Opinion Summaries

An attorney has an obligation to inform the court if he or she is not able to handle an assigned matter professionally due to a lack of expertise and inability to obtain sufficient knowledge to appropriately represent the client, and also is unable to retain a substitute attorney knowledgeable in the area. We sua sponte determine that appellate counsel was so ineffective in this contested adoption appeal that the mother was deprived of her right to appellate counsel. In counsel's five-page brief he relied on an inapplicable statute, cited to no cases and failed to mention the lack of a transcript of the judge's decision. We therefore adjourn this appeal to appoint substitute appellate counsel and obtain the transcript.

In these consolidated appeals, the court is asked to determine whether two sentences imposed on convicted sexual offender R.K. for violating a New Jersey Parole Board regulation imposing a Community Supervision for Life (CSL) condition banning the use of the Internet to access social media are unconstitutional on its face and as applied to him. The trial judge denied R.K.'s motions to correct his illegal sentences finding the ban did not violate his constitutional rights of free speech. Because the court concludes the blanket social media prohibition is both unconstitutional on its face based on Packingham v. North Carolina, 582 U.S. ___, 137 S. Ct. 1730 (2017), and as applied to R.K. based on J.I. v. N.J. State Parole Bd., 228 N.J. 204 (2017) and K.G. v. N.J. State Parole Bd., 458 N.J. Super. 1 (App. Div. 2019), the trial court's rulings are reversed, and the court remands for: (1) resentencing to remove the 2007 CSL condition prohibiting R.K. from accessing social networking on the Internet without the express authorization of the District Parole Supervisor; and (2) allowing R.K. to withdraw his September 2012 guilty plea for violating the terms of his CSL condition prohibiting him from accessing social networking.

The Court concurs with the Appellate Division that the parties’ dispute did not raise a scope-of-negotiations question and that the trial court therefore properly asserted subject matter jurisdiction. However, the Court reverses the Appellate Division’s judgment on the vested-rights claim. As the governing contracts made clear, a given teacher’s right to sick leave compensation did not vest until that teacher, having served the length of time required by the agreement, retired or otherwise separated from employment with his or her sick leave still unused. When the Board and the Association limited such compensation in their 2015 Agreement for the Association’s members, they did not infringe on a vested right. The cases on which the trial court and Appellate Division relied address issues distinct from those involved here and warrant no departure from the unambiguous contractual terms to which the Board and the Association agreed.

In this opinion, the court addresses the novel issue of whether a firearms toolmark identification expert's use of untested three-dimensional (3D) computer imaging technology known as BULLETTRAX, in conjunction with the traditional technique of comparing evidence and test bullets using a comparison microscope, requires that a Frye1 hearing be held to establish the scientific reliability of the BULLETTRAX machine and related software.

Following an evidentiary hearing, the trial court concluded that the State's expert relied upon the BULLETTRAX technology and the images it produced in concluding that a bullet fragment taken from the murder victim likely came from a handgun later seized from defendant. In so ruling, the trial court made extensive factual and credibility findings pertaining to the expert's testimony about his use of the images, and its findings are entitled to deference on appeal.

Under these circumstances, the court holds that a Frye hearing was necessary to demonstrate the reliability of the computer images of the bullets produced by BULLETTRAX before the expert would be permitted to testify at trial.

In State v. North Beach 1003, LLC, 451 N.J. Super. 214, 223 (App. Div. 2017), this court held that the Department of Environmental Protection (DEP) had the authority to "condemn private property to take perpetual easements for shore protection purposes" as part of the Manasquan Inlet to Barnegat Inlet Hurricane and Storm Damage Reduction Project to reduce flooding in the aftermath of Superstorm Sandy. This court also held that "easements that allow for publicly funded beach protection projects can include public access and use." However, this court expressly did not extend its holding to properties that were protected from flooding by an existing revetment.

In these sixty-seven consolidated condemnation appeals, this court affirmed the trial judge's final judgments upholding DEP's taking of permanent easements where the properties were protected by the revetment. This court agreed with the trial judge's conclusions that DEP properly determined that the revetment provided insufficient protection, and that the taking was not the product of fraud, bad faith, or manifest abuse of power.

