Recent Decisions of the New Jersey Appellate Courts
from 2017-11-06 to 2017-11-20

Supreme Court Decisions


Docket No.: a_16_16
Decided: 2017-11-15
Caption: EQR-LPC Urban Renewal North Pier, LLC v. City of Jersey City
Summary:

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Docket No.: a_31_32_16
Decided: 2017-11-14
Caption: John Giovanni Granata v. Edward F. Broderick, Jr.
Summary:
PER CURIAM The Court granted certification to review petitioners’ challenges to the Superior Court, Appellate Division’s determinations regarding the distribution priorities of the attorney’s fee award, more specifically the rulings that an attorney’s pledge of anticipated attorney’s fees can be considered an account receivable and secured under Article 9 of the Uniform Commercial Code (UCC), and that the lender here complied with the requirements of the UCC to perfect its 2 security interest by filing a financing statement covering the collateral of the anticipated attorney’s fees. Having considered the parties’ arguments presented in their briefs and at oral argument, the judgment of the Appellate Division is affirmed substantially for the reasons expressed in those parts of Judge Guadagno’s opinion addressing the distribution priorities of the attorney’s fee award, reported at 446 N.J. Super. 449 (App. Div. 2016). CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion. 3

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Appellate Division PUBLISHED Decisions


Docket No.: a1967-16
Decided: 2017-11-16
Caption: STATE OF NEW JERSEY v. NICHOLAS MASCE
Status: published
Summary:
MOYNIHAN, J.S.C. (temporarily assigned). The State of New Jersey appeals from the sentencing judge's order denying its request to enter, as part of the plea agreement reached between it and defendant, a civil consent judgment for restitution due the victims of defendant's theft, and from an order denying reconsideration. We agree with the sentencing judge that he was without statutory authority to enter the judgment and affirm. Defendant pleaded guilty to an amended charge of third- degree theft by unlawful taking, N.J.S.A. 2C:20-3(a), admitting he took $85,131.18 in benefits directly deposited in his deceased mother's bank account after her death. The victims of the theft were two pension funds and the United States Social Security Administration.1 The State recommended that, as part of the plea agreement, defendant pay restitution in the full amount due all victims, a payment schedule be set through probation, and the judge enter a civil consent judgment in favor of the victims. Judge Kevin T. Smith entered the plea but expressed reservations about his ability to order the entry of a civil consent judgment. Prior to sentencing the State argued, inasmuch as N.J.S.A. 2C:44-2(f) provides that an order of restitution imposed by a sentencing judge does not bar the victim from seeking civil remedies, a sentencing judge is not precluded from entering a civil consent judgment to prevent the 1 Defendant took funds deposited by the Social Security Administration in the amount of $74,601 and by the two pension funds – $6555.78 from one, $3974.40 from the other. 2 A-1967-16T1 victim's incurrence of further expense in pursuit of a civil recovery. Defendant took no position. Judge Smith, in a written opinion, rejected the State's interpretation of N.J.S.A. 2C:44-2(f), holding that the Legislature intended that civil remedies be pursued in a civil court; the Legislature did not provide for recovery through the criminal sentencing process. The judge also took issue with the ethical propriety of requiring defendant to agree to a civil consent judgment as part of a plea agreement. He concluded it was "improper for the State to . . . threaten criminal prosecution to get an upper hand in a civil matter," citing RPC 3.4(g). The State argued in a motion for reconsideration that N.J.S.A. 2C:43-2(d) allowed "the court to . . . impose any . . . civil penalty" conferred by law at sentencing. Judge Smith again disagreed, ruling the penalties that may be imposed under that statute are those provided in the New Jersey Code of Criminal Justice (the Code), such as forfeiture of public office and limitation on Internet access, but a civil consent judgment was not included among those penalties. On appeal, the State contends that the judge erred because the Code "clearly sets forth authority for a sentencing court to impose civil penalties at sentencing," and that a civil consent judgment is "a lawful means" conferred by law to ensure 3 A-1967-16T1 remuneration of victims "above and beyond an order of restitution." The State also submits the entry of a consent judgment "raises no ethical considerations." Defendant counters that the judge was without authority to enter the judgment because a civil consent judgment "is a contractual agreement and not a 'penalty.'" In determining the propriety of entering civil consent judgments in favor of crime victims at sentencing, it is necessary to analyze the applicable statutory provisions. We owe no deference to the sentencing judge's legal interpretation of those statutes, a purely legal issue, and conduct our review de novo. State v. Buckley, 216 N.J. 249, 260-61 (2015); Manalapan Realty LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "Our task in statutory interpretation is to determine and effectuate the Legislature's intent." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009). The Supreme Court recognized the statutory directive we utilize to explicate a legislative enactment: In the construction of the laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, 4 A-1967-16T1 according to the approved usage of the language. [State v. Gandhi, 201 N.J. 161, 177 (2010) (quoting N.J.S.A. 1:1-1).] "[W]e look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen." Pizzullo v. New Jersey Mfrs. Ins. Co., 196 N.J. 251, 264 (2008). If the statutory language is ambiguous, we turn to extrinsic evidence from "a variety of sources . . . [c]entral among [which] is a statute's legislative history." Richardson v. Bd. of Trs., P.F.R.S., 192 N.J. 189, 196 (2007). Because there are a number of provisions in the Code that apply to our analysis, we heed the Court's direction that [s]tatutes must be read in their entirety; each part or section should be construed in connection with every other part or section to provide a harmonious whole. When reviewing two separate enactments, the Court has an affirmative duty to reconcile them, so as to give effect to both expressions of the lawmakers' will. Statutes that deal with the same matter or subject should be read in pari materia and construed together as a unitary and harmonious whole. [In re Petition for Referendum on City of Trenton Ordinance 09-02, 201 N.J. 349, 359 (2010) (citations omitted).] Our analysis begins with the general principle that all sentences imposed by a court for any offense must comport with Chapter 43 of the Code, N.J.S.A. 2C:43-1 to -22. N.J.S.A. 5 A-1967-16T1 2C:43-2(a). Courts, unless compelled by the Code to impose restitution,2 have the discretion to sentence a defendant to pay restitution. N.J.S.A. 2C:43-2(b)(1), -2(b)(4), -3. Courts cannot simply gauge the amount of restitution by a victim's loss. Although the amount of restitution may not exceed the amount of loss,3 N.J.S.A. 2C:43-3, "[i]n determining the amount and method of payment of restitution, the court shall take into account all financial resources of the defendant, including the defendant’s likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant’s ability to pay." N.J.S.A. 2C:44-2(c)(2). 2 See, e.g., N.J.S.A. 2C:44-2(b) (requiring a court to order restitution be paid by a defendant if the loss was incurred by the victim of a homicide – or by a victim's relative – and the defendant has the ability to pay, either at the time of sentencing or, "given a fair opportunity," thereafter). See also N.J.S.A. 2C:11-3c (mandating the court to order a person convicted of murder to pay restitution to the victim's nearest surviving relative); N.J.S.A. 2C:43-2.1 (mandating that a defendant convicted of motor vehicle theft or unlawful taking be ordered to pay restitution to the victim for any reasonable and necessary expense incurred in recovering the vehicle, and for the amount of damages sustained); N.J.S.A. 2C:43-3 (mandating the court to order restitution if the victim is a department or division of the State of New Jersey). 3 An exception exists for a defendant's failure to pay taxes to the State. 6 A-1967-16T1 The distinction between restitution and civil remedies is clear from the stated purposes of restitution, as noted by the Supreme Court in State v. Harris, 70 N.J. 586, 591-92 (1976): [W]e are of opinion that restitution is not only an appropriate but frequently a salutary technique in the criminal process, and in the purposes of the probation system contemplated by the statute. And, necessarily without prejudice to the right of any aggrieved party to seek to recover damages in a civil action (because not a party to the criminal disposition), we regard it as preferable in the ordinary case, where feasible, to provide for restitution within the probation context. This for two main and coalescing reasons. One may be termed the "justice" factor. The court which orders restitution acts in the interest of repairing the harm done the aggrieved party. In meting out substantial justice in this fashion, the court is even more importantly motivated by another reason, which may be termed the "rehabilitation" factor – the predominant rehabilitative aspect of probationary restitution. We therefore agree with the Appellate Division that: Restitution in a proper case may ofttimes be a compelling reminder of the wrong done and meaningfully contribute to the rehabilitation process. The entry of a consent judgment would run counter to both the court's statutory duty to determine a defendant's ability to pay and the rehabilitative purpose of restitution. If a judgment was docketed for the full amount of a victim's loss, 7 A-1967-16T1 the victim could enforce the full amount of the judgment, without regard to the court's finding of the defendant's ability to pay. Enforcement would obviate any payment schedule set by the court, thwarting "the predominant rehabilitative aspect of probationary restitution." Id. at 592. Further analysis of the statutory scheme of restitution reveals the Legislature made no provision for civil consent judgments in the sentencing provisions of the Code. It did provide, however, for the filing of an order or judgment of conviction in certain instances. When a defendant is sentenced to pay restitution, the court may, under N.J.S.A. 2C:46-1(a), "grant permission for the payment to be made within a specified period of time or in specified installments." If permission is not granted, N.J.S.A. 2C:46-1(a) dictates, "restitution shall be payable forthwith, and the court shall file a copy of the judgment of conviction with the Clerk of the Superior Court who shall enter . . . information upon the record of docketed judgments" including, in pertinent part, naming the defendant as judgment debtor, N.J.S.A. 2C:46-1(a)(1); and "the amount of any restitution ordered and the name of any persons entitled to receive payment as judgment creditors in the amount and according to the priority set by the court[,]" N.J.S.A. 2C:46-1(a)(3). 8 A-1967-16T1 A like aid to victims was also prescribed in N.J.S.A. 2C:43-2.1, which compels a court to order a defendant convicted of theft or unlawful taking of a motor vehicle to make restitution "for any reasonable and necessary expense incurred by the owner in recovering the motor vehicle and for any damage to the motor vehicle prior to its recovery." The statute directs the court to file a copy of the order compelling restitution with the Clerk of the Superior Court who must enter on the "record of docketed judgments the name of the convicted person as judgment debtor, and of the owner as judgment creditor," as well as the basis of the order, the amount of restitution and the date of the order. N.J.S.A. 2C:43-2.1. Such entry has "the same force as a judgment docketed in the Superior Court." N.J.S.A. 2C:43-2.1. Though these provisions allow entry of documents tantamount to civil judgments, the procedures authorized by the Legislature do not include actual entry of a civil judgment. The Legislature did not provide for entry of a civil judgment in favor of a victim even in the event of a default in payment of restitution by a defendant. Courts are not permitted to impose an alternative sentence in anticipation of a default; courts may respond only after non-payment, and then only in accordance with the statutory framework. N.J.S.A. 2C:44-2(d). 9 A-1967-16T1 Upon default, and after a motion is filed, a hearing held, and a finding made by the court that the default was without good cause and willful,4 a court can take the actions set forth in N.J.S.A. 2C:46-2(a) and (b). Although a number of options are available under those sections, the entry of a civil judgment is not among them. The Legislature did provide, however, upon default, "execution may be levied and such other measures may be taken for collection of it or the unpaid balance thereof as are authorized for the collection of an unpaid civil judgment entered against the defendant in an action on a debt." N.J.S.A. 2C:46-2(b). A victim entitled to payment from a defaulting defendant is also permitted to institute summary collection proceedings authorized by N.J.S.A. 2C:46-2(b). N.J.S.A. 2C:46-2(c). The statute grants no power to a criminal judge to aid a victim in collecting the balance of restitution by entering a civil consent judgment. Other statutes echo the legislative intent to allow a victim to pursue civil remedies, albeit without grant of any authority to a criminal court to aid the victim in seeking such remedies: The ordering of restitution pursuant to this section shall not operate as a bar to 4 At the hearing, the defendant has the burden of proving good cause for the default by a preponderance of the evidence. 10 A-1967-16T1 the seeking of civil recovery by the victim based on the incident underlying the criminal conviction. Restitution ordered under this section is to be in addition to any civil remedy which a victim may possess, but any amount due the victim under any civil remedy shall be reduced by the amount ordered under this section to the extent necessary to avoid double compensation for the same loss, and the initial restitution judgment shall remain in full force and effect. [N.J.S.A. 2C:44-2(f).] Our review of the plain language of the comprehensive laws regarding restitution to crime victims leads us to conclude that criminal courts are proscribed from entering civil consent judgments when sentencing a defendant ordered to make restitution. If all sentences must be imposed in accordance with the Code, and the Code makes no provision for a court to enter a civil consent judgment, the entry of such a judgment would contravene the parameters of the authority conferred on sentencing courts by the Legislature. Although resorting to legislative intent is unnecessary when the statutes' plain language is unambiguous, State v. Nance, 228 N.J. 378, 393 (2017), we elect to undertake a thorough review. Most of the statutes we analyzed were enacted by the Legislature in 1991,5 in a comprehensive effort to make crime 5 L. 1991, c. 329. 11 A-1967-16T1 victims whole after suffering a loss at the hands of a criminal defendant. The Assembly Judiciary, Law and Public Safety Committee recognized that the 1991 bill "amends various sections of law concerning victims of crime[,]" including "N.J.S.A. 2C:1- 2 concerning the general purposes of the criminal code sentencing provisions to include the purpose to promote restitution to victims." Assembly Judiciary, Law and Pub. Safety Comm., Statement to A. 4819 (June 6, 1991). See also State v. Newman, 132 N.J. 159, 175 (1993). The Sponsor Statement and the Assembly Appropriations Committee Statement both provide the aim of the bill is to "require[] courts to order defendants to compensate their victims to the fullest extent possible" given their ability to pay. Sponsor's Statement to A. 4819 (enacted as L. 1991 c. 329); Assembly Appropriations Comm., Statement to A. 4819 (August 1, 1991). The Appropriations Committee noted that the legislation provides several measures to improve the State's ability to collect moneys owed by convicted persons: a court granting probation or imposing a suspended sentence must require, as a condition of the probation or suspended sentence, that the defendant make complete payment of restitution and assessments for victims and witnesses; the probationary term of any person who fails to meet these obligations must be extended; the Department of Corrections must withhold moneys owed from funds earned by and kept for inmates; and persons who default without good cause lose 12 A-1967-16T1 the privilege of driving in this State until full payment is made. [Assembly Appropriations Comm., Statement to A. 4819 (August 1, 1991).] The measures enacted by the Legislature to foster collection of restitution, among other payments due from sentenced defendants, did not include civil consent judgments. Although the Legislature enacted sweeping changes to provide compensation to crime victims, it provided spare civil relief – and none involving consent judgments. We are convinced the legislative intent was to limit the aid to a victim's civil recovery to that set forth in the statutes. The State contends civil consent judgments are authorized by N.J.S.A. 2C:43-2(d), which provides that Chapter 43 of the Code – Authorized Disposition of Offenders – "does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty. Such a judgment or order may be included in the sentence." It argues the judgment is a civil penalty which a court may order and enter. The State's argument does not consider the qualifying language in the statute that the authority to impose a civil penalty must be conferred by law. As we have deduced, civil 13 A-1967-16T1 consent judgments are not among the penalties conferred by law. We construe N.J.S.A. 2C:43-2(d) to mean that the court may impose those civil penalties specified in a statute. The civil penalties include, as set forth in N.J.S.A. 2C:43-2(d), suspension or cancellation of driving privileges as provided for in a number of statutes, including N.J.S.A. 2C:43-2(c) and 2C:46-2(a)(1)(a). Likewise, removal from office is a civil penalty expressly authorized by N.J.S.A. 2C:51-2.6 The two cases relied upon by the State in support of its argument are inapposite. Both Old Bridge Public Workers & Sanitation Union v. Township of Old Bridge, 231 N.J. Super. 205 (App. Div. 1989), and State v. Baber, 256 N.J. Super. 240 (Law Div. 1992), involved forfeiture of public office, a penalty expressly authorized by statute as a collateral consequence of conviction. When the Legislature provided a statutory procedure to recover payment of fines, we declined to construe N.J.S.A. 2C:43-2(d) as conferring authority on a court to impose fines as a "civil penalty." In State v. McLaughlin, 310 N.J. Super. 242, 6 An example of one of the "other" civil penalties under N.J.S.A. 2C:43-2(d) is provided in N.J.S.A. 2C:43-3, which mandates "in any case involving the failure to pay any State tax, the amount of restitution to the State shall be the full amount of the tax avoided or evaded, including full civil penalties and interest as provided by law." 14 A-1967-16T1 246 (App. Div.), certif. denied, 156 N.J. 381 (1998), defendant was both convicted of and pleaded guilty to crimes related to false claims and appraisals he submitted to defraud an insurance company. The trial judge imposed fines totaling $270,000 pursuant to the New Jersey Fraud Prevention Act, N.J.S.A. 17:33A-1 to -30. McLaughlin, supra, 310 N.J. Super. at 261. Defendant appealed, arguing the trial court lacked authority to impose fines pursuant to the Act. Ibid. The State countered that the fines were properly imposed, notwithstanding language in the Act limiting imposition of civil penalties to persons who had been found guilty of violating the provisions of the Act by a court of competent jurisdiction pursuant to a claim initiated by the Commissioner of Insurance. Ibid. The State posited a criminal court has the power under N.J.S.A. 2C:43-2(d) to impose "any civil penalty." McLaughlin, supra, 310 N.J. Super. at 261. We found the trial court did not have authority pursuant to N.J.S.A. 2C:43-2(d) to impose fines as civil penalties under the Act because the Legislature specifically provided that the Commissioner was required to institute a civil action. McLaughlin, supra, 310 N.J. Super. at 261-63. Likewise, here, there is no law that allows the entry of a civil consent judgment as a penalty. 15 A-1967-16T1 The legislative history of the 1991 amendments also convince us that the Legislature did not intend to include civil consent judgments as penalties. The amendments removed "penalties" from provisions dealing with non-payment of restitution. Assembly Judiciary, Law and Pub. Safety Comm., Statement to A. 4819 (June 6, 1991). One of the amendments, L. 1991, c. 329, § 8, clarifying that payment of restitution may be a condition of probation, did not include payment of a penalty as a condition of probation. Assembly Judiciary, Law and Pub. Safety Comm., Statement to A. 4819 (June 6, 1991). The legislative intent to treat restitution and penalties separately is obvious. All roads lead to the same conclusion. Judge Smith correctly recognized he was without authority to enter the civil consent judgment. Inasmuch as the court was without statutory authority to enter the judgment, we need not address the ethical implications regarding the use of such judgments in plea negotiations. Affirmed. 16 A-1967-16T1

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Docket No.: a2653-16
Decided: 2017-11-16
Caption: GREENBRIAR OCEANAIRE COMMUNITY ASSOCIATION, INC. v. U.S. HOME CORPORATION
Status: published
Summary:
FISHER, P.J.A.D. The plaintiff homeowner association's complaint alleges that the defendant-developer violated various statutory, regulatory and common-law duties that caused injuries to both the association itself and the homeowners. The association argues in this appeal that the motion judge, in compelling arbitration of all disputes, mistakenly enforced an arbitration agreement found in contracts that memorialized the homeowners' purchase of their properties from the developer; the association contends the motion should have been denied because the document memorializing the developer's conveyance to the association contains no arbitration agreement. To the extent the association's pleadings assert claims on behalf of the association's homeowners, we agree they must be arbitrated. But the pleadings also include claims allegedly possessed solely by the association. To better distinguish between what is and isn't arbitrable, we remand for the filing of an amended complaint that separates claims the association asserted on its own behalf and those it asserted on behalf of the homeowners. We start with the fact that the association – plaintiff Greenbriar Oceanaire Community Association, Inc. – is responsible for the common areas and the administration and management of a 1425-unit residential community in Waretown. The sponsor of the 2 A-2653-16T1 association and the developer of the project – defendant U.S. Home Corporation, alleged to have been doing business as Lennar Corporation – ultimately transferred management to the association. In its June 2015 complaint, which was twice amended, the association on behalf of itself and its members – its members being the homeowners bound to arbitration clauses1 in their purchase agreements – asserted numerous causes of action, including: design and manufacturing defects that the association claims constituted violations of applicable building codes and warranties; various violations of the Planned Real Estate Development Full Disclosure Act (PREDFDA), N.J.S.A. 45:22A-21 to -56, and PREDFDA's underlying regulations; and violations of the developer's fiduciary duties. In light of the arbitration agreement in its contracts with homeowners, the developer moved to compel arbitration. By the time 1 These contracts include the homeowners' and developer's agreements that "any dispute (whether contract, warranty, tort, statutory or otherwise), including, but not limited to, (a) any and all controversies, disputes or claims arising under, or related to, this [a]greement, the property or any dealings between [the homeowner and the developer] . . . [and] (b) any controversy, dispute or claim arising by virtue of any representations, promises or warranties alleged to have been made by [the developer or its representative] . . . shall first be submitted to mediation and, if not settled during mediation, shall thereafter be submitted to binding arbitration as provided by the Federal Arbitration Act (9 U.S.C. § 1 [to § 16]) or, if inapplicable, by similar state statute, and not by or in a court of law." 3 A-2653-16T1 the motion was considered, the parties settled the design and construction claims. As a result, the question for the motion judge was whether the remaining claims – the PREDFDA and fiduciary duty claims – were asserted on behalf of the homeowners and therefore subject to the homeowners' promise to arbitrate with the developer, or whether the claims should be viewed as belonging only to the association, which never agreed to arbitrate any disputes with the developer. By way of his oral decision, the motion judge agreed with the developer's view and entered an order compelling arbitration; he later denied a motion to vacate the order compelling arbitration. In appealing those orders, the association argues: (1) it could not be compelled to arbitrate because (a) "no valid board action [occurred]" to confirm such an obligation and (b) the clause "is a restrictive covenant that should properly be considered void as to the association"; (2) the developer-homeowner arbitration clause is "unenforceable"; (3) the arbitration clause is "woefully inadequate to constitute a waiver of the association's statutory claims or right to a trial by jury in a court of law"; and (4) a "Monmouth County trial court" denied a developer's motion to compel arbitration "in a similar litigation." We reject the association's first point because those arguments were not raised in the trial court. We also reject the third point; the language of the 4 A-2653-16T1 arbitration provision more than adequately memorializes the homeowners' promise to arbitrate their claims against the developer. And we find insufficient merit in the fourth point to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We, thus, focus on the pivotal question: are the association's pleaded claims subject to the homeowners' agreements to arbitrate? That question would ordinarily turn on what is alleged in the pleadings. But the original complaint and its later amendments conflate the claims asserted by the association on its own behalf and those asserted by the association on behalf of the homeowners; consequently, we find it necessary to remand for clarification through the filing of an amended complaint. To explain, we note that the complaint announces at its outset that the association has brought "the claims asserted herein for itself and on behalf of its [m]embers" (emphasis added),2 an assertion incorporated in all the pleaded counts. Additionally, in claiming the developer misrepresented or omitted material facts contrary to PREDFDA's requirements, the association alleged the developer intended that "[p]laintiff and its [m]embers" would rely on its misstatements and omissions of material facts and, consequently, "[p]laintiff and the [a]ssociation [m]embers . . . 2 There is no doubt that by "members," the association was referring to the homeowners. 5 A-2653-16T1 have suffered damages" (emphasis added). In a count asserting violations of PREDFDA's regulations, the association alleged the developer's failure to "fully fund the reserves and deferred maintenance annually resulting in a material underfunding that will financially materially affect the [a]ssociation and [h]ome [o]wners," and among those allegations the association claimed the developer's alleged violations of the regulations caused injury to "the [a]ssociation and [m]embers of the [a]ssociation" (emphasis added). The rest of the allegations in the pleadings are similarly phrased as having been asserted on behalf of both the association and its members. In short, a close and thorough examination of the complaint and its subsequent amendments offers no clear delineation between the claims asserted on behalf of the association itself and those asserted by the association for the homeowners. Does the conflation of these claims relegate the court with a decision to either compel arbitration of all the claims or none of them? Arbitration, as has often been observed, is a "favored form of relief." See, e.g., Marchak v. Claridge Commons, Inc., 134 N.J. 275, 281 (1993). By the same token, arbitration should not be compelled when it cannot be shown the plaintiff consented to arbitrate its claims. When faced with such a quandary as presented by the association's complaint here, a court need not be left lost 6 A-2653-16T1 in the confusion created, intentionally or otherwise, by the pleadings. A court should ensure a correct resolution of the arbitrability controversy by compelling the pleader to express its claims with greater specificity. For this reason, we temporarily set aside the order compelling arbitration and remand the matter so the motion judge may compel the association to file a pleading which separates the claims it has asserted on its own behalf from those it has asserted for the homeowners. Upon the filing of a third amended complaint that adequately responds to these concerns, the judge may compel arbitration of those claims expressly asserted by the association on behalf of its homeowners; the judge may also consider whether the claims the association asserts on its own behalf should in fact be construed as claims asserted on behalf of the homeowners. If, after the completion of those proceedings, the motion judge determines there are not only arbitrable claims but nonarbitrable claims as well, he should determine whether both the arbitrable and nonarbitrable claims may simultaneously proceed in their separate forums, or whether arbitration should precede any further litigation in the trial court, or vice versa. See Hirsch v. Amper Financial Servs., LLC, 215 N.J. 174, 196 n.5 (2013). 7 A-2653-16T1 The order under review is vacated and the matter remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction. 8 A-2653-16T1

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Docket No.: a5231-14
Decided: 2017-11-15
Caption: EQR-LPCURBAN RENEWAL NORTH PIER, LLC v. CITY OF JERSEY CITY
Status: published
Summary:
PER CURIAM By leave granted, the City of Jersey City (City) appeals from an April 10, 2015 order granting partial summary judgment to plaintiffs on Count II of their complaint, holding that financial agreements entered into in 2000 and 2001 incorporate 2003 amendments to the Long Term Tax Exemption (LTTE) Law, N.J.S.A. 40A:20-1 to -22, and a May 29, 2015 order denying reconsideration. The City claims that plaintiffs, EQR-Lincoln Urban Renewal Jersey City, LLC (EQR-Lincoln) and EQR-LPC Urban Renewal North Pier, LLC (EQR-North Pier), attempted to circumvent a tax abatement agreement by improperly changing their allowable profit rate so as to avoid paying the City any excess net profit. The City argues that the trial court misinterpreted the 2000 and 2001 financial agreements, warranting reversal. We agree and therefore reverse and remand for further proceedings. I. We discern the following facts from the record, viewed in the light most favorable to the non-moving party. See Robinson v. Vivirito, 217 N.J. 199, 203 (2014). Plaintiffs are limited liability companies that qualify as urban renewal entities under the LTTE Law. Each plaintiff entered into a separate financial agreement with the City to obtain a property tax exemption relating to an urban renewal project involving construction of an apartment building. Among other things, the financial 2 A-5231-14T3 agreements require plaintiffs to pay the City an "annual service charge" in lieu of property taxes. Hudson Pointe Agreement On August 10, 2000, the City and EQR-Lincoln entered into a financial agreement (Hudson Pointe Agreement), which provides for a tax exemption in exchange for construction of improvements on real estate located at 153 Warren Street in Jersey City.1 One month earlier, the City adopted Ordinance 00-083, approving the tax exemption for the project and setting forth the following essential terms of the agreement: (a) Term: the earlier of 25 years from the date of the adoption of this Ordinance, or 20 years from the date of Substantial Completion of the Project; (b) Annual Service Charge: 15% of annual gross revenue as defined in the financial agreement estimated at $577,381.00; (c) Project: A six (6) story residential building, containing approximately one hundred eighty- one (181) market rate residential rental units with adjacent parking for approximately two hundred six (206) cars; and (d) Property: Block 60, Lots 31, 32, and 50, and Block 65, part of Lot 1G, consisting of 4.34 acres. 1 At the time, the project was known as the Tidewater Basin Redevelopment Plan. 3 A-5231-14T3 The Hudson Pointe Agreement further provides that EQR- Lincoln is the lessee of the real estate under the terms of a long-term ground lease, while the owner and lessor of the real estate is EQR-Lincoln Hudson Pointe, LLC. North Pier Agreement On September 7, 2000, the City and EQR-North Pier entered into a financial agreement (North Pier Agreement), which follows the same format as the Hudson Pointe Agreement — it provides for a tax exemption, in exchange for improvements on a parcel of real estate located at Harborside North Pier. In August 2000 and February 2001, the City adopted Ordinances 00-090 and 01-015 approving the tax exemption for the project and setting forth the following essential terms of the agreement: (a) Term: the earlier of 25 years from the date of the adoption of this Ordinance, or 20 years from the date of Substantial Completion of the Project; (b) Annual Service Charge: 15% of annual gross revenue as defined in the financial agreement estimated at $1,108,593.00, subject to statutory increases over the term of the tax exemption; (c) Project: A seven (7) story residential building, containing approximately two hundred and ninety-six (296) market rate residential rental units with adjacent garage facility and the 4 A-5231-14T3 construction of a public walkway; and (d) Property: Block 10, Lots 12, 13 and part of 7, consisting of 3.69 acres. The North Pier Agreement provides that EQR-North Pier is the lessee of the real estate under the terms of a long-term ground lease, while the owner and lessor of the real estate is EQR-Lincoln North Pier, LLC. Both financial agreements state, in "Section 1.1 Governing Law," that the agreements "shall be governed by the provisions of the [LTTE Law], as amended and supplemented, N.J.S.A. 40A:20- 1 et seq., Executive Order of the Mayor S-039," and specific authorizing City Ordinances. Both financial agreements also provide: In consideration of the tax exemption, the Entity shall make payment to the City of an amount equal to the greater of: the Minimum Annual Service Charge or an Annual Service Charge equal to 15% of the Annual Gross Revenue in the first full year after the Lease Up Period. The Annual Service Charge shall be billed initially based upon the Entity's estimates of Annual Gross Revenue as set forth in its Financial Plan, attached hereto as Exhibit 6. Thereafter, the Annual Service Charge shall be adjusted in accordance with this agreement. In addition, both financial agreements require plaintiffs to pay any excess net profits to defendant: 5 A-5231-14T3 During the period of tax exemption as provided herein, the Entity shall be subject to a limitation of its profits [and, in the case of a corporation, the dividend payable by it] pursuant to the provisions of N.J.S.A. 40A:20-15. In the event the Net Profits of the Entity, in any fiscal year, shall exceed the allowable Net Profits for such period, then the Entity, within 90 days after the end of such fiscal year, shall pay such excess Net Profits to the City as an additional service charge[.] The financial agreements also include the following definition of "Allowable Profit Rate": The percentage per annum arrived at by adding 1.25% to the annual interest percentage rate payable on the Entity's initial permanent mortgage financing. If the initial permanent mortgage is insured or guaranteed by a government agency, the mortgage insurance premium or similar charge shall be considered as interest for this purpose. If there is no permanent mortgage financing, or if the financing is internal or undertaken by a related party, the Allowable Profit Rate shall be arrived at by adding 1.25% per annum to the interest rate per annum which the municipality determines to be the prevailing rate on mortgage financing on comparable improvements in Hudson County. The provisions of N.J.S.A. 40A:20-3(b) are incorporated herein by reference. 6 A-5231-14T3 Additionally, both financial agreements include "General Definitions" sections that further define the term "Law," as follows: Law – Law shall refer to the [LTTE Law], as amended and supplemented, N.J.S.A. 40A:20-1, et seq.; Executive Order of the Mayor S-039, relating to long term tax exemption, as it may be amended and supplemented; [and the City Ordinance(s)], which authorized the execution of this Agreement and all other relevant Federal, State, or City statutes, ordinances, resolutions, rules and regulations. The financial agreements further state that "in the event of a conflict between the Application and the language contained in the Agreement, the Agreement shall govern and prevail. In the event of conflict between the Agreement and the Law, the Law shall govern and prevail." In early 2014, plaintiffs submitted an Auditor's Report and excess-net-profits calculation to the City for 2013, as required by the financial agreements. Plaintiffs calculated their allowable profits using the 12% allowable profit rate provided in the 2003 amendments to the LTTE Law, rather than the rate calculated by adding 1.25% to the annual-interest-percentage rate payable on the Entity's initial permanent mortgage financing, as provided in the version of the statute in effect at the time of each financial agreement. Using the amended 7 A-5231-14T3 rate, plaintiffs did not have excess net profits, and thus did not owe any excess-net-profit payment to the City. After receiving plaintiffs' excess-profits calculation, the City sent a default notice demanding payment of $665,575.25 in excess profits for 2013. In a follow-up letter, defendant notified EQR-Lincoln that "[y]our reliance on the calculation found in the Long Term Tax Exemption Law as amended in 2003 is rejected." EQR-Lincoln paid the disputed excess-net-profits amount for 2013 "under protest," with full reservation of rights. This followed a similar dispute and payment "under protest" of excess profits for years prior to 2013, in the amount of $2,266,345. The record indicates that from 2006 to 2012, excess profit had been generated by each plaintiff; however, instead of paying the excess profit to the City each year as an additional service charge, each plaintiff paid the excess profit over to a related entity, instead of the City.2 On May 9, 2014, plaintiffs filed a two-count complaint seeking a declaratory judgment against the City. Count I seeks 2 The City notes that, notwithstanding the fact that the amendment changing the calculation methodology was enacted in 2003, plaintiffs had utilized the agreed-upon rate in calculating their allowable net profit prior to 2014. However, as noted, plaintiffs avoided paying the excess profits to the City by funneling them to related corporate entities. 8 A-5231-14T3 a judgment declaring that the applicable law and financial agreements permit plaintiffs to pay "excess rent" to affiliated entities under certain ground leases, with the effect of eliminating the "excess net profit" that plaintiffs might otherwise owe to the City. Count II seeks a judgment declaring that the parties' financial agreements incorporate future changes to applicable law, such that plaintiffs may calculate their "allowable profit rate" in accordance with the 2003 amendments to the LTTE Law. On March 13, 2015, plaintiffs moved for partial summary judgment on Count II of their complaint, seeking entry of an order holding that the financial agreements entered into in 2000 and 2001 incorporate the 2003 amendments to the LTTE Law, and control the calculation of net profits and allowable net profit for years subsequent to 2003. In granting partial summary judgment, the trial judge concluded that this case turned on a contract interpretation dispute. The judge reasoned the express language of the contract, "as amended and supplemented," demonstrates that the parties agreed to incorporate future amendments to the LTTE Law in their financial agreements. He further concluded that the 2003 amendments to the LTTE Law applied to the financial agreements, and that legislative history supported his conclusions of what he found was "an 9 A-5231-14T3 unambiguous interpretation of the contract." The City moved for reconsideration, which the judge denied. On July 23, 2015, we granted the City's motion for leave to appeal. On August 5, 2015, plaintiffs filed a motion to determine damages and defendant filed a cross-motion for a stay pending appeal. On August 21, 2015, the trial court entered an order granting defendant's cross-motion for a stay pending appeal. On appeal, the City asserts the trial court erred in its summary judgment ruling because the LTTE Law did not sanction plaintiffs' unilateral changes to their financial agreements. At the center of the dispute between plaintiffs and the City is a matter of contract interpretation; specifically, whether the financial agreements incorporated future amendments to the LTTE Law, including the provisions of the 2003 amendments relating to the calculation of excess net profits. We begin with a review of the pertinent changes to the LTTE Law. In 2000, N.J.S.A. 40A:20-3(b) (emphasis added) read: "Allowable profit rate" means the percentage per annum arrived at by adding 1 1/4% to the annual interest percentage rate payable on the entity's initial permanent mortgage financing. If the initial permanent mortgage is insured or guaranteed by a governmental agency, the mortgage insurance premium or similar charge, if payable on a per annum basis, shall be considered as 10 A-5231-14T3 interest for this purpose. If there is no permanent mortgage financing the allowable profit rate shall be arrived at by adding 1 1/4% per annum to the interest rate per annum which the municipality determines to be the prevailing rate on mortgage financing on comparable improvements in the county. In 2003, the LTTE Law was amended in response "to technical problems which [had] arisen in the implementation of these laws and substantive issues raised in a series of recent court decisions." Senate Econ. Growth, Agric. & Tourism Comm., Statement to S. 2402, at 1 (March 17, 2003). The Legislature amended the LTTE Law effective July 9, 2003, so that it currently reads: "Allowable profit rate" means the greater of 12% or the percentage per annum arrived at by adding 1 1/4% to the annual interest percentage rate payable on the entity’s initial permanent mortgage financing. If the initial permanent mortgage is insured or guaranteed by a governmental agency, the mortgage insurance premium or similar charge, if payable on a per annum basis, shall be considered as interest for this purpose. If there is no permanent mortgage financing the allowable profit rate shall be the greater of 12% or the percentage per annum arrived at by adding 1 1/4% per annum to the interest rate per annum which the municipality determines to be the prevailing rate on mortgage financing on comparable improvements in the county. 11 A-5231-14T3 [N.J.S.A. 40A:20-3(b) (emphasis added).] We review the trial court's entry of summary judgment in accordance with the standard set forth in Rule 4:46-2(c). State v. Perini Corp., 221 N.J. 412, 425 (2015) (citations omitted). That standard compels a court to grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When there is no issue of fact, and only a question of law remains, we review that question de novo; the legal determinations of the trial court are not entitled to any special deference. Gere v. Louis, 209 N.J. 486, 499 (2012) (citation omitted); Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995). When "summary judgment is based on an issue of law, we owe no deference to an interpretation of law that flows from established facts." Perini Corp., supra, 221 N.J. at 425 (citing Town of Kearny v. Brandt, 214 N.J. 76, 92 (2013)). Contractual interpretation is a legal matter ordinarily suitable for resolution on summary judgment. Celanese Ltd. v. Essex Cnty. Improvement Auth., 404 N.J. Super. 514, 528 (App. Div. 2009). The touchstone for interpretation is the parties' 12 A-5231-14T3 shared intent in reaching the agreement. Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). So long as that intent is evident from the contract's clear, unambiguous terms, the agreement will be enforced as written. Karl's Sales & Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 493 (App. Div.), certif. denied, 127 N.J. 548 (1991). To the extent any ambiguity exists, that is, to the extent that a contractual term is susceptible to more than one reasonable interpretation, Powell v. Alemaz, Inc., 335 N.J. Super. 33, 44 (App. Div. 2000), a court may discern the parties' intent from evidence bearing on the circumstances of the agreement's formation, Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 269 (2006), and of the parties' behavior in carrying out its terms, Savarese v. Corcoran, 311 N.J. Super. 240, 248 (Ch. Div. 1997), aff'd, 311 N.J. Super. 182 (App. Div. 1998). "The polestar of contract construction is to discover the intention of the parties as revealed by the language used by them." Karl's Sales, supra, 249 N.J. Super. at 492 (citations omitted). In interpreting a contract, the focus is on "the intention of the parties to the contract as revealed by the language used, taken as an entirety; and, in the quest for the intention, the situation of the parties, the attendant circumstances, and the objects they were thereby striving to 13 A-5231-14T3 attain . . . ." Lederman v. Prudential Life Ins. Co. of Am., Inc., 385 N.J. Super. 324, 339 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 188 N.J. 353 (2006). In that regard, the court may not re-write a contract or grant a better deal than that for which the parties expressly bargained. Solondz v. Kornmehl, 317 N.J. Super. 16, 21 (App. Div. 1998). Applying these principles, we conclude the language of the financial agreements did not support the entry of summary judgment in favor of plaintiffs. First, the express language embodied in the contracts does not support the motion judge's interpretation. Notably, the section of the contracts that defines the profit calculation tracks the pre-2003 LTTE Law terms. Specifically, to the extent that the financial agreements describe the pre-2003 method of calculating "allowable profit rate" in Section 1.2, Subsection ii, this is essentially a word-for-word recitation of the LTTE Law, N.J.S.A. 40A:20-3(b), as it existed in 2000 before the 2003 amendments. Repeating this language, as opposed to simply incorporating the LTTE Law by reference, indicates the parties' intent that this calculation method would control. In addition, we find that the language in the financial agreements qualifying the LTTE Law, "as amended and 14 A-5231-14T3 supplemented," references any amendments or supplements that became effective on or before the date of the financial agreements; it does not include future amendments and supplements as plaintiffs argue. Instead, the only reasonable interpretation of the "as amended and supplemented" language refers to amendments and supplements made to the LTTE Law after its initial adoption in 1991 that had become effective on or before the date the financial agreements were executed. The LTTE Law cannot be viewed in a vacuum; rather, it was amended after its enactment and before the execution of the financial agreements at issue. See, e.g., Millennium Towers Urban Renewal LLC v. Mun. Council of Jersey City, 343 N.J. Super. 367, 380 (Law Div. 2001) ("The Long Term Tax Exemption Law was enacted in 1991 and subsequently amended in 1992 following the passage of the Local Development and Housing Law."). This interpretation is even more compelling in the context of the entire contract. In defining the "Law," the financial agreements state that this refers to: "the Long Term Tax Exemption Law, as amended and supplemented, N.J.S.A. 40A:20-1, et seq., Executive Order of the Mayor S-039, relating to term tax exemption, as it may be amended and supplemented . . . ." (Emphasis added). This different wording indicates that the Executive Order of the Mayor may be amended and supplemented, 15 A-5231-14T3 whereas the LTTE Law has already been amended and supplemented. See Krosnowski v. Krosnowski, 22 N.J. 376, 387-88 (1956) ("Individual clauses and particular words must be considered in connection with the rest of the agreement, and all parts of the writing and every word of it, will, if possible, be given effect."). Accordingly, we conclude that "as amended and supplemented" simply meant that the financial agreements intended to reference the version of the LTTE Law as it existed in 2000, including any amendments or supplements to the statute that followed the law's initial enactment, up to the date of the contracts under review. We further find it contrary to fundamental public financing concepts for the Legislature to adjust the terms of municipal tax abatement contracts after the fact. See N.J.S.A. 40A:20-2, N.J.S.A. 40A:12A-2. And, we do not find that the Legislature intended to do so in the 2003 LTTE amendments. While the legislative intent must be considered when a court is interpreting a statute or new legislative amendments, "all doubts are resolved against those seeking the benefit of a statutory exemption[,] which in turn is based upon the fundamental principle of equality of the taxation burden." Teaneck Twp. v. Lutheran Bible Inst., 20 N.J. 86, 90 (1955) (citations omitted). 16 A-5231-14T3 When the LTTE Law was amended in 2003, it ratified and validated all existing financial agreements, including "the structure and methods used to calculate excess profits." N.J.S.A. 40A:20-22. We interpret this to mean that the Legislature did not intend to disrupt the financial terms of existing contracts. Contrary to plaintiffs' position, "[i]t is well established that courts and legislatures are loath to apply the effect of a statute retroactively." Chase Manhattan Mortg. Corp. v. Spina, 325 N.J. Super. 42, 48 (Ch. Div. 1998), aff'd, 325 N.J. Super. 1 (App. Div. 1999). Rather, the purpose and effect of N.J.S.A. 40A:20-22 is to validate pre-existing contractual arrangements, so that municipalities, and thus the taxpayers, receive the benefit of their bargains. The City also claims plaintiffs were violating the financial agreements by funneling their excess profits to an affiliate as "excess rent." We agree with plaintiffs that this claim was not addressed in the trial court's decision under review, and hence was not within the scope of our order granting leave to appeal. See R. 2:2-4; Towpath Unity Tenants Ass'n v. Barba, 182 N.J. Super. 77, 81 (App. Div. 1981). Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 17 A-5231-14T3

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Docket No.: a4083-15
Decided: 2017-11-14
Caption: SPARROWEEN,LLC v. TOWNSHIP OF WEST CALDWELL
Status: published
Summary:
J.A.D. Plaintiffs appeal from an April 18, 2016 order that dismissed their prerogative writs action and denied their request to invalidate a municipal smoking ordinance. Plaintiffs primarily argue that the New Jersey Smoke-Free Air Act (the Smoke-Free Act), N.J.S.A. 26:3D-55 to -64, supersedes the municipal ordinance. We affirm because the ordinance is valid and is not superseded by the Smoke-Free Act. I. Plaintiffs are Sparroween, LLC, d/b/a Cigar Emporium (Sparroween) and Richard Yanuzzi, the sole owner of Sparroween (collectively, plaintiffs). Since June 2015, Sparroween has operated a tobacco retail store in West Caldwell.2 One-third of the store consists of sale space for purchasing cigars, pipe tobacco, and related accessories. The remainder of the store consists of seating areas for customers. 2 At oral argument, counsel for the parties informed us that Sparroween has ceased operating the store. Counsel for plaintiffs also represented that the store might reopen if the ordinance was invalidated. 2 A-4083-15T1 In early 2014, Sparroween submitted an application to the West Caldwell Planning Board (the Planning Board) for site plan and development approval to open a tobacco retail establishment. The application stated that Sparroween's intent was to sell cigars, pipe tobacco, and various accessories, and that the premises would have seating areas where customers could smoke tobacco products purchased from the store. The Planning Board forwarded plaintiffs' application to other Township officials, including the Board of Health and the Health Officer. In response, the Health Officer submitted a memorandum to the Planning Board and Sparroween, commenting on the application and identifying certain "requirements" for the application (the Memorandum). The Memorandum noted that for Sparroween to receive a tobacco retail establishment waiver under the Smoke-Free Act, plaintiffs would need to submit a notice of claim for exemption. In the Memorandum, the Health Officer also suggested certain conditions, including that: (1) the establishment be a "cash and carry" business, "with the general purpose of purchasing product[s] for off-premise[s] consumption[;]" and (2) "pre- purchase sampling shall be limited to no more than 3 minutes prior to making a multi-unit purchase from the [tobacco retail establishment]." 3 A-4083-15T1 Thereafter, the Planning Board held a hearing on Sparroween's application. At the hearing, the chairman of the Planning Board informed Sparroween that if its application was approved, the approval would only cover its use as a retail store and a lounge for customers. Thus, the approval would not cover indoor smoking. In response, representatives of Sparroween acknowledged that they would be subject to regulatory requirements to get approval for indoor smoking. Following the hearing, the Planning Board approved Sparroween's application, and on April 21, 2014, it issued a resolution approving the application for "the retail sale of [t]obacco products and accessories." The resolution was conditioned on Sparroween complying "with all [f]ederal, state and local laws, rules and regulations[.]" The resolution also noted that Sparroween had read the recommendations of the Health Officer set forth in the Memorandum. Following receipt of its development and site plan approval, Sparroween leased and renovated the premises. In June 2015, Sparroween opened Cigar Emporium. In August 2015, the Health Officer issued a notice of violation to Sparroween for failing to file a claim for exemption of a tobacco retail establishment under the Smoke-Free Act. Sparroween eventually submitted the claim for exemption on August 31, 2015. 4 A-4083-15T1 In early December 2015, the West Caldwell Board of Health passed an ordinance governing smoking inside tobacco retail establishments (the Smoking Ordinance). Under that ordinance, smoking was restricted to "pre-purchase sampling" and was limited to "no more than 2 minutes[.]" The ordinance also required operators of tobacco retail establishments to register with the Board of Health and to obtain a license from the Township's Health Officer. Later that month, on December 24, 2015, the Health Officer sent Sparroween a notice of violation of the Smoking Ordinance for allegedly allowing "continuous smoking" inside Cigar Emporium. The notice directed Sparroween to cease allowing smoking and stated that failure to comply would result in the issuance of summonses and the imposition of fines. Counsel for Sparroween contacted the Board of Health, but the parties did not resolve their differences. Thereafter, on March 19, 2016, the Health Officer came to Cigar Emporium, found patrons smoking, and issued four summonses to Sparroween for violations of the Smoking Ordinance.3 In response, on March 21, 2016, plaintiffs filed an order to show 3 Plaintiffs alleged that the Health Officer also issued summonses to five customers who were found smoking inside Cigar Emporium. The individual customers, however, were not parties to the matter in the trial court and there is no issue concerning the individual customers before us on this appeal. 5 A-4083-15T1 cause seeking temporary restraints against the enforcement of the Smoking Ordinance. Plaintiffs also filed a verified complaint for declaratory judgment and in lieu of prerogative writs, naming as defendants the Township of West Caldwell, the Township Board of Health, and the Township Health Officer. The complaint sought a declaration that the Smoking Ordinance was illegal and void. The trial court initially granted the temporary restraints and set a return date for a hearing. Defendants filed opposition to the restraints, and a motion to dismiss the complaint. After hearing oral argument on April 12, 2016, the trial court entered an order vacating the temporary restraints and dismissing plaintiffs' complaint with prejudice. The court explained the reasons for its ruling in a cogent decision read into the record. In short, the court held that the Smoke-Free Act did not supersede the Smoking Ordinance. The court also held that the Smoking Ordinance was a validly enacted health ordinance and plaintiffs were not entitled to declaratory relief. II. On appeal, plaintiffs make three arguments, contending that: (1) the Smoking Ordinance is not valid because it is superseded by the Smoke-Free Act; (2) alternatively, the Smoking Ordinance operates as a land use ordinance and is not applicable to plaintiffs' non-conforming pre-existing use; and (3) the trial 6 A-4083-15T1 court erred in dismissing their complaint before allowing discovery. We are not persuaded by any of these arguments, and we affirm the trial court's April 18, 2016 order. A. The Smoke-Free Act Does Not Supersede the West Caldwell Smoking Ordinance The primary issue on appeal is whether the Smoking Ordinance is superseded or preempted by the Smoke-Free Act. That issue is a question of law, which we review de novo. McGovern v. Rutgers, 211 N.J. 94, 108 (2012). The Smoke-Free Act generally prohibits smoking of tobacco in an indoor public place or workplace. N.J.S.A. 26:3D-58. An indoor public place includes a "structurally enclosed place of business, commerce or other service-related activity," including a for- profit privately owned structure, "which is generally accessible to the public . . . ." N.J.S.A. 26:3D-57. In enacting the Smoke-Free Act, the Legislature found that tobacco is a leading cause of preventable disease and death in New Jersey, tobacco smoke constitutes a substantial health hazard to the non-smoking "majority" of the public, and it was in the public's interest to prohibit smoking tobacco products in indoor places of public access. N.J.S.A. 26:3D-56. The Smoke-Free Act allows for certain exemptions and states that its prohibitions do not apply to any "tobacco retail 7 A-4083-15T1 establishment[,]" "cigar bar[,]" "cigar lounge[,]" or other identified places. N.J.S.A. 26:3D-59. The Smoke-Free Act then defines "tobacco retail establishment", "cigar bar", and "cigar lounge". N.J.S.A. 26:3D-57. The Smoke-Free Act also supersedes other statutes, municipal ordinances, rules, or regulations concerning smoking in an indoor public place or workplace, with certain exceptions. N.J.S.A. 26:3D-63. Specifically, the Smoke-Free Act states: The provisions of this act shall supersede any other statute, municipal ordinance and rule or regulation adopted pursuant to law concerning smoking in an indoor public place or workplace, except where smoking is prohibited by municipal ordinance under authority of [N.J.S.A.] 40:48-1 or 40:48-2 or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire or protecting public health, and except for those provisions of a municipal ordinance which provide restrictions on or prohibitions against smoking equivalent to, or greater than, those provided under this act. [Ibid.] Plaintiffs rely on N.J.S.A. 26:3D-63 and argue that it supersedes the Smoking Ordinance. In that regard, plaintiffs contend that the Smoke-Free Act allows for their operation of a tobacco retail establishment and does not limit the amount of time that customers can smoke in the establishment. Plaintiffs then contend that the superseding provision of the Smoke-Free Act 8 A-4083-15T1 grandfathered municipal ordinances that pre-dated the 2006 enactment of the Smoke-Free Act, but prohibited all future ordinances that are more restrictive. We disagree with this suggested interpretation because the plain language of the Smoke- Free Act does not support such a reading. West Caldwell's Smoking Ordinance requires tobacco retail establishments, claiming to be exempt from the Smoke-Free Act, to file an annual notice with the Board of Health and to be licensed. The Smoking Ordinance also places restrictions on indoor smoking. Specifically, the Smoking Ordinance limits smoking to pre-purchase sampling not to exceed two minutes. These provisions are more restrictive than the Smoke-Free Act. Accordingly, the Smoking Ordinance is only valid if it is not superseded by the Smoke-Free Act. The starting place for statutory interpretation is the Act's plain language. N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 557 (2017). Here, the controlling provision is the superseding section of the Smoke-Free Act, N.J.S.A. 26:3D-63. That provision states that the Smoke-Free Act supersedes "any other statute, municipal ordinance and rule or regulation adopted pursuant to law concerning smoking in an indoor public place or workplace . . . ." The provision then identifies three exceptions when the Smoke-Free Act does not supersede such laws. The 9 A-4083-15T1 exceptions are: (1) "where smoking is prohibited by municipal ordinance under authority of [N.J.S.A.] 40:48-1 or 40:48-2[;]" (2) where smoking is prohibited "by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire or protecting public health[;]" and (3) "provisions of a municipal ordinance which provide restrictions on or prohibitions against smoking equivalent to, or greater than, those provided under this act." N.J.S.A. 26:3D-63. Applying the plain language of the superseding provision of the Smoke-Free Act, the Smoking Ordinance arguably falls under all three exceptions, but clearly falls under the first and third exceptions. As to the first exception, the West Caldwell Board of Health adopted the Smoking Ordinance pursuant to its authority under N.J.S.A. 40:48-2, which allows municipalities to enact ordinances for the preservation of public health. As to the third exception, it is uncontested that the Smoking Ordinance imposes greater restrictions than the Smoke-Free Act. Plaintiffs focus on the word "adopted" and argue that such language limits the applicability of the exceptions to previously adopted laws, municipal ordinances, rules and regulations. Reading the plain language of the superseding provision does not support such an interpretation. The word "adopted", as used in the Smoke-Free Act, plainly refers to existing laws, ordinances, 10 A-4083-15T1 rules and regulations, as well as those that may be adopted in the future. B. The Smoking Ordinance Is Not a Land Use Ordinance Plaintiffs next argue that if the Smoking Ordinance is valid, it is effectively a land use ordinance and because it was adopted after Cigar Emporium opened, the Emporium is a pre-existing non- conforming use exempt from the prohibitions of the Smoking Ordinance. We reject this argument because the Smoking Ordinance was a validly adopted health ordinance. Municipal health boards are granted the authority to enact and amend health ordinances. N.J.S.A. 26:3-64. Accordingly, a municipality may pass an ordinance or regulation "as it may deem necessary and proper . . . for the preservation of public health, safety and welfare of the municipality and its inhabitants . . . ." N.J.S.A. 40:48-2. See LDM, Inc. v. Princeton Reg. Health Comm'n, 336 N.J. Super. 277, 291 (App. Div. 2000) (citing State v. Crawley, 90 N.J. 241, 247 (1982)) (explaining that municipalities may enact health ordinances that are reasonably related to a legitimate object of public health, safety, or welfare). The Smoking Ordinance, like all municipal ordinances, is entitled to a presumption of validity. Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551 (2015). Here, the Smoking Ordinance 11 A-4083-15T1 was enacted by the West Caldwell Board of Health in accordance with its authority under N.J.S.A. 26:3-64 and N.J.S.A. 40:48-2. The Smoking Ordinance is rationally related to the Township's legitimate interest in protecting the health and welfare of its citizens by limiting their exposure to second-hand smoke. Additionally, many ordinances, including health ordinances, touch on the use of land, but are not within the planning and zoning concerns of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -17. "[S]uch ordinances are enacted pursuant to the general police power and apply to everyone." See, e.g., N.J. Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 38, 53-54 (2009) (applying the rational basis test to determine the validity of a municipal ordinance adopted pursuant to N.J.S.A. 40:48-2, and holding that the ordinance did not fall within the purview of the MLUL despite affecting the use of land). Consequently, the Smoking Ordinance is a valid municipal health ordinance and it is not a land use ordinance. C. Plaintiffs' Complaint Was Properly Dismissed We use a de novo standard when reviewing an order dismissing a complaint for failure to state a claim. When reviewing a motion to dismiss under Rule 4:6-2(e), we assume that the allegations in the pleadings are true and afford the pleader all reasonable inferences. Seidenberg v. Summit Bank, 348 N.J. Super. 243, 249- 12 A-4083-15T1 50 (App. Div. 2002). "Where, however, it is clear that the complaint states no basis for relief and that discovery would not provide one, dismissal of the complaint is appropriate." J.D. ex rel. Scipio-Derrick v. Davy, 415 N.J. Super. 375, 397 (App. Div. 2010) (quoting Cty. of Warren v. State, 409 N.J. Super. 495, 503 (App. Div. 2009), certif. denied, 201 N.J. 153, cert. denied sub nom., 561 U.S. 1026, 130 S. Ct. 3508, 177 L. Ed. 2d 1092 (2010)). Here, plaintiffs' complaint alleged four causes of action and sought two forms of relief: (1) a declaration that the Smoking Ordinance was illegal and void; and (2) a damages award holding the Health Officer liable for his alleged wrongful and malicious interference with plaintiffs' business. Because we have held as a matter of law that the Smoking Ordinance was valid, neither of these forms of relief could be granted. Moreover, there was no need for discovery since the controlling issue was an issue of law. Affirmed. 13 A-4083-15T1

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Appellate Division UNPUBLISHED Decisions


Docket No.: a0048-16
Decided: 2017-11-16
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the DOROTHY SPRUCE v. ROUTE 18 SHOPPING CENTER ASSOCIATES, BURGER KING CORP., PICTURE PERFECT LANDSCAPI
Status: unpublished
Summary:
PER CURIAM In 2012, plaintiff injured her right knee when she tripped over a mulch-covered tree stump at the East Brunswick Burger King restaurant, where she worked as the general manager. In 2013, plaintiff filed a personal injury complaint against various defendants. She now appeals from a series of July 27, 2016 Law Division orders granting summary judgment dismissal of her claims against defendants FM Facility Maintenance (FM), Northwest Companies, Inc. (Northwest), and Pino's Landscaping (Pino's). We affirm. We summarize the pertinent facts, viewing them in a light most favorable to plaintiff, the party against whom summary judgment was sought. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see R. 4:46-2. On April 2, 2012, plaintiff arrived at the Burger King parking lot between 8:45 and 8:50 a.m. As she walked through the parking 2 A-0048-16T3 lot to enter the restaurant, she noticed a newspaper blowing in the wind and observed a portion become stuck underneath some bushes, about ten feet from the restaurant door. The area contained approximately three to four bushes surrounded by mulch. Plaintiff walked towards the bushes intending to pick up the newspaper. As she stepped off the sidewalk and onto the mulch, she "tripped over the stump" and landed on her knee, with resulting injury. According to plaintiff, she did not see the stump because "[i]t was covered with mulch." Plaintiff stated Burger King did not require her to inspect the landscaping work outside the restaurant, but she often took it upon herself to do so. Plaintiff did not notice any issues in the area of the stump prior to her injury. At the time of plaintiff's accident, Burger King had a contract with defendant FM, effective August 31, 2011, to perform maintenance services for the restaurant, including landscaping, snow plowing, and general repairs. FM, in turn, retained defendant Northwest as an independent contractor, effective September 13, 2011, to perform landscaping services. Northwest then entered into a subcontract agreement with defendant Pino's, whereby Pino's agreed to provide exterior maintenance services at the restaurant. The contract between Northwest and Pino's required Pino's to perform various "in scope" services defined in attached schedules. 3 A-0048-16T3 The contract further provided for Pino's to "occasionally complete 'out of scope' services," but such services required prior approval of Northwest. The list of "in scope" services specifically noted that mulching was "not approved." Moreover, according to the owner of Pino's, Pino Tortorici,1 the contract did not authorize Pino's to remove tree stumps; instead, Pino's first had to obtain a "work order" before completing such work. Pursuant to its contract with Northwest, Pino's expected to begin providing regular monthly maintenance to the subject Burger King on April 1, 2012. However, on March 27, 2012, the Northwest account manager emailed Pino to inform him Burger King requested a "one[-]time early service" at the restaurant. Pino testified at deposition that his company performed a "spring cleanup" on March 30, 2012. This process involved removing loose debris such as leaves, sticks, and branches from the grass, mulch beds, and sidewalks; cutting the grass; and "blow[ing] off" the lawn. According to Pino, the purpose of the "spring cleanup" was to "give [the premises] a one[-]time run-through and clean it up and make it look nice before the actual work in April was started." In her pleadings, plaintiff alleged defendants negligently maintained the premises by allowing it to become hazardous and 1 We refer to Pino Tortorici as "Pino" and to his company as "Pino's." 4 A-0048-16T3 negligently failed to remove the debris that caused her injury. At the completion of discovery, defendants moved for summary judgment. At the summary judgment hearing, Judge Arnold L. Natali, Jr. heard oral argument and then addressed plaintiff's claims against each defendant separately. The judge granted summary judgment to each remaining defendant, including Pino's, Northwest, and FM, finding plaintiff failed to identify a duty that any defendant arguably breached. In a supplemental written opinion, Judge Natali expanded on his reasoning, first finding Pino's duty "was limited by the scope of the services for which [it] was hired." He noted Pino's had not been hired to perform mulch services, and because the cleanup was Pino's first time on the premises, it did not create the dangerous condition. Rather, an unidentified landscaping company had performed work prior to Pino's. The judge also noted, "While [Pino] may have observed tree stumps on limited areas of the property, there is nothing in the record to indicate that [Pino] became aware of the particular condition at the location where plaintiff allegedly fell." The judge thus found neither duty nor breach. Next, addressing Northwest and FM, the judge concluded: 5 A-0048-16T3 Nothing in the contract imposed a duty upon either company to inspect and ensure the landscaping services . . . previously performed by other vendors. . . . Thus, FM and Northwest would only have a contractual obligation to correct the hazardous condition . . . if it had resulted from an unsatisfactory service performed by one of its vendors. The judge also addressed the opinion of plaintiff's expert, an engineer, who opined that FM's failure "to properly and safely maintain this property in compliance with the minimum requirements of the Property Maintenance Code [of] the Township of East Brunswick caused this accident." The judge rejected the expert's opinion because "[t]he opinion is entirely speculative, untethered to the facts and therefore 'net.'" The judge found no "factual predicate" for the expert's contention that the local property code applied here to make FM "responsible for 'properly and safely' maintaining the property under all circumstances." Judge Natali therefore granted summary judgment to FM, Northwest and Pino's, finding no basis upon which the court could impose a duty upon the defendants, either pursuant to a contractual obligation or under common law . . . . Simply put, the record does not create a factual question that any defendant had anything to do with the creation of the alleged dangerous condition. 6 A-0048-16T3 II. In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the motion court. See Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, 142 N.J. at 540. "To establish a prima facie case of negligence, a plaintiff must establish the following elements: (1) duty of care, (2) breach of that duty, (3) proximate cause, and (4) damages." D'Alessandro v. Hartzel, 422 N.J. Super. 575, 579 (App. Div. 2011). Whether a party owes a legal duty, as well as the scope of the duty owed, are questions of law for the court to decide. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996). "The inquiry has been summarized succinctly as one that 'turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.'" Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 401 (2006) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). We examine foreseeability, Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502-03 (1996), as well as such factors as "the relationship of the parties, the nature of the 7 A-0048-16T3 attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Acuna v. Turkish, 192 N.J. 399, 414 (2007) (internal quotation marks omitted), cert. denied, 555 U.S. 813, 129 S. Ct. 44, 172 L. Ed. 2d 22 (2008). On appeal, plaintiff raises the following points of argument: POINT I THE TRIAL COURT'S DECISION THAT RESPONDENTS OWED NO DUTY TO APPELLANT REQUIRES A DE NOVO REVIEW BY THE APPELLATE COURT BECAUSE DUTY IS A QUESTION OF LAW. POINT II RESPONDENTS WERE NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE THE TRIAL COURT JUDGE ERRED IN FINDING THAT RESPONDENTS OWED NO DUTY TO APPELLANT. POINT III RESPONDENTS['] PREVENTATIVE MAINTENANCE CONTRACTOR SHOULD HAVE INSPECTED THE PREMISES AND FOUND THE STUMP. POINT IV RESPONDENT PINO'S LANDSCAPING HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE STUMP AND HAD A DUTY TO TAKE REASONABLE STEPS TO ADDRESS THE HAZARD. POINT V ADEQUATE NOTICE EXISTED OF THE HAZARDOUS STUMPS AT THE SUBJECT PROPERTY. 8 A-0048-16T3 POINT VI NORTHWEST HELD A SUBSTANTIAL RIGHT TO CONTROL PINO’S ACTIVITIES, SUCH THAT NORTHWEST CAN BE DEEMED VICARIOUSLY LIABLE FOR PINO’S NEGLIGENCE. POINT VII FM WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE HAZARD BY REVIEWING PROPERTY PHOTOS OR REVIEWING PINO'S JOB PERFORMANCE. POINT VIII RESPONDENTS DISREGARDED EAST BRUNSWICK'S PROPERTY MAINTENANCE CODE AND THEIR FAILURE TO COMPLY CAUSED THE ACCIDENT. We find no merit in any of these arguments and conclude they lack 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 Judge Natali in his cogent written opinion issued on July 14, 2016. We add the following comments. While the record reflects that Pino's performed a spring clean-up at the subject Burger King on March 30, 2012, three days before plaintiff's accident, Northwest had issued Pino's a very specific and detailed scope of work order, which did not include stump removal and specifically prohibited mulching. Because the scope of work provision of Pino's contract specifically prohibited mulching, Pino believed that stump removal was also not authorized. Additionally, the only work Pino's was specifically authorized to 9 A-0048-16T3 perform on March 30 was a "spring clean-up," which meant mowing the lawn and other limited services, such as picking up loose trash. Pino had never been to this Burger King before and was not hired to complete a safety inspection. A photo of the premises, allegedly taken right after Pino's completed its work, shows no visible stumps in the mulch beds. The record reflects the subject stump was a hidden danger. The record contains no evidence that any defendant performed the mulching that resulted in the concealment of the stump, or had any responsibility for removing it. As the manager of the restaurant, plaintiff took it upon herself to inspect the landscaping work; as a result, she was in a good position to identify the alleged dangerous condition in the landscaping, and she observed none. We further note that Judge Natali correctly rejected the opinions of plaintiff's expert under the net opinion doctrine. An expert's "bare conclusions, unsupported by factual evidence" are inadmissible as a net opinion. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The expert is required "to give the why and wherefore of his [or her] expert opinion, not just a mere conclusion." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). As the judge found, the record lacks the essential "factual predicate" for the 10 A-0048-16T3 expert's opinion that the municipal property code applied to make FM responsible for safely maintaining the subject property. Affirmed. 11 A-0048-16T3

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Docket No.: a1515-16
Decided: 2017-11-16
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the MICHAEL V. MANGONE and DENISE MANGONE v. PIAZZA & ASSOCIATES, INC MONTGOMERY WOODS HOMEOWNERS ASSOC
Status: unpublished
Summary:
PER CURIAM Plaintiff, Michael V. Mangone,1 a UPS delivery worker, was injured as the result of falling on the driveway of the defendant homeowner, Beverly L. Beer, on the morning of December 17, 2013. The homeowner had left for work earlier that morning. She had requested a UPS delivery of a package to be made by 10:30 a.m. The record shows that it was lightly snowing at the time of the incident and that it had snowed the previous day. About 2.5 to 3.5 inches of accumulated snow was estimated to be present on the ground at the time. Plaintiff sued Beer, along with co-defendants Piazza & Associates, Inc. and Montgomery Woods Homeowners Association, Inc., for negligence. The trial court granted summary judgment to defendants, concluding that defendants did not breach a legal duty under the circumstances presented. We affirm. We agree with plaintiff that he was a business invitee on the premises and was owed a duty of care to provide him with a reasonably safe means to make his delivery. The situation is analogous to Jimenez v. Maisch, 329 N.J. Super. 398, 401-02 (App. 1 The injured plaintiff's spouse is named in the complaint as a co-plaintiff. 2 A-1515-16T2 Div. 2000), which concluded that a mail carrier injured on residential premises has the status of a business invitee. That said, we concur with the entry of summary judgment. Even viewing the record, as we must, in a light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), there is no genuine material issue of fact and no legal basis for imposing liability here. Case law does not impose a legal obligation on a residential property owner to clear a driveway during an ongoing snow storm. The residential owner instead has a duty under tort law to remove snow within a reasonable period of time after a snow event. See Jimenez, supra, 329 N.J. Super. at 403. Moreover, although it is not necessary to our analysis, plaintiff's liability theory is undercut by substantial issues of proximate causation and comparative fault, as the record reveals that UPS drivers have the prerogative to decline to attempt deliveries in foul weather when surface conditions are dangerous. Affirmed. 3 A-1515-16T2

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Docket No.: a1949-16
Decided: 2017-11-16
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the BANK OF NORTH CAROLINA (BNC BANK AS SUCCESSOR IN INTEREST TO BEACH FIRST NATIONAL BANK v. LITCHFIEL
Status: unpublished
Summary:
PER CURIAM Defendant George Stephanis1 appeals from a December 19, 2016 order denying reconsideration of an October 28, 2016 order rejecting defendant's objection to the domestication under New Jersey's Uniform Enforcement of Foreign Judgments Act, N.J.S.A. 2A:49A-1 to -33, (UEFJA) of a March 29, 2011 South Carolina judgment against defendant. We affirm. Although defendant appeals only the order denying reconsideration, we briefly review and affirm the underlying October 28 order as well. In 2010, plaintiff Bank of North Carolina (BNC) filed an action in South Carolina against defendant and Litchfield, seeking repayment of a $2,500,000 commercial loan. Defendant had unconditionally guaranteed the loan. A South Carolina Master-in-Equity issued an "Order and Judgment of Foreclosure and Sale" on March 29, 2011, containing in its caption the words "Deficiency Demanded," entering judgment against defendant under his guaranty for $3,073,714.86 plus 14% interest. The March 29 order and judgment also ordered the sale of property in Horry County, South Carolina, put up as collateral 1 Litchfield Development, LLC (Litchfield) was not involved in the New Jersey litigation, and plaintiff does not claim to be owed money by the defunct company. We refer to Stephanis alone as defendant. 2 A-1949-16T2 by Litchfield. Plaintiff purchased the property at a sheriff's sale for $909,695. After the sale, the Master-in-Equity issued a June 15, 2011 "Master's Report on Sale, Order of Distribution, and Order Confirming Sale" containing in the caption the words "Deficiency Waived." Defendant argues that this June order conflicts with the March judgment, and thus the March judgment should not have been domesticated in New Jersey. Plaintiff argues that the judgment demanding the deficiency remains accurate with regard to defendant, the loan guarantor, while the June order waiving the deficiency relates to Litchfield, the mortgagor, alone. Plaintiff states that the waiver as to Litchfield sped up the process under South Carolina's foreclosure sale process. Whether the South Carolina judgment "may be registered in New Jersey implicates the Full Faith and Credit clause of the United States Constitution, which mandates 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.'" Ewing Oil, Inc. v. John T. Burnett, Inc., 441 N.J. Super. 251, 259 (App. Div. 2015) (quoting U.S. Const. art. IV, § 1). "The clause requires a foreign judgment 'properly entered in accordance with local procedure is entitled to full faith and credit in any other state provided . . . the judgment is not entered in violation of due process of law.'" 3 A-1949-16T2 Ibid. (quoting Sec. Ben. Life Ins. Co. v. TFS Ins. Agency, Inc., 279 N.J. Super. 419, 424 (App. Div. 1995)). The narrow issue on appeal is whether defendant raised due process issues appealable under the UEFJA, or instead made collateral attacks on the judgment that must be raised in South Carolina. Defendant does not argue on appeal that South Carolina lacked personal or subject matter jurisdiction, or failed to provide adequate notice and an opportunity to be heard. See Sonntag Reporting Serv., Ltd. v. Ciccarelli, 374 N.J. Super. 533, 538 (App. Div. 2005) (finding a foreign judgment is entitled to full faith and credit unless the defendant is denied one of these enumerated due process rights). We affirm substantially for the reasons expressed by Judge James J. DeLuca in the "riders" to the October 28, 2016 order and December 19, 2016 order denying reconsideration. Defendant raised no specific reason why reconsideration was appropriate. "Motions for reconsideration are governed by Rule 4:49-2, which provides that the 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 is appropriate in those limited number of cases where: "(1) the Court has expressed its decision based upon 4 A-1949-16T2 a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." Granata v. Broderick, 446 N.J. Super. 449, 468 (App. Div. 2016) (quoting Fusco v. Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002)), certif. granted, 228 N.J. 516 (2017). A trial court's decision should be "left undisturbed unless it represents a clear abuse of discretion." Pitney Bowes Bank, Inc., supra, 440 N.J. Super. at 382 (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). Judge DeLuca correctly rejected defendant's objection to domesticating the South Carolina judgment and did not abuse his discretion in denying defendant's motion for reconsideration. Affirmed. 5 A-1949-16T2

