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Recent Decisions of the New Jersey Appellate Courts
from 2022-01-10 to 2022-01-24

Supreme Court Decisions


Docket No.: a-44-20
Decided: 2022-01-20
Caption: State v. Christopher Radel
Summary:
ALBIN, J., writing for a unanimous Court. These consolidated appeals present an issue of first impression. The Court considers whether the police have a right to conduct a protective sweep of a home when an arrest is made outside the home and, if so, the requisite justification for a warrantless entry and protective sweep. In doing so, the Court balances two important values: an individual's fundamental privacy right in the home and the significant state interest in officer safety.

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Docket No.: a-44-20
Decided: 2022-01-20
Caption: State v. Keith Terres
Summary:
ALBIN, J., writing for a unanimous Court. These consolidated appeals present an issue of first impression. The Court considers whether the police have a right to conduct a protective sweep of a home when an arrest is made outside the home and, if so, the requisite justification for a warrantless entry and protective sweep. In doing so, the Court balances two important values: an individual's fundamental privacy right in the home and the significant state interest in officer safety.

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Appellate Division PUBLISHED Decisions


Docket No.: a4314-19
Decided: 2022-01-20
Caption: ESTATE OF MICAH SAMUEL TENNANT DUNMORE v. PLEASANTVILLE BOARD OF EDUCATION
Status: Published
Summary:
CURRIER, J.A.D. In these matters 1 arising out of the tragic shooting of a minor during a football game and his subsequent death several days later, we consider whether the time for a minor's parent to file a notice of tort claim for her Portee2 claim is tolled under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3. In reading in pari materia N.J.S.A. 59:8-8, which extends the statute of limitations for an injured minor to institute a cause of action until two years after their eighteenth birthday, and N.J.S.A. 2A:14-2, which tolls a parent's claim for the duration of the child's tolling period, and because the parent's Portee claim essentially includes the elements of the minor's claim, we conclude it is only logical to toll the notice requirements under the TCA for the parent's Portee claim to coincide with the tolling period of the minor's claim.

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Docket No.: a4368-19
Decided: 2022-01-19
Caption: STATE OF NEW JERSEY v. WILLIAM J. THOMAS
Status: Published
Summary:
GEIGER, J.A.D. Defendant William J. Thomas appeals from an August 2020 Law Division order denying his motion to for a Miller 1 hearing to correct an unconstitutional life sentence he received for a double murder he committed at age seventeen. Defendant was initially eligible for parole after serving thirteen years. Contending that parole data showed that mere eligibility for parole did not provide him a meaningful opportunity for release based on demonstrated maturity and rehabilitation, defendant argued he had the right to an adversarial hearing for the court to consider the juvenile offender sentencing factors enumerated in Miller, 567 U.S. at 477-78. The record demonstrates that defendant has remained infraction-free during the forty years he has been incarcerated, completed programs to address his behavior and substance abuse, attained a GED and vocational skills, and been found to be at low risk of recidivism by numerous evaluating psychologists. Despite these circumstances, defendant has been denied parole and received lengthy future eligibility terms (FET) seven times. In an issue of first impression, we hold that defendant, who has now been imprisoned for more than four decades even though his sentence did not impose a specified period of parole ineligibility, has the constitutional right to an adversarial hearing to determine whether defendant "still fails to appreciate 1 Miller v. Alabama, 567 U.S. 460 (2012). 2 A-4368-19 risks and consequences, and whether he has matured or been rehabilitated," utilizing the procedure recently adopted by our Supreme Court in State v. Comer, ___ N.J. ___, ___ (2022) (slip op. at 6-7). Accordingly, we reverse and remand for the trial court to conduct that adversarial hearing.

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Docket No.: a3746-20
Decided: 2022-01-18
Caption: STATE OF NEW JERSEY v. DIEGO ARROYO-NUNEZ
Status: Published
Summary:
MESSANO, P.J.A.D. This appeal comes to us in an unusual posture. The State of New Jersey and defendant Diego Arroyo-Nunez both appeal from the Law Division's August 24, 2021 order that denied appellants' joint motion to vacate the mandatory period of parole ineligibility portion of defendant's sentence. Appellants filed that motion pursuant to former Attorney General (AG) Gurbir Grewal's Law Enforcement Directive No. 2021-4, "Directive Revising Statewide Guidelines Concerning the Waiver of Mandatory Minimum Sentences in Non-Violent Drug Cases Pursuant to N.J.S.A. 2C:35-12," (April 19, 2021) (the Directive). The Directive anticipated joint motions filed by prosecutors and defense counsel would be cognizable pursuant to Rule 3:21-10(b)(3) (the Rule), which permits a court to enter an order "at any time . . . changing a sentence for good cause shown upon the joint application of the defendant and the prosecuting attorney."

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Docket No.: a2551-18
Decided: 2022-01-13
Caption: JAMES T. KOPEC v. ANNA M. MOERS
Status: Published
Summary:
ENRIGHT, J.A.D. In these ten one-sided appeals, which we consider back-to-back and have consolidated for the purpose of writing a single opinion, appellant Weinberger Divorce $1 Family Law Group LLC (the firm), challenges the denial of its motions to enforce the terms of its retainer agreement (RA) to obtain a judgment against its former clients for unpaid fees, or alternatively, to compel the former clients to submit to binding arbitration to resolve the parties' fee disputes. We affirm.

