Published Appellate Court Opinions

A former public school bus driver appealed from a PERS final agency decision declaring her ineligible to file an accidental disability retirement application when separation from service was based upon an irrevocable resignation, not related to a disability, in accordance with N.J.A.C. 17:1-6.4.

On appeal, the court was required to determine whether a school employee, who irrevocably resigned while an employment grievance was pending, could file an application for ordinary or accidental disability retirement benefits, when the charges underlying the grievance did not relate to a disability. For the reasons stated in the court's opinion, it concluded that , in the first instance, a public school employee's irrevocable resignation from employment rendered the school employee ineligible for ordinary or accidental retirement benefits because the school employee's separation from service was based upon a resolution of the pending grievance, and not an alleged disability.

N.J.S.A. 34:15-28.2(a) permits a workers' compensation judge to enforce a court order, statute or regulation by imposing "an additional assessment not to exceed 25% of moneys due for unreasonable payment delay." In this case, the parties settled petitioner's total disability claim, and, the judge imposed the maximum assessment when the county was sixteen days late in making payment required under the order.

The court reversed, concluding the judge erred as a matter of law because she considered litigation delays occurring prior to the settlement and entry of the order for payment in fashioning the award. The court also concluded the judge mistakenly exercised her discretion regarding the amount of the award, because she imposed the maximum additional assessment for a relatively short delay.

The court vacates an order of the Tax Court awarding Green Township, pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1, "$45,589.35 in counsel fees and costs for its defense of [defendant Penny] Holenstein"¹ in her official capacity as Municipal Tax Assessor. Wolosky v. Fredon Twp., 31 N.J. Tax 373, 405 (Tax 2019). Because the motion for sanctions was filed 679 days after the entry of a final judgment, and after this court affirmed the dismissal of plaintiff's 2016 complaint challenging a property tax assessment, Wolosky v. Fredon Twp., No. A 1980-16 (App. Div. July 24, 2018), we conclude the Tax Court mistakenly exercised its discretion when it reopened the case and considered the motions as timely filed. We therefore vacate the award of sanctions in favor of Green Township.

Plaintiff also appeals from an order denying his motion for counsel fees against defendant Fredon Township. Because the record does not support a finding that Fredon Township acted frivolously, we affirm the denial of plaintiff's motion for sanctions.

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¹ We refer to Penny Holenstein individually as Holenstein, and refer to Michael and Penny Holenstein, collectively, as the Holensteins.

The plaintiffs whose claims are implicated in these interlocutory cross-appeals were members of defendant Rutgers-Newark's 2014-15 women's basketball team. Four plaintiffs describe themselves as African-American and gay, one as African-American and bisexual, and the sixth as Hispanic and heterosexual. They claim they were retaliated against and subjected to a hostile environment in violation of the Law Against Discrimination by defendants because, among other things, their interim coach, defendant William Zasowski, referred to them as "dykes," and "nappy-headed sisters," and asked the team captain for the names of the team members who were gay and, when they complained and sought a school investigation, defendants retaliated. The trial judge granted in part and denied in part defendants' summary judgment motion.

The court concluded that the judge did not err in denying summary judgment on plaintiffs' hostile environment claims and did not err in denying summary judgment on the retaliation claims of two plaintiffs; the court held, however, that the judge erred in granting summary judgment on the retaliation claims of the other four plaintiffs. The court held that both the hostile environment and retaliation claims should be considered, not individually as argued by defendants, but in light of the fact that plaintiffs were members of small, tightly-knit group and that each plaintiff could rely on the experiences of the others even if they did not directly experience or witness defendants' alleged discriminatory comments and epithets, thereby distinguishing Godfrey v. Princeton Theological Seminary, 196 N.J. 178 (2008) in this setting.

Plaintiff Christine Savage, a former sergeant with defendant Township of Neptune Police Department, appealed from an order enforcing a "non-disparagement provision" in a settlement agreement. In the underlying employment discrimination case, plaintiff alleged defendants engaged in continuing sexual discrimination, harassment, and unlawful retaliation, in violation of New Jersey's Law Against Discrimination (LAD) N.J.S.A. 10:5-1 to -50, the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, and Article I, Paragraph 6 of the New Jersey Constitution. On July 23, 2020, the parties settled the employment discrimination action and entered into an agreement, which included a non-disparagement provision, but not a non-disclosure provision.

