Opinion Summaries

Posted Date Name of Case (Docket Number) Type
Nov. 29, 2023 IN THE MATTER OF A.D., ETC. (P-000982-20, SUSSEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-2563-21/A-2652-21)

The issue in this appeal is whether the trial court erred in its application of the law or abused its discretion in its denial of appellants' fee applications.  In a guardianship matter filed by Adult Protective Services (APS), the trial court appointed appellants to serve as the counsel and the temporary guardian of the alleged incapacitated person (AIP), who had no assets and a limited income.  After working together to obtain services for the AIP, appellants and APS agreed the AIP needed only a limited guardianship, and the trial court granted that relief. 

Appellants moved for an order requiring APS to pay their fees and costs, arguing they were entitled to fees pursuant to Rule 4:42-9(a)(3), which permits a trial court to award fees in a guardianship matter pursuant to Rule 4:86-4(e), which in turn authorizes a court to compensate appointed counsel and the guardian ad litem in a guardianship matter "out of the estate of the [AIP] or in such other manner as the court shall direct."  The trial court denied the fee applications, finding courts do not have the statutory authority to require APS to pay the fees of court-appointed counsel and temporary guardians and that APS had not engaged in any misfeasance warranting fee-shifting.  The court agreed, concluding the Adult Protective Services Act, N.J.S.A. 52:27D-406 to -425, did not give courts the authority to order APS to pay fees under these circumstances.  

Nov. 21, 2023 Henry Keim v. Above All Termite & Pest Control (A-30-22 ; 087603)

Keim was “in the course of employment” under the “authorized vehicle rule” at the time of the accident because Above All authorized a vehicle for him to operate and his operation of that identified vehicle was for business expressly authorized by Above All.

Nov. 20, 2023 State v. Amandeep K. Tiwana (A-36-22 ; 087919)

Defendant was in custody at the hospital in light of the police presence around her bed area.  But no interrogation or its functional equivalent occurred before her spontaneous and unsolicited admission.  Miranda warnings were therefore not required, and defendant’s statement -- that she “only had two shots prior to the crash” -- is admissible at trial.


The main issue in this criminal appeal is whether the trial judge erred during jury selection in denying defense counsel's requests to remove for cause two potential jurors who are police officers.  The officers are employed by police departments in different municipalities from where the alleged offenses occurred, investigated, and were prosecuted, but within the same county.

The court rejects defendant's contention that because interaction with the county prosecutor's office is inherently a "necessary component of their jobs as police officers," active-duty police officers who work in the same county where the criminal charges arose must be stricken for cause from juries upon a defendant's request.  Instead of applying a categorical bar, the court continues the tradition of State v. Reynolds, 124 N.J. 559, 565 (1991), in which the Supreme Court recognized the concerns about the potential bias of police-officer-jurors, but which also declined to endorse a strict policy to remove them for cause.  The Court in Reynolds instructed judges "should be inclined to excuse a member of the law enforcement community" from the jury on a defendant's request, leaving it to the trial courts to perform an individualized assessment of each juror's ability to be fair and impartial.  Ibid.

Extending the nuanced approach of Reynolds, the Court holds that a per se finding of cause to strike a criminal juror in law enforcement should only apply to employees of the same police department or prosecutor's office that investigated or prosecuted the charged offense.  To aid trial judges and counsel, the court presents non-exhaustive factors that should be considered in evaluating, on a juror-by-juror and case-by-case basis, whether there is cause to remove a juror employed in law enforcement.  If, on the whole, those factors establish cause, the trial court "shall" remove the juror, as is required under the recently reinforced language of Rule 1:8-3(b).

Applying these principles, the court affirms the trial judge's denial of defendant's request to strike for cause one of the two police officers, but finds error with respect to the other officer, based on the officers’ respective voir dire responses.  However, the latter officer was never summoned to the jury box, so the error in failing to remove the juror for cause was harmless.

The unpublished portion of this opinion rejects unrelated arguments raised by defendant alleging evidentiary and sentencing errors.

Nov. 16, 2023 New Jersey Division of Child Protection and Permanency v. D.C.A. and J.J.C.B. (A-44-22 ; 087604)

Based on the plain language of the 2021 Amendment, the Court concurs with the trial court and Appellate Division that the Legislature did not intend to bar trial courts from considering evidence of the child’s relationship with the resource family when they address the fourth prong of N.J.S.A. 30:4C-15.1(a).  The trial court properly considered the relationships between the children and their resource families when it considered the fourth prong of the best interests test, N.J.S.A. 30:4C-15.1(a)(4), and its determination as to all four prongs of that test was grounded in substantial and credible evidence in the record. 


         On leave granted in this child sexual abuse case, the court affirmed the trial court's denial of summary judgment to defendants Watchtower Bible and Trust Society of New York, Inc. and East Hackensack Congregation of Jehovah's Witnesses (defendants).

         Plaintiff C.P., now an adult, was sexually abused by her grandfather in the 1970's and 1980's.  He was authorized to serve as an elder for defendants' congregations.  Plaintiff alleges defendants owed her a "special duty" to protect her from her grandfather's sexual criminal acts because they knew he had engaged in sexual conduct with at least three minors, including herself, but did not discipline him and negligently retained him as an elder.