In State v. North Beach 1003, LLC, 451 N.J. Super. 214, 223 (App. Div. 2017), this court held that the Department of Environmental Protection (DEP) had the authority to "condemn private property to take perpetual easements for shore protection purposes" as part of the Manasquan Inlet to Barnegat Inlet Hurricane and Storm Damage Reduction Project to reduce flooding in the aftermath of Superstorm Sandy. This court also held that "easements that allow for publicly funded beach protection projects can include public access and use." However, this court expressly did not extend its holding to properties that were protected from flooding by an existing revetment.

In these sixty-seven consolidated condemnation appeals, this court affirmed the trial judge's final judgments upholding DEP's taking of permanent easements where the properties were protected by the revetment. This court agreed with the trial judge's conclusions that DEP properly determined that the revetment provided insufficient protection, and that the taking was not the product of fraud, bad faith, or manifest abuse of power.

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in that court’s opinion. The Court comments briefly on the Appellate Division’s reversal of the trial court’s decision to exclude the opinion of Dianne Simmons-Grab and offers guidance for the trial court on remand in its role under N.J.R.E. 702 and N.J.R.E. 703 as the gatekeeper of expert witness testimony.

In State v. North Beach 1003, LLC, 451 N.J. Super. 214, 223 (App. Div. 2017), this court held that the Department of Environmental Protection (DEP) had the authority to "condemn private property to take perpetual easements for shore protection purposes" as part of the Manasquan Inlet to Barnegat Inlet Hurricane and Storm Damage Reduction Project to reduce flooding in the aftermath of Superstorm Sandy. This court also held that "easements that allow for publicly funded beach protection projects can include public access and use." However, this court expressly did not extend its holding to properties that were protected from flooding by an existing revetment.

In these sixty-seven consolidated condemnation appeals, this court affirmed the trial judge's final judgments upholding DEP's taking of permanent easements where the properties were protected by the revetment. This court agreed with the trial judge's conclusions that DEP properly determined that the revetment provided insufficient protection, and that the taking was not the product of fraud, bad faith, or manifest abuse of power.

The TCA applied to Nieves’s legal malpractice action, and his claim for loss of liberty damages failed to vault the verbal threshold for a pain and suffering damages claim under the strictures of N.J.S.A. 59:9-2(d). Defendants were entitled to summary judgment

The prosecutor did not impermissibly interfere with the grand jury’s investigative functions. As the trial court found, the grand jury here sought clarification rather than specific instructions on lesser-included offenses for murder. The Court provides guidance as to when such instructions should be given.

Plaintiff alleged defendant violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, by terminating his employment in retaliation for his opposition to defendant's requests that he make false statements concerning, and seek a baseless restraining order against, a co-employee in retaliation for the co-employee's filing of a complaint alleging defendant violated the LAD. The motion court granted defendant summary judgment, finding plaintiff did not present evidence establishing the prerequisite for a LAD retaliation claim under the Supreme Court's decision in Carmona v. Resorts International Hotel, Inc., 189 N.J. 354 (2007). More particularly, the motion court found plaintiff failed to demonstrate there was a good faith and reasonable basis for his co-employee's LAD complaint.

The court reverses the summary judgment order, finding Carmona's good faith and reasonable basis prerequisite for a LAD-retaliation claim applies to the protected activity under N.J.S.A. 10:5-12(d) triggering the alleged retaliatory actions. Unlike the plaintiff in Carmona, plaintiff did not allege he was retaliated by engaging in the protected activity of filing a LAD complaint. See N.J.S.A. 10:5-12(d). Instead, plaintiff alleged he was retaliated against for engaging in protected activity under N.J.S.A. 10:5-12(d) by opposing "acts forbidden under" the LAD—defendant's requests he make false statements and obtain a baseless restraining order against the co-employee in retaliation for her filing of a LAD complaint. The court holds that to satisfy the Carmona prerequisite for his LAD retaliation claim, plaintiff was required to demonstrate he had a good faith and reasonable basis to oppose defendant's requests because he alleged that protected activity triggered the alleged retaliation against him.

