Recent Decisions of the New Jersey Appellate Courts
from 2017-05-12 to 2017-05-26

Supreme Court Decisions


Docket No.: a-72-15
Decided: 2017-05-16
Caption: Statev. Rodney J. Miles
Summary:
at 481, 484 (Brennan, J., concurring).

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Appellate Division PUBLISHED Decisions


Docket No.: a2565-15
Decided: 2017-05-22
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.U.B.
Status: published
Summary:
SABATINO, P.J.A.D. This appeal by a father from a final judgment terminating his parental rights in a Title 30 guardianship case raises an important and recurring legal issue of statutory construction. The issue is whether the special evidentiary provision for Title 9 cases codified at N.J.S.A. 9:6-8.46(a)(4), allowing the admission of certain hearsay statements by children about corroborated allegations of abuse or neglect, likewise applies in Title 30 guardianship cases involving the termination of parental rights. That hearsay exception reads, in pertinent part, as follows:

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Appellate Division UNPUBLISHED Decisions


Docket No.: a3427-15
Decided: 2017-05-24
Caption: CORT WIZOREK v. DANA FELMLEE
Status: unpublished
Summary:
PER CURIAM We consider the ruling of the trial court on equitable considerations extinguishing appellant, Cooper Levenson, P.A.'s, judgment lien in favor of a lis pendens asserted on marital property following the entry of a final judgment of divorce (FJOD). We affirm. Appellant represented defendant Dana Felmlee in the matrimonial litigation with her husband, plaintiff Cort Wizorek. When the law firm was granted permission to withdraw from representation in February 2014, Felmlee owed the firm substantial fees.

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Docket No.: a3849-15
Decided: 2017-05-24
Caption: STATE OF NEW JERSEY v. JOSUE SERRANO-TORO
Status: unpublished
Summary:
PER CURIAM Defendant Josue Serrano-Toro appeals from his conviction for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C: 35-10(a)(1). His appeal focuses on the court's denial of his motion to suppress evidence of drugs found in his vehicle. Defendant contends he did not consent to the search of his vehicle, and the inevitable discovery rule did not apply. We disagree and affirm. We recite the facts relevant to defendant's contentions on appeal. The State presented evidence that a Wall Township police officer was in a marked patrol car with his K-9 partner on November 13, 2014. On that date, police officer Emmett Idzahl observed a BMW with tinted front windows. Because tinted front windows are a violation of the State's motor vehicle code, Officer Idzahl ran a computer search on the vehicle's license plate, which confirmed defendant was the registered owner of the vehicle and that defendant's driver's license was suspended. Consequently, Officer Idzahl activated his lights and requested defendant, who was driving the vehicle, pull over to the side of the road.

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Docket No.: a5062-14
Decided: 2017-05-24
Caption: D.P. v. E.P.
Status: unpublished
Summary:
PER CURIAM Defendant E.P. appeals from a March 28, 2015 amended final restraining order (FRO) entered in favor of plaintiff D.P. pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. The court entered the order after it denied defendant's motion to dismiss a 1996 FRO. We affirm.

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Docket No.: a0384-15
Decided: 2017-05-23
Caption: STATE OF NEW JERSEY v. OMAR BARRETT
Status: unpublished
Summary:
PER CURIAM Defendant Omar Barrett appeals the trial court's denial of his post-conviction relief ("PCR") petition, having pled guilty to first-degree carjacking and been sentenced for that crime. We affirm.

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Docket No.: a0833-16
Decided: 2017-05-23
Caption: JOHN C. STOLLSTEIMER v. FOULKE MANAGEMENT CORP
Status: unpublished
Summary:
PER CURIAM Plaintiffs John C. Stollsteimer and Cheryl R. Stollsteimer appeal from the trial court's order dated September 20, 2016, granting the motion to dismiss filed on behalf of defendant Foulke Management Corp. d/b/a Foulke Management Corporation d/b/a Cherry Hill Dodge Chrysler Jeep d/b/a Cherry Hill Triplex. Because the trial court failed to comply with the requirements of Rule 1:7-4(a), we vacate the order dismissing plaintiffs' complaint and remand the matter to the trial court for further proceedings. We briefly recite the procedural history and facts in this case. In its motion to dismiss the complaint, defendant requested the trial court enforce an arbitration clause contained in documents governing the sale of an automobile purchased by plaintiffs. The trial court found the sales documents signed by plaintiffs compelled arbitration of disputes and therefore dismissed plaintiffs' complaint.