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Docket No.: a5586-18
Decided: 2022-01-10
Caption: STATE OF NEW JERSEY , v. TIMOTHY J. CANFIELD
Status: Published
Summary:
SUSSWEIN, J.A.D. Defendant appeals from his jury trial convictions for aggravated manslaughter and multiple counts of hindering apprehension or prosecution. 1 He contends that the Law Division judge committed numerous trial errors, all but one of which are raised for the first time on appeal. This case arises from a confrontation during which defendant shot his sister-in-law's former boyfriend with a compound bow and arrow, inflicting a fatal wound. Defendant claimed at trial that he meant only to release a "warning shot" and that he acted in self - defense. He testified that the victim, who defendant knew to be HIV-positive, came towards him in the course of their argument while holding an object th at defendant believed to be a hypodermic syringe. The jury acquitted defendant of knowing/purposeful murder, convicting him instead of the lesser-included offense of aggravated manslaughter. In doing so, the jury necessarily found that the State had proved beyond a reasonable doubt that defendant's use of deadly force was not justified in self-defense.

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Appellate Division UNPUBLISHED Decisions


Docket No.: a0229-20
Decided: 2022-01-20
Caption: STATE OF NEW JERSEY v. JEFFREY RUST
Status: Unpublished
Summary:
PER CURIAM Defendant Jeffrey Rust appeals from an August 25, 2020 order of the Superior Court, Law Division, finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm.

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Docket No.: a0836-20
Decided: 2022-01-20
Caption: THE ESTATE OF JOSEPH SAITTA v. MAY FUNERAL HOME INC.
Status: Unpublished
Summary:
PER CURIAM Defendants May Funeral Home, Inc. and Thomas May appeal from the August 28, 2020 grant of summary judgment to plaintiff the Estate of Joseph Saitta, and an earlier May 7, 2020 order denying an extension of discovery. We affirm.

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Docket No.: a0965-20
Decided: 2022-01-20
Caption: MAZZARA TRUCKING AND EXCAVATION CORP v. PREMIER DESIGN + BUILD GROUP, LLC
Status: Unpublished
Summary:
PER CURIAM In August 2019, plaintiff Mazzara Trucking $1 Excavation Corporation contracted with defendant Premier Design + Build Group, LLC to perform site work on property on Kuser Road in Hamilton. Disputes arose, prompting defendant (the general contractor) to terminate the performance of plaintiff (the subcontractor) in March 2020. The following month, plaintiff commenced this action, alleging, among other things, defendant's breach of the contract. Soon after, defendant moved to dismiss, arguing the parties should be required to arbitrate their disputes as anticipated by their contract, which stipulates that: Any dispute arising between the [c]ontractor and the [s]ubcontractor under this [a]greement, including the breach thereof, shall be settled in a manner selected at the sole option of the [c]ontractor, so long as it is consistent with this [p]aragraph and with the laws of the jurisdiction where the project is located. Subcontractor shall continue to carry out the [w]ork during any mediation, arbitration or litigation proceedings unless otherwise directed by [c]ontractor . . . [Emphasis added.] We agree with the motion judge that when defendant moved for an order compelling arbitration, it exercised its option to unilaterally select the "manner" in which the dispute would be resolved. The judge, in the last paragraph of his written decision, summarized that he granted defendant's request for arbitration "as asked and not more." But the judge then concluded that by failing to seek from the court the appointment of an arbitrator, defendant "left the choice of arbitration organization or arbitrator to plaintiff."

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Docket No.: a0971-20
Decided: 2022-01-20
Caption: NINETEEN HUNDRED BOARDWALK CONDOMINIUM v. MAUREEN A. DUGAN
Status: Unpublished
Summary:
PER CURIAM Maureen A. Dugan, a unit owner in a condominium association, appeals the December 3, 2020 denial of her reconsideration motion. On September 24, 2020, after a bench trial, the trial judge entered judgment awarding $1350 in unpaid move-in renter's fees assessed by plaintiff 1900 Boardwalk Condominium Association, and $3,000 in counsel fees. Dugan's notice of appeal only lists the reconsideration order. For the reasons that follow, we affirm.

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Docket No.: a1833-20
Decided: 2022-01-20
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.C. and L.M
Status: Unpublished
Summary:
PER CURIAM Defendants, A.C. (April) and L.M. (Len), appeal from a Family Part guardianship judgment terminating their parental rights to their biological child, J.M. (John). They contend on appeal that the Division of Child Protection and Permanency failed to prove by clear and convincing evidence that the best interests of John would be served by terminating April and Len's parental rights under N.J.S.A. 30:4C-15.1(a). We are persuaded that the trial court correctly found that the Division met its burden with respect to each parent, freeing John for adoption. We affirm substantially for the reasons set forth by Judge Linda L. Cavanaugh in her thorough written opinion.

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Docket No.: a4218-19
Decided: 2022-01-20
Caption: AFRICAN AMERICAN DATA AND RESEARCH INSTITUTE v. MADELINE C. MEDINA
Status: Unpublished
Summary:
PER CURIAM These consolidated appeals arise out of two separate denials of plaintiff's New Jersey Open Public Records Act (OPRA) requests. In African American Data and Research Institute (AADARI) v. Nicole Leavy, Township of Union, and Township of Union Police Department (the Union case), defendants appeal from the May 22, 2020 and July 24, 2020 trial court orders, which respectively ordered defendants to produce the requested records and granted plaintiff attorney's fees. In African American Data and Research Institute (AADARI) v. Madeline C. Medina, City of Bayonne Police Department, and City of Bayonne (the Bayonne case), plaintiff appeals from the trial court's July 24, 2020 order granting defendants' motion for reconsideration and vacating a prior award to plaintiff of attorney's fees. While these appeals were pending, the New Jersey Supreme Court issued an opinion in Simmons v. Mercado, 247 N.J. 24 (2021) that definitively resolved the issues before us. Therefore, we affirm the orders in the Union case.

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Docket No.: a4400-19
Decided: 2022-01-20
Caption: STATE OF NEW JERSEY v. MANUEL MEDINA
Status: Unpublished
Summary:
PER CURIAM Defendant Manuel Medina appeals from a July 10, 2020 order of the Superior Court, Law Division, finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breath sample, N.J.S.A. 39:4-50.2 and -50.4(a). We affirm.

