Recent Decisions of the New Jersey Appellate Courts
from 2018-06-10 to 2018-06-24

Supreme Court Decisions


Docket No.: a_22_17
Decided: 2018-06-14
Caption: State v. Leo C. Pinkston
Summary:
Messano, P.J.A.D., the Appellate Division canvassed the CJRA and relevant case law and concluded that Edwards struck “the proper balance.” State v. Stewart, 453 N.J. Super. 55, 68 (App. Div. 2018). The defendant in Stewart sought to subpoena several police officers -- who allegedly saw him commit the offenses charged -- to testify at the detention hearing as to probable cause. Id. at 60. The trial court granted the request in part. Ibid. The Appellate Division reversed and set forth the following standards. Before a defendant may call an adverse witness “to rebut the State’s evidence of probable cause, the judge must first ask for a proffer regarding the witness’ anticipated testimony and its relevancy to the issue of probable cause, and how the anticipated testimony negates the State’s evidence already adduced at the hearing.” Id. at 69. To compel an adverse witness to appear on the issue of detention, “a defendant must make a proffer demonstrating how the anticipated testimony would rebut or diminish the otherwise clear and convincing evidence the State must produce.” Id. at 70. In both instances, the trial court has “significant discretion to compel the production of a witness.” Id. at 71. 14 V. We review the interpretation of a statute de novo. State v. S.S., 229 N.J. 360, 380 (2017). As noted earlier, we also look to case law that interprets the Bail Reform Act and the District of Columbia statute for guidance. Ingram, 230 N.J. at 205. The Legislature adopted the precise language used in both of those laws when it granted defendants “an opportunity . . . to present witnesses” at detention hearings. N.J.S.A. 2A:162- 19(e)(1); accord 18 U.S.C. § 3142(f)(2)(B); D.C. Code § 23- 1322(d)(4). We presume that the Legislature was aware of how other courts had interpreted that language -- namely, that the text did not afford defendants an absolute right to compel the testimony of adverse witnesses -- when it enacted the CJRA. See Maeker, 219 N.J. at 575. In light of the CJRA’s history, we agree with Stewart that the law provides defendants a qualified right to call witnesses at detention hearings. An alternative reading of the statute would have far- reaching consequences. An absolute right would mean that a defendant accused of rape, for example, could compel the victim to testify at a detention hearing in many instances. Undoubtedly, the victim would have information that bears on the nature and circumstances of the offense and the weight of the evidence. See N.J.S.A. 2A:162-20(a), (b). The same would be true in cases of attempted murder, robbery, aggravated assault, 15 and many other offenses. Yet there is no basis to believe the Legislature had that in mind when it drafted the CJRA. To the contrary, it borrowed language from other laws that stood for a very different approach. To determine the nature of the qualified right to present witnesses, we consider the different aspects of a typical detention hearing. Once again, the hearing has two components: the State must establish probable cause, unless there is an indictment, see N.J.S.A. 2A:162-19(e)(2), and must present clear and convincing evidence to justify detention, see N.J.S.A. 2A:162-18(a)(1). We address each in turn. To establish probable cause in the context of an arrest, courts examine whether the police had a “well-grounded suspicion that a crime has been committed” and that the defendant committed it. State v. Dickerson, 232 N.J. 2, 24 (2018) (citation and internal quotation marks omitted). “That showing calls for more than a mere suspicion of guilt but less evidence than is needed to convict at trial.” Ingram, 230 N.J. at 213-14 (citations and internal quotation marks omitted); see also Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983) (“[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”). That “is not a high bar.” District of Columbia v. Wesby, 583 U.S. ___, 138 S. Ct. 577, 586 (2018). 16 Traditionally, judicial officers have reviewed written affidavits to decide whether probable cause exists. See R. 3:3- 1(a)(1); R. 3:4-1(a)(2). Although defendants have a right to a hearing to determine probable cause under Rule 3:4-3(a), that hearing is not required by the Constitution. State v. Smith, 32 N.J. 501, 536 (1960); State v. Ingram, 449 N.J. Super. 94, 104 (App. Div.), aff’d, 230 N.J. 190 (2017). And in practice, probable cause hearings are rarely held. Today, under the CJRA, the State may proceed by proffer to establish probable cause at detention hearings. See Ingram, 230 N.J. at 213. According to the Administrative Office of the Courts, the State ordinarily does so. In essence, decisions about probable cause, both before and after the enactment of the CJRA, have routinely been made without live testimony. Ultimately, the question of probable cause presents judges with but one choice to make: either there is sufficient probable cause to proceed with a case, or there is not. Against that backdrop, as to the issue of probable cause, we find that before being allowed to call an adverse witness, a defendant must proffer how the witness’s testimony would tend to negate the State’s showing of probable cause. Suppose the State presents an affidavit with a straightforward set of facts that appear to establish probable cause. In practice, a defendant’s proffer would have to reveal 17 how the testimony of an adverse witness would tend to show that probable cause is lacking. Minor inconsistencies in a witness’s testimony, for example, might raise credibility questions but would not tend to negate the existence of probable cause. The same is true for immaterial facts. Undermining them could cast doubt on parts of the State’s presentation yet not tend to show that probable cause is absent. In other words, it is not enough for a defendant to proffer that a witness has evidence that may be relevant in some way; the proffered evidence must tend to negate probable cause. A more flexible standard is needed to decide when a defendant may call an adverse witness to challenge the State’s case for detention because that decision is more complex than determining probable cause. As to detention, both sides have the right to present information about the nature and circumstances of the offense, the weight of the evidence, the nature of the danger to the community, the risk of flight, and the risk of obstruction. See N.J.S.A. 2A:162-20(a), (b), (d), and (e). Those issues invite qualitative judgments, not “yes” or “no” answers. The test advanced by the Attorney General acknowledges that distinction. At the hearing, the State must shoulder its heavy burden of establishing grounds for detention by clear and convincing evidence. N.J.S.A. 2A:162-18(a)(1). If it fails to do so, the 18 CJRA calls for the defendant’s release, and there would be no need for further testimony by witnesses the defense might wish to call. If, on the other hand, the court tentatively believed the State had satisfied its burden, we conclude that the following standard should apply: Before being allowed to call an adverse witness on the issue of detention, a defendant must proffer how the witness’s testimony would tend to undermine the State’s evidence in support of detention in a material way. Thus, a defendant’s proffer must tend to reveal a good-faith basis to believe that the witness will testify favorably to the accused on an issue that is both relevant and material to the decision whether to detain the defendant. Stated otherwise, the proffer must tend to negate the propriety of detention. At the hearing, defendants may of course proceed by proffer and present relevant police reports and other documents to the court. N.J.S.A. 2A:162-19(e)(1).3 In many instances, that may well obviate the need to summon an adverse witness. Before being allowed to call a witness or victim whose testimony is already described in a police report or affidavit, a defendant would need to proffer why live testimony is needed as well. 3 The Appellate Division properly granted defendant’s motion to supplement the record with police reports in this case, which were plainly relevant. 19 The above standard would limit efforts to summon a witness to impeach her credibility on a non-material point, and would avert a fishing expedition for discovery. To be clear, after weighing a defense proffer, judges have discretion to accept and rely on the proffer, or not, and to compel an adverse witness to appear, or not. See Stewart, 453 N.J. Super. at 71. When a witness appears, trial courts also retain broad discretion to control the proceedings. Among other steps, judges may curtail questioning to avoid repetition and ensure that the testimony stays focused only on relevant issues; they can limit examinations to “protect witnesses from harassment or undue embarrassment,” see N.J.R.E. 611(a); and they can limit questions about a witness’s whereabouts for legitimate safety reasons. The above standards seek to balance a number of concerns. They are designed to enable defendants to challenge motions for pretrial detention and protect a vital liberty interest; to spare the State’s witnesses from the equivalent of a mini-trial shortly after an arrest; and to underscore the trial judge’s authority to control detention hearings. A judge’s decision whether to allow a defendant to compel an adverse witness to testify at a detention hearing is subject to review for abuse of discretion. See State v. S.N., 231 N.J. 20 497, 500 (2018). Here, because defendant pled guilty, we do not review the trial court’s decision to detain him pretrial. VI. For the reasons stated above, we find that defendants have a qualified right to call adverse witnesses at detention hearings, and we outline standards to guide that issue. Defendant’s appeal is dismissed as moot. JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion. 21

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Appellate Division PUBLISHED Decisions


Docket No.: a2546-16
Decided: 2018-06-14
Caption: BERNICE PISACK v. B & C TOWING, INC.
Status: published
Summary:
GILSON, J.A.D. These three appeals involve the non-consensual towing of vehicles and raise questions concerning the Predatory Towing 3 A-2546-16T4 Prevention Act (Towing Act), N.J.S.A. 56:13-7 to -23, the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and the Truth-In-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18. Accordingly, we issue a consolidated opinion to address the common questions presented by these appeals. Having reviewed the language and legislative history of the Towing Act and its implementing regulations, we hold that: (1) the Towing Act does not require the exhaustion of administrative remedies before the Division of Consumer Affairs (Division) or dispute resolution procedures established by municipalities that have towing ordinances; (2) the Tort Claims Act (TCA) does not provide immunity against claims based on the fees companies charge for non-consensual towing of vehicles; and (3) the Towing Act and its regulations limit the services for which a towing company can charge. We also hold that the TCCWNA applies to the non-consensual towing of vehicles because the bills issued by towing companies are contracts and notices within the definition of the TCCWNA. Finally, we hold that class actions may, in the right circumstances, be appropriate for claims under the Towing Act, the CFA, and the TCCWNA. Accordingly, we reverse the orders on appeal in each of these three cases and remand for further proceedings. Specifically, in Walker, we reverse a July 24, 2017 order granting summary judgment 4 A-2546-16T4 to defendants and remand for further proceedings; in Pisack, we reverse a January 13, 2017 order denying plaintiff's motion to certify a class and granting defendants' cross-motion for summary judgment, and we remand for further proceedings; and in Pellegrino, we reverse a June 5, 2017 order striking plaintiff's request to certify a class action and remand to allow class discovery. I. Each of these appeals involves certain common facts. None of the three named plaintiffs consented to the towing of their vehicles. Instead, the vehicles were towed from public roads at the direction of the police. Plaintiffs then were charged for the non-consensual towing of their vehicles by privately-owned towing companies that had contracts with the local municipalities to provide such towing and storage services. Beyond those common facts, the three cases arise out of different factual backgrounds and involve different procedural histories. Thus, we will summarize the relevant facts and procedural history of each case to give context to the issues. Walker In the early morning hours of December 29, 2012, Christopher Walker was driving his vehicle in River Edge when he was stopped by a police officer. The officer observed the vehicle was not registered. Thus, the officer issued Walker a summons and directed 5 A-2546-16T4 that the vehicle be towed and held until Walker registered the vehicle. Defendant All Points Automotive & Towing, Inc. (All Points Towing), which had a contract with River Edge, towed Walker's vehicle. Walker registered the vehicle later that same day, which was a Saturday, and tried to pick up the vehicle from All Points Towing before it closed for business at 1 p.m. Walker contends that the police authorized the release of his vehicle on December 29, 2012, but All Points Towing refused to release the vehicle to him because they were closing for the remainder of the weekend. In contrast, All Points Towing maintains that the police did not authorize the release of the vehicle until the following Monday, December 31, 2012. On December 31, 2012, Walker retrieved his vehicle, and All Points Towing charged him $290.85. Walker was given a bill that listed the charges as: Towing Charge $125; Storage $120; "Admin" $35; Tax $10.85; and Total $290.85. Walker paid the bill in cash without disputing the charges. In October 2013, Walker filed a complaint on behalf of himself and similarly situated individuals against All Points Towing and its owner. Walker alleged that the Towing Act did not permit an administrative charge for the non-consensual towing of a vehicle that was not involved in an accident. Walker contended that the 6 A-2546-16T4 administrative charge violated the Towing Act, the CFA, and the TCCWNA. Walker also asserted that All Points Towing unlawfully failed to release his vehicle after normal business hours as required by the Towing Act and its regulations. Thus, Walker asserted that a class action should be certified. The case effectively was stayed while Walker was on active military service. See R. 1:13-6. Following the completion of discovery, defendants moved for summary judgment. Walker had not filed a motion to certify the class. The trial court heard oral argument and, on July 24, 2017, issued a written opinion and entered an order granting defendants summary judgment. In Walker's case, the court granted defendants summary judgment on two grounds. First, the court found that Walker had failed to administratively resolve his dispute. In that regard, the court held that the Towing Act regulations required vehicle owners who disputed charges imposed by a towing company for non-consensual towing services to use good faith efforts to resolve the dispute before filing a lawsuit. The court also held that if those good faith efforts failed, the vehicle owner then must either go to the Division to seek reimbursement of the disputed amount, or avail himself or herself of the dispute resolution mechanisms established by the municipality. Second, the court reasoned that 7 A-2546-16T4 the administrative fee was allowed by the River Edge towing ordinance and, therefore, was a permitted fee. The trial court never addressed Walker's claim that defendant unlawfully failed to release his vehicle after hours. The trial court also did not clarify whether Walker could refile his lawsuit after he exhausted his administrative remedies. Pisack On June 25, 2013, the son of Bernice Pisack illegally parked her car on a public street in Newark. The Newark Police contacted B & C Towing, Inc. (B&C Towing) and directed it to tow Pisack's vehicle to its lot. B&C Towing had a contract with Newark to provide such towing services. Later that day, Pisack's son went to B&C Towing's lot and retrieved the vehicle. He was given a bill for $152.45, which listed the charges as: Towing $65; Labor (recovery) $25; Administrative Fee $50; Storage $10; and Tax $2.45. Under B&C Towing's contract with Newark, B&C Towing retained $25 of the administrative fee and remitted the remaining $25 to Newark. The son paid the bill without contesting the charges. In October 2013, Bernice Pisack filed a proposed class action against B&C Towing and its owners, alleging violations of the Towing Act, the CFA, and the TCCWNA. Specifically, Pisack challenged the labor charge and the administrative fee. 8 A-2546-16T4 B&C Towing moved to dismiss the complaint, but in an order entered on March 28, 2014, the trial court denied that motion. B&C Towing then filed an answer and asserted a third-party complaint against Newark. Thereafter, the claims against Newark were severed and transferred to another vicinage. Following discovery, Pisack filed a motion to certify the class, and B&C Towing cross-moved for summary judgment. After hearing oral argument on the motions, the trial court entered an order on January 13, 2017, granting summary judgment to defendants and denying plaintiff's motion as "moot." The court explained its reasons on the record and identified four grounds for its decision: (1) the TCCWNA was inapplicable because there was no contract between Pisack and B&C Towing; (2) Pisack failed to exhaust administrative remedies before pursuing a court action; (3) the fees charged by B&C Towing were permitted under Newark's towing ordinance; and (4) B&C Towing was entitled to derivative immunity under the TCA because the towing was performed at the direction of the police. Pellegrino On November 28, 2015, Eptisam Pellegrino was involved in a motor vehicle accident in East Rutherford. At the direction of the East Rutherford Police, Nick's Towing Service, Inc. (Nick's Towing), towed Pellegrino's vehicle. Three days later, Pellegrino 9 A-2546-16T4 contacted Nick's Towing to inquire about the charges related to the towing and storage services. She was informed that the charges totaled $448.36, and she authorized Nick's Towing to charge her credit card. Thereafter, Nick's Towing sent Pellegrino an itemized bill, which listed the charges as: Flatbed/Towing $125; Yard Charge $40; Crash/Collision Wrap $60; Credit Card Surcharge $13.06; Administrative Charge $40; Sweep Roadway/Cleanup $30; Storage Fee $120; and Sales Tax $20.30. In March 2017, Pellegrino filed a complaint on behalf of herself and similarly situated individuals against Nick's Towing and its owners. Pellegrino alleged that the yard charge, the credit card surcharge, the administrative charge, and the storage fee violated the Towing Act, the CFA, and the TCCWNA. Without engaging in discovery, defendants filed a motion to dismiss Pellegrino's complaint. Alternatively, defendants sought to deny class certification. The trial court heard oral argument and, on June 5, 2017, issued a written opinion and entered an order ruling that Pellegrino could pursue her claims only in her individual capacity and not on behalf of a class. The court also denied the remainder of the motion to dismiss. The court found that Pellegrino could not satisfy the standard for class certification because the questions of law and fact 10 A-2546-16T4 affecting the class did not predominate over those affecting individual members of the proposed class. We granted plaintiff's motion for leave to appeal the interlocutory order of June 5, 2017. II. To summarize, plaintiffs appeal from three orders. Walker appeals from a July 24, 2017 order granting summary judgment to defendants. Pisack appeals from a January 13, 2017 order denying class certification and granting summary judgment to defendants. On leave granted, Pellegrino appeals from a June 5, 2017 interlocutory order denying her request to certify a class and allowing her to proceed only on her individual claims. Collectively, the appeals raise four legal issues: (1) whether the Towing Act requires the exhaustion of administrative remedies and dispute resolution procedures before a civil suit can be filed in court; (2) whether towing companies that engage in non-consensual towing at the direction of the police are immune from liability under the TCA for claims related to the fees they charge; (3) whether the Towing Act limits the types of services for which a towing company can charge a fee for the non-consensual towing of a vehicle; and (4) whether the TCCWNA applies to the non-consensual towing of vehicles. The appeals also raise a fifth fact-based issue of whether certain claims for violations of the 11 A-2546-16T4 Towing Act, the CFA, and the TCCWNA can be pursued as class actions. To put these issues in context, we will start with an overview of the relevant statutes, which include the Towing Act, the CFA, and the TCCWNA. We will then address the four legal issues. Thereafter, we will analyze the class action issue. Finally, we will apply our holdings to each case and also discuss any issues specific to the individual cases. A. The Relevant Statutes 1. The Towing Act When enacting the Towing Act in 2008, the Legislature declared that it was "in the public interest to create a coordinated, comprehensive framework to establish and enforce minimum standards for tow truck operators." N.J.S.A. 56:13-8(e). The Legislature also declared that the purpose of the Towing Act was to prevent predatory towing practices, which included "charging unwarranted or excessive fees, . . . or overcharging consumers for towing services provided under circumstances where the consumer has no meaningful opportunity to withhold consent[.]" N.J.S.A. 56:13-8(b). The Towing Act primarily focuses on the towing of motor vehicles from private property and the non-consensual towing of motor vehicles from public roadways. See N.J.S.A. 56:13-9. The 12 A-2546-16T4 Towing Act defines "non[-]consensual towing" as "the towing of a motor vehicle without the consent of the owner or operator of the vehicle." Ibid. The Towing Act's regulations add that "'[n]on-consensual towing' includes towing a motor vehicle when law enforcement orders the vehicle to be towed whether or not the owner or operator consents." N.J.A.C. 13:45A-31.2. These appeals involve non-consensual towing of vehicles from public roadways. The Towing Act requires the Director of the Division of Consumer Affairs (Director) to establish, by regulation, a schedule of the services for which a towing company can charge fees in connection with the non-consensual towing of a motor vehicle. N.J.S.A. 56:13-14(a). The Towing Act also provides that the fees charged "shall be reasonable and not excessive" and defines "presumptively unreasonable and excessive" fees. N.J.S.A. 56:13-14(b). A fee is presumed to be unreasonable if it is more than twenty-five percent greater than fees charged to consumers who consent to the tow, or more than fifty percent higher than fees charged by towing companies in the municipality from which the vehicle was towed. Ibid.; N.J.A.C. 13:45A-31.5(a)(1) to (2). The Director has promulgated regulations establishing a schedule of permitted services for non-consensual towing and storage. Under the regulations, a towing company can charge fees for two types of tows: (1) a basic tow, and (2) a tow following 13 A-2546-16T4 an accident. N.J.A.C. 13:45A-31.4(a). A "[b]asic tow" is defined as the non-consensual towing of a vehicle that has not been involved in an accident and all "ancillary services," such as hooking up the vehicle to the tow truck, transporting the vehicle, and issuing documents for the release of the vehicle. N.J.A.C. 13:45A-31.2. Towing companies can charge only a flat fee for a basic tow. N.J.A.C. 13:45A-31.4(a)(1). When towing a vehicle involved in an accident, companies can charge for additional services listed in the regulations, provided that those services are "actually performed." N.J.A.C. 13:45A-31.4(a)(2). For example, a company can charge a flat "administrative fee" if the company's employees have to make more than three trips to the stored vehicle. N.J.A.C. 13:45A-31.4(a)(2)(xii). The Towing Act then declares that [i]t shall be an unlawful practice for any . . . towing company that provides non-consensual towing services: . . . (1) [t]o charge a fee for a . . . towing or related storage service not listed on the schedule of services for which a fee may be charged as established by the [D]irector except as may be permitted by the [D]irector by regulation; or (2) [t]o charge an unreasonable or excessive fee[.] [N.J.S.A. 56:13-16(f).] 14 A-2546-16T4 The Towing Act also states that any violation of its provisions "is an unlawful practice and a violation of [the CFA]." N.J.S.A. 56:13-21(a). The Towing Act further provides: In addition to any penalties or other remedies provided in [the CFA], the [D]irector may order a towing company that has billed a consumer for any non[-]consensual towing or related storage an amount determined by the [D]irector to be unreasonable to reimburse the consumer for the excess cost with interest. [N.J.S.A. 56:13-21(b).] Finally, the Towing Act imposes several requirements on towing companies. Those requirements include: (1) prescribed business hours for storage facilities so that owners can pick up their vehicles, including "reasonable accommodations for after-hours release of stored motor vehicles," N.J.S.A. 56:13-15(a)(1), (b); (2) record-keeping and making those records available to the Division, N.J.S.A. 56:13-17; and (3) maintaining minimum levels of liability insurance, N.J.S.A. 56:13-12. (a) The Amendment to the Powers of Municipalities to Regulate Towing Before the enactment of the Towing Act, municipalities had authority to adopt ordinances or resolutions to regulate towing companies. N.J.S.A. 40:48-2.49 to -2.54. Municipalities were authorized to: (1) establish "schedule[s] of fees or other charges" that towing companies could charge, N.J.S.A. 40:48-2.49(a); (2) 15 A-2546-16T4 designate a municipal officer or agency to enforce the ordinance or resolution, N.J.S.A. 40:48-2.49(c); and (3) adopt a procedure to receive complaints and resolve disputes arising from the towing and storage of motor vehicles, N.J.S.A. 40:48-2.54(b). When the Legislature enacted the Towing Act, it also amended the statutory authority of municipalities to regulate towing of motor vehicles. N.J.S.A. 40:48-2.49. Specifically, that amendment clarified that the Towing Act applied to all municipal towing ordinances and regulations. Ibid. In addition, the amendment stated that the charges for towing services established by municipalities were limited by the schedule of towing and storage services established by the Director under the Towing Act. Ibid. In that regard, N.J.S.A. 40:48-2.49 was amended to include the following provision: Nothing in this section shall be construed to authorize a municipality to establish charges for services that are not included in the schedule of towing and storage services for which a towing company may charge a service fee established by the Director of [the Division of] Consumer Affairs pursuant to [the Towing Act]. Nothing in this section shall be construed to exempt an operator from complying with the requirements of [the Towing Act]. 16 A-2546-16T4 2. The CFA As already noted, the Towing Act expressly states that any violation of that Act "is an unlawful practice and a violation of [the CFA]." N.J.S.A. 56:13-21(a). The CFA "provides relief to consumers from 'fraudulent practices in the market place.'" Lee v. Carter-Reed Co., 203 N.J. 496, 521 (2010) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 11 (2004)). It affords a consumer legal relief, equitable relief, treble damages, and counsel fees. N.J.S.A. 56:8-19. To proceed with a private cause of action under the CFA, a consumer must "show that the merchant engaged in an 'unlawful practice,' . . . and that [he or] she 'suffer[ed] [an] ascertainable loss . . . as a result of the use or employment' of the unlawful practice." Lee, 203 N.J. at 521 (quoting N.J.S.A. 56:8-2, -19). Thus, to obtain relief under the CFA, a consumer must prove: "1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss." Manahawkin Convalescent, LP v. O'Neill, 217 N.J. 99, 121 (2014) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009)); see also Dugan v. TGI Fridays, Inc., 231 N.J. 24, 51 (2017) ("An 'unlawful practice' contravening the CFA may arise from (1) an 17 A-2546-16T4 affirmative act; (2) a knowing omission; or (3) a violation of an administrative regulation."). An "ascertainable loss" is one that is "quantifiable or measurable" and not "hypothetical or illusory." Lee, 203 N.J. at 522 (quoting Thiedemann v. Mercedes-Benz, USA, LLC, 183 N.J. 234, 248 (2005)). Finally, the consumer need not prove reliance to establish causation under the CFA. Instead, "a consumer merely needs to demonstrate that he or she suffered an ascertainable loss 'as a result of' the unlawful practice." Ibid. (quoting N.J.S.A. 56:8-19). 3. The TCCWNA The TCCWNA applies to contracts, warranties, notices, and signs between a consumer and a "seller, lessor, creditor, lender or bailee." N.J.S.A. 56:12-15. Its purpose "is to prevent deceptive practices in consumer contracts by prohibiting the use of illegal terms or warranties in consumer contracts." Kent Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207 N.J. 428, 457 (2011). In enacting the TCCWNA, the Legislature "did not recognize any new consumer rights but merely imposed an obligation on sellers to acknowledge clearly established consumer rights and provided remedies for posting or inserting provisions contrary to law." Dugan, 231 N.J. at 68 (citation omitted); see also Shelton v. Restaurant.com, Inc., 214 N.J. 419, 432 (2013) (explaining that 18 A-2546-16T4 the TCCWNA's purpose was to strengthen the provisions of the CFA). A plaintiff bringing a claim under the TCCWNA must establish that he or she is an "aggrieved consumer," and the defendant violated a "clearly established legal right" or "responsibility." N.J.S.A. 56:12-15, -17; Dugan, 231 N.J. at 69. B. The Legal Issues Our standard of review of legal issues is de novo. Verry v. Franklin Fire Dist. No. 1, 230 N.J. 285, 294 (2017). Moreover, in Walker and Pisack, where the trial court granted summary judgment motions, we conduct a de novo review, using the same standard as the trial courts. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). Accordingly, we determine whether, viewing the facts in the light most favorable to the non-moving party, the moving party has demonstrated that there are no genuine disputes as to any material facts and, therefore, is entitled to judgment as a matter of law. R. 4:46-2(c); Davis, 219 N.J. at 405-06 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). 1. Whether the Towing Act Requires the Exhaustion of Administrative Remedies Defendants contend that before a vehicle owner can pursue a claim in court, he or she must exhaust his or her administrative remedies. Defendants then argue that the Towing Act authorizes 19 A-2546-16T4 the Director to order towing companies to reimburse consumers for unreasonable or excessive fees and costs. N.J.S.A. 56:13-21. Defendants also argue that the Towing Act authorizes the Director to establish regulations. Further, in those regulations the Director requires the parties to use "good faith efforts" to resolve a dispute, and if the parties are unable to reach a resolution, the Director may determine whether unreasonable fees were charged and order the towing company to reimburse the consumer with interest. N.J.A.C. 13:45A-31.4(f). In Walker and Pisack, the trial courts accepted that argument and held that plaintiffs had failed to exhaust their administrative remedies and, therefore, defendants were entitled to summary judgment. Neither court stated whether plaintiffs could refile their complaints after they exhausted the administrative remedies. The Towing Act does not mandate administrative remedies. The Towing Act itself uses only the word "may." N.J.S.A. 56:13-21(b). Specifically, the provision defining "unlawful practice" states: In addition to any penalties or other remedies provided in [the CFA], the [D]irector may order a towing company that has billed a consumer for any non[-]consensual towing or related storage an amount determined by the [D]irector to be unreasonable to reimburse the consumer for the excess cost with interest. [N.J.S.A. 56:13-21(b).] 20 A-2546-16T4 That language is permissive. Moreover, that is not the type of language the Legislature uses to require the exhaustion of administrative remedies before filing suit. See Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 588 (2013) (finding that the Legislature created two categories of disputes under an act by using the word "shall" to indicate mandatory alternative dispute resolution and "may" for permissive). Without specific statutory authority, the Director cannot create an administrative remedy that would foreclose plaintiff from pursuing a claim in court. See Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 12-13 (2009) (explaining that the head of an administrative agency "may exercise powers that are expressly granted by statute" and that, there, the Legislature granted the agency head "express authority to revoke, or to suspend, licenses"). Furthermore, the regulations under the Towing Act do not create mandatory administrative remedies. At one point in the regulations, the Director uses the word "shall," but later uses the word "may." N.J.A.C. 13:45A-31.4(f). Read in full context, that provision does not create mandatory administrative remedies. Instead, the regulatory provision encourages the parties to act in good faith to resolve any dispute and gives the Director the authority to order a towing company to reimburse the consumer for 21 A-2546-16T4 any unreasonable or excessive fees or charges. Specifically, the regulations provide: If a towing company charges a consumer a fee for a private property or other non-consensual towing service that is disputed by the consumer, the parties shall use good faith efforts to resolve the dispute. If the parties are unable to resolve the dispute and the Director determines the fee to be unreasonable under N.J.A.C. 13:45A-31.5, the Director may order the towing company to reimburse the consumer for an amount equal to the difference between the charged fee and a reasonable fee, plus interest, as calculated pursuant to [these regulations]. [N.J.A.C. 13:45A-31.4(f).] That regulatory language does not create administrative remedies that preclude an aggrieved vehicle owner from pursuing a claim in court. The word "shall" is used in connection with the direction that the vehicle owner and towing company use good faith efforts to try to resolve a dispute. There is no mandatory language requiring further administrative dispute resolution efforts. See Jersey Cent. Power & Light, 212 N.J. at 588 (quoting Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325 (2000), "Where a statutory provision contains both the words 'may' and 'shall,' it is presumed that the lawmaker intended to distinguish between them, 'shall' being construed as mandatory and 'may' as permissive."). 22 A-2546-16T4 In addition, the statutory provision that gives the Director the permissive –– "may" –– authority to order a reimbursement also states that it "is an unlawful practice and a violation of [the CFA]" to violate any provision of the Towing Act. N.J.S.A. 56:13-21(a). That statutory provision further provides that the Director's authority to order a reimbursement is "[i]n addition to any penalties or other remedies provided in [the CFA]." N.J.S.A. 56:13-21(b). Consequently, the Legislature contemplated that vehicle owners could file their CFA claims in court, and nothing in the Towing Act or its regulations limits that right. 2. Whether Towing Companies Have Derivative Immunity Under the TCA In Pisack, the trial court held that the towing company and its manager and owner had derivative immunity under the TCA. The court reasoned that because the towing company was directed by the Newark Police to tow plaintiff's illegally parked car, the towing company was effectively "deputized under the law" to perform a governmental function and, therefore, was afforded immunity under the TCA. We disagree. The TCA creates certain limited exceptions to the sovereign immunity enjoyed by governmental entities. Vanchieri v. N.J. Sports & Exposition Auth., 104 N.J. 80, 85-86 (1986). Accordingly, the TCA applies to governmental entities and their employees. It 23 A-2546-16T4 expressly excludes "independent contractors" from the definition of employees. N.J.S.A. 59:1-3. The TCA applies to private entities in limited circumstances only where those private entities act under the control and supervision of a public entity to perform a governmental service. Vanchieri, 104 N.J. at 86; Crystal Ice-Bridgeton, LLC v. City of Bridgeton, 428 N.J. Super. 576, 586 (App. Div. 2012). Here, Pisack is not complaining about the authority of the police to move her illegally parked car. Instead, she complains about certain of the towing charges. The police did not supervise the towing charges. Moreover, the municipal ordinance allowing towing and storage charges does not insulate from challenge a towing company's actual charges. Indeed, the statute that authorizes municipalities to regulate towing services requires each municipality to provide a dispute resolution procedure, effectively recognizing that towing companies will sometimes overcharge or charge for services that are not permitted. N.J.S.A. 40:48-2.54. Furthermore, Pisack did not sue Newark. She sued a privately-owned towing company that charged her for towing her car.1 1 As previously noted, B&C Towing's third-party complaint against Newark was severed. Hence, the order on appeal did not address that complaint, and did not address the $25 administrative fee 24 A-2546-16T4 In the Towing Act, the Legislature expressly stated that a violation of that Act "is an unlawful practice and a violation of [the CFA]." N.J.S.A. 56:13-21(a). Accordingly, the Legislature recognized that vehicle owners could pursue claims for violations of the Towing Act. The Legislature did not address sovereign immunity or the TCA in the Towing Act. To accept the argument that towers are protected by sovereign immunity would render the Towing Act inapplicable any time the police directed a vehicle to be towed. Such a construction would be inconsistent with the plain language of the Towing Act and undermine its purpose, and is not required by the TCA. Thus, we hold that there is no derivative immunity under the TCA for alleged violations of the Towing Act committed by a privately-owned towing company. 3. Whether the Towing Act Limits the Types of Services for Which a Towing Company Can Charge a Fee As already noted, the Towing Act requires the Director to establish a "schedule" of towing and related storage services for which a towing company may charge a fee in connection with non-consensual towing. N.J.S.A. 56:13-14. The Towing Act then provides that it is an "unlawful practice" for any towing company that B&C Towing collected on behalf of Newark, as opposed to the fee the company collected as its own charge. Hence, we also do not address Newark's administrative fee, an issue not before us. 25 A-2546-16T4 to charge a fee "not listed on the schedule of services" established by the Director. N.J.S.A. 56:13-16(f)(1). The Director has issued a schedule of permitted services. N.J.A.C. 13:45A-31.4. That schedule provides: (a) A towing company that engages in . . . non-consensual towing may charge fees for the following services: 1. Basic tow, which shall be a flat fee; and 2. In the case of a motor vehicle involved in an accident the following additional services, if actually performed: i. Waiting time in excess of 15 minutes, which shall be calculated based upon each 15 minutes spent at the site from which a motor vehicle will be towed, with fewer than 15 minutes rounded up to 15; ii. Brush cleaning, including collection of debris that can be picked up by hand, which shall be a flat fee; iii. Site clean-up, which shall be calculated based upon the number of bags of absorbent used; iv. Winching, which shall be based upon each one-half hour spent performing winching; v. The use of window wrap, which shall be a flat fee; vi. Tarping, which shall be a flat fee; 26 A-2546-16T4 vii. Transmission disconnect, a flat fee, which shall be charged only if a motor vehicle is locked and the towing company is unable to obtain the keys for the motor vehicle; viii. Use of a flat bed tow truck, a flat fee, which shall be charged if a motor vehicle can be transported only by a flat bed tow truck; ix. Use of special equipment other than the first tow truck to recover a motor vehicle that cannot be recovered by winching or pieces of a motor vehicle that cannot be moved by hand, which may be both a labor and an equipment charge billed in half-hour increments; x. Decoupling; xi. Storage at a towing company's storage facility; xii. More than three trips to the motor vehicle in storage, which may be invoiced as an administrative fee, which shall be a flat fee; and xiii. Releasing a motor vehicle from a towing company's storage facility after normal business hours or on weekends, which shall be a flat fee. [N.J.A.C. 13:45A-31.4(a).] The regulations also provide that a towing company may charge for "tolls it incurs driving to the site from which a motor vehicle will be towed and while towing the motor vehicle from that site 27 A-2546-16T4 to the towing company's storage facility." N.J.A.C. 13:45A-31.4(c). Finally, the regulations state that "[a] towing company shall not charge any fee for . . . non[-]consensual towing and related storage services not included in [the schedule] above." N.J.A.C. 13:45A-31.4(e). In short, if a service is not listed on the Director's schedule, a towing company cannot charge for that service. In addition, any fee for a permitted service must be charged consistent with the requirements and limitations in the Towing Act and its regulations. 4. Whether Plaintiffs Can Pursue Claims Under the TCCWNA The parties dispute whether the vehicle owners were consumers within the meaning of the TCCWNA. The parties also dispute whether the bills issued by defendants constitute a "consumer contract" under the TCCWNA. A "consumer" is defined under the TCCWNA as "any individual who buys, leases, borrows, or bails any money, property or service which is primarily for personal, family or household purposes." N.J.S.A. 56:12-15. "[New Jersey] courts have examined the interaction between the parties and the nature of the contract or other writing in order to determine whether a plaintiff is entitled to relief under the TCCWNA." Dugan, 231 N.J. at 69. 28 A-2546-16T4 Here, the vehicle owners meet the definition of a consumer. The Legislature defined a vehicle owner under the Towing Act as a "consumer." See N.J.S.A. 56:13-9 ("'Consumer' means a natural person. . . . 'Towing' means the moving or removing . . . of a consumer's motor vehicle that is damaged as a result of an accident or . . . is parked illegally or otherwise without authorization . . . ."); N.J.S.A. 56:13-21(b) (authorizing the Director to order a towing company to reimburse a "consumer" for unreasonable towing charges). Like the Towing Act, the TCCWNA is remedial legislation intended to protect consumers. It is therefore logical to give a consistent construction to terms used in both statutes. Accordingly, if vehicle owners are consumers under the Towing Act, they also should be considered consumers under the TCCWNA. Furthermore, the word "bails" is applicable to a vehicle owner. A bailment is "a delivery of personal property by one person (the bailor) to another (the bailee)." Black's Law Dictionary 136 (7th ed. 1999). In addition, a "bailee" is someone "who receives personal property from another as a bailment." Ibid. While a bailment is generally established by a contract, a bailment can be created without a formal written contract. See McGlynn v. Parking Auth. of Newark, 86 N.J. 551, 556-59 (1981) (discussing bailments and reasoning that the better approach is to focus on the relationship of the parties in defining the rights and duties 29 A-2546-16T4 of the parties). Consequently, when towing companies take a vehicle, they are doing so as bailees and vehicle owners are consumers as defined by the TCCWNA. The TCCWNA does not define "consumer contract." Our Supreme Court, however, has looked to the Plain Language Act, N.J.S.A. 56:12-1 to -13, for an applicable definition. Shelton, 214 N.J. at 438. Under the Plain Language Act, a "[c]onsumer contract" includes "a written agreement in which an individual . . . [c]ontracts for services including professional services . . . [or] [e]nters into a service contract . . . for cash or on credit and the money, property or services are obtained for personal, family or household purposes." N.J.S.A. 56:12-1. Significantly, that definition "includes writings required to complete the consumer transaction." Ibid. The TCCWNA is "entitled to a broad interpretation to facilitate its stated purpose." Shelton, 214 N.J. at 442. Accordingly, the writing need not be formally labeled as a contract, warranty, notice, or sign to fall within the TCCWNA's ambit. In Shelton, the Court considered whether "a printed announcement" on restaurant gift certificates relating to "the use of the certificates" brought "the transaction within the scope of the TCCWNA." Id. at 441-42. In that regard, the Court concluded 30 A-2546-16T4 that the printed announcement was a "notice" as contemplated by the TCCWNA. Id. at 442. The bills issued by the towing companies are consumer contracts and notices within the meaning of the TCCWNA. The regulations to the Towing Act assume that towing companies will issue a "bill" for non-consensual towing services, and that bill "shall include a list of all services provided." N.J.A.C. 13:45A-31.4(i) to (k). Moreover, the regulations require towing companies to keep "[i]nvoices . . . for non-consensual towing services" for three years. N.J.A.C. 13:45A-31.9(a)(1). Accordingly, those bills and invoices act as the "writings required to complete the consumer transaction." N.J.S.A. 56:12-1. Indeed, a vehicle owner given such a bill will rely on that bill as the justification for the services charged. The inclusion of prohibited charges in the bill "deceives a consumer into thinking that they are enforceable." Dugan, 231 N.J. at 68 (citation omitted). Charges not permitted by the Towing Act violate a "clearly established legal right" or "responsibility." Finally, if the vehicle owner paid for unauthorized services, the owner has suffered an ascertainable loss. Accordingly, towing bills with prohibited charges are the type of deceptive consumer transaction that the Legislature aimed to prevent under the TCCWNA. 31 A-2546-16T4 5. Whether Plaintiffs Have Asserted Certain Claims That Can Be Pursued As Class Actions Rule 4:32-1 sets forth the requirements for class certification. New Jersey courts have "consistently held that the class action rule should be liberally construed." Dugan, 231 N.J. at 46 (quoting Lee, 203 N.J. at 518). To certify a class, there are "four initial requirements, frequently termed 'numerosity, commonality, typicality and adequacy of representation.'" Id. at 47 (quoting Lee, 203 N.J. at 519). Specifically, Rule 4:32-1(a) provides: One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. If those initial requirements are satisfied, the court then considers whether "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." R. 4:32-1(b)(3). Predominance exists if "the proposed class is 'sufficiently cohesive to warrant adjudication by representation.'" Dugan, 231 32 A-2546-16T4 N.J. at 48 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 108 (2007)). To establish predominance, however, a "plaintiff does not have to show that there is an 'absence of individual issues or that the common issues dispose of the entire dispute,' or 'that all issues [are] identical among class members or that each class member [is] affected in precisely the same manner.'" Lee, 203 N.J. at 520 (alterations in original) (quoting Iliadis, 191 N.J. at 108-09). Depending on the facts developed after discovery, violations of the Towing Act, as well as the related claims under the CFA and the TCCWNA, may be appropriate for class certification. For example, claims against a towing company that uniformly charges a relatively modest fee for a service or services not permitted under the Towing Act and its regulations, may be well suited for class certification. One consumer may not think it worthwhile to pursue such a claim, but if there are hundreds of such aggrieved consumers, a class may be appropriate. See, e.g., Bosland, 197 N.J. at 560-61 (explaining that the CFA affords a remedy for plaintiffs of a class with "nominal" claims that otherwise "might go unvindicated"). 33 A-2546-16T4 C. The Application of Our Holdings to Each Case 1. Walker In Walker, the trial court granted summary judgment to defendants on the grounds that plaintiff failed to exhaust his administrative remedies and failed to use the dispute resolution procedures afforded by the Director or the municipality. Since we hold that those administrative procedures are not mandatory, we reverse the July 24, 2017 order granting summary judgment to defendants. We remand for further proceedings. The trial court also held that the $35 administrative fee, challenged by plaintiff, was permissible under the municipality's towing ordinance. Walker's vehicle was not involved in an accident; rather, his vehicle was towed after he was stopped and the police observed that his vehicle was not registered. Under the Towing Act's regulations, an administrative fee is only permitted if a vehicle is towed after an accident and then only if employees of the towing company make more than three trips to the vehicle in storage. N.J.A.C. 13:45A-31.4(a)(2)(xii). Moreover, a municipality does not have the authority to allow charges for services that are not listed under the Towing Act's regulations. See N.J.S.A. 40:48-2.49. Thus, defendants were not permitted to charge an administrative fee, and that charge violated the Towing Act, the 34 A-2546-16T4 CFA, and the TCCWNA. On remand, we direct that summary judgment be granted in favor of plaintiff on those individual claims. Walker also asserted that defendants unlawfully failed to release his vehicle after normal business hours as required by the Towing Act and its regulations. The trial court did not address that issue; it shall address the merits on remand. We further direct that Walker be permitted to file a motion to certify a class. Since no record was developed on that issue, we do not address whether a class should be certified. 2. Pisack In Pisack, the trial court granted summary judgment to defendants on four grounds: (1) the TCCWNA was inapplicable because there was no contract between Pisack and B&C Towing; (2) Pisack failed to exhaust administrative remedies before pursuing a court action; (3) the fees charged by B&C Towing were permitted under Newark's towing ordinance; and (4) B&C Towing was entitled to derivative immunity under the TCA. We reverse the January 13, 2017 order granting summary judgment to defendants. We hold that the TCCWNA is applicable and plaintiff can pursue a claim under that Act. We also hold that plaintiff did not have to exhaust administrative remedies and that B&C Towing and its owners were not entitled to derivative immunity under the TCA. We 35 A-2546-16T4 also reverse the trial court's decision that the fees charged by B&C Towing were permitted under Newark's towing ordinance. With regard to the fees charged, Pisack challenged the administrative fee and labor charge. The Towing Act and its regulations only permit a labor charge for a tow following an accident, in which "special equipment" was used to tow the vehicle, or the vehicle was not able to be "recovered by winching." N.J.A.C. 13:45A-31.4(a)(2)(ix). Further, as already noted, the Towing Act's regulations permit an administrative fee only if a vehicle is towed after an accident. Pisack's vehicle was towed because it was parked illegally. Thus, both the labor charge and the administrative fee were charged in violation of the Towing Act, the CFA, and the TCCWNA. Moreover, Newark, as a municipality, does not have the authority to allow a charge for services that are not listed under the Towing Act's regulations. N.J.S.A. 40:48-2.49. We, therefore, remand with the direction that summary judgment be entered in favor of Pisack on those individual claims. The trial court in Pisack never addressed the question of class certification. Instead, the court denied plaintiff's motion as "moot" because the court had granted summary judgment to defendants. We, therefore, also remand this matter with the direction that the court address plaintiff's motion for class 36 A-2546-16T4 certification on the merits. As that issue was not addressed, we express no view as to whether a class should be certified. 3. Pellegrino In Pellegrino, the trial court entered an order holding that plaintiff could pursue her claims only in her individual capacity and not on behalf of a class. Because that decision was made before Pellegrino was permitted to take any discovery, including class-related discovery, we reverse the portion of the June 5, 2017 order dismissing plaintiff's claims for a class action. We remand with the direction that the court permit class-related discovery and then allow Pellegrino to file a motion for class certification. Again, because no record was developed, we do not decide whether a class should be certified. Because we are remanding the claims in Pellegrino, we give some guidance on the disputed charges. Plaintiff challenges the yard charge, credit card surcharge, administrative fee, and storage fee overcharge. The Towing Act and its regulations do not permit a "yard charge" or a "credit card surcharge." Thus, those charges are violations of the Towing Act, the CFA, and the TCCWNA. Pellegrino was involved in an accident, and thus an administrative fee and storage fee can be charged, provided the services were "actually performed" in compliance with the Towing Act's regulations. N.J.A.C. 13:45A-31.4(a)(2). Accordingly, on 37 A-2546-16T4 remand the parties will need to engage in discovery concerning those fees. In summary, all three orders on appeal are reversed and the matters are remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 38 A-2546-16T4

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Docket No.: a4041-11
Decided: 2018-06-13
Caption: STATE OF NEW JERSEY v. J.T.
Status: published
Summary:
FUENTES, P.J.A.D. 1 We use initials or pseudonyms to refer to defendant and the victims of these crimes pursuant to Rule 1:38-3(c)(9) and N.J.S.A. 2A:82-46(b). Defendant J.T. was indicted by a Bergen County Grand Jury and charged with the murder of her husband, M.T., N.J.S.A. 2C:11- 3(a)(1)-(2) (count one); first degree attempted murder of her minor daughter, K.T. (Karen), N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11- 3(a)(1)-(2) (count two); second degree endangering the welfare of Karen, N.J.S.A. 2C:24-4 (count three); second degree endangering the welfare of her minor son, A.T. (Angel), N.J.S.A. 2C:24-4 (count four); and third-degree terroristic threats against Karen and Angel, N.J.S.A. 2C:12-3(b) (count five). These charges arise from events that occurred on March 29, 2009. The indictment also charged defendant with two crimes that allegedly occurred on an unspecified date between November 12, 2008 and March 1, 2009: first degree attempted murder of Karen, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count six); and second degree endangering the welfare of Karen, N.J.S.A. 2C:24-4 (count seven). On December 28, 2011, the jury acquitted defendant of murder, but found her guilty of the lesser included offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a). The jury also found defendant guilty of all of the remaining counts in the indictment. On February 29, 2012, the trial judge sentenced defendant to a term of thirty years, with an eighty-five percent period of parole ineligibility and five years of parole supervision, as mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a term of 2 A-4041-11T4 ten years on count two, attempted murder of Karen, subject to NERA; and five-year terms on counts three and four, endangering the welfare of Karen and Angel. The judge ordered all of the sentences imposed on these offenses to run consecutive, resulting in an aggregate term of fifty years, subject to the parole restrictions of NERA. On the remaining counts, the judge imposed concurrent terms of imprisonment as follows: a five-year term on the conviction of third degree terroristic threats; a ten-year term on the conviction of first degree attempted murder of Karen prior to March 29, 2009; and a five-year term on the conviction for second degree endangering the welfare of Karen prior to March 29, 2009. The central issue in this appeal does not concern whether defendant actually engaged in the conduct that led to this criminal prosecution. Defendant admitted she suffocated her husband and then attempted to suffocate her children. The question before the jury was whether defendant was legally insane at the time she engaged in this conduct. The jury found defendant was legally sane and therefore criminally culpable. In this appeal, defendant raises the following arguments: Point I MULTIPLE IRREGULARITIES INVOLVING THE JURY REQUIRE THAT DEFENDANT'S CONVICTION BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL. 3 A-4041-11T4 a. The method of jury selection was neither random nor conducted in a manner consistent with [N.J.S.A.] 2B:23-2. b. [Defendant's] due process rights were violated when the [c]ourt addressed the jury pool in her absence. c. The misconduct of two jurors, and the [c]ourt's thoroughly inadequate ex parte voir dire of them, prejudiced [d]efendant, resulting in a denial of due process and require reversal. d. The [c]ourt below erred in failing to declare a [m]istrial. Point II VARIOUS ERRORS REGARDING THE TESTIMONY OF DR. STEVEN SIMRING REQUIRE REVERSAL. a. Dr. Simring impermissibly opined on the ultimate issue of guilt, thus requiring that [d]efendant's conviction be reversed. ([N]ot raised below). b. The violation of the sequestration order by the State's expert requires reversal of [d]efendant's conviction. Point III VARIOUS ERRORS REGARDING THE TESTIMONY OF STATE WITNESS, [DEFENDANT], PREJUDICED DEFENDANT, THUS REQUIRING HER CONVICTION TO BE VACATED AND THE MATTER REMANDED FOR A NEW TRIAL. a. Summary of [defendant's] trial testimony. b. Multiple errors regarding the video and transcript of [defendant's] statement of March 29, 2009 require [d]efendant's conviction to 4 A-4041-11T4 be vacated and the matter remanded for a new trial. c. The procedure employed by the [c]ourt below violated [defendant's] Sixth Amendment right to confrontation. d. Prosecutorial misconduct requires that [defendant's] conviction be vacated and a new trial [o]rdered. Point IV CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL. Point V THE SENTENCE IMPOSED BY THE COURT BELOW IS EXCESSIVE. a. The [c]ourt below failed to credit [defendant] with all applicable mitigating factors. b. Concurrent sentences should have been imposed. c. The [c]ourt below erred in failing to sentence [d]efendant as if convicted of offenses one degree lower. In light of the record developed at trial, we reverse defendant's conviction and remand this matter for a new trial. The record shows the prosecutor asked the expert witness to define "legal insanity." This question required the State's expert to improperly opine on defendant's state of mind, stating that defendant had "the specific intent" to kill her husband. This opinion testimony usurped the jury's exclusive role to decide this 5 A-4041-11T4 critical factual issue, rendering any verdict tainted by it unsustainable. State v. Cain, 224 N.J. 410, 424 (2016). Although this issue is before us as a matter of plain error under Rule 2:10-2, we are satisfied that this testimonial evidence is "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Although not outcome determinative, this opinion also includes a detailed description and analysis of the trial judge's ex parte interactions with a pool of prospective jurors. We have taken the time to do this because there are no reported decisions by any court in this State addressing this particular issue. I The Incident Defendant worked as a computer programmer at the New Jersey Institute of Technology (NJIT); her husband M.T. was primarily responsible for the rearing of their children as a stay-at-home father. The couple's two children, Karen and Angel, were fifteen and ten years old respectively at the time of their father's death. In early November 2008, M.T. suffered a stroke that caused severe physical and cognitive impairments and left him unable to care for himself. Witnesses familiar with the family uniformly testified that before M.T.'s stroke, the couple appeared to have a good relationship, and the family was close and enjoyed spending 6 A-4041-11T4 time together. The children's testimony corroborated these impressions of familial harmony. Karen described her father as humble, "very kind and modest," and defendant as caring, strong and "very hardworking." Both children described defendant as a "good mom" who rarely yelled and never resorted to corporal punishment. On November 21, 2008, M.T. was discharged from the hospital and transferred to the Kessler Rehabilitation Center (Kessler), where he remained until January 6, 2009, when he was thereafter transferred to Maple Glen Care Center (Maple Glen). Soon after, defendant's insurance company issued a "cut letter," advising that it would not cover M.T.'s stay at Maple Glen beyond February 11, 2009.2 By all accounts, defendant soon became overwhelmed by the responsibilities of being her husband's sole caretaker, the family's sole wage earner, and the de facto single-parent of two children. She was especially distressed after she learned that M.T. was not eligible to receive social security benefits. This required her to "spend down" the family's assets by $81,000 before 2 At trial, the admissions director at Maple Glen explained that an insurance company issues a "cut letter" when it determines that a patient has maximized the benefits of his or her stay at a rehabilitation center and is unlikely to progress any further. 7 A-4041-11T4 M.T. could receive Medicaid.3 Witnesses who knew defendant testified that she worried incessantly about her husband's medical expenses and feared that they would consume all of the family's resources, leaving nothing left to cover the cost of the children's college education. Defendant's work supervisor, David Ullman, referred her to the Employee Assistance Program (EAP) for counseling because he believed she was "at the end of [her] rope." Ullman testified that defendant would talk to him about dying and seemed like she was "giving up." Karen and Angel testified that their mother changed from being a "very strong" person to being "really depressed, and not really herself." Karen testified that she saw her mother's mental state deteriorate over time; she acted "mad" and "crazy." Karen provided the following description of her observations of her mother's melancholic disconnection: There was a time when -- it's like later in the time period before the incident, she -- she was talking -- not saying the word, but she was talking about being suicidal. There was a time when she just . . . wanted to die. She wished that she was dead. She wished -- she just wished that everything would be over, because this felt like such a huge boulder on her shoulders. It was a huge burden. 3 This "spend down" or partial depletion of the family's assets in order to qualify for Medicaid assistance was based on a valuation of the family's assets as being approximately $190,000. 8 A-4041-11T4 Q. [D]o you remember exactly what she said? A. There was one [time] when she said that she had threatened - - she almost was in the parking lot, and she wanted to jump off, because it was like a certain floor, and it was high up from the ground. Q. And she told [you] that? A. Yes. Angel corroborated his older sister's description of defendant's lugubrious mood and frustration over his father's condition, and how her emotional state deteriorated over time. However, in response to defense counsel's questions on cross- examination, Angel made clear defendant never engaged in physical violence: Q. [W]ould you say that your mom was getting more and more stressed? A. Yes. Q. Now, you said to the Prosecutor that she talked about that she was mad. She . . . never hit you; is that right? A. No. Q. Okay. Never hit [Karen]; right? A. Never. Q. Never hit your dad either; right? A. No. 9 A-4041-11T4 Angel also testified that he and his sister's mutual concerns over the situation prompted Karen to write a letter to defendant on February 21, 2009, approximately one month before her father's death.4 The letter provides, in relevant part, as follows: I know [these] past couple of months have been tough on us . . . . BUT, PLEASE! LISTEN TO ME! You seriously have gone insane! Your emotions are slowly destroying your decision-making skills! All I see from you every single miserable day [is] despair, depression, insanity [and] psychotic craziness . . . . [Angel] and I try to make you smile a little [but] you just fall into a deeper depression[.] We need you back! We think you are beautiful [and] loving deep down inside hiding from [the] madness you show now. Defendant's behavior also alarmed employees at Maple Glen, the rehabilitation center that treated M.T. after he was transferred from Kessler. They testified that defendant obsessed about M.T.'s care and the cost of his treatment. Kay Giacelone, an admissions director at Maple Glen whose responsibilities included patient intake and working with Medicaid, testified that defendant repeatedly asked variations of the same two questions on a near-daily basis, namely: (1) whether M.T. could qualify for 4 Although Karen confirmed the letter was in her handwriting, she testified that she did not recall actually writing it. 10 A-4041-11T4 Medicaid; and (2) whether he would ever regain the ability to walk independently. Sheila Hudley, an assistant director at Maple Glen, testified about a conversation she had with defendant on February 26, 2009: She had come in to see . . . how he was doing, have I heard anything . . . . I guess she wanted to know how his rehab was doing. And I basically tried to let her know she had to talk to [the treatment staff]. But, when I saw him, he was walking with Jackie [(the Occupational Therapist)]; he was okay . . . [Defendant asked if] I had seen him that day, and I said, "Yeah, I'd seen him," . . . probably earlier that day . . . in the dining[- ]room area . . . with other patients . . . . [S]he asked me if he cannot, . . . she stated he couldn't live like . . . that. And I said, "What are you talking about?" As best as I remember, she said, "He cannot live like that. Do we do an injection?" So I asked her, "What are you talking about?" She asked me, "Do we let people die . . ." [(Emphasis added).] When the witness paused, the trial judge decided to call a recess of the morning session. When the trial resumed in the afternoon, Hudley testified that immediately after this encounter with defendant, she sent an email to her Supervisor, to the center's Administrator, and to the Director of Nursing, documenting what defendant had told her concerning her husband's 11 A-4041-11T4 wishes to end his life if there was no realistic prospect of improvement of his physical condition. Hudley also mentioned in her email that defendant was "worr[ied] about money for her kids' education and can't keep spending down . . . ." Although defendant had signed a "DNR" (Do Not Resuscitate) directive for her husband, she insisted "this was not good enough and she wanted to get the doctor . . . to give him an injection so he can die in peace." Hudley characterized defendant's state of mind as "off her rocker" and "nuts." In the email, she cautioned her colleagues: "we better all watch this lady . . . ." In her response to Hudley's email, Giacelone stated that she would ask the "psych doctor to see and evaluate [defendant stat.]" The staff at Maple Glen concluded that defendant did not seem to understand or accept the nature of her husband's brain injury. A few weeks after Hudley's encounter with defendant, M.T. had a home visit to determine if he could return home permanently. The visit was brief and "stressful" for the entire family. The level of intensive care M.T. required, particularly around mealtimes, revealed the futility of any attempt to have him home without a permanent healthcare aide. On March 28, 2009, M.T. was sent home a second time; he died the next morning. 12 A-4041-11T4 In addition to M.T.'s difficulties at mealtimes, Angel and Karen highlighted two incidents that occurred before M.T.'s death. Early in the evening, M.T. accidentally ripped the bathroom sink off the wall when he leaned on it for support. According to Angel, defendant became "really, really mad." At some point after ten o'clock that evening, Angel heard defendant yelling at M.T. for urinating on the bed. Angel testified that he fell asleep sometime thereafter. He was later awakened by the loud sound of his father "gasping for air." When asked to describe the volume of the sound, Angel responded: "Pretty loud." The child testified that the sound lasted for approximately "five seconds." Although he shared a bedroom with his sister, Angel stated Karen remained asleep at this time. The following exchange captured what occurred next from Angel's perspective: Q. And was [Karen] in the bed at this point? A. Yes. Q. And did you try to wake [Karen] up at all? A. No. Q. Did you say anything? A. No. Q. But you were scared? A. Yes. 13 A-4041-11T4 Q. Okay. What's the next thing you remember after that? A. I saw my mom come into the room, maybe like a minute after this, after the gasping, and she came in with a plastic bag. And then, she was about to put the bag on [Karen's] head, and [Karen] knocked it out of the way. Q. Okay. A. And that's when they started arguing. Q. Did [defendant] say anything when she came into the room?5 A. No. Q. How did that make you feel? A. More scared. Q. What did you think was going to happen? A. That she was going to suffocate me and [Karen]. Q. And if you could, show us how close you saw that bag come to your sister's head? A. Maybe a foot. Q. And what did [Karen] do? 5 Although the bedroom light was off, Angel testified he could see what was taking place because the room's window-blinds were not "completely closed," and there was light that came from the bathroom's window. 14 A-4041-11T4 A. She like grabbed the bag and pushed it away. Q. And what happened after that? A. Then my sister and mom got into an argument. Q. What did you hear them saying? A. My sister was yelling, oh, why are you doing this, mom? Why did you do this? What just happened? And then my mom was like yelling back, oh, we can't do anything else, like I killed dad, and stuff like that. Karen's testimony corroborated her brother's account of defendant's conduct. Karen testified that she fell asleep after her father accidently ripped the bathroom sink off the wall, "then the water started squirting everywhere." She testified: A. I had a nightmare . . . about my dad screaming for help. My mom had a knife in her hand. And I didn't see like a stab, but I see a knife going down, and I see blood squirting. And I woke up without opening my eyes assuming that it was just a nightmare. And I opened my eyes and I see the bag over -- almost over me. Q. What type of bag? A. A plastic bag. [At the prosecutor's request, Karen demonstrated for the jury how close the bag was from her head at the time she woke up.] Q. Who had the plastic bag by your head like this? 15 A-4041-11T4 A. My mom. At this point, Karen testified she did not remember what her mother did next. In the presence of the jury, the prosecutor asked Karen if she recalled viewing a video recording of a statement she gave to a law enforcement investigator on March 29, 2009, more than two years before the start of the trial. When Karen responded "yes," the prosecutor asked her if viewing the video statement refreshed her memory "as to what [she] said about what happened after [her] mom had the plastic bag by [her] head?" Karen answered: A. I don't remember what happened from bedroom to kitchen. But I'm in the kitchen and I'm struggling with my mother. And I don't know where my brother is. He--he just ran outside. But at that time I didn't know what to do, because I really couldn't think. Q. What was your mom--what do you remember you and your mom doing in the kitchen? A. We were struggling, and I kept telling her, mom, mom, we can still live. You shouldn't do this to us. Q. Why did you say that? A. I said it because I thought she was going to kill us. Q. Why did you think she was going to kill you? A. I felt like I didn't see a mother anymore. I saw a monster through her eyes. And I was just trying to talk her out of it. 16 A-4041-11T4 Q. Talk her out of what? A. Talk her out of this depression and [her] suicidal thoughts . . . . Q. And were you also afraid for yourself at that point? A. Yes. Karen testified that when she next saw her father that night, "he was white." She immediately thought that her mother had killed her father. While this horrific scene between defendant and her daughter unfolded, Angel fled the home and attempted to get help from his maternal uncle and grandparents. After several phone calls, Angel finally reached defendant's younger brother, W.C. (Wayne). Wayne testified that when he checked his voice mail at approximately 8:30 a.m., he noticed he had several messages from Angel. The first message was left at around 8:08 a.m., and stated: "Uncle [Wayne] . . . this is an emergency; I need you to come over right away." In the second voice message Angel "sounded more urgent;" the child stated: "I need you; I really need you to come over right away." When Wayne called back, Angel told his maternal uncle that defendant was trying to kill him, herself, and Karen. Wayne testified that he told Angel to give the phone to defendant. Wayne 17 A-4041-11T4 said his sister's voice sounded "frantic." She told him that she had killed M.T., that "she want[ed] everything to end" and take the children with her. He told her not to do "anything . . . stupid, anything rash . . . [b]ecause at that time, I thought . . . she was thinking irrational[ly] . . . ." Although Wayne thought defendant was acting hysterically, he did not believe that she had actually killed her husband. At approximately 8:50 a.m., Angel called 911 and told the dispatcher that his mother was trying to kill him. Elmwood Park Police Officers Marc D'Amore and Nicholas Petronzi responded to the call and arrived at the residence at approximately 9:00 a.m. D'Amore testified that when they arrived, the front door to the home was open. When he stepped into the residence, he saw defendant "sobbing quietly with her head in her hands." D'Amore found M.T. on the bed; the deceased was already showing signs of rigor mortis. Both D'Amore and Petronzi testified that defendant was visibly upset and spoke rapidly in a rambling manner, interjecting statements about having "too many hospital bills and had no money." D'Amore testified that defendant told him: "[M.T.] urinates and I have to clean it up. He broke everything in the house last night and Kessler kicked him out because we have no money." She also stated that she killed M.T. 18 A-4041-11T4 The officers arrested defendant in her residence. Petronzi testified he escorted defendant handcuffed to his patrol car, where he read to her the standard Miranda6 rights from a card he carried in his pocket. However, when he asked her if she understood those rights, defendant was unresponsive and merely stared straight ahead. The drive to the police station took approximately six to eight minutes. During this time, defendant continued "rambling" to the officers "that she had too many bills, too many hospital bills, that she [had] no money, and that she had no money for her kids['] college." She also told the officers: "Put a bullet in my head. I want to die." Defendant continued to behave in this manner after she arrived at the police station. Elmwood Park Detective Robert Centowski testified that when he approached defendant to gather background information, she was rocking back and forth on the metal bench to which she was handcuffed. Although she was not crying, he described her demeanor as "visibly upset." Centowski was unable to complete the standard background interview because defendant repeatedly answered his questions with nonresponsive statements of an incriminating nature. For example, when Centowski asked defendant for her name, she "smirked" and said, "[w]ell, not 6 Miranda v. Arizona, 384 U.S. 436 (1966). 19 A-4041-11T4 really--not [T] anymore. That was my husband's last name." When he asked her for her date of birth, she responded: "What do you want me to do? He can't even go to the bathroom. He makes a mess. He ruined our lives. All of our savings go to bills. My children have nothing now." Bergen County Prosecutor's Office (BCPO) Detective Gregory Kohles was assigned to question defendant about what had occurred at her home. He conducted the interrogation at the Elmwood Park Police Station. When asked by the prosecutor to describe defendant's demeanor when he first saw her, Kohles responded: "Obviously, a . . . terrible thing had taken place. She was -- I would say distraught is the best way to describe her. She was distraught and obviously very upset over everything that was going on." From 11:37 a.m. to 1:03 p.m., Kohles asked defendant whether she understood her Miranda rights five to six times. During this approximately ninety-minute time period, Kohles said defendant was unfocused and preoccupied with explaining what happened. According to Kohles, defendant repeatedly told him that she wanted to die. As a result, Kohles determined that "no matter what," once the interrogation was concluded, defendant should be referred to Bergen Regional Medical Center (Bergen Regional) for a psychiatric evaluation. In fact, defendant never signed the standard Miranda waiver form. Kohles testified that "due to her 20 A-4041-11T4 emotional state . . . it took until 1:03 [p.m.] when she finally verbally understood and said that okay, I'm willing to answer some of your questions and explain what's going on."7 [(Emphasis added).] Defendant told Kohles that she became frustrated with M.T. when he urinated on the bed and laid back down on the soiled sheets after she had just changed his clothes. When she asked him to get up, he purportedly refused to move because he was tired and wanted to sleep. In the course of the interrogation, defendant revealed the thoughts that ran through her mind as she contemplated the prospect of spending an indeterminate amount of time caring for M.T.'s every need. She found particularly distressing envisioning the details of having to perform the tasks related to M.T.'s personal grooming needs. She derived no solace from knowing that a home-health aide would likely be available to assist M.T. with performing many, if not all, of these aspects of his personal care. Her non sequitur replies to her interrogators' questions revealed defendant saw herself trapped in a loop of despair caused by two seemingly unsolvable problems: (1) the drain on the family's financial resources caused by M.T.'s never ending personal needs; 7 The trial court found defendant's statements were admissible because she voluntarily, knowingly, and intelligently waived her rights under Miranda. This ruling is not challenged on appeal. 21 A-4041-11T4 and (2) the disgust she felt cleaning up after M.T.'s uncontrollable biological functions. As this psychological/emotional cyclone ravaged the stability of this family, defendant responded by telling M.T. to "go ahead, you can sleep forever." She then "let [M.T.] go" to a "better place." She told the detectives that she had to "release him" and that her actions had nothing to do with the kids. At one point, the interrogating officers asked defendant how she suffocated her husband, asking her if she "choke[d] him?" She responded: A. I actually tr[ied] to put the plastic on him too. Q. Plastic? A. I put the plastic on my hand . . . . Q. Plastic? What? Like saran wrap or like a plastic wrap? A. The shopping, the shopping bag. Q. [S]o that's over his face and then your hand over it? A. Only his nose. Q. His nose and mouth? Okay. Okay. Does he realize what's going on or anything like that or no? A. In a way he, he was, he probably wondering what, what happened. Q. Okay. 22 A-4041-11T4 A. And I'm telling him, you won't remember. Q. Right. A. Ten years from now you won't remember anything. Q. Okay. A. He lives in a better place. Defendant also told the interrogating officers: "After 7:00 [a.m.] I was trying to kill myself . . . I had the plastic ready." After she allegedly placed the bag over her, defendant said she "started feeling something" and decided to see her children one last time. She explained: [Karen] asked me what I'm doing. I said, oh, I want to, I want to bring you with me. She saw the plastic [bag], she immediately grab[bed] it . . . . I told her . . . I want to bring you with . . . me and your brother. She immediately grabbed the thing off my hand and she started screaming, mom, you cannot do that, we need you and I say, I'm really sorry, but I already let your father die. I let your father go. I don't [want to] leave you and your brother on earth alone. I want to bring you with me. Shortly after this exchange, defendant's answers became a series of nonresponsive statements that wandered into unrelated topics, including: (a) problems she was having with the house's heating system; (b) her father's disapproval of M.T.; and (c) her 23 A-4041-11T4 children and her general frustration with medical industry practices. She also mentioned a conversation she allegedly had with M.T. before his stroke concerning a news story about a comatose woman. Defendant claimed that she and her husband agreed then that each would let the other spouse die under those circumstances. At the conclusion of the interrogation, the police officers transported defendant to Bergen Regional for a suicide assessment. Dr. Steven Simring, the State's expert witness in the field of forensic psychiatry, testified that the attending doctor at Bergen Regional gave defendant a global assessment of functioning score (GAF)8 of ten and made "an admitting [tentative] diagnosis" of defendant of "Axis I . . . major depressive disorder single episode severe with psychotic features." Dr. Simring explained that after a week of observations, defendant's diagnosis was revised to "major depressive disorder occurrence severe without psychotic features." Defendant was discharged from Bergen Regional and considered "safe to return to jail." 8 The GAF score is on an objective scale of zero to one hundred, with ten representing a homicidal or suicidal individual and one hundred representing someone who is functioning normally. 24 A-4041-11T4 II The Trial A On Monday morning, November 28, 2011, the vicinage's Jury Manager's Office sent a venire of prospective jurors to the judge assigned to try this case. For reasons not disclosed in this record, the judge allowed the jurors to enter the courtroom and addressed them concerning the nature of the case, without the attorneys or defendant present. (Emphasis added). THE COURT: All right. Everybody has a seat now. Good morning, everyone. [Y]ou've been assigned to me in order to select a jury for the case [of] [State v. J.T.] on Indictment No. 1113-09. We'll be starting this trial tomorrow and we're going to work every day except for Mondays and Fridays. Monday is a calendar call day here at the Courthouse for the criminal cases. This is a criminal case. And on Fridays we do sentences. So, that's why the trials are reserved for Tuesday, Wednesday and Thursday. So, with regards to the duration of the trial, it would be, obviously, this week Monday -- I'm sorry -- Tuesday, all day tomorrow, then Wednesday it would be half-day, and Thursday it would be half-day. So, at 12:30 you would be dismissed, and then you can go back to work, or do whatever you'd like to do. 25 A-4041-11T4 At this point, we pause to emphasize that the record does not reflect that the judge discussed any trial scheduling details with the attorneys. In fact, the judge conducted a lengthy explanation with this group of prospective jurors that covered not only that current week, but what the judge anticipated would occur the following week. The judge continued: [W]e don't think that the case is going to go that long, but just in case, we always have a reserve of additional days, but the case is a rather short case. It's a criminal case that should only take three to four days9 Now, I know that they're selecting jurors in the Civil Division. They're working on a medical malpractice case, and there's another Judge who is also working in the Civil Division who is selecting [jurors] today Those cases are all scheduled to last anywhere between three to four to five weeks. So as you [can] tell, this is a very short case. So, it's better that you stay here . . . [because] you could satisfy your jury duty [with] a short case . . . . [(Emphasis added).] The judge also acknowledged the upcoming holiday season, but assured the jury pool: 9 Including the jury selection process, the trial actually lasted thirty calendar days. 26 A-4041-11T4 [I]'m sure to get you out of here before the Christmas holidays. I'm telling you, it will not go that far. So, if you have a holiday, if you have a vacation plan for Christmas, that's fine. It's not going to interfere in any way with your vacation schedule. This is just a short trial and . . . we will surely be done before the 19th of December. The record does not contain any information that explains how the judge arrived at the estimates of the expected length of the trial that she provided to the prospective jurors. The only basis we have in this record from which to infer how this ex parte exchange occurred comes from the judge's following comments: [The Jury Manager's Office] had originally scheduled you to come here at 1:30 [p.m.], but I didn't want to have . . . your whole day -- wasted, you know? I said if I could get this done in the morning, it's better. This way they have the rest of the day to do whatever they like. Finally, we are compelled to note that the judge concluded her address to the jurors without including cautionary instructions: (1) not to discuss the case among themselves or with anyone else; and (2) not to conduct any kind of research on the case, especially on the internet. Because the judge identified defendant by name and stated the case's indictment number, the failure to provide this admonition to the jurors proved to be particularly problematic. Trial judges must be mindful that in 27 A-4041-11T4 this Internet age, the availability of pertinent information about any criminal case, especially one involving these tragic details, is but a click away. The State does not address this issue in its eighty-four-page appellate brief. Defendant's appellate counsel, who was the attorney who represented her at trial, asserts that the judge did not consult with him before she addressed the jury pool on November 28, 2011. Defense counsel also points out that "the trial continued well past the time incorrectly estimated by the [c]ourt Defendant, her counsel, and the prosecutor were present when the court reconvened on Tuesday morning, November 29, 2011. The transcript of these proceedings does not indicate the time the court session began. Based on the nature of the issues discussed in open court, we infer the prospective jurors were not in the courtroom at the time the trial judge and counsel discussed a plethora of issues, some involving mundane matters, and others concerning significant legal questions, including the admissibility of defendant's inculpatory statement made during her custodial interrogation. As to the duration of the trial, the judge asked the prosecutor: "How long do you anticipate the entire trial to be . . . including the defense case[?]" The prosecutor 28 A-4041-11T4 responded: "I believe testimony would conclude . . . some day [in] the week of December 19th, [2011]." The attorneys also spent a significant amount of time discussing the substance and phraseology of the voir dire questions and the methods the judge would use to present these questions to the prospective jurors. In the course of these discussions, defense counsel confirmed that the court clerk planned on "prequalifying" the jurors by "individually voir diring them here, as opposed to sitting fourteen in [the jury box]." This prompted the following exchange: DEFENSE COUNSEL: [H]ave these jurors been spoken to about this case before? About this particular case? THE COURT: No. They know nothing about the case other than they came here yesterday, and they were told to return today. And they're here today, right? COURT CLERK: Yes. THE COURT: You took attendance? COURT CLERK: Uh-huh. THE COURT: So, they know nothing about the facts of the case. They don't know anything other than you're here. You've been assigned to the Criminal Division for selection of a jury. Jury selection starts tomorrow, November 29th, [2011]. Be here at 8:30 [a.m.]. DEFENSE COUNSEL: Okay. 29 A-4041-11T4 THE COURT: So, they're going to learn about this case for the first time today. DEFENSE COUNSEL: So, the [c]ourt is aware. Actually, there . . . had been some publicity concerning this case at the time of . . . its event. It showed up as front page news . . . on The Bergen Record . . . a number of times. Thus, despite the length and breadth of these discussions and the specificity of defense counsel's questions, the judge failed to disclose to the attorneys that in the course of the previous day's ex parte interactions, the judge told the prospective jurors defendant's name and the case's indictment number. The first indication of the prospective jurors' presence in the courtroom on Tuesday, November 29, 2011, is found on page fifty of the 138-page transcript. After reading the charges against defendant contained in the indictment, the judge addressed the anticipated length of the trial: "Now, this case is a short case compared to other cases that are being heard and jurors are being selected for those trials right now. We have civil cases and we have criminal cases right now where other judges are selecting." With respect to scheduling, the judge stated: You, obviously, have to be here today. You would also have to be here tomorrow and Thursday. Now, with regards to the following week, it's December 13th, 14th and 15th . . . [a]nd 30 A-4041-11T4 then the following week would be December 20, 21st, 22nd, and if need be, the 23rd, but I really do not believe that the case will go further than that. With regards to jury deliberations, if you choose, you can come back the week after Christmas to continue . . . but I do not believe that this case will go past the 22nd. During the jury selection process on November 29, 2011, a prospective juror disclosed that he had researched the case on the internet the previous evening (November 28, 2011) and had discussed the case with his wife. The trial judge, having apparently forgotten that she had disclosed the case name and indictment number to the jurors the day before, insisted she did not know how this particular juror had obtained the information: THE COURT: I told [the jurors] to come the next day. DEFENSE COUNSEL: [Y]ou brought them in the room. You told them the name of the case. THE COURT: No. I don't agree with that. Your objection is noted for the record [but] I really doubt [it]. The record shows defense counsel made numerous attempts to articulate his objections and preserve his argument on the record. The judge continuously interrupted counsel, ultimately stating: "Everything doesn't have to be done right now." Counsel asked the judge to "consider taking a short break so I can articulate the argument and I think, very honestly, that we may have to go to the 31 A-4041-11T4 tape from yesterday to find out what, in fact, was said." The judge remained inflexible on the subject: THE COURT: I'm not doing it now. DEFENSE COUNSEL: -- but, Judge, we [are] going to spend all our -- THE COURT: [Counsel], we're not doing it now. DEFENSE COUNSEL: Judge, you have these -- THE COURT: Take a deep breath. We're not doing it now, okay? DEFENSE COUNSEL: -- I – oh, Judge, I take a lot of deep breaths, but it may make it germane because, you know, we may . . . spend the whole afternoon picking people that we may have to declare a mistrial. THE COURT: Well, I don't agree with your -- I don't agree with a mistrial. DEFENSE COUNSEL: But, mistrial -- you haven't -- but you didn't remember that you had said something about it yesterday because . . . obviously this [juror] said there's -- THE COURT: - - I had absolutely no interaction with them other than to tell them to come back the next day . . . I did tell them it was a criminal case. DEFENSE COUNSEL: -- [B]ut you must have said the name of the [defendant] because how else would he know? THE COURT: All right. I'll . . . do it this way. Even if I said the name, I still do not find that it's a mistrial because there was no selection . . . of any kind. 32 A-4041-11T4 DEFENSE COUNSEL: [B]ut the problem was that the defendant wasn't present at the beginning. [(Emphasis added).] When the prospective jurors returned to the courtroom, the judge gave the following instructions with respect to conducting independent research concerning the case: And I know a lot of you have, you know, strawberries, raspberries, and Blackberrys, and you know, they're almost like a mini- computer that you carry around with you, but it is absolutely imperative that you do absolutely no research about this particular case with regards to your jury service, and that's before, during and after the case. And that's, obviously, to protect the integrity of the case with regards to the evidence. On December 1, 2011, defense counsel obtained an audio-video recording of the November 28, 2011 proceedings and renewed his objections to the judge's ex parte remarks to the jury. Counsel began his address to the judge by quoting Rule 3:16(b), which provides, in relevant part: "The defendant shall be present at every stage of the trial, including the impaneling of the jury . . . ." He then placed on the record how the jury selection process had proceeded up to that point. Counsel then addressed the trial judge directly as follows: [W]hen the [c]ourt represented on the tape that the case would be over by December 15th, you never asked me that question -- and I won't put [the prosecutor] in this spot, but I doubt 33 A-4041-11T4 you asked her that question either. [It was] not only unrealistic, [it was] wrong. It's wrong. And a whole discussion about . . . [that] medical malpractice case that was going to go 3, 4, 5, 6 weeks . . . . I can remember it pretty well, where you said, "This way you can get your jury service out of the way." What message does that send to jurors? That this is a . . . December inconvenience? That they are to get their duty out of the way? That's your words, Judge, "out of the way." In the meantime, she's not here. [J.T.] is nowhere to be seen. You interact[ed] with these jurors and you talk[ed] about a judicial process with them without [defendant] present at the time. Defense counsel urged the court to declare a mistrial and moved to admit the audio record of the November 28, 2011 ex parte proceedings into evidence. The judge did not formally rule on defendant's motion for a mistrial. When counsel sought to clarify what he believed was a clerical error in the manner the audio tape had been time-stamped, the judge reminded him that she had allowed him only "five minutes" to place his argument on the record. The judge then asked for the jury to be brought into the courtroom. B The trial judge's comments to the jury again became an issue on December 14, 2011, the sixth day of witness testimony. On this date, Juror Number 2 submitted a letter dated December 12, 2011, from her employer, the District Manager of a nationwide pharmacy 34 A-4041-11T4 chain, requesting that she be excused from the trial the next day, December 15, 2011. According to the letter, the juror was the manager of a local outlet, and her "compensation [was] contingent on the profitability of the store." In the words of the prosecutor, "[i]t sounds like, if she doesn't work through the holiday season, she's not going to get paid as much as she normally would." The prosecutor proposed that the judge question Juror Number 2 outside the presence of her fellow jurors "to see if she urged her boss to write the letter" and determine whether she can continue to serve as a juror in this case if her request was denied. When the judge asked defense counsel for his thoughts on the matter, counsel stated he viewed this juror's request as both a byproduct of the trial judge's initial mishandling of the jury selection process and an indication of how this threshold error prejudiced defendant's right to a fair trial: Well, Judge, actually this is a problem that was created basically two weeks ago . . . when you told the jury . . . when counsel wasn't present . . . that this case would be a short case [and that] this case would only be to the 15th. [They were] misinformed [about the probable length of the trial]. So I suspect that she's one of maybe several, maybe many, who are now thinking the same . . . thing. Because, when you go back and look at it . . . we told them the 15th [and] today's the 14th . . . . 35 A-4041-11T4 Although he believed the juror's request was legitimate because December "is a critical time" for retailers "[a]nd this poor lady . . . probably makes her money on an hourly basis or overtime[,]" defense counsel asserted that "we're now . . . [s]tuck." Before interviewing the juror, the judge stated: "I told them from the very beginning that this is not an excuse . . . to get off of jury service . . . because then we would have excused everyone . . . ." Ultimately, the judge rejected the juror's request. In an attempt to justify her decision to deny the juror’s request, the judge again mentioned the days available for her to return to work when the trial was not in session, the availability of other store employees to cover for her, and the letter the judge planned to send to the District Manager explaining the situation. The record shows, however, that Juror Number 2 repeatedly claimed that she was not aware that the trial could go beyond December 15, 2011. The judge ended the exchange by asking the juror "not to discuss this with any of the other jurors." However, the judge did not ask the juror: (1) whether remaining on the jury beyond December 15, under these circumstances, constituted a financial hardship for her; (2) whether remaining on the jury despite her wishes to leave affected her ability to consider the evidence 36 A-4041-11T4 fairly and objectively; and (3) whether she had discussed anything about the case with her District Manager or anyone else at her place of employment. C At the conclusion of the charge conference held on December 21, 2011, the judge told the attorneys that, despite her repeated admonitions to the jurors to not discuss the case among themselves, it had come to her attention, "from all different areas . . . that two jurors have been speaking to each other throughout the course of the trial." Although she did not know whether the two jurors were discussing matters related to the trial, the judge believed it was necessary to interview the two jurors separately and outside the presence of the remaining jurors. Both attorneys agreed this was the proper way to address this issue. Defense counsel asked the judge to summarize what she intended to say to each juror. The judge noted that her main concern was to determine "what the discussions were about." Counsel responded that in addition to the substance of the jurors' conversations, it was also important to determine if their conversations had distracted them from "paying attention" to what was taking place during the trial. As framed by defense counsel: "If they are talking about lunch, . . . they're not paying attention to the 37 A-4041-11T4 witness." The judge agreed to "inquire about that," but added: "I think we should take it one step at a time . . . ." The judge addressed the issue the following day, December 22, 2011. Before the two jurors were brought to the courtroom, defense counsel asked the judge to clarify, for the record, how this issue came to her attention. After this discussion ended, the Sheriff's Officer brought Juror Number 11 to the courtroom where the following exchange ensued: THE COURT: Good morning. How are you? You're Juror No. 11. It's come to my attention yesterday late in the day [after] you had already left. All the jurors had already left. JUROR NUMBER 11: Yes. THE COURT: You're cognizant of my . . . rulings with regard to what the rules are about discussing the case. Have you discussed the case with any of the other jurors . . . in any way? JUROR NUMBER 11: No. THE COURT: Any of the facts or any of the testimony? JUROR NUMBER 11: No. THE COURT: [I]s . . . there anything about what happened yesterday that would affect your ability to be fair and impartial? 38 A-4041-11T4 JUROR NUMBER 11: What happened yesterday? THE COURT: Well, with -- JUROR NUMBER 11: I just needed to leave on -- THE COURT: No. Just it came to my attention that you were speaking to another juror in the jury box. So is there anything that you were discussing -- JUROR NUMBER 11: Oh, no. THE COURT: -- with regards to the facts of the case or the testimony? JUROR NUMBER 11: We were kind of -- it was amusing what was happening yesterday seemed like a theater. THE COURT: Okay. It was amusing . . . the last part of the testimony? JUROR NUMBER 11: Yes. THE COURT: When everybody else -- JUROR NUMBER 11: With Santa and -- THE COURT: When everybody else in the jury box was also laughing? JUROR NUMBER 11: Yeah. After Juror Number 11 left, but before the Sheriff's Officer brought the next juror into the courtroom, defense counsel noted that the judge did not point out to Juror Number 11 that "everybody saw them talking all day long. [Y]our question simply directed her to the end of the day." Counsel argued that the judge should have asked Juror Number 11: "[W]hat were you talking about . . . 39 A-4041-11T4 all day?" The judge explained that Juror Number 11 found amusing "the testimony was about Santa, and we were discussing the fact that we needed a break." Defense counsel argued the questions asked by the judge were inconsistent with the opened-ended approach agreed to by the parties. The prosecutor disagreed "that the two jurors were talking to each other throughout the day." The prosecutor claimed that based on defense counsel's "body position," she was not able to see the witnesses as they testified. The prosecutor stated, "so I basically just started looking at the jury for an hour, or two hours . . . . And frankly, I did not see two jurors talking to each other continually while there was testimony." This triggered an active discussion between defense counsel and the judge about the meaning of the judge's earlier statement that her "staff" had seen two specific jurors leaning in and talking to each other while the trial was in progress. Defense counsel then asked the judge to recall Juror Number 11 so the judge can inquire further about the nature and substance of her interactions with her fellow juror. The judge brought Juror Number 11 back to the courtroom and asked her the questions suggested by defense counsel. The juror consistently denied talking to Juror Number 10 about anything to do with the trial "throughout the course of the day." In response to the judge's 40 A-4041-11T4 question, Juror Number 11 reaffirmed her ability to judge the evidence in the case fairly and impartially. After overruling defense counsel's objections, the judge brought Juror Number 10 into the courtroom and engaged in the following colloquy on the record at sidebar, but outside the presence of defendant and the attorneys: THE COURT: I just wanted to let you know that throughout the course of the trial it came to my attention through, you know, various sources that you may have been discussing the case with some of the other jurors or juror. Have you been discussing anything? Have you been talking about anything? JUROR NUMBER 10: No. Other than people's shoes that they're wearing in court and stuff like that. THE COURT: Okay. What about Juror No. 11, have you been discussing anything with her about the case or anything? Just tell me what the topics are. Juror Number 10 denied talking to Juror Number 11 about anything to do with the trial. She noted: "I'm with these people every day. Obviously we talk to each other." Finally, Juror Number 10 told the judge that her mind "wanders" after sitting for three hours straight. She suggested that the court take more frequent breaks. The judge told her to raise her hand "if you need a break." The juror reaffirmed her ability to judge the evidence fairly and impartially. The interview with the juror was 41 A-4041-11T4 recorded and played back to the attorneys and defendant at defense counsel's request. Defense counsel objected to the manner the judge conducted what counsel characterized as a "private conversation" with Juror Number 10, outside the presence of defendant. Although the judge attempted to accommodate defense counsel's objections by playing back the audio recording of the interview, the equipment malfunctioned. The judge was thus compelled to recall Juror Number 10. The juror again affirmed that the conversations she had with her fellow jurors involved innocuous topics like Christmas shopping, her children, and her work. She unequivocally denied discussing any aspect of the case and again emphasized the need for more frequent breaks because she had "a very short attention span." The judge conducted this interview in open court, in the presence of defendant and the attorneys. Defense counsel noted that this time, the juror was not asked any questions about her ability to be able to remain fair and impartial. Defense counsel characterized this omission as the "gravamen of what the original complaint was when we started this process." The prosecutor argued that both jurors answered the court's questions candidly and forthrightly. There was no evidence that the jury had been exposed to any extraneous information that could compromise the deliberative process or that these two 42 A-4041-11T4 particular jurors had done anything improper. After considering the arguments of counsel, the judge found no basis to remove Jurors Numbers 10 and 11. III Our analysis of the trial judge's initial ex parte interactions with the pool of prospective jurors is guided by certain bedrock principles. These fundamental tenets of jury trial management were succinctly explained by Justice LaVecchia on behalf of a unanimous Supreme Court in Davis v. Husain, 220 N.J. 270 (2014): Generally