Defendants Michael J. Bascom, the former Police Director for Neptune Township, and James M. Hunt, the Chief of the Neptune Police Department, filed a motion in September 2020, to enforce the settlement, arguing that plaintiff violated the non-disparagement provision during an interview with a television news reporter that aired on Channel 4, NBC news on August 11, 2020. The trial judge granted defendants' motion, finding that N.J.S.A. 10:5-12.8(a) only barred confidentiality or non-disclosure agreements (also referred to as NDAs), and that plaintiff violated the non-disparagement provision in the agreement when she commented during the televised interview that the Neptune Police Department had not changed, and it was still a "good old boys club." The judge subsequently awarded defendants $4,917.50 in counsel fees and costs for breach of the non-disparagement clause.

On appeal, plaintiff argues that the judge erred in granting the motion because the non-disparagement provision was against public policy and unenforceable under N.J.S.A. 10:5-12.8(a), and thus the judge also erred in denying her cross-motion for counsel fees under N.J.S.A. 10:5-12.9. In the alternative, plaintiff argues that even if the non-disparagement provision were enforceable, by adjudicating this dispute as a motion to enforce, rather than as a separate breach of contract action, the judge deprived her of her right to have a jury decide the disputed facts.

The court reversed the order granting defendants' motion to enforce the settlement agreement and held that although the terms of the non-disparagement provision are enforceable and the judge properly adjudicated this matter by motion, the judge nonetheless erred in finding that plaintiff violated the terms of the non-disparagement provision during the televised interview. Because defendants' enforcement motion was not successful, the court vacated the judge's award of $4,917.50 in counsel fees to defendants. However, the court affirmed the judge's order denying plaintiff's cross-motion for counsel fees and costs under N.J.S.A. 10:5-12.9.

The issue raised in this appeal is whether the First Amendment or Article I, Paragraph 6 of the New Jersey Constitution prevents a private employer from terminating one of its at-will employees for posting racially insensitive comments about the Black Lives Matter movement on her personal Facebook account. Defendants AtlantiCare Medical System Incorporated and Geisinger Health System Incorporated (AtlantiCare) employed plaintiff Heather J. McVey as a Corporate Director of Customer Service. During the height of the nationwide protests concerning the murder of George Floyd by police in Minnesota, McVey posted that she found the phrase "Black Lives Matter" to be "racist," believed the Black Lives Matter movement "causes segregation," and asserted that Black citizens were "killing themselves." McVey's Facebook profile prominently stated that she was an AtlantiCare Corporate Director. After it discovered the comments, AtlantiCare fired McVey and she filed a complaint alleging wrongful discharge. The court concluded that the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution did not bar a private employer from terminating an at-will employee under the circumstances presented in this case, and held that the trial court properly dismissed McVey's complaint.

Defendant appealed the denial of his motion to suppress evidence taken by police from an opaque bag and closed shoebox located in his mother's room in a home owned by his aunt; his aunt had previously barred defendant from the home. Police did not seek a warrant but instead sought and obtained the consent of defendant's aunt to search her home. No effort was made to obtain defendant's mother's consent to search her room, even though the trial judge found she was a tenant, because she spoke only Creole. Notwithstanding questions about the validity of the consent to search defendant's mother's room, the court concluded in reversing that there was no evidence to support a finding that police had a reasonably objective belief that either defendant's aunt or his mother had the authority to consent to a search of the opaque bag and closed shoebox because the record revealed this property belonged only to defendant, who did not consent. That defendant had no possessory interest or reasonable expectation of privacy in the premises where the closed containers were found was irrelevant to the analysis about the validity of the search of the containers.

Plaintiffs, the parents of a special needs child, sued defendants to enforce an Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, request. The OPRA request sought all settlements entered into by the school board before the New Jersey Office of Administrative Law (OAL) in petitions filed by or on behalf of students subject to an individualized education program or an accommodation plan.

The court affirmed the trial court's decision to enforce the OPRA request and award plaintiffs' attorney's fees. The court concludes that pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400(d)(1)(A), and state regulations implementing the IDEA, settlements entered before the OAL are public records and defendants were required to disclose them after redacting personally identifiable information.