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Docket No.: a1969-15
Decided: 2017-11-16
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the MANUEL SANCHEZ and YOLANDA SANCHEZ v. NEW JERSEY TURNPIKE AUTHORITY, PORFIRIO I RAMON and MARIA E.
Status: unpublished
Summary:
PER CURIAM Plaintiffs Manuel and Yolanda Sanchez appeal from an order dated December 4, 2015, denying their motion for reconsideration of a September 24, 2015 order, which in effect determined that New Jersey Manufacturers Insurance Company (NJM) did not owe plaintiffs underinsured motorist (UIM) coverage for an automobile accident. NJM filed a protective cross-appeal from an October 23, 2015 order denying its motion for a new trial on damages, claiming errors in the jury instructions. On plaintiffs' appeal, we vacate the September 24, 2015 and December 4, 2015 orders, and we remand the matter to the trial court for a plenary hearing to decide material factual disputes concerning the coverage issue. NJM failed to perfect the cross- appeal by providing us with all of the pertinent trial transcripts. Without the entire trial record, including the testimony of the damages experts, we cannot determine whether any alleged charging 2 A-1969-15T3 errors had a clear capacity to produce an unjust result. See R. 2:10-2. Accordingly, we dismiss the cross-appeal. I In 2011, Manuel Sanchez,1 a State Trooper, was injured in an auto accident while he was on duty, driving a vehicle owned and insured by the New Jersey Turnpike Authority (the Authority). The other driver, Porfirio Ramon, had a $15,000 auto insurance policy. After settling with Ramon for the $15,000 policy limit, plaintiffs sought UIM coverage from the Authority and from Manuel's personal auto insurance policy issue by NJM. There was no dispute that the NJM policy provided $300,000 in UIM coverage. A dispute arose as to whether the Authority provided $15,000 or $2 million in UIM coverage. The dispute was based on the following unusual set of facts. The Authority was self-insured, but had procured an excess policy from Chartis Claims, Inc.2 for amounts over $2 million. Endorsement No. 23 of that policy, which was titled 1 Manuel's wife Yolanda sought per quod damages. We refer to Mr. and Mrs. Sanchez collectively as plaintiffs. For clarity, and intending no disrespect, we refer to them individually by their first names. 2 The Chartis policy indicates that coverage was being provided by "National Union Fire Insurance Company of Pittsburgh, Pa." However, the parties have referred to the insurer as "Chartis" and we will do so as well. 3 A-1969-15T3 "Uninsured/Underinsured Motorists Coverage Endorsement," could be construed to mean that Chartis was providing UIM coverage for occupants of the Authority's vehicles on an excess basis, and that the Authority was self-insured for $2 million in UIM coverage. The endorsement included the following sentence: "Uninsured/Underinsured Motorists Retained Limit $2,000,000 INSURING AGREEMENT." The Authority's position was that the Chartis policy only covered third-party claims, not UIM claims. The Authority contended that Endorsement No. 23, including the retained limit language concerning UIM coverage, was insurance company boilerplate, which was not applicable to the type of coverage the Authority had purchased from Chartis and should not have been included in the policy. While the UIM litigation was pending, plaintiffs filed a motion to amend the complaint to add Chartis as a defendant. The assigned motion judge (the first judge) did not decide whether the Chartis policy in fact provided UIM coverage or what amount of UIM coverage the Authority provided. Rather, he reasoned that, even if the Chartis policy included UIM coverage, plaintiffs failed to demonstrate that their damages exceeded $2 million, so as to trigger any "umbrella coverage" the Chartis policy provided. Accordingly, the judge denied the motion because the amendment would have been "futile." 4 A-1969-15T3 It appears from the record that the language in the Chartis endorsement had created issues in other auto accident cases involving the Authority, concerning the level of the Authority's underlying UIM coverage. At his deposition, the Authority's deputy executive director, John O'Hern, testified that the Authority's self-insured retention limit for UIM coverage was $15,000, but he testified that there was no written documentation setting that coverage limit. O'Hern testified to his understanding that UIM coverage of $15,000 per individual and $30,000 per accident was statutorily required. O'Hern also testified to his understanding that the Authority never had UIM excess coverage from Chartis and Endorsement No. 23 was "a mistake." He noted that section O of the exclusions section of the basic Chartis policy stated that the policy did not apply to the insured's UIM obligation. O'Hern acknowledged evidence that in two prior cases involving injured State Troopers, the Authority had settled UIM claims for considerably more than $15,000. He testified that in both of those cases, the Authority's initial litigation position had been that its UIM limits were $15,000/30,000. The minutes of the Commission meeting concerning one of the settlements indicate that the plaintiff in that case claimed that he suffered a traumatic brain injury. However, at his deposition, O'Hern also recalled a more recent case in which the Authority had litigated 5 A-1969-15T3 its obligation to provide UIM coverage and had obtained a Law Division decision holding that its UIM coverage was limited to $15,000. According to O'Hern, that decision arose from a court hearing in which he testified. On February 15, 2012, the Authority's acting director of law authored a memo indicating that the Authority's limit had always been $15,000, but that the Chartis policy language had created an issue on that point. He recommended that the Authority's Board of Commissioners raise the UIM self-insured limit to $250,000 to adequately protect the Authority's employees. He also recommended asking Chartis to delete the controversial language from its policy. On February 28, 2012, the Commissioners approved that recommendation, voting to change the Authority's UIM self-insured retention limit to $250,000 and authorizing the executive director to ask Chartis to remove Endorsement No. 23 from its policy.3 According to O'Hern, the Authority's current umbrella policy does not contain a provision for UIM coverage. Despite knowing that there was an issue over the Authority's self-insured limit, plaintiffs settled with the Authority for $67,000. The settlement agreement recited that it was without prejudice to the Authority's position that at the time of the 3 The memo and the Commission minutes refer to Endorsement No. "24" but we conclude this is a typographic error. 6 A-1969-15T3 accident, it only provided $15,000 in UIM coverage, regardless of the terms of any existing excess policy. Plaintiffs then proceeded to trial against NJM, before a second judge. Shortly before the trial, NJM filed a motion asking the trial court to declare that the Authority's UIM coverage was $2 million, and that NJM's policy was excess to the coverage provided by the Authority. Instead of deciding the coverage issue, the second judge declined to entertain the motion and proceeded with the trial. The jury returned a verdict of $250,000 in damages for Manuel and $50,000 in per quod damages for Yolanda. After the trial, the second judge determined that the Authority's UIM self- insured retention limit was $2 million and that, pursuant to the language of the NJM policy, NJM's coverage was excess to that provided by the Authority. In effect, that determination vitiated the $300,000 jury verdict against NJM. II On this appeal, plaintiffs contend that the language in the Chartis policy was incorrect, and that the language of an excess policy cannot legally determine the insured public entity's underlying coverage limit. The Authority supports plaintiffs' position. The Authority argues, in the alternative, that it had no obligation to provide any UIM coverage and did not include such 7 A-1969-15T3 coverage in its self-insured retention, or that its UIM obligation was limited to $15,000. Ordinarily, the interpretation of an insurance policy is a contract question that presents solely a legal issue. See Powell v. Alemaz, Inc., 335 N.J. Super. 33, 37 (App. Div. 2000). However, in this case, where the Authority was self-insured, the issue is not so simple. After reviewing the record, we conclude that there is a material factual issue concerning the Authority's UIM coverage at the time of the 2011 accident. The Chartis policy only provides coverage that is excess to underlying existing coverage. It neither provides primary coverage nor creates any underlying coverage. See Arico v. Twp. of Brick, 281 N.J. Super. 471, 475 (App. Div.), certif. denied, 142 N.J. 515 (1995). Language in the Chartis policy concerning the Authority's amount of underlying UIM coverage might constitute some evidence of that coverage. However, the Chartis policy language cannot not create such underlying coverage if it does not otherwise exist. There are factual issues concerning how the contested language came to appear in the Chartis policy; whether the Authority negotiated or paid for any UIM or UM coverage from Chartis; or whether Endorsement No. 23, or at least the included language about the retention amount, was simply boilerplate that Chartis included in error. We understand the first judge's 8 A-1969-15T3 reasoning in denying plaintiff's motion to add Chartis as a party, however, Chartis may have records or employees that can shed light on the coverage issue. If Chartis will not voluntarily produce its information on remand, it may be added as a party for discovery purposes only. The record also presents factual issues concerning the Authority's policies and its past conduct with respect to providing UIM coverage to persons driving the Authority's vehicles. It is difficult to comprehend how a public agency such as the Authority could have no contemporaneous records defining its self-insured UIM coverage. Because there is no statutory requirement for UIM coverage, it is also unclear whether or how the Authority could provide $2 million in UIM coverage, without a public vote of its Commissioners authorizing that coverage.4 See N.J.S.A. 17:28-1.1 (requiring auto insurance policies to include UM, but not UIM, coverage); Downey v. City of Elizabeth, 273 N.J. Super. 335, 338- 39 (App. Div. 1994) (self-insured public entity need not provide UIM coverage). It is further unclear why the Authority settled UIM claims for amounts so far in excess of what it claimed was its 4 NJM's appendix contains the minutes of a July 27, 2010 Commission vote authorizing the renewal of the Chartis umbrella policy, but the resolution only refers generally to auto liability excess coverage and makes no mention of authorizing any underlying UIM coverage. 9 A-1969-15T3 self-insured limit of $15,000. The parties should have the opportunity to present and cross-examine witnesses on the factual issues and the trial court should have the opportunity to gauge their credibility. In response to our questions at oral argument, the Authority's counsel conceded that an evidentiary hearing was required, while counsel for NJM and plaintiffs insisted that their respective positions should prevail without a hearing. In fairness to the second judge, we acknowledge that none of the parties specifically asked for a hearing in the trial court. However, in view of the amount of money at stake here, and the disputed factual and credibility issues, we conclude that a plenary hearing is required.5 Accordingly, we vacate the September 24, 2015 and December 4, 2015 orders, and we remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Dismissed in part, vacated in part and remanded. 5 In light of our disposition of the appeal, we do not address the parties' additional arguments. 10 A-1969-15T3

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Docket No.: a2141-15
Decided: 2017-11-16
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3 IN THE MATTER OF THE LICENSE OF K
Status: unpublished
Summary:
SUTER, J.A.D. Kevin McCafferty appeals the December 14, 2015 State Board of Nursing (Board) Final Order to "undergo comprehensive mental health and substance abuse evaluation and monitoring to ascertain whether [he] is fit and competent to practice nursing in the State of New Jersey." He also appeals the denial of reconsideration and of a stay. We affirm. I. McCafferty is licensed by the Board as a registered professional nurse and an advanced practice nurse, and is a certified registered nurse anesthetist (CRNA).1 He works at a surgical center in New Jersey. In 2012, the Board's Enforcement Bureau commenced an investigation after receiving information about possible drug or alcohol abuse by McCafferty. A doctor who previously worked with him certified that "[o]n multiple occasions," she smelled "alcohol on McCafferty's breath while at work and while he was taking care of patients." She claimed he was "often erratic in the medical care he provided" and would "make a number of mistakes." She was "suspicious" about the abuse of controlled substances because "the waste narcotics did not match up." She observed that he came into work with his face 1 A CRNA is a registered nurse who is certified to administer anesthesia under certain circumstances. They also must be advanced practice nurses. See N.J.A.C. 13:37-7.1 to -7.2. 2 A-2141-15T1 "busted" after "a physical altercation on his off time while intoxicated." She complained that his "behavior was often erratic and sloppy and he is a danger to patients." This doctor revealed that McCafferty "reeked" of alcohol on September 3, 2012, and smelled of alcohol on September 11, 2012. An interview with a second doctor revealed that "she had known him to smell of alcohol" but did not observe him drinking on the job. This doctor observed him "bullying other employees," using "foul language" and "[making] inappropriate statements in the presence of patients." She also raised a concern about his narcotic wasting procedures. The Board's interview with a professional nurse revealed that she had "never experienced Mr. McCafferty smelling of alcohol." However, he "behaved in a loud and obnoxious manner." In addition, on "one occasion" he "asked her to sign a narcotic waste" that she did not witness and she refused. Although he would "frequently go out of his way to help people," he also "frequently spoke disrespectfully" about others. McCafferty was interviewed and "denied drinking to excess." He contended the allegations were false. In 2013, the Board contacted McCafferty, advising it "reviewed information which reveals that [he] may have problems related to mental health and/or substance abuse that could have affected and/or might subsequently affect [his] nursing 3 A-2141-15T1 activities." It offered to resolve the issue by private letter agreement which would include agreement by McCafferty to enroll in the Recovery and Monitoring Program of New Jersey (RAMP) 2 "for a minimum of [ninety] days." RAMP would require McCafferty to submit to "random observed urine screens" or hair screens, to prepare monthly self-evaluation reports, and to regularly attend peer support meetings. Additional requirements included a comprehensive mental health and substance abuse evaluation, which would be forwarded to the Board. He would be required to follow the recommendations of RAMP. All the evaluations were to be at his own cost. He would agree to stay enrolled in RAMP until successful completion or release. When McCafferty did not enroll in RAMP, the program notified the Board that McCafferty "has been noncompliant" and that it could not "assure the [Board] or the public that Mr. McCafferty is safe to practice." McCafferty was subpoenaed to appear before a committee of the Board to be questioned about "allegations that [he] appeared at [his] place of employment smelling of alcohol on occasion, that [his] practice of 'wasting' narcotics was defective, and that [he] spoke disrespectfully of [his] colleagues and made inappropriate 2 RAMP is a private, voluntary program that contracts with the Board of Nursing. 4 A-2141-15T1 statements in the presence of patients." McCafferty denied all the allegations and stated he was "flabbergasted" by them. He supplied the committee with recommendations and evaluations that attested to his performance. His counsel suggested that his use of breath mints might account for the smell of alcohol. The Board again proposed a private letter agreement to McCafferty, allowing him to participate in RAMP. He did not sign the agreement. On April 6, 2015, the Board issued a provisional order of discipline. The order recounted the statements that had been made by the two doctors and a nurse. Under N.J.S.A. 45:1- 22(f), McCafferty was ordered to submit to "evaluation and monitoring to evaluate whether continued practice may jeopardize the safety and welfare of the public." He was given thirty days to enroll in RAMP and to undergo its mental health and substance abuse evaluation procedures. The order would be finalized in thirty days unless he requested a modification or dismissal, setting forth his reasons. The Board would determine if additional proceedings were necessary, and if no "material discrepancies" were raised, the order would be finalized. McCafferty requested dismissal of the provisional order. He challenged the credibility of one of the doctors who complained. He said the second complaining doctor had asked him to join her on a clinical healthcare network. He submitted ten other 5 A-2141-15T1 certifications from doctors and nurses attesting to his competence and that they had not smelled alcohol. He noted all of the complaints about him were dated prior to January 2, 2013. A Deputy Attorney General for the Board responded that it was seeking an evaluation because three medical professionals reported questionable conduct, not that the Board had found McCafferty "engaged in any misconduct, or worked while impaired." On December 14, 2015, the Board issued a Final Order, which required McCafferty to enroll in RAMP at his own expense. The order noted that, "[a]lthough ten medical professionals have indicated that they have not seen any evidence of alcohol or drug abuse or impairment, three have. In order to fulfill its mandate to protect the public, an evaluation is warranted." The Board stated that it did not cite to N.J.S.A. 45:1-21(l) and did not make findings that McCafferty was engaged in drug and alcohol abuse although a question had been raised about his possible drug or alcohol abuse. The Board's Final Order was posted to the National Practitioner Data Bank (NPDB),3 and reported a "Complaint 3 The NPDB is a permanent registry that maintains information about any negative performance by a medical professional. 42 U.S.C.A. §§ 11101-52; see also U.S. Dep't of Health & Human Serv., Health Res. and Serv. Admin., NPDB Guidebook (2015), available at www.npdb.hrsa.gov/guidebook (citing 42 U.S.C.A. §§ 11101-52 for its authority). 6 A-2141-15T1 Received Alleging Impairment" by the Board, noting the licensee was required to "undergo comprehensive mental health and substance abuse evaluation within [thirty] days" of December 14, 2015. McCafferty asked the Board to stay the Final Order and for reconsideration. Both of his requests were denied although the Board advised it would not enforce the Final Order during the pendency of his appeal. McCafferty appeals the Final Order and the denial of his stay and reconsideration. On appeal, McCafferty contends his substantive due process rights were violated by the Board's entry of a Final Order of discipline under N.J.S.A. 45:1-22, without first listing a statutory ground under N.J.S.A. 45:1-21 for the violation or making findings in support of that statutory basis. He contends the Board's Final Order should have been dismissed because all the allegations were made more than a year before the Board's action, disqualifying them under N.J.S.A. 45:1-21(l) from any disciplinary action. He contends the Board had no authority to order his enrollment in RAMP, that the Board erred in entering its Final Order because it did not have substantial evidence to support its order, and it made no findings. He contends the Board erred by entering the Final Order without conducting further proceedings after a hearing was requested, that the Final Order was inherently inconsistent, that the Board erred by not staying the action or 7 A-2141-15T1 reconsidering its Final Order, and the Board acted in a vindictive manner by making a report to the NPDB while the appeal was pending. II. Our review of the Board's Final Order is limited. An agency decision should not be overturned unless there is "a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence[.]" In re Carter, 191 N.J. 474, 482 (2007) (citation omitted). "Deference is appropriate because of the 'expertise and superior knowledge' of agencies in their specialized fields and because agencies are executive actors." In re Zahl, 186 N.J. 341, 352 (2002) (citation omitted). In reviewing agency decisions, we are to give "considerable weight to an agency's interpretation of a statute the agency is charged with enforcing." G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999). We are not, however, bound by "an agency interpretation of a strictly legal issue when that interpretation is inaccurate or contrary to legislative objectives." Ibid. (citation omitted) (citing N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978)). "The Board maintains oversight of professional licensing for nurses" pursuant to the Nurses Practice Act (the Act), N.J.S.A. 45:11-23 to -52. In re Eastwick Coll. LPN to RN Bridge Program, 225 N.J. 533, 537 (2016). To be licensed as a professional nurse 8 A-2141-15T1 an applicant must not be "a habitual user of drugs." N.J.S.A. 45:11-26(a)(2). "To become licensed as a CRNA, an individual must meet both the general nurse licensing requirements, N.J.S.A. 45:11-26, as well as specified nurse anesthetist licensing requirements, N.J.A.C. 13:37-13.1." N.J. State Ass'n of Nurse Anesthetists, Inc. v. N.J. State Bd. of Med. Exam'rs, 372 N.J. Super. 554 (App. Div. 2004), aff'd o.b., 183 N.J. 605 (2005). McCafferty does not question that as a professional nurse and CRNA, he may not abuse drugs or alcohol. The Act was amended in 2005 to allow the Board to "establish an Alternative to Discipline Program for board licensees who are suffering from a chemical dependency or other impairment." N.J.S.A. 45:11-24.10(a). Under the program, licensees can disclose their dependency to an intervention program designated by the Board, "which shall provide confidential oversight of the licensee during the period that the licensee seeks treatment for, and follows a plan for recovery from the dependency or impairment." Ibid. Members of the public may also report licensees "who may be suffering from chemical dependencies or other impairments." N.J.S.A. 45:11-24.10(c)(3)(a). Each referral is reviewed to determine "if participation in the program is appropriate." N.J.S.A. 45:11-24.10(c)(1)(d). This information is to be 9 A-2141-15T1 transmitted to the Board. N.J.S.A. 45:11-24.10(h). The Board contracted with RAMP as an intervention program.4 McCafferty's contentions center on the Board's application of the Uniform Enforcement Act (UEA), N.J.S.A. 45:1-18 to -27, and not the Board's powers under the Act. The UEA is a remedial statute that is intended to provide uniformity in the investigative and enforcement powers of all professional boards "located within the Division of Consumer Affairs." Del Tufo v. J.N., 268 N.J. Super. 291, 297 (App. Div. 1993) (citing N.J.S.A. 45:1-14). It is to be afforded a liberal construction. N.J.S.A. 45:1-14; In re Kim, 403 N.J. Super. 378, 386 (App Div. 2008). The Board's authority under the Act and the UEA are to be read in pari materia. See Kim, supra, 403 N.J. Super. at 384. "The UEA . . . does not abrogate the powers of the Board to license, regulate and investigate members of the medical profession." Del Tufo, supra, 268 N.J. Super. at 297. Among the Board's duties and powers, it "shall in its discretion investigate and prosecute all violations of provisions of the [A]ct." N.J.S.A. 45:11-24(d)(9). Under the UEA, a board also may "require any board licensee . . . to submit to an assessment of skills to determine whether the 4 About RAMP, see NJSA.org, http://njsna.org/ramp/about-ramp/ . 10 A-2141-15T1 board licensee . . . can continue to practice with reasonable skill and safety." N.J.S.A. 45:1-18(g). The UEA provides in Section 21, N.J.S.A. 45:1-21, that a professional board may "refuse to issue or may suspend or revoke any . . . license" upon proof of any of the grounds enumerated in that section. These include "professional or occupational misconduct", N.J.S.A. 45:1-2(e); a licensee who is not capable "of discharging the functions of a licensee in a manner consistent with the public's health, safety and welfare," N.J.S.A. 45:1- 21(i); and a licensee who "is presently engaged in drug or alcohol use that is likely to impair the ability to practice the profession . . . with reasonable skill and safety" where "presently" is defined as "at this time or any time within the previous 365 days," N.J.S.A. 45:1-21(l). Under N.J.S.A. 45:1-22, Section 22 of the UEA, the Board may "[i]n addition or as an alternative . . . to revoking, suspending or refusing to renew any license, registration or certificate issued by it, . . . after affording an opportunity to be heard[,]" do other things such as "issue a letter of warning, reprimand or censure," order a person violating any provision of an act to "cease and desist," or to take affirmative corrective action. N.J.S.A. 45:1-22(a), (c). The Board may 11 A-2141-15T1 [o]rder any person, as a condition for continued, reinstated or renewed licensure, to submit to any medical or diagnostic testing and monitoring or psychological evaluation which may be required to evaluate whether continued practice may jeopardize the safety and welfare of the public[.] [N.J.S.A. 45:1-22(f) (emphasis added).] McCafferty contends that the alternatives set forth in Section 22 of the UEA cannot be used unless the Board first identifies a ground for discipline under Section 21 and makes a finding of a violation under that section. He bases his argument on use of the word "penalties" in the headnote of Section 22. The headnote reads "Additional or alternative penalties to revocation, suspension or refusal to renew; temporary order suspending or limiting license; subpoena." (Emphasis added). However, "[t]he title of a statute, more properly called its 'headnote', is deemed not 'to be part of' it, N.J.S.A. 1:1-6." State v. Malik, 365 N.J. Super. 267, 279 (App. Div. 2003). The headnotes "are not included in the laws when enacted by the Legislature but are added by others in the course of the classification and incorporation into the annotated statutes." State v. Brown, 188 N.J. Super. 656, 660 (Law Div. 1983). As such, the headnote is not part of the legislature's enactment. 12 A-2141-15T1 Nothing in the language of Section 22 restricts its application unless and until there is a violation under Section 21. The provisions of Section 22 may be in addition to or as an alternative to revoking, suspending or refusing to renew a license. That the statute authorizes something short of the institution of formal action against the licensee under Section 22 is made clear from its language. Subsection (a) of Section 22, N.J.S.A. 45:1- 22(a), allows the Board to "issue a letter of warning, reprimand or censure with regard to any act, conduct or practice which in the judgment of the board upon consideration of all relevant facts and circumstances does not warrant the initiation of formal action." Under subsection (f), N.J.S.A. 45:1-22(f), the licensee can be ordered to submit to testing or an evaluation to evaluate if the licensee's continued practice "may jeopardize the safety and welfare of the public." All of that language is anticipatory, designed to authorize the Board to evaluate if other action is needed. McCafferty's interpretation of Sections 21 and 22 would significantly limit the Board's express and implied5 investigatory 5 Administrative agencies have such implied incidental powers as may reasonably be adapted to that end. In re Commn'r of Banking & Ins. v. Parkwood Co., 98 N.J. Super. 263, 272 (App. Div. 1967); see also Sheeran v. Progressive Life Ins. Co., 182 N.J. Super. 237, 247-248 (App. Div. 1981). When the task of a regulatory agency 13 A-2141-15T1 powers under the Act and UEA, where allegations are made that a licensee may have an alcohol or drug problem. Under his interpretation, the Board could only order a nurse to submit to an evaluation if it first had a plenary hearing to determine the validity of the allegations of abuse. That procedure is not required by the statutes nor by due process, and it would produce a limitation on the Board's ability to protect the public. As we said in the context of the Medical Board, the Board is vested not only with the greater power to deny, revoke, or suspend a physician's medical license, N.J.S.A. 45:1- 21, but also with the power to invoke the lesser sanctions of warnings, reprimands, or censure. N.J.S.A. 45:1-22(a). We conclude that to limit the exercise of the power to grant or deny licensure, separate from the imposition of a lesser and perhaps more appropriate action is irrational and may thwart the effectiveness of the Board's fundamental dual purpose-to permit qualified physicians licensure while protecting the State citizenry. [Kim, supra, 403 N.J. Super. at 387.] Here, the Board has the discretion to investigate and prosecute violations of the Act. N.J.S.A. 45:11-24(d)(9). It has "'is to protect the health and welfare of members of the public' by assuring that all licensed practitioners are qualified, competent and honest, the grant of implied powers is particularly important." In re Polk, 90 N.J. 550, 574 (1982) (quoting In re Suspension of Heller, 73 N.J. 292, 303-04 (1977)). 14 A-2141-15T1 an alternative to discipline program that evaluates referrals on issues of chemical dependencies and reports to the Board, making recommendations on participation in RAMP. N.J.S.A. 45:11-24.10. It has the investigative power to require a licensee to submit to an assessment of skills. N.J.S.A. 45:1-18. The Board has the power to order an evaluation to determine whether continued practice may jeopardize the safety or welfare of the public. N.J.S.A. 45:1-22(f). Given these express powers, we reject as inconsistent with a facial reading of these statutes, McCafferty's contention that a violation under Section 21 must be found before the Board can utilize the powers set forth in Section 22. Rather, if there is some evidence that a licensee may have a chemical dependency, and after the opportunity to be heard, we agree with the Board that it has statutory authority under Section 22 to order a licensee to undergo an evaluation even if that evidence would not support a violation under Section 21. McCafferty was not denied the due process of law. He was aware of the allegations against him, given the ability to appear with counsel before an investigative panel and made multiple submissions to the Board, which included an application for a stay and for reconsideration. We reject his substantive due process claim in light of the process he was afforded and the public interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 334- 15 A-2141-15T1 35, 96 S. Ct. 893, 902-03, 47 L. Ed. 2d 18, 33 (1976) (balancing private interests, the risk of erroneous deprivation and the state interest to determine if substantive due process required additional procedural safeguards). McCafferty's remaining points require brief comment. Because the Board's action was not initiated under Section 21 of the UEA, the 365 day limitation in subsection (l), N.J.S.A. 45:1-21(1), has no applicability. Given the allegations by three professionals, there was evidence to support the Board's order that he undergo an evaluation for possible alcohol or drug abuse. The Board had clear statutory authority to establish an alternative to discipline program and to contract for the provision of those services. McCafferty contends that RAMP is "intrusive" because it requires monitoring, observed urine testing, hair follicle tests, and attendance at peer groups. He does not contend that the Board abused its discretion in contracting with RAMP, nor did he argue that it acted in an arbitrary, capricious or unreasonable manner by using RAMP for licensees with drug or alcohol problems. He was not entitled to a contested case hearing because this was not an action to revoke, suspend or non-renew his license. See N.J.S.A. 52:14B-11. We are satisfied the Board did not abuse its discretion by denying the stay of enforcement or reconsideration. There was no evidence that the Board's report to the NPDB was 16 A-2141-15T1 vindictive. It had authority to make the report and did so accurately. We conclude that McCafferty's further arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 17 A-2141-15T1

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Docket No.: a2340-15
Decided: 2017-11-16
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the MGM JACKSON, LLC, FOUNTAINHEAD PROPERTIES, INC., SHADY LAKE PARK INC., LAND O'PINES, INC., and JACKSON
Status: unpublished
Summary:
PER CURIAM Plaintiffs, MGM Jackson, LLC, Fountainhead Properties, Inc., Shady Lake Park, Inc., Land O'Pines, Inc., and Jackson Acres, LLC, are the owners of mobile home parks located in the Township of Jackson (Jackson). They filed a complaint in lieu of prerogative writs against Jackson and the Jackson Township Rent Leveling Board (the Board), challenging Ordinance 05-14.1 Prior to 2014, Jackson's rent control ordinance for mobile home parks permitted partial vacancy decontrol, allowing a landlord, upon the occurrence of a vacancy, to charge the successor tenant the lower of "$125 more than the prior tenant's rent, or a new rent which [was] no higher than 7.5% more than the highest rent in the park." Ordinance 05-14 capped the amount of any rental increase upon a vacancy at "no higher than 7.5% of the highest rent in the park added to the prior tenant's rent." Additionally, plaintiffs challenged Jackson's passage of Ordinance 08-15, which corrected an administrative oversight from 1 The Board's brief states that in 2001, the separate rent leveling boards for apartments and mobile home parks were dissolved and reconstituted as a combined board known as the Apartment and Mobile Home Park Rent Leveling Board. 2 A-2340-15T4 the passage of an earlier ordinance in 2010. Prior to 2010, the ordinance prohibited owners and tenants of mobile home parks or residential properties from serving on the Board. Essentially, Ordinance 08-15 required one member and one alternate on the nine- member Board to be tenants at mobile home parks and tenants in rental or housing units. Plaintiffs' complaint alleged both Ordinance 05-14 and Ordinance 08-15 were invalid, arbitrary, and capricious, violated the Equal Protection and Due Process Clauses of the Constitution, and resulted in an unlawful taking of property without just compensation, all violations enforceable by 42 U.S.C.A. § 1983. Plaintiffs also alleged that two members of the Board, Garold Miller and Ray Schleckser, tenants of plaintiff MGM Jackson's mobile home park, had financially benefitted from the change in the ordinance, for which they had provided public support. Jackson and the Board filed their answers. Plaintiffs called three witnesses at a hearing before Judge Marlene Lynch Ford, after which the judge considered the oral arguments of the parties. Judge Ford reserved decision for thirty days to permit plaintiffs to supplement the record with official minutes from the meetings of Jackson's governing body.2 Judge 2 Judge Ford received a CD containing the minutes of various Board meetings. 3 A-2340-15T4 Ford then issued a comprehensive written decision, concluding plaintiffs' complaint lacked any merit and factual support. She entered the order under review dismissing plaintiffs' complaint with prejudice. This appeal followed. Before us, plaintiffs renew many of the same arguments made before Judge Ford. They contend the 7.5% cap is arbitrary, capricious and unreasonable, lacks any reasonable relationship to a "proper legislative purpose," and violates equal protection because it subjects one class of tenants to burdens not imposed on other tenants. Lastly, plaintiffs allege the two tenant Board members were in a direct conflict of interest. We have considered these arguments in light of the record and applicable legal standards. We affirm. Our courts have long recognized a municipality's authority to enact rent control ordinances pursuant to its police powers. Inganamort v. Bor. of Fort Lee, 62 N.J. 521, 535-36 (1973). "However, all 'police-power legislation is subject to the constitutional limitation that it be not unreasonable, arbitrary, or capricious, and that the means selected by the legislative body shall have real and substantial relation to the object sought to be attained.'" N.J. Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 38, 54-55 (2009) (quoting 515 Assocs. v. City of Newark, 132 N.J. 180, 185 (1993)). 4 A-2340-15T4 Every "ordinance is entitled to a presumption of validity, and the 'party challenging the ordinance bears the burden of overcoming that presumption.'" 388 Route 22 Readington Realty Holdings, LLC v. Twp. of Readington, 221 N.J. 318, 339 (2015) (quoting Rumson Estates, Inc. v. Mayor & Council of Bor. of Fair Haven, 177 N.J. 338, 350 (2003)). The presumption of validity "can be overcome only by proofs that preclude the possibility that there could have been any set of facts known" or assumed to be known by the drafters that would, in the exercise of reason and common sense, have allowed them to conclude that the enactment would advance the interest sought to be achieved. [N.J. Shore Builders, supra, 199 N.J. at 55 (quoting Hutton Park Gardens v. Town Council of West Orange, 68 N.J. 543, 565 (1975)).] "The job of a reviewing court is not to weigh the evidence for or against an enactment, or to evaluate the wisdom of the policy choice made." Id. at 55-56 (citing Hutton Park Gardens, supra, 68 N.J. at 565). The Supreme Court has adopted a three-part analysis for any challenge to a rent control ordinance. Orange Taxpayers Council v. City of Orange, 83 N.J. 246, 255 (1980). First, we examine "whether the legislative body could rationally have concluded that the unrestrained operation of the competitive market was not in the public interest." Ibid. (quoting Hutton Park Gardens, supra, 5 A-2340-15T4 68 N.J. at 564). Second, we consider "whether the regulatory scheme when examined in its entirety permits a 'just and reasonable return' to the owners of rental properties." Ibid. (quoting Hutton Park Gardens, supra, 68 N.J. at 568-69). Lastly, we examine whether the means adopted to accomplish the ordinance are rationally related to its purpose. Ibid. Here, Jackson enacted rent control for the first time in 1973 because of "exorbitant, speculative, and unwarranted" rental increases. In 2008, it enacted complete vacancy decontrol, but soon thereafter, in 2010, adopted the vacancy decontrol formula that permitted increases that were the lower of $125 or 7.5% of the highest rent in the park. Although not entirely clear from the record, this quick turnaround obviously reflected discontent with the consequences of total vacancy decontrol, and plaintiffs acknowledged, in their complaint, this partial vacancy decontrol formula adopted in 2010 was "the subject of much debate and negotiation" with Jackson. Applying the three-part analysis mandated by Orange Taxpayers Council to these facts, Ordinance 08-15 reflects Jackson's continued determination that the "unrestrained operation of the competitive market was not in the public interest." Orange Taxpayers Council, supra, 83 N.J. at 255. Thus, limiting the amount of increase permitted when there was a vacancy, as opposed 6 A-2340-15T4 to total vacancy decontrol, was "rationally related" to the purpose of rent control. Ibid. Plaintiffs never asserted or proved the increase permitted by Ordinance 08-15 denied them a fair rate of return. Ibid. Rather, plaintiffs' argument is that the increases permitted by Ordinance 08-15 will never equalize the rents within a given mobile home park. Perhaps, but neither would the formula plaintiffs negotiated with Jackson in 2010, and to which they never objected. Nor is there any authority cited by plaintiffs that a rent control ordinance must, as one of its goals, move all rents closer to the same amount. In short, plaintiffs' dissatisfaction with Jackson's decision to scuttle the 2010 negotiated partial vacancy decontrol provision in favor of a different formula does not prove the municipal action was arbitrary, capricious and unreasonable. Plaintiffs' constitutional claims are also unavailing. They contend Ordinance 05-14 violates equal protection because it "subjects some similarly situated tenants to burdens not imposed on other members of the same class." In other words, those tenants at a higher rent within a given mobile home park who wish to sell their home are disadvantaged compared to owners at a lower rent who also might wish to sell. 7 A-2340-15T4 This argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). We add only the following. As the Court said many years ago: The equal protection clause of the Fourteenth Amendment does not deprive the State of the power to classify in the adoption of police laws, but allows wide discretion, precluding only that done without any reasonable basis and therefore purely arbitrary. The constitutionality of a legislative classification is presumed, and one who assails the classification must carry the burden of showing its arbitrariness. A classification having some reasonable basis is not invalid merely because it is not made with mathematical nicety or because in practice it results in some inequality. And the classification must be upheld if any set of facts can reasonably be conceived to support it. In short, the equal protection clause forbids only invidious discrimination. [Pleasure Bay Apartments v. City of Long Branch, 66 N.J. 79, 93 (1974) (quoting David v. Vesta Co., 45 N.J. 301, 314-15 (1965)).] In Property Owners Association v. Township of North Bergen, 74 N.J. 327, 330-32 (1977), a case plaintiffs cite, the owners of rental properties challenged an ordinance that created a special class of tenants, i.e., those over the age of sixty-five whose income did not exceed $5000. The Court held that while a class of "economically needy senior citizens is sound, proper and sustainable as a rational classification," "compell[ing] subsidization by landlords or by tenants who happen to live in an 8 A-2340-15T4 apartment building with senior citizens is an improper and unconstitutional method of solving the problem." Id. at 339. Here, however, Ordinance 05-14 creates no classification amongst mobile home park dwellers. It imposes the same limit on rental increases whenever there is a vacancy. The ordinance did not create whatever differences existed between two tenants in the same park prior to its enactment.3 We construe the arguments plaintiffs make in Points IV and V of their brief as asserting that Ordinance 05-14 violates substantive due process rights. The Court defined the issue in Hutton Park Gardens: It follows . . . that legislative enactments regulating prices, including municipal rent control ordinances, are subject to the same narrow scope of review under principles of substantive due process as are other enactments under the police power: could the legislative body rationally have concluded that the enactment would serve the public interest without arbitrariness or discrimination? In the context of price regulation the question is whether the legislative body could rationally have concluded that the unrestrained operation of the competitive market was not in the public interest. [Hutton Park Gardens, supra, 68 N.J. at 563- 64 (citations omitted).] 3 We fail to understand, and plaintiffs do not explain, why some of these disparities in rent were not the natural effect of total vacancy decontrol, which existed in Jackson between 2008 and 2010. 9 A-2340-15T4 In order to prevail, plaintiffs needed to prove that no set of facts would rationally support a conclusion that the enactment of Ordinance 05-14 was in the public interest. Id. at 565. Plaintiffs failed to prove that Jackson's continued decision to curb "exorbitant, speculative, and unwarranted" rent increases in the mobile home market that existed forty years ago, by continuing rent control but permitting limited vacancy decontrol, lacked any rational basis. Lastly, plaintiffs argue that members of the Board improperly influenced passage of the ordinances at issue. They claim that as residents of a mobile home park, Miller and Schleckser had inherent personal conflicts of interest with the other tenants in mobile home parks. This argument also lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Plaintiffs do not claim that Miller and Schleckser inappropriately exercised their powers as Board members, for example, on applications that came before the Board filed by plaintiffs or other mobile home park owners. Moreover, the ordinances were passed by the municipal council, not the Board. Plaintiffs also provide no authority supporting the proposition that Miller and Schleckser were required to forfeit their rights as citizens to speak freely and petition their municipal government 10 A-2340-15T4 simply because they benefitted from the proposed changes or were members of the Board. Affirmed. 11 A-2340-15T4

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Docket No.: a3598-15
Decided: 2017-11-16
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. BIENVENIDO CASILLA
Status: unpublished
Summary:
PER CURIAM Defendant appeals from a March 18, 2016 order denying without an evidentiary hearing his third petition for post-conviction relief (PCR). We affirm. The facts underlying defendant's conviction of purposeful or knowing murder, kidnapping, and other offenses are detailed in our opinion disposing of defendant's direct appeal and we need not recount them. State v. Casilla, 362 N.J. Super. 554, 557-60 (App. Div.), certif. denied, 178 N.J. 251 (2003). We affirmed defendant's convictions and sentences for murder and hindering apprehension; vacated his conviction for first-degree kidnapping and remanded for re-sentencing on that count as a second-degree offense; and reversed his convictions for racketeering and theft by extortion. Id. at 571. The State did not retry defendant on the racketeering and attempted theft by extortion counts. The trial court re-sentenced defendant on the second-degree kidnapping offense to a consecutive ten-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On a sentencing calendar, Rule 2:9-11, we affirmed the consecutive sentences but remanded to the trial court to consider the applicability of NERA and the constitutional issues discussed in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). State v. Casilla, No. A-3709-03 (App. Div. Sept. 30, 2004). Following remand, the trial court imposed the identical sentence. Defendant subsequently filed two PCR petitions. In each instance, the trial court denied the petition and the implementing 2 A-3598-15T4 order was affirmed on appeal. State v. Casilla, No. A-2994-05 (App. Div. June 11, 2007), certif. denied, 192 N.J. 482 (2007); State v. Casilla, No. A-4838-10 (App. Div. Nov. 5, 2012), certif. denied, 214 N.J. 119 (2013). Defendant also filed a petition for habeas corpus. The United States District Court dismissed the petition and denied defendant's certificate of appealability because defendant had not made "'a substantial showing of the denial of a constitutional right' under 28 U.S.C. § 2253(c)(2)." Casilla v. Ricci, No. 08- 3546 (D.N.J. Dec. 10, 2009) (slip op. at 37). The United States Court of Appeals for the Third Circuit denied defendant's application for a certificate of appealability and dismissed defendant's appeal for lack of jurisdiction. The United States Supreme Court denied defendant's petition for a writ of certiorari. Casilla v. Ricci, 562 U.S. 1093, 131 S. Ct. 799, 178 L. Ed. 2d 535 (2010). We rejected the following contentions defendant raised on direct appeal: (1) his right to due process was violated when the court failed to submit the element of jurisdiction to the jury; (2) the court committed reversible error on the murder count when it responded to a jury question with a supplemental instruction that defendant could be found to be an accomplice; (3) the court should have granted his motion to suppress the wiretaps . . . . 3 A-3598-15T4 [Casilla, supra, No. A-4838-10 (slip op. at 2-3) (citing Casilla, supra, 362 N.J. Super. at 561).] On his appeal from the denial of his first PCR petition, we rejected defendant's arguments that his trial counsel was ineffective for failing to: (1) file a motion challenging the legality of his warrantless arrest; (2) file a motion to suppress his confession; (3) ensure during jury selection that some of the jurors spoke or understood Spanish; (4) object to the jury instruction on accomplice liability as to count four (murder); (5) challenge the validity of the indictment; and (6) object to hearsay evidence. [Casilla, supra, No. A-2994-05 (slip op. at 1).] Lastly, we rejected the following arguments on defendant's appeal from the denial of his second PCR petition: Defendant asserted the following specific claims of ineffective assistance of trial counsel: failed to effectively challenge Court Clerk's actions, causing the jury to deliver an irreconcilable and/or inconsistent verdict[; . . .] failed to challenge Court's sentencing for murder charges, a charge for which defendant had been found Not Guilty[; . . . and] failed to effectively challenge conviction for felony murder based on an accomplice liability theory, when in fact accomplice liability had never been charge on indictment in connection with count five, felony 4 A-3598-15T4 murder and accomplice liability was never specifically charge[d] by the judge, among numerous other critical failures. According to defendant, trial counsel was also "grossly ineffective" at the resentencing in: (1) not challenging the court's imposition of consecutive sentences on felony murder and second-degree kidnapping, which he asserts is an illegal sentence, and (2) allowing him to be convicted as an accomplice to felony murder without having been indicted for that crime and without the court specifically charging that offense in connection with felony murder. Defendant alleged appellate counsel was "egregiously ineffective" in failing to identify and effectively raise the above instances of trial counsel's ineffectiveness, and "blatantly ineffective" in failing to challenge on appeal the above instances of the court's violation of defendant's constitutionally guaranteed due process rights. Defendant also alleged ineffective assistance of first PCR counsel in failing "to adequately prepare and exercise normal customary skills in preparation" of his PCR and failing to investigate and properly assert his meritorious claims of ineffective assistance of trial and appellate counsel and the constitutional errors of the court. [Casilla, supra, No. A-4838-15 (slip op. at 9-11).] On this appeal from his third PCR petition, defendant makes these arguments: 5 A-3598-15T4 POINT I: DEFENDANT FILES AS PRO SE LITIGANT ASSERTS EXCUSABLE NEGLECT AND SEEKS PROCEDURAL DUE PROCESS, TO DEFEND LIFE AND LIBERTY PURSUANT TO N.J. CONST. ART. I PAR. 1 (Partially raised below). A. Petitioners documents and arguments are held to less stringent standards than formal pleadings drafted by lawyers. B. Excusable Neglect. C. Right to Due Process. POINT II: DEFENDANT WAS DEPRIVED OF HIS RIGHT DURING VOIR DIRE. THE TRIAL COURT DENIED THE DEFENDANT HIS RIGHT TO BE PRESENT AT SIDE BAR, THIS VIOLATED HIS RIGHTS UNDER U.S. CONST. AMEND. 6; N.J. CONST. ART 1, PAR. 10 CAUSING BIAS AND PREJUDICE TO DEFENDANT BY INEFFECTIVE ASSISTANCE OF COUNSEL (Raised below). POINT III: DEFENDANT WAS ILLEGALLY BROUGH [sic] TO TRIAL TO STATE OF NEW JERSEY, COURTS FROM SAME CRIME THAT THE STATE OF NEW YORK ON CHARGES THAT WHERE BEING PROSECUTED, TO ALLOW STATE OF NEW JERSEY MERGE OTHER CHARGES AND PROSECUTE TO ACHIVE [sic] MULTIPLE PUNISHMENT IN VIOLATION TO DEFENDANT'S RIGHTS UNDER THE FIFTH, ELEVENTH, AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION (Raised below). A. Double Jeopardy. POINT IV: DEFENDANT [sic] SENTENCE IS CONTRARY TO CODE OF CRIMINAL JUSTICE; DEFENDANT IS HELD ON AN 6 A-3598-15T4 ILLEGALLY IMPOSED SENTENCE THAT ERRONEOUSLY APPLIED THE NO EARLY RELEASE ACT, WHICH ACTUALLY IMPOSED "SIMULTANEOUS SENTENCES", AND ONCE CORRECTED WILL REVEAL THE ACTUAL SENTENCING ELIGIBILITY TO SATISFY THE SENTENCE, AND MAKE ENTRY OF CORRECTED JUDGMENT OF CONVICTION, HAVING ALL SENTECES [sic] BEEN SATISIED [sic] (Raised below). A. The No Early Release Act, is inapplicable to instant Defendant and infers to false Imprisonment. B. The Court did not satisfy the persistent offender Act and actually imposed "simultaneous convictions", which places the convictions to be satisfied. POINT V: NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS, COMBINED WITH TRIAL, APPELLATE, AND 1ST PCR COUNSEL'S OMISSIONS, DURESS, AND PREJUDICE, DEPRIVED DEFENDANT OF A FAIR TRIAL (Raised below). POINT VI: DEFENDANT'S JUDGMENT SHOULD BE VACATED BECAUSE TRIAL, APPELLATE, AND 1ST PCR COUNSELS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL (Raised below). POINT VII: EVIDENTIARY HEARINGS SHOULD BE GRANTED A. The prevailing Legal principles Regarding Claims of Ineffective Assistance of Counsel, Evidentiary Hearings And Petitions For Post- Conviction Relief. 7 A-3598-15T4 The trial court determined defendant's third PCR petition was time-barred, Rule 3:22-12(a)(2), and dismissed it, Rule 3:22- 4(b). The court also determined defendant had raised no substantial issues of fact or law, and thus had not established good cause to assign counsel. Rule 3:22-6(b). We affirm, substantially for the reasons expressed by the trial court in its written decision. Defendant's arguments are without sufficient merit to warrant further discussion. R. 2:11- 3(e)(2). Affirmed. 8 A-3598-15T4

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Docket No.: a4030-14
Decided: 2017-11-16
Caption: STATE OF NEW JERSEY v. AL-SHAREEF METZ
Status: unpublished
Summary:
PER CURIAM Tried to a jury, defendant Al-Shareef Metz was convicted of murder and related weapons offenses in connection with the 2011 shooting death of Tariq Walker. The only evidence connecting defendant to the homicide were out-of-court identifications and statements by two witnesses who told police defendant was the shooter but recanted at trial. Defendant was sentenced to an aggregate sixty-five year prison term with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He challenges his convictions by raising the following points: POINT I [] DEFENDANT WAS IRREPARABLY PREJUDICED WHEN THE TRIAL COURT ADMITTED HIGHLY SUGGESTIVE PHOTO IDENTIFICATION OF THE DEFENDANT BY STATE'S WITNESS, [T.J.],1 WITHOUT FIRST CONDUCTING A WADE/HENDERSON HEARING. POINT II THE TRIAL COURT IMPROPERLY ADMITTED THE OUT- OF-COURT STATEMENT OF [K.L.]. POINT III THE PROSECUTOR RELIED UPON IMPROPER AND PREJUDICIAL REMARKS IN HIS CLOSING STATEMENT WHICH INFLAMMED [sic] THE JURY AND DEPRIVED [] DEFENDANT [OF] A FAIR AND IMPARTIAL EVALUATION OF THE EVIDENCE IN THE CASE. POINT IV THE TRIAL COURT FAILED TO GIVE A PROPER AND COMPLETE JURY INSTRUCTION REGARDING PHOTO ARRAY IDENTIFICATION. 1 We use initials to protect the privacy of the witnesses. 2 A-4030-14T4 POINT V THE TRIAL COURT FAILED TO PROPERLY RESPOND TO THE JURY'S REQUEST FOR A LIST OF EVIDENCE. POINT VI DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL COURT FAILED TO MAKE A COMPLETE RECORD [OF] CRITICAL READ-BACK TESTIMONY OF A MATERIAL WITNESS. POINT VII [THE] CUMULATIVE IMPACT OF THE ERRORS COMMITTED THROUGHOUT THE TRIAL DENIED DEFENDANT A FAIR AND IMPARTIAL PROCEEDING. We have considered these arguments in light of the record and applicable legal standards. For the reasons that follow, we conclude the trial court erroneously failed to conduct an evidentiary hearing on one of the witness identifications; its read back of witness testimony was incomplete and misleading; and the prosecutor's summation was improper. Because the cumulative impact of these errors was capable of producing an unjust result, we reverse the convictions and remand for a new trial. I. On March 24, 2014, before starting jury selection, the court asked whether any motions in limine were pending. The State advised it had filed an in limine motion in April 2013, and represented, "I'm sure Your Honor will recall[] we discussed it at some length previously." The State explained its witness, 3 A-4030-14T4 T.J., had originally selected photograph number two from a photo array, which was not defendant, and later that evening changed her mind and selected photo number five, which was defendant. The State noted both the first and second identifications were video recorded, but the first one "was lost, somehow misplaced." The State's motion was to admit the second identification, notwithstanding the loss or destruction of the recorded first identification. Defense counsel then advised the court, "The only question is . . . whether or not you have to hear testimony. Our argument is that you, obviously, have to take testimony[,] [u]nder Rule 3:11[.]" When the court pointed out T.J. might be able to clarify how she recognized defendant, defense counsel noted, "that's why the question . . . of whether or not she has to be heard or there has to be a hearing." He suggested both out-of-court identifications should be admitted if the court were to find T.J. could identify defendant at trial without being tainted by the photo arrays. To clarify, defense counsel added, "[I]f she's testifying that she knows him, then that potentially eliminates the taint. But if she's testifying that she doesn't know him, then it's clear that her identification of him was based on the taint." Counsel then requested a hearing to resolve the issue. 4 A-4030-14T4 The court inquired whether defense counsel had filed a Wade2 motion. Counsel responded he did not do so because the State filed the motion in limine and requested a hearing. Counsel further stated that he, the court, and the prosecutor discussed this at a prior proceeding and determined there was no need to file the Wade motion. The State then produced a transcript of the recording from T.J.'s second identification, where T.J. selected defendant's photograph, number five, from the photo array. After the State read excerpts from the transcript into the record, it argued T.J. said number five "of her own volition" and "not at the suggestion of the detective." Defense counsel asserted no evidence supported the State's position that T.J. decided on her own to return to the police and say "I misidentified," and the detective's leading questions constituted the only evidence that T.J. was hesitant to testify because she was afraid of retaliation from people "on the street." Defense counsel further noted that not only was the recording of the first identification lost, but the State produced no notes or written summaries of what occurred during that first identification. Thus, the only record of what transpired was the 2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). 5 A-4030-14T4 description an investigating officer, Detective Kelly, provided during his discussion with T.J. on the recording of the second identification. The State conceded Kelly was not a disinterested and detached officer, and he purportedly conducted the second identification because no such officers were available at the courthouse around midnight, when the second statement was taken. Defense counsel sought to suppress T.J.'s testimony pursuant to Rule 3:11(d).3 The court labeled that "a strong remedy" and told defense counsel, "Give me some case law and I will use my sound discretion." Defense counsel agreed to do so. The record on appeal does not reflect whether the parties submitted briefs, whether another hearing was held, or whether the court entered any orders connected with the State's in limine motion or defendant's 3 Rule 3:11(d) provides: If the record that is prepared is lacking in important details as to what occurred at the out-of-court identification procedure, and if it was feasible to obtain and preserve those details, the court may, in its sound discretion and consistent with appropriate case law, declare the identification inadmissible, redact portions of the identification testimony, and/or fashion an appropriate jury charge to be used in evaluating the reliability of the identification. Notably, the rule became effective in September 2012, following the photo identifications in this case. 6 A-4030-14T4 competing request to suppress T.J.'s identification testimony. Ultimately, however, T.J. testified at trial regarding both identifications. T.J. testified that on the evening of June 29, 2011, she was with the victim, Walker, and another individual, "Wilfee," near the intersection of Shephard and Huntington Avenues in Newark. At that time, "a Cherokee truck pulled up . . . and someone jumped out the passenger [side] and ran [Walker] down with like a shotgun." She and Walker ran in different directions, and the shooter ran after Walker. T.J. heard "a lot" of shots, following which she walked over to Walker and observed he had been shot. T.J. testified the shooter was wearing a white t-shirt and jeans. She stated she got a good look at the shooter that night and would be able to identify him again, but when asked whether she saw that person in the courtroom, T.J. testified she did not. Defendant was present in the courtroom at the time. T.J. recounted the circumstances surrounding her prior out- of-court identifications. Two days after the murder, she was driving in Newark when detectives pulled her over. The detectives told her they had video footage of her with Walker when he was shot, and she had to accompany them to the Essex County Prosecutor's Office. 7 A-4030-14T4 T.J. was placed in a room with "speakers and cameras," where she told Kelly and a second detective what she observed on June 29, 2011. The detectives then left the room, and a female detective, Detective Oliveria, entered alone and showed T.J. a photo array. T.J. selected photograph number two as the shooter and communicated that to Oliveria. T.J. testified she was confident about her selection. At 10:18 p.m., Oliveria had T.J. sign her name on photograph number two. T.J. testified, "then all these different guys coming in saying all this, scaring us." Referring to the detectives, she explained: I didn't tell him nothing but then I was in for hours, I was just ready to get out, I am hostage and they was like threatening me, telling me about that they could pull up records of tickets, you go to jail, basically scaring me up. When she asked to leave, Kelly said, "not now." Referring to Kelly, T.J. stated, "He asked me am I sure that I picked the right photograph. I said that's what I saw, so--." Kelly then pointed to photograph number five and asked, "Do you think this is the person?" T.J. testified, "By then I am just like scared, . . . [t]hey had me in for six to seven hours[,]" and by that point she was "ready to go." Kelly instructed her to cross out her signature 8 A-4030-14T4 on photograph two and put her initials there, and T.J. complied. At one minute after midnight, T.J. initialed photograph number five and wrote "the person that shot [Walker], he had a white tee shirt." In response to leading questions from the prosecutor, T.J. stated she chose photograph number five of her own volition. On redirect examination by the prosecutor, the following exchange occurred: Q: You have never met with me. A: No, just spoke to you on the phone. Q: Is that because you didn't want to come down here? A: Yes. Q: You didn't want to testify today? A: Yes. Q: You didn't want to come meet with me prior to the testimony? A: Right, I didn't want to come to this building. Q: Why? A: Because how I was treated in 2011. Q: Had you ever indicated that you had fear about testifying? A: Yeah. Q: You had fear about going back to the neighborhood? 9 A-4030-14T4 A: Well, I also go through the neighborhood, I got family in Newark so I am always passing through the neighborhood. Q: Even to this day? A: I don't feel like I have to jeopardize, can't come to Newark because, you know -- Immediately after that exchange, T.J.'s testimony concluded with the following re-cross examination by defense counsel, which was later omitted from a read back of her testimony to the jury: Q: That night, that is the night of July 31st, into August 1st, the police put you in fear, true? A: Yes. Q: That night of July 31st to August 1st they threatened to lock you up about tickets, true? A: Yes. Q: Were you afraid? A: I think I had two parking tickets that I hadn't paid yet by then, I think it was the [second detective] saying like he could lock me up, scaring me up. [(Emphasis added).] A second witness called by the State, K.L., testified he was inside a building near the intersection of Shephard and Huntington Avenues in Newark on July 29, 2011. He stated he did not observe the shooting, did not know the victim personally, and was unable to identify the shooter in the courtroom. The State requested a 10 A-4030-14T4 sidebar, advised the court that K.L. had directly contradicted two prior sworn statements, and requested a hearing pursuant to State v. Gross, 121 N.J. 1 (1990). Defense counsel joined the request, and the court excused the jury and conducted the hearing. At the Gross hearing, K.L. testified he was arrested on August 29, 2011, on drug-related charges. He was then brought to Detective Philip Gregory, who asked whether he knew someone involved in Walker's shooting. K.L. initially responded he did not, but ultimately he gave a statement because Gregory said he would release him, and K.L. felt coerced. K.L. acknowledged his statement was recorded, but asserted Gregory told him what to say. He further testified Gregory showed him a photo array and told him to select defendant's photo. Detective Muhammed, who K.L. had never met before, then came into the room to show him the same photo array, but he "didn't pick anything." K.L. testified that, on a later date, Gregory "called me and told me I had to come in. So, I come in. He bring me in the room with people like this sitting, I don't know what I was there for." He added, "I thought it was a court date and . . . [w]hen I got down there, Detective Gregory was there. He was just telling me: 'Look, you about to go in there, tell them such-and-such, such.'" At nineteen years old, K.L. did not realize he was about to testify at defendant's grand jury hearing. 11 A-4030-14T4 K.L. asserted he did not remember any details about the shooting, what he told the detectives, or his grand jury testimony. He explained that, before the grand jury, "I repeated everything [Gregory] told me to repeat when it happened that day." He stated he was drinking when the shooting occurred, "so I really don't remember half of the stuff that was going on that day." He added he had been shot on a previous unrelated occasion before Walker's death, "so I was on a whole lot of morphine. I was in the hospital for like a month-and-a-half, so I really don't remember a whole lot of stuff." Following K.L.'s testimony at the Gross hearing, the State called Gregory, who gave a different version of events. According to Gregory, K.L. indicated he observed "what happened regarding [the] shooting." Gregory explained he prepared a photo array and then Muhammed, who had no other involvement in the case, administered it to K.L. Gregory did not advise Muhammed which photo depicted defendant, nor promise to let K.L. go if he gave a statement. After the testimony at the Gross hearing concluded, the judge reviewed the video of K.L.'s recorded interview. In a detailed oral opinion, the judge concluded the State established the reliability of K.L.'s prior statements by a preponderance of the evidence. K.L.'s video-recorded statement to Gregory and Muhammed 12 A-4030-14T4 and an audio recording of his grand jury testimony were admitted in evidence and played for the jury. K.L. then resumed his trial testimony. He stated he visited Muhammed Bashir, defendant's trial attorney, at Bashir's office three or four weeks before trial. Bashir made an audio recording of the conversation and gave a copy to the State, although it was not admitted in evidence. When asked his purpose in visiting Bashir, K.L. testified, "Because I wanted to let him know that this whole thing was a lie." The prosecutor then asked: "Is it true your primary motivation for going to see Mr. Bashir is you were afraid your name would get out on [the] streets as a tattletale or snitch?" K.L. responded, "Yes," but when asked the clarifying question, "That's your primary motivation in going to see him?" he responded, "No." The following exchange occurred during the State's redirect examination of K.L. regarding his audio-recorded conversation with Bashir: Q: You recall "I assume you are here because you are afraid of what could happen on the streets if your name came out [as] part of this particular case"? A: No. Q: You don't recall that? 13 A-4030-14T4 A: No. Q: Do you remember indicating ["]at the end of the day, I just don't want to get that name -- I got a mother, I got a daughter, I -- like I just got a lot of people. You feel me? I can't have nobody--it's just a lot of it, just everything that you could think about from being a tattletale . . . . That's my own words.["] Do you recall giving that? A: Yeah, I didn't say it like that, how you just said it. Q: You got to think about more than one person right now. Is that correct? A: Yes. Q: While you were changing your story, do you recall – ["]I am changing my story from the first story, that's because I want to protect my whole family, to protect everybody.["] A: No. Q: You indicated that you had ["]great concern about becoming a tattletale.["] Describe to me what that means. What is a tattletale? A: Tattletale is when you tell on someone. Q: What are the repercussions you're concerned about? A: I am not. Q: The reason for indicating that was your primary motivation when asked by — you came 14 A-4030-14T4 to Mr. Bashir's office concerned about being a tattletale. A: I wasn't concerned about -- Q: You weren't concerned about you, you were concerned about being a tattletale[?] A: No. Q: It's not difficult to come in here and testify in front of all this open courtroom? A: I am telling you the truth. That's what I want, to tell truth. Q: You're not concerned about leaving here today and going back to the neighborhood? A: No. Q: [] No? A: I am not concerned. [(Emphasis added).] Early in his summation, the prosecutor used the following metaphor: I want to talk to you about the concept of a cocoon. It's not [going to] be a story about how somebody goes into the cocoon at one time and comes out a butterfly. It's more about the idea of being wrapped and feeling safe, like when a newborn comes into the world, you're taught to swaddle them. First thing they want to have done to them is they want that blanket put around them, they want it wrapped tight, and they want to feel safe. Your . . . out-of-court identifications in this case happen in a cocoon. Before that -- before they're there, they're frightened. 15 A-4030-14T4 The prosecutor then stated, "[K.L.] told you over and over and over that he was scared. And he didn't just say it now, he said it over and over and over in the past." The prosecutor then referenced the portion of K.L.'s cross- examination relating to K.L.'s meeting with Bashir a few weeks before trial. The prosecutor recited Bashir's question asking K.L. if he met with Bashir because he was "afraid of what could happen to [him] on the streets if [his] name came out as part of this particular case." As the prosecutor was about to recite K.L.'s answer from the recording, defense counsel objected and the court conducted a sidebar conference. The prosecutor explained he intended to read to the jury from the transcript made of the recording of that meeting. The court responded, "I understand you asked the questions but you can't read from something that's not in evidence." (Emphasis added). The court ultimately overruled the objection, determining the State was not seeking to introduce K.L.'s answers to Bashir for the truth of the matter asserted, but rather for the limited purpose of showing K.L.'s inconsistency. The court did not, however, instruct the jury that K.L.'s statement could be considered only for that limited purpose. After resuming his summation, and despite the court's ruling, the prosecutor continued, 16 A-4030-14T4 I indicate to you that the inconsistency is the truth. His number [one] priority in this world at this time was to clear his name and to think about his daughter, and all those types of things that he indicated to you. He doesn't want to be a tattle tail [sic] on the street. He is afraid. That's his primary motivation. Otherwise, the first answers to those things would have been totally different." [(Emphasis added).] At the jury charge conference, defense counsel requested the court include the subsection of the model jury charge on out-of- court identifications labeled "Multiple Viewings,"4 arguing it applied because T.J. had been shown photograph number five "three or four times." The court rejected defendant's request, concluding the charge was inapplicable to his theory of the case. During jury deliberations, the court received jury note C-3, which contained the following two questions: (1) "Can we have a copy of a list of all evidence[?]" and (2) "was crime scene report [sic] entered into evidence and can we have a copy[?]" After conferring with the prosecutor and defense counsel, and securing their consent, the court advised the jury that it could not create an evidence list for them but they were free to compile their own. 4 See Model Jury Charge (Criminal), "Identification: Out-Of-Court Identification Only" at 5, 6 (2012). 17 A-4030-14T4 The court further informed the jury, "you can have testimony read back as well, if you like." The court also received jury note C-6, which read, "We would like to see -- or in parenthesis -- or be re-read -- or read the entire testimony of [T.J.], both direct and cross." (Emphasis added). The court responded, "In fact, when you ask for testimony of a witness, you get direct, cross, redirect, re-cross, and [] all testimony . . . ." (Emphasis added). The court reporter then "read back" T.J.'s testimony. Defense counsel requested a sidebar and advised the court, "The last question I asked her on [] re-cross was: Are you more afraid . . . of the streets? Or are you more afraid of the police?" The prosecutor responded, "I actually do remember that. I do remember that. I do." The court agreed to look into the matter and told the jury, "In listening to the testimony, there may have been one or two questions or answers that may not have been recorded. . . . I'm going to ask you to continue your deliberations. However, we're going to double check, to make sure that we had the complete testimony." An hour and forty-five minutes later, the court called the jury in and advised them, "In response to your question, I have reviewed the transcript and that is the entire testimony. So, you 18 A-4030-14T4 can continue your deliberations. Okay? That's the entire testimony under the official court record." (Emphasis added). The jury resumed deliberations and the court addressed the attorneys "for the record." The court noted it reviewed the transcript and did not see the re-cross testimony, but it was "aware that there is a backup system working in Trenton at all times." The court then explained, During lunch, I called Trenton to see -- I was always advised that you need a Court Order and I was always advised really then it had to be from the Assignment Judge, but I called Trenton to see the feasibility of assessing this record, this backup system, to see whether or not this question was even asked. I was called back and they told me again that I needed to have my Assignment Judge. . . . I also got a call from the Appellate Division while counsel was in my chambers, which said they heard I had a problem or something, and I talked to them. I told them I pretty much resolved this in my mind because we're in the middle of a homicide deliberation from a trial. I'm certainly not going to recess trial and try to get a Court Order to assess something that the defense attorney -- and for the record, the Prosecution said they believe they heard it too and they were willing to stipulate to it -- to recess this to confirm it. I am going to go with the official court record, and as anyone knows who tries cases the official court record is the record that's provided by the official court reporter. And that's why I just advised the jury that under the official court record that's the entire testimony, and that's the position of this 19 A-4030-14T4 Court. I don't know how I could do anything differently. And certainly, I don't think it would be appropriate to recess this trial because there ha[s] been a question and an answer that the attorneys believe was stated to this witness that wasn't included in the read back. [(Emphasis added).] On April 23, 2014, the jury found defendant not guilty of conspiracy to commit murder (count one) and guilty of murder (count two), unlawful possession of a weapon (count three), and possession of a weapon for an unlawful purpose (count four). A trial was then conducted on a separate indictment charging defendant with certain persons not to possess weapons, on which the jury also returned a guilty verdict. On March 16, 2015, defendant was sentenced to an aggregate sixty-five year prison term, subject to NERA. This appeal followed. II. A. We first address defendant's argument that the trial court erred by failing to hold a hearing on whether the police irreparably tainted T.J.'s identification of defendant by conducting the photo array procedure in an impermissibly suggestive manner. Defendant attacks the admissibility of T.J.'s identification, based on suggestiveness and reliability, as well 20 A-4030-14T4 as the police failure to keep a record of T.J.'s first identification in which she identified someone else as the shooter. The State responds that "[d]efendant invited the error he now challenges" because he "never requested a Wade hearing and, instead, simply challenged the State's motion in limine to admit [T.J.'s] out-of-court identifications." It further contends defendant "made a sound strategic decision . . . not to push the suppression issue and opted to have the full opportunity to cross- examine [T.J.]." Historically, courts followed the United States Supreme Court's two-part test to determine the admissibility of an eyewitness's out-of-court photographic identification, set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), which was adopted by the New Jersey Supreme Court in State v. Madison, 109 N.J. 223 (1988). In Manson, the United States Supreme Court expounded on the test initially identified in Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), which requires a court to determine whether the out-of-court photographic identification procedures used were impermissibly suggestive. Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. If so, the court then must examine whether the objectionable procedure resulted in "a very 21 A-4030-14T4 substantial likelihood of irreparable misidentification." Id. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155. When examining a challenge to the admissibility of identification testimony, a court must assess whether the impermissibly suggestive procedures used by law enforcement prejudicially affected the identification, by weighing five factors to "determine whether . . . sufficient indicia of reliability [would] 'outweigh the "corrupting effect of the suggestive identification itself."'" Madison, supra, 109 N.J. at 239 (quoting State v. Ford, 79 N.J. 136, 137 (1979) (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154)). These factors "include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. After Madison, the Court again considered eyewitness identification challenges in State v. Delgado, 188 N.J. 48 (2006). Noting "[m]isidentification is widely recognized as the single greatest cause of wrongful convictions in this country[,]" id. at 60, the Court chose to exercise its supervisory powers, granted 22 A-4030-14T4 by Article VI, Section 2, Paragraph 3 of the New Jersey Constitution, "to require, as a condition to the admissibility of out-of-court identifications, that the police record, to the extent feasible, the dialogue between witnesses and police during an identification procedure." Id. at 51. The Court held the admissibility of out-of-court identifications was conditioned upon the preparation of: a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results. Preserving the words exchanged between the witness and the officer conducting the identification procedure may be as important as preserving either a picture of a live lineup or a photographic array. When feasible, a verbatim account of any exchange between the law enforcement officer and witness should be reduced to writing. When not feasible, a detailed summary of the identification should be prepared. [Id. at 63.] By that time, "[t]he State's Attorney General . . . ha[d] recognized that eyewitness identification 'evidence is not fool- proof,' and made New Jersey the first state to adopt the United States Department of Justice's procedural recommendations to increase reliability in photo and live lineups." State v. Romero, 191 N.J. 59, 74 (2007) (citing Letter from Attorney General John J. Farmer, Jr., to All County Prosecutors et al., at 1 (Apr. 18, 23 A-4030-14T4 2001) (on file with the New Jersey Division of Criminal Justice)). In that letter, the Attorney General instructed: When it is not possible in a given case to conduct a lineup or photo array with an independent investigator, the primary investigator must exercise extreme caution to avoid any inadvertent signaling to a witness of a "correct" response which may provide a witness with a false sense of confidence if they have made an erroneous identification. Studies have established that the confidence level that witnesses demonstrate regarding their identifications is the primary determinant of whether jurors accept identifications as accurate and reliable. Technological tools, such as computer programs that can run photo lineups and record witness identifications independent of the presence of an investigator, as well as departmental training of a broader range of agency personnel to conduct lineups and photo identifications may also assist agencies and departments with staff and budget constraints in implementing this recommendation. [Letter from John J. Farmer, Jr., Att'y Gen., to All Cty. Prosecutors, et al., at 2 (Apr. 18, 2001) (footnote omitted), http://www.njdcj.org/agguide/photoid.pdf.] The Supreme Court revisited and comprehensively considered this thorny issue in State v. Henderson, 208 N.J. 208 (2011), which established a more detailed framework to examine the admissibility of out-of-court identification testimony, provide new guidelines to reduce the possibility of misidentification, offer a more adequate measure for reliability, and deter potential police misconduct. Id. at 288-99. However, the photo 24 A-4030-14T4 identifications at issue in the present case were conducted before Henderson's new rule of law took effect and remain subject to the prior rubric of Manson/Madison.5 A trial court may need to conduct a pretrial Wade hearing pursuant to N.J.R.E. 104 to determine whether the out-of-court identification should be suppressed under the Manson/Madison framework. State v. Michaels, 136 N.J. 299, 320 (1994). In Michaels, the Supreme Court "recognized that when an identification is crucial to the prosecution of a criminal case, its reliability, and ultimate admissibility, must be strictly tested through a searching pretrial hearing." Id. at 319. There is no automatic right to a Wade hearing, and there must first be a "threshold showing of suggestiveness" in a witness's out-of-court identification. State v. Ruffin, 371 N.J. Super. 371, 390-91 (App. Div. 2004). While a trial court only needs to address the issue of "taint" after finding the identification procedure used was "unduly suggestive," the Supreme Court advised trial courts "to hold a taint hearing and make specific findings of fact on the independent reliability of the identifications" when the identification process implemented was sufficiently "questionable." Madison, supra, 109 N.J. at 244-45. It further 5 See id. at 220 (applying new test prospectively, from September 4, 2012). 25 A-4030-14T4 noted "it is helpful to an appellate court if a trial court sets forth its specific findings on why it deems a photo array not impermissibly suggestive," and the failure of a trial court to make such specific findings "unduly complicates appellate review." Id. at 245 (second quotation quoting State v. Cooper, 165 N.J. Super. 57, 67 (App. Div. 1979)). Here, the record does not support the State's contention that defendant invited any error by failing to request a Wade hearing. "The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010)). It instead appears the State's in limine motion was discussed at an earlier proceeding, when it was indicated it was not necessary for defendant to formally file a Wade motion with respect to T.J.'s out-of-court identification that the State sought to admit. Rather than inviting any error, defendant opposed the State's motion, repeatedly requested a hearing, and argued that suppression of T.J.'s identification, rather than its admission, was the appropriate remedy. In any event, the court erred by failing to conduct an evidentiary hearing on the State's in limine motion. At the time 26 A-4030-14T4 the photo array was conducted, the State was required to preserve the dialogue between the witness and questioner and the results of that dialogue, by verbatim recording when feasible and, if not, by detailed summary. Delgado, supra, 188 N.J. at 63. The State failed to produce any record or summary of what occurred during the first identification when T.J. selected photograph number two and not the defendant's photograph. The State was unable to proffer any explanation why this recording was not preserved. Moreover, the State all but conceded the process employed by the police did not comport with the New Jersey Attorney General Guidelines concerning photo identification procedures because Detective Kelly, and not an independent investigator, participated in the second identification. All these facts call into question the validity of the identification procedure. Since T.J.'s identification of defendant was crucial to his prosecution, the court should have conducted an evidentiary hearing to determine the admissibility of that identification. Critical also is the court's failure to rule on the State's in limine motion. At the very least, the court erred in not placing its findings on the record. During argument on the motion, the judge acknowledged T.J.'s first identification "raises some questions because it was recorded and it was lost. And so then the court would have to make a legal finding as to whether or not 27 A-4030-14T4 that was done in bad faith." However, the judge failed to make any findings with regard to this or any other aspect of the motion. Because we conclude this and other trial errors discussed below cumulatively warrant reversal of defendant's convictions, on remand we direct the trial court to conduct an evidentiary hearing. The court shall make specific findings regarding the absence of a record of T.J.'s first identification and whether the police procedures employed during T.J.'s identifications were impermissibly suggestive. Depending on those findings, the court shall then determine whether the absence of a record of the first identification, or any improper police procedures, created a "very substantial likelihood of irreparable misidentification." Madison, supra, 109 N.J. at 232. B. Defendant argues he was deprived of a fair trial due to improper remarks made by the prosecutor during summation. He contends the "cocoon" analogy was inappropriate because it "creat[ed] a hostile environment for the [d]efendant." He also asserts the State mischaracterized K.L.'s testimony, and that his alleged fear was "not in evidence, but mere speculation by the State." "Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the 28 A-4030-14T4 scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Prosecutors "are duty-bound to confine their comments to facts revealed during the trial and reasonable inferences to be drawn from that evidence." Id. at 85. "In determining whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, [the courts] consider whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987) (citing State v. Bogen, 13 N.J. 137, 141-42, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953)). Prompt and effective instructions have the ability to neutralize prejudice engendered by an inappropriate comment or piece of testimony. State v. Wakefield, 190 N.J. 397, 440 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Whether or not a curative instruction can eliminate the danger of such an error "focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." State v. Winter, 96 N.J. 640, 647 (1984). In the present case, a significant portion of the prosecutor's summation focused on K.L.'s alleged inconsistent statements. A prior inconsistent statement may be introduced to neutralize 29 A-4030-14T4 testimony under N.J.R.E. 607, which, unlike N.J.R.E. 803(a)(1), does not require the court to determine the prior inconsistent statement is reliable. State v. Nelson, 318 N.J. Super. 242, 252 (App. Div.), certif. denied, 158 N.J. 687 (1999); State v. Benthall, 182 N.J. 373, 380 (2005) (emphasizing a prior inconsistent statement is only admissible under N.J.R.E. 607 after the trial court finds "the party seeking to neutralize had no prior knowledge that the witness would testify contrary to the prior statement"). "Neutralization evidence may only be used to 'eras[e] or cancel[]' surprising, harmful testimony. It may not be used affirmatively, that is, for the truth of the matter being asserted. Its use lies in assisting the jury only 'in deciding whether to believe the testimony which the prior statement contradicts.'" Id. at 385 (citations omitted). In such instances, the trial court must give the jury a limiting instruction that "strongly emphasize[s] that in no event is the jury to use the prior statement as proving the truth of the matter therein allegedly stated." Id. at 379 (quoting State v. Gallicchio, 44 N.J. 540, 547 (1965)). Here, arguably the prosecutor's cocoon remark was based on reasonable inferences drawn from the witnesses' pretrial statements and was not plain error. We reach a different 30 A-4030-14T4 conclusion, however, regarding the prosecutor's reference to K.L.'s recorded conversation with Bashir. As with K.L.'s statement to the detectives, the State could have sought to admit K.L.'s recorded conversation with Bashir into evidence for the truth of the matter asserted under N.J.R.E. 803(a)(1)(A). Doing so would have required the State to establish the reliability of that out-of-court statement by a preponderance of the evidence at a hearing. Gross, supra, 121 N.J. at 15. However, the State decided not to pursue that course, and the conversation with Bashir was never admitted in evidence. Moreover, the State did not attempt during K.L.'s testimony to "examine the witness and introduce extrinsic evidence . . . [to] neutralize the witness' testimony by a prior contradictory statement." N.J.R.E. 607. Instead, the prosecutor waited until closing argument to attempt to inform the jury of K.L.'s answers to Bashir. The court ruled that K.L.'s statement to Bashir could not be offered for the truth of the matter asserted, but only to show K.L.'s in-court and out-of-court statements were inconsistent. Nonetheless, the prosecutor argued in his summation that the jury should accept K.L.'s statement to Bashir as truthful. After highlighting K.L.'s prior inconsistent statement, the prosecutor asserted, "I indicate to you that the inconsistency is the truth." (Emphasis added). 31 A-4030-14T4 Perhaps this error could have been mitigated by a forceful curative or limiting instruction. However, the court failed to instruct the jury on the limited purpose for which the testimony was admitted. Compounding the error, the court instructed the jury: Evidence has been presented showing that at a prior time, a witness has said something, or failed to say something which is inconsistent with the witness's testimony at trial. This evidence may be considered by you as substantive evidence, or proof of the truth of the prior contradictory statement or omitted statement. [(Emphasis added.)] While this instruction properly applied to K.L.'s statements to the detectives and the grand jury, which were admitted into evidence following the Gross hearing pursuant to N.J.R.E. 803(a)(1)(A), the court never clarified to the jury that the same instruction did not apply to K.L.'s out-of-court statement to Bashir. C. Defendant argues the trial court erred by telling the jury it read back to them T.J.'s "entire" testimony, even though both the defense and the prosecution advised the court that a portion of re-cross examination had been omitted. Defendant contends the omitted testimony was critical because it contradicted the State's 32 A-4030-14T4 theory that T.J. was intimidated by defendant and supported the defense position that her identification was coerced by law enforcement. Defendant argues, "The incomplete testimony made the defense appear to be lying, incompetent or trying to deceive the jury, as it was in direct contradiction to [d]efendant's closing argument." "[T]he response to a jury's request for a readback of testimony or a replay of a video recording is vested in the discretion of the trial judge." State v. A.R., 213 N.J. 542, 555- 56 (2013). That said, courts should grant such requests in the absence of "some unusual circumstance," and they "should not decline a request simply because it 'would take time.'" State v. Miller, 205 N.J. 109, 120 (2011) (quoting State v. Wolf, 44 N.J. 176, 185, 186 (1965)). When exercising that discretion, our Supreme Court has instructed that generally "the entire testimony requested should be played back — including direct and cross examination — so that evidence may be considered in its proper context. Only then can a jury hear both direct proofs as well as inconsistencies and impeachment material." Id. at 122 (citation omitted). These "requests are a clear sign that the evidence sought is important to the deliberative process" and "reflect the reality that jurors cannot be expected to have perfect recall of every bit of evidence introduced during a trial." Id. at 120. 33 A-4030-14T4 Here, both the defense and the State agreed that testimony had been omitted from the read back, and they further agreed on the substance of that omission. The court was aware it could access the recorded testimony from the "backup system" with an order from the Assignment Judge,6 and even acknowledged the State was willing "to recess this to confirm it." Moreover, the court recognized the parties "were willing to stipulate" to the omitted testimony. Under these circumstances, the trial court should have allowed the parties to enter into a formal stipulation as to what was omitted, or taken the additional time to procure the backup CourtSmart recording. Its failure to adopt either of these alternatives constituted an abuse of discretion. The court again compounded the error by misadvising the jury, "That's the entire testimony under the official court record." To the extent, then, that any of the jurors properly recalled the 6 The secondary recording made by CourtSmart can be accessed if the primary recording system fails to record any portion of a court proceeding, provided the Assignment Judge approves the access and signs off on a form that is publicly available on the Internet. See New Jersey Administrative Office of the Courts, Supplement to Directive # 07-10 (Jan. 3, 2011), https://www.judiciary.state.nj.us/attorneys/assets/directives/di r_07_10_supp1.pdf; New Jersey Administrative Office of the Courts, Directive # 07-10 (Aug. 3, 2010), https://www.judiciary.state.nj.us/attorneys/assets/directives/di r_07_10.pdf. 34 A-4030-14T4 excluded testimony, they were effectively instructed to disregard it. The omitted re-cross examination was significant. The jury expressly requested T.J.'s entire testimony be read back, but they did not receive it. On redirect, T.J. stated she did not want to testify and that she had fear about testifying. When asked whether she was afraid to go back to the neighborhood, she equivocally testified she has family there and is "always passing through." Detective Gregory later testified T.J. was afraid of retaliation for cooperating with the police. In the testimony omitted from the read back, T.J. clarified she was afraid of the police because they threatened to incarcerate her for parking tickets. If the jury did not consider the re-cross examination, based on the trial court's erroneous instruction, then it could not properly assess whether T.J. was afraid to testify because of a threat of violent retaliation from members of her neighborhood or the fear of police intimidation. In light of these circumstances, the court abused its discretion in a manner capable of undermining the jury's careful consideration of critical evidence. D. While perhaps any of the errors we have identified above, standing alone, may be insufficient to warrant reversal, we agree with defendant's contention that the cumulative effect of the 35 A-4030-14T4 errors constrains us to reverse his convictions and remand for a new trial. "[W]here any one of several errors assigned would not in itself be sufficient to warrant a reversal, yet if all of them taken together justify the conclusion that defendant was not accorded a fair trial, it becomes the duty of this court to reverse." State v. Weaver, 219 N.J. 131, 155 (2014) (quoting State v. Orecchio, 16 N.J. 125, 134 (1954)). Summarizing these errors: (1) the court failed to conduct an evidentiary hearing and make required findings regarding the admissibility of T.J.'s identification testimony; (2) the prosecutor's summation improperly asked the jury to consider for its truth K.L.'s statement to Bashir that was not in evidence and could not be considered for its truth, and the court failed to issue a limiting or curative instruction but instead instructed that prior statements could be considered for their truth; and (3) the court misadvised the jury regarding significant re-cross examination of a key prosecution witness of T.J., notwithstanding the parties' willingness to stipulate to the excluded portion and their willingness to recess the trial so the omitted testimony could be retrieved. Viewed in the aggregate, these errors are significant because the only evidence linking defendant to the murder came from the out-of-court statements of those two witnesses who recanted at 36 A-4030-14T4 trial, testified their statements were the product of police coercion, and were unable to make in-court identifications. Because the cumulative impact of these errors was capable of producing an unjust result, we reverse the convictions and remand for a new trial. E. We conclude defendant's remaining arguments do not support reversal of his convictions and lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add the following limited comments for the sake of completeness. Defendant argues the trial court failed to properly consider and apply the Gross factors, resulting in the improper admission of K.L.'s statement to police. We disagree. We review a trial court's evidentiary rulings only for abuse of discretion, and do not set such rulings aside unless it appears that "there has been a clear error of judgment." State v. J.A.C., 210 N.J. 281, 295 (2012). We must be convinced that "the trial court's ruling is so wide of the mark that a manifest denial of justice resulted." Ibid. The admission of a prior inconsistent statement of a witness at trial is governed by N.J.R.E. 803(a)(1). State v. Johnson, 421 N.J. Super. 511, 516 (App. Div. 2011). A prior inconsistent statement is admissible as substantive evidence when offered by 37 A-4030-14T4 the party who called the witness if it is "contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability." Ibid. In order to determine whether the circumstances provide sufficient indicia of reliability, a trial court holds a hearing outside of the presence of the jury to determine, by a fair preponderance of the evidence, whether the circumstances surrounding the prior statement indicate the statement's reliability. Id. at 517. In making that determination, the trial court must consider a number of factors: (1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence. 38 A-4030-14T4 [Gross, supra, 121 N.J. at 10.] Here, the judge examined the fifteen Gross factors in considerable detail and found they supported the reliability and credibility of K.L.'s prior statements. Our review of the record fails to provide us with any reason to disturb the judge's factual findings, analyses of the Gross factors, or conclusion that K.L.'s statements were admissible as substantive evidence. Next, we reject defendant's contention that the trial court erred in not including the "Multiple Viewings" subsection of Model Jury Charge (Criminal), Identification: Out-of-Court Identification Only (2012) in its instructions to the jury. By its terms, the charge applies "[w]hen a witness views the same person in more than one identification procedure." Here, T.J. viewed the same photo array twice as part of a single identification procedure. Moreover, the parties disputed whether T.J.'s subsequent identification of defendant was because she lied the first time or was pressured by police the second time. In either event, neither party claimed the second identification was tainted by exposure to multiple viewings of defendant's photograph; hence, the charge was inapplicable. Finally, defendant argues the trial court erred in its response to jury note C-3 because it "focused primarily on physical evidence" and "testimonial evidence was only touched upon as an 39 A-4030-14T4 afterthought." However, defense counsel encouraged the court to advise the jury it could create an evidence list from the physical items it was already given. The court's response was not only correct but consistent with defense counsel's encouragement. Defendant cannot complain because he invited the error. State v. Munafo, 222 N.J. 480, 487 (2015). Additionally, as part of its response, the court properly reminded the jury that testimony is considered evidence and offered to read back any portion of the testimony the jury requested. Reversed and remanded for a new trial. 40 A-4030-14T4