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Docket No.: a3127-15
Decided: 2018-06-11
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.D.
Status: published
Summary:
VERNOIA, J.A.D. Defendant, D.C., appeals from a Family Part order finding he abused or neglected his fifteen-year-old stepdaughter, N.D. (Nancy),1 by "comitt[ing] acts of sexual abuse against" her. Because we conclude there was sufficient credible evidence in the record supporting the court's factual findings and abuse or neglect determination, we affirm. I. On February 12, 2015, the Division of Child Protection and Permanency (Division) responded to a Newark Police Department referral that defendant was arrested for sexually abusing Nancy. Defendant is Nancy's stepfather, and father to DiA.C., born in 2002, Di.C., born in 2005, L.C., born in 2008, and A.C., born in 2011. 1 We employ initials and pseudonyms to protect the children's privacy. 2 A-3127-15T3 Nancy reported to Newark police officers and the Division that during the evening of February 7, 2015, defendant asked her to check on him by text message because he was going out drinking. She explained defendant left their home and she spoke with him at approximately 4:00 a.m. the following morning when he called her and asked if she was awake. Defendant then asked Nancy to come downstairs so they could leave to get food. Nancy agreed, got in defendant's vehicle when he arrived home, and defendant then drove to a dark street. According to Nancy, defendant parked the vehicle, kissed her on the lips and neck, and forcibly inserted his finger into her vagina. Defendant stopped when Nancy's mother, A.D., called him on the phone asking where they were. Defendant then took Nancy to a fast food restaurant, where he bought food for them. Nancy further reported that on their way home, defendant asked if she was angry with him, and that he felt "stupid" for what he had done. Nancy said defendant had sexually abused her since she was twelve years old. A.D. told the Division caseworker that defendant confirmed he took Nancy with him to purchase food on the night of the alleged sexual assault, but denied ever sexually assaulting Nancy. Nancy also reported prior instances of inappropriate sexual contact with defendant. She stated defendant once "tested" her 3 A-3127-15T3 to see if she would do anything sexual with boys by touching her on her thigh area close to her vagina and buttocks. She told defendant to stop, and he told her she passed his "test." Nancy reported that when she was a young child, defendant took her clothes off while she was sleeping, but was interrupted when her mother walked into the room. Nancy also reported that defendant tried to hump her buttocks area when she was twelve while he was intoxicated. In his February 12, 2015 statements to Newark police and the Division, defendant said he exchanged text messages with Nancy on February 7, 2015, because "she would always check on him if he [went] out to drink." Defendant admitted asking Nancy to come downstairs and get into his car, and getting food with her during the early hours of February 8, 2015. Defendant confirmed he received a phone call from A.D. while they were getting food, asking where they were. Defendant stated he told A.D. that they were getting food, and returned home with Nancy soon thereafter. Defendant denied ever touching Nancy inappropriately. Defendant admitted to taking Nancy "through a test about boys." Defendant stated he only "talked her through everything," and "never physically touched her." Defendant also admitted he took Nancy's clothes off while she was sleeping when 4 A-3127-15T3 she was a young child, but did so because she fell asleep in dirty clothes. Defendant denied humping Nancy's buttocks when she was twelve. In an interview conducted that same day, A.D. stated that on February 8, 2015, at approximately 4:00 a.m., she noticed defendant and Nancy were not home. She then called defendant at approximately 4:30 a.m., and he said he called Nancy to come downstairs and took her to get food. A.D. indicated that Nancy and defendant then returned home. Following her report on February 12, 2015, Nancy went to the Newark Beth Israel Medical Center for a physical examination, which revealed her hymen was not intact and she suffered from pain and tenderness in her vaginal area. The examining physician, Dr. Kereese Gayle, wrote in her notes that her "clinical impression" was that Nancy had been sexually assaulted and listed "sexual abuse of adolescent" as her diagnosis. On February 25, 2015, the Division filed a verified complaint and order to show cause in the Law Division, seeking the care and supervision of Nancy as well as defendant's four biological children. The court granted the Division's request, and ordered that defendant "remain out of the home," and "shall 5 A-3127-15T3 not have any contact with [the children] until further order of the court." On March 11, 2015, Nancy was admitted to the Newark Beth Israel Medical Center's Children's Crisis Intervention Services Unit (Crisis Unit) for a psychological evaluation. The discharge summary described Dr. Lindsay Liotta's findings and showed Nancy expressed feelings of suicide, anxiety and depression. The discharge summary stated that Nancy had a "history of being assaulted by [defendant]," the most recent incident being two months prior to her admission in the Crisis Unit. The discharge summary listed post-traumatic stress disorder (PTSD) as a "diagnosis at discharge." The court held a fact-finding hearing, but Dr. Gayle and Dr. Liotta were not called to testify. Over defense counsel's objection, the court admitted in evidence portions of Dr. Gayle's report, including her diagnosis Nancy was sexually assaulted, and Nancy's psychological records as "notes or observations of the doctors," and rejected defendant's assertion they included inadmissible complex diagnoses. After hearing testimony from Division caseworker Wilmer Mendez and reviewing Nancy's medical and psychological records, the court found the Division established by a preponderance of the evidence that defendant abused or neglected Nancy by "comitt[ing] acts of 6 A-3127-15T3 sexual abuse," and placed his four biological children at significant risk of harm under N.J.S.A. 9:6-8.21(c). In an oral decision, the court concluded Nancy's allegations regarding the February 8, 2015 sexual assault were corroborated, because defendant "corroborated . . . all of the facts provided in [Nancy's] account of what occurred on the subject night with the exception of the actual sexual assault." The court also found Nancy "made consistent disclosures" regarding the sexual assault, and determined it was "certainly satisfied that [Nancy's] statement was corroborated, [and] . . . credible." The court placed particular emphasis on Dr. Gayle's clinical finding that Nancy had been sexually assaulted, and determined the Crisis Unit's discharge summary suggested that Nancy "had not had" PTSD or become anxious and suicidal "prior to these allegations of sexual abuse." In its subsequent written decision, the court found defendant abused or neglected Nancy by sexually assaulting her on February 8, 2015, and sexually abusing her on prior occasions. The court found defendant gave Nancy a "test" where he rubbed her thigh close to her vagina. The court further found defendant humped Nancy on a previous occasion, and took her clothes off while she was sleeping. The court found 7 A-3127-15T3 defendant's admissions "sufficiently corroborate[d] [Nancy's] statements." The court concluded defendant's history of inappropriate sexual conduct with Nancy placed all of the children "at substantial risk of injury," as defendant "ha[d] not addressed any sexual [deviance]." In its fact-finding order, the court noted that defendant had "not admitted that this abuse occurred or taken any steps to address the sexual abuse and mitigate the risk of harm he poses to the other children which places the children at significant risk of harm." The court ordered that the children remain in the care and supervision of the Division, and ordered defendant's placement on the Child Abuse Registry. On February 22, 2016, after a series of compliance hearings, the court entered an order terminating the abuse or neglect proceedings by the consent of all parties, ordering that defendant have no contact with Nancy, and that a prior order requiring that defendant have no contact with his biological children outside of Division supervision remain in effect. 2 This appeal followed. Defendant presents the following arguments for our consideration: 2 Defendant was no longer living with A.D., Nancy, and his biological children at the time the court entered its order terminating the litigation. 8 A-3127-15T3 LEGAL ARGUMENT THE TRIAL COURT ERRED IN FINDING THAT [DEFENDANT] COMMITTED AN ACT OF ABUSE OR NEGLECT AGAINST NANCY BECAUSE NO CREDIBLE EVIDENCE WAS PROVIDED TO CORROBORATE NANCY'S ALLEGATIONS UPON WHICH THE TRIAL COURT MADE ITS FINDINGS. A. The Trial Court Erred in Finding That Nancy's Allegations Were Corroborated By Multiple Re-Tellings To Different People And By [Defendant's] Statements. B. The Trial Court Erred . . . When It Relied On Inadmissible Evidence In Making Its Findings Of Fact. II. Defendant argues the court erred by finding abuse or neglect based solely on Nancy's statements, which he contends were not corroborated as required by N.J.S.A. 9:6-8.46(a)(4). Defendant challenges the court's finding that Nancy's allegation of sexual abuse was corroborated by her repetition of the allegation, by his own statements to police and Division caseworkers, and by medical and psychological reports introduced into evidence at the fact-finding hearing. We are guided by the well-established principle that "[w]e accord substantial deference and defer to the factual findings of the Family Part if they are sustained by 'adequate, substantial, and credible evidence' in the record." N.J. Div. of Child Prot. & Permanency v. N.B., 452 N.J. Super. 513, 521 9 A-3127-15T3 (App. Div. 2017) (quoting N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014)). This is "[b]ecause of the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "The Division bears the burden of proof at a fact-finding hearing and must prove . . . harm . . . by a preponderance of the evidence." N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013). In satisfying their burden, the Division's proofs must be "competent, material and relevant." N.J.S.A. 9:6-8.46(b). A Family Court's determination of whether the Division's proofs are admissible is "left to the . . . court's discretion, and its decision is reviewed under an abuse of discretion standard." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 571 (App. Div. 2010). We do not, however, accord the "same degree of deference" to Family Court findings that are based on a "misunderstanding of the applicable legal principles . . . ." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). We therefore review a trial court's 10 A-3127-15T3 legal conclusions de novo. State v. Smith, 212 N.J. 365, 387 (2012). The trial court based its abuse or neglect finding in part on Nancy's statement that defendant sexually assaulted her on February 8, 2015. The court considered Dr. Gayle's medical report, the Crisis Unit's discharge summary and defendant's own statements as corroborative evidence of Nancy's statement describing the sexual assault. Because the trial court's rulings "essentially involved the application of legal principles and did not turn upon contested issues of witness credibility," we review the court's corroboration determination de novo. See N.B., 452 N.J. Super. at 521 (reviewing de novo the trial court's determination that a child's statements were corroborated as required by N.J.S.A. 9:6-8.46(a)(4)). Under N.J.S.A. 9:6-8.46(a)(4), "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." See N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32-33 (2011). A child's statement need only be corroborated by "[s]ome direct or circumstantial evidence beyond the child's statement 11 A-3127-15T3 itself." N.B., 452 N.J. Super. at 522. "The most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. at 155, 166 (App. Div. 2003). However, corroboration of child sexual abuse does not have to be "offender-specific," because "[i]t would be a rare case where evidence could be produced that would directly corroborate the specific allegation of abuse between the child and the perpetrator . . . ." Z.P.R., 351 N.J. Super. at 435. Rather, corroborative evidence "need only provide support" for the child's statements and may be circumstantial. N.B., 452 N.J. Super. at 521. The evidence must be independently admissible for a court to deem it corroborative of a child's statement. See id. at 524-26 (finding evidence was insufficient to corroborate the child's statement because it constituted inadmissible hearsay). In N.B., we cautioned that "courts must protect against conflating a statement's reliability with corroboration," id. at 522, and determined "consistency alone does not constitute corroboration," id. at 523. We further noted that "in assessing the trustworthiness of a child's hearsay statement under N.J.R.E. 803(c)(27) . . . a court may consider . . . 12 A-3127-15T3 'consistency of repetition,'" but that determination is "distinct from corroboration of the statement". Id. at 523 n4. It is unclear whether the court relied on Nancy's repetition and consistency of her account of the February 8, 2015 incident to find corroboration, or simply to assess her credibility. In any event, the mere repetition and consistency of Nancy's statements are insufficient to support a finding of corroboration under N.J.S.A. 9:6-8.46(a)(4). Id. at 523. We therefore consider whether defendant's statement, Dr. Gayle's medical report and the Crisis Unit's discharge summary provide the corroboration required under N.J.S.A. 9:6-8.46(a)(4). Defendant argues the conclusions in the medical report and the Crisis Unit's discharge summary could not have corroborated Nancy's statement because they were inadmissible. Defendant asserts Dr. Gayle's conclusion that Nancy was sexually assaulted and Dr. Liotta's conclusion that Nancy suffered from PTSD as a result of the assault constituted inadmissible statements of complex diagnoses. We agree. Medical reports created by Division consultants for purposes of investigating allegations of abuse or neglect are generally admissible in fact-finding hearings as business records. N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J. Super. 478, 487 (App. Div. 2016); N.J.S.A. 9:6-8.46(a)(3). 13 A-3127-15T3 However, expert conclusions or diagnoses within such reports are subject to a further admissibility determination under N.J.R.E. 808. N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 173 (App. Div. 2012); accord N.B., 452 N.J. Super. at 525-26; see also N.T., 445 N.J. Super. at 487 (holding that a non-testifying expert's "diagnoses and opinions in a Division report are inadmissible hearsay, unless the trial court specifically finds they are trustworthy under the criteria in N.J.R.E. 808"). Under N.J.R.E. 808, a court may admit a non-testifying expert's diagnosis and opinion if it finds "that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness." N.T., 445 N.J. Super. at 501. "An expert medical opinion contained in a report is generally inadmissible under [this] test because of the complexity of the analysis involved in arriving at the opinion and the consequent need for the other party to have an opportunity to cross-examine the expert." Ibid. (citation omitted); see also Konop v. Rosen, 425 N.J. Super. 391, 405 (App. Div. 2012) (citations omitted) (noting that "medical 14 A-3127-15T3 opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue such as the basis for the diagnosis or cause of the condition in question"). In N.T., 445 N.J. Super. at 490, we applied the above principles in determining whether the trial court erred by admitting a non-testifying psychologist's evaluation diagnosing the child with PTSD. We determined that although the psychologist's factual observations were admissible, the opinions and diagnoses contained in the evaluation were not. Id. at 500. We concluded that psychological evaluations, like medical opinions, "generally 'entail[] the exercise of subjective judgment rather than a straightforward, simple diagnosis based upon objective criteria or one upon which reasonable professionals could not differ.'" Id. at 501 (alteration in original) (quoting M.G., 427 N.J. Super. at 174). We further noted that an "evaluation of a mental state . . . is among the most 'complex diagnoses.'" Ibid. (citation omitted). In James v. Ruiz, 440 N.J. Super. 45, 72 (App. Div. 2015), we determined the trial court erred in admitting a non- testifying doctor's disputed conclusion that a CT-scan revealed a "disc bulge." We noted that even though we had "no reason to 15 A-3127-15T3 believe that the 'motives, duties and interest[s]' of [the doctor] were anything other than benign," id. at 72, his conclusions were "sufficiently complex and controversial to require them to be excluded" under N.J.R.E. 808, id. at 73. Dr. Gayle's statement in the medical report that Nancy was sexually assaulted was inadmissible because it is "sufficiently complex and controversial," ibid., constitutes an opinion on "a critical issue such as the . . . cause of the condition in question," Rosen, 425 N.J. Super. at 405, and is based on Dr. Gayle's "subjective judgment," N.T., 445 N.J. Super. at 500. We find no basis to conclude that Dr. Gayle's conclusion was based solely on objective criteria, or upon criteria "which reasonable professionals could not differ." Id. at 501. It was error for the trial court to admit and rely upon that portion of Dr. Gayle's report containing her conclusion and diagnosis that Nancy was sexually assaulted. For the same reasons, the Crisis Unit's discharge summary stating Nancy suffered from PTSD as a result of alleged sexual abuse was inadmissible under N.J.R.E. 808. As we noted in N.T., "evaluation of a mental state . . . is among the most 'complex diagnoses.'" Id. at 501; see also N.B., 452 N.J. Super. at 526 (holding that the trial court erred in admitting the psychologist's PTSD diagnosis because PTSD "is a complex 16 A-3127-15T3 diagnosis given the disorder's definitions, which notably include a wide variety of symptoms, and is not a monolithic disease with a uniform structure that does not permit individual variation"). We find no basis to depart from these principles, and conclude the court erred in admitting the PTSD diagnosis without testimony from Dr. Liotta regarding how she reached that diagnosis. N.B., 452 N.J. Super. at 526. Thus, neither the Crisis Unit's PTSD diagnosis nor Dr. Gayle's conclusion that Nancy was sexually assaulted constituted admissible corroborative evidence of Nancy's statement under N.J.S.A. 9:6- 8.46(a)(4). Ibid. Because we conduct a de novo review of the court's determination of whether there was sufficient corroboration to permit reliance on Nancy's statements, we next consider whether there was other admissible evidence supporting a finding of corroboration under N.J.S.A. 9:6-8.46(a)(4). See id. at 521. Based on our review of the record, we are convinced that although the court erred by admitting Dr. Gayle's diagnosis that Nancy was sexually assaulted, Dr. Gayle's factual and objective findings that Nancy suffered from tenderness in her vaginal area and her hymen was not intact provided "some" admissible 17 A-3127-15T3 circumstantial evidence corroborating Nancy's statements. Id. at 522. In N.B., the trial court relied upon a non-testifying psychologist's report that the child suffered from PTSD "as a result of exposure to domestic violence" to support its finding of sufficient corroboration under N.J.S.A. 9:6-8.46(a)(4). Id. at 523. On appeal, we determined that although the conclusion was an inadmissible complex diagnosis, the psychologist's objective "factual observations" were admissible. Id. at 526; see also N.T., 445 N.J. Super. at 490 (determining factual observations are admissible). Dr. Gayle's factual observations, made four days after the alleged sexual assault, that Nancy had tenderness in her vaginal area and that her hymen was not intact constituted "some" circumstantial evidence corroborating Nancy's statement that defendant "forcibly" digitally penetrated her vagina. See N.B., 452 N.J. Super. at 522 (requiring "[s]ome direct or circumstantial evidence beyond the child's statement"). We do not determine that Dr. Gayle's factual observations independently establish that Nancy was sexually assaulted. That issue is not before us. Rather, we determine only that Dr. Gayle's objective findings of injuries to Nancy's vaginal area provide some circumstantial evidence corroborating Nancy's 18 A-3127-15T3 statement that defendant sexually assaulted her in the manner she described in her statements. Id. at 521-22. Moreover, the court did not err in finding defendant's statements provided additional corroboration of Nancy's statements. Defendant argues that he "only admitted to being with Nancy at the time of [the] allegations," and "[p]resence, alone cannot satisfy the corroboration requirement." This argument ignores, however, that defendant did not simply state he was with Nancy at the time of the alleged assault, but rather he corroborated many of the details concerning the circumstances Nancy described surrounding the alleged sexual assault, with the exception of the sexual assault itself. We are convinced that his admission of those details, when coupled with Dr. Gayle's objective findings of injuries to Nancy's vaginal area, provide more than sufficient corroboration of Nancy statements describing the sexual assault to satisfy the requirements of N.J.S.A. 9:6-8.46(a)(4). In Z.P.R., there was no direct evidence corroborating the child's sexual assault allegation. 351 N.J. Super. at 432. Rather, the Division presented evidence that the child possessed "precocious sexual knowledge." Id. at 436. The trial court determined this did not sufficiently corroborate the child's statements regarding a parent's alleged sexual abuse. Ibid. We 19 A-3127-15T3 reversed, holding that "we have no doubt that evidence of age- inappropriate sexual behavior could provide the necessary corroboration required by N.J.S.A. 9:6-8.46(a)(4)." Ibid. In N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 154-55 (App. Div. 2005) the Division3 alleged that the defendant exposed her daughter, Cathy, to "the risk of emotional and physical harm by permitting her husband . . . , Cathy's stepfather, to reside in the home after learning" that Cathy had accused him of sexually molesting her. On appeal, the Division argued that the trial court erred in determining the stepfather's Megan's Law status was inadmissible to corroborate Cathy's allegations he sexually assaulted her. Id. at 156. We reversed, holding that "the details of [the stepfather's prior conviction for a sex offense was] directly relevant to establishing whether he in fact molested Cathy . . . [because they] may . . . reveal similarities in the 'plan' or 'preparation' utilized by [the defendant] . . . ." Id. at 181. Although "eyewitness testimony, a confession, [or] an admission," would be most effective in establishing corroboration, L.A., 357 N.J. Super. at 166, only "[s]ome direct or circumstantial evidence . . . is required," N.B., 452 N.J. 3 Pursuant to L. 2012, c. 16, effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. 20 A-3127-15T3 Super. at 522. Defendant's admissions corroborated almost every detail of Nancy's statements concerning the alleged sexual assault, including the text message exchange between them earlier in the night, when he picked her up, where they went, and when they returned. The court did not err in finding that defendant's statements sufficiently corroborated Nancy's account, because they "provid[ed] support for" her statement, N.B., 452 N.J. Super. at 521, and "relate[d] directly to" defendant, L.A., 357 N.J. Super. at 166. In addition, Dr. Gayle's objective findings provided some evidence corroborating the only detail defendant denied – that he forcibly digitally penetrated Nancy's vagina. We are therefore satisfied Nancy's statement was sufficiently corroborated and the Division provided sufficient credible evidence supporting the court's finding that defendant abused or neglected Nancy by sexually assaulting her on February 8, 2015, and placed his biological children at substantial risk of harm as a result. N.B., 452 N.J. Super. at 513, 521. We also observe that defendant does not contend the court erred in its findings concerning his four biological children, or argue that Nancy's remaining sexual assault allegations supporting that finding were uncorroborated. Generally, an issue not briefed on appeal is deemed waived. Jefferson Loan 21 A-3127-15T3 Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001). We nevertheless consider whether Nancy's remaining allegations of prior instances of sexual abuse were sufficiently corroborated to support the court's finding of abuse or neglect. As noted, the court's abuse or neglect finding was not limited to the February 8, 2015 sexual assault. The court also based its abuse or neglect finding on Nancy's reports that defendant sexually touched her on three prior occasions. With regard to her statement regarding the "test," defendant admitted he "took [Nancy] through a test about boys," but denied having physical contact. He stated he did so to teach Nancy "what boys can do to get slick and get their feel off on young girls." As with the February 8, 2015 assault, the only fact defendant failed to corroborate was the inappropriate sexual touching itself. Although defendant makes no arguments otherwise, we find that his admission concerning the administration of the "test" provide some evidence supporting Nancy's version of the event and therefore provides sufficient corroboration of Nancy's account under N.J.S.A. 9:6-8.46(a)(4). N.B., 452 N.J. Super. at 522. Nancy also reported that defendant took her clothes off while she was sleeping. Defendant admitted he did so, but 22 A-3127-15T3 denied any sexual intentions. We again find defendant's admission provided sufficient corroboration of Nancy's statement to permit the court's reliance on Nancy's version of the event. Ibid. Lastly, Nancy described that defendant humped her from behind when she was twelve. Our review of the record, however, reveals no admissible evidence corroborating Nancy's statement concerning that event. Nancy's mere repetition of her account was insufficient. Id. at 523. Although the Division did not provide sufficient corroboration to warrant the court's consideration of Nancy's statement concerning that event, we are satisfied the totality of the admissible evidence corroborates Nancy's statements concerning the other events and supports the court's findings of abuse or neglect of the five children. Defendant's remaining arguments are without merit sufficient to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(E). Affirmed. 23 A-3127-15T3

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Appellate Division UNPUBLISHED Decisions


Docket No.: a0202-17
Decided: 2018-06-15
Caption: STATE OF NEW JERSEY v. DOUGLAS T. SHORTER
Status: unpublished
Summary:
PER CURIAM The State of New Jersey, on leave granted, appeals a Law Division judge's July 26, 2017 decision granting a motion to suppress evidence. After our review of the relevant motion testimony and precedents, we reverse and remand for further proceedings. Officers Sean DeShader and Joe Leon of the Asbury Park Police were on patrol the afternoon of July 9, 2016, in an unmarked vehicle in a high-crime area. DeShader was a thirteen-year veteran of the department who had participated in hundreds of heroin investigations over the course of his career. The officers saw a car bearing Massachusetts license plates, and DeShader immediately recognized one of the occupants, defendant Douglas Shorter, from an arrest days earlier on a drug paraphernalia offense. DeShader knew defendant had an outstanding arrest warrant. Once the officers stopped the vehicle, DeShader noticed defendant repeatedly looking backwards towards the officers and leaning towards the center console, the floor, and the passenger's side door. As the officers approached, defendant appeared extremely nervous. DeShader asked defendant to step out of the car and noticed defendant anxiously looking around while his chest visibly rose and fell. While patting down and cuffing defendant under the authority of the warrant, DeShader asked him if he had anything that would "poke [him], prick [him], or stick [him]." Defendant responded that he had "a little bit of Molly," which 2 A-0202-17T4 DeShader understood to mean ecstasy based on his training and experience. When he searched defendant, DeShader found sixty- eight white glassine bags stamped "Black Ink," containing suspected heroin, as well as a knotted white plastic bag, which DeShader believed contained ecstasy. DeShader also found two folds of money totaling $799. As the officers awaited the arrival of a marked patrol vehicle, Leon drew DeShader's attention to a brown-colored box protruding from the open front passenger's side door. The box, located inside the front passenger door pocket, was approximately the size of a bible and could fit into a cargo pocket. On the box, DeShader could see a red stamp with the word "Empire." He testified: [r]ed stamp is commonly used to be put on boxes or bags in reference [to] an indication of heroin. Brown box is commonly known to [him] to contain 600 white [glassine] bags which is used in the production and packaging of heroin for street ready drug sales. Leon handed the box to DeShader, which contained ten bricks of heroin. Each of the 499 bags inside the box were stamped with the word "Empire" in red. The driver consented to a search of the vehicle and identified a Samsung smart phone as belonging to defendant. 3 A-0202-17T4 The judge found the officer to have been "an honest and candid witness." However, he concluded that seizing the Empire cardboard box and opening it was based on more than a hunch but "far shy of the probable cause necessary to justify that seizure under the plain view exception to the warrant requirement." On appeal, the State contends: POINT I SUPPRESSION OF THE EVIDENCE RECOVERED FROM THE CAR WAS ERROR BECAUSE THERE WAS PROBABLE CAUSE TO SEARCH THE CAR. POINT II THERE WAS PROBABLE CAUSE TO ASSOCIATE THE BOX WITH CRIMINAL ACTIVITY, THUS, THE SUPPRESSION WAS IN ERROR. I. In reviewing a motion to suppress, this court defers to the trial court's fact and credibility findings so long as those findings are "supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We review such decisions deferentially because the "findings of the trial judge . . . are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). An appellate court should disregard those findings only upon a 4 A-0202-17T4 "showing of an abuse of discretion, i.e. [that] there has been a clear error of judgment." State v. Nantambu, 221 N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 439 (2012)). "Although the ordinary 'abuse of discretion' standard defies precise definition, it arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (citations omitted). No deference is given to the trial court's legal conclusions. Nantambu, 221 N.J. at 402. The legal conclusions of a trial court are reviewed de novo. State v. Hubbard, 222 N.J. 249, 263 (2015). We conclude that the State's proofs established an exception to the warrant requirement by a preponderance of the evidence. See State v. Minitee, 210 N.J. 307 (2012) (citations omitted). That exception is a police officer's right to lawfully "seize evidence or contraband that is in plain view." State v. Gonzales, 227 N.J. 77, 90 (2016) (citing State v. Bruzzese, 94 N.J. 210, 235-36 (1983)). An officer may seize evidence in plain view if the following three requirements are satisfied: First, the police officer must be lawfully in the viewing area. Second, the officer has to discover the evidence 'inadvertently,' meaning that he did 5 A-0202-17T4 not know in advance where evidence was located nor intend beforehand to seize it. Third, it has to be 'immediately apparent' to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure. [State v. Mann, 203 N.J. 328, 341 (quoting Bruzzese, 94 N.J. at 236)]. In Gonzalez, the Supreme Court "reject[ed] the inadvertence prong of the plain-view doctrine because it requires an inquiry into a police officer's motives and therefore is at odds with the standard of objective reasonableness that governs [the Court's] analysis of a police officer's conduct." 227 N.J. at 99. Since the motor vehicle stop in this case occurred before the Gonzalez decision, we assess the lawfulness of the seizure pursuant to the three-prong standard that existed prior to the decision in Gonzalez. 227 N.J. at 101 (applying the new standard "prospectively"). The first requirement of the plain-view exception requires little discussion. The officers were executing an arrest warrant upon the passenger of the vehicle and were therefore in the area lawfully. The second prong also merits very brief discussion. The purpose of this stop was to take defendant into custody on an 6 A-0202-17T4 unrelated matter, not for any reason related to the advancement of a drug investigation. In our view, the State met the third prong as well. DeShader, whom the court found credible, testified that in his experience, stamped cardboard boxes like the one in this case would at a minimum contain drug paraphernalia. The officer had charged defendant with possession of similar items days earlier. It has been consistently held "that a principal component of . . . probable cause . . . 'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Moore, 181 N.J. 40, 45 (2004) (quoting State v. Nishina, 175 N.J. 502, 515 (2003)). This officer's familiarity with similar boxes containing drugs and drug paraphernalia gave rise to his "well-grounded suspicion" that a drug offense had been or was being committed. See ibid. The totality of the circumstances gave rise to probable cause to seize the box. DeShader knew defendant, found drugs on his person, saw the box, and recognized the likely nature of its contents. In the context of the plain-view exception, "[a]ll [an] officer needs to meet the third requirement is [a] practical, nontechnical, probability that incriminating evidence is involved." State v. Reininger, 430 N.J. Super. 517, 536 (App. Div. 2013) (third alteration in original) (citations omitted) (quoting Bruzzese, 94 N.J. at 237). The probability existed here. 7 A-0202-17T4 The judge seemed concerned that despite the officer's description of the Empire stamp as very consequential in that context, the testimony was not enough because the item was an opaque cardboard box. "[T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view," Johnson, 171 N.J. at 213 (quoting United States v. Ross, 456 U.S. 798, 822-23 (1982)). But on the other hand, "[i]t cannot be denied that 'a police officer lawfully in the viewing area [is not required to] close his eyes to suspicious evidence in plain view." Id. at 208 (alteration in original) (quoting Bruzzese, 94 N.J. at 237). "Whether the [container] . . . concealed its contents from plain view is a factor to be considered when determining whether the State established probable cause before seizing and opening the container." Id. at 214. Defendant made furtive movements as the officers approached. He was extremely anxious. DeShader knew defendant from a prior arrest. Defendant had drugs on his person when arrested on the scene. In this context, DeShader's training and experience gave him the unique familiarity with drug-related items that signaled the contents of the box even though he obviously could not see through it. See State v. Evans, 449 N.J. Super. 66, 78-79 (App. Div. 2017) (holding probable cause existed to conduct a strip 8 A-0202-17T4 search when a search incident revealed the defendant had crack cocaine on his person); State v. Rosario, 229 N.J. 263, 276-77 (2017) (quoting State v. Lund, 119 N.J. 35, 48 (1990)) (restating the principle that "there are some cases in which 'furtive' movements or gestures . . . accompanied by other circumstances, will ripen into . . . probable cause to believe that the person possesses criminal contraband"); Moore, 181 N.J. at 46 (finding the court may consider any evidence concerning the high crime reputation of an area in the totality of the circumstances); State v. Hayes, 327 N.J. Super. 373, 380 (App. Div. 2000) (holding police may rely on their knowledge of a suspect's "prior arrest [and conviction] record"); Johnson, 171 N.J. at 219 (holding the criminal nature of a container is immediately apparent when "outward appearance of the [container] gave the officer a degree of certainty that was functionally equivalent to the plain view of crack-cocaine itself"). Thus, DeShader had probable cause to seize the box, and its contents should not have been suppressed. We do not reach the parties' other arguments and legal contentions. They are moot in light of this decision. Reversed and remanded for further proceedings. 9 A-0202-17T4

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Docket No.: a1535-16
Decided: 2018-06-15
Caption: CHRISTINE MINSAVAGE v. BOARD OF TRUSTEES, TEACHERS PENSION AND ANNUITY FUND
Status: unpublished
Summary:
PER CURIAM Appellant Christine Minsavage sought to change the retirement option her deceased husband chose so she could receive survivor retirement benefits rather than reimbursement of her husband's pension contributions. Appellant now appeals from the November 4, 2016 final decision of respondent, the Board of Trustees of the Teachers' Pension and Annuity Fund (Board), denying her request to change the retirement option her husband selected. We affirm. I David Minsavage (decedent) worked for nearly twenty-five years at Hanover Park High School (school), beginning in 1990. In August 2014, decedent was diagnosed with terminal pancreatic cancer. In September 2014, decedent contacted the Division of Pensions and Benefits (Division) for assistance in setting up his member benefits online system (MBOS) account. Around October 2014, decedent contacted the New Jersey Education Association (NJEA) to discuss his retirement options. Appellant certifies she and decedent notified NJEA of decedent's terminal cancer diagnosis at that time. According to appellant, the NJEA representative provided decedent with screen shots of a sample MBOS retirement application and instructed decedent on the options he should choose by highlighting selections on the sample application; decedent 2 A-1535-16T3 followed the NJEA representative's directions, and "on or about November 17, 2014," filed an application for early retirement.1 Decedent continued working at the school until mid-December 2014. On March 16, 2015, the school filed a certification of services and final salary retirement form, which indicated decedent would retire on July 1, 2015 — the date he would attain eligibility for early retirement, which requires twenty-five years of service. On April 9, 2015, decedent passed away after twenty-four years and ten months of service. Appellant notified the Division of her husband's passing the following day. On April 15, 2015, the school certified to the Division that decedent's last day of active service was April 8, 2015; thus, decedent passed away less than three months before attaining eligibility for early retirement. On April 22, 2015, the Division wrote appellant notifying her of her entitled benefits, which included return of pension contributions and a Group Life Insurance Benefit. Appellant 1 Unaware decedent had previously filed his own application, in April 2015, appellant accessed decedent's MBOS account and filed a retirement application on his behalf. According to appellant's certification, she also relied upon an NJEA representative's instructions in selecting the early retirement option. She further certified no one advised either her or decedent about filing for ordinary disability. 3 A-1535-16T3 contacted the Division in April and May inquiring into the letter's meaning and her benefit eligibility. Eventually, she learned she was only entitled to reimbursement of decedent's contributions rather than survivor retirement benefits because decedent did not survive long enough to attain twenty-five years of service. Appellant wrote the Division and requested permission to change decedent's retirement application from early retirement to ordinary disability retirement. In her correspondence, she stated, "Had we known how sick my husband really was and how quickly the cancer would cause his death[,] we would have filed for a retirement benefit with a disability status." In response, the Division confirmed its determination that appellant was not entitled to survivor retirement benefits because decedent did not attain twenty-five years of service. Subsequently, with the assistance of counsel, appellant filed an appeal with the Board. In her appeal, she requested to "reopen, amend, modify, and/or change retroactively" decedent's retirement application, based on the following arguments: (1) decedent "lacked sufficient information to make an informed choice among his retirement options"; (2) decedent "was incapacitated by a combination of physical, psychological and emotional burdens that reasonably prevented him from making an informed decision"; (3) "there was a mutual mistake in his retirement selection based upon 4 A-1535-16T3 the lack of information and the detrimental reliance on the specific instructions which did not conform to [decedent's] true intent, which was to maximize benefits for his wife and children"; (4) "the Board should exercise its discretionary authority to avoid an inequitable outcome affecting a retiree's innocent spouse and family"; and (5) appellant "acted with reasonable diligence in every step of the way in [decedent's] retirement situation before and after his death." The Board denied appellant's request, finding "no evidence in the record that [decedent] relied upon any advice given to him by the Division to his detriment," and denied culpability for the allegedly poor advice the NJEA provided. The Board also noted decedent failed to attain twenty-five years of service, as required by N.J.S.A. 18A:66-113.1. Finally, it noted the Division was unaware of decedent's terminal illness at the time he submitted his retirement application, but stated decedent "could have availed himself to the Fact Sheets[,] which provide information regarding the different retirement types available and the eligibility criteria required for each selection or seek guidance from the Division." Appellant appealed the Board's findings, repeating her prior arguments and further contending there existed good cause to alter the application. The Board denied her appeal and issued the final 5 A-1535-16T3 administrative determination under review. In its determination, the Board found "the statutes and regulations governing the [Teachers' Pension and Annuity Fund] do not permit the Board to grant [appellant's] request to change her husband's retirement type from [e]arly to [o]rdinary [d]isability retirement." It further found, "there was no evidence in the record that [decedent] relied upon any advice given to him by the Division to his detriment. In fact, you advised that [decedent] sought the advice and assistance of the NJEA, who actually filed his retirement application on his behalf." It also repeated its prior reasoning, finding: The Board cannot comment on any advice that was provided to [decedent] by the [NJEA]. The Division was unaware that [decedent] had serious health problems when he filed his application for retirement. However, the Board disagrees with your assertion the Division failed to provide him with sufficient information upon which he could have made an informed decision. Also, he could have availed himself to the Fact Sheets which provide information regarding the different retirement types available and the eligibility criteria required for each selection or seek guidance from the Division. Finally, the Board again confirmed that decedent did not complete twenty-five years of service, rendering him ineligible for early retirement under N.J.S.A. 18A:66-113.1. Accordingly, it held it 6 A-1535-16T3 was "without authority" to change decedent's retirement type from early retirement to ordinary disability. This appeal followed. II On appeal, appellant argues she demonstrated good cause for the Board to allow her to modify her husband's retirement application. She further argues that, at the time decedent completed his application, he lacked capacity due to severe stress associated with his terminal diagnosis. Finally, appellant argues the Board's alleged failure to follow the requirements of N.J.A.C. 17:3-6.3 invalidates her husband's retirement benefits selection, thereby allowing her to change the retirement application, and choose ordinary disability benefits. Our review of an administrative agency's decision is limited. In re Herrmann, 192 N.J. 19, 28 (2007). A reviewing court may reverse only those administrative decisions that are arbitrary, capricious, unreasonable, or violative of expressed or implicit legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Unfortunately for appellant, the Board's decision in the instant matter is neither arbitrary nor violative of any legislative policy. N.J.S.A. 18A:66-113.1 — early retirement — provides in pertinent part: 7 A-1535-16T3 Should a member resign after having established [twenty-five] years of creditable service before reaching age [sixty], he [or she] may elect 'early retirement,' provided that such election is communicated by such member to the retirement system by filing a written application, duly attested, stating at what time subsequent to the execution and filing thereof he [or she] desires to be retired. N.J.S.A. 18A:66-41 — ordinary disability allowances — provides: A member upon retirement for ordinary disability shall receive a retirement allowance which shall consist of: (a) an annuity which shall be the actuarial equivalent of his accumulated deductions at the time of his retirement together with regular interest after January 1, 1956; and (b) a pension in the amount which, when added to the member's annuity, will provide a total retirement allowance of 1.64 [percent] of final compensation multiplied by his [or her] number of years of creditable service; and provided further, that in no event shall the allowance be less than 43.6 [percent] of final compensation. Upon the receipt of proper proofs of the death of a member who has retired on an ordinary disability retirement allowance, there shall be paid to such member's beneficiary, an amount equal to [one-and-one-half] times the compensation upon which contributions by the member to the annuity savings fund were based in the last year of creditable service or in the year of the member's highest contractual salary, whichever is higher . . . . We first reject appellant's claim that decedent's illness incapacitated him by the time he completed his retirement 8 A-1535-16T3 application. The record lacks support for this claim. Appellant conceded both she and decedent failed to appreciate the progression of her husband's illness when he completed the application. At that time, early retirement represented the most sensible option because it provided greater benefits both before and after decedent's scheduled retirement. Although we are sympathetic to appellant's loss, we cannot rely on her hindsight to permit her to alter or amend decedent's retirement application. Moreover, appellant's evidence supporting her incapacitation argument — a doctor's letter stating terminal illness causes mental and emotional distress — fell short of establishing incapacitation. Additionally, we are not persuaded by appellant's arguments regarding the Board's alleged failure to follow N.J.A.C. 17:3- 6.3(a), which states "a member shall have the right to withdraw, cancel, or change an application for retirement at any time before the member's retirement allowance becomes due and payable . . . ." The plain language of N.J.A.C. 17:3-6.3 indicates it only applies to a retirement application the Board has already approved. Here, decedent was ineligible for early retirement at the time he passed away; therefore, the Division never approved his application. Moreover, appellant cites inapposite case law to support her assertion. 9 A-1535-16T3 We conclude the record lacks evidence the Division knew of decedent's medical condition or that the Division provided decedent with any advice upon which he relied; instead, if decedent relied upon any representations, the record indicates they came from the NJEA. Unfortunately, decedent passed away before attaining twenty-five years of service. Thus, the Board did not act arbitrarily or contrary to legislative intent in denying appellant the ability to amend or modify decedent's retirement application. Affirmed. 10 A-1535-16T3

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Docket No.: a1695-16
Decided: 2018-06-15
Caption: IN THE MATTER OF FAHEEM MURPHY DEPARTMENT OF HUMAN SERVICES
Status: unpublished
Summary:
PER CURIAM Faheem Murphy, who had been employed as a senior medical security officer at the Ann Klein Forensic Center, Department of Human Services, appeals from the November 30, 2016 denial of reconsideration by the Civil Service Commission (Commission). The underlying order denied Murphy's request for a hearing regarding his removal from employment on September 1, 2015. Two final notices of disciplinary action (FNDA) were issued regarding Murphy's criminal charges of fourth-degree obstructing administration of law or other governmental function, N.J.S.A. 2C:29-1(a), his failure to report the arrest on the charges, and subsequent conviction. Defendant properly and timely filed appeals of the first two FNDAs, however, he did not respond to the third and final FNDA removing him from employment. Accordingly, since no timely appeal was made of the third FNDA, Murphy's petition seeking a hearing was denied as untimely and the first two appeals were dismissed as moot. After our review of the record and relevant law, we affirm. Defendant grounded his application for reconsideration on questions regarding the mailing of the third FNDA. On January 9, 2016, delivery was attempted, but the certified mail was eventually returned to the appointing authority. The first two FNDAs had been served in the same manner——by ordinary mail and certified mail return receipt requested. Although Murphy never signed return receipt for any of the notices, none of the three ordinary mailings were returned as undeliverable. All were sent to the same address. 2 A-1695-16T1 Because the Deputy Attorney General handling the file had not received an appeal of the third FNDA, he contacted Murphy's counsel. Attached to that inquiry was the third FNDA, which was mailed on February 25, 2016. On February 29, 2016, Murphy's counsel responded that he would look into the matter. On March 30, 2016, the Deputy again asked whether a third appeal had been timely filed. Receiving no reply, the appointing authority on April 7, 2016, moved to dismiss the appeal as moot. Murphy objected and filed an appeal of the third FNDA the following day. On April 27, 2016, the Commission issued a decision dismissing the appeal as untimely. The application for reconsideration followed. Murphy's certification acknowledged that the mailing had been sent to the correct address. He claimed that he received the third FNDA from his attorney on April 21, 2016, and filed an appeal the following day. He neither admitted nor denied that he had received the third FNDA prior to that date. Citing to N.J.A.C. 4A:2-1.6(b), the Commission observed that it could not reconsider prior decisions unless the moving party demonstrated a clear material error, presented new evidence, or offered additional information that would alter the outcome not included in the original proceeding. The Commission noted Murphy's disciplinary action was controlled by N.J.S.A. 11A:2-13. 3 A-1695-16T1 Furthermore, N.J.A.C. 4A:2-2.8 established a twenty-day limit for appeals, which is jurisdictional and cannot be relaxed. Mesghali v. Bayside State Prison, 334 N.J. Super. 617, 622 (App. Div. 2000). As the Commission went on to state: [Murphy] does not dispute that the certified mail was sent to his home. . . . [H]e acknowledges that notice was left at his home and no one was there to receive the FNDA. The petitioner cannot benefit from refusing to pick up the certified mail at the post office when he clearly received notice of the attempted delivery. . . . [T]he certified mail was returned to the appointing authority on February 4, 2016. Therefore, the petitioner should have filed his appeal no later than February 24, 2016. Regardless, the appointing authority indicates that its ordinary practice is to send the FNDA by both certified and regular mail when an employee is not on duty. The record in this matter does not indicate that the regular mail containing the FNDA was returned. There is a presumption that mail correctly addressed, stamped and mailed was received by the party to whom it was addressed. See SSI Medical Services, Inc. v. State Department of Human Services, 146 N.J. 614 (1996); Szczesny v. Vasquez, 71 N.J. Super. 347, 354 (App. Div. 1962); In the Matter of Joseph Bahun, Docket No. A-1132- 00T5F (App. Div. May 21, 2001). Although the appellant submits an affidavit, he does not specifically state that he did not receive the FNDA by regular mail or that it was his first time receiving the FNDA when it was handed to him by his attorney. Given the foregoing and the appointing authority's undisputed method of service of the petitioner's other two FNDAs by certified and regular mail, the petitioner has not persuasively rebutted the presumption. 4 A-1695-16T1 It is emphasized that even though one of the prior FNDAs sent by certified mail was returned as undeliverable, the petitioner timely appealed that removal. Furthermore, N.J.A.C. 4A:2-2.8(a) provides that "an appeal from a [FNDA] must be filed within [twenty] days of receipt of the Notice by the employee. Receipt of the Notice on a different date by the employee's attorney or union representative shall not affect this appeal period." Although the critical issue regarding this regulatory provision is when the petitioner received the notice, it cannot be ignored that the petitioner's attorney had notice of the third removal on February 29, 2016 when he responded to Hahn. He was again contacted on March 30, 2016. It is suspect that the petitioner's attorney would not have conveyed this information to the petitioner at any time during this time period. Thus, the filing of the petitioner's appeal on April 22, 2016 was not made within a reasonable time. As noted above, if the appointing authority fails to provide the employee with a FNDA, an appeal may be made within a reasonable time. See N.J.S.A. 11A:2-15 and N.J.A.C. 4A:2-2.8. The Commission correctly concluded no material error occurred, and no new evidence was presented which would change the outcome of this case. There was no basis upon which to grant reconsideration of the Commission's prior decision. On appeal, Murphy argues only that there was insufficient evidence that the third FNDA was correctly addressed to the appellant, that proper postage affixed to it, that the return address was correct, and that the mailing of the third FNDA was 5 A-1695-16T1 deposited in a proper mail receptacle. A certification was submitted by the appointing authority that standard practice is to mail FNDAs by ordinary and certified mail. It is undisputed that Murphy appropriately filed appeals of the first and second notice he received while not acknowledging receipt of the registered mailings. Nothing in the record suggests he did not receive the third FNDA since the same procedure was followed. We consider this argument to be so lacking in merit as to not warrant much discussion in a written decision. R. 2:11- 3(e)(1)(E). Murphy has not established that the Commission's determination was arbitrary, capricious, or unreasonable, or that it lacked fair support in the record as a whole. Karins v. Atlantic City, 152 N.J. 532, 540 (1998). The strong presumption of reasonableness attached to a decision of the Commission is warranted in this case. In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001). Affirmed. 6 A-1695-16T1

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Docket No.: a1973-16
Decided: 2018-06-15
Caption: R.R. v. J.M.
Status: unpublished
Summary:
PER CURIAM Plaintiff, R.R.1, appeals from the December 2, 2016 Family Part orders entered after a plenary hearing, which dismissed her complaint seeking a genetic test to establish paternity. We affirm substantially for the reasons set forth in the comprehensive decision rendered by Judge Lisa P. Thornton. I. The chronology is critical to our reasoning in this matter. Plaintiff filed a non-dissolution application against defendant, J.M., her former paramour, seeking to compel him to submit to genetic testing in order to establish paternity of her son, J.R. At the time of the 2016 hearing, J.R. was fourteen years old. Plaintiff was married to defendant, B.R., when J.R. was born. J.R. is their second child together. R.R. and B.R., were married on July 12, 1992, and divorced on July 6, 2005. They litigated the divorce matter through binding arbitration with a retired Superior Court Judge, who rendered a decision which ultimately was incorporated into the parties' Final 1 Since this matter involves paternity of a minor child, initials are being used to protect the confidentiality of the parties. See R. 1:38-3(a)(14). 2 A-1973-16T4 Judgment of Divorce ("FJOD"). B.R. was ordered to pay child support to R.R. for J.R., who was four years old at the time, and the parties' daughter, who is now emancipated. Following the divorce, R.R. and B.R. were litigious. Sixty motions and applications were filed addressing post-judgment matters. Ten years after the divorce, R.R. raised the paternity issue for the first time in a post-judgment motion in the divorce case. On July 18, 2016, the trial court denied R.R.'s motion to compel B.R. to undergo genetic testing. A motion for leave to appeal that order was denied on March 15, 2016. R.R. renewed her request for genetic testing in the non- dissolution complaint. R.R. asserted she had an extra-marital affair with her former employer, J.M., from 1999 until 2003. She claimed she had unprotected sexual intercourse with J.M. thirty days before and thirty days after J.R. was conceived.2 She informed J.M. that she was pregnant, but not that he was J.R.'s father. When J.R. was born, B.R. was named the father on the birth certificate and assumed the role of a "loving, caring, 2 Defendant B.R. filed a cross-motion seeking to have the dissolution matter (FM docket) consolidated with the non- dissolution matter (FD docket) and to have R.R.'s FD complaint dismissed on the grounds of judicial estoppel based upon R.R.'s concession as to B.R.'s paternity in the FM matter. Judge Thornton did not consolidate the FD and FM matters. B.R. did not participate in this appeal. 3 A-1973-16T4 doting, adoring father," as found by Judge Thornton. B.R. testified that he "never missed a moment of parenting time" until R.R. uprooted J.R. and moved him to Morris County, where she currently resides with her boyfriend. Abuse allegations against B.R. arose thereafter. J.R. became estranged from B.R. and had not seen him in over two years as of the time of the trial court proceedings.3 R.R. now contends that it is "nearly impossible" that B.R. is J.R's biological father because their sexual encounters were "infrequent," due to B.R.'s "health issues." She testified that he was impotent. He denied that, and testified that their sexual encounters were "more than infrequent." As to J.M., she testified that their sexual encounters were "weekly, sometimes bi-weekly." However, J.M. testified that he saw her only "[a] couple of times, three, four, times in a year." R.R. provided inconsistent accounts about when she concluded that J.M. was J.R.'s father, and who she told what and when. R.R. set forth in one of her certifications submitted with her application that she suspected J.M. was J.R.'s biological father from the beginning: "In 2001 when I found out that I was pregnant . . . I told [J.M.] (as I suspected he was the father)." To the 3 At the time of oral argument, counsel confirmed that J.R. still has not seen B.R. 4 A-1973-16T4 contrary, J.M. testified that she told him that B.R. was the father. B.R. testified that he never doubted his paternity. As the trial court noted, R.R. offered a different account in a second certification, "in stark contrast to her first certification." R.R. stated that she "did not come to truly believe that [J.M.] could be [J.R.'s] father until [J.R.] grew older and his appearance changed. I now believe that it is nearly impossible for [B.R.] to be [J.R.'s] father and it is important to determine whether or not my beliefs are accurate." She acknowledged that J.M. never admitted to paternity, never sent her cards or letters regarding the pregnancy, never offered to pay for an abortion, never visited J.R., and never provided financial support. The trial court considered a photograph of J.R. R.R. testified that J.R.'s eyebrow, hair line, crooked front tooth, and broad chest resembled those of J.M. B.R. testified that he and J.R. had the same hair color and J.R. has a fair complexion. J.M. testified that he was of Italian descent and that he has an olive complexion. At the hearing, R.R. denied filing the application in order to interfere with B.R.'s relationship with J.R. Notwithstanding that representation, she also testified that B.R. was abusive to J.R. and that she believed J.R. should know that B.R. is not his 5 A-1973-16T4 biological father, and that it would not have a negative impact on the child. Even if it did, it was a risk that she was "ready to take." R.R. considered the possibility J.M. would not want a father- child relationship with J.R. if paternity were established. J.M. is married and has four sons, a daughter, and a granddaughter. He testified unequivocally that his family would not accept J.R. if his paternity was established, and that he was not looking to establish a relationship with him. R.R. attempted to rationalize, "I don't know that that would be the case. I'm not sure that [J.R.] would really do that . . . I think it's important to find out and establish paternity either way." Judge Thornton denied R.R.'s request for genetic testing. As R.R. contends Judge Thornton applied the wrong legal standard, we will address the judge's conclusions of law in detail in the legal discussion. Suffice it to say here that the judge found B.R. and J.R. to be credible, and R.R. to be incredible. The judge noted R.R.'s inconsistent statements about who was J.R.'s father. She noted that R.R. testified in a prior proceeding that if B.R. was not J.R.'s father, then she did not know who was. The court found that R.R. was motivated by her enmity for B.R. R.R. wanted J.M to take a DNA test because, as R.R. admitted, "[B.R.] is crazy" and "keeps going for custody." The judge found that R.R. knew 6 A-1973-16T4 that J.M. "had no desire to have a relationship with J.R. even if he was his son, but was willing to risk J.R.'s emotional health and expose him to further humiliation and rejection." II. R.R. raises three points on appeal. She contends the court applied the wrong legal standard for assessing her claim. In particular, she contends the judge applied the Uniform Parentage Act, instead of the standard set forth in D.W. v. R.W., 212 N.J. 232 (2012). She also contends the trial court erred by not acknowledging that she met her burden to submit a sworn statement regarding paternity. Lastly, she contends the trial court failed to shift the burden to defendant to show why genetic testing should be denied. In assessing R.R.'s arguments, we apply a limited scope of review. We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus, "[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (alteration in original) (quoting N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). 7 A-1973-16T4 While we owe no special deference to the judge's legal conclusions, Manalapan Realty, LP v. Township Committee of Mnalapan, 140 N.J. 366, 378 (1995), we will not disturb the judge's "'factual findings and legal conclusions . . . unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice' or when we determine the court has palpably abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, 154 N.J. at 412). We will only reverse the judge's decision when it is necessary to "'ensure that there is not a denial of justice' because the family court's 'conclusions are [] clearly mistaken or wide of the mark.'" Id. at 48 (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We consider first R.R's contention that the court applied the wrong legal standard. A paternity test is not an automatic right of putative fathers or anyone else. It should only be ordered by a court after a careful balancing of all of the circumstances surrounding the alleged paternity. C.R. v. J.G., 306 N.J. Super. 214, 228 (Ch. Div. 1997) (citations omitted). 8 A-1973-16T4 The New Jersey Parentage Act ("NJPA"), N.J.S.A. 9:17-38 to 9:17-59, and not the traditional best interest of the child standard, governs applications to either prove or disprove paternity. D.W., 212 N.J. at 236 (citation omitted). One of the primary goals of the NJPA is to "ensure that children receive the financial support from their parents to which they are entitled." Id. at 246. As noted in D.W., the NJPA does not dictate how to determine if good cause exists to deny genetic testing. The Court devised eleven factors a trial court should consider in determining if good cause exists to undergo or forgo genetic testing: (1) the length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father; (2) the length of time during which the presumed or acknowledged father has assumed the role of father of the child; (3) the facts surrounding the presumed or acknowledged father's discovery of his possible nonpaternity; (4) the nature of the relationship between the child and the presumed or acknowledged father; (5) the nature of the relationship between the child and any alleged father; (6) the age of the child; 9 A-1973-16T4 (7) the degree of physical, mental, and emotional harm that may result to the child if presumed or acknowledged paternity is successfully disproved; (8) the extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; (9) the extent, if any, to which uncertainty of parentage exists in the child's mind; (10) the child's interest in knowing family and genetic background, including medical and emotional history; and (11) other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father or the chance of other harm to the child. [Id. at 257.] In considering the application, Judge Thornton appropriately applied this eleven factor test. As the judge found, R.R. waited over fourteen years before filing an application to adjudicate parentage even though she had suspicions early on that J.M. was the father. B.R. is the only father J.R. knows and he provided financial support for him over the years. After personal observation, the judge did not see any resemblance between J.R. and J.M., further substantiating her conclusion that R.R. was disingenuous. Only after R.R. moved J.R. to Morris County did he rebel against his mother and express a 10 A-1973-16T4 desire to live with B.R. The child's position dramatically changed after a trip to Florida with his mother and her new boyfriend. J.M. has no relationship with J.R. and does not want one. The judge found: While [R.R.] may be willing to take the risk that J.R. will be emotionally harmed if paternity is disproved, this court is not. For the majority of his life, J.R. has been embroiled in the middle of a never-ending custody dispute between the parties and has been exposed to the venom and discord that often accompanies high conflict custody disputes. There is no question that he has had emotional problems, and the parties' inability to parent has played a role in [J.R.'s] difficulties. This court will not expose him to the possibility that someone else is his father, and the rejection that could come if paternity was disproved.4 Judge Thornton weighed the eleven factors fairly, and emphasized the role B.R. had played in J.R.'s life until recent years; B.R.'s financial support of the child; the absence of any relationship between J.R. and J.M.; and his lack of interest in forming any relationship with the child. Moreover, the record fully supports Judge Thornton's conclusion that R.R. is not seeking financial support from J.M., and that there is no credible evidence that he is J.R.'s father. 4 At oral argument, counsel for R.R. advised that the underlying matter was transferred from Monmouth to Morris County and that J.R.'s guardian ad litem was discharged. 11 A-1973-16T4 In light of the court's application of the D.W. factors, we reject R.R.'s contention that the court incorrectly applied the Uniform Parentage Act. The judge referenced the Uniform Parentage Act's ("UPA") principle of parentage by estoppel as espoused by the Supreme Court in D.W., 212 N.J. at 255-56. Although the UPA was not adopted in this State, the judge came to the correct conclusion, and "it is well-settled that appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) (citing Heffner v. Jackson, 100 N.J. 550, 553 (1985)). As to the second issue raised, R.R argues that the trial court misapplied the law governing motions to compel genetic testing because R.R. met her burden by virtue of her sworn statement alleging J.M.'s paternity. Applying our deferential standard of review, we reject this contention based upon the trial court's thoughtful opinion. Judge Thornton's finding that R.R. was not credible also finds strong support in the record. She found that R.R. made a "poor witness" and that there were inconsistencies in her two certifications which were not reconciled at the hearing. On the other hand, the judge found J.M. and B.R. to be "fair witnesses." 12 A-1973-16T4 Paternity is presumed under the law where a man is married or was married to a child's biological mother, and the child was born during the marriage. N.J.S.A. 9:17-43(a)(1). The presumption of paternity may be rebutted by clear and convincing evidence in an appropriate proceeding. N.J.S.A. 9:17-43(b). The record supports the trial court's finding that R.R. failed to meet that burden. J.R.'s paternity was adjudicated at the time the FJOD was entered and should not be disturbed at this juncture. The NJPA mandates that paternity actions be joined in an action for divorce. N.J.S.A. 9:17-46(a).5 Finally, R.R. argues that "the trial court erred by not shifting the burden to [B.R.] to demonstrate good cause for why genetic testing should not be ordered." We find no error here. There was ample evidence in the record to support the court's finding that there was good cause to deny genetic testing. As Judge Thornton declared, "[R.R.] filed this paternity claim after she was thwarted in her attempts to terminate [B.R.'s] custody rights." The judge further elaborated that "[R.R's] actions in filing the paternity action are not motivated by a desire for J.R. 5 The NJPA provides that no action shall be brought pursuant to the act more than five years after the child attains the age of majority. N.J.S.A. 9:17-45(b). This creates a twenty-three year statute of limitations commencing with the child's date of birth. 13 A-1973-16T4 to know his family or medical history." The circumstances presented and found by Judge Thornton reveal that "[t]he matter was not filed to ensure that J.R. was supported financially." The judge concluded that the paternity action was filed to "hurt defendant [B.R.]" and as a "desperate attempt to undercut this Court's rulings and validate the two-year separation between J.R. and his father." Therefore, R.R's argument fails as to shifting the burden of proof. In sum, after reviewing the record, we conclude that Judge Thornton's factual findings are fully supported, and her legal conclusions are sound. We therefore affirm Judge Thornton's denial of genetic testing and dismissal of the complaint against J.M., and her denial of the application to consolidate the FD and FM matters. Affirm. 14 A-1973-16T4

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Docket No.: a3040-16
Decided: 2018-06-15
Caption: ESTATE OF DIONYSIOS MARKETOS v. CAREPOINT HEALTH
Status: unpublished
Summary:
PER CURIAM The estate of Dionysios Marketos appeals from the March 3, 2017 order granting summary judgment to Carepoint Health (Carepoint) and dismissing plaintiff's slip and fall complaint. Marketos was a priest who, on February 23, 2015, was giving last rites to a member of his congregation in the Bayonne Medical Center when he slipped and fell in the patient's hospital room, breaking his hip. Carepoint's summary judgment motion alleged that Marketos did not establish negligence. The trial court found there was no actual or constructive notice of a dangerous condition and that mode of operation did not apply. On November 20, 2016, after being deposed, Marketos died from amyotrophic lateral sclerosis (ALS). His estate was substituted as plaintiff. "Summary judgment is appropriate 'when no genuine issue of material fact is at issue and the moving party is entitled to a judgment as a matter of law.'" Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 (2016)); R. 4:46-2(c). "We review appeals from determinations of summary judgment by employing the same standards governing the trial court." Lee, 232 N.J. at 126. Plaintiff must be given the benefit of all favorable inferences. R. 4:46-2(c). The admissible evidence did not show a factual dispute that would defeat summary judgment. Marketos did not know what caused his fall, nor did he notice anything on the floor. The nurse's report did not list a cause. She could not remember anything about the fall when she was deposed. Five hospital reports 2 A-3040-16T4 contained the hearsay information that plaintiff slipped on ice. A housekeeping employee submitted an affidavit stating: I recall the patient saying that Father Dionysios must have fallen because the floor was wet, apparently because she had spilled her ice water. I checked the floor and noticed a wet spot, which I mopped up. It is not known how long the wet spot was there or even whether the wet spot came about before, during or after plaintiff was treated after his fall on the floor of the hospital room. The dying patient's statement is hearsay also. "Hearsay is defined as 'a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' Hearsay is inadmissible unless it falls into one of the recognized exceptions." State v. Kuropchak, 221 N.J. 368, 387 (2015) (quoting N.J.R.E. 801(c) and citing N.J.R.E. 802). Even if evidence existed that Marketos slipped on ice water spilled by the patient, there was no testimony that the hospital was negligent or violated any policy concerning cleaning up spills. "Under the mode-of-operation rule, a business invitee who is injured [on the premises of the business] is entitled to an inference of negligence and is relieved of the obligation to prove that the business owner had actual or constructive notice of the dangerous condition that caused the accident." Prioleau v. Ky. 3 A-3040-16T4 Fried Chicken, Inc., 223 N.J. 245, 248 (2015). "The rule has only been applied to settings such as self-service or a similar component of the defendant's business, in which it is reasonably foreseeable that customers will interact directly with products or services, unassisted by the defendant or its employees." Id. at 249. The "'factors bearing on the existence of a reasonable probability' that a dangerous condition would occur [are]: 'the nature of the business, the general condition of the premises, and a pattern of conduct or recurring incidents.'" Id. at 258 (quoting Bozza v. Vornado, Inc., 42 N.J. 355, 360 (1964)). The hospital room was not a self-service cafeteria and did not conform to the requirements of a mode-of-operation facility. Without actual or constructive notice to defendant of the unknown condition that caused the fall, the motion court properly granted summary judgment dismissing the case. Affirmed. 4 A-3040-16T4

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Docket No.: a3816-16
Decided: 2018-06-15
Caption: FRANK BOOKER v. NEW JERSEY STATE PAROLE BOARD
Status: unpublished
Summary:
PER CURIAM Appellant Frank Booker appeals from the March 29, 2017 final agency decision of the New Jersey State Parole Board (Board) denying him parole and imposing a 144-month future eligibility term (FET). We affirm. On January 27, 1987, a jury convicted appellant of murder and aggravated arson. On April 6, 1987, appellant was sentenced to life imprisonment with a thirty-year period of parole ineligibility. He was also sentenced to five consecutive years for arson. While incarcerated, appellant was indicted for possession of a controlled dangerous substance (CDS). On October 22, 2001, he pled guilty to this charge and was sentenced to an additional four-year concurrent term of incarceration. Thereafter, appellant pled guilty on August 22, 2014, to conspiracy to manufacture, distribute and disperse a CDS. He was sentenced to a three-year concurrent term of incarceration. Appellant became eligible for parole on January 6, 2016. However, a two-member panel of the Board denied him parole on January 19, 2016, and referred his case to a three-member panel (panel) to establish a FET outside of the administrative guidelines. The panel determined a 144-month FET was appropriate. In an comprehensive decision, the panel noted the following aggravating factors: (1) serious nature of the offenses; (2) his extensive and repetitive prior criminal record; (3) his present incarceration for multi-crime convictions; (4) his disciplinary record during his current incarceration consisting of nine disciplinary infractions, some of which were drug related and several of which were offenses resulting in loss of commutation 2 A-3816-16T2 credits and confinement in administrative segregation; (5) insufficient problem resolution, specifically, appellant's lack of insight into his criminal behavior, minimization of his conduct, and limited understanding of his inner rage; (6) his lack of an adequate parole plan; (7) his risk evaluation score of 19, indicating a high risk of recidivism; (8) his criminal record becoming more serious; and (9) prior opportunities on community supervision failed to deter his criminal behavior. As mitigation, the panel considered appellant's participation in institutional programs, including programs specific to behavior; average to above average institutional reports; attempts made to enroll in programs despite being denied admission; the achievement and maintenance of minimum custody status; and letters of support. In addition, the panel considered information classified as confidential pursuant to N.J.A.C. 10A:71-2.2(c). After considering the applicable factors in N.J.A.C. 10A:71- 3.11(b), the panel determined that appellant remained a substantial threat to public safety, essentially for the reasons enumerated above, warranting the setting of a FET that differed from the presumptive term. The panel further found that, pursuant to N.J.A.C. 10A:71-3.21(d), a 144-month FET was appropriate given appellant's lack of rehabilitative progress, his lack of remorse for his actions, and his justification for his criminal mindset. 3 A-3816-16T2 Parole supervision was not deemed appropriate. The 144-month FET results in a projected parole eligibility date of April 22, 2022. Appellant appealed the panel decision to the Board on August 29, 2016. On March 29, 2017, the Board upheld the recommendation to deny parole and to impose a 144-month FET. This appeal ensued. Appellant presents the following arguments for our consideration: POINT ONE: APPELLANT ARGUES THAT THE [BOARD] HAS IGNORED AND UNDERVALUED SUBSTANTIAL EVIDENCE AND RELIED ON THE SAME REPETITIVE, REDUNDANT, AND REPEATED JUSTIFICATIONS TO DENY PAROLE AND IMPOSE EXCESSIVE (FET) THAT IT HAS PREVIOUSLY EMPLOYED UNTO INMATES SERVING LIFE TERMS FOR MURDER. POINT TWO: APPELLANT CONTENDS THAT THE [BOARD] ERRONEOUSLY REACHED ITS DECISION TO DENY PAROLE BASED ON A PRECONCEIVED NOTION OF A SUBSTANTIAL LIKELIHOOD THAT HE WOULD COMMIT A NEW CRIME IF RELEASED ON PAROLE. POINT THREE: THE [BOARD] MISTAKENLY IMPOSED A[N] ONE- HUNDRED AND FOURTY-FOUR (144) MONTHS FUTURE ELIGIBILITY TERM (FET). We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). We affirm substantially for the reasons 4 A-3816-16T2 expressed in the Parole Board's comprehensive written decision. We add only the following brief comments. We must accord considerable deference to the Board and its expertise in parole matters. Therefore, our review of a Parole Board's decision is limited. Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div. 2004). "Parole Board decisions are highly individualized discretionary appraisals, and should only be reversed if found to be arbitrary or capricious." Id. at 179- 80 (citations omitted). We "must determine whether the factual finding could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 179 (citations omitted). In making this determination, we "may not substitute [our] judgment for that of the agency, and an agency's exercise of its statutorily- delegated responsibilities is accorded a strong presumption of reasonableness." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citations omitted). Accordingly, "[t]he burden of showing that an action was arbitrary, unreasonable or capricious rests upon the appellant." Ibid. An inmate serving a minimum term in excess of fourteen years is ordinarily assigned a twenty-seven-month FET after a denial of parole. See N.J.A.C. 10A:71-3.21(a)(1). However, in cases where an ordinary FET is "clearly inappropriate due to the inmate's lack 5 A-3816-16T2 of satisfactory progress in reducing the likelihood of future criminal behavior[,]" the Board may impose a greater FET. N.J.A.C. 10A:71-3.21(d). Here, we discern no basis to disturb the Board's decision. The Board considered the relevant factors in N.J.A.C. 10A:71-3.11. Its decision is supported by sufficient credible evidence in the record and is entitled to our deference. We are satisfied that the denial of parole and the imposition of a 144-month FET was neither arbitrary, capricious nor unreasonable. See McGowan, 347 N.J. Super. at 547 (affirming the imposition of a thirty-year FET based on appellant's high likelihood of recidivism). Affirmed. 6 A-3816-16T2

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Docket No.: a4254-16
Decided: 2018-06-15
Caption: NEW CENTURY FINANCIAL SERVICES, INC v. NIR DEGANI
Status: unpublished
Summary:
PER CURIAM Plaintiff New Century Financial Services, Inc. appeals from the following orders regarding its collection action against defendant Nir DeGani: a January 6, 2017 order vacating a default judgment; a January 13, 2017 order dismissing the complaint without prejudice; a March 31, 2017 order denying a motion to suppress defendant's answer; and a May 12, 2017 order denying reconsideration of the March 31 order. We reverse and remand. Defendant obtained a Chase Bank credit card on which he accumulated approximately $14,000 in debt. Plaintiff purchased defendant's credit card debt. In October 2000, plaintiff filed suit against defendant to collect the outstanding debt and accrued interest. Defendant was served with the complaint but failed to respond. On February 7, 2001, a default judgment was entered against defendant for $17,051.61. In or around July 2001, defendant moved to vacate the default judgment. The motion was granted on August 3, 2001. After defendant filed an answer, plaintiff propounded discovery. When defendant failed to respond to the discovery requests, plaintiff again moved for default. On March 21, 2003, plaintiff obtained a default judgment against defendant in the amount of $23,190.96, plus costs. In December 2016, defendant moved to vacate the 2003 default judgment. The motion judge granted defendant's motion as "unopposed." However, plaintiff claimed it was not timely or properly served with defendant's motion. Plaintiff contended the 2 A-4254-16T4 motion clerk improperly designated the filing date of defendant's motion as the return date of the motion. Plaintiff argued it submitted timely opposition to defendant's motion had the motion been heard on the correct return date. The motion judge's order granting defendant's motion to vacate default judgment was signed on January 6, 2017. Plaintiff reasoned the judge had not reviewed its opposition to the motion, filed on January 6, 2017, before granting defendant's application. The January 6, 2017 order failed to include a statement of reasons in support of the relief granted. On January 13, 2017, the judge entered an order dismissing plaintiff's complaint without prejudice. There were no written or oral findings and legal conclusions regarding the judge's January 13, 2017 order. Nor was there any explanation why the judge issued the order absent a motion. Plaintiff moved for reconsideration of the January 6, 2017 order. Plaintiff requested oral argument on the reconsideration motion. However, on February 17, 2017, the motion judge denied the motion without hearing oral argument. Plaintiff also filed a motion to suppress defendant's answer for failure to provide discovery. See R. 4:23-5(a)(2). In a written statement of reasons, the judge denied plaintiff's motion on March 31, 2017. In his order, the judge wrote "[t]rial in this matter is scheduled for May 15, 2017." The judge's notation 3 A-4254-16T4 scheduling a trial conflicted with the January 13, 2017 order dismissing plaintiff's complaint without prejudice. In April 2017, plaintiff moved for reconsideration of the March 31, 2017 order denying the motion to suppress defendant's answer. On May 12, 2017, without conducting oral argument, the judge denied plaintiff's reconsideration motion, noting "pursuant to this [c]ourt's January 13, 2017 order, plaintiff's complaint is still dismissed without prejudice." There was no statement of reasons supporting the judge's January 13, 2017 order. Thus, the May 12, 2017 order, relying on the judge's reasoning in support of the January 13, 2017 order, provided no explanation for the denial of plaintiff's reconsideration motion. Plaintiff raises various appellate arguments related to the orders on appeal. We need not reach the merits of plaintiff's arguments based on our determination that the orders must be vacated and the matter remanded to the trial court for further proceedings. Rule 1:7-4 requires a trial court, "by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right." The failure of a trial court to meet the requirements of the rule "constitutes a disservice to the litigants, the attorneys and the appellate 4 A-4254-16T4 court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). It is the obligation of a trial court to state its factual findings and then connect those findings to the legal conclusions in support of the ruling. See Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 594-95 (App. Div. 2016) (citing Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986)). The failure to advance reasons in support of a judicial decision results in our speculating as to the trial court's thinking. See Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). "Neither the parties nor the appellate court is 'well-served by an opinion devoid of analysis or citation to even a single case.'" Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 300 (App. Div. 2009) (quoting Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 498 (App. Div. 2000)). For these reasons, the orders on appeal are vacated and the matter is remanded to the trial court for further proceedings. On remand, the trial court should permit oral argument in accordance with Rule 1:6-2(d) (motions requesting oral argument, other than pretrial discovery or matters addressed to the calendar, "shall be granted as of right"). 5 A-4254-16T4 Reversed and remanded. We do not retain jurisdiction. 6 A-4254-16T4

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Docket No.: a4688-16
Decided: 2018-06-15
Caption: STATE OF NEW JERSEY v. ALAMEEN F. ADAMS
Status: unpublished
Summary:
PER CURIAM Defendant Alameen F. Adams appeals the trial court's February 14, 2017 order denying his motion for post-conviction relief ("PCR") without an evidentiary hearing. We affirm. After a jury trial in 2011, defendant was found guilty of murder, first-degree robbery, and other offenses. The court sentenced him to a thirty-five-year custodial term on the murder count with a thirty-year parole disqualifier, along with other concurrent sentences. In March 2013, we issued an unpublished opinion affirming defendant's convictions and sentence, rejecting arguments different from the ones he now makes in the present PCR appeal. State v. Adams, No. A-0727-11 (App. Div. Mar. 26, 2013). The Supreme Court denied defendant's petition for certification. State v. Adams, 216 N.J. 7 (2013). As described in our prior opinion, this homicide concerned the shooting of the victim, Ian Morris (also known as "Steve"), in an apartment building in East Orange. The State's proofs showed that defendant and two other individuals named Michael Potts and Abdul Simpkins had been on the nearby street on March 24, 2010. Potts was looking for someone to sell him marijuana. Simpkins, a friend of Potts, suggested that he could ask his supplier, Morris, who lived down the street, to sell Potts the drugs. Defendant approached Simpkins and Potts and conversed with Simpkins out of Potts' earshot. Defendant, Simpkins, and Potts then went to Morris' residence. A surveillance camera showed that defendant entered the building with Morris at 5:47 p.m. and left the building nine 2 A-4688-16T2 minutes later at 5:56 p.m. Around 6:00 p.m., Morris was found dead in the fifth-floor stairwell with a single gunshot wound to his head. There were no eyewitnesses to the actual shooting, although Potts described defendant's jacket as having a noticeable bulge in the stomach area, as if he seemed to be trying to hide something. No gun was ever recovered or any forensic evidence tying defendant to the shooting. On direct appeal, defendant argued that the jury was tainted because they may have overheard defense counsel's discussion about trial strategy in the courthouse hallway. He also argued that the court should have charged the jury on the defense of voluntary intoxication. We rejected both of those points. State v. Adams, No. A-0727-11, slip op. at 5-11. In his present PCR petition, defendant contends that his trial attorney was ineffective in not arguing a theory of third- party guilt. Defendant claims in this regard that his counsel should have invoked the excited utterance hearsay exception, N.J.R.E. 803(c)(2), to attempt to get admitted a statement that the decedent allegedly made to his friend Kelly Weekes an unspecified number of days before the shooting. In that statement, the decedent, allegedly in an excited fashion, told Weekes that a "Dominican" person had pulled a gun on him, that he was "pissed off" that it had occurred, and that the Dominican would not get 3 A-4688-16T2 away with it. After conducting a Rule 104 hearing, the trial judge decided this hearsay statement was too unreliable to be presented to the jury. After considering the arguments presented in defendant's PCR petition, Judge Marysol Rosero rejected defendant's claims and found no necessity for an evidentiary hearing. She concluded that the excited utterance rule requires that the utterance be made "without an opportunity to deliberate or fabricate." See N.J.R.E. 803(c)(2). Because of the unspecified time interval between the statement and the operative events, Judge Rosero ruled that such an argument for admissibility, even if it had been made, would have been unavailing. Judge Rosero also agreed with the trial judge that, even if the hearsay problem somehow could be surmounted, the alleged statement was not reliable. Defendant now contests the judge's analysis. On appeal, defendant raises the following sole point for our consideration: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO ESTABLISH THIRD-PARTY GUILT PURSUANT TO THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULE. Our review of this PCR appeal is guided by well-established principles. Under the Sixth Amendment of the United States 4 A-4688-16T2 Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), overruled on other grounds by, State v. Czachor, 82 N.J. 392 (1980)). In order to obtain an evidentiary hearing on a PCR application based upon ineffective assistance claims, a defendant must make a prima facie showing of deficient performance and actual prejudice. State v. Preciose, 129 N.J. 451, 462-64 (1992). "When determining the propriety of conducting an evidentiary hearing, the PCR court should view the facts in the light most favorable to the 5 A-4688-16T2 defendant." State v. Jones, 219 N.J. 298, 311 (2014) (citing State v. Marshall, 148 N.J. 89, 158 (1997)); see also Preciose, 129 N.J. at 462-63. We have considered defendant's appeal in light of these legal standards and the record. Having done so, we affirm the trial court's dismissal of defendant's PCR petition, substantially for the cogent reasons set forth in Judge Rosero's February 14, 2017 oral opinion. We only add a few amplifying comments. We fully agree with Judge Rosero that the victim's alleged statement to Weekes about the alleged prior incident with the Dominican was not an admissible excited utterance. The victim appears to have had an opportunity to deliberate or fabricate before making the statement. See, e.g., State v. Cotto, 182 N.J. 316, 323-29 (2005) (ruling that a time interval of thirty-five to forty-five minutes was too lengthy in the context provided to meet the requirements of the rule). Moreover, we agree with the court that the probative value of the statement was minimal at best. Moreover, given the timing of defendant entering the building with the victim and hurriedly leaving ten minutes later, the jury reasonably made a circumstantial inference that defendant was the victim's shooter. Although defendant argues that one of the other people, such as Potts or Simpkins, might have been the trigger person, or that some unidentified third party in the area might 6 A-4688-16T2 have entered the building without being caught on camera, that claim is highly speculative. We accordingly concur with Judge Rosero that defendant failed to present a prima facie case of ineffectiveness of his former trial counsel. Because of that failure, an evidentiary hearing on defendant's petition was unnecessary. Preciose, 129 N.J. at 462. Affirmed. 7 A-4688-16T2