The court clarified when an insurance company may be relieved of providing insurance coverage to an insured who refuses to cooperate in defending a personal injury victim's claim pursuant to the terms of the insurance policy. An insurance company's satisfaction of either of the two variables identified in Hager v. Gonsalves, 398 N.J. Super. 529 (App. Div. 2008), constitutes appreciable prejudice sufficient to forfeit any obligation on the part of an insurance company to provide coverage to an insured.

Under the first variable, a trial court must determine whether an insurer's substantial rights have been irretrievably lost as a result of the insured's breach of the insurance policy. Under the second variable, a trial court must examine an insurer's likelihood of success in defending against an accident victim's claim had the insured not failed to cooperate.

In analyzing the appreciable prejudice variables, the court held the first variable applied to an irretrievable loss of substantial rights related to coverage determinations by an insurer. To conclude otherwise would render the second appreciable prejudice variable redundant. The two variables are intended to address different aspects of appreciable prejudice.

In this appeal, the court addresses the enforceability of an arbitration provision in an agreement signed by a fifteen-year-old minor to gain access to a commercial trampoline park. The court holds that the arbitration provision is not enforceable because the minor had the right to disaffirm the agreement and the limited exceptions to that right did not apply. Accordingly, the court reverses and vacates the order granting defendants' motion to compel arbitration of plaintiff's claims and dismissing his complaint with prejudice. The matter is remanded with instruction that plaintiff's complaint be reinstated so that his claims can be litigated in the Law Division.

The court holds that an adult can waive his or her right to bring claims in a court and can be compelled to arbitrate personal injury claims when the adult had reviewed a clearly worded arbitration provision before entering a commercial recreational park.

The court also remands for entry of a new order because the trial court erred in dismissing the Law Division action. Instead of dismissing the action, the trial court should have stayed the Law Division action, including the claims against defendants who are not parties to the arbitration provision.

In this nursing malpractice case, plaintiff Nicole Hoover appeals from an April 1, 2021 order denying reconsideration of a February 19, 2021 order that dismissed her claims with prejudice for failure to provide an appropriate Affidavit of Merit (AOM) against nurse/defendant Nicole Baughman.

After a total-knee replacement surgery, plaintiff sued Wexler, her orthopedic surgeon; defendant, a Registered Nurse First Assistant who was assisting Wexler in the surgery; and others, alleging negligence in the performance of the surgery. Shortly after filing suit, plaintiff filed and served a single AOM applicable to all defendants. The AOM was executed by Dr. Robert Tonks, M.D., a board-certified orthopedic surgeon who has experience performing total knee replacement surgery. The court granted defendant's motion to dismiss, determining that the AOM statute required plaintiff to submit an AOM from either a registered nurse or a physician who is familiar with the nursing standard of care and protocols of nurses.

The court finds that the like-credentialed requirements of the Patients First Act, N.J.S.A. 2A:53-41, applies only to physicians and not to other licensed professionals under the AOM statute, N.J.S.A. 2A:53A-26 to -29. See Meehan v. Antonellis, 226 N.J. 216 (2016) (holding section 41 applies only to physicians and "[t]here is simply no textual support for the application of the like-qualified requirements of section 41" to actions against other licensed professionals under section 27). Because there is no heightened "like-for-like" requirement that prohibited Tonks from authoring an AOM against defendant, he need only have satisfied N.J.S.A. 2A:53A-27's requirement that he "have particular expertise in the general area or specialty involved in the action."

The court concludes that Tonks is a qualified affiant under the statute. Defendant does not dispute Tonks' expertise in knee-replacement surgery. She concedes she was a member of the operative team and that she actively assisted in the surgery as a perioperative registered nurse. Notably, the central allegation against defendant and Wexler is identical: one or both negligently severed plaintiff's popliteal artery and vein. Under these circumstances, the court finds that Tonks is an expert who satisfies section 27 of the AOM statute and that plaintiff need not have filed an AOM from a registered nurse. Whether and to what extent Tonks may serve as an expert against defendant at trial must be fleshed out in discovery, and the court expresses no opinion on that subject.

