Published Trial Court Opinions

Defendant filed a Motion for Release Due to Illness or Infirmity under Rule 3:21-10(b)(2) and a Motion for a Judicial Furlough under State v. Boone, 262 N.J. Super. 220 (Law Div. 1992). Defendant had asserted that, as an insulin dependent diabetic requiring two injections daily, his continued incarceration had placed him at a very high risk of contracting COVID-19 and suffering extremely serious health consequences, including death. After rejecting the State’s contention that defendant was required to exhaust his administrative remedies prior to filing such motions, the court addressed both motions on the merits.

With respect to the Motion for Release Due to Illness or Infirmity under Rule 3:21-10(b)(2), the court weighed the factors set forth by the New Jersey Supreme Court in State v. Priester, 99 N.J. 123, 135 (1985), for determining whether an inmate should be released. In so doing, the court held that while defendant had proven that he was suffering from an illness, defendant had not presented any evidence that the pandemic was having a "deleterious effect" on his medical condition and did not show that medical services unavailable at the prison would be essential to prevent further deterioration of his health. Similarly, while the pandemic constituted a change in circumstances, the Department of Corrections had taken efforts to mitigate and protect against the spread of the disease and defendant failed to present any evidence that COVID-19 was causing a "serious deterioration" to his health. Lastly, due to defendant’s extensive prior record and the serious nature of the charge for which defendant was incarcerated, defendant’s release would not be in the best interests of public safety and welfare. Thus, the motion under Rule 3:21-10(b)(2) was denied.

With regard to the Motion for a Judicial Furlough under Boone, the court noted that the defendant in Boone required lifesaving treatment out-of-state and there was no statutory or rule-based authority for granting such relief. As such, the trial court in Boone exercised its inherent authority to grant a judicial furlough to save the defendant’s life. Here, the court found that there was explicit statutory authority, vested in the Commissioner of the Department of Corrections and his agents, through which defendant could seek a furlough. See N.J.S.A. 30:4-91.3. Since defendant had statutory authority by which to seek a furlough, the court found it had no authority to grant a judicial furlough and denied the motion.

In re Adoption of a Minor Child by J.B. analyzes whether the precedents of Garden State Equality v. Dow and Obergefell v. Hodges have impacted the scope of the second parent exception to New Jersey’s Judgment of Adoption statute, N.J.S.A. 9:3-50—particularly, whether its requirement that all parental rights, except for those rights of a legal parent who is the "spouse" of the petitioner, must be terminated upon the entry of a Judgment of Adoption. A strict reading of the statute contrasts with numerous court rulings issued prior to Garden State Equality v. Dow, yet the ability for same-sex couples to now marry removes a barrier to recognition that would allow for satisfaction of the statute’s restrictive requirements.

Before same-sex couples had a legal pathway to marriage, N.J.S.A. 9:3-50 was interpreted to allow unmarried couples to adopt without terminating a biological parent’s rights in cases such as In re Adoption of a Child by A.R., 152 N.J. Super. 541 (Probate Div. 1977), In re Adoption of a Child by J.M.G., 267 N.J. Super. 622, 623 (Ch. Div. 1993), and In re Adoption of Two Children by H.N.R., 285 N.J. Super. 1 (1995). Yet, those cases carefully articulated that the petitioning couples had no legal ability to wed and were thus unable to satisfy the statute’s "spousal" requirements. Now that same-sex marriage has been legalized by Dow and Obergefell, the question of whether the exception still applies—after it was based upon couples for whom marriage was prohibited—must be answered, as well as to clarify that the statute’s strictly read requirements remain unnecessary. Despite the conflict between statutory language and relevant case law, the second parent exception should be affirmed to avoid terminating the rights of worthy, unmarried parents and petitioners seeking to form a family unit.

The court denied defendant’s motion to dismiss the indictment, in which he was charged with bias intimidation, among other crimes, pursuant to N.J.S.A. 2C:16-1(a)(2). Defendant admitted to sending messages via MeetMe.com to the victim threatening to harm her biracial daughter, in which he referred to the child as a "mutt" and "mongrel" and referred to the victim as a "spic loving whore." Defendant asserted that the grand jury was not presented with any evidence demonstrating that defendant directed the threats at the victim and her daughter based on racial motivation. The messages were in reference to the daughter’s race and not the victim’s who was the recipient of the threats. The State argued that the grand jury was presented with testimony that defendant stated he disliked interracial relationships and children of those relationships.