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Docket No.: a4714-16
Decided: 2018-06-15
Caption: DEUTSCHE BANK NATIONAL TRUST COMPANY v. MICHAEL HOCHMEYER
Status: unpublished
Summary:
PER CURIAM Defendant Michael Hochmeyer appeals from a June 1, 2017 final judgment of foreclosure. We affirm. In May 2006, defendant executed a promissory note for $560,000 along with a mortgage in favor of Decision One Mortgage Company, LLC (Decision One). The promissory note states, "If, on June 1, 2036, [defendant] still owe[s] amounts under this [n]ote, [defendant] will pay those amounts in full on that date, which is called the 'Maturity Date.'" The note also states that upon default, plaintiff "may require [defendant] to pay immediately the full amount of [p]rincipal that has not been paid and all the interest [owed] on that amount." The mortgage states defendant "has promised to pay . . . the debt in full not later than June 1, 2036." Defendant defaulted on the loan in December 2006. Mortgage Electronic Registration Systems (MERS), as nominee for Decision One, filed a foreclosure complaint in August 2007. In that complaint, MERS required defendant to pay the unpaid principal and interest in full, pursuant to the acceleration clause. During the 2 A-4714-16T3 course of that litigation, Decision One transferred the loan to plaintiff. In October 2009, the trial court entered final judgment in favor of plaintiff for $707,265.97. In August 2013, plaintiff voluntarily dismissed the complaint without prejudice. The record does not indicate whether plaintiff also vacated the judgment. In March 2016, plaintiff filed a second foreclosure complaint against defendant. Plaintiff filed a motion for summary judgment and defendant cross-moved for dismissal, arguing the statute of limitations barred the claim. In January 2017, the trial court granted plaintiff's motion for summary judgment and denied defendant's cross-motion for dismissal. On May 12, 2017, the court entered an order in favor of plaintiff for $1,202,880.86, which it finalized in a judgment on June 1, 2017. Defendant appeals from the June 1, 2017 final judgment. On appeal, defendant makes two arguments. First, defendant argues the statute of limitations bars plaintiff's March 2016 complaint. Second, defendant argues he is responsible only for the amount of the first judgment, and not the additional amount for the interest accrued and taxes and insurance paid since the first judgment. We review a ruling on summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). "If there is no 3 A-4714-16T3 genuine issue of material fact, we must then decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). Here, the first issue presented is a purely legal one, and the underlying facts are undisputed. The parties agree defendant defaulted, plaintiff's predecessor filed an initial foreclosure complaint in August 2007 that stated "the whole unpaid principal . . . with all unpaid interest . . . shall now be due," and plaintiff filed another foreclosure complaint in March 2016. The issue is whether the filing of the initial complaint in August 2007 began the six-year statute of limitations period under N.J.S.A. 2A:50-56.1(a). N.J.S.A. 2A:50-56.1 provides: An action to foreclose a residential mortgage shall not be commenced following the earliest of: a. Six years from the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note, bond, or other obligation secured by the mortgage, whether the date is itself set forth or may be calculated from information contained in the mortgage or note, bond, or other obligation, except that if the date fixed for the making of the last payment or the maturity 4 A-4714-16T3 date has been extended by a written instrument, the action to foreclose shall not be commenced after six years from the extended date under the terms of the written instrument; b. Thirty-six years from the date of recording of the mortgage, or, if the mortgage is not recorded, [thirty-six] years from the date of execution, so long as the mortgage itself does not provide for a period of repayment in excess of [thirty] years; or c. Twenty years from the date on which the debtor defaulted, which default has not been cured, as to any of the obligations or covenants contained in the mortgage or in the note, bond, or other obligation secured by the mortgage, except that if the date to perform any of the obligations or covenants has been extended by a written instrument or payment on account has been made, the action to foreclose shall not be commenced after [twenty] years from the date on which the default or payment on account thereof occurred under the terms of the written instrument. In construing statutes, the Legislature has instructed "its words and phrases 'shall be read and construed with their context, and shall, unless inconsistent with the manifest intention of the [L]egislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning . . . .'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 471 (2012) (quoting N.J.S.A. 1:1-1). "To the extent possible, the [c]ourt must derive its construction from the Legislature's plain language." Ibid. (citations omitted). "When construing a statute, 5 A-4714-16T3 '[l]egislative language must not, if reasonably avoidable, be found to be inoperative, superfluous or meaningless.'" State v. Regis, 208 N.J. 439, 449 (2011) (quoting Franklin Tower One, LLC v. N.M., 157 N.J. 602, 613 (1999) (alteration in original)). Defendant argues plaintiff accelerated the loan in August 2007, when its predecessor filed the first complaint and declared the full amount due; as a result, the "last payment" became due in August 2007 and the statute of limitations under N.J.S.A. 2A:50- 56.1(a) began to run. Because the statute of limitations period under section (a) is six years, defendant asserts any complaint filed after August 2013 is barred. Plaintiff argues filing a foreclosure complaint does not accelerate the "last payment" date for purposes of section (a). Therefore, section (c) applies and the statute of limitations expires twenty years after the default. Since the default occurred on December 1, 2006, plaintiff asserts any complaint filed before December 1, 2026 conforms to the statute of limitations. Because the statute itself does not make clear which section applies when the lender files a foreclosure complaint accelerating the loan, we look to the legislative intent. See Guillaume, 209 N.J. at 471. First, the legislative history states the purpose of the statute was to "address some of the problems caused by the presence on the record of residential mortgages which have been 6 A-4714-16T3 paid or which are otherwise unenforceable. These mortgages constitute clouds on title which may render real property titles unmarketable and delay real estate transactions." S. Commerce Comm. Statement to S. 250, 1 (May 8, 2008); Assemb. Fin. Insts. & Ins. Comm. Statement to S. 250, 1 (May 8, 2008). Importantly, in summarizing section (a), both committees use only the phrase "date of maturity" and not "last payment date," and analogize that section to the six-year statute of limitations for contracts. Ibid. Second, the legislative history makes clear that for a default, the intent was to set a twenty-year statute of limitations from the date of default. The bill, in part, codifies the holding in Security National Partners Limited Partnership v. Mahler, 336 N.J. Super. 101 (App. Div. 2000), which applied a [twenty]- year statute of limitations to a residential mortgage foreclosure action based on a default due to nonpayment. In its decision, the court noted that since there is currently no statute of limitations expressly applicable to mortgage foreclosures in these situations, courts have resorted to drawing analogies to adverse possession statutes which bar rights of entry onto land after [twenty] years. This bill would resolve the uncertainties surrounding this area of law by providing a specific statute of limitations of [twenty] years from the date of the default by the debtor. 7 A-4714-16T3 [S. Commerce Comm. Statement to S. 250, 1 (May 8, 2008); Assemb. Fin. Insts. & Ins. Comm. Statement to S. 250, 1-2 (May 8, 2008).] Here, neither the note nor mortgage states that an acceleration of the debt changed the maturity date. The note itself expressly defines the maturity date: "If, on June 1, 2036, I still owe amounts under this note, I will pay those amounts in full on that date, which is called the 'Maturity Date.'" Moreover, this is not a case where there is a cloud on the title rendering the property unmarketable. This is a case of default, where the lender is entitled to foreclose. The record reflects no dispute that defendant stopped paying the mortgage in 2006 and that plaintiff has paid all carrying costs for the property since that time. As a result, dismissal of plaintiff's March 2016 complaint would provide an inequitable result because defendant would receive a windfall at plaintiff's expense. Accordingly, we affirm the trial court's decision to apply the twenty-year statute of limitations from the date of default as the Legislature intended. Defendant also argues awarding plaintiff $495,614.89 more than the first final judgment amount of $707,265.97 results in a windfall to plaintiff. We disagree. Rule 4:64-1(d)(3) provides, "Any party . . . who disputes the correctness of the affidavit of amount due may file with the Office 8 A-4714-16T3 of Foreclosure an objection stating with specificity the basis of the dispute and asking the court to fix the amount due." Although defendant objected to plaintiff's calculation of the final judgment, the trial court found defendant did not object "with specificity" because he failed to support his objection with any proofs of his own, or offer an alternative to plaintiff's calculation. The $1,202,880.86 final judgment entered on June 1, 2017 consisted of $559,448.67 in unpaid principal, $436,325.46 in interest, $149,287.21 in taxes, $57,166.52 in insurance, and $653 in property inspection costs. The interest was calculated from the date of the last payment made to March 3, 2017. Defendant made no specific objections to plaintiff's calculations. Rather, defendant argues plaintiff delayed enforcement of the October 2009 judgment and the court should not reward plaintiff for that delay. However, defendant's argument again ignores the fact that plaintiff paid all of the carrying costs on the property, including taxes and insurance, while defendant lived there payment-free. Equity dictates the court grant plaintiff a judgment for its reasonable expenditures. See Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012) ("In foreclosure matters, equity must be applied to plaintiffs as well as defendants."). Accordingly, we affirm 9 A-4714-16T3 the trial court's final judgment in the full amount of $1,202,880.86. Affirmed. 10 A-4714-16T3

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Docket No.: a4735-16
Decided: 2018-06-15
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.B.
Status: unpublished
Summary:
PER CURIAM Defendants E.B. (Erin) and M.B. (Martin) appeal from a June 21, 2017 Family Part order terminating their parental rights to their son K.B. (Kyon), who was one year old at the time of the guardianship trial.1 Their appeals have been consolidated. The law guardian supports the termination. We affirm substantially for the reasons stated by Judge Francine I. Axelrad in her thorough oral opinion. The evidence is outlined in detail in the judge's opinion. A summary will suffice here. Kyon was born in 2016 and tested positive for marijuana at birth, as did his mother, Erin. He was immediately removed and placed with a relative, and is now in the care of his maternal aunt, who has adopted his three older siblings. The parents voluntarily surrendered their rights to the 1 Pursuant to Rule 1:38-3(d)(12), we use initials and pseudonyms to refer to the parties. 2 A-4735-16T2 three older children in November 2015.2 Kyon was thriving in the home and had no special needs. The Division of Child Protection and Permanency (Division) was involved with the family beginning in 2012. Erin had trouble providing sufficient food or a habitable home for the older children. Although she completed parenting classes in 2014, she was unable to comply with numerous drug and home-making services. She repeatedly tested positive for marijuana and PCP, and was diagnosed with severe psychiatric disorders. Martin had experienced a history of strokes. The Division's expert found "evidence of significant cognitive limitations that are expected to interfere with safe and effective parenting." Another Division expert found that his "neurocognitive deficits" rendered him unable to parent alone. He also suffered from various psychiatric disorders. A third Division expert found that Erin and Martin were unable to compensate for each other's parenting deficits. They also had a history of domestic violence. One of the Division experts opined that Kyon was not securely bonded to his parents, and after two months with his current caretakers had begun to form a secure bond living with them and his siblings. Although both parents testified, they presented no 2 Martin is not the father of the oldest child. 3 A-4735-16T2 expert evidence. Erin was unable to control her anger in the courtroom. In her comprehensive opinion, Judge Axelrad found the Division had proven all four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), and that termination of defendants' parental rights was in the child's best interests. On this appeal, our review of the trial judge's decision is limited. We defer to her expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and we are bound by her factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). After reviewing the record, we conclude that the trial judge's factual findings are fully supported by the record and, in light of those facts, her legal conclusions are unassailable. Martin contends that the trial judge erred in considering evidence of the parents' history with the older children based on the Division's files. Defendant also asserts that the judge erred in finding that he harmed Kyon, because Kyon never lived with his parents and suffered no known ill effects from the marijuana in his system at birth. Erin argues that the Division did not prove all four prongs by clear and convincing evidence. Those arguments 4 A-4735-16T2 are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We note only that "proof of abuse or neglect of one child" is "admissible evidence on the issue of the abuse or neglect of any other child . . . ." N.J.S.A. 9:6-8.46(a)(1). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Affirmed. 5 A-4735-16T2

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Docket No.: a4768-16
Decided: 2018-06-15
Caption: MICHELE SCHWAB v. WOODBRIDGE TOWNSHIP SCHOOL DISTRICT BOARD OF EDUCATION MIDDLESEX COUNTY
Status: unpublished
Summary:
PER CURIAM Plaintiff Michele Schwab appeals from an order entered by the Law Division on May 26, 2017, denying her motion to vacate an arbitration award that upheld the termination of her employment by defendant Woodbridge Township Board of Education (Board). We affirm. This appeal arises from the following facts. On February 7, 2015, plaintiff entered a Sears at the Woodbridge Center Mall where loss prevention agents observed her placing a hat and hooded sweatshirt into her purse. After plaintiff exited the store, a store employee stopped plaintiff and asked her to return to the store and discuss the merchandise the employee believed she had stolen. When confronted with surveillance footage, plaintiff admitted in writing to removing store merchandise without payment. During the meeting with plaintiff, the Sears asset protection manager referred the matter to the Woodbridge Township police. The police subsequently arrested plaintiff and filed a criminal complaint against her in the municipal court. The court later dismissed the complaint when the Sears employee failed to appear and testify against plaintiff. The Board learned of plaintiff's arrest on March 3, 2015, when Dr. Robert Zega, Superintendent of Schools for Woodbridge Township's School District (District), received a letter from plaintiff's attorney. Dr. Zega had been unaware of plaintiff's 2 A-4768-16T1 arrest. After he received the letter, Dr. Zega scheduled a meeting with the District's director of personnel, plaintiff, and her union representative. At the meeting, which took place on March 4, 2015, plaintiff admitted she had been arrested for shoplifting. Dr. Zega suspended plaintiff with pay pending investigation of the incident. Several months later, Dr. Zega lifted the suspension after he learned that the municipal court had dismissed the criminal charges against plaintiff. At the arbitration hearing, Dr. Zega explained that he was "hoping that this was a one-time incident" and "wanted to be compassionate to [plaintiff] and return her to the classroom." On March 5, 2016, plaintiff entered a store in Beach Haven, where she picked up a picture frame valued at $60, "placed it in her purse and left the store without paying for the item." The store's owner was unaware that plaintiff had taken the picture frame. However, after later discovering that the frame was missing, the store's owner viewed the surveillance footage, and posted the footage on the social media website "Facebook" in an effort to identify the individual responsible. The video was viewed approximately 47,000 times, and at least one of plaintiff's fourth- grade students saw the video. 3 A-4768-16T1 After another teacher at plaintiff's school brought the video to the attention of the school's principal, the principal viewed the video. Plaintiff was identified as the person who took the picture frame from the Beach Haven store. She was arrested by Beach Haven police and charged with shoplifting. During a court proceeding on May 2, 2016, plaintiff applied for admission to the conditional dismissal program. N.J.S.A. 2C:43-13.1 to -13.9. Entry into this program requires a guilty plea. N.J.S.A. 2C:43-13.1(a). Plaintiff pled guilty and she was admitted to the program. On April 25, 2016, Dr. Zega filed tenure charges against plaintiff, with several counts of unbecoming conduct and/or other just cause for disciplinary action based upon: (1) theft/shoplifting (two counts); (2) the failure to report her arrest; (3) violations of district policies; and (4) a pattern of unbecoming conduct, insubordination and/or other just cause over a substantial period of time. On April 28, 2016, the Board considered the tenure charges. The Board voted unanimously to suspend plaintiff without pay and to certify the charges to the Commissioner of Education (Commissioner). On April 29, 2016, the Board transmitted the tenure charges to the Commissioner. On May 13, 2016, plaintiff filed an answer with the Commissioner, seeking dismissal of the charges and her reinstatement with back pay. Thereafter, the Commissioner 4 A-4768-16T1 transmitted the tenure charges to an arbitrator for a hearing pursuant to N.J.S.A. 18A:6-16. The arbitrator conducted evidentiary hearings on August 20, September 7, and October 4, 2016. At the hearings, the District presented testimony from Dr. Vega, the principal of plaintiff's school, and the Sears asset protection manager. Plaintiff also testified and called two expert witnesses in psychiatry who discussed her mental health history. The parties also submitted documentary evidence. Plaintiff's principal testified that due to the public nature of the shoplifting incident, she received eight calls from parents expressing their concern. She further testified that the students in the school's two fourth-grade classes became aware of the video posted on Facebook. She explained that she had assigned the school's guidance counselor to provide lessons to the fourth-grade students to instruct them in positive behavior and assist them in distinguishing between rumor and fact. On January 5, 2017, the arbitrator issued his opinion on the charges. The arbitrator noted that plaintiff had admitted she engaged in the conduct that resulted in her arrests in February 2015 and March 2016, and that her conduct was illegal and inappropriate. She also conceded her conduct had a harmful impact upon the District and constituted a breach of her trust as a 5 A-4768-16T1 teacher. Plaintiff argued, however, that she remained fit to continue as a teacher in the school. She also asserted that her mental health issues and the change in her medication were contributing factors in her conduct. She argued that her removal was draconian and not warranted by the circumstances. The arbitrator found, however, that plaintiff had violated her duty to report her first arrest, and that she had engaged in unbecoming conduct that affected the proper operation of the school. The arbitrator found that the Board had "met its burden to establish that [plaintiff] engaged in the conduct alleged and that it had just cause to discipline [her]." The arbitrator found that removal was the appropriate penalty. On February 21, 2017, plaintiff filed a complaint and Order to Show Cause in the Law Division seeking an order vacating the arbitration award. Plaintiff alleged the arbitrator failed to review the matter de novo and improperly applied an abuse-of- discretion standard. On May 26, 2017, the judge issued his decision, stating "there were distinct findings by the arbitrator sustaining the unavoidable conclusion that [plaintiff] engaged in the unbecoming conduct." The judge explained that [t]he language of the arbitrator's decision upon which plaintiff relies in support of the assertion that the arbitrator applied the 6 A-4768-16T1 lesser standard of abuse of discretion in reaching his conclusion . . . is contravened by the extensive narrative addressing the plaintiff's unbecoming conduct, and that specific language . . . relied upon by the plaintiff this [c]ourt finds to be . . . not more than dicta. Accordingly, the judge denied plaintiff's application to vacate the arbitrator's award and entered the order dated May 26, 2017, memorializing his determination. This appeal followed. On appeal, plaintiff argues that the trial court erred by refusing to vacate the arbitration award. We disagree. "Judicial review of an arbitration award is very limited." Bound Brook Bd. of Ed. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 276 (2010)). "An arbitrator's award is not to be cast aside lightly. It is subject to being vacated only when it has been shown that a statutory basis justifies that action." Ibid. (quoting Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979)). N.J.S.A. 18A:6-10 provides that a tenured public school employee may not be "dismissed or reduced in compensation . . . except for inefficiency, incapacity, unbecoming conduct, or other just cause." The school board must find that charges are substantiated and refer them to the Commissioner. N.J.S.A. 18A:6- 7 A-4768-16T1 11. If the Commissioner finds the charges have merit, the matter is referred to an arbitrator for decision. N.J.S.A. 18A:6-16. The arbitrator's decision is "final and binding," but is subject to judicial review. N.J.S.A. 18A:6-17.1(e). The award may only be set aside: a. Where the award was procured by corruption, fraud or undue means; b. Where there was either evident partiality or corruption in the arbitrators, or any thereof; c. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause being shown therefor, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party; [or] d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made. [N.J.S.A. 2A:24-8.] Here, plaintiff was charged with unbecoming conduct, which is conduct that "adversely affects the morale or efficiency of the [department]" or "has a tendency to destroy public respect for [government] employees and confidence in the operation of [public] services." Ciripompa, 202 N.J. at 13 (quoting In re Young, 202 N.J. 50, 66 (2010)) (alterations in original). 8 A-4768-16T1 Unbecoming conduct "need not 'be predicated upon the violation of any particular rule or regulation, but may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct.'" Id. at 13-14 (quoting Karins, 152 N.J. at 555; Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992)). In determining whether a teacher has engaged in unbecoming conduct, the Commissioner may take into account "any harm or injurious effect which the teacher's conduct may have had on the maintenance of discipline and the proper administration of the school system." In re Grossman, 127 N.J. Super. 13, 30 (App. Div. 1974) (quoting In re Fulcomer, 93 N.J. Super. 404, 422 (App. Div. 1967)). Plaintiff argues that the arbitrator "imperfectly executed" his powers, thereby requiring the vacation of the award pursuant to N.J.S.A. 2A:24-8d. Plaintiff maintains the arbitrator erroneously reviewed the Board's decision using an abuse-of- discretion standard, rather than reviewing the decision "de novo." Plaintiff notes that when rendering a decision on tenure charges, the Commissioner is required to make an independent decision on the charges and the penalty to be imposed. Fulcomer, 93 N.J. Super. at 409-10 (App. Div. 1967). Plaintiff contends that 9 A-4768-16T1 since N.J.S.A. 2A:6-16 now requires the Commissioner to refer tenure charges to an arbitrator for a hearing, the arbitrator also must make "an independent decision" on the charges, and not review the Board's decision under an abuse-of-discretion standard. In support of this contention, plaintiff relies upon the following statements in the arbitrator's opinion: This repeated act of dishonesty within a thirteen (13) month period allowed the District to exercise its discretion to remove [plaintiff] from her tenured position. District policy provides for the penalty of dismissal "when appropriate." This requires the District to exercise its judgment in accordance with just cause principles. A penalty short of removal was within the discretion of the District but I cannot find that it abused its discretion by not doing so. I also conclude that the evidence concerning [plaintiff's] mental health history cannot serve to mitigate against the District's decision to impose the penalty of removal. However, as the trial court explained in its decision, these statements were "contravened by the extensive narrative" offered by the arbitrator, which thoroughly addressed plaintiff's unbecoming conduct that led to her termination. Although plaintiff asserts the arbitrator's references to the Board's "discretion" and "judgment" show that the arbitrator was being "deferential to the Board's desire to end" her employment, 10 A-4768-16T1 the arbitrator made clear the Board had the burden of proof. The arbitrator stated that the Board had to establish that plaintiff engaged in the conduct alleged, and if so, whether disciplinary action was warranted. The arbitrator never stated the Board only had to show that it did not abuse its discretionary authority. As the trial court noted in its decision, the arbitrator's statements show that he had a clear understanding of the standard of review he was required to apply. Given the arbitrator's extended discussion of the relevant facts, including plaintiff's two arrests, her failure to report the first arrest, and the impact these arrests had on the school and the students, the trial court correctly determined that the arbitrator's references to the "discretion" and "judgment" of the Board amounted to "no[] more than dicta." We therefore conclude the arbitrator applied the correct standard in determining whether the Board had carried its burden of proving the conduct alleged, and whether disciplinary action was warranted. The trial court correctly found that plaintiff had not established a basis to set aside the arbitration award under N.J.S.A. 2A:24-8. Affirmed. 11 A-4768-16T1

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Docket No.: a5735-14
Decided: 2018-06-15
Caption: MCICOMMUNICATION SERVICES INC v. DIRECTOR, DIVISION OF TAXATION
Status: unpublished
Summary:
FUENTES, P.J.A.D. In this appeal, we are asked to determine whether the New Jersey's Corporation Business Tax Act, N.J.S.A. 54:10A-1 to -40, permits a corporate taxpayer to reduce its New Jersey reported income by erasing a decision it made as a part of its federal tax strategy. The taxpayer here is MCI Communication Services, Inc. Plaintiff acquired cancellation of debt income (CODI) arising out of a Title 11 bankruptcy, which was pushed down to it by its parent company. The taxpayer only received this pushed-down CODI because it filed a consolidated tax return. Pursuant to 26 U.S.C. § 108(a)(1)(A), plaintiff then excluded the CODI from its gross income on its federal consolidated tax return. However, 26 U.S.C. § 108(b) required the taxpayer to reduce its tax attributes to account for the exclusion, and 26 U.S.C. § 108(b)(5) permitted the taxpayer to meet this requirement by decreasing its depreciation deductions by the amount of the exclusion. On its New Jersey separate tax return, the taxpayer asserted that the CODI was not taxable income under New Jersey law and 2 A-5735-14T3 claimed a deduction that reduced its Entire Net Income by the amount of its forfeited depreciation deductions. The Director of the Division of Taxation denied the deduction, explaining New Jersey law does not sanction this arrangement. Plaintiff appealed the determination to the Tax Court and argued the Division erred because: (1) New Jersey calculates taxable income by looking to a taxpayer's federal tax return, N.J.S.A. 54:10A-4(k); (2) New Jersey law, specifically N.J.A.C. 18:7-11.15(b), forbids consolidated tax returns, so the taxpayer was required to report its income as if it had filed its federal return separately; (3) had the taxpayer filed a separate federal tax return, it would have neither received the pushed-down CODI nor reduced its depreciation deductions by that amount; and (4) treating the pushed-down CODI as taxable income amounts to creating and taxing phantom income. The Tax Court affirmed the Director's decision. Plaintiff now appeals. We affirm substantially for the reasons expressed by Judge Kathi F. Fiamingo in her letter opinion dated July 20, 2015. Affirmed. 3 A-5735-14T3

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Docket No.: a0748-16
Decided: 2018-06-14
Caption: STATE OF NEW JERSEY v. HAROLD MILLER
Status: unpublished
Summary:
PER CURIAM Defendant Harold Miller appeals from his convictions and sentences, following the Law Division's denial of his motions to compel discovery, for a Franks1 hearing, and to suppress evidence. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm the denial of the motions and the convictions but remand for resentencing. I. We discern the following facts from the record. Members of the Anti-Crime Unit of the New Brunswick Police Department received multiple complaints from a concerned citizen regarding narcotics activity. According to the citizen, individuals known to him or her as Bryan Arline and Harold Miller were selling heroin and cocaine from their second floor apartment (the Apartment) located in a two-story residential building in New Brunswick (the Building). The citizen further stated Arline and Miller transported the drugs to and from the Apartment in a green Acura and a green Cadillac. Based on this information, on May 5, 2014, Detective Joshua Alexander conducted surveillance of the Building. Alexander observed Arline pull up to the front of the Building in a green Acura. Another individual, later identified as Michal Alegre, 1 Franks v. Delaware, 438 U.S. 154 (1978). 2 A-0748-16T2 arrived separately in a black Honda. Alegre entered the Building and remained inside for less than five minutes before exiting and quickly driving away. Alexander then observed Dwayne Lambert exit the Building, look inside the trunk of Arline's Acura, go back inside the Building, and leave about twenty minutes later. Shortly thereafter, Alegre returned to the Building in the same Honda and went inside. After remaining inside for less than five minutes, Alegre went outside and spoke to Lambert. Alegre and Lambert went back inside the Building. Two minutes later, Alegre left the Building and drove away. Sometime thereafter, Alexander spoke with a reliable confidential informant (CI). The CI confirmed narcotics sales by individuals known to him or her as Bryan and Harold from the Apartment. The CI confirmed Bryan and Harold frequently drove a green Acura and a green Cadillac to transport drugs to the Apartment. The CI advised he or she personally observed Bryan and Harold selling heroin and cocaine inside the Apartment. Three controlled buys were made by the CI at the Apartment. Two involved Lambert and the other involved Arline. On May 14, 2014, Alexander applied for and obtained a search warrant for the Apartment and the persons of Lambert and Arline but not Miller. 3 A-0748-16T2 The following day, prior to executing the search warrant, Alexander and Sergeant John Quick observed Alegre arrive in her black Honda. Alegre went inside the Building where she remained for less than ten minutes before exiting with Arline. Alegre entered her vehicle and Arline leaned into the vehicle for a brief conversation. When Alegre drove off, Quick advised Detectives Robert Bogdanski and Rosario Maimone to stop Alegre because she was driving with a suspended license and registration. Bogdanski and Maimone followed Alegre to a gas station. Maimone told Alegre he stopped her for driving with a suspended license and registration. Alegre began to cry and said she had to use the bathroom. Maimone told her she could use the bathroom as soon as they were done. Alegre then stated, "Ok, ok, ok, I have a little bit of heroin on me and a set." She turned over seven bags of heroin marked "Brick Mansion," a hypodermic needle, and a shoe lace from her jacket pocket. At police headquarters, Alegre gave a videotaped statement, during which she stated she bought seven bags of heroin that day from "Jamal," and had previously bought heroin from "Dowop." Alegre identified a photograph of Miller as the man she knew as "Jamal," the man she had purchased heroin from that day. Quick knew "Jamal" was Miller and "Dowop" was Lambert from prior investigations. 4 A-0748-16T2 While still outside the Building, Alexander observed Arline exit with an unidentified female wearing scrubs. Alexander followed them to Robert Wood Johnson Hospital. The female went inside and Arline left on a bicycle towards Plum Street. Quick decided to stop Arline. When Quick and Detective Karlo Sarmiento exited their van and announced "Police," Arline fled on his bike. The officers chased Arline to the Building. Arline entered the Building but was unable to open the door to the Apartment. He then reached into his pockets and threw thirty-eight decks of heroin and thirty dollars into a nearby crate, which were recovered by Quick. After knocking and announcing, Sarmiento gained access to the Apartment with a ram and entered it with Detective Walcott. Walcott apprehended Lambert in the dining room. Sarmiento proceeded to the bathroom where he found Miller hiding in the bathtub. Sarmiento apprehended Miller, brought him to the kitchen, ordered him to the ground, and handcuffed him. Sarmiento then conducted a protective search of Miller during which he felt a bulge created by objects inside Miller's front right pants pocket. The search revealed a bag of cocaine in his left front pants pocket and two bags of heroin in his right front pants pocket containing 100 decks of heroin labeled "Brick Mansion." Meanwhile, Quick apprehended Arline and brought him 5 A-0748-16T2 into the Apartment. By the time Alexander entered the Apartment, all three suspects were handcuffed and sitting on the kitchen floor. Alexander observed Miller attempt to discard five decks of heroin labeled "Brick Mansion" that he had removed from the back pocket of his pants. Alexander then found an additional forty decks of heroin and $225 in the same back pocket. The police also recovered a red plastic bag used to hold currency from Miller's bedroom and $1686.75 from Miller's bedroom closet. A canine unit alerted positive for narcotics during a sweep of the Apartment and the green Cadillac. Miller gave consent to search the Cadillac, but the detectives did not find any contraband. During the search of the remainder of the Apartment, the detectives recovered four bags of cocaine, a plate and razor with cocaine residue, two digital scales, two boxes of baking soda, and a bag containing sandwich bags from the kitchen. They recovered another bag of cocaine from the landing near the front door and a bag containing Buprenorphine Hydrochloride pills and empty heroin decks from another bedroom. They also recovered narcotics paraphernalia, empty heroin decks, and a cell phone from Lambert's bedroom. On October 22, 2014, a grand jury returned Indictment No. 14- 10-1166, charging Miller, Arline, and Lambert with: third-degree 6 A-0748-16T2 conspiracy to possess heroin and cocaine with the intent to distribute, N.J.S.A. 2C:35-5 and 2C:5-2 (count one); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count two); third- degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three); third- degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count four); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count five); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count six); third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count seven).2 This same indictment also charged Miller alone with: third- degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count nine); and third-degree distribution of heroin in a school zone, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count ten). Additionally, on January 21, 2015, a grand jury returned Indictment No. 15-01-0070, charging Miller with: second-degree 2 Arline and Lambert were co-defendants on Indictment No. 14-10- 1166, but are not parties to this appeal. 7 A-0748-16T2 conspiracy to commit robbery, N.J.S.A. 2C:15-1(a)(1) and N.J.S.A. 2C:5-2 (count one); second-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count two); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count three).3 In May 2015, Miller moved to compel discovery in connection with the controlled dangerous substance (CDS) offenses, seeking disclosure of: (1) all documents relating to the three controlled buys described in the search warrant affidavit; (2) the identity of the concerned citizen; (3) all information relating to any credibility findings of the police officers involved, including any materials relating to disciplinary proceedings and findings against members of the narcotics team; and (4) any recorded testimony during the search warrant application. The State represented none of the information relating to the controlled buys would be presented by the State in its case-in- chief. The State also indicated the police still actively used the surveillance location and disclosure would result in the loss of the location for future surveillance. The trial court heard oral argument on July 15, 2015, and denied Miller's motion in an August 25, 2015 order, which included 3 The robbery occurred on July 30, 2014, when defendant forcibly grabbed and attempted to take property from the victim. 8 A-0748-16T2 a comprehensive statement of reasons. Miller does not appeal from that order. The judge noted there were no controlled buys involving Miller and he was not charged with any offenses occurring prior to the execution of the search warrant. At trial, Miller could cross- examine the officers who conducted the surveillance regarding their distance, elevation, line of sight, and any visual obstructions. He concluded Miller did not make a substantial showing of a need for disclosure of the surveillance location in order to be able to conduct his defense. The judge found Rule 3:13-3(e) protected the identity of the concerned citizen and safeguarding the citizen from physical threats and harm warranted withholding his or her identity. He noted the defense "simply asserts that the identity of the concerned citizen is necessary to challenge the search by arguing the warrant was obtained through false information." As to disclosure of the personnel files, the judge rejected Miller's argument that disclosure was necessary to test credibility, finding defendant "failed to demonstrate how any of the officers' personnel files are relevant, material, or exculpatory." The judge concluded Miller had not shown any "logical connection between the officers' personnel files and any fact in issue." The judge also noted a recent in camera review 9 A-0748-16T2 of Quick's personnel file in an unrelated case revealed nothing relevant or material with regard to his credibility. He held "the mere possibility" that the "personnel files might include helpful information, unsupported by the facts, is insufficient to justify an in camera review let alone disclosure" of the files. On January 8, 2016, Miller moved to: (1) suppress the evidence seized from him during a warrantless search; (2) for a Franks hearing to determine the validity of the search warrant; and (3) for leave to use information relating to the controlled buys conducted by Alexander at trial to show the sales were made by co- defendants and not Miller. A different judge heard oral argument on April 29, 2016, and denied the motion in its entirety in a comprehensive written opinion. As to the motion to suppress, the judge noted the search warrant is presumed valid and Miller had not overcome that presumption. The judge noted a valid warrant to search for contraband gives limited authority to the police to detain the occupants of the premises while the search is conducted. Accordingly, she found defendant's initial detention during the execution of the search warrant to be lawful. As to the results of the protective search conducted by Sarmiento, the judge reasoned: 10 A-0748-16T2 Considering the totality of the circumstances, the [c]ourt finds that it was reasonable for Detective Sarmiento to do a protective search of Mr. Miller's person to ensure that he was not armed, and there was no risk to officer safety while they searched the apartment pursuant to a search warrant. As such one bag of cocaine and 100 decks of heroin found on Mr. Miller as a result of a valid protective search will not be suppressed. With regard to the additional items seized from Miller, the judge stated: Additionally, a more thorough search of Mr. Miller was conducted later in the kitchen when the officers observed Mr. Miller attempting to discard five decks of heroin from his back pocket. Because the officers had previously discovered cocaine and heroin on Mr. Miller's person, he was subject to arrest at that point in time. Thus, the subsequent search of Mr. Miller's person is lawful as a search incident to arrest. The additional evidence found on Mr. Miller's person, 45 decks of heroin and $225.00 in cash, will also not be suppressed. However, even assuming the protective search and the later search incident to arrest was invalid, under the doctrine of inevitable discovery, the evidence found on Mr. Miller's person would have been discovered lawfully as a search incident to a lawful arrest as the search of the residence, including Mr. Miller's bedroom, revealed drugs, paraphernalia, cash, and packing material. The [c]ourt is satisfied that probable cause existed to arrest Mr. Miller as a result of the evidence recovered after the search of [the Apartment] was completed as contraband 11 A-0748-16T2 was discovered in the common areas of Mr. Miller's residence, as well as in his bedroom. Once a valid arrest has been effectuated, a defendant's seizure automatically justifies a warrantless search of the defendant. State v. Goodwin, 173 N.J. 583, 598 (2002). Therefore, the police would have discovered the evidence on Mr. Miller's person wholly independent from any prior unlawful search of his person. The judge also found Miller did not meet the threshold for a Franks hearing as he had "not made a substantial preliminary showing that the affiant, either deliberately or with reckless disregard for the truth, procured the warrant." The judge held non-disclosure in the affidavit of the quantity of narcotics purchased, the purchase price, and any field testing to be insufficient to warrant a Franks hearing because that information "is not necessarily probative of a deliberate falsehood or reckless disregard for the truth necessary to meet the burden required for a Franks hearing." The judge noted it was undisputed Miller did not participate in any of the controlled buys and was not charged with any offenses arising out of the controlled buys. Moreover, the officers were not present during the controlled buys. The judge found no "connection between the discovery sought and the ability to satisfy the Franks standard." The judge also concluded that even if she excised all of the information in the search warrant affidavit 12 A-0748-16T2 regarding the controlled buys, the remaining portions of the affidavit still established probable cause. As to the need to question Alexander during a Franks hearing, the judge stated Miller "failed to meet [his] burden by either attacking the warrant or suggesting material facts which are disputed." The judge characterized the request as a "fishing expedition which is completely contrary to the purpose served by a Franks hearing." Following the denial of his motions, Miller entered into a plea agreement, pleading guilty to third-degree possession of heroin with intent to distribute and second-degree robbery in exchange for a recommended sentence of an extended seven-year prison term subject to a forty-two-month period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(f) on the CDS count, a concurrent five-year prison term subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery count, and dismissal of the remaining charges. At sentencing, Miller argued for a four-year NERA term on the robbery count, claiming the court should find mitigating factors two (defendant did not contemplate his conduct would cause serious harm), four (there were substantial grounds tending to excuse or justify defendant's conduct), six (defendant will compensate the 13 A-0748-16T2 victim for his conduct or will participate in a program of community service), eight (defendant's conduct was the result of circumstances unlikely to recur), and eleven (imprisonment would entail excessive hardship to defendant or his dependents). N.J.S.A. 2C:44-1(b)(2), (4), (6), (8), and (11). The judge found aggravating factors three (risk defendant will commit another offense), five (substantial likelihood defendant is involved in organized criminal activity), six (extent of defendant's prior criminal record and seriousness of offenses of which he has been convicted), nine (need for deterrence), and eleven (imposition of a fine without imposing a term of imprisonment would be perceived as part of the cost of doing business). N.J.S.A. 2C:44-1(a)(3), (5), (6), (9), and (11). The judge found no mitigating factors. The judge sentenced Miller in accordance with the terms of the negotiated plea agreement, noting Miller had an extensive prior record of fourteen criminal convictions, including multiple drug offenses,4 four municipal court convictions, and thirteen adjudications of juvenile delinquency. 4 Miller does not contest he had been previously convicted of distribution of CDS and possession of CDS with intent to distribute, rendering him subject to a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f) 14 A-0748-16T2 With respect to the CDS count, the judge indicated the mandatory extended term with parole ineligibility was imposed pursuant to N.J.S.A. 2C:43-6(f). The judge found aggravating factor five applied because "there is a likelihood that the defendant is involved in organized crime, because there is no evidence that he has manufactured the drugs that were found in his possession." While the judge stated "the aggravating factors do substantially outweigh the mitigating factors," the judgment of conviction states the aggravating factors "outweigh" the mitigating factors. The judge incorporated the same aggravating and mitigating factors on the robbery count that she applied on the CDS count. Accordingly, the judgment of conviction listed aggravating factors three, five, six, nine, and eleven, no mitigating factors, and stated the aggravating factors "outweigh" the mitigating factors. However, an amended judgment of conviction deleted aggravating factor five, stating "it was not found at time of sentencing."5 This appeal followed. On appeal, defendant raises the following points: 5 "A trial court's oral opinion normally controls over an inconsistent judgment of conviction." State v. Vasquez, 374 N.J. Super. 252, 270 (App. Div. 2005) (citing State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994)); accord State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956). 15 A-0748-16T2 POINT I THE MOTION COURT COMMITTED REVERSIBLE ERROR WHEN DENYING THE DEFENSE'S REQUEST FOR AN EVIDENTIARY HEARING WITH RESPECT TO THE WARRANTLESS SEARCH OF MR. MILLER'S PERSON, NOTWITHSTANDING MATERIAL FACTS IN DISPUTE. POINT II THE MOTION COURT ERRED IN DENYING THE DEFENSE'S REQUEST FOR A HEARING PURSUANT TO FRANKS V. DELAWARE. POINT III THIS COURT SHOULD REMAND THE MATTER FOR RESENTENCING BECAUSE THE SENTENCING COURT ERRONEOUSLY FOUND AGGRAVATING FACTORS FIVE AND ELEVEN. A. The Court Improperly Found Aggravating Factor Five Based on the Absence of Proof that Mr. Miller Manufactured the Third-Degree Weight of CDS. B. The Court Erroneously Found Aggravating Factor Eleven Because It Was Not Weighing the Imposition of a Non- Custodial Sentence. II. We affirm the denial of the motion to compel discovery, motion to suppress evidence, and application for a Franks hearing substantially for the reasons expressed by the trial court in its comprehensive and well-reasoned written decisions. We add the following comments. 16 A-0748-16T2 Certain well-established principles guide our analysis. Although we normally grant deference to the findings of fact made by a trial judge in connection with a motion to suppress, there was no evidentiary hearing in this case. State v. Elders, 192 N.J. 224, 243-44 (2007). Instead, the judge relied on the contents of Alexander's affidavit and the supplemental investigation reports prepared by Alexander, Quick, Maimone, and Sarmiento. A reviewing court "may only consider whether the motion to suppress was properly decided based on the evidence presented at that time." State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999) (quoting State v. Jordan, 115 N.J. Super. 73, 76 (App. Div. 1971)). "A trial court's interpretation of the law . . . and the consequences that flow from established facts are not entitled to any special deference." State v. Gamble, 218 N.J. 412, 425 (2014) (citing State v. Gandhi, 201 N.J. 161, 176 (2010); Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). A trial court's legal conclusions are reviewed de novo. Ibid. (citing Gandhi, 201 N.J. at 176). We first address Miller's argument that the trial court erred by denying his application for a Franks hearing. We review a trial judge's ruling regarding the need for an evidentiary hearing for abuse of discretion. State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009). 17 A-0748-16T2 A reviewing court gives substantial deference to a judge's determination that probable cause existed to issue a search warrant. State v. Mosner, 407 N.J. Super. 40, 61 (App. Div. 2009). "A search warrant is presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause[.]" Id. at 61 (alteration in original) (quoting State v. Evers, 175 N.J. 355, 381 (2003)). Probable cause may be based upon information received from informants, so long as there is "substantial evidence in the record to support the informant's statements." State v. Keyes, 184 N.J. 541, 555 (2005). "Doubt as to the validity of the warrant 'should ordinarily be resolved by sustaining the search.'" Id. at 554 (quoting State v. Jones, 179 N.J. 377, 389 (2004)). A Franks hearing is required when a defendant "makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause." Franks, 438 U.S. at 155-56; see also State v. Howery, 80 N.J. 563, 583 n.4 (1979) (stating a Franks hearing "is required only if the defendant can make a substantial preliminary showing of perjury"). 18 A-0748-16T2 In order to make a substantial preliminary showing, defendant must "allege 'deliberate falsehood or reckless disregard for the truth,' and those allegations must be supported by an offer of proof." Howery, 80 N.J. at 583 n.4. "[A] Franks hearing is not directed at picking apart minor technical problems with a warrant application," but rather, "it is aimed at warrants obtained through intentional wrongdoing by law enforcement agents." Broom-Smith, 406 N.J. Super. at 240. Finally, a Franks hearing should not be used as a "fishing expedition" or an attempt to learn the identity of a confidential informant. Id. at 239. Here, there was no need for a Franks hearing because Miller failed to make a substantial showing of falsity or material omission in the warrant affidavit. He did not point to specific portions of the affidavit that are claimed to be untrue. See Howery, 80 N.J. at 567. He has not demonstrated deliberate falsehood or reckless disregard for the truth. Moreover, Alexander's affidavit provides explicit detail concerning the alleged drug activity at the Apartment, which he corroborated through surveillance. Miller proffered no facts undermining the factual assertions in the affidavit. On this record, a Franks hearing was not required. See Broom-Smith, 406 N.J. Super. at 240. 19 A-0748-16T2 We next address Miller's argument that the trial court erred by denying his request for an evidentiary hearing on the suppression motion. We review a trial judge's ruling denying an evidentiary hearing for abuse of discretion. Id. at 239. Testimony must be taken during a suppression motion a hearing if material facts are in dispute. R. 3:5-7(c). When a defendant moves to suppress evidence seized during a warrantless search, the State must file "a brief, including a statement of the facts as it alleges them to be" and the defendant must then file "a brief and counter statement of facts." R. 3:5-7(b). "It is only when the defendant's counter statement places material facts in dispute that an evidentiary hearing is required." State v. Green, 346 N.J. Super. 87, 90 (App. Div. 2001) (citing State v. Hewins, 166 N.J. Super. 210, 213-15 (Law Div. 1979), aff'd, 178 N.J. Super. 360 (App. Div. 1981)). In Green, we emphasized "[t]he mere allegation of a warrantless search, with the attendant burden of proof on the State to justify same, does not place material issues in dispute, nor does defendant's assertion that he denies the truth of the State's allegations." Id. at 91 (citing Hewins, 166 N.J. Super. at 214). "In the absence of factual allegations to support the claim that the search and seizure were illegal, a hearing [is] not required . . . ." State v. Kadonsky, 288 N.J. Super. 41, 46 (App. Div. 1996). 20 A-0748-16T2 A defendant's counterstatement of facts must present "something more than the naked conclusion that the warrantless search was illegal, in order to obtain an evidentiary hearing pursuant to [Rule] 3:5-7(c)." Hewins, 166 N.J. Super at 215. The rule also seeks to avoid the time- consuming taking of testimony solely for the purpose of affording defense counsel additional discovery, and an opportunity to examine the State's witnesses in advance of trial. The motion to suppress is available to defendant in order to resolve questions concerning the validity of a search and/or seizure; it is not just another discovery device. [Id. at 214.] Here, Miller disputes he possessed the drugs police allege he had on his person or discarded and claimed a hearing was necessary to determine the timeline of when the drugs were found. The denial that he physically possessed or discarded the drugs that were seized does not constitute a material fact in dispute with regard to whether the search of his person was illegal. Just as an unconstitutional search is not rendered valid because it produces contraband, a valid search is not rendered unconstitutional because it did not result in the seizure of contraband. While physical possession of the drugs is germane to whether Miller is guilty of possession of CDS, an issue that he could have 21 A-0748-16T2 fully explored at trial, it is not determinative of whether the police had a sufficient basis to conduct a valid protective search or search incident to arrest. The validity of the search of defendant's pockets turns on the facts leading up to the search, not on whether the search results in the recovery of contraband. Hence, defendant did not establish a disputed material fact with regard to the propriety of the protective search.6 The trial court also applied the inevitable discovery doctrine. The doctrine is an exception to the exclusionary rule that permits evidence to be admitted in a criminal case, even though it was obtained unlawfully, when the government can show that discovery of the evidence by lawful means was inevitable. State v. Holland, 176 N.J. 344, 361-62 (2003). The doctrine is based on the recognition that: the exclusionary rule [is] not served by excluding evidence that, but for the misconduct, the police inevitably would have discovered. If the evidence would have been obtained lawfully and properly without the misconduct, exclusion of the evidence would put the prosecution in a worse position than if no illegality had transpired. [State v. Sugar, 100 N.J. 214, 237 (1985).] 6 We note the Miller's brief states: "Mr. Miller's person was searched, and CDS and cash were recovered from his pants pocket during the execution of the search warrant." 22 A-0748-16T2 In order to invoke the inevitable discovery doctrine, the State must prove by clear and convincing evidence that: (1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means. [Id. at 238 (citing Wayne R. LaFave, Search and Seizure § 11.4 at 624 (1978)).] Guided by these principles, we conclude the judge properly applied the inevitable discovery doctrine's three-prong test and found the State met its burden. See ibid.; State v. Maltese, 222 N.J. 525, 552 (2015). Miller was not a guest; he resided in the Apartment. The recovery of cocaine, a plate and a razor with cocaine residue, digital scales, and packaging materials from common areas of the Apartment, in conjunction with the facts revealed by the investigation preceding the execution of the search warrant, provided probable cause to arrest Miller. Therefore, an independent, valid basis existed to conduct a search incident to arrest before the protective search was conducted. See State v. O'Neal, 190 N.J. 601, 614-15 (2007); State in re R.M., 408 N.J. 23 A-0748-16T2 Super. 304, 311 (App. Div. 2009). To be sure, there was abundant probable cause to arrest Miller based on the results of the search of the Apartment even if the protective search did not reveal heroin and cocaine in his pockets. A search incident to arrest would have followed. Thus, even assuming the protective search was invalid, the heroin and cocaine seized from Miller's pockets would be admissible under the inevitable discovery doctrine since it would have been discovered by a lawful search incident to arrest. See Maltese, 222 N.J. at 551-52. We discern no abuse of discretion by the trial court in denying defendant's motion to suppress without an evidentiary hearing. The judge's factual findings and legal conclusions are amply supported by the record. III. Finally, we address Miller's argument that he should be resentenced because the trial court erred by applying aggravating factors five and eleven. The State concedes the trial court should not have applied these factors. Aggravating and mitigating factors are used to determine the length of imprisonment within the applicable statutory range for the offense in question. See State v. Case, 220 N.J. 49, 64-65 (2014); State v. Fuentes, 217 N.J. 57, 72-73 (2014). An appellate court may remand for resentencing where the trial court "considers 24 A-0748-16T2 an aggravating factor that is inappropriate to a particular defendant or to the offense at issue." Fuentes, 217 N.J. at 70 (citing State v. Pineda, 119 N.J. 621, 628 (1990)). After considering the presentence investigation report, Miller's extensive prior history, and the offenses to which he pled guilty, the judge found aggravating factors three, five, six, nine, and eleven. She found no mitigating factors, and that the aggravating factors substantially outweighed the non-existent mitigating factors. On appeal, defendant does not argue the trial court erred by not finding any mitigating factors. A person convicted of possession of CDS with intent to distribute, who has previously been convicted of distributing or possessing CDS with intent to distribute, shall be sentenced to an extended term. N.J.S.A. 2C:43-6(f). The judge sentenced defendant to a seven-year term, subject to a thirty-six-month period of parole ineligibility, in accordance with the plea agreement. The sentencing range for the extended term was five to ten years, N.J.S.A. 2C:43-7(a)(4), subject to a minimum period of parole ineligibility "fixed at, or between, one-third and one- half of the sentence imposed by the court or three years, whichever is greater," N.J.S.A. 2C:43-6(f). Because the court determines the length of the extended term and the period of parole ineligibility based on its assessment of 25 A-0748-16T2 the aggravating and mitigating factors, eliminating aggravating factors five and eleven from consideration could potentially reduce the length of the prison term and the period of parole ineligibility. Consequently, we are constrained to vacate the sentence on count six of Indictment No. 14-10-1166, and remand for resentencing consistent with this opinion. Similarly, the consideration of aggravating factors five and eleven potentially affected the imposition of a five-year NERA term on the robbery count, rather than the four-year NERA term sought by defendant. Accordingly, we likewise remand count two of Indictment No. 15-01-0070 for resentencing. IV. In summary, we affirm the denial of the motion to suppress without an evidentiary hearing or a Franks hearing and the convictions on both counts. We vacate the sentences and remand for resentencing on both counts. We express no opinion as to the appropriate sentences on either count.7 7 Sentencing Miller to a four-year NERA term on the robbery count can only occur if he is sentenced one degree lower as a third- degree offense based on a finding by the trial court that it is "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands." N.J.S.A. 2C:44-1(f)(2). "The reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." State v. Megargel, 143 N.J. 484, 505 (1996). 26 A-0748-16T2 Affirmed in part and vacated and remanded in part. We do not retain jurisdiction. 27 A-0748-16T2

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Docket No.: a1691-16
Decided: 2018-06-14
Caption: STATE OF NEW JERSEY IN THE INTEREST OF J.W. a juvenile
Status: unpublished
Summary:
PER CURIAM On July 6, 2015, J.W.,1 a seventeen-year-old juvenile, was charged in Complaint No. FJ-02-0077-16 with acts of delinquency that, if committed by an adult, would constitute first-degree 1 We use initials to protect the identity of the juvenile and minor victim involved in these proceedings. R. 1:38-3(d). aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On July 8, 2015, J.W. was charged in Complaint No. FJ-02-0128-16 with an additional count of second-degree sexual assault, N.J.S.A. 2C:14-2(b). J.W. was tried before a Family Part judge over seven non- sequential days between January 19, 2016, and July 25, 2016. The judge adjudicated J.W. delinquent for endangering the welfare of a child in Complaint No. FJ-02-0077-16, and sexual assault as charged in Complaint No. FJ-02-0128-16. J.W. was acquitted of aggravated sexual assault and the initial sexual assault charge. The dispositional order imposed a three-year probationary term with outpatient counselling. The judge ordered J.W. not to have extended unsupervised contact with children under age twelve, and to comply with the requirements of Megan's Law, N.J.S.A. 2C:7- 1 to -23. Appropriate fees and penalties were also imposed. J.W. now appeals, and we affirm. I. The juvenile charges arise from J.W.'s service as a volunteer at an "English as a Second Language" (ESL) program comprised of elementary and middle school students. The program ran from June 29 to July 10, 2015, and J.W.'s mother, M.W., served as one of the program's teachers. Notably, M.W. taught two groups of 2 A-1691-16T4 kindergarten-age students during the morning and afternoon sessions with the assistance of J.W., a high school senior. On July 6, 2015, local police were called to investigate the alleged sexual assault of P.K., a six-year-old female student enrolled in M.W.'s morning ESL class. That afternoon, in front of the school, P.K. reported to her mother, V.K., that one of her male teachers touched her "popa," which is the Russian word for vagina. P.K. also stated the male teacher "put her arm under his pants . . . ." When V.K. asked P.K. to identify the man, P.K. pointed to J.W. and identified him by name. V.K. then asked P.K. to confirm it was J.W. who touched her, and when P.K. did so, V.K. used her cell phone to take a photo of J.W. inside a car he had entered. Soon thereafter, V.K. called her husband, P.K.'s father, who alerted the police. V.K. and P.K. were taken to the Bergen County Prosecutor's Office, Special Victims Unit, where Detective Wendy Cevallos conducted a forensic interview of P.K. During the interview, P.K. promised to answer all questions honestly, stating she was six- and-a-half years old and had just graduated kindergarten. Detective Cevallos conducted an exercise where P.K. was shown photographs and asked to identify various body parts. Cevallos then asked P.K. "did something happen to you today?" Despite her initial apprehension, P.K. admitted "[m]y teacher, um, he's 3 A-1691-16T4 touching my pupu (sic)." Cevallos questioned P.K. further about the inappropriate touching: Q: And when you said he touched your pupu what did he use to touch your pupu? A: His hand. Q: His hand? Okay. And you said he touched your pupu, was it over the clothes, under the clothes[,] or something else? A: Under the clothes. Q: Under the clothes? Okay. And when did he touch your pupu under the clothes? A: Um, like, today. P.K. further reported J.W. touched the top of her "popo" "a lot of times," both over and under her clothes, but never penetrated her with his fingers. She additionally stated J.W. made her "[t]ouch his popo . . . [u]nder the clothes." Once P.K. made these disclosures, Cevallos used anatomical dolls to encourage P.K. to clarify the alleged acts of sexual assault. The police then proceeded to J.W.'s home to speak with him about P.K.'s allegations. Upon their arrival they met M.W., who asked J.W.: "Do you know what this is about?" J.W. responded "yes" and reportedly had tears running down his face. The trial court conducted a bench trial and heard testimony from five witnesses for the State, including another teacher in 4 A-1691-16T4 the ESL program, investigating detectives, P.K., and V.K. At the close of the State's case on July 12, 2016, J.W. moved for a judgment of acquittal on all charges. Viewing the evidence in the light most favorable to the State, Judge Gary Wilcox acquitted J.W. of first-degree aggravated sexual assault because there was no evidence that "the alleged touching of [P.K.]'s vagina involved any penetration . . . ." The judge denied the motion with respect to the remaining charges of sexual assault and child endangerment, finding the State's proofs sufficient to proceed on those charges. M.W. then testified on her son's behalf. She stated P.K. was one of nine students in her morning kindergarten class. She further indicated J.W. always wore khakis when volunteering at the ESL program and never wore jeans or dungarees, as P.K. described, nor was he ever alone with the students. M.W. stated she never witnessed anything inappropriate between J.W. and any of her students, and specifically, she never saw J.W. "focus attention" on or touch P.K. Testimony2 also established M.W.'s classroom was 22 M.W. testified that her desk was set up "maybe six inches" from the painting table where P.K. claims the alleged incident occurred on July 6, 2015. M.W. further testified that the chairs in which the students would sit were "very small" and measured twenty-two inches from top to bottom. An "adult chair" in the classroom was twenty-seven and one half inches high. The painting table, however, was only twenty and one half inches tall. 5 A-1691-16T4 very small and her desk overlooked the tables where the students would sit. M.W. also discussed her recollection of July 6, 2015, when police responded to her home to investigate P.K.'s complaint. According to M.W., she asked her son if he knew why the police were there. J.W. responded affirmatively, and indicated "it's about pot." J.W. testified on his own behalf. He stated police arrived at his home on July 6, 2015, and spoke with his mother. M.W. then asked him "do you know what this is about?" J.W. replied "yes, mom, this is about pot." J.W. explained that on Saturday, July 4, 2015, he went to the home of his friend, K.G. About ten individuals were there and they smoked marijuana. The police later went to K.G.'s house after J.W. had departed. However, J.W. testified on redirect examination that "no one who was at [K.G.'s home] told the police anything about [him] and the others smoking marijuana." On September 12, 2016, in a detailed oral opinion, Judge Wilcox found the State proved beyond a reasonable doubt the endangering charge and the second-degree sexual assault charge that J.W. touched P.K.'s vagina. With respect to that sexual assault charge, the judge explained: 6 A-1691-16T4 The [c]ourt had ample opportunity . . . to view the witness, the alleged victim [P.K.,] in court. The [c]ourt found her to be a very credible witness. [T]he [c]ourt is aware of . . . inconsistencies in her testimony with regard to . . . the number of times she alleged these incidents occurred. There also was a question as to whether or not the juvenile was wearing jeans or khakis . . . . [T]he [c]ourt also viewed evidence and heard evidence from [M.W.] regarding the desk and chairs . . . in [her] classroom and whether or not this act could have occurred given the way the classroom was set up. But the [c]ourt believes that based on its view of the evidence and the credibility of the witnesses presented, that the State has proven beyond a reasonable doubt . . . that the juvenile intended to touch [P.K.] in the vaginal area and that the touching was done intentionally and knowingly. And that the purpose of the touching was to either degrade or humiliate the victim or to sexually arouse or gratify the actor. The court found J.W. not guilty of the charge that he had sexually assaulted P.K. by intentionally having P.K. touch his penis. Judge Wilcox found there was conflicting testimony regarding what J.W. was wearing [on the] day [of the alleged incident]. The victim alleged that he was wearing jeans [but] [t]here was testimony . . . that he wore khakis. . . . [The court is] not finding that the victim was not truthful in her testimony, but given the way I heard the testimony, I think there is some doubt as to whether or not the juvenile actually had the victim touch his penis. 7 A-1691-16T4 Finally, the court found the State proved J.W. endangered the welfare of a child because he had a legal duty for the care of P.K. by virtue of his volunteer role at the school. Relying on State v. Galloway, 133 N.J. 631 (1993), the court found "that a person who has an assumed responsibility for the care of a child may include a . . . volunteer . . . of an institution who is responsible for the child's welfare." II. J.W. raises the following issues on appeal: POINT I - THE TRIAL COURT ERRED IN PERMITTING THE FORENSIC INTERVIEW VIDEOTAPE OF P.K. TO BE ADMITTED INTO EVIDENCE AND ALLOWING P.K. TO TESTIFY DESPITE THE TAINT OF SAID INTERVIEW. POINT II - THE FINDINGS OF GUILT WERE SO WIDE OF THE MARK AS TO CONSTITUTE A MANIFEST INJUSTICE, AND THE SUSTAINING OF THE JUVENILE CHARGES MUST BE REVERSED IN THE INTEREST OF JUSTICE. POINT III - THE TRIAL COURT COULD NOT SUSTAIN THE CHARGES AGAINST J.W. IN LIGHT OF THE FACT THAT IT HAD A DOUBT WHETHER THE SEXUAL MISCONDUCT EVER OCCURRED. POINT IV - SHOULD THIS COURT NOT REVERSE THE ADJUDICATION OF THE CHARGE OF ENDANGERING THE WELFARE OF A CHILD, THEN IT NONETHELESS MUST FIND THAT A THIRD-DEGREE OFFENSE WAS COMMITTED[,] NOT A SECOND-DEGREE OFFENSE AS FOUND BY THE TRIAL COURT[,] HAD J.W. BEEN TRIED AS AN ADULT. 8 A-1691-16T4 Turning to his first point, J.W. contends the court erred in admitting P.K.'s videotaped forensic interview pursuant to N.J.R.E. 803(c)(27), which establishes the tender years exception to the hearsay rule: A statement by a child under the age of [twelve] relating to sexual misconduct committed . . . against that child is admissible . . . if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing3 conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse . . . . J.W. claims the child's statements were not trustworthy and Cevallos's questioning was not neutral. We disagree. 3 We have affirmed the admission of an out-of-court statement in a juvenile proceeding without a separate hearing. See State in the Interest of S.M., 284 N.J. Super. 611, 620-21 (App. Div. 1995) ("Although N.J.R.E. 803(c)(27)(b) requires the court to 'find, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement that there is a probability that the statement is trustworthy,' we do not conclude that the failure of the court, sitting as the trier of fact, to conduct a hearing pursuant to Rule 104(a) is so violative of N.J.R.E. 803(c)(27) as to warrant reversal."). 9 A-1691-16T4 Having reviewed the record, we conclude that all elements of the rule were met. Counsel for J.W. was aware the State sought to introduce the videotape of P.K.'s forensic interview and had a fair opportunity to prepare to meet her statement. Additionally, Judge Wilcox determined P.K.'s statements were trustworthy as the entire interview was recorded and P.K. spontaneously revealed J.W. touched her "popa." P.K. testified at trial, and her testimony corroborated her earlier statements. The judge expressly found P.K. was a "very credible" witness. We reject J.W.'s argument that the interview techniques utilized by Cevallos were so unduly suggestive and coercive as to create a "substantial likelihood of irreparably mistaken or false recollection" under State v. Michaels, 136 N.J. 299, 320 (1994). Rather, as the State points out, English is not P.K.'s native language and the fact "[t]hat Detective Cevallos assisted P.K. in recalling a word for a male penis or female vagina is of no moment. . . . Detective Cevallos properly established how P.K. referred to those body parts before there were any disclosures of abuse." Thereafter, P.K. consistently maintained her allegations of abuse, namely, that J.W. touched her vagina underneath her underwear on July 6, 2015. The record does not support a showing "that the victim's statements were the product of suggestive or coercive interview techniques," as J.W. contends. Thus the trial 10 A-1691-16T4 judge's admission of the recorded forensic interview pursuant to N.J.R.E. 803(c)(27) was not an abuse of discretion. See State v. Morton, 155 N.J. 383, 453 (1998) ("Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings."). J.W.'s second and third points warrant little discussion. Essentially, J.W. contends the State did not prove the charges against him beyond a reasonable doubt, and that the trial court's findings to the contrary were so wide of the mark as to constitute a manifest injustice. Our standard of review in juvenile delinquency bench trials "is narrow and is limited to evaluation of whether the trial judge's findings are supported by substantial, credible evidence in the record as a whole." State in the Interest of J.P.F., 368 N.J. Super. 24, 31 (App. Div. 2004) (citing State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161 (1964)). In order to find a violation, the court must conclude that the State proved each element of the offense charged beyond a reasonable doubt. State ex rel. J.G., 151 N.J. 565, 593-94 (1997). We do not engage in an independent assessment of the evidence as if "[we] were the court of first instance." Johnson, 42 N.J. at 161. Rather, we give special deference to the trial judge's findings, particularly those that are substantially influenced by 11 A-1691-16T4 the judge's opportunity to observe the witnesses directly. Id. at 162. However, we need not defer to the trial judge's interpretation of the law. State v. Brown, 118 N.J. 595, 604 (1990). Mindful of these standards, we reject J.W.'s argument that the evidence was insufficient to support the adjudications of delinquency beyond a reasonable doubt. P.K. provided detailed testimony regarding J.W.'s inappropriate touching and remained consistent about that core allegation despite a "very vigorous cross examination." P.K.'s testimony was corroborated by the videotape of her forensic interview as well as the in-court testimony and forensic interview of her mother, V.K. The court also found J.W.'s denial of the sexual contact was not credible. In light of those findings, Judge Wilcox concluded J.W. committed sexual assault in violation of N.J.S.A. 2C:14-2(b) when he touched P.K.'s vagina underneath her underwear. Additionally, when the sexual contact occurred, J.W. was acting in a supervisory role as a volunteer at the school and had "assumed responsibility" for P.K. Consequently, sufficient credible evidence in the record supports the court's finding that J.W. endangered the welfare of a child in violation of N.J.S.A. 2C:24-4(a). Equally unconvincing is J.W.'s alternative argument in Point IV that he should be adjudicated delinquent of third-degree, rather 12 A-1691-16T4 than second-degree, endangering the welfare of a child in the event we otherwise find the proofs sufficient to sustain that charge. He contends he "was merely an unpaid volunteer," and, as such, "[h]e did not have a continuing or regular supervisory or caretaker relationship with P.K." so as to elevate his conduct to what would constitute a second-degree offense if committed by an adult. N.J.S.A. 2C:24-4(a)(1) provides that "[a]ny person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child is guilty of a crime of the second degree." Our Supreme Court has recognized this statute applies "to a person who has 'assumed the care of a child' or is 'living with the child' or has a 'general right to exercise continuing control and authority over' the child." State v. Sumulikoski, 221 N.J. 93, 107 (2015) (quoting Galloway, 133 N.J. at 659). Notably, "what propels th[is] offense of endangering . . . to a second-degree offense" is "the profound harm that can be inflicted on a child by one who holds a position of trust . . . ." Id. at 108 (citing Galloway, 133 N.J. at 661). Here, J.W. was properly adjudicated delinquent of second- degree child engagement because he was one of P.K.'s guardians while she attended the ESL program. "The term 'guardian' is 13 A-1691-16T4 defined as '[an] employee or volunteer, whether compensated or uncompensated, of an institution who is responsible for the child's welfare . . . .'" G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999) (alteration in original) (quoting N.J.S.A. 9:6- 8.21(a)). Additional support for this conclusion is found in the model jury charge, which instructs that a "person who has assumed responsibility for the care of a child may include a teacher, employee, volunteer, whether compensated or uncompensated, of an institution who is responsible for the child's welfare." Model Jury Charges (Criminal), "Endangering the Welfare of a Child (N.J.S.A. 2C:24-4(a)(1))" n.4 (rev. Apr. 7, 2014). Affirmed. 14 A-1691-16T4

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Docket No.: a2137-16
Decided: 2018-06-14
Caption: STATE OF NEW JERSEY v. ROE N. WRIGHT
Status: unpublished
Summary:
PER CURIAM Defendant Roe N. Wright was tried before a jury and found guilty of second-degree possession of a firearm without a permit, contrary to N.J.S.A. 2C:39-5(b). Defendant appeals from the judgment of conviction dated September 27, 2016. We affirm. I. Defendant was charged under Salem County Indictment No. 15- 04-0234 with possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a), and possession of a firearm without first having obtained a permit to carry same, N.J.S.A. 2C:39-5(b). Ojuwan Jenerette also was charged under the indictment with various drug offenses, but defendant's charges were severed for trial. Defendant filed motions to suppress the statement he provided to the law enforcement officers and the handgun. At the hearing on defendant's motion to suppress his statement, James Gillespie, an investigator in the Salem County Prosecutor's Office (SCPO), testified that in the early morning hours of January 23, 2015, he and police officers from the Salem City Police Department (SCPD) entered a room at a motor lodge to execute a search warrant. Defendant, Jenerette, J.P., and J.P.'s two children were in the room and sleeping.1 Gillespie handcuffed 1 We refer to J.P. by her initials to protect her privacy and the privacy of her children. 2 A-2137-16T3 and detained the adults. Gillespie said defendant did not appear or smell intoxicated. Gillespie placed defendant in handcuffs and searched him. Gillespie also "searched the area where [he] found [defendant]," which included a lounge chair that defendant had been sleeping on. Gillespie found "a revolver near the edge of the chair," "[u]nder the cushion on the left-hand side." Gillespie said defendant could easily have reached the revolver. In the room, the officers also found marijuana and cocaine. At the scene, Jenerette admitted the drugs in the room were his, but no one admitted to ownership of the firearm. Defendant, Jenerette, and J.P. were transported to the SCPD. While Gillespie was fingerprinting and photographing the suspects, "they asked collectively what they were being charged with." Gillespie explained that because everything was found in the common area of the room, they were all going to be charged with narcotics and weapons offenses. Gillespie told the suspects that if anyone wanted to take ownership of either the drugs or the gun, he would take a recorded statement from that person and only that person would be charged. Jenerette provided a statement indicating that he owned the drugs, and defendant provided a statement admitting to ownership of the gun. On cross-examination, Gillespie denied that he told defendant 3 A-2137-16T3 that if J.P. was charged with possession of the weapon, she would likely lose custody of her children. Defendant testified that on the morning of January 23, 2015, he was at the motor lodge with Jenerette, J.P., and J.P.'s children. He claimed he had been drinking liquor from about 7:00 p.m. on the previous evening until about 1:00 a.m. of the following day. Defendant said he arrived at the room around 3:00 a.m., went to the bathroom, "jumped in the chair," and fell asleep. He stated that he woke up when the police "raided" the room and said they had a search warrant for Jenerette. Defendant further testified that he heard the officers say they found a gun. The officers said Jenerette had admitted ownership of the drugs. The officers transported defendant, Jenerette, and J.P. to the police station and said they were going to charge all of them because no one had admitted ownership of the gun. Defendant testified that he told the officers it was not his gun. He further testified that one of the officers stated that if J.P. was charged "she will lose her kids." The officer asked defendant if he wanted that to happen. Defendant said he did not want that to happen because he had been in the custody of the 4 A-2137-16T3 Division of Youth and Family Services (Division)2 for thirteen years and he knew "how that felt." He decided to claim ownership of the gun. The trial judge determined that defendant's statement would not be suppressed. The judge noted that he had listened to the audiotape of the statement, which was admitted into evidence. As indicated on the tape, defendant had been informed of his Miranda rights,3 and he indicated that he understood his rights. Defendant then signed the form waiving his Miranda rights. The judge found that there was no indication that defendant did not know what he was doing at that time. The judge also noted that Gillespie had testified he did not smell any liquor and there was nothing to indicate that defendant was intoxicated. The judge stated that defendant claimed he took responsibility for the gun so that J.P. would not be charged. According to the judge, this indicated that defendant was someone who knew exactly what he was doing. According to the judge, defendant was willing to "manipulate the system" to obtain "a certain goal." 2 The Division is now known as the Division of Child Protection and Permanency. 3 Miranda v. Arizona, 384 U.S. 436 (1966). 5 A-2137-16T3 The judge found that Gillespie's testimony was more credible than defendant's testimony. The judge stated that he did not believe defendant, noting that he had "much to gain" from presenting testimony that was not true. The judge found, however, that even if defendant had been told J.P.'s children would "end up in" the Division's custody, that did not render his statement involuntary. The judge also considered defendant's age, education, and intelligence, and noted that there was no evidence defendant did not know what was going on when he provided the statement. The judge gave slight weight to the fact that defendant had a prior criminal record. The judge pointed out that defendant had been informed of his Miranda rights. The judge observed that defendant had been through the criminal justice system before as a juvenile and adult, and he "understood what was happening" when he gave his statement. The judge further found that defendant had not been detained for a lengthy period of time before he gave his statement, and the questioning was neither repetitious nor prolonged. The judge noted there was no evidence defendant had been punished physically or was exhausted. The judge concluded, based on the totality of the circumstances, that the State had proven beyond a reasonable doubt 6 A-2137-16T3 that defendant knowingly and voluntarily gave his statement to the police. Thereafter, the trial judge conducted an evidentiary hearing on defendant's motion to suppress the handgun. At that hearing, Richard Ware, an investigator in the SCPO, testified about the execution of the search warrant at the motor lodge on January 23, 2015. Defendant also testified. The judge denied that motion, finding that Ware's testimony was credible. The judge found that the officers knocked on the door to the room and announced their presence. When no one answered the door, the officers breached the door and entered the room. The judge found that the seizure of defendant was "proper and necessary" in order to ensure the officers' safety and the integrity of the scene, and to ensure that any contraband was not damaged or destroyed. The judge determined that the initial seizure was not an arrest. The judge found that the search was reasonable and, while the warrant authorized a search for CDS, the officers were entitled to look anywhere CDS could be located. The judge found that Gillespie properly recovered the handgun, and at that point, the officers had probable cause to arrest defendant. The judge noted that the gun was found in the cushion of the chair where defendant had been sleeping. Defendant was the only 7 A-2137-16T3 person with access to the gun, and there were no facts indicating that the gun belonged to someone else. The court then granted the State's motion to dismiss the count in which defendant was charged with possession of a weapon for an unlawful purpose. Defendant was later tried before a jury on the remaining charge, unlawful possession of a weapon. Gillespie and Ware testified for the State, and defendant testified in his own defense. The jury found defendant guilty of the charge. Thereafter, the judge sentenced defendant to seven years of incarceration, with a forty-two-month period of parole ineligibility. This appeal followed. On appeal, defendant argues: POINT I THE TRIAL COURT ERRONEOUSLY FAILED TO SUPPRESS DEFENDANT'S STATEMENT. POINT II THE COURT'S EXCLUSION OF ANY TESTIMONY ABOUT DEFENDANT'S EXPERIENCE WITH [THE DIVISION] VIOLATED DEFENDANT'S CONSITUTIONAL RIGHT TO PRESENT A DEFENSE AND REQUIRES REVERSAL OF HIS CONVICTION. POINT III THE SEVEN-YEAR SENTENCE WITH [FORTY-TWO] MONTHS OF PAROLE INELIGIBLITY IS MANIFESTLY EXCESSIVE. II. As noted, defendant contends the trial judge erred by failing to suppress his statement. He argues that the officer conducted a 8 A-2137-16T3 "two-stage interrogation." According to defendant, the officer first conducted an unrecorded custodial interrogation without informing him of his Miranda rights. Defendant contends that after reading the Miranda warnings, the officer then conducted a second, recorded interrogation, but failed to inform him that his prior incriminating statement could not be used against him. Defendant contends the trial court failed to address this "two-staged interrogation." He argues that this "two-stage interrogation technique" led to the recorded incriminating statement, which should have been suppressed. We note that defendant never argued in the trial court that his statement should be suppressed because the officer allegedly used a "two-stage interrogation" technique. We conclude, however, that the trial court correctly decided to deny the suppression motion. In reviewing a trial court's ruling on a motion to suppress, we must defer to the court's factual findings provided they are supported by sufficient credible evidence in the record. State v. Scriven, 226 N.J. 20, 32-33 (2016) (citing State v. Elders, 192 N.J. 224, 243-44 (2007)). Our deference to the trial court's factual findings is especially appropriate when those findings "are substantially influenced by [an] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing 9 A-2137-16T3 court cannot enjoy." State v. Gamble, 218 N.J. 412, 424-25 (2014) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). However, we owe no deference to the trial court's ruling on an issue of law, which we review de novo. State v. Watts, 223 N.J. 503, 516 (2015). "[T]o safeguard a suspect's Fifth Amendment right against self-incrimination, confessions obtained during custodial interrogations are inadmissible as evidence unless the defendant has been advised of his or her constitutional rights." State v. Hubbard, 222 N.J. 249, 265 (2015) (quoting Miranda, 384 U.S. at 492). The term "custodial interrogation" is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 265-66 (quoting Miranda, 384 U.S. at 444). "[I]f the questioning is simply part of an investigation and is not targeted at the individual because she or he is a suspect, the rights provided by Miranda are not implicated." Id. at 266 (quoting State v. Timmendequas, 161 N.J. 515, 614-15 (1999)). Miranda's protections extend only to words or actions of law enforcement officers "reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). "[B]ooking procedures and the routine questions associated therewith are ministerial in nature and beyond the right to remain 10 A-2137-16T3 silent. Even unexpected incriminating statements made by in- custody defendants in response to non-investigative questions by the police without prior Miranda warnings are admissible." State v. M.L., 253 N.J. Super. 13, 21 (App. Div. 1991) (citations omitted). In State v. Mallozzi, 246 N.J. Super. 509, 511 (App. Div. 1991), the defendant was arrested and informed of his pending charges during the booking process, which included fingerprinting and photographing. Defendant then "made certain statements which were . . . incriminating" before Miranda warnings were read to him. Ibid. The trial court denied the defendant's motion to suppress the statements that he made during the booking process. Id. at 513. On appeal, we held "there was clearly no questioning, nor can it be fairly concluded that [the] defendant was subjected to the functional equivalent of questioning." Id. at 516. We further explained that "informing [the] defendant of the charges against him was not designed or done to elicit any type of response from defendant and thus places [the officer's] actions outside the Innis definition of 'interrogation.'" Ibid. Rather, the officer "was merely providing [the] defendant information to which he was otherwise entitled." Ibid. Accordingly, we affirmed the trial judge's denial of the defendant's motion to suppress the statements that he made while being processed. Id. at 518. 11 A-2137-16T3 As was the case in Mallozzi, Gillespie spoke to defendant and the other two suspects while he was processing them at the police station. He stated that the person who admitted ownership of the gun would be the only person charged with a weapons offense. This statement was not, however, part of an interrogation, nor was it designed to elicit an incriminating response from defendant. Defendant said the gun was his, he was informed of his Miranda rights, and he provided a recorded statement. We are convinced there is sufficient credible evidence in the record supporting the trial judge's findings of fact. We also conclude that the judge's decision to deny defendant's motion to suppress his statement was legally correct. III. Next, defendant argues that the trial judge erred by precluding him from testifying about his experience while in the Division's custody. He contends the judge's ruling denied him his constitutional right to present a defense. We disagree. A trial court's evidentiary rulings are "entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997); see also Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (holding that admissibility of evidence falls within the broad discretion of the trial judge). The court's evidentiary 12 A-2137-16T3 ruling must be upheld on appeal "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). Like any other evidence presented at trial, a witness's testimony must be relevant; that is, it must "hav[e] a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Once deemed relevant, the evidence is admissible "[e]xcept as otherwise provided in [the evidence] rules or by law." N.J.R.E. 402. Evidence "may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." Brenman v. Demello, 191 N.J. 18, 30 (2007) (quoting N.J.R.E. 403). During direct examination, defendant's attorney asked him why he had claimed possession of the gun. Defendant said he did so to prevent the Division from taking custody of J.P.'s children. He explained, "I was in [the Division] and I didn't want the kids to be in the system. I [was] in [the Division] from one to [thirteen] years old. I was sexually abused, physically abused, starved and separated from my brother." 13 A-2137-16T3 The assistant prosecutor objected to this testimony and requested to be heard outside the presence of the jury. At sidebar, the prosecutor asserted that defendant's testimony was "getting a little out of hand." The prosecutor noted that defendant had testified that he was sexually abused while in the Division's care, and the State had no way "to corroborate any of this information." The prosecutor argued that defendant's testimony regarding his experience with the Division should be excluded because it was clearly designed to elicit the sympathy of the jury, and the State could not challenge defendant's assertions. Defense counsel responded by asserting that the testimony was addressed to defendant's "motivation as to why he claimed [ownership of] the [gun] . . . , [and] the[] jury needs to know why it is that he would confess to owning the gun if it wasn't true." The judge decided to strike defendant's comments from the record and instructed the jurors that they were not to consider the comments during their deliberations. Defense counsel then continued his direct examination of defendant: [DEFENSE COUNSEL]: Okay. So how long were you in [the Division's] care? [DEFENDANT]: Thirteen years. [DEFENSE COUNSEL]: Thirteen years? And how would you evaluate your experience while in 14 A-2137-16T3 [the Division's] care? Was it positive or negative? [DEFENDANT]: It was the worst experience I ever had. Worst. [THE STATE]: Objection THE COURT: I'm going to overrule the objection. I find that that falls outside of the lines of what my ruling was. [DEFENSE COUNSEL]: Thank you, Judge. [DEFENSE COUNSEL]: So I'm sorry; you said that your experience was? [DEFENDANT]: The worst experience I ever had. [DEFENSE COUNSEL]: Could you speak up a little bit, please? [DEFENDANT]: It was the worst experience I ever had. [DEFENSE COUNSEL]: And what you're characterizing as the worst experience you ever had, this endured for how long? [DEFENDANT]: Thirteen years. We are convinced the judge did not mistakenly exercise his discretion by limiting defendant in testifying about his experiences while in the Division's care. As noted, defendant testified that he accepted responsibility for the gun because he was concerned that if J.P. was charged with possession of the gun, the Division might take custody of her children. The judge allowed 15 A-2137-16T3 defendant to testify that he had been in the Division's care and state three times that it was "the worst experience" he ever had. The judge properly exercised his authority under N.J.R.E. 403 by precluding defendant from testifying that he had been sexually and physically abused, starved, and separated from his brother while in the Division's care. Detailed testimony about defendant's experience with the Division had little probative value. Moreover, the probative value of this testimony was substantially outweighed by the risk of undue prejudice to the State, and the likelihood that the jury would be misled and confused by the testimony. Even if the court erred by limiting the testimony, the error is not grounds for reversal because it was harmless. State v. J.R., 227 N.J. 393, 417 (2017) (quoting State v. Macon, 57 N.J. 325, 337-38 (1971)). "Convictions after a fair trial, based on strong evidence proving guilt beyond a reasonable doubt, should not be reversed because of a technical or evidentiary error that cannot have truly prejudiced the defendant or affected the end result." State v. W.B., 205 N.J. 588, 614 (2011). Here, defendant explained to the jury three times that his time under DYFS's care was the "worst experience" of his life. Furthermore, during closing arguments, defense counsel referenced defendant's experience while in the Division's care. Counsel argued that defendant only took responsibility for the gun because 16 A-2137-16T3 he "feared greatly the prospect" that J.P.'s children would be taken away and "suffer the same fate" that he suffered. The jury nevertheless found that the State had proven beyond a reasonable doubt that defendant unlawfully possessed the weapon. In light of the strong if not overwhelming evidence of defendant's guilt, it is unlikely the jury would have reached a different verdict if defendant had been allowed to provide more details concerning his experiences under the Division's care. We therefore conclude that even if the court's evidentiary ruling was erroneous, defendant was not prejudiced and the error had no effect upon the jury's ultimate determination. IV. Defendant further argues that his sentence is manifestly excessive. As noted previously, the judge sentenced defendant to a seven-year prison term, with forty-two months of parole ineligibility. When reviewing a trial court's sentencing determination, we apply a deferential standard of review. State v. Fuentes, 217 N.J. 57, 70 (2014). We must affirm the sentence if (1) the trial court followed the sentencing guidelines; (2) the court's findings of aggravating and mitigating factors were based on competent and credible evidence in the record; and (3) the resulting sentence is not clearly unreasonable so as to "shock the judicial 17 A-2137-16T3 conscience." Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Here, the sentencing court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will reoffend); six, N.J.S.A. 2C:44-1(a)(6) (defendant's prior criminal record); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. Regarding aggravating factor three, the judge stated that although defendant was young, he already had one conviction for which he was on probation when he committed the instant offense. The judge reasoned that this was "certainly an indicator of someone that's going to commit another offense." With regard to aggravating factor six, the judge noted that defendant had convictions for "obstruction, [defiant] trespassing, and ha[d] a pending charge" for contempt at the time of his sentencing. Defendant also had a prior indictable conviction for resisting arrest for which he violated probation and received jail time. Regarding aggravating factor nine, the judge found that there was a "need to deter this defendant and others from violating the law." The judge addressed and determined that no mitigating factors applied. On appeal, defendant argues that the judge erred by failing to find mitigating factors one, N.J.S.A. 2C:44-1(b)(1) (defendant's conduct did not cause or threaten serious harm); two, 18 A-2137-16T3 N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause or threaten serious harm); and seven, N.J.S.A. 2C:44-1(b)(7) (defendant has no prior history of delinquency or criminal activity). Defendant asserts that although he was convicted of possession of a handgun, he did not cause or intend to cause any harm. He states he does not have an extensive prior record, and this is his first prison sentence. He argues that any sentence longer than the minimum five years is "unnecessary." Here, the judge found that mitigating factors one and two did not apply. The judge stated that "[t]he very nature of possession of a handgun is the contemplation [of] or the threat of serious harm." The judge also found that mitigating factor seven was not applicable because defendant has a prior history of delinquency and criminal activity. Thus, the judge followed the sentencing guidelines, and there is sufficient credible evidence in the record to support the court's findings regarding the aggravating and mitigating factors. The seven-year sentence, with forty-two months of parole ineligibility, is reasonable and does not shock the judicial conscience. Affirmed. 19 A-2137-16T3

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Docket No.: a2369-15
Decided: 2018-06-14
Caption: STATE OF NEW JERSEY v. JAHLIL D. JACKSON
Status: unpublished
Summary:
FUENTES, P.J.A.D. Defendant Jahlil D. Jackson pled guilty to second degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). On December 11, 2015, Judge Pedro J. Jimenez sentenced defendant to a term of eight years, with a four-year period of parole ineligibility as required under the Graves Act, N.J.S.A. 2C:43-6(c).1 Defendant now appeals raising the following arguments: POINT I IN VIEW OF CHANGES IN THE LAW DECRIMINALIZING THE SMOKING OF MEDICAL MARIJUANA AND IMMUNIZING SAID USERS, AS WELL AS PERSONS IN THE VICINITY OF LAWFUL SMOKERS OF MEDICAL MARIJUANA, THE ODOR OF BURNT MARIJUANA, BY ITSELF, DOES NOT CONSTITUTE PROBABLE CAUSE TO ARREST AND SEARCH EVERYONE IN AN AUTOMOBILE. POINT II THE EVIDENCE SEIZED FROM THE SEARCH OF THE CAR MUST BE SUPPRESSED BECAUSE THE CONSENT TO SEARCH WAS NOT VOLUNTARY AND BECAUSE THE CONSENT WAS TAINTED BY THE ILLEGAL ARREST. POINT III BECAUSE THE TRIAL COURT FAILED TO PROVIDE SUFFICIENT REASONS FOR THE SENTENCE IMPOSED AND IGNORED A MITIGATING FACTOR IN THE RECORD, AN EXCESSIVE SENTENCE WAS IMPOSED AND A REMAND FOR RESENTENCING IS REQUIRED. 1 At the time of sentence, defendant was serving a three-year term of imprisonment for an unrelated offense committed in Cumberland County. Judge Jimenez ordered that the sentence he imposed in this case run concurrent to the sentence imposed in the Cumberland County matter. 2 A-2369-15T4 We reject these arguments and affirm. We derive the following facts from the evidence presented at the evidentiary hearing conducted by Judge Jimenez to adjudicate defendant's motion to suppress. At approximately 7:42 p.m. on March 15, 2015, State Police Trooper Alan Cook was on patrol in Trenton, driving a white Crown Victoria with the New Jersey State Police logo on the door panels, and overhead lights. As he drove through the area of Cass Street and Route 29, Cook noticed that the person seated on the passenger side of a silver Mazda Protégé was not wearing his seatbelt. As the Mazda turned left on Route 29, Cook activated his overhead lights, which simultaneously activated the video camera mounted on the side of the police vehicle. The driver of the Mazda heeded the implied command to stop and pulled the vehicle over to the side of the road. Trooper Cook approached the Mazda's passenger side and informed the passenger, subsequently identified as defendant, that he had stopped the car because he noticed that defendant was not wearing his seatbelt. Defendant admitted he was not wearing his seatbelt. Cook asked the driver and defendant for their identification. As he stood by the opened passenger side window, Cook detected the odor "of burnt marijuana." Cook testified that in the course of taking possession of the identification documents, 3 A-2369-15T4 he "lean[ed] into the car to confirm the original smell of . . . burnt marijuana."2 The driver did not have a driver's license. Cook testified the driver told him her "first name, middle initial, last name, [and] date of birth." Cook told her he needed to conduct a computer motor vehicle search to determine the status of her driving privileges, and testified that he was then going to "move along with . . . [the] consent to search procedure." Cook testified that, based on the odor of burnt marijuana, he believed he had probable cause to arrest defendant and the driver. However, he did not want to take any action until backup units arrived because, at this point in time, he was outnumbered two-to-one. Cook decided "to follow through with . . . [the] consent to search protocol." The protocol required that "all occupants have to be detained, [and] secured as a first step." However, because backup units were not nearby, he decided not to remove defendant and the driver from their car. Cook nevertheless decided to charge both defendant and the driver with possession of marijuana based only on the "smell of burnt marijuana." According to Cook, defendant told him "they were at a party or something to that 2 As a trained State Police Trooper with nine years' experience, Cook testified he was familiar with the smell of burnt marijuana. 4 A-2369-15T4 effect, other people might have been, or he was around people that were smoking it or something to that effect." As a prelude to his arrest, Cook apprised defendant of his Miranda3 rights. After conducting a search of defendant's person incident to his arrest, Cook found ten glassine baggies4 containing suspected crack cocaine. Cook returned to the Mazda and asked the driver to step out of the vehicle. He handcuffed her and placed her and defendant in the back of the State Police car.5 He then presented the driver with a completed "consent to search" form allowing him to search the car without a warrant. The driver declined to sign the form. Cook called the State Police barracks to request a truck to impound the car. When the driver overheard the radio transmission, she asked Cook what would happen to the car. According to Cook, he told her that the car would be towed to the State Police barracks in Hamilton Township. He told her she was going to come with him because he "would be pursuing other investigative means 3 Miranda v. Arizona, 384 U.S. 436 (1966). 4 Cook described the glassine bags as "about an inch long, very small ziplock bag[s]." 5 Cook also asked defendant and the driver whether either of them were in "CUMMA," an acronym for the "Compassionate Use Medical Marijuana Act," N.J.S.A. 24:6I-1 to -16. Defendant told Cook he did not know what CUMMA meant. 5 A-2369-15T4 . . . ." Cook again told the driver he was impounding the car because he smelled burnt marijuana emanating from inside the vehicle. According to Cook, both defendant and the driver said to him, "why can't you let us go, there's no weed in the car." Cook told them he could not just take their word for it. This colloquy between Cook and the driver continued until, according to Cook, she capitulated and said, "you can go ahead [and] search it . . . ." Cook testified that he asked her, "would you like me to reread the form to you, and then, I guess, you can make a decision at the end of the form." Cook testified that she simply relented and said: "Search the car, or go ahead and search[.]" Despite her alleged capitulation, Cook testified that he reread the "consent to search" form to the driver again to make sure she understood her right to refuse. The signed "consent to search" form was admitted into evidence at the evidentiary hearing without objection by defense counsel. Cook testified that "underneath the passenger seat" of the Mazda he found "a chrome colored [loaded] revolver . . . ." The handgun had been tampered with. Cook explained, "on a normal revolver, there's a cylinder release pin that's located underneath the barrel. That was missing . . . ." The search of the car began at 8:07 p.m. and ended at 8:26 p.m. Defendant told Cook the handgun was his and "that the 6 A-2369-15T4 driver had nothing to do with it." Cook accepted defendant's statement and did not charge the driver as an accomplice or as joint possessor of the handgun. Against this evidence, Judge Jimenez denied defendant's motion to suppress the handgun. After stating the legal standards applicable here, the Judge made the following findings: Here we have in this case an officer who by his own uncontroverted testimony . . . which was provided in a clear, concise, straightforward manner, which as a result this [c]ourt finds to be credible, the officer testified that he noticed [defendant], the passenger of a vehicle, without a seat belt and proceeded to make a motor vehicle stop to that effect. The stop was recorded . . . [and] is in evidence, which was viewed by the [c]ourt, . . ., was the best evidence and the clearest representation of what happened subsequent to the stopping of the motor vehicle. Arguably, to [Cook's] surprise, . . . not anticipating that this would be the case, as he stood by the passenger side of the vehicle speaking to [defendant], addressing the fact that he was not wearing a seatbelt, Trooper Cook testified that he had smelled the burnt odor of marijuana emanating from inside the vehicle. And . . . that would in and of itself justify a warrantless search of the vehicle given the trooper was standing where he should have been standing. No issue with regards to that. The smell of marijuana was inadvertent in that the trooper could not offer or did not offer, and just from the facts, would not . . . be able to offer a basis for expecting 7 A-2369-15T4 that he would be smelling the marijuana from inside the vehicle, especially given that the entire incident was premised on a no seat belt violation. Based on these findings, Judge Jimenez concluded Cook lawfully stopped the vehicle and, under the plain view doctrine, had probable cause to arrest defendant based solely on having smelled burnt marijuana emanating from inside the car. Judge Jimenez also found the driver of the car freely and knowingly consented to the search of the car. The Judge emphasized that the video/audio record shows the driver made an unsolicited statement to Cook authorizing him to search the car. The Judge concluded that the handgun Cook found under the passenger seat of the car was the product of a lawful, freely given consent to search. We defer to Judge Jimenez's factual findings, which are supported by substantial credible evidence. See State v. S.S., 229 N.J. 360, 379-81 (2017). He had the opportunity to observe the witness first-hand, to assess his credibility, and to get a feel for the case, which is something beyond the reach of an appellate court. State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Locurto, 157 N.J. 463, 471 (1999). We also agree with Judge Jimenez's well-reasoned conclusions of law. As this court has held, "the smell of burnt marijuana, by a trained and experienced State Trooper, emanating from the passenger 8 A-2369-15T4 compartment of a legally stopped motor vehicle, created probable cause to believe that a violation of law had been or was being committed." State v. Judge, 275 N.J. Super. 194, 196-197 (App. Div. 1994); see also State v. Myers, 442 N.J. Super. 287, 290 (App. Div. 2015). Defendant's argument attacking the sentence imposed by the court lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 9 A-2369-15T4