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Docket No.: a0681-18
Decided: 2022-01-19
Caption: STATE OF NEW JERSEY v. RAMON VEGA
Status: Unpublished
Summary:
PER CURIAM Following a trial by jury, defendant was convicted of various controlled dangerous substances offenses based, in part, on police finding narcotics in defendant's residence while executing a knock-and-announce search warrant. At trial, the State also relied on surveillance video footage that showed numerous individuals entering and leaving defendant's property. Defendant appeals, arguing the judgment must be overturned because: the State's expert witness on narcotics distribution invaded the jury's province by conveying an opinion on defendant's state of mind; video footage was admitted into evidence in violation of N.J.R.E. 403 and 404(b); and the trial judge erred in denying defendant's motion to suppress evidence seized when officers failed to knock and announce their presence when executing a search warrant. Defendant also argues his sentence is excessive. We find no merit in these arguments and affirm.

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Docket No.: a0898-20
Decided: 2022-01-19
Caption: T.Z.S v. A.G.W.
Status: Unpublished
Summary:
PER CURIAM On October 22, 2020, defendant A.G.W. was denied physical custody of his children, a son born in 2003, and a daughter born in 2006, as well as an order authorizing him to remove them to his home in North Carolina. Plaintiff T.Z.S., the children's mother, has lived with them in New Jersey since approximately 2008. Defendant appeals on the basis that the judge did not interview the children, then aged sixteen and fourteen. We vacate the decision and remand for a new plenary hearing.

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Docket No.: a1270-20
Decided: 2022-01-19
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.A.S. (deceased and A.R.F., Jr
Status: Unpublished
Summary:
PER CURIAM After a four-day trial, the trial judge rendered findings of fact and conclusions of law and entered a judgment on December 22, 2020, terminating defendant A.R.F., Jr.'s parental rights to one child, A.R.F., III (Andy), 1 who was born in May 2018. 2 Defendant appeals, arguing: I. THE TRIAL COURT'S LEGAL CONCLUSION THAT [THE DIVISION] CLEARLY AND CONVINCINGLY PROVED PRONGS ONE [AND] TWO OF THE "BEST INTERESTS" TEST WAS IN ERROR: [THE DIVISION] FAILED TO DEMON- STRATE A CAUSAL CONNECTION BETWEEN [DEFENDANT'S] ACTIONS AND HARM OR IMMINENT RISK OF HARM TO [ANDY] AND THAT [DEFENDANT] WAS UNWILLING OR UNABLE TO ELIMINATE THAT HARM. II. THE TRIAL COURT'S LEGAL CONCLUSION THAT [THE DIVISION] CLEARLY AND CONVIN- CINGLY PROVED PRONG THREE OF THE "BEST INTERESTS" TEST WAS IN ERROR: [THE DIVISION] DID NOT PROVIDE "REASONABLE EFFORTS." III. THE TRIAL COURT'S LEGAL CONCLUSION THAT [THE DIVISION] CLEARLY AND CONVIN- CINGLY PROVED PRONG FOUR OF THE "BEST INTERESTS" TEST WAS IN ERROR: IT INCORRECTLY DETERMINED THAT TERMINA- TION OF [DEFENDANT'S] PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

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Docket No.: a1336-20
Decided: 2022-01-19
Caption: STATE OF NEW JERSEY v. MIRAJ PATEL
Status: Unpublished
Summary:
PER CURIAM In this appeal, we review for a fourth time defendant Miraj Patel's October 30, 2014 conviction, after a trial de novo, of driving while under the influence of intoxicating liquor (DWI), N.J.S.A. 39:4–50. Having considered defendant's arguments in light of the facts and applicable law, we affirm.

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Docket No.: a2388-19
Decided: 2022-01-19
Caption: STATE OF NEW JERSEY v. JOSE M. GONZALEZ
Status: Unpublished
Summary:
PER CURIAM Defendant Jose M. Gonzalez appeals the August 29, 2019 decision denying his post-judgment application to vacate his guilty plea. After our review of the record and relevant precedents, we affirm.

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Docket No.: a2452-20
Decided: 2022-01-19
Caption: D.L. v. J.A
Status: Unpublished
Summary:
PER CURIAM 1 We use initials to identify the parties to protect the identity of the victim. See R. 1:38-3(c)(12). Plaintiff D.L. appeals from an April 14, 2021 order dismissing a temporary restraining order (TRO) against defendant J.A. We reverse and remand in part.

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Docket No.: a3417-18
Decided: 2022-01-19
Caption: STATE OF NEW JERSEY v. JOSHUA CROSS
Status: Unpublished
Summary:
PER CURIAM After a seven-day jury trial, defendant Joshua Cross was found guilty of murder, N.J.S.A. 2C:11-3(a); conspiracy to commit murder, N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:11-3(a); aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4); and endangering the welfare of a child, N.J.S.A. 2C:24- 4(a).1 The trial judge sentenced defendant to an aggregate term of forty years, subject to parole ineligibility periods mandated by the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The sentence consisted of a custodial term of thirty years on the merged murder, conspiracy, and aggravated assault counts, plus a consecutive ten years for the child endangerment count. Defendant appeals his conviction and sentence on three grounds: (1) the court erred in not suppressing his confessions, transcripts of which were provided to the jury and one of which was played for the jury at trial; (2) the court should have rejected a consent order withdrawing defendant's earlier guilty plea because defendant contends he was under duress at the time; and (3) his sentence is excessive and disproportionate to the sentences imposed on the 1 Defendant also pled guilty to two controlled dangerous substance offenses, Indictment No. 12-06-1516, based on his possession of such when arrested. These convictions were not part of the trial, nor does he appeal them now. other three conspirators. For the reasons that follow, we affirm on the first and third issues, but lack jurisdiction to reach the second issue.

