Published Appellate Court Opinions

          The court considers whether a police officer, who walked onto the driveway of a home without permission or a warrant, was lawfully there when he observed illegal narcotics in a hole in the home's front porch.  Because the driveway was part of the home's curtilage, the court holds that the officer conducted an unlawful search and his subsequent observation of contraband in the hole in the porch did not satisfy the plain-view exception.  Accordingly, the court reverses the trial court's denial of defendant's motion to suppress the seized contraband. 

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without a hearing.  The petition alleges ineffective assistance of counsel regarding both his prior attorneys.  Defendant's claim is primarily based on counsels' representation of him during two statements he gave to police, prior to the filing of any charges.  Defendant lied to the police during his first statement, at which he was represented by his first attorney.  He then retained a different attorney and gave a second statement in which he admitted to but tried to explain the prior misrepresentations.  Defendant was charged with hindering apprehension by false statements and false swearing by inconsistent statements, in addition to the substantive offense of permitting or encouraging the release of a child abuse record.

Defendant testified during the first jury trial, which ended in a mistrial based on defense counsel's failure to provide the State notice of his retraction defense.  Defendant exercised his right to remain silent during the second trial, which resulted in convictions on all counts.  On direct appeal, the court affirmed the convictions for false swearing and hindering apprehension and vacated the conviction for unlawful disclosure of a child abuse record.

In support of his petition for PCR, defendant provided an expert report from a veteran criminal attorney which opined that counsels' representation fell below the constitutional standard.  The PCR judge declined to consider the report because the petition presented mixed questions of law and fact which were for the court to determine, and she did not need the assistance of an expert report to decide the issues.

Under both the federal and state constitutions, it is well established that the right to effective counsel does not attach until the filing of charges.  Defendant sought to expand this right to representation occurring during the investigation.  The court found a defendant may not bring a PCR petition based on ineffective assistance of counsel for representation that occurred prior to being charged.

The court also found defendant failed to demonstrate either counsel was ineffective, and the PCR judge did not abuse her discretion in declining to consider defendant's expert report.

    In their complaint, plaintiffs alleged defendant falsely advertised clothing at two of its Aeropostale stores as being discounted when, in fact, according to plaintiffs, the clothing had never been sold in those stores at a higher price. Plaintiffs asserted that this "markup to markdown" practice violated both the Consumer Fraud Act, N.J.S.A. 56:8-1 to -227, and the Truth in Consumer Contract, Warranty, and Notice Act (the Truth Act), N.J.S.A. 56:12-14 to -18. The trial judge dismissed the complaint for failure to state a claim upon which relief can be granted, mainly because the judge determined plaintiffs failed to allege an ascertainable loss.
    Plaintiffs' ascertainable-loss theory – to use a simple example – is that defendant offered an item that never sold for anything more than $50, at a 50% discount below a new $100 price tag. Defendant successfully argued in the trial court that there was no ascertainable loss because plaintiffs purchased a $50 item for $50. The court rejected this and held, among other things, that the facts alleged an ascertainable loss because they alleged the discount was illusory and plaintiffs did not receive the benefit of the bargain because one element of the bargain was a 50% discount.
    Judge Berdote Byrne filed a concurring opinion.
 

          Plaintiff, a fully commissioned real estate salesperson, alleged on behalf of himself and a putative class of those similarly situated that defendant, a licensed real estate broker, had violated the Wage Payment Law (WPL), N.J.S.A. 34:11-4.1 to -4.14.  This court's prior opinion, Kennedy v. Weichert Co., No. A-0518-19 (App. Div. July 2, 2021), affirmed the trial court's order:  denying defendant's motion to dismiss for failure to state a claim; and declaring pursuant to Hargrove v. Sleepy's, LLC, 220 N.J. 289, 302 (2015), that the "ABC test," N.J.S.A. 43:21-19(i)(6)(A), (B), and (C), applied to determine plaintiff's employment status as an employee or independent contractor.

         The Supreme Court granted defendant's motion for leave to appeal but then remanded the matter for this court to consider recent amendments to the Real Estate Brokers and Salesmen Act (the Brokers Act), N.J.S.A. 45:15-1 to -29.5, enacted after this court's prior opinion.