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Docket No.: a2379-16
Decided: 2018-06-14
Caption: STATE OF NEW JERSEY v. CHARLES CARTER, JR
Status: unpublished
Summary:
PER CURIAM Defendant Charles Carter, Jr., appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing based on a claim of ineffective assistance of appellate counsel. We affirm. On January 5, 2010, a Union County grand jury charged defendant with: first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); third-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(2) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts four and six); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4(d) (count five); fourth-degree obstruction of law or other governmental function, N.J.S.A. 2C:29-1 (count eight); and, third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count nine). The court conducted a Wade1 hearing, beginning on June 15, 2011, and continuing on October 14, 2011. At the October continuation, the court denied defendant's motion to suppress out- of-court identifications by the liquor store owners, Hemlata and Arvind Patel. On January 4, 2012, defendant moved to re-open the Wade issue based on newly received discovery that Hemlata saw defendant as he was being loaded into the ambulance before being shown the photo array. The court heard additional testimony and 1 United States v. Wade, 388 U.S. 218 (1967). 2 A-2379-16T2 argument on January 10, 2012, and again ruled the out-of-court identifications admissible. Defendant was tried before a jury on January 4, 5, 10, 11, 12, and 13, 2012. The court dismissed count seven on January 11, 2012. Two days later, the jury found defendant guilty of all remaining charges. At his sentencing hearing on April 13, 2012, the court found three aggravating factors and no mitigating factors applicable to the sentence. The court merged counts two through five with count one, and sentenced defendant to sixteen years in prison, subject to the No Early Release Act (NERA) N.J.S.A. 2C:43- 7.2. On counts six, eight and nine, the court sentenced defendant to two terms of twelve months and one term of four years, respectively, to be served concurrently with one another, but consecutively to count one. The aggregate sentence was twenty years in prison, sixteen of which were subject to the eighty-five percent parole disqualifier of NERA. Defendant appealed his conviction, and we affirmed. State v. Carter, No. A-5147-11 (App. Div. July 15, 2014) (slip op. at 2-8), certif. denied, 220 N.J. 208 (2014). We derive the salient facts from our prior opinion: On July 23, 2009, a man came into Aarti's World Discount Liquors on Highway 22 in Union, displayed a knife, and demanded money. One of the owners of the liquor store, Hemlata Patel, testified that about fifteen minutes 3 A-2379-16T2 before the robbery, the same man entered the store and remained for about five to seven minutes. She recalled that she had seen the same man earlier that morning in the parking lot of the motel across the highway. The man approached the counter, stood two or three feet away, and asked for lottery tickets. After a conversation of a few minutes, the man started walking toward the back of the store. Hemlata asked the man to pay for the tickets, but he gestured, indicating that he forgot his wallet and was going to get it. Fifteen minutes later, the man returned. Upon entering the store, he jumped on the counter and said "give me the money." He was holding a knife and a white towel. Hemlata attempted to separate herself from him by putting a small table between them, but the man knocked her over. She identified defendant as the man who had come into the store, demanded money, and threatened her with a knife. The other owner of the store, Arvind Patel, had been sitting behind a shelving unit. He pushed the panic button to summon the police and came to his wife's aid. He struggled with defendant. Defendant jumped back on the counter, slashed Arvind's arm with the knife, and ran out of the store. Police Officers Juan Vargas and Scott Heath arrived and found Arvind in the doorway with a towel wrapped around his forearm. The officers saw the store was in disarray and there was blood in the entryway, on the counter, and on the sides of the counter. Officer Vargas examined Arvind's wound, and later described it as a couple of inches deep and six to eight inches long. Detective Donald Cook of the Union County Police Identification Bureau arrived at the scene and took the white towel and placed it 4 A-2379-16T2 in a bag for DNA analysis. He took a number of photographs of the scene. He also dusted the counter for fingerprints, but did not obtain usable prints. Five days later, on July 28, 2009, Detective Christopher Baird saw defendant in the parking lot of the liquor store. Baird recognized defendant as a man he had seen walking on the bridge over Route 22 towards the liquor store on the date of the robbery. Defendant was carrying a red utility knife when Detective Baird saw him on July 28. Baird and his partner ordered defendant to stop, but defendant ran. The officers chased him through the parking lot, across Route 22, and to the Garden State Motor Lodge. When the officers cornered defendant, he had his feet tangled in a fence. Defendant sliced his own throat three times with the utility knife. The officers, and other police who had arrived, ordered defendant to give the knife to one of the officers. Defendant eventually complied, and the officers attended to his wounds and took him to a hospital. At the hospital, Officer Heath read defendant Miranda[2] warnings. Defendant was lying on a gurney and seemed lucid and not under the influence of any drugs or medication. The officer did not question defendant at that time. One or two minutes later, defendant initiated a conversation and asked Officer Vargas to do him a favor. He asked the officer to apologize to several of his family members and to tell the owners of the liquor store that he was sorry, that he did not mean to hurt them, and that he just wanted the money. Vargas inquired what robbery defendant was referring to and whether he had a weapon. Defendant answered that he was referring to the liquor store across the 2 Miranda v. Arizona, 384 U.S. 436 (1966). 5 A-2379-16T2 highway from the motel and that he had used the same knife he was holding when arrested. On the day of defendant's arrest, Hemlata Patel saw him from across the highway as he was being placed in an ambulance. She knew he was the robber. Two days later, Hemlata and Arvind Patel were shown photo arrays separately, and both identified defendant as the robber. The arrays were shown by Detective George Moutis, who was not involved in the investigation and did not know which photograph was the suspect in the robbery. Hemlata and Arvind also identified defendant as the robber while they testified at the trial. In addition to the victims and police witnesses, the State presented testimony at trial from Margaret Cuthbert, who was qualified as an expert in forensic DNA analysis. Cuthbert tested two stains from the white towel that was recovered from the scene of the robbery. She concluded that Arvind was likely the source of a red-brown blood stain, and that defendant was likely the source of a yellow stain. Defendant presented testimony of his father Charles Carter, Sr., regarding a police detective conveying an apology from defendant; his sister Theresa Counts regarding his physical appearance at the time in comparison to the victims' descriptions of the robber; Detective Cook regarding a shoeprint at the scene of the robbery; and his own testimony denying involvement in the robbery. Defendant testified he had never been to the store. He also denied running from the police on July 28, 2009. Defendant said he was sitting next to the fenced area where he was arrested when the police found him. According to defendant, he had just purchased a box cutter and was going to use it to take his own life, but not because he committed the robbery. He also 6 A-2379-16T2 denied making any statement or confession to the police at the hospital. [Id. at 2-8.] Defendant filed his petition for PCR on December 14, 2015. After hearing arguments, Judge John M. Deitch denied defendant's petition without an evidentiary hearing on October 27, 2016. This appeal followed. On appeal, defendant raises the following points: POINT I THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED BY APPELLATE COUNSEL'S FAILURE TO ARGUE THE VICTIM'S IDENTIFICATION OF DEFENDANT WAS IRREVOCABLY TAINTED BY A SUGGESTIVE PHOTO ARRAY. (U.S. CONST. AMEND. VI; N.J. CONST. ART. I, ¶ 10). POINT II APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO ARGUE THAT THE STATE WAS IMPROPERLY PERMITTED TO INTRODUCE FALSE IDENTIFICATION TESTIMONY BY THE VICTIM'S DAUGHTER, EVEN THOUGH SHE HAD NOT BEEN PRESENT DURING THE ROBBERY. POINT III APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO ARGUE THAT DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE STATE'S FAILURE TO NOTIFY DEFENDANT OF THE VICTIM'S HEARING IMPAIRMENT BEFORE HIS TESTIMONY. 7 A-2379-16T2 POINT IV DEFENDANT'S PETITION FOR PCR IS NOT PROCEDURALLY BARRED [RULE] 3:22-4 OR [RULE] 3:22-5. We have considered these arguments in light of the record and controlling law. We affirm substantially for the reasons set forth in the comprehensive, well-reasoned written opinion of Judge Deitch. We add only the following. We review the denial of a PCR petition without an evidentiary hearing for abuse of discretion. State v. Peoples, 446 N.J. Super. 245, 255 (App. Div. 2016) (citing State v. Preciose, 129 N.J. 451, 462 (1992)). Our review contains consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004). We defer to a PCR court's factual findings and will uphold those findings that are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). However, a PCR court's interpretations of law are provided no deference and are reviewed de novo. Id. at 540-41. The judge held that defendant's claims were barred per Rule 3:22-4 or Rule 3:22-5 as substantially similar to the issues previously raised on appeal in State v. Carter, No. A-5147-11 (App. Div. July 15, 2014). "[A] prior adjudication on the merits ordinarily constitutes a procedural bar to the reassertion of the same ground as a basis for post-conviction review." Preciose, 129 8 A-2379-16T2 N.J. at 476 (citing R. 3:22-12). Additionally, a defendant is precluded from raising an issue on PCR that could have been raised on direct appeal. State v. McQuaid, 147 N.J. 464, 483 (1997). As explained by the Court in McQuaid: A defendant ordinarily must pursue relief by direct appeal, see R. 3:22-3, and may not use post-conviction relief to assert a new claim that could have been raised on direct appeal. See R. 3:22-4. Additionally, a defendant may not use a petition for post- conviction relief as an opportunity to relitigate a claim already decided on the merits. See R. 3:22-5. [Ibid.] The application of these standards requires the "[p]reclusion of consideration of an argument presented in post-conviction relief proceedings . . . if the issue raised is identical or substantially equivalent to that adjudicated previously on direct appeal." State v. Marshall, 173 N.J. 343, 351 (2002) (quoting State v. Marshall, 148 N.J. 89, 150 (1997)). A PCR claim is based upon the "same ground" as a claim already raised by direct appeal when "'the issue is identical or substantially equivalent' to [the] issue previously adjudicated on its merits." McQuaid, 147 N.J. at 484 (quoting Picard v. Connor, 404 U.S. 270, 276-77 (1971)). However, a procedural rule otherwise barring post- conviction relief may be overlooked to avoid a fundamental injustice where the deficient representation of counsel affected 9 A-2379-16T2 "a determination of guilt or otherwise wrought a miscarriage of justice." Nash, 212 N.J. at 546 (quoting State v. Mitchell, 126 N.J. 565, 587 (1992)). As the judge noted, defendant raised issues in his PCR regarding the photo array and defendant's movements in the courtroom that we addressed on direct appeal. Carter, slip op. at 13-14, 19-21. As such, those claims are barred from our consideration. R. 3:22-5; McQuaid, 147 N.J. at 484; Preciose, 129 N.J. at 476. Although we discern no error in the judge's determination that defendant's petition was procedurally barred, we briefly discuss defendant's claims of ineffective assistance of appellate counsel. Defendant argues he received ineffective assistance of appellate counsel based on the failure of counsel to raise the issues that: the witnesses' identification processes were unduly suggestive, a witness's false identification violated his right to a fair trial, and he should have been notified of a witness's hearing problem. In reaching his determination, the judge held defendant failed to provide any facts in support of his argument that appellate counsel's actions fell below an objective standard of reasonable conduct. Further, the judge held defendant failed to provide any evidence of prejudice. As such, the judge held 10 A-2379-16T2 defendant did not meet his burden to establish the first and second prongs of Strickland/Fritz.3 We agree. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." Preciose, 129 N.J. at 459. Under Rule 3:22-2(a), a criminal defendant is entitled to post- conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey[.]" "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. Mitchell, 126 N.J. at 579. Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. See R. 3:22-4(a)(2); Preciose, 129 N.J. at 460. In determining whether a defendant is entitled to relief on the basis of ineffective assistance of counsel, New Jersey courts apply the two-prong test articulated by the United States Supreme Court in Strickland, 466 U.S. at 687, 3 Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42 (1987). 11 A-2379-16T2 and United States v. Cronic, 466 U.S. 648, 658-60 (1984). Preciose, 129 N.J. at 463; see Fritz, 105 N.J. at 49-50. Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." 466 U.S. at 687. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Although defendant is entitled to the effective assistance of appellate counsel, "appellate counsel does not have a constitutional duty to raise every non[-]frivolous issue requested by the defendant." State v. Morrison, 215 N.J. Super. 540, 549 (App. Div. 1987) (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)); see also State v. Gaither, 396 N.J. Super. 508, 516 (App. Div. 2007) (holding that appellate counsel is not "required to advance every claim insisted upon by a client on appeal."). Upon consideration of the record, we conclude that defendant has failed to demonstrate that appellate counsel's representation "fell below an objective standard of reasonableness," Strickland, 466 U.S. at 687-88, and that but for appellate counsel's failure to raise that argument on direct appeal the outcome of his appeal of his conviction would have been different. State v. Allegro, 193 N.J. 352, 367 (2008). Because defendant failed to establish 12 A-2379-16T2 both prongs of the Strickland standard, the PCR court properly rejected defendant's claim that his appellate counsel was constitutionally ineffective. See Strickland, 466 U.S. at 700. Finally, we reject defendant's argument that the court erred in denying his petition without an evidentiary hearing. An evidentiary hearing is required where the defendant has shown a prima facie case and the facts on which he relies are not already of record. Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 3:22-10 (2018). The mere raising of a claim for PCR does not entitle defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). As defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required. Affirmed. 13 A-2379-16T2

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Docket No.: a3281-16
Decided: 2018-06-14
Caption: STATE OF NEW JERSEY v. NICHOLAS N. ALEXANDER
Status: unpublished
Summary:
PER CURIAM Defendant was tried before a jury and found guilty of third- degree possession of a controlled dangerous substance (CDS), specifically methamphetamine, Schedule II, contrary to N.J.S.A. 2C:35-10(a)(1). Defendant appeals from the judgment of conviction dated February 3, 2017. We affirm. I. A Cape May County grand jury charged defendant with third- degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one), and third- degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count two). Defendant thereafter filed a motion to suppress physical evidence. Following an evidentiary hearing, the trial court denied the motion. The court later granted the State's motion to dismiss count one, and defendant was tried before a jury on count two. At the trial, Patrolman Matthew Gamble of the Lower Township Police Department (LTPD) testified that on January 30, 2015, at around 9:00 p.m., dispatch directed him to respond to a residence on Maple Avenue to check on a person named "Nicholas Alexander." Gamble went to the residence and walked around the exterior of the home but found nothing unusual. Patrolman Ryan Hansberry of the LTPD arrived on the scene. Gamble and Hansberry checked the front door and found that it was unsecured. The officers announced that they were from the "Lower Township Police" but received no response. They entered the house and began to clear the house for officer safety. While in the living room, the officers heard someone state, "[W]hat's going 2 A-3281-16T4 on?" Gamble said he believed the voice was coming from the bathroom. Gamble asked whoever was in the residence to come out with his hands up. Initially, no one responded. The officers repeated the command. A man quickly exited the bathroom, asked what was going on, and ran into the adjacent bedroom. Gamble identified the man as defendant. Gamble and Hansberry directed defendant to come out with his hands up. He failed to comply, and the officers repeated their command. Eventually, plaintiff came out with his hands up. He was wearing a pink towel around the waist, and had a black cell phone in his hand. Gamble told defendant to put the phone down and asked if anyone else was in the house. Defendant said he was not sure. At that point, Hansberry began to clear the kitchen area to ensure no one else was in the house. Gamble opened the bathroom door and on the back of the toilet, found a spoon with white powder. Gamble asked defendant what the substance was. Gamble believed it was crystal methamphetamine. In the bedroom from which defendant emerged, the officers found more white powdery substance. On the bed, the officers found a plate with white powder on it. The officers also found several bags with a residue of white powder, hypodermic needles, and a 3 A-3281-16T4 razor blade to split the powder. Hansberry took photos of the contraband. Gamble said they were in the house for about an hour. During that time, the officers did not see any other residents. Gamble testified that he did not observe anything that led him to believe that anyone else was living in the house. He acknowledged, however, that defendant's mother owned the house and sometimes rented out rooms. Hansberry also described the officers' entry into the house and their encounter with defendant. Hansberry testified that he went into the bedroom that defendant had entered and observed a plate on the bed with white substance believed to be methamphetamine. He also found glassine baggies containing a white substance also thought to be methamphetamine, and hypodermic needles. Hansberry and Gamble further testified that because defendant claimed he was injured and said he had been doing methamphetamine for three days to harm himself, they called "rescue." Hansberry stated that in the past, defendant's mother had rented rooms in the house, but he did not know if she was renting any rooms at that time. Hansberry also stated that the house had an upstairs apartment, but when he cleared the rooms, he did not enter that apartment. 4 A-3281-16T4 Defendant elected not to testify, and he did not call any witnesses. In summation, defendant's attorney argued the State had failed to prove beyond a reasonable doubt that defendant knowingly possessed the CDS. Counsel stipulated that the CDS found in the home was methamphetamine. Counsel argued, however, that defendant's mother owned the home and at times, she rented out rooms. Counsel also pointed out that there also was an upstairs apartment in the house. Counsel asserted that the officers had cleared the house but did not see anyone other than defendant. The officers said they did not know whether anyone was living upstairs. Counsel argued that this was enough evidence to establish reasonable doubt as to whether defendant had control over and possession of the illegal substance. The jury found defendant guilty of possession of CDS. Thereafter, the trial court sentenced defendant to a flat five- year term of incarceration. This appeal followed. On appeal, defendant raises the following arguments: POINT I DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S FAILURE TO DELIVER AN ADVERSE INFERENCE CHARGE REGARDING THE STATE'S INEXPLICABLE LOSS OF AUDIO RECORDINGS OF COMMUNICATIONS BETWEEN THE RESPONDING OFFICERS AND DISPATCH. (Not Raised Below). 5 A-3281-16T4 POINT II THE MAXIMUM FIVE-YEAR PRISON SENTENCE WAS MANIFESTLY EXCESSIVE FOR SIMPLE POSSESSION OF A PERSONAL USE QUANTITY OF METHAMPHETAMINE IN A PRIVATE RESIDENCE. II. Defendant contends the trial judge erred because he did not provide the jury with an adverse inference charge regarding the State's failure to retain audio recordings of communications between the responding officers and the police dispatcher. Defendant asserts that his only defense was that he did not knowingly possess the drugs, and for that defense to be viable, he had to show that the drugs belonged to someone else, perhaps someone who rented a room in the house from defendant's mother. Defendant asserts that if the officers' communications with dispatch revealed that the officers had encountered any other person on the scene, such evidence would have undercut Gamble's and Hansberry's credibility. Defendant contends that despite their "centrality" to the case, the State did not retain the dispatch recordings. Defendant contends that because the recordings might have contained evidence adverse to the State's case, the judge was obligated to provide the jury with an adverse inference instruction. Defendant contends the judge's failure to provide that instruction denied him of due process and a fair trial. 6 A-3281-16T4 We note that defendant did not seek the adverse inference charge at trial. Therefore, we must determine whether the judge's failure to provide the instruction constitutes plain error, that is, an error "clearly capable of producing an unjust result." R. 2:10-2. "The mere possibility of an unjust result is not enough." State v. Funderburg, 225 N.J. 66, 79 (2016). To warrant reversal, the error must raise a "reasonable doubt . . . as to whether the error led the jury to a result it otherwise might not have reached." Ibid. (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). In State v. W.B., 205 N.J. 588, 597 (2011), the defendant was charged with the sexual abuse of his fourteen-year-old step- daughter. The investigating detective destroyed the notes she took of interviews she conducted of the defendant and the victim. Id. at 607. The Court determined that Rule 3:13-3(c) required the State to provide the defense with the writings of any police officer under the prosecutor's supervision. Id. at 608. The Court stated that because an officer's notes may be of aid to the defense, the trial court may impose "an appropriate sanction" if the officer has not preserved the notes of any interviews with the defendant or key witness. Ibid. (citations omitted). The Court ruled that prospectively, if the officer's 7 A-3281-16T4 notes are lost or destroyed, a defendant may be entitled to an adverse inference charge, molded to the facts of the case. Id. at 608-09. However, because the defendant did not request the adverse inference charge before final jury instructions, and did not raise the issue in a motion for a new trial, the Court refused to hold that the defendant was entitled to the instruction. Id. at 609. In State v. Dabas, 215 N.J. 114, 117 (2013), the defendant was found guilty of murdering his wife, based largely upon statements the defendant made to the prosecutor's investigators. An investigator purposefully destroyed the notes taken during the interrogation. Ibid. The Court held that the investigator's notes were discoverable material under Rule 3:13-3(c), and the prosecutor violated the rule by failing to retain the notes. Id. at 133-35. The Court determined that the trial court erred by denying the defendant's request for an adverse inference charge, noting that the charge is one permissible remedy for a discovery violation. Id. at 140-41. The Court stated that the purpose of the charge is to "balance the scales of justice." Id. at 140. The Court stated that the trial court should have instructed the jury that the State had a duty to produce the pre-interview notes to the defense, and because the State did not make the notes 8 A-3281-16T4 available, the jury could "draw an inference that the contents of the notes were unfavorable to the State." Id. at 141. Applying the principles of W.B. and Dabas, we conclude the trial judge's failure in this case to provide the jury with an adverse inference charge sua sponte is not reversible error. The State's discovery obligation under Rule 3:13-3(b)(1) applies to all "relevant material." Rule 3:13-3(b)(1)(E) requires disclosure of, among other materials, "sound recordings" that are within the prosecutor's "possession, custody or control." However, in this case, defendant has not shown that the State violated its discovery obligation by failing to retain the dispatch recordings. Defense counsel never demanded that the State preserve these recordings. Moreover, defendant has not shown that the dispatch recordings were relevant evidence. "Evidence is relevant if it 'ha[s] a tendency in reason to prove or disprove any fact of consequence to the determination of the action.'" State v. Hernandez, 225 N.J. 451, 462 (2016) (quoting N.J.R.E. 401). Defendant speculates that the officers may have come upon someone else in the house and mentioned that to the police dispatcher. Defendant suggests the dispatch tapes would have allowed his attorney to challenge the credibility of the officers. However, there is no testimony or evidence supporting defendant's 9 A-3281-16T4 speculation. There is no evidence indicating that in their trial testimony, the officers falsely stated that defendant was the only person they found in the house. We conclude that under the circumstances, imposition of a discovery sanction was not warranted. The judge's failure to provide an adverse inference charge sua sponte was not an error, let alone an error "clearly capable of producing an unjust result." R. 2:10-2. III. Defendant also argues that his sentence is excessive. He contends the sentence should be set aside and the matter remanded for resentencing. "Appellate courts review sentencing determinations in accordance with a deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). We must affirm the sentence if: (1) the trial court followed the sentencing guidelines; (2) the court's findings of aggravating and mitigating factors were based on competent and credible evidence in the record; and (3) the resulting sentence is not clearly unreasonable so as to "shock the judicial conscience." Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Here, the trial court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another 10 A-3281-16T4 offense); six, N.J.S.A. 2C:44-1(a)(6) (defendant's prior criminal record and the seriousness of the offenses of which he had been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The judge noted that this matter represents defendant's fourth felony-level conviction. Defendant has a significant criminal history that includes at least nine arrests, four of which were as a juvenile. Defendant has three prior indictable convictions, two of which were in Florida, and which were juvenile cases waived to adult court. Defendant was sentenced to a probationary term for his first indictable conviction, but he violated the terms of probation and was sentenced to four years in New Jersey State Prison. In addition, at the time of sentencing, defendant had a pending first- degree charge of maintaining or operating a CDS production facility. The judge found that aggravating factor three was present due to defendant's recidivism and substance abuse. The judge gave that factor substantial weight. The judge found aggravating factor six due to the extent of defendant's prior criminal record and the seriousness of the offenses involved. The judge gave that factor "slightly substantial weight." The judge found aggravating factor nine, noting that there was a need to deter defendant, 11 A-3281-16T4 specifically, and others from violating the law. The judge gave aggravating factor nine very substantial weight. The judge also found mitigating factor two applied, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause or threaten serious harm). The judge determined, however, that this factor should be given "very slight weight." The judge also found the record did not support the finding of mitigating factors one, N.J.S.A. 2C:44-1(b)(1) (defendant's conduct neither caused nor threatened serious harm); and ten, N.J.S.A. 2C:44-1(b)(10) (defendant is likely to respond favorably to probation) did not apply. The judge stated that because the police did not know what they would find in the home, defendant's conduct could have caused or threatened serious harm. The judge additionally stated that in view of defendant's prior criminal record, a probationary sentence was not appropriate. The judge found that the aggravating factors substantially outweighed the sole mitigating factor. The judge therefore determined that a five-year term of imprisonment was appropriate under the circumstances. The judge also imposed appropriate monetary fees and penalties. On appeal, defendant argues the judge should have found mitigating factor one, and given significant weight to mitigating factors one and two. He further argues that the judge should have 12 A-3281-16T4 given minimal weight to the aggravating factors. He therefore argues that the five-year sentence is manifestly excessive. We disagree. We are convinced the judge followed the applicable sentencing guidelines and the record supports the judge's findings on the aggravating and mitigating factors. The sentence imposed is not excessive and does not shock the judicial conscience. Affirmed. 13 A-3281-16T4

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Docket No.: a3291-16
Decided: 2018-06-14
Caption: THE RIDGE CONDOMINIUM ASSOCIATION v. LORI BUCCOLO
Status: unpublished
Summary:
PER CURIAM Defendant Lori Buccolo appeals from a March 3, 20171 Chancery Division order denying her motion to vacate default judgment. The matter stems from defendant's failure to pay condominium fees and attorneys' fees owed to plaintiff, The Ridge Condominium Association. We affirm. I In September 2014, plaintiff filed a complaint against defendant for failure to pay common expenses and attorneys' fees. The parties settled that suit, which resulted in the entry of a money judgment in favor of plaintiff; however, defendant defaulted on the settlement terms. Eventually, plaintiff received payment of most of the judgment via wage garnishment. In April 2016, plaintiff filed a foreclosure complaint against defendant alleging she failed to pay maintenance fees, special assessment fees, late fees, fines, and counsel fees. Defendant filed an answer and counterclaim, alleging plaintiff 1 Although defendant's brief asserts she appeals from the court's August 5, 2016 order granting plaintiff's motion for summary judgment, her amended notice of appeal fails to include this order. Moreover, defendant's case information statement, which directed her to give the date and summary of judgment, order, or decision being appealed and attach a copy, lists only the March 3, 2017 order denying her motion to vacate default judgment. Accordingly, we decline to address defendant's arguments regarding the summary judgment motion. See W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review."). 2 A-3291-16T2 committed breach of contract by failing to repair and maintain her condominium unit in violation of the master deed and condominium association's by-laws, as well as asserting plaintiff's pleadings were frivolous. Subsequently, plaintiff filed a motion for summary judgment, and on August 5, 2016, the court granted that motion and struck defendant's answer and counterclaims as non-contesting. However, the court denied plaintiff's motion for an entry of final judgment, and instead directed plaintiff to file its motion with the Office of Foreclosure. Defendant filed a motion for reconsideration, which the court denied. On November 7, 2016, plaintiff filed a motion requesting the entry of a final judgment of foreclosure. Defendant failed to oppose the motion. According to plaintiff, the Office of Foreclosure granted its motion, and defendant does not contest that assertion. Defendant then filed a "motion to vacate default and for leave to file an amended answer." On March 3, 2017, the trial court denied the motion, finding "neither excusable neglect nor a meritorious defense is present." This appeal followed. II On appeal, defendant argues the trial court impermissibly granted summary judgment even though there exist disputed issues of material fact. She further argues that, in granting summary 3 A-3291-16T2 judgment, the court erroneously relied upon an improper certification. Specifically, she asserts David L. Dockery, an attorney with the law firm representing plaintiff, certified to facts absent personal knowledge, thereby committing fraud upon the court. Rule 4:50-1 sets forth the standard for vacating a default judgment, and provides that a default judgment may be set aside due to, among other things, "mistake, inadvertence, surprise, or excusable neglect . . . or newly discovered evidence . . . ." Our Supreme Court has explained that the rule is "designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (quoting Mancini v. EDS, 132 N.J. 330, 334 (1993)). Moreover, it held, "The trial court's determination under the rule warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." Ibid. (citation omitted). We find an abuse of discretion "when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). 4 A-3291-16T2 Because the record fails to demonstrate excusable neglect or a meritorious defense, the trial judge did not abuse her discretion in denying defendant's motion to vacate the judgment entered against her. Although defendant argues a genuine dispute of material facts precludes summary judgment, we again note she failed to appeal from the order granting summary judgment, but rather appealed from the court's order denying her motion to vacate default judgment. Accordingly, as previously noted, we decline to address her arguments regarding the summary judgment motion. The "new" evidence defendant presented in support of her motion to vacate the default judgment was available and in her possession when plaintiff's summary judgment motion and defendant's reconsideration motion were pending. Moreover, the trial judge concluded that if defendant "is entitled to set offs for sums paid or collected," such evidence bears relevance only to the issues of when and whether the court should consider the judgment satisfied. Additionally, we note defendant's arguments regarding the Dockery certification provide no basis for granting defendant relief. The court granted plaintiff's summary judgment motion based upon the certification of plaintiff's property manager, Adam McCallum, not the Dockery certification. The trial court properly relied upon McCallum's certification as it clearly states he is 5 A-3291-16T2 familiar with the action and "testifying as to [his] personal knowledge . . . ." See N.J.R.E. 901; R. 1:6-6. Accordingly, defendant's unsupported argument that Dockery committed fraud upon the court lacks persuasion, particularly in light of the certification's lack of bearing on the trial court's ultimate disposition. Affirmed. 6 A-3291-16T2

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Docket No.: a3424-16
Decided: 2018-06-14
Caption: SIRIS PHARMACEUTICALS, LLC v. UNITY BANK
Status: unpublished
Summary:
PER CURIAM AJB Residential Realty Enterprises, Inc. (AJB) appeals the March 9, 2017 judgment for $7563.32 entered against it in favor of Siris Pharmaceuticals, LLC. (Siris). We remanded the case in 2016 for a plenary hearing to determine who should reimburse Siris for its security deposit. See Siris Pharms., Inc. v. Unity Bank, No. A-5487-14 (App. Div. Nov. 30, 2016). We affirm entry of the trial court's judgment finding that AJB is responsible for the payment. We recite the following from our 2016 decision to provide context. Siris has been a tenant at 75 North Street in Bloomsbury, New Jersey since 2001. Siris entered into [a] lease agreement (lease) with building's former owner, 75 North Holdings, LLC (75 North Holdings) on December 19, 2007. The "Security Deposit" clause in the lease recited, in relevant part, "If the [l]andlord's interest in the [r]ental [s]pace is transferred[,] the [l]andlord shall turn over the [s]ecurity [d]eposit to the new [l]andlord." 2 A-3424-16T3 Defendant/third-party plaintiff, Unity Bank (Unity), held a first mortgage on the property. In July 2009, 75 North Holdings defaulted on mortgage payments prompting Unity to file a complaint in foreclosure against 75 North Holdings. Upon Unity's request, Michael G. Cohan was appointed by court order as the rent receiver on behalf of 75 North Holdings to collect, demand and receive the rents, issues, and profits of the property. The order also provided that Siris' security deposit was to be released from 75 North Holdings to Cohan. In May 2010, Cohan and Siris executed a lease addenda modifying the lease term and amount of rent per month. The addenda stated that all other terms of the December 19, 2007 lease between Siris and 75 North Holdings remained in effect. In October 2011, a writ of execution was issued in favor of Unity. The sheriff's deed, dated May 8, 2012, transferred title to the property in Unity's subsidiary, AJB. The property was then sold to third-party defendant Joseph Benseev's assignee, 75 North 1, LLC, (75 North 1) on February 28, 2014. In March 2014, Siris wrote to Unity requesting that the security deposit from the 2007 lease be forwarded to 75 North 1. Thereafter, in April 2014, Siris requested the security deposit be returned. Unity did not comply with either request. Siris entered into a lease with 75 North 1 in July 2014. Since Unity neither returned the original security deposit to Siris nor forwarded those funds to 75 North 1, Siris was required to pay a new security deposit. [Siris, slip op. at 1-3.] 3 A-3424-16T3 In December 2014, Siris filed a complaint in the Special Civil Part against Unity and AJB for the return of its $7563.32 security deposit. Unity and AJB filed a third-party complaint against Joseph Benseev and 75 North 1 LLC alleging that if they are liable to Siris then under AJB's contract with Benseev, the third-party defendants are liable to AJB. Following a bench trial, a judgment was entered on June 30, 2015, in favor of Siris against AJB for the amount of the security deposit in reliance on the Security Deposit Act (SDA), N.J.S.A. 46:8-21.1. Another order was entered on July 9, 2015, that dismissed the third-party complaint because "[i]t cannot be reasonably expected that 75 North 1, LLC or Joseph Benseev obtained a security deposit that was mishandled." On appeal from those judgments, we held that "the premise for the judge's decision was erroneous" because the SDA did not apply to commercial leases. Id. at 5. We affirmed on different grounds the trial court's decision that Siris was "entitled to either the return of the security deposit or the application of the security deposit to its lease with 75 North 1." Id. at 5-6. Under the order appointing Cohan as receiver, we held he was responsible to collect Siris' security deposit from 75 North Holdings. We observed that the lease addenda he entered into with Siris provided that provisions of the 2007 lease were to survive, including the clause in the original lease that put the "onus of transfer" on 4 A-3424-16T3 the landlord. Id. at 7. Thus, we held "when the May 2012 sheriff's deed vested title of the property to Unity's subsidiary, AJB, Cohan was required to transfer Siris' security deposit to AJB." Id. at 6. However, we also noted that "the lack of a record relating to the security deposit's chain of custody" made difficult the task of determining "the responsible party for the return or application of the security deposit funds." Id. at 7. The record did not indicate whether the funds were transferred to Cohan or whether he transferred them to AJB. It did not disclose where the security deposits were held despite Cohan's obligation to provide a reconciliation of those funds. We reversed the judgment in favor of Siris against AJB and remanded the issue of who should reimburse Siris the security deposit for a plenary hearing.1 Evidence presented at the second plenary hearing showed that Siris paid its security deposit to 75 North Holdings, and that it was not returned to Siris by the rent receiver, Unity or AJB. Under Siris' lease with 75 North Holdings, the security deposit could be comingled with other funds. That lease provided that "if 1 Cohan was not a party. Our opinion expressed no opinion about the liability of Cohan or other defendants. We also found without merit AJB's contention that its third-party complaint should not have been dismissed against 75 North 1 LLC or Joseph Benseev. 5 A-3424-16T3 the [l]andlord's interest in the [r]ental [s]pace is transferred, the [l]andlord shall turn over the [s]ecurity [d]eposit to the [n]ew [l]andlord." When Cohan was appointed, his firm asked 75 North Holdings to turn over all operating accounts and security deposits. He was not provided with any separately maintained security deposits. Cohan collected rents for over two years. All the rents that he collected were used in the operation of the building. Any surplus was to be paid to Unity, but there was no surplus. The rent receiver provided a final accounting in 2012. It did not indicate that any security deposit was separately maintained. When ABJ became the owner of the property after the sheriff's sale, Siris paid it rent for two years. Neither AJB nor Unity asked Siris for additional funds for a security deposit. ABJ sold the property to 75 North 1 in 2014. Siris' prior security deposit was not transferred to 75 North 1 when AJB sold the property. Siris entered into a new lease with 75 North 1 and paid it a new security deposit. After the second plenary hearing, the trial court entered a $7563.32 judgment against AJB in favor of Siris representing the amount of Siris's security deposit. The trial court found that Siris was not asked to supply a new security deposit, Cohan's duty as rent receiver was to hold Siris's security deposit, but that 6 A-3424-16T3 Siris paid a new deposit to the 75 North 1. The court concluded that "it is clear to the [c]ourt that AJB is responsible for returning the security deposit to Siris" because it found "AJB was the last defendant in possession of Siris' security deposit." On appeal, AJB contends the judgment was not supported by substantial and credible evidence. Cohan testified he did not receive the security deposit or account for it. He did not transfer the security deposit to AJB or to Unity Bank. Therefore, because AJB never had possession of the security deposit and was not "the last responsible party in possession," AJB contends it is not responsible to return the security deposit to Siris. Siris argues that because AJB was the landlord it either had to collect the security deposit from its predecessor or credit the amount to Siris' lease. Otherwise, AJB was unjustly enriched. We afford a deferential standard of review to the factual findings of the trial court on appeal from a bench trial. Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974). These findings will not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). However, our review of a trial court's legal determinations is plenary. D'Agostino 7 A-3424-16T3 v. Maldonado, 216 N.J. 168, 182 (2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). We are satisfied there was sufficient evidence to support the trial court's judgment against AJB. There is no dispute that Siris paid a security deposit of $7563.32 to 75 North Holdings. Under the terms of the lease, the security deposit could be comingled "by the[l]andlord with other monies." In our prior opinion, we held that the rent receiver was responsible to collect the security deposit from 75 North Holdings. He testified that his firm sent a certified letter to the debtor requesting "things we need to do our job" which included "any existing operating accounts they have, we need the proceeds of, any security deposits they have . . . ." Although there were no separately maintained security deposits, his final accounting did report operating income and expenses. These were used for the "expenses of management and care of the mortgaged premises." There was no surplus remaining for AJB when it became owner of the premises. AJB did not dispute testimony from Siris' comptroller that Siris was asked to pay rent to AJB and did so for two years until the property was sold to a new owner in 2014. Although AJB never demanded a new security deposit, it also was not disputed that Siris' security deposit was comingled with the operating funds and 8 A-3424-16T3 the operating funds were used to maintain the mortgaged premises. We are satisfied, based on the commingling of the security deposit with operating funds that benefited AJB, that the trial court was correct to require AJB to repay Siris the security deposit of $7563.32. Affirmed. 9 A-3424-16T3

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Docket No.: a3711-16
Decided: 2018-06-14
Caption: ONE WEST BANK, F.S.B. v. ABDELNASSER MUSALLAM
Status: unpublished
Summary:
PER CURIAM On March 29, 2017, Judge Barry P. Sarkisian dismissed defendants Abdelnasser Musallam (Musallam) and Eslam Musallam's counterclaim against plaintiff for alleged violations of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. The counterclaim was filed in a mortgage foreclosure proceeding in which judgment was entered and was affirmed on appeal. See Onewest Bank, F.S.B. v. Musallam, A-5687-13 (App. Div. Oct. 5, 2016). We remanded the CFA counterclaim for trial because the disputes regarding the underlying claims were material. Id. at 8. For the reasons stated in Judge Sarkisian's thorough opinion, we affirm. We briefly summarize defendants' allegations. A mortgage broker falsified Musallam's annual income in order to enable him to obtain a mortgage through IndyMac, plaintiff OneWest Bank F.S.B.'s predecessor. The mortgage broker was employed by a separate home mortgage company. On remand, defendants could not establish any connection between the mortgage broker, or his firm, and IndyMac. Thus, defendants could not prove that IndyMac had some basis for knowledge of the fraud allegedly perpetrated in the loan process. 2 A-3711-16T3 Accordingly, the trial court held that New Jersey law did not impose liability for wrongful conduct to an assignee mortgagee or the original lender when the wrong is perpetrated by a third party who is neither in privity with the original lender or the assignee, nor in a principal-agent relationship. Since IndyMac was not implicated in the broker's conduct, plaintiff could not be held liable. The documentary evidence submitted by defendants did not support their claim that those records alone established a violation of the CFA in the mortgage loan process. Defendants now raise the following points by way of appeal: POINT I BECAUSE THE "NO DOC" ADJUSTABLE RATE NOTE WAS EXTENDED TO THE DEFENDANT WITH RECKLESS UNCONCERN AS TO THE BORROWER'S ABILITY TO PAY, THE PLAINTIFF, THROUGH ITS PREDECESSOR, COMMITTED AN UNCONSCIONABLE COMMERCIAL PRACTICE UNDER THE CONSUMER FRAUD ACT. A. IndyMac's Reckless Disregard For Mr. Musallam's Ability to Afford the $428,000 "No Doc" Loan Constituted an Unconscionable Practice Under the CFA. B. Recent Decisions in New Jersey Provide Support for the Principle That Predatory Lending Practices Violate the CFA. C. In Its Reasoning and Decision Below, the Chancery Division Committed Reversible Error. We find these points to be so lacking in merit as to not warrant discussion in a written decision. R. 2:11-3(e)(1)(E). 3 A-3711-16T3 Furthermore, the cases that allegedly support defendants' position are distinguishable factually and otherwise. In all of them, the claimant established a connection or relationship justifying the imposition of legal liability. Here, no connection has been demonstrated. Final determinations made by a trial judge in a non-jury matter are not disturbed unless so lacking support in the record as to deny the litigant justice. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483 (1974). Such findings are affirmed on appeal when supported by substantial and credible evidence. Ibid. In this case, the judge's decision that the requisite proofs were entirely missing is supported by the record. There is no question that if factually established, predatory lending practices can violate the CFA. These defendants are unable to prove such predatory lending practices on the part of plaintiff or IndyMac. Affirmed. 4 A-3711-16T3

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Docket No.: a4376-15
Decided: 2018-06-14
Caption: STATE OF NEW JERSEY v. BRUCE W. JACKSON, JR
Status: unpublished
Summary:
LEONE, J.A.D. Defendant Bruce W. Jackson appeals his August 5, 2015 judgment of conviction after a guilty plea. He challenges the denial of his motion to suppress. We affirm. I. We derive the following facts from the trial court's factual findings at the April 23, 2015 suppression hearing, and the hearing testimony of Officer Timothy Rehmann, Officer Michael McLaughlin, and Officer Colt Gibson, all patrol officers with the Millville Police Department. On September 7, 2013, Officer Rehmann received a call from a known source reporting that shots had been fired at the Delsea Gardens apartment complex involving a black Toyota FJ Cruiser with a white top. The caller followed the FJ Cruiser to a Wawa. When Rehmann got there, the FJ Cruiser had left the Wawa, but Rehmann reviewed the Wawa's surveillance footage, saw the FJ Cruiser had parked there, and identified defendant as the driver and the registered owner of the FJ Cruiser. Rehmann lacked sufficient evidence of a shooting, but printed out a picture of the FJ Cruiser from the surveillance footage and posted it where other officers saw it, including Officer Gibson. On October 1, 2013, at 12:19 a.m., Officers Rehmann, McLaughlin, and Gibson responded to another report of shots fired at an apartment in Delsea Gardens. Rehmann found a bullet strike 2 A-4376-15T4 through an apartment window and bullet fragments in the apartment. Other officers found shell casings on the ground nearby. While looking for evidence, Officer McLaughlin was approached by an individual in a hooded sweatshirt, with the hood pulled tightly over his face. The individual stated he knew who did the shooting, and he was willing to talk in a more private place. McLaughlin met privately with the individual, who said he saw a black FJ Cruiser with a white top pull into the complex, multiple persons exit the vehicle, and the persons "cranking rounds off." They then got back in the FJ Cruiser and left. The individual declined to identify himself due to the high level of gang activity in the area and his resulting fear of retaliation. McLaughlin shared this information with the other officers, including Officer Gibson. Within a few minutes of that conversation, Officer McLaughlin observed a black FJ Cruiser with a white top pull into the complex. McLaughlin testified that "as they pulled in, they turned their headlights off and it seemed like as soon as they saw the police car there they hurried up and turned back out," driving without headlights on the street. Officer Rehmann testified that while taking photographs of the shell casings, he observed a black FJ Cruiser with a white top enter Delsea Gardens, drive with no lights 3 A-4376-15T4 on, turn into a nearby parking lot, and then turn back and exit the complex. Officer Gibson testified he observed the black FJ Cruiser with a white top pull into the complex with its headlights on, make an immediate u-turn, emerge from behind a building with its lights off, and then leave the complex, driving on the street with its lights off. Gibson immediately went to his vehicle to follow the FJ Cruiser. Officer Gibson located the FJ Cruiser stopped at a Wawa gas station. He exited his vehicle and performed a "felony stop," pointing his weapon at the occupants of the FJ Cruiser and ordering them to open the door, exit the FJ Cruiser, and lay on the ground. Three occupants – including defendant, the driver – exited the FJ Cruiser. Two other occupants of the FJ Cruiser, who were in the Wawa, fled when the police approached. Officer Gibson approached and looked in the FJ Cruiser to confirm there were no more occupants left in the vehicle. Through a window he observed a handgun in the pouch behind the front passenger seat. Officers Rehmann and McLaughlin joined Officer Gibson. Using his flashlight, Rehmann looked into the vehicle to see if any weapons were in plain view and to verify the vehicle was unoccupied. Without opening the doors, Rehmann observed the butt 4 A-4376-15T4 end of the semi-automatic-pistol in the pouch on the back of the front passenger seat. He also looked through the rear window of the SUV and saw a revolver and the barrel of a shotgun in the cargo area.1 Defendant was charged with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) and third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5(c)(1). After the hearing on defendant's motion to suppress, the trial court found "[t]here was a legitimate reason to stop [the] car for a motor vehicle violation," that "the felony stop" was justified under "the totality of the circumstances," and the weapons were properly seized under "a recognized exception to the warrant requirement in that they were recovered due to the fact that they were located in plain view." Defendant pled guilty to second-degree unlawful possession of a weapon. At the plea hearing, defendant stated as follows. On October 1, 2013, he was driving his FJ Cruiser and had a 9 mm Ruger handgun in the pouch behind the front passenger seat. He had no permit. He, co-defendant Hector Guevera, and three other passengers drove to the Delsea Gardens apartment complex, heard 1 Officer McLaughlin testified he patted down defendant, and found a large hunting knife. However, defendant was not charged with possessing the knife, and it is not at issue on appeal. 5 A-4376-15T4 shots fired, left, and discovered the FJ Cruiser had a bullet hole. They drove to the residence of Guevera, got two more handguns and a shotgun, and drove back to Delsea Gardens. They then drove to get gas at the Wawa, where the police came and saw and seized the guns. Pursuant to the plea agreement, the trial court sentenced defendant to five years in prison with one year of parole ineligibility. Defendant appeals, arguing: THE ITEMS SEIZED FROM DEFENDANT'S VEHICLE SHOULD HAVE BEEN SUPPRESSED AS FRUITS OF AN ILLEGAL WARRANTLESS SEARCH. BECAUSE NO EXIGENT CIRCUMSTANCES EXISTED, THE WARRANTLESS SEARCH OF THE VEHICLE WAS UNCONSTITUTIONAL. II. We must hew to our standard of review. An appellate court is "bound to uphold a trial court's factual findings in a motion to suppress provided those 'findings are "supported by sufficient credible evidence in the record."'" State v. Watts, 223 N.J. 503, 516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). "Deference to those findings is particularly appropriate when the trial court has the '"opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy."'" Ibid. (quoting Elders, 192 N.J. at 244). "Nevertheless, we are not required to accept findings that are 'clearly mistaken' 6 A-4376-15T4 based on our independent review of the record." Ibid. (quoting Elders, 192 N.J. at 244). "We owe no deference to a trial . . . court's interpretation of the law, and therefore our review of legal matters is de novo." State v. Hathaway, 222 N.J. 453, 467 (2015). III. The United States and New Jersey Constitutions allow an investigatory stop "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30 (1968); State v. Davis, 104 N.J. 490, 504-05 (1986). An investigatory stop is valid "if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002). Reasonable suspicion "requires '"some minimal level of objective justification for making the stop."'" State v. Amelio, 197 N.J. 207, 211-12 (2008) (citations omitted). "Although a mere 'hunch' does not create reasonable suspicion, the level of suspicion required is 'considerably less than proof of wrongdoing by a preponderance of the evidence, and 'obviously less' than is necessary for probable cause." State v. Gamble, 218 N.J. 412, 428 7 A-4376-15T4 (2014) (citations omitted). "Because the 'determination of reasonable [and articulable] suspicion is fact-sensitive,' a careful review of the totality of the circumstances surrounding each case is required." State v. Mann, 203 N.J. 328, 338 (2010) (alteration in original) (citation omitted). Here, the totality of the circumstances gave rise to reasonable suspicion both of a traffic violation and of illegal possession of a firearm. "'It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" State v. Locurto, 157 N.J. 463, 470 (1999) (citation omitted). Here, it is undisputed Officer Gibson had the right to stop the FJ Cruiser once he and the other officers saw it commit a motor vehicle violation by driving without headlights on the streets around midnight. N.J.S.A. 39:3-47(a) ("No person shall drive . . . any vehicle . . . on any street or highway during the times when lighted lamps are required unless such vehicle . . . displays lighted lamps[.]"). Thus, when Gibson saw the FJ Cruiser parked at the Wawa, he had the right to detain the FJ Cruiser and its driver, defendant. In addition, Officer Gibson had a reasonable suspicion the occupants of the FJ Cruiser had one or more firearms. Gibson was aware of the report of the shooting at Delsea Gardens, which had 8 A-4376-15T4 been confirmed by Officer Rehmann's discovery of the bullet hole, bullet fragments, and shell casings. Gibson also knew that Officer McLaughlin had received information that the shooting was done by persons in the FJ Cruiser. "[A]s a general rule, '[a]n anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity.'" State v. Golotta, 178 N.J. 205, 228 (2003) (citation omitted). "[H]owever, there are situations in which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" Florida v. J.L., 529 U.S. 266, 270 (2000) (citation omitted). "When an anonymous tip is involved, additional factors must be considered to generate the requisite level of reasonable and articulable suspicion." State v. Privott, 203 N.J. 16, 26 (2010). Unlike those cases, which involved anonymous telephone calls, here the individual spoke to Officer McLaughlin face-to-face. "Generally speaking, information imparted by a citizen directly to a police officer will receive greater weight than information received from an anonymous tipster." State v. Basil, 202 N.J. 570, 586 (2010). "'[W]hen a tip is made in-person, an officer can observe the informant's demeanor and determine whether the informant seems credible enough to justify immediate police action 9 A-4376-15T4 without further questioning.'" Ibid. (citation omitted). "Thus, an objectively reasonable police officer may assume that an ordinary citizen reporting a crime, which the citizen purports to have observed, is providing reliable information." Ibid. This is so even though the individual "refuse[d] to give any identifying data about [him]self out of an expressed fear for h[is] safety," as that "does little to diminish the reliability of the information." Id. at 576-87 (finding probable cause that the defendant had a gun based on face-to-face information from a woman who refused to identify herself). "One reason a face-to- face encounter with a citizen is considered more reliable than a purely anonymous tipster is that 'an in-person informant risks losing anonymity and being held accountable for a false tip.'" State v. Hathaway, 222 N.J. 453, 471 (2015) (quoting Basil, 202 N.J. at 586). Here, the individual reported the shooting "in a face-to-face conversation," allowing Officer McLaughlin to observe his "physical characteristics" including race, sex, height, and weight, "providing the possibility of his later identification." Id. at 475 (finding an officer could reasonably credit an anonymous patron who reported a robbery face-to-face). Thus, "[t]his case is not like Florida v. J.L.," Basil, 202 N.J. at 588-89, and the individual was "more akin to an eyewitness citizen informant than an anonymous tipster," Hathaway, 222 N.J. at 475. 10 A-4376-15T4 The trial court found the officers could assume the individual was providing reliable information when he stated he witnessed the black FJ Cruiser with a white top enter Delsea Gardens and he knew who did the shooting, establishing personal knowledge. The individual stated the FJ Cruiser pulled into Delsea Gardens, multiple persons exited the FJ Cruiser and began shooting, reentered the FJ Cruiser, and left. This information was sufficient to provide reasonable suspicion that the FJ Cruiser's occupants had at least one firearm. In any event, the individual's information was corroborated in numerous ways. First, the officers had information that a black FJ Cruiser with a white top had been involved in the September 7 shooting. Second, the officers had found physical evidence confirming that a shooting had taken place at Delsea Gardens on October 1. Third, about thirty minutes after that shooting, and only ten minutes after the individual spoke with Officer McLaughlin, all three of the testifying officers saw a Black FJ Cruiser with a white top pull into Delsea Gardens.2 Fourth, the FJ Cruiser immediately turned off its headlights and left the complex "as soon as they saw the police cars." As the trial court found, the officers could infer the occupants turned 2 Officer Rehmann testified that FJ Cruisers were not a "fairly common, widespread type of vehicle." 11 A-4376-15T4 off the headlights of the FJ Cruiser, immediately drove off, and illegally operated it on the street without lights "to conceal it from identification by the officers." An attempt to hide from police can contribute to reasonable suspicion. See State v. Valentine, 134 N.J. 536, 553-54 (1994). All that information gave Officer Gibson reasonable suspicion the occupants of the FJ Cruiser had violated the motor vehicle laws, reasonable suspicion they had just been involved in the shooting incident at Delsea Gardens, and reasonable suspicion to believe they were armed with guns and were trying to evade the police. He thus had ample basis to "stop" the parked FJ Cruiser and detain the occupants for an investigatory stop. As Officer Gibson had reasonable suspicion the occupants had at least one gun, had been shooting, and had tried to evade police, it was entirely appropriate for him to order the occupants to exit the FJ Cruiser at gunpoint. See, e.g., State v. Padilla, 321 N.J. Super. 96, 108 (App. Div. 1999) (ruling that where a "caller reported a person with a gun; consequently, the officers had the right to draw their handguns"). "[T]he authority to conduct an investigative stop must necessarily carry with it some ability to effectuate such a stop, including the use of force, if necessary." State v. Branch, 301 N.J. Super. 307, 319 (App. Div. 1997) (holding officer properly drew and cocked gun to effectuate a stop), rev'd 12 A-4376-15T4 in part on other grounds, 155 N.J. 317 (1998). Gibson was "authorized to take such steps as were reasonably necessary to protect [his] personal safety and to maintain the status quo during the course of the stop." United States v. Hensley, 469 U.S. 221, 235 (1985). In Hensley, the United States Supreme Court held that an officer's conduct in approaching the suspect with gun drawn in a Terry stop "was well within the permissible range in the context of suspects who are reported to be armed and dangerous." Id. at 223-24, 235. "The courts have rather consistently upheld such police conduct when the circumstances . . . indicated that it was a reasonable precaution for the protection and safety of the investigating officers." 4 Wayne R. LaFave, Search and Seizure § 9.2(d), at 403 & n.124 (5th ed. 2012).3 Defendant notes "the principle that 'the investigative methods employed [in a Terry stop] should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Privott, 203 N.J. at 31 (alteration in original) (quoting Florida v. Royer, 460 U.S. 491, 3 Defendant does not challenge the reasonableness of ordering defendant and his passengers to exit the car, see State v. Bacome, 228 N.J. 94, 104-08 (2017), lie down, or be handcuffed, see State v. Legette, 441 N.J. Super. 1, 28 (App. Div. 2015), rev'd on other grounds, 227 N.J. 460 (2017). 13 A-4376-15T4 500 (1983)). Here, the officers engaged in non-intrusive means by looking through the windows of the FJ Cruiser and seeing the guns within, which verified their suspicions. IV. The seizure of the guns was permissible under the plain-view doctrine. At the time of the stop, the doctrine justified a warrantless seizure of evidence when: (1) the officer was "lawfully in the viewing area," (2) the officer discovered the evidence "'inadvertently,' meaning that he did not know in advance where the evidence was located nor intend beforehand to seize it," and (3) it was "immediately apparent" that the items "were evidence of a crime, contraband, or otherwise subject to seizure." [State v. Earls, 214 N.J. 564, 592 (2013) (citation omitted).]4 Here, the officers were lawfully present next to the FJ Cruiser because they made a valid "stop" of the vehicle while it was parked at a Wawa gas station. Moreover, when Officers Gibson and Rehmann looked through the FJ Cruiser's windows and saw the pistol protruding from, the pouch behind the front passenger seat, and the revolver and the barrel of the shotgun in the cargo area, it was immediately apparent that 4 Subsequent to this stop, our Supreme Court removed the inadvertence requirement, but did so only prospectively. State v. Gonzales, 227 N.J. 77, 101 (2016). 14 A-4376-15T4 the firearms were evidence of criminal activity. "The term 'immediately apparent' in the third factor means that the police officer must have 'probable cause to associate the item[] with criminal activity.'" State v. Bogan, 200 N.J. 61, 79 n.10 (2009) (quoting State v. Bruzzese, 94 N.J. 210, 236-37 (1983)). Defendant argues that while the officers could see the firearms through the FJ Cruiser's windows, they could not seize them. Our Supreme Court ruled otherwise in State v. Mann, 203 N.J. 328 (2010). In Mann, an officer peered into the open window of a GMC Yukon SUV, saw what appeared to be drugs on the back seat, opened the door, and seized the drugs. Id. at 334-35. The Court ruled that the officer "was lawfully standing outside the Yukon when he looked inside the open window and observed the suspected drugs," and "conclude[d] that the plain view exception to the warrant requirement applies, and that [the officer]'s seizure of the drugs from the back seat of defendant's vehicle was lawful." Id. at 340-41; see State v. Reininger, 430 N.J. Super. 517, 526-27, 535-36 (App. Div. 2013) (ruling an officer who saw firearm cases in a vehicle could open the door and seize them under the plain view doctrine); State v. Smith, 306 N.J. Super. 370, 379-81 (App. Div. 1997). "There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive 15 A-4376-15T4 passersby or diligent police officers." Reininger, 430 N.J. Super. at 534 (quoting Texas v. Brown, 460 U.S. 730, 740 (1983)). Further, the discovery of the evidence was inadvertent. "The purpose of the inadvertence requirement, in part, was to acknowledge that 'where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it,' the police should secure a valid warrant." Gonzales, 227 N.J. at 91-92 (citation omitted). Here, the police did not know where the FJ Cruiser was until Officer Gibson found it at the Wawa, and even then did not know if the gun or guns were still in the FJ Cruiser or on its occupants, some of whom had fled and others who had not been frisked until moments before the guns were spotted. Thus, "the 'inadvertence' requirement of plain view . . . was satisfied in this case because the police officers did not know in advance that evidence would be found" in that precise location. State v. Johnson, 171 N.J. 192, 213 (2002). Thus, Officer Rehmann properly seized the pistol, revolver, and shotgun that were in plain view. While he was doing so, the handgun on the floor came into plain view. Accordingly, seizure of the firearms was justified under the plain-view doctrine. "Because the seizure of the [guns] was proper under the plain view doctrine, it was not necessary for the State to establish exigent circumstances under the automobile exception." Reininger, 16 A-4376-15T4 430 N.J. Super. at 537. In any event, exigent circumstances also justified the search of the FJ Cruiser once the police saw the guns. At the time of this stop, the automobile exception permitted a warrantless search of an automobile if: "(1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." State v. Pena-Flores, 198 N.J. 6, 28 (2009).5 Under that test, "courts must not only consider the mobility of the vehicle or the lessened expectation of privacy in it, but also must look, to all of the facts and circumstances surrounding the search to determine the existence of exigency." Id. at 26. Legitimate considerations are as varied as the possible scenarios surrounding an automobile stop. They include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk. 5 Subsequent to this stop, our Supreme Court removed the exigent circumstances requirement in State v. Witt, 223 N.J. 409, 450 (2015), but did so only prospectively. 17 A-4376-15T4 [Id. at 29.] Here, the stop occurred after midnight. The FJ Cruiser contained multiple firearms and its occupants had just been shooting. Although four occupants had been secured by a number of officers, two other occupants "who kn[e]w the location of the car and could remove it or its contents" were at large. Ibid. The search also took place at a Wawa, where "passersby . . . could tamper with the car or its contents." Ibid. Further, it was unsafe to leave the FJ Cruiser unguarded, and to delay to obtain a warrant would place the officers and evidence at risk. Seeing the guns gave the officers probable cause, there were sufficient exigent circumstances to justify a search of the FJ Cruiser and the seizure of the firearms. The State also contends the officers could have conducted a protective sweep of the FJ Cruiser to search for weapons because they had reasonable suspicion. See State v. Gamble, 218 N.J. 412, 426-33 (2014). We need not reach that issue because the officers had probable cause once they saw the firearms, and could properly seize them under the plain view and automobile exceptions. Affirmed. 18 A-4376-15T4

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Docket No.: a4460-16
Decided: 2018-06-14
Caption: U.S.BANK, NA v. ANTHONY L. PLESH
Status: unpublished
Summary:
PER CURIAM Appellant Dr. George Pieczenik appeals from a May 26, 2017 Chancery Division order denying his motion to intervene in this mortgage foreclosure case.1 On appeal, appellant argues he "was entitled to intervene." We conclude that appellant's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(E). We affirm substantially for the reasons set forth by the trial court in its May 26, 2017 written decision and order denying appellant's motion. Affirmed. 1 On July 30, 2015, the trial court entered an uncontested final judgment of foreclosure and a writ of execution in the foreclosure action. Appellant, who represented that he was defendant's tenant, did not file his motion to intervene in that action until April 24, 2017, over twenty months later. 2 A-4460-16T2

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Docket No.: a5618-16
Decided: 2018-06-14
Caption: MELVIN SCHINDELHEIM v. YIFEI TIAN
Status: unpublished
Summary:
PER CURIAM In this residential sidewalk slip-and-fall case, plaintiff appeals from the August 7, 2017 Law Division order denying his motion for reconsideration of the court's June 23, 2017 order granting defendant's motion for summary judgment, and dismissing plaintiff's complaint. We affirm. There is no dispute as to the material facts. While walking to his son's house, plaintiff tripped over a broken sidewalk that was adjacent to defendant's residential home, fell on the ground, and injured his shoulder. Defendant had purchased the property about seventeen months earlier, and resided there with her two children. Defendant had never made any repairs to the sidewalk adjacent to her property during the time her family lived there, and she did not create the alleged defect that caused plaintiff's fall. It is well established, and plaintiff does not dispute, that "absent negligent construction or repair," a residential property owner like defendant "does not owe a duty of care to a pedestrian injured as a result of the condition of the sidewalk abutting the landowner's property." Mohamed v. Iglesia Evangelica Oasis De Salvacion, 424 N.J. Super. 489, 492 (App. Div. 2012) (citing Stewart v. 104 Wallace Street, 87 N.J. 146, 153 (1981)). Accordingly, defendant filed a motion for summary judgment. When plaintiff did not respond, Judge Andrea G. Carter granted the motion and dismissed plaintiff's complaint. Thereafter, plaintiff's attorney asserted that he had never received defendant's summary judgment motion and, therefore, he 2 A-5618-16T3 filed a motion for reconsideration on behalf of plaintiff. In an accompanying certification, the attorney acknowledged that under current decisional law, "defendant had no liability for the injuries suffered by . . . plaintiff in this case." However, the attorney stated that had he been able to respond to the defendant's motion, he "would have encouraged [the trial judge] to consider whether the time has come for the [c]ourts of the State of New Jersey to reconsider the[se] holding[s]." After conducting oral argument, Judge Carter reviewed plaintiff's contention, denied his motion for reconsideration, and kept her summary judgment ruling in place. In a thorough oral opinion, the judge found that defendant was a residential property owner, who owed no duty to plaintiff for the condition of the sidewalk adjacent to her property. Defendant had never engaged in any commercial activity and did nothing to cause the alleged defect in the sidewalk. Therefore, the judge followed the existing precedents and dismissed plaintiff's complaint. This appeal followed. On appeal, plaintiff argues that the judge erred in denying his motion for reconsideration. He also asserts that New Jersey should recognize for the first time that residential property owners owe a duty of care to pedestrians who walk on sidewalks abutting their homes. Both contentions lack merit. 3 A-5618-16T3 Although the judge denied plaintiff's motion for reconsideration, she nevertheless permitted plaintiff to contest defendant's motion for summary judgment, and rendered a thoughtful and comprehensive oral decision explaining her decision not to disturb her prior order dismissing plaintiff's complaint. Thus, even if plaintiff did not receive defendant's original motion, he was not prejudiced in any way because he was able to fully respond to it. We are satisfied that the judge did not abuse her discretion by proceeding in this fashion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996) (stating that we review the denial of a motion for reconsideration to determine whether the trial court abused its discretionary authority). As noted above, long-existing precedents clearly establish that a residential property owner like defendant does not owe a duty of care to a pedestrian who slips and falls on a sidewalk adjacent to their property where the owner has not caused the defect in the walkway. Because there was no dispute as to any of the material facts, and defendant was entitled to judgment as a matter of law, Judge Carter properly granted summary judgment to defendant and dismissed plaintiff's complaint. Conley v. Guerrero, 228 N.J. 339, 346 (2017). As for plaintiff's request that we "overturn" the binding rulings in Stewart and other Supreme Court cases, we note that it 4 A-5618-16T3 is not the intermediate appellate court's "function to alter [a] rule" squarely decided by the Supreme Court. In re Educ. Ass'n of Passaic, 117 N.J. Super. 255, 261 (App. Div. 1971). Because we are bound by our Supreme Court's precedents, we decline plaintiff's invitation to overturn them. See White v. Twp. of N. Bergen, 77 N.J. 538, 549-50 (1978) (stating that trial and intermediate appellate courts are "bound, under the principle of stare decisis, by formidable precedent" of the Supreme Court). Affirmed. 5 A-5618-16T3

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Docket No.: a0042-15
Decided: 2018-06-13
Caption: STATE OF NEW JERSEY v. THOMAS ZULLINGER
Status: unpublished
Summary:
FUENTES, P.J.A.D. On November 20, 2014, Bridgewater Police Officer Daniel Hennessey charged defendant Thomas Zullinger with driving while intoxicated (DWI), N.J.S.A. 39:4-50 and improper parking, N.J.S.A. 39:4-138. On April 7, 2015, the Bridgewater Municipal Court heard and denied defendant's motion to suppress evidence. Defendant thereafter pled guilty to DWI, conditioned upon his right to appeal the denial of the motion to suppress to the Law Division as provided under Rule 7:7-2(c). The municipal court accepted the guilty plea and dismissed the improper parking charge. Because this was defendant's second DWI conviction, the municipal court suspended his driving privileges for two years, imposed a series of mandatory monetary penalties, ordered him to pay a fine of $506 and perform thirty days of community service, directed him to install an interlock device on his car, and ordered him to serve two days in the Intoxicated Driver Resource Center in lieu of serving the same number of days in jail. See N.J.S.A. 39:4-50(a)(2). Pursuant to Rule 7:13-2, the municipal court stayed the execution of the sentence provided defendant presented proof, within twenty days of imposition of the sentence, that he: (1) installed an interlock device in his car; and (2) filed a notice of appeal for a trial de novo in the Law Division pursuant to Rule 3:23-2. Defendant's de novo appeal of the denial of his motion 2 A-0042-15T2 to suppress came before the Law Division on July 29, 2015. After reviewing the record developed before the municipal court and considering the arguments of counsel, Judge Bruce A. Jones denied defendant's motion to suppress and imposed the same sentence. Judge Jones explained the basis for his ruling in a memorandum of opinion dated July 30, 2015. In an order dated August 11, 2015, the Law Division stayed the non-monetary part of the sentence pending the outcome of defendant's appeal to this court. In an order dated September 18, 2015, the Law Division granted the State's motion to limit defendant's use of his vehicle pending appeal "to travel to and from his employment and to carry out the duties required by his employment during work hours." The court further restricted defendant's driving privileges to only "the vehicle on which an ignition interlock device is installed."1 Defendant now appeals from the order of the Law Division denying his motion to suppress, raising the following arguments. POINT I THE LOWER COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE AT THE TIME OF THE ARREST, THE ARRESTING OFFICER'S OBSERVATIONS OF DEFENDANT WERE INSUFFICIENT TO LEAD A REASONABLE PRUDENT 1 The Law Division granted defendant's application for a stay before the Supreme Court decided State v. Robertson, 228 N.J. 138, 152 (2017). 3 A-0042-15T2 PERSON TO BELIEVE THAT DEFENDANT WAS INTOXICATED. POINT II THE LOWER COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE AT THE TIME OF THE ARREST, THE FACTS THAT WERE AVAILABLE TO THE ARRESTING OFFICER WERE INSUFFICIENT TO PERMIT AN INFERENCE THAT DEFENDANT WAS INTOXICATED AT THE TIME THAT HE OPERATED A MOTOR [VEHICLE]. We reject these arguments and affirm. We derive the following facts from Officer Hennessey's testimony at the evidentiary hearing conducted by the municipal court to adjudicate defendant's motion to suppress. Judge Jones relied on these same facts when he denied defendant's motion in the Law Division. At approximately 2:55 a.m. on November 20, 2014, Officer Hennessey saw a 2007 Dodge Magnum parked on Heller Drive, "approximately two feet from the curb with its lights on." As he approached the car on foot, Hennessey noticed defendant in the driver's seat, "slumped over the center console." Defendant appeared to be asleep and the keys were in the car's ignition. There were no other occupants in the car. Hennessey "banged on the windows several times" and shined his flashlight in defendant's face in an attempt to wake him up. When defendant finally woke up, Hennessey asked him if he knew "what time . . . he [thought] it was." Defendant responded "it 4 A-0042-15T2 was around" one o'clock in the morning, when in fact it was two hours later. At this point, Hennessey "detected an odor of alcoholic beverage [sic]" emanating from both defendant and the interior cabin of the vehicle. Defendant also told Hennessey that he drove his car to the side of the road. At Hennessey's request, defendant stepped out of the vehicle and performed several field sobriety tests. Because the motion to suppress was predicated on the police officer's initial interactions with defendant, the prosecutor opted not to present any evidence concerning how defendant performed these field sobriety tests. Judge Jones also found that the police report containing information on this process was not entered into evidence at the municipal court proceeding and was therefore not part of the record before the Law Division. However, Judge Jones did consider a November 24, 2014 Drinking-Report completed by Officer Hennessey that described the officer's observations of defendant's conduct after the latter stepped out of his vehicle: [A]s [d]efendant stood he swayed, his knees sagged, and he kept his feet wide apart for balance; his speech was slow and slurred; his demeanor was sleepy; his eyes were bloodshot and watery with droopy eyelids; his hand movement was slow; his face was flushed; and an odor of alcohol emanated from his breath. 5 A-0042-15T2 On this record, Judge Jones concluded Officer Hennessey had probable cause to charge defendant with DWI and arrest him at the scene accordingly. We agree. Defendant's arguments attacking this conclusion lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially based on the reasons expressed by Judge Jones in his July 30, 2015 memorandum of opinion. The stay of execution of sentence entered by the Law Division on September 18, 2015 is vacated. Affirmed. 6 A-0042-15T2

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Docket No.: a0829-16
Decided: 2018-06-13
Caption: L.S. v. F.H.
Status: unpublished
Summary:
PER CURIAM Defendant F.H. appeals from May 6, 2016 and October 11, 2016 orders of the Family Part related to custody, parenting time, and support for her child with plaintiff L.S. For the reasons enunciated by Family Part Judge Mirtha Ospina, we affirm. F.H. and L.S. had a son, who was born in November 2013. In January 2014, L.S., a resident of Connecticut, filed a pro se complaint seeking to establish paternity and requesting joint legal custody of the child. F.H. cross-moved for child support, sole custody, "reasonable" visitation, and an order preventing L.S. from taking the child out of New Jersey because he was a "careless driver." In March 2014, the court ordered a paternity test and held the other issues in abeyance until the results were confirmed. In April 2014, L.S. filed an amended complaint, seeking parenting time and requesting that his last name be added to the child's. After oral arguments in May 2014, and based on the results of the paternity test, the court ordered L.S.'s name be added to the child's birth certificate as his father, and the child's surname be a combination of both parents' names. It also ordered joint legal custody, with F.H. having residential custody, parenting time for L.S. every Saturday from 10:00 a.m. to 5:00 p.m., and shared holidays. Child support was set at $29 a week, plus fifteen percent of medical bills over $250, for which F.H. needed to submit documentation prior to reimbursement. 2 A-0829-16T3 In November 2014, L.S. moved to enforce parenting time and sought to change the location for pick-ups and drop-offs to a police station. L.S. asserted that after his first visit at F.H.'s house, she accused him of domestic abuse and sexual assault, and because he could not make bail on the sexual assault charge, he was incarcerated for nearly six months. The domestic violence complaint was dismissed after trial, and the grand jury, in the criminal case, entered a no-bill. When L.S. was released, he sought to reestablish his parenting time, but he received no response from F.H., which caused him to miss scheduled visits and holiday time. The court heard oral argument in March 2015 and ordered three weeks of supervised visitation given L.S.'s lengthy absence from the young child's life due to incarceration. The other issues were held in abeyance. In April 2015, the parties returned to court, where the judge continued the supervised visitation because L.S. interacted with the child in a loving and positive manner. The judge ordered visitation to continue every Saturday from 10:00 a.m. to 5:00 p.m. and ordered the parties to attend mediation. After mediation, the parties agreed parenting time would gradually increase to overnight time and child support was set at 3 A-0829-16T3 $75 per week, among other things. On May 6, 2015, the court incorporated the agreement into an order. In March 2016, F.H. filed another domestic violence complaint against L.S., and a temporary restraining order was entered. However, in April after a trial, the court vacated the temporary restraining order and dismissed the complaint. On April 4, 2016, L.S. moved to enforce and expand parenting time. He argued the agreement provided he could seek to increase parenting time; however, when he sought to have the child overnight on alternating weekends, F.H. initially agreed, but she stopped all parenting time and communication when he asked her to reduce the arrangement to writing. L.S. requested make-up parenting time and a set schedule for holidays. He also sought to enforce the prior name-change order, claiming that F.H. refused to use the child's legal name. He further requested counsel fees for the enforcement action. In response, on April 8, 2016, F.H. moved for "full custody", modification of parenting time, pick-ups and drop-offs to be at the West District Police Station in New Jersey, and to enforce and increase L.S.'s obligation to pay a portion of the child's medical expenses. She claimed L.S. had been negligent while the child was in his care because the child returned with bruises, he failed to properly dress the child, which contributed to the child's asthma 4 A-0829-16T3 condition, and he brought the child to the Bronx Center where he had gotten hurt and sick. She contended they had agreed exchanges would occur at her home due to an undisclosed "medical condition," but he had reneged. She requested the exchanges take place in New Jersey because she was unable to drive for long periods because of medical reasons, her work hours had increased, and she was caring for an older child. On April 25, 2016, F.H. filed another motion, seeking an increase in child support and a cessation of overnight visits until the child could speak due to the stress the visits allegedly caused him. She claimed L.S. refused to follow the visitation orders and did not show up, canceled, and did not bring the child back to her. L.S. argued there was no change of circumstances justifying modification of custody and denied harming the child. He objected to being tasked with all of the driving for parenting time, and was willing to pay his share of medical expenses, but he claimed F.H. never provided proof of the expenses. On May 6, 2016, the Family Part judge heard oral arguments and sworn testimony by the parties. The parties had resumed their romantic relationship in November 2015 and L.S.'s attorney represented when they broke up in January 2016, F.H. started making parenting time difficult for L.S. L.S. claimed F.H. had called 5 A-0829-16T3 the Division of Child Protection and Permanency (the Division) numerous times about L.S., and each time, the Division determined the allegations were unfounded. F.H. admitted she involved the Division once. The court refused to change the custody arrangement, finding F.H. had not shown a substantial change of circumstances and noting that changing custody was a "last remedy" if other options were unsuccessful. The judge ordered sixteen make-up parenting days for L.S., stating she did not believe the child was "conveniently ill for [sixteen] times" as F.H. had alleged. The court denied F.H.'s request to have all exchanges occur in New Jersey but allowed her to send someone in her stead if she were unable to drive. The judge ordered F.H. to pay $2,687.50 towards L.S.'s counsel fees, finding the enforcement action was necessitated by her refusal to allow parenting time and she had the ability to pay 1 counsel fees. The judge signed an order the same day. On May 31, 2016, F.H. moved for reconsideration. In addition, she made new claims for temporary sole legal and physical custody and supervised parenting time pending L.S.'s completion of a psychological evaluation, anger management class, and parenting skills course. She again requested that all pick-ups and drop- 1 A second order was signed to correct a typographical error on May 10, 2016. 6 A-0829-16T3 offs be in New Jersey. She also asked the court to hold L.S. in contempt for failing to return the child on a previous date, and for counsel fees. F.H. certified that her "debilitating back condition" prevented her from driving more than forty-five minutes and the trips to Connecticut interfered with her other son's activities. She alleged L.S.'s "violent, aggressive, and irresponsible" behavior was a threat to the child as the child often returned with "bumps, bruises, cuts, scrapes, and scratches." She also asked for an increase in child support, claiming L.S. was making more money, her income had stayed the same, and she now had to travel to Connecticut. L.S. denied his income had increased, stating instead he was deprived of income while incarcerated as a result of F.H.'s unfounded allegations. He argued that she failed to show a change in circumstances, either to change custody or increase child support. He requested additional counsel fees and sought a transfer of custody to him given F.H.'s constant interference with his visitation rights. On October 11, 2016, the Family Part judge denied the motion for reconsideration, finding F.H. raised no issues the court previously failed to address and no substantial change in circumstances warranting a change of custody or an increase in child support. Instead, the judge found F.H. in violation of the 7 A-0829-16T3 previous order to pay L.S.'s counsel fees and the order requiring the use of the father's last name, and was not submitting medical bills to L.S. prior to requesting reimbursement. The judge found that F.H. "want[ed] to relitigate this over, and over, and over again, wasting not only clearly [L.S.'s] time and making him have to seek counsel and for counsel fees, but wasting the Court's time on the same issues that have been litigated ad nauseam." The judge denied F.H.'s motion for reconsideration with prejudice, telling her she could not "make another application" for the same relief. She awarded counsel fees of $3,675 to L.S., because the reconsideration motion was "a waste of time, was in fact, made in bad faith, and more importantly, . . . I'm awarding [counsel fees] under the enforcement application." The judge told F.H. if she continued to disobey court orders and interfere with L.S.'s custody, the judge would consider transferring custody to him. An order was signed the same day. On October 20, 2016, F.H.'s emergent application to stay the October 11, 2016 order was denied. The next day, F.H.'s request to file an emergent motion in the Appellate Division was also denied. This appeal followed. F.H. appeals from the May 6, 2016 order denying F.H.'s application for change in custody and enforcing L.S.'s parenting time, and from the October 11, 2016 8 A-0829-16T3 order denying reconsideration. In her appeal, she raises ten points, which essentially amount to four assertions: The Family Part judge erred by (1) denying her request for sole custody and to modify parenting time without a plenary hearing; (2) increasing L.S.'s parenting time without a showing of changed circumstances; (3) awarding counsel fees to L.S.; and (4) denying her motion for reconsideration. We will address these issues in turn. All other arguments are either moot or without merit. I. F.H. argues the Family Part judge erred in denying her applications for sole custody and to decrease L.S.'s parenting time, as she showed a prima facie case of changed circumstances sufficient to warrant a plenary hearing. She claims changed circumstances were shown cumulatively because L.S. "failed to appreciate [the child's] medical issues and dress [him] appropriately to avoid asthma attacks," he exposed the child to "an environment where he has gotten sick," the child suffered bruises while in L.S.'s care, and he was "inconsistent" with parenting time. Due to "the special jurisdiction and expertise of the family court," we defer to factual determinations made by the trial court as long as they are "supported by adequate, substantial, and credible evidence in the record." Milne v. Goldenberg, 428 N.J. 9 A-0829-16T3 Super. 184, 197 (App. Div. 2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We will not disturb the fact-findings of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice." Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 151 (App. Div. 2003) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "[D]eference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting Cesare, 154 N.J. at 412). Absent compelling circumstances, the Appellate Division may not substitute its judgment for that of the trial court, which has become familiar with the case. Schwartz v. Schwartz, 68 N.J. Super. 223, 232 (App. Div. 1961). "In custody cases, it is well settled that the court's primary consideration is the best interests of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citation omitted). A party seeking to modify custody or parenting time must demonstrate changed circumstances that affect the welfare of the child. Ibid.; Lepis v. Lepis, 83 N.J. 139, 157 (1980); Abouzahr, 361 N.J. Super. at 152. Once the moving party makes a prima facie showing of changed circumstances, only then is the moving party 10 A-0829-16T3 entitled to "a plenary hearing as to disputed material facts regarding the child's best interests, and whether those best interests are served by modification of the existing custody order." Faucett v. Vasquez, 411 N.J. Super. 108, 111 (App. Div. 2009). The judge found F.H. did not show a substantial change of circumstances sufficient to change custody, and there was no "reason to deprive the father of any more . . . parenting time." Our review of the record demonstrates the evidence supports the judge's decision. F.H. claimed the child was "bruised" when he returned from seeing his father; she reported her allegations to the Division, which found they had no merit. Similarly, although F.H. claimed L.S. put the child in situations where he got sick, these were simply general claims that L.S. failed to provide appropriate care. Her allegations were supported only by her own certifications and testimony, and given her repeated false accusations against L.S. and attempts to deprive him of parenting time, the court did not find her to be credible. We do not find the court's determination was in error. Given that F.H. did not meet the changed circumstances threshold, the judge was not obliged to hold a best-interests plenary hearing on either motion. 11 A-0829-16T3 II. Next, F.H. argues the judge erred by substantially increasing L.S.'s parenting time and ordering her to drive to Connecticut because prior to a change in parenting time, L.S. was required to show changed circumstances and the court was then obliged to hold a plenary hearing to determine if a change was in the best interests of the child. We disagree. The May 2015 consent agreement, regarding custody and parenting time, stated the parties "agreed to an incremental parenting time arrangement which will gradually increase contact" between L.S. and the child "as well as gradually incorporating overnight [p]arenting [t]ime between the child and his [f]ather in the [f]ather's house." Starting in August 2015 and continuing through October 2015, L.S. was to have one overnight a month in addition to his weekly visit, and F.H. agreed to transport the child to and from Connecticut on the overnight weekend visit. For November and December 2015 and January 2016, L.S. was to have two single overnights on alternating weekends. This schedule was "the minimum amount of parenting time"; the parents could, by mutual consent, increase or modify the agreement as needed. Beginning in February 2016, the agreement stipulated the parents would work out a parenting time schedule "to include more single overnights, alternating (two night) weekend overnights 12 A-0829-16T3 and/or mid-week parenting time" either through consent or mediation. In L.S.'s April 2016 application, he claimed F.H. refused to reduce a schedule to writing. In accordance with the consent agreement, the judge ordered L.S.'s parenting time to increase to every other weekend, Friday to Sunday. F.H. acknowledges the parenting consent agreement, yet argues L.S. did not show the existing parenting time agreement entered on May 1, 2015 was no longer in the best interest of the child. However, because the parties were bound by the consent agreement, which contemplated an increase in parenting time, L.S. was not required to show changed circumstances. He only sought court intervention to enforce the agreement when F.H. refused to formalize an increased parenting schedule, as contemplated by the agreement. III. Next, F.H. argues the Family Part abused its discretion by ordering her to pay L.S.'s counsel fees first on May 6, 2016, and again on October 11, 2016, because she did not consider certain factors under Rule 5:3-5(c). "An award of counsel fees is only disturbed upon a clear abuse of discretion," and will be disturbed only on the rarest of occasions. J.E.V. v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012) (quoting City of Englewood v. Exxon Mobil Corp., 406 N.J. Super. 110, 123 (App. Div. 2009)). Thus, 13 A-0829-16T3 we defer to the court's determinations unless they plainly lack evidentiary support, are contrary to the record, or are based on a misapplication or disregard of the law. Tannen v. Tannen, 416 N.J. Super. 248, 280-81 (App. Div. 2010). Rule 4:42-9(a)(1) states "[n]o fee for legal services shall be allowed . . . except [i]n a family action . . . pursuant to Rule 5:3-5(c)." Rule 5:3-5(c) says that in determining the amount of the fee award, the court should consider: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award. In granting L.S.'s counsel fee request, the judge considered the certification of his attorney, including her qualifications. She noted that F.H. had the ability to pay, and that L.S.'s motion was to enforce missed parenting time, and for that reason, she imposed counsel fees. The judge considered the actions brought by both parties, concluding the only part of F.H.'s motion that was for enforcement regarded L.S.'s alleged non-payment of medical 14 A-0829-16T3 bills, and found F.H. had not properly presented the bills for payment. The results obtained were not favorable to F.H. and were favorable to L.S. Moreover, L.S.'s motion to enforce his parenting time rights was necessitated by F.H.'s lack of cooperation. The judge also noted, based on documented paystubs, F.H. earned $148,000 per year, and at least $102,000 in 2015. The child support worksheet, which the court prepared in setting L.S.'s child support obligation in May 2014, shows F.H. had a yearly gross income of $111,644, while L.S. had a yearly gross income of $16,016. Where one party has substantial income and the other does not, "[t]hat disparity alone would suggest some entitlement . . . to a fee allowance." Lavene v. Lavene, 148 N.J. Super. 267, 277 (App. Div. 1977). While F.H. asserts the judge erred in not considering fees previously awarded, there were none. She also complains the judge did not consider fees previously paid. F.H. represented herself at this hearing, and although she claims she owed her former counsel money, she provides no evidence supporting this in the record. As such, any error in not considering these factors was harmless. On October 11, 2016, the judge again granted counsel fees to L.S. under the enforcement application. F.H. now argues that the judge did not consider the relevant factors under Rule 5:3-5 and 15 A-0829-16T3 Rule 4:42-9. The judge concluded under Rule 5:3-7(a), the court can impose economic sanctions when a party has violated an order regarding custody or parenting time. Additionally, she found the fees sought were reasonable, and F.H. acted in bad faith and wasted the court's time by not only seeking reconsideration, but adding new and meritless requests for relief. The judge noted the motion for reconsideration was a mere re- litigation of issues previously been fully addressed. Moreover, F.H. made no payment towards the counsel fees initially ordered in May 2016, and failed to abide by multiple orders with respect to the child's name. Considering the record as a whole, we do not find this award of fees was an abuse of discretion. IV. Lastly, F.H. asserts the judge erred in denying her motion for reconsideration. The decision on whether to deny a motion for reconsideration rests squarely in the discretion of the trial court. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997) (citation omitted). A motion for reconsideration should be granted only under the narrow circumstances "in which either (1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the 16 A-0829-16T3 significance of probative, competent evidence." Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (citations omitted). First, F.H. argues the judge did not consider the significance of her medical issues and how they would impact the parenting time arrangements with L.S. However, during the May 6, 2016 hearing, in response to F.H.'s assertion that because of documented back problems, she could not make the drive to and from Connecticut as she was ordered, the judge stated, "[y]ou can make arrangements to have your child picked up if you so choose." As such, the judge clearly considered the impact that a back condition would have on the parenting time arrangement. Next, F.H. contends the trial judge did not properly consider the changed circumstances demonstrated by L.S.'s inability to provide adequate care to the child. However, in support of her application for sole custody, F.H. only repeated her earlier claims that the child was not safe in L.S.'s care, and points to nothing the judge explicitly overlooked in making her decision. A motion seeking reconsideration of a prior order is governed by Rule 4:49- 2, which requires the movant to "state with specificity the basis on which [the motion] is made, including a statement of the matters or controlling decision which counsel believes the court has overlooked or as to which it has erred . . . ." 17 A-0829-16T3 F.H. also contends the judge did not consider changes in L.S.'s income when denying her motion for reconsideration regarding child support arrangements. The judge denied an increase to L.S.'s child support obligation, finding no changed circumstances. We cannot say this determination was in error. As a preliminary matter, school expenses, food, and clothing are included in the Child Support Guidelines, and under Rule 5:6B, child support orders are subject to an automatic cost-of-living adjustment every two years, from the last date the support order was entered or modified. See Burns v. Edwards, 367 N.J. Super. 29, 34 (App. Div. 2004). Furthermore, under the May 2014 order, medical expenses were an issue separate from child support, and even as such, F.H. provided no new information supporting an increase in L.S.'s obligation towards these expenses. F.H. also asserts it was an error for the trial court to not consider her unsupported assertions that L.S. was underreporting his income, and such assertions warranted a plenary hearing. When applying for a modification of child support, the moving party "shall append copies of the movant's current case information statement and that movant's case information statement previously executed or filed in connection with the order, judgment or agreement sought to be modified." R. 5:5-4(a). "When the record presented to the court in support of a motion is deficient on its 18 A-0829-16T3 face to satisfy such requirements, oral argument does not afford litigants an opportunity to cure such evidentiary deficiencies." Palombi v. Palombi, 414 N.J. Super. 274, 286 (App. Div. 2010). F.H. did not comply with this requirement, and thus, it was within the trial court's discretion to deny her request. See Gonzalez- Posse v. Ricciardulli, 410 N.J. Super. 340, 351 (App. Div. 2009) (no further inquiry was necessary where there was no proof that defendant was concealing his income, "nor proof that his lifestyle was so disparate compared to his reported income"). F.H.'s motion to reconsider the May 6, 2016 award of counsel fees puts forth no new arguments or evidence in which she contends the trial court failed to consider. Reconsideration "is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion . . . ." Palombi, 414 N.J. Super. at 288. "[T]he magnitude of the error cited must be a game-changer for reconsideration to be appropriate." Id. at 289. "Said another way, a litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process." Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)) (emphasis added by Palombi court). F.H. has not demonstrated the court acted in an arbitrary, 19 A-0829-16T3 capricious, or unreasonable manner in denying her motion for reconsideration, and we cannot say the judge erred. All additional arguments introduced by defendants are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 20 A-0829-16T3