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Docket No.: a3787-19
Decided: 2022-01-19
Caption: MICHAEL COPPOLA v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: Unpublished
Summary:
PER CURIAM Petitioner Michael Coppola, an inmate at Bay State Prison, appeals from a May 6, 2020 final agency decision of the New Jersey Department of Corrections (DOC), which upheld an adjudication and sanctions for committing prohibited act $1.252, encouraging others to riot, N.J.A.C. 10A:4-4.1(a). Recently, another panel of this court decided a related matter arising from the same facts and circumstances.1 For substantially the same reasons as our colleagues, we vacate the determination and remand for further proceedings.

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Docket No.: a4024-19
Decided: 2022-01-19
Caption: STATE OF NEW JERSEY v. HUSSEIN R. DIGGS
Status: Unpublished
Summary:
PER CURIAM Defendant Hussein R. Diggs appeals from an April 23, 2020 order denying his pro se motion for a reduction or change of sentence under Rule 3:21-10. We affirm.

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Docket No.: a0770-20
Decided: 2022-01-18
Caption: T.M.H v. L.J.H
Status: Unpublished
Summary:
PER CURIAM Defendant L.J.H. 1 appeals from the final restraining order (FRO) entered against him on October 7, 2020, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant and plaintiff, T.M.H., are husband and wife. Plaintiff contends that Family Part Judge Lisa James-Beavers abused her discretion in finding that plaintiff's version of events was more credible than the version that he presented at the FRO trial. He also contends that the judge erred in finding that the FRO was needed to prevent further domestic violence. After carefully reviewing the record in light of the applicable legal principles, we conclude that the trial court properly considered the relevant facts and circumstances and affirm.

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Docket No.: a1369-20
Decided: 2022-01-18
Caption: SANDRA ROENING v. CITY OF ATLANTIC CITY
Status: Unpublished
Summary:
PER CURIAM Plaintiffs Sandra Roening and Robert Roening, wife and husband, appeal the Law Division's summary judgment order dismissing their personal injury action under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3, against defendants City of Atlantic City (the City) and Atlantic City Police Officer Rich Link.1 We affirm.

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Docket No.: a4019-19
Decided: 2022-01-18
Caption: JOHN MIGNONE v. BOARD OF TRUSTEES PUBLIC EMPLOYEES RETIREMENT SYSTEM -
Status: Unpublished
Summary:
PER CURIAM Appellant John Mignone appeals from a May 21, 2020 final agency decision by the Board of Trustees, Public Employees' Retirement System (Board) denying his request for ordinary disability benefits. We affirm.

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Docket No.: a4283-19
Decided: 2022-01-18
Caption: JEFFREY PARRELLA v. SIRIUS XM HOLDINGS, INC
Status: Unpublished
Summary:
PER CURIAM Plaintiff, in his individual capacity and on behalf of a putative class action, filed a complaint against defendants, satellite radio providers,1 alleging they falsely advertised discounts to induce consumers to reactivate their Sirius radio devices. Defendants moved to dismiss the action and compel arbitration under the parties' customer agreement (agreement). The trial court granted the motion, finding mutual assent to the arbitration clause was implied from plaintiff's "usage—payment, usage of [defendants'] service, [and] extended relationship history [with defendants] . . . ." Therefore, the arbitration agreement was enforceable. We affirm.

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Docket No.: a4435-19
Decided: 2022-01-18
Caption: CITY OF PLAINFIELD v. PBA LOCAL 19, PBA/SOA -
Status: Unpublished
Summary:
PER CURIAM The City of Plainfield appeals from two orders: a July 27, 2020 denial of the City's order to show cause seeking to set aside an arbitration award, and the August 10, 2020 confirmation of the award. The Policemen's Benevolent Association Local 19 (PBA) and PBA Local 19 Superior Officers Association (SOA) (collectively, the Union) filed unsuccessful grievances they took to arbitration regarding the City's 2018-2021 collective negotiation agreement (CNA) obligation to pay the health care expenses of certain retirees, their spouses, and dependents. The Union prevailed on behalf of retirees hired before May 21, 2010. We now affirm.

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Docket No.: a5524-18
Decided: 2022-01-18
Caption: STATE OF NEW JERSEY v. TINA LUNNEY
Status: Unpublished
Summary:
ACCURSO, J.A.D. A jury convicted defendant Tina Lunney of the first-degree murder of her eighty-one-year-old mother, whom she strangled with a necktie, and the judge sentenced her to forty years in State prison subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed the conviction and sentence on direct appeal, State v. Lunney, No. A-0774-13 (App. Div. Apr. 21, 2016), and the Supreme Court denied defendant's petition for certification, State v. Lunney, 227 N.J. 240 (2016).

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Docket No.: a0043-20
Decided: 2022-01-14
Caption: MIN WU v. PETER GESUALDO
Status: Unpublished
Summary:
PER CURIAM Plaintiffs Min Wu and Yongua Chen commenced this action seeking, among other things, a declaration that they and their predecessors successfully wrested away from defendants Peter, Giovanni, and Antonio Gesualdo – through adverse possession – title to a portion of defendants' abutting property by enveloping that portion with a post-and-rail fence for more than fifty years. After a bench trial, Chancery Judge James R. Paganelli found in defendants' favor, concluding that because the contested property was relatively small and far back from defendants' dwelling, the encroachment was not "clear and unequivocal and to such an extent as to be immediately visible" to defendants or their predecessors. In deferring to the judge's findings of fact and to his sound and logical conclusions about the significance of those facts, we affirm the dismissal of plaintiffs' complaint.