These two appeals raise challenges to the use of the Registrant Risk Assessment Scale (RRAS) to determine the risk of re-offense by persons who have been convicted of possessing or distributing child pornography. Defendants both pled guilty to second-degree endangering the welfare of a child by distributing child pornography in violation of N.J.S.A. 2C:24-4(b)(5)(a)(iii). Following the completion of their custodial sentences, they were both found to pose a moderate risk of re-offense and were designated as Tier Two registrants under the Registration and Community Notification Laws, N.J.S.A. 2C:7-1 to -23, commonly known as Megan's Law.

Defendants appeal from the orders imposing that level of classification, contending that, as applied to them, the use of the RRAS was improper. They also argue that the use of the RRAS in tiering sex offenders who have been convicted of one offense related to possessing or distributing child pornography gives a skewed tiering result. Thus, defendants argue that the RRAS should be modified, replaced, or not used in tiering one-time child pornography offenders.

The court concludes that neither defendant created the record to support his arguments. Accordingly, the court affirms and issue this consolidated opinion to address the common arguments presented by defendants

The court rejected the applicability of the ongoing-storm rule, which arbitrarily relieves commercial landowners from any obligation to try to render their property safe while sleet or snow is falling. The court held a commercial landowner has a duty to take reasonable steps to render a public walkway abutting its property—covered by snow or ice—reasonably safe. The court imposed a duty of ordinary care and identified factors to consider when determining whether the landowner breached that duty, emphasizing that reasonableness is the polestar.

The spousal privilege prevents a spouse or partner in a civil union of the accused from testifying against the accused. N.J.S.A. 2A:84A-17(2) and N.J.R.E. 501(2). One exception to the privilege is when "the accused is charged with an offense against the spouse or partner, a child of the accused or of the spouse or partner, or a child to whom the accused or the spouse or partner stands in the place of a parent." N.J.S.A. 2A:84A-17(2)(b) and N.J.R.E. 501(2)(b). The court in this opinion determines that the term "child" in the spousal privilege exception refers to an unemancipated child.

Defendant pled guilty to an accusation charging him with the third degree offense of strict liability vehicular homicide pursuant to N.J.S.A. 2C:11-5.3a.The State agreed to recommend probation conditioned on defendant serving 364 days in the county jail. Mitigating factor five, N.J.S.A. 2C:44-1b(5), allows a judge to consider whether the victim's conduct induced or facilitated the commission of the crime. The trial judge held mitigating factor five was inapplicable in this case as a matter of law because N.J.S.A. 2C:11-5.3d provides: "It shall not be a defense to a prosecution under this section that the decedent contributed to his [or her] own death by reckless or negligent conduct." This court reverses and holds N.J.S.A. 2C:11-5.3d does not preclude a judge from finding and applying mitigating factor five. This court remands the matter for resentencing because the record shows a basis to find mitigating factor five.

Defendant Amy Amzler filed a motion to enforce plaintiff Mark Amzler's alimony obligation, as required under the parties' 2009 matrimonial settlement agreement (MSA). The MSA included an anti- Lepis1 provision, which stated that a "voluntary reduction in income of either party" would not constitute a substantial change in circumstances for the purpose of reviewing the alimony obligation. Plaintiff opposed the motion and filed a cross-motion seeking to modify or terminate his alimony obligation, as he had recently retired, before reaching full retirement age, due to medical issues. The trial court terminated plaintiff's alimony obligation, applying N.J.S.A. 2A:34-23(j)(2), which governs the review of alimony awards where the obligor retires before reaching full retirement age.