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Docket No.: a4183-15
Decided: 2017-11-16
Caption: STATE OF NEW JERSEY v. STAN BRAXTON
Status: unpublished
Summary:
PER CURIAM Defendant appeals from a January 12, 2016 order denying his petition for post-conviction relief (PCR) after evidentiary hearings. On appeal, defendant maintains he received ineffective assistance from trial counsel that deprived him of his constitutional right to a fair trial. We disagree and affirm. Defendant was convicted of one count of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and four counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5), resulting from an altercation with several corrections officers while defendant was incarcerated at South Woods State Prison. Defendant was sentenced to a total of nine years on the charges. At trial, defendant alleged he did not assault a corrections officer. Rather, defendant testified that he was attacked without cause by several corrections officers in retaliation for defendant's filing of a harassment complaint against an officer. According to defendant, while he was showering, officers threw his clothes into the shower and attacked him. The trial testimony on behalf of the prosecution offered a different version of the events. According to prosecution witnesses, while showering, defendant exposed himself to a female corrections officer. Defendant also made a lewd remark directed at the female officer via the prison's intercom system. The prosecution claimed that the officers called to the shower area asked defendant to exit the shower and get dressed. The prosecution maintained that defendant refused to comply and lunged 2 A-4183-15T3 at one of the officers. Corrections Officer Stewart Richardson attempted to intervene and was assaulted by defendant. Richardson sustained an orbital fracture and deviated septum requiring surgery. Defendant's convictions and sentences were affirmed on direct appeal. State v. Braxton, No. A-4024-04 (App. Div. May 31, 2006). The Supreme Court denied defendant's petition for certification. State v. Braxton, 188 N.J. 355 (2006). Defendant filed his initial PCR petition on October 31, 2006. On October 9, 2009, the PCR judge denied defendant’s petition without an evidentiary hearing. Defendant appealed the denial of his initial PCR petition. On November 2, 2011, we reversed and remanded the matter to the PCR judge to appoint new counsel and conduct a hearing. Following our remand, the PCR judge held evidentiary hearings on three different dates. The PCR judge denied defendant’s petition in a written opinion dated January 12, 2016. The PCR judge heard testimony from Dr. Rodolfo Diaz, the doctor who performed surgery to repair Richardson's nasal injury. Dr. Diaz was examined as to the initial radiological report finding no facial fractures and his own medical report finding facial 3 A-4183-15T3 fractures.1 Dr. Diaz explained the inconsistencies between the two reports. Dr. Diaz acknowledged that the initial CAT scan reported no fractures, but noted that a subsequent addendum by the radiologist, viewing a different angle of the scan, confirmed the same injuries identified in Diaz's report. Defendant's trial counsel, Demetrius Parrish, also testified during the evidentiary hearings. Parrish had limited recall regarding the trial proceedings and his trial strategy. The PCR judge concluded from Parrish's testimony that the defense trial strategy was self-preservation, with defendant claiming he was shielding himself against attacks by the corrections officers and that Richardson's injury was the result of Richardson's contact with other officers. PCR counsel asked Parrish why he did not cross-examine Dr. Diaz about an alleged pre-existing condition suffered by Richardson. Parrish recalled that he elected to cross- examine Richardson on the matter rather than Dr. Diaz. Richardson also testified during the evidentiary hearings. He was unable to recall specific details about the incident leading to his injury. Richardson remembered that he was injured and had surgery to repair his nose. He also testified that the handwriting on the first incident report form was not his, but he acknowledged 1 The radiologist prepared an addendum to his initial report which confirmed the presence of facial fractures. 4 A-4183-15T3 he signed and dated the form. The first incident report confirmed Richardson was "struck in the eye/cheek area" but did not mention difficulty breathing. Richardson also reviewed a second incident report and acknowledged that the second form did not indicate he was having difficulty breathing. The PCR judge also heard from defendant. Defendant testified that he was harassed by several corrections officers and introduced into evidence his handwritten grievance regarding his harassment complaint filed prior to the shower incident. Defendant also introduced disciplinary complaints filed against him by different corrections officers, including Richardson, relating to the shower incident. According to defendant, his trial counsel failed to cross-examine the corrections officers at trial about those complaints and reports. Defendant also testified that he never discussed self-defense with his trial counsel and counsel's inclusion of such a defense during voir dire was "unethical." Defendant further claimed that trial counsel failed to cross- examine Dr. Diaz about Richardson's radiological scan indicating no fractures, and failed to point out a "falsified" section of the radiologist's addendum report because it was in a different font type. The PCR judge allowed defendant to submit twenty-six additional documents into evidence in support of his PCR petition. 5 A-4183-15T3 The PCR judge also allowed defendant to reopen his direct testimony to raise two additional issues: conspiracy between defense counsel and the prosecutor to assert a false defense, and the withholding of exonerating evidence by counsel. However, defendant failed to present any evidence in support of these claims. The PCR judge rejected defendant's unsubstantiated and convoluted theories in support of his additional claims. The PCR judge considered written summations from counsel and defendant. Defendant's summation attached additional documents not introduced during the evidentiary hearings. The PCR judge considered defendant's additional documents despite defendant's failure to introduce the documents into evidence during the hearings. In his written findings of fact and conclusions of law, the PCR judge rejected defendant's allegation that Dr. Diaz fabricated Richardson's facial fractures and conspired with the State to bolster the case against defendant. The PCR judge accepted the testimony of Dr. Diaz as credible as to differences between his own medical report and the radiologist's reports. On the failure to examine whether Richardson had a pre- existing condition, the PCR judge found that was a trial strategy decision. It was undisputed that Richardson had a deviated septum, and trial counsel decided against examining Dr. Diaz on the issue. 6 A-4183-15T3 Instead, trial counsel elected to cross-examine Richardson on whether he came into contact with any other corrections officers during the shower altercation. Similarly, the PCR judge rejected defendant's contention that the corrections officers' reports should have been used to impeach their trial testimony. The PCR judge found the purported inconsistencies between the information in the officers' written reports and their trial testimony were insignificant and that the jury had ample opportunity to assess the credibility of the witnesses. Lastly, the PCR judge rejected defendant's claim that certain evidence should have been proffered to support the theory that his conviction was the result of a conspiracy among the corrections officers, the surgeon who treated Richardson, the radiologist who reviewed Richardson's radiological scan, the prosecutor, defense counsel and the trial judge, because defendant failed to offer evidence in support of his conspiracy theory. On appeal, defendant contends that he was denied effective assistance of trial counsel based upon: (1) counsel’s failure to challenge the testimony of both Dr. Diaz and Richardson, which was used to establish the elements of aggravated assault; (2) counsel’s failure to object to certain hearsay testimony offered by Richardson; and (3) counsel’s failure to request an adverse 7 A-4183-15T3 inference charge based upon the State’s loss of exculpatory evidence. Defendant raises the following points on appeal: POINT I DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF. A. COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE MEDICAL TESTIMONY PRESENTED BY OFFICER RICHARDSON [sic] WHICH WAS USED TO ESTABLISH THE ELEMENTS OF AGGRAVATED ASSAULT FOR WHICH DEFENDANT WAS CONVICTED. B. COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE HEARSAY TESTIMONY OF OFFICER RICHARDSON’S CHARACTERIZATION OF A MEDICAL OPINION REGARDING INJURIES HE CLAIMED TO HAVE SUSTAINED DURING A CONFRONTATION WITH DEFENDANT. C. COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR AN ADVERSE INFERENCE CHARGE WITH REGARD TO THE VASELINE JAR BECAUSE IT FORECLOSED A LIKELY SUCCESSFUL DEFENSE OF RETALIATION AGAINST DEFENDANT FOR REPORTING OFFICER RICHARDSON TO HIS SUPERIORS FOR ABUSE OF AUTHORITY. In reviewing factual findings based upon witness testimony at a PCR evidentiary hearing, we apply a deferential standard. State v. Nash, 212 N.J. 518, 540 (2013). "[W]e will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." Ibid. 8 A-4183-15T3 To prevail on a claim of ineffective assistance of counsel, defendant must satisfy the two-pronged Strickland test as adopted by New Jersey in State v. Fritz, 105 N.J. 42 (1987). First, a defendant must demonstrate that "counsel's performance 'fell below an objective standard of reasonableness,' such that [counsel] 'was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" State v. Hess, 207 N.J. 123, 146 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). However, a reviewing court should not assess counsel's performance with the benefit of hindsight. Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95. Second, a defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Hess, supra, 207 N.J. at 146 (quoting Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)). Defendant argues that trial counsel's examination of Dr. Diaz was ineffective for several reasons, including trial counsel's 9 A-4183-15T3 failure to cross-examine Dr. Diaz as to his finding of facial fractures when the radiologist found no such fractures, as well as his failure to address the font type differences between the radiologist's original and addendum reports. Additionally, defendant argues that trial counsel's failure to cross-examine Dr. Diaz on the absence of any mention of nasal injury in Richardson's incident reports is further evidence of his counsel's ineffectiveness. Defendant also contends that his trial counsel was ineffective for failing to cross-examine Dr. Diaz about Richardson's possible pre-existing nasal conditions. We reject defendant's arguments on these grounds. The PCR judge noted that the strategy advanced by defendant's trial counsel was to offer evidence establishing Richardson's injuries were caused by contact with a fellow corrections officer and not defendant. Therefore, cross-examining Dr. Diaz on any of the suggested issues would not have advanced the defense theory. We concur with the PCR judge that the decision not to cross-examine Dr. Diaz was an exercise of sound trial strategy. See State v. Arthur, 184 N.J. 307, 332-33 (2005). The mere fact that a trial strategy failed does not establish a constitutional claim of inadequacy. Fritz, supra, 105 N.J. at 54. Defendant next argues that his trial counsel's failure to object to Richardson's hearsay testimony offering medical opinions 10 A-4183-15T3 constituted ineffective assistance of counsel. We reject this argument as well. The trial judge sustained defense counsel's hearsay objections to Richardson's testimony about the doctor's diagnosis as to his medical condition. Because there was corroborating expert medical testimony from Dr. Diaz explaining Richardson's injuries, any hearsay that might have been heard by the jury was harmless. See R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971) (noting that an error must be capable of producing an unjust result "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached"). Defendant further argues that his trial counsel was ineffective because he failed to request an adverse inference with regard to a missing Vaseline jar that defendant claims was exculpatory.2 Defendant contends the missing Vaseline jar substantiated his claim that the corrections officers plotted against him by claiming he used Vaseline to plan an attack, when defendant asserts the container was actually a soap dish. 2 The original indictment relied on a Vaseline jar to support the prosecution's claim that defendant preplanned the attack on the corrections officers and used Vaseline on his body to make it difficult for the officers to restrain him. However, the prosecution subsequently lost the Vaseline jar prior to trial. Defense counsel then successfully moved to dismiss the original indictment and to suppress any mention of a Vaseline jar during the trial. 11 A-4183-15T3 According to defendant, the suppression of this evidence limited his retaliation theory. No adverse inference charge was warranted as all testimony with respect to Vaseline was suppressed by the trial judge. As for defendant's claim that his trial counsel was ineffective in pursuing a self-defense strategy rather than a retaliation defense, there is no support in the record for his claim. There was only one mention of self-defense at trial in a single voir dire question during jury selection. The record reflects that trial counsel pursued a retaliation defense on defendant's behalf. Based upon the sufficient, credible evidence in the record, defendant failed to demonstrate that his trial counsel's performance was deficient or prejudicial. Affirmed. 12 A-4183-15T3

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Docket No.: a4350-16
Decided: 2017-11-16
Caption: STATE OF NEW JERSEY v. JULIAN SANDERS
Status: unpublished
Summary:
PER CURIAM Defendant Julian Sanders was charged with murder, N.J.S.A. 2C:11-3(a)(1), and related weapons charges stemming from the stabbing death of Kendal Anthony. In this appeal, we consider whether the trial court abused its discretion in finding defendant rebutted the presumption of pretrial detention pursuant to N.J.S.A. 2A:162-19(b) by a preponderance of the evidence. I. The affidavit of probable cause indicates that a witness identified defendant in a photo array and surveillance video captured the incident. The video, which has no sound, shows defendant approaching a liquor store in Newark where he encountered Anthony, and the two began arguing. During the argument, defendant removed a knife from his front pants pocket. When Anthony threw a punch at defendant, defendant stabbed him once in the chest, causing his death. Pretrial Services generated a Public Safety Assessment (PSA), which reflected that defendant was forty-seven years old and charged with a violent offense. The PSA indicated defendant had no pending charge at the time of offense and no prior violent convictions or failure to appear pretrial in the past two years. The PSA also indicated defendant had three prior indictable convictions; sixteen prior disorderly persons convictions; prior 2 A-4350-16T6 failure to appear pretrial older than two years; and prior sentence to incarceration. Pretrial Services rated defendant with a score of three for both failure to appear and new criminal activity. There was no new violent criminal activity flag. Pretrial Services recommended no release. The State filed a motion for defendant's pretrial detention based on the presumption of detention for defendants charged with murder and on Pretrial Services' no release recommendation. The State argued defendant's release created a risk that he would not appear at future court proceedings and would present a danger to the community. The State provided the complaint-warrant, affidavit of probable cause, the PSA, the surveillance video, and defendant's videotaped statement to the police. Defendant did not contest probable cause or that the presumption of detention applied. Rather, defense counsel argued defendant was not the aggressor, acted in self-defense, had a non- violent criminal history, and was not a danger to the community or at risk of not appearing in court. Defense counsel represented that defendant had strong family support and would reside with his mother and brother, who would guarantee his appearance in court. In addition, defendant attended elementary and high schools in Irvington, worked at a maintenance company in 2014 and 2015 cleaning offices and windows until he was injured on the job, was 3 A-4350-16T6 very cooperative, and was remorseful despite claiming self- defense. The State countered that the video showed defendant was the aggressor and Anthony threw the punch after defendant raised the knife up to Anthony's face. The State argued that defendant had a duty to retreat, could have walked away, and was "an extraordinary risk to the community," based on his lengthy criminal history and conduct in this case. The court did not review defendant's videotaped statement to police. However, defense counsel represented that defendant said, "I should've just gone home," and expressed remorse. The State represented that defendant said he was high, came to the store to get a cigarette, and could and should have walked away, but "really wanted a cigarette." The court viewed the surveillance video and disagreed with the State's description of the incident. The court noted that Anthony was much younger, bigger, and stronger than defendant, and appeared to be the aggressor throughout the argument. The court agreed with the defense that defendant was not the aggressor and it clearly appeared on the video that he was acting in self-defense when he stabbed Anthony. The court recognized that the PSA recommended no release, but noted it had to consider a number of other factors. The court 4 A-4350-16T6 assessed the nature and circumstances of the offense charged and weight of the evidence, and determined the State's case for murder was not very strong. The court also considered other factors, such as defendant's history and characteristics, and concluded that under the circumstances, even with his prior criminal record, even with the PSA's recommendation of no release . . . this [c]ourt is satisfied that the [defendant] has rebutted the presumption in this case and that there are condition[s] or combination of conditions that would assure [his] appearance in court when required, as well as the protection of other persons in the community. The court ordered defendant's release with the condition of twenty- four hour home supervision at his mother's residence and electronic monitoring. Defendant's release was stayed pending appeal. We review the trial court's decision on a motion for pretrial detention for abuse of discretion. State v. C.W., 449 N.J. Super. 231, 256 (App. Div. 2017). An abuse of discretion may be found "when a decision 'rest[s] on an impermissible basis' or was 'based upon a consideration of irrelevant or inappropriate factors.'" Id. at 255 (alteration in original) (quoting State v. Steele, 430 N.J. Super. 24, 34-35 (App. Div. 2013), certif. improvidently granted, 223 N.J. 284 (2014)). An abuse of discretion may also be found "when the trial court fails to take into consideration 5 A-4350-16T6 all relevant factors [or] when its decision reflects a clear error in judgment." Ibid. Here, the court's decision rested on its view of the surveillance video. "When more than one reasonable inference can be drawn from the review of a video recording, . . . a trial court's factual conclusions reached by drawing permissible inferences cannot be clearly mistaken, and the mere substitution of an appellate court's judgment for that of the trial court's advances no greater good." State v. S.S., 229 N.J. 360, 380 (2017). However, "[a]ppellate courts have an important role to play in taking corrective action when factual findings are so clearly mistaken -- so wide of the mark -- that the interests of justice demand intervention." Id. at 381. "Deference ends when a trial court's factual findings are not supported by sufficient credible evidence in the record." Ibid. The State concedes that S.S. precludes us from applying a de novo review of a trial court's findings based on video evidence. However, the State argues the court's decision was not supported by sufficient credible evidence because the surveillance video did not implicate self-defense. The State posits that, similar to the standard applied for a motion to dismiss an indictment, the evidence should be viewed in a light most favorable to the State at this early stage of the case. Citing State v. Robinson, 229 6 A-4350-16T6 N.J. 44, 68 (2017) to support its argument that a pretrial detention hearing "should not turn into a mini-trial," the State contends it was not required to disprove every possible affirmative defense. The State insists that the surveillance video provides strong evidence for a jury to find defendant guilty of murder, and the court was clearly mistaken in concluding otherwise. The State argues that the court abused its discretion by putting controlling weight on the surveillance video and rendering its own verdict of self-defense when the following factors set forth in N.J.S.A. 2A:162-20 weighed in favor of detention: (1) defendant is charged with murder and faces a minimum sentence of thirty years without parole; (2) the weight of the evidence is strong and includes the surveillance video, eyewitness identification, and defendant's inculpatory statement to the police; (3) defendant committed the crime while residing with his mother; and (4) defendant's criminal history bespeaks reoffending. The State also argues that Pretrial Services' no release recommendation, coupled with the statutory presumption for defendants charged with murder, is strong evidence supporting defendant's pre-trial detention. The State posits that under Rule 3:4A(b)(5), a recommendation against release is prima facie evidence sufficient to overcome the presumption of release, and where there is a presumption of detention, the recommendation 7 A-4350-16T6 should be even more difficult to overcome. Lastly, the State argues that when a presumption of detention is triggered, release should be the uncommon exception. The State maintains this result necessarily follows from our statement in C.W., supra, 449 N.J. Super. at 257, that where the presumption is not triggered, detention is "the appropriate result for only a limited group of the most serious cases." Defendant counters that if the presumption of detention cannot be rebutted by the court's finding of a viable self-defense claim, it would effectively mean there is no murder case in which the presumption could be rebutted, as long as there is probable cause the defendant committed the crime. Defendant maintains that the court properly considered all of the relevant factors in N.J.S.A. 2A:162-20, and self-defense related to two of those factors: the nature and circumstances of the offense charged and the weight of the evidence. II. The focus of the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26, is to "rely[] upon pretrial release by non- monetary means" to achieve the goals of "reasonably assur[ing] an eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, [and] that the eligible defendant will not obstruct or attempt to 8 A-4350-16T6 obstruct the criminal justice process." N.J.S.A. 2A:162-15. However, a prosecutor may file a motion for pretrial detention when a defendant is charged with certain crimes, including murder. N.J.S.A. 2A:162-19(a). When a prosecutor seeks pretrial detention, in most cases there is a "rebuttable presumption that some amount of monetary bail, non-monetary conditions of pretrial release or combination of monetary bail and conditions" would satisfy the three goals of the CJRA. N.J.S.A. 2A:162-18(b). When a prosecutor seeks pretrial detention of a defendant who has not yet been indicted, such as defendant here, the court must first determine whether there is probable cause that the defendant committed the charged offense. N.J.S.A. 2A:162-19(e)(2). Defendant conceded there was probable cause, so this requirement was satisfied. Once the court has found probable cause that the defendant committed murder or any crime for which the defendant would be subject to an ordinary or extended term of life imprisonment, there shall be a rebuttable presumption that the eligible defendant shall be detained pending trial because no amount of monetary bail, non-monetary condition or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process[.] 9 A-4350-16T6 [N.J.S.A. 2A:162-19(b).] The presumption of pretrial detention may be rebutted by a preponderance of the proof "provided by the eligible defendant, the prosecutor, or from other material submitted to the court." N.J.S.A. 2A:162-19(e)(2). "If the presumption is rebutted by sufficient proof, the prosecutor shall have the opportunity to establish that the grounds for pretrial detention exist[.]" Ibid. To establish the grounds for pretrial detention, the prosecutor must show by clear and convincing evidence that no amount of monetary bail, non-monetary conditions or combination of monetary bail and conditions will reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process[.] [N.J.S.A. 2A:162-19(e)(3).] The State did not argue that defendant would obstruct or attempt to obstruct the criminal justice process. Thus, the question is whether defendant rebutted the presumption of pretrial detention. If so, the second question is whether the State proved detention is warranted by clear and convincing evidence. N.J.S.A. 2A:162-20 sets forth factors the court may consider in determining whether monetary bail, pretrial release conditions 10 A-4350-16T6 or a combination of the two, can achieve the goals of the CJRA. Specifically, the court may take into account information concerning: a. The nature and circumstances of the offense charged; b. The weight of the evidence against the eligible defendant, except that the court may consider the admissibility of any evidence sought to be excluded; c. The history and characteristics of the eligible defendant, including: (1) the eligible defendant's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (2) whether, at the time of the current offense or arrest, the eligible defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state; d. The nature and seriousness of the danger to any other person or the community that would be posed by the eligible defendant’s release, if applicable; e. The nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the eligible defendant’s release, if applicable; and 11 A-4350-16T6 f. The release recommendation of the pretrial services program[.] [N.J.S.A. 2A:162-20.] The court here recognized that it must consider the factors set forth in N.J.S.A. 2A:162-20 to reach its decision. Contrary to the State's position, it was proper for the court to consider evidence of defenses to the charged offense that were relevant to the court's pretrial detention determination. Certainly, if defendant has a viable claim of self-defense, that information would be relevant to whether defendant poses a danger to the community or a risk of flight. The liberal construction to be afforded the CJRA, see N.J.S.A. 2A:162-15, would seem to embrace consideration of any relevant evidence regarding the nature and circumstances of the offense and weight of the evidence against the defendant in reaching a pretrial detention decision. The State's argument that requiring it to disprove an affirmative defense would turn the detention hearing into a mini- trial is unpersuasive. Both parties relied on the surveillance video to establish their competing claims of murder and self- defense. We discern no reason why it would be improper for the court, when viewing the video, to consider the arguments of both parties in analyzing the nature and circumstances of the offense and the weight of the evidence. The court could properly draw 12 A-4350-16T6 inferences from the video to determine whether defendant poses a danger to the community or a risk of flight. S.S., supra, 229 N.J. at 380. Further, we reject the State's argument that the evidence should be viewed in the light most favorable to it. Detaining a defendant pretrial is fundamentally different than returning an indictment, as the detention directly and immediately impacts the defendant's liberty interests. United States v. Salerno, 481 U.S. 739, 746-50, 107 S. Ct. 2095, 2101-03, 95 L. Ed. 2d 697, 708-11 (1987); Robinson, supra, 229 N.J. at 68. As our Supreme Court noted, the CJRA is to be "'liberally construed' to effect its purpose [of] rely[ing] primarily on 'pretrial release by non- monetary means to reasonably assure'" that the three goals of the CJRA are achieved. Robinson, supra, 229 N.J. at 55 (quoting N.J.S.A. 2A:162-15). Moreover, "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." Salerno, supra, 481 U.S. at 755, 107 S. Ct. at 2105, 95 L. Ed. 2d at 714. Thus, even where there is a presumption of detention, it would seem incompatible with the liberal construction of the CJRA and a defendant's fundamental interest in liberty to view evidence at a pretrial detention hearing in the light most favorable to the State. 13 A-4350-16T6 The State contends that Pretrial Services' no release recommendation combined with the statutory presumption strongly weighs in favor of detention. However, during oral argument before the Court in State v. S.N., No. A-079320, amicus American Civil Liberties Union of New Jersey (ACLU) argued that under the Judiciary's approved Decision Making Framework (DMF), when a defendant is charged with certain crimes, the Pretrial Services recommendation is always no release irrespective of the ratings on the PSA.1 See C.W., supra, 449 N.J. Super. at 241 n.11 (noting the defendant and ACLU argued that the DMF automatically produced a no release recommendation for certain offenses, including murder). Thus, the presumption and the recommendation are apparently based solely on the offense charged and one should, therefore, not enhance the weight of the other. In arguing that Pretrial Services' recommendation should make the presumption of detention even more difficult to overcome, the State relies on the provision in Rule 3:4A(b)(5) stating that Pretrial Services' no release recommendation is "prima facie evidence sufficient to overcome the presumption of release[.]" Rule 3:4A(b)(5) was the focus of much discussion during oral argument in S.N. The justices questioned how a recommendation 1 S.N. was argued before the Court on September 11, 2017. An opinion is pending. 14 A-4350-16T6 could constitute evidence of flight risk or danger to the community, particularly where it was based only on the crime charged. The justices entertained suggestions from the parties as to whether and how the rule should be revised. In light of the concerns the justices raised about the weight afforded to a no release recommendation and the fact that the recommendation, like the presumption of detention, is apparently based only on the offense charged, we conclude the recommendation cannot increase the burden on a defendant to overcome the presumption of detention. When the Legislature established the burden of proof to overcome a presumption as a preponderance of the evidence, it presumably understood that the recommendation from Pretrial Services for all defendants charged with murder would be no release. The State's reliance on C.W. for its contention that where the presumption of detention is triggered, release should be the "uncommon exception," is also misplaced. In C.W., supra, 449 N.J. Super. at 257, while discussing the clear and convincing burden of proof to overcome the presumption of release, we commented the drafters of the CJRA "presumably chose that high bar to make detention the appropriate result for only a limited group of the most serious cases[.]" However, it does not necessarily follow 15 A-4350-16T6 that where the presumption of detention is triggered, release should be an uncommon exception. Defendants can rebut the presumption of detention by a preponderance of the evidence, which does not pose the same high bar as a clear and convincing standard. Further, nothing in the CJRA suggests any intent to limit a defendant's ability to rebut the presumption beyond his or her ability to convince a court by a preponderance of the evidence that he or she will not flee, obstruct justice, or pose a danger to the community. Once the presumption of detention is rebutted, the same high bar of clear and convincing evidence applies as when there is a presumption of release. Thus, rather than supporting an argument for more expansive detention, our observations in C.W. that the intent of the CJRA is to limit detention to the most serious cases applies equally where there is a presumption of detention. The remaining question is whether the court abused its discretion in finding defendant rebutted the presumption of detention and that there were conditions of release that would reasonably assure his appearance in court when required and the safety of any other person or the community. As to risk of flight, defendant proffered evidence that he was a long-time resident of Irvington, had strong family ties in the area, and was currently on disability after working for a 16 A-4350-16T6 maintenance company. Further, defendant's criminal history showed only one failure to appear in 1998. The State provided no evidence, let alone clear and convincing evidence, that defendant was a flight risk. The State cannot rely on the likelihood that defendant may be facing a lengthy sentence to establish a flight risk; otherwise, no defendant could ever overcome a presumption of detention. As to the risk of danger to any other person and the community, the court found defendant was not the aggressor throughout the incident and it appeared on the video he was acting in self-defense. The court gave significant weight to these findings, which go to the nature and circumstances of the offense and the weight of the evidence, two factors the court properly considered under N.J.S.A. 2A:162-20. While the State faults the court for relying on its "own verdict of self-defense," we find it was appropriate for the court to assess the risk defendant posed to the community based on his behavior captured in the video. The court's observation that it appeared defendant was acting in self-defense was relevant to assessing his risk of danger to the community, regardless of whether defendant could ultimately prove the elements of self-defense. The purpose of the pretrial detention hearing is not to decide whether or not defendant acted in self-defense. The only relevance of defendant's behavior is 17 A-4350-16T6 whether it tends to show that no conditions of release would reasonably assure the safety of any other person or the community. Under the abuse of discretion standard, defendant's behavior on the video does not establish there were no conditions of release that could reasonably assure the safety of any person and the community. Defendant's criminal history was the only other evidence the State relied on that was relevant to this issue. While the court mentioned defendant's criminal history, it made no findings as to whether it weighed in favor or against detention. The court noted that sixteen convictions were for disorderly persons offenses, but defendant also had a few convictions for indictable offenses, such as drug possession and hindering arrest. However, none of defendant's past offenses were for violent crimes. We conclude the court did not abuse its discretion in finding defendant rebutted the presumption of pretrial detention and that home detention with electronic monitoring would reasonably assure defendant's appearance in court when required and the safety of any other person or the community. The court considered all relevant factors and its decision did not reflect an abuse of discretion. Affirmed. 18 A-4350-16T6

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Docket No.: a4791-15
Decided: 2017-11-16
Caption: CYNTHIA JOHNSON v. BRANDYWINE OPERATING PARTNERSHIP, LP
Status: unpublished
Summary:
PER CURIAM Plaintiffs Cynthia Johnson and her husband, Gerald Johnson, appeal from the Law Division's entry of summary judgment in favor of defendants Brandywine Operating Partnership, LP and Brandywine Realty Trust (Brandywine), dismissing plaintiffs' complaint with prejudice. Defendants owned and operated the building and property where Cynthia1 was employed. Plaintiffs' complaint sought damages for injuries Cynthia sustained when she fell on black ice in the parking lot of defendants' property. The motion judge granted defendants' motion after he found that prior complaints of icing in the parking lot were insufficient to constitute constructive notice of icing conditions in the area where plaintiff fell, especially in light of the size of the parking lot. On appeal, plaintiffs argue that the judge erred in granting summary judgment because there was sufficient evidence in the record to establish issues of material fact as to defendants' notice of the icing condition on the property and their failure to correct the problem before Cynthia fell. Plaintiffs also assert that summary judgment was unwarranted 1 We refer to plaintiffs by their first names to avoid any confusion caused by their common surnames. 2 A-4791-15T4 because defendants committed spoliation2 of evidence when they failed to produce a complete copy of the incident report that contained information pertinent to their case. Based upon our de novo review of the motion record, we agree that plaintiffs established material issues of fact that should have defeated summary judgment. We reverse and remand for a trial. The facts set forth in the record, viewed in the light most favorable to plaintiff, see Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)), are summarized as follows. On December 14, 2014, while walking into work, Cynthia was injured when she slipped and fell on black ice in defendants' parking lot, near metal drainage gates in an area that was graded to direct water to flow into the drains. Prior to her fall, precipitation fell and temperatures rose above and fell below freezing over a three-day period. After Cynthia reported her fall on the date of the incident to her employer and defendants, Jeff Hoffner, defendants' building engineer, examined the location where Cynthia fell. 2 A spoliation claim arises when a party in a civil action has hidden, destroyed, or lost relevant evidence that impaired another party's ability to prosecute or defend the action. See Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001). 3 A-4791-15T4 Following the inspection, Kathy Barker, defendants' employee, filled out an incident report based on Hoffner's observations. According to Barker, Hoffner observed safety cones in the area of the fall, but stated that he did not place them. Barker confirmed that the incident report was missing additional information, but she does not remember what is missing.3 Although Hoffner did not have any specific recollection of Cynthia's fall or his inspection, he was aware of prior tenant complaints about icing in portions of the parking lot. According to Hoffner, however, there were no areas on the property where there were small rivulets from runoff, ponding or puddling, or any tendency to ice up near the drains. When he became aware of an icy condition, he would call the property manager or the snow and ice removal contractor. He would not remove the snow or ice himself. Even when it rained and temperatures fell below freezing, he would not expect the snow and ice removal contractor to come to the property. Plaintiffs filed their complaint and when discovery was complete, defendants filed their motion for summary judgment, 3 Defendants contend that they informed plaintiffs of the missing portion of the report before plaintiffs filed their brief. Defendants assert that the complete sentence missing at the bottom of the report read, "Per our building engineer, Jeff Hoffner, he did not put cones up, nor . . . did he remember seeing any black ice in parking lot." 4 A-4791-15T4 arguing that the court should grant their motion because plaintiffs could not "identify the source of the black ice[,]" and defendants had no notice of the condition. Plaintiffs asserted that prior tenant complaints about icing in the parking lot placed defendants on notice, and created a question of fact for a jury. Relying on Hoffner's deposition testimony, the motion judge acknowledged that "[t]he area of the parking lot in question" was known to have icing issues. However, he found that plaintiffs did not meet their burden of proof to demonstrate that the prior complaints related to the specific area where Cynthia fell. The judge also found that plaintiffs' contention was pure speculation, and thus, insufficient to demonstrate that defendants had constructive notice of the hazardous condition. The judge never addressed plaintiffs' spoliation claim that was discussed at oral argument. He entered an order granting defendants' motion for summary judgment and dismissed plaintiffs' complaint with prejudice. This appeal followed. We review the disposition of a summary judgment motion de novo, applying the same standard used by the motion judge under Rule 4:46-2(c). See Cypress Point Condo. Ass'n v. Adria Towers, LLC, 226 N.J. 403, 414-15 (2016) (citations omitted). We consider, as the motion judge did, "whether the competent 5 A-4791-15T4 evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill, supra, 142 N.J. at 540); see also R. 4:46-2(c). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). In our de novo review, we give no deference to the motion judge's legal conclusions. Davis, supra, 219 N.J. at 405 (citing Nicholas v. Mynster, 213 N.J. 463, 478 (2013)). Plaintiffs' complaint alleged Cynthia's injuries were caused by defendants' negligence. "To prevail on a claim of negligence, a plaintiff must establish four elements: (1) that the defendant owed a duty of care; (2) that the defendant breached that duty; (3) actual and proximate causation; and (4) damages." Fernandes v. DAR Dev. Corp., Inc., 222 N.J. 390, 403- 04 (2015) (citation omitted). Generally, negligence will not be presumed; rather, it must be proven. Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 338 (App. Div. 2000). Indeed, there is a presumption against negligence, and "the burden of proving [it] is on the plaintiff." Jerista v. Murray, 6 A-4791-15T4 185 N.J. 175, 191 (2005) (citing Buckelew v. Grossbard, 87 N.J. 512, 525 (1981)). Commercial property owners have a duty to maintain their own property free of dangerous conditions. Qian v. Toll Bros. Inc., 223 N.J. 124, 135-36 (2015). The duty can extend to the removal of snow or ice. Id. at 136 (citing Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983)). "The test is whether a reasonably prudent person, who knows or should have known of the condition, would have within a reasonable period of time thereafter caused the [property] to be in reasonably safe condition." Id. at 395-96. Plaintiff must also prove that "the defective condition was a proximate cause of [her] injuries." Id. at 396. "Whether a commercial property owner had actual or constructive notice of an icy condition on the [property] is for the finder of fact, not a court on a motion for summary judgment." Gray v. Caldwell Wood Prods., Inc., 425 N.J. Super. 496, 503 (App. Div. 2012). "It is for a jury to determine whether the commercial property owner had actual or constructive notice of the dangerous condition." Ibid. (citing Mirza, supra, 92 N.J. at 395-96). Constructive notice is found where "the condition existed 'for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been 7 A-4791-15T4 reasonably diligent.'" Troupe v. Burlington Coat Factory Warehouse Corp., 443 N.J. Super. 596, 602 (App. Div. 2016) (quoting Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957)). Applying these requirements to plaintiffs' proofs on summary judgment, we conclude from our review that there was sufficient evidence in the record from which a reasonable jury could find that defendants had notice of ice in the parking lot for a sufficient amount of time, and failed to remediate the problem before Cynthia's fall. That evidence includes, as recognized by the motion judge, proof that the lot had a history of icing issues, Hoffner's knowledge of prior icing conditions from tenants' complaints, and the presence of safety cones in the area where Hoffner inspected. Notably, Hoffner testified that it was defendants' responsibility to contact the snow removal contractor if they encountered icy conditions. There also existed an issue of fact about whether the grading in the lot caused water to flow to drains near to where plaintiff fell, and if it had the potential to turn to ice under freezing temperatures. There was also evidence from which a jury could have inferred the ice was present for a sufficient length of time such that a reasonably diligent employee acting on defendants' 8 A-4791-15T4 behalf should have observed and remedied the condition. Plaintiffs provided weather reports demonstrating that "over ½ inch of rain" fell and temperatures periodically dropped below freezing on days prior to the incident in question. Defendants disputed those reports and provided evidence that contradicted plaintiffs' allegations of freezing rain. The issue of whether there was any freezing rainfall was probative of whether defendants had notice of the condition and the length of time the condition existed, if at all, without remediation efforts. The parties' dispute about the facts asserted by plaintiffs in their opposition to summary judgment had to be resolved by a jury. Under these circumstances, we are constrained to reverse the entry of summary judgment in favor of defendants. Because of our decision to reverse the entry of summary judgment, we have no reason to address plaintiffs' claim of spoliation. We observe only that defendants have apparently provided the alleged missing information. Nevertheless, our decision not to address the claim is without prejudice to plaintiffs raising the issue again before the motion judge, if they wish to pursue that claim. Reversed and remanded for trial. We do not retain jurisdiction. 9 A-4791-15T4

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Docket No.: a5001-14
Decided: 2017-11-16
Caption: STATE OF NEW JERSEY v. MALIK R. SMITH
Status: unpublished
Summary:
PER CURIAM Defendant appeals from a May 21, 2015 order of the court denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm substantially for the reasons set forth by Judge Mark H. Sandson in his detailed written opinion. A jury convicted defendant of a 2003 double-murder that occurred when defendant was in the process of committing an armed robbery in a bar. He shot and killed the bartender, who in turn shot and killed another robber. The murder weapon was found disassembled in defendant's girlfriend's residence. The girlfriend testified against defendant as part of her plea agreement. Defendant was sentenced to sixty-six and one-half years in prison, fifty-one of the years to be served without parole. We affirmed. State v. Smith, No. A-1539-06, (App. Div. Jan. 9, 2009). Our Supreme Court denied defendant's petition for certification, 205 N.J. 520 (2011). We granted the appeal of his timely PCR application because "his PCR counsel ignored defendant's arguments contained in his pro se PCR brief" and did not provide the PCR judge with the complete trial transcript. State v. Smith, No. A-4371-11 (App. Div. June 19, 2014). We remanded to the trial court, which denied relief after oral argument. Defendant now appeals, raising the following issues: POINT I: THE PCR COURT ERRED WHERE IT FOUND THE DEFENDANT DID NOT ESTABLISH A PRIMA FACIE CASE THAT HE WAS DENIED A FAIR TRIAL DUE TO THE FAILURE OF TWO JURORS TO DISCLOSE DURING VOIR DIRE THEIR PRE-TRIAL KNOWLEDGE OF THE 2 A-5001-14T4 DEFENDANT AND THE CRIME, THEREBY REQUIRING AN EVIDENTIARY HEARING. POINT II: THE PCR COURT ERRED WHERE, WHEN DECIDING THAT THE TRIAL COURT'S EX PARTE POST- CONVICTION COMMUNICATION WITH THE JURY WAS PROCEDURALLY BARRED, IT DID NOT CONSIDER WHETHER A FUNDAMENTAL INJUSTICE RESULTED FROM THE FAILURE OF THE TWO JURORS TO DISCLOSE DURING VOIR DIRE THEIR PRETRIAL KNOWLEDGE OF THE DEFENDANT AND THE CRIME. POINT III: THE DEFENDANT INCORPORATES HEREIN ALL OF HIS REMAINING ARGUMENTS FOR POST- CONVICTION RELIEF. New Jersey courts follow the rule formulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To show ineffective assistance a defendant must identify acts or omissions showing unreasonable professional judgment, and then must show that these errors had a prejudicial effect on the conviction. State v. Fritz, 105 N.J. 42, 58 (1987). The same standards are applied to ineffective assistance of appellate counsel claims. State v. Harris, 181 N.J. 391, 518 (2004). In reviewing claims of ineffective assistance of counsel, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve 3 A-5001-14T4 to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392, 402 (1980)). "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006). "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). "[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial." State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 N.J. at 314). Both PCR counsel, who submitted a brief, and defendant, via a pro se brief and an undated letter to the PCR court, set forth a wide variety of claims of ineffective assistance of trial and appellate counsel, as well as various alleged errors committed by the trial court. Defendant claimed he was given constitutionally 4 A-5001-14T4 ineffective assistance of trial counsel because his lawyer failed to: 1) communicate the State's plea offer; 2) present key witnesses on behalf of defendant or adequately cross-examine the State's witnesses; 3) object to the absence of a Bible when the witnesses testified; and 4) request a mistrial after the first day of deliberations when the jury advised that it was "deadlocked." Defendant claimed his appellate attorney was ineffective by failing to raise the following appellate issues: 1) the trial court allowed the State, over objection, to mischaracterize the evidence and introduce personal expression or beliefs; 2) the trial court should have charged the jury on the lesser included offense of attempted robbery; 3) the trial court should have permitted into evidence the entire transcript of the 911 call; 4) the trial court should have dismissed the indictment because it was based on perjured testimony; and 5) the trial court should have dismissed the conspiracy count because the State did not present evidence of an overt act. Defendant repeated his claims of trial error in his undated letter to the PCR court. PCR counsel argued to the PCR court that the trial judge erred in: 1) having improper ex parte contact with the jury post-verdict; 2) denying defendant a fair trial based on two jurors failing to disclose their pre-trial knowledge of defendant and details of the case; 3) providing erroneous jury 5 A-5001-14T4 instructions, and 4) failing to provide proper curative instructions. Defendant argues before us on appeal that he was entitled to an evidentiary hearing regarding these same issues. Judge Sandson reviewed the issues raised in detail and discussed why no issue raised a prima facie showing meriting an evidentiary hearing. "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997). The PCR judge, who was furnished with the entire trial transcript, reviewed in detail the most significant issues raised and we affirm on the basis of his thorough decision. With regard to the issues raised by defendant not addressed with specificity by the PCR judge, none had sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 6 A-5001-14T4

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Docket No.: a5538-15
Decided: 2017-11-16
Caption: RICHARD MARANO v. THE HILLS HIGHLANDS MASTER ASSOCIATION, INC
Status: unpublished
Summary:
PER CURIAM The Hills Highlands Master Association, Inc., appeals an order that confirmed a retired superior court judge's disposition of the parties' disputes. The Association chiefly argues that the motion judge erred in determining that what the retired judge issued was an arbitration award. Having closely examined the parties' arguments in this unusual circumstance, we conclude that the parties did in fact submit their disputes to binding arbitration and that the motion judge correctly confirmed that award. The underlying dispute has its genesis in a flooding condition in the backyard of plaintiffs Richard and Eileen Marano. Plaintiffs' property is contained within the Hills Highland development in Basking Ridge; their property and their relationship with the Association is governed by the Association's bylaws, which arguably include an arbitration provision. The parties eventually agreed to a resolution of their disputes through the involvement of a retired judge. After those proceedings were completed, the retired judge rendered an arbitration award, which, among other things, directed that the Association hire a contractor to make the repairs described in an engineering report and advance the funds for the work subject to reimbursement from numerous other affected lot owners who were not parties to any of the prior proceedings. The Maranos thereafter commenced this summary action for the confirmation of the arbitration award. In confirming the award, 2 A-5538-15T1 the motion judge concluded, as stated in her letter-opinion, that although at times the parties' use of the words "arbitration" and "mediation" in the record had been inconsistent, there was no question but that the parties engaged in binding arbitration before the retired judge. The Association appeals, arguing: I. THE NEW JERSEY ARBITRATION ACT AND N.J.S.A. 2A:23B-22 DO NOT APPLY IN THIS MATTER. A. The ADR Procedure Invoked By the Maranos Does Not Apply to the Association. B. The Association Never Entered Into An Agreement to Arbitrate. II. EVEN IF NEW JERSEY ARBITRATION ACT APPLIED THE DECISION OF [THE RETIRED JUDGE] MUST BE VACATED UNDER N.J.S.A. 2A:23B-23(a)(2) AND (4).[1] III. EVEN ASSUMING THE TRIAL COURT WAS CORRECT TO CONFIRM [THE RETIRED JUDGE'S] DECISION THE TRIAL COURT'S ORDER IMPERMISSIBLY EXPANDS THE DECISION AND THE RESPONSIBLE PARTIES. IV. ASSUMING A VALID, BINDING ARBITRATION AWARD, THE TRIAL COURT COULD NOT CONFIRM AN AWARD ASSESSING DAMAGES AGAINST NINETY-EIGHT HOMEOWNERS WHERE THE MARANOS FAILED TO INCLUDE NINETY-SEVEN OF THEM AS PARTICIPANTS IN THE ADR PROCEEDINGS. 1 In Point II, the Association argues that plaintiffs' property- damage claim was time-barred. The Association recognized in its point heading that this statute-of-limitations argument was not raised in the trial court. 3 A-5538-15T1 We find insufficient merit in Points I, II and IV to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments about: (1) the Association's contention that the parties did not arbitrate but instead merely mediated their disputes; and (2) whether the arbitration award or the order under review may bind those property owners who were not parties to either the arbitration or confirmation proceedings. I We first consider whether the parties agreed to submit their disputes to binding arbitration as argued by plaintiffs, or whether they merely agreed to mediate as asserted by the Association. To the extent there is a colorable argument as to what the Association bylaws compel, the record is clear that the parties agreed to arbitrate, not mediate. On March 11, 2014, plaintiffs' attorney wrote to the Association's attorney to demand "arbitration" regarding their disputes about the flooding situation. When no response was received within the few weeks that followed, plaintiff's attorney wrote again on April 1, 2014, stating that unless he received confirmation that the Association's attorney was "in the process of arranging for the arbitration proceeding as requested, [his] clients will have no alternative but to commence a summary action 4 A-5538-15T1 pursuant to N.J.S.A. 2A:23B-7 to have the [c]ourt order the Association to arbitrate" (emphasis added). On that same date, the Association's attorney responded by contesting certain of plaintiffs' factual allegations and by asserting that the Association was not obligated to participate in arbitration, but nevertheless, while reserving the Association's rights, counsel stated its willingness to "participate in ADR to permit an objective third party to clarify what is already known to all parties involved: the true dispute lies between the Maranos and Molanders."2 When nothing immediately occurred, plaintiffs' attorney wrote to the Association's attorney on April 21, 2014, seeking information regarding the status of their contemplated proceeding, "confirm[ing] that we [will] go forward with an ADR proceeding," and identifying that procedure as "an arbitration hearing to be conducted . . . by a [h]earing [o]fficer who serves as an arbitrator" (emphasis added). On May 8, 2014, the Association's attorney responded by suggesting, among other things, that it was the Association that had the authority to appoint the hearing officer; he proposed either an identified attorney or the retired 2 The Molanders were other property owners in the development that were given notice of the arbitration and the proceedings that followed. 5 A-5538-15T1 judge, who was later retained for that purpose. On June 16, 2014, the Association's attorney wrote to the retired judge to inquire as to his availability and willingness to serve as "the arbitrator" in the process described in the Association's resolution for alternate dispute resolution. Certainly, everything up to this chronological point demonstrates the parties agreed to arbitrate. The uncertainty, unfortunately, arose after the retired judge accepted the appointment, when he forwarded a form agreement that called for mediation. Indeed, that document, which was entitled "civil mediation agreement," was what the parties executed. But plaintiffs' counsel, in returning this executed document on July 16, 2014, wrote to the retired judge to point out that although the document "refer[red] to this proceeding as a 'mediation,'" plaintiffs "believe[d] that it is properly an arbitration proceeding for which you will be asked to render an award." The Association's counsel never responded or questioned plaintiffs' assertion as to the nature of the retired judge's undertaking. The record also contains numerous other communications, all of which referred to the proceeding before the retired judge as an arbitration. The Association never disputed or quarreled with those references. Indeed, on February 10, 2015, the Association's attorney wrote to an engineer retained by the parties to determine 6 A-5538-15T1 the cause of the flooding problem; therein, the Association's attorney referred to the fact that "the parties are currently in the middle of an arbitration" and requested certain information "in the near future so that the parties may resume arbitration" (emphasis added). When the proceedings were completed, the retired judge rendered a decision which was entitled "Award In Arbitration." There is no evidence in the record on appeal to suggest that the Association ever asserted that the parties were merely mediating and were not arbitrating their disputes. Consequently, the motion judge properly rejected the Association's argument that the parties had never arbitrated their disputes. With the exception of the retired judge's mistake in having the parties execute a document memorializing the terms of a "civil mediation," there is no doubt that the parties agreed to and in fact participated in binding arbitration. II The Association poses interesting questions about the impact of the arbitration award and the order under review on individual property owners who were not parties to either proceeding. We do not, however, reach those issues if for no other reason than the fact that those nonparties are not parties to this appeal as well. 7 A-5538-15T1 If any nonparty is aggrieved by the fact or manner in which their rights have been adjudicated by either the arbitrator or the motion court, whether they are so bound will be determined when or if they ever present those grievances. Affirmed. 8 A-5538-15T1

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Docket No.: a0345-16
Decided: 2017-11-15
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the EUGENE J. PAYOR AND JOANN WILCZYNSKI v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY
Status: unpublished
Summary:
PER CURIAM Plaintiffs, Eugene Payor and Joann Wilczynski, appeal from an August 12, 2016 order granting summary judgment in favor of defendant, New Jersey Manufacturers Insurance Company. We discern the following facts from the summary judgment record. In February 2011, plaintiff Wilczynski noticed a shower curtain rod had pierced the wall in her first-floor bathroom. She called defendant to report the issue and a plumber to repair the damage. On March 1, 2011, defendant sent Tri-State Insurance Adjusters, Inc., (Tri-State) to inspect plaintiffs' home. Tri- State concluded a ruptured pipe underneath the first-floor bathroom was the origin of the damage and confirmed water damage to the interior of the home and to plaintiffs' personal property. A few days later, a plumber arrived to fix the leak. Upon removing the shower, several walls, and the flooring, the plumber noticed the plywood underneath the floor was soaking wet and rotted. He repaired the leaking pipes and left the area exposed for Tri-State to further inspect. On April 12, 2011, Tri-State retained Mark 1 Restoration, Inc., (Mark 1) to investigate the damage. Mark 1's project manager found visible mold spores on rotted plywood subflooring beneath the first-floor bathroom and determined the source of the damage 2 A-0345-16T2 was a "probable diverter leak in the shower wall which softened the wall causing the curtain rod to run through the wall." After reviewing Mark 1's report, defendant determined plaintiffs' additional damages were limited to $10,000 because of a mold rider in their homeowners policy. Defendant issued plaintiffs a $10,000 check for the mold damage in addition to $9,944.53 for plaintiffs' damaged personal property. On December 9, 2014, plaintiffs filed a complaint asserting breach of contract and seeking declaratory relief that the $10,000 coverage limit in the mold rider did not limit their claim. Both parties moved for summary judgment. On August 12, 2016, the trial court denied plaintiffs' motion and granted defendant's cross- motion for summary judgment. Plaintiffs appeal, arguing genuine issues of fact precluded summary judgment and the trial court misinterpreted the insurance policy. Plaintiffs also assert their personal property claim remains in dispute and public policy should favor the insured over the insurer. We have considered these arguments in light of the record and applicable legal principals and find them unpersuasive. We therefore affirm. I. When we review a grant of summary judgment, we use the same standard as that of the trial court. Globe Motor Co. v. Igdalev, 3 A-0345-16T2 225 N.J. 469, 479 (2016). A court should grant summary judgment, "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Ibid. (citing R. 4:46-2(c)). The evidence must be viewed in "the light most favorable to the non-moving party." Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012). Plaintiffs assert the mold rider does not limit recovery because the homeowners policy is susceptible to differing interpretations, which should be construed against defendant. In interpreting an insurance policy, we "start with the plain language of the policy and 'give the words their plain, ordinary meaning.'" Hardy ex rel. Dowdell v. Abdul-Matin, 198 N.J. 95, 101 (2009) (quoting President v. Jenkins, 180 N.J. 550, 562 (2004)). "Even exclusionary provisions are presumptively valid and will be given effect if specific, plain, clear, prominent, and not contrary to public policy." Id. at 102 (citations omitted). "In the absence of any ambiguity, courts should not write for the insured a better policy of insurance than the one purchased." Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001) (quoting Gibson v. Callaghan, 158 N.J. 662, 670 (1999)). If an ambiguity exists, it must be resolved against the insurer. Di Orio v. N.J. Mfrs. Ins. Co., 79 4 A-0345-16T2 N.J. 257, 269 (1979). An ambiguity arises "where the phrasing of the policy is so confusing that the average policyholder cannot make out the boundaries of coverage." Lee v. Gen. Accident Ins. Co., 337 N.J. Super. 509, 513 (App. Div. 2001) (citing Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979)). Here, there is no ambiguity. The homeowners policy in effect at the time of the incident insured against loss to property from water as a result of damaged plumbing, but specifically excluded mold or "fungi, wet or dry rot or bacteria." The policy also included an anti-concurrent/anti- sequential causation clause (sequential clause) applicable to the policy's exclusions. The sequential clause excluded "fungi, wet or dry rot or bacteria", regardless of any other cause or event contributing concurrently or in any sequence to the loss. The policy also contained a rider which gave back some excluded mold coverage, on a limited basis up to $10,000. The trial judge correctly applied the sequential clause to plaintiffs' claim because the policy was written to provide coverage for damage from the broken pipe, but expressly limited additional recovery to $10,000 when an undetected leak caused mold and rot. By combining the sequential clause and the mold exclusion, the trial court reasoned plaintiffs' recovery was restricted to the mold endorsement's limit of $10,000. We agree. 5 A-0345-16T2 Sequential clauses resolve coverage issues, where two perils, one covered and one excluded, contribute to cause one loss. Sequential clauses are enforceable in New Jersey. See Simonetti v. Selective Ins. Co., 372 N.J. Super. 421 (App. Div. 2004); Assurance Co. of America v. Jay-Mar, Inc., 38 F. Supp. 2d 349 (D.N.J. 1998). Noting a lack of prohibition from the New Jersey Supreme Court, the United States District Court for the District of New Jersey found New Jersey would follow the majority rule that sequential clauses are enforceable. Assurance, supra, 38 F. Supp. 2d at 354. In particular, the court stated "there is no violation of public policy when parties to an insurance contract agree that there will be no coverage for loss due to sequential causes even where the first or the last cause is an included cause of loss." Ibid. We endorsed the District Court's reasoning in Simonetti, supra, 372 N.J. Super. at 431. Accordingly, we find the same rationale applicable here. Plaintiffs assert defendant had the burden of proving the $10,000 mold exclusion applied and contend the trial court erred because it allowed defendant to satisfy its burden by showing mold was present, instead of showing it was the cause of the damage. "The insurer has the burden of establishing application of an exclusion." Cobra Prods., Inc. v. Fed. Ins. Co., 317 N.J. Super. 392, 401 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999) 6 A-0345-16T2 (citing Hartford Acc. & Indem. Co. v. Aetna Life & Cas. Ins. Co., 98 N.J. 18, 26 (1984)). Defendant submitted the Mark 1 report in support of summary judgment and established the presence of mold spores in the first-floor's plywood subflooring. Consistent with the language of the sequential clause, defendant satisfied its burden because mold was a concurrent part of the damage. We reject plaintiffs' assertion that defendant had to show mold was the sole cause of loss, or at least caused an increase in loss, for the exclusion to apply. Plaintiffs argue material facts exist as to the extent of damage caused by the mold and whether the mold existed when the damage was reported. Because the sequential clause applies and defendant demonstrated, through the unrebutted Mark 1 report, mold was a sequential part of the loss, there are no material relevant facts in dispute. II. Plaintiffs argue their personal property claim remains in dispute because the trial court did not consider it when granting summary judgment for defendant. However, we are confined to the summary judgment record and plaintiffs did not raise this argument in opposing defendant's motion for summary judgment. Lombardi v. Masso, 207 N.J. 517, 542 (2011) (citing Ji v. Palmer, 333 N.J. Super. 451, 463-64 (2000)). 7 A-0345-16T2 Any additional arguments introduced by plaintiffs are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 8 A-0345-16T2

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Docket No.: a0847-16
Decided: 2017-11-15
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3 FRANCIS SCARDILLO v. DAVID INN
Status: unpublished
Summary:
PER CURIAM Plaintiff Francis Scardillo appeals a summary judgment that dismissed her personal-injury complaint against defendant PM Contractors. We affirm because, as a matter of law, plaintiff could not establish PM's alleged wrongdoing proximately caused her injuries. It is undisputed that plaintiff contracted with PM to install a new fence on her property. Although apparently disputed, we assume, as required by the applicable standard,1 that the parties' contract required that PM remove the old fence and that PM failed to do so. The adjoining property owner, defendant David Innaccone asked plaintiff about the removal of the old fence. Plaintiff, unaware the old fence had not been removed, pursued the matter with PM but without immediate success. Plaintiff then took matters in her own hands. With Innaccone's permission, plaintiff, her nephew, and her daughter's boyfriend, walked around the new fence and onto Innaccone's property for the purpose of removing the old fence. Plaintiff stepped into a hole on Innaccone's property, fracturing an ankle and a toe. There is no allegation that the hole in Innaccone's property was the result of PM's performance of the contract to install the new fence. Plaintiff instead claims that PM is responsible for her 1 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). 2 A-0847-16T2 injuries because she would not have entered Innaccone's property but for PM's failure to remove the old fence. The trial judge rejected this argument and granted summary judgment in PM's favor. Plaintiff appeals,2 arguing the existence of a triable issue as to whether it was foreseeable that plaintiff would be injured due to PM's alleged failure to remove the old fence. We find insufficient merit in plaintiff's argument to warrant further discussion in this opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons set forth by Judge James Den Uyl in his thorough and well-reasoned written decision. Affirmed. 2 Plaintiff's claim against Innaccone was settled, and her claim against defendant Pool Town was dismissed by way of a summary judgment that has not been appealed. 3 A-0847-16T2

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Docket No.: a1155-15
Decided: 2017-11-15
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. SHANIQUA A. PIERRE, a/k/a SHEEK
Status: unpublished
Summary:
PER CURIAM Defendant Shaniqua A. Pierre pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). During her colloquy with the judge, defendant denied taking any drugs or alcohol that might have affected her ability to think clearly that day, evidenced an understanding of her rights and the terms of the plea bargain and indicated she was knowingly and voluntarily pleading guilty. Defendant filed a pro se request to withdraw her plea prior to sentencing, claiming she suffered from bi-polar disorder and had not taken her medications for some period prior to pleading guilty. Noting that she had some contact with the jail regarding defendant's "psychiatric issue[s]," defense counsel requested an adjournment to review defendant's complete medical records. The judge denied the adjournment, considered the factors enunciated in State v. Slater, 198 N.J. 145, 158-62 (2009), denied defendant's motion to withdraw her guilty plea and sentenced her in accordance with the plea bargain to twenty-five years' imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Our colleagues heard defendant's appeal of her sentence on the Excessive Sentence Oral Argument calendar. They remanded the matter to the trial court to permit defendant to "renew her motion to withdraw her guilty plea . . . with supporting medical records and any other appropriate amplified proofs." State v. Shaniqua A. Pierre, order remanding matter to trial court, No. A-2225-11 (App. Div. Nov. 13, 2012). 2 A-1155-15T3 On remand, the judge conducted a hearing, at which Dr. Edward J. Dougherty, a forensic psychologist, and defendant testified. Based on his review of defendant's medical records and clinical interview, Dr. Dougherty concluded defendant suffered from bipolar disorder and schizoaffective disorder. Dr. Dougherty opined that defendant would have exhibited observable symptoms of her illness had she not been taking her medication at the time she pled guilty. Defendant testified that although she was given the medication at the jail, she "cheek[ed] it," i.e., kept it in her mouth without swallowing and sold it instead. The judge did not believe defendant's testimony. He found that although she claimed to have stopped taking her medication, defendant exhibited no decompensating symptoms during the plea allocution, which had been video recorded. He again denied defendant's motion to withdraw her guilty plea and reaffirmed his findings of aggravating and mitigating sentencing factors in support of the sentence imposed. Defendant did not file a direct appeal, but, instead, filed a pro se petition for post-conviction relief (PCR). She alleged trial counsel provided ineffective assistance (IAC) by failing to psychiatrically evaluate defendant and assert a diminished capacity defense. Defendant claimed that she would not have pled guilty had counsel performed adequately. 3 A-1155-15T3 PCR counsel was appointed and filed an extensive brief in support of the petition raising other arguments, including trial counsel's failure to file a direct appeal following the remand hearing and trial counsel's concession during the remand hearing that defendant did not assert a "colorable claim of innocence." See Slater, supra, 198 N.J. at 158-59.1 The PCR judge, who was not the trial judge, granted defendant an evidentiary hearing. Defendant testified and called Dr. Kenneth Weiss, a forensic psychiatrist, and trial counsel as additional witnesses. Defendant again stated that she never took her medications and sold them inside the jail instead. After her motion to withdraw was denied following remand, she advised her attorney she wanted to appeal. Dr. Weiss concluded that at the time of her guilty plea, defendant's "mental state was impaired to the point that . . . the waiver of rights and the guilty plea, were neither knowing, intelligent nor voluntary." Trial counsel testified that the State's evidence against defendant was very strong, and she urged defendant to accept the plea bargain. She never sought defendant's medical records until 1 Apparently, the petition was supported by a certification from trial counsel that is not in the appellate record. However, in her oral decision granting defendant an evidentiary hearing, the PCR judge referenced some of the certification's contents. 4 A-1155-15T3 defendant filed her pro se motion to withdraw her guilty plea. Counsel thought that was a terrible idea and so advised defendant. Counsel believed defendant had no "colorable claim of innocence" and acknowledged conceding that point during the remand hearing, arguing instead on remand that defendant's guilty plea was not voluntarily given. Counsel did not recall Dr. Daugherty's testimony, but she claimed our remand order required defendant "do something" by way of further medical proof or withdraw the application. Defendant refused to withdraw her motion to retract her guilty plea. In the end, counsel was not "excited about bringing [Dr. Daugherty] before the court." Lastly, counsel acknowledged that she did not file a direct appeal following the remand, but stated defendant never asked her to do so. In a thorough oral opinion, the PCR judge found defendant and Dr. Weiss were not credible witnesses. The judge also found trial counsel was credible. Based upon her review of defendant's guilty plea, the judge concluded defendant voluntarily and knowingly pled guilty. The judge conducted her own analysis of the Slater factors and rejected any claim that defendant should be permitted to withdraw her guilty plea or that trial counsel's performance was deficient. 5 A-1155-15T3 Before us, defendant raises a single point: THE LOWER COURT ERRED IN DENYING DEFENDANT'S REQUEST TO WITHDRAW HER PLEA BARGAIN Having considered the argument, we affirm. Although defendant continues to assert an IAC claim, she fails to explain exactly how trial counsel was deficient. Rather, defendant's complete legal argument is as follows: It was an abuse of discretion for the lower court to discard the opinion of the medical expert. Dr. Weiss opined that, to a reasonable degree of psychiatric certainty, [defendant] was not acting in a knowing and voluntary manner at the time of her plea and should have been able to retract her plea. Based on the doctor's opinion, the lower court should have withdrawn the plea and granted [defendant] a jury trial. There are several reasons why this argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). Defendant's challenge to the denial of her motion to withdraw her guilty plea following the remand hearing was never raised on direct appeal, even though it could have been. It is, therefore, barred by Rule 3:22-4 (generally barring PCR relief on a "ground . . . not previously asserted" unless the claim "could not have been raised in any prior proceeding" or "enforcement of the bar . . . would result in [a] fundamental injustice"). Defendant would be entitled to relief from this procedural bar if trial counsel provided ineffective assistance by not filing 6 A-1155-15T3 an appeal when requested. See State v. Perkins, 449 N.J. Super. 309, 311 (App. Div. 2017) ("[T]rial counsel's failure to file a direct appeal when requested by the defendant is presumed prejudicial and constitutes ineffective assistance of counsel" permitting a defendant to file a direct appeal out of time). Here, however, the PCR judge found as a fact defendant never asked trial counsel to file an appeal after the denial of her motion to withdraw her guilty plea following remand. Most importantly, even if, for example, we considered Dr. Weiss's report as newly discovered evidence making the argument cognizable at this point, the PCR judge carefully detailed the reasons why she rejected Dr. Weiss's opinion. "We defer to the findings of the PCR court in weighing witness testimony when those findings are supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 553 (2013). That was the case here. Affirmed. 7 A-1155-15T3

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Docket No.: a1183-15
Decided: 2017-11-15
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the MICHAEL JACOB v. CAMDEN COUNTY and COURIER POST
Status: unpublished
Summary:
PER CURIAM Prior to oral argument we were advised this matter settled and the parties stipulated to the dismissal of this appeal. Accordingly, the appeal is dismissed with prejudice and without costs. 2 A-1183-15T1