The court denied defendant’s motion, holding that, by defendant’s own admission, the threats were motivated by the victim’s identity as a white female who engaged in a biracial relationship with a Hispanic male and bore a biracial daughter. Additionally, the court reasoned that the victim’s biracial daughter was also a foreseeable third-party victim of the threats even though she was not the recipient. As the standard for upholding an indictment weighs heavily in favor of the State, here defendant’s admissions satisfied the requisite evidence needed to demonstrate racial motivation for N.J.S.A. 2C:16-1(a)(2).

A levy was placed on a bank account belonging to defendant judgment-debtor. Defendant objected to the levy on the grounds that the only money in the account was from the part of defendant’s wages that were exempt from a wage garnishment. The question presented is whether a levy can be made on money deposited in a bank account from wages that were previously subject to garnishment. Based on the applicable statutes, the court found that previously garnished wages deposited in a bank account does not exempt the money from levy.

Lakeview Memorial Park Association v. Burlington County Construction Board of Appeals involves a novel question of whether the New Jersey Cemetery Act, N.J.S.A. 45:27-1 to -41, preempts local municipal regulation in accordance with the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -63. Specifically, this opinion examines the interplay between the two statutory schemes to determine whether the local municipality has the power to require zoning permits pursuant to local ordinances for mausoleum construction where the Department of Community Affairs has already approved the site plans for the construction in accordance with N.J.S.A. 45:27-27(b). The Supreme Court’s only decision related to this matter, Trinity Cemetery Association v. Township of Wall, only speaks to municipal regulation of cemeteries in the Court’s concurrences, authored separately by Justice Zazzali and Justice Verniero, and does not speak directly to whether the Cemetery Act preempts municipal regulation pursuant to the MLUL. See 170 N.J. 39 (2001).

In reviewing this question, this opinion finds that the Legislature empowered the local municipalities, pursuant to the MLUL, to enact ordinances to regulate the use and development of land. As part of the regulation of land use and development, a municipality may require site plan approval to oversee the effect of the development on the public health and safety. The municipality’s power to regulate as such is not preempted by the DCA’s power to approve site plans for construction pursuant to the Cemetery Act. Therefore, the plaintiff-cemetery in this matter was required to follow municipal regulations and obtain the requisite zoning permits and site plan approval before beginning its mausoleum expansion project.

This matter was before the court on applications filed by both parties seeking relief concerning child support and custody. In its written opinion, the court addressed the issue of whether, for purposes of calculating child support, the court may find a parent to be underemployed, and impute to that parent income based on available overtime, where the available overtime is greater than the amount of overtime the parent had worked in the past.

The court held that a parent was not “voluntarily underemployed” for not working all available overtime, without regard to past practices. The court held that for purposes of calculating child support, the parent’s income is his or her salary plus an additional amount based on past earnings from overtime and second jobs.

This non-dissolution case addresses whether partition of a residence remains an equitable remedy among unmarried, cohabitating intimates engaged in a joint venture following 2010 amendments to the Statute of Frauds – a question of first impression.

In 2010, the Statute of Frauds was amended to extend its writing requirement to any “promise by one party to a non-marital personal relationship to provide support or other consideration for the other party.” N.J.S.A. 25:1-5(h). Although the amendment clearly made unwritten palimony agreements unenforceable, no published opinion has yet addressed whether, in the absence of a writing, the equitable remedy of partition among unmarried, cohabitating intimates survived.

Here, although the deed and mortgage to the home were in S.R.’s name only, C.N. was heavily involved in the home’s purchase by, among other things: communicating with the realtor; providing $10,000 of the $15,000 down payment; being solely responsible for the inspection; negotiating a $10,000 seller’s concession; and being a named insured. Once in the home, although S.R. largely paid the monthly mortgage, C.N. was responsible for the majority of the home’s upkeep costs, such as gas, electric, water, sewer, security, landscaping services, garbage, and pest control. He oversaw contractors. He purchased furniture. And, he worked with a lawyer to appeal a tax assessment.