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Docket No.: a0957-15
Decided: 2017-05-23
Caption: STATE OF NEW JERSEY v. RICKY W. SESSOMS
Status: unpublished
Summary:
PER CURIAM Defendant, Ricky Sessoms, appeals from the June 1, 2015 order denying his petition for post-conviction relief (PCR) and declining to conduct an evidentiary hearing. Defendant is serving an aggregate sentence of eight-years imprisonment with a five-year parole disqualifier arising out of the sentences imposed on September 23, 2011. More particularly, defendant was sentenced to two counts of the indictment to which he pled guilty, Count Seven, second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7, for which he was sentenced to five-years imprisonment with a mandatory five-year parole disqualifier, and Count Three, third-degree possession with intent to distribute a controlled dangerous substance, namely, marijuana, within 1,000 feet of school property, N.J.S.A. 2C:35-7, on which he was sentenced to an extended term pursuant to N.J.S.A. 2C:43-6f, of eight-years imprisonment with a four-year parole disqualifier.

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Docket No.: a1029-15
Decided: 2017-05-23
Caption: STATE OF NEW JERSEY v. TIMOTHY C. AMAN
Status: unpublished
Summary:
PER CURIAM Defendant Timothy C. Aman appeals from his conviction, for first-degree aggravated sexual assault and the imposed sentence of ten years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Immediately before trial, defendant entered a guilty plea, pursuant to the terms of a negotiated agreement. Although defendant admitted he performed fellatio on K.C., who was not conscious, he now challenges the sufficiency of the factual basis to support the knowledge element of the crime. We affirm. I.

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Docket No.: a1518-15
Decided: 2017-05-23
Caption: STATE OF NEW JERSEY v. JOSE LUIS SUAREZ
Status: unpublished
Summary:
PER CURIAM Defendant Jose Luis Suarez appeals the trial court's November 12, 2015 denial of his motion for reconsideration or a change of his criminal sentence. We affirm.

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Docket No.: a2157-15
Decided: 2017-05-23
Caption: STATE OF NEW JERSEY v. DOUGLAS JOHNSON
Status: unpublished
Summary:
PER CURIAM Defendant Douglas Johnson appeals from a November 19, 2015 order denying his application for post-conviction relief (PCR). We affirm.

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Docket No.: a4577-15
Decided: 2017-05-23
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.S.K.
Status: unpublished
Summary:
PER CURIAM This guardianship matter initially concerned three children born to defendant A.K. (Ali).1 Defendant E.M.C. (Eric) is the father of one of those children, A.E.C. (Adam), and appeals from an order that terminated his parental rights to his son. We affirm. Ali's parental rights to all three of her children were also terminated. Because she has not appealed, our review of the facts focuses on Eric and his relationship with Adam.

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Docket No.: a5737-14
Decided: 2017-05-23
Caption: STATE OF NEW JERSEY v. BRIDGETTE N. ARCHUT
Status: unpublished
Summary:
PER CURIAM Defendant was charged in a two-count indictment with fourth-degree bias intimidation, N.J.S.A. 2C:16-1a, based on committing the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4 (Count One), and fourth-degree bias intimidation, N.J.S.A. 2C:16-1a, based on committing the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a (Count Two). Defendant's motion to dismiss the indictment was denied. Her application for admission to the Pretrial Intervention (PTI) program was denied, and her appeal of that decision to the Law Division was also denied.

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Docket No.: a5770-14
Decided: 2017-05-23
Caption: STATE OF NEW JERSEY v. ADRIAN ZIMMERMAN
Status: unpublished
Summary:
PER CURIAM On February 14, 2012, an Essex County grand jury returned Indictment No. 2012-2-439, charging defendant Adrian Zimmerman with conspiracy to commit second-degree aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(1) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); and third-degree criminal restraint, N.J.S.A. 2C:13-2 (count five).

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Docket No.: a2601-15
Decided: 2017-05-22
Caption: J.T. v. DEPARTMENT OF CHILDREN AND FAMILIES
Status: unpublished
Summary:
PER CURIAM We have been advised prior to argument that this matter has been amicably adjusted, and the parties have stipulated to the dismissal of this appeal. Accordingly, the appeal is dismissed with prejudice and without costs.

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Docket No.: a3903-15
Decided: 2017-05-22
Caption: STATE OF NEW JERSEY v. ANDRE DeMELO
Status: unpublished
Summary:
PER CURIAM

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Docket No.: a4319-14
Decided: 2017-05-22
Caption: MARIA CORTEZ-STARICCO v. PIER VILLAGE LWAG
Status: unpublished
Summary:
PER CURIAM Plaintiff Marie Cortez-Staricco challenges two April 24, 2015 orders granting summary judgment, one in favor of defendants Pier Village LWAG (PV) and Applied Property Management, Co., Inc. (Applied), and the other in favor of defendant Gregory Maik a/k/a Maik Company (Maik). We reverse the orders and remand for trial.