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Docket No.: a0408-20
Decided: 2022-01-14
Caption: JUSTIN MANLEY v. SUZANNE MANLEY
Status: Unpublished
Summary:
PER CURIAM In this post-judgment matrimonial matter, plaintiff Justin Manley appeals from a September 18, 2020 order granting a reconsideration motion filed by defendant Suzanne Manley. The judge reconsidered an April 3, 2020 order granting plaintiff's motion for discovery to determine whether plaintiff was entitled to modify or terminate alimony based on defendant's claimed cohabitation. On reconsideration, the judge concluded plaintiff failed to establish a prima facie showing of cohabitation and vacated the April 3, 2020 order allowing discovery. We affirm.

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Docket No.: a1603-19
Decided: 2022-01-14
Caption: STATE OF NEW JERSEY v. JOHN L. STURDIVANT 3rd
Status: Unpublished
Summary:
PER CURIAM Defendant John Sturdivant appeals from his jury trial conviction for eluding a police officer, N.J.S.A. 2C:29-2(b). This case arises from a traffic stop for speeding, during which a motorcyclist pulled over but then abruptly fled. At trial, defendant argued that he had been misidentified by the officer who made the stop. Defendant now contends for the first time on appeal that the trial judge inadequately instructed the jury on the special dangers of misidentification associated with (1) a single photo "show up" identification procedure and (2) an eyewitness' exposure to outside information. Defendant also contends that the trial court committed plain error when it misspoke while explaining to the jury how to evaluate the officer's level of confidence in his identification, inadvertently substituting the word "competence" for "confidence."

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Docket No.: a1604-20
Decided: 2022-01-14
Caption: IN THE MATTER OF J.R., AN ALLEGED INCAPACITATED PERSON
Status: Unpublished
Summary:
PER CURIAM In this guardianship action involving the parties' son, J.R. (Jerry), who has special needs, appellant S.R. (Sam) appeals from Probate Part orders awarding $126,332 in attorneys' fees and costs to respondent D.R. (Dana) and entering judgment against appellant in that amount. 1 We affirm.

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Docket No.: a2613-19
Decided: 2022-01-14
Caption: CRAIG SHEA v. PAUL J. LYDON
Status: Unpublished
Summary:
SMITH, J.A.D. After a non-jury trial in the Chancery Division, the trial court entered judgment for plaintiffs Craig and Carolyn Shea in a quiet title action. The court dismissed defendant Paul J. Lydon's counterclaim for adverse possession,1 finding that defendant did not meet his burden of proof. Plaintiffs sought the demolition and removal of defendant's garage. The trial court ordered alternative relief, making demolition of the garage expressly contingent upon the outcome of a separate Law Division action filed by plaintiffs. Plaintiffs appeal, contending the trial court erred by ordering alternative relief and not compelling defendant's unconditional removal of the encroachment. We affirm for the reasons set forth below.

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Docket No.: a2799-19
Decided: 2022-01-14
Caption: STATE OF NEW JERSEY v. FELIX RESTITULLO
Status: Unpublished
Summary:
PER CURIAM Defendant Felix Restitullo appeals from a February 3, 2020 order issued by Judge Patrick Arre transferring him to the custody of the United States Bureau of Prisons to serve his forty-year sentence on his federal convictions for production and possession of child pornography. Defendant contends that he did not consent to the transfer from the State facility at which he is presently incarcerated, the New Jersey Adult Diagnostic and Treatment Center (ADTC) (also known as "Avenel"). He also contends that the transfer will deprive him of the sex offender treatment he claims was promised as part of his guilty plea to aggravated sexual assault, N.J.S.A. 2C:14-2(a). We reject these contentions and affirm the transfer order substantially for the reasons explained in Judge Arre's oral decision on the record and his written opinion accompanying the order.

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Docket No.: a2828-20
Decided: 2022-01-14
Caption: FARYAL KHAWAJA v. MUHAMMAD BUTT
Status: Unpublished
Summary:
PER CURIAM In this non-dissolution matter, plaintiff Faryal Khawaja, the mother of E.M.,1 born in July 2019, appeals from an April 27, 2021 Family Part order denying her motion for reconsideration of a February 25, 2021 order, which addressed custody and parenting time. The judge ordered that the parties' then nineteen-month-old infant daughter E.M. could travel between plaintiff's home in Cherry Hill and Kansas City, Missouri, for parenting time with her father, defendant Muhammad Butt. Defendant moved to Clinton, Maryland, during the pendency of this appeal and claims the issues raised on appeal are now moot. For the reasons that follow, we dismiss the appeal.

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Docket No.: a3434-19
Decided: 2022-01-14
Caption: IN SIM HWANG v. SHAUNE M. GORDON
Status: Unpublished
Summary:
PER CURIAM In this auto-accident case, plaintiff appeals from an April 28, 2020 Law Division order granting summary judgment in favor of defendants and dismissing her complaint with prejudice. We reverse and remand.

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Docket No.: a0321-20
Decided: 2022-01-13
Caption: RALPH DYKE v. JOHN J. PISANO
Status: Unpublished
Summary:
PER CURIAM In this legal malpractice case, plaintiff Ralph Dyke appeals from a September 25, 2020 order granting summary judgment to defendants, his former attorneys, John J. Pisano and Steven H. Isaacson. The judge concluded that plaintiff's voluntary settlement of his personal injury lawsuit estopped his later claim that the attorneys' negligence compelled him to settle for less than the full value of his case. We affirm.

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Docket No.: a1340-18
Decided: 2022-01-13
Caption: STATE OF NEW JERSEY v. JERRY M. REYES
Status: Unpublished
Summary:
PER CURIAM Defendant Jerry M. Reyes appeals from a judgment of conviction for murder and related weapons offenses. Based on our review of the record in light of applicable law, we are convinced the cumulative effect of multiple errors committed before and during the trial rendered the trial unfair. Accordingly, we reverse defendant's convictions, vacate his sentence, and remand for further proceedings.