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Docket No.: a1394-16
Decided: 2017-11-15
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the BRIAN KIMMINS and PATRICIA KIMMINS, his wife, JOSEPH NATOLI, and JANICE NATOLI his wife, STEVEN HEGNA
Status: unpublished
Summary:
PER CURIAM Defendants Michael and Lori Centrella appeal from the October 28, 2016 Law Division order vacating the Borough of Brielle Planning Board (Board) resolution, which granted defendants' application to divide their existing single lot into three lots, along with ancillary variance relief from municipal zoning ordinances. We affirm. I. The following facts are relevant to our review. Defendants purchased the subject property in 2001. Slightly larger than one acre at 46,618 square feet, and 185.45 feet wide, the cork-shaped property lies at the corner of two roads – one to the west and one to the south, and adjacent to the Manasquan River to the east. When defendants purchased the property, it contained a "main dwelling," "a guest cottage," "a two-car garage," and "a large swimming pool." Within a year of the purchase, defendants demolished the main dwelling and swimming pool. In 2012, Hurricane 2 A-1394-16T3 Sandy severely damaged the guest cottage, causing defendants to move out of the cottage for almost one year. At the time of the Board's proceedings, defendants lived in the guest cottage, which sits 2.57 feet from the northern property line. Upon finalization of their subdivision plan, defendants intended to build a house on the middle lot and tear down the guest cottage. In November 2014, defendants applied to the Board for approval to divide their property into three lots; notably, their application required two variances. The Board addressed defendants' application in a hearing that extended over three Board meetings. On March 10, 2015, the first hearing date, defendants presented testimony from two expert witnesses. The first expert, a professional engineer and planner, testified the property needed a "pre-existing nonconforming" variance for the "guest cottage" because it sits 2.57 feet from the northern property line. He also said defendants' plan required a variance because the southern lot would measure only 34.23 feet wide, but the ordinance required a minimum sixty-foot width; the other two lots would conform, measuring 75.14 and 75.76 feet wide. He further noted the three lots would nevertheless satisfy the ordinance's total-area requirements. 3 A-1394-16T3 Defendants' second expert, a licensed professional planner, addressed defendants' application for a variance under N.J.S.A. 40:55D-70(c)(1), which authorizes a board of adjustment to grant a variance for "exceptional and undue hardship." He explained defendants' plan would create three lots which fully conform with the exception of the fact that there is a technical lot width variance on the largest lot, the corner lot, . . . where if . . . you measure the lot width at the setback[,] it's . . . a little over 34 feet, and the ordinance requires 60 [feet]. But then when you look at the rest of the parcel, clearly, that parcel is substantially large. It's a very large building envelope on it. So it's clearly a lot that would be envisioned by your ordinance to be a buildable building lot. He added, "[I]t's much more consistent with the character of the zone than . . . what could be done with a fully conforming subdivision." He therefore concluded, "[T]here is a practical and undue hardship that is associated with the configuration of the lot that inhibits the extent to which [defendants] can use the property." The expert then discussed the application for a variance under N.J.S.A. 40:55D-70(c)(2), which authorizes granting a variance when "the benefits of the deviation would substantially outweigh any detriment." He asserted defendants' plan did not have any "substantial negative impacts." He explained the three 4 A-1394-16T3 lots would "be very consistent with the character of the other lots in this zone." He added that the plan would eventually get rid of defendants' nonconforming "guest cottage," and would further the purposes of Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-2. At the conclusion of the testimony of defendants' second expert, the Board opened the meeting to "any members of the public [who] have questions." The Board did not inquire whether anyone wanted to present any testimony or evidence regarding the application. Nor did the Board announce the closure of the evidentiary portion of the hearing. One member of the public asked defendants' second expert some questions, but none of any relevance to this appeal. The chairperson then said, "[W]e have to open up for public comments[,] and there's a lot of people here. I just don't feel like rushing people."1 He consequently adjourned the proceedings. On April 14, 2015, the second hearing date, plaintiffs attended with their attorney, who advised the Board that he intended to have a public planner testify on plaintiffs' behalf. The Board's chairperson responded, "This is the open public 1 The record suggests the Board follows a general rule of allocating forty-five minutes to an application; if not completed, the Board adjourns the matter to their next meeting date. 5 A-1394-16T3 meeting. There's no . . . section here for you to call your planner. The other [section,] that was closed at the lasting meeting. It was opened for public comment[,] and the comment was on the testimony that was given prior." Plaintiffs' attorney repeated his request to have plaintiffs' public planner expert testify. The chairperson replied, "This is the public portion. It's for public comment. The hearing portion of it was closed at the last meeting. Everybody was noticed. Nobody showed up . . . with a planner to oppose this." The attorney representing defendants then stated: What this Board may not be aware of[,] and what [plaintiffs' attorney] may not be aware of, too, is that the [o]bjectors had an attorney here last time. There was an attorney[,] [i]ntroduced himself, told me he was representing the [o]bjectors, and nothing was said. And so it is [not] as if they didn't have an opportunity before it was closed. It isn't as if they weren't represented by counsel. Counsel chose, for whatever reason, not to make an appearance before the Board. He was here[,] and he introduced me as having represented the same people. Contrary to the representation of defendants' attorney, the transcript does not indicate the Board ever closed the evidentiary portion of the hearing. After plaintiffs' attorney raised an issue regarding jurisdiction, Brielle's mayor — a member of the Board — interjected, and said, "I'm going to make the following suggestion 6 A-1394-16T3 . . . . I cannot see jeopardizing the Borough's position at this point . . . . I would suggest that we adjourn . . . this portion of the hearing until next meeting to give our legal and engineering experts time to review these questions[,] . . . and then we proceed next month." The Board agreed and postponed the hearing "to the next meeting." On June 9, 2015, the third hearing date, the Board's recording secretary asked defendants whether they wanted to present any "testimony[,] . . . and the answer was no."2 The chairperson "then turned to [plaintiffs' attorney] and told him the public portion of this hearing was closed[,] and no further testimony will be heard." The chairman then announced, "[T]he Board is asking that each person speak for [three] minutes only so everyone who wishes can make a comment." Plaintiffs' attorney reiterated his request to have plaintiffs' expert testify, and noted the expert "is a resident of Brielle." The Board rejected the request and approved "a motion to allow public comments only" on the testimony already given. Plaintiffs' counsel then asked the Board to give his planner more 2 After the audio recording for the third meeting proved defective, the parties stipulated the court and counsel "shall rely on the official minutes of the June 9, 2015 Meeting of the Borough of Brielle Planning Board as well as planning testimony outline of [p]laintiff's [e]xpert." 7 A-1394-16T3 than three minutes to speak. When plaintiffs' counsel asked to mark charts he brought for identification, the mayor responded "there is no more testimony." Plaintiffs' counsel said his clients "were being denied their right to present their case[,] and this is a denial of their Constitutional rights." The Board proceeded to hear "public comment" from eight residents, six who opposed the application and two who spoke in favor of it. The Board then voted on whether to approve defendants' application, with five members voting yes and two members voting no. On July 14, 2015, the Board adopted a resolution granting defendants' application for the subdivision and two variances. The Board concluded defendants were "entitled to C1 relief due to the features existing which uniquely affect this specific piece of property and due to peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the developer of such property." The Board reasoned: [A]s it relates to the first requested variance, there is a preexisting conformity [sic] as it relates to the guest house which lawfully exists on the lot and that, furthermore, this existing condition will be extinguished once the guest house is demolished per [defendants'] stated intention. As it relates to the second aforementioned variance, the Board notes that because of the width of the lot adjacent to [the western street], one would not be 8 A-1394-16T3 permitted to have four (4) conforming lots, an issue which presents a hardship. Nothing can be done to increase the frontage along [the western street]. Given the unique pie- shaped dimensions of the subject parcel, the Board further notes [defendants have] sought to create three (3) lots which fully conform to the [z]oning ordinance, with the exception of the lot width variance on . . . the corner lot. The Board notes that it would be impossible for [defendants] to acquire additional property in order to meet the lot width requirements in the R-3 Zone. The Board concludes that there is a practical hardship associated with the configuration of the lot that inhibits the extent to which [defendants] can use the property, a hardship which satisfies the C-1 criteria. The Board further concludes that no substantial negative impact exists on this application sufficient to negatively impact the surrounding properties or the zone plan in a meaningful way. In this instance, the Board concludes that these properties can be developed in such a manner as to meet all of the setback criteria, height criteria, and in such a manner as to be consistent with surrounding properties and homes on properties. There is a positive reason for nonconformity to continue. Thus, any developed lots will meet all of the requirements in the R-3 Zone with the exception of the lot width variance on [the corner lot] as previously indicated. The Board also concluded, "[U]nder the C2 analysis[,] . . . the positive and negative criteria were met by [defendants,] and the granting of 'C' variance relief as set forth herein is appropriate." It reasoned: [W]hen taking into account the current character of the R-3 Zone as it extends between [the western street] and the Manasquan 9 A-1394-16T3 River, every single lot in that zone runs from the street through to the [r]iver with waterfront frontage, and that furthermore, within this area there are fifteen (15) other lots, of which seven (7) have nonconforming lot widths. The Board determines that approval of this application represents a better zoning alternative for the property which benefits the community. The Board also points out that preliminarily[, defense counsel] intimated [defendants] might seek a subdivision of four (4) lots, but that since that time [defendants have] filed an [a]pplication seeking a minor three (3) lot subdivision. The Board determined that having fewer lots with a larger lot area makes better planning sense and will not be in conflict with the nature and character of the R-3 Zone as presently developed. On August 5, 2015, plaintiffs filed an action in lieu of prerogative writs in the Law Division, challenging the Board's decision. After conducting a hearing, the court reversed the variances granted by the Board, and vacated "the remainder of the Board's decision" and remanded the matter for further proceedings. The court concluded the Board's findings relating to the variances "are without legal or factual support." The court further concluded, "A review of the record reveals the Board failed to conduct the hearing consistent with principles of due process and fundamental fairness. By denying [o]bjectors the right to present expert testimony, the Board's decision resulted in an unfair outcome, warranting reversal." 10 A-1394-16T3 II. Zoning boards make quasi-judicial decisions to grant or deny applications within their jurisdiction. Willoughby v. Planning Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997); Kotlarich v. Mayor of Ramsey, 51 N.J. Super. 520, 540-41, (App. Div. 1958). The determination of a zoning board is presumed to be valid. Kramer v. Bd. of Adjustment, 45 N.J. 268, 285 (1965); Cell S. of N.J. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002). The court's review of a board's decision is based solely on the record before the board. Kramer, supra, 45 N.J. at 289. A court must not substitute its own judgment for that of the board unless there is a clear abuse of discretion. See Cell S. of N.J., supra, 172 N.J. at 81. The burden is on the challenging party to demonstrate that the board's decision was arbitrary, capricious, or unreasonable. New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999); Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1988); Cell S. of N.J., supra, 172 N.J. at 81. This court applies the same standards as the trial court. Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters., Inc. v. Planning/Zoning Bd., 408 N.J. Super. 345, 360 (App. Div. 2009). However, when an appeal raises a question of law, we apply a 11 A-1394-16T3 plenary standard of review. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). A. We first address defendants' argument that the trial court erred when it concluded the Board's hearing denied plaintiffs due process. Defendants assert the Board complied with due process throughout these proceedings. N.J.S.A. 40:55D-10(d) states: The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses. Planning boards have the obligation "to afford . . . all objectors a fair opportunity to address the full range of planning issues" presented by development applications. Witt v. Borough of Maywood, 328 N.J. Super. 432, 454 (Law Div. 1998), aff'd o.b., 328 N.J. Super. 343 (App. Div. 2000), citing N.J.S.A. 40:55D-10(d). Although an attorney representing some plaintiffs may have attended the first Board hearing, the transcript of the proceedings contains no confirming evidence. During the second proceeding, the Board refused to allow plaintiffs to present an expert on 12 A-1394-16T3 their behalf, and adjourned the proceeding without hearing any public comments. At the beginning of the third proceeding, the Board secretary asked defendants' attorney "if he had any new testimony to present and the answer was no." When plaintiffs' counsel asked to call their expert, the planning board refused to permit it. When a planning board allows an applicant to present testimony but denies objectors "a fair opportunity [to] present all of their witnesses[,] [it] deprives the ultimate conclusion of legitimacy." Witt, supra, 328 N.J. Super. at 454 (Law Div. 1998). Before the trial court, the Board's attorney argued that the Board had the right to "make the rules governing" its hearings, pursuant to N.J.S.A. 40:55D-10(b). The trial court rejected this argument, noting that: [A] review of the record reveals that if there were rules, they were not known to all who appeared, as the [o]bjectors were "surprised by the order of the proceedings." A review of the transcript makes it perfectly clear that the Board never advised the public that objectors were required to sign a book or give notice that they wished to call witnesses in advance of the hearing. Although the Board had the discretion to set "reasonable limitations" as to the number of witnesses and how long they could testify, N.J.S.A. 40:55D-10(d), it abused its discretion when it 13 A-1394-16T3 refused to allow plaintiffs to present even a single expert witness to oppose defendants' two experts. See Witt, supra, 328 N.J. Super. at 454 (Law Div. 1998). We agree with the trial court that "the record reveals the Board failed to conduct the hearing consistent with principles of due process and fundamental fairness," warranting reversal of the Board's decision. B. We next address defendants' argument that the record lacks support for the trial court's conclusion that the Board improperly granted defendants' requested variances. "An applicant who pursues a variance under N.J.S.A. 40:55D- 70(c)(1) must establish that the particular conditions of the property present a hardship." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 29 (2013); see also N.J.S.A. 40:55D-70(c)(1). "'Undue hardship' involves the underlying notion that no effective use can be made of the property in the event the variance is denied." Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 605 (1980). "Thus, [(c)(1)] variance approval require[s] the party requesting the variance to prove both positive and negative criteria: there must be a benefit to the community from granting the variance that outweighs the detriment to the zoning plan, and 14 A-1394-16T3 the purposes of the MLUL must be advanced." Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 125 n.4 (2013). "A 'c(1)' variance is not available to provide relief from self-created hardship." Green Meadows at Montville, LLC v. Planning Bd. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000). An applicant may not claim an undue hardship when the applicant seeks to divide the lots "in such a way as to make [the] lots nonconforming." Ibid. If the applicant created the hardship, the planning board may nevertheless grant a variance under N.J.S.A. 40:55D-70(c)(2). Ibid. In Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 198 (App. Div. 2009), this court stated that in order to secure variance relief pursuant to N.J.S.A. 40:55D-70(c)(2), the applicant must show: (1) [that the variance] relates to a specific piece of property; (2) that the purposes of the [MLUL] would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment[;] and (5) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance. [Ibid. (quoting William M. Cox, New Jersey Zoning and Land Use Administration, § 6-3.3 at 143 (Gann 2008)).] 15 A-1394-16T3 Defendants argue their "'hardship' arises not from an act of [their own or] their predecessors in title, but rather from the shape of the property." (Db22) They argue a "(c)1 [d]efendant need only prove that [the] property's unique characteristics inhibit 'the extent' to which the property can be used." They cite Bressman v. Gash, 131 N.J. 517, 529-30 (1993), in which our Supreme Court concluded the applicant suffered a hardship when "the physical characteristics of the lot both precluded construction of a house consistent with the character of the neighborhood and constituted a sufficient hardship to support the grant of a c(1) variance." They also cite Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 61 (1999), in which our Supreme Court concluded the applicant suffered a hardship when: it was not the size of the proposed pool, but rather the unusual narrowness of the applicant's property in relation to the ordinance's minimum width and the width of properties in the vicinity, combined with the existing structures on the property, that constituted the reasons why the setback and area variances were required. The Court further noted a "misconception about the term 'undue hardship[]' . . . is the belief that an applicant seeking a variance under subsection c(1) must prove that without the variance the property would be zoned into inutility." Id. at 54. Instead, a hardship inhibits "the extent to which the property can be used." 16 A-1394-16T3 Id. at 55 (quoting Davis Enters. v. Karpf, 105 N.J. 476, 493 (1987) (Stein, J., concurring)). Defendants misinterpret both Bressman and Lang. In each case, the applicant sought a variance to build on a single lot. They did not seek to divide a lot into nonconforming lots, as defendants propose to do. Defendants have only established the hardship that they cannot divide their single, useful lot into three new lots, one of which fails to conform to Brielle's zoning ordinances. Without the subdivision they seek to create, the shape of the lot fails to limit their use of the property. Green Meadows at Montville, LLC, supra, 329 N.J. Super. at 22, is directly on point: defendants may not claim an undue hardship when they seek to divide the lots "in such a way as to make [the] lots nonconforming." Defendants also argue they "satisfied their burden of proof to justify relief under" N.J.S.A. 40:55D-70(c)(2). We disagree. Defendants first requested a variance for their "guest cottage." The Board found, "[T]here is a preexisting conformity [sic] as it relates to the guest house which lawfully exists on the lot and that, furthermore, this existing condition will be extinguished once the guest house is demolished per [defendants'] stated intention." The trial court correctly concluded the record does not support a finding of when the "guest cottage" was built 17 A-1394-16T3 or when the zoning ordinance rendering it nonconforming was passed. Without those facts, the planning Board could not find the "guest cottage" constituted a preexisting condition. With respect to the lot-width variance, the planning Board's resolution does not explain the purpose of the lot-width requirement or how the variance would further that purpose. The planning Board's resolution also fails to explain how the variance would further the purposes of the MLUL. We agree with the trial court that the Board's findings relating to the variances "are without legal or factual support." Affirmed. 18 A-1394-16T3

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Docket No.: a1513-16
Decided: 2017-11-15
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the UNION HILL CONDOMINIUM ASSOCIATION v. WELLS FARGO BANK, N.A
Status: unpublished
Summary:
PER CURIAM Plaintiff Union Hill Condominium Association ("the Association") appeals the Law Division's November 7, 2016 order concluding on stipulated facts that defendant Wells Fargo Bank, N.A. ("Wells Fargo") is not a "lender in possession" or a "mortgagee in possession" required to pay the Association maintenance assessments and counsel fees for a vacant condominium unit as to which Wells Fargo has a pending mortgage foreclosure action. We affirm. The record owner of the unit, Michael Demers, was delinquent on both his mortgage payments due to the lender and his assessments due to the Association. Wells Fargo brought a foreclosure action against Demers in August 2012. Demers died in 2013. The foreclosure case has not yet resulted in a final judgment.1 In the meantime, Wells Fargo has engaged in certain measures such as changing locks, "winterizing" the premises, landscaping, and the remediation of "stink bugs." Wells Fargo also had repairs performed to a door and a handrail, and ordered certain other repairs that were not completed. In a detailed written decision by Judge Thomas C. Miller, the trial court rejected the Association's contention that these actions by Wells Fargo were sufficient to make it responsible for ongoing assessments. The Association now appeals these findings, 1 At oral argument on the appeal, counsel for Wells Fargo advised us that a guardian ad litem for Demers' heirs may soon be, or has already been, appointed. 2 A-1513-16T1 and also argues the trial court erred in holding that the lien priority statute, see N.J.S.A. 46:8B-21, is the Association's sole remedy against Wells Fargo in these circumstances. Both parties have helpfully submitted supplemental briefs at this court's request comparing the facts of this case with those in Woodlands Community Association v. Mitchell, 450 N.J. Super. 310 (App. Div. 2017) (holding on the facts presented in that case, involving a lender's assignee's "winterization" of property, that the assignee was not a lender in possession liable for condo fees). Having considered those submissions, and the parties' oral and other written arguments, we affirm the trial court's denial of relief to the Association. We do so substantially for the sound reasons articulated by Judge Miller as well as in accordance with this court's June 6, 2017 precedential opinion in Woodlands, which was issued after this appeal was filed. As we recognized in Woodlands, a mortgagee or its assignee that brings a foreclosure action against a condominium unit owner is not liable for delinquent common charges unless and until it has engaged in sufficient activities to be considered "in possession" of the premises. Id. at 315; see also Woodview Condo. Ass'n, Inc. v. Shanahan, 391 N.J. Super. 170, 173 (App. Div. 2007). "Whether a mortgagee or its assignee is in [such] possession is determined on a case-by-case basis." Woodlands, supra, 450 N.J. 3 A-1513-16T1 Super. at 315. For example, if a mortgagee rents the premises to a third party and collects rent, that exercise of ownership rights is sufficient to make the mortgagee a lender in possession. Ibid.; see also Woodview, supra, 391 N.J. Super. at 173-74. By contrast, actions by a mortgagee that merely protect its security in the property, such as changing locks, paying realty taxes, and "winterizing" the property to prevent frozen pipes, is insufficient to make the mortgagee a lender in possession. Woodlands, supra, 450 N.J. Super. at 316-19. For these reasons, we held in Woodlands that the "minimal actions" taken there by the lender's assignee to protect its security interest in the property did not rise to a level requiring it to pay maintenance fees to the condominium association. Id. at 318. We discern no material difference between the facts in Woodlands and the facts in this case. We do not regard the incidental actions taken by Wells Fargo as sufficient to render it "in possession." Although more extensive repairs or improvements arguably might have tipped the balance in the Association's favor, the modest repairs to a door and a railing essentially comprise measures to keep the premises safe rather than capital investments. Nor do the landscaping and pest control measures that were taken alter the mortgagee's status. 4 A-1513-16T1 Although we appreciate the Association's reasonable desire to obtain a contribution from this long-vacant unit for common expenses, the facts presented simply do not support a finding that Wells Fargo is "in possession." That said, we urge Wells Fargo to take reasonable and prompt steps to pursue the apparently- uncontested and long-delayed foreclosure action to completion. Affirmed. 5 A-1513-16T1

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Docket No.: a2063-15
Decided: 2017-11-15
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the JOSEFA BARAZZA v. COUNTY OF HUDSON
Status: unpublished
Summary:
PER CURIAM This appeal stems from the parties' conflicting interpretations of their earlier settlement agreement. Plaintiff Josefa Barraza1 appeals from a December 8, 2015 order rejecting her interpretation of the settlement agreement. Consequently, the court dismissed plaintiff's action against defendant County of Hudson, which asserted claims for breach of the settlement agreement and retaliation under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.2 We affirm, substantially for the reasons set forth by Judge Lisa Rose in her cogent oral opinion. I. Plaintiff has been employed since 2000 in Hudson County's Social Services Department. In December 2006, plaintiff was promoted from a permanent Civil Service position as a Human Services Specialist 1 (HSS1) Bilingual to a provisional position as a Social Worker (SW) Bilingual. To obtain permanent appointment as a SW Bilingual, plaintiff was required to pass a State Civil Service examination and rank sufficiently high on the Certification of Eligibles List (list). Plaintiff subsequently failed the exam. As a result, she was excluded from the May 10, 2010 list generated by the Civil Service Commission (CSC), and on 1 We note plaintiff's last name appears as Barraza in her complaint but is alternately spelled Barazza in her notice of appeal. 2 The order dismissing plaintiff's complaint was entered on March 21, 2016. Plaintiff's notice of appeal does not reference the March 21, 2016 dismissal order. 2 A-2063-15T3 August 2, 2010, she was returned to her former HSS1 Bilingual position. Following her demotion, in March 2011, plaintiff filed a Notice of Charge of Discrimination with the United States Equal Employment Opportunity Commission (EEOC) alleging age discrimination. In April 2011, plaintiff filed a Charge of Discrimination with the New Jersey Division on Civil Rights alleging discrimination based on age and national origin. On May 12, 2011, the parties entered into a Settlement Agreement (the settlement agreement). Plaintiff agreed to withdraw her discrimination claims and defendant agreed to re- appoint her provisionally to SW Bilingual pending examination. Specifically, the settlement agreement in pertinent part provided: NOW, THEREFORE, in consideration of the premises and conditions set forth herein, the County and Josefa Barraza agree as follows: 1. The County agrees to [p]romote the employee to the provisional title of Social Worker, Bilingual English/Spanish, which shall be subject to Civil Service Examination and eligibility as per Title 4A. Josefa Barraza agrees to withdraw [her] complaint of discrimination based on national origin and age in violation of Title VII of the Civil Rights Act and the Age Discrimination in Equal Employment Act, as amended, which was filed on April 29, 2011 with the New Jersey Division on Civil Rights and to notify the Division on Civil Rights of the withdrawal. 3 A-2063-15T3 Plaintiff also agreed to waive any future claims based on acts that occurred prior to the date of the settlement agreement. Effective May 23, 2011, defendant promoted plaintiff provisionally to SW Bilingual pending examination. On March 22, 2012, plaintiff took the Civil Service examination for permanent placement to SW Bilingual. Plaintiff passed the exam, but her score ranked her eighteenth out of twenty eligible candidates on a list generated by the CSC the following month. Since there were not eighteen SW Bilingual positions available for permanent appointment, plaintiff was not promoted.3 On June 18, 2012, plaintiff was again demoted to HSS1 Bilingual. On June 27, 2013, plaintiff filed a complaint in the Law Division alleging breach of the settlement agreement and a LAD retaliation claim. In essence, plaintiff claimed that, since she passed the Civil Service examination for the SW Bilingual position, defendant was obligated under the settlement agreement to maintain her in that position on a provisional basis pending her permanent appointment from the certified eligibility list. 3 The "Rule of Three" governs the discretion of the appointing authority by generally requiring selection from the three highest scoring candidates. See N.J.S.A. 11A:4-8. See also N.J.A.C. 4A:4-4.8(a)(3) ("Upon receipt of a certification, an appointing authority shall . . . [a]ppoint one of the top three interested eligibles (rule of three) from an open competitive or promotional list [.]"). 4 A-2063-15T3 While the litigation was pending, plaintiff was reached on the list and defendant permanently appointed her to the SW Bilingual position effective May 11, 2015. Accordingly, plaintiff's claims for the differential in pay and benefits between the two positions narrowed to the period between her June 18, 2013 demotion and her May 11, 2015 promotion. The initial August 17, 2015 trial date was postponed to September 9, 2015. The trial was then rescheduled for September 16, 2015, when plaintiff submitted a motion in limine that sought the court's interpretation of the settlement agreement as a matter of law. Specifically, the in limine motion requested the court to interpret the settlement agreement to provide that plaintiff was entitled to maintain her provisional SW Bilingual position from May 23, 2011, until she was permanently assigned that title consistent with Civil Service rules and regulations. The motion was supported by deposition transcripts of plaintiff and defendant's designated representative, Roger Quintana.4 The case was not reached for trial on September 16 and it was again relisted for December 7, 2015. On December 4, 2015, defendant submitted its trial brief seeking dismissal of plaintiff's complaint. 4 See R. 4:14-2(c) (authorizing a governmental agency to designate a person to testify on its behalf). 5 A-2063-15T3 The trial was assigned to Judge Rose, who conducted oral argument on plaintiff's motion on December 7, 2015. During argument, the parties agreed to waive a jury trial and allow the in limine motion to be treated as a timely-filed dispositive motion for summary judgment. Plaintiff's counsel argued that the interpretation of the settlement agreement was the central issue in the case. Counsel elaborated: So it's a question of law, what does the contract say, and it's a question of law, what do the Civil Service Regulations say and do those control the contract, or is the contract controlling as a matter of law. So you have an interpretation and then application, both of which are legal issues for the Court. On December 8, 2015, Judge Rose rejected plaintiff's interpretation of the settlement agreement, setting forth her reasons in a thorough and well-reasoned oral opinion. The judge then granted the parties a recess to assess the procedural posture of the case in light of her ruling. When the case resumed, plaintiff's counsel advised the court: [I]n terms of what I would present factually to support a [LAD] retaliation claim essentially would be the actions that breached the settlement agreement. And so it really is the demotion in June [] 2012 pending the permanent appointment in June [] 2015. So if the County is to take the position . . . that they abided [by the settlement agreement] and acted properly[,] based on your Honor's ruling, I'm not sure what is left that I could 6 A-2063-15T3 prove differently in terms of a presentation and in stating a claim in that context in light of the legal ruling. And, you know, candidly, for the record as well, that[] I've always said that this was the pivotal issue. It either went one way or the other, and all the rest of the chips fall in place. Following this concession, Judge Rose granted defendant's oral motion to dismiss. The judge entered a memorializing order on December 8, 2015, denying plaintiff's motion in limine. On March 21, 2016, the court issued an order dismissing the case. II. In this appeal, plaintiff contends the trial court should have interpreted the parties' settlement agreement to require defendant to continue plaintiff in her provisional SW Bilingual title from May 23, 2011, until her permanent appointment to that position on May 11, 2015. Plaintiff also argues the trial court erred in dismissing the complaint in the absence of a summary judgment motion by defendant, and by deviating from controlling summary judgment standards. "'Settlement of litigation ranks high in our public policy.'" Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (quoting Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 35 7 A-2063-15T3 N.J. 61 (1961)). Settlement agreements should be honored in the absence of evidence of fraud or some other compelling circumstances. Ibid. (citing Pascarella v. Bruck, 190 N.J. Super. 118, 125 (App. Div.), certif. denied, 94 N.J. 600 (1983)). Among its other benefits, "[s]ettlement spares the parties the risk of an adverse outcome and the time and expense - - both monetary and emotional - - of protracted litigation." Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 215 N.J. 242, 253-54 (2013) (citing State v. Williams, 184 N.J. 432, 441 (2005)). Review of a trial court's interpretation of an agreement is de novo. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cantone Research, Inc., 427 N.J. Super. 45, 57 (App. Div.), certif. denied, 212 N.J. 460 (2012). The reviewing court must evaluate the common intention of the parties and the purpose they tried to achieve. See Tessmar v. Grosner, 23 N.J. 193, 201 (1957). The court's initial task is to determine the parties' intent, which in an appropriate setting, is "a purely legal question that is particularly suitable for decision on a motion for summary judgment." Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 4:46-2 (2017); see also Khandelwal v. Zurich Ins. Co., 427 N.J. Super. 577, 585 (App. Div.) (noting interpretation of a contract "is generally appropriate to resolve . . . on summary judgment"), certif. denied, 212 N.J. 430 (2012). 8 A-2063-15T3 The "court's role is to consider what is 'written in the context of the circumstances' at the time of drafting and to apply 'a rational meaning in keeping with the expressed general purpose.'" Sachau v. Sachau, 206 N.J. 1, 5-6 (2011) (quoting Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953)). "To the extent that there is any ambiguity in the expression of the terms of a settlement agreement, a hearing may be necessary to discern the intent of the parties at the time the agreement was entered and to implement that intent." Quinn v. Quinn, 225 N.J. 34, 45 (2016) (citing Pacifico v. Pacifico, 190 N.J. 258, 267 (2007)). In her oral opinion, Judge Rose squarely addressed the issues raised by plaintiff in light of the applicable legal principles. First, the judge found "that the terms of the settlement agreement at issue are clear; that is[,] the consideration intended by the County was to reinstate plaintiff to her social worker/bilingual [position] subject to the Civil Service examination and eligibility as per Title 4A." Judge Rose also considered the parties' written agreement in the context of the governing Civil Service laws and regulations. The judge noted: As set forth previously, had plaintiff been allowed to remain in the position as a provisional employee, she would have displaced someone entitled to the appointment 9 A-2063-15T3 permanently from the certified list generated by the [CSC]. N.J.A.C. 4A:4-1.5. [Plaintiff] was given the opportunity. She took the test. It's where she placed on the test [that] was out of the control of the County and within her control. The County could not pass over departmental employees ranked ahead of her because she did not have preference as a provisional employee.[5] There simply were not enough vacancies to reach where she placed on the list and, as such, she was returned to her previous . . . permanent vacancy. [Plaintiff] remained on the list and remained eligible for future vacancy when the County could reach her rank. Judge Rose rejected plaintiff's contention that the settlement agreement lacked consideration. Plaintiff based this argument on Quintana's deposition testimony that plaintiff would have received the provisional promotion to SW Bilingual regardless of whether she signed the settlement agreement. The judge noted Quintana's further testimony that the provisional appointment provided plaintiff a remedy for her discrimination complaint. Moreover, plaintiff "was given the benefit of a provisional 5 See N.J.A.C. 4A:4-1.5(a)(1) (stating that a provisional appointment may be made only when "[t]here is no complete list of eligibles, and no one remaining on an incomplete list will accept provisional appointment." Moreover, "'the best that can be said' of a candidate on an eligible list is that he has 'a right to be considered for appointment.'" In re Foglio, 207 N.J. 38, 44-45 (2011) (quoting Nunan v. N.J. Dep't of Pers., 244 N.J. Super. 494, 497 (App. Div. 1990), certif. denied, 126 N.J. 335 (1991)). 10 A-2063-15T3 position subject to Civil Service examination and eligibility requirements," and thus received the added salary and benefits associated with the SW Bilingual position from May 22, 2011 to June 18, 2012. The judge also found that "in withdrawing her discrimination complaint, plaintiff received the benefit of avoiding protracted litigation" and achieved certainty of result. Based on these rulings, the judge concluded "the breach of contract claim is not viable and the LAD claim premised on breach of settlement agreement is not viable." Absent any viable claims, dismissal of the complaint was warranted. Having reviewed the record, briefs, and arguments of counsel, we find no basis to disturb Judge Rose's thoughtful analysis of the issues presented and affirm, substantially for the reasons set forth in her opinion. We add only that plaintiff's arguments regarding dismissal of the complaint fail on the following procedural and substantive grounds. First, it is axiomatic that we review final orders and judgments, not the opinions that support them. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). There is no doubt that the trial court's opinion interpreting the settlement agreement in defendant's favor left plaintiff with no viable claim and thus resulted in dismissal of the complaint. However, plaintiff's notice of appeal only identifies the court's December 8, 2015 11 A-2063-15T3 order denying the in limine motion, and not the subsequent March 21, 2016 order that dismissed the case. It is equally well-settled that we review "only the judgment or orders designated in the notice of appeal[.]" 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994)); see also R. 2:5-1(f)(3)(A). Stated differently, any arguments raised by plaintiff that fall outside the four corners of the Notice of Appeal fall outside the scope of our appellate jurisdiction in this case, and are therefore not reviewable as a matter of law. Second, in her brief, plaintiff concedes she filed the in limine motion "since a summary judgment motion could not comply with the requirement [of Rule 4:46-1] that the motion be made returnable not later than [thirty days] before the scheduled trial date." However, as we recently emphasized: We have repeatedly condemned the filing or consideration of in limine motions that seek an action's termination. See Cho v. Trinitas Reg'l Med. Ctr., 443 N.J. Super. 461, 464, 470 (App. Div. 2015), certif. denied, 224 N.J. 529 (2016); Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76, 83-85 (App. Div. 2001). Our court rules simply do not countenance the practice of filing dispositive motions on the eve of or at the time of trial. An in limine motion, filed at such late date, is permissible only when it addresses preliminary or evidentiary issues. Even then, such 12 A-2063-15T3 motions are "disfavor[ed]," Cho, supra, 443 N.J. Super. at 470; State v. Cordero, 438 N.J. Super. 472, 484-85 (App. Div. 2014), certif. denied, 221 N.J. 287 (2015), and should be heard "only sparingly," Bellardini v. Krikorian, 222 N.J. Super. 457, 464 (App. Div. 1988). [L.C. v. M.A.J., ___ N.J. Super. ___, ___ (App. Div. 2017) (slip op. at 3).] In any event, after the imminent trial date was adjourned and the case rescheduled, Judge Rose aptly recognized this was "a dispositive motion . . . for summary judgment disguised as a motion in limine." The following colloquy ensued at oral argument: THE COURT: Again, it sounds like a summary judgment motion. If there's no factual issue, it's a summary judgment motion, is it not? PLAINTIFF'S COUNSEL: In effect. In effect. And my thought was, given the procedural hang- ups that we've discussed already, let's just bring it in, waive the jury, present it to the [c]ourt and get it done, and if the [c]ourt decides testimony is needed, then we do it. If we don't, then the [c]ourt decides it summarily. The judge was cautious in confirming that defense counsel consented to treat the motion as a summary judgment motion and had adequate opportunity to respond to it. Only then did the judge determine that plaintiff was not entitled to summary judgment because interpretation of the settlement agreement was a matter of law and the terms of the agreement were clear on its face and 13 A-2063-15T3 contextually did not support the meaning that plaintiff ascribed to them. Finally, following her ruling on the interpretation issue, the judge granted a recess to allow counsel to assess the procedural posture of the case. Plaintiff's counsel then candidly conceded that interpretation of the settlement agreement was the "pivotal issue" and plaintiff was effectively left with no viable claims after the judge ruled on the motion. "We are satisfied that the concession by [plaintiff's] counsel on the motion for summary judgment forecloses [plaintiff's] contrary argument on appeal." Ji v. Palmer, 333 N.J. Super. 451, 459 (App. Div. 2000) (citing Misani v. Ortho. Pharm. Corp., 44 N.J. 552, 555-56, appeal dismissed, 382 U.S. 203, 86 S. Ct. 398, 15 L. Ed. 2d 270 (1965); First Am. Title Ins. Co. v. Vision Mortgage Corp., 298 N.J. Super. 138, 143 (App. Div. 1997)). Affirmed. 14 A-2063-15T3

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Docket No.: a2089-15
Decided: 2017-11-15
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. MARTIN L. BASKERVILLE
Status: unpublished
Summary:
PER CURIAM Defendant Martin L. Baskerville appeals from an November 2, 2015 order awarding him, with the consent of the State, 1,693 days of credit on his 1993 conviction for the 1987 crimes of first- degree armed robbery, N.J.S.A. 2C:15-1, fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2. He appeals from the denial of his request for a reduced sentence. We affirm. In between his arrest and his trial on the New Jersey charges, defendant was convicted of murder in New York State. After his New Jersey trial, he was sentenced to twenty years in prison consecutive to the lengthy sentence imposed in New York. Defendant unsuccessfully appealed his New York conviction, People v. Baskerville, 234 A.D.2d 35 (N.Y. App. Div. 1996), and appealed his conviction in New Jersey as well. See State v. Baskerville, Nos. A-5050-11, A-2151-12 (App. Div. Oct. 23, 2014) (slip op. at 1-3) (containing a history of defendant's prior New Jersey litigation) (certif. denied, 223 N.J. 271 (2015)). On this appeal, defendant argues: THE TRIAL COURT ERRED IN REFUSING TO GRANT DEFENDANT'S APPLICATION TO RECONSIDER DEFENDANT'S SENTENCE AND RE-SENTENCE HIM TO THE PRESUMPTIVE TERM OF FIFTEEN YEARS AND RUN THE SENTENCE CONCURRENT TO HIS NEW YORK SENTENCE TO CORRECT THE GRAVE INJUSTICES WHICH HAVE BEEN INFLICTED ON DEFENDANT. Defendant argues that because he was given jail credit in New Jersey for the day that the New York murder was committed, and is therefore not guilty of the New York murder, New Jersey should equitably change his sentence to allow his immediate release. We 2 A-2089-15T2 have previously determined that defendant's application for a concurrent sentence was without sufficient merit to warrant discussion in a written opinion, pursuant to Rule 2:11-3(e)(2). Id. at 4. Defendant maintains that New York was unwilling to accept the documentation of defendant's incarceration in New Jersey. New Jersey has no jurisdiction to review a New York conviction, nor does defendant point to legal authority for modifying a sentence imposed more than twenty years ago "in the interest of justice" due to a purportedly wrongful conviction in another jurisdiction. Affirmed. 3 A-2089-15T2

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Docket No.: a2380-16
Decided: 2017-11-15
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. MARKEL FOWLKES, a/k/a JOSH WILLIAMS
Status: unpublished
Summary:
PER CURIAM Defendant Markel Fowlkes appeals from an order entered by the Law Division on December 1, 2016, which denied his petition for post-conviction relief (PCR). We affirm. Defendant was charged with one count of second-degree robbery, contrary to N.J.S.A. 2C:15-1. The trial court conducted a hearing on February 7, 2011, and determined that defendant was competent to stand trial. On February 16, 2011, defendant pled guilty. The State agreed to recommend a sentence of ten years of incarceration with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run consecutively with a sentence defendant was already serving for an unrelated crime. At the plea hearing, defendant admitted that on April 12, 2008, he entered a hardware store in Jersey City, demanded money from an attendant there, and shook and struck her, causing injury. During the hearing, the judge stated that he would impose an eight-year sentence, with a NERA parole disqualifier, that would run concurrently with his previously-imposed sentence. The judge asked defendant if he understood the plea agreement, and defendant replied, "Eight with eighty-five." When the court replied affirmatively, defendant said, "Yes." Later on, after taking defendant's testimony on the factual basis for the plea, the judge asked whether defendant still wished to plead guilty. He replied, "To eight, right?" Defendant confirmed that he wanted to take the plea. The judge stated he was satisfied defendant pled guilty 2 A-2380-16T3 freely and voluntarily, understood what he was doing, waived his rights, and understood the sentence that could be imposed. Defendant's attorney then raised the issue of the concurrent sentence, and defendant asked whether the thirty-one months he had already served for the previous offense "don't count" towards the new robbery sentence. Counsel told the judge, "I explained to him that he will get gap time for [the prior sentence], no[t] jail credit because he [cannot] get jail credit while serving a State prison sentence." Defendant said, "It's concurrent, right?" The judge replied, "[I]t'll be concurrent from now on." Defendant also completed plea forms in which he indicated that he understood he would be subject to the eighty-five percent NERA parole disqualifier and a three-year term of parole supervision. At the hearing, defendant confirmed that his attorney had read the questions on the form to him, and that he understood those questions. However, when asked whether he felt his attorney had done "the best that she could for [him]," defendant answered, "No." On April 7, 2011, the court sentenced defendant in accordance with its statement at the plea hearing. The court gave defendant 910 days of gap time credit. Defendant appealed from the judgment of conviction dated April 8, 2011. The case was heard on our 3 A-2380-16T3 excessive sentence oral argument calendar. R. 2:9-11. We entered an order dated April 17, 2012, affirming the sentence. Thereafter, defendant filed a pro se petition for PCR, alleging he was denied the effective assistance of counsel. Counsel was appointed for defendant, and counsel filed an amended petition and supporting certification. Defendant claimed his attorney was ineffective because she told him he would be given jail credits against his robbery sentence for the time he had already served on his prior sentence. Defendant stated that his attorney did not tell him he would receive gap time credits instead of jail credits until shortly before the plea hearing. Defendant said his attorney did not adequately explain that this meant he would be required to serve eighty-five percent of the robbery sentence. He also asserted that his counsel was ineffective because she did not explain that he would be subject to three years of parole supervision. The PCR court granted defendant's request for an evidentiary hearing and conducted the hearing on September 29, 2016. Defendant's attorney testified that she had discussed the plea forms with defendant prior to the plea hearing. She asked him each question and circled the answers for him. The plea documents included the forms dealing with NERA and parole supervision. 4 A-2380-16T3 Counsel stated that defendant had been "engaged" with her while they reviewed the forms. Defendant's attorney further testified that she told defendant the plea would require him to complete eighty-five percent of his sentence and she explained what parole supervision would entail. Counsel also stated that she explained the differences between jail credits and gap time credits, and told defendant he would only be entitled to the latter. Defense counsel advised defendant that nevertheless, a sentence concurrent with the sentence he was already serving would be "beneficial" to him. She stated that throughout her conversation with defendant about the plea, she believed he understood what she told him. When defendant asked questions, she tried to respond in a manner so that he would understand the consequences he faced. On December 1, 2016, the PCR judge denied defendant's petition in a written opinion. The judge found that defendant had not established a claim of ineffective assistance of counsel. The judge stated that defendant had completed the forms for NERA cases, indicating that he knew he would be required to serve eighty-five percent of his sentence and would be subject to parole supervision. The PCR judge noted that at the plea hearing, the trial judge had reviewed those forms with defendant. The judge concluded that there was "no evidence in the record to suggest" that counsel "did 5 A-2380-16T3 not review the nature and consequences [with defendant]," or that the judge at the plea hearing "failed to ensure that [defendant] understood the consequences of the plea." In addition, the judge found that defendant's attorney spent sufficient time explaining jail credits and gap time credits to defendant. Finally, the judge found that because defendant was sentenced to a concurrent eight-year term instead of the ten-year consecutive sentence he potentially faced at trial, he had not shown that he would not have pled guilty but for counsel's alleged errors. The judge entered an order dated December 1, 2016, denying PCR. This appeal followed. On appeal, defendant argues that the PCR court improperly denied his PCR petition. Defendant argues that his plea attorney did not properly inform him that gap time credits would not reduce the period of parole ineligibility that the court would impose for his robbery conviction. He contends he did not understand how concurrent sentences and gap time credits work, and that his plea counsel did not explain these issues adequately. Defendant further argues that his attorney did not explain that his plea included a three-year period of parole supervision. To succeed on his PCR claim of ineffective assistance of counsel, a defendant must meet the test established by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 6 A-2380-16T3 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland, the defendant must show that counsel's performance was deficient and, if it was, that there was a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Where, as here, the defendant claims he was denied the effective assistance of counsel with regard to a guilty plea, the defendant must establish that counsel's performance was not "within the range of competence demanded of attorneys in criminal cases." State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)). The defendant also must show "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." Id. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). The record supports the PCR's court's determination that defendant failed to establish he was denied the effective assistance of counsel with regard to his plea. As the judge explained, the plea forms that defendant executed show that he was aware he would have to serve at least eighty-five percent of his 7 A-2380-16T3 eight-year prison sentence and that he would be subject to a mandatory three-year period of parole supervision after he completed serving that sentence. Moreover, at the plea hearing, defendant told the judge he understood his sentence would be "[e]ight with eighty-five," and he did not disagree when his attorney stated that she had told him that he was not eligible for jail credits for days served on his prior sentence. There is no evidence that defendant's attorney failed to adequately explain the plea and its consequences to defendant. Furthermore, defendant has not shown the result of the proceeding would have been different if he had refused to enter the plea. As the PCR judge noted in her opinion, defendant was facing a second-degree robbery charge, which carried a maximum sentence of ten years. That sentence could have run consecutively with the sentence defendant was then serving. Defendant only offered his bare assertion that he would not have pled guilty if he had known that he would not get jail credits for the time he was serving on the other offense, or that he would have had a three-year period of parole supervision after serving the sentence on the robbery charge. The PCR judge noted that defendant's claim was refuted by the plea form for NERA cases. 8 A-2380-16T3 Moreover, the PCR judge pointed out in her opinion that defendant received a sentence from the court, which was more favorable than the sentence the State had initially agreed to recommend. As noted previously, the State had agreed to recommend a ten-year prison sentence, with a NERA period of parole ineligibility, consecutive to the sentence defendant was then serving. As the judge observed, it was unlikely defendant would have refused to plead guilty in view of the risk that he could be found guilty and sentenced to a ten-year prison term, consecutive to the sentence he was already serving. We therefore conclude that there is sufficient credible evidence in the record to support the PCR court's findings and its determination that defendant had not shown he was denied the effective assistance of counsel in connection with his guilty plea. Affirmed. 9 A-2380-16T3

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Docket No.: a2421-15
Decided: 2017-11-15
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. BENJAMIN LEVINE
Status: unpublished
Summary:
PER CURIAM Defendant appeals from an October 8, 2015 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. Following a trial, a jury convicted defendant of third-degree unlicensed practice of medicine, N.J.S.A. 2C:21-20 (count one); second-degree theft by deception, N.J.S.A. 2C:20-4 (count two); two counts of fourth-degree falsification of records, N.J.S.A. 2C:21-4(a) (counts six and eight), and third-degree insurance fraud, N.J.S.A. 2C:21-4.6 (count seven). After appropriate mergers, the judge sentenced defendant to an aggregate eight-year term and ordered him to pay restitution. On direct appeal, we affirmed defendant's conviction, but remanded to permit the entry of an amended judgment of conviction to correct the restitution amount. State v. Levine, No. A-4065-09 (App. Div. July 23, 2012) (slip op. at 2, 38), certif. denied, 213 N.J. 387 (2013). Defendant thereafter filed a timely petition for PCR. For the most part, defendant attempted to relitigate the same issues he had unsuccessfully raised in his direct appeal. He also made other assertions that could have been raised on direct appeal. Finally, defendant asserted that his trial counsel had been ineffective because the attorney failed to argue that the criminal charges involved in this case should have been handled by the State Board of Medical Examiners rather than a court. Following oral argument, the judge denied defendant's petition. In his oral decision, the judge found that the bulk of defendant's contentions were barred by either Rule 3:22-5 or Rule 2 A-2421-15T1 3:22-4,1 because defendant had either raised them on direct appeal or should have raised them in that proceeding. The judge also rejected defendant's claim that his attorney provided ineffective assistance because he did not assert that the State Board of Medical Examiners had jurisdiction over the criminal charges contained in the indictment.2 The judge concluded that in the face of the overwhelming evidence of defendant's guilt presented at trial, "defendant received a more than adequate defense; he received a very good defense." This appeal followed. On appeal, defendant raises the following contentions: POINT I INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE DEFENSE COUNSELORS IS OBJECTIVELY BASED ON A PRIMA FACIE CASE WHERE THE COUNSELORS DID NOT DO ANY INVESTIGATION TO DETERMINE THE STATUS OF DEFENDANT'S LICENSE AND FAILED TO INTERVIEW THE WITNESSES SO THAT ALL NOTES DOCUMENTS AND FILES WOULD BE BROUGHT TO COURT TO PROVIDE THE TRUE FACTS RELATED TO STATE MEDICAL BOARD LICENSING STATUTES IN RELATION TO THE CRIMINAL LAW. (Not Raised Below). 1 Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction . . . or in any appeal taken from such proceedings." Rule 3:22-4 states that subject to exceptions not applicable here, "[a]ny ground for relief not raised . . . in any appeal taken [from a conviction] is barred from assertion in" a first petition for PCR. 2 On direct appeal, we rejected defendant's assertion that the State Board of Medical Examiners had exclusive jurisdiction over the charges against him. Levine, supra, (slip op. at 2, 5, 16). 3 A-2421-15T1 POINT II THE LOWER PCR AND TRIAL COURTS MADE MULTIPLE ERRORS INCLUDING FAILURE TO ARRAIGN ON #07- 05-00864 THAT MUST ALLOW AQUITTAL. (Not Raised Below). POINT III THE LOWER PCR COURT SHOULD HAVE KNOWN THAT GILLET DID NOT HAVE THE AUTHORITY OR THE JURISIDICTION TO PROSECUTE THIS CASE, SO GILLET ENGAGED IN "BAD FAITH" AND LIES TO PREVENT THE JURY AND COURT FROM KNOWING. (Raised Below Point VIII, Reply Point V) (But Without New Case). POINT IV NO COURT OR PROSECUTOR CAN ADD VERBIAGE TO A CRIMINAL STATUTE TO CHANGE THE INTENT OF THE LEGISLATURE UNLESS THERE IS AMBIGUITY AND NO AMBIGUITY EXISTED IN THE STATUTE; BUT, JUDGE PULLEN CAUSED AMBIGUITY FOR THE JURY BY REFUSING TO DEFINE THE ELEMENT OF POSSESSION OF A LICENSE AND FAILING TO CHARGE THE JURY WITH THE ADMINISTRATIVE LICENSING STATUTES IN A PHYSICIAN LICENSING CASE, AS DEFENDANT POSSESSED A LICENSE. (Not Raised Below). POINT V THE TRIAL COURT VIOLATED ITS SCHEDULING DISCRETION BY DENYING REPRESENTATION OF DEFENDANT'S ATTORNEY. (Raised Below Point I). When petitioning for PCR, the defendant must establish by a preponderance of the credible evidence that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts 4 A-2421-15T1 that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing, and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (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. Preciose, supra, 129 N.J. at 462. To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are 5 A-2421-15T1 without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments. As defendant notes in the point headings to his brief, he did not raise Points I, II, or IV before the trial court. "We generally 'decline to consider questions or issues not properly raised to the trial court . . . unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" State v. Marroccelli, 448 N.J. Super. 349, 373 (App. Div. 2017) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)). Neither of those exceptions applies to this case and, therefore, we will not consider defendant's newly-minted contentions here. We also reject the arguments defendant raises in Points III and V because, as the trial judge found, they are barred by Rule 3:22-5. In Point III, defendant once again contends that this matter should have been referred to the State Board of Medical Examiners, which was the same argument he presented in Points I and VIII of the brief defendant's attorney submitted in defendant's direct appeal. Levine, supra, (slip op. at 2, 5). Similarly, defendant's assertion in Point V that the trial court did not permit an attorney defendant wanted to retain to represent him at trial mirrors the argument defendant unsuccessfully raised in Point I of the pro se supplemental brief he filed in his direct 6 A-2421-15T1 appeal and in Point X of his supplemental reply brief in that matter. Id. at 4, 7. As our Supreme Court made clear in Preciose, "[p]ost- conviction relief is neither a substitute for direct appeal, . . . nor an opportunity to relitigate cases already decided on the merits[.]" Preciose, supra, 129 N.J. at 459 (citations omitted). Because defendant unsuccessfully raised the exact same arguments on direct appeal that he attempted to present to the PCR court, the trial judge properly rejected these contentions under R. 3:22-5. Affirmed. 7 A-2421-15T1

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Docket No.: a2809-15
Decided: 2017-11-15
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the HARRY B. SCHEELER, JR v. GALLOWAY TOWNSHIP
Status: unpublished
Summary:
PER CURIAM Complainant Harry B. Scheeler, Jr., appeals from a final decision of the Government Records Council (GRC or Council) dismissing two complaints alleging defendant Galloway Township (Galloway or Township) denied access to a purported settlement agreement in violation of the Open Public Records Act (OPRA), N.J.S.A. 47:1A- to -13. We reverse and remand for further proceedings. I. The record shows that Galloway and its mayor were sued in 2013 by former Township manager, Steven J. Bonanni, Sr. Galloway and its mayor were represented in the litigation by an attorney assigned by the Township's insurance carrier. There were efforts to resolve the litigation in mediation, and in October 2014 Bonanni's attorney advised Galloway's defense counsel that Bonanni would settle if Galloway approved the settlement by October 28, 2014, and payment of the settlement proceeds was made within ten days thereafter. On October 28, 2014, Galloway requested that its town solicitor prepare a resolution approving the settlement of the Bonanni litigation. On November 4, 2014, prior to Galloway's adoption of a resolution approving the settlement, Bonanni signed a document entitled "RELEASE AND SETTLEMENT AGREEMENT" (Release). In the document, Bonanni released Galloway from all claims he may have 2 A-2809-15T4 against it. The Release did not require or permit execution by Galloway's mayor or anyone else on Galloway's behalf. That same day, Galloway's township solicitor responded to an inquiry concerning the status of the Bonanni settlement. In an email, the solicitor confirmed he had been authorized to prepare a resolution based on a recommendation to settle the Bonanni litigation, but that "no settlement agreement [had been] drafted yet, let alone approved." On November 12, 2014, Galloway's governing body adopted a resolution in public session authorizing the settlement of the Bonanni litigation. In pertinent part, the resolution made Galloway's agreement to settle "subject to and conditioned upon the execution and delivery of a general Settlement Agreement and Release . . . resolving the litigation in full and complete satisfaction of all issues set forth in the litigation." The resolution further conditioned the settlement on Galloway's defense counsel's "review and approval" of the "Settlement Agreement and Release." The resolution required execution of a settlement agreement by Galloway's mayor, and attestation of the mayor's signature by Galloway's acting township clerk, who also served as its OPRA records custodian. 3 A-2809-15T4 Prior to adopting the resolution, Galloway issued a check for its portion of the payment due to Bonanni under the settlement,1 and sent it to Galloway's defense counsel for delivery to Bonanni's attorney. On November 11, 2014, however, defense counsel returned the check to the township manager and requested issuance of a new check because the first check included tax-withholding deductions. In a letter to the manager, defense counsel explained that under the terms of the Bonanni settlement, Galloway's payment was not to include withholding deductions. At the same time, defense counsel provided the township clerk with the Release. Galloway issued a corrected settlement check on November 12, 2014. In response to a tip that the Bonanni litigation had been resolved, on November 20, 2014, complainant served Galloway with an OPRA request for the "settlement agreement with Steve Bonanni." By that time, the Release had been signed and delivered to Galloway's defense counsel, the settlement check had been issued, corrected and reissued, and the attorneys had exchanged the stipulations of dismissal they agreed would be filed to terminate the litigation. 1 As part of the settlement agreement, the remaining portion of the agreed upon settlement payment was made by Galloway's insurance carrier. 4 A-2809-15T4 Having never received a written agreement signed by the mayor as required by the resolution, on November 20, 2014, Galloway's records custodian denied plaintiff's OPRA request in writing, stating "[t]he requested settlement agreement for Steve Bonanni has not been executed yet."2 That same day, Galloway's township solicitor asked defense counsel if the Bonanni "settlement [has] been completely finalized, including the tax deduction issue?" Defense counsel responded that he was out of his office, but had not "received anything as of today." On November 24, 2014, Galloway's defense counsel forwarded the reissued corrected settlement check to Bonanni's attorney. In addition, Galloway's defense counsel advised he would file the first of two separate stipulations of dismissal with the court. The stipulation, which was dated October 30, 2014, dismissed the case as to the mayor only. Galloway's defense counsel and Bonanni's attorney had agreed the stipulation of dismissal as to Galloway would be filed later. On December 22, 2014, complainant served a second OPRA request stating "[s]ubject to immediate release[,] please provide the 2 As noted, the resolution required that the records custodian, who also served as the acting township clerk, attest to the mayor's signature on the settlement agreement. The records custodian was aware she had not attested to the mayor's signature on a settlement agreement and therefore reasonably understood the agreement required by the resolution had "not been signed yet." 5 A-2809-15T4 Steve Bonanni settlement agreement." On December 29, 2014, the records custodian responded in writing, stating "Steve Bonanni's settlement agreement has not been executed yet." On December 30, 2014, the township solicitor asked Galloway's defense counsel about the status of the Bonanni litigation and whether it could be considered "final and subject to OPRA release." Defense counsel responded the following day, advising he had just provided a copy of the "closing documents" to the township manager, he was waiting to file the stipulation of dismissal as to Galloway, and the settlement was final "as far as [he was] concerned." Defense counsel faxed copies of the release and stipulations of dismissal to the township manager and explained that although the documents had been previously signed, they were not approved by the Township until "much later." On January 1, 2015, complainant wrote to the township solicitor advising that he was informed a check was issued to Bonanni and inquiring how the Township could issue a check if there was no executed settlement agreement.3 The next day, the records custodian received the Release, and provided a copy to complainant. The records custodian delivered the Release to 3 In fact, a settlement check was issued to Bonanni in November 2014 without there being a written settlement agreement between Galloway and Bonanni. 6 A-2809-15T4 plaintiff within seven business days of the records custodian's receipt of complainant's December 22, 2014 OPRA request. Three days after receiving the Release, complainant filed a GRC complaint alleging the records custodian unlawfully denied access to the Release in response to his November 20, 2014 OPRA request. Complainant asserted the November 4, 2014 release predated the OPRA request, the records custodian knowingly and willfully violated OPRA by failing to provide it, and the records custodian was subject to a civil penalty under N.J.S.A. 47:1A-11. Complainant later amended the complaint, adding Galloway's defense counsel and township solicitor and alleging they participated in the unlawful denial of access to the Release. On January 15, 2015, defense counsel filed the October 30, 2014 stipulation of dismissal as to Galloway with the court. On January 26, 2015, defense counsel advised Galloway that the Bonanni litigation had ended. On January 29, 2015, complainant filed a second denial of access complaint with the GRC. The complaint reasserted the claims in the plaintiff's initial complaint. The complaint also alleged Galloway's records custodian, defense counsel and township solicitor knowingly and willfully violated OPRA and should pay a civil penalty under N.J.S.A. 47:1A-11 for wrongfully denying immediate access to the Release in response to the December 22, 7 A-2809-15T4 2014 request. Complainant further alleged the solicitor should be disqualified from representing Galloway in the GRC proceeding. The GRC consolidated plaintiff's complaints and received statements of information from the parties, and its executive director issued written findings and recommendations. Citing the GRC decisions in Paff v. City of Union, GRC Complaint No. 2012- 262 (Aug. 27, 2013) and Kohn v. Twp. of Livingston, GRC Complaint No. 2012-328 (Aug. 27, 2013), the executive director reasoned that Galloway did not have an obligation to produce the record complainant requested on November 20, 2014, until the Bonanni settlement was finalized. The executive director found that on November 20, 2014, the settlement of the Bonanni litigation was not final because Galloway "had not finalized and executed a settlement agreement" with Bonanni as required under the resolution. The executive director explained that although the records custodian later learned the Release was the only document memorializing the settlement, she had not seen the Release prior to the November 20, 2014 OPRA request. In addition, the executive director found the records custodian reasonably believed no settlement had been reached because she had not been asked to attest to the mayor's signature on a settlement agreement as required by the resolution. The executive director also determined 8 A-2809-15T4 that the settlement agreement was not final on November 20, 2014, because the first stipulation of dismissal was not filed until weeks later on December 8, 2014. The executive director concluded the records custodian did not unlawfully deny access to the Release on November 20, 2014, because "the evidence supports that the Township had not yet executed and finalized settlement at that time." The executive director also addressed complainant's denial of access complaint based on the production of the Release in response to his December 22, 2014 OPRA request. He determined that because only Bonanni signed the release, it was unclear whether the document "actually served as the official settlement agreement at the time of disclosure." He also noted that there were conditions precedent to the final settlement of the matter, including the filing of the stipulation of dismissal as to Galloway, that were not satisfied when the December 22, 2014 request was made. The executive director found it unnecessary to determine if the Release was exempt from disclosure under OPRA because, despite the records custodian's denial of access on December 22, 2014, she provided the release within seven business days of the request and therefore did not violate OPRA. The executive director also 9 A-2809-15T4 recommended rejection of complainant's claims against Galloway's defense counsel and township solicitor. The GRC adopted the executive director's findings and recommendations. In its final agency decision, the GRC determined the records custodian did not deny access to the release on November 20, 2014, because the evidence showed Galloway had not executed and finalized the settlement at that time. The GRC further concluded that there was no denial of access to the Release in response to complainant's December 22, 2014 request because the document was provided within seven business days. This appeal followed. II. Our standard of review of a decision by the GRC "is governed by the same standards as review of a decision by any other state agency." Fisher v. Div. of Law, 400 N.J. Super. 61, 70 (App. Div. 2008). "A reviewing court will not overturn an agency's decision unless it violates express or implied legislative policies, is based on factual findings that are not supported by substantial credible evidence, or is arbitrary, capricious or unreasonable." Ibid. "[U]nder our deferential standard of review, we give weight to the GRC's interpretation of OPRA." McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 616 (App. Div. 2010). "We do not, however, simply rubber stamp the agency's decision." Paff v. N.J. Dep't 10 A-2809-15T4 of Labor, 392 N.J. Super. 334, 340 (App. Div. 2007) (citation omitted); E.g., Paff v. N.J. Dep't of Labor, 379 N.J. Super. 346, 358 (App. Div. 2005). "Our standard of review is plenary with respect to" an interpretation of OPRA. Asbury Park Press v. Cty. of Monmouth, 406 N.J. Super. 1, 6 (App. Div. 2009), aff'd, 201 N.J. 5 (2010). We begin by noting that the parties do not dispute that settlement agreements are government records and subject to disclosure under OPRA. See Asbury Park Press v. Cty. of Monmouth, 201 N.J. 5, 6 (2009) (finding settlement agreement resolving lawsuit between an employee and a county is a government record subject to disclosure under OPRA). But here, the Bonanni settlement agreement was an oral agreement between Galloway's defense counsel and Bonanni's attorney. They agreed to the settlement terms: Bonanni agreed to execute a release of all claims and dismissal of the lawsuit in exchange for a monetary payment. There was no written settlement agreement between Galloway and Bonanni setting forth those terms, even though the resolution required a written agreement signed by the mayor, with his signature attested to by the acting township clerk. Although the Release was not a contract between Galloway and Bonanni and did not comport with the requirements of the resolution, Galloway and the GRC considered the Release a 11 A-2809-15T4 government record encompassed within complainant's OPRA requests for production of the Bonanni "settlement agreement." That is why on January 2, 2015, the records custodian, after being advised for the first time that the settlement was final, provided complainant with the Release in response to his request for the Bonanni "settlement agreement." Relying on its decisions in Paff, supra, GRC Complaint No. 2012-262, and Kohn, supra, GRC Complaint No. 2012-328, the GRC determined that the failure to provide the Release in response to the November 20, 2014 request did not violate OPRA because the settlement of the Bonanni litigation was not final at that time. In the executive director's findings and recommendations, which the GRC adopted, it states "the [GRC's] position on settlement agreements is that same are not finalized until all parties have executed the agreement." We need not address the validity of the GRC's application of its decisions in Paff or Kohn4 because having 4 In Kohn, the GRC determined that a memorandum was not a government record subject to disclosure under N.J.S.A. 47:1A-1.1 because it contained "inter-agency or intra-agency advisory, consultative or deliberative material" concerning a settlement that had not been finalized. Kohn, supra, GRC Complaint No. 2012-328. In Paff, the GRC found there was no denial of access to a requested "settlement agreement" where the agreement did not exist at the time at the time of the OPRA request. Paff, supra, GRC Complaint No. 2012- 262. Here, the GRC did not make any factual findings supporting a determination that the Release contained "advisory, consultative or deliberative material." Instead, the GRC assumed the Release 12 A-2809-15T4 reviewed the record, we are convinced the GRC's factual finding that the settlement agreement was not final on November 20, 2014, is not supported by substantial credible evidence. "An agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into, and which a court . . . shall honor and enforce as it does other contracts." Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.), certif. denied, 94 N.J. 600 (1983); accord Cumberland Farms Inc. v. New Jersey Dept. of Envtl. Prot., 447 N.J. Super. 423, 438 (App. Div. 2016), certif. denied, 229 N.J. 149 (2017). Parties to a settlement agreement "may orally, by informal memorandum, or by both agree upon all the essential terms of the contract, and effectively bind themselves thereon, if that is their intention, even though they contemplate the execution later of a formal document to memorialize their undertaking." Pascarella, supra, 190 N.J. Super. at 126. Here, all of the terms of the settlement were agreed to between the attorneys for the respective parties prior to November constituted such material based on its determination that a settlement agreement, or in this case a release, constitutes "advisory, consultative or deliberative material" until the settlement agreement is finalized. Because we conclude there is insufficient evidence supporting the GRC's determination that the settlement agreement was not final on November 20, 2014, it is unnecessary to address the validity of the GRC's assumption. 13 A-2809-15T4 20, 2014. In accordance with the agreement, prior to November 20, 2014, the attorneys executed and exchanged the stipulations of dismissal, Bonanni signed and delivered the Release, and Galloway issued an initial and then corrected settlement check for its portion of the settlement amount due to Bonanni. There was no evidence that at any time after November 20, 2014, the attorneys negotiated or agreed to any additional settlement terms. To the contrary, the evidence established that Galloway and Bonanni entered into a binding and final agreement to settle the lawsuit prior to November 20, 2014. See, e.g., Hagrish v. Olson, 254 N.J. Super. 133, 137 (App. Div. 1992) (finding acceptance of payment in exchange for an agreement not to pursue an appeal constituted a binding settlement agreement). We are mindful that the stipulations of dismissal were not filed and the settlement checks were not delivered until after November 20, 2014, but the settlement agreement was final and binding when plaintiff served its first OPRA request. The filing of the stipulations and delivery of the checks were simply the fulfillment of a condition of a final settlement agreement that the attorneys, on behalf of their respective clients, reached in 14 A-2809-15T4 late October or very early November 2014.5 See, e.g., ibid. ("Absent unusual circumstances, the courts should enforce executory agreements to settle litigation."). We are therefore convinced the GRC erred in concluding that Galloway was not obligated to provide the Release on November 20, 2014 because the settlement agreement was not final. The record lacks substantial credible evidence supporting the factual finding upon which the GRC's conclusion is based. The parties do not dispute that the Release is a government record, N.J.S.A. 47:1A- 1.1, and it was provided in fulfillment of one of the conditions of the settlement agreement. Moreover, there is no evidence showing the Release was otherwise exempt from disclosure under OPRA when complainant first requested it on November 20, 2014. See N.J.S.A. 47:1A-1.1 (defining "government record" under OPRA and detailing exempt records). We therefore reverse the GRC's determination that Galloway did not unlawfully deny access to the Release in response to complainant's November 20, 2014 OPRA request. 5 We are convinced the final settlement agreement was reached in late October and early November 2014, because the stipulations are dated October 30, 2014, the Release is dated October 30, 2014, and was signed by Bonanni on November 4, 2014, and Galloway issued the initial check prior to November 11, 2014. 15 A-2809-15T4 We next consider complainant's assertion that Galloway violated OPRA by denying lawful access to the Release in response to the December 22, 2014 request. It is undisputed that the records custodian provided the Release within seven business days of the request. See N.J.S.A. 47:1A-5(i) (requiring response to request for government records "no later than seven business days" of a request "[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order"). Nevertheless, complainant asserts Galloway unlawfully denied access to the Release because it is a "contract" to which he was entitled to "[i]mmediate access" under N.J.S.A. 47:1A-5(e). We disagree. "[C]ontracts . . . are ordinarily to be provided immediately" in response to an OPRA request, Mason v. City of Hoboken, 196 N.J. 51, 65 (2008) (citing N.J.S.A. 47:1A-5(e)). Because the statute does not define the term "contract," we give the term its "generally accepted meaning, according to the approved usage of the language." N.J.S.A. 1:1-1. Contract is defined as a "legally enforceable agreement between two or more parties" or a "writing or document containing such an agreement." Webster's II New College Dictionary, 245 (1999). Here, as noted, the settlement agreement between Galloway and Bonanni was made orally between counsel, and was never incorporated into a formal written agreement. The records custodian reasonably 16 A-2809-15T4 believed no settlement agreement had been made because the resolution required the mayor's signature on any settlement agreement and the records custodian knew that had not yet occurred. In any event, although the Release did not include all of the settlement terms and did not conform to the requirements of the resolution, we are satisfied that on December 22, 2014, it was an enforceable contract that was subject to the requirement of immediate production under N.J.S.A. 47:1A-5(e). The Release created contractual rights between the parties. Under the Release, Bonanni agreed to dismiss his lawsuit and release all claims against Galloway in exchange for the monies he received. And although Galloway did not execute the document, the Release granted Galloway an enforceable contractual right precluding Bonanni's assertion of any future claims. In other words, the Release was a contract between the parties even though it was signed only by Bonanni. See Domanske v. Rapid-American Corp., 330 N.J. Super. 241, 246 (App. Div. 2000) (finding "a release is merely a form of contract"). The Release was a contract that satisfied one of the conditions of the settlement agreement and was a government record encompassed by complainant's requests for the "settlement agreement." The GRC rejected complainant's claim he was unlawfully denied access in response to his December 22, 2014 request because it 17 A-2809-15T4 determined the Release was provided within seven days of the request.6 This finding was based on its determination that the settlement agreement was not final when the request was made. As noted, the record lacks substantial credible evidence supporting that conclusion. To the contrary, the settlement was final and the Release constituted a contract to which Galloway should have provided immediate access N.J.S.A. 45:1A-5(e). We reverse the GRC's determination to the contrary. Complainant also claims that the GRC erred by failing to determine it was the prevailing party and was entitled to attorney's fees. The GRC did not reach those issues and others, including complainant's claim for the imposition of civil penalties, because it determined there were no OPRA violations. We will not address those claims in the first instance. The GRC shall address the claims on remand. Reversed and remanded for further proceedings. We do not retain jurisdiction. 6 The executive director recommended that because the Release was properly produced within the seven-day period, the GRC should decline to determine if the Release was exempt from disclosure because the settlement agreement was not yet final in December 22, 2014. Again, the record lacks sufficient credible evidence supporting any determination that the settlement agreement was not final on December 22, 2014. 18 A-2809-15T4

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Docket No.: a4195-15
Decided: 2017-11-15
Caption: ROBERT PICCONI v. ATLANTIC HEALTH SYSTEM, INC
Status: unpublished
Summary:
PER CURIAM Plaintiffs Robert and Stacie Picconi2 appeal from a May 3, 2016 order granting summary judgment in favor of defendants Atlantic Health System, Inc., AHS Hospital Corp./Morristown Medical Center (AHS), Salvatore Ruggiero, and Kathryn Sortino. Plaintiff contends the motion judge erroneously dismissed his claims against defendants. We disagree and affirm. Plaintiff's claims arose from an incident in AHS's employee locker room. A fellow employee reported seeing a bag containing a white powdery substance on the floor near a locker. Security for AHS investigated and questioned plaintiff, as they mistakenly believed the locker belonged to him.3 Plaintiff voluntarily responded to security's questions, and never asked to terminate the questioning or leave the locker room. At some point during the brief questioning conducted by AHS's security, plaintiff left the locker room to obtain the combination to his new locker in order to prove that the substance was not near his locker. 2 We hereafter refer to Robert Picconi as plaintiff in the singular, as Stacie Picconi's claims are derivative of her husband's claims. 3 Upon further investigation, AHS confirmed that the substance was a harmless vitamin supplement. AHS also concluded that the substance was found near plaintiff's former locker, not his newly assigned locker. 2 A-4195-15T3 Security then opened plaintiff's locker and found nothing suspicious. The matter was closed, and no allegations were levied against plaintiff as a result of the incident. Shortly after the incident, plaintiff heard rumors within AHS that he was accused of having drugs in the workplace. No one from AHS management accused plaintiff of possessing drugs in the workplace. Plaintiff, upset by rumors of his drug possession, requested that AHS's Human Resources Department investigate the rumors and refused to return to work until the matter was resolved. Significantly, plaintiff never suggested what he wanted from AHS in order to return to work. Several days later, plaintiff requested assignment of a new supervisor as he claimed continuing to work with his current supervisor was creating a hostile work environment. Plaintiff returned to work at AHS one week after the locker room incident. Upon his return to work, plaintiff claims he continued to hear rumors regarding his alleged drug possession. Plaintiff again told AHS's Human Resources Department that he would not return to work until the matter was resolved to his satisfaction. Plaintiff never articulated what he wanted AHS to do in order to resolve the matter. AHS's Human Resources Department telephoned plaintiff on March 3, 2014 to advise that the investigation was complete. According to AHS's Human Resources 3 A-4195-15T3 Department personnel, plaintiff was rude and combative during this telephone conversation. Two days later, plaintiff sent an e-mail to AHS's Human Resources Department advising he was still awaiting a resolution of the situation and complaining that the telephone call from its staff member was harassing. On March 7, 2014, plaintiff attended a meeting with representatives from AHS's Human Resources and Security Departments. AHS intended to have a productive meeting to address concerns related to the locker room incident. However, plaintiff repeatedly interrupted those who spoke during the meeting, and became increasingly loud, agitated, and volatile according to individuals who attended the meeting. Plaintiff left the meeting abruptly rather than discussing the matter with AHS's representatives. As a result of his disruptive and disrespectful behavior during the March 7 meeting and during the March 3 telephone conversation, AHS terminated plaintiff's employment.4 Plaintiffs filed suit alleging violations of the New Jersey Law Against Discrimination, false imprisonment, slander, and intentional infliction of emotional distress. After discovery was completed, defendants filed a motion for summary judgment arguing 4 Plaintiff was an at-will employee of AHS and could be terminated at any time without cause or notice. Plaintiff acknowledged his at-will employment status by signing AHS's employment application and receiving AHS's employee handbook. 4 A-4195-15T3 that plaintiffs were unable to prevail on any of their claims as a matter of law. Plaintiffs, in opposition to the motion, argued that material disputed facts precluded dismissal of their claims. Judge W. Hunt Dumont issued a comprehensive and thorough written statement of reasons in support of his order granting summary judgment and dismissing plaintiffs' complaint for failure to cite any competent evidence in support of their asserted claims. We affirm for the reasons set forth in Judge Dumont's statement of reasons and add only the following comment. Our review of an order granting summary judgment is de novo, and we apply the same standard employed by the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). Accordingly, we determine whether the moving party has demonstrated that there are no genuine disputes as to any material facts and, if not, whether the moving party is entitled to judgment as a matter of law. Id. at 405-06 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)); R. 4:46. In opposition to defendants' summary judgment motion, plaintiff submitted a certification in an effort to raise genuinely disputed material facts. However, plaintiff's certification directly contradicted his sworn testimony and was properly rejected by the motion judge. See Hinton v. Meyers, 416 N.J. Super. 141, 149-50 (App. Div. 2010) (affirming the trial court's 5 A-4195-15T3 decision to disregard a plaintiff's certification that "differed significantly from the testimony plaintiff provided at his deposition[, and] . . . [p]laintiff offered no explanation for the two different versions."). A "[p]laintiff cannot create an issue of fact simply by raising arguments contradicting his own prior statements and representations." Mosior v. Ins. Co. of N. Am., 193 N.J. Super. 190, 195 (App. Div. 1984). When an offsetting affidavit or certification is submitted in opposition to a motion for summary judgment, a trial court may reject that document "as a sham when it 'contradict[s] patently and sharply' earlier deposition testimony, there is no reasonable explanation offered for the contradiction, and at the time the deposition testimony was elicited, there was no confusion or lack of clarity evident from the record." Hinton, supra, 416 N.J. Super. at 150 (quoting Shelcusky v. Garjulio, 172 N.J. 185, 201 (2002)). The motion judge expressly found that plaintiff's "self-serving affidavit" was "contradicted by his testimony" and failed to create a genuine question of material fact precluding the entry of summary judgment. Because plaintiff failed to present competent evidence in support of his claims, other than a "self-serving affidavit," which contradicted plaintiff's sworn deposition testimony, the judge correctly granted defendants' motion for summary judgment. 6 A-4195-15T3 We affirm for the reasons set forth in the judge's written statement of reasons dated May 3, 2016. Affirmed. 7 A-4195-15T3