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Docket No.: a1170-16
Decided: 2018-06-13
Caption: GODWIN OKEKE v. COOLIDGE PROPERTIES, LLC
Status: unpublished
Summary:
PER CURIAM Plaintiff Godwin Okeke appeals from an August 9, 2016 order denying his motion to reinstate his complaint and granting a cross- motion filed by defendants Coolidge Properties, LLC (Coolidge) and Dante Management (Dante) dismissing the complaint with prejudice. Plaintiff also appeals from an October 5, 2016 order denying his motion for reconsideration. We affirm. The facts relevant to plaintiff's personal injury action are undisputed. On February 14, 2011, plaintiff slipped and fell on snow or ice on a sidewalk adjacent to his apartment building. As a result, plaintiff suffered a bimalleolar ankle fracture requiring surgery. In February 2011, the apartment building was owned by Coolidge and managed by Dante.1 Charles Holthausen, Sr. (Charles Sr.) was the superintendent and maintenance person in charge of snow and ice removal at the apartment building in February 2011. Plaintiff filed a personal injury complaint on February 14, 2013. In August 2013, plaintiff's complaint was dismissed without prejudice for lack of prosecution. Dante was not served with the 1 Coolidge sold the apartment building prior to the filing of plaintiff's complaint. Dante sold its interest related to management of the apartment building sometime in 2011. 2 A-1170-16T4 complaint until June 2014 and Coolidge was not served with the complaint until July 2014.2 Because plaintiff's complaint was still dismissed in 2014, defendants were unable to file answers. On January 31, 2015, Charles Sr. died. Defendants contend Charles Sr. was the person with knowledge regarding snow and ice removal at the apartment building on the date of plaintiff's fall. Plaintiff took no further action to pursue his case until June 9, 2015, when he filed a motion to restore his complaint to the active trial calendar. On June 26, 2015, the motion judge heard argument on the motion to restore the complaint. Plaintiff claimed events in his personal life "prohibited him from discussing the [case] or contacting his attorney." In opposition to the motion, defendants argued that plaintiff's twenty-eight month delay in prosecuting his claims prejudiced their ability to present a defense. Defendants explained that since plaintiff's fall in 2011, the building was sold, the management company ceased to exist, the sidewalks were replaced, and they were unsure whether Charles Sr. was still alive. 2 The record does not indicate whether defendant Township of Irvington was ever served with the complaint. 3 A-1170-16T4 The judge denied plaintiff's motion to restore his complaint. However, the judge agreed to reinstate the complaint for a sixty- day period "for the limited purpose of allowing discovery by the parties on the issue of whether or not there is actual prejudice to the defendant[s]." On August 14, 2015, defendants moved to dismiss the complaint with prejudice, arguing the death of Charles Sr. and plaintiff's inexcusable delay in prosecuting his claims resulted in actual prejudice to their ability to defend the matter. On September 4, 2015, the same motion judge heard argument on defendants' motion.3 The judge denied defendants' motion based on plaintiff's contention that Charles Holthausen, Jr. (Charles Jr.), the son of Charles Sr., worked for defendants and might have knowledge relevant to plaintiff's case. The parties then deposed Charles Jr. regarding plaintiff's fall on February 14, 2011. According to his deposition testimony, Charles Jr. occasionally helped his father with duties related to the property, including snow removal and salting. However, Charles Jr. testified he was not responsible for snow and ice removal at 3 On that date, the judge issued another dismissal notice, advising plaintiff that on November 3, 2015, the matter would again be dismissed without prejudice for lack of prosecution. 4 A-1170-16T4 the property in February 2011. In addition, Charles Jr. had no recollection of any snow removal activities on February 14, 2011. Because plaintiff failed to file a motion to restore his complaint, on November 6, 2015, the trial court dismissed the complaint for lack of prosecution. Seven months later, plaintiff filed a motion to reinstate his complaint and defendants filed a cross-motion to dismiss the complaint with prejudice. The motion judge denied plaintiff's motion and granted defendants' cross-motion on August 9, 2016. The judge found Charles Jr. was not the building superintendent in February 2011, was not responsible for snow removal at the apartment building in 2011, and had no recollection of the snow storm on February 14, 2011. Based on the death of Charles Sr., the judge concluded defendants suffered actual prejudice due to plaintiff's delay in reinstating the complaint. The judge also determined plaintiff failed to demonstrate good cause in restoring the matter. In attempting to show good cause, plaintiff explained he lost his job as a result of his injuries and was homeless until August 2014. Plaintiff asserted he was unable to deal with his lawsuit due to the pain attributable to his February 2011 injury. The motion judge rejected plaintiff's explanations, stating 5 A-1170-16T4 [t]here has been absolutely no explanation, despite the hardships in the plaintiff's life that the [c]ourt will assume existed during that time period. That doesn't provide any explanation for why the plaintiff didn't reach out to his attorney, keep him apprised of where he is, give his attorney some means to communicate with him, so that if there had to be discovery, it could be completed. It has to be kept in mind here that the person who delayed was the person who brought the lawsuit. . . . [P]laintiff basically abandoned his lawsuit until such time as it was more convenient for him to get in touch with plaintiff's [c]ounsel and seek to pursue the litigation a bit further. Plaintiff moved for reconsideration of the August 9, 2016 order. The judge denied the motion on October 5, 2016, concluding plaintiff failed to present any facts, evidence, or controlling law overlooked by the court. In denying the motion for reconsideration, the judge stated "thinking that the [j]udge [was] wrong is not a grounds for a motion for reconsideration." On appeal, plaintiff argues the motion judge erred in dismissing his complaint with prejudice and denying his motion for reconsideration because he satisfied the good cause standard for reinstatement of his pleading. We review "an order denying reinstatement of a complaint dismissed for lack of prosecution . . . under an abuse of discretion standard." Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 382 (App. Div. 2011). We "decline[] to interfere with 6 A-1170-16T4 [such] matter of discretion unless it appears that an injustice has been done." St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008) (alteration in original) (quoting Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 23 (App. Div. 2007)). Rule 1:13-7(a) provides for reinstatement of a dismissed complaint upon the filing of a motion, which shall be granted on good cause shown if the motion for reinstatement is filed within ninety days of the order of dismissal.4 In applying Rule 1:13-7, "courts have been consistent in following prior case law by engrafting an 'absence of prejudice to the defendant' standard onto the 'good cause' standard." Pressler & Verniero, Current N.J. Court Rules, cmt. 1.2 on R. 1:13-7 (2018). "[A]bsent a finding of fault by the plaintiff and prejudice to the defendant," motions to reinstate a complaint dismissed for lack of prosecution should be viewed liberally. Ghandi v. Cespedes, 390 N.J. Super. 193, 197 (App. Div. 2007). In considering the prejudice to a defendant in reviewing a motion to reinstate pursuant to Rule 1:13-7, "[t]he key determinate . . . is whether 'specific or demonstrable prejudice' was inflicted upon 4 The judge applied the more liberal "good cause" standard of Rule 1:13-7(a) despite the passage of more than ninety days from the order of dismissal (November 6, 2015) until plaintiff filed a motion to restore his complaint (June 9, 2016). 7 A-1170-16T4 the defendant. . . . To that end, '[t]he principal concern in determining prejudice is impairment of the defendant's ability to present a defense on the merits.'" Stanley v. Great Gorge Country Club, 353 N.J. Super. 475, 490 (Law Div. 2002) (fourth alteration in original) (quoting State v. One 1986 Subaru, 120 N.J. 310, 315 (1990)). "[T]he prejudice alleged must be concrete and not hypothetical." Ibid.; see also Moschou v. DeRosa, 192 N.J. Super. 463, 467 (App. Div. 1984). Here, plaintiff, not his attorney, caused the inordinate delay in prosecuting this matter, resulting in concrete prejudice to defendants. The prejudice included the following: the death of defendants' key witness in 2015; the sale of the property in 2011; the replacement of the sidewalks in 2011, and the cessation of operations by the management company in or about 2011. Consequently, defendants were denied an opportunity to defend in this case. We reject plaintiff's argument that the pain associated with his 2011 injury satisfied good cause favoring reinstatement of the complaint. Rule 1:13-7 prompts litigants to take action or risk dismissal of a complaint. Plaintiff was advised twice that he needed to take action regarding his complaint or face dismissal of his claims. If plaintiff had contacted his attorney, counsel would have taken action to pursue plaintiff's claims. However, 8 A-1170-16T4 plaintiff elected not to contact his counsel for nearly two years after filing his complaint. Nor do we find merit in plaintiff's argument that the testimony of Charles Jr. supports his claims. Having reviewed the record, we agree that Charles Jr. had no responsibility to remove the snow or ice and had no specific recollection of any snow event preceding the incident. Moreover, since the property was sold in 2011, defendants no longer have access to records or documents evidencing maintenance, repairs, or snow removal in 2011. Plaintiff's inexplicable delay in prosecuting his case caused defendants to lose any opportunity to defend against his claims. We review reconsideration motions for abuse of discretion. Cumming v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Rule 4:49-2 provides that a party may file a motion for reconsideration seeking to alter or amend a judgment or order, as long as the motion "state[s] with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2. We find no abuse of discretion in the judge's denial of reconsideration. Plaintiff failed to present any facts or evidence overlooked by the court in the first instance. Affirmed. 9 A-1170-16T4

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Docket No.: a2201-16
Decided: 2018-06-13
Caption: DINA M. KAUL v. RICHARD A. KAUL
Status: unpublished
Summary:
PER CURIAM Defendant Richard A. Kaul appeals from a December 19, 2016 order denying his request to modify his support, assessing $1719 1 Although defendant requested oral argument, he did not appear to argue. in counsel fees against him, and denying his request for an order directing the New Jersey Board of Medical Examiners to reinstate his medical license. Defendant presents the following arguments on appeal: POINT I: THE COURT ERRED BY EITHER WILLFULLY OR NEGLIGENTLY FAILING TO FIND THE FACTS, AND ABUSED ITS DISCRETION BY FAILING TO REPORT THE ALLEGATIONS OF FORGED TRANSCRIPTS TO FEDERAL AUTHORITIES. POINT II: THE COURT HAS INCORRECTLY INTERPRETED THE LAW OF GENERAL JURISDICTION, AND HAS WITHOUT LEGAL FOUNDATION, TRUNCATED ITS EQUITABLE AUTHORITY. POINT III: THE COURT HAS INCORRECTLY PREMISED ON ITS FLAWED PRECEDING CONCLUSIONS [SIC], ITS GRANT OF THE PLAINTIFF'S CROSS-MOTION TO DENY THE DEFENDANT'S MOTION. POINT IV: THE COURT HAS ABUSED ITS DISCRETION BY NOT DENYING WITH PREJUDICE THE PLAINTIFF'S REQUEST THAT THE DEFENDANT'S FUTURE MOTIONS ARE SCREENED. POINT V: THE COURT ERRED BY NOT PERFORMING AN ECONOMIC ANALYSIS OF THE PARTIES, BEFORE ENTERING ORDERS OF LEGAL COST. POINT VI: THE COURT ABUSED ITS DISCRETION BY FAILING TO CONSIDER THE DEFENDANT'S REPLY PAPERS, AND ERRED BY IGNORING APPELLATE AUTHORITY. POINT VII: THE COURT ERRED BY FAILING TO ORDER AN ECONOMIC ANALYSIS OF THE PLAINTIFF AND FAILING TO FIND THAT THE PLAINTIFF HAS COHABITED SINCE 2014. POINT VIII: PARAGRAPH SPECIFIC CRITIQUE OF COURT'S LEGAL CONCLUSIONS AND FINDINGS OF FACT. 2 A-2201-16T1 After reviewing the record in light of the contentions advanced on appeal, we affirm substantially for the reasons incorporated by Judge Hany A. Mawla into his December 2016 order. We add the following. The parties entered into a Property Settlement Agreement (PSA) in August 2005, but were not divorced until October 2009. Plaintiff Dina Kaul was awarded counsel fees by an October 7, 2009 order. Plaintiff appealed the enforcement of the PSA, and defendant cross-appealed the award of counsel fees. We affirmed both orders. Kaul v. Kaul, No. A-0177-09 (App. Div. Aug. 15, 2011) (slip op. at 14). On April 2, 2012, defendant's medical license was suspended, and on February 12, 2014, his license was revoked. Plaintiff successfully filed for support enforcement three times. Defendant appeals from the denial of his second motion to modify unallocated support of $10,000 per month, although the parties agreed in the PSA that there would be no modification regardless of future "increases or decreases in their income." The parties were married in 2003. Two children were born of the marriage. Defendant was a doctor with a hugely successful minimally invasive surgery practice. He claims that his success caused professional jealousy that led other specialists in his field to bribe then-Governor of New Jersey, Chris Christie, who 3 A-2201-16T1 arranged for defendant's medical license to be revoked.2 He also claims that the record of his medical license revocation contains many forged transcripts and seeks intervention from the Family Court. Defendant alleges that after his medical license was revoked, his income decreased by 90% and many parties filed lawsuits against him. His business declared bankruptcy and he sought to reduce his support payments from $10,000 a month to $500 a month. At the time he filed his first motion seeking a reduction, he was $280,000 in arrears. He claimed at that time that his income had been reduced from many millions to $500,000 per year. He presently claims that, as of July 2014, he has no income. He asked the Family Court to reinstate his medical license, arguing that the Superior Court has jurisdiction to do so and that he needs his license to support his family. He filed a case information statement (CIS) alleging that he was fully supported by others and has no assets, income or expenses. He did not attach a tax return, financial records or his prior CIS. See R. 5:5-4(a). Judge Mawla found that "[d]efendant has provided no financial documentation necessary to demonstrate a substantial and permanent change in circumstances" and denied the motion "without 2 He adds that insurance companies have a policy of coercing medical boards or politicians into revoking a person's medical license so the companies do not have to pay the doctors. 4 A-2201-16T1 prejudice." The judge noted the deficiencies in defendant's CIS and stated that letters from his relatives and friends did not constitute objective proof that he unsuccessfully sought employment, or was fully supported by others. Plaintiff points out that the PSA contained an anti-Lepis3 clause precluding modification regardless of defendant's loss of income. See Kaul, No. A-0177-09 (slip op. at 4); Morris v. Morris, 263 N.J. Super. 237, 241 (App. Div. 1993). The PSA, however, does not entirely prevent modification. Paragraph 14 of the PSA calls for a termination of support in the event of "the [w]ife's cohabitation with another person in accordance with existing case law." Of course, cohabitation would not affect the child support component of this agreed-upon unallocated support. Defendant filed a reply certification in support of his modification motion one day before oral argument. The judge did not consider this certification, in which defendant alleged that plaintiff had been cohabiting for several years with "a male, whose income, it is believed, is derived from the operation of a privately held business." The obligor has the burden of proof to make a prima facie showing that cohabitation exists. Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998). Additionally, 3 Lepis v. Lepis, 83 N.J. 139 (1980). 5 A-2201-16T1 new issues are not the proper subject matter of a reply certification, which should only respond to opposing affidavits or certifications. R. 1:6-3(a). Judge Mawla granted plaintiff's "request [to] compel [d]efendant to pay for her legal fees and costs associated with this [m]otion," totaling $1719. He stated: "Defendant has acted in bad faith by filing the same [m]otion he filed in May 2016. Defendant is self-represented and [p]laintiff has incurred $1719 in legal fees in connection with this [m]otion." He continued: "Pursuant to the May 1, 2014 Order, [p]laintiff was awarded $5972.65 in attorney's fees, which he has not paid. Defendant was not successful in any of his requests and [p]laintiff was successful as to all of her requests." Awards of counsel fees are within the sound discretion of the trial court. Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 147 (App. Div. 2002). Judge Mawla considered the Rule 5:3-5(c) factors, finding that the current incomes are unknown, defendant has not previously paid court-ordered attorney's fees, he was unsuccessful in his requests, and this motion was repetitious of a previously filed motion. Judge Mawla soundly exercised his discretion in denying the application filed by defendant, who is highly educated, for lack of supporting documentation. Self-represented litigants are 6 A-2201-16T1 expected to follow the Court Rules. See, e.g., Clifton v. Cresthaven Cemetery Ass'n, 17 N.J. Super. 362, 364 (App. Div. 1952) (observing that compliance with a particular court rule should not be dispensed with when a non-lawyer appears pro se); see also Trocki Plastic Surgery Cent. v. Bartkowski, 344 N.J. Super. 399, 405 (App. Div. 2001) (pro se litigants are regarded as lawyers for the purposes of Rule 1:4-8). "[P]ro se litigants are not entitled to greater rights than litigants who are represented by counsel." Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 99 (App. Div. 2014). We add that our decision does not preclude defendant from filing a future motion, accompanied by appropriate documentation, seeking modification. In that event, the court, in the exercise of its equitable authority and subject to opposition by plaintiff, may allow that any relief afforded be retroactive to the original filing of the motion under review, October 21, 2016. Affirmed. 7 A-2201-16T1

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Docket No.: a2320-16
Decided: 2018-06-13
Caption: ROBERT J. TRIFFIN v. COMDATA NETWORK, INC.
Status: unpublished
Summary:
PER CURIAM Plaintiff Robert J. Triffin – the assignee of two entities that cashed three counterfeit "comcheks," in the amounts of $100, $1146.20, and $708.92 – commenced this action against defendant Comdata Network, Inc., which refused to honor these comcheks. The suit was dismissed by way of summary judgment, and Triffin appeals, arguing in a single point that the judge erred in "assum[ing] the material facts needed" to support Comdata's contention that Triffin's assignors could not be holders in due course because they failed to heed the warnings on the counterfeit comcheks. We find insufficient merit in Triffin's contentions to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E), and add only the following few comments about some aspects of Triffin's arguments. The record reveals that a comchek is, in Comdata's words, "a payable-through draft product drawn from" accounts maintained by Comdata's customers. Those customers, as Comdata asserted, could elect to utilize an authorization process, which directs the person or entity presented with a comchek as to how to ensure the instrument's validity. That process is described in the warnings on the face of the comcheks: NOTE: This draft is not valid and will not be honored without obtaining an authorization number before cashing or accepting payment. To obtain this number, call 800-741-3030. 2 A-2320-16T4 DO NOT CASH BEFORE CALLING IMPORTANT: THIS DRAFT WILL NOT BE HONORED WITHOUT GOVERNMENT ISSUED PHOTO IDENTIFICA- TION BEING RECORDED TO THE RIGHT (SEE REVERSE SIDE FOR EXAMPLES) On the back is another warning: Do not provide funds to payee before obtaining an authorization number by calling toll-free 800-741-3030. It is very important not to accept a COMCHEK with a prior authorization code unless you call COMCHEK at the number above to confirm its validity. No one disputes that the three comcheks in question were counterfeit or fraudulent. The undated $100 check was not endorsed by anyone and there is no evidence Triffin's assignor was presented with photo identification of the person who presented the comchek for payment. The other two comcheks were drawn on accounts long closed. The $1146.20 check, which bore a 2014 date, was drawn on an account closed at least ten years earlier; the $708.92 check bore a 2015 date and was drawn on an account closed for at least eight years. The authorization codes on both those checks were invalid. In seeking summary judgment, Comdata relied on the failure of Triffin's assignors to heed the comcheks' many warnings. In granting summary judgment, Judge James P. McClain correctly adhered to our holding in Triffin v. Pomerantz Staffing Servs., 3 A-2320-16T4 LLC, 370 N.J. Super. 301, 309 (App. Div. 2004), that a check- cashing entity which paid a counterfeit check could not be a holder in due course when it "fail[ed] to make an inquiry, reasonably required by the circumstances of the transaction." We also observed in Pomerantz that check-cashing businesses – such as Triffin's assignors here – are held to a higher standard when a court considers whether their actions were commercially reasonable. Id. at 309-10. In arguing against the application of this principle, Triffin relies on N.J.S.A. 12A:3-104(a); he claims comcheks are not negotiable instruments because they do not constitute, in his words, "an unconditional order for payment." We reject this contention because these comcheks express "an unconditional promise or order to pay a fixed amount of money." Ibid. To be sure, these comcheks contained a specific methodology for ensuring their validity, but the promise to pay remained unconditional. The same was true in Pomerantz. The only difference between this case and Pomerantz lies in the particular mechanics for ensuring authenticity; the check in Pomerantz advised that it incorporated "heat sensitive ink," the examination of which would "confirm authenticity." Id. at 304. Triffin's claim failed in Pomerantz because his assignor would have known the check was a counterfeit if it had made that cursory examination. Here, the assignors would 4 A-2320-16T4 have determined the fraudulent nature of the presented comcheks by making a toll free telephone call. Those are distinctions without a difference. We lastly consider Triffin's argument that Comdata did not present sufficient evidence to support its affirmative defense that his assignors were not holders in due course. In moving for summary judgment, Comdata relied on its vice-president's certification, which claimed Triffin's assignors could not have heeded the comcheks' warnings because, if they had called the toll free number, they would have learned the accounts were closed or the purported authentication numbers were false. Triffin argues that to sustain a contention that his assignors were not holders in due course, Comdata was required to certify that it reviewed its telephone records and ascertained that no such calls were made by his assignors. Again, we disagree. Brill1 does not impose a burden on summary-judgment movants to brush away every jot and tittle. To the contrary, Brill recognized that the summary-judgment procedure delineated in our Court Rules, R. 4:46-1 to -6, was "designed to provide a prompt, businesslike and inexpensive method of disposing" of cases lacking in genuine issues of material fact. Id. at 530 (quoting Judson v. 1 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). 5 A-2320-16T4 Peoples Bank & Tr. Co. of Westfield, 17 N.J. 67, 74 (1954)). It was enough in this instance for Comdata to assert that the circumstances unequivocally demonstrated the assignors' failure to heed the comcheks' warnings; Comdata was not obliged to search its telephone records to support the obvious implication of the facts presented. Comdata's certification sufficiently conveyed the necessary facts and made it incumbent on Triffin to provide sworn statements to the contrary to defeat summary judgment. Triffin provided nothing like that and, consequently, the judge properly granted summary judgment. Affirmed. 6 A-2320-16T4

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Docket No.: a2764-16
Decided: 2018-06-13
Caption: C.Y.R. v. C.M.
Status: unpublished
Summary:
PER CURIAM This matter involves a third-party custody dispute over three-year-old E.M. (Edward) between his biological father, defendant C.M. (Conrad), and the child's maternal aunt and uncle, plaintiffs C.Y.R. (Catherine) and C.S. (Charles) (collectively, plaintiffs). Following a ten-day custody trial, the court held plaintiffs failed to rebut the presumption of custody in favor of Conrad by clear and convincing evidence of exceptional circumstance based on psychological parentage. We agree and affirm. I. Background Facts Edward was born in October 2014. C.M.S. (Carol) is Edward's biological mother. Carol and Conrad were not married, but they lived together and jointly raised Edward until Carol's death. In November 2014, the family became involved with the New Jersey Division of Child Protection and Permanency (Division) when Conrad was arrested for simple assault following a domestic violence incident with Carol. The charges were later dismissed when Carol declined to pursue the matter or seek a restraining order. The Division found that abuse and neglect of Edward was "not established" against either parent, but provided them 2 A-2764-16T2 domestic violence counseling. The Division closed the file after the couple completed counseling. On April 21, 2015, Carol died of a stab wound. According to Conrad, he and Carol were arguing over her text messaging another person, a physical altercation ensued, Carol retrieved a knife, they struggled over the knife, and Carol accidentally stabbed herself in the chest. Following an investigation, the Middlesex County Prosecutor's Office did not charge Conrad in connection with Carol's death. Edward was in the apartment at the time of the altercation. The police notified the Division and asked Conrad's sister to take custody of Edward, which the Division approved. The Division initiated an investigation, but did not seek emergent removal of Edward from Conrad because they found he was safe with his father. However, on the day Carol died, plaintiffs filed an emergent order to show cause (OTSC), seeking temporary custody of Edward. Catherine certified that defendant was "suspected of murdering [her] sister[,]" she feared for Edward's life, Edward would not be cared for, and Carol designated them in her Last Will and Testament to be the child's guardians. On April 21, 2015, the court entered an ex parte OTSC granting plaintiffs temporary legal and residential custody of Edward "pending the completion of the investigation against . . . [Conrad] 3 A-2764-16T2 and pending further [o]rder of the [c]ourt[.]"2 The court set May 27, 2015 as the return date for the OTSC. On April 27, 2015, Conrad filed a pro se motion for an order granting him sole legal and physical custody of Edward, and subsequently retained an attorney to represent him. On April 29, 2015, Conrad visited the Division's office and discussed his plan for Edward's return to his custody. He reported that Carol's family was calling him a murderer and expressed his concern that his son would be alienated from him while in their care. He also reported he was diagnosed with Post Traumatic Stress Disorder resulting from witnessing Carol's death, and was actively engaged in therapeutic services. He expressed his willingness to comply with whatever the Division requested of him and agreed to undergo a psychological evaluation and sign release forms in connection with his mental health care. On May 13, 2015, Conrad underwent a psychological evaluation with Carolina Mendez, Ph.D. to assess his parenting ability, mental status, and treatment needs. Mendez recommended that he undergo a more comprehensive, in-depth evaluation of his risk of engaging 2 It is unclear from the record whether the court was referring to the Prosecutor's investigation, the Division's investigation, or both. 4 A-2764-16T2 in domestic violence in the future, as well as individual therapy that incorporated domestic violence counseling. Mendez testified at the custody hearing, but not as an expert witness. She testified consistent with her report and reiterated her concern about Conrad's history of domestic violence and criminal activity.3 She re-emphasized the need for defendant to undergo a more in-depth evaluation and recommended his parenting time be supervised time until then. In a May 27, 2015 order, the court continued plaintiffs' temporary legal and physical custody of Edward, granted Conrad supervised parenting time every Saturday for two hours, and ordered Conrad to continue individual therapeutic services the Division offered and cooperate with Mendez's recommendation that he undergo a more in-depth evaluation. Catherine's husband, J.R. (John), a law enforcement officer, supervised Conrad's parenting time. On June 12, 2015, the Division completed its investigation and found "[t]he allegations of neglect, substantial risk of physical injury/environment injurious to health and welfare . . . to [Edward] . . . [were] not established." However, the Division 3 Defendant apparently has convictions for eluding law enforcement and resisting arrest, playing of loud radio, phonograph or musical instrument, obstructing the administration of law or governmental function, and noncompliance with posted restrictions at a State park. There are no judgments of conviction in the appellate record. 5 A-2764-16T2 asked the court to order Conrad to comply with updated recommendations Mendez made after she reviewed additional records, specifically, that he complete anger management, undergo a substance abuse evaluation, and participate in a parenting skills program. On June 19, 2015, Conrad visited the Division's office and inquired about parenting skills classes. He expressed his continued willingness to comply with the Division's recommendations, as well as his concern that he was not receiving the full amount of supervised parenting time the court granted him. In a July 2, 2015 order, the court ordered Conrad to comply with Mendez's updated recommendations and continued his supervised parenting time. In a September 17, 2015 case management order, the court set discovery deadlines and continued plaintiffs' temporary legal and physical custody of Edward and Conrad's supervised parenting time. On September 30, 2015, Conrad completed a parenting skills program. On October 26, 2015, the Division advised the court that Conrad was participating in counseling through the Fatherhood Training Program and an anger management program. In a November 2, 2015 order, the court increased Conrad's supervised parenting time to four hours every Saturday and granted 6 A-2764-16T2 him additional supervised parenting time on Wednesday evenings, to be supervised by his parents, rather than John. On November 16, 2015, Conrad completed the Fatherhood Training Program and also completed an anger management program. On February 19, 2016, the Division advised the court that Conrad completed parenting skills and anger management programs, but had not engaged in domestic violence counseling. The Division also advised that Conrad declined to complete a substance abuse evaluation and home inspection on the advice of his attorney. The court subsequently directed Conrad to complete a substance abuse evaluation, participate in domestic violence counseling, and submit to a home inspection. On March 10, 2016, Conrad completed a substance evaluation. He did not test positive for any illicit substances and there was no recommendation for substance abuse treatment. On March 14, 2016, the Division advised the court that it had referred Conrad to domestic violence counseling, but the provider would not accept him due to the pending criminal investigation of Carol's death. On March 24, 2016, the Division completed an inspection of Conrad's home and found no safety issues. Thereafter, at the conclusion of the first day of the custody hearing on June 8, 2016, the court granted Conrad unsupervised overnight parenting time on alternating weekends and Wednesday. 7 A-2764-16T2 The Parties' Experts Plaintiffs' expert, Diane Travers, a licensed social worker, conducted a bonding evaluation between Edward and Catherine. The evaluation included three home visits and collateral interviews with Catherine and John, their children, Catherine's parents, and Carol's friend, T.V. A significant portion of the evaluation involved completion of the Groves Bonding Checklist, which rates preschoolers to assess their attachment to adults. Travers noted in her report there was a secure attachment and bond between Edward and Catherine, which they formed prior to Carol's death. Travers concluded there would be a negative impact on Edward, both physically and mentally, if the bond were broken through removal from Catherine's custody. She testified at the custody hearing consistent with her report and opined there was a "psychological parent bond" between Catherine and Edward. Plaintiffs presented no evidence that Charles had formed a psychological parent bond with Edward. Conrad's expert, Andrew Brown, Ph.D., a psychologist, conducted a bonding evaluation between Conrad and Edward that included Conrad's other children. Brown stated in his report that he observed Conrad engaging positively with Edward, and concluded Edward was "genuinely enjoying the company of his natural father" 8 A-2764-16T2 and "display[ed] comfort, security and confidence" with him. Brown found Edward "relat[ed] to [his father] in a natural and relaxed manner[,]" there were "no episodes of hesitance or reluctance to be in close proximity to [his father,]" and the "[a]ffection [was] reciprocated, eye contact [was] mutual and interactions [were] intimate." Brown concluded "[t]hese were all sign of a child who has formed a deep attachment." Brown also noted that Edward "demonstrate[d] that he is attached to his half siblings." Brown determined there was a secure attachment between Conrad and Edward and "a potential that any arrangement leading to the forced severance of this attachment will result in irreparable psychological harm and trauma to [Edward]." He opined "[w]ithin a reasonable degree of psychological certainty," that Edward "is attached to his natural father" and the attachment should not be severed. He recommended "that the goal of family reunification be vigorously pursued and executed as soon as possible." Brown also conducted a psychological evaluation of Conrad. He noted in his report that Personality Assessment Inventory revealed that Conrad did "not present with evidence for the presence of psychopathology or aberrant personality functioning[.]" The Culture-Free Self-Esteem Inventory, which measured Conrad's perception of self, resulted in scores in the 9 A-2764-16T2 "high" range. The Beck Depression Inventory revealed that Conrad was not clinically depressed. The Child Abuse Potential Inventory revealed that Conrad had no indications toward the potential for physical child abuse. The Parenting Stress Index did not reveal any high parenting stress or defensiveness in Conrad. Finally, Brown found that Conrad's IQ was in the average range, and he "did not display any behavior symptomatic of thought disorder or psychosis." Brown concluded that Conrad's "[p]rognosis for parenting [was] good." Brown testified at the hearing consistent with his two reports. He also testified that Conrad was friendly, loving, caring, and considerate, did "not pose as a threat to harm his . . . son" and "ha[d] the cognitive template required for parenting." Brown opined that Conrad did "not currently demonstrate any emotional or behavioral issues that would prevent him from executing parenting" and "demonstrat[ed] the capacity to mitigate separation [from plaintiffs]." Brown reiterated that Edward had a "deep emotional attachment to his father" and would suffer "problems, in terms of his development[,]" if their relationship was severed. The Division's Caseworkers Division caseworkers confirmed that: the Division never sought to remove Edward from Conrad; it had no safety concerns for 10 A-2764-16T2 the child when with his father; Conrad completed the requisite services; and the Division's recommended provider for domestic violence counseling rejected him because of the pending criminal investigation. A caseworker verified that Conrad was cooperative throughout the Division's investigation and had visited the Division's office to complain that the Division had not come to inspect his home despite his numerous calls to the Division. Another caseworker verified that Conrad called her "all the time" and visited her office several times to discuss the case with her and her supervisor. The Trial Court's Decision On March 7, 2017, the trial judge issued a comprehensive oral opinion, holding that plaintiffs failed to rebut the presumption of custody in favor of Conrad by clear and convincing evidence of exceptional circumstances based on psychological parentage. The judge conducted the two-step analysis for third-party custody disputes set forth in Watkins v. Nelson, 163 N.J. 235 (2000), which first required plaintiffs to rebut the presumption by clear and convincing evidence of parental unfitness, abandonment, gross misconduct, or existence of exceptional circumstances affecting the welfare of the child. The judge found plaintiffs did not 11 A-2764-16T2 establish unfitness, abandonment, gross misconduct, or any wrongdoing by Conrad.4 The judge acknowledged that proof of psychological parentage could constitute exceptional circumstances. However, the judge determined plaintiffs did not prove exceptional circumstances because they did not establish prong one of the psychological parentage test set forth in V.C. v. M.J.B., 163 N.J. 200, 223 (2000), which required clear and convincing proof that Conrad consented to and fostered the parental relationship between plaintiffs. The judge found plaintiffs failed to show Conrad was physically or emotionally absent, unable, or incapable of performing his parental duties. The judge also found that plaintiffs had not formed a psychological parentage bond with Edward and even if they did, Conrad did not consent to or foster it. The judge granted Conrad legal and physical custody of Edward, and ordered him to foster plaintiffs' relationship with the child, cooperate with visits with plaintiffs, and have Edward attend therapy to assist in his development. 4 Plaintiffs do not challenge these findings. 12 A-2764-16T2 II. On appeal, plaintiffs contend Catherine is entitled to custody of Edward because they presented proof that she is his psychological parent under the exceptional circumstances standard set forth in Watkins and V.C. Plaintiffs concede that Conrad did not consent to Catherine's formation and establishment of a parent- like relationship with Edward, but argue he impliedly consented and acquiesced to Catherine becoming Edward's psychological parent by his delay for over two years in completing evaluations and services the Division recommended, which caused Edward to remain in Catherine's custody. In the alternative, plaintiffs argue that Conrad's actual consent was not necessary because, by his delay, he yielded authority for Catherine to become Edward's psychological parent.5 Our review of a trial judge's factual findings, following a non-jury trial, is limited. Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015). "Generally, 'findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence.'" Ibid. (quoting Cesare v. Cesare, 154 N.J. 5 Plaintiffs cite to unpublished opinions to support their arguments. However, unpublished opinions do not constitute precedent or bind us. Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001); R. 1:36-3. 13 A-2764-16T2 394, 411-12 (1998)). In Family Part matters, this "[d]eference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Cesare, 154 N.J. at 412 (citation omitted). "Reversal is warranted only when a mistake must have been made because the trial court's factual findings are 'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Elrom, 439 N.J. Super. at 433 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Consequently, when a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, 'its task is complete and it should not disturb the result[.]'" Ibid. (quoting Beck v. Beck, 86 N.J. 480, 496 (1981)). "Deference is appropriately accorded to factfinding; however, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review." Ibid. (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)). "Finally, legal conclusions are always reviewed de novo." Id. at 433-34 (citation omitted). Applying the above standards, we discern no reason to reverse. As a threshold matter, we note plaintiffs did not cite to any statute in their complaint supporting the court's jurisdiction over this matter. Throughout the proceeding, the parties and the 14 A-2764-16T2 judge referenced N.J.S.A. 9:2-4, N.J.S.A. 9:2-5, and N.J.S.A. 9:2- 9, without specifically setting forth which one supported jurisdiction. However, N.J.S.A. 9:2-4, the best interests of the child standard, "refers only to parents and does not refer to third parties[,]" Watkins, 163 N.J. at 244, and N.J.S.A. 9:2-56 does not apply because Carol was not Edward's sole custodian at the time of her death. We conclude that jurisdiction fell under N.J.S.A. 9:2-9, which provides as follows: When the parents of any minor child or the parent or other person having the actual care and custody of any minor child are grossly immoral or unfit to be intrusted with the care and education of such child, or shall neglect to provide the child with proper protection, maintenance and education, or are of such vicious, careless or dissolute habits as to endanger the welfare of the child or make the child a public charge, or likely to become a public charge; or when the parents of any minor child are dead or cannot be found, and there is no other person, legal guardian or 6 N.J.S.A. 9:2-5 provides as follows, in pertinent part: In case of the death of the parent to whom the care and custody of the minor children shall have been awarded by the Superior Court, or in the case of the death of the parent in whose custody the children actually are, when the parents have been living separate and no award as to the custody of such children has been made, the care and custody of such minor children shall not revert to the surviving parent without an order or judgment of the Superior Court to that effect. 15 A-2764-16T2 agency exercising custody over such child; it shall be lawful for any person interested in the welfare of such child to institute an action in the Superior Court, Chancery Division, Family Part, in the county where such minor child is residing, for the purpose of having the child brought before the court, and for the further relief provided by this chapter. [(Emphasis added).] "N.J.S.A. 9:2-10 then allows a court, in an action brought by a third party pursuant to N.J.S.A. 9:2-9, to award custody of the child to that third party." Watkins, 163 N.J. at 244. When read together, N.J.S.A. 9:2-4, N.J.S.A. 9:2-9, and N.J.S.A. 9:2-10: indicate that in a custody dispute between a parent and a third party, the public policy of this State is that a presumption exists in favor of the parent. A third party can overcome that presumption by satisfying the standard required for termination of the rights of a non-consenting parent: unfitness, abandonment, gross misconduct, or "exceptional circumstances." [Watkins, 163 N.J. at 244-45 (emphasis added).] The court must conduct a two-step analysis when a third party seeks custody of a child over the child's natural parent. First, a third party can overcome the presumption in favor of the natural parent by presenting clear and convincing evidence of parental unfitness, abandonment, gross misconduct, or the existence of 16 A-2764-16T2 exceptional circumstances affecting the welfare of the child. Watkins, 163 N.J. at 253-55. Second, once the first prong is met, the court can then consider the best interests of the child test articulated in N.J.S.A. 9:2-4(c). Id. at 254. "[I]n custody determinations between a fit parent and a third party, as opposed to claims made between two fit parents, the child's best interests become a factor only after the parental termination standard has been met, rather than the determinative standard itself." Id. at 253 (emphasis added). "[T]he best interest of the child cannot validly ground an award of custody to a third party over the objection of a fit parent without an initial court finding that the standard for termination of the rights of a non-consenting parent or the 'exceptional circumstances' prong has been satisfied." Id. at 255. This case only involves exceptional circumstances. The exceptional circumstances doctrine is grounded in the court's power of parens patriae to protect minor children from serious physical or psychological harm. Id. at 246-47. This standard "always requires proof of serious physical or psychological harm or a substantial likelihood of such harm" and is to be determined on a case-by-case basis. Id. at 248. Proof that a third party has become a child's psychological parent by assuming the role of 17 A-2764-16T2 his or her legal parent who has been unable or unwilling to undertake the obligations of parenthood will suffice to establish exceptional circumstances. Id. at 254; V.C., 163 N.J. at 219. Such proof will place the third party "in parity" with the legal parent. V.C., 163 N.J. at 227-28, 230. To demonstrate the existence of a psychological parentage, the third party must prove four elements: [1] the legal parent must [have] consent[ed] to and foster[ed] the relationship between the third party and the child; [2] the third party must have lived with the child; [3] the third party must [have] perform[ed] parental functions for the child to a significant degree; and most important, [4] a parent-child bond must [have] be[en] forged. [Id. at 223.] As to element one, the legal parent must have been a "participant in the creation of the psychological parent's relationship with the child" by ced[ing] over to the third party a measure of parental authority and autonomy and grant[ing] to that third party rights and duties vis-à- vis the child that the third party's status would not otherwise warrant[, thereby creating the likelihood that the third party would develop a profound bond with the child.] [Id. at 224.] "[T]he focus is on [the legal parent's] intent during the formation and pendency of the parent-child relationship." Ibid. Absent 18 A-2764-16T2 consent, the legal parent "has the absolute ability to maintain a zone of autonomous privacy for [himself] and [the] child." Ibid. The record confirms that Conrad did not consent to plaintiffs' custody of Edward or to the formation and establishment of a parentage relationship between Catherine and the child. The record also confirms that Conrad did not impliedly consent or acquiesce to the creation of a psychological parent relationship or yield authority for Catherine to become Edward's psychological parent. Rather, the record shows that Conrad's separation from Edward was entirely involuntary, he contested plaintiffs' custody from the very outset of this litigation and took immediate steps to regain custody, and he actively sought out and cooperated with the Division in order to be reunified with his son. Any delay in completing the Division's services was not attributable to Conrad's affirmative or unjustifiable actions. Further, Conrad was never absent physically or mentally from Edward or found to be unable or incapable of performing his parental duties. He remained in his son's life throughout this protracted litigation, maintained a deep and secure bond with his son, took active steps to regain custody, and the Division found him to be a capable parent who posed no risk of harm to the child. We are satisfied the judge correctly found that plaintiffs failed to rebut the presumption of custody in favor of Conrad by clear 19 A-2764-16T2 and convincing evidence of exceptional circumstances based on psychological parentage. III. Plaintiffs argue the court erred by transferring custody to Conrad without taking his testimony and making findings of fact or conclusions of law as to his credibility, character, or ability to care for Edward under the best interests of the child standard articulated in N.J.S.A. 9:2-4(c). Plaintiffs also argue the court failed to apply an adverse inference against Conrad after he asserted his Fifth Amendment right against self-incrimination. These arguments lack merit. Watkins made clear that, if the third party seeking custody over a natural parent fails to satisfy the first prong of the Watkins test, the inquiry ends and the court need not consider the best interests of the child second prong. 163 N.J. at 253. Because the judge properly found plaintiffs failed to satisfy the first prong of the Watkins test, he was not required to consider the best interests of the child articulated in N.J.S.A. 9:2-4(c). Accordingly, there was no need for Conrad's testimony to determine Edward's best interests. Nevertheless, for the sake of completeness, we address plaintiffs' argument that the court must always base its custody decision on all factors relevant to the child's best interests. 20 A-2764-16T2 Plaintiffs cite to In re Baby M, 109 N.J. 396, 456 (1988) to support this argument. There, a biological father entered into a surrogacy contract with a surrogate mother, who refused to relinquish custody. Id. at 412. The court invalidated the surrogacy contract as being against public policy, but nonetheless found that the biological father was entitled to custody based on the best interests of the child after considering various factors, including each parent's stability, finances, and employment, among other factors. Id. at 457-60. This case is distinguishable because Conrad was entitled to a presumption of custody in his favor and the judge did not need to consider the best interests of the child because plaintiffs failed to rebut that presumption. Watkins, 163 N.J. at 253. Plaintiffs cite to D.A. v. R.C., 438 N.J. Super. 431, 454 (App. Div. 2014), to argue that, despite the testimony of mental health practitioners, it is the court's ultimate responsibility to determine what custody arrangement is in the best interests of the child. In D.A., where a parent sought to change the child's custody arrangement, the trial court failed to consider the relevant statutory framework. Id. at 433. We remanded the matter with instructions to do so. Id. at 461. In contrast here, the judge made repeated reference to the requisite authority and properly applied it. Thus, D.A. does not apply. 21 A-2764-16T2 Plaintiffs also cite to Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994), a child custody case which required trial courts to set forth the statutory criteria for any custody analysis. The judge here amply satisfied Terry through his repeated reference to the Watkins standard. Lastly, plaintiffs allege the judge abdicated his parens patriae role when he rendered a decision without hearing Conrad's testimony, contending that such failure "created a substantial potential for irreparable physical and psychological harm." However, the record does not support plaintiffs' bare allegations, and it is clear the judge was not required to hear Conrad's testimony because plaintiffs failed to overcome their burden under the first prong of the Watkins test. Moreover, there was ample evidence that a return of custody to Conrad was in Edward's best interests, including expert testimony. Accordingly, the judge did not err in rendering a custody decision without having heard Conrad's testimony. In addition, the judge did not err in failing to draw an adverse inference from Conrad's refusal to testify after asserting his Fifth Amendment right against self-incrimination. Courts may draw an adverse inference where a party refuses to testify in a civil matter. See State, Dep't of Law & Public Safety, Div. of Gaming Enf't v. Merlino, 216 N.J. Super. 579, 587 (App. Div. 1987). 22 A-2764-16T2 The inference may be "drawn only if there is other evidence supporting an adverse finding; it must not alone constitute the evidence of guilt." Ibid. (citation omitted). An adverse inference is a discretionary evidential ruling by the trial court. See Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 474 (App. Div. 2012). While the adverse inference is discretionary, trial courts have alternative remedies, such as barring that party from offering any testimony, including testimony which inures to their benefit. Attor v. Attor, 384 N.J. Super. 154, 170 (App. Div. 2006). Such alternatives are consistent with the ruling in Mahne v. Mahne, 66 N.J. 53, 61 (1974), a divorce case in which the husband invoked the Fifth Amendment as to allegations of adultery and the Supreme Court allowed trial courts "broad choices of sanctions when dealing with good faith exercises of the privilege[.]" Further, in Attor, a matrimonial matter cited by plaintiffs, the wife invoked the Fifth Amendment as to separate immigration proceedings, fearing that she could be implicated for providing false testimony to immigration officials. Attor, 384 N.J. Super. at 161. Although the court found her invocation was improper because she was not really at risk of criminal charges, we determined that, had her invocation been proper, the trial court "should then either have drawn an adverse inference against defendant or struck her 23 A-2764-16T2 testimony[.]" Id. at 170. Here, the judge followed Attor and Mahne by barring Conrad's testimony on his behalf. Next, plaintiffs cite In re Guardianship of D.J.M., 325 N.J. Super. 150, 155-56 (Ch. Div. 1999), to illustrate an example wherein a biological mother was compelled to testify despite invoking the Fifth Amendment as to charges that she sexually assaulted the minor child. However, trial court opinions do not constitute precedent and are not binding on us. S & R Assocs. v. Lynn Realty Corp., 338 N.J. Super. 350, 355 (App. Div. 2001). In any event, the case does not apply. There, the biological mother requested a stay of the Division's guardianship action pending resolution of criminal charges, citing the Fifth Amendment. Id. at 152-53. The court denied a stay, explaining that the delay necessitated by a stay was contrary to the child's best interests and need for permanency. Id. at 161-62. The court also explained that the biological mother "may testify and invoke the Fifth Amendment in response to particular inquiries." Ibid. Because the judge here was not required to reach the best interests of the child test articulated in N.J.S.A. 9:2-4, Conrad's testimony, including particular inquiries outside the criminal investigation and Carol's death, was not necessary and there was no need to compel his testimony or draw an adverse inference. 24 A-2764-16T2 Plaintiffs also cite New Jersey Division of Youth & Family Services v. S.S., 275 N.J. Super. 173 (App. Div. 1994) to argue in favor of an adverse inference. However, that case concerned a parent who refused to testify after the Division had successfully shifted the burden for her to prove non-culpability, and her "oral testimony was simply one means of several available to her to demonstrate her non-culpability." Id. at 181. Here, Conrad had no burden of proof and no reason to testify. Thus, there was no need for an adverse inference. We are satisfied the judge committed no error by transferring custody to Conrad without taking his testimony or in failing to apply an adverse inference after invocation of the Fifth Amendment. Affirmed. 25 A-2764-16T2

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Docket No.: a3789-16
Decided: 2018-06-13
Caption: YOLANDA CRUZ v. STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: unpublished
Summary:
PER CURIAM Plaintiff, Yolanda Cruz, appeals from a March 15, 2017 order of the Law Division confirming an arbitrator's award denying her grievance and upholding her termination from the Department of Corrections (DOC). In light of our highly deferential standard of review, we concur with the trial court that the arbitrator's award was rational and based upon the evidence, and we affirm. Plaintiff had been employed as a Secretarial Assistant 1 with the DOC. She worked at the New Jersey State Prison (NJSP) in Trenton and was a member of the Communications Workers of America AFL-CIO labor union. On December 9, 2014, plaintiff was served with a Preliminary Notice of Disciplinary Action seeking her suspension and discharge from employment for conduct unbecoming an employee, improper or unauthorized contact with an inmate, undue familiarity with inmates, parolees, their family or friends, and other sufficient cause. Specifically, the Notice provided as follows: On August 29, 2014 you brought food from outside of NJSP and provided this food to inmate M.W., apparently to celebrate his birthday. M.W. is the assigned inmate porter for your work area. Additionally, on September 28, 2014, you asked a subordinate co-worker to provide peanut butter to the same inmate. Both of these acts constitute prohibited conduct in violation of the Department's policy on Staff/Inmate Overfamiliarity. Thereafter, you attempted to influence a subordinate's account of what happened on 8/29/2014 by telling her "it's going to be my word against her" and "I'm not telling you what to do, but if I was you, I would say I was just sitting there and did not hear anything." 2 A-3789-16T1 On February 4, 2015, a departmental hearing was conducted upholding the disciplinary charges and recommending removal. On April 19, 2015, plaintiff was served with a Final Notice of Disciplinary Action terminating her from employment effective December 24, 2014. The removal was appealed by plaintiff and an arbitration hearing was conducted on intermittent dates over a six-month period. The arbitrator issued a twenty-nine page written decision on October 31, 2016 denying the appeal. The arbitrator found that plaintiff "was untruthful on a material issue in this case" with respect to her testimony that she did not intend to get lunch for inmate M.W. In reaching his decision, the arbitrator also found that M.W. credibly testified that "[plaintiff] came back, she went and got me a sandwich, got me a cheese steak." The arbitrator rejected plaintiff's claim that M.W. was disingenuous because he found plaintiff had a "propensity for untruthfulness," based upon the "overwhelming evidence." In considering the gravity of the removal, the arbitrator focused on "whether [plaintiff] knowingly violated the undue familiarity policy and was untruthful about what happened. I found she did in both instances." He further concluded that "the DOC strictly applies the undue familiarity policy" warranting termination. 3 A-3789-16T1 Plaintiff filed a complaint in the Law Division seeking to set aside the arbitrator's decision. After conducting oral argument on March 15, 2017, Judge William Anklowitz issued an oral decision confirming the award predicated upon his finding that there was no evidence that the arbitrator procured the award by undue means, or that he exceeded his authority, or issued an award that was, in essence, not reasonably debatable. We engage "in an extremely deferential review when a party to a collective bargaining agreement has sought to vacate an arbitrator's award." Policeman's Benevolent Ass'n, Local No. 11 v. City of Trenton, 205 N.J. 422, 428 (2011). "Generally, when a court reviews an arbitration award, it does so mindful of the fact that the arbitrator's interpretation of the contract controls." Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 201 (2013). "That high level of deference springs from the strong public policy favoring 'the use of arbitration to resolve labor-management disputes.'" Policemen's Benevolent Ass'n, 205 N.J. at 429 (quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 275-76 (2010)). Our role "in reviewing arbitration awards is extremely limited and an arbitrator's award is not to be set aside lightly." State v. Int'l Fed'n of Prof'l & Tech. Eng'rs, Local 195, 169 N.J. 505, 513 4 A-3789-16T1 (2001) (citing Kearny PBA Local #21 v. Town of Kearny, 81 N.J. 208, 221 (1979)). Thus, judicial "review of an arbitrator's interpretation is confined to determining whether the interpretation of the contractual language is 'reasonably debatable.'" N.J. Transit Bus Operations, Inc. v. Amalgamated Transit Union, 187 N.J. 546, 553- 54 (2006) (citations omitted). "Under the 'reasonably debatable' standard, a court reviewing [a public-sector] arbitration award 'may not substitute its own judgment for that of the arbitrator, regardless of the court's view of the correctness of the arbitrator's position.'" Borough of E. Rutherford, 213 N.J. at 201-02 (alteration in original) (citations omitted). Reasonably debatable means fairly arguable in "the minds of ordinary laymen." Standard Oil Dev. Co. Emps. Union v. Esso Research & Eng'g Co., 38 N.J. Super. 106, 119 (App. Div. 1955). Consistent with these several principles of deference, the New Jersey Arbitration Act provides only four statutory grounds for vacating an arbitration award: a. Where the award was procured by corruption, fraud or undue means; b. Where there was either evident partiality or corruption in the arbitrators, or any thereof; c. Where the arbitrators were guilty of misconduct in refusing to postpone the 5 A-3789-16T1 hearing, upon sufficient cause being shown therefor, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party; d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made. [N.J.S.A. 2A:24-8.] The United States Supreme Court has similarly articulated a public policy exception in holding that courts may not enforce collective bargaining agreements that are contrary to "well defined and dominant" public policy. W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, 461 U.S. 757, 766 (1983). New Jersey's public policy exception requires heightened judicial scrutiny for "certain arbitration awards that sufficiently implicate public policy concerns." Weiss v. Carpenter, 143 N.J. 420, 429 (1996). "A court may vacate such an award provided that the 'resolution of the public-policy question' plainly violates a clear mandate of public policy." N.J. Tpk. Auth. v. Local 196, I.F.P.T.E., 190 N.J. 283, 294 (2007) (citation omitted). Usage of this public-policy exception should be limited to "rare circumstances." Tretina v. Fitzpatrick & Assocs., 135 N.J. 349, 364 (1994). 6 A-3789-16T1 Judge Anklowitz properly recognized his narrow analytical focus and determined that "the arbitrator is [a] in a far superior position" in terms of credibility determinations. The judge also found no evidence of any of the improprieties specified in N.J.S.A. 2A:24-8(a) through (d). As Judge Anklowitz soundly concluded, the determination of the arbitrator was unassailable, in terms of findings that were "rational, intelligent reasons why [plaintiff] was not found to be credible". The court reasoned that the arbitrator appropriately dealt with evidentiary issues resulting in a fair adjudication. We have considered plaintiff's other arguments and found them to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 7 A-3789-16T1

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Docket No.: a3863-15
Decided: 2018-06-13
Caption: KENDRA D. BROWN v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Status: unpublished
Summary:
PER CURIAM Claimant Kendra D. Brown appeals from the March 24, 2016 decision of the Board of Review (Board) disqualifying her from receiving unemployment benefits under N.J.S.A. 43:21-5(a) because she left her job voluntarily and without good cause attributable to work. We affirm. Claimant was employed by AlliedBarton Security Services (AlliedBarton) as a security officer from September 2012 through September 2015, when she left her employment. AlliedBarton contracts to provide security for companies nationwide, including in New Jersey. Claimant was specifically hired to work at Fidessa, a site in Somerset, New Jersey; she worked an overnight shift from 6:00 p.m. to 12:00 a.m. In June 2015, claimant requested a transfer to a different job site at Horizon, in Ewing, New Jersey, where she believed she could receive full-time employment at a higher pay rate. The handbook detailing the policies and procedures followed by AlliedBarton, which was given to claimant when she was hired, provided that the company would make all efforts to accommodate transfer requests, but they were not guaranteed. On July 1, 2015, claimant met with AlliedBarton's Regional Director of Human Resources, Jeanette Whitman-Lee, who told claimant because she was hired for a particular position at a particular site, her current position at Fidessa would first have 2 A-3863-15T4 to be filled. After that position was filled, she would be placed in the "reassignment pool" and would be considered for any open positions. In the meantime, she was not prohibited from applying to and interviewing with the recruiters at any job sites where she wished to be transferred. Later that week, claimant met with the field operations manager in charge of Fidessa, Salvatore Cifone. He informed claimant he was not approving any transfers until he filled all currently open positions because that would inconvenience Fidessa. Claimant became upset, informed him that she was recording their conversation, and asserted that he was blocking her transfer because of a personal issue with her. Cifone assured her that his reasons were solely business related. That same month, he put in a job requisition to begin the process of filling claimant's position at Fidessa so that she might transfer. Thereafter, claimant spoke on the phone to the field operations manager for Horizon. However, she did not formally apply or request an interview for this job site. At the end of July 2015, claimant filed civil rights complaints against AlliedBarton with the Equal Employment Opportunity Commission. She alleged discrimination due to an underlying medical condition and retaliation, asserting other employees had been allowed to transfer to new job sites. 3 A-3863-15T4 On August 20, 2015, Cifone informally reprimanded claimant for trading shifts with another security officer without notifying him as required by AlliedBarton policies and procedures. Again, claimant became upset, arguing Cifone had a personal issue with her. On or around August 24, 2015, AlliedBarton hired a new security guard to fill claimant's position. However, when the new guard arrived at work, claimant initially refused to train her, complained she had not been notified in advance, and did not believe the new guard had the authorization to be on Fidessa property. Cifone claimed he had tried to notify claimant in advance, but she did not answer the phone and did not have voicemail. It was only after an argument with Cifone that claimant agreed to train the new guard. On August 26, 2015, claimant sent an email to Cifone requesting to see her employee file, which he forwarded to human resources. Human resources agreed to accommodate this request, but on August 28, claimant withdrew her request to see the file. That same week, Cifone conducted a site inspection and noticed claimant was not in the correct uniform required by Fidessa. Her uniform shirt was too large, requiring her to wear layers under it, and she was wearing the wrong pants, shoes, and earrings. 4 A-3863-15T4 On August 31, 2015, Cifone emailed claimant telling her she was removed from Fidessa and instructed her not to report for her shift. He also informed her she should contact him so they could sit down and "discuss the events that transpired last week," but she never reached out. On September 3, 2015, Whitman-Lee sent claimant a letter via email and regular mail, informing her she needed to speak with her about her performance issues before claimant would be able to return to work. Whitman-Lee asked that this meeting take place before September 11, 2015. From that point on, claimant refused to schedule a meeting with AlliedBarton, despite repeated attempts to contact her. Claimant asserted it would have been a conflict because of the civil rights complaint, and she wanted to have a third party present at any meeting. AlliedBarton repeatedly told claimant third parties were not allowed in employer-employee meetings, unless they were a designated union representative. Claimant filed for unemployment benefits, effective as of August 30, 2015. On October 14, 2015, the Deputy of the Division of Unemployment and Disability Insurance (Deputy) concluded that she was disqualified from benefits because her actions were "evidence of [her] intention to sever the employer-employee 5 A-3863-15T4 relationship." Therefore, he determined claimant had left her job voluntarily and without good cause. Claimant appealed the decision of the Deputy to the Appeal Tribunal (Tribunal), and a hearing was held on November 18, 2015. After hearing testimony from claimant, Whitman-Lee, and Cifone, the Tribunal found the AlliedBarton representatives provided credible and compelling testimony and the evidence at the hearing established the actions of the company were in accordance with its established policies and procedures. Further, the evidence supported AlliedBarton's position that the "performance issues" the employer wanted to discuss were justifiably tied to violations of policy claimant did in fact commit and not the result of a personal vendetta. Thus, claimant was disqualified because she voluntarily left work, was not subjected to hostile working conditions, and did not make reasonable attempts to remain employed. Accordingly, the Tribunal affirmed the Deputy's decision. Claimant appealed the Tribunal's decision to the Board of Review (Board). On March 24, 2016, the Board affirmed1 the 1 However, the Board modified the decision to provide that the disqualification ended as of January 2, 2016, because claimant had gained employment at which she had worked eight weeks and earned "at least ten times the individual's weekly benefit rate." N.J.S.A. 43:21-5(a). 6 A-3863-15T4 decision of the Tribunal, reasoning claimant had received a full and impartial hearing and there were no grounds for further review. This appeal followed. On appeal, claimant argues her decision not to meet with human resources without a third party present, as well as her civil rights complaint and various other personal commitments, constitute good cause attributable to work preventing her disqualification. We disagree. We exercise "a limited role" in the review of administrative agency decisions. In re Stallworth, 208 N.J. 182, 194 (2011) (citation omitted). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or not supported by substantial credible evidence in the record as a whole.'" Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Lastly, a "strong presumption of reasonableness attaches to the actions of the administrative agencies." In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)). A reviewing court is limited to determining: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based 7 A-3863-15T4 its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Mazza v. Bd. of Trustees, 143 N.J. 22, 25 (1995) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).] Moreover, we do not substitute our own judgment for the agency's, even though we might have reached a different result. In re Stallworth, 208 N.J. at 194 (quoting In re Carter, 191 N.J. 474, 483 (2007)). Under N.J.S.A. 43:21-5(a), an individual is disqualified for benefits "[f]or the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed . . . ." "Claimants bear the burden of proof to establish their right to unemployment benefits." Brady v. Bd. of Review, 152 N.J. 197, 218 (1997) (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 51 (App. Div. 1964) and DiMicele v. General Motors Corp., 51 N.J. Super. 167, 171 (App. Div. 1958), aff'd, 29 N.J. 427 (1959)). "Furthermore, when an employee leaves work voluntarily, [she] bears the burden to prove [she] did so with good cause attributable to work." Ibid. (citations omitted). Here, claimant left her job voluntarily. AlliedBarton did not formally discharge her from employment. She had initiated a 8 A-3863-15T4 job transfer request, and at that time, it was explained to her that the process involved her position being filled, being placed into the reassignment pool, and then applying for the desired position. Moreover, although she was instructed not to return to Fidessa on August 31, 2015, she was still considered an employee under the AlliedBarton policies and procedures. The AlliedBarton employee handbook provides, "[w]hen an employee's assignment or post ends, he or she is still employed by AlliedBarton[.]" Furthermore, an employee's repeated refusal of future offers of work assignments "will constitute [a] voluntary resignation." Also, "[t]hirty consecutive days of inactive work status and/or lack of [a] response regarding new assignments will be considered [a] voluntary resignation." As such, claimant must show her voluntary resignation was due to good cause attributable to work. Although good cause is not statutorily defined, "our courts have construed [the phrase] to mean 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Ardan v. Bd. of Review, 444 N.J. Super. 576, 585 (2016) (quoting Domenico v. Board of Review, 192 N.J. Super. 284, 287 (App. Div. 1983)). "Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute 'good cause' 9 A-3863-15T4 for leaving work voluntarily." Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 587 (App. Div. 1974) (citations omitted). "In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence." Domenico, 192 N.J. Super. at 288 (citation omitted). Furthermore, the decision to leave employment "must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Brady, 152 N.J. at 214 (citation omitted). "[S]exual harassment, racially prejudicial and gender biased comments, and threats of physical violence directed to an employee are abnormal working conditions and constitute good cause for that employee to voluntarily leave her employment." Doering v. Bd. of Review, 203 N.J. Super. 241, 246 (App. Div. 1985) (citations omitted); see Associated Util. Servs., 131 N.J. Super. at 587. However, claims of this nature must be supported by sufficient, credible evidence. Gerber v. Bd. of Review, 313 N.J. Super. 37, 39-40 (App. Div. 1998). Claimant submitted no evidence beyond hearsay statements, allegedly made by a third party, to support her assertions that AlliedBarton discriminated against her because of her medical condition or retaliated against her for filing a civil rights complaint. The Tribunal found Whitman-Lee and Cifone, the witnesses for AlliedBarton, to be credible. Further, the Tribunal found the 10 A-3863-15T4 evidence supported that AlliedBarton's actions were in accordance with its policies and procedures, and the actions taken were in response to genuine performance issues related to violations of policy by claimant. We find no basis to disturb the findings of the Tribunal, as relied upon by the Board. Accordingly, the Board correctly determined that claimant was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21- 5(a). The Tribunal's determination, adopted by the Board, that claimant left work voluntarily without good cause attributable to the work is supported by substantial credible evidence in the record as a whole and is not arbitrary, capricious, or unreasonable. Affirmed. 11 A-3863-15T4

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Docket No.: a4570-16
Decided: 2018-06-13
Caption: IN THE MATTER OF THE ESTATE OF JOHN F. MCGRAIL, JR., Deceased
Status: unpublished
Summary:
PER CURIAM Petitioner William J. McGrail, Jr.,1 appeals from an April 21, 2017 order finding he gifted a classic automobile to his nephew John F. McGrail, Jr. We affirm. 1 Because the parties have the same last name, we refer to the parties by their first names. We intend no disrespect by the informality. On August 17, 2016, William filed a claim against John Jr.'s estate related to the vehicle.2 William claimed to be the owner of the vehicle. John Jr.'s estate contended the vehicle was gifted to John Jr., and therefore was an asset of the estate. On October 28, 2016, William filed an order to show cause and verified complaint seeking to restrain John Jr.'s estate from disposing of the vehicle. The probate judge conducted a one-day plenary hearing on April 18, 2017, to determine whether William gifted the automobile to John Jr. The judge heard testimony from John Sr., the father of John Jr. and brother of William. John Jr.'s wife, Marisabel,3 also testified. The following facts were adduced during the plenary hearing. William purchased a new Austin Healy vehicle in 1966. He had ownership and possession of the vehicle until 2009. In 2009, William entered a nursing home in Maryland. William purportedly asked John Jr. to store the vehicle at his home in New Jersey while William was in the nursing home. William maintained that Medicaid regulations permitted him to maintain ownership of the vehicle while he resided in the nursing home. 2 John Jr. died intestate on August 3, 2016. 3 Marisabel is the administrator of John Jr.'s estate. 2 A-4570-16T1 According to Marisabel's testimony, John Jr. drove to Maryland with her and her father, to retrieve William's vehicle in 2010. From then until his death, John Jr. repaired, maintained, stored, and insured the vehicle in New Jersey. After hearing the testimony and assessing the credibility of the witnesses, the judge issued a written opinion, dated April 25, 2017, finding the vehicle was a gift from William to John Jr. The judge determined the testimony of John Sr. was not credible. The judge relied on the testimony of Marisabel, which the court found to be credible. The judge concluded the vehicle was a gift because all three elements establishing donative intent were satisfied. First, the judge found unequivocal notice of donative intent on the part of William. One of the exhibits marked as evidence during the plenary hearing was a 2013 certificate of title issued to John Jr. for a 1966 Austin Healy. In addition, William left the car in John Jr.'s possession since 2010 without seeking its return or contributing to the upkeep, storage, or insurance for the vehicle. Second, the judge determined the vehicle was delivered to John Jr. Because the vehicle was inoperable as of 2010, John Jr. physically transported the vehicle from Maryland to New Jersey on a flatbed truck. No one requested the return of the vehicle until after John Jr.'s death. 3 A-4570-16T1 Third, the judge concluded there was absolute and irrevocable relinquishment of ownership of the vehicle by William because the car was in John Jr.'s possession since 2010. William never drove the car after 2010, and never contributed money for upkeep, repair, or insurance on the car.4 Only after John Jr.'s death did John Sr. offer to pay the reasonable value of the storage for the vehicle and demand Marisabel return the car. Based on the facts presented at the plenary hearing, the judge held the vehicle was a gift and therefore an asset of John Jr.'s estate. A trial court's findings of fact are binding on appeal if supported by "adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. In'vrs Ins. Co. of Am., 65 N.J. 474, 484 (1974). Such findings made by a judge in a bench trial "should not be disturbed unless . . . they are so wholly insupportable as to result in a denial of justice." Id. at 483-84 (alteration in original) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd. o.b., 33 N.J. 78 (1960)). Factual findings that "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case" 4 According to Marisabel's testimony, John Jr. paid for removal of rust from the car, repaired the seats, and replaced the carpet. 4 A-4570-16T1 enjoy deference on appeal. State v. Johnson, 42 N.J. 146, 161 (1964). We are mindful of our limited scope of review. Post-trial fact findings "are entitled to great weight [on appeal] since the trial court had the opportunity of seeing and hearing the witnesses and forming an opinion as to the credibility of their testimony." In re Will of Liebl, 260 N.J. Super. 519, 523 (App. Div. 1992) (quoting Gellert v. Livingston, 5 N.J. 65, 78 (1950)). Unless the trial judge's findings are "manifestly unsupported or inconsistent with the competent, reasonably credible evidence," the factual conclusions should not be disturbed. Id. at 524 (citing Leimgruber v. Claridge Assocs., 73 N.J. 450, 456 (1977)). The elements required to prove a gift are: "(1) an unequivocal donative intent on the part of the donor; (2) an actual or symbolic[] delivery of the subject matter of the gift; and (3) an absolute and irrevocable relinquishment by the donor of ownership and dominion over the subject matter of the gift." In re Dodge, 50 N.J. 192, 216 (1967). "Proof of each of these elements . . . must be 'clear, cogent, and persuasive.'" Lebitz-Freeman v. Lebitz, 353 N.J. Super. 432, 437 (App. Div. 2002) (quoting Czoch v. Freeman, 317 N.J. Super. 273, 284 (App. Div. 1999)). Having reviewed the record, we conclude the judge's findings are supported by substantial credible evidence. All three elements 5 A-4570-16T1 of a gift were established such that William gifted the 1966 Austin Healy to John Jr. and the vehicle is an asset of John Jr.'s estate. Affirmed. 6 A-4570-16T1

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Docket No.: a0142-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. WALTER BROWN
Status: unpublished
Summary:
PER CURIAM Defendant, Walter Brown, appeals from the April 21, 2016 Criminal Part order that denied, without an evidentiary hearing, his petition for post-conviction relief (PCR). In his petition, he challenged his sentences on three first-degree robbery convictions. He raises two arguments on appeal: POINT ONE MR. BROWN IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO ARGUE ADEQUATELY FOR MITIGATING FACTORS AT SENTENCING. POINT TWO THE PCR COURT ERRONEOUSLY RULED THAT MR. BROWN'S PETITION WAS TIME BARRED BECAUSE ANY DELAY IN FILING THE PETITION WAS DUE TO EXCUSABLE NEGLECT AND THERE IS A REASONABLE PROBABILITY THAT IF THE DEFENDANT'S FACTUAL ASSERTIONS WERE FOUND TO BE TRUE, ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE. Having considered defendant's arguments in light of the record and controlling law, we affirm. This case involves three Mercer County indictments: Nos. 92- 05-0556, 92-07-0769, and 93-11-1285. Each indictment charged defendant with first-degree robbery and other offenses. Each indictment was tried to a jury and each jury convicted defendant of first-degree robbery and other offenses. In each instance, the sentencing judge merged the remaining offenses into the first- degree robbery count and sentenced defendant on that crime. On Indictment No. 92-05-0556, the court sentenced defendant on February 25, 1994, to an extended custodial term of fifty years 2 A-0142-16T4 with twenty-five years of parole ineligibility. The court ordered defendant to serve the sentence concurrent to a sentence he was serving in Pennsylvania, but consecutive to any sentence imposed for any New Jersey parole violation. The Appellate Division affirmed defendant's conviction and sentence on Indictment No. 92-05-0556. State v. Brown, No. A- 4516-93 (App. Div. May 15, 1995). In that appeal, defendant argued: "THE COURT'S SENTENCING ANALYSIS FAILED TO TAKE INTO ACCOUNT A SIGNIFICANT MITIGATING FACTOR." Id. (slip op. at 2). In rejecting the argument, the court explained: Defendant next maintains that the matter should be remanded for resentencing because the trial judge failed to consider defendant's cooperation with authorities as a mitigating factor. The record creates substantial doubt as to defendant's motivation in giving his statements. However, be that as it may, the application of a mitigating factor in a sentencing decision is a matter of discretion. Cannel, New Jersey Criminal Code Annotated, comment 5 on N.J.S.A. 2C:44-1. We find no reason to conclude that the trial judge abused his discretion in failing to consider the factor. This was defendant's second Graves Act offense. The presumptive term for an extended Graves Act sentence is 50 years. N.J.S.A. 2C:44-1(f)(1). The application of that one mitigating factor would not have been enough to conclude that the mitigating factor substantially outweighed the aggravating factors in this instance. [Id. (slip op. at 4).] 3 A-0142-16T4 On Indictment No. 92-07-0769, the court sentenced defendant on April 8, 1994, on the first-degree robbery count, to life imprisonment with a parole ineligibility period of twenty-five years. The court ordered defendant to serve the sentence concurrent to a sentence he was serving in Pennsylvania and concurrent to the sentence imposed on Indictment No. 92-05-0556 but consecutive to any sentence imposed for any New Jersey parole violation. The Appellate Division affirmed defendant's conviction and sentence on Indictment No. 92-07-0769. State v. Brown, No. A- 5365-93 (App. Div. Dec. 26, 1995). In his appeal, defendant argued, "THE SENTENCE IMPOSED WAS EXCESSIVE AS THE TRIAL COURT FAILED TO APPLY THE SENTENCING GUIDELINES." Id. (slip op. at 3). In rejecting the argument, the court noted defendant had not disputed he was eligible for an extended term, but rather complained the lengthy term was unjustified. Id. (slip op. at 6). The court determined "the trial judge applied the appropriate legislative guidelines, weighed the appropriate evidence in determining aggravating and mitigating factors, and imposed a sentence that does not shock the judicial conscience in light of defendant's extensive prior criminal history." Ibid. On Indictment No. 93-11-1285, on the first-degree robbery count, the court sentenced defendant on May 27, 1994, to life 4 A-0142-16T4 imprisonment with a minimum parole ineligibility period of twenty- five years. The court imposed the sentence concurrent to a sentence defendant was serving in Pennsylvania at the time and concurrent to the two other Mercer County indictments but consecutive to any sentence imposed for any New Jersey parole violation. The Appellate Division affirmed defendant's conviction and sentence on Indictment No. 93-11-1285. State v. Brown, A-0117-94 (App. Div. Mar. 11, 1996). Defendant argued, among other things, "THE EXTENDED TERM OF LIFE IMPRISONMENT WITH A TWENTY-FIVE YEAR TERM OF PAROLE INELIGIBILITY IN THIS CASE IS A MANIFESTLY EXCESSIVE SENTENCE." In rejecting defendant's argument, the court characterized the sentence as "unexceptional." Id. (slip op. at 3). The court explained defendant was subject to a mandatory Graves Act sentence and a discretionary persistent offender extended term. Ibid. Based on its review of the record, the court found the trial judge followed the appropriate sentencing guidelines. Ibid. The court also determined substantial evidence in the record supported the trial court's findings concerning aggravating and mitigating factors. Ibid. Accordingly, the court concluded the sentencing judge did not abuse his discretion in arriving at the prison term imposed. Id. (slip op. at 3-4). 5 A-0142-16T4 Defendant filed his PCR petition on December 1, 2014, more than twenty years after entry of the last of the judgments of conviction on the three Mercer County indictments. In his petition, under the directive to state with specificity the facts upon which defendant claimed relief, he responded: "Sentences, and any other relief that may come about." In a supplemental verified petition, he argued his constitutional rights were violated and he received an illegal sentence. In his PCR brief, defendant argued his counsel was ineffective for failing to argue a mitigating factor at sentencing on the first of the two Mercer County indictments. Defendant claimed the trial court should have taken into consideration that he had compensated one victim for the injury the victim sustained and was willing to make restitution to another victim. As to the last of the three indictments, defendant argued his counsel was ineffective for failing to point out the mitigating factor that his conduct was the result of circumstances unlikely to recur. Defendant reasoned that the lengthy prison term he was serving made it unlikely he would reoffend. Defendant also argued his petition should not be time-barred because the State would not be prejudiced as defendant was only seeking to have his sentence amended. 6 A-0142-16T4 In a thorough written opinion, Judge Pedro J. Jimenez, Jr., denied defendant's PCR petition without an evidentiary hearing. The judge determined the petition was time-barred by Rule 3:22- 12(a)(1) and that defendant had failed to allege any reason to justify the delay in filing the petition. Instead, defendant relied on the fact that the delay would not cause the State any prejudice. We affirm, substantially for the reasons expressed by Judge Jiminez in his written opinion. Defendant's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). Affirmed. 7 A-0142-16T4