After reviewing pre-amendment precedent, the plain text of the statutory amendment that used palimony language from a precedential Appellate Division opinion, and the legislative history undergirding enactment of N.J.S.A. 25:1-5(h) – legislative history that expressly discussed palimony caselaw, yet was silent as to partition – the court holds that, in the absence of a writing, partition of a residence remains an equitable remedy among unmarried, cohabitating intimates engaged in a joint venture.

This case presents the question of whether petitioner A.R.'s convictions fall within the "crime-spree" exception contained within N.J.S.A. 2C:52-2(a), making them eligible for expungement. Specifically, the granting or denying of petitioner’s expungement petition turns on the phrase: “crimes [which are] interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period of time.” N.J.S.A. 2C:52-2(a). Petitioner and the State concede that this phrase is undefined in the statute, yet offer competing interpretations. The State proposes a strict interpretation of this language, whereas petitioner asserts that the expungement statute – as remedial legislation – should be liberally interpreted. This court concludes that a liberal interpretation of this language is consistent with the general purpose of the expungement statute. Petitioner’s convictions are “closely related in circumstances” because they stem from two instances where he engaged in the unlawful sale of narcotics to a “friend” and an undercover officer, and were committed over a period of six weeks, which is a “comparatively short period of time.” Therefore, petitioner’s convictions are eligible for expungement pursuant to N.J.S.A. 2C:52-2(a).

This domestic violence case concerns the breadth of “household member” jurisdiction in the context of a modern, blended-family where the parties are adult, half-siblings who shared meaningful, regular parenting time with their common father during their youth – though never resided together. Throughout their youth, the parties regularly and consistently spent substantial periods of time at their common father’s home, including the defendant spending overnights every other weekend during the school year and more extended times during the summer at their father’s home. Although he did not have a bedroom, he had a fixed sleeping arrangement and drawers containing underwear, gym shorts, and toiletries. During and after college, their in-person contact decreased, but they still gathered informally and at family milestones and vacations.

In view of those facts, for purposes of the Prevention of Domestic Violence Act’s (“PDVA”) jurisdictional “household member” requirement, the court holds that a child whose parents are separated during youth but who spends meaningful, regular periods of time at a parent of alternate residence’s home such that he or she is substantially integrated into that household may have two “households” creating jurisdiction vis-à-vis a victimized half-sibling who resided solely with the common parent. “Household member” as used in the PDVA’s definition of “victim of domestic violence” must be sufficiently flexible to accommodate the ever-changing dynamics of modern families. To restrict a child whose parents are separated to only one household despite meaningful, regular time in a second household would untenably alter the statutory construct, discriminate against members of blended families, and unduly restrict the broadly designed, legislatively crafted protections afforded victims of domestic violence.

This matter was before the court on defendant’s application to disestablish paternity, terminate child support, and vacate child support arrears. After genetic testing confirmed that defendant was not the child’s biological father, the court granted those parts of the application seeking to disestablish paternity and terminate ongoing support.

The court denied that part of defendant’s application seeking to vacate arrears. In particular, the court rejected defendant’s argument that the arrears could be vacated on equitable principles.

In February 2017, defendant was charged with the crime of possession with intent to distribute marijuana in a quantity greater than twenty-five pounds and was released on home arrest with electronic monitoring (PML3+EM). On December 17, 2018, defendant entered a guilty plea to count one of the indictment, as amended to a second-degree offense. In consideration for the guilty plea, the State agreed to recommend a maximum sentence of a five-year state prison term. Defendant requested an extended sentencing date to “put his life in order” before commencing the custodial term. The court set April 5, 2019, as the sentence date and, in its discretion, continued defendant on pretrial release.

Defendant retained new counsel and on June 10, 2019, present counsel for defendant filed a motion to withdraw the guilty plea, requesting that the sentence be adjourned and that he continue free on pretrial release, pending the return of the motion. Defendant argued that pursuant to the Criminal Justice Reform Act (CJR), N.J.S.A. 2A:162-15 to -26, he was entitled to remain on release until sentencing or the resolution of the motion to vacate the plea. The court denied the request to remain free, holding that CJR did not vest defendant with any substantive or procedural grounds to remain free on pretrial release after entering a plea of guilty. Instead, in its discretion, the court remanded defendant pending same.

The matter presents the novel issue as to whether a defendant is entitled to continue pretrial release pursuant to CJR.