Accordingly, the court reverses and remands for further proceedings consistent with the court's opinion.

Plaintiffs in this case are affiliated companies engaged in selling extended service contracts 31 to motor vehicle owners over the telephone. They claim that defendants hired away key managers and more than forty members of their sales force, siphoned customers, and misappropriated alleged trade secrets.

Relying upon several legal theories, plaintiffs filed suit to recover damages and obtain injunctive relief. In a series of orders, the motion judge granted summary judgment to defendants, dismissing all of plaintiffs' claims now at issue on appeal. In ruling on summary judgment, the motion judge disregarded two certifications submitted by plaintiffs from a codefendant who "switched sides" and became employed by plaintiffs after his deposition.

This court holds that the "sham affidavit" doctrine adopted by the Supreme Court in Shelcusky v. Garjulio, 172 N.J. 185, 199-202 (2002), can extend to a "side switching" situation. In particular, the doctrine can apply where, as here: (1) a codefendant is deposed, (2) that deponent thereafter obtains a job with the plaintiff, (3) the deponent then aids his new employer by signing certifications recanting his deposition testimony, and (4) the plaintiff offers those certifications in opposing summary judgment motions by the other defendants.

Applying the sham affidavit doctrine to this record, the court rules the motion judge appropriately disregarded the side-switching employee's certifications because the employee failed, as Shelcusky requires, to "reasonably explain[]" why he "patently and sharply" contradicted his earlier deposition testimony. Id. at 201.

However, the court rules the judge erred in rejecting as evidence a recorded telephone conversation of a different codefendant who was also rehired by one of plaintiffs' companies after his deposition.

Because the recording should have been considered as evidence weighing against defendants' summary judgment motion, the court remands this matter to allow the Law Division in the first instance to reconsider its dismissal of the lawsuit in its entirety.

In this case of first impression, the court considered whether a victim in a criminal matter has standing to appeal from a trial court order granting defendant's motion for a civil reservation, where the victim neither moved to intervene before the trial court nor this court, and the parties to the underlying action did not appeal. Because the victim was aggrieved by the trial court's order, and the civil reservation was neither raised during plea negotiations nor made a condition of defendant's guilty plea, the court held the victim has standing to appeal.

However, the court's decision was subject to certain caveats. The court held the victim should have moved to intervene for leave to appeal and file a brief before this court. Because the court would have granted the victim's motion and considered her brief on the merits, the court concluded the victim's procedural missteps were not fatal in this case.

As for the merits of the victim's claims, the court concluded the trial court's decision was procedurally and substantively flawed. Because it is unclear from the record evidence whether defendant faces a "precarious financial situation" absent a civil reservation, the court disagreed with the trial court's decision that defendant satisfied the requisite "good cause" standard for entry of the civil reservation order.

Moreover, defendant's admission to the pretrial intervention (PTI)program was conditioned on his guilty plea. Until defendant completes – or is terminated from – the PTI program, his guilty plea is considered "inactive" under the PTI statute and the applicable Attorney General guidelines. Thus, the order under review was premature.

The court therefore vacated the order under review and remanded for further proceedings.

Defendant appealed from the trial court's finding that the parties' written palimony agreement was valid because, among other reasons, the court found both parties were represented by counsel. While this appeal was pending, the Supreme Court decided Moynihan v. Lynch, 250 N.J. 60 (2022) and struck down as unconstitutional a provision of the Statute of Frauds, N.J.S.A. 25:1-5(h), requiring parties to a palimony agreement receive the advice of counsel for such agreements to be valid. The court granted defendant's request for supplemental briefing as to whether Moynihan applied retroactively. The court affirms the trial court's findings upholding the parties' agreement and concludes Moynihan applies retroactively because of the constitutional dimensions of the Supreme Court's holding, which also furthers our State's jurisprudence encouraging the settlement of disputes in family matters.

These three consolidated appeals in personal injury cases pose related but distinct questions involving the application of Rule 4:19. The appeals concern when, if ever, a plaintiff with alleged cognitive limitations, psychological impairments or language barriers can be accompanied by a third party to a defense medical examination ("DME"), or require that the examination be video or audio recorded in order to preserve objective evidence of what occurred during the examination.