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Docket No.: a5330-14
Decided: 2017-05-22
Caption: STATE OF NEW JERSEY v. TARA BLAIR
Status: unpublished
Summary:
PER CURIAM In State v. Tara Blair, No. A-5330-14, defendant Financial Casualty & Surety (Financial) appeals a July 8, 2015 order, which required Financial to pay $1000 of the $10,000 bail bond it issued for defendant Tara Blair (Blair). In State v. Parisi, No. A-5331-14, defendant Bankers Insurance Company (Bankers) appeals an order of July 8, 2015, which required it to pay $1000 of the $2500 bond it issued for defendant Frank Parisi (Parisi).2 We affirm both orders. I.

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Docket No.: a0508-15
Decided: 2017-05-19
Caption: STATE OF NEW JERSEY v. MARK L. TOMPKINS
Status: unpublished
Summary:
PER CURIAM Defendant appeals from the denial of his second petition for post-conviction relief (PCR) without an evidentiary hearing and presents the following argument for our consideration in this appeal: THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR A FULL HEARING ON THE DISMISSAL AND SUBSEQUENT TRIAL ON THE CHARGE WHICH WAS DISMISSED, WHICH VIOLATED THE DOUBLE JEOPARDY CLAUSES OF CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES.

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Docket No.: a0786-15
Decided: 2017-05-19
Caption: OBERMAYER REBMANN MAXWELL & HIPPEL, LLP v. BRIAN KLEIMAN
Status: unpublished
Summary:
PER CURIAM Defendants Brian and Rivka Basya Kleiman and Steven and Rivka Chaya Kleiman appeal from the trial court's denial of a motion seeking reconsideration of the denial of their post-trial motion for set-off against the jury verdict in favor of plaintiff Obermayer Rebmann Maxwell & Hippel, LLP for legal fees and costs.2 As we can find no factual or legal basis for their argument, we affirm.

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Docket No.: a1210-15
Decided: 2017-05-19
Caption: JOY MCDERMOTT-GUBER v. ESTATE OF MABEL A. MCDERMOTT
Status: unpublished
Summary:
PER CURIAM This appeal involves a dispute over ownership of a one-half interest in residential real property located at 49 Arlington Avenue, Parsippany (the property). Plaintiffs Joy McDermott-Guber (Joy)1 and her husband William Guber appeal from a series of Chancery Division orders that: declared Joy's brother, defendant Bart Alan McDermott (Alan), owner of the disputed one-half property interest; denied plaintiffs' application for partition credits prior to the time Alan acquired title and granted Alan credit for the rental value of the property; and awarded Alan and defendant Estate of Mabel A. McDermott (Mabel) $20,000 in frivolous litigation sanctions. Defendants have filed a "protective" cross-appeal with regard to the partition credits granted by the trial court. They also challenge the sanctions award as inadequate. For the reasons that follow, we reverse the award of sanctions, and affirm in all other respects.

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Docket No.: a1836-15
Decided: 2017-05-19
Caption: ABDULBASET TAHA v. GHADA ABDULBASET TAHA
Status: unpublished
Summary:
PER CURIAM Plaintiff appeals from an order that adjudicated him to be in violation of litigant's rights, granted various forms of relief to defendant, denied his cross-motion for a modification of his support obligation and awarded counsel fees to defendant. For the reasons that follow, we reverse that order and remand for further proceedings. I.

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Docket No.: a2136-14
Decided: 2017-05-19
Caption: HANN FINANCIAL v. VIVIAN OJOMO
Status: unpublished
Summary:
PER CURIAM According to her notice of appeal, defendant Vivian Ojomo appeals a trial court order entered on November 25, 2014. That order denied defendant's motion for reconsideration. In the comments contained in that order, the judge referred to an order he entered on November 14, 2014, that denied an earlier motion for reconsideration; the judge stated in his November 25 order that defendant "has still failed to satisfy" the requirements of Rule 4:49-2. In the November 14, 2014 order, which has not been appealed, the judge referred to the requirements of Rule 4:49-2, which he stated required that such a motion "be served no later than 20 days" after service of the order in question, and that the motion "state with specificity the basis on which it is made, including a statement of [the] matters or controlling decisions which the movant believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered."

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Docket No.: a2149-15
Decided: 2017-05-19
Caption: L.S. v. J.P.
Status: unpublished
Summary:
PER CURIAM This matter returns to us following remand proceedings directed by our previous opinion. L.S. v. J.P. No. A-1035-13 (App. Div. Apr. 30, 2015). Defendant J.P. appeals from a final restraining order ("FRO") entered in favor of plaintiff L.S. pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm. We begin by referencing the essential background facts as set forth in our earlier opinion:

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Docket No.: a2596-15
Decided: 2017-05-19
Caption: DEUTSCHE BANK NATIONAL TRUST COMPANY v. MARY JANE HOLGANZA
Status: unpublished
Summary:
PER CURIAM Umit Sarhan appeals from a February 23, 2016 order of the General Equity Part, denying his February 8, 2016 application, by way of an order to show cause, to intervene in a pending foreclosure action and to secure a stay of a purportedly impending sheriff's sale, although it had already occurred on February 2, 2016. We affirm.

