.S.A. 46:30B-1 to -109 (UUPA). UPA's denial of a refund is reversed. For certificates issued by BBB-VSI from July 1, 2010 to June 30, 2011, the certificates are not "credit memoranda" but rather constitute "stored-value cards" under the plain language of the UUPA as it was amended in 2010. The UPA erred in not refunding the value of these certificates because they were prematurely remitted by BBB-VSI.

On the day of the final hearing, defendant filed an in limine motion that sought dismissal of plaintiff's complaint, arguing the alleged facts suggested only parenting differences and not domestic violence. The trial judge considered and granted the motion without taking testimony or providing plaintiff a full and fair opportunity to meaningfully respond. In condemning the filing of in limine motions that seek disposition of an action, particularly in domestic violence actions, and in finding the motion's rapid consideration and disposition-deprived plaintiff of due process, the court reversed and remanded for a final hearing.

Following a defendant's detention under the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26, the State generally has ninety days to indict defendant, N.J.S.A. 2A:162-22(a)(1)(a), and 180 days after the indictment to try defendant, N.J.S.A. 2A:162-22(a)(2)(a). Both periods allow for "excludable time" and for the State to move to continue detaining defendant provided the State can make certain showings. N.J.S.A. 2A:162-22(a)(1), (2).

In accordance with the CJRA, defendant has been detained in jail since early March 2017. He contends that the time for his trial under the speedy trial provisions of the CJRA is about to be reached. On leave granted, he appeals three orders that found a total of sixty-seven days of "excludable time," N.J.S.A. 2A:162-22(a), under the CJRA. We hold that our standard of review of the period to "be excluded in computing the time in which a case shall be indicted or tried" under N.J.S.A. 2A:162-22(b) is de novo. We also hold that we apply the traditional deferential standard of review to the trial court's factual findings concerning the amount of time excluded. Applying these standards, we affirm the orders that found sixty-seven days of excludable time.

The court affirms the dismissal on summary judgment of a volunteer firefighter's whistleblower claim against Colts Neck Volunteer Fire Company No. 2, and several individual officers and members of the fire company, finding volunteer firefighters are not entitled to the protections of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Because plaintiff is not an employee of the fire company, its vote to strip him of his membership in the organization in alleged retaliation for his letters to the fire company's fidelity carrier and Colts Neck's Executive Fire Council, even if true, is not a violation of CEPA.

The grand jury indicted defendant, a sitting Superior Court judge, for official misconduct, N.J.S.A. 2C:30-2b, and two counts of hindering the apprehension of her boyfriend, the subject of an active arrest warrant for robbery. N.J.S.A. 2C:29-3a(1) and (2). The indictment alleged that with a purpose to benefit herself and her boyfriend, defendant refrained from performing a duty inherent in the nature of her office, i.e., to "enforce an arrest warrant . . . by failing to adequately notify the . . . Police Department of . . . [her boyfriend's] intended appearance or presence at her residence." The hindering counts alleged defendant "harbored or concealed" her boyfriend and offered or provided aid to avoid discovery or apprehension or to effect escape. The Law Division judge granted defendant's motion to dismiss the official misconduct charge but denied her motion as to the two hindering counts. The court granted each party's motion for leave to appeal.

The court affirmed, holding that under the circumstances presented, the judge did not have a duty, inherent in her office, to notify police of her boyfriend's location or that he was shortly appearing at her home. The court also concluded the State had produced some evidence before the grand jury to support the indictment on the hindering counts.