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Docket No.: a4693-15
Decided: 2017-11-15
Caption: BANK OF AMERICA, N.A. v. CHRISTOPHER J. ARTEAGA
Status: unpublished
Summary:
PER CURIAM Appellant third-party bidder, 4521 Smith Unit 6-1C Associates, LLC, moved to vacate an April 1, 2016 Chancery Division order setting aside a Sheriff's sale on the ground that appellant failed to complete the sale. The trial court denied appellant's motion on June 28, 2016. Appellant now appeals from the June 28, 2016 order, arguing it was never served with plaintiff Bank of America's motion papers to set aside the Sheriff's sale. Appellant also argues that the court erred in finding that its motion was filed out of time. We disagree and affirm. We derive the following facts from the record. On April 21, 2014, plaintiff filed a foreclosure complaint and obtained a final judgment in its favor on March 17, 2015. On December 17, 2015, a Sheriff's sale was conducted of the foreclosed-upon property, and appellant was the successful bidder with a bid of $116,000. Under the terms of the sale, appellant was required to "pay 20% of the purchase price at the close of the sale" with the balance to be paid within thirty days. The sale terms also specified that "[i]f the purchaser fails to comply with any of the conditions of sale, the property will be sold a second time, the former purchaser being held responsible for all losses and expenses[,]" and "[t]he deposit . . . to be retained by the Sheriff to be disbursed by court order." 2 A-4693-15T1 Appellant failed to complete the sale by paying the balance by the due date as required under the terms of the sale. On January 20, 2016, plaintiff sent appellant a letter requesting that the sale be completed within ten days of the date of the letter or plaintiff would move to set aside the sale. When appellant failed to comply, on March 10, 2016, plaintiff moved to vacate the Sheriff's sale, which was granted by the court in an April 1, 2016 order. On May 10, 2016, appellant moved to vacate the April 1, 2016 order to allow it to complete the sale, certifying that it did not receive a copy of plaintiff's motion and did not therefore have an opportunity to oppose it. In opposing appellant's motion, plaintiff certified that the moving papers were sent via regular and certified mail to the same address as the April 1, 2016 order. Plaintiff averred that while the certified mail "was returned unclaimed[,] the regular mail was not returned." On June 28, 2016, the court denied appellant's motion. In the statement of reasons accompanying the June 28, 2016 order, the court characterized appellant's motion as essentially seeking reconsideration of the court's April 1, 2016 order. As a result, the court determined that pursuant to Rule 4:49-2, appellant's motion for reconsideration was out of time because it "was served and filed on May 10, 2016, [thirty-nine] days after 3 A-4693-15T1 the [c]ourt's [o]rder granting [p]laintiff's motion to vacate the Sheriff's [s]ale." Because Rule 4:49-2 requires a motion for reconsideration to be filed "no later than [twenty] days after the service of the [o]rder[,]" the court denied appellant's motion "as untimely." Nonetheless, the court considered appellant's motion on the merits, but rejected appellant's argument "that service was not properly effectuated[.]" The court found plaintiff's assertion that it did not receive the original motion to vacate "disingenuous[,] as [appellant's] counsel received a copy of the [April 1, 2016] [o]rder, which was sent to the same address as the motion." The court concluded there was "no basis in fact or law to overturn its April 1, 2016 [o]rder[,]" particularly given the fact that appellant was "now seeking to complete the sale after forfeiting their deposit." This appeal followed. On appeal, appellant raises the following points for our consideration: POINT I APPELLANT'S MOTION WAS NOT FILED OUT OF TIME. POINT II PLAINTIFF'S ORDER TO SET ASIDE SHERIFF'S SALE MUST BE VACATED BECAUSE APPELLANT NEVER RECEIVED THE MOTION. 4 A-4693-15T1 POINT III PRINCIPLES OF EQUITY COMPEL THE COURT NOT TO SET ASIDE A SHERIFF'S SALE WHERE THE SUCCESSFUL BIDDER DESIRES TO COMPLETE THE SALE. In Point I, appellant argues that the court erred in considering its motion as a motion for reconsideration pursuant to Rule 4:49-2, instead of a motion to be relieved from a judgment or order pursuant to Rule 4:50-1. Appellant asserts that, in so doing, the court erroneously rejected its motion as untimely. Rule 4:49-2 requires "a motion for rehearing or reconsideration seeking to alter or amend a judgment or order [to] be served not later than [twenty] days after service of the judgment or order upon all parties by the party obtaining it." Pursuant to Rule 1:3-4(c), "[n]either the parties nor the court may . . . enlarge the time specified by . . . [Rule] 4:49-2[.]" Reconsideration is appropriate only in those cases "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 significance of probative, competent evidence." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). We review a court's determination of a motion for reconsideration under an abuse of discretion 5 A-4693-15T1 standard. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Rule 4:50-1 authorizes a court to relieve a party from a final judgment or order for reasons such as: mistake, inadvertence, surprise, or excusable neglect, R. 4:50-1(a); certain newly discovered evidence, R. 4:50-1(b); fraud, misrepresentation, or other misconduct of an adverse party, R. 4:50-1(c); the fact that the judgment or order is void, R. 4:50-1(d); or the fact that the judgment has been satisfied, released or discharged, R. 4:50-1(e). Rule 4:50-1(f) is a catch-all provision that authorizes a court to relieve a party from a judgment or order for "any other reason[.]" "All Rule 4:50 motions must be filed within a reasonable time, which, in some circumstances, may be less than one year from entry of the order in question." Orner v. Liu, 419 N.J. Super. 431, 437 (App. Div.), certif. denied, 208 N.J. 369 (2011); R. 4:50-2. We also review a court's determination of a Rule 4:50-1 motion under an abuse of discretion standard. Johnson v. Johnson, 320 N.J. Super. 371, 378 (App. Div. 1999). Appellant's May 10, 2016 motion was captioned "Notice of Motion to Vacate Order" and indicated that appellant would seek "an [o]rder to vacate the order setting aside the [S]heriff's sale that was entered on April 1, 2016." The notice of motion stated that in support of the motion, appellant would rely upon the 6 A-4693-15T1 accompanying "[c]ertification" and "letter brief." Nowhere in the notice of motion, supporting certification, or letter brief did appellant refer to Rule 4:50-1. Nowhere in its merits brief does appellant suggest that it specifically asked the trial court to consider its motion under Rule 4:50-1. Under these circumstances, we conclude the court did not err by considering the motion under Rule 4:49-2 and denying it as untimely filed. In Point II, appellant renews its argument that although the motion papers were sent to appellant via regular and certified mail, the certified mail was returned to plaintiff as undelivered. As a result, appellant asserts the court erred in finding that service was properly effectuated. We disagree. It is fundamental that a party is entitled to notice of any motion, including a dispositive motion. See Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 1:6-2 (2018) ("It is virtually axiomatic that . . . all motions must be on notice to the adverse party."); see also R. 1:6-3. However, Rule 1:6-3(c) provides that if service of motion papers "is by ordinary mail, receipt will be presumed on the third business day after mailing." Here, there is ample evidence in the record to support the court's conclusion that service was properly effectuated. Finally, in Point III, appellant argues that because it fully intended to complete the purchase of the property, principles of 7 A-4693-15T1 equity require reversal so that it may be permitted to complete the purchase without the need for the Sheriff's office to institute an additional and unnecessary Sheriff's sale. We have considered this argument and reject it as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 8 A-4693-15T1

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Docket No.: a4773-15
Decided: 2017-11-15
Caption: STATE OF NEW JERSEY v. HOWARD L. RYAN
Status: unpublished
Summary:
PER CURIAM Defendant Howard L. Ryan appeals from an April 27, 2016 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. A jury found defendant guilty of attempting to lure or entice a minor into a motor vehicle with a purpose to commit a criminal offense with or against the child, N.J.S.A 2C:13-6. Defendant was subsequently sentenced to a term of seven and one-half years with a five year period of parole ineligibility. Defendant appealed both the conviction and sentence. We rejected defendant's contentions and affirmed. See State v. Ryan, A-4609-10 (App. Div. May 22, 2012). The Supreme Court denied defendant's petition for certification. See State v. Ryan, 213 N.J. 45 (2013). Defendant filed a PCR petition alleging his trial counsel was ineffective based on three specific grounds: counsel failed to file a Miranda1 motion; counsel failed to review a taped statement by the victim prior to trial and failed to use the taped statement effectively in cross-examination; and counsel failed to meet with defendant and investigate facts/witnesses supporting the charge and possible defenses. The PCR judge, who did not preside over defendant's criminal trial, heard oral argument on the PCR application without conducting an evidentiary hearing. The PCR judge denied defendant's petition. 1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2 A-4773-15T1 The facts relevant to defendant's PCR application were set forth in our decision denying defendant's direct appeal. We need not repeat those facts in disposing of this appeal as they are not necessary for our review of defendant's arguments related to the denial of his PCR petition. In her comprehensive written decision on defendant's PCR application, Judge Linda L. Lawhun found that there was no meritorious basis for a Miranda motion suppressing defendant's statements. She also found that while trial counsel did not listen to the victim's taped statement prior to commencement of the trial, the trial judge permitted a brief adjournment during the trial to permit defense counsel to review the audio tape.2 The PCR judge concluded that trial counsel was not ineffective in his use of the tape to cross-examine the victim. She found that defendant's remaining claims, including the claims in defendant's pro se PCR petition, were bald assertions with no evidentiary support, were duplicative of counsel's arguments in support of the PCR petition, or could have been raised as part of defendant's direct appeal. Based on those rulings, the PCR judge determined that defendant failed to establish a prima facie case of ineffective assistance of counsel in accordance with Strickland v. Washington, 2 Defense counsel asserted that the audio tape was not provided in discovery. 3 A-4773-15T1 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). On appeal from the denial of his PCR petition, defendant raises the following arguments: POINT ONE THE PCR COURT ABUSED ITS DISCRETION BY REFUSING TO HOLD AN EVIDENTIARY HEARING WHERE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF U.S. CONST. AMENDS. VI AND XIV, AND N.J. CONST. ART. I, PAR. 10. A. Trial Counsel's Performance Was Deficient Because He Failed to Investigate Potential Alibi and/or Corroborating Defense Witnesses Who Were Either Identified by the Defendant or Obvious From the Discovery. B. Trial Counsel Was Ineffective for Failing to File a Motion to Suppress the Defendant's Alleged Statement to Corporal Daniels Where the Defendant Was Subject to a Custodial Interrogation as Required by Miranda. C. Trial Counsel's Cross- Examination of the Victim was Deficient Under Strickland Because He Did Not Effectively Utilize Her Audiotaped Statement to the Police, Which Trial Counsel Failed to Secure and Listen to Prior to the Start of Trial, to Impeach Her Testimony and Credibility. 4 A-4773-15T1 To establish a prima facie claim of ineffective assistance of counsel, 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. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also Fritz, supra, 105 N.J. at 58. In reviewing ineffective assistance claims, courts apply a strong presumption that a defendant's trial counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (citation omitted). To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succeeding under the Strickland/Fritz test. See State v. Preciose, 129 N.J. 451, 463 (1992). To demonstrate the likelihood of succeeding under the Strickland/Fritz test, a defendant "must do more than make bald assertions[,] . . . [and] must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. 5 A-4773-15T1 Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The PCR judge found no merit to defendant's contention that his counsel was ineffective because he should have filed a Miranda motion to suppress defendant's statements to the police. In this case, the victim flagged down a nearby police officer contemporaneous to her encounter with defendant. The victim told the officer that a man in a car approached her and offered her money. The officer saw the vehicle described by the victim and proceeded to stop defendant's car. The officer then asked defendant for his driving credentials and inquired what he was doing near the victim. The officer stopped defendant's car a second time and questioned defendant as to his purpose for being in town. Although the officer stopped defendant twice, and asked questions related to defendant's reasons for being in the area, the officer let defendant drive away both times. Defendant was never asked to step outside his car. At no time was defendant's freedom restricted so as to amount to a custodial interrogation. Moreover, defendant's statements to the officer were voluntary and provided in response to the inquiries related to the officer's investigation. Under these circumstances, we agree that Miranda warnings were not required a result of the brief discussions between 6 A-4773-15T1 defendant and the officer. The principles of Miranda were not intended to hamper or inhibit police engaging in "on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process. . . ." Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725. In responding to the officer who was making inquiry, defendant was neither under arrest nor undergoing custodial interrogation. See State v. Smith, 374 N.J. Super. 425, 430-31 (App. Div. 2005). In this situation, a suppression motion would not have been successful, and defense counsel was not ineffective for failing to file a Miranda motion. See State v. Worlock, 117 N.J. 596, 625 (1990). As for defendant's contention that his counsel was ineffective in failing to listen to the audio recording of the victim's statement and then use that statement effectively during cross-examination, the PCR judge correctly observed that defense counsel requested, and was granted, an adjournment during the trial so that counsel could listen to the victim's recorded statement. Defense counsel continued cross-examination of the victim the next morning, after counsel had ample opportunity to listen to the audio recording of the victim's statement and formulate his cross-examination questions. We listened to the audio recording of the victim's statement, as did the PCR judge, 7 A-4773-15T1 and agree that the victim's trial testimony did not contradict her recorded statement to the police. Defendant failed to demonstrate that defense counsel's cross-examination of the victim was deficient so as prejudice his defense. Lastly, defendant asserts defense counsel was ineffective in failing to meet with him and investigate potential witnesses, including defendant's wife who defendant claims would have corroborated his explanation for being in the area on the day of the incident. Rule 3:22-10(c) states that "[a]ny factual assertion that provides the predicate for a claim of relief [in a petition for PCR] must be made by an affidavit or certification . . . and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing." Under this rule, a defendant asserting a claim of ineffective assistance of counsel in a PCR petition based on his counsel's failure to produce a witness at trial must present a certification by that witness concerning the testimony the witness would have given. See State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002); State v. Cummings, supra, 321 N.J. Super. at 170-71. Defendant was unable to identify or provide any information about the group of girls or the group of males who were allegedly in the vicinity of the victim when defendant claims he stopped to ask for directions. Defendant failed to provide information that 8 A-4773-15T1 would have allowed defense counsel to locate and question these claimed witnesses and obtain affidavits in support of his PCR application. More importantly, defendant speculates that these potential witnesses, if they could have been located by defense counsel, overheard his conversation with the victim and would have corroborated his testimony. In a PCR petition it is defendant's burden to present witnesses he claims would have been available to testify and specify the nature of their testimony. See Cummings, supra, 321 N.J. Super. at 171. As for the failure to call defendant's wife, who allegedly would have corroborated defendant's reasons for being in the area on the day of the incident, his wife died in 2014 and thus could not confirm or deny defendant's PCR petition claim by way of a supporting affidavit.3 Moreover, as the PCR judge noted, defendant's wife was not with him when the offense occurred and thus could not have known what defendant was doing at the time of the incident. Consequently, the PCR judge found that the testimony of defendant's wife would not have been sufficient to create "a reasonable doubt with respect to an essential feature of the State's case." State v. Fortin, 178 N.J. 540, 591 (2004). 3 At no time subsequent to his conviction, until his wife's death in 2014, did defendant attempt to obtain a corroborating affidavit from his wife as to defendant's reasons for being in town on the date of the incident. 9 A-4773-15T1 Based on our review of the record, we are satisfied that defendant failed to demonstrate that he was denied effective assistance counsel to meet the Strickland/Fritz test. Affirmed. 10 A-4773-15T1

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Docket No.: a0645-15
Decided: 2017-11-14
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the LAWRENCE V. LONGHI v. STARR, GERN, DAVISON & RUBIN, PC and ALLAN R. MORDKOFF, ESQ and WILLIAM B. JO
Status: unpublished
Summary:
PER CURIAM Plaintiff Lawrence V. Longhi appeals from summary judgment orders dismissing his legal malpractice action against defendants Starr, Gern, Davison, & Rubin, P.C. (Starr Gern or the Firm), Ronald Davison, Esq., Richard Welch, Esq., and Allan R. Mordkoff, Esq. For the reasons that follow, we affirm. I. Plaintiff's claim of legal malpractice arises out of a failed business relationship. Because this motion was decided under Rule 4:46, we recite the facts as presented by plaintiff, the non- moving party. Robinson v. Vivorito, 217 N.J. 199, 203 (2014) ("We derive the facts viewed in the light most favorable to plaintiff from the record submitted in support of and in opposition to defendants' motion for summary judgment."). In March 2003, plaintiff, acting on behalf of his closely- held companies Afgamco, Inc. and Longhi Associates, Inc., entered into a Memorandum of Understanding (the Agreement) with the Michael Baker Corporation and Weidlinger Associates, Inc. (collectively referred to as the Baker Defendants) to jointly undertake infrastructure development projects in Afghanistan and share in 2 A-0645-15T1 the profits. The Agreement specifically provided "a Joint Venture (JV) will be established to prosecute the work . . . . [Plaintiff] will be paid a commission based on the magnitude of the work secured." According to plaintiff, following the United States military intervention in Iraq, the Baker Defendants agreed to expand the scope of the Agreement to Iraq as well. Plaintiff's relationship with the Baker Defendants deteriorated when he learned they accepted contracts from the U.S. Army Corps of Engineers to build army bases in Iraq for the Afghani army, a project valued at over two billion dollars. Plaintiff never received notice of these government contracts from the Baker Defendants. The Underlying Litigation Plaintiff maintained that the Baker Defendants procured contracts with the assistance of plaintiff and his companies but failed to advise plaintiff and his companies of the execution of the contracts or compensate them in accordance with the Agreement. Consequently, plaintiff retained Starr Gern as legal counsel to pursue a breach of contract action. The retainer agreement provided for compensation to Starr Gern on a contingent fee basis, and allowed the Firm to withdraw as counsel under certain conditions, including if Starr Gern determined that plaintiff's 3 A-0645-15T1 case would not recover a judgment sufficient to warrant pursuing the litigation. Starr Gern filed a complaint on behalf of plaintiff and his companies against the Baker Defendants in September 2005 (the underlying litigation). The complaint alleged, in pertinent part, breach of contract and fraud. On April 30, 2007, Starr Gern provided plaintiff with a detailed memorandum containing "an overview of th[e] case as it [] stands from a factual, legal and procedural standpoint." The memorandum detailed available theories of recovery and concluded that even if [Starr Gern is] successful in gaining access to all the information we seek . . . . [t]his would require a significant investment of our own, [] but if we were to successfully develop the evidence [], the returns could be substantial, both in terms of likelihood of success and of eventual damages. Four days later, on May 3, 2007, Starr Gern sent a letter notifying plaintiff the Firm was withdrawing as counsel, and that "in our meeting today it was agreed that you will engage new counsel to pursue this case." The letter also advised plaintiff his new counsel should "contact [Starr Gern] to make arrangements for the transition of professional responsibility[.]" That same day, the Baker Defendants' counsel sent a letter to Starr Gern enclosing two contracts previously entered into 4 A-0645-15T1 between the Baker Defendants and the U.S. Army Corps of Engineers Transatlantic Program Center. According to plaintiff, Starr Gern failed to divulge this information to plaintiff or his successor counsel. In June 2007, Starr Gern filed a motion to be relieved as plaintiff's counsel on the basis that "irreconcilable differences" had developed in their relationship. Plaintiff responded by letter to the court, indicating his "dissatisfaction with the timing and justification for the withdrawal[,]" but also noting "that if [Starr Gern] do[es] not wish to represent me any longer, then I do not want them as my attorneys." At this time, plaintiff had a pending discovery motion to compel the Baker Defendants to release contracts pertinent to the underlying suit, and a motion to extend discovery. After Starr Gern withdrew, the court stayed the case for forty-five days so plaintiff could retain new counsel. The court also sua sponte withdrew both discovery motions and allowed them to be refiled after the stay was lifted and new counsel retained. Plaintiff retained new counsel in October 2007, but that firm subsequently withdrew in February 2008. Thereafter, plaintiff retained defendant Mordkoff, who had previously worked on the case at Starr Gern before leaving the Firm. According to plaintiff, neither Starr Gern, successor counsel, nor Mordkoff, ever re-filed 5 A-0645-15T1 the motion to compel the Baker Defendants to release the contracts awarded to them in Afghanistan and Iraq. At the close of discovery, the Baker Defendants moved for summary judgment. The court granted the motion, determining that federal [procurement] policy [ ] prohibits the use or employment of any person who is compensated on a contingency fee basis by government contractors to secure contracts with the federal government. . . . [E]ven if any Army Corps of Engineers contracts were obtained through plaintiff's efforts, federal [procurement] law bars plaintiff's claim for a finder's fee. Congress has provided two exceptions to this rule, bona fide employees and bona fide established commercial or selling entities. Plaintiff does not suggest that his efforts fall within either exception. [(Emphasis added).] The trial court dismissed the underlying action with prejudice on July 18, 2008. Plaintiff did not appeal. The Malpractice Action Plaintiff commenced the present legal malpractice action on January 13, 2013, alleging Starr Gern failed to disclose material information to him obtained in discovery, including the contracts enclosed with the May 3, 2007 letter from the Baker Defendants' counsel, and represented to the court and plaintiff that his lawsuit was meritless. 6 A-0645-15T1 During the malpractice litigation, plaintiff produced an expert report authored by Michael P. Ambrosio,1 who opined: the facts in the instant case clearly manifest the existence of the required elements to establish [d]efendant[s'] liability for legal malpractice. [Defendants] failed to properly advise [p]laintiff regarding his claims and failed to turn over to [p]laintiff or successor counsel material evidence of the existence of contracts that [the Baker Defendants] had obtained and . . . had agreed to pay [p]laintiff's company one third of the profits on those contracts. Defendant Lawyers were negligent in their failure to properly respond to the alleged applicability of . . . 48 C.F.R. 3.400- 3.4[06].2 At the conclusion of discovery, Starr Gern and its individual representatives, Davison and Welch, moved for summary judgment. The motion judge conducted oral argument and framed plaintiff's malpractice action as based on an allegation that Starr[] Gern [ ] failed to appraise [plaintiff] of [ ] 1 In his December 29, 2014 report, Ambrosio identified himself as "an expert on the legal profession, legal ethics and legal malpractice." Among his qualifications, Ambrosio served as a Professor of Law at Seton Hall Law School for forty-four years, during which he taught a course in Professional Responsibility for thirty-six years. 2 These regulations provide the exceptions to the bar of the federal procurement statute. 7 A-0645-15T1 correspondence evidencing contracts procured by the Baker [D]efendants . . . to which [plaintiff] allege[s] an entitlement to a finder's fee commission . . . [thereby] precluding [p]laintiff from procuring [] discovery. Plaintiff [further] contends that Starr Gern never advised [him] of any related federal statutes [pertinent to his case,] and never advised him on the subject. . . . Plaintiff alleges that by withdrawing when they did, Starr[] Gern knew that plaintiff and new [c]ounsel would never get fully and properly prepared in time for trial . . . and failed to turn over key documents necessary to successfully litigate the case[.] On January 23, 2015, the court granted summary judgment in favor of Starr Gern, Davison, and Welch. The motion judge found: [t]he underlying case was dismissed because the contracts presented to the [c]ourt were between the Baker [D]efendants and the U.S. Army Corp[s] of Engineers. Finder's fees in connection with those contracts are specifically prohibited by the federal procurement statute[.] . . . So the [c]ourt found that plaintiff could not prevail as a matter of law and granted summary judgment for the Baker [D]efendants. [I]n granting summary judgment, the [c]ourt observed that plaintiff was unable to proffer any evidence of any contract that was awarded to the Baker [D]efendants as a result of plaintiff's effort, despite almost 900 days of discovery. In addition, it is clear that the [c]ourt considered the exceptions to the federal procurement bar to a finder's fee. 8 A-0645-15T1 [(Emphasis added).] Mordkoff thereafter moved for summary judgment, arguing plaintiff was collaterally estopped from seeking damages based on the court's ruling in the underlying action that the federal procurement law barred his breach of contract action against the Baker Defendants. The motion judge agreed, finding "this is a case where collateral estopp[el] does apply." On August 7, 2015, the judge entered an order dismissing the malpractice action against Mordkoff. Plaintiff now appeals the summary judgment orders.3 II. When reviewing the grant of summary judgment, we analyze the decision applying the "same standard as the motion judge." Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). That standard mandates that summary judgment be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving 3 Plaintiff's notice of appeal also references a companion order entered on August 7, 2015, denying plaintiff's motion to extend discovery, which the court concluded was rendered moot by the entry of summary judgment. However, plaintiff has not briefed that issue. An issue not briefed is deemed waived. See Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014). 9 A-0645-15T1 party is entitled to a judgment or order as a matter of law." [Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).] "To defeat a motion for summary judgment, the opponent must 'come forward with evidence' that creates a genuine issue of material fact." Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div.), certif. denied, 211 N.J. 608 (2012)), certif. denied, 220 N.J. 269 (2015). "[C]onclusory and self-serving assertions by one of the parties are insufficient to overcome the motion[.]" Puder v. Buechel, 183 N.J. 428, 440-41 (2005) (citations omitted). In a legal malpractice action, "summary disposition is appropriate only when there is no genuine dispute of material fact." Ziegelheim v. Apollo, 128 N.J. 250, 261 (1992). "When no issue of fact exists, and only a question of law remains, [we] afford[] no special deference to the legal determinations of the trial court." Templo Fuente De Vida, supra, 224 N.J. at 199 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). A legal malpractice action has three essential elements: "(1) the existence of an attorney-client relationship creating a duty 10 A-0645-15T1 of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff." Jerista v. Murray, 185 N.J. 175, 190-91 (2005) (quoting McGrogan v. Till, 167 N.J. 414, 425 (2001)). The first element requires an attorney "to exercise on his client's behalf the knowledge, skill and ability ordinarily possessed and exercised by members of the legal profession similarly situated and to employ reasonable care and prudence in connection therewith." Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983). At a minimum, an attorney must take "any steps necessary" to properly handle a case, including carefully investigating the facts, formulating a legal strategy, filing appropriate papers, and communicating with the client. Ziegelheim, supra, 128 N.J. at 260-61. The second element requires a breach of these duties. As to the third element, plaintiff must prove he suffered damages as a proximate consequence of defendants' breach of duty. Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 357 (2004). In the present case, there is no dispute that defendants owed plaintiff a duty of care. We thus focus our analysis on whether plaintiff adduced sufficient competent, credible evidence that defendants breached that duty and, if so, whether such breach was the proximate cause of plaintiff's damages. 11 A-0645-15T1 Plaintiff contends Starr Gern breached its duty of care by (1) failing to disclose material information obtained during discovery; (2) failing to raise the federal procurement regulations in prosecuting the underlying matter; and (3) misrepresenting to both plaintiff and the lower court that the underlying lawsuit was meritless. As to Starr Gern's "fail[ure] to disclose material discovery information[,]" plaintiff points to the two contracts Starr Gern received from the Baker Defendants' counsel in his May 3, 2007 letter. He argues Starr Gern never advised him or successor counsel it received those contracts, thus resulting in a breach of the Firm's duty of care. Plaintiff supports his argument with the May 3, 2007 letter that shows Starr Gern received the two contracts in discovery. In moving for summary judgment in the malpractice action, Starr Gern's counsel submitted a certification disputing the alleged non-disclosure. Thus, whether Starr Gern disclosed these contracts to plaintiff or successor counsel in the underlying action is a materially disputed fact. As to Starr Gern's failure to inform plaintiff of federal procurement law and accompanying exceptions, it is well- established that "[i]gnorance of the law does not diminish [an attorney's] responsibility." In re Rosner, 113 N.J. 2, 16 (1988); see also Procanik by Procanik v. Cillo, 226 N.J. Super. 132, 150 12 A-0645-15T1 (App. Div.) ("If the law is settled, [an attorney] is expected to know what it is and state it accurately."), certif. denied, 113 N.J. 357 (1988). Here, Starr Gern compiled an eight-page memorandum providing plaintiff with "an overview of this case as it currently stands from [a] factual, legal and procedural standpoint." This analysis completely fails to address federal procurement policy or its exceptions. A reasonable juror could certainly conclude this omission was rooted in negligence and Starr Gern failed to properly advise plaintiff with respect to the merits of the underlying action. Assuming Starr Gern was negligent in withholding the contract documents and failing to advise plaintiff on federal procurement law, we next address whether such negligence was the proximate cause of plaintiff's harm. For plaintiff to establish he was damaged by defendants' negligence, plaintiff must have proffered sufficient evidence that otherwise he would have prevailed and obtained damages in the underlying litigation. He thus must have proffered sufficient evidence that his companies fell within an exception to the bar of the federal procurement policy. "To establish the requisite causal connection between a defendant's negligence and plaintiff's harm, plaintiff must present evidence to support a finding that defendant's negligent 13 A-0645-15T1 conduct was a 'substantial factor' in bringing about plaintiff's injury, even though there may be other concurrent causes of the harm." Froom v. Perel, 377 N.J. Super. 298, 313 (App. Div.) (quoting Conklin v. Hannoch Weisman, 145 N.J. 395, 419 (1996)), certif. denied, 185 N.J. 267 (2005). The simplest understanding of [proximate cause] in attorney malpractice cases arises from the case-within-a-case concept. For example, if a lawyer misses a statute of limitations and a complaint is dismissed for that reason, a plaintiff must still establish that had the action been timely filed it would have resulted in a favorable recovery. [Conklin, supra, 145 N.J. at 417.] In granting summary judgment in the underlying action, the court found plaintiff failed to proffer evidence of any contract awarded to the Baker Defendants as a direct result of plaintiff's efforts that would entitle plaintiff to a commission. Arguably, however, a jury could find plaintiff's inability to produce the two contracts at issue resulted from Starr Gern's negligence in failing to disclose them. Moreover, in opposing Starr Gern's summary judgment motion in the malpractice action, plaintiff detailed the efforts of his companies that led to the procurement of the two contracts enclosed with the May 3, 2007 letter that were valued at over two billion dollars. Again, if accepted by a jury, this evidence could have supported a finding that Starr 14 A-0645-15T1 Gern's negligence led to the dismissal of the underlying action and plaintiff was damaged as a result. Nonetheless, we conclude that plaintiff's malpractice claims against all defendants fail because he did not adduce competent evidence that the underlying action against the Baker Defendants was not barred under federal procurement policy. To establish legal malpractice, plaintiff was "required to show that competent, credible evidence existed to support each of the elements of that negligence action[.]" Cortez, supra, 435 N.J. Super. at 598. In granting summary judgment in the underlying action, the court concluded that federal procurement policy barred plaintiff's recovery. The court noted bona fide employees and bona fide established commercial or selling entities constituted exceptions to this policy, and "[p]laintiff does not suggest that his efforts fall within either exception." Federal procurement policy, 41 U.S.C.A. § 3901,4 requires that [e]very contract awarded after using procedures other than sealed-bid procedures shall contain a suitable warranty . . . by the contractor that no person or selling agency has been employed or retained to solicit or secure the contract on an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except for bona fide employees or bona fide established commercial or selling agencies the contractor maintains to secure business. 4 The same policy exists under 10 U.S.C.A. § 2306. 15 A-0645-15T1 [(Emphasis added).] 48 C.F.R. § 3.400 through 48 C.F.R. § 3.406 "provide[] policies and procedures that restrict contingent fee arrangements for soliciting or obtaining Government contracts to those permitted by 10 U.S.C.[A.] § 2306(b) and 49 U.S.C.[A.] § 3901." 48 C.F.R. § 3.400 (2017). Section 3.402(b) contains the exception which, plaintiff argues, would have allowed him to survive summary judgment in the underlying action had counsel properly researched and presented it. The exception permits "contingent fee arrangements between contractors and bona fide employees or bona fide agencies." 48 C.F.R. § 3.402(b) (2017). A bona fide agency is "an established commercial or selling agency, maintained by a contractor for the purpose of securing business, that neither exerts nor proposes to exert improper influence to solicit or obtain Government contracts nor holds itself out as being able to obtain any Government contract or contracts through improper influence." 48 C.F.R. § 3.401 (2017). Five factors are relevant in making this determination: (1) whether the fees are commensurate with the nature and extent of the services rendered by the company and not excessive as compared with the fees customarily allowed for similar services; (2) whether the company had adequate knowledge of the products and business of the party it contracted with; (3) whether there has been continuity in the relationship between the parties; (4) whether the company 16 A-0645-15T1 is an established concern; and (5) whether the arrangement is not confined to obtaining government contracts. [Puma Indus. Consulting, Inc. v. Daal Assocs., Inc., 808 F.2d 982, 985 (2d Cir. 1987).] Improper influence is defined as "any influence that induces or tends to induce a Government employee or officer to give consideration or to act regarding a Government contract on any basis other than the merits of the matter." Ibid. Plaintiff argues that his closely-held companies, Afgamco, Inc. and Longhi Associates, Inc., fall within the exceptions to the bar of the federal procurement statute. However, plaintiff's certification in opposition to defendants' summary judgment motions in the malpractice action is silent on this issue and does not address any of the factors that would qualify him or his companies as bona fide employees or agencies. Plaintiff's expert, Ambrosio, did not submit a certification addressed to this point, and in his report he merely referenced "Exhibit A" to plaintiff's certification as "documentation" that "clearly demonstrates how [plaintiff's] company was a bona fide agency." "Exhibit A," in turn, is a copy of the March 17, 2003 Agreement that merely spells out the commission arrangement between plaintiff and the Baker Defendants and likewise does not address the factors that would demonstrate a regulatory exception. 17 A-0645-15T1 In short, plaintiff failed to provide any competent factual support for his contention that he fell within an exception to the bar of the federal procurement policy. Consequently, he did not establish he was entitled to damages from the Baker Defendants in the underlying action, or that any legal malpractice by defendants in that action was the proximate cause of any loss. Affirmed. 18 A-0645-15T1

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Docket No.: a0858-14a069
Decided: 2017-11-14
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the SHEILA MARTELLO v. ROBERT A. FRANCO, ESQ. and RANDI K. FRANCO, ESQ and FRANCO & FRANCO, ATTORNEYS A
Status: unpublished
Summary:
PER CURIAM Defendants Robert A. Franco, Randi K. Franco, and Todd Siegmeister appeal from a September 19, 2014 order enforcing two stipulations of settlement reached with plaintiff Sheila Martello, requiring defendants to re-pay plaintiff funds she advanced 2 A-0698-14T3 relating to a gold venture in Africa.1 They also appeal from an order entered the same date denying their cross-motion to vacate the settlement agreements. These are back-to-back appeals consolidated for the purpose of this opinion. We affirm. This matter commenced when plaintiff filed a Law Division complaint asserting Robert A. Franco and Randi K. Franco committed fraud, negligence, misappropriation, civil conspiracy to commit fraud, and conversion. The complaint sought veil piercing remedies against the Francos' law firm. Plaintiff also asserted: fraud, misappropriation, civil conspiracy to commit fraud, conversion, and piercing the corporate veil against Todd Siegmeister. Plaintiff claimed defendants fraudulently induced her to loan them $785,000 for a fictitious venture. Specifically, Robert allegedly informed plaintiff's brother, Paul Martello, "he could make money quickly if he could find people to make a [thirty] day loan of $200,000 to Crown Financial who would re-pay the loan plus [twelve percent] interest and $100,000 within [thirty] days." Robert allegedly assured Paul Martello he was part owner of Crown Financial and that the company needed the money to finance the shipment of gold from Africa. 1 We will refer to Robert A. Franco and Randi K. Franco collectively as "the Francos." As defendants share a common last name, we will refer to them individually by their first names; no disrespect is intended. 3 A-0698-14T3 Paul Martello informed Robert he thought his sister could make the loan. Robert and Siegmeister contacted plaintiff. Robert allegedly represented he was Crown Financial's international general counsel, and Siegmeister its President. Robert allegedly informed plaintiff her monetary contribution would be used to pay the taxes, insurance, and freight for the gold transaction, and that he would personally "ensure the payment of those expenses out of his Law Firm's Trust Account." Plaintiff also alleges defendants stated her investment would be insured and guaranteed by an all-risk policy issued by Lloyd's of London. Plaintiff loaned defendants $200,000 on December 23, 2010, $150,000 on January 13, 2011, $60,000 on March 7, 2011, $175,000 on April 11, 2011, $56,000 on June 3, 2011, and $144,000 on June 9, 2011. Defendants executed loan agreements and promissory notes for the funds plaintiff provided. Plaintiff alleged these funds were never used to pay taxes, insurance, or freight, but were distributed from the Francos' Law Firm Trust Account to defendants. Plaintiff also alleged her loans were not insured by Lloyd's of London. Plaintiff was never repaid. On January 6, 2014, the matter was scheduled in the Law Division for a default proof hearing. Defendants' pleadings had previously been stricken for failing to comply with a court order to pay an award of counsel fees and accounting fees to plaintiff. 4 A-0698-14T3 The parties engaged in settlement discussions and plaintiff reached two settlement agreements with defendants. The settlement agreement between plaintiff and Siegmeister also resolved all claims against Michael Kirkovich, Elliot Vernon, Crown Financial Solutions, LLC, Crown Precious Metals Group, LLC, and Verde Tropical Development, Group LLC. The agreement with Siegmeister required plaintiff be re-paid a total of $550,000 in three equal installments of $183,333.33, payable on June 30, September 30, and December 30, 2014. In exchange, plaintiff agreed to dismiss her complaint. In the event of a default, the settlement agreement provided plaintiff could file a motion to seek entry of a judgment against Siegmeister, Michael Kirkovich, Elliot Vernon, Crown Financial Solutions, LLC, Crown Precious Metals Group, LLC, and Verde Tropical Development Group, LLC in the amount of $900,000, less any sums paid by these defendants. The settlement agreement between plaintiff and the Franco defendants provided for a payment obligation totaling $350,000, payable in three installments of $116,670.00, due on June 30, September 30, and December 30, 2014. The Franco settlement agreement contained the same default provisions as the agreement with Siegmeister, and stipulated plaintiff would be able to seek entry of judgment in the amount of $800,000, less any payments made by the Franco defendants. 5 A-0698-14T3 Neither the Francos nor Siegmeister made the June 30, 2014 payment. Consequently, plaintiff filed a motion to enter judgment in accordance with the settlement agreements. Both Siegmeister and the Francos opposed the motion and filed cross-motions to invalidate the settlement agreements, claiming they were usurious, fraudulent, and unconscionable. After oral argument, the motion judge entered an order denying both cross-motions, and entered judgment for plaintiff, in accordance with the settlement agreements, for $800,000 against the Francos and $900,000 against Siegmeister. On appeal, the Francos and Siegmeister argue the September 19, 2014 order entering judgment should be vacated as a matter of law because both settlement agreements are illegal. Specifically, defendants allege the settlement agreements are usurious and violate N.J.S.A. 31:1-1, since the combined amount they are obligated to pay is more than two-hundred percent of the original loan amount. Defendants also argue the motion court should not have enforced an illegal agreement, which contained a punitive amount of interest. Defendants claim they are entitled to relief by framing these arguments within Rule 4:50-1(a), (b), (c), (d) and (f). 6 A-0698-14T3 I. We begin by reciting our standard of review. We review a trial judge's entry of judgment pursuant to Rule 1:10-3, under an abuse of discretion standard. Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). Generally, Rule 1:10-3 is "a civil proceeding to coerce the defendant into compliance with the court's order." Pasqua v. Council, 186 N.J. 127, 140 (2006) (citing Essex Cty. Welfare Bd. v. Perkins, 135 N.J. Super. 189, 195 (App. Div.), cert. denied, 68 N.J. 161 (1975)). In fact, a proceeding under Rule 1:10-3 "is [the] proper tool to compel compliance with a court order." Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997). As such, a trial judge's exercise of discretion will not be disturbed absent a demonstration of an abuse of discretion resulting in injustice. Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988). "An abuse of discretion 'arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Barr, supra, 58 N.J. Super. at 46 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561 (2002)). II. Defendants argue the judgments are unenforceable because both settlement agreements are illegal and represent a "mistake of the exploitive amount calculated in the settlement agreement and 7 A-0698-14T3 applied in the judgment; plaintiff and plaintiff's attorney's fraudulent acts of fashioning a judgment which is tantamount to criminal and civil usury; and the judgment's void nature since it is illegal." Specifically, defendants allege the agreements are unenforceable since they penalize defendants in the event of a default. We have stated that: 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. Indeed, "settlement of litigation ranks high in our public policy." Moreover, courts will not ordinarily inquire into the adequacy or inadequacy of the consideration underlying a compromise settlement fairly and deliberately made. . . . [W]here there is no showing of "artifice or deception, lack of independent advice, abuse of confidential relation, or similar indicia generally found in the reported instances where equity has declined to enforce, as unfair or unconscionable, an agreement voluntarily executed by the parties," the agreement should be enforced. It is only where the inadequacy of consideration is grossly shocking to the conscience of the court that it will interfere. [Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.) (citations omitted), cert. denied, 94 N.J. 600 (1983).] Rule 4:50-1 states: On motion, with briefs, and upon such terms as are just, the court may relieve a party or 8 A-0698-14T3 the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud[,] . . . misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; . . . (f) any other reason justifying relief from the operation of the judgment or order. Generally, "[c]ourts should use Rule 4:50-1 sparingly, [and] in exceptional situations[.]" Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994). Relief under Rule 4:50-1 "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." Manning Eng'g, Inc. v. Hudson Cty. Park Comm'n, 74 N.J. 113, 120 (1977) (citing Hodgson v. Applegate, 31 N.J. 29, 43 (1959)). "The kind of mistake contemplated by [Rule 4:50-1(a)] has been described as one in which the parties could not have protected themselves from during the litigation." Pressler & Verniero, Current N.J. Court Rules, cmt. 5.1.1 on R. 4:50-1 (2018); See DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 263 (2009). Therefore, "neither the court's nor an attorney's error as to the law or the remedy constitutes mistake under this section." Pressler & Verniero, supra, cmt. 5.1.1 on R. 4:50-1. 9 A-0698-14T3 To establish relief from a judgment based on newly discovered evidence under Rule 4:50-1(b) the evidence must be: (1) [] material to the issue and not merely cumulative or impeaching, (2) have been discovered since the trial and must be such as by the exercise of due diligence could not have been discoverable prior to the expiration of the time for moving for a new trial; and (3) be of such a nature as to have been likely to have changed the result if a new trial had been granted. [Pressler & Verniero, Current N.J. Court Rules, cmt. 5.2 on R. 4:50-1 (2018).] Fraud, under Rule 4:50-1(c) requires proof of: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 172-73 (2005) (quoting Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997)). Fraudulent misrepresentation occurs when an individual purports to represent a fact when it is in fact false. Jewish Ctr. of Sussex Cty. v. Whale, 86 N.J. 619, 624 (1981). Legal fraud or fraudulent misrepresentation must be established by clear and convincing evidence. See Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 395-96 (App. Div. 1989), certif. denied, 121 N.J. 607 (1990). 10 A-0698-14T3 Under Rule 4:50-1: "No categorization can be made of the situations which warrant redress under subsection (f). . . . [T]he very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." DEG, supra, 198 N.J. at 269-71 (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). Here, the record demonstrates the parties voluntarily entered into two settlement agreements, whose terms were unambiguous, including the provisions pertaining to enforcement of the agreements in the event of a default. The agreements were reached at arms-length, and with each party having provided consideration. There is no evidence in the record to the contrary. We do not view the motion judge's enforcement of the settlement agreements by entering judgment against defendants as an unconscionable penalty. A settlement agreement providing for enforcement is considered a penalty, and thus unenforceable when: a) the penalty is designed to be a punishment for a breach of the contract; and b) the penalty has no relation whatsoever to the amount of damages. See Westmount Country Club v. Kameny, 82 N.J. Super. 200, 206-07 (App. Div. 1964). Here, plaintiff's claims against defendants exceeded $1.7 million. She agreed to compromise those claims for $900,000, in 11 A-0698-14T3 exchange for surety of payment under an agreed upon schedule, and the ability to seek a $1.7 million judgment in the event of default. Thus, the sums set forth in the settlement did not exceed the total amount claimed in plaintiff's complaint and had a relation to the damages plaintiff alleged. We reject defendants' claims the settlement agreement and judgment enforcing them are usurious. Defendants misconstrue N.J.S.A. 31:1-1. This statute does not apply to the settlement agreements here because they were not loan instruments. See Loigman v. Keim, 250 N.J. Super. 434, 437 (Law Div. 1991) ("[T]he law of this State is consistent with the majority view that the usury statute N.J.S.A. 31:1-1, does not apply to interest on defaulted obligations."). Also, the settlement agreements do not impose an interest rate. The motion judge explained the sums due in the event of default encompassed the damages sought by plaintiff in her complaint under the parties' contract, including plaintiff's claims against defendants for misappropriation, fraud, and legal fees. Therefore, the terms of the settlement agreements are fair and entitled to enforcement. The record is devoid of a material misrepresentation by plaintiff that defendants relied upon resulting in damages. Indeed, defendants do not profess ignorance of the express terms 12 A-0698-14T3 of the settlement agreements. They negotiated the agreements for which there was a bargained for consideration. These facts do not support a finding of mistake, fraud, or misrepresentation. The record lacks any evidence, other than defendants' claim the settlement agreement was usurious, which we have rejected, to support their arguments on the grounds of newly discovered evidence or exceptional circumstances. Defendants do not point out what new evidence came to light that they did not have when they entered into the agreements. Also, because the settlement agreements were not usurious and the order enforcing the settlement was not an abuse of discretion, there are no exceptional circumstances warranting relief under Rule 4:50-1(f). III. Defendants challenge the September 19, 2014 order and reassert their arguments that they have no personal or individual obligation to plaintiff because the loans she made were to the corporate defendants, not the Francos or Siegmeister individually. The record clearly demonstrates defendants acknowledged individual responsibility for the funds provided by plaintiff by personally obligating themselves to repay plaintiff, and in default thereof to accept the imposition of a judgment for the unpaid amounts. We deem this argument without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). 13 A-0698-14T3 Lastly, Siegmeister argues the motion judge improperly denied his request for an adjournment of the motion, which Siegmeister made on the return date of the motion. We find no abuse of discretion in this regard, and this argument also lacks merit to warrant further discussion. R. 2:11-3(e)(1)(E). Affirmed. 14 A-0698-14T3

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Docket No.: a0944-16a108
Decided: 2017-11-14
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3 JCPO, LLC v. CLAYTON PERLMAN a
Status: unpublished
Summary:
PER CURIAM Plaintiff JCPO, LLC brought this chancery action against defendants Clayton and Eva Perlman, alleging a fraudulent transfer of property from Clayton to Eva. At the conclusion of JCPO's case- in-chief, Chancery Judge Patricia Del Bueno Cleary dismissed the complaint pursuant to Rule 4:37-2(b). Later, the judge denied defendants' motion, based on both Rule 1:4-8 and N.J.S.A. 2A:15- 59.1, for frivolous litigation fees. JCPO appeals the involuntary dismissal, as well as the judge's later denial of its motion for reconsideration and a new trial. And defendants appeal the denial of their motion for fees. We calendared these appeals back-to-back and now affirm the orders under review by way of this single opinion. Indeed, we affirm those orders substantially for the reasons set forth by Judge Cleary in her oral decisions. We add only the following brief comments regarding JCPO's appeal of the involuntary dismissal. As the judge recognized, there was no dispute that, in 2010, JCPO lent $170,000 to FHF Enterprises, LLC, to fund the latter's acquisition and liquidation of foreclosed Florida properties. 2 A-0944-16T1 Defendant Clayton Perlman, as a principal of FHF, signed the loan agreement on FHF's behalf. But there was no evidence to support the contention that Clayton Perlman signed the agreement in an individual capacity or otherwise obligated himself personally on the promise to repay. The evidence reveals that FHF later defaulted on the loan agreement. JCPO then sued FHF, Clayton Perlman, and Frank Ficca, another FHF principal, in a Florida court, alleging securities fraud. In January 2013, the parties to the Florida suit entered into a settlement agreement which called for a release of the claims asserted by JCPO and the payment to JCPO by those defendants of $120,000 in two installments. The first $20,000 installment, due in April 2013, was paid; the second $100,000 installment, due by the end of 2013, was not. Pursuant to the stipulation in the settlement agreement that authorized JCPO's entitlement to a $150,000 consent judgment, less any paid settlement proceeds, a $130,000 judgment was entered in January 2014 against FHF, Clayton Perlman, and Frank Ficca. This chancery action, commenced in November 2014 sought to set aside a 2010 conveyance made by defendant Clayton Perlman – a judgment debtor on the 2014 judgment based on the Florida settlement agreement – to his wife, defendant Eva Perlman. Judge Cleary, correctly applying Rule 4:37-2(b), which required that she 3 A-0944-16T1 accept as true all the evidence that supported JCPO's position and provide JCPO with all reasonable legitimate inferences, Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) – found no evidence to suggest anything but that the underlying 2010 transaction was between only JCPO and FHF and that, although Clayton Perlman executed the loan agreement, he did so only in his capacity as a member of FHF and not personally. In reviewing this determination, like the chancery judge we too must honor the juridical distinction between the business entity that incurred the 2010 obligation and the individual who allegedly transferred assets at about the same time as the loan agreement and who only, three years later, incurred personal liability toward the claimant by entering into the settlement agreement. See Motorworld, Inc. v. Benkendorf, 228 N.J. 311, 317, 332-33 (2017). For these reasons, as well as those set forth by Judge Cleary in her cogent and thoughtful oral decision, we affirm the order granting an involuntary dismissal of JCPO's action. The orders under review in A-0944-16 and A-1087-16 are affirmed. 4 A-0944-16T1

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Docket No.: a1901-16
Decided: 2017-11-14
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the MICHAEL MARTIN v. CONIFER-LECHASE CONSTRUCTION LLC, CONIFER REALTY, LLC -
Status: unpublished
Summary:
PER CURIAM Plaintiff Michael Martin appeals from a December 2, 2016 order granting summary judgment, dismissing his amended complaint on statute of limitations grounds. We review the trial court's summary judgment order de novo. See Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). Likewise, we owe no deference to a trial court's legal interpretations. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). After reviewing the record with those standards in mind, we affirm for the reasons cogently stated by Judge Aimee R. Belgard in her supplemental letter opinion dated February 10, 2017. Plaintiff's appellate arguments are without sufficient merit to warrant additional discussion beyond the following brief comments. R. 2:11- 3(e)(1)(E). Plaintiff was employed by Gary F. Gardner, Inc. to perform inspections and correct punch-list items at an assisted living facility that was under construction. Conifer-LeChase Construction, Inc. (LeChase) was building the facility and Conifer Realty, Inc. (Conifer) was in charge of maintenance. Plaintiff slipped and fell while working at the facility on November 25, 2013. He claimed that someone employed by Conifer had used the wrong kind of wax on the floor. Plaintiff admitted at his deposition that, at the time of his fall, he knew the name of his employer and he knew the identities of the construction contractor and the maintenance company. In fact, he filed a workers' compensation claim against Gary F. Gardner, Inc. in 2014. 2 A-1901-16T2 Almost two years after the accident, as the statute of limitations (SOL) was about to expire, plaintiff filed a complaint naming Gary F, Gardner, Inc., and "John Doe's (1-4)" as defendants. He did not file an amended complaint, naming LeChase and Conifer as defendants, until after the SOL had expired. Nor did he serve either of those defendants with the original complaint before the SOL expired. Judge Belgard concluded that plaintiff was not entitled to rely on the relation-back doctrine or the fictitious pleading rule. See R. 4:9-3; R. 4:26-4. On this appeal, plaintiff solely relies on the relation back doctrine, R. 4:9-3. However, there is no evidence that LeChase and Conifer had notice of plaintiff's lawsuit within the SOL. See R. 4:9-3(1). Further, plaintiff admitted that, at the time the accident occurred, he knew both parties' identities, and their roles at the construction site. Plaintiff also admitted that he knew, prior to the accident, that a Conifer employee had used the wrong wax on the floor. There is no legally competent evidence in the record explaining why he did not name both defendants in the original complaint. Affirmed. 3 A-1901-16T2

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Docket No.: a2561-15
Decided: 2017-11-14
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3 IN THE MATTER OF APPEAL OF THE DE
Status: unpublished
Summary:
PER CURIAM Appellant Jeff Carter appeals from the January 13, 2016 decision of the Local Finance Board of the Department of Community Affairs (Board), which determined that respondent James Wickman did not violate the Local Government Ethics Law, N.J.S.A. 40A:9- 22.1 to -22.25, by voting to approve a settlement of a lawsuit in which he was a defendant. On appeal, Carter, Wickman, and the Board have all asserted that the Board did not have a quorum when it rendered its decision.1 We agree. In view of our resolution of this appeal, we need only briefly recite the pertinent facts and procedural history. Wickman was a member of the Board of Fire Commissioners in Fire District #1 in Franklin Township. In August 2011, Carter filed a complaint with the Franklin Township Ethics Board (FTEB) alleging that Wickman improperly participated in the Board of Fire Commissioners' decision to approve a settlement of a lawsuit in which four of the Board's five commissioners, including Wickman, were named as 1 Carter argues in Point XII of his brief that the Board's "final decision is ultra vires due to an insufficient quorum pursuant to N.J.S.A. 40A:9-22.9." In Point III of his brief, Wickman asserts that the matter must "be remanded to the [Board] because of a lack of quorum." Finally, the Board filed a motion with this court before the matter was fully briefed, seeking a remand because it did not a quorum when it rendered the January 13, 2016 decision. We issued an interlocutory order denying that motion, but revisit the issue now after considering the parties' merits briefs and oral argument. 2 A-2561-15T3 defendants.2 Following a public hearing, the FTEB found that Wickman violated the ethics code and fined him $250. Wickman appealed this decision to the Board, which remanded the matter to the FTEB because that agency had failed to "provid[e] a legal analysis supporting" its decision. However, the Franklin Township Council dissolved the FTEB before it could reconsider the matter and, therefore, the Board resumed jurisdiction of Wickman's appeal. The Board reviewed the record developed before the FTEB and, on January 13, 2016, rendered a written decision reversing the FTEB's decision, and concluding that Wickman did not violate either N.J.S.A. 40A:9-22.5(c) or (d) of the Local Government Ethics Law. Only four Board members participated in this decision. The Board consists "of the Director of the Division of Local Government Services as chair[person] and seven members appointed by the Governor by and with the advice and consent of the Senate." N.J.S.A. 52:27D-18.1. When "render[ing] a decision as to whether the conduct of [an] officer or employee is in conflict with the provisions of [the Local Government Ethics Law, the] decision 2 The lawsuit was filed by Carter's sister. She also named the Board of Fire Commissioners and the Millstone Valley Fire Department as defendants. The complaint did not specify whether the four commissioners were sued in their individual or official capacities. 3 A-2561-15T3 shall be made by no less than two-thirds of all members of the [B]oard." N.J.S.A. 40A:9-22.9 (emphasis added). It is well established that statutes like N.J.S.A. 40A:9-22.9 that "define a quorum as a majority or larger percentage of 'all the members' or of 'the authorized membership,' or words to that effect, must . . . be read as requiring a fixed number of members which remains constant despite any vacancies." N.J. Election Law Enf't Comm'n v. DiVincenzo, 445 N.J. Super. 187, 200 (App. Div. 2016) (quoting 1991 Formal Op. Att'y Gen. N.J. No. 3 (May 7, 1991)); see also Ross v. Miller, 115 N.J.L. 61, 64 (1935) (explaining that "use of the phrase 'a majority of all the members' of the councilmanic body, both in relation to the number constituting a quorum and in prescribing the requisites of valid action, [means] . . . the full membership commanded by the act, and not a reduced body, however occurring"). Thus, because N.J.S.A. 40A:9-22.9 states that Board decisions on ethics issues must "be made by no less than two-thirds of all members of the [B]oard," at least six of the Board's eight statutorily-commanded members had to participate in the decision it rendered in this case. However, only four Board members considered Wickman's appeal. Because the Board acted with only four voting members present when rendering the January 13, 2016 decision, the decision is 4 A-2561-15T3 void. Therefore, we vacate the Board's decision and remand the matter to the Board for further proceedings.3 Vacated and remanded. We do not retain jurisdiction. 3 In light of this determination, we do not reach the other arguments presented by the parties on appeal. 5 A-2561-15T3

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Docket No.: a3531-15
Decided: 2017-11-14
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the LEMAD CORPORATION v. IRENE HONACHEFSKY, JIMMY AGUIRRE and AUDREY BETH AGUIRRE and WILLIAM B. HONACH
Status: unpublished
Summary:
PER CURIAM This matter concerns a dispute over an easement between the plaintiff Lemad Corporation (Lemad) and defendants William and Bonita Honachefsky (the Honachefskys), which the parties have been disputing since 2004. In 2012, after numerous pretrial motions and lengthy discovery the parties settled their dispute. Thereafter, the Honachefskys appealed from the order denying their motion to vacate the settlement agreement, which we affirmed in Lemad Corp. v. Honachesfky, No. A-5582-12 (App. Div. October 24, 2014). The terms of the settlement required the Honachefskys to establish the new easement. When they failed to do so, Lemad 2 A-3531-15T4 filed a motion to enforce litigant's rights pursuant to Rule 1:10- 3. The Honachefskys filed a cross-motion to declare the settlement agreement null and void. Both parties also sought counsel fees. The trial court issued orders on March 11, 2016 and May 10, 2016, holding the Honachefskys in violation of litigant's rights and awarding Lemad counsel fees, respectively. The Honachefskys appeal from both orders, and Lemad cross-appeals from the order granting counsel fees. We affirm. I. The following facts are taken from the record. Lemad purchased lot 6 on block 68 in Clinton Township in 2004. At that time, Irene Honachefsky owned a single-family home on lot 4; the Honachefskys owned a single-family home on lot 4.01; and Jimmy and Audrey Beth Aguirre owned a single-family home on lot 5. The Honachefskys' and Aguirres' properties are only accessible by way of a ten foot wide easement, bearing a road called Echo Lane, which runs from those properties through lot 6 to the public street. The easement was deeded to Irene Honachefsky and her late husband in 1956. Lemad purchased lot 6 subject to the easement by lots 3, 4, 4.01, and 5 for ingress and egress. After purchasing lot 6, Lemad obtained a survey of the property and discovered Echo Lane had branched out beyond the original deeded description. As a result, Lemad suggested an 3 A-3531-15T4 agreement between it and the Honachefskys regarding the maintenance of Echo Lane. The Honachefskys claimed adverse possession over any portion of Echo Lane not described in the original deeded easement. From August 2007 until April 2012, Lemad and the Honachefskys engaged in litigation, and following discovery each filed summary judgment motions. Before oral argument of their motions, the parties engaged in settlement discussions and reached an agreement. The terms of the settlement agreement placed on the record were as follows: Lemad Corporation which owns the property that is encumbered by an existing ten-foot recorded easement, [] will consent to draft a new easement. That easement will be 14-foot in width. The 14-foot width will run from the northerly property line of Lemad and will extend out 14 feet from that property line for the entire length of the Lemad property. Lemad will flag that new easement area. It will draw the draft easement and the metes and bounds descriptions for the same. The easement . . . will be a nonexclusive access easement. It will inure to the benefit, and run with the land of both Mrs. Honachefsky's track, Mr. and Mrs. Honachefsky's track; and the successors in interest to the Aguirre property who is Mrs. Fernandez and one other person. . . . So the ten-foot easement will be expanded to 14 feet. It will be delineated, it will be described by metes and bounds in an easement that will be recorded . . . in the Hunterdon County Clerk's office. And it will have the nonexclusive right of all parties who are beneficiaries to the easement to maintain the roadway within the easement area, 4 A-3531-15T4 including the grading, putting down the stone, and trimming brush, grass and weeds as necessary to maintain the adequate width of the easement . . . [and t]he integrity of the easement area. . . . The 14-foot easement will include the disputed 4.59 feet that is basically between both Honachefskys' properties and the current Echo Lane; there was a gore or a disputed area there. That will now be granted as part of an easement. Which, they can do with the entire length of the easement whatever maintenance, putting down of stone, berming as necessary to maintain the integrity of the roadway for all parties' benefits. [Lemad Corp., supra, slip op. at 3-5] Thereafter, the Honachefskys agreed to inform the prosecutor they no longer wished to pursue criminal charges they had filed against Lemad's principal shareholder, and agreed they would pay up to $2000 towards establishing the new easement. Finally, the parties agreed to have the easement marked, recorded, and improved within eight months. The Honachefskys moved to vacate the settlement agreement. The trial court denied the Honachefskys' motion, finding they were fully aware of the binding nature of the settlement agreement and had not indicated any hesitancy or lack of understanding surrounding the agreement. As we noted above, the Honachefskys appealed from the order denying their motion and sought to invalidate their settlement. 5 A-3531-15T4 We affirmed the court's order, and held the trial court "painstakingly questioned all parties to ensure that they understood and agreed to the terms as stated on the record, and that they wanted to place the settlement on the record that day." Id. at 5. We noted all essential terms of the settlement agreement were present, there was "no fraud, misrepresentation or other misdeeds that warrant vacating the settlement agreement," and merely because "William and Bonita [Honachefsky] have now second guessed their entry into the settlement agreement does not warrant its reversal." Id. at 11. After our affirmance, Lemad recorded the settlement agreement on January 8, 2015. Lemad then sent the Honachefskys a notice on April 27, 2015, regarding their obligation to make the improvements to Echo Lane. Lemad issued a second notice on June 3, 2015. A final notice was sent on July 7, 2015, by certified and first class mail, which was returned unclaimed on August 7, 2015. Because the Honachefskys failed to complete any work on Echo Lane, Lemad filed a motion to enforce litigant's rights pursuant to Rule 1:10-3. The Honachefskys filed a cross-motion to declare the settlement null and void, have it removed from their chain of title, and requested counsel fees. The trial court entered a March 11, 2016 order finding the Honachefskys in violation of the settlement agreement. The court gave Lemad limited power of 6 A-3531-15T4 attorney to begin the work on the easement. The court ordered the Honachefskys to pay for the bid/estimate from the contractor hired by Lemad, pay $1000 for the cost of any applications and permits, and reimburse Lemad any additional necessary funds within two days of notice. The trial court also ordered the Honachefskys to pay counsel fees. II. We begin with our standard of review. We review a trial court's enforcement of litigant's rights pursuant to Rule 1:10-3 under an abuse of discretion standard. Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). Generally, Rule 1:10-3 is "a civil proceeding to coerce the defendant into compliance with the court's order." Pasqua v. Council, 186 N.J. 127, 140 (2006) (quoting Essex Cty. Welfare Bd. v. Perkins, 133 N.J. Super. 189, 195 (App. Div.), certif. denied, 68 N.J. 161 (1975)). As such, a trial judge's exercise of discretion will not be disturbed absent a demonstration of abuse of discretion resulting in injustice. Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso- 7 A-3531-15T4 Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Additionally, the imposition of counsel fees in connection with a Rule 1:10-3 motion also is reviewed under an abuse of discretion standard. See Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (holding a counsel fee award "will not be reversed except upon a showing of an abuse of discretion."). "An allowance for counsel fees is permitted to any party accorded relief following the filing of a motion in aid of litigant's rights, R[ule] 1:10-3." Barr, supra, 418 N.J. Super. at 46. III. The Honachefskys argue the trial judge erred by granting Lemad's motion because: (1) Lemad was attempting to enforce an agreement which was not the original intent of the parties; (2) the agreement did not contemplate obtaining permits or applications for the construction of the easement; and (3) the Honachefskys had only agreed to pay for repairs to the easement in the amount of $2000. We conclude these arguments lack merit and are contradicted by the record, settlement agreement, and our previous determination in this matter. Indeed, the trial court found "[t]he easement is fourteen feet, the easement is the duration of the Plaintiff's property, and the Defendant pays for it[.]" This finding was based on the 8 A-3531-15T4 trial court's review of the record of the original settlement proceedings and a review of our first decision. In our decision, we noted "[a]s to the cost of the establishment of the new easement, the settlement specifically provided that all parties who are beneficiaries to the easement have the nonexclusive responsibility to maintain the roadway." Lemad, supra, slip op. at 11. We explained that the parties' settlement required the Honachefskys to bear both the cost and the responsibility to establish the new easement. Id. at 11-12. The Honachefskys' obligation to establish the new fourteen foot wide easement was defined in the settlement agreement based on William Honachefsky's representation he could create the easement himself, given his skill and expertise as a surveyor. Id. at 5. At the time of the settlement, the trial court specifically addressed his role in establishing the easement: Mrs. B. Honachefsky: Are we going to take the whole financial burden then? The Court: Well, Mr. Honachefsky said that he thought he could do it for $2,000, which is, you know a small amount to pay for what you are getting in return which is the 4.59 feet. The extra footage in the easement, as well as your ability to grade the property so it doesn't flow on your property or your mother's property or anybody else's property anymore. And Mr. Honachefsky I think knows how to do this. 9 A-3531-15T4 Mrs. B. Honachefsky: Is that what you want, Bill? Mr. W. Honachefsky: That is fine. [Id. at 11-12.] Since the Honachefskys agreed to do the work and bear the costs of establishing the easement, the trial court correctly concluded their failure to do so was a violation of litigant's rights. Additionally, the trial judge's decision to grant Lemad limited power of attorney to establish the new easement on the Honachefskys' behalf, and reimburse Lemad for the costs of doing so, including the permits, was not an abuse of discretion. The Supreme Court has stated "[t]he scope of relief in a motion in aid of litigants' rights is limited to remediation of the violation of a court order." Abbott v. Burke, 206 N.J. 332, 371 (2011). The remedy fashioned by the trial court here was precisely what was necessary to achieve the goals of the parties' settlement. IV. The Honachefskys also argue Rule 4:50-1 applies, which they assert "provides relief from judgments in situations in which, were it not applied, a grave injustice would occur." They claim the trial court's orders are "extremely contrary to the unanimously acknowledged real intentions of the April 13, 2012 settlement, which if allowed to stand, would result in an unjust, one-sided 10 A-3531-15T4 unconscionable contract totally in favor of the [r]espondent." We disagree. The record demonstrates the Honachefskys' cross-motion in the trial court did not seek relief from the settlement agreement under Rule 4:50-1. Instead, they raise this argument for the first time on appeal. Relief under Rule 4:50-1 must first be sought in the trial court. It does not constitute a basis for relief on appeal where it was not sought in trial court. Indeed, It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available "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), certif. denied, 31 N.J. 554 (1960)).] For these reasons, we decline to address this claim. V. Lastly, we address both parties' arguments challenging the trial court's counsel fee determination. The Honachefskys claim the trial judge's orders awarding counsel fees were unwarranted. Lemad claims the award was too little and the trial court should have made it whole by granting all counsel fees and costs incurred, which totaled $11,113. We disagree on both accounts. 11 A-3531-15T4 Rule 1:10-3 provides "[t]he court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule." "[T]his rule provision allowing for attorney's fees recognized that as a matter of fundamental fairness, a party who willfully fails to comply with an order or judgment entitling his adversary to litigant's rights is properly chargeable with his adversary's enforcement expenses." Pressler & Verniero, Current N.J. Court Rules, cmt. 4.4.5 on R. 1:10-3 (2018). Therefore, a counsel fee award "will not be reversed except upon a showing of an abuse of discretion." Packard-Bamberger, supra, 167 N.J. at 444. The trial court found an award of counsel fees appropriate. The judge stated "I will grant counsel fees because I think the issues were appropriately raise[d] by the [p]laintiff. The [d]efendants have an obligation to honor it. Coming here to . . . me to modify something that's been affirmed by the Appellate Division is not appropriate." Thereafter, in the May 10, 2016 order, the trial court fixed the amount of counsel fees due at $2000, and provided further reasoning for doing so. The court stated: Fees are awarded not due to any bad faith. The estimate of $2000 – was not set forth as the cap on the costs of relocating the easement. The reasonable inference from the settlement is that defendants would at their 12 A-3531-15T4 cost relocate the easement. That they resisted causes this award of counsel fees. (Per R[.] 1:10-3)[.] The hourly rate and services rendered are reasonable and appropriate. Given the facts presented by both parties, the court concludes $2000 is the appropriate amount. These findings clearly demonstrate the judge's careful consideration of the relevant factors in fashioning the counsel fee award. We can discern no abuse of discretion. Affirmed. 13 A-3531-15T4