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Docket No.: a0426-15
Decided: 2017-05-18
Caption: THERESA F. COHEN v. LARRY J. COHEN
Status: unpublished
Summary:
PER CURIAM The parties were married in 1978, had three children, and were divorced in 2013. Incorporated into the divorce judgment was a property settlement agreement (PSA), which required dissolution of a life insurance trust. The PSA obligated plaintiff's counsel to "take all steps necessary to dissolve the [t]rust, and the parties [agreed to] cooperate in any way necessary" to accomplish this desire. The PSA also contained the parties' "represent[ation] and agree[ment]" that they had, during their marriage, "sought and utilized the advice and services" of another attorney "regard[ing] setting up the [t]rust" and that they "mutually agree[d] to seek" that attorney's "input," if necessary, "in order to achieve the [trust's] dissolution."

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Docket No.: a0686-15
Decided: 2017-05-18
Caption: STATE OF NEW JERSEY v. MICHAEL DANIELS
Status: unpublished
Summary:
PER CURIAM Defendant appeals the June 23, 2015 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

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Docket No.: a0714-16
Decided: 2017-05-18
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. I.G.
Status: unpublished
Summary:
PER CURIAM Defendant I.G.1 appeals from a September 29, 2016 guardianship judgment terminating her parental rights to her three children, now ages eleven and six. She contends plaintiff Division of Child Protection and Permanency (the Division) failed to prove by clear and convincing evidence that terminating her parental rights was in the children's best interests, under the standards codified in N.J.S.A. 30:4C-15.1(a). The Division and the Law Guardian oppose the appeal. We affirm.

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Docket No.: a0785-14
Decided: 2017-05-18
Caption: BRYAN ALINTOFF v. RACHEL B ALINTOFF
Status: unpublished
Summary:
OSTRER, J.A.D. In this divorce case, defendant Rachel B. Alintoff appeals from the trial court's final child custody order, pursuant to Rule 5:8-6, awarding plaintiff Bryan Alintoff primary residential custody of the parties' son, Matt.1 The child was born in 2009, two years after the parties married, and two years before plaintiff filed for divorce. Defendant does not challenge the award of joint legal custody to both parents. The custody trial, which spanned twenty-eight days over several months, proceeded while resolution of equitable distribution and permanent alimony was stayed due to defendant's September 2012 bankruptcy filing. However, defendant appeals from the trial court's order terminating plaintiff's obligation to pay unallocated pendente lite support to defendant, and requiring defendant to pay child support to plaintiff. She contends the court erred in its imputation of income to her, and violated the bankruptcy stay by ordering her to pay child support. Defendant also appeals from the trial court's order denying defendant's recusal motion. Having considered defendant's arguments in light of the record and applicable legal principles, we affirm, substantially for the reasons set forth in Judge Linda Grasso Jones's comprehensive written decisions.

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Docket No.: a1218-15
Decided: 2017-05-18
Caption: MARK SMITH v. SOUTH BRUNSWICK TOWNSHIP
Status: unpublished
Summary:
PER CURIAM These back-to-back appeals, which we now consolidate for purposes of this opinion, arise from defendant South Brunswick Township's ("Township's") adoption of two land use ordinances in 2003, and defendant Public Service Electric & Gas Company's ("PSE&G's") application in 2014 for planning board approval to construct an electrical substation in the Township on land that PSE&G purchased from defendant Trustees of Princeton University ("the University") in the zone covered by the ordinances. In Docket No. A-1218-15, plaintiffs Mark and Katherine Smith appeal from the Law Division's October 13, 2015 order granting the University's motion for summary judgment and the Township's motion to dismiss plaintiffs' complaint challenging the ordinances.1 The trial court found that plaintiffs' complaint was untimely because they had waited almost twelve years after the adoption of the ordinances to file it and, in any event, the arguments plaintiffs raised lacked merit.

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Docket No.: a2413-15
Decided: 2017-05-18
Caption: DIVISION OF CHILD PROTECTION AND PERMANANCY v. D.M.
Status: unpublished
Summary:
PER CURIAM Defendant D.M. appeals from a March 6, 2015 fact finding order determining that she abused or neglected her twelve-year-old daughter A.A., by inflicting excessive corporal punishment. See N.J.S.A. 9:6-8.21(c)(4) (defining an abused or neglected child as including a child subjected to excessive corporal punishment). We affirm, substantially for the reasons stated by Judge Angelo J. DiCamillo, in his oral opinion placed on the record on March 6, 2015.

