Published Appellate Court Opinions

This novel case concerns a prosecutor's office's use of body wires on a paid informant, an anticipated trial witness for the State in a narcotics case, to secretly monitor and record a criminal defense attorney's pre-trial interview of that informant.

In this Department of Corrections disciplinary appeal, the court holds that the Department acted arbitrarily, capriciously or unreasonably in denying a confirmatory laboratory test of a powder, seized from the inmate, which a field test indicated contained cocaine. The court reaches this conclusion in light of the field test's inherent limitations; the lack of other direct or circumstantial evidence that the inmate possessed drugs; the department's regulation compelling routine confirmatory tests of drug specimens; and the absence of any reasoned explanation for the Department's refusal to subject the seized powder to a confirmatory laboratory test.

Defendant appealed from a judgment of conviction, arguing the trial court should have granted his motion to dismiss the indictment because the substance he possessed alpha-PVP, also known as "flakka", was not listed as a Schedule I drug under New Jersey law. When the federal government schedules a substance, N.J.S.A. 24:21-3(c) gives the Director of Consumer Affairs in the Department of Law and Public Safety thirty days to do one of two things: (1) control the substance consistent with the federal government's scheduling, or (2) file an objection in the New Jersey Register. Absent is a requirement that the Director give notice when he or she intends to control the substance as directed by federal law. Thus, if the Director fails to file an objection to the federal government's scheduling within thirty days, as was the case with alpha-PVP, the Director must control the substance consonant with federal law. Thus alpha-PVP was automatically included in Schedule I because the Director did not object to the federal government's designation.

The court determined the evidence presented by the State and the rational inferences from that evidence, viewed in the State's favor, established the element of defendant's reckless operation of a vehicle so as to render the motion judge's dismissal of an indictment charging defendant with second-degree vehicular homicide of a child, N.J.S.A. 2C:11-5, and fourth-degree assault by auto of the child's mother, N.J.S.A. 2C:12-1(c)(1), arising from a tragic pedestrian-motor vehicle incident, a clear abuse of his discretionary authority.

In this case the court held the Director of the Division of Civil Rights does not have the general authority to sue in Superior Court, the Superior Court may not grant permanent injunctive relief on the director's complaint, and the New Jersey Law Against Discrimination does not recognize a claim for failure to contract with parents of a disabled child.

After the trial judge denied his motion to compel the State to provide him with discovery, defendant Herby V. Desir pled guilty to second-degree possession of "Methylenedioxy-N-ethylcathinone (MDEC/Ethylone)," a Schedule I narcotic drug, with the intent to distribute it in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(4).1 Defendant reserved the right to appeal from the denial of his motion to compel discovery and his motion to suppress evidence seized during the execution of the search warrant. In accordance with the negotiated plea, the judge sentenced defendant to seven years in prison with three-and-one-half years of parole ineligibility.

Plaintiff A.J. appeals from a September 28, 2018 order sanctioning her by transferring custody of the parties' children to defendant R.J., for failure to comply with a prior order related to her unilateral intra-state relocation. We hold in cases where a court exercises its authority pursuant to Rules 1:10-3 and 5:3-7(a)(6), it must make findings under N.J.S.A. 9:2-4 that the sanction imposed is in the best interests of the children. We further hold the factors in Baures v. Lewis, 167 N.J. 91 (2001) no longer apply when a court is addressing an intra-state relocation, and instead, pursuant to Bisbing v. Bisbing, 230 N.J. 309 (2017), the court must apply N.J.S.A. 9:2-4. Because the trial judge applied the wrong law related to the intra-state relocation and did not apply N.J.S.A. 9:2-4 when he sanctioned plaintiff, we reverse and remand for further proceedings consistent with this opinion.

In considering the nature of a "pay-and-go" consent judgment, which resolved a summary dispossess action, and the judgment's impact on later-asserted claims for damages, we hold that by entering into such a consent judgment the parties entered into an accord and satisfaction and thereby finally resolved all the known claims arising out of the tenancy. Consequently, we affirm the trial court's rejection of the tenants' counterclaim in the landlord's subsequent action for enforcement of the pay-and-go judgment because the counterclaim was based on a claim then known to the tenants that they should have raised during the negotiations that led to the pay-and-go judgment.

In this appeal, we address the issue of whether, following the Legislature's 2011 amendment of N.J.S.A. 17:22-6.64, plaintiff Johnson & Johnson (J&J) was required to pay an insurance premium tax (IPT) based upon all the risks it insured throughout the United States or based upon only those risks localized in New Jersey. Because both before and after the 2011 amendment, N.J.S.A. 17:22-6.64 provided that IPT was to be calculated at the rate of "5% of the gross amount of such premium" paid for insurance procured "upon a subject of insurance resident, located or to be performed within [New Jersey]," we conclude that J&J's IPT obligation should have continued to be based solely upon the risks it insured that were located within New Jersey, rather than upon the total United States premium for the applicable coverage policies. Accordingly, we reverse the Tax Court's contrary interpretation of the statute which is at odds with the plain language of N.J.S.A. 17:22-6.64, and remand for further proceedings.