         On remand, the court concluded the recent amendments foreclosed application of the ABC test to determine the employment status of fully commissioned real estate salespersons.  The court also concluded that pursuant to binding precedent from the Court, the written agreement between the parties did not, as a matter of law, define plaintiff's status.  See, e.g., MacDougall v. Weichert, 144 N.J. 380, 388 (1996).

         However, given the paucity of the record, the court declined to adopt a specific test to apply in deciding plaintiff's status pending "the development of a more complete record that permits exposition of the actual business relationship between the parties."

          A public employer appealed from two Chancery Division orders denying its request to restrain a grievance arbitration filed by the union.  The issue before the court was whether a union grievance based on language from an expired collective negotiations agreement is arbitrable when a successor collective negotiations agreement clearly and unambiguously addresses the disputed issue raised in the grievance.  The court concluded that the language contained in the successor collective agreement superseded the language in the expired agreement.  The language in the successor agreement limited compensation for work performed during a weather-related State of Emergency declared by the Governor, contrary to the union's interpretation the language applied to COVID-19.  Since the grievance was not within the scope of the successor agreement implemented after impasse, it was not arbitrable.  The court reversed the orders requiring grievance arbitration.

Plaintiff, Shlomo Hyman, is a rabbi formerly employed by defendants as a Judaica studies teacher.  After an investigation concluded defendant had engaged in behavior that violated Orthodox Jewish standards of conduct, defendants terminated him.  Defendants then sent an email to the parents of the Yeshiva students informing them that Rabbi Hyman would not be returning as "[his] conduct had been neither acceptable nor consistent with how a rebbe in our Yeshiva should interact with students." Plaintiff alleged the communication defamed him and served to label him as a pedophile, impairing his future employment prospects.

Plaintiff now appeals from an April 16, 2021 order granting defendants' motion for summary judgment dismissing his claim for defamation based on the ministerial and ecclesiastic abstention doctrines.  Plaintiff argues the court erred in dismissing his defamation claim because the ministerial exception recognized in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 181 (2012) applies only to employment discrimination claims, and because further discovery was required to determine whether the motivation behind the dissemination of a letter concerning the termination was ecclesiastic in nature.

The court affirmed the dismissal of the lawsuit, concluding, as a matter of first impression, that the ministerial exception operates to bar any tort claim provided (1) the injured party is a minister formerly employed by a religious institution and (2) the claims are related to the religious institution's employment decision.  Because both conditions are satisfied in this case, the ministerial exception alone bars plaintiff's defamation claim.  Therefore, the court found it unnecessary to address whether the ecclesiastic abstention doctrine was an independent basis to dismiss the action.

          In this appeal of an order compelling arbitration, the court held that the requirement imposed by Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014) – that, to be enforceable, an arbitration provision must contain an express waiver of the right to seek relief in a court of law – was not intended to apply to sophisticated commercial litigants possessing comparatively equal bargaining power.

Defendant contends he was subjected to discriminatory policing when he was stopped and frisked based on the be-on-the-lookout (BOLO) description of the person who committed an armed robbery in the vicinity minutes earlier.  The BOLO alert described the robber as a Black male wearing a dark raincoat.  However, the victim did not provide the race of the perpetrator when she reported the crime.  The State acknowledges it does not know why the police dispatcher assumed the robber was Black.

The court address three issues of first impression.  As a threshold matter, the court holds that decisions made and actions taken by a dispatcher can be attributed to police for purposes of determining whether a defendant has been subjected to unlawful discrimination in violation of Article I, Paragraphs 1 and 5 of the New Jersey Constitution. 

Second, the court holds that "implicit bias" can be a basis for establishing a prima facie case of police discrimination under the burden-shifting paradigm adopted in State v. Segars, 172 N.J. 481 (2002).  Reasoning that the problem of implicit bias in the context of policing is both real and intolerable, the court holds evidence that supports an inference of implicit bias shifts a burden of production to the State to provide a race-neutral explanation.  The State's inability to offer a race-neutral explanation for the dispatcher's assumption that the robbery was committed by a Black man constitutes a failure to rebut the presumption of unlawful discrimination under Segars.