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Docket No.: a4770-15
Decided: 2017-05-18
Caption: DIVIAION OF CHILD PROTECTION AND PERMANENCY v. D.J.
Status: unpublished
Summary:
PER CURIAM Defendant D.J. appeals from a June 23, 2016 Family Part order terminating his parental rights to his son K.J., who was five years old at the time of the guardianship trial. We affirm, substantially for the reasons stated by Judge Therese A. Cunningham in her thirty-one page written opinion issued with the order. The evidence is outlined in detail in the judge's opinion. A summary will suffice here. K.J. was born in 2011 to a mother who was addicted to drugs and who passed away in 2015. The newborn had withdrawal symptoms at birth, and was transferred to a specialized children's hospital where he stayed for approximately six weeks. D.J. initially denied paternity until a paternity test administered when K.J. was two and one-half years old demonstrated he was in fact the father. Defendant was incarcerated at times during the litigation and only complied sporadically with scheduled dates for evaluations and court hearings. He was present for the third and final trial day only, explaining he had been confused about the first two dates.

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Docket No.: a5784-14
Decided: 2017-05-18
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. B.W.
Status: unpublished
Summary:
PER CURIAM Defendant B.W. (Mother),1 the mother of five children residing in New Jersey, appeals an April 3, 2013 family court order finding she abused or neglected her four older children and an April 26, 2013 dispositional order continuing the custody, care and supervision of the four children with the New Jersey Division of Child Protection and Permanency (DCPP). She also appeals the April 26, 2013 order to the extent it dismissed DCPP's Title Nine, N.J.S.A. 9:6-8.21 to -8.73, complaint as to Mother's youngest child A.A. (Ann) and Ann's father, A.A. (Arnold), and awarded joint legal custody of Ann to Mother and Arnold, physical custody of Ann to Arnold, and required that Mother's parenting time with Ann be supervised. The court entered an order terminating the litigation on July 8, 2015. We affirm the court's April 3, 2013 fact-finding order and vacate that part of the April 26, 2013 dispositional order concerning physical and legal custody of Ann, and requiring that Mother's parenting time with Ann be supervised. I.

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Docket No.: a0247-14
Decided: 2017-05-17
Caption: WELLS FARGO BANK, N.A. v. ANNA MARIE FORTE
Status: unpublished
Summary:
PER CURIAM Defendants Anna Marie Forte and Richard Forte appeal from a January 31, 2014 order granting summary judgment to plaintiff Wells Fargo Bank, N.A. (Wells Fargo) and an August 1, 2014 final judgment foreclosing their interest in certain residential real estate. We affirm both orders.

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Docket No.: a0289-14
Decided: 2017-05-17
Caption: STATE OF NEW JERSEY v. VINCENT LAING
Status: unpublished
Summary:
PER CURIAM Defendant was convicted of second-degree vehicular homicide, N.J.S.A. 2C:11-5(a) and N.J.S.A. 2C:11-5(b)(1), and third-degree possession of a controlled dangerous substance (alprazolam), N.J.S.A. 2C:35-10(a)(1). He appeals from his convictions and sentence, presenting the following arguments for our consideration: POINT I

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Docket No.: a0778-14
Decided: 2017-05-17
Caption: JERSEY CITY v. INTERSTATE INDUSTRIAL CORP
Status: unpublished
Summary:
PER CURIAM These consolidated appeals arise from the construction of a municipal complex in the City of Perth Amboy (the City). The project envisioned a free-standing building housing the fire department and emergency medical services (the first building), and a second building containing the public safety department, municipal court and community center, which included swimming pools and a gymnasium. The City intended to expedite completion of the project within one year. It decided not to hire a general contractor, but rather have its business administrator serve as project manager and contemporaneously award contracts to a number of prime contractors. The process was delayed, and the City opted to begin awarding contracts seriatim, even though, in some instances, plans and specifications were not complete.

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Docket No.: a1853-14
Decided: 2017-05-17
Caption: AL-KASEEM LITTLE v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: unpublished
Summary:
PER CURIAM Appellant Al-Kaseem Little, an inmate incarcerated in New Jersey State Prison in Trenton, appeals from a Deputy Commissioner's decision denying appellant's request for a consensual interstate transfer to a correctional facility in Oregon. Following our review, we remand this matter for further proceedings.

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Docket No.: a2357-15
Decided: 2017-05-17
Caption: TRACY CORBISIERO v. MARIE SCHLATTER
Status: unpublished
Summary:
PER CURIAM Plaintiff Tracy Corbisiero appeals from the order of the Law Division granting defendants Marie Schlatter's and Elaine Jamison's motion for summary judgment and dismissing her personal injury cause of action. After reviewing the record developed before the motion judge and mindful of prevailing legal standards, we affirm.