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Docket No.: a0452-20
Decided: 2022-01-12
Caption: IN THE MATTER OF REGISTRANT J.P.A
Status: Unpublished
Summary:
PER CURIAM J.P.A. appeals from a September 8, 2020 order classifying him as a Tier II registrant. We reverse and remand for further proceedings.

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Docket No.: a0748-20
Decided: 2022-01-12
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.J and P.J., and S.H. a/k/a S.H.R
Status: Unpublished
Summary:
PER CURIAM Defendant S.J. appeals from the October 27, 2020 judgment of guardianship terminating her parental rights to her children A.K., J.K., L.K., and S.K.1 Defendant contends the trial court erred in denying her motion to adjourn the trial in order to retain a new expert and in finding the New Jersey Division of Child Protection and Permanency (the Division) met its burden in proving the four prongs of N.J.S.A. 30:4C-15.1 by clear and convincing evidence. We affirm.

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Docket No.: a0949-20
Decided: 2022-01-12
Caption: 4 HIGHPOINT, LLC v. JOSEPH DURELLI
Status: Unpublished
Summary:
PER CURIAM In this ejectment action filed under N.J.S.A. 2A:35-1 to -3, defendants Joseph and Cheryl Durelli appeal from a November 16, 2020 Special Civil Part order that granted possession of a residential property located in Hamilton to the property's owner, plaintiff 4 Highpoint LLC, and directed the removal of defendants, during a moratorium against removal of evicted tenants and foreclosed owners under the Governor's Executive Order No. 106 (EO 106). On appeal, defendants specifically argue that their removal was contrary to EO 106 and that the trial court "lack[ed] jurisdiction." We conclude defendants' appeal is now moot because even if they were correct in their contentions on appeal, the moratorium they rely upon concluded on December 31, 2021.1 Even if it had not ended, we would affirm the challenged order because EO 106 was not applicable to ejectment actions and, in any event, the trial court correctly concluded that the removal of defendants was in the interest of justice under the circumstances presented.

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Docket No.: a2027-18
Decided: 2022-01-12
Caption: STATE OF NEW JERSEY v. WILLIAM FISH
Status: Unpublished
Summary:
PER CURIAM Defendant William Fish appeals from his convictions for reckless driving, N.J.S.A. 39:4-96, and operating an unregistered vehicle, N.J.S.A. 39:3-4. In April 2018, defendant was tried in municipal court and found guilty of both offenses by Judge Susan MacMullan. In a trial de novo on the record in the Law Division, Judge John M. Deitch also found defendant guilty of both offenses.

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Docket No.: a3207-18
Decided: 2022-01-12
Caption: STATE OF NEW JERSEY v. CARLOS D. CRUZ-MALLQUI
Status: Unpublished
Summary:
PER CURIAM Tried to a jury, defendant Carlos D. Cruz-Mallqui was convicted of second-degree robbery, N.J.S.A. 2C:15-1(a)(1), and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), 1 for his part in a December 17, 2016 "snatch- and-grab" robbery outside the victim's apartment complex in Ocean Township. After ordering the appropriate merger, the trial judge sentenced defendant to a six-year term of imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. On appeal, defendant maintains the post-arrest statements of his juvenile co-defendant, B.R., constituted inadmissible hearsay and were erroneously admitted by the trial judge following a mid-trial Gross 2 hearing. For the first time on appeal, defendant claims the lead detective improperly opined B.R. was not under the influence of Xanax or marijuana when he made his post-arrest statements. Defendant also belatedly challenges the omission of a portion of the model jury charge on identifications. In the alternative, defendant argues his sentence is excessive. We reject these contentions and affirm defendant's convictions and sentence.

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Docket No.: a3930-19
Decided: 2022-01-12
Caption: BRIAN BUTCH v. RICK CUTTRELL
Status: Unpublished
Summary:
PER CURIAM We have been advised that this matter has been amicably resolved and the parties have stipulated to the dismissal of this appeal. Accordingly, the appeal is dismissed with prejudice and without costs. Dismissed.

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Docket No.: a4360-19
Decided: 2022-01-12
Caption: SUNWAY EQUITY, LLC, v. SUBURBAN PROPANE, LP
Status: Unpublished
Summary:
PER CURIAM In this action arising from the environmental remediation of commercial property (the property) by defendant JM Sorge, Inc. (JMS), plaintiffs Sunway Equity, LLC (Sunway), Glenn T. Wertheim, and Gail Wertheim, who purchased the property from defendant Suburban Propane, LP (Suburban) about nine years after remediation was deemed completed, appeal the summary judgment dismissal of their complaint against JMS. We affirm the dismissal because: (1) the action was barred by the statute of limitations; and (2) if the action was not time-barred, JMS did not owe a duty to plaintiffs relative to its remediation of the property.

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Docket No.: a4792-18
Decided: 2022-01-12
Caption: JESSICA WATLEY v. LOUIS WATLEY
Status: Unpublished
Summary:
PER CURIAM Defendant Louis Watley appeals from a post-judgment Family Part order entered on June 14, 2019. We affirm.