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Docket No.: a0840-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. SHABAR TAYLOR
Status: unpublished
Summary:
PER CURIAM Tried by a jury, defendant Shabar Taylor was convicted of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and acquitted of second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a). The trial judge sentenced defendant on September 6, 2016, to five years imprisonment subject to forty-two months of parole ineligibility. See N.J.S.A. 2C:43-6(c). We now affirm. We glean the following from the trial record. On July 23, 2015, A.N. surreptitiously let defendant, who was then her boyfriend, into her home. At the time, A.N. was fifteen years old. As the two spoke in the kitchen, defendant pulled gloves and a face mask out of his sweatshirt pocket while saying "this is real. This is what I'm about." A.N. heard her younger cousin on the stairs, sent her back upstairs, and turned around. She saw defendant had placed a gun on the table. He took something out of the handle, and when he picked it up, the gun went off. Defendant grabbed it and fled. A.N.'s mother awakened and ran downstairs. She smelled gunpowder in the kitchen, and took both girls back into her bedroom. The Edison Police Department responded to her 911 call within five minutes. Officer Joseph Palko was first to arrive at the scene. He found a bullet groove on the kitchen table, a bullet hole in the wall, and a .40 caliber bullet casing on the floor. A chair that had been knocked over and the back had broken off. At trial, the 2 A-0840-16T2 parties stipulated that defendant did not have a permit to purchase or carry a firearm. A.N. identified defendant as the person who shot the gun. The defense argued to the jury that the matter was inadequately investigated. This included the State's failure to take into evidence for fingerprint analysis an empty bottle that A.N.'s mother told the officers at the scene had been brought there by the person with the gun. The police did not obtain the bullet, which would have matched the empty cartridge. A second officer who was at the scene testified on behalf of the State, as did an evidence technician. The lead investigative officer, a Sergeant Abrams,1 did not testify. Although defense counsel referred to him during questioning, the court barred any mention of his absence during closing statements. The court sustained the State's objection to the testimony on the basis of State v. Clawans, 38 N.J. 162 (1962). The judge found defendant had not given the prosecutor any prior notice of his intention to argue that the State's failure to call Abrams was because his testimony would have been unfavorable. Defense counsel argued that his intent was only to argue that the State failed to meet its burden by not calling that particular officer. The judge 1 His full name is not in the record. 3 A-0840-16T2 interpreted Clawans to mean that "there just can't be an inference that he would have said something advantageous." Accordingly, she prevented defense counsel from mentioning the point further. In summation, defendant also argued that A.N. was motivated by her desire for revenge because defendant had found another girlfriend. Trial counsel also attacked A.N.'s mother's truthfulness, claiming her testimony was false regarding an apologetic text from defendant, about which she never told police. During closing, the prosecutor mistakenly told the jury that A.N.'s mother was unsure if she had told Abrams about the empty bottle; in fact, she testified she had told them. There was some question as to whether defendant used his own cell phone when he first called A.N. about visiting her that night, as opposed to a call he made to her later, after the incident occurred. In response to the argument that the discrepancy corroborated A.N.'s untrustworthiness, the prosecutor said that it was possible that defendant simply charged his phone on a car charger. The prosecutor also said that whether defendant hid the gun in A.N.'s home or brought it there, was inconsequential because the point was that he left with it. Additionally, the prosecutor incorrectly said A.N. testified that defendant reached out for the gun and it went off, "because when he popped the clip he forgot to take the shell out of the chamber." 4 A-0840-16T2 Defense counsel asked the judge to instruct the jury that they were not to speculate, but the request was denied. The court responded that the prosecutor's comments merely urged the jury to draw reasonable inferences from the evidence. In its closing charge, the trial court did instruct the jury that the attorneys' comments were not evidence, and that the jury's recollection of the evidence controlled. Now on appeal, defendant raises the following arguments: POINT I THE TRIAL COURT IMPROPERLY PRECLUDED DEFENSE COUNSEL UNDER STATE V. CLAWANS, 38 N.J. 162 (1962), FROM ARGUING REASONABLE DOUBT BASED ON A LACK OF EVIDENCE IN SUMMATION. THIS DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE. U.S. Const. Amend. VI, XIV; N.J. Const. Art. I, ¶¶ 1, 10. POINT II THE PROSECUTOR'S MISCONDUCT DENIED DEFENDANT A FAIR TRIAL. U.S. Const. Amend. XIV; N.J. Const. Art. I, ¶ 1. I. In State v. Hill, 199 N.J. 545 (2009), the Court addressed a similar claim to the one made here——that the State had failed to call an essential witness and, as a result, defense counsel should be entitled to argue to the jury in closing that it could draw an adverse inference from the witnesses' absence. Id. at 560-61. The Court said a trial judge must make a "dispassionate assessment of the circumstances to determine whether reference to an inference 5 A-0840-16T2 in summation is warranted and, further, whether a jury instruction should be injected into the mix of the parties' arguments, informing the jurors that they may draw such an inference from a party's failure to call a witness." Id. at 561 (citing Clawans, 38 N.J. at 172). In order to draw the inference, however, more must be demonstrated than the mere circumstance that a party fails to "call a witness who has knowledge of relevant facts." Ibid. The determination requires "caution," and the trial court must decide whether the absent witness is only within the power of one party, whether they are available to that party both practically and physically, that the "testimony of the uncalled witness will elucidate relevant and critical facts in issue," and that the testimony is "superior to that already utilized in respect to the fact to be proven." Ibid. In this case, defendant wanted to argue that the lead detective was not called because the State did not wish to draw attention to its failure to investigate or to some other procedural misconduct. Additionally, defendant argues that even if he was not entitled to a Clawans charge, his constitutional right to present a defense was denied because he was prohibited from making the point during summation. 6 A-0840-16T2 Defendant was not entitled to a Clawans charge. He did not meet the conditions enunciated in Hill. The lead detective was as available to him as he was to the prosecutor. His testimony would have been cumulative. Defendant had no actual circumstance he could proffer that was only available to Abrams. Additionally, no notice was given to the State that defendant intended to make the argument. However, defendant reiterates on appeal that he did not request a Clawans charge, but merely wanted to argue to the jury that the detective may have testified favorably for the defense. Defendant's contention that he merely wanted to refer to the absence, and hypothesize from it that Abrams would have testified favorably to him, is equivalent to asking the jury to draw an unfavorable inference. By doing so, defendant would have asked the jury to speculate based solely on the detective's absence as opposed to drawing reasonable inferences from the evidence. Accordingly, we find the trial judge did not err. II. To warrant reversal of a conviction, a prosecutor's statements must constitute a clear infraction and substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense. State v. Timmendequas, 161 N.J. 515, 575 (1999). Furthermore, a prosecutor's remarks may 7 A-0840-16T2 be harmless if they are only a response to remarks made by defense counsel. State v. Wakefield, 190 N.J. 397, 451, 457 (2007) (citations omitted). There is no question that the prosecutor misspoke about the bottle. The point, however, is inconsequential in light of the testimony of both A.N. and her mother. Furthermore, the comment was brief. The prosecutor's arguments regarding the gun were only intended to drive home the point that no matter where the gun was located before defendant left, A.N. was not the one who left the house with a gun. This was fair comment. A prosecutor is entitled in summation to encourage the jury to draw reasonable inferences from the evidence. See State v. R.B., 183 N.J. 308, 330 (2005). Additionally, defendant objects to the prosecutor having stated that perhaps defendant called A.N. from his own cell phone later on because he charged his phone. Although that certainly was speculation, it is not so meaningful as to have had an impact on the jury's decision. See State v. Morton, 155 N.J. 383, 457 (1998). The objected-to statements do not add up to the type of prosecutorial misconduct which might have affected jury deliberations and their final verdict. No prejudicial error was committed by the State in summation. 8 A-0840-16T2 Affirmed. 9 A-0840-16T2

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Docket No.: a1511-15
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. JAMAR B. COCKREN
Status: unpublished
Summary:
PER CURIAM Defendant Jamar Cockren appeals from his September 11, 2015 judgment of conviction for second-degree eluding, fourth-degree resisting arrest, and numerous motor vehicle violations. For the reasons that follow, we affirm in part and reverse in part. I. On the evening of July 30, 2014, defendant and his friend, Raul Colon, were drinking alcohol at another friend's house in Carteret. More than once that night, Colon gave defendant the keys to his vehicle, a Honda CRV, so defendant could "go get something." While returning to the vehicle for a third time, defendant told Colon "he was going to be right back." Defendant drove to a friend's house, and after she got in the passenger seat, they drove around aimlessly while talking. At approximately four a.m. on July 31, 2014, a Woodbridge Township Police Sergeant was on patrol in his marked police SUV. He came to a stop at a red light and noticed defendant's vehicle across the intersection, straddling the solid white line that separates the straight lane from the left hand turn lane. After the light turned green, the officer drove through the intersection and observed that defendant remained stopped and was using his cell phone. The officer then ran the vehicle's license plate, which the computer flagged because the vehicle's owner had a 2 A-1511-15T2 suspended driver's license. The officer turned around to follow defendant but lost sight of him. Soon thereafter, the officer located defendant and observed him make an improper turn onto Route 35. The officer activated his overhead lights, and defendant eventually pulled over. However, as the officer approached the driver side of the vehicle, defendant sped away. The officer broadcasted the pursuit over the police radio and followed. He trailed defendant as defendant sped through a residential area, proceeded through two stop signs, generally drove recklessly, and suddenly slowed his vehicle to a roll next to a church. Defendant then, while the car was still in motion, exited the driver door and fled. Around this time, other officers arrived and began to establish a perimeter. Two Woodbridge officers heard the broadcast and joined the pursuit. They watched as defendant's vehicle slowed down next to the church, and defendant exited the still moving vehicle. Noticing the passenger screaming hysterically in the passenger seat of the vehicle, the officer jumped in the driver's seat and put the vehicle in park. While this was happening, another officer chased defendant on foot. Throughout the pursuit, the officer ordered defendant to stop, but defendant ignored the commands. Eventually, defendant 3 A-1511-15T2 approached a high fence, abandoned his attempt to flee, and laid on the ground, placing his hands behind his back. In November 2014, a Middlesex County Grand Jury indicted defendant on the following charges: second-degree eluding an officer, N.J.S.A. 2C:29-2(b); third-degree unlawful taking of means of conveyance, N.J.S.A. 2C:20-10; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2). On July 9, 2015, the trial judge heard oral argument on the defendant's motion in limine to exclude evidence of his suspended driving license at the time of the incident. After conducting a State v. Cofield, 127 N.J. 328 (1992), analysis, the judge allowed evidence of defendant's suspended license and gave a limiting instruction to the jury. At trial, defendant argued that the conditions present during the early hour chase did not create a risk of injury or death – an element necessary for a second-degree eluding conviction. Instead, defendant sought a conviction for a lesser charge of third-degree eluding. Ultimately, a jury found defendant guilty of second-degree eluding an officer, N.J.S.A. 2C:29-2(b), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2), but acquitted him of third-degree unlawful taking of means of conveyance, N.J.S.A. 2C:20-10. 4 A-1511-15T2 On September 11, 2015, defendant was sentenced to nine years imprisonment with a four year period of parole ineligibility for the second-degree eluding an officer charge and concurrently to eighteen months for the fourth-degree resisting arrest charge. After a subsequent bench trial, defendant was found guilty of nine motor vehicle violations, including reckless driving, N.J.S.A. 39:4-96; two counts for disregarding a traffic control device, N.J.S.A. 39:4-81; and two counts for improper turns, N.J.S.A. 39:4-123. The judge imposed monetary fines and jail time to run consecutive to his other sentences for these motor vehicle violations. This appeal followed. On appeal, Defendant raises the following issues: POINT I: THE TRIAL COURT IMPROPERLY ALLOWED THE STATE TO INTRODUCE EVIDENCE OF COCKREN'S LICENSE SUSPENSION FOR NO LEGITIMATE PURPOSE. POINT II: THE TRIAL COURT ERRED IN FAILING TO MERGE FIVE OF THE MOTOR VEHICLE CONVICTIONS INTO THE ELUDING CONVICTION. POINT III: THE TRIAL JUDGE IMPROPERLY CONVICTED COCKREN OF LEAVING THE SCENE OF AN ACCIDENT.1 1 Defendant withdrew this argument on appeal, and therefore, it does not warrant discussion. 5 A-1511-15T2 POINT IV: THE TRIAL JUDGE ERRED IN IMPOSING A NEAR- MAXIMUM BASE TERM WITH A NEAR-MAXIMUM PAROLE DISQUALIFIER. II. Defendant argues the trial judge improperly allowed evidence of his suspended driver's license because it had no legitimate purpose and constituted impermissible other bad acts evidence. He contends motive was not in dispute because he essentially conceded he eluded the police, and the only issue left for the jury was the degree of the eluding conviction. "[T]he decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." State v. Scott, 229 N.J. 469, 479 (2017) (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)). A trial court's evidentiary ruling will be upheld "absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). "The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process." Marrero, 148 N.J. at 483 (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)) (discussing the admissibility of other-crime evidence). An appellate court "should not substitute its own judgment for that of the trial 6 A-1511-15T2 court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" State v. Perry, 225 N.J. 222, 233 (2016) (quoting Marrero, 148 N.J. at 484). Pursuant to N.J.R.E. 404(b): evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. "One of the well-recognized dangers inherent in the admission of so-called 'other-crimes evidence' is that a jury may convict a defendant not for the offense charged, but for the extrinsic offense." State v. Garrison, 228 N.J. 182, 193-94 (2017) (citing State v. Skinner, 218 N.J. 496, 514 (2014)). Accordingly, such evidence must be "examined cautiously because it 'has a unique tendency' to prejudice a jury." Skinner, 218 N.J. at 514 (quoting State v. Reddish, 181 N.J. 553, 608 (2004)). In State v. Cofield, our Supreme Court established a four- part test "to avoid the over-use of extrinsic evidence of other crimes or wrongs" pursuant to N.J.R.E. 404(b). 127 N.J. at 338. This framework requires: 1. The evidence of the other crime must be admissible as relevant to a material issue; 7 A-1511-15T2 2. It must be similar in kind and reasonably close in time to the offense charged; 3. The evidence of the other crime must be clear and convincing; and 4. The probative value of the evidence must not be outweighed by its apparent prejudice. [Ibid. (citation omitted).]2 The trial judge made the following findings, pursuant to Cofield, in determining that evidence of defendant's suspended driver's license was admissible. As to factor one, he found a lack of a driver's license was relevant to defendant's motive and intent because it explained his actions that night. As to factor two, he found while not having a license is not necessarily similar to eluding, it was temporally related and if anything, reduces the prejudicial effect of introducing such evidence. As to factor three, at trial, the State presented and had authenticated defendant's driver's abstract, showing his driver's license was suspended at the time of the incident. As to factor four, he found the probative value outweighed its prejudice, noting "there is no similarity in the types of crimes that are being charged here and license suspension is not really a crime." In addition, 2 We should note that "[t]he second prong of the Cofield test, addressing the similarity and temporality of the evidence, is not found in Rule 404(b), and is not universally required." State v. Rose, 206 N.J. 141, 163 (2011) (citations omitted); see also State v. Williams, 190 N.J. 114, 131 (2007). 8 A-1511-15T2 the jury was given a limiting instruction that the evidence could only be used to establish motive, not guilt on the underlying offenses. Even assuming for the sake of argument that defendant conceded he eluded the police, he continued to challenge this conviction, albeit in a lesser eluding charge. Therefore, motive was a critical issue for the jury. Accordingly, for the same cogent reasons set forth detailed above, we affirm the trial judge's decision to allow the jury to consider evidence of defendant's suspended driving license. III. Defendant next asserts the trial court erred when it failed to merge five of the motor vehicle violations into the eluding conviction. Defendant argues the following motor vehicle violations should have been merged: reckless driving, N.J.S.A. 39:4-96; two violations for disregarding a traffic control device, N.J.S.A. 39:4-81; and two violations for improper turns, N.J.S.A. 39:4-123. We agree. "Merger is based on the principle that an accused who has committed only one offense cannot be punished as if for two." State v. Miller, 108 N.J. 112, 116 (1987) (citation omitted). Essentially, merger seeks to avoid multiple punishments for the same conduct. Ibid. N.J.S.A. 2C:1-8(a)(1) provides, in pertinent 9 A-1511-15T2 part, that "[w]hen the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense" but not "convicted of more than one offense" unless "[o]ne offense is included in the other." However, Title 39 "[m]otor vehicle offenses . . . fall within the generic category of petty offenses that do not fit within the Code's definition of a lesser-included criminal offense." State v. Stanton, 176 N.J. 75, 98 (2003) (citations omitted). Accordingly, "N.J.S.A. 2C:1-8 does not apply to motor vehicle violations, only criminal offenses." State v. Frank, 445 N.J. Super. 98, 108 (App. Div. 2016) (citing Stanton, 176 N.J. at 99). Nevertheless, motor vehicle violations are "consolidated for trial with indicted offenses, not because they are lesser-included criminal offenses of the crimes charged in an indictment, but because our jurisprudence and Rule 3:15-3(a)(1) require consolidation of even Title 39 offenses to avoid double jeopardy problems." Stanton, 176 N.J. at 100-01 (citations omitted). Thus, "it is appropriate to merge the conviction of an offense and motor vehicle violation where their elements and the evidence presented to establish these elements correspond." Frank, 445 N.J. Super. at 108 (citation omitted). In examining merger, we consider the following factors: 10 A-1511-15T2 the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed. [State v. Allison, 208 N.J. Super. 9, 23-24 (App. Div. 1985) (quoting State v. Davis, 68 N.J. 69, 81-82 (1975)).] Here, because the five above-mentioned motor vehicle violations are part of one integral scheme, they should have been merged into the second-degree eluding conviction. See e.g., State v. Wallace, 313 N.J. Super. 435, 438-39 (App. Div. 1998), aff’d, 158 N.J. 552 (1999). The reckless driving, improper turns, and disregarding a traffic control device violations all arose out of the same facts and were presented under the same evidence of the second-degree eluding conviction, which requires a danger to life. N.J.S.A. 39:4-96 ("A person who drives a vehicle heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property."). Indeed, these motor vehicle violations served as a factual predicate for the higher degree of eluding conviction. Accordingly, we reverse and remand for the trial court to amend the judgment of conviction consistent with this opinion. 11 A-1511-15T2 IV. Lastly, defendant argues the trial judge erred in imposing a near-maximum base term sentence with a near-maximum parole disqualifier. In particular, defendant avers the trial judge applied the wrong standard in imposing a discretionary period of parole ineligibility. He further argues the trial judge afforded undue weight to aggravating factors three, six, and nine, and failed to find mitigating factors one and two. Review of the trial court's "sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). When reviewing a sentence, we consider "whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether the 'factfinder [has applied] correct legal principles in exercising its discretion.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 363 (1984)). We will not set aside a trial court's sentence "unless: (1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration in original) (quoting Roth, 95 N.J. at 364-65). 12 A-1511-15T2 The trial judge sentenced defendant to nine years, with four years of parole ineligibility, for second-degree eluding, concurrent to eighteen months for fourth-degree resisting arrest. Defendant's argument that the trial judge failed to find mitigating factor one and two is without merit. Mitigating factor one requires "[t]he defendant's conduct neither caused nor threatened serious harm," and mitigating factor two requires "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm[.]" N.J.S.A. 2C:44-1(b)(1) and (2). Defendant was convicted of second-degree eluding, which requires the "flight or attempt to elude created a risk of death or injury to any person." Model Jury Charges (Criminal), "Eluding an Officer, N.J.S.A. 2C:29-2b" (rev. Nov. 15, 2004) (emphasis added). Certainly risk of serious harm encompasses "risk of death or injury to any person." Furthermore, the record demonstrates defendant's flight caused potential harm to others, despite his contentions no one was at risk of harm. He greatly exceeded posted speed limits, made two improper turns, drove recklessly, and left the vehicle running and in motion with a passenger inside. Lastly, defendant's contention the trial judge did not recite the proper standard in imposing a near-maximum parole disqualifier is also unavailing. While defendant contends the trial judge attributed undue weight to aggravating factors three, six, and 13 A-1511-15T2 nine, he does not assert they are unsupported by the record. Thus, the issue is simply whether the aggravating factors substantially outweighed the mitigating factors. See N.J.S.A. 2C:43-6(b) ("[W]here the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors, . . . the court may fix a minimum term not to exceed . . . one-half of the term set pursuant to a maximum period of incarceration for a crime . . . ."). In this case, it was within the trial court's sentencing discretion to conclude that in this case, the three aggravating factors substantially outweighed the mitigating factors, so as to warrant the imposition of four years of parole ineligibility on a nine year sentence. Affirm in part, reverse and remand for resentencing. 14 A-1511-15T2

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Docket No.: a1605-16
Decided: 2018-06-12
Caption: JUAN VILLALOBOS v. NEW JERSEY STATE PAROLE BOARD
Status: unpublished
Summary:
PER CURIAM Juan Villalobos appeals from a final determination of the Civil Service Commission (Commission) terminating his position as a senior parole officer with the New Jersey State Parole Board (Board) for misappropriating union funds. The Commission adopted the decision of the Administrative Law Judge (ALJ). We affirm. Because ALJ Thomas R. Betancourt comprehensively detailed the relevant factual and procedural history in his written opinion, we briefly recount those facts necessary to provide context for our decision. Villalobos was a parole officer with the Board from 1994 to 2013. During that period, he also held numerous executive positions with his union, Police Benevolent Association (PBA) Local 326, including recording secretary, vice-president, president and state delegate. On December 9, 2013, the Bergen County Prosecutor charged Villalobos with theft by deception for improperly withdrawing $5270 in union funds to pay personal legal expenses related to his divorce and current family members' immigration issues. The next day, the Board issued an initial Preliminary Notice of Disciplinary Action (PNDA) and suspended Villalobos with pay 2 A-1605-16T4 pending a Loudermill1 hearing for conduct unbecoming a public employee in violation of N.J.A.C. 4A:2-2.3. The PNDA identified the specific criminal and administrative charges and notified Villalobos that he was in "jeopardy of removal" because of his "indictment"2 by the Bergen County Prosecutor. Less than a week later, Villalobos participated in a Loudermill hearing. The hearing officer issued a written decision the same day. Like the PNDA, the decision detailed the charges and informed Villalobos that he was at risk of being removed from his employment with the Board. He also concluded that there was sufficient evidence to suspend Villalobos with pay pending a formal disciplinary hearing. Villalobos was served with a copy of the hearing officer's decision. Villalobos was accepted into the Bergen County Pretrial Intervention (PTI) Program and ordered to repay the misappropriated funds. He was granted an early release of PTI and his record was expunged. The Board issued a second PNDA on September 2, 2014. Villalobos was again notified that he was charged with conduct 1 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). 2 As criminal proceedings were initiated by summons and complaint, the PNDA's reference to an indictment was in error. 3 A-1605-16T4 unbecoming a public employee and that he could lose his job because of the charges that led to his arrest. Next, the Board held a formal disciplinary hearing. The hearing officer concluded Villalobos' conduct was unbecoming of a public employee in violation of N.J.A.C. 4A:2-2.3(a)(6), (11), and recommended Villalobos be terminated from his position as a parole officer. The Board issued a Final Notice of Disciplinary Action (FNDA) affirming the conduct unbecoming charge and Villalobos' firing. Villalobos appealed his termination and the matter was transferred to the Office of Administrative Law (OAL) as a contested case. The ALJ presided over a five-day hearing. He considered testimony from twelve witnesses and examined documentary evidence introduced by the parties including five unauthorized checks that formed the basis of the charges. The ALJ determined that four of the checks — nos. 2016, 2017, 2560 and 2937 — were issued from 2008 to 2010 to Anayancy R. Hausman, Esq., an immigration attorney working with Villalobos' current wife's family. The last check at issue — no. 2612 — was issued on January 6, 2010, in the amount of $3000 and made payable to Charles C. Abut, Esq., Villalobos' divorce mediator. Before the ALJ, Villalobos defended his conduct not by claiming the disputed funds were appropriately related to union 4 A-1605-16T4 business — he conceded the money was used for personal legal expenses — rather, he maintained the checks were authorized and issued consistent with then existing PBA Local 326 practices and procedures. Two witnesses played a critical role at trial on this central point: Villalobos and Kenneth Metallides, a senior parole officer and former PBA Local 326 treasurer. Metallides testified that PBA Local 326 maintained general, political action committee, and annuity accounts. He stated that the union's regular and ordinary practice required checks exceeding $500 issued from the union's accounts to be presented to the executive board for approval and signed by the treasurer and either the president or the state delegate. Metallides stated that it was his practice as treasurer to leave behind both signed and unsigned blank checks when he went on vacation. In December 2009, he left signed, blank checks with Villalobos, but expected that they would be used for "[u]nion expenses or [u]nion expenditures" and only in an emergency. Metallides testified that upon returning from vacation in January, he noticed that Villalobos had issued multiple checks in his absence, including check no. 2612, a pre-signed check that Villalobos co-signed. According to Metallides, check no. 2612 was disbursed contrary to union policies as it was issued without his or the board's approval. 5 A-1605-16T4 Metallides testified that he emailed Villalobos concerning check no. 2612 and other checks written from the general account and asked for documentation supporting the expenditures. He also verbally asked Villalobos for clarification as to the purpose of check no. 2612. Villalobos responded that check no. 2612 related to an arbitration. Metallides understood Villalobos' explanation to mean that the check was a union expenditure for an arbitrator, a common practice. Villalobos testified that the checks at issue were approved in a manner consistent with PBA Local 326's practices and that check no. 2612 was a loan. He confirmed that if a member requests funds from the union's accounts, the item was placed on the meeting agenda for discussion and vote. If approved, a check was issued and the transaction noted in the meeting minutes. He also maintained that the minutes would confirm the board authorized the expenditures reflected in the checks.3 Villalobos disputed Metallides' testimony that he regularly left blank, signed checks behind when he went on vacation. He stated that Metallides knowingly signed the disputed checks and maintained check no. 2612 was presented to the executive board for 3 Neither party offered into evidence any of the board minutes. 6 A-1605-16T4 approval. Villalobos denied having received the email from Metallides inquiring into checks written from the general account. In his written decision, the ALJ determined that the Board met its burden of proof by a preponderance of the competent and credible evidence. He characterized Metallides' testimony as "compelling" and found him to be an "extremely credible" witness. The ALJ specifically deemed his testimony regarding leaving signed blank checks in his office while on vacation "very credible." Conversely, the ALJ did not believe Villalobos. He characterized his testimony as "disingenuous" and observed that he did not respond directly to questions but rather "seemed to spin [his] answers." The ALJ based his adverse credibility findings in part on Villalobos' "not believable" testimony that he failed to receive Metallides' email regarding check no. 2612. He further concluded that Villalobos' testimony that the $3000 check was brought to the attention of the board "defie[d] credulity" as Metallides was on vacation at the time the check was issued and no executive meeting was scheduled. The ALJ considered Villalobos' conduct in the context of his status as a law enforcement officer which required Villalobos to be held "to a higher standard." In affirming the decision of the hearing officer, the ALJ substantiated the charge of conduct unbecoming a public official warranting termination: 7 A-1605-16T4 It is abundantly clear from the record that [Villalobos] used [PBA Local] 326's account to pay personal legal expenses related to his divorce and for the family of his future wife. [Villalobos] was appropriately charged with theft by deception in violation of N.J.S.A. 2C:20-4. Notwithstanding that [Villalobos] entered into PTI, received early termination of PTI and had the record expunged, the underlying fact that [he] misused union funds is more than sufficient to sustain a finding of conduct unbecoming a public employee. It is also a sustained charge[] that warrants a penalty of removal. On November 15, 2016, the Commission adopted the ALJ's findings of fact and conclusions of law. On appeal, Villalobos contends the decision of the Commission was not supported by a preponderance of the competent and credible evidence and that he was not sufficiently put on notice of the charges against him. We disagree. Appellate review of an administrative agency decision is limited. In re Herrmann, 192 N.J. 19, 27 (2007). A strong presumption of reasonableness attaches to the Commission's decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001). Appellant has the burden to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). Appellate courts generally defer to final agency actions, only "reversing those actions if they are 'arbitrary, capricious 8 A-1605-16T4 or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (alteration in original)). Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (1) whether the agency's decision conforms with the relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, acknowledging the agency's "expertise and superior knowledge of a particular field." Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). We will not substitute our judgment for the agency's even though we might have reached a different conclusion. Stallworth, 208 N.J. at 194; see also In re Taylor, 158 N.J. 644, 656 (1999). Our deference to agency decisions "applies to the review of disciplinary sanctions as well." Herrmann, 192 N.J. at 28. "In 9 A-1605-16T4 light of the deference owed to such determinations, when reviewing administrative sanctions, 'the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Id. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)). After thoroughly reviewing the record in light of the legal principles and the standard of review, we are satisfied that the Commission's decision was not arbitrary, capricious or unreasonable and was supported by substantial credible evidence in the record. According deference to the ALJ's credibility determinations, there is substantial evidence in the record to support the ALJ's factual findings and legal conclusions, which the Commission adopted. Further, we conclude the penalty of termination of a public officer who misappropriates union funds for personal use was not so wide of the mark to justify our substitution of the Commission's judgment. See In re Carter, 191 N.J. 474, 485 (2007) (recognizing that appellate courts have upheld the removal of public officials "where the acts charged, with or without any prior discipline, have warranted the imposition of that sanction"). With respect to Villalobos' claim that he received inadequate notice of the charges, the ALJ correctly concluded that the initial PNDA adequately informed Villalobos of the charges and the Board's 10 A-1605-16T4 incorrect characterization of the summons and complaint as an "indictment" did not render the notice deficient. Specifically, the PNDA outlined Villalobos' criminal and administrative charges and notified him that he was in jeopardy of being fired. Further, the ALJ astutely noted that Villalobos received a second PNDA and participated in a Loudermill hearing. Both the second PNDA and the decision stemming from the Loudermill hearing indicated that Villalobos could be dismissed as a parole officer as a result of his alleged criminal behavior. The notice here was significantly more detailed than that provided to the public employee in Town of West New York v. Bock, 38 N.J. 500 (1962). In that case, the PNDA did not advise the employee of the penalty of removal and the Commission considered actions outside the scope of the charges listed in the PNDA. In light of the information contained in the multiple PNDAs and presented at the Loudermill hearing, the ALJ appropriately determined that Villalobos was provided with sufficient notice of the charges to prepare a defense and was given all the process he was due. See Bock, 38 N.J. at 520-21. To the extent not addressed, Villalobos' remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 11 A-1605-16T4

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Docket No.: a1998-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. JOSEPH P. MCCARRAHER
Status: unpublished
Summary:
PER CURIAM After the denial of his motion to dismiss the remaining counts of an indictment, defendant Joseph P. McCarraher, Jr., entered a guilty plea to third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a). In accordance with the plea agreement, on May 27, 2016, defendant was sentenced to a four-year term of incarceration with one year of parole ineligibility. An order of restitution and appropriate fines and penalties were also imposed. The incident that led to the indictment occurred when at approximately 11:46 p.m., Lower Township Police Officer Dallas Bohn, Jr., who was familiar with defendant and his brother Adam, encountered defendant walking in an area in which a series of vehicles had been vandalized the night before. Bohn identified himself and asked defendant for his name. Defendant gave his brother's name instead of his own and then ran away. Bohn knew defendant had an outstanding arrest warrant and then chased him, all the while commanding defendant to stop running. Eventually, Bohn tackled defendant to the ground. When he did so, defendant punched him with closed fists and kicked at him with his feet while attempting to reach into his pockets with his right hand. Bohn repeatedly ordered defendant to get back down on the ground and told him that he was under arrest. Defendant did not comply, and Bohn was forced to use pepper spray. When backup arrived and defendant was searched after arrest, the 2 A-1998-16T3 officers found seven bags of heroin and $705 on his person. The events were described in testimony developed during the course of defendant's successful motion to suppress evidence. Ultimately, the trial judge concluded that "[defendant] did not have the right to strike the patrolman," that the "testimony regarding the defendant's flight and assault is permitted at trial," and that the relevant counts to the indictment would therefore not be dismissed. They were neither manifestly deficient nor palpably defective. Defendant now raises the following point: THE COURT ERRED IN DENYING McCARRAHER'S MOTION TO DISMISS THE RESISTING-ARREST AND AGGRAVATED-ASSAULT COUNTS BECAUSE THE OFFICER DID NOT ANNOUNCE AN INTENT TO ARREST McCARRAHER BEFORE TACKLING HIM TO THE GROUND, AND BECAUSE McCARRAHER'S ACTIONS WERE SPONTANEOUS AND PROPORTIONATE TO THE OFFICER'S ACTIONS. "An indictment is presumed valid and should only be dismissed if it is 'manifestly deficient or palpably defective.'" State v. Feliciano, 224 N.J. 351, 380 (2016) (quoting State v. Hogan, 144 N.J. 216, 229 (1996)). The decision whether to dismiss an indictment lies within the sound discretion of the trial court and is reviewed only for a clear abuse of discretion. State v. Saavedra, 222 N.J. 39, 55 (2015); State v. Zembreski, 445 N.J. Super. 412, 424 (App. Div. 2016). 3 A-1998-16T3 This indictment is valid. That Bohn did not say that he announced his intention to arrest defendant until after defendant was hiding behind a tree did not make the indictment manifestly deficient or palpably defective. A suspect has no right to flee from an investigatory stop or to resist even an unlawful arrest. See State v. Williams, 192 N.J. 1, 11-12 (2007); State v. Crawley, 187 N.J. 440, 451-52 (2006). Whether or not the State could prove the necessary sequence of events such as to meet the statutory test either for resisting arrest or aggravated assault was a fact issue to be decided during a trial and is not grounds for the dismissal of an indictment. Defendant fled, despite being chased by an officer who was continuously ordering him to stop. He wrestled with an officer who was trying to subdue him, and did so while the officer was telling him he was under arrest. Defendant tried to hide from the officer, and punched and kicked him. The facts as developed during the suppression hearing established that the indictment was not manifestly deficient or palpably defective. The argument that failure to dismiss the indictment under these circumstances is against public policy does not warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 4 A-1998-16T3

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Docket No.: a2374-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. JASON L. RISLEY
Status: unpublished
Summary:
PER CURIAM Defendant Jason L. Risley appeals from the November 15, 2016 Law Division order denying his petition for post-conviction relief (PCR). We affirm. Defendant's four pending indictments were resolved by way of plea agreement. Indictment No. 12-02-0111 charged him with third- degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); Indictment No. 12-03-0188 charged him with two counts of third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); Indictment No. 12-09-0578 charged him with fourth- degree shoplifting, N.J.S.A. 2C:20-11(b)(2), and fourth-degree conspiracy, N.J.S.A. 2C:5-2; finally, Indictment No. 12-12-0852 charged him and a co-defendant, George R. Furey (co-defendant), with third-degree burglary, N.J.S.A. 2C:18-2 and third-degree conspiracy, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-2. The remaining counts of Indictment No. 12-12-0852 charged Monique M. Kelly with related crimes. Defendant agreed to enter a guilty plea to one count of third- degree drug possession, Indictment No. 12-02-0111, and third- degree burglary, Indictment No. 12-12-0852. In exchange, the State would recommend a five-year sentence on the possession charge and a consecutive five-year term on the burglary offense. Defendant was sentenced in accordance with the agreement on March 21, 2013. The State then dismissed Indictment Nos. 12-03-0188 and 2 A-2374-16T1 12-09-0578 in their entirety, and the remaining counts of Indictment No. 12-12-0852 as they related to this defendant. Defendant did not file a direct appeal. On January 16, 2013, while defendant was in custody on the charges, the Cape May County Sheriff's Department investigated an incident in which defendant allegedly assaulted Thomas Furey (Furey), the brother of defendant's co-defendant. According to the document presented to the trial judge during argument on defendant's PCR petition, the dispute related to a third man's relationship with a woman who had previously been involved with Furey. A subsequent special report stated that Furey may have misrepresented the incident in order to be moved to a different area of the county jail. The report also noted that defendant "did not have any marks at all on his person." When defendant entered his guilty plea a week later on January 24, 2013, he did not mention the assault. During the colloquy, defendant's attorney explained to the judge the terms of the agreement set forth on the written plea form, including the imposition of two consecutive five-year terms of imprisonment. The judge asked defendant to explain the recommended sentence. Defendant responded, "[f]ive years, consecutive five years." Defendant filed his petition for PCR on July 1, 2016. In his initial submissions, defendant contended that trial counsel had 3 A-2374-16T1 been ineffective because he represented the co-defendant's brother, Furey, and disclosed defendant's cooperation with the authorities to him. Because of the disclosure, defendant argued, the co-defendant obtained a better offer and sentence.1 At oral argument, however, defendant contended that his attorney's disclosures to Furey created such a hostile environment in the county jail that he was assaulted, which coerced him into pleading guilty so that he could be quickly transferred to state prison for his own safety. Defendant also alleged that his attorney assured him that he would receive five years concurrent——not consecutive——on the two offenses, despite the recommendation set forth on the plea form and reviewed by the judge on the record. Defendant further asserted that counsel had been ineffective because of his failure to investigate witnesses, including the burglary victims' daughter, who he claimed arranged the burglary. The judge found defendant's proofs so lacking in merit that no prima facie case was established, and thus denied an evidentiary hearing. Now on appeal, defendant alleges the following: 1 Allegedly, the co-defendant was sentenced to only a three-year term of imprisonment, although no documentation has been provided corroborating that information or the co-defendant's criminal history. 4 A-2374-16T1 POINT ONE: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING A. The Conflict of Interest Issue B. Misinformation From Plea Counsel C. Failure to Communicate and Investigate D. Ineffective Assistance at Sentencing We find no merit to these arguments. R. 2:11-3(e)(2). In order to obtain relief based on ineffective assistance grounds, defendant is required to show not only that counsel's performance was deficient, but that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Defendant not only failed to establish that counsel's assistance was not within the range of competence expected of attorneys representing clients in criminal matters, but he has failed to establish that "there is a reasonable probability that, but for counsel's errors, [defendant] would not have pled guilty and would have insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994) (citations omitted). The alleged deficiencies here are not even supported by the record. It is also well-established that a claim for ineffective assistance of counsel requires more than bare allegations. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A prima facie showing requires a demonstration of reasonable likelihood 5 A-2374-16T1 of success. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Such proofs are woefully lacking in this case. Defendant provides absolutely no support, other than his shifting narrative, to anchor his claim of conflict of interest. If defendant's attorney had disclosed information to Furey that negatively affected defendant's status at the county jail, or enabled his co-defendant to negotiate a more favorable deal, it does not make sense that a few days later defendant would have entered a guilty plea with counsel's assistance and without mentioning his suspicion that his lawyer had betrayed a confidence. Defendant was asked a comprehensive series of questions by the trial judge to establish the knowing, voluntary, and intelligent waiver of his right to a trial. No one submitted a certification supporting this rather serious allegation against the attorney. Similarly, the record belies defendant's claim that despite the plea form he signed, the judge's explanation as well as that of his attorney, and his own on-the-record acknowledgment, he would nonetheless be sentenced concurrently. Defendant argues that the victims' daughter was the one who "set up" the burglary. The argument ignores the fact that even if true, defendant is still guilty of burglary. His factual basis met every necessary statutory element. 6 A-2374-16T1 For the first time on appeal, defendant raises the argument that because counsel made no statements seeking a reduced sentence during the sentence hearing, counsel was ineffective. Having failed to make that point to the trial court, we will discount it unless it asserts an error clearly capable of producing an unjust result. See R. 2:10-2. The judgment of conviction reflects the judge's finding that defendant, who was then thirty years old, had no history of stable employment, was adjudicated delinquent eleven times, was convicted of six disorderly persons offenses, and was convicted of indictable crimes on seven occasions. Additionally, defendant "has violated probation on multiple occasions." The information, together with defendant's several indictments on this occasion, leads inescapably to the conclusion that there was no evidence in the record that would have supported any mitigating factor. Counsel is not ineffective for failing to make arguments that would not have been credited by the sentencing judge. Affirmed. 7 A-2374-16T1

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Docket No.: a2785-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. LARRY J. ANDERSON
Status: unpublished
Summary:
PER CURIAM On the eve of trial, defendant Larry J. Anderson entered an "open" plea to second-degree burglary, N.J.S.A. 2C:18-2(a)(1).1 On January 16, 2015, the court sentenced defendant——as the judge had previously indicated——to five years state prison, subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Additionally, defendant was to pay restitution in the amount of $8106. Appropriate fines and penalties were imposed. Defendant did not file a direct appeal, but instead filed this petition for post-conviction relief (PCR). We now remand for the purpose of a limited hearing. The facts are in dispute. Based on defendant's sworn factual basis for his guilty plea, the police report, and defendant's confession, the State asserts that defendant and a co-defendant, who was prepared to testify against him, burglarized a home for a second time in September 2012. Defendant then removed two shotguns from the residence. 1 The counts in the indictment that were dismissed pursuant to the plea agreement all related to the burglary incidents at issue including two counts of third-degree burglary, N.J.S.A. 2C:18- 2(a)(1) (counts one and two); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count three); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count six); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1) (count seven). 2 A-2785-16T1 Police acquired intelligence about the burglaries directing them to defendant and his co-defendant. They learned defendant had an outstanding municipal court warrant for his arrest. According to the police report, when the officers arrived at his residence to investigate and execute the warrant, defendant came outside to speak to them. They administered Miranda2 warnings and asked defendant if he had "anything that did not belong to him." Defendant volunteered he had two guns in a bedroom closet. He signed a written consent to search, went inside with the officers, and showed them the stolen shotguns hidden in a closet. Police drove defendant to the station where, after signing a Miranda waiver card, he confessed to the burglary and theft of the guns. In his PCR petition, defendant described a different scenario. He claimed police walked into the back door of his home, were given permission to search by his five-year-old son, and only obtained his confession after the officers showed him the shotguns they wrongfully seized. In his argument to the Law Division as well as on this appeal, defendant contends counsel was ineffective because he did not file a motion to suppress the guns, and inferentially, the statement he initially made to the police leading them to the incriminating 2 Miranda v. Arizona, 384 U.S. 436 (1966). 3 A-2785-16T1 evidence. Defendant did not argue to the Law Division judge, and does not argue on appeal, that the Mirandized confession at the station should have been suppressed. The State submitted a certification from defendant's trial counsel in opposition to the PCR petition. Counsel certified that defendant insisted on taking the matter to trial because he wanted to follow through on a challenge to the operability of the weapons, and wanted to "attempt[] to have his confession suppressed." N.J.R.E. 504(2)(C) states that the attorney-client privilege does not extend "to a communication relevant to an issue of breach of duty by the lawyer to his client." Trial counsel are routinely called by the State to testify at PCR hearings regarding their representation, in order to refute claims by defendants challenging the effectiveness of their services. But that process provides a defendant with notice and the opportunity to cross- examine his trial counsel. In rendering his decision denying PCR, the judge said "[d]efendant never notified his trial counsel of the alleged fabricated facts listed in the police report." Thus, the judge relied in part on trial counsel's certification in reaching his decision. Although the rule nullifies the attorney-client privilege in situations such as this, it is not so clear that due 4 A-2785-16T1 process requirements were satisfied by the State's submission of a certification. In order to obtain relief on ineffective assistance of counsel grounds, a defendant must demonstrate not only that counsel's performance was deficient, but the manner in which the alleged deficiency prejudiced his right to a fair trial, Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). When an ineffective assistance of counsel claim is made by a defendant who entered a guilty plea, he or she must also show that not only was the representation not "within the range of competence demanded of attorneys in criminal cases," but also that there was "a reasonable probability that, but for counsel's errors, [defendant] would not have pled guilty and would have insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994) (citations omitted). Without cross-examination, defendant was foreclosed from exploring his attorney's perspective on defendant's decision to plead guilty. Without cross-examination, the judge only had the version of the interactions between counsel and defendant most favorable to the State. It would be unfair to assess whether defendant established a prima facie case sufficient to warrant a full evidentiary hearing on this record. We do not question the 5 A-2785-16T1 rule's applicability, and by this decision in no way intend to indicate that we have an opinion as to the ultimate outcome. Our concern is solely that the case was decided, and the attorney- client privilege waived as allowed under the rule, without affording defendant the opportunity to explore the information upon which the judge relied. After the limited hearing, which shall be completed within sixty days, the judge should incorporate any factual findings and legal conclusions he may make as a result into his decision. Remanded for a limited hearing at which defendant may cross- examine his attorney. We retain jurisdiction. 6 A-2785-16T1

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Docket No.: a2978-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. JAMES L. BELLAMY
Status: unpublished
Summary:
PER CURIAM Defendant appeals a trial court order denying his motion to suppress a gun found in his possession during a warrantless arrest. We affirm. I. The following facts were adduced at the suppression hearing. On May 7, 2014, at around 11:40 p.m., Trenton Police Department Detective Jeffrey Donaire, an eight-year veteran, and his partner were notified by dispatch that the ShotSpotter gunshot detection system had detected a single gunshot in the area of 413 Walnut Avenue. That location is a high-crime area where numerous shootings and homicides occur each year. Detective Donaire has been involved in approximately 50 arrests, 100 investigations, and 50 firearms incidents in the area. The detective is familiar with the ShotSpotter system, and has never known it to falsely indicate that a gunshot had been fired. The officers, dressed in full uniforms, including vests marked "Police" on front and back, arrived at the address in an unmarked police car within one or two minutes.1 They observed only one person, later identified as defendant, in the area. As they drove slowly toward him, defendant was walking away at a quick pace, crossing the street, and "looking in every direction in a nervous manner." The officers decided to stop defendant to determine if he witnessed or was involved in the shooting, as he was the only person in the vicinity of the reported gunshot. 1 The trial court found the officers' unmarked car would have been readily recognizable as a police vehicle because it had un- tinted windows, a cage separating the front and back seats, and visible police lights affixed to the front grill and bumper. 2 A-2978-16T2 When Detective Donaire was within 10 feet of defendant, he turned, looked directly at the officer, and ducked down between two parked cars. The detective shined a flashlight on defendant and saw him grasp an object in the middle of his waistband, which he moved to the right, and shoved further into his pants. Based on his training and experience, and the high-crime area, the detective believed defendant was securing a weapon in his waistband. The detective exited the vehicle, and ordered defendant to stop and approach him. In response, defendant turned, looked up and down the street, and ran away. Detective Donaire ordered defendant to stop. When he failed to comply, the officers began a foot pursuit. Defendant ran into a nearby home. The detective caught up with defendant, and again ordered him to stop. When defendant failed to comply, the officers entered the home, and tackled defendant in the hallway. The force of the tackle caused an orange and black flare gun, fitted with a pipe, and loaded with a .410mm shotgun shell, to fall from defendant's waistband. Detective Donaire arrested defendant. The owner of the home later told police that defendant did not live at the residence, and did not have permission to enter the house. On August 6, 2015, a Mercer County grand jury indicted defendant, charging him with: (1) second-degree burglary, N.J.S.A. 3 A-2978-16T2 2C:18-2a(1); (2) second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; (3) fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2); and (4) second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7b. Defendant moved to supress the weapon. The trial court denied the motion. The judge, having found Detective Donaire's testimony to be credible, concluded that the officers had "reasonable and particularlized suspicion to initiate an investigative detention" based on defendant's nervous manner, his crouching between cars upon seeing the police in what Donaire believed to be an attempt to hide, [his] shifting an object in his waistband, and being the only person in the high crime area which was the location of a shots fired call received just minutes earlier . . . . Following the denial of his motion, defendant entered a guilty plea to second-degree unlawful possession of a handgun in exchange for dismissal of the remaining counts. The trial court sentenced defendant to five years of imprisonment with a three-and-a-half- year period of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6c. This appeal followed. Defendant raises one point for our consideration: THE GUN SHOULD BE SUPPRESSED BECAUSE THE STATE'S FAILURE TO PRODUCE ANY EVIDENCE ON THE RELIABILITY OF THE SHOTSPOTTER GUNSHOT 4 A-2978-16T2 DETECTION SYSTEM PRECLUDES A FINDING THAT DEFENDANT WAS LAWFULLY SEIZED. MOREOVER, THE STATE FAILED TO ESTABLISH A SIGNIFICANT ATTENUATION BETWEEN THE UNCONSTITUTIONAL STOP OF DEFENDANT AND THE SEIZURE OF THE GUN HE DISCARDED FOLLOWING THAT STOP. STATE V. WILLIAMS, 410 N.J. SUPER. 540 (APP. DIV. 2009). II. The Fourth Amendment of the United States Constitution, and Article I, Paragraph 7 of the New Jersey Constitution, both protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . ." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "Under our constitutional jurisprudence, when it is practicable to do so, the police are generally required to secure a warrant before conducting a search . . . ." State v. Hathaway, 222 N.J. 453, 468 (2015) (citations omitted). It is well settled that police officers may lawfully detain someone to conduct an investigatory stop without a warrant and on less than probable cause. Terry v. Ohio, 392 U.S. 1, 22 (1968); State v. Stovall, 170 N.J. 346, 356 (2002). An investigatory stop allows an officer to detain an individual temporarily for questioning if the officer can articulate "some minimum level of objective justification" based on "something more" than an "inchoate and unparticularized suspicion or hunch" of wrongdoing. 5 A-2978-16T2 United States v. Sokolow, 490 U.S. 1, 7 (1989) (citations and internal quotations omitted); accord State v. Nishina, 175 N.J. 502, 511 (2003). A warrantless investigative stop is valid when an "officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . ." Terry, 392 U.S. at 30 (Harlan, J., concurring). The stop must be "'based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting Nishina, 175 N.J. at 511 (citation and internal quotation marks omitted)). Reasonable suspicion "involves a significantly lower degree of objective evidentiary justification than does the probable cause test . . . ." State v. Davis, 104 N.J. 490, 501 (1986). A reviewing court "must look at the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing" by the detained individual. United States v. Arvizu, 534 U.S. 266, 273 (2002). "In evaluating the facts giving rise to the officer's suspicion of criminal activity, courts are to give weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts 6 A-2978-16T2 objectively and reasonably viewed in light of the officer's expertise.'" State v. Richards, 351 N.J. Super. 289, 299 (App. Div. 2002) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). In addition, we "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (quotations omitted). This is especially true when the trial court findings are "substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). The trial court's legal conclusions are entitled to no special deference, and are reviewed de novo. State v. Gandhi, 201 N.J. 161, 176 (2010). We are satisfied that the trial court's findings of fact are supported by sufficient credible evidence and its denial of defendant's suppression motion was sound. The officers were lawfully in the area where a few minutes earlier an electronic detection system identified a gunshot. Defendant was the only person in the vicinity of the reported gunfire. "Although a stop in a high-crime area does not by itself justify a Terry frisk . . . the location of the investigatory stop can reasonably elevate a police officer's suspicion that a suspect is armed." State v. 7 A-2978-16T2 Valentine, 134 N.J. 536, 547 (1994) (citing Maryland v. Buie, 494 U.S. 325, 334-35 n. 2 (1990)). Furthermore, on seeing the officers, defendant crouched between two parked cars in an attempt to avoid detection. Detective Donaire observed defendant grab an object in his waistband, and force that object further into his pants. At that point, in light of the report of gunfire, the high-crime location, the furtive acts of defendant, and the observation of an object in defendant's waistband, Detective Donaire had a reasonable suspicion of criminal activity based on specific and articulable facts. The attempt to detain defendant for an investigatory stop was lawful.2 The detective's level of suspicion was objectively heightened when defendant fled from the officers. "Headlong flight – wherever it occurs – is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Illinois v. Wardlow, 528 U.S. 119, 124 (1999); Pineiro, 181 N.J. at 26. "[W]hen a police officer is acting in good faith and under color of his authority, a person must obey the officer's order to stop and may not take flight without violating N.J.S.A. 2C:29-1 2 Because we hold that the officers' investigative stop of defendant was constitutionally sound, we need not reach defendant's attenuation argument. 8 A-2978-16T2 [obstructing administration of law or other governmental function]." State v. Crawley, 187 N.J. 440, 451-52 (2006); accord State v. Williams, 192 N.J. 1 (2007). Defendant's flight, after his attempt to avoid detection, and his secreting of an object in the waistband of his pants, was sufficient to justify the officers' pursuit of defendant, and his ultimate arrest. A lawful arrest automatically justifies a warrantless search of the arrestee and the area within the arrestee's reach. Chimel v. California, 395 U.S. 752 (1969); see also United States v. Edwards, 415 U.S. 800 (1974). Seizure of the gun in defendant's possession at the time of his arrest was, therefore, also lawful. We are not persuaded by defendant's argument that a lack of expert testimony regarding the reliability of the ShotSpotter technology renders the detective's reliance on the system's report of a gunshot unreasonable. Detective Donaire was familiar with the ShotSpotter system. He explained that it "identifies and pinpoints gunfire in the city, and then . . . the dispatchers monitor this and they put it out for patrol units to respond to the area." He has never responded to a ShotSpotter report of gunfire that was proven inaccurate. The system is, in effect, the equivalent of a reliable informant, and, as the trial court pointed out, is objectively more reliable than an anonymous report of gunfire. At any rate, it was not the ShotSpotter report alone 9 A-2978-16T2 that formed the basis of the officers' decision to stop defendant. As explained above, defendant's suspicious behavior in a high- crime area contributed to the officers' decision to conduct an investigative stop.3 Affirmed. 3 We do not agree with defendant's argument that Detective Donaire's testimony about the ShotSpotter system was inadmissible expert testimony. The detective provided factual testimony with respect to his understanding of the purpose of the system and his experience with responding to reports of gunfire detected by the system. At most, the detective provided lay opinion testimony with respect to the reliability of the ShotSpotter system. N.J.R.E. 701. 10 A-2978-16T2

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Docket No.: a3154-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. MARVIN D. CRUZ
Status: unpublished
Summary:
PER CURIAM Defendant Marvin D. Cruz appeals from his conviction after a jury trial for unlawful possession of .37 grams of cocaine. N.J.S.A. 2C:35-10(a)(1). We affirm. We glean the salient facts from the one-day trial. On October 20, 2011, at approximately 12:15 p.m., State Police Sergeant Richard Shelton was on routine traffic patrol, traveling in a marked police vehicle on Liberty Street in Long Branch, when he observed a van travelling in the opposite direction "coming head- on at [him]." The two occupants were not wearing seat belts. Shelton stopped the vehicle, but neither man could produce a driver's license.1 The men explained they were performing construction work at a nearby church, a licensed driver drove them to the job site that morning, and they were using the van to return from their lunch break. While Shelton was writing summonses for the two occupants of the van, a third man, later identified as defendant, approached the driver's side window of the police vehicle. Shelton testified defendant's action "kind of freaked [him] out" because he was placed "at a tactical disadvantage[]" when defendant suddenly approached him. Defendant handed Shelton a driver's license and 1 The sergeant later explained he asked both occupants for licenses to avoid having the van towed. 2 A-3154-16T3 said "I'm the one," which the sergeant inferred as meaning defendant was the individual who had driven the other two men to the job site earlier that day. Shelton entered defendant's information into his vehicle's computer, and determined he had an outstanding traffic warrant.2 A search incident to defendant's arrest revealed a black wallet containing a bag of white powder in the billfold section.3 Suspecting the substance was cocaine, Shelton retained the bag as evidence, and returned the wallet and the remainder of its contents to defendant because the items had "no evidentiary value." On cross-examination, Shelton could not recall specific details about the contents of the wallet, but stated, "There was a small amount of money. There were some sort of cards, you know, the usual stuff that would be in a man's wallet." On redirect examination, Shelton explained while he could not recall the particular items in the wallet, he remembered they belonged to defendant. On re-cross examination, the following colloquy between defense counsel and Shelton ensued: [DEFENSE COUNSEL]: . . . if you don't recall what's in the wallet and you didn't document 2 The jurors were not informed defendant had an outstanding warrant, but were instructed his arrest was lawful, and they should not speculate about the basis of his arrest. 3 On appeal, defendant does not challenge denial of his motion to suppress the evidence seized subsequent to his arrest. 3 A-3154-16T3 it any way, how can you say they belong to [defendant]? [SHELTON]: Because I took note, I looked at what was in the wallet. I don't remember specifically. I couldn't tell you [if] there was [a] Monmouth County Library card in there, I couldn't tell you there was, you know, a Visa card. But it was his wallet. His stuff was in there. It was his wallet. I took it out of his pocket. I don't recall exactly what it was, it was five years ago. [DEFENSE COUNSEL]: You took it out of his pocket. So when you took it out of his pocket you assumed it was his wallet, is that correct? [SHELTON]: Yes. It was his wallet, yeah. [DEFENSE COUNSEL]: Because you found it in his pocket? [SHELTON]: Yes. Thirty-five minutes after the jurors commenced deliberations, they found defendant guilty of third-degree possession of cocaine. On February 17, 2017, defendant was sentenced to a one-year, non- custodial probationary term. This appeal followed. On appeal, defendant argues: POINT I THE POLICE OFFICER'S OPINION TESTIMONY IMPROPERLY INVADED THE PROVINCE OF THE JURY AND WAS PLAIN ERROR. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10. (Not Raised Below) 4 A-3154-16T3 POINT II [THE] TRIAL COURT ERRED TO THE DEFENDANT'S PREJUDICE BY GIVING THE INSTRUCTION ON FAILURE TO TESTIFY WITHOUT THE DEFENDANT'S CONSENT. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶ 1. (Not Raised Below) Because defendant did not contemporaneously object to the issues he now raises on appeal, we evaluate both newly-minted arguments under a plain error standard of review. R. 2:10-2; State v. Singleton, 211 N.J. 157, 182-83 (2012). Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result[,]" i.e., if it was "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. Taffaro, 195 N.J. 442, 454 (2008) (citation omitted). A defendant's failure to object leads to the reasonable inference the issue was not significant in the context of the trial. State v. Macon, 57 N.J. 325, 333 (1971). Initially, defendant argues Shelton's testimony concerning defendant's ownership of the wallet was improper opinion testimony because the sergeant "could not remember any specifics about the wallet." As such, defendant contends that testimony runs afoul of the Court's holding in State v. McLean, 205 N.J. 438 (2011). Defendant's argument is misplaced. 5 A-3154-16T3 In McLean, our Supreme Court considered whether an officer's testimony, admitted over defense objections, about the defendant's involvement in drug transactions constituted permissible lay opinion testimony pursuant to N.J.R.E. 701. Id. at 448. After analyzing the differences between expert opinion and lay opinion testimony, the Court concluded the officer's testimony was impermissible lay opinion because it was "an expression of a belief in defendant's guilt" and "presumed to give an opinion on matters that were not beyond the understanding of the jury." Id. at 463. The Court also expressed concern that the testimony was elicited after a question referring to the officer's training and qualifications, thereby underscoring it was expert testimony. Ibid. None of those concerns is implicated here. Shelton did not opine about defendant's guilt over objection on direct examination. Rather, the sergeant responded affirmatively to defense counsel's line of inquiry that he assumed the wallet belonged to defendant because Shelton physically removed it from defendant's person. Defense counsel did not move to strike any of Shelton's answers to the three questions he posed on re-cross examination. We discern no error, less plain error, in permitting Shelton's testimony in response to defense counsel's pointed inquiry. 6 A-3154-16T3 Further, we agree with the State that when a defendant later claims a trial court was mistaken for allowing him to pursue a chosen strategy -- a strategy not unreasonable on its face but one that did not result in a favorable outcome -- his claim may be barred by the invited-error doctrine. See State v. A.R., 213 N.J. 542, 561-62 (2013) ("[T]rial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal . . . ." (citation omitted)). The invited-error doctrine is intended to "prevent defendants from manipulating the system" and will apply "when a defendant in some way has led the court into error" while pursuing a tactical advantage that does not work as planned. Ibid. (citation omitted). The doctrine "is grounded in considerations of fairness," but will not apply automatically if to do so would "cause a fundamental miscarriage of justice." Ibid. (citation omitted). Secondly, defendant claims he was prejudiced because the trial court instructed the jury about his decision not to testify, without seeking his consent. The record does not support his argument. Following the trial court's denial of defendant's motion for acquittal, defense counsel requested the court voir dire defendant regarding his right to testify outside the presence of the jury. 7 A-3154-16T3 During that colloquy, defendant did not ask the judge to refrain from giving the no averse inference charge. Rather, defendant responded, in pertinent part, to the court's inquiry as follows: THE COURT: And you understand that at the appropriate time the [c]ourt will give the jury an instruction that you have a constitutional right to remain silent? THE DEFENDANT: Yes, sir. THE COURT: And that they cannot consider for any purpose or in any manner in arriving at their verdict that you did not testify. You understand that? THE DEFENDANT: Yes, sir. Further, during its final jury charge, the court's instruction regarding defendant's decision not to testify closely tracked Model Jury Charges (Criminal), "Defendant's Election Not to Testify" (rev. May 4, 2009). Defendant did not object to the charge at trial or during the charge conference. Defendant's belated reliance on State v. Smith, 100 N.J. Super. 420, 424-25 (App. Div. 1968), lacks merit. In Smith, the trial court refused the defendant's explicit request for a no adverse inference charge regarding his decision not to testify. Id. at 422. We reversed, holding a defendant is entitled to a jury instruction that his failure to testify does not create a 8 A-3154-16T3 presumption of guilt, when he requests the instruction. Id. at 425. Here, unlike Smith, the trial court did not refuse to give an instruction requested by defendant. Nor did the court give the instruction over defendant's objection. Rather, the judge asked defendant whether he understood the jurors would be instructed about defendant's constitutional right to remain silent, and they could not consider defendant's decision in arriving at their verdict. Defendant politely responded "Yes, sir" to both of those questions. He did not request the court to refrain from giving the instruction after the court expressly advised defendant it would give such a charge. Nor did he object to the instruction at the charge conference or at trial. See Lakeside v. Oregon, 435 U.S. 333, 339 (1978) ("It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect."); State v. McNeil, 164 N.J. Super. 27, 31 (App. Div. 1978). Moreover, pursuant to Rule 1:7-2, a defendant is required to challenge instructions at the time of trial. "Generally, a defendant waives the right to contest an instruction on appeal if he does not object to the instructions as required by Rule 1:7- 2." State v. Adams, 194 N.J. 186, 206-07 (2008). "Where there 9 A-3154-16T3 is a failure to object, it may be presumed that the instructions were adequate." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003) (citing Macon, 57 N.J. 325 at 333). Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised [] was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999). Defendant made no such challenge here. In short, defendant has failed to demonstrate the court's jury instruction on his decision not to testify constituted legal impropriety, which prejudiced his substantial rights. State v. Burns, 192 N.J. 312, 341 (2007). Consequently, there was no error, let alone plain error, capable of producing an unjust result. Adams, 194 N.J. at 207 (citing R. 2:10-2). Affirmed. 10 A-3154-16T3

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Docket No.: a3307-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. MAURICE HIGHLAND
Status: unpublished
Summary:
PER CURIAM This matter returns to us after a remand to the Law Division for an evidentiary hearing on defendant Maurice Highland's petition for post-conviction relief ("PCR"). State v. Highland, No. A-742-15 (App. Div. Oct. 17, 2016). On remand, the court conducted a hearing and denied PCR. On appeal, defendant renews his claim that plea counsel provided incorrect legal advice, leading to his guilty plea to first-degree robbery. Having considered the record developed at the evidentiary hearing, we affirm primarily for the reasons stated in the cogent written opinion of the PCR judge. We add the following remarks. We incorporate by reference the facts and procedural history set forth in our October 17, 2016 sua sponte order. In sum, in April 2011, defendant was one of four participants in a jewelry store robbery in Wyckoff. Pertinent to this appeal, one of the participants was armed with a sledgehammer, which he used to shatter the display cases. Defendant prevented the occupants of the store from leaving while two of his accomplices removed jewelry from the cases. Although he was charged in a fifteen-count indictment, including five counts of first-degree robbery as an accomplice, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1, defendant pled guilty to one count of first-degree robbery as an accomplice, and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). He was sentenced to an aggregate fourteen-year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. During the plea hearing, defendant acknowledged he was extended-term eligible because of 2 A-3307-16T4 his criminal record. Defendant further acknowledged he was relinquishing his right to have defense motions decided by the court, including his motion to dismiss the robbery counts for insufficient evidence to sustain first-degree charges. On October 23, 2013, we denied defendant's direct appeal, which was limited to the adequacy of the factual basis for his guilty plea, and the sentence imposed. State v. Highland, A-5544- 12 (App. Div. Oct. 23, 2013). On June 5, 2014, the Supreme Court denied certification. State v. Highland, 217 N.J. 623 (2014). On June 9, 2015, the judge denied PCR. In our sua sponte order remanding the matter for a hearing we framed the issue raised by defendant as follows: [D]efendant filed a PCR petition asserting ineffective assistance of counsel because of his lawyer's alleged failure to explain the State's burden to prove the sledgehammer was used in a threatening and menacing manner, not simply to break the display case. In his supporting certification, defendant stated: Before entering the guilty plea in this case, I spoke with my attorney about the charges against me. I emphasized to him that I was never in possession of the hammer [and] that it was never my intent that the hammer be used to cause or threaten harm to anyone in the store. The only reason that the hammer was even brought into the store was to break the glass. 3 A-3307-16T4 My attorney told me that it did not matter why the hammer was brought or how it was intended to be used. [Counsel advised] that the hammer itself was a deadly weapon and therefore the robbery was considered a first[-]degree crime. I was never told that [I could argue] to a jury that the crime was only a second[-]degree crime if [my] intent was not to cause harm or threaten to cause harm. [alterations in original.] We, therefore, found defendant had established a prima facie claim of ineffective assistance of counsel, and a hearing was necessary "to determine what his plea counsel advised in regard to the grading of his offense." Specifically, "[i]f defendant's lawyer told him his or his co-defendants' intended use of the sledgehammer was irrelevant, such advice was patently incorrect." See State v. Rolan, 199 N.J. 575, 583 (2009) (recognizing that the actor's intent determines whether the item used is a "deadly weapon" when the item has other legitimate uses). On January 3, 2017, defendant and his former attorney testified at the evidentiary hearing. Their testimony varied sharply regarding plea counsel's legal advice regarding use of the sledgehammer as a deadly weapon. At the time of the hearing, plea counsel was employed by the Public Defender's Office and had been practicing criminal defense 4 A-3307-16T4 law for thirty-five years. He recalled discussing with defendant "whether or not a jury would construe a sledgehammer to be a weapon for purposes of the armed robbery statute." In particular, counsel informed defendant the jury would determine "whether or not they found proof beyond a reasonable doubt that [defendant] and his co- defendants possessed the sledgehammer for more than just smashing the jewelry cases." He testified further, "I'm sure that I told him that it would have to be determined by the manner in which [the sledgehammer] was used primarily and the perceptions of the people who were the victims of the crime." Plea counsel also testified about his discussion with defendant regarding his complicity in the offense based on the circumstances of the case where he went in there with two other people, started smashing . . . the display cases and people were being dragged around the store by their hair and screaming and things like that and being locked in rooms, I thought that there was a good chance that . . . the actions of the other defendants would be imputed to him since they all arrived in the car together and fled together that they were acting together. Conversely, defendant denied discussing accomplice liability with his former attorney. Rather, he claimed "We didn't discuss really anything, he told me that the hammer was a deadly weapon and he told me it did not matter who had the hammer." 5 A-3307-16T4 On January 4, 2017, the trial judge issued a written opinion soundly recognizing defendant's claims lacked merit. Among other things, the judge credited counsel's recollection that "he and the defendant reviewed the discovery and the strength and weaknesses of the defendant's case in detail [as] more credible than the defendant's claim that he was given incorrect legal advice." Our review of a PCR claim after a court has held an evidentiary hearing "is necessarily deferential to [the] PCR court's factual findings based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013); see also State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) ("If a court has conducted an evidentiary hearing on a petition for PCR, we necessarily defer to the trial court's factual findings."). Where an evidentiary hearing has been held, we should not disturb "'the PCR court's findings that are supported by sufficient credible evidence in the record.'" State v. Pierre, 223 N.J. 560, 576 (2015) (quoting Nash, 212 N.J. at 540). We review any legal conclusions of the trial court de novo. Nash, 212 N.J. at 540- 41; State v. Harris, 181 N.J. 391, 419 (2004). "[A] defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his or her right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012). A defendant must prove counsel's performance was 6 A-3307-16T4 deficient; it must be demonstrated that counsel's handling of the matter "fell below an objective standard of reasonableness" and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). A defendant must also prove counsel's "deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. Prejudice is established by showing a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Thus, petitioner must establish that counsel's performance was deficient and petitioner suffered prejudice in order to obtain a reversal of the challenged conviction. Id. at 687; Fritz, 105 N.J. at 52. Here, the testimony adduced at the evidentiary hearing belies defendant's contention that plea counsel failed to render proper advice. We find nothing in the record to support defendant's assertion that counsel failed to advise him about "the State's burden to prove the sledgehammer was used in a threatening and menacing manner, not simply to break the display case." Further, as the PCR judge observed, counsel had filed a motion to dismiss 7 A-3307-16T4 the indictment, which defendant knowingly withdrew when he entered his guilty plea. We see no reason to disturb the PCR court's factual and credibility findings. Those findings are entitled to our deference. State v. Robinson, 200 N.J. 1, 15 (2009). Affirmed. 8 A-3307-16T4

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Docket No.: a3595-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. BRANDON C. JACKSON
Status: unpublished
Summary:
PER CURIAM Defendant Brandon C. Jackson appeals from a November 30, 2016 order denying his petition for post-conviction relief (PCR). We affirm. Defendant was convicted by a jury of the following offenses: second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third- degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1(b)(7); two counts of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); two counts of third- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). After merger, the trial court sentenced defendant to a term of eight years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for second-degree aggravated assault on one victim, and a consecutive term of four years, two years to be served without parole, for third-degree aggravated assault on a second victim. We affirmed defendant's conviction and sentence on direct appeal. State v. Jackson, No. A-0503-12 (App. Div. Oct. 13, 2015). Defendant then filed a PCR petition asserting multiple claims, including an assertion that his trial attorney failed to interview witnesses and failed to effectively negotiate a plea agreement. In an oral opinion issued on November 30, 2016, Judge James M. Blaney rejected all of defendant's PCR arguments. He noted that 2 A-3595-16T2 some of the arguments were bald assertions, with no certifications to support them, some were barred because they were already raised and decided on direct appeal, R. 3:22-5, and others were barred because they could have been raised on direct appeal, R. 3:22-4. On this appeal, defendant raises only one of his PCR claims, in the following point: POINT I: THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE LEGAL REPRESENTATION. (A) THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF. POINT II: TRIAL COUNSEL'S FAILURE TO INTERVIEW DEFENSE WITNESSES PRIOR TO TRIAL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. We affirm for the reasons stated in Judge Blaney's opinion, adding only the following comments. To establish a prima facie case of ineffective assistance of counsel, a defendant must present legally competent evidence rather than "bald assertions." See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant did not meet that standard here. He did not provide certifications from any witnesses whom he claimed his attorney should have interviewed sooner. Moreover, the one witness named 3 A-3595-16T2 in defendant's appellate brief – Chase Ruggiero – testified at the trial. It is clear from the transcript of the first day of trial, March 6, 2012, that defense counsel already knew the gist of Ruggiero's possible trial testimony, because Ruggiero had testified before the grand jury. Defense counsel had the grand jury transcript and described the testimony on the record, in defendant's presence. Further, in his PCR petition, defendant did not certify that he would have accepted a plea bargain, had he known sooner what Ruggiero, or any other witness, was likely to say in trial testimony. And the record would not support such a claim. On March 6, 2012, the trial judge gave defendant one last chance to accept a plea bargain, after defendant heard his attorney's description of Ruggiero's grand jury testimony and the prosecutor's description of the State's evidence. In summary, defendant did not present a prima facie case of ineffective assistance and was not entitled to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992). Affirmed. 4 A-3595-16T2

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Docket No.: a3624-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. TRACEY A. HUSARENKO
Status: unpublished
Summary:
PER CURIAM After her motion for admission into the pretrial intervention ("PTI") program, defendant pled guilty to third-degree fraudulent use of a credit card, N.J.S.A. 2C:39-5(b)(1), and third-degree theft, N.J.S.A. 2C:20-3(a). The trial court sentenced defendant to a five-year probationary term conditioned on the payment of restitution. Defendant appeals from the judgment of conviction entered by the trial court on April 11, 2017. We affirm. We incorporate by reference the pertinent facts set forth in Judge H. Matthew Curry's comprehensive written opinion denying defendant's admission into PTI. In sum, between 2011 and 2014, while working as a bookkeeper at the Land of Make Believe in Hope, defendant committed multiple acts of theft from her employer, including use of the company credit card for personal purchases. The total loss to the company exceeded $60,000. In May 2014, the company reported defendant's theft to the State Police. Two years later, defendant was charged in a Warren County indictment with six counts of third-degree theft and six counts of third-degree fraudulent use of a credit card. Defendant applied for admission into PTI. The program director denied defendant's application, citing a "continued pattern of antisocial behavior" and the victim's opposition. The prosecutor agreed with that determination, likewise denying defendant's admission into the program. In doing so, the prosecutor cited defendant's "continuing pattern of antisocial behavior," the victim's opposition to diversionary treatment, "[t]he needs and interests of the victim and society," and the public need for prosecution outweigh "the 2 A-3624-16T3 value of supervisory treatment." Defendant appealed, and Judge Curry denied defendant admission into PTI in a September 2, 2016 order that accompanied his written opinion. On appeal, defendant presents a single argument for our consideration: POINT I IN REJECTING DEFENDANT'S PTI APPLICATION, THE PROSECUTOR FAILED TO CONSIDER ALL RELEVANT STATUTORY FACTORS, AS SHE IS REQUIRED TO DO. THEREFORE THE TRIAL COURT ERRED IN FAILING TO REMAND THE MATTER TO THE PROSECUTOR FOR FURTHER CONSIDERATION Defendant contends the prosecutor's decision was a patent and gross abuse of discretion, requiring a remand for further consideration. In particular, she claims that, in rejecting her PTI application, the prosecutor primarily failed to consider three of the seventeen factors set forth in N.J.S.A. 2C:43-12(e), as follows: (3) The motivation and age of the defendant; (5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services . . . may be provided more effectively through supervisory treatment; and (6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment. 3 A-3624-16T3 In support of her contentions, defendant argues her personal background supports admission to PTI. Specifically, she was in her mid-thirties at the time she committed the offenses, and had never been arrested previously. Defendant was raised by a physically abusive father, and has been financially independent since the age of eighteen. She is a single mother and sole provider for four children, one with special needs. Defendant thus claims financial pressures led to her committing "a crime of desperation rather than malice or greed." The State counters it considered all relevant factors including those set forth in N.J.S.A. 2C:43-12(e)(3), (5) and (6). Regarding factor three, the prosecutor acknowledged defendant's age and noted she "is not a [nineteen] year old person" who stole from her employer and made a bad decision. Instead, defendant is older, in a "position of trust, [and] knew exactly what she was doing." Defendant's actions were methodical and "increased over the years." In addressing factor five, the prosecutor observed "PTI only allows a [thirty-six]-month limit . . . [whereas] probation can be up to five years." Because defendant was ordered to pay more than $60,000 in restitution, the prosecutor argued a lengthy probationary term afforded a longer opportunity to repay the victim. Further, the prosecutor recognized defendant's actions 4 A-3624-16T3 were not an aberration of her character, but rather "a continuing pattern of criminal conduct." As to factor six, the prosecutor stressed the importance of safeguarding potential future victims from defendant's criminal behavior. Defendant violated the company's trust by taking advantage of her position as a bookkeeper for several years. The prosecutor contended defendant's admission to PTI would allow her to expunge her criminal record and subsequently place future employers at risk of becoming potential victims. Because the commission of the present offenses by a competent middle-aged adult spanned several years, the prosecutor reiterated that the offenses were not an aberration of character. Our Supreme Court has long recognized PTI is a "diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior." State v. Roseman, 221 N.J. 611, 621 (2015) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). Acceptance into PTI depends on an initial recommendation by the criminal division manager and the prosecutor's consent. Ibid. "The assessment of a defendant's suitability for PTI must be conducted pursuant to the Guidelines set forth in Rule 3:28, along 5 A-3624-16T3 with consideration of factors listed in N.J.S.A. 2C:43-12(e)." Ibid. The decision to admit a defendant to PTI, however, is a "quintessentially prosecutorial function." Id. at 624 (quoting State v. Wallace, 146 N.J. 576, 582 (1996)). Therefore, the prosecutor's decision to grant or deny a defendant's PTI application is entitled to great deference. Ibid. (citing State v. Leonardis, 73 N.J. 360, 381 (1977)). A trial court may overrule a prosecutor's PTI determination only when the circumstances "clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion." Id. at 624–25 (quoting Wallace, 146 N.J. at 582). We apply the same standard of review as the trial court, and review its decision de novo. State v. Waters, 439 N.J. Super. 215, 226 (App. Div. 2015). To establish a patent and gross abuse of discretion, a defendant must demonstrate that the prosecutor's decision "(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgement" and that "the prosecutorial error complained of will clearly subvert the goals underlying [PTI]." Roseman, 221 N.J. at 625 (quoting State v. 6 A-3624-16T3 Bender, 80 N.J. 84, 93 (1979)). The prosecutorial decision must be "so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." Wallace, 146 N.J. at 583 (quoting State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985)). Here, Judge Curry correctly found the prosecutor's decision to deny defendant's application for admission to PTI was not a patent and gross abuse of discretion. In doing so, the judge recognized "[d]efendant chose to engage in a pattern of anti- social behavior." He also expressly rejected defendant's argument that a remand is necessary. In particular, the judge noted defendant failed to submit "any mitigating proofs in support of diversion, nor has she shown amenability to probationary supervision by paying the victim restitution." See Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 2 following R. 3:28 at 1290 (2018) (stating that if a defendant chooses to challenge a rejection from PTI, she must allege and present "any facts or materials . . . showing compelling reasons justifying the defendant's admission, and establishing that a decision against enrollment would be arbitrary and unreasonable."); see also Nwobu, 139 N.J. at 246 ("[A] defendant 7 A-3624-16T3 must 'clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI] program was based on a patent and gross abuse of his discretion.'") (emphasis and citation omitted). Further, the judge determined it was "particular[ly] disconcerting . . . that after [defendant] was confronted about the missing money, she continued to engage in antisocial behavior by failing to deposit petty cash in August 2014." The trial court found "[t]his evidences an ongoing pattern of deception by the defendant to take advantage of her employer, which was methodical, required calculation, and involved gradually increased amounts of money as time went by. Such behavior is not a one-time aberration of character." We discern no error in the court's determination. We also note that although the prosecutor did not discuss all seventeen factors in the decision denying PTI admission, the court must "presume that a prosecutor considered all relevant factors, absent a demonstration by the defendant to the contrary." Waters, 439 N.J. Super. at 233 (quoting Wallace, 146 N.J. at 584). Here, defendant did not rebut that presumption. We are therefore convinced that the trial court correctly determined the prosecutor's decision to deny defendant's application for admission to PTI was not a patent and gross abuse of discretion. 8 A-3624-16T3 As such, the prosecutor's decision was not "so wide of the mark sought to be accomplished by PTI" that it requires our intervention. Affirmed. 9 A-3624-16T3

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Docket No.: a4102-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. PETER DICKSON
Status: unpublished
Summary:
PER CURIAM Defendant Peter Dickson, Jr. appeals from an April 20, 2017 order of the Law Division vacating a March 1, 2016 order of the Monroe municipal court dismissing two complaints. We affirm. On October 17, 2015, New Jersey State Trooper Michael A. Heliotis issued two complaints-summonses for motor vehicle violations to defendant. The first complaint charged defendant with driving while intoxicated, N.J.S.A. 39:4-50, and the second complaint charged defendant with driving while license suspended, N.J.S.A. 39:3-40.1 The complaints listed Monroe as the municipality where the infractions occurred. Defendant pleaded not guilty to the Monroe tickets. On January 11, 2016, the Monroe Township municipal court administrator contacted Heliotis, ex parte, explaining the violations occurred in South Brunswick, not Monroe.2 The administrator instructed the trooper to reissue the Monroe tickets from South Brunswick. 1 We refer to these complaints as the Monroe tickets. 2 Substantive communications regarding municipal court matters should be on notice to all counsel and all parties. Ex parte communications of a consequential nature in municipal court should be avoided. 2 A-4102-16T2 On or about January 25, 2016, Heliotis issued two new complaints-summonses from South Brunswick.3 The South Brunswick tickets were identical to the Monroe tickets, except for designating the municipality where the infractions occurred. The date on the South Brunswick tickets was October 17, 2015, although the South Brunswick tickets were actually issued three months later. On February 25, 2016, the Monroe municipal prosecutor signed a "request to dismiss or void complaint" form related to the Monroe tickets. The Monroe municipal prosecutor made a note to the file regarding the dismissal of the Monroe tickets. The note read: On February 24, 2016[,] we spoke with Mr. Dickson's new attorney, . . . and confirmed that this matter is being transferred to South Brunswick by way of an "administrative dismissal" of the E-tickets which inadvertently contained the incorrect municipal code. We further explained that the matter will proceed via the new E-tickets issued by the same trooper containing the correct municipal code. We confirmed with [defense counsel] that this is not a dismissal of the charges or an adjudication of the matter and that it should not be misconstrued as same. On March 1, 2016, the Monroe municipal court judge dismissed the Monroe tickets without prejudice. Counsel were not present 3 We refer to these complaints as the South Brunswick tickets. 3 A-4102-16T2 in court on this date. The Monroe municipal court judge read the note from the Monroe municipal prosecutor into the record. The order dismissing the Monroe tickets checked the box marked "dismissed-other" and stated "reissued tickets to be heard in S[outh] Brunswick." On March 29, 2016, defendant appeared in South Brunswick municipal court. On or about April 12, 2016, defendant moved to dismiss the South Brunswick tickets based upon the statute of limitations. On May 31, 2016, the South Brunswick municipal court judge heard argument on defendant's motion. On June 14, 2016, the South Brunswick municipal court judge entered an order dismissing the South Brunswick tickets based upon the ninety-day statute of limitations, N.J.S.A. 39:5-3(b). On June 28, 2016, the Middlesex County Prosecutor's Office appealed the South Brunswick municipal court judge's June 14, 2016 order to the Law Division. In filing the municipal appeal, the State acknowledged there were proceedings in the Monroe Township municipal court "that could impact upon this appeal." The Law Division judge heard argument on the State's municipal appeal. The State argued the dismissal of the South Brunswick tickets resulted from a "ministerial malfunction" and "technical glitch," for which the State should not be penalized. 4 A-4102-16T2 By order dated April 20, 2017, the Law Division judge vacated the Monroe municipal court's March 1, 2016 order dismissing the Monroe tickets, remanded the case to Monroe municipal court to amend the municipality designation, and directed the Monroe municipal court to transfer the Monroe tickets to South Brunswick. The judge found defendant had adequate and timely notice of the violations based on the Monroe tickets. He also determined defendant was aware, prior to March 1, 2016, that the same violations alleged in the Monroe tickets would be heard in the South Brunswick municipal court. The judge acknowledged "the appropriate procedure for the Monroe [m]unicipal [c]ourt was to amend the [Monroe tickets] and transfer the matter to South Brunswick. However, in an attempt to achieve the same outcome, the Monroe [m]unicipal [c]ourt judge erroneously dismissed the [Monroe tickets] with an instruction to re-file in South Brunswick." The Law Division judge concluded [b]ecause the identical action against defendant remained open under different [tickets] in South Brunswick, the Monroe [m]unicipal [c]ourt dismissal did not start the 20-day clock on filing an appeal of a pre- trial judgment dismissing a complaint. The clock only began to run when the charges were dismissed in the South Brunswick [m]unicipal [c]ourt. Defendant appeals from the April 20, 2017 order of the Law Division, arguing the Law Division judge erred in vacating the 5 A-4102-16T2 Monroe municipal court's March 1, 2016 dismissal order, because: (1) that order was not designated in the State's appeal to the Law Division, and (2) the twenty-day deadline for the State to appeal the Monroe municipal court order expired on March 21, 2016. In reviewing a judgment of the Law Division on a municipal appeal, we apply a sufficiency of the evidence standard. See State v. Ugrovics, 410 N.J. Super. 482, 487 (App. Div. 2009). We must "determine whether the findings made [by the Law Division judge] could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). The Law Division judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Ugrovics, 410 N.J. Super. at 487 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). We review such determinations de novo. Id. at 487-88. In the unusual circumstances of this case, we find no error in the Law Division judge's decision to treat the without prejudice dismissal order of the Monroe municipal court as an interlocutory order, rather than a final order, until such time as the South Brunswick municipal court dismissed the violations against defendant. On this record, we further find that, in the interest 6 A-4102-16T2 of justice, the Law Division judge properly treated the State's appeal as encompassing the orders of both municipal courts. Thus, we affirm the Law Division judge's April 20, 2017 order and direct that the matter be tried before the South Brunswick municipal court within sixty days. Affirmed. 7 A-4102-16T2