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Docket No.: a3251-15
Decided: 2017-05-17
Caption: STATE OF NEW JERSEY v. CONOR R. MAHONEY
Status: unpublished
Summary:
PER CURIAM Following the denial of his motion to suppress physical evidence, defendant Conor R. Mahoney pled guilty to third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). He was sentenced in accordance with his plea agreement to one year of probation. Defendant now appeals the denial of his motion to suppress and his sentence. We affirm. I.

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Docket No.: a4162-14
Decided: 2017-05-17
Caption: HAZEL CHERRY v. CITY OF NEWARK
Status: unpublished
Summary:
PER CURIAM Plaintiff, Hazel Cherry, appeals from the Law Division's order granting defendant, City of Newark, summary judgment and dismissing her complaint with prejudice.1 Plaintiff alleged in her complaint that she fell and injured her arm due to a defect in a crosswalk. The motion judge granted defendant's application because plaintiff could not establish defendant's liability under the Tort Claims Act (TCA), N.J.S.A. 59:-1 to 12-3, as plaintiff failed to present any evidence that defendant had notice of the alleged dangerous condition. On appeal, plaintiff contends that the evidence she submitted to the court, including photographs and proof that work had been performed in the area of the defect, was sufficient to withstand summary judgment. We disagree and affirm. We derive the following material facts from the evidence submitted by the parties on defendant's summary judgment motion, viewed in a light most favorable to plaintiff, the non-moving party. Polzo v. Cty. of Essex, 209 N.J. 51, 56 n.1 (2012) (Polzo II) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)). Plaintiff fell in a crosswalk on a street in Newark on June 6, 2012, and injured her arm. In her complaint, plaintiff alleged that her fall was caused by "cracked and uneven asphalt" in a crosswalk.2 Plaintiff did not submit any expert's report regarding the cause of her fall or the nature of the street's defective condition or how long it existed. Rather, plaintiff relied upon certain photographs and work permits issued by defendant and other public information regarding the area near the defect to establish defendant's liability.

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Docket No.: a4705-14
Decided: 2017-05-17
Caption: STATE OF NEW JERSEY v. STEPHEN HERNANDEZ
Status: unpublished
Summary:
PER CURIAM Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. In 2010, a jury convicted defendant of first-degree kidnapping, N.J.S.A. 2C:13-1 (count one); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (counts two and four); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (counts three and five); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (counts six and eight); and second-degree sexual assault, N.J.S.A. 2C:14-2(c). He was sentenced to a twenty-five year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 on the kidnapping charge; a consecutive fifteen-year term, also subject to NERA, on one of the aggravated sexual assault charges, and concurrent terms on the other counts.1

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Docket No.: a5387-14
Decided: 2017-05-17
Caption: STATE OF NEW JERSEY v. WAYNE B. HIX
Status: unpublished
Summary:
PER CURIAM Defendant Wayne Hix appeals from a June 9, 2015 order denying his petition for post-conviction relief (PCR). He argues that his trial counsel minimized the injury he sustained at the hands of the victim, failed to timely raise the issue of his learning disability, and failed to object to the prosecutor's improper comments in summation. Because we find that defendant has failed to present a prima facie showing of ineffective counsel, we affirm. Defendant was convicted by a jury of manslaughter and unlawful possession of a weapon, and sentenced to an aggregate fifteen-year custodial term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). We affirmed defendant's conviction, State v. Hix, No. A-5034-09 (App. Div. Aug. 12, 2013), and the subsequent petition for certification was denied. State v. Hix, 217 N.J. 288 (2014).

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Docket No.: a-72-15
Decided: 2017-05-16
Caption: State v. Rodney J. Miles
Status: unpublished
Summary:
Timpone, J., writing for a majority of the Court. In this appeal, the Court clarifies the methodology to be used in analyzing whether two offenses are the ame offenseor double jeopardy purposes.

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Docket No.: a1564-15
Decided: 2017-05-16
Caption: SAM RUSSO v. PLUMSTED TOWNSHIP
Status: unpublished
Summary:
PER CURIAM Plaintiff Sam Russo appeals the Law Division's November 17, 2015 grant of summary judgment to defendant Michael Lynch dismissing the amended complaint. Russo also appeals the denial of his request for extension of the discovery end date. Having reviewed the record and relevant law, we affirm for the reasons stated by Judge Den Uyl, with some brief additional comments. Russo alleged several causes of action against Lynch, claiming that Lynch acted beyond his statutory authority while serving as the Plumsted Township Public Safety Director in 2009. Russo owns and operates a 100-acre farm adjoining a residential development where Lynch resided during the relevant timeframe.

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Docket No.: a1962-15
Decided: 2017-05-16
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. V.V.
Status: unpublished
Summary:
PER CURIAM Defendant V.V. appeals from (1) a January 21, 2015 order incorporating her admission to child neglect, resulting from her alcohol abuse, which exposed her two children to a substantial risk of harm; and (2) a November 20, 2015 order denying her motion to vacate her stipulation. The court has been informed appellant has passed away. Accordingly, the appeal is dismissed as moot. Greenfield v. N.J. Dept. of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006).