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Docket No.: a0473-20
Decided: 2022-01-11
Caption: IN THE MATTER OF RICHARD HUFTEN'S APPLICATION FOR A PERMIT TO CARRY A HANDGUN IN THE MATTER OF THE REVOCATION OF RICHARD HUFTEN'S FIREARMS PURCHASER IDENTIFICATION CARD AND COMPELLING THE SALE OF HIS FIREARMS
Status: Unpublished
Summary:
PER CURIAM Petitioner Richard Huften applied to expand the scope of his permit to carry a firearm, which he utilized while working as a private security guard. During a hearing, Huften made certain admissions that suggested to the court and the prosecutor that Huften had already exceeded the scope of his carry permit while working. The prosecutor orally moved for the immediate revocation of Huften's Firearms Purchaser Identification Card (FPIC) and carry permit, and for the forfeiture and sale of all firearms in Huften's possession and in his home. The court granted the prosecutor's application, ordering the seizure, forfeiture, and sale of Huften's firearms. This appeal followed. Huften raises the following points for our consideration. I. THE COURT BELOW ERRED BECAUSE N.J.S.A. 2C:58-3F PROVIDES NO BASIS TO FORFEIT AND COMPEL SALE OF FIREARMS. II. THE COURT BELOW ERRED BY ORDERING SEIZURE AND FORFEITURE OF PETITIONER'S FIREARMS BECAUSE NEW JERSEYANS POSSESS FIREARMS PURSUANT TO CHAPTER 39 EXEMPTIONS AND PETITIONER IS NOT BARRED FROM POSSESSING FIREARMS UNDER CHAPTER 39 OR ANY OTHER STATUTE. III. COURT BELOW'S ORDER TO SEARCH AND COMPEL SALE OR DESTRUCTION OF FIREARMS ALREADY POSSESSED CONSTITUTES AN UNLAWFUL FORFEITURE ACTION AND OFFENDS EQUITY. A-0473-20 2 IV. PETITIONER WAS WRONGFULLY DENIED DUE PROCESS NOTICE REGARDING GOVERNMENT'S UNPRECEDENTED ORAL MOTION TO COMPEL SALE OF FIREARMS ALREADY POSSESSED AND THE COURT BELOW'S FORFEITURE ORDER. V. PETITIONER WAS DENIED DUE PROCESS NOTICE REGARDING GOVERNMENT'S UNPRECEDENTED ORAL MOTION TO REVOKE HIS NEW JERSEY FIREARMS PURCHASER IDENTIFICATION CARD (FPIC). VI. THE COURT BELOW ERRED BY REVOKING PETITIONER'S PERMIT TO CARRY A FIREARM – THAT WAS GRANTED BY THE COURT BELOW JUST TWO MONTHS PRIOR AND VALID FOR TWO YEARS – WHEN MERE AMENDMENT TO EXPAND THIS ACTIVE PERMIT WAS AT ISSUE AT THE HEARING BELOW. VII. THE COURT BELOW'S ORDER VIOLATES PETITIONER'S FUNDAMENTAL, INDIVIDUAL, CONSTITUTIONAL RIGHT TO KEEP ARMS AND SHOULD THEREFORE BE reversed.

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Docket No.: a3724-19
Decided: 2022-01-11
Caption: IN THE MATTER OF MICHAEL CHASE TOWNSHIP OF IRVINGTON
Status: Unpublished
Summary:
PER CURIAM Michael Chase became a police officer in 1975 and Chief of Police of the Township of Irvington (the township) in 2005. In 2012, two police officers filed an Internal Affairs (IA) complaint alleging, among other things, that on a few occasions Chase had ordered them to take his wife's car (the vehicle) to be repaired during work hours. The Essex County Prosecutor's Office (ECPO) began an investigation and videotaped the officers transporting the vehicle and picking it up the next day. Although ECPO found no basis for a criminal prosecution, they recommended the township administratively discipline Chase. Thereafter, the township filed disciplinary charges against Chase with respect to the vehicle repair and other matters. A hearing officer found Chase guilty on some of the charges. The hearing officer recommended the township terminate Chase because of his conduct. Chase filed an appeal with the Office of Administrative Law (OAL) and an administrative law judge (ALJ) conducted a hearing that spanned more than three years. The ALJ made an initial decision to sustain some charges and reject others, and recommended a six-month suspension, instead of termination. The Civil Service Commission (CSC) entered a final agency decision on May 1, 2020, affirming the ALJ's initial decision.

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Docket No.: a3931-18
Decided: 2022-01-11
Caption: STATE OF NEW JERSEY v. ALEXANDER J. CICCOLELLO, SR
Status: Unpublished
Summary:
PER CURIAM Defendant Anthony Ciccolello, Sr. appeals from his convictions and aggregate eight-year, extended term sentence that was subject to a four-year period of parole ineligibility, for having committed third-degree theft, N.J.S.A. 2C:20-3(a), and third-degree burglary, N.J.S.A. 2C:18-2(a)(1) at a motel room in Seaside Heights. On appeal, defendant argues POINT I THE COURT'S DENIAL OF EXCULPATORY DEFENSE WITNESSES VIOLATED [DEFENDANT'S] CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. POINT II THE COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO CHARGE THE JURY ON: (1) THE LESSER-INCLUDED OFFENSE OF CRIMINAL TRESPASS; AND (2) PRIOR CONTRADICTORY STATEMENTS OF WITNESSES. (NOT RAISED BELOW). A. THE COURT'S FAILURE TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF CRIMINAL TRESPASS WAS PLAIN ERROR. B. THE COURT'S FAILURE TO CHARGE THE JURY ON PRIOR CONTRADICTORY STATEMENTS OF WITNESSES WAS PLAIN ERROR. 2 A-3931-18 POINT III THE IMPROPER LAY-WITNESS OPINION TESTIMONY AS TO THE CONTENT OF THE SURVEILLANCE VIDEOS AND THE IDENTITY OF THE SUSPECTS WAS PLAIN ERROR. (NOT RAISED BELOW). POINT IV [DEFENDANT] WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL THROUGH THE TRIAL COURT'S ADMISSION OF THE FOLLOWING PRIOR-BAD-ACT EVIDENCE: (1) POLICE OFFICER TESTIMONY THAT THE OFFICER KNEW [DEFENDANT] FROM PREVIOUS ENCOUNTERS; (2) POLICE OFFICER TESTIMONY THAT [DEFENDANT] LIVED IN A "NOTORIOUS PROBLEM" AREA; AND (3) INTRODUCTION OF FINGERPRINT EVIDENCE WITHOUT THE APPROPRIATE LIMITING INSTRUCTION. (NOT RAISED BELOW). A. THE COURT IMPROPERLY ADMITTED TESTIMONY THAT DETECTIVE BLOOMQUIST KNEW [DEFENDANT] FROM PRIOR ENCOUNTERS. B. OFFICER PASIEKA'S TESTIMONY THAT DEFENDANT WAS IN A "NOTORIOUS PROBLEM" AREA WAS IRRELEVANT AND HIGHLY PREJUDICIAL. C. THE COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION ON FINGERPRINT EVIDENCE WAS PLAIN ERROR. 3 A-3931-18 POINT V THE CUMULATIVE EFFECT OF THE EVIDENTIARY AND INSTRUCTIONAL ERRORS NECESSITATES REVERSAL OF [DEFENDANT'S] CONVICTIONS. (NOT RAISED BELOW). POINT VI [DEFENDANT'S] SENTENCE IS EXCESSIVE BECAUSE THE COURT IMPROPERLY REJECTED MITIGATING FACTOR FOUR. We are not persuaded by any of defendant's contentions. For the reasons that follow, we affirm defendant's convictions and sentence.