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Docket No.: a3701-14
Decided: 2017-11-14
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the KELLY MORAN and CAROL MORELLO v. BIOLITEC INC. and BIOMED TECHNOLOGY HOLDINGS LTD and BIOLITEC AG a
Status: unpublished
Summary:
OSTRER, J.A.D. This case does not belong in New Jersey. Defendants Biolitec AG, a German corporation, and its CEO and majority owner, Wolfgang Neuberger, an Austrian, lacked the requisite minimum contacts with New Jersey to support the trial court's exercise of personal jurisdiction. Therefore, on defendants' appeal, we reverse the default judgment that was entered against them after their answer was stricken for discovery violations. I. We limit our discussion to the pertinent jurisdictional facts. Biolitec, Inc. was incorporated in New Jersey in 1989. The certificate of incorporation designated Carol Morello, then a New Jersey resident, as its registered agent. The original board of directors consisted of plaintiffs (who were married), 2 A-3701-14T3 Neuberger, and a fourth man.1 Plaintiffs listed the same New Jersey address. Neuberger and the fourth member listed a common address in West Germany. An attorney was listed as the incorporator.2 Neuberger was CEO and chairman. Plaintiffs each had a five percent ownership interest, and Neuberger the remaining ninety percent. In 2000, Neuberger transferred his ownership interest to Biolitec AG. Although Biolitec, Inc. was initially located in Morello's New Jersey home, plaintiffs and the company moved to Connecticut the following year. Since 1995, Biolitec, Inc. has been headquartered in Massachusetts. Besides Biolitec, Inc., Neuberger was affiliated with several foreign companies, all of which fell under the same corporate umbrella. Neuberger solely owned Biomed Technology Holdings, Ltd. (Biomed), a Malaysian-based corporation. Biolitec AG, the German corporation Neuberger managed, is the parent of several other foreign companies that manufacture and distribute medical lasers 1 Although plaintiffs contend before us that Neuberger "made the decision to incorporate in New Jersey," they cite no record evidence for that assertion. 2 According to the certificate of incorporation, the company was initially named "CeramOptec, Inc."; however, in 2000, the parties renamed the company "BioLitec, Inc.," to "coincide[] with a decision to focus the company's business on providing fiber optics and lasers to the medical market." (We follow both parties' spelling of that company name without an internal capital "L".) 3 A-3701-14T3 and fiber optics. Through Neuberger's transfer of his ninety- percent ownership interest of Biolitec, Inc., that firm became a subsidiary of Biolitec AG. Plaintiffs alleged that between 2000 and 2008, Neuberger and Biolitec AG "looted" Biolitec, Inc. of over $12,000,000. Plaintiffs claimed Neuberger and Biolitec AG engaged in several schemes to divert Biolitec, Inc.'s profits. This included overcharging Biolitec, Inc. for goods, services, and lasers from affiliated companies; inflating invoices for overhead charges and fees; and charging illegitimate interest on inter-company fund transfers. All these alleged activities occurred while Biolitec, Inc. was headquartered in Massachusetts. Based on these facts, plaintiffs filed a complaint against defendants in 2009 under the Oppressed Minority Shareholder statute, N.J.S.A. 14A:12-7, seeking the involuntary dissolution of Biolitec, Inc. Defendants responded by moving to dismiss the complaint for lack of personal jurisdiction. In support of their motion, Neuberger submitted a certification stating he was an Austrian citizen, did not reside in New Jersey, and did not own or lease any property in New Jersey. He asserted, "At no time have I personally solicited business or advertised in New Jersey. Moreover, I have not personally contracted to purchase or supply goods and/or services in New 4 A-3701-14T3 Jersey." Neuberger added, "Neither Biolitec AG nor any of its employees have solicited business or advertised in New Jersey. Similarly, Biolitec AG has not contracted to purchase or supply goods and/or services in New Jersey." Neither plaintiff submitted a certification in response to defendants' motion to dismiss. At oral argument on the motion, defense counsel argued that the record failed to establish specific jurisdiction over defendants and that the certificate of incorporation, alone, does not suffice. Plaintiffs responded by characterizing defendants' corporate structure as a "shell game" to avoid personal jurisdiction, noting that Neuberger had contested personal jurisdiction in a Massachusetts lawsuit. Plaintiffs argued that by forming a corporation in New Jersey, Neuberger subjected himself to personal jurisdiction. Additionally, plaintiffs contended that the trial court should follow Delaware caselaw, which authorized personal jurisdiction over nonresident directors or shareholders. The trial court denied defendants' motion to dismiss. Citing Armstrong v. Pomerance, 423 A.2d 174 (Del. 1980), the court found that both Neuberger and Biolitec AG had sufficient minimum contacts under International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), to exercise specific personal jurisdiction. Given Neuberger's role as an original board member of Biolitec, Inc. in New Jersey, and his position as president and 5 A-3701-14T3 CEO, the court concluded that Neuberger "knowingly availed himself of the protection of New Jersey law," and "reasonably should expect to be ha[]led into a New Jersey court . . . ." Conceding the case for asserting jurisdiction against Biolitec AG was more difficult, the court found that Biolitec AG subjected itself to New Jersey jurisdiction when it obtained a controlling interest in a closely held New Jersey corporation. The court highlighted the fiduciary duties of shareholders and directors of closely-held corporations.3 On appeal, defendants contend the trial court erred in determining that there were sufficient minimum contacts to exercise personal jurisdiction. II. We engage in a two-part review of a trial court's exercise of jurisdiction, since it involves a "mixed question of law and fact . . . ." Citibank, N.A. v. Estate of Simpson, 290 N.J. Super. 519, 532 (App. Div. 1996). "We review the court's factual findings with respect to jurisdiction to determine whether they were supported by substantial, credible evidence . . . ." Mastondrea v. Occidental Hotels Mgmt. S.A., 391 N.J. Super. 261, 268 (App. Div. 2007) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 3 The court found no basis to exercise personal jurisdiction over BioMed, and dismissed the complaint against it. 6 A-3701-14T3 N.J. 474, 484 (1974)). "However, whether these facts support the court's exercise of personal jurisdiction over a defendant is a question of law, which we review de novo." Patel v. Karnavati America, LLC, 437 N.J. Super. 415, 423 (App. Div. 2014) (internal quotation marks and citation omitted). As the trial court judge found that general jurisdiction did not exist, and plaintiffs do not challenge that finding, we limit our discussion solely to specific jurisdiction. See Waste Mgmt. v. Admiral Ins. Co., 138 N.J. 106, 119 (1994) (distinguishing between the two theories of personal jurisdiction, explaining that "a cause of action [that] arises directly out of a defendant's contacts with the forum state" is specific and one "based instead on the defendant's continuous and systematic activities in the forum" is general), cert. denied, 513 U.S. 1183, 115 S. Ct. 1175, 130 L. Ed. 2d 1128 (1995). In other words, specific jurisdiction "depends on an 'affiliatio[n] between the forum and the underlying controversy,' principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation." Fairfax Fin. Holdings Ltd. v. S.A.C. Capital Mgmt., L.L.C., 450 N.J. Super. 1, 68 (App. Div. 2017) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 2851, 180 L. Ed. 2d 796, 803 (2011)). 7 A-3701-14T3 In conformance with due process, specific jurisdiction over a non-resident can only be established if the individual has "certain minimum contacts" with the forum state, "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Lebel v. Everglades Marina, Inc., 115 N.J. 317, 322 (1989) (quoting Int'l Shoe Co., supra, 326 U.S. at 316, 66 S. Ct. at 158, 90 L.Ed. at 102). This minimum contacts inquiry focuses on "the relationship among the defendant, the forum, and the litigation." Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2580, 53 L. Ed. 2d 683, 698 (1977). It is critical to our due process analysis "that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefit and protection of its laws." Waste Mgmt., supra, 138 N.J. at 120 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283, 1298 (1958)). See also Dutch Run- Mays Draft, LLC v. Wolf Block, LLP, 450 N.J. Super. 590, 599 (App. Div. 2017) ("Thus, courts examine whether a non-resident defendant has 'purposefully avail[ed] itself of the privilege of conducting activities' within the forum, such that the defendant can reasonabl[y] anticipate being haled into the forum." (quoting 8 A-3701-14T3 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528, 542 (1985))).4 Once a defendant challenges personal jurisdiction, the plaintiff bears the burden of demonstrating minimum contacts. Blakey v. Cont'l Airlines, 164 N.J. 38, 71 (2000). If the plaintiff succeeds, the defendant bears the burden of showing the unfairness or unreasonableness of asserting jurisdiction. Waste Mgmt., supra, 138 N.J. at 124-25. These contacts should be established "through the use of sworn affidavits, certifications, or testimony." Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443, 454 (App. Div. 1998). The United States Supreme Court's decision in Shaffer, supra is instructive. In that case, a nonresident shareholder of Greyhound Corp. – a Delaware corporation with its principal place of business in Arizona – sued its present and former officers or directors in Delaware, alleging a breach of their fiduciary duties. 4 We recognize, but need not resolve, the debate over the significance of a defendant's mere "expectations" in the personal jurisdiction analysis. As a plurality of the United States Supreme Court noted, reversing a decision of our Supreme Court, "[I]t is the defendant's actions, not his expectations, that empower a State's courts to subject him to judgment." J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 883, 131 S. Ct. 2780, 2789, 180 L. Ed. 2d 765, 776 (2011) (Nicastro), reversing Nicastro v. J. McIntyre Mach., Ltd., 201 N.J. 48 (2010). See Patel v. Karnavati Am., LLC, 437 N.J. Super. 415, 425-29 (App. Div. 2014) (discussing Nicastro). 9 A-3701-14T3 433 U.S. at 189-190, 97 S. Ct. at 2572, 53 L. Ed. 2d at 688-89. The plaintiff never alleged that any of the defendants ever set foot in Delaware, or that any act related to his lawsuit took place there. Id. at 213, 97 S. Ct. at 2584, 53 L. Ed. 2d at 703. Instead, he presented two different theories for establishing personal jurisdiction over the defendants. First, relying on a state statute that treated stock in Delaware as being physically present in the state, he argued that Delaware had quasi in rem jurisdiction over the defendants since they all owned stock in a Delaware corporation. Id. at 191-94, 97 S. Ct. at 2573-75, 53 L. Ed. 2d 689-92. Second, the plaintiff argued that the defendants' positions as directors or officers of a Delaware corporation provided sufficient minimum contacts with the state for it to exercise personal jurisdiction. Id. at 213-14, 97 S. Ct. at 2584- 85, 53 L. Ed. 2d at 703-04. The Supreme Court rejected both theories. As for the plaintiff's quasi in rem argument, the Supreme Court concluded that the stock ownership, alone, did not establish personal jurisdiction: [T]hat property is not the subject matter of this litigation, nor is the underlying cause of action related to the property. [The defendants'] holdings in Greyhound do not, therefore, provide contacts with Delaware sufficient to support the jurisdiction of that State's courts over [the defendants]. 10 A-3701-14T3 [Id. at 213, 97 S. Ct. at 2584, 53 L. Ed. 2d at 703.] Similarly, the plaintiff's second argument failed as the defendants' positions within the corporation fell short of establishing sufficient minimum contacts: [This argument] does not demonstrate that appellants have "purposefully avail[ed themselves] of the privilege of conducting activities within the forum State," in a way that would justify bringing them before a Delaware tribunal. [The defendants] have simply had nothing to do with the State of Delaware. Moreover, [the defendants] had no reason to expect to be haled before a Delaware court. [Id. at 216, 97 S. Ct. at 2586, 53 L. Ed. 2d at 705 (quoting Hanson, 357 U.S. at 253, 78 S. Ct. at 1240, 2 L. Ed. 2d at 1298).] Guided by the Supreme Court's decision in Shaffer, we conclude the trial court erred in exercising personal jurisdiction over defendants. It is undisputed that defendants have never resided in New Jersey; and neither Neuberger personally, nor Biolitec AG engaged in business here. Biolitec, Inc. left New Jersey in 1990. Moreover, plaintiffs do not contend that any of the alleged "looting" schemes, which gave rise to their cause of action, took place in New Jersey. Neuberger's role as an original member of the board in 1989 is an insufficient basis for jurisdiction, as plaintiffs' claims do not arise from, or relate to the incorporation itself. Cf. 11 A-3701-14T3 Sears, Roebuck & Co. v. Sears, 744 F. Supp. 1297, 1303 (D. Del. 1990) (finding that a corporation's formation of a subsidiary in the forum state constituted "an act sufficient to confer personal jurisdiction over it for causes of action related to that act of incorporation") (emphasis added). Similarly, Biolitec AG's ownership interest in Biolitec, Inc., without more, fails to establish personal jurisdiction. See Shaffer, supra, 433 U.S. at 213-15, 97 S. Ct. at 2584-86, 53 L. Ed. 2d at 703-05; Cruz v. Ortho Pharm. Corp., 619 F.2d 902, 905 (1st Cir. 1980) (stating that jurisdiction over a subsidiary "does not confer jurisdiction over its nonresident parent, even if the parent is sole owner of the subsidiary"); cf. Pfundstein v. Omnicom Group, Inc., 285 N.J. Super. 245, 254 (App. Div. 1995) (applying general jurisdiction analysis and declining to impute actions of subsidiary to corporate parent). Simply put, defendants lack the required minimum contacts to justify haling them into court here. We also part company with the trial court's reliance on Armstrong, supra, and Delaware law. In Armstrong, the Delaware Supreme Court affirmed the trial court's exercise of personal jurisdiction over nonresident directors of a Delaware corporation. 423 A.2d at 175-76, 179. The corporation did the minimum business necessary to maintain its status as a Delaware corporation, and none of the directors had any connection with the state besides 12 A-3701-14T3 their positions within the corporation. Id. at 175. However, relying on 10 Del. Code Ann. § 3114,5 the court explained "[t]he defendants accepted their directorships with explicit statutory notice, via § 3114, that they could be haled into the Delaware Courts to answer for alleged breaches of the duties imposed on them by the very laws which empowered them to act in their corporate capacities." Id. at 176. Finding § 3114 constitutional, the court concluded that the statute was sufficient to confer jurisdiction over the nonresident directors.6 However, New Jersey has no analog to § 3114 that would establish personal jurisdiction over either Neuberger or Biolitec AG. Plaintiffs suggest that the omission is "immaterial," because our courts exercise personal jurisdiction to the fullest extent the Constitution permits. See Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971). We disagree. The basis for jurisdiction in Armstrong was not the Constitution; it was the adoption of a statute that 5 10 Del. Code Ann. § 3114 provides that any nonresident who accepts a directorship position with a Delaware corporation "consent[s] to jurisdiction in suits relating to the defendant's capacity as director." Id. at 175. 6 In reconciling its holding with Shaffer, the court explained, "[t]he only substantive difference for present purposes between Shaffer and the instant case is the existence of § 3114 as the basis of jurisdiction; we think that is sufficient to render the assertion of in personam jurisdiction constitutional in this case." Id. at 180. 13 A-3701-14T3 established consent to be sued in the forum state notwithstanding constitutional limits outlined in Shaffer. Other courts have relied on the absence of such a "consent-to-be-sued" statute and found personal jurisdiction lacking in lawsuits against officers and directors whose only contact with the forum state was their position with a corporation incorporated there. See American Freedom Train Found. v. Spurney, 747 F.2d 1069, 1074 (1st Cir. 1984) (comparing law of Massachusetts with that of Delaware and Connecticut); Behm v. John Nuveen & Co., 555 N.W.2d 301, 306-07 (Minn. Ct. App. 1996) (comparing Minnesota and Delaware law). We likewise find Armstrong distinguishable, based on the absence in New Jersey of a statute like Delaware's.7 Finally, we briefly distinguish Pittsburgh Terminal Corp. v. Mid Allegheny Corp., 831 F.2d 522 (4th Cir. 1987) and Springs Industries, Inc. v. Gasson, 923 F. Supp. 823 (D.S.C. 1996), upon which plaintiffs rely. In Pittsburgh Terminal Corp., the plaintiff initiated a stockholder derivative action against nonresident directors of a West Virginia corporation in a West Virginia court. 831 F.2d at 524. Although nonresidents, the Fourth Circuit noted 7 We also note that questions have been raised about the Delaware statute's constitutionality. See Eric A. Chiappinelli, The Myth of Director Consent: After Shaffer, Beyond Nicastro, 37 Del. J. Corp. L. 783, 818 (2013) ("Nicastro leaves no doubt that Delaware violates the Constitution when it asserts personal jurisdiction over fiduciaries under Section 3114."). 14 A-3701-14T3 the degree of contacts the directors had with the state, id. at 524, and found it significant that the corporation conducted business exclusively in West Virginia. Id. at 528 ("Unlike Schaffer, this is not a case where the corporation is a phantom resident of the chartering State."). Similarly, in Springs Industries, the plaintiff filed fraud and civil conspiracy claims in South Carolina against a nonresident director of South Carolina corporations. 923 F. Supp. at 824-25. Although the director's tortious acts took place out of state, because the act was causally related to the plaintiff's injury within South Carolina, the court found that there were sufficient grounds for it to exercise personal jurisdiction. Id. at 827. Here, however, defendants have no identifiable contacts with New Jersey and, more importantly, Biolitec, Inc. has not done business in the state in over twenty-five years. Additionally, none of the alleged injuries sustained took place in New Jersey. Since defendants lacked the minimum requisite contacts, the trial court's exercise of personal jurisdiction was not warranted. Reversed. We do not retain jurisdiction. 15 A-3701-14T3

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Docket No.: a4040-15
Decided: 2017-11-14
Caption: KIMERLING & WISDOM, LLC v. MARIA T. SCARIATI
Status: unpublished
Summary:
PER CURIAM Following a bench trial, defendants appeal from an April 25, 2016 judgment in favor of plaintiff after the trial judge found that defendants failed to pay plaintiff for tax preparation, accounting, and financial planning services plaintiff performed for defendants from 2000 to 2011. We affirm in part, reverse in part, and remand for further proceedings. Plaintiff Kimerling & Wisdom, LLC is a tax and accounting services firm. Ross Wisdom, a certified public accountant, and Noah Kimerling, a financial planner, were the principals of the company. Defendant Maria Scariati is a lighting engineer. Scariati owns defendant Light Solutions, Inc., a company which manufactures marine lights and other specialty lighting products. Scariati also owns defendant Equinox Entities, Ltd., which is a subsidiary of Light Solutions. In 2000, plaintiff began performing tax preparation, accounting, and financial planning services for Scariati and her two companies. The parties did not have a written retainer agreement stating the specific services plaintiff agreed to provide or the fees defendants would pay for these services. Instead, plaintiff sent invoices to defendants as the work was performed. Wisdom testified that Scariati stopped paying the bills in full soon after the arrangement began. Wisdom stated that, in May 2 A-4040-15T3 2007, he and Kimerling had a conference call with Scariati about defendants' overdue account balances. According to Wisdom, Scariati "kept saying over and over again, I don't have it, all right, all right? I will pay you when I have it, all right, all right? You can't get blood from a stone, all right, all right? I just don't have it." Wisdom also testified that Scariati sent him an email on July 15, 2009 concerning the monies defendant owed to plaintiff. In that email, Scariati asked Wisdom for assistance in responding to a separate matter that was in litigation. At the end of the email, Scariati wrote: [O]nce this is out of the way & [I] am out from under this 'black cloud of litigation', [I] will be able to pick up with [M]ike [K]ingsford/[S]ignature [B]ank & hopefully get 328[1] financed to pull out some funds to finally clear up your long overdue invoices. [M]aria Plaintiff did not file its complaint attempting to recover the amounts allegedly due from defendants until July 8, 2014. Although the allegations in the complaint were limited to plaintiff's claim that defendants failed to make payments for services plaintiff provided during the six-year period immediately 1 "328" is a reference to a building Scariati owned. 3 A-4040-15T3 prior to the filing of the complaint, at trial plaintiffs sought to recover the amounts due on unpaid invoices dating back to 2000. During her testimony, Scariati initially testified that she was dissatisfied with plaintiff's services and claimed that after Kimerling's son died in 2003, plaintiff only provided tax preparation services to her and her two companies. Scariati stated that plaintiff was never able to justify the amounts set forth in its invoices and, therefore, she "stopped . . . remitting money . . . somewhere in 2006 after they just went off the rails with charges that couldn't be justified or dealt with." However, Scariati later testified that she believed plaintiff overcharged her in the past for its services and she then received "a credit memo" that she relied upon to pay the invoices as she received them. Scariati was not able to produce a copy of the alleged credit memo. At the conclusion of the trial, the judge rendered an oral decision in favor of plaintiff. After reviewing the testimony, the judge found that Wisdom's account of the amounts due from each defendant for the period between 2000 and 2011 was credible and accurate. On the other hand, the judge found that Scariati's testimony was "not credible[,]" "didn't quite make sense[,]" and was "somewhat evasive and vague[.]" The judge determined there was no evidence of any overpayment by defendants and, therefore, 4 A-4040-15T3 the judge stated he did not believe Scariati's claim that she used a credit memo to pay the outstanding invoices. The judge also rejected defendants' assertion that plaintiff's demand for payment for services performed prior to July 8, 2008 was barred by the six-year statute of limitations, N.J.S.A. 2A:14-1. The judge held that Scariati "acknowledged the debt that was owed to" plaintiff in her July 15, 2009 email to Wisdom. Therefore, the judge ruled that the statute of limitations did not apply. Using the information contained in plaintiff's invoices, the judge entered a judgment against Scariati in the amount of $4075; against Light Solutions in the amount of $10,000;2 and against Equinox Entities in the amount of $17,850. As stated above, this judgment included payments for services plaintiff performed prior to July 8, 2008. This appeal followed. On appeal, defendants argue that the evidence presented at trial was insufficient to support the trial judge's conclusion 2 After plaintiff filed its complaint, Scariati filed an answer, but her two companies did not. Plaintiff obtained a $33,462.08 default judgment against Light Solutions and filed a writ of execution with the county sheriff to collect it. Pursuant to that writ, a Light Solutions client, who owed money to that company in connection with a separate matter, paid plaintiff $22,000. Plaintiff then subtracted this amount from the amount Light Solutions owed it. The court subsequently vacated the defaults entered against Light Solutions and Equinox Entities. 5 A-4040-15T3 that plaintiff provided services to defendants and they failed to pay the amounts due. We disagree. Our review of a trial court's fact-finding in a non-jury case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411- 12 (1998)). We "should not disturb the factual findings and legal conclusions of the trial judge unless [we are] 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." Ibid. (internal quotation marks omitted). However, we owe no deference to a trial court's interpretation of the law, and review issues of law de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We also review mixed questions of law and fact de novo. In re Malone, 381 N.J. Super. 344, 349 (App. Div. 2005). Applying these standards, the record fully supports the trial judge's findings concerning the accuracy of the billing statements plaintiff submitted in evidence. Wisdom identified each of the statements, and testified that the billings were for work performed 6 A-4040-15T3 by plaintiff for defendants. Wisdom also identified the amounts defendants had not paid for the period between 2000 and 2011. The judge, who had the opportunity to view and hear Wisdom as he testified, found that Wisdom's testimony was credible and we defer to that determination. On the other hand, the judge found that Scariati's conflicting statements concerning the amounts due were not worthy of belief. After initially claiming that no payments were owed because plaintiff failed to perform the work, she later asserted she relied upon a credit memo to pay each invoice. Under these circumstances, we discern no basis for disturbing the judge's calculation of the amounts each defendant owed plaintiff for work performed between 2000 and 2011. Defendants next argue that the judge erred by permitting plaintiff to collect amounts between 2000 and July 8, 2008, which were outside the six-year statute of limitations period prior to the filing of plaintiff's complaint on July 8, 2014. We agree. A six-year statute of limitations period applied to plaintiffs claim. N.J.S.A. 2A:14-1. However, in apparent reliance upon N.J.S.A. 2A:14-24,3 the judge concluded as a matter of law that when Scariati sent the July 15, 2009 email to Wisdom, she 3 The judge did not cite N.J.S.A. 2A:14-24 in his oral decision. 7 A-4040-15T3 "acknowledged the debt that was owed to" plaintiff and re-started the statute of limitations period. By so ruling, we conclude the judge mistakenly applied this statute. In pertinent part, N.J.S.A. 2A:14-24 states: In actions at law grounded on any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, so as to take any case out of the operation of [the applicable statute of limitations], or to deprive any person of the benefit thereof, unless such acknowledgment or promise shall be made or continued by or in some writing to be signed by the party chargeable thereby. "In addition to the requirement of a writing[,][4] it is also necessary that the acknowledgment relied upon be such as in its entirety fairly supports an implication of a promise to pay the debt immediately or on demand." Denville Amusement Co. v. Fogelson, 84 N.J. Super. 164, 170 (App. Div. 1964) (citing Bassett v. Christensen, 127 N.J.L. 259, 261 (E. & A. 1941). Thus, in order "[t]o constitute a promise to pay sufficient to remove the bar of the statute of limitations the promise [also] must be unconditional and unqualified." Evers v. Jacobsen, 129 N.J.L. 89, 91 (E. & A. 1942) (emphasis added). 4 Because they were not in writing, Scariati's statements to Wisdom and Kimerling during the May 2007 conference call obviously did not fall under N.J.S.A. 2A:14-24. 8 A-4040-15T3 In Evers, the Court of Errors and Appeals applied these principles to a fact situation that is remarkably similar to the facts presented here. In that case, the plaintiff was the holder of notes made by the defendant. Id. at 90. The notes were not paid and no action was taken by the plaintiff during the statute of limitations period. Ibid. Nine years after the notes matured, the defendant sent a payment to the defendant with a letter stating, "I am going to send you more when I can." Id. at 91. In her action on the notes, the plaintiff claimed that the defendant's payment and letter, nine years after the notes matured, "took the debt out of the statute of limitations and gave it new life because of this new contract." Ibid. The Court disagreed, and held: To constitute a promise to pay sufficient to remove the bar of the statute of limitations[,] the promise must be unconditional and unqualified. . . . Tested by this well settled rule[,] we find no proofs of any unqualified promise to pay. The only definite proof is found in the defendant's letter . . . , in which he promised "to send you more as and when I can." This clearly is not an unconditional promise to pay." [Ibid. (internal citations omitted).] Here, Scariati's July 15, 2009 email was not unconditional and unqualified, and it did not state that she was going to make payment immediately or on demand. Instead, she merely wrote that if a pending litigation matter was completed at some date in the 9 A-4040-15T3 future, she would try to finance a property "to pull out some funds to finally clear up your long overdue invoices." The email did not specify the particular invoices she described as being "overdue," and Scariati did not even make clear whether she was speaking only for herself or on behalf of one or both of her companies. Therefore, plaintiff was barred from recovering any funds for work performed before July 8, 2008, which was the first day of the six-year statute of limitations period, and the judge erred by applying N.J.S.A. 2A:14-24 to the facts of this case. Accordingly, we remand this matter to the trial court to recalculate the amounts due plaintiff for the period between July 8, 2008 and July 8, 2014, and for the entry of an amended judgment. Finally, defendants argue for the first time on appeal that plaintiff "illegally collected" money from one of Light Solutions' clients and improperly applied it to that company's debt. 5 Ordinarily, we will decline consideration of an issue not properly raised before the trial court, unless the jurisdiction of the court is implicated or the matter concerns an issue of great public importance. Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citing 5 At trial, defendants' attorney merely noted at the end of his oral argument that plaintiff allegedly did not report the collection of these funds until the trial. 10 A-4040-15T3 Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Neither situation exists here and, therefore, we need not consider defendants' contention on this point. Nevertheless, we have reviewed defendant's argument and conclude that is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed in part; reversed in part; and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 11 A-4040-15T3

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Docket No.: a4189-15
Decided: 2017-11-14
Caption: SEAMUS R. HALLORAN v. BENJAMIN A. STANZIALE, JR.
Status: unpublished
Summary:
PER CURIAM Plaintiff Seamus R. Halloran appeals from an order entered by the Law Division, which granted summary judgment to defendants and denied his cross-motion for leave to file a late expert report. We affirm. I. The following facts are taken from the record. On January 9, 2014, plaintiff filed a legal malpractice action against Benjamin A. Stanziale, Jr., Esq., Stanziale & Stanziale (collectively Stanziale), and Michael DeMarco, Esq., and DeMarco & DeMarco (collectively DeMarco) claiming damages arising from a Chapter 7 Bankruptcy proceeding involving real estate owned by plaintiff. Anthony Rottino and Paragon Federal Credit Union (Paragon) had a competing mortgage on plaintiff's home located in Saddle River (property). Paragon instituted a foreclosure action on the property, and engaged in litigation over mortgage priority against Rottino, who was represented by DeMarco. Plaintiff, who initially was self-represented, asked Rottino if he could recommend an 2 A-4189-15T2 attorney. Rottino contacted DeMarco, who recommended Stanziale. Plaintiff alleges DeMarco and Stanziale coerced him to file bankruptcy in order to benefit the interests of DeMarco's client, Rottino. On June 30, 2015, the trial court issued an order extending discovery to October 6, 2015, and requiring plaintiff to submit an expert report by September 21, 2015. On October 9, 2015, the trial court issued a second order extending discovery to January 31, 2016, and requiring plaintiff to submit an expert report by December 1, 2015. This order noted "should the plaintiff fail to comply with this final discovery schedule, the defendants may move to dismiss the matter in accordance with the Court Rules." On December 4, 2015, the trial court issued a third order extending discovery to March 1, 2016, and requiring plaintiff to submit an expert report by January 20, 2016. On February 19, 2016, the trial court issued a final order extending discovery to March 17, 2016, and requiring plaintiff to submit an expert report by March 17, 2016. The order, which noted trial was scheduled for June 6, 2016, stated: "No further fact witness to be deposed. All parties have had more than sufficient time to depose whatever fact witnesses they required. Matter has already had in excess of 749 days of discovery." The order further noted: "There shall be no further extensions of the discovery end 3 A-4189-15T2 date except upon a showing of exceptional circumstances." Plaintiff failed to submit an expert report within the time required. On March 22, 2016, Stanziale filed a motion for summary judgment due to plaintiff's failure to submit an expert report. On March 31, 2016, plaintiff submitted a letter to the court requesting an additional six weeks to file an expert report. Plaintiff alleged his expert, Bennett Wasserman, Esq. (Wasserman), discovered a conflict and informed him of it on March 29, 2016, twelve days after the March 17 due date set forth in the February 19 order. This was the first time plaintiff identified Wasserman as a potential expert. Plaintiff's letter claimed "counsel for one of the defendants was a member of a firm with whom [Wasserman] had a conflict." On April 1, 2016, DeMarco filed a motion for summary judgment for plaintiff's failure to submit an expert report. On April 18, 2016, plaintiff filed an opposition to the motions for summary judgment and a cross-motion to permit the late submission of an expert report. Plaintiff requested permission to submit a substitute expert report by Anthony Ambrosio, Esq. (Ambrosio). On April 29, 2016, the trial court issued an order denying plaintiff's cross-motion for leave to permit the late submission of an expert report, and granted the Stanziale and DeMarco motions 4 A-4189-15T2 for summary judgment. Plaintiff's expert report was barred because it was not submitted in a timely fashion. Because plaintiff could not sustain his legal malpractice claim against Stanziale and DeMarco without expert testimony, plaintiff's complaint was dismissed on summary judgment with prejudice. Plaintiff now challenges this order. II. Our review of the order granting summary judgment is de novo. Graziano v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999). We "review the trial court's grant of summary judgment under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). The court considers all of the evidence submitted "in the light most favorable to the non-moving party," and determines if the moving party is entitled to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The court may not weigh the evidence and determine the truth of the matter. Ibid. If the evidence presented "show[s] that there is no real material issue, then summary judgment should be granted." Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987) (citing Judson v. Peoples Bank and Tr. Co. of Westfield, 17 N.J. 67, 75 (1954)). 5 A-4189-15T2 Plaintiff argues the trial court erred in dismissing his complaint with prejudice. He asserts the court's desire to expedite cases and principles of judicial economy should not be at the expense of dispensing justice to the aggrieved party. Plaintiff asserts the trial court's dismissal of his complaint was a substantial sanction and that a lesser sanction was appropriate. He argues his claims warrant review on the merits, and the trial court's dismissal does not achieve this result. As a preliminary matter, the parties do not dispute plaintiff's legal malpractice claim could not proceed without an expert report. Indeed, plaintiff contended he consulted with DeMarco and Stanziale regarding the foreclosure of his home, and alleged they "advised [him] to file bankruptcy, and indicated that [he] would emerge from the bankruptcy and retain his interest in his home and a sizeable payment for his interest." Moreover, plaintiff alleged DeMarco "used the bankruptcy petition to prevent the exposure of Rottino's fraud in the pending Paragon litigation," and "[t]he bankruptcy petition was not filed to benefit [him], but to benefit the interests of DeMarco's client, Rottino." He alleged DeMarco's and Stanziale's conduct "was a deviation from the standards of practice." Plaintiff was required to adduce an expert report to prove these claims. 6 A-4189-15T2 "[I]n nearly all malpractice cases, plaintiff need[s] to produce an expert regarding deviation from the appropriate standard." Garcia v. Kozlov, 179 N.J. 343, 362 (2004) (citing Brach, Eichler, P.C. v. Ezekwo, 345 N.J. Super. 1, 12 (App. Div. 2001)); see also N.J.S.A. 2A:53A-27. "As the duties a lawyer owes to his client are not known by the average juror, expert testimony must necessarily set forth that duty and explain the breach." Buchanan v. Leonard, 428 N.J. Super. 277, 288 (App. Div. 2012) (quoting Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 78 (App. Div. 2007)) (citation omitted). Where the standard of care that should guide an attorney in the situation presented would not be readily apparent to persons of average intelligence and ordinary experience, the assistance of an expert opinion is required. See id. at 289. A plaintiff's failure to produce expert testimony in legal malpractice claims is often fatal. See Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 214 (App. Div. 2014). Thus, expert testimony on plaintiff's behalf was the only means to adduce the necessary proofs to sustain plaintiff's malpractice action against defendants. For the reasons set forth in the next section, the trial court properly denied plaintiff's motion to file a late expert report, which was a prerequisite for offering expert testimony. Therefore, summary judgment was 7 A-4189-15T2 appropriately granted here because plaintiff lacked any means to prove his malpractice claim to a trier of fact. III. Plaintiff argues the late filing of his expert report was not his fault. Specifically, plaintiff asserts he was unable to produce an expert report in a timely fashion because Wasserman alerted plaintiff to an alleged conflict shortly before his report was due. This required plaintiff to retain Ambrosio, who could only produce a report after the expiration of the discovery, thus necessitating an extension of the discovery end date. Plaintiff argues the trial court's dismissal of his claim with prejudice is contrary to the law. He argues the discovery deadline would only be extended by one month, the delay was not caused by plaintiff or his attorney, and defendants would not be prejudiced by an extension of the discovery deadline. We disagree. "The right of a trial court to manage the orderly progression of cases before it has been recognized as inherent in its function." Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 488 (App. Div.), certif. denied, 165 N.J. 607 (2000). "As it relates to extensions of time for discovery, appellate courts . . . have [] generally applied a deferential standard in reviewing the decisions of trial courts." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (citing Rivers v. LSC 8 A-4189-15T2 P'ship, 378 N.J. Super. 68, 82-83 (App. Div.), certif. denied, 185 N.J. 296 (2005)). "[W]e apply the same deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Ibid. This court "generally defer[s] to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers, supra, 378 N.J. Super. at 80 (citing Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997)). An abuse of discretion "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) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). "No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown." R. 4:24-1(c). To demonstrate exceptional circumstances, the moving party must demonstrate "legitimate problems beyond mere attorney negligence, inadvertence or the pressure of a busy schedule." Pressler & Verniero, Current N.J. Court Rules, cmt. 3 to R. 4:24-1 at 1829 (2018). In Rivers, supra, 378 N.J. Super. at 82-83, we stated that the "'exceptional 9 A-4189-15T2 circumstances' requirement warranting an extension of discovery will not excuse the late request to secure expert reports, or . . . the absence of expert opinion to support plaintiff's liability claims, which is fatal to [plaintiff's] case, where [plaintiff's] counsel failed to exercise due diligence during the discovery period." Plaintiff's arguments on appeal are not supported by the record and lack context. The record does not show Wasserman alerted plaintiff to the alleged conflict before his report was due. In any event, plaintiff did not alert the court of the alleged Wasserman conflict until two weeks after the deadline, and after Stanziale had moved for summary judgment. Plaintiff did not file a timely motion or attempt to submit the Ambrosio expert report until April 18, 2016, more than a month after it was due, and after the trial court had already extended the discovery deadline four times. As an explanation for the exceptional circumstances, plaintiff submitted a certification to the trial court on March 31, 2016 stating: Wasserman became aware that counsel for one of the defendants was a member of a firm with whom he had a conflict. Mr. Wasserman had not previously realized this conflict when he indicated that he would render a report in this matter. . . . Mr. Wasserman has indicated that while he had previously agreed to provide a legal malpractice expert report in this 10 A-4189-15T2 matter, he now feels uncomfortable doing so because of this conflict. The trial court stated: In the instant case, plaintiff asserts that on March 29, 2016, his expert, Mr. Wasserman, determined that he could not serve as an expert because of an alleged conflict. Nowhere in the papers submitted in support of the cross-motion does plaintiff or Mr. Wasserman ever describe the nature of the conflict. Furthermore, Mr. Wasserman's disclosure regarding the alleged conflict did not take place until two weeks after his expert report was due (March 17, 2016) in accordance with the February 19 order. It is simply inconceivable to this court that Mr. Wasserman only realized he had a conflict in this matter on March 29, 2016 (after his expert report was due). In this case, Plaintiff attempted to serve its expert report from Mr. Ambrosio on April 18, 2016, well after the time for providing such report was required under the February 19 order and all other prior order[s] entered by the court. Plaintiff's counsel provides a cursory certification to support the late filing which is insufficient. Plaintiff's counsel makes no certification and fails to set forth any facts demonstrating due diligence and proffers no adequate explanation for the delay. Furthermore, if this court were to permit plaintiff to now serve its late expert report, defendants would be unduly prejudiced in preparing their defense in this matter since defendants would then be required within less 11 A-4189-15T2 than 30 days to obtain their own expert report and to prepare for the June 6 trial. Additionally, at this late date, further extension to allow for discovery will only unduly lengthen the already protracted discovery in this matter and perhaps necessitate an adjournment of the trial. Since more than 800 days of discovery have already passed in the matter, there is no reasonable justification for further delay at this late date. For all of these reasons set forth above, the court finds no exceptional circumstances which would allow plaintiff to provide his late expert report from Mr. Ambrosio. The trial court's reasoning is sound. Plaintiff's certification was submitted after the already extended discovery end date and failed to identify any facts demonstrating due diligence. Plaintiff offered no explanation for the delay in securing an expert report during the over 800 days of discovery and after four discovery extensions by the trial court. At oral argument, plaintiff blamed defendants' failure to schedule deposition dates as a reason for the late submission of his expert report. This does not constitute exceptional circumstances as plaintiff could have sought enforcement of the discovery deadlines before expiration of the discovery end date. We fail to see how extending discovery for a fifth time with an impending trial, satisfies the goals of an expeditious resolution 12 A-4189-15T2 of this dispute for plaintiff, and accords defendants justice and an opportunity to defend plaintiff's claims. Affirmed. 13 A-4189-15T2

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Docket No.: a4503-15
Decided: 2017-11-14
Caption: LIENNA SHAIR v. MASARU TSUBOI
Status: unpublished
Summary:
PER CURIAM Plaintiff sued defendants for damage to her home resulting from when defendants had a tree trimmed on their property approximately twenty years earlier. Defendants counterclaimed seeking attorney fees and costs for filing a frivolous suit. Summary judgment was eventually granted in favor of defendants dismissing plaintiff's complaint and awarding defendants' attorney fees and costs. We affirm substantially for the reasons stated by Judge Rachelle L. Harz in her opinion placed on the record on April 18, 2015. We add the following comments. This action involving next-door neighbors originated in the Special Civil Part. Plaintiff filed a pro se complaint alleging defendants hired Cherokee Tree Services to trim a tree on their property and authorized Cherokee to park its truck on her property, which caused extensive damage to her property. Following the service of the complaint, defendants' counsel served a notice of a frivolous claim in accordance with N.J.S.A. 2A:15-59.1 and Rule 1:4-8, advising plaintiff to withdraw her complaint within twenty- eight days because "your potential claims are barred by the [s]tatute of [l]imtations and you offer no facts to support your outrageous and unfounded allegations." When plaintiff did not comply, defendants counter-claimed seeking attorney fees and costs for filing a frivolous lawsuit.1 1 The counter-claim also alleged defamation, libel per se, and intentional infliction of emotional distress based upon plaintiff's posting of signs on her property stating in Japanese, "Hit and Run Liar" and "Hit and Run Neighbor." These claims are not a subject of this appeal as plaintiff agreed in court to remove the signs at the conclusion of the Law Division case. 2 A-4503-15T1 On the trial date, plaintiff failed to appear resulting in the dismissal of her complaint and entry of default judgment to defendants on their counter-claim. Plaintiff, in turn, filed a second complaint raising the same allegations as her first complaint. The court subsequently reinstated plaintiff's first complaint and dismissed the second complaint, due to the entire controversy doctrine. After the Special Civil Part sua sponte transferred the matter to the Law Division, plaintiff successfully moved to vacate the default judgment on defendant's counter-claim, and was permitted to file an answer to the counter-claim and reopen discovery to serve interrogatories. Following completion of discovery, the court granted defendant's motion for summary judgment on April 18, 2016, dismissing plaintiff's complaint and awarding defendants attorney fees and costs on their counter-claim. In her oral decision dismissing plaintiff's complaint, Judge Harz reasoned: There has been no evidence presented by the plaintiff that defendants actually caused any alleged damage to plaintiff's property. The plaintiff has . . . stated in her complaint[] that a tree company, Cherokee, hired by defendants, is believed to have hit her home and cause damage. She does not allege that the defendants directly damaged the property. Not only has the plaintiff been unable to prove that any damage that exists on her 3 A-4503-15T1 property was actually caused by a truck hitting her home, but she has failed to prove the defendants were the actual or proximate cause of any alleged damage. Defendants do not currently and never have worked for Cherokee Tree Service[s]. They are not an agent of nor are they in any way affiliated or associated with Cherokee Tree Service[s]. Defendants only hired Cherokee in or around 1995 to trim some branches on their property. Plaintiff's claims should, therefore, be brought against Cherokee for any damages she alleges. Summary judgment is entered as to all of plaintiff's claims, because the plaintiff has failed to bring her claim within the stated statute of limitations. While this [c]ourt is saying that today it appears, from what plaintiff has said herself, that she has been told this before by [the Special Civil Part Judge] and has been told this by [L]egal [A]id. There is a six-year statute of limitations of this type of cause of action. N.J.S.A. 2A:14-1. In granting summary judgement on defendants' counter-claim for attorney fees and costs, Judge Harz determined the frivolous litigation statute was enacted to prevent suits such as this, especially where a litigant was well aware of the time bar to her claims. Although the judge found that the hourly rate sought by defendants' counsel was reasonable, she ordered counsel to submit another certification of services regarding legal fees pursuant to the N.J.S.A. 2A:15-59.1. A month later, Judge Harz entered an order, and placed her reasons on the record, requiring plaintiff 4 A-4503-15T1 to pay defendants' attorney fees and costs in the amount of $15,738.07.2 In this appeal, plaintiff contends that her complaint alleging defendants damaged her property in 1995 is still actionable because she is the victim of a crime and that under N.J.S.A. 52:4B-64, a crime victim has the right to bring civil action for damages without the restriction of the six-year statute of limitations. She further argues Judge Harz erred in finding her claim was frivolous because she established defendants, by way of Cherokee Tree Services, damaged her property in 1995, as supported by the defendants' affirmative defenses. We are unpersuaded. Appellate review of a ruling on a motion for summary judgment is de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). Thus, we consider, as the motion judge did, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor 2 Before the proceeding to determine the amount of attorney fees and costs, plaintiff wrote to Judge Harz to advise that she would not be submitting opposition to defendants' application and did not participate in the proceeding as she intended to appeal the April 18 order. 5 A-4503-15T1 of the non-moving party." Id. at 406 (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "If there is no genuine issue of material fact," an appellate court 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 accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)). In light of the undisputed material facts presented in defendants' motion, Judge Harz' decision to grant summary judgment is legally unassailable. Plaintiff's appellate arguments are without sufficient merit to warrant further discussion. R. 2:11- 3(e)(1)(E). Affirmed. 6 A-4503-15T1

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Docket No.: a4543-15
Decided: 2017-11-14
Caption: STATE OF NEW JERSEY v. MARK HUERTAS
Status: unpublished
Summary:
PER CURIAM Defendant appeals from his de novo conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant moved to suppress evidence, contending police lacked a reasonable and articulable suspicion to stop his motor vehicle. His motion was denied in municipal court, and he pleaded guilty to DWI. On appeal, the Law Division judge upheld the denial of the motion and imposed the same sentence defendant received in municipal court. Defendant's sole argument on appeal is: AN ANONYMOUS CALL TO THE POLICE THAT THERE "MIGHT BE A DRUNK DRIVER" [WAS] NOT SUFFICIENT TO ESTABLISH A REASONABLE ARTICULABLE SUSPICION OF CRIMINAL ACTIVITY SUFFICIENT TO JUSTIFY A [STOP] OF A MOTOR VEHICLE. We conclude the stop of defendant's vehicle was justified because the information received from the caller and the sergeant's observations prior to effecting the stop provided a reasonable, articulable suspicion that the operator of the vehicle was intoxicated. We therefore affirm. In reviewing an order denying a motion to suppress, we "uphold the factual findings underlying [a judge's] decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). We only reverse if the decision was "so clearly mistaken that the interests of justice demand intervention and correction." Id. at 425 (quoting State v. Elders, 192 N.J. 224 (2007)). The "[judge's] interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference[,]" and are therefore "reviewed de novo." Ibid. 2 A-4543-15T4 The Law Division judge found Wanaque Borough police Sergeant Spillane, who performed the challenged motor vehicle stop, received a radio transmission that an off-duty officer from another municipality observed a vehicle being operated by a driver who was possibly intoxicated. The broadcast to Spillane also gave a description of the vehicle and its New Jersey license plate information. The judge also found that the off-duty officer informed the dispatcher that the operator's "driving [was] erratic" and that the driver "fail[ed] to maintain a lane." The judge credited evidence that Spillane, prior to effecting the motor vehicle stop, "observed defendant's vehicle [for twenty to twenty-five seconds and saw it] go over towards the left portion of the lane and touch[] a double yellow line with the left driver's side and rear tires." The judge viewed a mobile video recorder (MVR) video that confirmed defendant's front and rear tires were on the yellow line for approximately four seconds. As the officer pulled the car over, it "appeared to run over the left curb" as it turned into the QuickChek parking lot, but that observation was made after he activated his overhead lights. It is axiomatic 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. Golotta, 178 N.J. 205, 212-13, (2003) (quoting State v. 3 A-4543-15T4 Locurto, 157 N.J. 463, 470 (1999)). The reasonable suspicion needed to initiate an investigative stop requires less than the quantum of proof necessary to establish probable cause. Id. at 213. The State must "demonstrate by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion." State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). Police officers are permitted to stop an automobile on the basis of a 9-1-1 call alleging intoxicated driving as long as the 9-1-1 caller "convey[s] an unmistakable sense that the caller has witnessed an ongoing offense that implicates a risk of imminent death or serious injury to a particular person such as a vehicle's driver or to the public at large." Golotta, supra, 178 N.J. at 221-22. The call must be made "close in time to his first-hand observations." Id. at 222. Finally, the caller must "provide a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or 'similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller.'" Ibid. (quoting United States v. Wheat, 278 F.3d 722, 731 (8th Cir. 2001), cert. denied, 537 U.S. 850, 123 S. Ct. 194, 154 L. Ed. 2d 81 (2002)). 4 A-4543-15T4 The call from the off-duty officer informed that he had directly observed the operation of a vehicle by a driver he believed to be intoxicated. The off-duty officer told the dispatcher the driver was operating erratically and failed to maintain the lane of travel. Observation of such operation is sufficient to justify a DWI stop. Golotta, supra, 178 N.J. at 209. Although the manner of operation reported by the off-duty officer to the dispatcher was not conveyed to Spillane, those facts, contrary to defendant's argument on appeal, can be used to establish the State's burden: It is understood "that effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information." United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976); see also United States v. Hensley, 469 U.S. 221, 230-31, 105 S. Ct. 675, 681, 83 L. Ed. 2d 604, 613 (1985) (explaining that information possessed by dispatcher was imputed to responding police officers, and that dispatcher's knowledge, not responding officers', was essential for determining probable cause); Whiteley v. Warden of Wyo. State Penitentiary, 401 U.S. 560, 568, 91 S. Ct. 1031, 1037, 28 L. Ed. 2d 306, 313 (1971) (holding that police who arrested and searched defendant were entitled to rely and act on radio bulletin and stating that "police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid 5 A-4543-15T4 offered the magistrate the information requisite to support an independent judicial assessment of probable cause"). [State v. Crawley, 187 N.J. 440, 457 (2006); see also State in the Interest of H.B. 75 N.J. 243, 265 (1977) (Handler, J., dissenting) (stating, "police action must be assessed for reasonableness in constitutional terms by reference to the sum total of the information and knowledge available to the police collectively and not by the isolated or selective consideration of only a part of the total composite").] The reliability of the information provided by the off-duty officer is presumed. United States v. Ventresca, 380 U.S. 102, 111, 85 S. Ct. 741, 747, 13 L.Ed. 2d 684, 691 (1965). Moreover, the information provided to Spillane, together with his observations, justified the stop. Spillane promptly located the vehicle that matched the information provided by the off-duty officer. Spillane's observation of defendant's vehicle buttressed the suspicion that the operator was intoxicated. Defendant did not maintain his vehicle within the marked travel lane as required by N.J.S.A. 39:4-88(b), as confirmed by the MVR. The information provided by the off-duty officer, together with Spillane's own observations, satisfied the reasonable and articulable suspicion standard. An urgency arose from the recognized fact that intoxicated or erratic drivers pose a significant risk of death or injury to themselves and to the 6 A-4543-15T4 public. See Golotta, supra, 178 N.J. at 218. The stop was justified. Affirmed. 7 A-4543-15T4

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Docket No.: a4895-15
Decided: 2017-11-14
Caption: T.L.H. v. M.H
Status: unpublished
Summary:
PER CURIAM Plaintiff appeals from the May 27, 2016 Family Part order terminating defendant's alimony obligation pursuant to the parties' Marital Settlement Agreement (MSA). We affirm. After a twenty-year marriage, the parties divorced on July 11, 2013. An Amended Final Judgment of Divorce (JOD) was filed on August 19, 2013, which incorporated an MSA requiring defendant to pay alimony in the amount of $500 per week, effective September 1, 2013. The MSA provided that the alimony would "increase to $700 per week when [plaintiff was] forced to leave the marital home due to . . . foreclosure." In paragraph 5.2, the MSA provided that alimony would terminate: [U]pon the death of either party, or the marriage or cohabitation of [plaintiff]. The term "cohabitation[,"] in addition to its meaning as construed by New Jersey courts, shall also incorporate the scenario if [plaintiff] should take up residence with any family members (other than the children of the parties) or friends. Paragraph 8.1 of the MSA provided, in pertinent part: In arriving at this agreement both [plaintiff] and [defendant] had an opportunity to obtain the assistance of separate legal counsel and to be advised regarding the legal and practical effects of this [a]greement. . . . The parties have read this agreement in its entirety and each of them has entered voluntarily into this agreement. They have consented to and assume all of the covenants herein contained, having read the same and having fully understood them. They both acknowledge that it is a fair, just and reasonable agreement and [is] not the result of any fraud, duress, or undue influence exercised by either party upon the other or by any other person and that there have been no representations, warranties, covenants, or undertaking other than those as set forth herein. 2 A-4895-15T2 On October 22, 2015, plaintiff was forced out of the former marital home, due to a Sheriff's sale, and moved in with her sister. When defendant ceased paying alimony, plaintiff moved to enforce litigant's rights. In support of her motion, plaintiff certified that she was paying her sister $800 per month to live with her, which increased her monthly expenses. Plaintiff explained "[t]he whole reason [she] negotiated an increase in alimony after [she] left the former marital home [was] because [she] knew [her] expenses would be higher." Based on plaintiff's cohabitation with her sister, defendant cross-moved to terminate his alimony obligation in accordance with paragraph 5.2 of the MSA. Defendant averred "the whole reason . . . [he] negotiated [p]aragraph 5.2 . . . [was] because [he] expected that [plaintiff] would move in with her sister or another family member." Plaintiff countered in a reply certification that she disagreed with "defendant's definition of cohabitation[.]" According to plaintiff, "living with someone and cohabiting with them are two different things." Plaintiff admitted that she was living in her sister's home; however, her understanding of "cohabitation, for the purpose of alimony, mean[t] that someone else [was] supporting [her] or significantly contributing to [her] support[,]" which was not the case. Plaintiff certified that she 3 A-4895-15T2 was unable to work and had applied for disability benefits, but was denied because of her receipt of alimony. Plaintiff sustained injuries after a fall, which resulted in the adjournment of the plenary hearing on the motions. Over the next three months, conflicting schedules thwarted reaching an agreement on a new date. As a result, on May 27, 2016, the trial court granted defendant's cross-motion on the papers. In the statement of reasons accompanying the May 27, 2016 order, the court acknowledged that "[w]hile plaintiff [was] not cohabitating in the legal sense of the word as defined by case law, . . . she [was cohabitating] for purposes of the parties' own [MSA]." The court noted that a MSA was favored by courts, and was "essentially a contract, which [was] to be enforced as written, absent a demonstration of fraud or other compelling circumstances." The court rejected plaintiff's argument, pointing out that: Plaintiff does not argue that she did not understand the terms of the MSA or that there was some level of fraud, duress or undue influence involved, she merely argued that her cohabitation is not cohabitation at all under current case law. While [p]laintiff is correct in her assertion that residing with her sister does not rise to the level of cohabitation under Konzelman [v. Konzelman, 158 N.J. 185 (1999)], her own MSA carves out an express addition to the meaning of cohabitation, which she seemingly chooses to ignore. The court concluded: 4 A-4895-15T2 The parties' MSA is explicit and unambiguously includes taking up residence with a family member under the definition of cohabitation, as [p]laintiff admits she has. It is uncontroverted that [p]laintiff resides with her sister, who is clearly a family member, which would then trigger the cohabitation provision of the MSA. Additionally, the MSA includes a provision outlining that the agreement was entered into freely and voluntarily and without coercion. It is clear that while [p]laintiff's residing with her sister does not equate to the Konzelman definition of "cohabitation," the parties voluntarily expounded the definition for purposes of their own agreement. Plaintiff never once in her moving papers certifies that she was unaware of the provision, did not understand the meaning, or signed the agreement under duress. The [c]ourt will not venture to modify the parties' agreement, merely because [p]laintiff has now found it to [be] inconvenient. Of note, [p]laintiff did certify that she was denied disability benefits as a result of her receipt of alimony, therefore, the impediment of alimony will be removed, and [p]laintiff will be able to collect disability benefits leaving her in a similar position as she would have been in if she had continued to receive alimony payments. The [c]ourt finds that [p]laintiff is cohabiting under the parties' MSA, therefore, in accordance with same, [d]efendant's alimony obligation is terminated. This appeal followed. On appeal, plaintiff argues that the court erred in "[d]ispensing with the plenary hearing" because "[a] genuine issue of fact existed . . . as to the intent of the parties in crafting certain language in the [MSA]." Plaintiff also argues that the 5 A-4895-15T2 court erred in interpreting the cohabitation clause so as to dispense with the requirement to examine "the economic circumstances[.]" We disagree. "Settlement of disputes, including matrimonial disputes, is encouraged and highly valued in our system." Quinn v. Quinn, 225 N.J. 34, 44 (2016). "[I]t is 'shortsighted and unwise for courts to reject out of hand consensual solutions to vexatious personal matrimonial problems that have been advanced by the parties themselves.'" Ibid. (quoting Konzelman, supra, 158 N.J. at 193). "Therefore, 'fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.'" Id. at 44-45 (quoting Konzelman, supra, 158 N.J. at 193-94). "Moreover, a court should not rewrite a contract or grant a better deal than that for which the parties expressly bargained." Id. at 45. "An agreement that resolves a matrimonial dispute is no less a contract than an agreement to resolve a business dispute" and "is governed by basic contract principles." Ibid. "Among those principles are that courts should discern and implement the intentions of the parties" and not "rewrite or revise an agreement when the intent of the parties is clear." Ibid. "Thus, when the intent of the parties is plain and the language is clear and unambiguous, a court must enforce the agreement as written, unless 6 A-4895-15T2 doing so would lead to an absurd result." Ibid. "To the extent that there is any ambiguity in the expression of the terms of a settlement agreement, a hearing may be necessary to discern the intent of the parties at the time the agreement was entered and to implement that intent." Ibid. (citing Pacifico v. Pacifico, 190 N.J. 258, 267 (2007)). Undoubtedly, "'the law grants particular leniency to agreements made in the domestic arena' and vests 'judges greater discretion when interpreting such agreements.'" Id. at 45-46 (quoting Pacifico, supra, 190 N.J. at 266). Nevertheless, "the court must discern and implement 'the common intention of the parties' and 'enforce [the mutual agreement] as written[.]'" Ibid. (citations omitted) (first quoting Tessmar v. Grosner, 23 N.J. 193, 201 (1957); then quoting Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960)). "A narrow exception to the general rule of enforcing settlement agreements as the parties intended is the need to reform a settlement agreement due to 'unconscionability, fraud, or overreaching in the negotiations of the settlement.'" Id. at 47 (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)). In Quinn, supra, our Supreme Court considered a spouse's receipt of alimony under a marital settlement agreement, and the circumstances in which alimony may be terminated. The Court acknowledged that "[i]n the absence of an agreement that permits 7 A-4895-15T2 the obligor former spouse to cease payment of alimony, this Court has permitted a modification of alimony, including cessation of alimony, in the event of post-divorce cohabitation 'only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief.'" Id. at 49 (quoting Gayet v. Gayet, 92 N.J. 149, 153-54 (1983)). "On the other hand, when the parties have outlined the circumstances that will terminate the alimony obligation, [the] Court has held that it will enforce voluntary agreements to terminate alimony upon cohabitation, even if cohabitation does not result in any changed financial circumstances." Id. at 50. In so doing, the Court reiterated its declination "to import the Gayet economic dependence or reliance rule when the parties have agreed in a marital settlement agreement that cohabitation is an alimony-termination event." Id. at 55. The Court summarized its holding thusly: [A]n agreement to terminate alimony upon cohabitation entered by fully informed parties, represented by independent counsel, and without any evidence of overreaching, fraud, or coercion is enforceable. . . . When a court alters an agreement in the absence of a compelling reason, the court eviscerates the certitude the parties thought they had secured, and in the long run undermines this Court's preference for settlement of all, including marital, disputes. [Ibid.] 8 A-4895-15T2 Here, there were no compelling reasons to depart from the clear, unambiguous, and mutually understood terms of the MSA.1 The agreement was voluntary, knowing and consensual, and the alimony- termination event upon cohabitation was fair under the circumstances of the case. We agree with the court's finding that, while residing with her sister does not rise to the level of cohabitation under Konzelman, supra, plaintiff understood that residing with her sister was an event that could trigger termination of alimony under the description of cohabitation specified in her MSA. In our view, the explicit terms in the MSA obviated the need for a plenary hearing. Accordingly, we find no error in the court deciding the cross-motion on the papers. Affirmed. 1 On September 10, 2014, the Legislature enacted N.J.S.A. 2A:34- 23, which provides that "[a]limony may be suspended or terminated if the payee cohabits with another person." L. 2014, c. 42, § 1. The Legislature clarified that this law "shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into: a. a final judgment of divorce or dissolution; b. a final order that has concluded post-judgment litigation; or c. any enforceable written agreement between the parties." Id. § 2. Because this law was enacted after the MSA in this case was entered, it does not govern this case, and, in any event, the terms of the MSA apply. See Quinn, supra, 225 N.J. at 51 n.3. 9 A-4895-15T2

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Docket No.: a5356-14
Decided: 2017-11-14
Caption: STATE OF NEW JERSEY v. MICHAEL ARNO
Status: unpublished
Summary:
PER CURIAM Defendant appeals from his conviction, after a trial de novo in the Law Division, of driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to a chemical breath test, N.J.S.A. 39:4-50.2; and careless driving, N.J.S.A. 39:4-97.1 We affirm. The facts and procedural history of this case are set forth at length in Judge Kimarie Rahill's comprehensive twenty-six-page written decision and need not be repeated here in the same level of detail. Officer Ryan Cerro observed defendant driving his car near the Somerville Circle at approximately 2:45 a.m. Defendant veered off into the left lane of travel and, although the speed limit was forty-fives mile per hour, defendant accelerated to approximately sixty miles per hour and then had trouble maintaining his lane. After defendant began driving even faster, Officer Cerro activated his overhead lights and executed a motor vehicle stop. The officer detected the odor of alcohol emanating from defendant's car and on his breath. Defendant's eyes were watery, he appeared nervous, and his speech was boisterous in nature. 1 Defendant does not challenge his sentence in this appeal. Following our April 26, 2016 order granting defendant a limited remand to the municipal court for resentencing, the municipal court sentenced defendant as a second offender on the DWI conviction to a two-year driver's license suspension, forty-eight hours at an Intoxicated Drivers Resource Center, the installation of an interlock device for one year, and appropriate fines and penalties. The Law Division had earlier affirmed the municipal court's imposition of a concurrent seven-month driver's license suspension for refusal, together with fines and penalties on that charge, as well as for the careless driving conviction. 2 A-5356-14T4 Defendant admitted he had been drinking alcohol during the day, but believed he was fine to drive. Officer Cerro had defendant perform two field sobriety tests, which he was unable to successfully complete.2 Defendant's performance on these tests was recorded by the officer's mobile video recorder (MVR) and this recording was played at defendant's trial. After defendant failed the field sobriety tests, Officer Cerro arrested him, placed him in his patrol car, and drove to the police station. At the station, defendant refused to submit to a chemical breath test. Officer Cerro was the State's only witness at the municipal court trial. After the State rested, defendant called two expert medical witnesses. One of the witnesses, a podiatrist, testified that he treated defendant for a "painful left big toe" both before and after his arrest and that this condition affected his ability to walk normally. A pulmonologist, who was also defendant's brother, testified that he diagnosed defendant with a bronchospasm two days before his arrest. The brother also stated that when he 2 On the "walk-and-turn" test, defendant needed to raise his arms to maintain his balance and failed to walk heel-to-toe as instructed. Defendant was also unable to perform the "one-leg- stand" test because he again needed to raise his arms to maintain his balance and could not keep his foot six inches off the ground for thirty seconds. 3 A-5356-14T4 picked defendant up from the police station, defendant did not appear to be under the influence. Based upon the testimony presented at trial, the municipal court judge found defendant guilty of DWI, refusal, and careless driving. The judge made detailed findings of fact, fully crediting Officer Cerro's testimony. The judge rejected the opinions of defendant's experts, noting that their claims that defendant's performance on the field sobriety tests may have been affected by a medical condition were belied by the MVR recording of defendant performing the tests. Based on his review of that recording, the judge found that although defendant was unable to maintain his balance during the tests, he had no difficulty walking on the roadway as he prepared to take the tests. Following the trial de novo in the Law Division, Judge Rahill made equally detailed findings of fact and conclusions of law in her extremely thorough written opinion, and affirmed defendant's convictions. This appeal followed. On appeal, defendant raises the following contentions: POINT I THE TRIAL COURT'S ARBITRARY AND UNREASONABLE DENIAL OF AN EXTENSION CONSTITUTED AN ABUSE OF DISCRETION AND A VIOLATION OF DEFENDANT['S] . . . RIGHT TO COUNSEL MANDATING A REVERSAL OF DEFENDANT'S CONVICTIONS. 4 A-5356-14T4 POINT II DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT AND NEW JERSEY CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND HIS DUE PROCESS AND STATE RIGHT TO A FAIR TRIAL BY JUDGE KELLEHER'S GRANTING THE WITHDRAWAL MOTION OF HIS RETAINED ATTORNEY WITHOUT CAUSE, AND BY SAID ATTORNEY FAILING TO COMPLY WITH THE COURT ORDER AS TO THE REASON FOR FILING THE MOTION TO BE RELIEVED, RESULTING IN: 1) DEPRIVATION OF DEFENDANT'S COUNSEL OF CHOICE; 2) TRIAL WITH INSUFFICIENT TIME FOR NEW COUNSEL TO PREPARE; 3) A LACK OF DISCOVERY; AND 4) A LACK OF THE DEFENSE EXPERT WHICH HAD BEEN PAID FOR BY THE DEFENDANT AND WAS ESSENTIAL TO HIS DEFENSE. POINT III THE DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO THE MUNICIPAL COURT'S STRUCTURAL ERROR IN INCORPORATING THE SUPPRESSION MOTION AND TRIAL INTO A CONCURRENT PROCEEDING WITHOUT THE EXPRESS CONSENT OF THE PARTIES. POINT IV THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT . . . OPERATED A MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL; THE DWI CONVICTION MUST BE REVERSED. POINT V THE EXISTENCE OF MEDICAL ISSUES AFFECTING DEFENDANT'S ABILITY TO PERFORM THE WALK-AND- TURN AND ONE-LEG-STAND TESTS RAISES REASONABLE DOUBT AS TO THE ELEMENT OF BREATH TEST REFUSAL REQUIRING PROBABLE CAUSE TO ARREST HIM FOR DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL. 5 A-5356-14T4 POINT VI THE CARELESS DRIVING CONVICTION SHOULD BE REVERSED AS REASONABLE DOUBT EXISTS AS TO THE DEFENDANT['S] . . . GUILT; THERE WAS NO EVIDENCE AS TO ANY EFFECT ON OR DANGER TO OTHERS FROM THE MANNER IN WHICH [DEFENDANT] DROVE. POINT VII DEFENDANT WAS ENTITLED TO A JURY TRIAL IN LIGHT OF THE LEGISLATURE'S SHIFT, WITH THE 2004 AMENDMENTS TO N.J.S. 39:4-50, FROM REHABILITATION TO PUNISHMENT OF THIRD DWI OFFENDERS, COUPLED WITH THE POSSIBILITY OF JAIL IN EXCESS OF 180 DAYS AND THE IMPOSITION OF OTHER ONEROUS PENALTIES. We find insufficient merit in defendant's Points I, IV, V, and VI, to warrant discussion in a written opinion. 3 R. 2:11- 3(e)(2). We add the following brief comments concerning these contentions. 3 At oral argument, defendant's attorney waived defendant's argument in Point VII that he was entitled to a jury trial on the DWI charge. See State v. Denelsbeck, 225 N.J. 103, 107 (2016) (holding that third or subsequent DWI offenders under N.J.S.A. 39:4-50 are not entitled to a jury trial), cert. denied, ___ U.S. ___, 137 S. Ct. 1063, 197 L. Ed. 2d 175 (2017). Therefore, there is no need to address this point in this opinion. We also decline to consider defendant's contention in Point II that three of the attorneys he retained rendered ineffective assistance to him during the course of this proceeding. State v. Rambo, 401 N.J. Super. 506, 525 (App. Div.) (noting that "[c]ontentions of ineffective assistance of counsel are more effectively addressed through petitions for post-conviction relief, at which point an appropriate record may be developed") (citing State v. Preciose, 129 N.J. 451, 460 (1992)), certif. denied, 197 N.J. 258 (2008). 6 A-5356-14T4 Contrary to defendant's argument in Point I, the municipal court judge exercised his sound discretion in denying defendant's last-minute adjournment request on July 29, 2014, the day of trial. State v. Hayes, 205 N.J. 522, 538 (2011). The matter had been pending for ten months, and defendant had already obtained multiple adjournments due to his alleged difficulties in retaining counsel. Thus, the judge was well within his discretion to deny defendant's request for yet another adjournment, this time to obtain an expert who defendant's attorney stated was then on vacation. Defendant's Points IV, V, and VI also lack merit. On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). A DWI conviction may be based upon physical evidence, such as symptoms observed by the arresting police officers or failure of the defendant to perform adequately on balance and coordination tests. State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996). A 7 A-5356-14T4 defendant's demeanor, physical appearance, slurred speech, and bloodshot eyes, together with an odor of alcohol or an admission of the consumption of alcohol and poor performance on field sobriety tests, are sufficient to sustain a DWI conviction. State v. Bealor, 187 N.J. 574, 588-89 (2006). Here, defendant operated his car erratically, smelled of alcohol, had watery eyes, exhibited boisterous behavior, admitted to drinking, and failed both field sobriety tests. Thus, there was ample evidence in the record supporting defendant's DWI conviction beyond a reasonable doubt. Because there was obviously probable cause to arrest defendant for DWI under the totality of circumstances described above, and he thereafter refused to submit to a chemical breath test, we discern no basis for disturbing defendant's refusal conviction under N.J.S.A. 39:4-50.2. See State v. Marquez, 202 N.J. 485, 503 (2012) (listing the elements that must be established to uphold a refusal conviction). Finally, Officer Cerro's testimony that defendant veered from one lane to another, and drove at least fifteen miles over the speed limit, provided more than enough credible evidence to support defendant's conviction for careless driving under N.J.S.A. 39:4-97. We now turn to defendant's Point III, where he asserts that the municipal court judge improperly combined the trial on the 8 A-5356-14T4 charges and his motion to suppress evidence into a single proceeding in violation of the principle that a judge should conduct these matters separately. Judge Rahill rejected this argument, finding that defendant's attorney "stipulated that the testimony from the motion to suppress [would] be incorporated into the trial." Based on our review of the applicable case law as applied to the facts of this case, we also reject defendant's contention. Since at least 1989, the Municipal Court's Training Guide has counselled municipal court judges not to incorporate the evidence from a suppression motion into the trial record. State v. Gibson, 219 N.J. 227, 240-41 (2014) (citing State v. Allan, 283 N.J. Super. 622, 630 (Law Div. 1995) (holding that the better practice is to conduct two separate proceedings unless both sides consent and defense counsel is given wide latitude in cross-examining the State's witnesses)). As the Court explained in Gibson, a suppression hearing and a trial are governed by different rules and have different purposes. Id. at 241-42. For example, a suppression hearing determines whether certain evidence may be excluded and the State may present hearsay evidence that would otherwise be inadmissible at a trial. N.J.R.E. 104(a). Thus, the Court held that the two proceedings may only be combined if both parties consent and the defense is granted the 9 A-5356-14T4 opportunity to fully cross-examine the State's witnesses on all issues raised. Gibson, supra, 219 N.J. at 248-49. "Following this procedure[,]" the Court found, "underscores the separate nature of each proceeding, the limited scope of a suppression motion, and the different standards of proof governing each proceeding." Id. at 245. In cases where this rule was not followed by the municipal court, the Court ruled that the matter should be remanded for a new trial. Id. at 249.4 In Allan, defense counsel vehemently objected to having the evidence adduced at the motion to suppress proceeding incorporated into the trial. Allan, supra, 283 N.J. Super. at 628. Moreover, the municipal court judge did not permit defense counsel to cross- examine a police officer at the trial concerning the officer's testimony at the earlier suppression hearing. Id. at 629. As a result, the Law Division found that the municipal court judge 4 The parties each devote a portion of their briefs to a debate over whether the Supreme Court's Gibson decision, which was rendered less than two months after defendant's trial, should be applied retroactively. As noted above, the general rule for over twenty-five years has been that the motion to suppress hearing should be conducted separately from a DWI or refusal trial. Allan, supra, 283 N.J. Super. at 630. Moreover, prior to defendant's trial, we had already issued our decision in State v. Gibson, 429 N.J. Super. 456, 468 (App. Div. 2013), rev'd on other grounds, 219 N.J. 227 (2014), which also criticized the practice of relying on suppression hearing evidence in the trial on the merits of a DWI matter without the parties' consent. Thus, we will apply the Gibson decision to the facts of this case. 10 A-5356-14T4 "infringed upon the defendant's constitutional right to confront the witness against him" and remanded the matter for a new trial. Ibid. Similarly, in Gibson, a motion to suppress hearing was conducted prior to the trial. Gibson, supra, 219 N.J. at 233. Immediately after the municipal court judge denied the defendant's suppression motion, he began the trial and incorporated the testimony from the suppression hearing into the trial record. Id. at 234-35. In doing so, the judge did not allow the defendant's attorney to further cross-examine the police officer who had earlier testified for the State at the suppression hearing. Id. at 235. Although the defendant's attorney did not object to combining the motion to suppress record and the trial, he also did not consent to proceeding in this fashion. Ibid. The Court therefore concluded that a new trial was necessary. Id. at 249. The facts of this case are in no way similar to those presented in Gibson or Allan. Here, the parties appeared on July 29, 2014, for the purpose of conducting a trial on the charges pending against defendant. Although, on July 17, 2014, defendant's newly-retained attorney had filed a motion to suppress "all evidence seized as a result of a warrantless search that occurred on" the day of defendant's arrest, the attorney did not bring this 11 A-5356-14T4 motion to the municipal court judge's attention at the beginning of the trial. Instead, defense counsel asked for an adjournment of the trial to permit him to retain an expert to replace the one defendant had previously engaged. When the judge denied this motion, the attorneys and the judge discussed the schedule for the day. After the judge confirmed with the court clerk that "[t]he whole day" had been set aside for the trial, defendant's attorney mentioned that one of his two experts would not be available until noon. At no time did defendant's attorney ask the judge to consider a motion to suppress evidence. The judge then commenced the trial with the State presenting the testimony of Officer Cerro. At the conclusion of the officer's direct examination, defendant's attorney thoroughly cross-examined him on all issues relating to the charges involved in the trial. After the State rested, defendant's attorney presented the testimony of both of his experts. Again, there was no mention of a motion to suppress. After defendant rested, the judge asked, "Any motions by anyone?" In response to that standard inquiry, defendant's attorney for the first time stated, "Your Honor, I filed a motion to suppress which I think was really incorporated within the entire trial[.]" The judge responded by noting that defendant's motion 12 A-5356-14T4 was "really not timely[,]" but he would consider it. The judge then found that Officer Cerro had probable cause to stop defendant's car after he observed defendant speeding and driving carelessly. Therefore, the judge denied the motion to suppress the evidence of alcohol use the officer observed after the motor vehicle stop. The judge next asked defense counsel if there was "[a]nything else" and the attorney stated, "Not in that regard, Your Honor, no." The judge then proceeded to render his findings on the charges. Thus, this case is nothing at all like Gibson or Allan, where the defendants were forced to have evidence adduced at an earlier suppression hearing incorporated into the trial record without their consent and without the opportunity to fully cross-examine the witnesses on the charges themselves. Unlike in those cases, both parties were fully aware that a trial was going to be conducted on July 29, 2014. Defendant also had the opportunity to fully cross-examine Officer Cerro on his reasons for stopping defendant's car and the officer's observations after that stop all the way through to defendant's refusal to submit to a chemical breath test. The only reason there was any "combination" of the trial and a motion to suppress here was because defendant's attorney 13 A-5356-14T4 belatedly asked the judge to consider a motion to suppress at the very end of the trial. Clearly, the judge's decision to accommodate defendant's late motion did not implicate any of the concerns that led the Gibson court to prohibit the use of testimony and evidence presented at a pre-trial suppression hearing at a later trial on the merits. Therefore, we reject defendant's arguments on this point. Affirmed. 14 A-5356-14T4

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Docket No.: a5357-15
Decided: 2017-11-14
Caption: STATE OF NEW JERSEY v. LUDGI G. DESROCHES
Status: unpublished
Summary:
PER CURIAM Defendant appeals from the May 31, 2016 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. A grand jury returned a one-count indictment charging defendant with third-degree possession of cocaine, N.J.S.A. 2C:35- 10(a)(1). On November 10, 2008, defendant pled guilty to this charge, as well as to two additional charges (third-degree conspiracy to possess cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35- 10(a)(1); and third-degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3)), which were set forth in two accusations the prosecutor issued on that date. Although defendant was not a United States citizen, he answered "No" to Question No. 17 on the plea agreement form that asked, "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" Pursuant to the negotiated plea, the judge sentenced defendant on December 19, 2008 to concurrent three-year terms of probation on each charge. Defendant did not file a direct appeal from his conviction and sentence. On August 9 and 10, 2011, defendant pled guilty to new drug charges1 and to violations of probation. At the plea hearing, 1 Specifically, defendant pled guilty to two counts of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3). 2 A-5357-15T1 defendant admitted he was not a citizen of the United States. He also acknowledged that if he pled guilty to the charges, it would likely result in his deportation. Pursuant to the negotiated plea, the judge sentenced defendant on November 18, 2011 to an aggregate six-year term, with a three-year period of parole ineligibility, on the two drug charges, and a concurrent five-year aggregate term for the violations of probation. On September 11, 2014, more than five years after he was sentenced on December 19, 2008 on the initial set of charges, defendant filed his PCR petition. Defendant argued he was entitled to have his November 10, 2008 plea vacated on ineffective assistance of counsel grounds because his attorney did not provide him with any advice concerning the immigration consequences of his guilty plea. Defendant also argued that his petition should be accepted as timely because he did not become aware that he was subject to deportation until June 13, 2014, when an Immigration and Customs Enforcement (ICE) detainer was lodged against him. Following oral argument, Judge Ronald Reisner rendered a comprehensive thirty-seven page written decision denying defendant's petition without an evidentiary hearing. The judge concluded that defendant's petition was barred by the five-year 3 A-5357-15T1 limitations period set forth in Rule 3:22-12(a)(1).2 Contrary to defendant's assertion that he only became aware of the immigration consequences of the November 10, 2008 plea in June 2014, the judge found that defendant was aware he could be deported because of his drug charges no later than the August 9, 2011 plea hearing, when this issue was discussed in detail. This was well within the five-year limitations period, yet defendant did not file his PCR petition until September 11, 2014, almost nine months after this period expired. Judge Reisner also denied defendant's request to withdraw his plea based upon his allegation that his plea attorney did not give him any advice on the immigration consequences of his November 10, 2008 guilty plea. By way of background, "a defendant can show ineffective assistance of counsel by proving that his [or her] guilty plea resulted from 'inaccurate information from counsel concerning the deportation consequences of his [or her] plea.'" State v. Brewster, 429 N.J. Super. 387, 392 (App. Div. 2013) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009)). 2 Rule 3:22-12(a)(1) provides that a defendant's first PCR petition must be filed within five years of the date the judgment of conviction is entered, "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that 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[.]" 4 A-5357-15T1 Counsel's duty includes an affirmative responsibility to inform a defendant entering a guilty plea of the relevant law pertaining to mandatory deportation. Padilla v. Kentucky, 559 U.S. 356, 368-69, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295 (2010). Our Supreme Court has made clear that counsel's "failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296). In Chaidez v. United States, 568 U.S. 342, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), however, the Court concluded that Padilla, by imposing a new obligation and a new rule of law, would be applied prospectively only. Id. at 358, 133 S. Ct. at 1113, 185 L. Ed. 2d at 162. Accordingly, "defendants whose convictions became final prior to Padilla . . . cannot benefit from its holding." Ibid. Guilty pleas entered prior to Padilla are reviewed to determine whether counsel provided affirmatively false information regarding the plea's immigration consequences. State v. Santos, 210 N.J. 129, 143-44 (2012). "Only if defendant's attorney affirmatively gave incorrect advice about the deportation 5 A-5357-15T1 consequences of his [or her] guilty plea might he [or she] be entitled to set aside his [or her] conviction in accordance with the holding of Nuñez-Valdéz." Brewster, supra, 429 N.J. Super. at 394-95. Applying these principles, Judge Reisner noted that defendant entered his November 10, 2008 plea prior to Padilla. The judge found "[t]here [was] no evidence presented here that . . . defendant's plea counsel provided any false or affirmatively misleading advice regarding . . . defendant's immigration consequences." Thus, consistent with Nuñez-Valdéz, Judge Reisner denied defendant's request to set aside his guilty plea. Finally, the judge found that defendant failed to establish a basis for plea withdrawal under State v. Slater, 198 N.J. 145, 158-59 (2009). Slater requires a court to weigh the following factors in considering a motion to withdraw a plea: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Ibid. The judge found that defendant did not assert his innocence of the drug charges to which he pled. As noted above, the judge also found that defendant failed to demonstrate a strong reason 6 A-5357-15T1 for withdrawing his plea because his attorney was not ineffective under Nuñez-Valdéz. Defendant entered his plea pursuant to a plea bargain and he was sentenced in accordance with that agreement. Finally, Judge Reisner found that the State would be prejudiced due to the eight-year gap between defendant's conviction in 2008 and the filing of the PCR petition in 2016. Weighing the four Slater factors, the judge found no basis for vacating defendant's guilty plea. This appeal followed. On appeal, defendant raises the following contentions: POINT I THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR], IN PART, UPON THE PROCEDURAL GROUNDS PURSUANT TO RULE 3:22- 12(a)(1). POINT II THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] SINCE HIS GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY ENTERED IN LIGHT OF THE FAILURE OF THE TRIAL COURT, TRIAL COUNSEL OR THE STATE TO EVEN REMOTELY INFORM THE DEFENDANT REGARDING THE IMMIGRATION CONSEQUENCES ARISING OUT OF HIS PLEA. When petitioning for post-conviction relief, the defendant must establish by a preponderance of the credible evidence that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To establish a prima facie claim of ineffective assistance of 7 A-5357-15T1 counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. We have considered defendant's contentions in light of the record and applicable legal principles 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 set forth by Judge Reisner in his thoughtful and thorough written decision. Affirmed. 8 A-5357-15T1