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Docket No.: a1971-15
Decided: 2017-05-16
Caption: PETER SAVOIA v. HEALING HEARTS
Status: unpublished
Summary:
PER CURIAM Plaintiff appeals from a December 3, 2015 order dismissing his tort-based amended complaint (the tort case) against defendants Healing Hearts and Ocean County, for failure to state a claim. R. 4:6-2(e). We affirm.

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Docket No.: a3425-15
Decided: 2017-05-16
Caption: ROBERT STEPHENS v. COUNTY OF UNION
Status: unpublished
Summary:
PER CURIAM Plaintiff appeals from a March 4, 2016 order granting summary judgment dismissing his age discrimination complaint against Union County, filed under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

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Docket No.: a4379-14
Decided: 2017-05-16
Caption: IN THE MATTER OF THE SADC RESOLUTION
Status: unpublished
Summary:
PER CURIAM Since 2012, appellants Max Henry Riewerts and Diane Tribble Riewerts have been attempting to obtain the necessary approvals, municipal and state, in order to relocate a right-of-way (ROW) in which they have an interest by recorded easement deed. After the initial denial by the agency director of the State Agriculture Development Committee (SADC or Committee) on October 26, 2012, appellants sought formal approval from the Committee. The Committee denied them permission to reconfigure and move the ROW,1 which decision was memorialized in Resolution FY2015R12(2). Their request was finally denied on December 11, 2014, and on February 26, 2015, by resolution, FY2015R12(5), SADC denied their request for reconsideration. This appeal followed. Appellants contend the record supports outright reversal. They assert that the decision was based on SADC staff net opinions that resulted in arbitrary, unreasonable, and capricious action by the agency. The SADC argues to the contrary, that its decision was based on a proper assessment of facts and law, and should be affirmed.

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Docket No.: a4494-15
Decided: 2017-05-16
Caption: ESTATE OF VINCENT E. COYLE v. CRAIG SCOTT
Status: unpublished
Summary:
PER CURIAM Defendant Kearfott Corporation (Kearfott) appeals from a May 11, 2016 judgment of $3042 awarded in small claims court following a bench trial. We affirm. Plaintiff is the Estate of Vincent Coyle (Estate). Coyle worked for the Singer Company from 1955 to 1986. During his employment, Coyle became entitled to a $3000 death benefit.

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Docket No.: a5760-14
Decided: 2017-05-16
Caption: STATE OF NEW JERSEY v. JASON E. MOORE
Status: unpublished
Summary:
PER CURIAM Defendant Jason E. Moore (defendant or Moore) appeals the denial of his motion to suppress evidence obtained with two search warrants. After the denial, defendant and the State reached a plea agreement. In conformity with that agreement, defendant pled guilty to two of the eight counts naming him in an indictment returned by the grand jurors for Cumberland County. Defendant was charged with crimes related to the killing of Ervin M. Harper, the disposal of Harper's remains and the production and distribution of marijuana. More specifically, defendant pled guilty to count one, first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1) (amended from murder, N.J.S.A. 2C:11-3(a)(1)-(2)); and count four, second-degree disturbing or desecrating human remains, N.J.S.A. 2C:22-1(a)(1).

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Docket No.: a0126-16
Decided: 2017-05-15
Caption: STATE OF NEW JERSEY v. JOSEPHINE M. SHIPPS
Status: unpublished
Summary:
PER CURIAM The State appeals from the August 22, 2016 order awarding defendant Josephine Shipps ninety-one days of jail credit for time served in Pennsylvania custody. We reverse based on our Supreme Court's recent decision in State v. Joe, ___ N.J. ___ (2017). For the purpose of our decision, we need not recount the extensive procedural background of defendant's third and fourth-degree charges for issuance of bad checks, N.J.S.A. 2C:21-5. Suffice it to say that on April 27, 2015, she pled guilty to charges in Warren County. Prior to sentencing, she was arrested for theft by deceit charges arising in Pennsylvania. After she waived extradition, she was taken into custody by our neighboring state on July 9.

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Docket No.: a0395-15
Decided: 2017-05-15
Caption: STATE OF NEW JERSEY v. CRUZ MARTINEZ, JR
Status: unpublished
Summary:
PER CURIAM Defendant Cruz Martinez, Jr. was tried before a jury and found guilty of murder and other offenses. The court sentenced defendant to life imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He appeals from the judgment of conviction dated July 27, 2015. We affirm defendant's convictions and the sentences imposed, but remand the matter to the trial court for entry of a corrected judgment of conviction. I.