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Docket No.: a4115-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. LENNY ROSS
Status: unpublished
Summary:
PER CURIAM After a jury was selected in his trial on an indictment charging him with eleven crimes, including murder and various drug and weapons offenses, defendant Lenny Ross pleaded guilty to first- degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), in exchange for the State's agreement to dismiss the remaining charges and not seek an extended term sentence. The court imposed a thirty-year sentence subject to the requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed his sentence and, after hearing argument on the excessive sentencing calendar, R. 2:9-11, we affirmed. State v. Ross, No. A-4886-13 (App. Div. Oct. 1, 2014) (slip op. at 1). The Supreme Court denied defendant's petition for certification. State v. Ross, 223 N.J. 354 (2015). In a timely-filed post-conviction relief (PCR) petition, defendant alleged, among other things, that trial counsel was ineffective by discouraging defendant from standing trial and encouraging defendant to plead guilty, advising defendant he would receive a fifteen-year sentence if he pleaded guilty to aggravated manslaughter, failing to investigate and present arguments supporting defendant's motion to withdraw his guilty plea, and failing to present evidence supporting mitigating factors under N.J.S.A. 2C:44-1(b) at sentencing. Defendant also asserted his appellate counsel was ineffective by failing to make available arguments on appeal. 2 A-4115-16T4 The PCR court heard oral argument and, in a written opinion, found defendant failed to establish a prima facie case of ineffective assistance of counsel. The court entered an order denying the PCR petition without an evidentiary hearing. Defendant appealed, and presents the following argument for our consideration: POINT I THE TRIAL COURT ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT HAS ESTABLISHED A PRIMA FACIE CLAIM THAT BUT FOR TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE IN PREPARING FOR TRIAL AND MISADVICE ON THE SENTENCE HE WOULD RECEIVE WITH THE OPEN PLEA HE WOULD NOT HAVE PLED GUILTY IN THIS CASE. We have considered the argument in light of the record and applicable legal standards. We affirm. We review the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies to mixed questions of fact and law. Ibid. Where, as here, an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court . . . ." Id. at 421. The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee 3 A-4115-16T4 a criminal defendant "the right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). In Strickland, the Court established a two-part test, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, 466 U.S. at 687. Under the first prong of the Strickland standard, a petitioner must show counsel's performance was deficient. Ibid. It must be demonstrated that counsel's handling of the matter "fell below an objective standard of reasonableness," id. at 688, and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," id. at 687. Under the second prong of the Strickland standard, a "defendant must show that the deficient performance prejudiced the defense." Ibid. A defendant must demonstrate there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In the context of a PCR petition challenging a guilty plea based on the ineffective assistance of counsel, the second prong is established when the defendant demonstrates a "reasonable 4 A-4115-16T4 probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial," State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)), and that "a decision to reject the plea bargain would have been rational under the circumstances," Padilla v. Kentucky, 559 U.S. 356, 372 (2010). A petitioner must establish both prongs of the Strickland standard to obtain a reversal of the challenged conviction. Strickland, 466 U.S. at 687; Nash, 212 N.J. at 542; Fritz, 105 N.J. at 52. A failure to satisfy either prong of the Strickland standard requires the denial of a PCR petition. Strickland, 466 U.S. at 700. Defendant argues the PCR court erred by finding he failed to establish a prima facie case of ineffective assistance of his trial counsel, and by denying his petition without an evidentiary hearing. He contends trial counsel changed his mind about the strength of the State's case following jury selection, encouraged defendant to accept the State's plea offer, advised defendant he would receive a fifteen-year sentence and pressured defendant to plead guilty. In our consideration of a PCR petition, we must "evaluate the sufficiency of a belated claim of misadvice before granting a 5 A-4115-16T4 hearing. In so doing, [we] should examine the transcripts of the plea colloquy and sentencing hearing[.]" State v. Gaitan, 209 N.J. 339, 381 (2012). "Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences." Lee v. United States, 137 S. Ct. 1958, 1967 (2017) (emphasis in original). "Generally, representations made by a defendant . . . concerning the voluntariness of the decision to plead, . . . constitute a 'formidable barrier' which defendant must overcome." State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). "That is so because [defendant's] '[s]olemn declarations in open court carry a strong presumption of verity.'" Ibid. (quoting Blackledge, 431 U.S. at 74.) Defendant's claims are contradicted by the evidentiary record. During his plea colloquy, defendant testified he was not forced by anyone to plead guilty, understood he would be sentenced between ten and thirty years, and that he reviewed the plea papers with his counsel, understood them, and signed them. In the plea form, defendant represented that he understood he would be sentenced on the aggravated manslaughter charge to a term in the court's discretion, that no "promises or representations," other 6 A-4115-16T4 than those listed in the plea form, were made to him by "the prosecutor, [his] defense attorney, or anyone else," and that no threats were made causing him to plead guilty. He also represented he was satisfied with the advice he received from counsel. "[I]t does not appear to us that anything in the record available would support [defendant's] version of" his counsel's alleged misadvice, State v. Santos, 210 N.J. 129, 144 (2012), and the record, in fact, contradicts defendant's assertions. A defendant's "presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Blackledge, 431 U.S. at 74; cf. State v. Jones, 219 N.J. 298, 315 (2014) (requiring a hearing where "the record is entirely compatible with defendant's claim"). Here, defendant's plea colloquy and execution of the plea form undermine and contradict his PCR claims he was misinformed about the sentence he would receive, promised he would receive a fifteen-year sentence, or pressured into pleading guilty. His "[s]olemn declarations in open court [when he entered his plea] carry a strong presumption of verity," Simon, 161 N.J. at 444 (quoting Blackledge, 431 U.S. at 74), and require rejection of his claim that his counsel's advice encouraging him to accept the plea following jury selection was deficient. 7 A-4115-16T4 Moreover, although defendant argues counsel changed his mind about the strength of the State's case following jury selection and encouraged defendant to accept the State's plea offer, defendant does not present any evidence showing counsel's judgment was incorrect, "fell below an objective standard of reasonableness" or constituted an "error[] so serious that counsel was not functioning as the 'counsel' guaranteed . . . defendant by the Sixth Amendment." Strickland, 466 U.S. at 687-88. Thus, defendant failed to demonstrate counsel's alleged belated advice about the strength of the State's case and encouraging him to accept the State's plea offer constituted constitutionally deficient performance under the first prong of the Strickland standard. Defendant also did not present any evidence showing he suffered prejudice from counsel's alleged belated realization about the strength of the State's case, and advice that defendant plead guilty. Defendant's verified petition and supplemental certification supporting his request for PCR are bereft of any showing of a reasonable probability that, but for his counsel's alleged error in belatedly recognizing the strength of the State's case, defendant "would not have pled guilty and would have insisted on going to trial," DiFrisco, 137 N.J. at 457, or that it "would have been rational under the circumstances" to reject the plea 8 A-4115-16T4 offer and proceed to trial, Padilla, 559 U.S. at 372. Thus, defendant failed to satisfy the second prong of the Strickland standard on his claim that his attorney was ineffective by advising him to accept the State's plea offer. Defendant also alleges his counsel was ineffective because the State offered defendant a nine-year plea offer at a "plea negotiation conference," but counsel advised defendant the State did not have a strong case and defendant should proceed to trial. The record does not include a transcript of a plea negotiation conference at which a nine-year plea offer was communicated to defendant, and defendant does not provide any details concerning the offer such as the crime to which defendant would have been required to plead. The only record on appeal showing an offer, other than the plea offer defendant accepted following jury selection, is the court's final pretrial order, which states the State's plea offer included a recommendation that defendant receive a life sentence. In any event, even accepting defendant's claim the State communicated a plea offer of nine years at some point during the proceedings and counsel advised defendant not to accept the offer, defendant failed to sustain his burden of presenting evidence that counsel's advice was erroneous under the circumstances or that his performance was deficient. Absent such evidence, we will not 9 A-4115-16T4 assume counsel's advice "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688; see also State v. Hess, 207 N.J. 123, 147 (2011) (finding there is a "strong presumption" that counsel acted with competence). Defendant's petition and supporting certification also fail to present facts establishing that but for counsel's alleged erroneous advice to reject the putative nine-year plea offer, there is a reasonable probability the result of the proceeding would have been different. Strickland, 466 U.S. at 694. Defendant fails to satisfy Strickland's second prong because his petition and supporting certification are devoid of any facts showing that if his counsel had advised him to accept the alleged nine-year plea offer, he would have done so. See Jones, 219 N.J. at 312 (citation omitted) (finding PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity," the "facts sufficient to demonstrate counsel's alleged substandard performance"). Thus, defendant failed to establish he was prejudiced by his counsel's purported misadvice to reject the alleged nine-year plea offer. We are therefore satisfied defendant failed to sustain his burden under both prongs of the Strickland standard. The PCR 10 A-4115-16T4 court correctly concluded defendant failed to demonstrate a prima facie case of ineffective assistance of trial counsel.1 We also reject defendant's claim the court erred by failing to conduct an evidentiary hearing. A hearing is required when a defendant establishes a prima facie case for PCR under the Strickland standard and the existing record is inadequate to resolve defendant's claim. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). Here, the record before the PCR court provided an adequate basis for its finding defendant did not establish a prima facie case of ineffective assistance of counsel and therefore an evidentiary hearing was not required. 1 Defendant does not argue the PCR court erred by rejecting his contention that appellate counsel was constitutionally ineffective. An issue not briefed on appeal is deemed waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001). Nevertheless, there was no showing before the PCR court that appellate counsel failed to make available meritorious arguments on defendant's direct appeal, and appellate counsel's failure to raise meritless arguments does not render his performance constitutionally deficient. See, e.g., State v. Morrison, 215 N.J. Super. 540, 548-49 (App. Div. 1987) (finding appellate counsel does not have a constitutional duty to assert frivolous arguments requested by defendant); see also State v. O'Neal, 190 N.J. 601, 619 (2007) (holding "[i]t is not ineffective assistance of counsel for defense counsel not to file a meritless motion . . . ."). 11 A-4115-16T4 Defendant's remaining arguments are without merit sufficient to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 12 A-4115-16T4

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Docket No.: a4514-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. BRIAN JENNINGS
Status: unpublished
Summary:
PER CURIAM Defendant Brian Jennings appeals from a May 15, 2017 conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after a de novo suppression hearing on the record in the Law Division. He subsequently pled guilty to DWI and was sentenced to two days in jail that could be served in the Intoxicated Driver's Resource Center, $1000 fine, $6 assessment, $33 court costs, $50 Violent Crimes Compensation Board penalty, $75 Safe Neighborhood Act penalty, $225 DWI surcharge, ten-year driver's license suspension, and an interlock device requirement for one year.1 He appeals from the denial of his motion to suppress, arguing that the police did not have the legal authority to question him when he was seated in his parked car. We affirm substantially for the reasons set forth in Judge James M. DeMarzo's eighteen-page statement of reasons attached to his May 15, 2017 order. In April 2016, two Boonton patrolmen responded to a 9-1-1 call reporting a man parked in a handicap space without the appropriate placard who might be drunk. They found defendant seated in his truck with the engine running. His handicap placard was hanging from the rearview mirror. Defendant told the officers he was waiting for his girlfriend, and the officers quickly left the scene. The officers then discovered that the caller had said she was a resident of the apartment building where defendant was parked and wished to remain anonymous to avoid repercussions. Concerned 1 The judge stated that defendant was previously convicted of DWI in 1979, 1984 and 1989. 2 A-4514-16T2 because the building was known to be a site of prostitution and domestic violence, the officers quickly returned to question defendant further. They parked across the street, walked to his car and began politely inquiring as to why he was there. Defendant said he was waiting for a friend who needed money. He said she had called him on her cell phone but then had lost the phone and needed money to buy a new phone. He didn't know her apartment number, but knew she lived on the fourth floor. He suggested the police go find her. The police suggested he accompany them to find her, which defendant did, but could not locate the correct apartment. Eventually the police arrested him for drunk driving. The suppression issue revolved around whether the police had the right to question defendant the second time and ask defendant to accompany them into the apartment building. Defendant raises the following issues on appeal: POINT I: STANDARD OF REVIEW. POINT II: MR. JENNINGS' DETENTION WAS WITHOUT PROBABLE CAUSE OR EVEN REASONABLE SUSPICION. POINT III: UNDER THE TOTALITY OF THE CIRCUMSTANCES MR. JENNINGS WAS NOT FREE TO LEAVE AND HIS DETENTION WAS NOT JUSTIFIED AT ITS INCEPTION THEREFORE ALL EVIDENCE MUST BE SUPPRESSED AS FRUITS OF THE POISONOUS TREE. "When reviewing a claim with respect to an issue of suppression, a reviewing court must accept the factual findings made by the trial court in analyzing the question, provided those 3 A-4514-16T2 factual findings are 'supported by sufficient credible evidence in the record.'" State v. Smith, 212 N.J. 365, 387 (2012) (quoting State v. Handy, 206 N.J. 39, 44 (2011)). "In considering the legal conclusions to be drawn from those facts, our review is de novo." Id. Here, Judge DeMarzo properly determined that the second encounter began with a "field inquiry that transformed into an investigatory stop leading to an arrest." He found that the officers did not surround or block in defendant's car, so defendant would have felt free to leave the scene. Neither was defendant parked outside his own residence. See State v. Rosario, 229 N.J. 263, 273 (2017) (holding in different circumstances, that "[a] person sitting in a lawfully parked car outside her home who suddenly finds herself blocked in by a patrol car that shines a flood light into the vehicle, only to have the officer exit his marked car and approach the driver's side of the vehicle, would not reasonably feel free to leave."). We agree that, as defendant's voluntary answers to the police questioning became more incredible, the suspicion that defendant may have been waiting to surprise a woman at night for an illegal purpose became more pronounced, and justified the continued police questioning and eventual request for defendant to accompany them to find defendant's female "friend." 4 A-4514-16T2 Affirmed. 5 A-4514-16T2

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Docket No.: a4704-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. RAJAHN BROWN
Status: unpublished
Summary:
PER CURIAM Defendant appeals from the May 8, 2017 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. After an Essex County grand jury returned two indictments charging defendant with a total of four drug-related offenses, he pled guilty to two counts of third-degree possession of cocaine with intent to distribute it, N.J.S.A. 2C:35-5(b)(3). On April 17, 1998, the trial court sentenced defendant to concurrent four- year terms on the two offenses. The remaining two charges were dismissed. More than eighteen years later, on October 28, 2016, filed his petition for PCR. In his petition, defendant alleged that his plea attorney failed to advise him that if he committed federal offenses in the future, he would be subject to enhanced penalties because of his State convictions. Following oral argument, Judge Marysol Rosero rendered a thorough oral opinion denying defendant's petition for PCR. The judge found that an evidentiary hearing was not required because there was no dispute as to any of the material facts underlying defendant's petition. In this regard, the judge accepted defendant's contention that his plea attorney did not tell him that if he continued to commit crimes, he would face enhanced punishment. 2 A-4704-16T1 Citing State v. Wilkerson, 321 N.J. Super. 219, 223 (App. Div. 1999), the judge held that defendant's plea counsel had no duty to give advice concerning the sentencing features of other state or federal laws. Thus, the judge concluded that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a showing that plea counsel's performance was deficient and that, but for deficient performance, the result would have been different. In addition, Judge Rosero noted that Rule 3:22-12(a)(1) precludes PCR petitions filed more than five years after entry of a judgment of conviction unless the delay was "due to defendant's excusable neglect and . . . there is a reasonable possibility that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice[.]" Because defendant's plea attorney was not required to advise him of the enhanced sentencing features of federal criminal law at the time of his plea to the State charges, the judge held that there would be no "fundamental injustice" in applying the five-year time bar to defendant's petition, which was filed more than thirteen years out of time. This appeal followed. On appeal, defendant argues that the trial court erred by: (1) ruling that his petition was time-barred; and (2) denying the petition without an evidentiary hearing. We disagree. 3 A-4704-16T1 The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance of counsel, material issues of disputed fact lie outside the record, and resolution of those issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). To establish a prima facie claim of ineffective assistance of counsel, the defendant must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls] below an objective standard of reasonableness. Second, a defendant must show that the deficient performance prejudiced the defense. A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The prejudice standard is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability simply means a probability sufficient to undermine confidence in the outcome of the proceeding. [State v. O'Neil, 219 N.J. 598, 611 (2014) (citations omitted).] 4 A-4704-16T1 To set aside a guilty plea based on ineffective assistance of counsel, "a defendant must show that (i) counsel's assistance was 'not within the range of competence demanded of attorneys in criminal cases;' and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. See R. 3:22-10; State v. Preciose, 129 N.J. 451, 462 (1992). We discern no abuse of discretion here. Judge Rosero correctly relied upon our decision in Wilkerson, where we held there is "no constitutional requirement that a defense attorney must advise a client or defendant that if he or she commits future criminal offenses that there may be adverse consequences by way of enhancement of the penalty" in connection with a plea agreement. 321 N.J. Super. at 223. Instead, we noted that "generally individuals should be aware as a matter of common sense that a continuing course of antisocial or criminal conduct may lead to increased penalties." Ibid. Because defendant's plea attorney was therefore not ineffective for failing to provide this 5 A-4704-16T1 advice, defendant was unable to meet either of the Strickland prongs. Although Judge Rosero denied defendant's petition on its merits, she also properly found it was time-barred under Rule 3:22-12(a)(1). Because defendant did not present a prima facie case of ineffective assistance, he is unable to demonstrate that applying the time bar would result in a "fundamental injustice." Finally, an evidentiary hearing was not required under the circumstances presented in this case. Such a hearing is only required "when there are disputed issues of material facts related to the defendant's entitlement to PCR, particularly when the dispute regards events and conversations that occur off the record or outside the presence of the judge." Porter, 216 N.J. at 354. Here, there was no dispute as to any material fact relative to defendant's petition. Affirmed. 6 A-4704-16T1

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Docket No.: a4815-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. RAAFIQ LEONARD
Status: unpublished
Summary:
PER CURIAM Defendant Raafiq Leonard appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm. Defendant was convicted by a jury of first-degree carjacking, N.J.S.A. 2C:15-2(a)(2); second-degree conspiracy to commit a carjacking, N.J.S.A. 2C:15-2, N.J.S.A. 2C:5-2(a)(1); third-degree receiving stolen property, N.J.S.A. 2C:20-7(a); first-degree robbery, N.J.S.A. 2C:15-1(b); third-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(a)(1). On October 12, 2007, the sentencing court imposed an aggregate sentence of twenty years, subject to a No Early Release Act, N.J.S.A. 2C:43-7.2, parole ineligibility period of eighty- five percent of his sentence. Defendant appealed and we affirmed his convictions and sentence in a published opinion. State v. Leonard, 410 N.J. Super. 182, 190 (App. Div. 2009). The Supreme Court denied his petition for certification. State v. Leonard, 201 N.J. 157 (2010). The facts underlying defendant's convictions are set forth in our earlier opinion and need not be repeated here. See Leonard, 410 N.J. Super. at 184-86. Defendant filed a PCR petition on May 14, 2012, in which he argued ineffective assistance of trial and appellate counsel. The 2 A-4815-16T1 court dismissed the petition on June 27, 2012, after it found that it was procedurally barred by Rule 3:22-3 because it raised issues that we considered in defendant's direct appeal. Defendant did not appeal from that order. Almost four years later, on January 14, 2016, defendant filed a second PCR petition in which he challenged the first PCR court's dismissal of his petition. A brief and amended petition were submitted later on behalf of defendant. In this brief, defendant argued that he received the ineffective assistance of trial and appellate counsel. He alleged that trial counsel failed to: subpoena defendant's "sole alibi-notice witness" to testify at trial, "object, request a [mistrial], or seek the strongest of curative instructions" in response to the prosecutor's "prohibited comments" to the jury about defendant's unemployment, and request an accomplice liability or lesser-included offense charge. As to appellate counsel, defendant claimed he failed to raise these same issues on appeal. Defendant also argued his second petition should not be procedurally barred because of the "improvident dismissal of" his first petition and "the importance of" his claims. After considering counsel's oral argument on January 23, 2017, Judge John I. Gizzo entered an order on April 21, 2017, denying defendant's petition for PCR without an evidentiary hearing supported by a nineteen-page written decision. In his 3 A-4815-16T1 decision, Judge Gizzo first addressed defendant's argument that his petition should be considered his first because the previous one was dismissed without assigning counsel to him. The judge rejected that argument as he found that the petition was time- barred under Rule 3:22-12 because the "case occurred eleven years ago[,]" and re-litigating the matter "would cause prejudice to the State[.]" Judge Gizzo also concluded that even if he considered defendant's second petition as his first, it was still procedurally barred by Rule 3:22-3 that prevents PCR petitions from being used as substitutes for appeals, Rule 3:22-4 that bars claims that could have been raised on direct appeal, and Rule 3:22-5 that bars the litigation of issues previously raised in prior proceedings. Although Judge Gizzo found that defendant's claims were barred, he considered the merits of defendant's claims and found that defendant failed to establish a prima facie claim of ineffective assistance of either trial or appellate counsel. The judge concluded that counsel's actions were the result of acceptable trial strategy or, even if deficient, would not have changed the outcome of defendant's trial. Accordingly, the judge denied defendant's petition and request for an evidentiary hearing. This appeal followed. Defendant presents the following issues for our consideration in his appeal. 4 A-4815-16T1 POINT I FAILURE OF THE PCR COURT TO GRANT THE DEFENDANT AN EVIDENTIARY [HEARING] ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE COUNSEL. A. FAILURE TO SUBPOENA ALIBI WITNESS. B. FAILURE OF COUNSEL TO TAKE ANY ACTION FOLLOWING THE PROSECUTOR'S IMPROPER AND PREJUDICIAL COMMENTS DURING SUMMATION. C. FAILURE TO REQUEST AN ACCOMPLICE LIABILITY CHARGE. D. FAILURE OF APPELLATE COUNSEL TO RAISE ISSUES ON APPEAL. POINT II THE DEFENDANT'S PETITION WAS NOT PROCEDURALLY BARRED. Defendant filed a supplemental pro se brief in which he presents the following arguments: POINT I THE PCR COURT ERRED BY INVOKING THE PROCEDURAL BARS, WHEREFORE THE DECISION DENYING THE PCR APPLICATION SHOULD BE REVERSED AND REMANDED FOR AN EVIDENTIARY HEARING. POINT II DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL, 5 A-4815-16T1 WHEREFORE THE DENIAL OF THE PCR APPLICATION SHOULD BE REVERSED AND REMANDED. We are not persuaded by any of these arguments, and conclude that they "are without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Gizzo in his comprehensive opinion as we agree that defendant's PCR arguments were procedurally barred and, in any event, he failed to make a prima facie showing of ineffectiveness of either trial or appellate counsel within the Strickland-Fritz1 test and, therefore, an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Affirmed. 1 Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 49 (l987). 6 A-4815-16T1

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Docket No.: a5366-16
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. STEVEN MCCOY
Status: unpublished
Summary:
PER CURIAM Defendant Steven McCoy appeals from the July 19, 2017 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. Defendant pled guilty in connection with two early morning shootings five days apart in 2009. Both victims were seated in a car when shot. Although originally charged with murder and attempted murder, he pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). He received the maximum sentence permissible under the plea agreement: an aggregate sentence of thirty years subject to an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43- 7.2. Defendant argues that his defense attorney was ineffective by not arguing thoroughly in mitigation at sentencing, not providing defendant with the discovery and not negotiating a more favorable plea agreement. We affirm substantially for the thorough and well-substantiated reasons placed on the record by Presiding Judge Marilyn C. Clark on July 19, 2017. After defendant was sentenced, he appealed the length of the sentence. We affirmed by order on September 28, 2012.1 In this appeal, defendant argues: POINT I: THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION. 1 We heard the matter at a sentence only argument panel pursuant to Rule 2:9-11. 2 A-5366-16T1 A. TRIAL COUNSEL FAILED TO INVESTIGATE THE FACTS AND PROVIDE DISCOVERY TO THE DEFENDANT, THEREBY DEPRIVING HIM OF HIS CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE. B. THE PLEA AGREEMENT IS NULL AND VOID BECAUSE THE DEFENDANT WAS PRESSURED BY TRIAL COUNSEL TO ENTER A GUILTY PLEA WITHOUT HAVING SUFFICIENT KNOWLEDGE ABOUT THE FACTS OF HIS CASE. C. TRIAL COUNSEL FAILED TO MAKE A COMPLETE SENTENCING ARGUMENT AND RECORD, THEREBY DEPRIVING THE COURT OF INFORMATION RELEVANT TO THE SENTENCING DECISION. POINT II: THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey . . . ." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992). 3 A-5366-16T1 Claims of constitutionally ineffective assistance of counsel are well-suited for post-conviction review. See R. 3:22-4(a)(2); Preciose, 129 N.J. at 460. In determining whether a defendant is entitled to relief on the basis of ineffective assistance of counsel, New Jersey courts apply the two-prong test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984), and United States v. Cronic, 466 U.S. 648, 658-60 (1984). Preciose, 129 N.J. at 463; see State v. Fritz, 105 N.J. 42, 49-50 (1987). Under the first prong of the Strickland test, a "defendant must show that counsel's performance was deficient." Strickland, 466 U.S. at 687. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Defendant acknowledged under oath at his guilty plea hearing that his defense lawyer had reviewed the "State's evidence" with him. He also expressed his satisfaction with counsel. As Judge Clark noted, at the age of thirty-three, defendant has already accumulated an extensive criminal record. Defense counsel mentioned defendant's four children in his sentencing argument. In spite of defense counsel's efforts, the sentencing court found no mitigating factors and three aggravating 4 A-5366-16T1 factors. See N.J.S.A. 2C:44-1. Judge Clark further discussed how defendant's claim that he shot the victims out of fear due to gang involvement was not a mitigating factor, nor would it have changed the sentence imposed. A PCR evidentiary hearing was not necessary under these circumstances. See Preciose, 129 N.J. at 462 (holding evidentiary hearings are necessary only "if a defendant has presented a prima facie claim in support of post-conviction belief"). Affirmed. 5 A-5366-16T1

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Docket No.: a5498-15
Decided: 2018-06-12
Caption: STATE OF NEW JERSEY v. ABRAHAM ROMAN
Status: unpublished
Summary:
PER CURIAM After a jury trial, Defendant Abraham Roman appeals from his convictions for second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), and third-degree theft, N.J.S.A. 2C:20-3. The court sentenced defendant to the statutory minimum of five years in prison, with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent three year term for theft. On appeal, defendant argues: POINT I: DEFENDANT'S STATEMENT TO THE POLICE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE POLICE INTERROGATORS INITIALLY WITHHELD THE FACT THAT THE VICTIM HAD DIED AS A RESULT OF THE ASSAULT. POINT II: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT UNDER N.J.S.A. 2C:12-1[(a)]. POINT III: THE DEFENDANT'S SENTENCE WAS EXCESSIVE – THE COURT ERRED IN FAILING TO SENTENCE THE DEFENDANT TO ONE DEGREE LOWER. POINT IV: THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL N.O.V. BASED UPON INSUFFICIENCY OF THE EVIDENCE SHOULD HAVE BEEN GRANTED. We find no merit to these arguments and affirm. I. Defendant's case was severed from that of his co-defendant Juan Cruz, who was charged with aggravated assault. We glean the following facts from the trial testimony. Shortly before midnight on November 21, 2012, the night before Thanksgiving, Detective James Szpond of the Elizabeth Police Department was in an unmarked patrol car in the parking lot of a car wash in Elizabeth when he 2 A-5498-15T2 heard something bump into his car, and saw two Hispanic males with a bicycle. Both men got on the bicycle, and Szpond followed them in his car. The men separated, and Szpond stopped defendant, who said he had been in a fight outside a bar. Defendant was holding a cell phone that was not his, and Szpond took it from him. Szpond began calling numbers in the call history of the phone, and eventually made contact with Leslie DeJesus, who said she knew the phone's owner, Victor Vasquez. DeJesus testified that after she received the call, she visited Vasquez and saw that he was limping and had two kitchen knives by his bed. His face was bruised, swollen, and "purplish." DeJesus brought Vasquez to the police station where he identified his phone. Vasquez refused medical assistance and was not interested in further police investigation of the incident. He stayed at DeJesus's house that night, complaining that his head and body were hurting. He refused medical attention because he did not have insurance. The following day, Vasquez went to his aunt's house for Thanksgiving dinner. She testified that he looked "very beaten up." "His lips, his face, his eyes, it was all swollen." She encouraged Vasquez to go to the hospital, but he refused. 3 A-5498-15T2 Stephanie Burgos, the mother of Vasquez's son, testified that they had lived together for nine years, but separated approximately a year before Vasquez died. She typically saw Vasquez two or three times a week, but after Thanksgiving, he did not see her or the children due to injuries to his ribs and migraine headaches. Vasquez's cousin and co-worker testified that after Thanksgiving Vasquez did not go to work because his chest and head hurt. Vasquez was unable to eat, and was losing his balance and falling down. He had injuries to his neck and face. Vasquez refused to see a doctor. Carlos Luis Martinez, a supervisor at Vasquez's work, testified that on the Monday after Thanksgiving, Vasquez did not go to work because he had a headache. The next day, Vasquez went to work, and Martinez saw scratches on his face, and marks under one eye and on his forehead. Vasquez seemed weak, and said he was dizzy and his neck, back and head hurt. He did not return to work. Martinez went to Vasquez's residence on Monday, December 3, to check on him. Vasquez "had a real bad headache, his back was hurting real bad and his neck." Martinez told Vasquez to go to the hospital. On December 11, 2012, Vasquez's dead body was found on the floor of his home. 4 A-5498-15T2 Two days later, detectives interviewed defendant twice. Defendant waived his Miranda1 rights at the outset of both interviews, which were recorded and played for the jury. In his first statement, defendant said that at around 11 p.m. on the night before Thanksgiving he was drinking at a bar and was "a little tipsy." He stepped outside and Vasquez, who was Puerto Rican, made disparaging comments to him about Columbians. Defendant punched Vasquez in the face two or three times. Co- defendant Juan Cruz joined in the fight. After Vasquez left, Cruz said to defendant "come on, let's go get him[,]" and they rode one bike to chase Vasquez. When they caught up, Cruz hit Vasquez twice in the head. Vasquez dropped to the ground, and defendant hit him and said he may have kicked Vasquez. Defendant grabbed Vasquez's cell phone out of his pocket. More than halfway through the first interview, the detectives told defendant that Vasquez had died. Defendant responded: "That's what I thought." The detectives asked why he thought that, and defendant replied that it was because an experienced detective was involved in the investigation. Defendant added, "I really didn’t want to kill the guy." He said, "I never meant to hurt the guy and kill him." 1 Miranda v. Arizona, 384 U.S. 436 (1966). 5 A-5498-15T2 The detectives asked defendant to drive around with them to locate Cruz, who they found in a parking lot. After returning to headquarters, defendant gave another recorded statement after again waiving his right to remain silent. He said that he had not been mistreated by the police. Junaid Shaikh, M.D., the Union County medical examiner, performed an autopsy. Vasquez had contusions on his forehead, abrasions and contusions on his knees, and abrasions on his right hand. The abrasions had started to heal, indicating that Vasquez did not suffer the injuries immediately prior to death. The injury to his forehead "was sustained some time ago." Vasquez had a subdural hemorrhage on the right side and base of his brain and bruising on the right lobe of his brain. The doctor also saw a fresh hemorrhage, which could have been caused in one of two ways; either a new injury or a "re-bleed." Shaikh believed, to a reasonable degree of medical certainty, that Vasquez suffered a re-bleed of the initial hemorrhage because there was no evidence of another serious injury. The doctor explained that a rebleed was not unusual if the individual did not seek medical attention after the initial injury, and concluded the cause of Vasquez's death was "subdural hemorrhage due to blunt head trauma." Shaikh also testified that based on "decompositional changes" to the body, he believed that Vasquez had died two or three days 6 A-5498-15T2 before his body was found. He testified that Vasquez died as a result of injuries sustained approximately fourteen days prior to his death, "plus or minus[] a couple of days." Defendant did not testify or call any witnesses. Defense counsel had retained an expert to counter Shaikh, but the expert was "not prepared to go to trial," and defendant, in consultation with counsel, chose not to call the expert. II. Defendant contends the court should have suppressed his recorded statements, arguing that his waiver of the right against self-incrimination was invalid because the police did not tell him at the outset of the interview that Vasquez had died. When determining whether a suspect's waiver of the right against self- incrimination is knowing, intelligent, and voluntary, we defer to a trial court's credibility determinations and factual findings as long as they are supported by sufficient credible evidence in the record. State v. W.B., 205 N.J. 588, 603 n.4 (2011); State v. Yohnnson, 204 N.J. 43, 64-65 (2009). That standard applies even when those findings are "based solely on video or documentary evidence . . . ." State v. S.S., 229 N.J. 360, 379 (2017). So long as the trial court "applied the correct legal test and its findings are supported by sufficient credible evidence in the record," we will only reverse its determination if "there was an 7 A-5498-15T2 abuse of discretion." State v. Nyhammer, 197 N.J. 383, 409 (2009). Legal issues are reviewed de novo. State v. Shaw, 213 N.J. 398, 411 (2012); W.B., 205 N.J. at 603 n.4. The privilege against self-incrimination is protected by the Fifth Amendment to the Federal Constitution, and has been codified in N.J.S.A. 2A:84A-19, as well as N.J.R.E. 503. Because the privilege is not self-effectuating, "Miranda's prophylactic- procedural safeguards" protect it. State v. Knight, 183 N.J. 449, 461 (2005) (quoting State v. Burris, 145 N.J. 509, 520 (1996)). "[F]or a confession to be admissible as evidence, prosecutors must prove beyond a reasonable doubt that the suspect's waiver was knowing, intelligent, and voluntary in light of all the circumstances." State v. Presha, 163 N.J. 304, 313 (2000). The crux of that inquiry is whether the "suspect's confession is the product of free will," which requires courts to "assess the totality of circumstances surrounding the arrest and interrogation . . . ." Ibid. This test requires a court to consider a suspect's previous encounters with the law and "such factors as 'the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.'" Ibid. (quoting State v. Miller, 76 N.J. 392, 402 (1978)). 8 A-5498-15T2 The circumstances in this case are somewhat similar to those in Nyhammer, 197 N.J. at 383. There, the police asked the defendant if he would meet with them to discuss allegations that his uncle sexually abused his grand-niece, Amanda. Id. at 389- 90. The defendant waived his Miranda rights and agreed to a videotaped interview, admitting that he sexually abused Amanda. Ibid. Only after the interview concluded, did the police inform the defendant of Amanda's allegations against him. Id. at 391. He then gave another videotaped statement in which he described the sexual abuse in detail. Id. at 391-92. The defendant argued that "his confession should be deemed involuntary because, in addition to giving the Miranda warnings, the police must inform a person, at the outset of any questioning, that he is a suspect (if indeed he is a suspect) or read again the Miranda warnings after questioning begins when he becomes a suspect." Id. at 401. The Court rejected the defendant's argument, and found that Nyhammer did not "fall within the limited category of cases in which we have applied a bright-line rule." Id. at 405. The Court applied the totality-of-the-circumstances test, holding that the defendant's confession was properly admitted into evidence because he voluntarily and intelligently waived his rights. Id. at 408-09. 9 A-5498-15T2 Though the defendant was not aware that he was a suspect, the police were not required to supply him "'with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights' because 'the additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature.'" Id. at 407 (quoting Colorado v. Spring, 479 U.S. 564, 576-77 (1987)). In other words, "a valid waiver does not require that an individual be informed of all information useful in making his decision." Ibid. (quoting Spring, 479 U.S. at 576). The same is true here. Defendant was aware of his rights and chose to waive them. While he was not told that the victim had died, that piece of information was not essential to a voluntary and knowing waiver of his rights. Defendant also said he suspected the victim had died before he was informed of the death. Moreover, defendant continued to cooperate with the detectives even after they told him Vasquez had died, going so far as to drive around Elizabeth with them to locate another suspect. The totality of the circumstances demonstrate that defendant's waiver of his rights was knowing, intelligent, and voluntary. Defendant was thirty-one years old. He had a high school diploma and could read and write English. He had three prior criminal convictions, and was familiar with his Miranda rights 10 A-5498-15T2 because he had previously read them and seen them administered on television. Defendant read the warnings aloud and said he understood them before waiving his right to remain silent. Defendant later volunteered that he had "waived [his] rights" and "spoke freely." He was not detained for a lengthy period of time, the questioning was not repeated or prolonged, nor was physical punishment or mental exhaustion involved. In fact, during the interview defendant said that he was not mistreated, and that "there was no pressure." Defendant also quotes from the Court's opinion in State v. O'Neill, for the proposition that "police officers conducting a custodial interrogation cannot withhold essential information necessary for the exercise of the privilege." 193 N.J. 148, 179 (2007). In O'Neill, the police interrogated the nineteen-year- old defendant for ninety-five minutes, eliciting statements linking him to a murder. Id. at 154. The police then advised the defendant of his Miranda rights, and interrogated him for an additional five hours, again eliciting self-incriminating statements. Ibid. At trial, the State sought to admit into evidence only the statements made after the police advised the defendant of his Miranda rights. Id. at 154. When reversing the admission of the statement, the Court explained that the "two-step, 'question-first, warn-later' 11 A-5498-15T2 interrogation is a technique devised to undermine both the efficacy of Miranda and our state law privilege." Id. at 180. The Court, however, refused to adopt a "bright-line rule" prohibiting the practice. Id. at 181. Thus, O'Neill supports the totality-of- the-circumstances test applied by the trial court here. A two- step process was not used here. Based on the totality of these circumstances, defendant's waiver of his right against self- incrimination was properly found to be knowing, intelligent, and voluntary. III. Defendant argues the court erred by failing to instruct the jury on simple assault as a lesser-included offense of aggravated manslaughter. At the charge conference, the parties agreed that the court should instruct the jury on reckless manslaughter as a lesser-included offense of aggravated manslaughter. Defendant sought an instruction on simple assault as an additional lesser- included offense, but objected to the inclusion of an aggravated assault instruction.2 The trial court found defendant's position contradictory. It explained that "the elements are exactly the same, except for the 2 Defense counsel objected because the consequences of an aggravated assault conviction could be "more severe" than a conviction for reckless manslaughter. 12 A-5498-15T2 bodily injury, plain bodily injury for a simple assault, and significant bodily injury, and serious" bodily injury for aggravated assault. The court also addressed this issue in its written opinion denying defendant's motion for a new trial. The court found "there was no rational basis to charge Simple Assault, a mere beating[,] when the evidence supported a finding that the beating resulted in the victim's death." The court added that "the jury did not have to find that any one of [] defendant's blows caused the victim's death" so long as it found that "he and/or the co-defendant beat the victim causing the victim's death." Clear and correct jury instructions are essential for a fair trial because they are "a road map to guide the jury, and without an appropriate charge, a jury can take a wrong turn in its deliberations." State v. Nelson, 173 N.J. 417, 446 (2002) (quoting State v. Koskovich, 168 N.J. 448, 507 (2001)). If the "defendant requests a charge on an offense indicated by the proofs, the charge should be given." State v. Sloane, 111 N.J. 293, 299 (1988). When a trial court denies a defendant's request to instruct the jury on a lesser-included offense, an appellate court must determine "whether the evidence presents a rational basis on which the jury could [1] acquit the defendant of the greater charge and [2] convict the defendant of the lesser." State v. Alexander, ___ 13 A-5498-15T2 N.J. ___, ___ (2018) (slip op. at 19) (quoting State v. Cassady, 198 N.J. 165, 178 (2009)). The Criminal Code directs that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e) (emphasis added). Defendant argues that there was a rational basis to charge the jury on simple assault because "the jury could have found that the defendant punched the victim, that the defendant intended to cause only bodily injury, and that the causal relationship between the assault and the victim's death had not been proven beyond a reasonable doubt." A defendant is guilty of aggravated manslaughter if he or she "recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). The State must prove three elements beyond a reasonable doubt: that the defendant (1) caused the victim's death; (2) did so recklessly; and (3) did so under circumstances manifesting extreme indifference to human life. Model Jury Charge (Criminal), "Aggravated Manslaughter (N.J.S.A. 2C:11-4(a))" (rev. Mar. 22, 2004). Reckless manslaughter requires the State to prove only the first two elements: that the defendant (1) caused the victim's death and (2) did so recklessly. Model Jury Charge (Criminal), 14 A-5498-15T2 "Reckless Manslaughter (N.J.S.A. 2C:11-4(b)(1))" (rev. Mar. 22, 2004). The difference between aggravated and reckless manslaughter "is the difference in the degree of the risk that death will result from defendant's conduct." State v. Curtis, 195 N.J. Super. 354, 364 (App. Div. 1984); see also State v. Breakiron, 108 N.J. 591, 605 (1987) (endorsing our decision in Curtis). If the defendant created only "a mere possibility of death," then he is guilty of reckless manslaughter. Ibid. A defendant is guilty of simple assault if, as relevant here, he "purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1(a)(1) (emphasis added). The State must prove beyond a reasonable doubt that the defendant (1) caused bodily injury, and (2) acted purposely or knowingly or recklessly. Model Jury Charge (Criminal), "Simple Assault (Bodily Injury) (Lesser Included Offense) (N.J.S.A. 2C:12-1(a)(1))" (rev. May 8, 2006). The jury acquitted defendant of aggravated manslaughter, and convicted him of reckless manslaughter, indicating it found that his actions created a possibility, as opposed to a probability, of death. See Model Jury Charge (Criminal), "Aggravated Manslaughter (N.J.S.A. 2C:11-4(a))" (rev. Mar. 22, 2004) (differentiating between aggravated and reckless manslaughter). 15 A-5498-15T2 Defendant argues that "the jury could have found that defendant did not cause, either directly or as an accomplice, the death of the victim." Causation, in the context of manslaughter, requires the State to prove beyond a reasonable doubt that "but for the defendant's conduct, [the victim] would not have died." Model Jury Charge (Criminal), "Aggravated Manslaughter (N.J.S.A. 2C:11-4(a))" (rev. Mar. 22, 2004); see also Model Jury Charge (Criminal), "Reckless Manslaughter (N.J.S.A. 2C:11-4(b)(1))" (rev. Mar. 22, 2004) (stating same). The State also must prove that the victim's death was within the risk of which the defendant was aware. If not, it must involve the same kind of injury or harm as the probable result of the defendant's conduct and must also not be too remote, too accidental in its occurrence, or too dependent on another's volitional act to have a just bearing on the defendant's liability or on the gravity of his/her offense. In other words, the State must prove beyond a reasonable doubt that [the victim's] death was not so unexpected or unusual that it would be unjust to find the defendant guilty of . . . manslaughter. [Model Jury Charge (Criminal), "Aggravated Manslaughter (N.J.S.A. 2C:11-4(a))" (rev. Mar. 22, 2004).] see also Model Jury Charge (Criminal), "Reckless Manslaughter (N.J.S.A. 2C:11-4(b)(1))" (rev. Mar. 22, 2004) (stating same). Whether defendant's actions caused Vasquez's death was the 16 A-5498-15T2 critical issue in dispute, and the jury made its determination as to the cause of death. While defendant contested that the subdural hemorrhage caused Vasquez's death, he did not contest that he and Cruz caused the subdural hemorrhage when they attacked Vasquez. A subdural hemorrhage constitutes more than "pain, illness, or [physical] impairment," and is therefore more serious than simple "bodily injury" under N.J.S.A. 2C:11-1(a). As confirmed by Shaikh's testimony, a subdural hemorrhage is "impairment . . . of the function of [a] bodily . . . organ," namely the brain, and is "serious bodily injury" under N.J.S.A. 2C:11-1(b). There was no evidence to support the notion that defendant caused only "bodily injury" to Vasquez and therefore there was no rational basis for the jury to find defendant guilty of simple assault. See State v. Crisantos, 102 N.J. 265, 280 (1986) (stating that there is no rational basis to support a jury charge if it "is substantiated by no testimony in the record"). IV. Defendant contends that the court should have sentenced him as a third-degree offender, downgrading the reckless manslaughter charge. Prior to sentencing, the State moved for imposition of a discretionary extended term because defendant had three prior felony convictions and was a persistent offender under N.J.S.A. 17 A-5498-15T2 2C:44-3(a). The State recommended that defendant be sentenced to an aggregate term of fifteen years in prison with an eighty-five percent parole disqualifier. Defendant conceded that he was eligible for a discretionary extended term as a persistent offender, but requested the court sentence him as a third-degree offender to three or four years in prison, subject to NERA. The court denied the State's motion for an extended term, because defendant was "extremely remorseful," had "been truthful numerous times," and "it wasn't [his] intent to kill Mr. Vazquez." Defendant argued that the court should find the following mitigating factors: two, that he "did not contemplate that his conduct would cause or threaten serious harm"; three, that he "acted under a strong provocation"; five, that the "victim of [his] conduct induced or facilitated its commission"; nine, that his "character and attitude . . . indicate that he is unlikely to commit another offense"; and twelve, his "willingness . . . to cooperate with law enforcement authorities." See N.J.S.A. 2C:44- 1(b). The court found no mitigating factors. The court found aggravating factors three, the risk that defendant will commit another offense; six, the extent of his prior criminal record and seriousness of the offense; and nine, the need for deterring defendant and others from violating the law. See N.J.S.A. 2C:44-1(a). 18 A-5498-15T2 Although it found that the aggravating factors outweighed the mitigating factors, the court sentenced defendant to the statutory minimum aggregate sentence: five years in prison subject to NERA. Thus, even if the court had formally found mitigating factor twelve, that defendant cooperated with law enforcement, it could not have legally sentenced defendant to a lesser term. The court in its comments made clear that it sentenced defendant leniently due to defendant's cooperation with law enforcement and his deep remorse. The court properly rejected defendant's request to be sentenced as a third-degree offender. Under N.J.S.A. 2C:44- 1(f)(2), if a defendant is convicted of a first- or second-degree offense, and a sentencing court "is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted." Thus, "for a sentence to be downgraded, a two-step test must be satisfied." State v. Megargel, 143 N.J. 484, 495 (1996). The sentencing court must be "(1) clearly convinced that the mitigating factors substantially outweigh the aggravating factors and (2) the interest of justice must demand the downgrade." Ibid. Neither of those requirements was satisfied in this case. 19 A-5498-15T2 We cannot reverse a sentence "unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3)" it "'shock[s] the judicial conscience.'" State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364- 65 (1984)). The trial court followed sentencing guidelines in imposing the most lenient sentence permitted by law. V. Finally, defendant argues briefly that the court erred by denying his motion for a judgment of acquittal based on insufficient evidence. The State presented sufficient evidence that defendant recklessly caused the victim's death by assaulting him and stole the victim's cell phone. This argument is without sufficient merit to require further discussion. R. 2:11-3(e)(2). Affirmed. 20 A-5498-15T2

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Docket No.: a0679-16
Decided: 2018-06-11
Caption: STATE OF NEW JERSEY v. JERMY B. PORTILLO
Status: unpublished
Summary:
PER CURIAM A jury found defendant Jermy B. Portillo guilty of two counts of first-degree robbery, N.J.S.A. 2C:15-1; one count of second- degree robbery, ibid.; third-degree receiving stolen property, N.J.S.A. 2C:20-7; third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, the knife, N.J.S.A. 2C:39-5(d). The convictions arise out of Portillo's knife-point robbery of two pedestrians and his robbery of a third victim, as the three stood outside a friend's house in Elizabeth. Portillo was accompanied by five others, including one who swung a machete in the air near the victims. After merger, the court sentenced defendant to two ten-year prison terms for the first-degree robbery counts, and a five-year prison term for the second-degree robbery count, to run consecutively, for an aggregate term of twenty-five years. Under the No Early Release Act, defendant must serve eighty-five percent of the sentence before parole eligibility. N.J.S.A. 2C:43-7.2. Portillo presents three issues in his appeal from his conviction and sentence. He argues the court erred in denying his suppression motion, which challenged law enforcement's motor vehicle stop that led to his identification by the victims, and the recovery of weapons and stolen items. He also contends it was plain error to permit the prosecutor to state in summation that thirty seconds was sufficient for the victims to identify him and 2 A-0679-16T3 that this error warrants reversal. Portillo also argues the consecutive sentences were inappropriate, and the aggregate term manifestly excessive. We reject defendant's arguments and affirm. I. The principal issue on appeal is defendant's challenge to the police stop. According to the sole witness at the suppression hearing, Elizabeth patrol officer Michael Nicolas, police received a dispatch fifteen minutes before midnight on November 15, 2010, that a group of "six Hispanic males dressed in black sweatshirts or hooded sweatshirts" had participated in a robbery at Washington and Grove. At 1:26 a.m., Nicolas and his partner, while in a marked police car, spied a three-row passenger van parked on the 300-block of High Street. Nicolas saw an Hispanic-looking man standing outside the van, later identified as D.V., a juvenile. Nicolas observed multiple people inside the van. Although he did not initially get a firm count, he could see they all wore dark clothing, some in dark sweatshirts. The driver – who, he later learned, was Portillo – appeared to be Hispanic. They were less than a mile from the robbery scene. There was no other pedestrian or vehicular traffic. Nicolas said it was unusual for anyone to be out in the High Street neighborhood at that hour of the night. 3 A-0679-16T3 Nicolas's partner drove slowly as they closely passed the van, and then executed a U-turn. D.V. starting walking down the block at a "concerned pace." He seemed nervous. He was carrying what appeared to be a dark piece of clothing. The officers then activated their vehicle's overhead lights as they pulled behind the van. Nicolas approached the passenger side and his partner approached the driver's side. At that point, Nicolas counted six men in the vehicle. All appeared Hispanic, and all wore dark clothing. D.V. then reappeared and the officers detained him. As police removed the van's occupants to prepare for the victims' show-up identification, police noticed a black jacket on the seat. Later found to belong to a victim, Nicolas removed it, to make sure it was free of weapons. A victim's debit card fell out. The victims positively identified Portillo as the knife- wielding robber, and D.V. as the possessor of the machete. The victims also testified at trial that they recognized the van as the vehicle they saw circle before the robbery. Police found a knife and a machete in the area where D.V. had walked, before he returned to the van. In denying defendant's suppression motion, Judge Joseph P. Donohue found Nicolas to be credible and believable. After 4 A-0679-16T3 recounting the facts as generally set forth above, Judge Donohue stated: I'm satisfied that the officers had a reasonable, articulable suspicion. The timing of this event 40 minutes after the robbery, the fact that six individuals, that there were multiple individuals, that they . . . appeared to be Hispanic, that they were in the general location in which this occurred, the officer's testimony was that there [were] not too many people out that night . . . the location and the descriptions were close enough that they believed that they may have taken part in the robbery. The judge found the police were entitled to clear the vehicle, and to detain the suspects for identification. II. As point I in his appeal, defendant argues: SEEING SOME HISPANIC MEN ABOUT A MILE FROM THE SCENE OF A ROBBERY IS NOT REASONABLE SUSPICION TO CONDUCT AN INVESTIGATORY STOP. Noting that the Census identified roughly sixty percent of Elizabeth's residents as Hispanic or Latino, defendant contends the police lacked a sufficiently detailed description of the robbers to justify stopping the van and its occupants. On a motion to suppress, we deferentially review the trial court's fact-findings. State v. Elders, 192 N.J. 224, 243-44 (2007). Yet, defendant does not challenge the trial court's fact- finding. Also, the State concedes that the police stopped 5 A-0679-16T3 defendant once they activated their overhead lights. The issue is whether the facts, such as they are, justified the stop. We review that legal issue de novo. State v. Watts, 223 N.J. 503, 516 (2015). Police may conduct a warrantless, investigatory stop of a vehicle and its occupants if they have an objectively reasonable, particularized, and articulable suspicion of criminal activity. See, e.g., State v. Davis, 104 N.J. 490, 505 (1986). "Common sense and good judgment . . . require that police officers be allowed to engage in some investigative street encounters without probable cause." Ibid. Yet, the stop must be based on more than a "police officer's subjective hunch." Ibid. We consider the "totality of the circumstances," ibid., including inferences that a trained law enforcement officer makes, which may elude others. Id. at 501. "Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate . . . ." State v. Nishina, 175 N.J. 502, 511 (2003). The court "balanc[es] the State's interest in effective law enforcement against the individual's right to be free from unwarranted and/or overbearing police intrusions." Davis, 104 N.J. at 504. "No mathematical formula exists" for determining reasonable suspicion. Id. at 505. However, certain principles are evident 6 A-0679-16T3 from our caselaw. A "non-particularized racial description of the person sought" is not enough to justify a stop. State v. Shaw, 213 N.J. 398, 411, 421 (2012) (stating police lacked requisite level of suspicion to detain man based on "the most generic description . . . [of] a black male"); State v. Maryland, 167 N.J. 471, 485 (2001) (stating that "an investigatory stop predicated solely on race would be . . . defective"); State v. Caldwell, 158 N.J. 452, 460 (1999) (suppressing evidence from a stop based on tip from informant that an individual described merely as "'black male in front of 86 Butler Street'" was engaged in criminal activity). Yet, a racial description, coupled with other particularized facts, may suffice. In State v. Coles, 218 N.J. 322, 328 (2014), a robber was described as a black male wearing black pants and a gray hooded sweatshirt who used a weapon. The Supreme Court upheld the initial stop of a man who met that description two blocks from the crime scene within minutes of the robbery. Id. at 329, 345. Police were also justified in prolonging the stop to ascertain the suspect's identity after he appeared nervous and gave implausible answers to questions. Id. at 329, 345-46. Notably, the Court found it reasonable to detain the individual for a show-up, by which he would be on his way if exonerated. Id. at 345. Similarly, in State v. Todd, 355 N.J. Super. 132, 136-38 (App. Div. 2002), 7 A-0679-16T3 we sustained a stop of a burglary suspect who matched the general description of a man of average height and weight in light-colored clothing. The man was reported running from the scene and the suspect was found within a few blocks, soon after the crime. Id. at 138. He was visibly nervous and sweating, and he gave implausible answers to an officer's questions. Id. at 136, 138. Were the stop in this case based solely on a crime victim's non-particularized description of an Hispanic male in an Hispanic- Latino majority city, the stop unquestionably would have been defective. However, in stopping to investigate, the police relied on much more in forming a reasonable, particularized and articulable suspicion that Portillo and his cohorts had engaged in criminal activity. The police did not stop a single man matching a racial or ethnic description. They were looking for a group of six persons, all male, all of the same ethnic group, all wearing the same dark clothing. Statistically speaking, coming across such a grouping, even where the majority of the community is Hispanic-Latino, is much less likely than finding a single person matching that description. Although Nicolas did not specifically count six such individuals before executing the stop, he identified a group of men, all with matching clothing, two matching the specified ethnic group, and none of a non-matching group. See United States v. 8 A-0679-16T3 Arthur, 764 F.3d 92, 98 (1st Cir. 2014) (noting that the number of suspects was an acceptable factor in finding reasonable suspicion). Furthermore, police came upon the van within forty-five minutes of the robbery, within a relatively short distance from the crime scene. See Coles, 218 N.J. at 329, 345; Todd, 355 N.J. Super. at 138 (stating that proximity in time and distance to crime are factors in forming reasonable suspicion). The van was also conspicuously out of place. Nicolas testified that pedestrian and vehicular traffic on High Street was unusual in the early morning hour when the stop occurred. See State v. Valentine, 134 N.J. 536, 547 (1994) (noting significance of a defendant's activity that was "entirely inconsistent with time of day"). D.V. also acted nervously, walking off at a "concerned pace" while carrying clothing that matched the victims' description. See Elders, 192 N.J. at 250 (stating that nervousness may be considered in determining whether reasonable suspicion exists); State v. Pineiro, 181 N.J. 13, 26 (2004) (stating that flight "in combination with other circumstances . . . may support reasonable and articulable suspicion"). Notably, the initial investigation – to ascertain the precise number of occupants, and whether they all matched the description the victims provided – was destined to be exceedingly brief. It 9 A-0679-16T3 required a stop only long enough to enable the officers to approach the vehicle, and identify the occupants' gender, number, clothing, and ethnic background. Balancing the needs of law enforcement against the nature of the intrusion, the initial stop was reasonable. And when the police confirmed a match with the victims' description, along with the other circumstances, they were justified in prolonging the stop, and removing the occupants to await a show-up identification. In sum, we discern no error in the trial court's order denying the motion to suppress. III. As his second point, defendant contends: THE PROSECUTOR'S MISSTATEMENT OF THE LAW SURROUNDING EYEWITNESS IDENTIFICATIONS CONFUSED THE JURY AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTION. (Not raised below). Defendant takes issue with the prosecutor's argument that thirty seconds was sufficient time to enable the victims to identify Portillo. We are unpersuaded. The prosecutor responded to the defense argument that the victims lacked sufficient time to make the show up identification. Defense counsel argued: "Thirty to 60 seconds to view each individual, ten to 15 feet away. Thirty to 60 seconds to view each individual that – who were ten to 15 feet away. At night 10 A-0679-16T3 with spotlights, 30 to 60 seconds." In her summation, the prosecutor stood silent while she allowed thirty seconds to elapse and then argued, "The 30 seconds is up. Ladies and gentlemen, 30 seconds is more than enough time to be able to look at somebody, stare at them . . . remember their face an hour later, remember their face five years later. It's more than enough time." The prosecutor did not mislead the jury, nor did the prosecutor purport to instruct the jury, as to the relevant and appropriate factors in assessing an identification. The court correctly instructed the jury in that regard, adhering to the post-Henderson model instruction. See State v. Henderson, 208 N.J. 208 (2011); Model Jury Charge (Criminal), "Out-of-Court Identification Only" (2012). The prosecutor appropriately responded to defense counsel's arguments. State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div. 2007), aff'd on other grounds, 195 N.J. 493 (2008); State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000). We discern nothing improper in the prosecutor's argument. As a result, it fell far short of the egregious prosecutorial misconduct that deprives a defendant of a fair trial. See State v. Frost, 158 N.J. 76, 83-84 (1999). 11 A-0679-16T3 IV. Lastly, defendant challenges his twenty-five-year aggregate sentence, consisting of three consecutive terms for each of the three robbery counts, involving three separate victims. He argues: CONSECUTIVE SENTENCES WERE INAPPROPRIATE FOR THIS SINGLE ROBBERY INCIDENT, AND THE TWENTY- FIVE YEAR SENTENCE IS MANIFESTLY EXCESSIVE. (Not Raised Below). Although the robberies occurred during one episode, they involved discrete threats. According to the evidence at trial, Portillo pressed a knife against the ribcage of one victim, as he demanded that he empty his pockets. When another victim took back his property from one of Portillo's cohorts, who was unarmed, Portillo went over to that victim, placed the knife against his ribcage, and demanded that he surrender his belongings. The jury found that Portillo did not threaten the third victim with the knife. Noting that this was Portillo's first conviction, the court found that aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring the defendant and others from violating the law"), was in equipoise with mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) ("[t]he defendant has no history of prior 12 A-0679-16T3 delinquency or criminal activity").1 The court imposed sentences at the bottom of the range for each robbery count. However, the court ordered that the terms be served consecutively. We are satisfied that the court correctly applied the guidelines for imposing consecutive terms under State v. Yarbough, 100 N.J. 627 (1985), as amended by N.J.S.A. 2C:44-5(a). See State v. Cassady, 198 N.J. 165, 182 (2009). The court implicitly recognized that the robberies were related and close in time. See Yarbough, 100 N.J. at 644 (citing as factors in considering consecutive terms whether the "crimes and their objectives were predominantly independent of each other" and whether "the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior"). In imposing consecutive terms, the court principally relied on the fact that the crimes involved three separate victims. Ibid. (citing as a factor in considering consecutive sentences whether "any of the crimes involved multiple victims"). Furthermore, as to two victims, Portillo engaged in separate and discrete criminal acts. Ibid. 1 At one point, the judge misspoke and referred to aggravating factor seven and mitigating factor nine. That mistake was repeated in the judgment of conviction. 13 A-0679-16T3 (citing as a factor whether "the crime involved separate acts of violence or threats of violence"). Consecutive sentences for multiple victims in multiple counts are consistent with the oft-stated principle that "there can be no free crimes in a system for which the punishment shall fit the crime." Id. at 643; see also State v. Carey, 168 N.J. 413, 429- 30 (2001) (stating, in context of vehicular homicide cases, "the multiple-victims factor is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms when multiple deaths or serious bodily injuries have been inflicted upon multiple victims"); State v. Molina, 168 N.J. 436, 442 (2001) (approving consecutive sentences in vehicular homicide case where the only Yarbough factor supporting consecutive sentences is the presence of multiple victims, stating "crimes involving multiple victims represent an especially suitable circumstance for the imposition of consecutive sentences"). We also discern no merit to defendant's reliance on Miller v. Alabama, 567 U.S. 460 (2012) and State v. Zuber, 227 N.J. 422 (2017), addressing considerations applicable to sentencing juveniles. Portillo was not a juvenile. He committed the robberies when he was eighteen years old. Given our deferential standard of review, see Cassady, 198 N.J. at 180, we discern no abuse of discretion, departure from 14 A-0679-16T3 sentencing guidelines, or sentence that shocks the judicial conscience and warrants correction. We therefore affirm the conviction and sentence, but remand for correction of the judgment of conviction to reflect the aggravating and mitigating factors as found by the court. We do not retain jurisdiction. 15 A-0679-16T3

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Docket No.: a1007-16
Decided: 2018-06-11
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.C.
Status: unpublished
Summary:
PER CURIAM Defendant C.C. (the mother) appeals from an October 20, 2016 order dismissing the within child protective services matter, filed and litigated pursuant to N.J.S.A. 30:4C-12. The Family Part judge terminated the matter when the Division of Child Protection and Permanency (the Division) ceased providing services to the mother, and the judge determined defendant S.J. (the father) was able to provide an adequate home for defendants' daughter, G.M.C.-J. (Gwen).1 We reverse and vacate the dismissal order, and remand for further proceedings. 1 We use initials and pseudonyms to protect the identity of those involved. 2 A-1007-16T1 I At the time of Gwen's birth in July 2015, the mother advised the hospital staff she was addicted to and used heroin during the pregnancy. There was no evidence the baby was harmed as a result, but the hospital staff notified the Division of her use of heroin during the pregnancy. During its investigation that immediately followed, the Division learned the mother lived with the baby's maternal grandmother (the grandmother) and was prepared to care for Gwen with the grandmother's assistance. The mother was also interested in substance abuse treatment and, while still in the hospital, successfully completed an inpatient detoxification program and entered into a methadone treatment program. The mother and the father signed a Division safety protection plan, the terms of which included that the baby was permitted to live with the mother in the grandmother's home, as long as the mother's contact with the baby was supervised by the grandmother or the father. The plan also provided the mother was to engage in substance abuse treatment. To ensure the mother received ongoing services, the Division filed an order to show cause and a verified complaint against both defendants seeking care and supervision of the baby pursuant to N.J.S.A. 30:4C-11 and N.J.S.A. 30:4C-12. At the 3 A-1007-16T1 initial hearing on the order to show cause, the parties, represented by counsel, appeared and consented to the Division having care and supervision of their child. At the conclusion of the hearing, defendants entered into a consent order, dated July 31, 2015. The principal terms of the consent order were that: (1) the parties share joint legal custody, with physical custody placed with the mother; (2) the mother have only supervised contact with Gwen; (3) the grandmother and the father act as the designated supervisors; (4) the father have liberal parenting time; and (5) the mother engage in substance abuse treatment and individual therapy. The return of the order to show cause was on September 24, 2015. It was undisputed the parties were abiding by the July 31, 2015 order, the terms of which were placed into an order dated September 24, 2015. The new order included a provision the father was to care for Gwen when the grandmother worked (she worked five days a week), and the Division was to arrange for the mother to have psychological and psychiatric evaluations. On January 7, 2016, the parties appeared for a summary hearing. The Division reported the mother was complying with services and her drug screens had been negative since she commenced treatment the previous July. The judge entered an order continuing the terms of the previous order. In addition, 4 A-1007-16T1 because the psychological evaluation recommended such services, the mother was ordered to attend parenting classes and a MICA2 program. As a result of the father filing an application for an emergent hearing, on April 4, 2016, counsel and all parties, with the exception of the mother appeared in court. The Division reported the father had learned the mother had relapsed and entered into an inpatient facility, believed to be in Pennsylvania. The father sought an emergent hearing for the purpose of obtaining physical custody of the baby. It was not known by those assembled in court where the mother was located. The Division had endeavored to find her before the hearing but were unsuccessful. The mother’s attorney stated she had been out of the office the previous week (April 4, 2016 was a Monday) and had only learned of the emergent hearing earlier that day. She informed the court the mother was unaware of the hearing. Despite such fact, the court proceeded with the hearing in her absence. Because the mother had relapsed, was unavailable to care for Gwen, and the father was a suitable caretaker of the baby, the judge transferred physical custody of the child to the 2 MICA stands for "mentally ill chemically addicted." 5 A-1007-16T1 father; defendants continued to share joint legal custody of the baby. The judge also ordered the mother's parenting time be supervised by the Division at its offices and that she continue with treatment previously ordered. On July 7, 2016, all counsel and the parties, including the mother, appeared for a compliance review hearing. The Division reported the mother was doing well. She had been in the inpatient facility from March 28, 2016 to April 10, 2016 and, since leaving such facility, had been engaging in an intensive outpatient (IOP) MICA treatment in Pennsylvania, a six-day per week program she had discovered on her own. The mother testified she had three more months of treatment in the IOP program. In a "summary finding order" entered that day, the judge found the Division's continued care and supervision of the matter was warranted because of the mother’s progress and participation in treatment. At the conclusion of a summary hearing held on October 20, 2016, the judge terminated the litigation. At that time, it was reported that the mother had been successfully discharged from the IOP MICA treatment program in Pennsylvania, and was doing well in a "step-down" IOP in New Jersey, which she had selected without the Division's assistance. She anticipated completing the step-down program in mid-November. 6 A-1007-16T1 The Division argued the litigation should be dismissed because it was no longer providing any services for the mother, who was successfully securing any necessary treatment on her own. Further, defendants were privately arranging for the mother's parenting time between themselves, removing the mother’s need to have the Division supervise her visitation. In addition, there was evidence the father was ably caring for the child. The mother wanted the matter to remain open so she could make an application for the return of Gwen to her physical custody when her treatment ceased. However, the judge found it appropriate to terminate the litigation for the reasons advocated by the Division, and noted the mother could file a non-dissolution (FD) action in order to seek a change in the custodial and parenting time arrangement when she was ready. II On appeal, the mother contends the judge erred when he terminated the matter without ordering a hearing on custody and parenting time, thus providing her "an opportunity . . . to be returned to status quo ante[.]" The mother also contends the judge failed to conduct a "proper evidentiary hearing" on October 20, 2016 before terminating the litigation. 7 A-1007-16T1 We decline to address the latter contention because it was not raised before the Family Part judge, a fact the mother readily concedes. We do not consider issues that were not properly presented to a trial judge, "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). As neither consideration is present, we do not address this particular question. N.J.S.A. 30:4C-12 authorizes the Division to provide services to children in need. N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 14 (2013). Here, the primary relief the Division sought and initially provided was referring the mother to services to help her overcome her substance abuse, so that she would parent her child. The Division also effectuated a custodial and parenting time arrangement to enable the mother to parent Gwen, albeit supervised. As stated, when the mother relapsed and entered into a rehabilitation hospital, the court placed the baby in the father’s physical custody at the conclusion of the emergent hearing. In our view, it was error to have transferred physical custody of the baby before the mother had notice of the hearing 8 A-1007-16T1 and, in particular, the father’s request for a transfer of custody. The mother’s right to due process was not protected in this case. A parent has a constitutional right to due process when a change in custody of his or her child has been requested, including the right to adequate notice and a fair opportunity to be heard with respect to such issue. See Div. of Youth & Fam. Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div. 2004) (citing Matter of C.A., 146 N.J. 71, 93-94 (1996)). A proceeding to terminate a parent's right to the physical custody of a child is of sufficient importance such that it should not proceed unless the parent has been noticed of the proceeding or the parent has waived the right to be present. See Test v. Test, 131 N.J. Eq. 197, 200-01 (E. & A. 1942) (requiring adequate notice when custody of children is to be determined). The mother’s attorney had been away the week preceding the hearing and learned of it only hours before it commenced. She advised the court the mother was not yet aware of the proceeding, yet the judge did not take any steps to facilitate the mother’s presence. The hearing could have been delayed a few days or even longer to provide the attorney an opportunity to locate and communicate with the mother about the father’s request for a 9 A-1007-16T1 change in custody. In the interim, Gwen could have been temporarily placed in the father’s physical custody. If the mother was noticed of the hearing but unable to leave the inpatient facility, she may have been able to appear at the hearing by telephone. At the least, the mother could have consulted with and enabled counsel to adequately represent her interests at the hearing. The mother is not seeking to vacate the order that transferred physical custody or continued such custody of Gwen in the father. She is merely seeking a hearing so she can show why she is entitled to regain custody. In light of the fact Gwen was removed from the mother’s physical custody without due process, it is fitting she have that opportunity to correct the wrong that occurred here. Therefore, the dismissal order is reversed and matter remanded for an evidentiary hearing on the issue whether the mother is entitled to physical custody of Gwen. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 10 A-1007-16T1

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Docket No.: a1026-15
Decided: 2018-06-11
Caption: BENEDICT FEJOKU v. PRUDENTIAL LIFE INSURANCE COMPANY OF AMERICA
Status: unpublished
Summary:
PER CURIAM These related appeals2 by two plaintiffs in this legal malpractice matter arise out of the broader setting of employment discrimination claims brought by them individually and by over 300 other employees against Prudential Life Insurance Company of America. Both plaintiffs ceased being represented by the law firm ("the Leeds firm") that had initially represented them, after learning the full details of a fee arrangement with Prudential that rewarded the law firm for steering its clients into alternative dispute resolution processes. Ultimately, with the assistance of substitute counsel, and after moving in federal court to set aside an unfavorable arbitration ruling, plaintiff Linda Guyden obtained a monetary settlement from Prudential. Guyden then sued the Leeds firm and three of its partners in the Law Division, alleging various acts of malpractice and malfeasance. Plaintiff Benedict Fejoku, who procured no settlement or favorable outcome on his own discrimination claims, sued the Leeds firm on similar grounds, naming Prudential and others as co-defendants. The two lawsuits 2 We consolidate these appeals solely for purposes of this opinion. 3 A-1026-15T2 were administratively assigned to the same trial court vicinage, along with comparable lawsuits by other former Leeds clients. In successive rulings, the trial court granted summary judgment to all defendants, dismissing the lawsuits of both Guyden and Fejoku. Fundamentally, the court concluded that, by discontinuing the services of their original law firm (Leeds) long before their cases had ended, plaintiffs extracted themselves from the sphere of any initial wrongdoing or malpractice, and thus could not demonstrate proximate causation of compensable injury. The court made other various rulings, some of which are challenged in the present appeals. For the reasons that follow, we uphold the trial court's rulings, except we remand for further proceedings solely with respect to Guyden. On remand, the court shall develop the record definitively and resolve the critical factual question of whether Prudential, before settling, offered Guyden the opportunity to set aside the arbitration award and allow her to litigate her discrimination claims in court. If such an offer was never made, then the court's dispositive finding of a lack of sufficient proof of proximate causation as to Guyden was mistaken, and summary judgment shall be vacated in her case. If the court on remand finds there is a genuine factual dispute as to whether such an 4 A-1026-15T2 offer was extended, that factual question shall be resolved by a jury. The summary judgment issued against Fejoku, however, is affirmed. We also uphold the trial court's other challenged rulings. I. In 1999, the Leeds firm entered into a written agreement with Prudential to attempt to have clients agree to take part in Alternative Dispute Resolution ("ADR") processes of mediation and arbitration, in lieu of litigating their claims in court. 3 Prudential agreed to pay the Leeds firm a non-refundable $5 million in counsel fees, consisting of a $3.5 million advance, with an additional $1.5 million to be paid to the firm by August 1999 or when the first one hundred claims settled. According to plaintiffs, the Leeds firm did not tell them contemporaneously the terms of this fee arrangement; they only knew Prudential would be paying the fees of their lawyers as part of the ADR process. Guyden is an African-American certified public accountant who was hired by Prudential in September 1997. She eventually resigned in March 2001. She claims she was paid a lower salary, given a 3 This agreement has already been described in this court's related published opinion in Lederman v. Prudential Life Ins. Co., 385 N.J. Super. 324, 334 (App. Div. 2006), which we incorporate by reference here. 5 A-1026-15T2 lower bonus, and denied promotions three times because of her race, in comparison with non-minority employees who allegedly received better treatment. Fejoku is a native of Nigeria who was hired as a staff accountant by Prudential in 1992. He claims he was denied promotions, harassed, and had to work in a hostile work environment due to his race. Both Fejoku and Guyden, and many other claimants, met at Leeds' New York offices in May 1999 and signed an agreement which specified their claims would be pursued exclusively through an ADR process. Eventually the Leeds firm's representation of Guyden and Fejoku discontinued. Guyden retained new counsel, who filed suit against Prudential in federal court. The matter was referred to arbitration pursuant to the ADR agreement. After several days of hearings, the arbitrator found Guyden had not proven discrimination. Guyden moved to set aside the arbitration result. Federal District Judge Katharine S. Hayden did not resolve the merits of the motion, but instead granted Guyden discovery concerning her claim that she had been fraudulently induced to sign the ADR agreement. Thereafter, Guyden mediated with Prudential a settlement, the terms of which are confidential. Meanwhile, Fejoku opted not to 6 A-1026-15T2 participate in the ADR process. He was terminated from his employment by Prudential and obtained no recovery. Guyden and Fejoku filed legal malpractice cases against the Leeds firm and several of its partners, which were consolidated in the Law Division with those of similar claimants. Fejoku named Prudential as a co-defendant. Among other things, plaintiffs contend: the Leeds firm had a conflict of interest; it improperly engaged in the practice of law in New Jersey without being admitted in this State; it wrongfully failed to disclose to them in a timely manner the details of the $5 million fee arrangement; and the fees should be disgorged as a wrongful payment made to induce a breach a fiduciary duty. They also challenge the allocation of legal fees charged by a Special Discovery Master whom the trial court appointed. The trial court granted summary judgment and dismissed plaintiffs' claims largely for lack of causation, finding both Guyden and Fejoku had extricated themselves from the Leeds firm's initial representation and thereafter proceeded with their discrimination claims on their own. They contend those and other rulings against them were erroneous, and that their lawsuits should be reinstated. They also contest the court's approval of the fees paid to the Special Discovery Master, who is now deceased. 7 A-1026-15T2 II. We first address the dismissal of Guyden's claims. In doing so, we focus on the trial court's pivotal finding that Guyden extricated herself from the Leeds firm's initial representation and thus cannot prove that she proximately suffered any harm from its alleged breaches of duty. As we consider the issues posed on summary judgment, we view the record in a light most favorable to Guyden as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also W.J.A. v. D.A., 210 N.J. 229, 238 (2012). Although her complaint identifies several different legal theories, the gravamen of Guyden's lawsuit against the Leeds firm is an action for legal malpractice. To prevail on a legal malpractice claim, a plaintiff must establish the existence of an attorney-client relationship creating a duty of care by the attorney, breach of that duty, and proximate causation of damages. Jerista v. Murray, 185 N.J. 175, 190-91 (2005). A plaintiff must demonstrate proximate cause by showing his or her former counsel's negligent conduct was a "substantial contributing factor" in causing damages. Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982). Where, as here, a legal malpractice case arises out of alleged failures by a plaintiff's former litigation counsel, the plaintiff 8 A-1026-15T2 must establish a likelihood of success of the so-called "case- within-a-case." Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996). Specifically, plaintiffs here must show in their malpractice lawsuits that they would have prevailed, or otherwise obtained a favorable outcome in the cases that their former attorneys handled, had counsel not deviated from professional standards of care. Ibid.; see also Jerista, 185 N.J. at 191. So here Guyden must prove not only that lawyers at the Leeds firm breached their duties to her, but also that she would have obtained a larger recovery on her underlying discrimination claim against Prudential if those breaches had not occurred.4 Guyden alleges the Leeds firm breached its duties to her in several respects. Principally, she claims the law firm acted improperly in advising her to enter into the ADR agreement with Prudential without disclosing to her that it had a financial incentive under its fee arrangement with Prudential to steer its clients into ADR. Guyden claims the firm had a conflict of interest by virtue of the fee arrangement, which she characterized as a "commercial bribe" paid to induce the law firm's breach of fiduciary duty to clients. She further contends the firm deviated 4 The amount of Guyden's settlement is confidential. Any verdict in her favor in the legal malpractice case would need to be molded accordingly to treat the settlement as an offset. 9 A-1026-15T2 from the standards of care for lawyers who represent clients with employment discrimination claims, by advising her to give up her right to litigate those claims in court, where she would have had broader discovery, the right to a jury trial in a public forum, and the potential to recover punitive damages. She also asserts the Leeds firm, which is based in New York, engaged in the unauthorized practice of law in New Jersey without being admitted to practice here. To support her contention of proximately-caused injury, Guyden tendered an expert report from a New Jersey attorney who frequently represents plaintiffs with employment discrimination and wrongful discharge claims. The expert opined that Guyden was placed at a substantial disadvantage by forfeiting her rights to litigate in court and limiting herself to the ADR process. The expert maintained that it is widely known that business employers generally prefer to keep employment cases out of court and to have such matters instead resolved in private binding arbitration and that, conversely, plaintiffs' lawyers resist doing so for legitimate tactical reasons. The expert supported Guyden's contention that she would have had more leverage against Prudential if her claims were litigated in court, and the opportunity to recover higher damages, including punitives, if she proved her claims before a jury. 10 A-1026-15T2 The expert calculated Guyden's total wage loss at over $800,000, which he opined would be potentially enhanced by a jury award in the range of $125,000 to $250,000 for "personal hardships." He estimated Guyden, if she proved Prudential's liability for employment discrimination, would be awarded total compensatory damages of approximately $1 million, plus or minus $150,000. In addition, the expert projected that Guyden would have recovered three to five times that sum in punitive damages, if she established the flagrancy of defendant's conduct as required by the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17.5 In its April 8, 2015 oral decision, the trial court found Guyden's legal theories generally untenable. It rejected her premise that discrimination claimants are usually better off litigating their claims in court rather than in arbitration or other ADR processes. The trial court also rejected Guyden's argument that damages must be presumed if she established that the Leeds firm had been tortiously induced to breach its fiduciary duties to her. The court noted that no New Jersey precedent has adopted such a "presumed damages" principle for such cases. The court declined 5 Our discussion of these figures should not be construed as a finding they are reasonable or likely. We simply accept them for the sake of discussion, viewing the record in a light most favorable to Guyden. 11 A-1026-15T2 to follow an opinion from another jurisdiction supporting such a theory in a case coincidentally involving the Leeds firm and a different fee arrangement. See Johnson v. Nextel Commc'n Inc., 660 F.3d 131 (2d Cir. 2011).6 Moreover, the court noted the opinion in Nextel did not reach questions of proximate cause. The court found that a genuine issue of material fact existed over whether the Leeds firm had allegedly engaged in the unauthorized practice of law in New Jersey, denying an earlier motion for partial summary judgment that the plaintiffs in the consolidated case had filed. Moreover, the Rules of Professional Conduct have been construed to allow out-of-state attorneys to engage in ADR activity for New Jersey clients in certain circumstances. See RPC 5.5(b)(3)(ii) and Opinion 43, 187 N.J.L.J. 123 (Jan. 8, 2007). We concur with the trial court's rulings with respect to Guyden's claims seeking recovery based on the unauthorized 6 The counsel fee arrangement in Nextel provided that the employer defendant would pay the Leeds firm counsel fees on a sliding scale, depending upon how quickly claimants represented by the firm settled, with an additional $2 million enhancement if all of them settled. Id. at 140-43. Here, although there are some similarities, the fees payable by Prudential to the Leeds firm involved no sliding scale and no ultimate fee enhancement tied to getting all of the clients with claims to settle. 12 A-1026-15T2 practice of law and seeking presumed damages from an induced breach of fiduciary duty. We need not embellish those rulings here.7 We respectfully differ with the trial court's "per se" premise that the standards of care of a lawyer representing clients in employment discrimination matters cannot include the viewpoint of Guyden's expert, i.e., that such lawyers should refrain from advising their clients to agree to binding arbitration or ADR and waive their rights to a jury trial. Although the court is right that statutes and case law generally favor such dispute resolution processes – where chosen with the mutual consent of the parties – it is not always in a litigant's best interests to submit to them and give up the procedural and substantive rights they have in court and the pretrial provisions of the Rules of Court. The right to a civil jury trial is enshrined in the United States Constitution and our State Constitution and continues to be a meaningful entitlement. U.S. Const. amend. VII; N.J. Const. art. I, § 9. The broad right of litigant access to pretrial discovery in our civil courts also generally surpasses the more limited 7 As a side note, we do not adopt the court's application of "law of the case" principles in extending to Guyden a prior unpublished and unappealed opinion the trial court issued in dismissing the claims of another claimant. Defense counsel at oral argument on the appeal agreed that it would be inappropriate to bind Guyden and Fejoku to that unpublished opinion as "law of the case," although they think the court's reasoning was sound and logically applied to the present plaintiffs as well. See R. 1:36-3. 13 A-1026-15T2 ability of parties to obtain facts and evidence within arbitration and other ADR processes. See Capital Healthcare Sys. v. Horizon Healthcare Servs., 230 N.J. 73, 80 (2017). Punitive damages recoverable in appropriate civil cases involving flagrant conduct are not ordinarily recoverable in arbitration. The right to obtain plenary appellate review of a final judgment issued by a court contrasts with the far more limited grounds on which to set aside an arbitration award. N.J.S.A. 2A:23B-1 to -32. Given these many differences between civil litigation and ADR processes, it is not unreasonable, as Guyden's expert opines, for an attorney representing a claimant alleging she was the victim of discriminatory practices to favor and recommend litigating the matter in court instead of some other forum. To be sure, at times ADR can be swifter and less costly than traditional litigation. But reasonable persons can differ about the standards of care for attorneys who represent claimants of discrimination about the proper choice of forum. The trial court erred on this discrete point. The standards of care are fairly debatable. That said, we now turn to what turns out to be the crux of the appeal: proximate causation. The trial court concluded that all of Guyden's claims should be dismissed because of one common flaw, i.e., her alleged failure to present adequate evidence that the initial representation by the Leeds firm caused her any 14 A-1026-15T2 ultimate injury. As we have already noted, the court reasoned that Guyden's discharge of the Leeds firm and her retention of different counsel, who handled her claims for many years thereafter to completion, broke the alleged chain of causation tied to any actual harm. The court noted that an arbitrator had found her claims to lack merit, and it is therefore speculative to think her claims were worth any more than the sum her successor attorneys were able to negotiate in settlement with Prudential. We generally agree with the trial court's analysis on this causation point, subject to one major caveat. The caveat concerns whether, in fact, after Federal Judge Hayden authorized discovery to delve into the issue of fraudulent inducement, Prudential offered Guyden the opportunity to set aside the arbitration award and to litigate her claims in court. The record is disputed and inconclusive on this key question. Defendants present a certification from an attorney who had been involved in the federal matter, had represented Prudential, and recalls that he made such an offer orally during a telephone conference with counsel and a United States Magistrate. The offer, if it was made at all, apparently was never memorialized in a confirmatory writing. Nor was the telephone conference transcribed. Guyden, meanwhile, denies she was ever told about such an alleged offer. 15 A-1026-15T2 There is clearly a genuine issue of material fact on this critical question, which makes summary judgment inappropriate. If, in fact, Prudential made such an offer to Guyden to, in effect, wipe out the arbitration and the ADR agreement and litigate her discrimination claims instead in court, and she or her then-counsel rejected that offer, then she cannot establish proximate causation. That scenario would signify that Guyden was not ultimately, as she alleges, "trapped" in arbitration, having declined an offer to exit that process. Her claims of injury would be untenable, under the well-established doctrine of "avoidable consequences." See Komlodi v. Picciano, 217 N.J. 387, 412 (2014). Conversely, if Prudential never made such a definitive proposal, then Guyden's claims were prematurely dismissed on summary judgment. Proximate causation would be a proper question for the jury, viewing, as we must, the record in a light most favorable to the non-moving party. Although Guyden settled her case, she claims she did so under the unfavorable conditions – her ADR agreement – that the Leeds firm caused her to enter. For these reasons, summary judgment for defendants in Guyden's case with respect to her legal malpractice claims must be vacated without prejudice, pending the development of the record on remand concerning Prudential's alleged offer. If conclusive 16 A-1026-15T2 proof on that subject does not emerge, then the factual dispute must be resolved by a jury. In sum, we affirm the trial court's disposition as to Guyden in part, and vacate and remand in part limited to the issues we have specified. III. We turn to the summary judgment order dismissing Fejoku's claims. In doing so, we repeat and incorporate by reference what we have already said respecting Guyden's various claims. There are two important differences between Fejoku and Guyden. First, as we will elaborate in more detail, infra, Fejoku, unlike Guyden, did not litigate his claims with new counsel after he was no longer a client of the Leeds firm. Second, unlike Guyden, Fejoku has no expert report quantifying any proximately- caused damages. These differences are critical shortcomings for Fejoku. Here is the pertinent procedural history as to Fejoku. Like Guyden and others with discrimination claims against Prudential, Fejoku initially agreed to be represented by the Leeds firm and he signed the ADR agreement. In February 2000, the Leeds firm sent a letter to Michael Young and Kathleen Roberts, arbitrators and mediators with JAMS Endispute ("JAMS"), describing class members' claims. In July 17 A-1026-15T2 2000, claimants represented by the law firm began to present their claims to the mediators. In early 2001, Fejoku participated in mediation with JAMS and demanded from Prudential a sum to settle his claim, but soon reduced his demand to $4 million plus a promotion. As of March 2001, he requested $500,000. Prudential counter-offered him $10,000 if he stayed at the company or $60,000 if he left. In June 2001, Prudential increased its offer to $75,000 if Fejoku would leave employment with the company.8 In September 2001, Prudential made a global settlement offer of $10.5 million to resolve all outstanding claims in the matters, but Fejoku opted to proceed to arbitration. By October 2001, Prudential and the Leeds firm agreed to the final global settlement terms. On November 14, 2001, Fejoku told attorney Jeffrey K. Brown of the Leeds firm that he wanted a different arbitrator to handle his claim because JAMS had unsuccessfully mediated the matter. Another attorney at the Leeds firm, Deirdre Kamber Chisari ("Kamber"), responded that a JAMS arbitrator would be more sympathetic to Fejoku, having handled numerous other claims by 8 The parties have not argued these figures are inappropriate to discuss here under N.J.R.E. 408. 18 A-1026-15T2 other clients. In any event, Kamber agreed to set up arbitration with the American Arbitration Association. In November 2001, Fejoku appeared at a pre-arbitration conference with Kamber and JAMS arbitrator Young. At the conference, Fejoku did not mention his request for a new arbitrator and instead agreed to attend arbitration on January 17 and 18, 2002. That same day, Fejoku e-mailed Brown informing him that he had changed his mind about the arbitration dates. The firm requested a changed date but Arbitrator Young denied it. In January 2002, Fejoku told Kamber that he would not attend arbitration because the process was not, in his view, fair. He further informed Kamber that he would not appear for arbitration because: January 17 and 18, 2002 were inconvenient dates for him; he did not trust JAMS; the ADR agreement had expired; and he wished to file a lawsuit, not to submit to arbitration. Kamber responded that the ADR agreement required him to participate in arbitration. On January 17, 2002, Fejoku did not appear at arbitration and Arbitrator Young ordered him to appear January 25, 2002. Fejoku then informed Prudential's counsel that he would not appear, but instead, would withdraw from the settlement process and seek "outside" counsel. On January 31, 2002, Arbitrator Young dismissed Fejoku's complaint without prejudice. On February 6, 2002, the 19 A-1026-15T2 Leeds firm withdrew from representing Fejoku and informed him that he was free to arbitrate or go to trial if he wished. Notably, Fejoku never retained any successor counsel to address his discrimination claims. He received no settlement from Prudential. In August 2008, Prudential terminated him. In September 2011, Fejoku filed a pro se lawsuit (Docket No. ESX-L-7444-11) against Prudential for claims related to his August 2008 termination, but it was dismissed as time-barred. Fejoku filed an appeal but eventually withdrew it. Meanwhile, Fejoku filed the present legal malpractice case against the Leeds firm, making allegations similar to those of Guyden. In a comprehensive written decision dated July 7, 2014, the same motion judge who presided over Guyden's claims granted summary judgment to defendants in Fejoku's matter. A core aspect of the judge's analysis was Fejoku's failure to present viable proof of proximate causation or harm. We affirm the trial court's grant of summary judgment in Fejoku's case, substantially for the reasons expressed in its written opinion, and subject to the few analytic caveats we have already noted in Part II solely with respect to Guyden. The critical difference between Fejoku and Guyden is that the latter retained new counsel and endeavored to extract some recovery 20 A-1026-15T2 from Prudential. Fejoku, by contrast, refused to participate in arbitration and declined to retain new counsel to protect his interests. He only belatedly tried to file a pro se complaint against Prudential when it was too late to do so. In essence, Fejoku's losses, if any, are substantially self- inflicted. We discern no basis to reinstate his claims in the present case, even viewing the record in a light most favorable to him. We affirm the summary judgment order as to him. IV. The remaining issues raised on appeal, including the arguments concerning the late Special Discovery Master's approved fees and the trial court's decision to appoint such a master in this complex, multiparty litigation, do not have sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Affirmed in part and remanded in part as to Guyden; affirmed as to Fejoku. We do not retain jurisdiction in Guyden. 21 A-1026-15T2