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Docket No.: a5360-15
Decided: 2017-11-14
Caption: HAKEEM ALLEN v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: unpublished
Summary:
PER CURIAM Hakeem Allen, a State prisoner who at all times relevant to this appeal was an inmate at East Jersey State Prison, appeals from the final administrative decision of the Department of Corrections (DOC) that upheld a hearing officer's decision finding him guilty of prohibited acts *.005, threatening another with bodily harm, N.J.A.C. 10A:4-4.1(a)(2)(ii); *.306, conduct which disrupts or interferes with the security or orderly running of the correctional institution, N.J.A.C. 10A:4-4.1(a)(2)(xxix); and imposed sanctions. Allen was found not guilty of prohibit act *.803/*.002, attempting to assault any person, N.J.A.C. 10A:4- 4.1(a)(1)(ii); -4.1(a)(2)(xxxvii). Allen's charges resulted from an incident with corrections officers during which he became aggressive and confrontational and had to be subdued. We affirm. On May 8, 2016, while conducting medication watch, Senior Correction Officers Pyzik and Santana observed Allen arrive to obtain his medication from the infirmary. Allen was acting belligerently. When Pyzik questioned him about his behavior, Allen responded by walking toward the officers aggressively with raised closed fists, and retorted, "Why, what are you going to do about it?" The officers, reacting to what they reasonably viewed to be a threatening situation, secured Allen to the ground and called in a Code 33 for additional staff to respond to the area for security reasons. Responding officers handcuffed Allen, who was then escorted to the infirmary where he was medically cleared 2 A-5360-15T4 before being placed in prehearing detention. Two officers suffered minor injuries during the incident. On May 9, 2016, Sergeant Rodriquez served Allen with the disciplinary charges and conducted an investigation. Finding that the charges had merit, Rodriquez referred the charges to a hearing officer to conduct a disciplinary hearing. Allen pled not guilty to the charges and was granted the assistance of counsel substitute. The disciplinary hearing commenced on May 11, 2016, and concluded on May 19, 2016. On May 16, 2016, Allen requested a polygraph examination claiming the charges were serious and that there were issues of credibility. The request for a polygraph examination was denied in writing by Administrator Patrick Nogan that same day. In his denial letter the Administrator stated: I note that there is no new evidence being presented that would necessitate a credibility review beyond what occurred at the hearing. After reviewing the disciplinary package, I fail to see how a polygraph would add to what is on record. Allen requested witness statements from numerous inmates. His request was granted. In addition, Allen requested confrontation of Pyzik and Santana, which was also granted. Confrontation is undertaken by having the inmate propound written 3 A-5360-15T4 questions to be answered by the witnesses. The questions submitted by Allen can be fairly described as inartfully drafted and largely objectionable as to form. The officers attempted to answer the questions to the extent they were answerable. Allen was afforded the opportunity to submit supplemental questions but declined to do so. During the hearing, Allen stated, "I never said anything. The [corrections officer] asked me if I had a problem with his boy [Lyon]. I'm stressed out about this. This was a bad day that just got worse." Based on her review of the evidence, which included a disciplinary report, preliminary incident reports, special custody reports, use of force report, authorization for temporary close custody, authorization for prehearing disciplinary housing placement, medical reports, witness statements, polygraph request, cross-examination questions and responses, and confidential mental health report, Hearing Officer Nolley found Allen guilty of the *.005 charge, stating: Inmate stated he did not do anything. Inmate requested confrontation with 2 officers. The confrontation was completed. The polygraph request was declined by administration based upon the reports and decision that the hearing could be completed [without] a polygraph. The confrontation did not prove that the inmate was not engaged in a confrontation incident with staff. Based upon reports, inmate's 4 A-5360-15T4 behavior was confrontational and resulted in the inmate being subdued and removed[.] [C]harge is upheld. The hearing officer sanctioned Allen to 180 days' administrative segregation, 180 days' loss of commutation time, and ten days' loss of television and radio privileges. Hearing Officer Nolley also found Allen guilty of the *.306 charge, stating: Inmate stated he didn't do anything. Inmate requested confrontation with 2 officers[.] They came in [and] completed the confrontation [without] any hesitation or reservation. The confrontation did not help the inmate prove that he was not involved in an incident with the officers[.] Inmate requested a polygraph. The Administration declined the polygraph based upon the reports [and] that the charges could be decided on during the hearing. The inmate got into a confrontation with the [corrections officer] at the medication window [and] had to be taken down [and] removed. This disrupted the evening schedule. Charge is upheld. On this charge the hearing officer sanctioned Allen to an additional 180 days' administrative segregation, 180 days' loss of commutation time, and twenty days' loss of recreation privileges. The hearing officer found Allen not guilty of the remaining charge, *.803/*.002, attempting to assault any person. 5 A-5360-15T4 On May 20, 2016, Allen filed an administrative appeal. That same day, Assistant Superintendent Rose upheld the decision of the hearing officer. This appeal followed. On appeal, Allen raises the following issues: (1) the hearing officer deprived Allen of due process during confrontation and cross-examination by failing to require Pyzik and Santana to answer questions; (2) the administrator's denial of Allen's polygraph request was arbitrary, capricious, and unreasonable; and (3) the findings of guilt were unsupported by substantial credible evidence in the record. Allen does not argue that the sanctions imposed were excessive. We preface our analysis by recognizing our review of the DOC's decision is limited. Reversal is appropriate only when the agency's decision is arbitrary, capricious, or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (holding that a court must uphold an agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions). However, "'although the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review.'" Figueroa v. N.J. Dep't of Corr., 414 6 A-5360-15T4 N.J. Super. 186, 191 (App. Div. 2010) (quoting Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002)). I. An incarcerated inmate is not entitled to the full panoply of rights in a disciplinary proceeding afforded a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). An inmate is entitled to written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross-examine adverse witnesses; a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and, where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Id. at 525-33. The procedural protections articulated in Avant and the DOC's regulations were reaffirmed in Jacobs v. Stephens, 139 N.J. 212 (1995) and McDonald v. Pinchak, 139 N.J. 188, 202 (1995). These and other procedural requirements for disciplinary charges have been codified in N.J.A.C. 10A:4-9. The Court found that the current regulations "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald, 7 A-5360-15T4 supra, 139 N.J. at 202. It is undisputed that Allen was afforded these procedural safeguards. Allen contends that his right to confront the witnesses was abridged because the hearing officer did not require the witnesses to responsively answer his written questions. We disagree. The witnesses appeared to have attempted to answer his poorly drafted questions to the extent they were answerable. Allen declined the opportunity to submit supplemental questions. Allen requested to take a polygraph examination after the disciplinary hearing had already started. "A polygraph examination may be requested by the Administrator or designee . . . [w]hen there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge." N.J.A.C. 10A:3-7.1(a). To be sure, the prohibited acts that Allen was found guilty of committing are asterisk offenses, which are "considered the most serious." N.J.A.C. 10A:4-4.1(a). "The polygraph shall not be used in place of a thorough investigation, but shall be used to assist an investigation when appropriate." N.J.A.C. 10A:3-7.1(b). "The code regulation's principal impetus is an investigative tool of the administrator when serious disciplinary infractions are alleged against an inmate as opposed to an affirmative right granted to the inmate 8 A-5360-15T4 himself." Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005). An inmate does not have the right to a polygraph test. Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997) (citing N.J.A.C. 10A:3-7.1(c) ("An inmate's request for a polygraph examination shall not be sufficient cause for granting the request.")) Instead, N.J.A.C. 10A:31-7.1 "is designed to prevent the routine administration of polygraphs, and a polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez, supra, 382 N.J. Super. at 23-24. "[A] prison administrator's determination not to give a prisoner a polygraph examination is discretionary and may be reversed only when that determination is 'arbitrary, capricious or unreasonable.'" Id. at 24. "[A]n inmate's right to a polygraph is conditional and the request should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Id. at 20. Impairment [of fundamental fairness] may be evidenced by inconsistencies in the [senior corrections officer's] statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf. Conversely, fundamental fairness will not be effected when there is sufficient 9 A-5360-15T4 corroborating evidence presented to negate any serious question of credibility. [Id. at 24.] Here, the threat made by Allen was witnessed by two officers. It resulted in a disruptive altercation that injured two officers. The record contained adequate evidence for the hearing officer to determine credibility. Because adequate corroborating evidence was presented to confirm the officers' credibility, Allen "has failed to demonstrate that the denial of his request for a polygraph negated the fundamental fairness of the disciplinary proceeding which would compel the granting of his request for a polygraph." Id. at 26. We are satisfied that the administrator did not abuse his discretion by denying the request for a polygraph examination. Allen also contends that the assistant administrator failed to provide adequate findings of fact to sustain the decision. We disagree. "[I]n prison disciplinary matters we have not traditionally required elaborate written decisions." Blackwell, supra, 348 N.J. Super. at 123. The disciplinary proceeding was heard by the hearing officer, who acted as the fact-finder. The hearing officer issued a written decision setting forth her factual findings and a reasoned explanation for finding Allen guilty of prohibited acts *.005 and *.306, which included references to the 10 A-5360-15T4 evidence she relied on. See id. at 122-23. The administrator was entitled to rely upon and adopt the hearing officer's findings of fact and reasoning without expressly setting forth his own summary of the evidence and reasons for sustaining the charges. By referring to the hearing officer's decision, the administrator has satisfied the requirements of the adjudicatory process. We are thus satisfied that Allen received all due process protections afforded to him. II. We next consider whether there was adequate evidence to find Allen guilty of threatening another with bodily harm and conduct which disrupts or interferes with the security or orderly running of the correctional institution. "A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). "Substantial evidence" is "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa, supra, 414 N.J. Super. at 192 (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). In other words, it is "'evidence furnishing a reasonable basis for the agency's action.'" Ibid. (quoting McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (2002)). "Where there is substantial evidence in the record to support more than one 11 A-5360-15T4 regulatory conclusion, it is the agency's choice which governs." In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (citation omitted), certif. denied, 127 N.J. 323 (1990). The record demonstrates there was substantial credible evidence to find Allen guilty of prohibited acts *.005, threatening another with bodily harm, and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional institution. Pyzik and Santana observed Allen acting belligerently, and when asked what he was doing, Allen responded by walking towards the officers aggressively with raised closed fists, saying, "Why, what are you going to do about it?" Allen's behavior was confrontational and menacing. He confronted Pyzik in an objectively threatening manner. Given the context in which it occurred, Allen's conduct created an objective basis for fear and constituted a threat. Because the guilty findings were supported by substantial credible evidence, the determination that Allen committed prohibited acts *.005 and *.306 was not arbitrary, capricious, or unreasonable. Allen's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 12 A-5360-15T4

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Docket No.: a5560-15
Decided: 2017-11-14
Caption: CAROL LEONARD v. CITY OF NEW BRUNSWICK
Status: unpublished
Summary:
PER CURIAM Plaintiff Carol Leonard, individually and on behalf of the estate of her deceased son, Devine Nichols, appeals from the July 22, 2016 Law Division order granting the summary judgment dismissal of her complaint against defendant, the City of New Brunswick (the City). Plaintiff seeks to hold the City liable for her son's accidental drowning based upon its ownership and operation of Boyd Park, an improved property within the city, under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Because we agree with the Law Division that under the TCA, the City is entitled to immunity from liability as a matter of law, we affirm. This case arises out of tragic facts. We consider these facts, and all reasonable inferences from them, in the light most favorable to plaintiff as the responding party on the City's summary judgment motion. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535 (1995). On August 5, 2012, eleven-year-old Devine Nichols accompanied his older sister to Harvey Park. At around 2:30 p.m., Devine's sister returned home without him, believing he would remain in Harvey Park to play soccer. Later that evening, a witness 2 A-5560-15T4 testified that she was at Boyd Park when she saw Devine and his friend walking in the middle of the Raritan River, during low tide. The witness further testified that it began raining heavily about five minutes after she saw the boys. The following day, the dead bodies of Devine and his friend were found in the river. The medical examiner's officer declared their deaths an accidental drowning. Thereafter, plaintiff filed this wrongful death action against the City, the County of Middlesex, and the State.1 The City denied negligence and asserted immunity under the TCA. Plaintiff submitted an expert report in which the expert opined that the park created a dangerous condition in not restricting access to the river. She also faulted the City for failing to post warning signs concerning the dangers created by "tidal changes and resulting strong currents." After the parties conducted discovery, the City moved for, and the trial court granted, summary judgment. This appeal followed. Public entity liability in New Jersey under the TCA is limited. Polzo v. Cty. of Essex, 209 N.J. 51, 55 (2012). Generally, a public entity is "immune from tort liability unless 1 In an October 24, 2014 order, the trial court granted the State's motion to dismiss with prejudice. Plaintiff and the County of Middlesex stipulated to a dismissal with prejudice, which the court filed on April 15, 2016. 3 A-5560-15T4 there is a specific statutory provision imposing liability." Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002). The central issue presented concerns the scope of the City's immunity under the TCA, which governs damage claims against public entities. Manna v. State, 129 N.J. 341, 346 (1992). Particularly, the parties dispute the application of N.J.S.A. 59:4-8, which immunizes public entities from injuries caused by conditions on their unimproved public properties. Plaintiff argues Devine was last seen at Boyd Park, and the City was negligent in failing to install fences or barricades restricting access from Boyd Park into the river, or warning signs alerting the public to hazardous conditions. In opposition, the City contends they are immune from liability because Devine drowned in the Raritan River, which it maintains is unimproved. Our review of an order granting summary judgement is de novo, and we must apply the same standards as the trial court under Rule 4:46. See N.J. Div. of Taxation v. Selective Ins. Co., 399 N.J. Super. 315, 322 (App. Div. 2008) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)). Typically, a public entity may be liable for injuries caused by a condition on its property if plaintiff establishes: 4 A-5560-15T4 (1) that the property was in a dangerous condition at the time of the accident, (2) that there was proximate cause between the injury and dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred[,] and (4) that the public entity had notice in sufficient time to protect against the condition or that the condition had been created by an act or omission of a public employee acting within the scope of his [or her] employment. [Brown v. Brown, 86 N.J. 565, 575 (1981); See also N.J.S.A. 59:4-2.] N.J.S.A. 59:4-2 also requires a plaintiff to demonstrate that the public entity's conduct was "palpably unreasonable." See Muhammad v. N.J. Transit, 176 N.J. 185, 195 (2003). The TCA qualifies these liability-imposing principals with specific immunities, including those set forth in N.J.S.A. 59:4-8 and N.J.S.A. 59:4-9. Both of these immunities cover "unimproved" public property or waterways. Public property remains unimproved unless the property has been substantially, physically modified from its natural state, "and when the physical change creates hazards that did not previously exist and that require management by the public entity." Troth v. State, 117 N.J. 258, 269-70 (1989). Specifically, N.J.S.A. 59-4:8 mandates that: Neither a public entity nor a public employee is liable for an injury caused by a condition of any unimproved public property, including 5 A-5560-15T4 but not limited to any natural condition of any lake, stream, bay, river or beach. Similarly, N.J.S.A. 59:4-9 provides a related immunity for injuries caused by the condition of unimproved portions of "submerged lands" and the "beds of navigable rivers": Neither a public entity nor a public employee is liable for any injury caused by a condition of the unimproved and unoccupied portions of the tidelands and submerged lands, and the beds of navigable rivers, streams, lakes, bays, estuaries, inlets and straits owned by the State. Our Supreme Court has noted the TCA's unimproved-property immunity serves "the legislature's avowed purpose of encouraging the public to use unimproved recreational property at its own risk." Troth, supra, 117 N.J. at 272. "Underlying these determinations is the New Jersey Legislature's policy judgment that the public should be permitted to use unimproved public property in its natural condition, but under the cloak of immunity." Kowalsky v. Long Beach Twp., 72 F.3d 385, 388 (3d Cir. 1995). Here it is important to first identify the relevant property in order to determine whether it remains unimproved. Plaintiff argues the relevant property is Boyd Park because circumstantial evidence demonstrates Devine was in the park the day preceding his death, and the park allows "easy access to the Raritan River." 6 A-5560-15T4 The City counters that the relevant property is the Raritan River, which caused Devine to drown. We measure the relevant property in terms of the accident's situs. See id. at 389-90. From our review, the record clearly establishes that the Raritan River caused Devine's death, thereby making it the relevant property. To hold otherwise would impermissibly broaden the scope of N.J.S.A. 59:4-8. We next turn to whether the Raritan River was improved, thereby rendering it outside of the scope of N.J.S.A. 59:4-8. Although plaintiff correctly asserts Boyd Park is an improved property,2 she fails to demonstrate improvement to the Raritan River, such that it would qualify as an improved public property. As the motion judge aptly noted, "the fact that Boyd Park is improved land in parts does not make the river an improved part of the property." To the extent that Devine's drowning might have been produced, in part, by the condition of the river bed below the water itself, N.J.S.A. 59:4-9 separately insulates the City from liability for such a dangerous condition within "submerged lands." N.J.S.A. 2 According to the City, "Boyd Park contains a playground, amphitheater, tow path for jogging, walking and riding, and a boat dock operated by the County of Middlesex." 7 A-5560-15T4 59:4-9 therefore provides an additional basis for immunity here, particularly since no one witnessed the actual drowning. Therefore, examining the totality of plaintiff's evidence, we conclude "a reasonable jury could not find that [Devine's] accident occurred on property [that] is 'improved' under N.J.S.A. 59:4-8." Kowalsky, supra, 72 F.3d at 390. Plaintiff fails to demonstrate a disputed genuine issue of material fact. Accordingly, we affirm the motion court's grant of summary judgment. Affirmed. 8 A-5560-15T4

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Docket No.: a5620-15
Decided: 2017-11-14
Caption: STATE OF NEW JERSEY v. ALLAN AFANADOR
Status: unpublished
Summary:
PER CURIAM Defendant pleaded guilty to refusing to submit to a chemical test, N.J.S.A. 39:4-50.4a (the refusal statute).1 He had prior convictions in 2004 for refusal to submit to a chemical test, and in 2008 for driving while intoxicated (DWI), N.J.S.A. 39:4-50 (the DWI statute). Despite defendant's argument that he should be sentenced as a second offender for violating the refusal statute, the municipal court judge, on the basis of those two prior convictions, sentenced defendant as a third offender.2 Defendant appealed and proffered the same sentencing argument to the Law Division judge who held defendant's prior DWI conviction was properly considered, in accordance with State v. Frye, 217 N.J. 566 (2014), in sentencing defendant as a third-time offender. On appeal, defendant reiterates his argument that he should have been sentenced as a second offender, relying on State v. Ciancaglini, 204 N.J. 597 (2011). The State counters that defendant's sentence as a third offender complied with the Frye decision. We agree that defendant's sentence as a third offender is supported by precedent and affirm. 1 Charges for other motor vehicle violations, including driving while intoxicated, N.J.S.A. 39:4-50, were dismissed. 2 The judge imposed a ten-year suspension of defendant's driving privileges and other penalties consistent with a third-time offender. N.J.S.A. 39:4-50.4a. 2 A-5620-15T1 Our review is de novo because we are considering the legality of the sentence imposed and "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The Supreme Court interpreted an early version of the refusal statute and held a prior DWI conviction enhanced a sentence for a subsequent refusal conviction. In re Bergwall, 85 N.J. 382 (1981), rev'g on dissent, 173 N.J. Super. 431 (App. Div. 1980). Over thirty years later, the Court recognized Bergwall, despite many amendments to the refusal statute, "remains binding precedent." Frye, supra, 217 N.J. at 580. The Court observed the amendments did not make "any significant changes" to the refusal statute, concluding that the Legislature acquiesced to the Bergwall Court's interpretation. Ibid. In Ciancaglini, supra, 204 N.J. at 599-600, the Court held a defendant's prior refusal conviction could not enhance a subsequent DWI sentence. The Court discerned the DWI and refusal statutes had discrete, albeit related, purposes and elements. Id. at 606-08. Recognizing the Legislature did not amend either statute to provide otherwise, the Court concluded references to prior violations in the DWI statute were to DWI convictions, not to refusal convictions. Id. at 610-11. 3 A-5620-15T1 The Court again acknowledged those statutory differences in Frye when it held that Bergwall, not Ciancaglini, controlled the outcome of a case where the defendant's two prior convictions for DWI enhanced his sentence on a subsequent refusal conviction. Frye, supra, 217 N.J. at 581-82. We see no grounds to depart from the Court's statutory interpretation in Bergwall and Frye. Although the Frye Court upheld Bergwall, in part, because enhancement of subsequent refusal convictions prevented defendants with a prior DWI conviction from gaining a tactical advantage by refusing to be tested, that consideration was only "further support[]" for the Court's decision, id. at 582; the statutory interpretation was the cornerstone of the Court's holding, see id. at 577-80. The legislative fiat recognized in Bergwall and Frye surmounts defendant's argument that the enhancement of his sentence disregards the progressive system of discipline designed by the Legislature. The Legislature's language compels enhancement of defendant's refusal conviction. We comprehend defendant's argument that it is inequitable to treat his current conviction as a third offense, whereas, if he was convicted of DWI, he would have faced sentencing as a second offender. The power to remedy any inequity, however, rests with the Legislature. 4 A-5620-15T1 Affirmed. 5 A-5620-15T1

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Docket No.: a0159-16
Decided: 2017-11-13
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. HYUN WOOK HAM
Status: unpublished
Summary:
PER CURIAM Defendant appeals from a March 14, 2016 order denying his appeal of a prosecutor's rejection of his application for admission into the pre-trial intervention program (PTI). He also appeals the trial court's denial of a civil reservation that his guilty plea to assault by auto not be evidential in any civil proceeding. Because there is no record of the prosecutor providing defendant with a written statement of reasons for the rejection of defendant's PTI application, we vacate the order concerning PTI and remand for further proceedings. Because defendant failed to establish good cause for a civil reservation, we affirm the trial court's denial of that request. A grand jury charged defendant in a single-count indictment with fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2), for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50 and causing bodily injury. Following the indictment, defendant applied for PTI. The PTI program director preliminarily granted defendant's application for admission into the program, but the prosecutor denied defendant's application. Defendant appealed to the Law Division, where a judge upheld the denial. Defendant then pleaded guilty to the fourth-degree offense and a summons charging him with DWI. The trial judge sentenced defendant in accordance with a plea agreement to a two-year probationary term conditioned on him attending Alcoholics Anonymous. The judge also imposed appropriate penalties and assessments. On the DWI offense, the judge also imposed appropriate penalties and assessments. 2 A-0159-16T4 We first address defendant's challenge to the prosecutor's rejection of his PTI application. When a prosecutor denies a defendant's admission into PTI, the "prosecutor is required to provide a criminal defendant with a statement of reasons justifying his or her PTI decision, and the statement of reasons must demonstrate that the prosecutor has carefully considered the facts in light of the relevant law." State v. Wallace, 146 N.J. 576, 584 (1996). Here, the prosecutor's written statement of reasons is not included in the appellate record. Defendant asserts, "it is unclear whether [the prosecutor's] objection was provided in writing." The prosecutor does not address the issue. Rather, he cites the trial judge's opinion to support the proposition that the State objected to defendant's PTI admission. The trial judge's opinion does not resolve the issue of whether the judge evaluated the merits of the prosecutor's decision based on the brief that the prosecutor submitted, a prosecutor's rejection letter to defendant, or something else.1 Because it is unclear from the record whether the prosecutor fulfilled his obligation to provide defendant with a written statement of reasons for rejecting the PTI application, we vacate 1 The record is clear that the judge considered a video of the auto-pedestrian accident underlying the charges. 3 A-0159-16T4 the Law Division order and remand this matter to the Law Division in the first instance. If the prosecutor provided defendant with a written statement of reasons rejecting the PTI application, and the judge decided the matter based on such written statement, then the Law Division judge shall so state and amplify his decision based upon the prosecutor's statement of reasons. If the prosecutor did not provide defendant with a statement of reasons for rejecting the PTI application, then the trial judge shall remand the matter to the prosecutor's office to provide such a statement. If the prosecutor did not provide a statement, and if defendant deems it appropriate to challenge the statement the prosecutor submits on remand, defendant may seek relief in the first instance in the Law Division. Following any Law Division proceedings, either side may timely file an appeal. We turn to defendant's second argument. After the trial judge imposed sentence, he addressed defendant's application for a civil reservation. The judge denied defendant's application due to the nature of the incident and the injury to the victim. Rule 3:9-2 provides that "[f]or good cause shown the court may, in accepting a plea of guilty, order that such plea not be evidential in any civil proceeding." Here, defendant did not demonstrate good cause, and his arguments to the contrary are 4 A-0159-16T4 without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 5 A-0159-16T4

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Docket No.: a0334-16
Decided: 2017-11-13
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. ANTIONETT E. PELZER
Status: unpublished
Summary:
PER CURIAM Defendant Antoinette E. Pelzer appeals from a July 6, 2016 order denying her petition for post-conviction relief (PCR). On her appeal, she presents the following points of argument: POINT ONE: THIS MATTER MUST BE REMANDED BECAUSE THE PCR COURT DENIED RELIEF WITHOUT STATING FINDINGS OF FACT OR CONCLUSIONS OF LAW. POINT TWO: MS. PELZER IS ENTITLED TO AN EVIDENTIARY HEARING ON HER CLAIM THAT [HER] ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL. POINT THREE: THE PCR COURT ERRONEOUSLY RULED THAT MS. PELZER'S PETITION WAS PROCEDURALLY BARRED. We affirm the order insofar as the PCR court rejected defendant's counseled PCR arguments. However, because the PCR court did not address defendant's pro se PCR arguments, we remand the case to the PCR court for the purpose of considering and deciding those issues. Defendant was charged with stabbing two women to death in an unprovoked attack, which was captured on video and witnessed by several bystanders. Defendant pled guilty to two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2), and was sentenced to an aggregate term of eighty years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed the sentence on an excessive sentencing calendar, noting the brutality of the murders and the sentencing judge's cogent statement of reasons. 2 A-0334-16T1 State v. Pelzer, No. A-4722-13 (App. Div. Dec. 4, 2014), certif. denied, 221 N.J. 566 (2015). Defendant filed a pro se PCR petition dated June 15, 2015,1 contending that her guilty plea was not "knowing and intelligent," because her trial attorney did not explain to her "the terms and ramifications" of the State's plea offer or the "elements of the crimes to which petitioner was to plead guilty." She also contended that her trial attorney failed to effectively argue that aggravating factor one, N.J.S.A. 2C:44-1(a)(1) (the nature and circumstances of the offense), should not apply. Defendant's PCR assigned counsel submitted a formal brief contending that defendant's trial counsel failed to effectively argue - in favor of mitigating factor eight - that the crimes were the result of circumstances unlikely to recur, because a prison term of life with thirty years of parole ineligibility would prevent defendant from committing future murders. See N.J.S.A. 2C:44-1(b)(8). We agree with the PCR judge that the latter argument, even if raised by trial counsel, would have been without merit and would have made no difference to the sentence imposed. As a result, defendant failed to satisfy both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 1 Defendant's brief advises that the petition was filed on July 7, 2015. 3 A-0334-16T1 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and was not entitled to an evidentiary hearing on that PCR claim. See State v. Preciose, 129 N.J. 451, 463-64 (1992). However, the judge did not address defendant's pro se arguments, perhaps because PCR counsel did not include a reference to them in his formal brief and did not mention them at oral argument. PCR counsel had an obligation to bring to the court's attention defendant's pro se arguments, and the court had an obligation to consider them. See R. 3:22-6(d); State v. Webster, 187 N.J. 254, 258 (2006); State v. Rue, 175 N.J. 1, 4 (2002). Because this did not occur, we must remand this matter to the PCR court to consider the arguments raised in defendant's pro se PCR filing. We do not retain jurisdiction. Affirmed in part, remanded in part. 4 A-0334-16T1

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Docket No.: a0547-16
Decided: 2017-11-13
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the OF CHILD PROTECTION AND PERMANENCY v. Z.S and G.N IN THE MATTER OF Z.N
Status: unpublished
Summary:
PER CURIAM Defendant Z.S.1 appeals from the Family Part's November 13, 2015 order, following a fact-finding hearing, determining that defendant abused or neglected her infant daughter, Z.N. (Zoe). The trial judge found that defendant caused actual harm to her child as a result of her drug use during pregnancy, which caused the baby to be born with severe withdrawal symptoms, and required the infant to be treated with morphine during an extended, four- week-long hospital stay.2 Defendant challenges the trial judge's finding that her conduct constituted abuse or neglect under N.J.S.A. 9:6- 8.21(c)(4)(b). The Law Guardian supports the judge's finding that the Division of Child Protection and Permanency (Division) met its 1 We use initials and fictitious names to protect the privacy of the family. 2 This order became appealable as of right after the trial court entered a final order on August 25, 2016, terminating the litigation and permitting the Division to institute a guardianship proceeding. 2 A-0547-16T1 burden of proving abuse or neglect by a preponderance of the evidence. Based upon our review of the record and applicable law, we affirm. When defendant gave birth at the hospital, she tested positive for benzodiazepines, opiates, and cannabis. Zoe exhibited withdrawal symptoms at birth. The hospital transferred the baby to a Neonatal Intensive Care Unit (NICU) at another hospital for specialized care, and referred the case to the Division. When questioned by a Division caseworker, defendant acknowledged the results of her drug test, but denied using drugs during the pregnancy. At the fact-finding hearing, the Division called Dr. Zarah Jane Pua, a neonatologist who treated the baby at the NICU, as its only witness. Dr. Pua testified that, at birth, Zoe was having withdrawal symptoms and exhibited signs of Neonatal Abstinence Syndrome, which "is a compilation of clinical symptoms that is exhibited by a newborn who [is] exposed to drugs, specifically [and] especially opiates, while the mom is pregnant." Dr. Pua observed that the baby was "very jittery[,] . . . wasn't eating[,] . . . she wasn't sleeping between her feeds[,] [and] [s]he had some . . . respiratory distress, a little bit of increased respiratory rate." To address Zoe's condition, Dr. Pua treated her with morphine because that drug "decreases side effects" that 3 A-0547-16T1 babies suffer as they are "withdrawing." The morphine treatment continued from June 3 through June 29, 2015. Zoe tested positive for marijuana, but not for opiates. Dr. Pua explained that this was not unusual because it is difficult to get an uncontaminated urine sample from an infant. In addition, the testing for opiates occurred the day after Zoe was transferred to the NICU. Dr. Pua opined that, by that time, it was possible that the "[opiates] got passed through the placenta from the mom to the baby and got excreted before we got to get the urine sample." Defendant did not testify or even appear at the hearing, and her attorney did not call any witnesses. At the conclusion of the hearing, the trial judge rendered an oral decision, finding that the Division established by a preponderance of the evidence that defendant abused or neglected Zoe by taking drugs during her pregnancy, which caused the baby to be born with severe withdrawal symptoms. This appeal followed. On appeal, defendant contends the judge erred by concluding that she abused or neglected Zoe. We disagree. Our review of the trial judge's factual finding of abuse or neglect is limited; we defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 4 A-0547-16T1 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413. Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(b) defines an "abused or neglected child" as: a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of 5 A-0547-16T1 excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.] In order to prevail in a proceeding alleging abuse or neglect due to the mother's substance abuse during pregnancy, the Division "must prove present or future harm to a child by a preponderance of the evidence." N.J. Dep't of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013). "[T]he primary question under Title 9 is whether . . . a newborn, 'ha[d] been impaired' or was in 'imminent danger of becoming impaired' as a result of his [or her] mother's failure to exercise a minimum degree of care by unreasonably inflicting harm or allowing a 'substantial risk' of harm to be inflicted." Ibid. (quoting N.J.S.A. 9:6-8.21(c)(4)(b)) (first alteration in original). As defendant correctly points out, "not every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse and neglect in light of the specific language of" N.J.S.A. 9:6-8.21(c)(4)(b). Id. at 23. Indeed, if there is no evidence of actual harm to the newborn, a mother cannot be found to have committed an act of abuse or neglect merely because she ingested drugs while pregnant. Id. at 8. However, "proof that a child is suffering from withdrawal symptoms at birth [can] establish actual harm." Id. at 22; see also In re Guardianship of K.H.O., 161 N.J. 337, 349 (1999) (noting 6 A-0547-16T1 that "a child born addicted to drugs and suffering from the symptoms of drug withdrawal as a result of the mother's substance abuse during pregnancy has been harmed by the mother and that harm endangers the child's health and development"). In A.L., the Court noted that "the Division can prove actual harm by showing evidence of respiratory distress, cardiovascular or central nervous system complications, low gestational age at birth, low birth weight, poor feeding patterns, weight loss through an extended hospital stay, lethargy, convulsion, or tremors." A.L., supra, 213 N.J. at 22-23. Contrary to defendant's argument, the evidence here is much different than in A.L. In A.L., there was no evidence of actual harm to the newborn who, despite testing positive for cocaine at birth, was otherwise born healthy and discharged from the hospital after only two days. Id. at 8. In this case, defendant tested positive for opiates and other drugs and this drug use clearly harmed Zoe. The child was not born healthy and Dr. Pua diagnosed her with Neonatal Abstinence Syndrome. Zoe experienced severe withdrawal symptoms, including tremors, respiratory distress, and problems with eating. The newborn baby had to be hospitalized and treated with morphine for nearly a month. The present case is also completely distinguishable from N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165 (2014). In 7 A-0547-16T1 that case, the mother gave birth while she was participating in a methadone program on the advice of her doctor. Id. at 169-70. Even though the baby suffered from methadone withdrawal, the Court held "a finding of abuse or neglect cannot be sustained based solely on a newborn's enduring methadone withdrawal following a mother's timely participation in a bona fide treatment program prescribed by a licensed healthcare professional to whom she had made full disclosure." Id. at 185-86. Here, defendant never claimed that she was participating in any bona fide, physician- approved treatment program when she tested positive for benzodiazepines, opiates, and cannabis when Zoe was born. Under these circumstances, we are satisfied there was more than sufficient evidence to support the judge's finding that defendant abused or neglected Zoe by ingesting drugs during her pregnancy that caused actual harm to the newborn baby. Affirmed. 8 A-0547-16T1

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Docket No.: a1135-16
Decided: 2017-11-13
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. JOSHUA Q. ROBINSON
Status: unpublished
Summary:
PER CURIAM Defendant appeals from an August 25, 2016 order denying without an evidentiary hearing his petition for post-conviction relief (PCR). He argues the following points on appeal: 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. 1. TRIAL COUNSEL'S MISREPRESENTATION REGARDING WHETHER DEFENDANT WOULD RECEIVE JAIL CREDIT OR GAP TIME CREDIT RESULTING IN DEFENDANT'S INVOLUNTARY GUILTY PLEAS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. POINT II THE PCR COURT ERRED IN DENYING DEFENDANT'S PLEA WITHDRAWAL. 1. TRIAL COUNSEL'S INCORRECT ADVICE REGARDING GAP TIME AND JAIL TIME CREDIT RESULTED IN DEFENDANT'S INVOLUNTARY GUILTY PLEA. 2. THE COURT ERRED IN FINDING THAT [DEFENDANT] DID NOT SATISFY THE FOUR FACTORS OF STATE V. SLATER, 198 N.J. 145 (2009). We affirm. A Hudson County grand jury charged defendant and three co- defendants in a multi-count indictment with first-degree murder and other offenses. Defendant accepted a plea offer and pleaded guilty to an amended charge of second-degree manslaughter, N.J.S.A. 2C:11-4(b)(2). During the plea proceeding, while summarizing the plea agreement, the prosecutor informed the court: 2 A-1135-16T1 The State will be recommending a sentence of ten years. The [eighty-five] percent No Early Release Act would apply. The three year period of parole would apply. [Defendant] has a prior Graves Act conviction involving an aggravated assault involving a gun. So it's a mandatory Graves Act extended on this case. We're asking that this sentence be consecutive to the Federal sentence he is currently serving. He received 188 months on that sentence. . . . [H]e was sentenced on November 28th, 2012. So from the State's position he's entitled to direct jail time credit to that date. It would be gap time credit from that date forward. The court responded: "Okay. So, if I'm clear, from the date of his arrest until November 28, 2012, jail credit, and from November 28, 2012, henceforth, is gap time credit?" The prosecutor replied, "[t]hat's correct." Defense counsel, in defendant's presence, informed the court the prosecutor's recitation of the plea agreement was correct. Defense counsel also informed the court that at the time of sentencing, "we will put forth arguments for a . . . concurrent sentence, . . . and for total credit for the whole four years as [defendant has] been in [county jail] that whole time." The court asked defendant to provide a factual basis for the plea. Defendant admitted that on June 5, 2010, in Jersey City, he went to the waterfront area where he shot the victim. He claimed to do so under provocation, namely, that the victim pulled 3 A-1135-16T1 out a gun. Defendant stipulated through counsel he shot the victim in the abdomen. The medical examiner found the abdomen wound to be a contributory cause of death. The other cause was by drowning, but according to the stipulation, that occurred at the hands of others. In response to the court's questions, defendant acknowledged he had the opportunity to "exit the area" without shooting the victim, but defendant chose to shoot the victim rather than to flee. Defendant also said he understood the prosecutor would recommend a ten-year prison term, of which defendant would have to serve eight and one-half before being considered for parole. Lastly, defendant acknowledged he would be required to undergo three years of parole supervision upon his release from jail, and that if he violated parole supervision, he would return to jail for the entire three years. The court explained the State was recommending the sentence be served consecutively to defendant's federal sentence and that defense counsel would ask for the sentence to be served concurrently. The court also explained it would make the decision to impose either a concurrent or consecutive sentence at the time of sentencing, not before. Defendant said he understood. When the court asked if defendant had any questions for either his 4 A-1135-16T1 counsel or the court, defendant responded: "No. On sentence day I'll ask." Lastly, the court asked if defendant understood it would be very difficult to change [his] mind and take [his] guilty plea back, because [the court is] likely to believe what [defendant] just told [the court] that [defendant] shot this individual and . . . didn't have to, [defendant] could have fled, even though [he was] provoked, which shows [the court he's] guilty, . . . rather than . . . something [defendant] later [says] trying to take it back. Defendant said he understood. The court then informed defendant that once the court imposed the sentence, it would be even harder for defendant to change his mind and take his plea back. Defendant again said he understood. When defendant was sentenced, his attorney argued that he should receive jail credits for the entire time he was in jail before being sentenced, including the time he spent in jail after imposition of the federal sentence. Counsel claimed defendant had not posted bail on the Hudson County indictment, was returned to Hudson County jail after being sentenced on the federal charges, and remained in the Hudson County jail until appearing before the court for sentencing on the Hudson County charge. Defendant did not dispute at sentencing, and does not dispute on appeal, that 5 A-1135-16T1 he was not entitled to jail credits once he began serving his federal sentence. The trial court sentenced defendant in accordance with the plea agreement to ten years with eight and one-half years of parole ineligibility and a three-year term of parole supervision. The court ordered defendant to serve the sentence consecutively to the federal sentence. One year and three months after the court sentenced defendant, defendant filed a PCR petition. Defendant asserted five points in his petition: (1) there was a "questionable factual basis" for his plea; (2) the trial court erroneously considered a companion case during sentencing; (3) the court committed error by requiring that petitioner had to flee to support passion-provocation; (4) defense counsel "labored under a conflict of interest"; and (5) defense counsel "failed to appear and sent a representative who was not prepared to vigorously champion petitioner's cause." Thereafter, defendant filed an amended verified petition in which he made two additional arguments: his attorneys were ineffective for misrepresenting the amount of jail credits he would receive upon sentencing, and his attorneys were also ineffective for telling him he could not withdraw his guilty plea. He claimed that if he knew he would not receive 604 days of jail credit for the time between the sentencing on the federal charges 6 A-1135-16T1 and the sentencing on the State manslaughter charge, he would not have pleaded guilty. He also claimed that had he known he could have filed a motion to withdraw his guilty plea, he would have done so. Defendant asserted his innocence, claimed he acted in self-defense, and maintained that his actions were not the cause of the victim's death. His counsel filed a supporting brief. Following oral argument, the Honorable Joseph V. Isabella denied defendant's petition without an evidentiary hearing. In a comprehensive written opinion, after reviewing applicable precedent, Judge Isabella addressed each of defendant's arguments. Addressing defendant's claim concerning jail credits on the federal charges, Judge Isabella pointed out that nothing in the record supported defendant's claim. To the contrary, the plea forms reflected the State would recommend gap time credits after defendant was sentenced on November 28, 2012. Judge Isabella, who had presided over the plea and sentencing proceedings, noted he had asked, and defendant had acknowledged, that the plea forms were correct. Defendant further acknowledged counsel had explained each question to him, defendant understood them, and that no one had promised him anything that was not in the plea forms. Judge Isabella also noted that at the outset of defendant's plea proceeding, the State, among other things, said defendant was 7 A-1135-16T1 only entitled to gap time credits following his federal sentence. After the prosecutor spoke, the court reiterated the State's position that defendant would receive gap time credit for time spent in jail following his federal sentence on November 28, 2012, before imposition of his sentence on the State manslaughter offense. Judge Isabella concluded that in light of defendant's plea form and the colloquy concerning gap time credits during the plea proceedings, defendant's bald allegation his attorney promised him gap time credits had no factual basis. Similarly, Judge Isabella determined defendant's bald assertion that his attorney told him he could not withdraw his plea was unsupported by anything in the record. The judge explained that before accepting the plea, he assured himself defendant knowingly and voluntarily pleaded guilty. Moreover, the judge had advised defendant that if defendant pleaded guilty, it would be difficult to withdraw the plea and would be even more difficult once defendant was sentenced. Defendant never inquired about withdrawing his plea either before or during the sentencing proceeding. Nonetheless, Judge Isabella analyzed the criteria set forth in State v. Slater, 198 N.J. 145, 157-58 (2009). Based on the Slater criteria, Judge Isabella denied defendant's argument that he should be permitted to withdraw his plea. 8 A-1135-16T1 We affirm, substantially for the reasons expressed by Judge Isabella in his August 25, 2016 written opinion. Defendant's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). Affirmed. 9 A-1135-16T1

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Docket No.: a1137-16
Decided: 2017-11-13
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. JASON PETTIS
Status: unpublished
Summary:
PER CURIAM Defendant Jason Pettis appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm. In October 2011, a jury convicted defendant of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), as a lesser-included offense of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1) or (2) (count one); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); and second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). In a second trial, the same jury convicted defendant of second-degree possession of a weapon by a prohibited person, N.J.S.A. 2C:39-7b. On December 22, 2011, defendant was sentenced to an extended term of fifteen years imprisonment on the aggravated assault charge, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court merged count two with count three, and imposed a concurrent seven- year prison term. A consecutive five-year sentence with no parole eligibility was imposed on the certain persons not to have weapons offense, resulting in an aggregate twenty-year prison term with seventeen years and nine months of parole ineligibility. Defendant appealed and, in an unpublished opinion, we affirmed his convictions and sentence, but remanded to correct an 2 A-1137-16T3 error in the judgment of conviction.1 State v. Pettis, No. A- 3508-11 (App. Div. Dec. 27, 2013). The Supreme Court denied defendant's petition for certification. State v. Pettis, 218 N.J. 531 (2014). The facts underlying defendant's convictions are set forth in our earlier opinion and need not be repeated in the same level of detail here. Pettis, supra, slip op. at 3-7 (App. Div. Dec. 27, 2013). Briefly summarizing, the State alleged defendant shot the victim, Jarred Campfield, multiple times at close range. The two men had allegedly been involved in a physical altercation within the previous week. On the day in question, Campfield told police "it was Jason" who shot him, and "he was wearing a white t-shirt, blue jeans, and he had dreadlocks." Soon thereafter, however, Campfield became uncooperative. At trial, Campfield testified he did not know who shot him, and denied he provided police with the name of the shooter. Robert VanAnglen, a mutual acquaintance of defendant and Campfield, testified he witnessed the shooting, and identified defendant as the shooter. VanAnglen stated he heard defendant say "what's up, home boy" to Campfield before shooting him five to 1 We directed that defendant's conviction for unlawful possession of a weapon merge with the aggravated assault conviction rather than the conviction for possession of a weapon for an unlawful purpose. 3 A-1137-16T3 seven times. The State also presented evidence that defendant left New Jersey after the shooting and was ultimately located in Illinois nearly a year later. In August 2014, defendant filed a PCR petition alleging ineffective assistance of trial and appellate counsel. PCR counsel was appointed and submitted a brief contending trial counsel failed to: (1) conduct an adequate investigation, specifically by failing to locate and interview Campfield prior to trial; (2) effectively cross-examine witnesses; (3) effectively counter testimony that defendant left the State while on probation; and (4) present effective opening and closing statements. Defendant also requested an evidentiary hearing on his petition. Judge Joseph Paone, who was also the trial judge, denied defendant's petition by order filed on October 13, 2016. Judge Paone determined defendant failed to establish a prima facie case in support of his petition after carefully analyzing each of defendant's contentions. In his comprehensive oral opinion, Judge Paone found that trial counsel's pre-trial investigation and failure to interview Campfield did not fall below an objective standard of reasonableness. The judge added: [I]t's clear here that [defendant] is unable to articulate what benefit the interview of [Campfield] would have accomplished here. 4 A-1137-16T3 [Defendant] knew exactly what the victim was going to testify to prior to trial, and, in fact, the victim testified, essentially, in conformance with the information that had been provided by the [S]tate to the defense before the commencement of trial, and [defendant] has failed to demonstrate how this decision not to interview the victim has prejudiced him in any way. The judge further reasoned that Campfield's reluctance to testify for the prosecution was irrelevant to the State's pre- trial plea offer and would not affect the jury's determinations because Campfield's on-the-scene identification of defendant as the shooter was admissible as an excited utterance, N.J.R.E. 803(c)(2), and as a prior identification, N.J.R.E. 803(a)(3);2 and because an independent eyewitness, VanAnglen, made a confirmatory identification of defendant as the shooter. With respect to defendant's other ineffective assistance of counsel claims, Judge Paone found trial counsel's opening and closing remarks sufficient. In his opening statement, counsel "introduced the issue of identification[,] discussed the prosecutor's role [and] urged the jury to pay [ ] careful attention 2 The judge also found Campfield's prior identification of defendant was non-testimonial under Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365-66, 158 L. Ed. 2d 177, 194 (2004) (holding that the Confrontation Clause only forbids the hearsay use of "testimonial" out-of-court declarants). See also Davis v. Washington, 547 U.S. 813, 832, 126 S. Ct. 2266, 2279, 165 L. Ed. 2d 224, 243 (2006) (creating an exception for otherwise testimonial statements under the "public safety exception"). 5 A-1137-16T3 to the evidence[.]" Similarly, during closing remarks, trial counsel discussed "the inconsistencies of the case, the witness' credibility, [and] the fact [] defendant was not the shooter[.]" The judge also found defendant was not prejudiced by counsel's opening and closing statements. Judge Paone rejected defendant's contention that trial counsel failed to effectively cross-examine the State's witnesses. He found that, while cross-examining Campfield, defense counsel "established identification issues, specifically, that Campfield had lied at some point about identifying defendant as the shooter[.]" Similarly, while cross-examining VanAnglen, defense counsel "highlighted the integral issue of identification in this case by eliciting the [eyewitness's] description of the shooter did not match [ ] Campfield's description based on what [counsel] elicited through his adversarial testing of the prosecution's witness." Judge Paone found unpersuasive defendant's argument that trial counsel was ineffective in exploring why defendant violated his probationary program and fled to Illinois after the shooting. Rather, to combat the State's theory that this showed consciousness of guilt, defense counsel offered "an alternative motive for defendant's flight, that his mother and family lived in Illinois[.]" 6 A-1137-16T3 Judge Paone concluded defendant did not establish a prima facie showing of ineffective assistance of counsel and therefore no evidentiary hearing was required. This appeal followed, in which defendant presents a single point for our consideration: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the following two-prong test: (l) counsel's performance was deficient and he or she made errors so egregious counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, l04 S. Ct. at 2068, 80 L. Ed. 2d at 698. 7 A-1137-16T3 Here, defendant focuses his appeal on his contention that trial counsel was ineffective for failing to conduct an adequate pretrial investigation with respect to the victim, Campfield. Defendant asserts, without any record support, that Campfield could have potentially provided testimony that would have exonerated him. Defendant further argues that an evidentiary hearing should have been ordered so that trial counsel could have been questioned about his alleged improper investigation. When a defendant asserts his attorney has inadequately investigated his matter, "he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Porter, 216 N.J. 343, 353 (2013) (citing State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Thus, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. Here, defendant fails to meet this standard. He proffers no competent evidence of what counsel would have discovered had he interviewed Campfield, or how Campfield's testimony or the result at trial would have differed had counsel interviewed him. In short, defendant's claim that trial counsel conducted an 8 A-1137-16T3 inadequate investigation is merely a bald assertion devoid of any substance. The record also supports Judge Paone's findings on defendant's other claims. Accordingly, we are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel under the Strickland- Fritz test. The judge correctly concluded an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992). Moreover, in view of the evidence presented, it appears defense counsel was quite effective in securing a jury verdict of aggravated assault as a lesser-included offense of the charged crime of attempted murder. Affirmed. 9 A-1137-16T3

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Docket No.: a1181-16
Decided: 2017-11-13
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. NICOLE D. ZAMBRANO-QUILLEN
Status: unpublished
Summary:
PER CURIAM Defendant Nicole D. Zambrano-Quillen appeals from the November 4, 2016 Law Division order, which denied her motion to compel entry into the Gloucester County pre-trial intervention (PTI) program pursuant to N.J.S.A. 2C:43-12(f). We affirm. At approximately 10:42 p.m. on November 15, 2014, defendant made a left turn off State Highway 42 in Williamstown and encroached the path of the other vehicle, causing a collision. Both defendant and the driver of the other vehicle sustained injuries and were transported to the hospital for treatment. A sample of defendant's blood obtained via search warrant revealed her blood alcohol content was 0.283 percent, three times over the legal limit of 0.08 percent. N.J.S.A. 39:4-50. A grand jury indicted defendant for fourth-degree assault by auto while in violation of N.J.S.A. 39:4-50 and bodily injury results, N.J.S.A. 2C:12-1(c)(2). Defendant was also issued summonses for driving while intoxicated (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; failure to wear a seatbelt, N.J.S.A. 39:3-76.2; and having an open container of alcohol in her vehicle, N.J.S.A. 39:4-51b. Defendant applied for admission to the PTI program. The Criminal Division Manager (CDM) considered all the material defendant submitted as well as the factors set forth in N.J.S.A. 2C:43-12, Rule 3:28, and the Guidelines, and denied the application. The CDM noted that under Guideline 3(i), assessment of the nature of the offense, there is a presumption against 2 A-1181-16T3 admission into PTI if the offense charged involved violence or threat of violence in the absence of compelling facts and material provided by the defendant, justifying admission. The CDM found that defendant made the decision to operate her vehicle while under the influence of alcohol, and defendant's choice clearly created a risk of violence and injury, as evidenced by the collision and injuries she and the other driver sustained. The CDM also noted defendant had a prior DWI conviction in Bucks County, Pennsylvania, where the court sentenced her in 2005 to not less than three days and not more than six months in the county jail. The CDM concluded as follows: Given the violence and injury suffered during the present offense, coupled with defendant's prior motor vehicle conviction for [DWI], it is the opinion of this office that [defendant] has not presented compelling reasons justifying admission into the [PTI] program nor has she established that a decision against enrollment would be arbitrary and unreasonable. The prosecutor issued a written decision denying the application. The prosecutor considered the factors set forth in N.J.S.A. 2C:43-12, Rule 3:28, and the Guidelines, and concurred with the CDM's reasons for rejecting defendant's application for admission into the PTI program. Defendant appealed the prosecutor's decision to the Law Division. The court denied the appeal, finding the prosecutor did 3 A-1181-16T3 not improperly or inappropriately consider the factors of the case, and there was no patent and gross abuse of discretion. Defendant then pled guilty to fourth-degree assault by auto and DWI. The court sentenced defendant in accordance with the plea agreement to a one-year non-custodial term of probation. The court also imposed a seven-month driver's license suspension, ordered defendant to install an ignition interlock device during the suspension term and pay restitution, and imposed the appropriate fines, costs, and penalties. On appeal, defendant raises the following contention: POINT I THE PROSECUTOR'S REJECTION OF DEFENDANT FROM PTI, WHICH WAS BASED, SUBSTANTIALLY, ON A MISAPPLICATION OF THE STATUTORY BAR OF N.J.S.A. 2C:12-12 AND [RULE] 3:28, GUIDELINE[]3(i)(3) AND A MISUNDERSTANDING OF DEFENDANT'S BURDEN IN PROVING HER ADMISSIBILITY, CONSTITUTED AN ARBITRARY, PATENT AND GROSS ABUSE OF DISCRETION. We have considered this argument in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following comments. A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI." State v. Watkins, 193 N.J. 507, 520 (2008) (citing State v. Nwobu, 139 4 A-1181-16T3 N.J. 236, 246-47 (1995)). In order to overturn a prosecutor's rejection, a defendant must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff'd, 193 N.J. 507 (2008)); see also State v. Negran, 178 N.J. 73, 82 (2003); State v. Brooks, 175 N.J. 215, 225 (2002). Here, there is no evidence, let alone clear and convincing evidence, of a patent and gross abuse of discretion. To the contrary, the record confirms that the prosecutor considered the relevant factors and did not rely on inappropriate factors. The prosecutor did not rely solely on the nature of the offense, the injury to another, the prior DWI conviction, or defendant's BAC at the time of the accident. Rather, the prosecutor relied on a combination of these and other factors as set forth in N.J.S.A. 2C:43-12(e). Affirmed. 5 A-1181-16T3

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Docket No.: a1621-16
Decided: 2017-11-13
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the OF CHILD PROTECTION AND PERMANENCY v. D.B., SR and C.B IN THE MATTER OF THE GUARDIANSHIP OF W.I.B
Status: unpublished
Summary:
PER CURIAM D.B., Sr. appeals from an order entered by the Family Part on December 1, 2016, which terminated his parental rights to two minor children, W.I.B. and D.B., Jr.1 On appeal, D.B. argues that the Division of Child Protection and Permanency (Division) failed to establish with clear and convincing evidence all of the criteria in N.J.S.A. 30:4C-15.1(a) for termination of his parental rights. For the reasons that follow, we reject these arguments and affirm. I. We briefly summarize the relevant facts and procedural history. In February 2009, while he was married to A.B., D.B. met C.B. on-line. Several months later, he moved in with C.B. and her 1 We use initials for the parents and others in order to protect their identities, and hereinafter refer to D.B., Sr. as D.B., D.B., Jr. as D.J., and W.I.B. as W.B. 2 A-1621-16T3 three children, K.C., H.R., and D.D. At that time, D.B. was married to A.B. In May 2010, C.B. gave birth to W.B. She was D.B. and C.B.'s first child. D.B. divorced A.B., and in December 2010, married C.B. D.J. was their second child. He was born in September 2013. D.B. has two other children. The Division's involvement with C.B. and her family began in August 2005, when the Division removed K.C. and H.R. from her care. These children were later returned to C.B. In 2009, shortly after D.B. moved in with C.B., the Division began to receive reports that the home was filthy, and that D.B. and C.B. had not been parenting the children properly. The Division opened a case file and began to provide services to the family. In November 2011, the Division referred D.B., C.B., W.B., and D.J. for services including Family Preservation Services (FPS) and psychological evaluations. By the end of 2011, C.B. and the children had participated in FPS's programs, and there was some improvement to the cleanliness of the home and the children, but FPS recommended more intensive services. In January 2012, the Center for Evaluation and Counseling (CEC) performed forensic psychological evaluations and concluded that home-based family counseling was necessary to address D.B. and C.B.'s inadequate parenting skills. CEC also found that individual psychotherapy was required for the parents and two of 3 A-1621-16T3 the children, K.C. and H.R. The CEC noted that D.B. had not accepted responsibility for the conditions that led to the Division's involvement with the family, citing his busy work schedule, participation in the National Guard, and general lack of knowledge about what went on in the home. Throughout the remainder of 2012, the Division continued to provide services to the family, including rental assistance, referral to a food pantry, and in-home services. In January 2013, one of the Division's workers arrived unannounced at D.B. and C.B.'s home. While there, the worker noted, among other things, piles of clothes on the sofas and floor, cat litter scattered throughout the house, a strong odor of cat feces, inadequate heat on the second floor, three cats eating cat food out of cans on the kitchen table, and dishes piled high in the sink. The worker reported that the conditions in the home were chaotic. In June 2013, another Division worker made an unannounced visit to the home. The worker noted that there were dirty clothes throughout, and the sink was overflowing with dirty dishes. The worker then witnessed W.B. climb into a crib. According to the worker, W.B. was lying flat on her back. She had her pants down around her ankles and a vibrating device against her vagina. 4 A-1621-16T3 The worker reported that W.B. sometimes slept in her parents' room. The worker indicated that C.B. had disclosed that she and D.B. sometimes used "sex toys" and together they have had sex with a third person. C.B. claimed, however, that the children were not at home during those times. The Division ultimately found that the vibrator W.B. was seen using on her private area was C.B.'s back massager. In April 2014, the Division received an anonymous call stating that C.B.'s eldest child, K.C., who was then eleven years old, told the caller she had been left at home to babysit the other children, who were five months to seven years old. One of the Division's workers made an unannounced visit to the home and found D.B. with the children. D.B. told the worker that he would never leave an eleven-year-old child alone to care for the other children, although other witnesses disputed D.B.'s assertion. In June 2013, while C.B. was pregnant with D.J., D.B. met I.S. online. As we noted previously, D.J. was born in September 2013. Shortly after D.J. was born, the Division visited the home and found that it was infested with bedbugs. The Division paid the extermination costs and purchased new beds and sofas for the family. By December 2013, the Division considered the conditions in the home to be marginally improved. 5 A-1621-16T3 In March 2014, D.B. met I.S. in Boston for their first in- person meeting. When D.B. returned from Boston, he began to end his relationship with C.B. At some point, K.C. was sent to stay with a relative in Pennsylvania. D.B. decided that I.S. should move in to help C.B. care for the children. He drove with W.B. to North Carolina to pick up I.S., but C.B. did not agree with his plan and called the police. She insisted that D.B. return with W.B. In May 2014, C.B. obtained a temporary restraining order (TRO) against D.B., claiming that he had abused her emotionally and verbally. After C.B. agreed to allow D.B. to return to the home, the TRO was dismissed. In June 2014, D.B. moved to North Carolina. He told the Division he intended to surrender his parental rights to his children, and he would not return to New Jersey unless C.B. permitted I.S. to reside in the family home. Later that month, the Division removed W.B., D.J., and the other children after a worker found them dirty, hungry, and covered with insect bites. At the time, the children were apparently staying with their elderly grandmother at her home. The Division's worker observed the children outside, playing on a strip of grass, without adult supervision. On June 16, 2014, the trial court granted the Division's application for immediate custody, care and supervision of the 6 A-1621-16T3 children. Shortly thereafter, the Division placed D.J. in a resource home with Mr. and Mrs. P. Several months later, W.B. was placed with Mr. and Mrs. P. C.B.'s other children were also placed in resource homes. In August 2014, the CEC issued a report recommending that the Division pursue alternate placements for the children due to "the severity and chronicity of [D.B. and C.B.'s] neglectful parenting . . . ." The August 2014 report stated that visitation with both parents should be supervised, but D.B.'s visits should be supervised therapeutically due to his reported anger-management issues. In December 2014, the CEC issued another report, which noted that D.B. recognized the need for alternative housing to begin reunification, but he had made little progress to secure such housing. By January 2015, D.B. was living in a trailer in North Carolina with I.S. That same month, the CEC evaluated I.S. and recommended that she be included in D.B.'s visits with his children because she was part of D.B.'s reunification plan. The CEC also recommended that I.S. receive individual psychotherapy because she had been sexually abused in the past. In March 2015, the trial court suspended D.B.'s visitation after W.B. made a comment to her foster parents indicating D.B. may have sexually abused her. The Division investigated the report 7 A-1621-16T3 and determined the allegation of sexual abuse was unfounded, but found that D.B. and C.B. had exposed W.B. to sexual behaviors and materials. For this reason, the Division determined that D.B. had sexually exploited W.B. After a hearing on May 19, 2015, the court reinstated D.B.'s visits. In June 2015, D.B. informed the Division that he and I.S. had moved back to New Jersey and were residing with his parents. In August 2015, the trial court approved the Division's permanency plan for W.B. and D.J., which called for the termination of D.B. and C.B.'s parental rights and adoption of the children by Mr. and Mrs. P. Thereafter, the Division filed its guardianship complaint. In September 2015, D.B. acknowledged that he and C.B. had an altercation with knives and the children had been exposed to sex toys. In December 2015, Dr. Alice Nadelman conducted psychological evaluations of D.B. and I.S. She also performed bonding evaluations of D.B. and the children, and the foster parents and the children. Among other things, Dr. Nadelman recommended that the Division seek the termination of D.B.'s parental rights. She found that D.B. was not able to provide the children with appropriate parental care at that time or in the foreseeable future; and that D.B. had not demonstrated the ability to provide the children shelter, nurturing, consistency, or stability. 8 A-1621-16T3 In addition, Dr. Nadelman stated that W.B. displayed an "intense but ambivalent" attachment with D.B. She also stated that D.J. viewed D.B. "more like a friendly visitor than a parent." She concluded that the children would not experience severe and enduring harm if their relationships with D.B. are severed. Dr. Nadelman further found that W.B. would likely miss D.B. if his parental rights were terminated, but the child's foster parents would be able to mitigate the harm from the loss. She stated that D.J. views his foster parents as his parents and he seemed more secure with them than with D.B. According to Dr. Nadelman, D.J. would not suffer any harm if D.B.'s parental rights are terminated. Dr. Mark Singer, D.B's expert, performed psychological evaluations of D.B. and I.S. He also performed bonding evaluations of the children. In his report, Dr. Singer wrote that reunification with the children would require "a significant transition period" to introduce W.B. to a new family, and D.B. would require additional time for the transition. Dr. Singer stated that D.B. was not able to parent W.B. and D.J. capably at the present time, but he could do so sometime in the future if he complied with certain recommendations. In April, May, and June 2016, the Family Part judge conducted a trial on the Division's guardianship complaint. Prior to trial, 9 A-1621-16T3 C.B. surrendered her parental rights to W.B. and D.J. so that Mr. and Mrs. P. could adopt them. At the trial, the Division presented testimony from four caseworkers, Dr. Nadelman, and persons from the CEC, including Melissa Ciottone. D.B. testified on his own behalf, and called I.S. and Dr. Singer as witnesses. Thereafter, the trial judge filed a forty-six page opinion, in which she found that the Division had proven by clear and convincing evidence all of the criteria in N.J.S.A. 30:4C-15.1(a) for termination of D.B.'s parental rights to W.B. and D.J. The judge memorialized her decision in an order entered on December 1, 2016. This appeal followed. II. On appeal, D.B. argues that the trial judge erred by finding that the Division had proven all four prongs of the best interests test in N.J.S.A. 30:4C-15.1(a) for termination of his parental rights. We disagree. We note initially that the scope of our review in an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." 10 A-1621-16T3 Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). The Division may petition the court for an order terminating an individual's parental rights when such relief is warranted in the "best interests of the child," and the court may grant the petition if the Division establishes the criteria in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. In re Guardianship of K.L.F., 129 N.J. 32, 38 (1992) (citing In re J.C., 129 N.J. 1, 10-11 (1992)). "The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). A. Prong One On appeal, D.B. argues that the trial judge erred by finding that the Division established prong one of the best interests standard, which requires the Division to show that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C- 15.1(a)(1). D.B. contends the evidence does not show that W.B. and D.J. have been harmed by his relationship with them. It is well established that the Division is not required to demonstrate actual harm in order to satisfy prong one. N.J. Div. 11 A-1621-16T3 of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Rather, the Division must show that the child's safety, health or development has been or will be endangered in the future, and whether the parent is or will be able to eliminate the harm. Ibid. A parent's failure to provide a "permanent, safe, and stable home" engenders significant harm to the child. In re Guardianship of DMH, 161 N.J. 365, 383 (1999). Likewise, a parent's failure to provide "solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379. In this case, the trial judge found that the Division had "unquestionably demonstrated" that D.B. placed W.B. and D.J. at substantial risk of harm. The judge noted that D.B. was aware that the Division had been involved with C.B. and her children since 2005, when the Division removed C.B.'s two oldest children from her care. The judge noted that D.B. had withheld information from the Division regarding the conditions in the home, which he knew placed the children at risk. The judge found that D.B. had acknowledged that C.B. posed a continuing risk to his children, and he only participated minimally in family counseling from 2011 until 2014, when the Division removed the children. The judge noted that after the Division 12 A-1621-16T3 removed the children, D.B. did nothing to secure appropriate housing and did not present an appropriate parenting plan to the Division. The judge also pointed out that D.B. had sexually exploited W.B. and allowed C.B. to exploit her sexually. The child's therapist had testified that W.B. exhibited age-inappropriate sexual behaviors. Further, D.B. had admitted he was aware that C.B. had sex toys in the home, and that the children may have walked in on him and C.B. while they were having sex. D.B. told the CEC that he caught D.D. watching pornography on his cell phone and iPad. Moreover, C.B. had reported to the Division that D.B. often watched pornography in the family room. The judge found that D.B. had harmed W.B. by exposing her to sexualized material and behavior, and allowing C.B. to expose the child to such inappropriate material and behavior. The judge concluded that D.B. had neglected both children while they were in his care. He had essentially abandoned the children to C.B.'s care so that he could pursue a romantic relationship with I.S. He also delayed in making provisions for the children's care when they were first placed in a resource home. We are convinced that there is sufficient credible evidence to support the judge's findings. The record supports the judge's conclusion that the Division established prong one with clear and 13 A-1621-16T3 convincing evidence. D.B.'s arguments to the contrary are entirely without merit. B. Prong Two D.B. next argues that the evidence does not support the judge's finding that the Division established prong two of the best interests test. This prong requires the Division to establish that "[t]he parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). Here, the trial judge noted that D.B. was willing and eager to parent the children, and he had complied with the court's orders and the Division's services. The judge found that, even so, D.B. is unable to cease causing harm to the children in the foreseeable future. The judge found Dr. Nadelman's report and testimony on these issues to be credible and persuasive. The judge referenced Dr. Nadelman's determination that D.B. had shown little understanding that participating in services was just the first step in a process that involves learning, accepting responsibility, changing, and developing a more adaptive life and parenting skills. Dr. Nadelman opined that D.B. had not recognized his responsibility for the children's conditions of neglect, lack of adequate supervision, unclean and unhealthy environment, and 14 A-1621-16T3 exposure to inappropriate persons and adult sexuality. The doctor noted that D.B. abdicated his parental responsibilities by moving to North Carolina while his family's conditions deteriorated. In addition, Dr. Nadelman opined that D.B. had "repeatedly demonstrated poor judgment, faulty reasoning, denial of responsibility, inadequate cause and effect thinking, distortion of reality[,] and purposeful deception, none of which [D.B.] was willing to acknowledge." The doctor stated that D.B. did not demonstrate the capacity to provide safe and appropriate parental care for the children at that time or in the foreseeable future. The doctor concluded that D.B. "has not demonstrated the ability to protect his children from danger or even to recognize potential dangers to their safety and well-being." On appeal, D.B. argues that the judge erred by relying upon Dr. Nadelman's report and testimony. He contends Dr. Nadelman was confused as to the psychological tests she administered to him, as well as the components of those tests. He asserts that Dr. Nadelman's findings lack sufficient scientific basis and therefore constitute a net opinion. He further argues that the bases for Dr. Nadelman's conclusions are spurious and inaccurate. We are convinced, however, that there is sufficient credible evidence in the record for the judge's findings. We reject D.B.'s contention that the judge erred by accepting Dr. Nadelman's report 15 A-1621-16T3 and testimony. An appellate court must defer to the trial court's assessment of an expert's testimony because the trial court is in a better position "to evaluate the witness' credibility, qualifications, and the weight to be accorded to [the expert's] testimony." DMH, supra, 161 N.J. at 382. We see no reason to second-guess the judge's assessment and evaluation of Dr. Nadelman's report and testimony. We therefore conclude that the record supports the judge's determination that D.B. is unable or unwilling to eliminate the harm to the children, and a delay in permanent placement will cause further harm. The record supports the judge's determination that the Division had established prong two by clear and convincing evidence. C. Prong Three D.B. argues that the Division failed to establish prong three of the best interests test, which requires that it show it "made reasonable efforts to provide services to help the parent[s] correct the circumstances which led to the child's placement outside the home and the court considered alternatives to termination of parental rights . . . [.]" N.J.S.A. 30:4C- 15.1(a)(3). On appeal, D.B. argues that although the Division provided him with an array of services, it failed to provide him with a 16 A-1621-16T3 formal case plan, as required by N.J.A.C. 10:133D-1.4 (recodified at N.J.A.C. 3A:12-1.4), until after the trial had already begun.2 He contends the trial judge erred by overlooking the Division's "misfeasance" and by finding that there is no question that D.B. knew what he had to do to achieve reunification with his children. D.B. therefore argues the judge erred by finding that the Division made the reasonable efforts required by N.J.S.A. 30:4C-15.1(a)(3). We are convinced D.B.'s arguments are without sufficient merit to warrant comment. R. 2:11-3(e)(1)(E). We note, however, that the Division provided D.B. with numerous services, including Family Team Meetings, in-home therapy, rental assistance, Christmas gifts for the children, funds for new furniture and insect extermination services, therapy, visitation, travel expenses, parenting classes, and forensic psychological evaluations and therapy. The trial judge found that although the Division did not provide D.B. with a formal written case plan until May 2016, the caseworkers all had testified credibly that they had maintained daily communications with D.B., and he was well advised as to what 2 A "case plan" is defined as "a written statement of the Division's intervention on behalf of the child, which includes identification of the problems [that] necessitate Division involvement with the family, the services or actions needed, who will accomplish or provide them, and the planned time frame for providing each service." N.J.A.C. 10:133-1.3 (recodified at N.J.A.C. 3A:11-1.3). 17 A-1621-16T3 was required to achieve reunification with the children. The record supports the judge's findings and her conclusion that the Division made reasonable efforts to help D.B. address the circumstances that led to the children's removal. Accordingly, we conclude that there is sufficient credible evidence in the record to support the judge's findings on prong three. The record supports the judge's finding that the Division had established prong three with clear and convincing evidence. D. Prong Four D.B. contends the Division did not present clear and convincing evidence establishing prong four, which requires the Division to show that the "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). D.B. argues that the judge erred by relying upon Dr. Nadelman's report and testimony for her findings on prong four because of the aforementioned alleged deficiencies in Dr. Nadelman's report and testimony. D.B. therefore argues that the judge's determination that the Division established prong four is not based on sufficient credible evidence. In her opinion, the judge noted that Dr. Nadelman had performed bonding evaluations, which showed that W.B. had an "intense but ambivalent" attachment to D.B., and that D.J. was securely attached to his foster parents. Dr. Nadelman stated that 18 A-1621-16T3 D.J. would suffer no harm if D.B.'s parental rights are terminated, and while W.B. would be sad and confused, the foster parents could mitigate any harm. Dr. Nadelman opined that the termination of D.B.'s parental rights would allow the children to retain the stability and security they now have with their resource parents. The judge also pointed out that Dr. Nadelman had opined that the resource home was the only "safe and stable" home W.B. has had, and D.J. has been in the resource home since he was nine months old. Dr. Nadelman opined that if the children are removed, they would both experience "loss, separation reaction, and anger" towards D.B., which he would not be able to mitigate. Dr. Nadelman noted that introducing I.S. as a "new mommy" would be an additional risk of harm and it would cause confusion. Dr. Nadelman added that D.B.'s plan to co-parent the children with I.S. would present another risk since there would be four children in the family. I.S.'s children are older, and her son had exhibited aggression and inappropriate sexual behavior. The judge added that Dr. Nadelman found that there is a significant risk in placing W.B. in a home with an older boy, given that both of them has exhibited inappropriate sexual behavior. There also is a risk that D.B.'s relationship with I.S. would experience stress, which Dr. Nadelman said she had "every 19 A-1621-16T3 reason to believe will happen due to their independent risk factors." The judge noted that Dr. Singer had suggested that the children would not suffer undue harm if D.B. were afforded additional time to address the issues required for reunification. The judge observed, however, that although neither expert recommended immediate reunification, Dr. Singer could not opine as to the timeline for permanency for the children. The judge concluded that "[i]n balancing the equities, the children's need for permanency outweighs [D.B.'s] right to additional time to address the issues that led to the children's removal." We are convinced that the judge did not err by giving significant weight to the children's need for permanency. We note that Dr. Nadelman found that D.B. would not be capable of parenting the children adequately in the foreseeable future, and Dr. Singer could not opine as to the time required for D.B. to become capable of parenting the children. We conclude there is sufficient credible evidence in the record for the judge's findings on prong four. The judge properly found that the Division had presented clear and convincing evidence showing that the termination of D.B.'s parental rights will not do more harm than good. 20 A-1621-16T3 III. D.B. further argues that the trial judge abused her discretion by qualifying Melissa Ciottone, D.B.'s therapist at the CEC, as an expert witness. We note that at trial, the Division asked the court to qualify Ciottone as an expert in child abuse and neglect, evaluations, and therapy based on her education and professional experience. D.B.'s attorney objected to qualifying Ciottone as an expert witness in every area except for therapy. The judge overruled the objection. On appeal, D.B. argues that he was denied his right to due process by the admission of Ciottone's testimony about the nature and substance of his therapeutic sessions with her. He claims the Division set a trap for him. He asserts he reasonably believed that by engaging in therapy with Ciottone, he was doing what was required to regain custody of his children. He contends the Division then used his words against him at trial, without prior notice to him or his attorney. At oral argument before us, counsel for the Division noted that D.B.'s attorney never raised this issue in the trial court. Counsel asserted that D.B. had signed an informed consent form in which he agreed to participate in therapeutic services conducted at the CEC, and the form stated that any "material obtained during these services is not privileged and may be used in a court of law 21 A-1621-16T3 or in the proceeding in which [he was] currently involved." Because this form was not part of the record, we required the Division to file a motion to supplement the record, which D.B. opposed. We granted the Division's motion. We reject D.B.'s contention that the trial judge erred by admitting Ciottone's testimony, and that his right to due process was denied by the admission of her testimony. As noted, D.B. signed a form consenting to therapy at the CEC. In that form, D.B. indicated he understood the "material obtained" in the therapy sessions was not privileged and any such material could be used in a court of law. Thus, there is no merit to D.B.'s contention that his communications with Ciottone during the therapy sessions were privileged, or that he did not have notice that his statements could be used as evidence in the guardianship proceedings. Affirmed. 22 A-1621-16T3