This case addresses the question of whether a residential landlord’s failure to comply in all respects with N.J.S.A. 2A:50-70 (a tenant protection measure within the New Jersey Foreclosure Fairness Act, N.J.S.A. 2A:50-69 to -71) precludes the landlord’s right to evict a tenant for non-payment of rent when the tenant’s defense is that the rent has been paid to the former landlord because the tenant was unaware of the existence of the new landlord. The court answered the question in the affirmative.

This application raises a novel question concerning whether an error made by condemnation commissioners should negatively impact the right of the defendant property owner to file an appeal of the commissioners’ award. More specifically, if the commissioners’ award is filed without the statutorily required oath, does the time limit to appeal the award start to run when the award is filed or when the oath is subsequently filed? The court also considered whether good cause exists to extend the time to file the appeal. In a case of first impression, the court held that the report was not considered “filed” until the oath was filed; thus, the appeal was timely as it was filed within forty-five days of the filing of the commissioners’ oath.

Plaintiff, John Doe, initiated this tort action in New Jersey against the Archdiocese of Philadelphia and St. Charles Borromeo Seminary (hereinafter “Archdiocese defendants”). The Archdiocese defendants filed a motion to dismiss plaintiff’s complaint raising the defenses of lack of personal jurisdiction, statute of limitations and forum non conveniens. The motion was initially denied and a plenary hearing on the issue of the statute of limitations was scheduled; however, that hearing was adjourned nearly one year as the court permitted an additional period of discovery. The Archdiocese defendants subsequently renewed their prior motion seeking a decision as to whether Pennsylvania or New Jersey law applies. The choice-of-law question raised in the motion is particularly important because under Pennsylvania law, plaintiff’s mental state cannot toll the statute of limitations. After oral argument, the court determined it would not violate the Archdiocese defendants’ due process rights to subject them to in personam long-arm jurisdiction of the courts of New Jersey. Additionally, the court conducted a forum non conveniens analysis, and found New Jersey to be an appropriate forum for this action. The court next must determine if New Jersey’s statute of limitations precludes further adjudication of this claim. A plenary hearing, pursuant to Lopez v. Swyer, 62 N.J. 267 (1973), will be scheduled.

Defendants filed a motion for partial summary judgment to which plaintiff responded with a cross-motion for partial summary judgment. On January 1, 2000, the parties entered into an Operating Agreement in order to form the limited liability company, PediatriCare. Subsequently, on March 12, 2001, the parties executed an amended and restated Operating Agreement, which was the operative document governing the relationship. In January 2016, plaintiff announced his intention to retire, which triggered Section 10 of the Operating Agreement. Section 10 provided the process for calculating the retirement purchase price, which required a net worth valuation methodology, in order to determine a value for a negotiated buyout price of plaintiff. However, various calculations of fair market valuation were done in order to effectuate a settlement as to a voluntary buy-out number, which the parties agree was never reached

Defendants then sought to invoke the net worth valuation of Section 10 of the Operating Agreement. Plaintiff argued that over a sixteen-year period, the Operating Agreement was modified to use the fair market value as opposed to a net worth valuation, based on the parties’ conduct over this time period. Defendants argue that the Operating Agreement is clear in its express provision concerning how to calculate the buyout price. Moreover, defendants note that the Operating Agreement also unambiguously states that it may be modified only through a vote of 80% of the membership interests in the company, and not through the course of conduct that plaintiff contends. The court found, upon reviewing the plain language of the Operating Agreement, and upon a lack of evidence that it was changed by the remaining members, that the net worth valuation methodology remained a part of the Operating Agreement and was the correct method for a retirement purchase price.

In addition, plaintiff suffered no oppression since the economic loss doctrine bars recovery when entitlement flows from the Operating Agreement. There was also no breach of fiduciary duty when the members acted in conformity with the provisions of the Operating Agreement. The court ultimately granted in part, and denied in part, defendants’ motion for partial summary judgment. As such, the court dismissed Counts I, II, and III of plaintiff’s second amended complaint.

This matter comes before the court on plaintiff’s application and defendant’s counterclaim. In her application, plaintiff seeks, among other things, an initial custody determination concerning the parties’ minor child. In his counterclaim, defendant opposes plaintiff’s application and contests jurisdiction. Plaintiff, the child’s natural mother, resides in New Jersey. Defendant, the child’s natural father, resides in New York.