         In 1994, plaintiff filed a lawsuit against her grandfather and other family members, which resulted in a sizeable jury award in her favor.  Plaintiff did not name defendants in the 1994 lawsuit because the Charitable Immunity Act (CIA) as it existed at the time precluded actions against non-profit, educational, and religious institutions for willful, wanton, or grossly negligent conduct resulting in sexual abuse.  In 1995, the CIA was amended to permit such causes of action.  N.J.S.A. 2A:53A-7(a).  In 2006, the CIA was again amended to provide an exception to immunity for negligence claims where the supervision, hiring, and retention of an employee, agent, or servant led to sexual abuse.  N.J.S.A. 2A:53A-7.4.

         In 2021, plaintiff filed suit against defendants under the Child Victims Act (CVA), L. 2019, c. 120, which provided a two-year revival window for victims to file otherwise time-barred claims for sexual crimes committed against them while minors.  N.J.S.A. 2A:14-2(b).  The CVA also amended the CIA to allow retroactive liability against religious and other organizations.  N.J.S.A. 2A:53A-7 and N.J.S.A. 2A:14-2(b).

         The court agreed with the trial court that defendants were not entitled to summary judgment because plaintiff's claims asserted in her 2021 complaint were not cognizable under the CIA in 1994.  The court further found the trial court properly supported its decisions rejecting the applicability of the entire controversy doctrine and judicial estoppel.

Nov. 15, 2023 State v. Michael Olenowski (A-56-18 ; 082253)

Daubert-based expert reliability determinations in criminal appeals will be reviewed de novo, while other expert admissibility issues are reviewed under an abuse of discretion standard.


In this probate dispute, the court considered whether application of N.J.S.A. 3B:3-14 conflicts with federal regulations governing ownership of United States Savings Bonds to warrant preemption by virtue of the Supremacy Clause, Article VI, Clause 2, of the United States Constitution.  Under N.J.S.A. 3B:3-14, divorce automatically revokes a disposition of property in a governing instrument made by a divorced individual to his or her former spouse before the divorce.  Defendant ex-wife filed a claim against her ex-husband's estate seeking payment of outstanding obligations under the parties' divorce settlement agreement (DSA) when her ex-husband died intestate prior to satisfying the obligations.  The ex-husband's estate sought to offset payment of the DSA's outstanding obligations with payment defendant received as the pay-on-death (POD) beneficiary when she redeemed federal savings bonds owned by her ex-husband.  

Although her ex-husband had not changed or revoked the POD beneficiary designation on the bonds following the divorce as permitted under federal regulations and the DSA was silent as to the disposition of the bonds, the trial court applied the presumptive revocation provision of N.J.S.A. 3B:3-14 to grant the estate partial summary judgment, allowing the redemption of the savings bonds to partially satisfy the DSA obligations.  The court reversed, holding that because federal regulations govern the rights and obligations created by a beneficiary's bond ownership, absent evidence of fraud, breach of trust, or other wrongful conversion of property, the regulations take precedence and preempt the inconsistent provisions of N.J.S.A. 3B:3-14.  The court held that by determining defendant's beneficiary designation was automatically revoked under N.J.S.A. 3B:3-14 by virtue of the divorce, the trial court misinterpreted the DSA and failed to give effect to defendant's federal ownership rights, "render[ing] the award of title meaningless."  Free v. Bland, 369 U.S. 663, 669 (1962).


The court considered the final agency decision of the Commissioner of Education granting the Board of Education of the Borough of Kinnelon's motion for summary decision, denying appellant's cross-motion for summary decision, and removing appellant from her position on the Board.

The Commissioner ruled a ten-day letter filed by a parent of a child in need of special education services constituted a substantial conflict of interest sufficient to remove the parent from her duly elected position on the Board of Education.  Our Supreme Court of New Jersey previously addressed circumstances wherein a due process claim that included a request for specific monetary relief was determined to be a substantial conflict between a board member and the board, requiring removal.  Bd. of Educ. of City of Sea Isle City v. Kennedy, 196 N.J. 1, 22 (2008).  The question the court considered here is whether the submission of a ten-day letter raises a similarly substantial conflict of interest.  The court concluded, based on the record, it did not.


In this appeal of first impression, the court must determine whether the "clean slate" statute, N.J.S.A. 2C:52-5.3, which permits an expungement of a New Jersey criminal record if ten years have passed "from the date of the person's most recent conviction," applies to a conviction from another state.  (Emphasis added).  The trial court entered an order expunging petitioner's New Jersey criminal record after determining her 2017 Virginia misdemeanor conviction did not preclude eligibility for expungement under the "clean slate" statute because an out-of-state conviction does not constitute a "most recent conviction."  The State contends the trial court erred in its interpretation of the "clean slate" statute, arguing petitioner's Virginia conviction must be considered, and because it was entered within ten years of her petition for expungement, her petition should have been denied. 

The court reverses because the text of the "clean slate" statute and related expungement statutes do not support the trial court's interpretation to preclude consideration of an out-of-state conviction from the phrase "most recent conviction."  Moreover, such interpretation defies common sense given the "clean slate" statute's purpose to expunge a criminal record of an applicant who has not violated the law within ten years of their last New Jersey conviction.  Consequently, petitioner's Virginia offense presently disqualifies her from expungement of her New Jersey criminal record under the "clean slate" statute.