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Docket No.: a1558-15
Decided: 2017-05-15
Caption: NEIL EPSTEIN v. BARBARA EPSTEIN
Status: unpublished
Summary:
PER CURIAM We granted plaintiff, Neil Epstein, leave to appeal from the Law Division's September 30, 2015 order dismissing his complaint against defendant, Barbara Epstein, also known as Barbara Petka. Plaintiff's complaint alleged that, as a result of defendant's fraud and misrepresentations, the late Harry D. Epstein removed plaintiff as a named beneficiary under his living trust and last will and testament, which named defendant as the trustee and executrix. In response to a motion filed by defendant, the court dismissed plaintiff's complaint without prejudice for failure to state a claim pursuant to Rule 4:6-2(e).1 The court determined that the complaint failed to identify the dates upon which the alleged fraudulent conduct occurred, thereby preventing the court from determining whether the claim was barred by the applicable six-year statute of limitations, N.J.S.A. 2A:14-1, and failed to provide the specificity required by Rule 4:5-8(a) when pleading fraud. Rather than seeking to file an amended complaint, see Nostrame, supra, 213 N.J. at 127; see also Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989), plaintiff filed a motion for leave to appeal. On appeal, he contends his complaint was sufficient and any excluded references to dates was due to their being unknown. We disagree and affirm.

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Docket No.: a1961-14
Decided: 2017-05-15
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.E.
Status: unpublished
Summary:
PER CURIAM In these consolidated appeals, defendant P.E.1 appeals from a March 5, 2012 Family Part order2 determining that he sexually abused his eleven-year-old stepdaughter S.T. ("Samantha") on a number of occasions over a six-month period between August 2010 and February 2011. Defendant S.M., who is P.E.'s wife, also appeals from the portion of the March 5 order, which found that S.M. abused or neglected Samantha by permitting P.E. to re-enter the home and have contact with Samantha, and her two siblings, N.E. ("Nora") and L.T. ("Lori"), in violation of a safety plan that S.M. entered with the Division of Child Protection and Permanency ("Division") in order to protect the children from P.E. We affirm. I.

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Docket No.: a3008-15
Decided: 2017-05-15
Caption: STATE OF NEW JERSEY v. MARKITA A. NORRIS
Status: unpublished
Summary:
PER CURIAM Defendant Markita A. Norris appeals from her judgment of conviction on resentencing for murder and attempted murder. We previously affirmed defendant's convictions, State v. Markita A. Norris, No. A-1561-12 (App. Div. Nov. 30, 2015), certif. denied, 226 N.J. 213 (2016), but remanded for resentencing. Id. (slip op. at 2).

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Docket No.: a4703-13
Decided: 2017-05-15
Caption: STATE OF NEW JERSEY v. ALEEM MALLARD
Status: unpublished
Summary:
PER CURIAM Following a jury trial, defendant Aleem Mallard was convicted of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a), and acquitted of first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4(e). After waiving his right to a jury trial, the trial judge found defendant guilty of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). On July 30, 2009, the judge sentenced defendant to an extended term of seventeen years with an eight-and-one-half year period of parole ineligibility on the certain persons conviction, a concurrent five years on the unlawful possession of a weapon conviction, and a concurrent eighteen months on the resisting arrest conviction.

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Docket No.: a4749-15
Decided: 2017-05-15
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.H.
Status: unpublished
Summary:
PER CURIAM Defendants L.H. (Linda) and G.H. (Gary) appeal from a judgment terminating their parental rights to their daughter Las.H. (Lucy).1 The trial court concluded that termination was appropriate in light of Linda's long struggle with substance abuse disorder, which inhibited her from safely caring for Lucy just as it had for her four other children, none of whom remained in her care, and in light of Gary's relative absence and failure to offer any plan for reunification. Both defendants challenge the court's conclusions and contend that the New Jersey Division of Child Protection and Permanency (Division) failed to establish, by clear and convincing evidence, the four criteria of the best-interests-of-the-child standard embodied in N.J.S.A. 30:4C-15.1(a). The Division and the Law Guardian disagree and argue that the trial court's judgment should be affirmed. On July 18, 2016, we consolidated the appeals. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm.

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Docket No.: a5736-14
Decided: 2017-05-15
Caption: STATE OF NEW JERSEY v. ALFREDO LOPEZ
Status: unpublished
Summary:
PER CURIAM Following the denial of his motion to suppress physical evidence, defendant Alfredo Lopez pled guilty to second-degree eluding, N.J.S.A. 2C:29-2(b); second-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); and third-degree hindering, N.J.S.A. 2C:29-3(b)(1). On the second-degree convictions, defendant was sentenced to seven years in prison with forty-two months of parole ineligibility. On the third-degree convictions, he was sentenced to four and five years in prison. The sentences were run concurrent. Defendant now appeals the denial of his motion to suppress and his sentences. We affirm the convictions, but remand for resentencing. I.

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