Third, the court addresses whether and in what circumstances the independent source and inevitable discovery exceptions to the exclusionary rule apply to the suppression remedy for a violation of Article I, Paragraphs 1 and 5.  After balancing the cost of suppression against the need to deter discriminatory policing and uphold public confidence in the judiciary's commitment to safeguard equal protection rights, the court concludes the independent source doctrine does not apply in these circumstances.  That exception allows a reviewing court to redact unlawfully obtained information to determine whether the remaining information is sufficient to justify a search.  The court concludes that any such redaction remedy would undermine the deterrence of discriminatory policing and send a message to the public that reviewing courts are permitted to essentially disregard an equal protection violation so long as police also relied on information that was lawfully disseminated.  The court reasons that if simple redaction were permitted in these circumstances, the independent source exception might swallow the exclusionary rule.   

With respect to the inevitable discovery doctrine, the court holds it may apply in racial discrimination cases only if the State establishes by clear and convincing evidence that the discriminatory conduct was not flagrant.  Because the State concedes it does not know why the dispatcher assumed the robber was Black, it cannot meet that burden.  The court, therefore, reverses the denial of defendant's motion to suppress.   

Defendant, Smith & Wesson, appeals from a June 30, 2021 Chancery Division order directing it to respond to a subpoena issued the Attorney General and the Acting Director of the New Jersey Division of Consumer Affairs.  Defendant also appeals a second June 30, 2021, Chancery Division order denying its cross-motion to dismiss, stay, or quash the subpoena. 

Faced with defendant's first-filed federal complaint against plaintiffs' motion to quash the subpoena, and with plaintiffs' subsequently filed order to show cause to enforce the subpoena, the Chancery Division judge assumed jurisdiction, finding special equities which justified avoiding the first-filed doctrine.  The judge then found the subpoena valid.  Defendant appealed, arguing the judge erred by misapplying the first-filed doctrine and by rejecting its constitutional attacks on the subpoena.   

The court held that:  special equities exist which support avoidance of the first filed doctrine; NAACP v. Alabama does not require resolution of defendant's constitutional claims at this stage of the litigation; defendant's federal constitutional claims are not ripe for consideration; and the subpoena is valid.

Affirmed.

Defendant was initially charged with carjacking.  While he was awaiting trial, he sent a letter to the victim's home address, urging her to reconsider her identification of him as the robber.  That resulted in an additional charge of witness tampering.

The court rejects defendant's contention that the witness tampering statute, N.J.S.A. 2C:28-5(a), is overbroad and impermissibly vague on its face.  A person commits witness tampering if he or she knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to do one or more specified actions, such as testify falsely or withhold testimony.  Defendant contends the "reasonable person" feature renders the statute unconstitutional and, to avoid constitutional infirmity, the statute must be construed to require the State to prove he knew his conduct would cause a prohibited result. 

First addressing defendant's overbreadth challenge, the court reaffirms that preventing the intimidation of, and interference with, potential witnesses or informers in criminal matters is an important governmental objective.  The court also notes a defendant who is awaiting trial for a violent crime has no First Amendment right to communicate directly with the victim.  Were it otherwise, a court setting the conditions of pretrial release under the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, might be foreclosed from imposing a "no contact" order.  The court concludes the witness tampering statute is not overbroad weighing the importance of the exercise of speech against the gravity and probability of harm resulting from that speech.

With respect to defendant's vagueness challenge, the court declines to embrace a new rule that would categorically prohibit the Legislature from using a reasonable-person test to determine a defendant's culpability.  The court rejects the argument that the "reasonable person" feature in the witness tampering statute is analytically indistinguishable from the portion of the bias intimidation statute, N.J.S.A. 2C:16-1(a)(3), that was struck down on vagueness grounds in State v. Pomianek, 221 N.J. 66 (2015).  The invalidated portion of the bias intimidation statute employed a subjective test under which a defendant's culpability was determined from the perspective of the specific victim who was targeted.  That led the Supreme Court to conclude that "guilt may depend on facts beyond the knowledge of the defendant or not readily ascertainable by him [or her]."  Pomianek, 221 N.J. at 89.