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Docket No.: a1387-16
Decided: 2018-06-11
Caption: IN THE MATTER OF REGISTRANT N.F.
Status: unpublished
Summary:
PER CURIAM N.F. appeals from an order entered by the Law Division on November 30, 2016, which designated him as a Tier II sex offender under the Registration and Community Notification Laws, N.J.S.A. 2C:7-1 to -11 (Megan's Law), and as subject to Tier II community notification and inclusion on the Sex Offender Internet Registry (Internet Registry), N.J.S.A. 2C:7-12 to -19. We affirm. I. This appeal arises from the following facts. On or about November 28, 2011, the North Bergen Police Department (NBPD) received an anonymous phone call alleging possible child abuse. NBPD detectives located the witness, J.D., who reported that a man (later identified as N.F.) had shown her a video depicting a man engaging in sexual activity with a young female child named "Jackie." According to J.D., N.F. claimed he was the man in the video. The NBPD referred the matter to the Special Victims Unit (SVU) in the Hudson County Prosecutor's Office (HCPO). J.D. also met with investigators from the New Jersey Division of Youth and Family Services (the Division) and described what she had seen.1 SVU Detective Kristen Fusiak interviewed J.D., who provided a statement under oath. J.D. explained that on November 26, 2011, she was driving around with a female friend. They picked up N.F., whom she had never met before. They then drove to N.F.'s home, but only J.D. and N.F. went inside. While sitting in the living room, J.D. and N.F. discussed their childhoods and previous incidents 1 The Division is now known as the Division of Child Protection and Permanency. 2 A-1387-16T1 of sexual assault. N.F. then began discussing a girl named "Jackie." He retrieved a laptop computer and showed J.D. approximately five minutes of a video depicting a man receiving oral sex from a young female who appeared to be between the age of seven and ten years old. According to J.D., N.F. claimed to be the man in the video, although his face was not shown. He also identified the minor as "Jackie," a ten-year-old "neighbor" he sees regularly. N.F. said he engaged in oral and anal sex with the minor. J.D. stated that N.F. also showed her other child pornographic videos in which he was not involved, and asked J.D. if she would like to engage in sexual relations with him and the minor. J.D. left N.F.'s home. On November 30, 2011, Fusiak showed J.D. approximately sixteen photographs of fourth, fifth, and sixth grade classes at a North Bergen elementary school. J.D. did not identify any of the females as the minor in N.F.'s pornographic video. On December 2, 2011, J.D. was shown a photograph of J.B. She stated she was eighty-percent sure that it was the photograph of the female child shown in the pornographic video that N.F. had shown to her. On December 2, 2011, members of the SVU and NBPD executed multiple search warrants at N.F.'s addresses in North Bergen and another municipality, and communications-data warrants for any items seized at those locations. The searches yielded, among other 3 A-1387-16T1 things, several computers, a digital camera, and one unmarked video tape. Numerous videos and images of child pornography were found on the electronic devices. The video that J.D. had described was not located. However, among the videos recovered was a homemade pornographic video depicting N.F. and a female he refers to as his "cousin." On the video, N.F. discussed sodomizing a young girl with a broomstick, and then stated "let's see like I'd wanna [sic] do that to like, like a girl that's a little under developed like someone like [A.], like [ten] years old going on [eleven]." N.F. and his "cousin" then discussed engaging in sexual activity with a juvenile. One of the Division's workers spoke with N.F.'s children, and one of the children advised her that he has an eight-year-old playmate named "Jackie" who lives nearby. J.B., who goes by the name of "Jackie," and her mother, Ja.B., were brought to the HCPO to give a statement. Ja.B. stated that N.F. was a friend of her ex-husband. Ja.B. said J.B. spent a lot of time at N.F.'s home playing with his children and slept over at N.F.'s house approximately three times. N.F. was there two of those times. Ja.B. stated that on one occasion J.B. returned from N.F.'s home and was "acting weird" in the bathroom. J.B. told Ja.B. that she was bleeding from 4 A-1387-16T1 her vaginal area and had a pinkish discharge. However, J.B. denied that anyone touched her. Fusiak spoke with J.B. and had her identify certain body parts on anatomically-detailed drawings. Fusiak asked J.B. if there was any place on her body that no one was permitted to touch. J.B. responded that no one was supposed to touch her "private part" and "butt." J.B. initially hesitated in answering, but then said no one was allowed to touch her chest. When asked why she hesitated, J.B. responded that she had to think if anyone had touched her. She denied ever seeing male genitals. She acknowledged she spends time at N.F.'s home and has slept over there. Fusiak and J.B. next discussed the incident in the bathroom. J.B. initially claimed she did not remember the incident but then said "it was kind of at two places" – once at her house and once at another house where she lived at times. She stated that at her house, her private part hurt and she did not know why. She also said nothing came out, and she did not know what Ja.B. saw when she examined her. J.B. stated she told her mother that no one had touched her. J.B. said, however, that blood came out of her private part at the other house. When asked about N.F., J.B. said she did not like him because he is "weird." J.B. stated that she did not think N.F. was cute and she denied having a crush on him. When asked if N.B. had a 5 A-1387-16T1 crush on her, J.B. said she was not sure. J.B. answered "no" to nearly every question about sexual matters that Fusiak asked. However, when asked if N.F. touched her butt, J.B. initially said yes and then quickly said no. J.B. also denied N.F. had ever recorded her on video. Eventually, J.B. began crying and said she did not want to continue the discussion. Shortly thereafter, J.B. returned to the interview room, and Fusiak questioned her about a Facebook conversation J.B. had with N.F. The messages read as follows: J.B.: I waz up im so bored N.F.: It's late baby girl. Get ready for bed. Love you. J.B.: reallyyyyyyyyyy N.F.: Really really (with a smiley face) J.B.: yesss J.B.: Jookie!!!! J.B.: wat[sic]!!!!!!!!! Fusiak explained to J.B. that the conversation could be interpreted as a boyfriend-girlfriend relationship. J.B. said she did not like N.F. and continued to deny that anyone ever touched her body parts, specifically N.F. Fusiak told J.B. she saw the video of her and N.F., but J.B. denied ever touching male genitals. J.B. acknowledged the videotaping by stating that the incidents 6 A-1387-16T1 happened in the living room and sometimes the other children were in another room. She said N.F. touched her belly and demonstrated a chopping motion. When asked what sexual touching happened in the living room, J.B. denied that any such touching occurred and said she did not remember anything. Several days later, Ja.B. called Fusiak to inform her that J.B. claimed N.F. had promised her an iPod. On December 7, 2011, N.F.'s ex-wife, T.F., was interviewed. N.F. and T.F. have three children together. Among other things, T.F. said four neighborhood children frequented their home to play with her children, and one of the children was named "Jackie." T.F. told Fusiak that either she, N.F., or a babysitter would be home when the children would play together. T.F. denied that any other neighborhood children frequented her home. T.F. also said there was a laptop computer in the home that recently broke when her son spilled juice on it. The last time she saw the laptop was November 30, 2011. T.F.'s children were also interviewed. They acknowledged there was another laptop in the home, but stated they had not seen it recently. N.F. was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two); fourth-degree abuse, cruelty and neglect of a child, N.J.S.A. 9:6-1 and -3 (count 7 A-1387-16T1 three); first-degree endangering the welfare of a child (creation of child pornography), N.J.S.A. 2C:24-4(b)(3) (count four); second-degree endangering the welfare of a child (distribution of child pornography), N.J.S.A. 2C:24-4(b)(5)(i) (count five); and fourth-degree endangering the welfare of a child (possession of child pornography), N.J.S.A. 2C:24-4(b)(5)(ii) (count six). On October 1, 2013, N.F. pled guilty to count five. On January 24, 2014, he was sentenced to five years in state prison, and required to register as a sex offender under Megan's Law, N.J.S.A. 2C:7-2. After his release from custody, N.F. registered as required. The HCPO filed a notice of proposed Tier II classification, Tier II notification to the community, and inclusion on the Internet Registry. N.F. filed an objection to the proposed classification and requested an evidentiary hearing. On November 18, 2016, the Law Division judge conducted a hearing in the matter. N.F. presented the testimony of Dr. James R. Reynolds, a psychologist and expert in the field of sex offender treatment and risk assessment. Dr. Reynolds opined that N.F. was a low risk for involvement in future criminal behavior. Dr. Reynolds scored N.F. as having an overall total of five points on the Registrant Risk Assessment Scale (RRAS). He gave N.F. three points for history of anti-social acts and two points for substance abuse that is in remission. Dr. Reynolds gave N.F. zero points for 8 A-1387-16T1 all other factors on the RRAS. In his report, Dr. Reynolds opined that the available records indicated that allegations N.F. sexually abused an underage child were not substantiated. On November 30, 2016, the judge heard oral argument and rendered a decision from the bench, finding N.F. subject to Tier II classification, Tier II community notification, and inclusion on the Internet Registry. The judge memorialized his findings in an order dated November 30, 2016, and granted an oral motion for stay of placement on the Internet Registry pending appeal. This appeal followed. On appeal, N.F. raises the following arguments: (1) the trial court incorrectly applied the RRAS in evaluating his risk by applying inappropriate factors regarding his offense; (2) notwithstanding his RRAS score, he should be subject to Tier I community notification without placement on the Internet Registry; (3) the State did not prove by clear and convincing evidence that he committed an act of sexual penetration with a minor female; and (4) the RRAS is being applied differently in certain counties, with the potential for arbitrary results. II. We begin our consideration of the appeal by summarizing the relevant provisions of Megan's Law and the tier classification process. Depending on the type and time of offense, Megan's Law 9 A-1387-16T1 requires certain sex offenders to register with local law enforcement agencies and notify the community. In re T.T., 188 N.J. 321, 327 (2006) (citing N.J.S.A. 2C:7-2). Because registration and community notification under Megan's Law has a significant impact upon a registrant's personal liberties, the trial court must balance the registrant's right to privacy against the community's interest in safety and notification. In re Registrant G.B., 147 N.J. 62, 74 (1996). In applying this balancing test, the RRAS is a reliable tool. Id. at 81–82. The RRAS is an instrument used to determine whether a sex offender's risk of re-offense is low (Tier I), moderate (Tier II), or high (Tier III). State v. C.W., 449 N.J. Super. 231, 260 (2017) (citing In re V.L., 441 N.J. Super. 425, 429 (App. Div. 2015)). In assigning a tier rating to a registered sex offender, the court considers thirteen factors across four categories: (a) seriousness of the offense; (b) the offender's history; (c) community support available; and (d) the characteristics of the offender. Ibid. (citing V.L., 441 N.J. Super. at 429). "Seriousness of offense" includes: (1) degree of force; (2) degree of contact; and (3) age of victim. In re Registrant C.A., 146 N.J. 71, 103 (1996). "Offender's history" includes: (4) victim selection; (5) number of offenses/victims; (6) duration of 10 A-1387-16T1 offensive behavior; (7) length of time since last offense; and (8) any history of anti-social acts. Ibid. "Support available" and "characteristics of offender" are considered "dynamic categories, because they are evidenced by current conditions." Ibid. "Characteristics of offender" includes: (9) response to treatment and (10) substance abuse. Id. at 103– 04. "Support available" includes: (11) therapeutic support, (12) residential support; and (13) employment/educational stability. Id. at 104. Each factor is assigned a risk level of low (0), moderate (1), or high (3), and "[t]he total for all levels within a category provides a score that is then weighted based on the particular category." Ibid. A registrant who receives a total factor score below thirty-seven is considered Tier I and a low risk for re- offense. Id. at 83. A registrant who receives a total factor score of more than thirty-seven, but less than seventy-four, is deemed Tier II and a moderate risk for re-offense. Ibid. Finally, a registrant who receives a total factor score of seventy-four or higher is considered Tier III and a high risk for re-offense. Ibid. N.J.S.A. 2C:7-8(c)(1) provides that when risk of re-offense is low, "law enforcement agencies likely to encounter the [registrant]" must be notified. When risk of re-offense is 11 A-1387-16T1 moderate, "organizations in the community including schools, religious and youth organizations" must be notified in addition to the notice to law enforcement agencies. N.J.S.A. 2C:7-8(c)(2). When risk of re-offense is high, public notice "designed to reach members of the public likely to encounter the [registrant]" is required, in addition to the other notice required. N.J.S.A. 2C:7- 8(c)(3). Additionally, "where public access . . . [is] warranted, based on the relative risk posed by the particular offender," some offenders will be subject to the Internet Registry. N.J.S.A. 2C:7- 13(b). The RRAS is, however, "only one possible consideration" of many in determining a registrant's risk of re-offense. G.B., 147 N.J. at 78. Although the RRAS is a "useful tool to help prosecutors and courts determine whether a registrant's risk of re-offense is low, high, or moderate," it is "not a scientific device." C.A., 146 N.J. at 108. "[I]t is impossible to create an all-inclusive scale," and thus, "any classification based on the [RRAS] should not be viewed as absolute." Id. at 109. Judicial determinations regarding tier classification and community notification should be made "on a case-by-case basis" within the discretion of the court and based on all of the evidence available, not simply by following the "numerical calculation provided by the [RRAS]." G.B., 147 N.J. at 12 A-1387-16T1 78–79 (quoting C.A., 146 N.J. at 109). Ultimately, "a value judgment" is required. Id. at 78 (citing C.A., 146 N.J. at 109). Moreover, all judicial determinations regarding tier classification and community notification "must be [made] by clear and convincing evidence." G.H. v. Twp. of Galloway, 401 N.J. Super. 392, 403 (App. Div. 2008) (citing E.B. v. Verniero, 119 F.3d 1077, 1111 (3d Cir. 1997)). Clear and convincing evidence has been characterized "as evidence on which the trier of fact can rest 'a firm belief or conviction as to the truth of the allegations sought to be established.'" In re Registrant J.G., 169 N.J. 304, 330–31 (2001) (quoting Matter of Purrazella, 134 N.J. 228, 240 (1993)). In challenging a tier designation, a registrant may argue that: (1) the RRAS score was erroneously calculated; (2) the case falls outside the "heartland" of Megan's Law cases; and (3) the extent of community notification required is excessive due to "unique" aspects of the registrant's case. T.T., 188 N.J. at 330 (quoting G.B., 147 N.J. at 85). In presenting such a challenge, the registrant must introduce evidence showing the RRAS "did not accurately weigh certain factors" or "take into account certain peculiar factors" relevant in determining a registrant's risk of re-offense. G.B., 147 N.J. at 82. 13 A-1387-16T1 III. N.F. argues that the State failed to establish by clear and convincing evidence that he engaged in sexual penetration with anyone other than consenting adults. N.F. therefore argues his score of fifteen (high risk) in factor two of the RRAS (degree of contact) was erroneous. We disagree. When calculating a registrant's score on the RRAS, "the State is free to rely on hearsay statements to support its assertions and does not need to base its calculations surrounding the underlying offense solely on the facts of conviction." G.B., 147 N.J. at 79 (citing C.A., 146 N.J. at 88–93). The trial court then may consider "all reliable information" including "[s]exual offenses, not the subject of a conviction" and supported by admissions, police reports, and psychiatric reports. In re J.W., 410 N.J. Super. 125, 130–31 (App. Div. 2009) (citing In re Registrant C.A., 285 N.J. Super. 343, 347–48 (App. Div. 1995)). The trial court may rely on the evidence it considers relevant and trustworthy in making its determination. C.A., 285 N.J. Super. at 343. On appeal, we must accord substantial deference to the trial court's factual determinations if supported by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 14 A-1387-16T1 65 N.J. 474, 484 (1974)). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). We must defer to the trial court's factual findings "regardless of whether the evidence is live testimony, a videotaped statement, or documentary evidence." State v. S.N., 231 N.J. 497, 514 (2018) (citing State v. S.S., 229 N.J. 360, 379 (2017)). In this case, the trial judge found that the State had proven by clear and convincing, if not overwhelming, evidence that N.F. had committed an act of sexual penetration upon the female minor, J.B. The judge found that J.D.'s statements on this issue were "completely credible" and, for this reason, N.F. would receive a score of fifteen (high risk) on factor two of the RRAS (degree of contact). There is sufficient credible evidence in the record to support the judge's finding. As the judge pointed out in his decision, J.D. stated under oath that N.F. showed her a video of a man receiving oral sex from a young female victim who appeared to be between the ages of seven and ten years old. Furthermore, N.F. identified himself as the man depicted in the pornographic video. N.F. also identified the young female victim as "Jackie," a ten-year-old "neighbor" whom he sees regularly. 15 A-1387-16T1 As noted previously, when they executed the search warrants, the investigators could not locate the video that J.D. described. The judge found, however, that this did not mean the video did not exist on the night J.D. said she saw it. Moreover, N.F. told J.D. that he engaged in oral and anal sex with the young female victim, and he invited J.D. to engage in sexual relations with him and the victim. The judge found J.D.'s statement was "completely credible and reliable." We note that J.D.'s statement was corroborated by other evidence, including the significant amount of child pornography recovered from N.F.'s home, his inappropriate Facebook conversation with a female minor nicknamed "Jackie" who lived nearby, and the numerous similarities between N.F.'s conversation with J.D. and his conversation with his "cousin" in a homemade pornographic video that was recovered later. In that video, N.F. is seen telling his "cousin" he wanted to sexually penetrate a named ten-year-old female. Accordingly, we conclude there is sufficient credible evidence in the record to support the judge's finding that N.F. sexually penetrated a young female victim who was about ten years old. The record supports the judge's determination that N.F.'s score in factor two of the RRAS (degree of contact) was fifteen. 16 A-1387-16T1 IV. Next, N.F. argues that the judge erroneously scored his RRAS, resulting in an inaccurate and inflated risk assessment. As stated previously, the judge placed N.F. in Tier II, the moderate level of risk of re-offense for Megan's Law community notification, based on a final score of sixty-three on the RRAS. In the category of "seriousness of offense," the judge found that N.F. had a total score of thirty. This score consisted of fifteen points (high risk) for factor two (degree of contact) based on the aforementioned finding of penetration. It also included fifteen points (high risk) for factor three (age of the victim), since the victim was under the age of thirteen. In the category of "offense history," the judge found N.F. also had a total score of thirty. This score consisted of nine points (high risk) for factor four (victim selection), nine points (high risk) for factor five (number of offenses/victims), three points (moderate risk) for factor seven (length of time since last offense), and nine points (high risk) for factor eight (history of anti-social acts). In addition, in the category of "characteristics of offender," the judge found that N.F. had a score of two (moderate risk) for factor ten (substance abuse). The judge also found that 17 A-1387-16T1 N.F. had a score of one (moderate risk) in factor thirteen (education/employment stability). On appeal, N.F. argues that factors one through five of the RRAS should not be scored for child pornography offenders. He contends these factors are designed primarily for "contact offenses," and should be left un-scored in cases involving child pornography offenders. We note, however, that N.F. did not receive a score for factor one (degree of force). Moreover, N.F.'s score for factor two (degree of contact) was based on the finding that he committed an act of sexual penetration upon the female victim, who was about ten years old. Factor three (age of the victim) was based in part on the age of the victim, who was under thirteen years of age, and the many other victims who appear in the child pornography videos. The scores on factors four (victim selection) and five (number of offenses/victims) also were based on the victims depicted in the numerous child pornography videos found in N.F.'s house. Notwithstanding N.F.'s arguments to the contrary, we are not convinced that it was inappropriate for the court to consider his possession and distribution of child pornography for purposes of scoring factors three, four, and five. The courts have recognized that children depicted in child pornography are, in fact, victims. 18 A-1387-16T1 In New York v. Ferber, 458 U.S. 747, 759 n.10 (1982), the Court observed that Pornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child's actions are reduced to a recording, the pornography may haunt him [or her] in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system of child pornography. See also In re Cohen, 220 N.J. 7, 12 (2014) (noting that each time someone views child pornography, the child depicted therein is again victimized). Here, N.F. was subject to registration and community notification under Megan's Law because he was found guilty of endangering the welfare of a child through the distribution of child pornography to J.D. See N.J.S.A. 2C:7-2(a)(2); N.J.S.A. 2C:24-4(b)(5)(a)(i). The fact that a registrant has possessed numerous child pornography videos is an appropriate consideration in determining whether there is a risk that the registrant will re-offend in this manner. Therefore, in scoring factors three, four, and five of the RRAS, it was appropriate for the court to consider the many victims depicted in the child pornography videos N.F. possessed. 19 A-1387-16T1 In support of his argument that child pornography offenders should not be scored in factors one through five of the RRAS, N.F. relies upon In re Registrant P.B., 427 N.J. Super. 176 (App. Div. 2012). In that case, the registrant was charged with third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a) and (b), for possession of child pornography on his home computer, and he pled guilty to third-degree child endangerment under N.J.S.A. 2C:24-4(a). Id. at 180. On the RRAS, the registrant received a total score of seventy-two, placing him in the category of persons who pose a moderate risk to re-offend. Ibid. On appeal, the registrant argued this tiering was incorrect. Id. at 179. We "reject[ed] the notion" that a "high" risk level under factor two (degree of contact) could be "satisfied by a showing that a registrant merely possessed depictions of penetrative sexual activity with children, without any concomitant indication that [the registrant] played a role in the penetrative activity either as a participant or a producer." Id. at 183. We explained it seems evident from N.J.S.A. 2C:7-1 to -23 and authoritative interpretive materials developed to implement the legislation that, under the very terms of Megan's Law alone, the accused must have engaged in some kind of participation in penetrative activity before he or she can be deemed to be responsible for it on any level. Ibid. 20 A-1387-16T1 N.F. argues that P.B. holds that factors one and two of the RRAS should not be scored for child pornography offenders. However, in P.B., the court only addressed factor two and held that it should not be scored for the "mere possession and viewing of child pornography." Id. at 181. As we have explained, however, this case does not involve the mere possession of child pornography because the evidence shows that N.F. "played a role in the penetrative activity either as a participant or a producer." Id. at 183. Therefore, N.F.'s reliance upon P.B. is misplaced. Furthermore, in determining N.F.'s risk of re-offense it was entirely appropriate for the court to consider the numerous victims depicted in N.F.'s child pornography videos when scoring factors three, four, and five of the RRAS. In view of our decision, that N.F. was correctly scored under the RRAS, we need not address the issue of whether other registrants, who have only been convicted of endangering the welfare of a child through the possession of child pornography, should be scored in factors one, three, four, and five. V. Next, N.F. argues that regardless of his score on the RRAS, he should only be subject to Tier I scope of community notification without placement on the Internet Registry, because his risk of re-offense is allegedly low, and he has made some progress in sex 21 A-1387-16T1 offender treatment. N.F. argues that his case falls outside the "heartland" of Megan's Law cases and that the extent of notification ordered is excessive because of "unique" aspects of his case. Again, we disagree. Generally, in challenging a registrant's RRAS score or the scope of community notification, "expert testimony will be neither necessary nor helpful." G.B. 147 N.J. at 85. However, "in limited circumstances, expert testimony may be introduced . . . to establish the existence of unique aspects of a registrant's offense or character that render the [RRAS] score suspect." Id. at 68. The court has "the ultimate authority to decide what weight to attach to the [RRAS] and what weight to attach to expert testimony." Id. at 85. "The final determination of dangerousness lies with the courts, not the expertise of psychiatrists and psychologists." Id. at 86 (quoting In re D.C., 146 N.J. 31, 59 (1996)). Moreover, there is a presumptive scope of community notification concerning Tier II offenders. In re Registrant M.F., 169 N.J. 45, 62 (2001). "Unless limiting circumstances affecting the nature of a [Tier II] registrant's risk of re-offense are presented, the State is entitled to give effect to the legislative preference, indeed presumption, of the need for notice to the specified schools and community organizations located in the area 22 A-1387-16T1 frequented by a registrant." Ibid. This presumption "logically advances the legislative goal of public protection, specifically the protection of children and women vulnerable to a sex offender with a moderate risk of re-offending." Ibid. In this case, although N.F. apparently has made some progress in his sex offender treatment while at the Adult Diagnostic Treatment Center, N.F. has failed to present any unique aspects of his offense or his character that would render the RRAS score suspect or warrant departure from the community notification recommendations pursuant to the Guidelines adopted by the New Jersey Attorney General. N.F. relies in large part on the testimony and report of Dr. Reynolds, who opined that N.F. should be tiered as a "low risk" offender. The record shows, however, that Dr. Reynolds did not consider all of the available evidence when evaluating N.F. Dr. Reynolds did not have any progress reports of N.F.'s current treatment. In formulating his opinion, Dr. Reynolds did not include any conduct that did not result in a criminal conviction. He chose not to consider J.D.'s statements, claiming it was only an allegation "that was not proved." We therefore conclude there is sufficient credible evidence to support the trial court's finding that N.F. should be classified in Tier II, and subject to Tier II community notification and placement in the Internet Registry. 23 A-1387-16T1 VI. N.F. also argues for the first time on appeal that factors three, four, and five of the RRAS are being scored differently by certain counties when scoring child pornography offenders. N.F. maintains that the lack of uniformity between the counties raises the possibility of arbitrary and county-specific scoring on the RRAS. "[I]ssues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate the public interest." N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010). Although N.F. contends at least one county does not score victim characteristics for persons convicted of child-pornography-related offenses, we do not have a sufficient record concerning that matter, or any record regarding how other counties score the RRAS for persons convicted of offenses involving child pornography. Therefore, we cannot address the issue. We note again that this case does not involve child endangerment through the possession of child pornography. It involves a registrant convicted of endangering the welfare of a child through the distribution of child pornography. Moreover, this case involves a registrant who engaged in penetrative activity with a young female victim, as a participant and producer of a 24 A-1387-16T1 child pornography video. We hold that under these circumstances, it is not arbitrary or capricious for the court to consider the registrant's possession of numerous child pornography videos, with a multiplicity of victims depicted therein, when scoring factors three, four, and five of the RRAS. Affirmed. 25 A-1387-16T1

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Docket No.: a1471-15
Decided: 2018-06-11
Caption: RENSSELAER CONSTRUCTION CO INC v. NEW VISIONS COMMUNITY DEVELOPMENT CORPORATION
Status: unpublished
Summary:
LEONE, J.A.D. Defendants New Visions Community Development Corporation (New Visions), its chairman Cornelius Martin, and its president Versey Martin appeal the trial court's November 4, 2015 order releasing $81,486.92 to plaintiff Rensselaer Construction Co., Inc. Separately, defendants appeal the April 7, 2016 denial of their motion for reconsideration of an order denying the extension of a stay of the November 4 order. We consolidate the appeals for purposes of this opinion and affirm. I. The record before the trial court included the following undisputed facts. In 2002, New Visions and plaintiff entered in a contract for plaintiff to construct New Visions' development in Newark for $4,193,350. A dispute arose regarding the monies owed to plaintiff. In 2007, plaintiff filed a complaint against defendants alleging breach of the construction contract, breach of a 2007 settlement agreement, conspiracy, fraud, and other causes of action. On January 29, 2008, the trial court ordered that all proceeds from the sale of the remaining unsold properties in the development and all grant funds due to defendants should be paid into the court's trust fund. The order provided that 85% of the proceeds and 75% of the grant funds should be released to plaintiff, with 2 A-1471-15T3 the rest to be retained "until either the conclusion of the within matter and/or further Order of this Court." In a January 4, 2010 hearing just before trial, the parties entered into a settlement agreement and memorialized it on the record. Defense counsel David J. Fox stated "the matter has been resolved by and between the parties in the amount of $180,000." Fox stated defendants would "make application to [the court] for withdrawal of some of the funds" in the trust account to make repairs to the last property to be sold in the development, "which [was] presently under contract," would "hopefully . . . get to closing within . . . 45 days," after which the proceeds would be "deposited" into the trust fund and defendant would make "the necessary accounting to the State of New Jersey" for grant funds totaling "approximately $90,000. So that the pool can be set up and then divied up." Fox represented the "goal" was "to have this . . . done within 60 days." Defendants subsequently filed a motion for the release of $10,100 from the trust fund to complete repairs on the last property. On July 14, 2010, the trial court granted the release to defendants of $10,100 for repairs.1 1 Defendants also requested leave to file a third-party complaint against a bank so the bank could "'speak as to the division of escrow funds[,]'" but the trial court denied that request. 3 A-1471-15T3 Complications arose over the sale of the last property in the development and over the remaining State grant funds, and as a result, the property was not sold as promised. In 2015, $81,483.92 remained in the trust account. Defendants moved for the funds to be released to them, and plaintiff cross-moved for the funds to be released to it, supported by a certification from plaintiff's president, Guillermo L. Cruz. At the November 4, 2015 hearing, defense counsel argued the January 4, 2010 settlement agreement was unclear as to whether the $180,000 owed included payments made to plaintiff before settlement was reached. The trial court found the "plain language" of the agreement stipulated that New Visions owed plaintiff $180,000 pursuant to the settlement agreement, irrespective of any prior payments or disbursements made, and that the full debt in its entirety remained unpaid. The court's November 4, 2015 order entered a $180,000 judgment in favor of plaintiff, ordered that the $81,486.92 remaining in the trust account be released to plaintiff. Execution of the order was stayed until December 4, 2015, to give defendants an opportunity to appeal. On December 4, 2015, defendant filed a timely appeal, docketed as A-1471-15. After the stay on the November 4 order expired, plaintiff withdrew the $81,486.92 from the trust fund on December 8, 2015. On December 17, 2015, defendants filed a motion to 4 A-1471-15T3 reinstate and extend the stay. On February 5, 2016, the trial court without oral argument denied defendants' motion, finding no possibility of irreparable harm and no jurisdiction as the matter was then pending in this court. On March 9, 2016, defendants filed a motion for reconsideration of the trial court's order denying an extension of the stay. On April 7, 2016 the court denied defendants' motion without oral argument, finding that it lacked jurisdiction and that defendants failed to justify reconsideration. On May 23, 2016, defendants filed a timely appeal, docketed at A-4030-15. II. We first address Appeal No. A-1471-15, defendants' appeal of the November 4, 2015 order, challenging the release of the remaining $81,486.92 in the trust fund to plaintiff. Defendants contend the trial court misinterpreted the settlement agreement. "A settlement agreement between parties to a lawsuit is a contract." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). "When a trial court's decision turns on its construction of a contract, appellate review of that determination is de novo." Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014). "Appellate courts give 'no special deference to the trial court's interpretation and look at the contract with fresh eyes.'" Ibid. (citation omitted). We must hew to that standard of review. 5 A-1471-15T3 "'[T]he settlement of litigation ranks high in our public policy,'" and we "'strain to give effect to the terms of a settlement wherever possible.'" Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008) (citations omitted). "Our strong policy of enforcing settlements is based upon 'the notion that the parties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone.'" Ibid. (citation omitted). Defendants concede that in the January 4, 2010 oral settlement agreement, the parties agreed that "$180,000[] would be paid to plaintiff." However, defendants argue the payments to plaintiff prior to January 4, 2010, must be credited against the $180,000. Defendants refer to payments from the trust account to plaintiff of $108,469.52 in March 2008, and $37,467.39 in June 2008. Courts "should give contractual terms 'their plain and ordinary meaning,' unless specialized language is used peculiar to a particular trade, profession, or industry." Kieffer v. Best Buy, 205 N.J. 213, 223 (2009) (citations omitted). The plain language of the oral agreement was that defendants still owed plaintiff $180,000. "[W]hen the intent of the parties is plain and the language is clear and unambiguous, a court must enforce the agreement as written, unless doing so would lead to an absurd result." Quinn v. Quinn, 225 N.J. 34, 45 (2016). 6 A-1471-15T3 That plain reading also comports with the circumstances. Plaintiff sued defendants claiming they owed it $407,000. After some payments were made through the trust fund, the parties settled by agreeing defendants still owed plaintiff $180,000. The circumstances confirm that the parties would have stated the amount that had to be paid to plaintiff to settle the case, rather than an amount that once was owed but already had been largely paid. "It is well-settled that '[c]ourts enforce contracts "based on the intent of the parties, the express terms of the contract, surrounding circumstances and the underlying purpose of the contract."' A reviewing court must consider contractual language '"in the context of the circumstances' at the time of drafting[.]"'" In re Cty. of Atl., 230 N.J. 237, 254 (2017) (citations omitted). Defendants' argument has no basis in the settlement agreement, which made no mention of the 2008 payments, let alone deducting them from the $180,000. The only amount the oral settlement agreement provided would be paid or credited to defendants from the trust account was the money for repairs on the last unit to be sold, namely the $10,100 released in July 2010. In interpreting a settlement agreement, courts "will 'not rewrite contracts in order to provide a better bargain than contained in'" 7 A-1471-15T3 the parties' agreement. Kaur v. Assured Lending Corp., 405 N.J. Super. 468, 477 (App. Div. 2009) (citation omitted). Defendants argue the trial court should have held a plenary hearing to determine the material elements of the settlement agreement and to specify the intent of the parties when entering into the 2010 settlement. However, plaintiff offered no factual basis for a hearing to contravene the plain language of the settlement agreement. In the certification supporting defendants' motion, New Vision's president/CEO Martin simply stated that "[t]o my knowledge plaintiff has no further claim on the deposited funds." By contrast, the certification of plaintiff's president Guillermo L. Cruz explained in detail why, after the 2008 payments were made, defendants still owed plaintiff $180,000 as stated in the settlement agreement. "[A] plenary hearing is only required if there is a genuine, material and legitimate factual dispute." Segal v. Lynch, 211 N.J. 230, 264-65 (2012); cf. Harrington v. Harrington, 281 N.J. Super. 39, 44-45 (App. Div. 1995) (ordering a hearing where no agreement was placed on the record and the parties' certifications showed their "critical disagreement as to the existence of a binding agreement"). Defendants focus on the trial court's statement that it was dealing "with this Settlement Agreement which . . . I'm not going to change. When . . . lawyers write these agreements, I shouldn't 8 A-1471-15T3 have to figure out what they meant when they wrote in plain language . . . what is there." Defendants view the court's statement as a critique of the lack of a written agreement, but the statement instead rejected defendants' unsupported attempt to contravene the plain language of the oral agreement. An "'agreement to settle a lawsuit, voluntarily entered into, is binding upon the parties, whether or not made in the presence of the court and even in the absence of a writing.'" Pascarella v. Bruck, 190 N.J. Super. 118, 124 (1983) (citation omitted). The familiar "practice of spreading the terms of the agreement upon the record," though not required, provided sufficient basis for enforcement. Jennings v. Reed, 381 N.J. Super. 217, 229 (App. Div. 2005). "An agreement to settle a lawsuit is a contract, which like all contracts, may be freely entered into and which a court, absent a demonstration of 'fraud or other compelling circumstances,' should honor and enforce as it does other contracts." Brundage, 195 N.J. at 601 (quoting Pascarella, 190 N.J. Super. at 124). The trial court properly enforced the parties' settlement agreement that defendants owed plaintiff $180,000 by paying plaintiff the $81,486.92 in the trust account. III. Defendants' December 4, 2015 notice of appeal stated they were appealing only the November 4, 2015 order. Nonetheless, 9 A-1471-15T3 defendants' brief in that appeal disputes whether the trial court issued its February 5, 2016, and April 7, 2016 orders without hearing oral argument. Any dispute concerning those orders is not properly raised in Appeal No. 1471-15 because it predated, and was not an appeal from, those orders. "[I]t is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review." 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004). Even if we were to consider this dispute in defendants' Appeal No. 4030-15 from the April 7 order, we would reject it. Defendants' motion for reconsideration that led to that order did not request oral argument, and they "cannot now complain on appeal about being wrongfully denied something [they] never requested." Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006). Defendants' earlier motion to reinstate and extend the stay stated "oral argument is requested only if this motion is opposed," and it is unclear why oral argument did not occur on February 5. In any event, as set forth below, the trial court reached the correct result in denying both motions, and so "we find no prejudice under the circumstances." Finderne Heights Condo. Ass'n v. Rabinowitz, 390 N.J. Super. 154, 166 (App. Div. 2007); see Triffin v. Am. Intern. Grp., 372 N.J. Super. 517, 524 (App. Div. 2004). 10 A-1471-15T3 IV. We next address defendants' Appeal No. 4030-15, appealing the April 7, 2016 denial of the motion for reconsideration of the February 5, 2016 order. "[T]he decision to grant or deny a motion for reconsideration rests within the sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). "Reconsideration should be used only where '1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). "Thus, a trial court's reconsideration decision will be left undisturbed unless it represents a clear abuse of discretion." Ibid. (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). Defendants' March 9, 2016 motion sought reconsideration of "the denial of defendants['] motion for a stay" in the February 5, 2016 order. Defendants had to meet a "'particularly heavy' burden" to obtain a stay. Guaman v. Velez, 421 N.J. Super. 239, 247 (App. Div. 2011) (citation omitted). A successful applicant must demonstrate by clear and convincing evidence that a stay is necessary to prevent irreparable harm, that 11 A-1471-15T3 the legal right underlying the claim is settled, that the material facts are substantially undisputed, that the applicant has a reasonable probability of success on the merits, and that a balancing of the equities and the hardships weighs in favor of granting relief. [Id. at 247-48 (citing Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982) (citation omitted)).] Defendant cannot show irreparable harm. "Harm is generally considered irreparable in equity if it cannot be redressed adequately by monetary damages." Crowe, 90 N.J. at 132-33. Thus, "claims for injunctive relief cannot normally be maintained where monetary damages are a sufficient remedy." Med. Soc'y of N.J. v. AmeriHealth HMO, 376 N.J. Super. 48, 62 (App. Div. 2005). "[E]quity will leave the parties to a remedy at law if money damages will adequately compensate for the wrong." Bd. of Educ. v. N.J. Educ. Asso., 53 N.J. 29, 43 (1968). As the trial court found, any error in the payment of $81,483.92 to plaintiff, which had already occurred when defendant made this motion, could be remedied by the payment of monetary damages. On appeal, defendants instead argue the trial court improperly failed to hold a plenary hearing before issuing the November 4, 2015 order. However, defendants did not seek timely reconsideration of that order. See R. 4:45-2. In any event, as set forth above, defendants' argument is meritless. 12 A-1471-15T3 Defendants' reconsideration motion attached a certification of defendants' current counsel relating events of which he had no personal knowledge, and certifications by Cornelius and Versey Martin stating current counsel's certification was "true to the best of my knowledge and belief." Thus, none of the certifications were legally competent under Rule 1:6-6. Estate of Kennedy v. Rosenblatt, 447 N.J. Super. 444, 456 (App. Div. 2016); Claypotch v. Heller, Inc., 360 N.J. Super. 472, 488-89 (App. Div. 2003). Moreover, counsel's certification made factual allegations which would have been "known to [defendants] prior to the entry of the order and [thus] were not an appropriate basis for reconsideration." Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010). In any event, counsel's argumentative certification did not show that any of the trial court's orders were founded "'upon a palpably incorrect or irrational basis.'" Pitney Bowes Bank, Inc., 440 N.J. Super. at 382 (quoting D'Atria, 242 N.J. Super. at 401). Defendants have not shown the trial court's denial of reconsideration was a clear abuse of discretion. Defendants' remaining arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Affirmed. 13 A-1471-15T3

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Docket No.: a1822-16
Decided: 2018-06-11
Caption: PROCAP II, LLC v. BLOCK 682, LOT 49, 6 KOOSMAN DRIVE, MIDDLETOWN, NEW JERSEY
Status: unpublished
Summary:
PER CURIAM In this in rem tax foreclosure, Clearview Equities, LLC appeals from a final order denying its motion to redeem plaintiff Pro Cap II, LLC's1 subsequent tax sale certificate. The Chancery judge found the motion came too late, after Clearview's right of redemption had already been cut off by Pro Cap's judgment in foreclosure, notwithstanding the judgment had yet to be recorded. We agree and affirm. The facts are undisputed and easily summarized. In December 2012, the tax collector of Middletown sold tax sale certificate 12-00411 on the property at 6 Koosman Drive to US Bank/Cust Tower DBW II. The following December, the tax collector sold tax sale certificate 13-00314 to Pro Cap. In July 2015, DBWII assigned its certificate to Clearview. Following pre-suit notice, which Clearview admits it received, Pro Cap filed a verified complaint in rem to foreclose its tax lien in January 2016. The following month, the Chancery 1 Pro Cap assigned its certificate to PCII REO LLC in May 2016, and the Chancery judge thereafter granted Pro Cap's motion to substitute PCII as plaintiff in the action. We follow the parties in continuing to refer to Pro Cap as plaintiff in this matter for ease of reference only. 2 A-1822-16T2 judge granted Pro Cap's motion declaring the property abandoned. When Clearview failed to answer following service of the complaint, Pro Cap entered default against it in June 2016. Final judgment was entered on July 5, 2016. Pro Cap served Clearview with the final judgment on August 17, 2016, and it was recorded nine days later. On August 22, a representative of Clearview appeared at the tax collector's office attempting to redeem Pro Cap's tax sale certificate, which the tax collector refused in light of the judgment debarring redemption. Clearview subsequently filed a motion contending its request to redeem was timely pursuant to N.J.S.A. 54:5-104.65 because Pro Cap had not yet recorded its judgment. Judge Del Bueno Cleary denied the motion. Acknowledging that N.J.S.A. 54:5-104.65 provides "the plaintiff shall be seized of an estate in fee simple . . . absolute and free and clear of all liens and encumbrances" upon the recording of a certified copy of the judgment, the judge found it provided Clearview no right to relief. Instead, the judge found N.J.S.A. 54:5-104.64(a) makes clear it is the entry of the judgment that gives full and complete relief, in accordance with the provisions of [the Tax Lien Law], and in accordance with any other statutory 3 A-1822-16T2 authority, to bar the right of redemption, and to foreclose all prior or subsequent alienations and descents of the lands and encumbrances thereon, and to adjudge an absolute and indefeasible estate of inheritance in fee simple in the lands therein described, to be vested in the plaintiff. [N.J.S.A. 54:5-104.64(a).] Clearview moved for reconsideration and to reopen the judgment under R. 4:50-1(d), rearguing the same points and adding that the judgment was void because the complaint was not verified by the tax collector and no tax foreclosure list had been prepared by the tax collector pursuant to resolution of the Township governing body. The judge denied reconsideration for the same reasons the initial motion was denied, determined the lack of verification by the tax collector was not fatal pursuant to Preparatory Temple and House of Prayer for All People, Inc. v. Seery, 81 N.J. Super. 429 (Ch. Div. 1963), and that plaintiff, obviously not a municipality, was not required to comply with N.J.S.A. 54:5-104.35. Plaintiff appeals, reprising the arguments made to the Chancery court. Our review of the record convinces us that none of plaintiff's arguments is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). 4 A-1822-16T2 N.J.S.A. 54:5-104.64(a) could not be clearer: it is the entry of final judgment, not the recording of that judgment, that gives "full and complete relief" barring "the right of redemption," and "foreclos[ing] all prior or subsequent alienations and descents of the lands and encumbrances thereon" and "adjudg[ing] an absolute and indefeasible estate of inheritance in fee simple in the lands therein described, to be vested in the plaintiff." As Judge Wecker cogently explained in Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 165 (App. Div. 2005), "[t]he holder of a prior tax sale certificate has an absolute right of redemption until that right is cut off by a judgment in foreclosure." " N.J.S.A. 54:5- 104.64(a) provides that such judgment 'shall give full and complete relief . . . to bar the right of redemption, and to foreclose all prior or subsequent . . . encumbrances' and grant an estate in fee simple to the plaintiff, which is accomplished by recording the judgment[,] N.J.S.A. 54:5-104.65." Id. at 166. That is precisely what occurred here. Clearview, the holder of a tax sale certificate that pre-dated Pro Cap's certificate, had an absolute right to redeem Pro Cap's certificate until that right was cut off by the July 5, 2016 final judgment. That Pro Cap was required to perfect its estate in fee simple by recording that judgment pursuant to N.J.S.A. 5 A-1822-16T2 54:5-104.65, does not alter the effect of the judgment as to Clearview. We agree with Judge Del Bueno Cleary that the alleged procedural defects, improper verification and failure to prepare the Township resolution and tax foreclosure list, have not been found to invalidate an entire in rem proceeding. See Borough of Paramus v. Block 1527, Lots 1-2, etc., 42 N.J. Super. 369, 375 (App. Div. 1956); Preparatory Temple, 81 N.J. Super. at 432-34. Further, it is obvious that the two requirements of which Clearview complains both reflect obligations imposed on municipalities, the only entities permitted to pursue in rem foreclosures prior to the 2015 statutory amendments permitting any person holding a tax lien on abandoned property to institute an in rem tax foreclosure. N.J.S.A. 54:5-86; L. 2015, c. 16. Affirmed. 6 A-1822-16T2

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Docket No.: a3692-16
Decided: 2018-06-11
Caption: WOODCLIFF LAKE INVESTORS I, LLC v. PLANNING BOARD OF THE BOROUGH OF WOODCLIFF LAKE
Status: unpublished
Summary:
PER CURIAM Plaintiff Woodcliff Lake Investors I, LLC (WLI) appeals from a Law Division judgment upholding a municipal planning board's imposition of a residential development fee on the multi-family townhouse development of WLI's property. We affirm. I. WLI was the contract purchaser of land in Woodcliff Lake Borough on which were seven single-family homes (the property). The property is in the R-30 Zone, a one-family residential zone. After several years of negotiations between WLI and borough officials, on July 14, 2014, the governing body adopted an ordinance creating a Townhome Overlay District (THO) in the R-30 Zone, allowing for the development of multi-family townhomes not otherwise permitted in the zone. WLI's property is in the THO. A provision of the borough's zoning ordinance allows for the collection of a residential development fee of 1% of the equalized assessed value of any new one-family dwelling constructed in specified zones in the borough, minus the equalized assessed value of any dwelling being replaced. The fee is intended to assist in the construction of affordable housing. The ordinance lists the R-30 Zone, but not the THO, in the provision authorizing the collection of the residential development fee. 2 A-3692-16T3 On August 18, 2015, the Woodcliff Lake Borough planning board approved WLI's application to demolish the seven existing single- family dwellings on the property and construct forty residential townhome units with related improvements. Over plaintiff's objection, the approving resolution, adopted on September 28, 2015, included a provision assessing the residential development fee based on the planning board's finding that the property is within the R-30 Zone. WLI thereafter filed a complaint in lieu of prerogative writ challenging the imposition of the fee. WLI argued that because the ordinance did not expressly list the THO among the zones in which imposition of the fee is authorized, assessment of the fee on the development of WLI's property was unlawful. In addition, WLI argued the municipality was not authorized to collect the fee because it lacks a housing element fair share and compliance plan approved by the Council on Affordable Housing (COAH). See N.J.A.C. 5:94-6.3 (expired) ("no municipality, except . . . municipalities seeking to achieve . . . a judgment of compliance, shall impose or collect development fees . . . .").1 After a trial on stipulated facts, Judge William C. Meehan issued a written opinion rejecting WLI's arguments. Judge Meehan 1 Plaintiff does not pursue this argument on appeal. 3 A-3692-16T3 found that the THO does not supersede the R-30 Zone, but is an overlay of the zone. Thus, properties in the THO are also in the R-30 Zone. In addition, the judge held that exempting development in the overlay zone from the fee otherwise applicable in the R-30 Zone would contravene the intention of the drafters of the ordinance. The court also rejected WLI's argument that a 2015 amendment to the ordinance evinced an intention to limit application of the fee in overlay zones, except for one overlay zone concerning senior housing expressly included in the ordinance. Finally, Judge Meehan noted that in In re N.J.A.C. 5:96 & 5:97, 221 N.J. 1, 8 (2015), the Court transferred COAH's responsibilities to the Superior Court. He held that it was not the Court's intent to prevent municipalities from collecting the fee while the courts implemented COAH's mandates. On March 20, 2017, the trial court entered a judgment dismissing plaintiff's complaint with prejudice. This appeal followed. Having considered plaintiff's arguments in light of the record and applicable legal standards, we affirm substantially for the reasons expressed in the cogent and well-reasoned written opinion of Judge Meehan. R. 2:11-3(e)(1)(E). Affirmed. 4 A-3692-16T3

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Docket No.: a3852-15
Decided: 2018-06-11
Caption: WILLIAM BLACK v. FRANK MELCHIORRE
Status: unpublished
Summary:
PER CURIAM Plaintiff William Black appeals from a February 3, 2016 order, denying leave to amend his interrogatories to add additional fact witnesses; a February 3, 2016 order granting summary judgment to defendants Berkeley Heights Board of Education (Board),1 high school principal Scott McKinney, and assistant principal Mary Ann McAdam; and an April 7, 2016 order denying plaintiff's motion for reconsideration. Plaintiff claimed that his late son's high school failed to properly investigate a teacher who was providing students, including plaintiff's son, with drugs at the teacher's home. Plaintiff contended that his son's death from a drug overdose – which occurred approximately a year after the son's high school graduation – was caused by the school's negligent conduct. The trial court granted summary judgment in favor of the school 1 The complaint mistakenly named a high school in the school district; however, the Board was the proper party defendant. 2 A-3852-15T3 defendants due to the lack of evidence that the school's negligence was a proximate cause of the son's death.2 Plaintiff raises the following issues on this appeal: I. THE COURT ERRED IN IMPOSING THE "SINS" OF THE PLAINTIFF'S PREVIOUS ATTORNEY ON THE BLAMELESS PLAINTIFF IN NOT ALLOWING THE LATE AMENDMENT TO ANSWERS TO INTERROGATORIES IN ORDER TO NAME FACT WITNESS[ES] BEAUMONT-BELT, CAPONEGRO, BREANNE AND KATHLEEN BLACK AND KENNETH BURKETT. II. THE COURT ERRED IN MAKING A DETERMINATION THAT THE TESTIMONY OF JOHN BEAUMONT-BELT AND GREGORY CAPONEGRO RECOUNTING STATEMENTS MADE TO THEM BY THE DECEDENT WOULD NOT BE ADMISSIBLE WITHOUT CONDUCTING A HEARING UNDER [] N.J.R.E. 104. III. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS BY FAILING TO GIVE THE PLAINTIFF THE BENEFIT OF ALL REASONABLE INFERENCES WHICH COULD BE DRAWN FROM THE AVAILABLE EVIDENCE AND BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT WHICH REQUIRED A JURY DETERMINATION. Our review of a summary judgment order is de novo, using the Brill3 standard, the same test employed by the trial court. See Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Accordingly, we determine whether there are material facts in dispute and, if not, whether 2 Plaintiff reached a settlement with the teacher, defendant Frank Melchiorre. 3 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). 3 A-3852-15T3 the undisputed facts, viewed most favorably to plaintiff would nonetheless entitle defendants to judgment as a matter of law. See Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014). We review a decision to extend discovery deadlines for abuse of discretion. See Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div. 2005). We apply the same standard to a trial judge's decision to grant or deny a reconsideration motion. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Because we agree with the trial court that there were no material facts in dispute and the undisputed facts were insufficient to establish proximate cause, we affirm the order granting summary judgment. We find no abuse of the trial court's discretion in denying plaintiff's untimely motion to amend the interrogatories, and in denying plaintiff's reconsideration motion. Accordingly, we affirm the remaining orders as well. I The following facts are drawn from the summary judgment record, including defendants' statement of material facts and plaintiff's responses. The record includes the son's testimony at a deposition, taken in connection with unrelated litigation concerning his brother's death.4 The son also gave sworn 4 The brother died in an alcohol-related car accident when the son was fifteen. 4 A-3852-15T3 statements to the police, after the teacher was arrested. According to the son's sworn testimony and statement to the police, he had been using marijuana since 2008, when he was fifteen years old. The son smoked marijuana at the teacher's apartment beginning in December 2009, when he was sixteen. The son denied using any other drug, or alcohol, at the teacher's home. He also denied that the teacher supplied any of the students with anything but marijuana and alcohol. In January 2010, during a contentious disciplinary meeting about his own son, a parent told school officials that a certain teacher was smoking marijuana with students. There is no dispute that the school safety police officer was present during this meeting. A school official contacted the teacher, a well-regarded science educator, who denied the allegation. The school took no further action to investigate the claim. However, the police conducted an extensive investigation of the teacher, whom they suspected of using drugs with students. The police were unable to find any evidence against him until November 2010, when fortuitously, the teacher had an unexplained absence from work and the school asked the police to visit his house and check on his welfare. During that visit, the police found marijuana and drug paraphernalia. The teacher was arrested, and suspended from his teaching position. There is no evidence 5 A-3852-15T3 that the son went to the teacher's house or used marijuana with him after the November 2010 arrest. According to the son's deposition testimony, he stopped smoking marijuana in March 2011. The son graduated from high school in June 2011 and began attending college in Florida the following fall. After his first year of college, the son came home to his father's house in New Jersey. On June 3, 2012, the son and two friends went to North Plainfield and bought MDMA (also known as ecstasy or "molly"). On June 4, 2012, the son was found unconscious in his bedroom from a drug overdose. He died in the hospital on June 6, 2012. The police found assorted drug-related paraphernalia in his bedroom, including packaging associated with heroin. The cause of death was a morphine-related overdose. In a lengthy oral opinion issued on February 3, 2016, Judge Camille M. Kenny concluded that the school authorities had a duty to investigate the allegations that the teacher was providing drugs to students. She also reasoned that, viewing the evidence in the light most favorable to plaintiff, a jury could find that the school authorities breached that duty. However, the judge found that the admissible evidence could not establish that the son's use of marijuana at the teacher's home was a proximate cause of the son's death from a morphine-related overdose, eighteen 6 A-3852-15T3 months after his last visit to the teacher's apartment. The judge found that plaintiff's causation expert relied on witness statements that the judge had already excluded as untimely. She also noted that some of those witness statements contained inadmissible hearsay.5 In addition, the judge reasoned that, in light of the extensive and unsuccessful police investigation of the teacher, there was no evidence that, if the Board had conducted its own investigation, the Board "would have found enough [evidence] to do something about it" before the teacher was arrested in November 2010. II After reviewing the summary judgment record de novo, we find no basis to disturb Judge Kenny's well-reasoned decision granting summary judgment. We affirm substantially for the reasons stated in her opinion. The summary judgment evidence could not support a finding that the son's use of marijuana at the teacher's home was a proximate cause of his morphine-related overdose more than a year later. 5 In those statements, the son's former college roommates, Mr. Caponegro and Mr. Beaumont-Belt, said that while the son was in college, he told them that cocaine and other hard drugs were available at the teacher's home. In addition to being hearsay, those statements contradicted the son's earlier sworn testimony that he only saw alcohol and marijuana at the teacher's home. 7 A-3852-15T3 In addition, we agree that there was no evidence that the school's failure to conduct a more complete investigation was a proximate cause of the son's death. The teacher's activities were not conducted on school premises or even in the same town as the school, but rather at the teacher's apartment, located in another town. The police conducted an extensive investigation of the teacher. The police did not catch the teacher until they made a community caretaking visit to his home in November 2010. There is no evidence on which to conclude that, if school officials had conducted a separate investigation, they would have discovered evidence of the teacher's misconduct any sooner than the police did. Nor can we find any abuse of discretion in the judge's decision to bar plaintiff's very belated attempt to amend his interrogatories to add new fact witnesses. See Bender v. Adelson, 187 N.J. 411, 428-29 (2006); Rivers, 378 N.J. Super. at 80-81. As plaintiff's counsel conceded at oral argument on the discovery motion, plaintiff's case on causation had a significant gap: there was no evidence linking the son's use of heroin and MDMA in June 2012 with his earlier visits to the teacher's home during high school. Nor was there evidence of his continuing drug use between March 2011 and June 2012. 8 A-3852-15T3 After at least seven discovery extensions, and only a few weeks before the scheduled trial date, plaintiff sought to plug that gap by naming additional fact witnesses. Judge Kenny denied the motion, noting that there were no extraordinary circumstances warranting relief from the most recent discovery deadline, which had long since expired, and granting relief would prejudice the defendants. She reasoned that plaintiff should have known about the proposed witnesses, who were his son's friends and family members, and his attorney could have included their names in discovery much earlier. We find no error in that reasoning, and no abuse of discretion in the judge's decision. In denying plaintiff's reconsideration motion, the judge also noted that some of the proposed witness statements were hearsay. We agree. Portions of the statements — which recounted alleged comments by the son about seeing heroin at the teacher's apartment – constituted hearsay, because plaintiff intended to offer the son's remarks for their truth. See N.J.R.E. 801(c); N.J.R.E. 802. The hearsay was also untrustworthy, and therefore not admissible as the statement of a decedent under N.J.R.E. 804(b)(6), because 9 A-3852-15T3 the remarks contradicted the son's earlier sworn testimony about what happened at the teacher's home.6 Affirmed. 6 In light of our disposition of this appeal, we need not address defendants' arguments premised on the Drug Dealer Liability Act, N.J.S.A. 2C:35B-1 to -17. 10 A-3852-15T3

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Docket No.: a4171-15
Decided: 2018-06-11
Caption: CONCERNED CITIZENS OF LIVINGSTON v. TOWNSHIP OF LIVINGSTON
Status: unpublished
Summary:
PER CURIAM Plaintiff Concerned Citizens of Livingston appeals from a May 10, 2016 order dismissing its complaint challenging the notice given concerning zoning ordinance 22-2015 (Ordinance) of defendant Township of Livingston (Township). The trial court dismissed the complaint as untimely under Rule 4:69-6(a). We agree with the court that notice was fatally deficient because the Ordinance changed the classification of the zone. We also agree that the complaint was filed beyond the rule's time period. However, we find the fatal notice deficiency justified an enlargement of time under Rule 4:69-6(c). Accordingly, we affirm in part, reverse in part, and remand. I. Plaintiff filed a verified complaint, stating plaintiff is a representational plaintiff comprised of residents of Livingston living within 200 feet of a particular lot (Lot) as well as residents living beyond 200 feet who are impacted by the Ordinance. Plaintiff claimed that, prior to the adoption of the Ordinance, 2 A-4171-15T3 the Township's zoning ordinances prohibited the development of an assisted living facility on the Lot. Plaintiff alleged the Ordinance was passed to enable intervenor Sunrise Development, Inc. (Sunrise) to build an assisted living facility on the Lot. At its September 24, 2015 meeting, defendant Planning Board of the Township of Livingston (Board) recommended the proposed Ordinance to defendant Livingston Township Council (Council), the Township's governing body. The Council gave published notice of its October 26, 2015 meeting by faxing the agenda to the West Essex Tribune and the Star-Ledger. The agenda stated there was a proposed Ordinance about "Assisted Living - Conditional Use," and added: "Purpose: Amends Township Code to allow Assisted Living Facilities as a conditional use when certain criteria are met." No other notice was given to members of the public. On October 26, the Council introduced the proposed Ordinance for first reading. The Council referred the proposed Ordinance to the Board to determine if the Ordinance was consistent with Livingston's master plan. As discussed below, the Council on October 29, 2015, gave notice only by publication that the Ordinance would be considered for final passage on November 9, 2015. The Council did not provide written notice to property owners within 200 feet of the affected zones. 3 A-4171-15T3 At its November 3, 2015 meeting, the Board considered the Ordinance. Notice of the meeting was published in the West Essex Tribune and posted on a bulletin board. The Board's agenda simply stated that it was reviewing the Ordinance about "Assisted Living - Conditional Use." No members of the public appeared in connection with the Board's review of the Ordinance. The Board determined the Ordinance about "Assisted Living - Conditional Use" was consistent with the master plan. On November 9, twelve days after the Ordinance's introduction in the Council, the Council adopted the Ordinance by title only, without reading it publicly. No members of the public appeared or spoke at the Council meeting regarding the Ordinance. On November 12, 2015, the Township clerk published in the West Essex Tribune a notice simply stating that the Ordinance had been passed on November 9. On February 2, 2016, the Board held a hearing on Sunrise's application to build an assisted living facility on the Lot. Sunrise concedes its proposal was designed to be consistent with the Ordinance. On March 31, 2016, plaintiff filed an action against the Township, the Council, and the Board (defendants). The complaint contained three counts, alleging violation of: (1) the notice requirements of N.J.S.A. 40:55D-62.1; (2) the prohibition on spot 4 A-4171-15T3 zoning; and (3) the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-2. The trial court granted plaintiff's request to temporarily restrain the Board from considering Sunrise's application. The Township filed an answer, and a motion to dismiss count three for failure to state a claim upon which relief can be granted under Rule 4:6-2(e). On April 22, 2016, the trial court issued an order granting Sunrise's motion to intervene. On May 10, 2016, the trial court sua sponte dismissed the entire complaint because it was not filed within forty-five days of the publication of the enacted Ordinance. The court denied plaintiff's oral motion for a stay. We denied plaintiff's emergent motion seeking a stay pending appeal. II. Whether the complaint challenging the Ordinance should have been dismissed as untimely depends in part on whether notice concerning the Ordinance was deficient. Thus, we begin by reviewing the trial court's decision that the notice was fatally deficient. The notice generally required is set forth in N.J.S.A. 40:49- 2(a), which provides that, after the first reading, a proposed ordinance shall be published in its entirety or by title or by title and summary at least once in a newspaper published and circulated in the 5 A-4171-15T3 municipality, if there be one, and if not in a newspaper printed in the county and circulating in the municipality, together with a notice of the introduction thereof, the time and place when and where it will be further considered for final passage, a clear and concise statement prepared by the clerk of the governing body setting forth the purpose of the ordinance, and the time and place when and where a copy of the ordinance can be obtained without cost by any member of the general public who wants a copy of the ordinance. After the first reading of the Ordinance, the Council issued a public notice dated October 29, 2015, published in the West Essex Tribune, which stated the Ordinance had been "introduced and passed on first reading" on October 26, and would be considered for final passage on November 9, 2015, at 8:00 p.m. at the M&PB. The published notice printed the entire Ordinance, whose preamble stated its purpose, and also advised that copies were available at the clerk's office. This complied with N.J.S.A. 40:49-2(a). However, the trial court found that under Robert James Pacilli Homes, LLC v. Twp. of Woolwich [Pacilli], 394 N.J. Super. 319 (App. Div. 2007), "the notice provisions of N.J.S.A. 40:55D-62.1 [we]re triggered, requiring certified mail notices to property owners within the affected zones as well as property owners within 200 feet of the affected zones." We agree. The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, imposes additional notice requirements for certain ordinances. 6 A-4171-15T3 N.J.S.A. 40:55D-62.1 "directs that all property owners within a zoning district shall receive personal notice if the municipal body seeks to change the classification or boundaries of a zoning district." Pacilli, 394 N.J. Super. at 329; see Grabowsky v. Twp. of Montclair, 221 N.J. 536, 558-59 (2015). The statute provides: Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district . . . shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district, and located, in the case of a boundary change, in the State within 200 feet in all directions of the proposed new boundaries of the district which is the subject of the hearing. Notice shall be given to a property owner by: (1) serving a copy thereof on the property owner as shown on the said current tax duplicate, or his agent in charge of the property, or (2) mailing a copy thereof by certified mail and regular mail to the property owner at his address as shown on the said current tax duplicate. [N.J.S.A. 40:55D-62.1 (emphasis added).] It is undisputed the Council did not serve or mail a copy of the Ordinance to all property owners within the district and within 200 feet of the district. Thus, whether notice was adequate 7 A-4171-15T3 depends on whether the Ordinance "propos[ed] a change to the classification . . . of a zoning district." Ibid. "We examined what the MLUL intended by a 'classification' change in [Pacilli], recognizing that '[u]nlike many terms found in the MLUL, "classification" is not defined.'" Mahwah Realty Assocs., Inc. v. Twp. of Mahwah, 430 N.J. Super. 247, 253 (App. Div. 2013) (quoting Pacilli, 394 N.J. Super. at 329). "Until the Legislature adopts some different meaning, we will continue to apply, as we apply here, Pacilli's general understanding of the term[.]" Id. at 254 (footnote omitted). In Pacilli, we ruled that "in its most general sense, classification refers to the use permitted in a zoning district, such as residential, commercial or industrial, as well as sub- categories within the broader uses, such as single-family residential and high-density residential, highway commercial and neighborhood commercial, and highway retail and neighborhood retail." 394 N.J. Super. at 330-31. Classification also refers to "uses that may be permitted under certain conditions within a generally designated category. A change in any of these broad categories and sub-categories has the capacity to fundamentally alter the character of a zoning district." Id. at 331. We also ruled in Pacilli that "classification" also "include[s] changes to the density, bulk and height standards and 8 A-4171-15T3 conditions applicable to designated uses," because "changes in bulk and density requirements within a zone can effect a substantive change in future development within a zone without any alteration to the label applied to the zone." Id. at 331-32. Thus, determining "the type of notice to be provided on the occasion of a proposed amendment to a zoning ordinance should focus on the substantive effect of the amendment rather than the appellation given to the zone." Id. at 332. In Pacilli, we held an amendment which made "sweeping" changes to the bulk and density requirements in two residential zoning districts "dramatically altered the intensity of the residential use within each zone and promised to affect the character of the future development in both zones." Id. at 332. We observed "the scope of the changes . . . is illustrated simply by focusing on the maximum gross density per acre," which changed from one unit per two acres under the existing zoning laws and the ordinance's "Option 1" to one unit per ten acres under the ordinance's "Option 2." Ibid. We ruled that change itself "effects a fundamental alteration of the character of this zoning district." Id. at 332. Therefore, "the Township Committee was required to follow the notice requirements of N.J.S.A. 40:55D-62.1," and as it did not, the ordinance was "invalid." Id. at 333. 9 A-4171-15T3 As the trial court found, the Ordinance made similarly "sweeping changes" to the bulk and density requirements for assisted living facilities. Before its passage, section 170-88.1 of the existing Township Code provided that an assisted living facility was a permissible conditional use in any zone, with specified exceptions. Such a facility had to have: road frontage and direct access to one of seven roads, including South Orange Avenue or Passaic Avenue; a minimum lot size of six acres; minimum frontage width of 100 feet; minimum setbacks of 100 feet from residential property lines and seventy-five feet from non- residential property lines; maximum impervious coverage of 50%; a maximum building height of thirty-five feet; a maximum of twenty units per acre; and a maximum total number of units of 5% of the number of single-family detached dwelling units in the Township. The Ordinance added a new subsection to section 170-88.1 that provided that an assisted living facility could be permitted as a conditional use in any zone, with an increased number of exceptions, if it had: road frontage and direct access to South Orange Avenue or Passaic Avenue; a minimum lot size of three acres; a minimum frontage width of 200 feet; minimum setbacks of twenty- five feet from both residential and non-residential property lines with 150 feet from any dwelling; a maximum impervious coverage of 60%; and a maximum building height of thirty-five feet or three 10 A-4171-15T3 stories, or forty-seven feet or four stories plus a six-foot mansard if set back 100 feet; a maximum of 32.31 units per acre. The Ordinance also exempted affordable housing units from the maximum total number of assisted living units which were limited to 5% of the number of single-family detached dwelling units in the Township. The Ordinance also required: a minimum of 102 units with thirteen affordable housing units and a maximum of 105 units with fourteen affordable housing units; specific setbacks for the principal building and gazebo; and specific requirements for parking and landscape buffers. We agree with the trial court's findings that the Ordinance's changes are sweeping in that they allow for 32.21 units per acre on 3 acre lots, rather than the 20 units per acre on 6 acre lots in the pre-existing ordinance. The Ordinance removes most of the protections in place that buffered surrounding neighbors, and increases the allowable building height from 35 feet to 47 feet, all while placing the buildings in closer proximity to roads and adjoining properties. The trial court explained that under the Ordinance, "[t]he required front yard setback changed from 100 feet to 75 feet," and "[r]equired rear and side setbacks" changed from "100 feet from residential property lines" "to only 25 feet." The court found the Ordinance "decreases the lot size and increases the density, increases the building height and decreases nearly every setback 11 A-4171-15T3 requirement." The court concluded the Ordinance made "significant changes that adversely affect the single family residential nature of the R-1 zone, and thereby fundamentally alter the character of the zoning district." We agree. Sunrise argues the Ordinance's changes are less sweeping than those in Pacilli. However, like the ordinance in Pacilli, the Ordinance changed minimum lot width; minimum front, side, and rear setbacks; maximum impervious coverage; minimum lot size; and maximum unit density per acre. The Ordinance also changed the maximum building height, and made other changes. Sunrise notes "the test is not the number of changes but the substance of the changes." Pacilli, 394 N.J. at 333. However, the Ordinance's changes are comparable in substance to those in Pacilli. For example, the Ordinance decreased the minimum acreage by 50%, decreased the side and rear setbacks by 66.6%, and increased the maximum number of units per acre by over 61%. The Ordinance changed by three acres the minimum lot size, as did the ordinance's Option 2 in Pacilli for each half unit. Because the zoning code already conditionally permitted assisted living facilities in the R-1 zone, Sunrise argues the Ordinance did not change the uses or sub-categories of uses. The same was true in Pacilli - the residential zones already permitted homes – but the ordinance changed "the intensity of the permitted 12 A-4171-15T3 use." Id. at 330. The Ordinance did the same. The total effect of the Ordinance's changes allowed an assisted living facility with 105 units on the Lot, which was half the size of the lot required for any assisted living facility or units under the existing zoning code. The trial court found the Ordinance "allow[ed] for the construction of an assisted living facility on a lot where it could not have previously been constructed." The court noted the R-1 zone was "designed for single-family homes on lots not smaller than 35,520 square feet," that is, one house per lot of at least 7.28 acres. Allowing the densely-populated assisted living facility in the R-1 zone of seven-acre housing lots was a substantial change comparable to that made by Option 2 in the ordinance in Pacilli, which "transform[ed] a zoning district of generous lots to one of manorial proportions." Id. at 332. We recognize the change in Pacilli affected the housing lots in the residential zones, while the change here affected a conditional use in the R-1 residential zone.1 However, we have already found that a change in one of many uses may constitute a significant enough change under Pacilli. In Mahwah, we held "an 1 The Ordinance also changed the uses in other zones, including by providing that "[a]n assisted living facility, congregate senior living facility or nursing home" were no longer permitted in zones R-5F, R-5G, R-5H, and R-5I. 13 A-4171-15T3 ordinance that authorizes 'health and wellness centers' and 'fitness and health clubs' in two industrial zones changes the 'classification' of those zones." 430 N.J. Super. at 250. We ruled "[t]he additional uses in question fundamentally alter the industrial zoning districts" because the "proposed uses are clearly discordant from the uses permitted in the affected industrial zoning districts[,]" which included "public parks, playgrounds or athletic fields." Id. at 254-55. The Ordinance allowed a densely-populated assisted living facility that was comparably "dissimilar" to and "discordant" from the seven-acre per unit residential lots in the R-1 zone. Ibid. Because the Ordinance worked a classification change, N.J.S.A. 40:55D-62.1 required certified mail notices to property owners within the affected zones concerning the proposed Ordinance. As the trial court found: "This was not done by Livingston, and the failure to do so would invalidate the Ordinance."2 2 Plaintiff contends that the personal notice here should have included "an identification of the affected zoning districts and proposed boundary changes, if any, by street names, common names or other identifiable landmarks, and by reference to lot and block numbers." N.J.S.A. 40:55D-62.1. In Mahwah, however, we held "N.J.S.A. 40:55D-62.1 requires only identification of the zoning districts affected by the classification change. The additional requirement for identification of the specific impacted properties only applies when a change in boundaries is proposed." 430 N.J. Super. at 250, 255-60. 14 A-4171-15T3 III. Despite finding that required personal notice of the Ordinance was not given to plaintiff's members, the trial court sua sponte dismissed plaintiff's complaint because it was untimely. The court found the complaint was not filed within the period set in Rule 4:69-6(a), and there was no reason to enlarge that period under Rule 4:69-6(c). We address each in turn. A. Plaintiff does not contest that its action is governed by Rule 4:69-6(a). "No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed, except as provided by paragraph (b) of this rule." Ibid. Here, the Ordinance was adopted on November 9, 2015, and notice of its adoption was given by a publication on November 12, 2015. Defendants argue that the right to review accrued on the date of the notice. N.J.S.A. 40:49-2(d) provides: Upon passage, every ordinance, or the title, or the title and a summary, together with a notice of the date of passage or approval, or both, shall be published at least once in a newspaper circulating in the municipality, if there be one, and if not, in a newspaper printed in the county and circulating in the municipality. No other notice or procedure with respect to the introduction or passage of any ordinance shall be required. 15 A-4171-15T3 Plaintiff argues the lack of personal notice meant that its cause of action did not accrue upon publication and that the forty- five days never began to run. Plaintiff cites Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361, 401 (App. Div. 2008). However, DeRose concerned the question whether a property owner who fails to challenge a redevelopment designation containing his or her property within forty- five days of its adoption by a municipal governing body, pursuant to the Local Redevelopment and Housing Law ("LRHL"), N.J.S.A. 40A:12A-1 to -49, may still challenge, in full or in part, the public purpose of the taking of his or her property, by way of a defense in an ensuing condemnation action. [Id. at 367.] In DeRose, we held an owner could raise such a challenge "unless a municipality provides the property owner with contemporaneous written notice that" the owner's property has been designated for redevelopment and could be acquired against the owner's will unless he challenged that designation with a specified period. Id. at 367-68. "Conversely, we also h[e]ld that if the municipality's notice does contain these constitutionally- essential components, an owner who wishes to challenge the designation presumptively must bring an action, in lieu of prerogative writs, within forty-five days of the municipality's adoption of the designation." Id. at 368. 16 A-4171-15T3 The question we faced in DeRose is not posed here. This case does not concern redevelopment or condemnation, let alone the defenses available in condemnation. See Milford Mill 128, LLC v. Borough of Milford, 400 N.J. Super. 96, 115 n.10 (App. Div. 2008) (distinguishing DeRose). The Ordinance did not threaten to take the properties of plaintiff's members against their will. See Town of Kearny v. Disc. City of Old Bridge, Inc., 205 N.J. 386, 404-05 (2011) (distinguishing DeRose where the plaintiff was a tenant and not the owner of the property targeted for redevelopment). No constitutional challenge has been raised here. See Iron Mountain Info. Mgmt., Inc. v. City of Newark, 202 N.J. 74, 78 (2010) (same). Because DeRose "addressed an entirely different question," the trial court properly did not find DeRose controlling. See ibid. Thus, the right of review accrued on November 12, 2015, when notice of the Ordinance's passage was published.3 Plaintiff's complaint was not filed until March 31, 2016. Thus, plaintiff's action was not filed within the forty-five day period in Rule 4:69-6(a). 3 Thus, this case does not resemble Trenkamp v. Burlington, 170 N.J. Super. 251 (Law Div. 1979), where the court found accrual was delayed because there was "no statute requiring a public announcement in connection with applications for or issuance of building permits." Id. at 259. 17 A-4171-15T3 B. Rule 4:69-6(c) provides that "[t]he court may enlarge the period of time provided in paragraph (a) or (b) of this rule where it is manifest that the interest of justice so requires." The trial court found it was not in the interests of justice to relax the time limit. The court reasoned: "Despite the fact that mailed written notice was not provided to individual landowners, notice was provided by publication, in the same manner that all other ordinance change notices are provided." The court found that "was sufficient notice to the residents of Livingston that the Ordinance change was to take effect." However, the notice provided after the Ordinance's passage bore no resemblance to the notice that plaintiff's members were entitled to receive. As discussed above, N.J.S.A. 40:55D-62.1 required defendants to give plaintiff's members personal notice by hand-service or by both certified and regular mail that the Ordinance was being considered for final passage. That notice was required to state "the nature of the matter to be considered and an identification of the affected zoning districts." Ibid. Had defendants sent plaintiff's members the October 29 notice, they would have received the full text of the Ordinance, which would have alerted them not only to the zoning districts affected, but also the Ordinance's rationale that assisted living facilities 18 A-4171-15T3 should "be encouraged at appropriate locations by reductions in minimum lot size requirements, limited increases in permitted density and building height and other bulk changes," and to the details of the lot size, density, height, setback, and other changes. By contrast, the only notice that the Ordinance had been passed was a tiny item published on November 12, 2015, in the West Essex Tribune stating that the "TOWNSHIP OF LIVINGSTON PASSED [AN] ORDINANCE" on November 9, 2015, and describing only as "ORDINANCE NO. 22-2015[:] ORDINANCE OF THE TOWNSHIP OF LIVINGSTON AMENDING CHAPTER 170 OF THE CODE OF THE TOWNSHIP OF LIVINGSTON." That notice gave no clue about the subject or content of the Ordinance unless the reader knew Chapter 170 was the "Land Use" chapter of the Code, and even then the notice did not specify the section or subsection amended. That notice published in the West Essex Tribune provided none of the information which plaintiff's members would have received through personal service of the October 29 notice under N.J.S.A. 40:55D-62.1. These circumstances "satisfy the standards in Rule 4:69-6(c) and warrant enlargement of the forty-five-day period because 'it is manifest that the interest of justice so requires.'" See Hopewell Valley Citizens' Grp. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569, 571 (2011). "[T]he plain language of paragraph (c) 19 A-4171-15T3 suggests that a court has discretion to enlarge a Rule 4:69-6(a) or (b) timeframe when it perceives a clear potential for injustice." Id. at 578. "Our Supreme Court has recognized that cases 'involving: (1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification' have satisfied the 'interest of justice' standard in Rule 4:69-6(c)." Mullen v. Ippolito Corp., 428 N.J. Super. 85, 106 (App. Div. 2012) (citation omitted); see In re Ordinance 2354-12 of W. Orange, 223 N.J. 589, 601 (2015). However, that "list of exceptions was not intended to be exhaustive." Hopewell Valley, 204 N.J. at 584. Courts have also "recognized municipal negligence as a basis for invoking Rule 4:69." Ibid. (citing Reilly v. Brice, 109 N.J. 555, 557 (1988)). In Reilly, "the challenge to the council's ratification of a four-year $20,000 municipal consulting contract was not brought until five months after it occurred." Id. at 580 (citing Reilly, 109 N.J. at 557). The published agenda for the meeting did not list the contract as an agenda item, and the minutes of the meeting "failed to state any of the specifics of the contract." Reilly, 109 N.J. at 559-60. 20 A-4171-15T3 Our Supreme Court in Reilly "attributed the blame for the lateness of that proceeding to the negligence of the municipality" because "'the descriptions of the proposed public action [could have] been more specific' on the agenda of the meeting that was published." Hopewell Valley, 204 N.J. at 580-81 (quoting Reilly, 109 N.J. at 559-60). The Court "h[e]ld that in the circumstances of this case the proper exercise of discretion is to enlarge the forty-five day limitation to allow review of the challenged municipal action." Reilly, 109 N.J. at 557. The Court reversed the trial court's denial of an extension, and itself enlarged the time. Id. at 560-61. In Reilly, the Court noted "[p]laintiffs assert no private interest in challenging this contract, but rather seek vindication of the public interest." Id. at 558. The Court acknowledged that "[b]alanced against these public interests, however, is the important policy of repose expressed in the forty-five day rule." Id. at 559. The rule "is designed to encourage parties not to rest on their rights. In general, ignorance of the existence of a cause of action will not prevent the running of a period of limitations except when there has been concealment." Id. at 559. However, "[i]mportantly, the concealment need not be intentional or malicious, as evidenced by the fact[s] . . . in Reilly[.]" Hopewell Valley, 204 N.J. at 580. 21 A-4171-15T3 Here, even if unintentional and non-malicious, the concealment of the nature of the Ordinance was at least as significant as the concealment in Reilly. As in Reilly, the concealment primarily occurred in the notice preceding the meeting in which the challenged municipal action was taken, and was compounded by the lack of detail in the subsequent statement of what action had been taken. As set forth above, defendants' failure to mail personal notice to plaintiff's members deprived them of the individual service of information required by N.J.S.A. 40:55D-69.1, and the notice after the Ordinance's passage gave them little if any information. The delay in filing the complaint here was shorter than the five-month delay in Reilly. In addition to the private interests of plaintiff's members, there are public interests at stake here. "Our courts have found a sufficient public interest to justify an extension of time for filing a prerogative writ action in a variety of circumstances, including challenges to the validity of ordinances on the ground that they were not adopted in conformity with the applicable statutory requirements." Willoughby v. Planning Bd. of Deptford, 306 N.J. Super. 266, 277 (App. Div. 1997) (citing Reilly, 109 N.J. at 560-61). The failure to provide personal notice as required by N.J.S.A. 40:55D-62.1 contravenes the public interest in ensuring residents in a district know of their opportunity to 22 A-4171-15T3 oppose a change in its classification. See Pacilli, 394 N.J. Super. at 333. There is also a public interest in opposing spot zoning, which is "'the use of the zoning power to benefit particular private interests rather than the collective interests of the community.'" Riya Finnegan Ltd. Liab. Co. v. Twp. Council of S. Brunswick, 197 N.J. 184, 195 (2008) (citation omitted). Considered together, there was "sufficient public interest to warrant relaxation of the forty-five-day filing limitation through application of Rule 4:69-6(c)." Concerned Citizens of Princeton, Inc. v. Mayor & Council of Princeton, 370 N.J. Super. 429, 447 (App. Div. 2004); see DeRose, 398 N.J. Super. 361, 418 (App. Div. 2008) (ruling an enlargement under Rule 4:69-6(c) was justified by the public interest and "[t]he multiple defects of notice"); Wolf v. Shrewsbury, 182 N.J. Super. 289, 296 (App. Div. 1981) (reversing the denial of an enlargement where notice was inadequate). Sunrise cites Rocky Hill Citizens for Responsible Growth v. Planning Bd. of Rocky Hill, 406 N.J. Super. 384 (App. Div. 2009). In Rocky Hill, we upheld denial of an enlargement largely because "the ordinance was the subject of intense debate at all times. Public consideration of this ordinance was extensive," and "participation was substantial" at the public hearings, which one of the plaintiffs attended, yet plaintiffs adopted "a 'wait and 23 A-4171-15T3 see' strategy" and failed to file a complaint for nearly two years. Id. at 402-03.4 Here, by contrast, the notice for the hearing on the Ordinance was fatally deficient, no member of the public appeared in connection with the Council's review of the Ordinance, there is no claim any member of plaintiff was aware of the Ordinance at or near its November 2015 passage, and plaintiff filed its complaint within five months. Those circumstances were sufficient to justify an enlargement under Reilly. Sunrise claims plaintiff had actual knowledge of the adoption of the Ordinance in early January 2016. Sunrise cites the verified complaint and certification signed by Lidia Dumytsch. She identified herself as "an owner of property within 200 feet of the [Lot]," "a member of" plaintiff, plaintiff's volunteer "Secretary/Treasurer," and the "Tax Assessor for the Township of Livingston." In the complaint and her certification, she attested she was unaware of the Ordinance until after she received a request as the Tax Assessor to prepare a list of property owners who lived within 200 feet of the Lot for Sunrise's application to the Board 4 In Rocky Hill, we also noted other aspects of cases granting enlargement were not present, such as issues of "the constitutional adequacy of the notice to property owners" present in DeRose, and "significant impact on density" as in Willoughby. 406 N.J. Super. at 400-01. Here, we have statutorily-inadequate notice to property owners and a significant impact on density. 24 A-4171-15T3 for approval of its site plan, when she investigated and discovered the Council had passed the Ordinance in November 2015. However, Dumytsch did not state when she received the request for the list or when her investigation discovered the Ordinance. Sunrise claims that occurred in early January, and cites its site plan application. However, the application appears to have been signed January 26, 2016. Notice of Sunrise's application to all property owners "within 200 feet in all directions of the" Lot was not required until "at least 10 days prior to the date of the hearing" on the site application, which was held on February 2. N.J.S.A. 40:55D-12, -12(b). Even assuming Dumytsch's discovery of the Ordinance occurred in early rather than late January, it would not necessarily bar an enlargement for plaintiff or its other members. In Rockaway Shoprite Assocs., Inc. v. City of Linden, 424 N.J. Super. 337 (App. Div. 2011), the city sent notice of proposed ordinances that was fatally defective. Id. at 344. The "[d]efendants and intervenor nevertheless contend[ed] that because plaintiff's representative attended the public hearing . . . and did not object to the lack of proper notice, plaintiff 'waived' its right to challenge the ordinances on that basis." Id. at 351. In rejecting that argument, we cited "[t]he general rule . . . that strict compliance with statutory notice requirements is 25 A-4171-15T3 mandatory and jurisdictional, and non-conformity renders the governing body's resultant action a nullity." Id. at 352. We also found "compelling" "'the principle that the entire public is entitled to notice in full compliance with the governing statutory provisions, and that the public's entitlement to such notice may not be waived by those individual members of the public who actually attend the improperly noticed hearing.'" Id. at 354 (citation omitted). "On the issue of public notice of adopting or amending a zoning ordinance, a jurisdictional defect is not personal to a single objector but rather the right of the public, and therefore cannot be waived by one individual." Ibid. If in Rockaway Shoprite the appearance at the hearing of Shoprite's attorney and professional planner "who voiced no objection to the ordinance" did not waive Shoprite's right to claim lack of notice, id. at 342, 355, then Dumytsch's post-hearing discovery of the fatal lack of notice here did not waive the right of any other member of the public to seek an enlargement to claim lack of notice, including the persons represented by plaintiff. Although Sunrise notes Dumytsch is plaintiff's only identified member, Dumytsch certified that "the number of members of [plaintiff] is currently in excess of 75 residents, [and] as each day goes by I am being contacted by others who are learning of the 26 A-4171-15T3 amended zoning at issue in this lawsuit and who express an interest in joining [plaintiff]'s efforts." Sunrise cites "the imputation doctrine" that "a principal is deemed to know facts that are known to its agent." N