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Docket No.: a4545-19
Decided: 2022-01-11
Caption: STATE OF NEW JERSEY v. THOMAS A. WALLACE
Status: Unpublished
Summary:
PER CURIAM Defendant Thomas A. Wallace appeals from a May 15, 2020 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

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Docket No.: a5248-18
Decided: 2022-01-11
Caption: IN THE MATTER OF REALLOCATION OF JUDICIARY CLERK 1, JUDICIARY CLERK 2 JUDICIARY ACCOUNT CLERK 1 COURT SERVICES REPRESENTATIVES AND JUDICIARY CLERK DRIVER FROM THE COMPETITIVE TO THE NON-COMPETITIVE DIVISION OF THE CAREER SERVICE
Status: Unpublished
Summary:
PER CURIAM The June 19, 2019 final agency decision of the Civil Service Commission (Commission) allowed the Judiciary, via the Administrative Office of the Courts (AOC or "agency"), a one-year interim reallocation of several entry-level support staff titles from the competitive to the noncompetitive division of the career service––exempting the titles from competitive examination hiring procedures––but denied the request for permanent reallocation of the titles. The AOC appeals, contending the decision was arbitrary, capricious, or unreasonable, arguing the Commission ignored substantial evidence, as well as its own prior decisions allowing for reallocation of entry-level job titles. Based upon the record on appeal, we remand so the Commission can explain why its June 19 decision differed from its decisions before and after that ruling.

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Docket No.: a1362-20
Decided: 2022-01-10
Caption: D.H. v. T.B
Status: Unpublished
Summary:
PER CURIAM 1 In accordance with Rule 1:38-3(d)(10), we identify the parties by initials. Defendant T.B. appeals from the final restraining order (FRO) entered against her on January 12, 2021, pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. We have carefully reviewed the record in view of the applicable legal principles and find that the trial court properly considered the relevant facts and circumstances. For the reasons that follow, we affirm.

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Docket No.: a3410-19
Decided: 2022-01-10
Caption: STATE OF NEW JERSEY v. SAMUEL GIBSON
Status: Unpublished
Summary:
PER CURIAM During a pretrial suppression hearing, the trial judge found credible a police officer who testified about his surveillance of a residence on Kennedy Boulevard in Jersey City on October 26, 2018. The officer observed a man, later identified as defendant, exit the residence and enter a Chevy Impala, which the officer observed as it came to a stop on Linden Avenue. The officer continued to watch as defendant exited his Impala, approached a Buick, and handed the Buick's driver "small objects in exchange for money." The officer acknowledged he did not know what defendant handed the Buick's driver, but he was certain he saw the Buick's driver hand money to defendant. When the two vehicles drove off, the officer directed his colleagues to stop the Buick because he believed he had just witnessed a narcotics transaction.

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Docket No.: a4379-19
Decided: 2022-01-10
Caption: STATE OF NEW JERSEY v. BELAL RAHIM
Status: Unpublished
Summary:
PER CURIAM Following a trial de novo in the Law Division, defendant Belal Rahim was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), and the court imposed the penalties for a second DWI conviction under N.J.S.A. 39:4- 50(a)(2).1 The incident occurred on February 10, 2019. On appeal, the sole issue presented by defendant is whether he should have been sentenced under the amended version of N.J.S.A. 39:4-50(a)(2), which became effective December 1, 2019, because he was not convicted and sentenced until January 23, 2020. In his brief, he contends: THE DECEMBER 1, 2019 AMENDMENTS TO THE [DWI] STATUTE SHOULD BE AFFORDED PIPELINE RETROACTIVITY. After reviewing the record, considering the contentions advanced on appeal and applicable law, we disagree and affirm.

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Tax Court Cases

Docket No.: 009365-19
Decided: 2022-01-19
Caption: SOLVAY SPECIALTY POLYMERS, LLC v. DIRECTOR, DIVISION OF TAXATION
Summary:
This letter opinion sets forth the court's ruling on plaintiffs' motions for partial summary judgment, 1 and defendant's cross motions for summary judgment. Plaintiffs request that the court (1) find N.J.A.C. 18:2-5.8(d)(3) and (4) invalid; (2) award plaintiffs a refund in the amount of $1155,028.20; and (3) vacate the defendant's refund offset as time barred by the statute of limitations. Defendant asks the court to uphold its Final Determination and validate the challenged regulations. For the reasons explained more fully below, the court upholds the validity of N.J.A.C. 18:2-5.8(d)(3) and (4), finds that there are genuine issues of material fact as to the refund claim, and vacates the refund offset as time barred.

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