With the input of the parties' counsel and amici, the court revisits and updates the opinion from twenty-four years ago in B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998) (authorizing the "unobtrusive" audio recording of a neuropsychological DME of a plaintiff who claimed in her civil action that she was suffering emotional distress). The court also considers 2016 Policy Statement of the American Board of Professional Neuropsychology disfavoring the third-party observation and recording of DMEs and urging practitioners to refuse such conditions except where required by law.

In the absence of more specific guidance within the present text of Rule 4:19, the court adopts adopt the following holdings.

First, a disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by trial judges on a case-by-case basis,with no absolute prohibitions or entitlements.

Second, despite contrary language in Carley, it shall be the plaintiff's burden to justify to the court that third-party presence or recording, or both, is appropriate in a particular case.

Third, given advances in technology since 1998, the range of options should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff.

Fourth, to the extent that examiners hired by the defense are concerned that a third-party observer or a recording might reveal alleged proprietary information about the content of the exam, the parties shall cooperate to enter into a protective order, so that such information is solely used for the purposes of the case and not otherwise divulged.

Fifth, if the court permits a third party to attend the DME, it shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam.

Sixth, if a foreign or sign language interpreter is needed for the exam (as is the case in two of the appeals before us) the examiner shall utilize a neutral interpreter agreed upon by the parties or, if such agreement is not attained, an interpreter selected by the court.

The three cases are accordingly remanded to the respective trial courts to reconsider the conditions of each DME, consistent with the guidance expressed in this opinion.

This case involved a high school student injured when struck by another defendant's car while walking home from school. Because the student lived less than two and a half miles from his high school, he was not eligible for mandatory busing under N.J.S.A. 18A:39-1 and, therefore, was required to walk to and from school.

The Board adopted various policies and procedures related to student busing transportation. The Board also adopted procedures for parents seeking to contest the designation of a route as hazardous. The procedure required the parent to contact the Board's transportation supervisor to discuss the route designation and any transportation issues.

Following these policies and applying its adopted criteria, the Board determined the route taken by this student to and from school on the day of the accident was non-hazardous for high school students.

Sometime between 2010 and 2016, the Township assigned a traffic safety officer to work with the Board in evaluating the safety of various student walking routes. Due to cuts to the Board's school budget, the Board asked the Township's traffic safety officer to determine whether busing costs could be reduced. The Township's traffic safety officer determined the route travelled by this student on the day of the accident to be dangerous for students of any age, including high school students, and so advised the Board. The Board denied receiving such a recommendation.

The student and his parents filed suit alleging negligence against the Board, the Township, and the driver. The Board and the Township moved for summary judgment.

The court affirmed the denial of summary judgment to the Board. The court concluded a jury would have to resolve certain factual disputes regarding the Board's duty to plaintiffs, if any, and whether the Board breached such duties. The court identified the following factual issues regarding the Board's conduct: whether the Board breached a duty to plaintiffs by not adhering to its policies and procedures regarding the designation of hazardous routes; whether the Board violated its procedure governing situations where a parent seeks to contest the designation of a hazardous route or other busing issues; and whether the Board should have reevaluated the specific road travelled as a matter of general practice or based on information provided by the Township's traffic safety officer.

Additionally, the court determined a jury must assess whether the Board's failure to undertake these actions constituted a ministerial act, which is not entitled to immunity, or a discretionary act, which is entitled to immunity. The court agreed the motion judge properly denied summary judgment to the Board because there were factual disputes regarding whether the Board's actions or inactions related to the student's transportation were reasonable under the circumstances after considering the Board's obligations under its own transportation policies.

The court reversed the denial of summary judgment to the Township. Under N.J.S.A. 18A:39-1.5(b), the Township had no duty beyond working in conjunction with the Board to determine criteria for the designation of a hazardous route and the Board admitted the Township satisfied its legal duty under the statute. The Board also conceded it made the decisions related to student transportation and designation of hazardous routes without input or participation by the Township.

A.M. suffers from end-stage multiple sclerosis, a progressive condition that renders her physically incapable of conducting any activities of daily life and requires twenty-four-hour daily medical care. After serving eight years of her forty-year sentence for the murder of her husband, she petitioned for release on parole to a medical facility pursuant to the Compassionate Release Act (CRA), N.J.S.A. 30:4-123.51e.