On March 7, 2018, J.T. (hereinafter “J.T.”),1 a senior at LEAP Academy University Charter School in Camden, New Jersey (hereinafter “LEAP Academy”), received an Instagram message from defendant, a middle school guidance counselor at the same school. That message asked J.T. to “[s]how me them huge rockets of your [sic] . . . .” Defendant was subsequently charged and indicted with third-degree endangering the welfare of a child under N.J.S.A. 2C:24-4(a)(1).

This case presents an issue of first impression: whether an out of state conviction for an offense classified as a crime in a foreign jurisdiction acts as a bar to the expungement petition of a successful graduate from the drug court program, when that same offense is classified as a motor vehicle offense in New Jersey? During his term on special probation, the petitioner was arrested in Philadelphia, Pennsylvania and charged with driving under the influence. J.S. was convicted of this charge on January 3, 2017. Under Pennsylvania law, this DUI charge is graded as a misdemeanor level crime. The Prosecutor opposed this petition for expungement on the basis that petitioner had been charged and convicted of a crime in the Commonwealth of Pennsylvania while a participant in the drug court program.

The court found that the Pennsylvania DUI conviction is not a statutory bar to this drug court graduate’s expungement because: (1) there exists a strong presumption towards expungement; (2) petitioner completed the drug court’s rigorous monitoring program, and; (3) such an offense, under the laws of the State of New Jersey, does not constitute a crime, disorderly persons or petty disorderly persons offense.

In this landlord-tenant case, the court was charged with deciding whether the City of Newark’s rent control ordinance prohibited the assessment of “additional rent,” for purposes of a summary dispossess action, if the total amount assessed, including this contractually provided for “additional rent,” exceeded the maximum rent permitted by the ordinance. The court answered the question in the affirmative.

This was an action seeking eviction for non-payment of rent. The tenant brought a motion arguing that the local rent control ordinance prohibited the incorporation of additional rent of the kind that was at issue in a summary dispossess action. The tenant argued that the ordinance established a maximum rent cap and any rent that exceeded that amount could not form a basis for eviction. The tenant further argued that regardless of whether defined as “additional rent,” fees should be considered in the ordinance’s definition of “rent” and thus capped thereby. The landlord countered that assessing the additional rent was not contrary to the subject ordinance and the lease expressly provided for such assessment. The landlord further argued that the fees sought are such a common form of additional rent that the local ordinance’s failure to specifically exclude it in the definition should be understood to be mean that the ordinance does not prohibit it.

The court held that the landlord was not entitled to evict the tenant based upon the failure to pay the “additional rent,” notwithstanding that the lease memorialized that legal and late fees were collectible as “additional rent.” The court found that the total amount of rent that could be assessed and thus put at issue in a summary dispossess case was limited by the local ordinance. The court established that the assessment of “additional rent” is still the imposition of rent, and because the ordinance governs all rent without exception, the rent could not exceed the municipal ordinance rate cap. Accordingly, the landlord was disallowed from seeking any rents in excess of the maximum rent permitted by the ordinance in a summary dispossess action. The landlord’s contractual remedy was preserved.

Following juvenile T.D.’s admission to committing the offense of shoplifting, under N.J.S.A. 2C:20-11, the court placed T.D. on a twelve-month deferred disposition and imposed a condition that T.D. complete thirty hours of community service. In light of the plain language of N.J.S.A. 2C:20-11(c) indicating that “any person convicted of a shoplifting offense shall be sentenced to perform community service[,]” the parties expressly contemplated that the community service hours imposed in this case were mandatory.

The matter was returned to court post-disposition on probation’s recommendation, due to T.D.’s failure to complete the community service hours. The court concluded that the community service hours were not mandatory, notwithstanding the language within subsection (c) of the shoplifting statute. The court reasoned that the Legislature did not explicitly apply the mandatory penalty provisions of the shoplifting statute to juveniles, as it has done with other statutory schemes. The court further found that the imposition of mandatory community service hours for shoplifting offenses was incompatible with the imposition of a deferred disposition resulting in the dismissal of the complaint, in the absence of any specific requirement to impose such a penalty on juveniles. Upon consideration of T.D.’s representations that she and her mother were experiencing homelessness, and mindful of the rehabilitative goals of the Juvenile Code, the court vacated the imposition of the community service hours as a condition of T.D.’s deferred disposition.