The question presented by this appeal, here on leave granted, is whether the changed circumstances standard of Lepis v. Lepis, 83 N.J. 139, 157 (1980), continues to apply to a motion to suspend or terminate alimony based on cohabitation following the 2014 amendments to the alimony statute, N.J.S.A. 2A:34-23(n). We determine the party seeking modification still has the burden of showing the changed circumstance of cohabitation so as to warrant relief from an alimony obligation, see Martindell v. Martindell, 21 N.J. 341, 353 (1956), and hold the 2014 amendments to the alimony statute did not alter the requirement that "[a] prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status." Lepis, 83 N.J. at 157. Because the trial court ordered discovery in this case without a prima facie showing of changed circumstances, we reverse.

Save Hamilton Open Space, a local citizens group, challenged the Department of Environmental Protection's issuance of a freshwater wetlands general permit 6 to Thomas Orban/Square Properties, LLC in connection with the construction of a shopping center in Hamilton Township

The court affirms the Commissioner's decision that SHOS is not entitled to an adjudicatory hearing. Because the court is unable, however, to discern where the agency has explained why Square Properties' use of the GSR-32 methodology to calculate recharge is consonant with the Department's regulations, which appear to expressly prohibit its use in these circumstances, it vacates the GP6 permit and remands for further fact-finding. In light of this disposition, the court does not address SHOS's argument that the agency needed to proceed through rulemaking.

In this appeal, the court addressed whether police officers must inform the occupant of a residence that he or she has the right to refuse the officers' request to enter the residence. The court determined that while officers are required to inform the occupant of the right to refuse to consent to a search of the premises, a similar requirement does not apply to requests to simply enter the residence. Finding that the initial entry into defendant's apartment based on her consent to enter was permissible, the court affirmed the trial court's denial of defendant's motion to suppress evidence seized in a subsequent consent search of the apartment following a lawful protective sweep.

Scott Rogow was a firefighter with the City of Paterson who retired on an accidental disability retirement allowance under N.J.S.A. 43:16A-7 and received his monthly accidental disability retirement allowance until his death approximately six years later. Approximately four years after his death, Rogow's widow, who had already received her survivor accidental disability benefits under N.J.S.A. 43:16A-7(3), filed a request with the Board to amend Rogow's pension status so that she could receive the enhanced survivor accidental death benefits under N.J.S.A. 43:16A-10.

N.J.S.A. 43:16A-10(1) provides for payment of survivor accidental death benefits "[u]pon the death of a member in active service as a result of . . . an accident met in the actual performance of duty at some definite time and place[.]" The court held that a PFRS member who is retired and receiving a retirement allowance from the PFRS at the time of his death is not a "member in service" and thus is not entitled to accidental death benefits under N.J.S.A. 43:16A-10.

Plaintiff Merrill Creek Reservoir c/o Project Direct, a consortium of electric utility companies and owner of the Merrill Creek Reservoir in Harmony Township, challenges three 2016 Tax Court judgments affirming the 2011-2013 tax assessments on its property. Harmony cross-appeals alleging error in adjustments the Tax Court made to value. Merrill Creek concedes the improvements should be valued using the cost approach the Tax Court employed but argues the Tax Court erred in accepting the Township's trend analysis, which it characterized as "a rarely used valuation methodology, discredited by New Jersey Tax Court precedent," instead of its own quantity survey method. Finding no error in the court's acceptance of a trend analysis in this case or its adjustments to value based on the evidence adduced at trial, we affirm the opinion of the Tax Court whose opinion is reported at 29 N.J. Tax 487 (Tax 2016).

This appeal challenges the legality of a section in the collective bargaining agreement (CBA) entered into between the Jersey City Board of Education and the Jersey City Education Association, Inc., which requires the Board to pay the salaries and benefits of two teachers who were selected by the members of the union to serve as "president and his/her designee," during the three-year term of the CBA, and to allow them to devote all of their work-time to the business and affairs of the union.

The Chancery Division, General Equity Part found this contractual arrangement did not violate Article VIII, § 3, ¶ 3 of the New Jersey Constitution, commonly referred to as the "gift clause." The court found the Board was authorized to enter into this arrangement with the union under N.J.S.A. 18A:30-7, which permits the payment of salary in cases of absence not constituting sick leave.

This court adheres to jurisprudential principles established by our Supreme Court and declines to reach the constitutional question raised by plaintiffs in this case because there are sufficient statutory grounds to definitively decide this appeal. In re Plan for the Abolition of the Council on Affordable Hous., 214 N.J. 444, 461 (2013). This court holds that in adopting N.J.S.A. 18A:30-7, the Legislature did not expressly or implicitly intend to authorize boards of education to enter into this type of contractual arrangement. The disbursement of public funds pursuant to this contractual arrangement was an ultra vires act by the Board.