The "reasonable person" standard employed in the witness tampering statute, in contrast, does not account for, much less depend on, what the victim actually perceived or believed.  Rather, the witness tampering statute uses an objective standard, effectively eliminating the concern expressed in Pomianek regarding idiosyncratic personal characteristics of the victim about which a defendant might be unaware. 

The court also notes the bias intimidation statute employed a convoluted culpability provision that focused on the victim's speculation as to the defendant's purpose.  That formulation had not been used in any preexisting statute and was never replicated in New Jersey or any other jurisdiction.  The objective "reasonable person" formulation employed in the witness tampering statute, in contrast, appears throughout the New Jersey Code of Criminal Justice.

Defendants – an attorney and law firm – have a client that produced a report, which asserts plaintiffs unlawfully conducted gambling-related business in forbidden countries. At the client's behest, the defendant attorneys forwarded the report to the New Jersey Division of Gaming Enforcement. When the media learned of the report, plaintiffs sued the defendant attorneys, as well as their anonymous client and other fictitious persons, alleging defamation and other torts. Plaintiffs successfully obtained an order compelling the defendant attorneys to provide their client's identity. The court granted the defendant attorneys' motion for leave to appeal.

Although RPC 1.6 generally imposes on attorneys the ethical obligation to refrain from disclosing a client's identity without the client's consent, the court held that this interest in preserving confidentiality cannot be used to thwart justice and, in appropriate circumstances, a client's right to anonymity may be overcome in favor of an injured party's right to seek redress in our courts. To resolve the conflict between these interests, there must be a deeper examination of the claim's merits than occurred here. The court, therefore, vacated the disclosure order and remanded for the judge's inquiry into the veracity of the report that lies at the heart of plaintiffs' civil action, leaving to the judge's discretion the methodology to be employed.

         In this opinion, the court addresses the novel issue of whether a party to a pending litigation may compel a non-party State agency to turn over its employees' State-issued and personal cell phones to that party's expert for forensic examination, even when the agency has already produced the relevant records from the devices.  Having reviewed this issue in light of the record, the arguments of the parties, and the applicable law, the court concludes that the trial court misapplied its discretion when it required the New Jersey Department of Health (Department) to give the cell phones to plaintiffs' expert for evaluation.  The trial court's order violated civil discovery rules and case law by requiring the production of materials not in the Department's possession, custody, or control, not allowing for privilege and confidentiality review, and being unnecessary and unduly burdensome.  The order also contravened the employees' constitutional right to privacy.  Therefore, the court reverses the trial court's order mandating that the Department turn over any State-issued or personal electronic devices for examination by plaintiffs' expert, and remands the matter for resolution of any outstanding issues relating to the completeness of the Department's response to plaintiffs' subpoena.

The court affirms Law Division orders consolidating and dismissing seven inverse condemnation actions against the Department of Environmental Protection under the entire controversy doctrine, leaving plaintiffs to their remedies in the DEP's condemnation action against their homeowners association, in which plaintiffs have been participating since 2019.

The case arises out of the State's acquisition of a perpetual storm damage reduction easement by eminent domain in the Association's unbuildable, two-and-a-half-acre beach lot along the Atlantic Ocean in Point Pleasant Beach as part of the Manasquan Inlet to Barnegat Inlet Storm Damage Reduction Project.  Plaintiffs are seven of the twenty-two homeowner members of the Association, each holding a non-exclusive easement appurtenant for recreational purposes in the Association's beach. 

When the court declared DEP had the authority to partially condemn the Association's beach for shore protection in 2016, it entered orders permitting members of the Association to present claims for severance damages allegedly caused to their homes by the partial taking of the beach lot before the condemnation commissioners.  Plaintiffs appeared at the commissioners' hearing in 2019 and have appealed from the commissioners' report and award.  They have an order in the condemnation action ensuring that among the issues to be tried to a jury will be "the separate just compensation due to each of the respective [plaintiffs] by reason of the taking . . . of property of each . . . and any damages to their respective residential lots."  Because plaintiffs' rights to separate awards for just compensation for the loss of value to their homes, if any, resulting from DEP's exercise of eminent domain as to the beach lot are fully protected through their participation in the earlier filed condemnation action, the court affirms dismissal of their inverse condemnation actions under the entire controversy doctrine.