As a matter of first impression, the court held that N.J.S.A. 2A:34-23(j)(2) applies only to alimony orders entered after the effective date of the 2014 amendments to the alimony statute. The court relied on Landers v. Landers, 444 N.J. Super. 315, 324 (App. Div. 2016), where it held that N.J.S.A. 2A:34-23(j)(1) applies only to alimony orders established after the effective date of the 2014 amendments. In construing the statute, the Landers court held that although subsection (j)(1) does not explicitly state that it applies only to orders or agreements established after the 2014 amendments, "the particular language used in subsection (j)(3) clarifies the Legislature's intent to apply (j)(1) only to orders entered after the amendments' effective date."2 Id. at 324. In the current matter, the court found that there was no sound basis to depart from its reasoning in Landers and that construing subsection (j)(2) consistent with its construction of subsection (j)(1) conforms to the Legislature's intent in enacting subsection (j). Thus, the court held that N.J.S.A. 2A:34-23(j)(3), which governs the review of final alimony orders or agreements established before the effective date of the 2014 amendments to the alimony statute, is applicable to this case. Accordingly, the court vacated the orders under review and remanded the matter to the trial court to reconsider the parties' applications, applying the correct

1 Lepis v. Lepis, 83 N.J. 139 (1980).2 Subsection (j)(3) provides that it applies when "there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act." N.J.S.A. 2A:34-23(j)(3).

provision of the statute and considering whether the anti-Lepis provision in the MSA prohibits a reduction of plaintiff's alimony obligation.

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in that court’s opinion

Tax Court: Scott Dickerson v. Town of Dover,Docket Nos. 005403- 2010; 004187-2011; 008887-2012; opinion by Bianco, J.T.C., decided March 30, 2020. For plaintiff – Joseph G. Buro (Zipp & Tannenbaum, LLC, attorneys); for defendant – David C. Pennella (Law office of David C. Pennella, attorneys).

Held: The Saturday, June 1, 2019 deadline for defendant to remit the refund payment to plaintiff without interest cannot be extended to Monday, June 3, 2019 pursuant to R. 1:3-1, N.J.S.A. 36:1-1, or equitable principles, given that the Saturday, June 1, 2019 deadline was not a court-ordered payment date, but rather a contractual deadline negotiated between the parties and set forth in the Stipulation of Settlement.

Tax Court: Buckeye Perth Amboy Terminal, LLC, v. City of Perth Amboy;Docket No. 013403-2019; opinion by Sundar, J.T.C.,decided March 27, 2020. For plaintiff - John S. Wisniewski (Wisniewski & Associates, LLC, attorneys); for defendant -William T. Rogers (Hoagland, Longo, Moran, Dunst & Doukas,LLP, attorneys).

Held: Defendant’s imposition of an assessment in September 2019 for tax year 2019, to capture the assessment on a bidirectional petroleum pipeline that was constructed and placed in service in May 2018, is proper under the omitted assessment statute, N.J.S.A. 54:4-63.31, although defendant’s assessor called it an “added” assessment in the assessment notice. The newly constructed pipeline was assessed for the first time in 2019. Therefore, precedent voiding added or omitted assessments to change an already-imposed regular assessment (even if the improvement was valued at $0) does not control. Additionally, the omitted assessment statute presupposes the existence of an improvement as of an assessment date; therefore, invalidating an assessment on this ground cannot be supported under the statute’s plain language, or its underlying intent and purposes as interpreted by our higher courts.

Following defendant's guilty plea for accepting a $300 bribe while employed with the Jersey City Tax Assessor's Office, the State filed a complaint and order to show cause seeking the complete forfeiture of defendant's pension benefits pursuant to N.J.S.A. 43:1-3.1. Defendant principally argued that forfeiture of his entire pension (which he was already receiving) was an excessive fine in violation of the Eighth Amendment of the United States Constitution and Article I, Paragraph 12 of the New Jersey Constitution.

The trial court concluded that defendant's federal conviction mandated a complete pension forfeiture and did not violate the Excessive Fines Clause as receipt of pension benefits was a contractual arrangement between a public employee and employer conditioned on rendering honorable service, as opposed to a property right, and thus did not constitute a fine. The court concludes, contrary to the trial court, that defendant's right to receive pension benefits was a property right and the total forfeiture of his pension was a fine within the meaning of the Eighth Amendment. Although the trial court did not address whether the forfeiture was unconstitutionally excessive, the court concludes defendant's conduct was sufficiently egregious to warrant a complete pension forfeiture and did not violate the Eighth Amendment.