This appeal involves the trial court's denial of defendant's request to have the same counsel represent him in Title Nine abuse and neglect proceedings and a criminal matter arising from the same allegations of sexual abuse of a child. In N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593 (App. Div. 2010), we held that simultaneous representation is permissible where the trial court is able to implement measures sufficient to protect the confidentiality of DCPP records disclosed during the Title Nine proceedings. We directed courts to undertake a case-by-case analysis when deciding requests for simultaneous representation.

The panel held that the trial court failed to undertake the analysis required by N.S. and summarily denied defendant's request for simultaneous representation. In addition, the panel clarified that N.S. applies to both Title Nine dispositional hearings and Title Nine fact finding hearings. Finally, the panel held that the denial of defendant's choice of counsel was a structural error requiring reversal of the abuse and neglect finding reached after a hearing at which defendant was represented by counsel that was not his choice.

In this appeal, we address whether a resident of a boarding house has a reasonable expectation of privacy in a common hallway accessible by other residents. The court determined that the Law Division improperly denied defendant's motion to suppress evidence seized from his bedroom after the police observed contraband while standing in a hallway in front of defendant's bedroom door. The court concluded that boarding house residents have a reasonable expectation of privacy in the hallways linking their bedrooms to areas traditionally contained within one living unit, such as a bathroom or kitchen, and the warrantless police entry into the home was not justified by the plain view doctrine because the officers did not have a lawful right to enter.

According to the court, whether the residential structure's front door was locked was not dispositive of whether defendant's reasonable expectation of privacy extended beyond his bedroom door, as the exterior door was equipped with a lock and the evidence showed only that the door was unlocked when the police made their warrantless entry, but not at any other time. In addition, drawing on a distinction recognized by courts in other states between apartment buildings and boarding or rooming houses, the court concluded that a boarding house resident's need to use a shared hallway to access his or her bathroom supports a reasonable expectation of privacy in that hallway notwithstanding an unlocked front door. Accordingly, the court held that the trial court should have granted defendant's motion to suppress because he had a reasonable expectation of privacy in the place searched, and the State did not establish the warrantless search of the home was justified by the plain view doctrine or any other exception to the warrant requirement.

In this interlocutory appeal, the court considers whether a licensed home inspector home inspector is a "learned professional" and therefore excluded from liability under Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -210.

Considering the CFA's remedial purpose and applying well-established canons of statutory construction, the court concludes that the judicially created learned professional exception must be narrowly construed to exempt liability only as to those professionals who have historically been recognized as "learned" based on the requirement of extensive learning or erudition. To the extent this court's prior decisions, including Plemmons v. Blue Chip Insurance Services, Inc., 387 N.J. Super. 551 (App. Div. 2006), have applied the learned professional exception to "semi-professionals" who are regulated by a separate regulatory scheme, we are constrained to depart from that reasoning as inconsistent with the Supreme Court's decision in Lemelledo v. Beneficial Management Corp. of America, 150 N.J. 255 (1997). As the Court explicitly held in Lemelledo, the existence of a separate regulatory scheme will "overcome the presumption that the CFA applies to a covered activity" only when "a direct and unavoidable conflict exists between application of the CFA and application of the other regulatory scheme or schemes." 150 N.J. at 270. The court's decision today comports with the amicus curiae Attorney General's persuasive interpretation of the CFA and addresses the Attorney General's policy concern that an expansive interpretation of the learned professional exception unduly curtails the authority of the Attorney General and the Division of Consumer Affairs to protect New Jersey consumers and limits the redress available to private litigants.

Accordingly, because home inspectors are not historically recognized learned professionals and because no direct and unavoidable conflict exists between the CFA and the regulations governing home inspectors, the court concludes that the CFA applies to the activities of licensed home inspectors and reverses the trial court's summary judgment dismissal of the CFA claim against defendants.

Judge Sabatino filed a concurring opinion.

This case stemmed from the termination of the appointment of a Special Civil Part Officer (SCPO) following the discovery of numerous violations of AOC directives. The SCPO filed a Law Division complaint against the State, the Judiciary, and the Atlantic/Cape May vicinage alleging violations of CEPA and related claims. We affirm the summary judgment dismissal of plaintiffs' claims since plaintiff was not a Vicinage employee for CEPA purposes and plaintiff failed to establish a whistle-blower claim under CEPA. This opinion was originally issued in January 2018 as an unpublished opinion. We now publish this opinion, following a request from the Committee of the Special Civil Part Supervising Judges, which submitted "that the publication of this opinion will provide important precedent to our records, practitioners and the public with regard to [SCPOs] and their status as independent contractors."