          The court also affirms rejection of plaintiffs' claim that their recreational easements provided them the right to exclude non-Association members from the Association's beach, as neither the express wording of the easement nor the Association's reservation of the right to operate the beach commercially in a 2005 settlement of public trust litigation supports that claim.

In this appeal from proceeding filed in the Family Part involving the cremation remains and personal effects of the parties' son, who died unexpectedly and suddenly at age twenty, the mother unilaterally decided to have the body cremated without informing the father that their son had died, preventing him from participating in that decision and attending the memorial service.  The mother has sole possession of the cremation remains and the son's remaining personal effects and refuses to divide them with the father.  

The court concluded the father had ample opportunity to litigate Colleen's alleged alienation of their son's affection and interference with his parenting time and communication with his late son in the Family Part during the years leading up to his son's eighteenth birthday.  He chose not to do so, and instead waited until the dispute over the cremation remains and personal effects erupted more than two years after their son turned eighteen to first raise those issues.  The court deemed those issues waived and, in turn, concluded that a plenary hearing regarding the parties conduct during the last five years of their son's life is not required as the evidence overwhelming demonstrated the mother had a closer relationship with their son.  Applying a four-prong test, the court held the mother shall have control over the cremation remains.  

The court affirmed the termination of child support, retroactive to the date of death.  

The court also provides guidance on the proper procedure to be utilized in future similar disputes, by filing a complaint in the Probate Part, rather than applications in the Family Part.  

These consolidated appeals present an issue of first impression – whether plaintiffs state viable claims for breach of contract, unjust enrichment, conversion, or money had and received, because the universities they attended transitioned to total online instruction rather than an in-person, on-campus education experience for which they paid, during the statewide health emergency caused by the COVID-19 pandemic.  The universities contend they are immune from liability pursuant to the Emergency Health Powers Act (EHPA), N.J.S.A. 26:13-1 to -36, because their decisions to pause in-person instruction were made in compliance with the executive orders issued by the Governor during a public health emergency to limit the spread of COVID-19 among students, faculty, and the community.  

The court affirms the Rule 4:6-2(e) dismissal of plaintiffs' complaints for failure to state a claim upon which relief can be granted, concluding the universities are immune from liability under N.J.S.A. 26-13-19.  

In this appeal, plaintiff American Civil Liberties Union of New Jersey (ACLU) contended defendant County Prosecutors Association of New Jersey (CPANJ) is a public agency subject to records requests under the Open Public Records Act (OPRA) and the common law right of access.  The ACLU requested CPANJ to produce documents regarding CPANJ's funding, the context and contents of its meetings and events (including dates, times, and locations), and the people performing its operating functions.  CPANJ denied the records request in its entirety, contending it is "not a public agency subject to the dictates of OPRA or requests made under the common law right of access." 

The court held CPANJ is not a public agency subject to OPRA and is not a public entity subject to the common law right of access.  Therefore, disclosure of the requested records was properly denied.  

This case addresses the issue of whether sales tax should be included when calculating the "full retail value" of merchandise under New Jersey's shoplifting gradation statute.  N.J.S.A. 2C:20-11(c).  Defendant pled guilty to shoplifting an Xbox One with an advertised price of $499.99.  Shoplifting constitutes a crime of the third degree "if the full retail value of the merchandise exceeds $500 but is less than $75,000" and a crime of the fourth degree "if the full retail value of the merchandise is at least $200 but does not exceed $500."  N.J.S.A. 2C:20–11(c)(2) and (c)(3).    The State utilized sales tax in grading defendant's offense, and he was therefore charged with a third-degree offense.  

The court analyzed the theft statute, which specifically utilizes sales tax to calculate the "amount involved" in its statutory gradation scheme.  However, the court observed the shoplifting statute contains no such provision.  The court concluded because the Legislature did not determine sales tax should be included in the valuation of full retail value in enacting the shoplifting gradation statute, it was improper for sales tax to have been utilized to increase defendant's charge to a third-degree offense.   