Subsection (f)(1) of the CRA authorizes a court to grant a petition for release on parole where there is clear and convincing evidence the inmate suffers from a "permanent physical incapacity" rendering the inmate "permanently physically incapable of committing a crime if released" and the conditions "under which the inmate would be released would not pose a threat to public safety." N.J.S.A. 30:4-123.51e(f)(1). Here, the motion court conducted hearings, determined A.M. satisfied the permanent physical incapacity and public safety requirements, but denied her petition based on its conclusion N.J.S.A. 30:4-123.51e(f)(1) vested it with discretion to do so.

The court reverses the denial of A.M.'s petition for compassionate release parole, concluding the plain language of the CRA does not vest a court with discretion to deny a petition where it otherwise determines there is clear and convincing evidence satisfying the permanent physical capacity and public safety criteria for release set forth in N.J.S.A. 30:4-123.51e(f)(1).

Although the court affirmed defendant's aggravated manslaughter conviction and sentence, it reversed defendant's convictions for second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1), and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1), based on errors in the judge's final charge.

Despite charging self-defense, because he concluded defendant's return to the scene with a gun was "unreasonable," the judge refused to provide instructions on the unlawful purpose count that explains the use of a firearm for a "protective purpose." However, the model charge clearly explains the difference between self-defense, which requires both an honest and reasonable belief in the need to use force, and the use of a weapon for a protective purpose, which only requires an honest belief, not a reasonable one. See State v. Williams, 168 N.J. 323, 334–35 (2001) (explaining the difference between the two concepts).

Regarding the unlawful possession count, the judge failed to orally provide instructions regarding the permissible inference a jury may draw from the lack of any permit in defendant's name in the State Police database. Although the written instructions the judge provided included that portion of the model charge, the court held State v. Lindsey, 245 N.J. Super. 466, 475 (App. Div. 1991), and the current iteration of Rule 1:8-8(b)(2), do not relieve the judge of the obligation to orally provide instructions and not rely on copies of the written charge given to the jury.

By leave granted, defendant appeals from a trial court order, denying his motion to dismiss an indictment that charges him with two counts of first-degree aggravated sexual assault by penile-vaginal penetration, and two counts of second-degree endangering the welfare of a child. The indictment was returned four months after the East Orange Police Department issued complaint-warrants; seven years after the alleged victim reported the crimes to the police; and fourteen years after the last incident allegedly occurred. The alleged victim, who was five and six years old at the time of the alleged incidents, is defendant's biological daughter.

On appeal, as he did before the motion judge, defendant contends his right to due process was violated in three respects. Initially, defendant maintains the State's delay in presenting the case to the grand jury violated his right to due process under the Fourteenth Amendment and, as such, the motion judge misinterpreted the standard enunciated by the Supreme Court in State v. Townsend, 186 N.J. 473 (2006). Secondly, defendant claims the indictment, and the State's ensuing response to his bill of particulars, failed to provide sufficient notice of the dates and locations of the sexual assaults under the criteria established in State in the Interest of K.A.W., 104 N.J. 112 (1986). Finally, defendant asserts the cumulative effect of the State's delayed prosecution and its vague indictment warrant dismissal under the fundamental fairness doctrine.

Because the court concludes defendant failed to demonstrate "actual prejudice" under the second Townsend prong, the court declines to address defendant's assertion under the first Townsend prong that the judge erred in requiring him to establish the State acted in bad faith. The court concludes defendant's due process rights were not violated by the State's delay in seeking the indictment and affirms the motion judge's decision in that regard. However, the court clarifies the burden of proof required under the first Townsend prong.

Turning to the sufficiency of the indictment under the K.A.W. factors, the court cannot discern from the record on appeal whether the State discharged its obligation to narrow the dates of the alleged incidents. Notably, the record is devoid of any evidence that the State attempted to question the victim about life events occurring around the time of the two alleged incidents. Accordingly, the court remanded the matter for the State to furnish the motion judge with documentary evidence of its efforts, if any, to narrow the time frame alleged in its responses to defendant's bill of particulars.

In view of its remand order, the court declined to address defendant's fundamental fairness argument.