Defendant's car was subjected to a warrantless search incident to an unrelated sting operation planned and carried out by New Jersey State Police.  The State Police detained defendant after a parking lot melee involving three other persons, including the target of the sting operation.  Due to the cold weather, state troopers detained defendant in his car.  After a state trooper opened defendant's car door and placed him inside, the trooper smelled the odor of marijuana.  Based on the trooper's detection of marijuana, the State Police sought defendant's consent to search the car.  After initially refusing, defendant consented, and the State Police conducted a search of the car.  The State Police found no marijuana in the car, but they recovered an illegal gun.  Defendant filed a motion to suppress the gun, arguing the initial entry into his vehicle constituted an unconstitutional search.  The trial court denied the motion, finding the State Police's justification that it was too cold to detain defendant outside was sufficient under the totality of the circumstances.

The Court held that the trial court mistakenly applied State v. Woodson, 236 N.J. Super. 537 (App. Div. 1989), and State v. Conquest, 243 N.J. Super. 528 (App. Div. 1990), and that the opening of the car door constituted an impermissible search.

Reversed and remanded.  

 Defendant was charged with first-degree murder, two weapons offenses, and hindering apprehension.  Tried to a jury, defendant was convicted of the lesser-included offense of second-degree passion-provocation manslaughter, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon, and not guilty of hindering apprehension.  The trial court found aggravating factors one, three, four, and nine, N.J.S.A. 2C:44-1(a)(1), (3), (4), and (9), and mitigating factor seven N.J.S.A. 2C:44-1(b)(7), but rejected mitigating factor nine, N.J.S.A. 2C:44-1(b)(9).  Following merger of the weapons counts, he was sentenced to a nine-and-one-half-year term, subject to the parole ineligibility and parole supervision imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2.  

The court addressed the judicial factfinding undertaken by the trial court as part of its sentencing analysis.  The court concluded that the trial court's findings regarding the degree of provocation and sufficient time to cool off before delivering the fatal blows were contrary to the jury's verdict and violated the doctrine of fundamental fairness.  
The court also held that aggravating factor four applies to a defendant taking "advantage of a position of trust or confidence" relating to the victim "to commit the offense," not to a minor's subsequent participation in an attempted coverup of the homicide.  

The court also addressed the need for a trial court to provide a detailed explanation of how it reconciles its application of aggravating factor three and mitigating factor seven, the weight assigned to those factors, and how those factors are balanced with respect to a defendant who had no prior juvenile or criminal history and no subsequent criminal history in the decade that elapsed before his arrest.  

 The court vacated defendant's sentence and remanded for resentencing, directing the trial court to not consider whether defendant was adequately provoked or had adequate time to cool off before inflicting the fatal blows, to not apply aggravating factor four, and to apply mitigating factor fourteen.  The court further directed that the trial court reconsider whether aggravating factor three applies and if so, the weight to be given to it.  

Plaintiff Fritzy Rivera was shot by her estranged husband after leaving a friend's apartment at Cherry Hills Towers.  She alledged defendant Vikco, Inc.'s negligence in failing to provide a safe environment as property manager of Cherry Hills Towers allowed him to enter the apartment complex through an open security gate.  Defendant was not the property manager when the assault occurred, but plaintiff contends the open security gate was a practice established by defendant and continued by the new property management company.

The motion court denied defendant's summary judgment motion to dismiss plaintiff's complaint.  Having granted defendant leave to appeal, we reverse. 

We disagree with the court's reasoning that there was a genuine issue of material fact to be determined by the jury as to whether defendant owed plaintiff a duty to provide a safe environment at Cherry Hill Towers when it was not the apartment complex's property manager at the time of the shooting.  Whether defendant owed plaintiff a duty is a question of law to be determined by the court, not by a jury at trial.  Under the circumstances of this case, we conclude our common law does not support plaintiff's theory that defendant's duty to provide a safe and secure environment at Cherry Hill Towers continued after its management services were discontinued.   Summary judgment is granted to Vikco.