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Docket No.: a2056-15
Decided: 2017-11-13
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3 STATE OF NEW JERSEY v. J.B., J
Status: unpublished
Summary:
PER CURIAM In 2010, defendant was convicted of aggravated sexual assault against his stepdaughter between 2002 and 2004, when she was under the age of thirteen, and between 2004 and 2006, when she was at least thirteen but not yet sixteen years old.1 An extended fifty- year prison term was imposed, as well as lesser concurrent prison terms on other related offenses.2 Defendant appealed, arguing: the trial court erred in denying his motion to suppress evidence; the prosecutor introduced improper lay opinion and placed other-crimes evidence before the jury; the judge failed to issue an appropriate limiting instruction regarding the other-crimes evidence; the prosecutor introduced expert testimony that was not disclosed during discovery; the prosecutor gave an improper summation; the judge erred in denying defendant's motions for acquittal or a new trial; and the sentence imposed was excessive. We rejected all these arguments and affirmed. State v. J.B., Jr., No. A-0612-10 (App. Div. Oct. 3, 2013). And the Supreme Court denied certification. State v. J.B., Jr., 217 N.J. 304 (2014). In 2014, defendant filed a pro se PCR petition. He later moved to recuse the PCR judge because that judge had presided over 1 The circumstances surrounding defendant's crimes are discussed at some length in our opinion on defendant's direct appeal and need not be repeated. 2 Defendant was also tried in 2011, when he was fifty-four years old, for the 1972 murder of his younger brother when defendant was a juvenile. The judge in that matter – who was the post-conviction relief (PCR) judge here – imposed a twenty-year period of incarceration. We affirmed that determination in 2013. State in the Interest of J.B., Jr., No. A-0366-11 (App. Div. July 11, 2013). 2 A-2056-15T1 the juvenile matter. Both the PCR petition and the recusal motion were denied, and defendant appeals, arguing: I. THE PCR COURT ERRED IN DENYING THE PCR PETITION WI[TH]OUT HOLDING AN EVIDENTIARY HEARING. A. Trial Counsel's Failure to Timely Object to the Testimony of Dr. Stewart. B. Trial Counsel's Failure to Object to the Admission of Other Crimes Evidence or to Seek a Limiting Instruction. C. Trial Counsel's Failure to Request a Change of Venue. D. Trial Counsel's Cumulative Errors. II. THE PCR COURT ERRED IN DENYING THE MOTION FOR RECUSAL. We find insufficient merit in these arguments to warrant further discussion in a written opinion, R. 2:11-3(e)(2), and affirm. We add only the following brief comments. In his PCR petition, defendant claimed his trial attorney was ineffective for the reasons set forth in the subsections to his Point I above. As for defendant's arguments in Point I(A) about Dr. Stewart's testimony – that counsel failed to adequately respond to Dr. Stewart's reliance on a study that supported his view that penetration of the vagina or anus of an adolescent girl would not 3 A-2056-15T1 necessarily cause visible trauma – fails to satisfy the requirements of the second prong of the Strickland/Fritz3 test because defendant was not convicted of any count alleging vaginal or anal penetration of the victim. In Point I(B), defendant argues, first, that counsel was ineffective in failing to object to evidence regarding the victim's late assertion of vaginal penetration. As noted above, defendant was not convicted of any such conduct, but he argues now – without having first made this argument to the PCR judge – that his trial attorney should have sought to bar any such evidence and was consequently ineffective. We reject that argument not only because it was not argued to the PCR judge and not only because arguments regarding other-crimes evidence were raised in the direct appeal and rejected by us, but also because defendant has failed to show how this evidence – or the admission of a letter which was raised in the PCR court – prejudiced his right to a fair trial. Defendant's argument in Point I(C) – that his trial attorney was ineffective in failing to seek a change of venue – does not warrant further comment. We affirm the denial of defendant's recusal motion – which was based solely on the fact that the PCR judge was also the trial 3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987). 4 A-2056-15T1 judge, and therefore the factfinder, in the unrelated 2011 juvenile matter – substantially for the reasons set forth by the PCR judge in his oral decision. Affirmed. 5 A-2056-15T1

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Docket No.: a2378-15
Decided: 2017-11-13
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. STEVEN B. TRAINER, a/k/a STEVE JOHNSON, STEVEN JOHNSON, STEVEN B. JOHNSON ST
Status: unpublished
Summary:
PER CURIAM Following the denial of his motion to dismiss the indictment, defendant Steven B. Trainer pled guilty to second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:15-1(a)(1). Pursuant to the plea agreement, he was sentenced in the third-degree range, to three years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. That sentence was imposed concurrent to an aggregate nine-year sentence he was currently serving. Defendant also received 774 days of jail credit and 1036 days of gap time, which would subsume virtually the entire three-year term. Defendant now appeals from the judgment of conviction, and from the September 25, 2014 order denying his motion to dismiss the indictment. He raises the following arguments: POINT ONE: THE FAILURE OF THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO ASSIGN COUNSEL TO CONFER WITH DEFENDANT ON WHETHER IT WAS IN HIS BEST INTEREST TO FILE A MOTION TO WITHDRAW HIS GUILTY PLEA, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. POINT TWO: THE LAW DIVISION ERRED WHEN IT DENIED DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BECAUSE THE STATE MISLED THE GRAND JURY BY PRESENTING TESTIMONY THAT ERRONEOUSLY 2 A-2378-15T1 CLAIMED DEFENDANT CONFESSED TO THE CHARGE IN THE INDICTMENT. Finding no merit in either argument, we affirm. We begin by addressing defendant's motion to dismiss the indictment, based on his assertion that the testifying police officer misled the grand jury. A trial judge should not dismiss an indictment except "on the 'clearest and plainest ground.'" State v. Hogan, 144 N.J. 216, 228 (1996) (citation omitted). We review the trial judge's decision for abuse of discretion. Id. at 229. We affirm on this point substantially for the reasons stated by Judge Donna Gallucio in her comprehensive written opinion accompanying the September 25, 2014 order. We add these brief comments. Defendant was accused of driving a blue Hyundai Santa Fe through the parking lot of a Target store, reaching his arm out the window, and grabbing a purse off the shoulder of a woman who was walking through the lot. The victim described the attack, in which she fell to the ground and was injured. The incident was also recorded by a store security camera. The video depicted a distinctive-looking blue Hyundai Santa Fe with gray trim, a white sticker in the window, and a large dent in the driver's side fender. The police eventually determined that defendant had probably been the driver. The arresting officer first observed 3 A-2378-15T1 defendant driving a Hyundai that matched the car in the video, and then arrested defendant as he was about to enter the Hyundai on a second occasion. Defendant waived his Miranda1 rights and gave the police a statement. Responding to leading questions from the prosecutor, the arresting officer confirmed to the grand jury that defendant "indicated that he was the operator of the Hyundai Santa Fe in question." In response to the next question, the officer agreed with the prosecutor that defendant "could not recall the details of . . . being in the . . . Target parking lot on that day in question." In his suppression motion, defendant argued that the officer's testimony was misleading because it would have led the jury to believe that defendant admitted driving the Hyundai in the Target parking lot on the day of the robbery, when in fact he did not make that admission. In his statement to the police, defendant admitted, in general, that he was the driver of the Hyundai, a vehicle he was buying from a friend. He also stated that he could not recall what occurred in the Target parking lot. However, he inferentially admitted the robbery, telling the police that he did not mean to hurt anyone: "All I'm thinking is that look, it was just safe. 1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 4 A-2378-15T1 Nobody gets hurt." We agree with Judge Gallucio's conclusions that: there was sufficient evidence to support the indictment, each separate statement to which the officer testified was accurate, and any ambiguity in the officer's testimony did not "affect[] the grand jurors' ability to make an informed decision whether to indict." State v. Hogan, 144 N.J. 216, 229-30 (1996). Accordingly, we find no abuse of Judge Gallucio's discretion in denying the motion to dismiss the indictment. See id. at 229. Defendant's argument concerning the appointment of a second attorney is without merit and warrants no discussion beyond the following comments. R. 2:11-3(e)(2). Defendant pled guilty, after many hours of consultation with his assigned Office of the Public Defender (OPD) attorney. Defendant later asked the OPD to assign another attorney to advise him as to whether he should file a motion to withdraw his guilty plea. Defendant claimed that he had done his own legal research, which caused him to question some of the advice his attorney had given him. The OPD declined to appoint a second attorney to advise defendant, but his assigned attorney indicated that if defendant decided to withdraw his guilty plea, the OPD would assign a replacement attorney to file the motion for him. The sentencing judge adjourned the sentencing for a month to give defendant more time to decide whether he wanted to withdraw his guilty plea. When 5 A-2378-15T1 defendant had not yet made up his mind at the next scheduled hearing, the judge proceeded with the sentencing. In State v. Hayes, 205 N.J. 522 (2011), the Court held that the defendant was entitled to an adjournment in order to have his newly-retained attorney represent him in arguing a motion to withdraw a guilty plea. Id. at 541-42. Hayes is not on point here, because defendant never sought more than a second opinion on whether to file such a motion. The OPD is not required to replace a defendant's assigned attorney merely because the defendant is dissatisfied with that attorney or would prefer a different attorney. See State v. Miller, 216 N.J. 40, 62-65 (2013); State v. Williams, 404 N.J. Super. 147, 170 (App. Div. 2008), certif. denied, 201 N.J. 440 (2010). Likewise, the OPD is not required to appoint an attorney to provide a second opinion concerning advice given by defendant's assigned OPD counsel. The OPD's refusal to assign a second attorney in this case did not deprive defendant of his right to counsel. We decline to address defendant's claim of ineffective assistance of counsel, insofar as it may be directed at the representation provided by his assigned OPD attorney. We affirm, without prejudice to his right to file a petition for post- conviction relief on that issue. See State v. Preciose, 129 N.J. 451, 460 (1992). 6 A-2378-15T1 Affirmed. 7 A-2378-15T1

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Docket No.: a2646-15
Decided: 2017-11-13
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. GABINO RIVERA
Status: unpublished
Summary:
PER CURIAM Defendant G.R. appeals from his December 4, 2015 judgment of conviction (JOC) for sexual assault, criminal sexual conduct, and endangering the welfare of a child, S.M.1 He contends fresh- complaint testimony from S.M.'s stepsister A.S. was improperly admitted, and that his sentence is excessive. We affirm his convictions, but vacate the sentence and remand for resentencing. I. The following facts come from the transcripts of defendant's jury trial. Defendant was in a romantic relationship with S.M.'s paternal grandmother prior to S.M.'s birth in 1995.2 From the age of four, S.M. lived on and off with her grandmother and defendant. Defendant helped raise S.M., and S.M. considered and called defendant her grandfather. S.M. testified as follows. Defendant first began acting inappropriately toward her when she was eight years old. At that time, S.M.'s father was in prison, so S.M. lived with her mother during the week and her grandmother and defendant on the weekends. Defendant kissed S.M. on the lips once, and made subsequent 1 We use initials to protect the privacy of the victim. 2 At trial, S.M. referred to defendant as her step-grandfather, and her grandmother's "husband," but it appears he was her long- term live-in boyfriend. 2 A-2646-15T2 unsuccessful attempts to kiss her until her father was released from prison. S.M. then went to live with her father. Eventually her father's home grew to include her stepmother and her stepsister A.S. In 2006, on S.M.'s eleventh birthday, her stepmother suffered a miscarriage. As a result, that night, S.M. and A.S. slept at the residence her grandmother shared with defendant. S.M. and A.S. slept on the two sides of an L-shaped sofa in the living room. S.M. testified defendant came into the room, put his hands in her pants, and digitally penetrated her vagina for several minutes while she was laying on the sofa. S.M. did not yell because she did not want A.S. to wake and see her grandfather touching her. Instead, S.M. tried to move away from defendant and groan while pretending to be asleep until he left. Unbeknownst to S.M., A.S. was awake. A.S. testified she saw defendant enter the room, lift S.M.'s blanket, and start touching S.M.'s "butt." A.S. was in shock and did not say anything. A.S. testified the sexual abuse came up in conversation with S.M. about a year later. A.S. testified S.M. "asked me if I remembered what happened that night and I said yes and she told me not to say anything." 3 A-2646-15T2 S.M. testified that she did not tell her mother because they had no relationship at that time. She did not tell her father because she was concerned that he might react violently, and she did not want him to get sent back to prison. She did not tell her sick grandmother because S.M. was worried that she would die if she learned her "husband" had sexually abused her granddaughter. S.M. and A.S. testified that defendant would touch S.M.'s thigh inappropriately when he was driving them to school over the following years. S.M. also testified that defendant digitally penetrated her vagina in February 2011 and in August 2011. S.M. testified that in October 2011 defendant sent S.M. a text message stating that he "desired" her. S.M. told defendant she was tired of his behavior and was going to tell her father. Defendant begged her not to do so. S.M. did not discuss defendant's behavior with anyone else until March 2012 when she told the social worker at her school. The social worker alerted S.M.'s father and the police. The jury convicted defendant of second-degree sexual assault on a victim less than thirteen years old, N.J.S.A. 2C:14-2(b); second-degree endangering the welfare of a child through sexual conduct, N.J.S.A. 2C:24-4(a); and fourth-degree criminal sexual 4 A-2646-15T2 conduct using physical force or coercion, N.J.S.A. 2C:14-3(b).3 The court merged the criminal sexual conduct conviction with the sexual assault conviction. On the sexual assault conviction, the court sentenced defendant to seven years in prison with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a concurrent seven-year sentence on the endangering conviction. Defendant appeals, raising the following arguments: POINT I – THE ALLEGED FRESH-COMPLAINT EVIDENCE WAS NOT OF A "COMPLAINT" AT ALL, AND SHOULD NOT HAVE BEEN ADMITTED. POINT II – THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE. II. Defendant first argues that the trial court should not have admitted testimony of step-sister A.S. as "fresh complaint" evidence regarding defendant's sexual abuse of S.M. on her eleventh birthday. We must hew to "our deferential standard for reviewing a trial court's evidentiary rulings, which should be upheld 3 The jury acquitted defendant of first-degree aggravated sexual assault on a victim less than thirteen years old, N.J.S.A. 2C:14- 2(a)(1); first-degree sexual assault on a victim at least thirteen and less than sixteen years old committed by a guardian, N.J.S.A. 2C:14-2(a)(2)(c); second-degree sexual assault by using physical force or coercion, N.J.S.A. 2C:14-2(c)(1); and second-degree sexual assault on a victim less than thirteen, N.J.S.A. 2C:14- 2(c)(4). 5 A-2646-15T2 '"absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment."'" State v. Perry, 225 N.J. 222, 233 (2016) (citations omitted). "An appellate court applying this standard should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling "was so wide of the mark that a manifest denial of justice resulted."'" Ibid. (citation omitted). Before allowing A.S. to testify before the jury, the trial court heard her testimony in a hearing under N.J.R.E. 104. The court considered the fresh-complaint doctrine, which "allows the admission of evidence of a victim's complaint of sexual abuse, otherwise inadmissible as hearsay, to negate the inference that the victim's initial silence or delay indicates that the charge is fabricated." State v. R.K., 220 N.J. 444, 455 (2015). "In order to qualify as fresh-complaint evidence, the victim's statement must have been made spontaneously and voluntarily, within a reasonable time after the alleged assault, to a person the victim would ordinarily turn to for support." Ibid. (citations omitted). The fresh-complaint "requirements are relaxed when they are applied to juvenile victims." Ibid. (citation omitted). "[C]hildren may be 'too frightened and embarrassed to talk about' the sexual abuse they have encountered, and therefore, juvenile 6 A-2646-15T2 victims are given additional time to complain, and their complaint may be elicited through non-coercive questioning." Ibid. (citation omitted). The trial court found A.S. credible, ruled the discussion between S.M. and A.S. approximately one year after the sexual assault satisfied all of the fresh-complaint requirements, and held A.S.'s testimony about this conversation was admissible under the fresh-complaint doctrine. "Whether these criteria for admissibility are satisfied is committed to the sound discretion of the trial judge." State v. W.B., 205 N.J. 588, 616 (2011) (upholding the trial court's finding that a sixteen-year-old girl who complained "more than one and one-half years" after the abuse complained within a reasonable time).4 At the 104 hearing, defendant gave the reasons for excluding S.M.'s fresh complaint to A.S., arguing that the complaint was too long after the sexual assault, and that there was no evidence of intimidation. On appeal, however, defendant instead argues this testimony "was not of a 'complaint' at all" because, unbeknownst to S.M., A.S. already knew about the abuse. This argument "was not raised at trial, and thus defendant can prevail on it only by demonstrating 'plain error.'" State v. 4 The trial court did not admit A.S.'s testimony about conversations with S.M. in 2010 and 2011. 7 A-2646-15T2 Angoy, 329 N.J. Super. 79, 89 (App. Div.), certif. denied, 165 N.J. 138 (2000). To show plain error, "'defendant has the burden of proving that the error was clear and obvious,'" and that it had "'the clear capacity to bring about an unjust result.'" State v. Koskovich, 168 N.J. 448, 529 (2001) (citations omitted). In any event, we reject defendant's parsing of the word "complaint." A "complaint" has long been defined as an "expression of grief, pain, or resentment." Webster's New Collegiate Dictionary 230 (1977); accord Merriam-Webster's Collegiate Dictionary 254 (11th ed. 2014). A "complaint" does not require the complaining party to relay information the hearer does not know. A person can "complain" about the weather even though the hearer is equally aware of the weather. Moreover, S.M.'s conversation with A.S. served the purpose of the fresh-complaint doctrine. The purpose of fresh complaint evidence is "'to prove only that the alleged victim complained [at a particular time].'" W.B., supra, 205 N.J. at 616-17 (citation omitted) (alteration by Court). Whether the hearer already knew about the crime is irrelevant. It is similarly irrelevant whether the victim conveyed the details about the crime. "The narrow purpose of fresh-complaint testimony extends only to the fact of the victim's complaint, not to its details." R.K., supra, 220 N.J. at 460. "[T]he gist of the evidential circumstances is merely 8 A-2646-15T2 non-silence." State v. Bethune, 121 N.J. 137, 146 (1990) (quoting 4 Wigmore On Evidence § 1136 at 307 (Chadbourne rev. 1972)). Here, A.S.'s testimony showed S.M. did not remain silent. A.S. testified S.M. raised the subject of defendant's sexual assault. S.M.'s question "do you remember what happened that night" sufficiently alerted A.S. that S.M. was talking about defendant's sexual abuse on her birthday night. See ibid. A.S. testified "[i]t was the only night that really stood out." When A.S. replied she knew what happened that night, nothing more needed to be said. After A.S. testified at the 104 hearing, S.M. testified at trial about the first time she and A.S. discussed defendant's sexual abuse. S.M. testified A.S. "brought it to my attention," and "she saw and she knew." Defendant cites the former phrase to show S.M. did not complain, but it also could mean A.S. brought to S.M.'s attention that A.S. saw and knew about the sexual assault after S.M. raised the issue. Indeed, A.S. reaffirmed in her trial testimony that S.M. raised the issue. Moreover, S.M. testified she and A.S. "spoke about it," so S.M. was not silent. In any event, S.M.'s trial testimony came after the court's ruling at the 104 hearing, and defendant did not seek to reopen that ruling. Defendant also cannot show prejudice. A.S.'s testimony about the conversation was brief and contained no details about the 9 A-2646-15T2 sexual assault. Moreover, the trial court "charge[d] the jury that fresh-complaint testimony is not to be considered as substantive evidence of guilt, or as bolstering the credibility of the victim; it may only be considered for the limited purpose of confirming that a complaint was made." R.K., supra, 220 N.J. at 456 (citation omitted). Thus, defendant cannot show an error "clearly capable of producing an unjust result." R. 2:10-2. III. Defendant next challenges his sentence. "It is well- established that appellate courts review the trial court's 'sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (citation omitted). This court is "'bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" Ibid. (citation omitted). Defendant challenges the trial court's finding of aggravating factor two. That factor addresses: The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason 10 A-2646-15T2 substantially incapable of exercising normal physical or mental power of resistance[.] [N.J.S.A. 2C:44-1(a)(2) (emphasis added).] At sentencing, defense counsel argued it was double-counting to consider S.M.'s age. Nonetheless, the court found: As to Aggravating Factor 2 the victim was young. She was less than 13 years old at the time she was sexually assaulted by the defendant. She was particularly vulnerable to his actions due to her age and her relationship to the defendant, who was like a grandfather to her, as, in fact the defendant himself pointed out. I don't agree that it's double-counting at all, [defense counsel]. It's a factor that certainly applies here, [t]he Court has found, because of the age of the victim at the time . . . of the events for which the defendant was convicted. On appeal, defendant argues the trial court's consideration of age constituted double-counting because age is an element in both offenses for which he was sentenced. Under the circumstances here, we are constrained to agree. Generally, "established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence." State v. Kromphold, 162 N.J. 345, 353 (2000). It is an element of second-degree sexual assault that the victim had to be "less than 13 years old." N.J.S.A. 2C:14-2(b). 11 A-2646-15T2 In State v. C.H., 264 N.J. Super. 112 (App. Div. 1993), the defendant committed sexual assault against a victim "who was age eight." Id. at 118. We found the sentencing judge "err[ed] in applying aggravating factor number two since the age of victim was an element of the offense itself." Id. at 140. By contrast, in State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988), where the victim of the sexual assault was four years old, we held "[t]he extreme youth of the victim was a proper aggravating factor to have been considered by the court." Ibid. Our Supreme Court ultimately adopted the Taylor standard, allowing consideration of aggravating facts if they are more extreme than necessary to establish an element of the offense. "A sentencing court may consider 'aggravating facts showing that [the] defendant's behavior extended to the extreme reaches of the prohibited behavior.'" State v. Fuentes, 217 N.J. 57, 75 (2014) (quoting State v. Henry, 418 N.J. Super. 481, 493 (Law Div. 2010) (citing Taylor, supra, 226 N.J. Super. at 453)). Applying that standard, eleven-year-old S.M. was not at the extreme reaches of the prohibited behavior under the sexual assault statute, which covers victims "less than 13 years old." N.J.S.A. 2C:14-2(b). She was three years older than the victim in C.H., who like defendant was closer to the maximum age than the minimum 12 A-2646-15T2 age. She was seven years older than the victim in Taylor, who was closer to the minimum age. It is a closer call under the statute barring endangering the welfare of a "child," which covers victims "under 18 years of age." N.J.S.A. 2C:24-4(a)(1), (b)(1). However, as eleven-year- old S.M. was nearer the maximum age than the minimum age, it cannot be argued she was at "'the extreme reaches of the prohibited behavior'" under the endangering statute. Fuentes, supra, 217 N.J. at 75 (citation omitted). Thus, her age could not considered as an aggravating factor for either conviction. The trial court offered a second reason for applying aggravating factor two, namely that S.M. "was particularly vulnerable" due to "her relationship to the defendant," her de facto grandfather. "[S]ince the age of the victim alone makes the crime" a sexual assault, and the relationship of the defendant to the victim is not an element of sexual assault, it is "appropriate to consider the relationship between the parties as an aggravating factor" for sexual assault. State v. Yarbough, 100 N.J. 627, 646 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). However, it is unclear that the trial court would have found the relationship alone sufficient to find aggravating factor two. The court found aggravating factor two applied because S.M. was 13 A-2646-15T2 "young," "less than 13 years old," and vulnerable "due to her age," and "because of the age of the victim." Moreover, the court did not explain whether it was relying on the relationship between defendant and S.M. in imposing an identical seven-year sentence for endangering. One element of endangering is that the defendant has "a legal duty for the care of a child or who has assumed responsibility for the care of a child." N.J.S.A. 2C:24-4(a)(1). An aggravating factor inappropriate regarding one count can be considered in sentencing on another count, State v. Boyer, 221 N.J. Super. 387, 405-06 (App. Div. 1987), but it appears the court relied on the same aggravating factors for both sexual assault and endangering, as it imposed seven-year sentences on both. "The sentencing court must not only ensure that facts necessary to establish the elements of the defendant's offense are not double-counted for purposes of sentencing," but its analysis must be "clearly explained so that an appellate court may be certain that the sentencing court has refrained from double- counting the elements of the offense." Fuentes, supra, 217 N.J. at 76. That was not the case here. Defendant also argues that the record did not support a finding of aggravating factor nine. "[T]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44- 14 A-2646-15T2 1(a)(9). The trial court found "an overwhelming need to deter the defendant from future sexual assaults and for sexual contacts and, of course, to deter others from committing such egregious crimes." Defense counsel conceded "the need to deter especially others from doing this," but defendant contends there was not a need to deter him. We disagree. The record suggested defendant's feelings for S.M. were extremely strong and led him to inappropriate behavior when she was eight years old and eleven years old, at the very least. Moreover, defendant's attraction to an eleven-year-old overcame the taboos arising from his obligations as her de facto grandfather, suggesting he needed to be deterred from similarly pursuing other juveniles unprotected by such taboos. We must consider whether the double-counting error regarding aggravating factor two was harmless. E.g., State v. M.A., 402 N.J. Super. 353, 372 (App. Div. 2008). "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Because defendant objected to the double- counting, the State bears the burden. The State stresses that even without aggravating factor two, the aggravating factors would still outweigh the non-existent mitigating factors. In additional to aggravating factor nine, the 15 A-2646-15T2 trial court found aggravating factor six, "[t]he extent of the defendant’s prior criminal record and the seriousness of the offenses of which he has been convicted." N.J.S.A. 2C:44-1(a)(6). However, the court gave defendant "partial credit for the fact that he has only one prior indictable conviction" and was sixty- five-years old. Moreover, the trial court did not state the weight it gave to each of the aggravating factors. Further, the court did not expressly balance the aggravating and mitigating factors at sentencing, although the JOC stated it was "clearly convinced that aggravating factors 2, 6, and 9 substantially outweigh the non- existent mitigating factors." The State stresses the trial court imposed only the "presumptive" seven-year sentence on each second-degree crime. See N.J.S.A. 2C:44-1(f)(1)(c). However, in State v. Natale, 184 N.J. 458 (2005), our Supreme Court "conclude[d] that the Code's system of presumptive term sentencing violates the Sixth Amendment's right to trial by jury," and remedied that defect by "eliminating the presumptive terms." Id. at 484, 487. The Supreme Court in Natale hypothesized "that many, if not most, judges . . . will decide that [when] the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence," "when the mitigating factors preponderate, 16 A-2646-15T2 sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range." Id. at 488. However, the Court emphasized "[t]hat would be one reasonable approach, but it is not compelled," and "no inflexible rule applies." Ibid. That is evident here, as the trial court imposed a midpoint sentence even though it found three aggravating and no mitigating factors. Thus, it is not self-evident the court's sentence would remain unchanged without aggravating factor two. The outcome might be different if defendant was raising the double-counting argument for the first time on appeal, as he would have the burden to show plain error. However, the State has not carried its burden to show by a preponderance of the evidence that the sentence would not have been different in the absence of aggravating factor two. Thus, the State failed to show that the double-counting error was not "clearly capable of producing an unjust result." R. 2:10-2. Accordingly, we vacate the sentences and remand to the trial court for resentencing in accordance with this opinion, which does "not necessarily bar the application of aggravating factor" two on remand as to the sexual assault conviction based on the relationship, if appropriate findings are made. Fuentes, supra, 217 N.J. at 77. We do not retain jurisdiction. 17 A-2646-15T2 Affirmed in part, vacated in part, and remanded. 18 A-2646-15T2

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Docket No.: a3523-16
Decided: 2017-11-13
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the FARMLAND DAIRIES, INC v. BOROUGH OF WALLINGTON Bergen County DONALD NUCKEL
Status: unpublished
Summary:
PER CURIAM Donald Nuckel, the owner of several properties in the Borough of Wallington, appeals from the Tax Court's opinion (published at 29 N.J. Tax 310 (Tax 2016)), denying his motion to intervene pursuant to Rule 4:33-1 in a pending Tax Court case involving another property in the Borough owned by Farmland Dairies, Inc. Nuckel wishes as an intervenor to assert a counterclaim against Farmland alleging that the assessments of Farmland's property for various years were too low. Notably, the Borough unsuccessfully attempted to pursue such a claim of underassessment against Farmland earlier in its own counterclaim, which was dismissed as untimely. Among other things, Nuckel contends that the Tax Court misapplied legal principles, including the statute of limitations and the "relation back" doctrine. Nuckel also argues that the Tax Court failed to address his alternative claim for permissive intervention under Rule 4:33-2. The Borough and Farmland oppose these arguments. They assert that it is inappropriate to allow another taxpayer such as Nuckel to intervene after the expiration of the strict statute of 2 A-3523-16T4 limitations for contesting local property tax assessments. See N.J.S.A. 54:3-21. They further contend that granting a third party such intervention status will unduly interfere with the ability of a local government and a property owner to settle their disputes, since the intervenor would possess "veto power" over settlement as a party to the case. We were advised at oral argument that the underlying litigation remains open in the Tax Court, apparently due in part to the pendency of Nuckel's present appeal. Discovery has not yet been completed. Having duly considered the parties' competing arguments, we affirm the Tax Court's denial of a right to intervene under Rule 4:33-1, substantially for the cogent and well-supported reasons expressed in Tax Court Judge Kathi F. Fiamingo's June 21, 2016 published opinion. Nuckel has no right under Rule 4:33-1 to intervene in order to revive or assert counterclaims that are time-barred. We reject his contention that the absence of specific individual notice to him of Farmland's pending tax appeal entitles him to extra time to file a pleading in that case. That said, because the opinion below did not expressly address Nuckel's alternative argument for permissive intervention under Rule 4:33-2, we remand this matter for the Tax Court to consider that discrete argument. In particular, in exercising its 3 A-3523-16T4 discretion under that separate provision in light of the current posture of the litigation, the court "shall consider whether [such] intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Ibid.; see also Asbury Park v. Asbury Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006). Affirmed in part and remanded in part. We do not retain jurisdiction. 4 A-3523-16T4

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Docket No.: a4922-15
Decided: 2017-11-13
Caption: STATE OF NEW JERSEY v. SHANNON FIELD
Status: unpublished
Summary:
PER CURIAM Defendant Shannon Field appeals from his conviction and sentence for second-degree possession of a weapon during a drug offense, N.J.S.A. 2C:39-4.1, and third-degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5(a)(1) and - 5(b)(11). We affirm his convictions, vacate his sentence in part, and remand. I. The following facts are largely taken from the suppression motion hearing testimony of Bridgewater Township Police Department Officers Anthony DiGraziano and Kevin Florczak. No other witnesses testified. On March 20, 2013, at approximately 7:00 p.m., anti-crime team undercover officers DiGraziano and Florczak were parked in an unmarked police vehicle in the parking lot of the Days Inn on Route 22 in Bridgewater. The officers were working an anti-crime detail to investigate drug trafficking and distribution in response to recent violent crimes at the hotel. They observed a Ford Taurus park in a designated "No Parking Fire Zone" at the rear of the hotel complex. The officers pulled their unmarked vehicle behind the Taurus, exited, and approached the Taurus. Officer Florczak walked to the driver's side and Officer DiGraziano went to the passenger's side. While investigating why the three passengers of the Taurus were illegally parked in the fire zone, a black Mazda pulled up and parked within five feet of the driver's side of the Taurus. According to Officer DiGraziano, the driver of the Mazda was 2 A-4922-15T4 staring at the officers and the Taurus. Because they were investigating the occupants of the Taurus for possible drug activity, the close proximity of the Mazda made the officers nervous and uncomfortable. As a result, Officer DiGraziano identified himself as a police officer to the driver of the Mazda, later identified as defendant, and gestured with his hand to leave the area. Officer DiGraziano also yelled at defendant that there was a police investigation and he should leave. When defendant failed to leave the area, Officer DiGraziano approached the Mazda, knocked on the passenger-side window, held up his police badge, and again told defendant to leave the area. As soon as defendant rolled the window down, Officer DiGraziano detected the odor of raw, unburnt marijuana coming from inside the vehicle. Officer DiGraziano told defendant to put his car in park. After getting Officer Forczak's attention, both officers approached the driver's side of the Mazda. When Officer DiGraziano told defendant he smelled raw marijuana, defendant said he had smoked marijuana before coming to the Days Inn. When Officer DiGraziano told him he smelled raw, unburnt marijuana, defendant retrieved and handed him a bag of green vegetation from his pants pocket, which later field-tested positive for marijuana. The bag was secured in the police vehicle and backup was requested to help handle the Mazda. Once backup 3 A-4922-15T4 arrived, Officers DiGraziano and Florczak finished their investigation and search of the Taurus, ultimately releasing that car. After defendant exited the vehicle, Officer Florczak walked around the Mazda and smelled a strong, overpowering odor of raw marijuana coming from inside the vehicle. He also observed a bag on the rear seat. Officer Florczak asked defendant whose vehicle he was driving and what he was doing there. Defendant responded that it was a rental car, rented by a friend he could not identify, and that he was visiting his girlfriend who was visiting her cousin at the Days Inn. Defendant was arrested for possession of marijuana under fifty grams for the marijuana he had voluntarily turned over. A search incident to arrest revealed $995 in cash in his front pockets. When the officers asked defendant for consent to search his vehicle, he refused. The officers then called for a drug sniffing canine to perform an exterior sniff of the Mazda. Although the testimony of the officers did not include describing the canine's examination of the results thereof, the trial court made the following findings: A K-9 unit was requested to perform an exterior sniff of the Defendant's vehicle for narcotics and Captain Tim Pino arrived on scene with K-9 Dano. Dano indicated a 4 A-4922-15T4 positive hit for narcotics on the rear hatch of the vehicle and passenger side front door. The vehicle was then impounded while the officers applied for a search warrant. According to the motion judge, the search warrant application was based upon both the facts outlined above and defendant's criminal history, which includes distribution of narcotics and vehicles that contain hidden compartments.1 A search warrant was obtained and executed the next day. The search of the vehicle revealed a 9mm handgun, hollow-nose bullets, a high capacity seventeen-round magazine, two sandwich-sized bags of marijuana, two gallon-sized bags of marijuana, and several hypodermic syringes. Defendant was indicted for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); second-degree possession of a firearm during a drug offense, N.J.S.A. 2C:39-4.1 (count two); third-degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5(a)(1) and -5(b)(11) (count three); fourth-degree possession of a large capacity magazine, N.J.S.A. 2C:39-3(j); and fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f). 1 The record on appeal does not include a copy of the search warrant affidavit. 5 A-4922-15T4 Defendant moved to suppress the evidence seized from his car. The trial court conducted a testimonial suppression hearing and issued a seventeen-page written opinion and order denying defendant's suppression motion. The judge found that the officers had a reasonable suspicion that defendant was engaging in criminal activity when they smelled the unburnt marijuana. She further found that the brief detention that followed to further question defendant was lawful. The judge also found that the officers had probable cause to arrest defendant for possession of marijuana when he, without being asked to, turned over the baggie of marijuana. The judge concluded the police were then permitted to conduct a search incident to arrest and seize the currency. The judge also found that the search of defendant's car was authorized by a valid search warrant based on adequate probable cause including plain smell, visual observations, defendant's prior history, and the canine hit on the vehicle. Following the denial of his suppression motion, defendant entered into a plea agreement. Defendant pled guilty to counts two and three in exchange for a recommended sentence of a five- year prison term, subject to a three-year period of parole ineligibility on count two, to run consecutive to a flat three- year prison term on count three. The parole ineligibility period was mandated by the Graves Act, N.J.S.A. 2C:43-6. The sentences 6 A-4922-15T4 were to run consecutively pursuant to N.J.S.A. 2C:39-4.1(d). The plea agreement also provided for the dismissal of counts one, four, and five, two disorderly persons offenses, and a motor vehicle offense. A different judge conducted the sentencing hearing on May 13, 2016. Defense counsel requested that defendant be granted a six- month delay in reporting date to commence serving his prison term to allow defendant to undergo ongoing surgical treatment for severe diabetic retinopathy in both eyes. According to a letter from his treating physician, defendant was scheduled to undergo retinal surgery on his right eye on May 18, 2016. The sentencing judge found the following aggravating factors applied: three, the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); seven, that defendant committed the offenses for pecuniary gain, N.J.S.A. 2C:44-1(a)(7); and nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). Finding no mitigating factors, the judge concluded that the aggravating factors outweighed the non-existent mitigating factors. Without expressing any reason for deviating from the recommended sentence, the sentencing judge imposed two concurrent five-year sentences, with each being subject to a three-year period of parole ineligibility. Appropriate fines and penalties were 7 A-4922-15T4 also imposed. Counts one, four, and five, two disorderly persons offenses, and one motor vehicle offense were dismissed. The trial court declined to postpone defendant's reporting date and remanded him to the jail to begin serving his sentence. Defendant raises the following points on appeal: POINT I THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE OFFICERS DID NOT HAVE REASONABLE SUSPICION WHEN THEY INITIALLY STOPPED FIELD IN THE HOTEL PARKING LOT. POINT II THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE OFFICERS DID NOT HAVE A LEGAL BASIS TO FURTHER DETAIN OR ARREST FIELD WITHOUT ATTEMPTING TO DETERMINE WHETHER HIS POSSESSION OF MARIJUANA WAS IN FACT ILLEGAL. (Not Raised Below). POINT III IF THE CONVICTIONS ARE NOT REVERSED, THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE COURT BASED THE SENTENCES ON UNSUPPORTED AND UNEXPLAINED SENTENCING FACTORS, FAILED TO RECOGNIZE ITS ABILITY TO SEEK A LOWER SENTENCE, AND IMPOSED AN ILLEGAL PERIOD OF PAROLE INELIGIBILITY. A. The Sentencing Court Did Not Explain the Basis for Its Unsupported Aggravating Factor Findings and Failed to Find Clear Mitigating Factors, Thereby Requiring a Remand for Resentencing on Count Three and Consideration of Whether to Downgrade Count Two to a Third-Degree Offense. [Not Raised Below In Part]. 8 A-4922-15T4 B. The Interests of Justice Require a Remand to Allow Field to Seek a Sentencing Waiver on the Count Two Mandatory Minimum in Light of the Sentencing Court's Apparent Desire to Impose a Lower Sentence, the Prosecutor's Violation of Binding Guidelines, and Field's Lack of Criminal History and Serious Health Problems. [Not Raised Below]. C. The Sentencing Court Imposed an Illegally Long Period of Parole Ineligibility on Count Three. II. Defendant argues that the police officers did not have a reasonably articulable suspicion to warrant a field inquiry. He further argues that the officers lacked a valid basis to conduct a subsequent brief investigatory detention. We disagree. Officer DiGraziano was not effecting a "stop" of defendant when he approached defendant's vehicle to tell him to leave the scene of an active police investigation of different individuals in a different car. Defendant had already parked his vehicle in a no parking fire zone only five feet from the Taurus that was the subject of the investigation. Telling defendant to leave the area was not a stop, field inquiry, or investigatory detention. Therefore, the officers were not required to have a reasonably articulable suspicion that defendant was committing an offense at that point. 9 A-4922-15T4 Despite being directed to leave the area, defendant did not drive away. Officer DiGraziano acted reasonably in walking over to defendant's vehicle to direct defendant for the second time to leave the area. By doing so, the officers were not attempting to detain defendant in any way. On the contrary, they were trying to do the exact opposite — to get defendant to leave the area because they were concerned by his close proximity to the vehicle and individuals they were investigating. Police officers have the authority to control the scene of an investigation and stop others from interfering or obstructing that investigation. See State v. Sloane, 193 N.J. 423, 430 (2008). The officers had not yet subjected defendant to a field inquiry, investigative detention, or arrest for Fourth Amendment purposes. Defendant's reliance on our Supreme Court's recent opinion in State v. Rosario, 229 N.J. 263 (2017), is misplaced. The facts in Rosario are clearly distinguishable. Rosario involved "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." Id. at 273. The Court concluded that the defendant "would not reasonably feel free to leave." Ibid. The Court explained that "such police activity reasonably would, and should, prompt a person to think that she 10 A-4922-15T4 must stay put and submit to whatever interaction with the police officer was about to come." Ibid. Here, the facts are the polar opposite to those in Rosario. Defendant injected himself into the investigation when he arrived at the scene, parked illegally in a fire zone, and did not leave when gestured and told to do so by Officer DiGraziano. Once Officer DiGraziano smelled the odor of raw, unburnt marijuana emanating from defendant's vehicle, he had a reasonably articulable suspicion that defendant was committing an offense, providing a valid basis to conduct a field inquiry and brief investigatory detention. When defendant admitted he had recently smoked marijuana and voluntarily turned over a baggie of suspected marijuana, the officers had probable cause to arrest defendant. Upon defendant's arrest, the officers were permitted to conduct a search incident to arrest in order to protect themselves and to insure that evidence is not destroyed. State v. Sims, 75 N.J. 337, 352 (1978) (citing Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694, reh'g denied, 396 U.S. 869, 90 S. Ct. 36, 74 L. Ed. 2d 124 (1969); State v. Gray, 59 N.J. 563, 569 (1971)). Any evidence, contraband or weapon found during the search incident to arrest is properly seized. See New York v. Belton, 453 U.S. 454, 461, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768, 775-76 (1981); State v. Mai, 202 N.J. 12, 26 11 A-4922-15T4 (2010); State v. Jefferson, 413 N.J. Super. 344, 359 (App. Div. 2010) (finding that cocaine discovered during warrantless search incident to arrest admissible at trial). These facts coupled with the strong, overpowering odor of raw, unburnt marijuana gave the officers a valid, objectively reasonable basis to impound the vehicle and probable cause to obtain a search warrant to search it. The law is well-settled that "the smell of marijuana itself constitutes probable cause that a criminal offense ha[s] been committed and that additional contraband might be present." State v. Myers, 442 N.J. Super. 287, 295 (App. Div. (2015) (citations omitted), certif. denied, 224 N.J. 123 (2016). Here, "the overwhelming smell of marijuana emanating from the automobile gave the officer probable cause to believe that it contained contraband." State v. Pena-Flores, 198 N.J. 6, 30 (2009) (citing State v. Nishina, 175 N.J. 502, 515-16 (2003)), overruled by State v. Witt, 223 N.J. 409 (2015) (revising automobile exception to search warrant requirements). "A search based on a properly obtained warrant is presumed valid." State v. Sullivan, 169 N.J. 204, 211 (2001) (citing State v. Valencia, 93 N.J. 126, 133 (1983)). Defendant has not demonstrated that there was no probable cause supporting the issuance of the warrant or that the search of the vehicle was otherwise unreasonable. Therefore, we discern no basis to declare 12 A-4922-15T4 the warrant invalid. See State v. Marshall, 123 N.J. 1, 72 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). The search of the vehicle revealed a 9mm handgun with hollow- nose bullets and a high-capacity magazine, as well as over one pound of marijuana and several hypodermic syringes. The weapons, drugs, and paraphernalia were lawfully seized. Defendant's reliance on the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 to –16, is also misplaced. CUMMA affords an affirmative defense to patients who are properly registered under the statute and are subsequently arrested and charged with possession of marijuana. See N.J.S.A. 2C:35-18(a). The burden is on the defendant to prove the affirmative defense by a preponderance of the evidence. Ibid. The State is under no obligation to negate an exemption under CUMMA or N.J.S.A. 2C:35-18(a). Ibid. CUMMA does not alter the established search and seizure law of this State and does not apply in this matter. Defendant was not, and is not, a registered qualifying patient under CUMMA. Therefore, he was not authorized to possess marijuana. "We stress that this is not a situation where a person suspected of possessing or using marijuana has proffered to a law enforcement officer a registry identification card or other 13 A-4922-15T4 evidence that the person is a registered qualifying patient under CUMMA." Myers, supra, 442 N.J. Super. at 303. Defendant's argument that marijuana is no longer per se contraband due to the passage of CUMMA is meritless. "[T]he possession, consumption, and sale of marijuana remains illegal except in the instance of a registered qualifying patient who obtains medical marijuana from one of the limited number of [medical marijuana alternative treatment centers]." Id. at 302. Possession of a registry identification card under CUMMA "is an affirmative defense, not an element of the offense." Ibid. (citing N.J.S.A. 2C:35-18(a)). Therefore, "absent evidence the person suspected of possessing or using marijuana has a registry identification card, detection of marijuana by the sense of smell, or by other senses, provides probable cause to believe that the crime of unlawful possession of marijuana has been committed." Id. at 303. Defendant had no such registry identification card.2 The trial court's denial of defendant's suppression motion is supported by substantial credible evidence in the record and in accordance with applicable legal principles. Accordingly, we affirm defendant's convictions for second-degree possession of a 2 We further note that defendant was in possession of more than one pound of marijuana. CUMMA limits the amount of marijuana to be dispensed to a registered qualifying patient to only two ounces per month. N.J.S.A. 24:6I-10. 14 A-4922-15T4 firearm during a drug offense and third-degree possession with intent to distribute marijuana. III. We next consider whether defendant's sentence was illegal or an abuse of discretion. The recommended sentence for the second- degree possession of a firearm during a drug offense was a five- year prison term, subject to a three-year period of parole eligibility required by the Graves Act, N.J.S.A. 2C:43-6. The recommended sentence for the third-degree possession with intent to distribute marijuana was a consecutive flat three-year prison term. At sentencing, the prosecutor reiterated the recommended sentence as stated in the plea agreement. A sentence imposed that conforms to a defendant's plea bargain is presumed reasonable. State v. Pillot, 115 N.J. 558, 566 (1989) (citing State v. Sainz, 107 N.J. 283, 294 (1987)). Unless the appeal raises a question of law, we review a sentence imposed pursuant to a plea bargain for an abuse of discretion. Sainz, supra, 107 N.J. at 292. Contrary to his statement that he was sentencing defendant "in accordance with the plea agreement[,]" the sentencing judge did not impose the recommended sentence on count three. Instead, he imposed a concurrent five-year term with a three-year parole 15 A-4922-15T4 ineligibility. The State concedes that defendant's sentence is illegal and violates the terms of the plea agreement. We agree.3 The three-year period of parole ineligibility on count three was illegal. A parole ineligibility period shall not exceed one- half of the prison term imposed. N.J.S.A. 2C:43-6(b). In addition, the parole ineligibility period shall only be imposed "where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors . . . ." Ibid. Here, the judge did not make that finding. Instead, he found that the aggravating factors outweighed the non-existent mitigating factors. The judge also ruled that the sentence on count three would run concurrently to count two. That too was error. Convictions for possession of a firearm during a drug offense "shall be ordered to be served consecutively to that imposed for any conviction for a violation of any of the sections of chapter 35 . . . ." N.J.S.A. 2C:39-4.1(d). 3 We recognize that these errors may have resulted from the lack of clarity of paragraph 13 of the plea form, which was compounded by the extremely cryptic nature of the State's sentencing argument with regard to the recommended sentence for count three, and the mandatory consecutive sentencing requirements imposed by N.J.S.A. 2C:39-4.1(d). We further note that the sentencing judge did not conduct the plea hearing. 16 A-4922-15T4 Given these errors, we remand for the trial court to resentence defendant to a five-year prison term, subject to a three-year period of parole ineligibility on count two, to run consecutively to a three-year flat prison term on count three. Defendant also argues that the trial court failed to recognize its ability to impose a lower sentence than recommended by the plea agreement. Defendant did not argue at sentencing for a sentence lower than recommended by the plea agreement. In particular, defendant did not argue or apply for a waiver of the mandatory minimum sentence imposed on count two. Defendant further argues that the trial court could have downgraded count two for sentencing purposes to be sentenced as a third-degree offense pursuant to N.J.S.A. 2C:44-1(f)(1). This argument was also not raised below. Indeed, other than asking for a six-month delayed reporting date, defendant did not argue that any mitigating factors applied, let alone that the mitigating factors substantially outweighed the aggravating factors. Nor did defendant argue that the interests of justice required a downgrade for sentencing purposes. We decline to consider these arguments raised for the first time on appeal. To the extent that defendant may claim that the failure to present these arguments resulted from ineffective assistance of counsel, he can raise those arguments in a timely 17 A-4922-15T4 filed petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992) (recognizing the "general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record"); see also State v. McDonald, 211 N.J. 4, 30 (2012). Defendant may also file for relief under Rule 3:21-10(b)(2) after his mandatory parole ineligibility term has been served. See Pressler & Verniero, Current N.J. Court Rules, comment on R. 3:21-10(b) (citing State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986) (holding that "when defendant is serving a sentence required by the Graves Act he may not make an application under R. 3:21-10(b)")). We express no opinion as to the likelihood of success of any such future applications. IV. Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). In summary, we affirm defendant's convictions, vacate the sentence, and remand for the trial court to resentence defendant to a five-year prison term, subject to a three-year period of parole ineligibility on count two, to run consecutively to a flat three-year prison term on count three in accordance with this opinion. 18 A-4922-15T4 Affirmed in part, vacated and remanded in part. We do not retain jurisdiction. 19 A-4922-15T4

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Docket No.: a5501-14
Decided: 2017-11-11
Caption: ROYAL TAX LIEN SERVICES L.L.C. v. SYEDA FATIMA SHUAIB
Status: unpublished
Summary:
PER CURIAM This appeal is from the denial of a motion to vacate a Final Judgment of Tax Sale Certificate Foreclosure (Final Judgment) by defendant Syeda Fatima Shuaib (Syeda)1. We exercise our original jurisdiction under Rule 2:10-5 and affirm the denial, although for reasons other than those expressed by the motion judge.

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Docket No.: a0139-16
Decided: 2017-11-09
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. K.A
Status: unpublished
Summary:
PER CURIAM Defendant K.A.1 appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. For the reasons that follow, we affirm. I In April 2008, defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a). Specifically, he admitted he had vaginal intercourse with his daughter when she was fifteen years of age. In July 2008, he was sentenced to a seventy-four year term of imprisonment, subject to an eighty-five percent period of parole ineligibility; the date of the judgment of conviction was August 1, 2008. Defendant appealed his sentence, which was reviewed before an Excessive Sentence Oral Argument (ESOA) Panel. Finding the sentence manifestly excessive and unduly punitive, we remanded for resentencing. State v. Ali, No. A-4887-08 (App. Div. June 28, 2010). On October 22, 2010, the trial court resentenced defendant to a fifty-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility. Defendant appealed but, in October 2011, his sentence was affirmed by an ESOA Panel. State v. Ali, No. A-5611-10 (App. Div. Oct. 20, 2011). On 1 To protect the victim's privacy, we refer to defendant by his initials. 2 A-0139-16T1 October 23, 2012, our Supreme Court denied defendant's petition for certification. State v. Ali, 212 N.J. 431 (2012). On October 15, 2014, defendant filed a petition for PCR, and subsequently filed an amended petition for PCR. In those petitions, defendant claims that, well before trial, the State extended a plea offer to defendant, the terms of which were as follows. In exchange for pleading guilty to first-degree aggravated sexual assault, the State would recommend a twenty year term of imprisonment, subject to an eighty-five percent period of parole ineligibility, and dismiss the remaining charges.2 Defendant claims his attorney discouraged him from accepting the offer, advising he should hold out for a better plea arrangement. Swayed by his attorney's advice, defendant rejected the plea offer. Defendant alleges that, after the jury was selected, the State offered him "an open plea of twenty years to life." When his attorney convinced defendant he could persuade the court to sentence defendant to a fifteen-year term of imprisonment, 2 In addition to the charge to which he ultimately pled, defendant had been charged with three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); five counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14- 2(a)(2); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); one count of second-degree endangering the welfare of a child; and two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). 3 A-0139-16T1 defendant decided to accept the open plea. Defendant was then sentenced to a seventy-four year term of imprisonment, which was later reduced to a fifty-year term. Defendant claims that had he known at the time the first plea offer was tendered that he was exposed to a sentence of greater than twenty years, he would have accepted such offer. He also asserts his attorney failed to warn him that, with six convictions on his record, he was eligible for a discretionary extended term. In his petitions, defendant acknowledges his initial PCR petition was filed more than five years after the entry of the judgment of conviction and, thus, was untimely. See Rule 3:22- 12(a)(1). He claimed his delay in filing the petition was due to excusable neglect, and that enforcement of the time bar would result in a fundamental injustice. See Rule 3:22-12(a)(1)(A). Defendant admits that when the Supreme Court denied his petition for certification in October 2012, he knew he had to file a PCR petition before August 1, 2013. In preparation for that filing, in November 2012, defendant contacted an organization that provides legal assistance to prisoners. This entity assisted defendant by providing a paralegal to prepare his PCR petition, but the paralegal was fired in April 2013. Another paralegal took over the file, but he was transferred to another prison shortly thereafter. 4 A-0139-16T1 Defendant was then placed in administrative segregation for violating a prohibited act. While in segregation, he was advised by another inmate "not trained in law" that defendant had five years from the time he was re-sentenced to file a PCR petition. Thus, defendant assumed he had until October 22, 2015 to file his petition. Defendant also claims it took a year to retrieve his paperwork from the last paralegal who had been helping him, why his petition was filed out of time. After reviewing the parties' pleadings, the PCR court ordered an evidentiary hearing. The witnesses at the hearing were defendant, his attorney (attorney), and the assistant prosecutor (prosecutor) who handled this matter for the State. On the question whether the petition was time-barred, defendant's testimony was essentially consistent with what he stated in his verified petitions. The court found the petition time-barred, noting neither inaccurate legal advice about nor ignorance of the deadline within which to file a petition is excusable neglect. Further, the court noted defendant failed to articulate how the failure to have certain paperwork, the contents of which defendant failed to divulge, impaired his ability to file a timely petition. In addition, the court noted defendant was not asserting in his petitions that he was in fact 5 A-0139-16T1 innocent of the charge to which he pled or challenging his sentence. The court also addressed the substantive issues. Before recounting the material testimony the PCR court found credible on such issues, we provide some background facts. Defendant impregnated the victim and she terminated the pregnancy. Some of the fetal tissue was preserved by the staff at the medical facility at which the termination took place, and the State ultimately had the tissue tested to determine if defendant was the father of the fetus. Before it made its first plea offer, the State provided defendant with a report from a "DNA expert." The report was not included in the record, but we surmise from other documents provided that the expert claimed sufficient evidence existed to conclude defendant was the father of the fetus. However, the attorney noted the expert's opinion was not stated to be within a reasonable degree of medical probability. The attorney deemed this omission significant because, without sufficient medical or scientific evidence to link the fetus to defendant, proof defendant sexually assaulted his daughter was going to be limited to the credibility of her testimony. To preclude the State from having sufficient time to correct the deficiency in the expert's report before trial, the attorney 6 A-0139-16T1 purposely did not bring the subject flaw to the State's attention until the parties appeared for jury selection. When the parties ultimately appeared to pick a jury, the attorney informed the court defendant was objecting to the admission of the expert's testimony because of the subject flaw in his opinion. However, jury selection was postponed for a few days and, in the interim, the State obtained an amended expert's report correcting the deficiency in the expert's opinion. After the jury was selected but before opening statements, the attorney moved to bar the expert's testimony. The attorney argued it was unfair to allow the expert to testify to any opinion that first appeared in the expert's amended report because the report was served on the eve of trial. The court rejected defendant's argument. The attorney then challenged the chain of custody of the fetal tissue, which was used to establish the expert's opinion defendant was the father of the fetus. After a hearing, the court found no flaw existed in the chain of custody. Immediately thereafter the parties engaged in plea negotiations and defendant pled guilty that day. The material evidence the PCR court found credible at the evidentiary hearing was as follows. Before the matter was listed for trial, the State made a plea offer that defendant 7 A-0139-16T1 plead to first-degree aggravated sexual assault, and the State would recommend a twenty year term of imprisonment, with an eighty-five percent ineligibility period, and dismiss the remaining charges. The attorney advised defendant to reject the offer because of the flaw in the DNA expert's opinion, and further informed defendant that if he declined the offer, the attorney would attempt to negotiate a prison term of fifteen to twenty years. The attorney also told defendant he wanted to challenge the chain of custody of the fetal tissue. Defendant rejected the offer, which was subsequently withdrawn. After a jury was selected, the court rejected defendant's motion to bar the DNA expert's testimony, as well as his challenge to the chain of custody of the fetal tissue. The State then made its second offer. That offer was defendant plead to first-degree aggravated assault, but all other terms of the plea deal would be open. Before the attorney discussed this offer with defendant, he and the prosecutor met with the trial judge in chambers. The attorney claimed the court indicated it would sentence defendant to a term of imprisonment between twenty-six and twenty-eight years. The prosecutor asserted the court made no mention of how it intended to sentence defendant. The PCR court did not explicitly resolve who was the more credible. However, 8 A-0139-16T1 the court found the attorney in fact advised defendant he was exposed to an "extreme sentence," but also informed defendant that, based upon the court's comments in chambers, defendant probably would be sentenced to between twenty-six and twenty- eight years in prison. The PCR court noted that, during the plea hearing but before defendant pled guilty, the attorney, the prosecutor, and the court stated defendant would be exposed to a term of imprisonment from twenty years to life by accepting the State's offer. Moreover, defendant admitted he understood he was exposed to a sentence of twenty years to life if he pled guilty. The court found credible defendant's concession at the PCR hearing that the attorney did in fact inform him before he pled guilty that his sentence could be twenty years to life in prison and, further, the attorney did not promise any particular result. In addition, the court noted defendant signed a notice informing him he was subject to an extended term and defendant acknowledged he had six previous convictions before he pled guilty. The PCR court determined defendant knew before he pled to the open plea that his sentencing exposure was twenty years to life. Thus, even if his attorney told him the court indicated in chambers it would impose a prison term of only twenty-six to 9 A-0139-16T1 twenty-eight years, defendant was aware the court could impose a far greater term of imprisonment. The court ultimately concluded: [I]n the context of an open plea, where no result was promised or guaranteed, and where the – where the defendant was told and understood his full sentencing exposure, does not constitute deficient performance as contemplated by Strickland. Accordingly, even if [the attorney] was ineffective in failing to advise the defendant of his sentence exposure under the open plea, and I find that that's not, in fact, the case, defendant failed to prove that he was prejudiced by this deficiency because the court adequately informed the defendant of his exposure at the plea hearing. On April 15, 2016, the court entered an order denying defendant his request for post-conviction relief. II On appeal, defendant presents the following arguments for our consideration. POINT I – THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12(a)(1). POINT II – THE TRIAL COURT ERRED IN DENYNG THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF FOLLOWING THE EVIDENTIARY HEARING SINCE THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION ARISING OUT OF HIS GUILTY PLEA, WHILE THE FACTUAL FINDINGS MADE BY THE TRIAL COURT UNDERLYING ITS 10 A-0139-16T1 DENIAL WERE NOT SUPPORTED BY THE RECORD ESTABLISHED AT THE HEARING. A Rule 3:22-12(a)(1) states a defendant's first petition for PCR shall be filed no more than five years after the entry of the judgment of conviction. However, a court may relax the five-year time bar "if the petition alleges facts showing the filing was untimely due to defendant's excusable neglect and there is a reasonable probability that, if defendant's factual assertions were found to be true, enforcement of the time bar would result in a fundamental injustice." See Rule 3:22- 12(a)(1)(A). Here, the judgment of conviction was entered on August 1, 2008 and defendant's first and only petition for PCR was filed on October 15, 2014. Therefore, his petition is procedurally barred as untimely unless the delay was due to defendant's excusable neglect and there is a reasonable probability enforcement of the time-bar would result in a fundamental injustice. Ibid. "The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). If the petitioner fails to allege sufficient 11 A-0139-16T1 facts, this rule bars the claim. State v. Mitchell, 126 N.J. 565, 576 (1992). A defendant's lack of sophistication in the law does not relax the time-bar. State v. Murray, 162 N.J. 240, 246 (2000). Defendant fails to provide any facts to show his failure to timely file his petition was due to excusable neglect. Defendant admitted he knew well in advance of the five-year deadline he had to file a petition before August 1, 2013. Defendant claims that after the two paralegals ceased working on his file, another inmate told him he had five years from the date of his resentencing, which was on October 22, 2010, to file a PCR. However, defendant does not provide any plausible reason why his reliance on the inmate's advice should be deemed excusable. Defendant also claims he needed to retrieve his paperwork from the second paralegal, but defendant does not provide any reason why that was necessary in order for him to fill out and file a timely petition. As the PCR court pointed out, the forms for self-represented litigants were simple and easy to complete. Defendant asserts for the first time on appeal that neither the court that originally sentenced him, his trial attorney, nor appellate counsel informed him of the time restriction within which to file a PCR petition. However, because this issue was 12 A-0139-16T1 not raised before the PCR court, "[g]enerally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). Notwithstanding, for defendant's benefit we observe that when defendant was originally sentenced, the court was not required to inform defendants of the time within which a PCR petition had to be filed, as presently required by Rule 3:21- 4(h). More important, even if the court had an obligation to advise defendant of the time limitations in Rule 3:22-12(a)(1), the result would have been the same because defendant knew he was required to file his petition before August 1, 2013. Therefore, the PCR court correctly found defendant failed to show there existed excusable neglect for failing to timely file his PCR petition. Defendant contends enforcement of the time bar would result in a fundamental injustice because he received ineffective assistance from the attorney. Although the failure to timely file a petition in the absence of excusable neglect obviates the necessity of considering this issue, see Rule 3:22-12(a)(1)(A), for the sake of completeness we note, even if there were excusable neglect, for the reasons set forth below defendant fails to show the attorney rendered ineffective assistance. 13 A-0139-16T1 B We turn to defendant's second argument point, which contends the court's factual findings are not supported by the record, and the attorney failed to render effective assistance. We readily dispense with the former contention by noting the PCR court's findings are amply supported by the evidence adduced during the evidentiary hearing. Before addressing the contention counsel was ineffective, we review the law governing our review. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet a two-prong test. The first prong is counsel's performance was deficient and he made errors so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution. Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. The second prong is the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional 14 A-0139-16T1 errors, the result of the proceeding would have been different." Ibid. If a defendant has pled guilty, the second prong a defendant must fulfill is "'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty but would have insisted on going to trial.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). "[J]udicial scrutiny of the attorney's performance must be highly deferential." State v. Chung, 210 N.J. Super. 427, 434 (App. Div. 1986). Further, [e]very effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time. Id. at 689, 104 S. Ct. at 2065. Furthermore, an appellate court reviewing counsel's performance must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 690, 104 S. Ct. at 2066. [Ibid.] Having reviewed the record and the applicable legal principles, we are satisfied defendant failed to show the attorney was ineffective. In his brief, defendant clarifies his allegations of 15 A-0139-16T1 ineffectiveness are the attorney: (1) failed to appreciate the strength of the State's case when it made its first plea offer and advise defendant to accept this plea offer; (2) advised him to reject "a 20 year plea offer and instead enter into an 'open' plea subjecting him to a sentence between 20 years and life imprisonment, further advising him he could obtain a much more beneficial sentence under such an 'open' plea;" and (3) failed to advise him of the adverse ramifications of entering into an open plea. We are not persuaded by any of these arguments. There is no evidence the attorney failed to appreciate the strength of the State's case when the State extended its first plea offer, or that he was ineffective for failing to recommend defendant accept this offer. When the first offer was made, the posture of the case was very different from what it was by the time the second offer was extended. When the second offer was made, the State's case was far stronger; the State had just come into possession of evidence that established the causal link between the fetus and defendant, conclusively showing defendant had vaginally penetrated his daughter. The State did not have that evidence at the time the first offer was extended. At that earlier point in the litigation, the State's case was dependent upon whether the jury would find 16 A-0139-16T1 the victim credible, a form of proof far less potent than what the amended expert's report provided. At that point, defendant had appreciably more bargaining power to negotiate a plea agreement. Mindful of the weaknesses in the State's case, the attorney advised defendant to reject the initial plea offer so he could attempt to secure a more favorable one. Defendant has not provided any persuasive reason why counsel was ineffective for recommending this course of action at that time. There is no credible evidence to support defendant's claim the attorney advised him to reject "a 20 year plea offer and instead enter into an 'open' plea subjecting him to a sentence between 20 years and life imprisonment, [and] further advis[ed] him he could obtain a much more beneficial sentence under such an 'open' plea." The attorney never advised defendant to reject a twenty-year plea offer in order to accept an open plea in its stead. At the time the attorney advised defendant to accept the open plea, the offer to plea to the twenty-year term of imprisonment no longer existed. The two plea offers were made at two very different points during the prosecution of this case. Similarly, there is no credible evidence the attorney failed to advise defendant of the adverse ramifications of entering into the open plea. In fact, there is considerable 17 A-0139-16T1 evidence the attorney advised defendant of the sentencing consequences of the open plea. Finally, to the extent we have not addressed any of defendant's arguments, it is because they were without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 18 A-0139-16T1

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Docket No.: a1432-15
Decided: 2017-11-09
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the WALLACE BROS., INC v. EAST BRUNSWICK BOARD OF EDUCATION
Status: unpublished
Summary:
PER CURIAM Defendant East Brunswick Board of Education appeals from the April 24, 2015 order granting summary judgment on the unpaid portion of a Contract to plaintiff Wallace Bros. Inc.1 The Board contracted with Wallace to provide general construction at the New Memorial School in East Brunswick (project). The total value of the contract was $18,233,000, plus any additional costs for unanticipated work. The Board paid Wallace $19,713,664.11. Although the school had been in use for two years, the Board did not make the last payment of $366,130.26. Wallace claimed the Board did not deliver a "final" punch list indicating additional work to be done until after the litigation ensued. The Board claims several punch lists were provided going as far back as April 2013. The parties dispute whether these punch lists were provided to Wallace. The trial judge determined that the Board waited too long to register dissatisfaction with the completion of the project, and then belatedly provided a final punch list that was maintenance- related and substantively separate from the contract. We reverse the grant of summary judgment because material facts are in dispute and the Board is entitled to a trial on the issue of whether the 1 Although the Board's appeal originally sought review of two orders, the appeal of the October 23, 2015 order granting delay damages was resolved by way of a stipulation of dismissal. 2 A-1432-15T3 contract was fully completed and the last payment due in its entirety.2 The Board's architect signed two Certificates of Substantial Completion, one on November 9, 2012 and the second on October 3, 2013, both of which struck out the following language: A list of items to be completed or corrected is attached hereto. The failure to include any items on such list does not alter the responsibility of the Contractor to complete all Work in accordance with Contract Documents. The meaning of the striking of this language is not clear. The architect certified that "the stricken language merely indicated, in my opinion, that the punch lists were not attached thereto." Wallace contends the architect's signature on the documents with the language stricken speaks for itself in indicating the project was completed. The Board argues that the project was not completed in light of further punch lists. The Board contends that it served Wallace 2 Wallace argues that we should not consider the Board's arguments not raised before the motion court. To the extent that these arguments constitute "issues" not raised below, we choose to consider them in the interest of justice, given that public funds are at stake. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (noting that although appellate courts ordinarily should not reach issues that were not presented below, an exception applies where the issues significantly affect the public interest). 3 A-1432-15T3 a punch list in April 2013, well before litigation ensued in March 2014. The Board solicited price proposals from other contractors to repair and complete Wallace's work. Further, the Board's opposition to the last payment reflected about $56,000 of back charges3 and approximately $170,000 in liens on the project. The contract requires Wallace to refund the lien amounts to the Board. Although the evidence was conflicting, the motion judge determined that the Board did not submit a "final punch list" to Wallace until January 2015, and "[f]airness dictates that this punch list should be rejected as it was not submitted with the Certificates of Substantial Completion and the Project has been occupied for two years." The contract provides in paragraph 9.9.3 that "Partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents." We review a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46-2(c). Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the 3 A back charge is a "charge against a contract in the form of a credit change order to a contractor for the cost of having others perform portions of their contract." Back charge, DictionaryofConstruction.com, http://www.dictionaryofconstruction.com/definition/backcharge.ht ml (last visited Oct. 24, 2017). 4 A-1432-15T3 competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c). The Board argues that the motion judge disregarded material disputes of fact. First, it argues that required "closeout documentation" remains missing, despite a contractual obligation to provide these documents prior to payment on the contract balance. The Board describes these documents as the proof of payment of all vendors, proof of insurance, subcontractor waivers, recorded drawings, proof of tests and inspections, and the maintenance package containing manufacturers' warranties. The motion judge, referring to the Board, stated: When you let so much time go by and you're holding up their money and then you say, oh you got to do all these things and there's no way of telling – most of them look like maintenance things that would occur in the ordinary course of using the premises, but basically it sounds like you're holding their money hostage to make them come and do repairs that they would not have been called upon to do. A "punch list status report" dated April 2013 lists close to three hundred items that had yet to be completed. The list reflects that it was revised in August 2013, October 2014 and November 2014, when some of the items were crossed off. The 5 A-1432-15T3 architect refers to this list as the "Final Punch List." Examples from the list that were not crossed off include: caulking all exposed steel, removing "stub conduit," touching up paint on a door frame, repairing a damaged wall, installing the vinyl base at a casework counter, removing paint from an entry frame, installing a "backer rod," patching bolts at a side-court basket, sanding and painting "hose bibbs," replacing crumbling grout, and installing concrete floor sealer. According to the November 2014 punch list, $163,890 worth of work remained. Also still outstanding was the Board architect's issuance of a "final Certificate for Payment stating that . . . the Work has been completed in accordance with . . . the Contract [and] the entire balance . . . is due and payable" as required in paragraph 9.10.1 of the contract. The contract requires "strict and entire conformity" by Wallace. A trial court's legal interpretation of the meaning of a contract is subject to de novo appellate review. Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998). In Dunkin' Donuts of Am., Inc. v. Middleton Donut Corp., 100 N.J. 166 (1985), the trial court "fashioned its own remedy on the basis of equitable considerations," believing that the contract would result in an "inappropriate windfall." Ibid. 6 A-1432-15T3 Our Supreme Court reversed, stating: "Equitable relief cannot be claimed because a contract is oppressive, improvident, or unprofitable, or because it produces hardship." Id. at 183- 84. The contract does not require that the last payment be made within a set period of time. Material factual disputes remain regarding whether Wallace fully completed the contract. Reversed and remanded for further proceedings. We do not retain jurisdiction. 7 A-1432-15T3

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Docket No.: a2602-15a281
Decided: 2017-11-09
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3 IN THE MATTER OF NEW JERSEY SPORT
Status: unpublished
Summary:
PER CURIAM On January 14, 2016, the New Jersey Sports and Exposition Authority (Authority) adopted Resolution 2016-70 (2016 Resolution), which certified the 2016 meadowlands adjustment payments for constituent municipalities, pursuant to the Hackensack Meadowlands Agency Consolidation Act (Act), N.J.S.A. 10A-1 to -68. The Town of Kearny and the Borough of North Arlington appeal from the 2016 Resolution. Thereafter, we granted the Authority's motion to consolidate the appeals, and permitted the Borough of Ridgefield to intervene.1 For the reasons that follow, we conclude that Ridgefield may not challenge its 2015 adjustment payment; the Authority erred by failing to calculate the 2016 adjustment payments in the manner prescribed by N.J.S.A. 5:10A-59(a); and the Authority did not err by including a $1.1 million payment that North Arlington received in 2012 when determining the amount of North Arlington's pre- adjustment payment for 2012 and the adjustment payments for 2015 and 2016. Accordingly, we reverse Resolution 2016-70 and remand for recalculation of the 2016 adjustment payments in accordance with N.J.S.A. 5:10A-59(a). 1 East Rutherford also was granted leave to intervene, but did not file a brief and is no longer participating in the appeal. 2 A-2602-15T4 I. The Hackensack Meadowlands District is comprised of fourteen constituent municipalities, which include Kearny, North Arlington, and Ridgefield. The Act provides in pertinent part for the establishment of an intermunicipal account and requires the Authority to compute the amounts that the constituent municipalities should pay to the account and be paid from the account each year. N.J.S.A. 5:10A—59(a). The Authority then must certify the adjustment payments for each constituent municipality. Ibid. The payments are determined by adding all the payments payable to that municipality from the intermunicipal account for school district service payments, guarantee payments, and apportionment payments, if any, and by subtracting therefrom the obligations of that municipality to the intermunicipal account, as calculated pursuant to [N.J.S.A. 5:10A-53 to -58]. The amount so derived shall be referred to as the meadowlands pre-adjustment payment. For calendar year 2015, the meadowlands adjustment payment shall be the average of the meadowlands pre-adjustment payments for calendar years 2012, 2013, and 2014. For calendar year 2016 and subsequent years, the meadowlands adjustment payment shall be the average of the meadowlands pre-adjustment payments for the prior three calendar years. [Ibid. (emphasis added).] The adjustment payments are funded primarily through the Meadowlands Regional Hotel Use Assessment, which is imposed 3 A-2602-15T4 pursuant to N.J.S.A. 5:10A-85(a). The Act provides that in the event the assessment generates insufficient revenue for the adjustment payments, the State Treasurer must provide the Authority with the funds needed to make up the shortfall. N.J.S.A. 5:10A-85(d). For calendar year 2015, the Authority calculated the adjustment payments by taking the average of each municipality's pre-adjustment payments for 2013, 2014, and 2015. On January 30, 2015, the Authority adopted Resolution 2015-01, certifying the payments due to the constituent municipalities for that calendar year. Based on information received from a constituent municipality, the Authority revised the payments for 2015 and on April 16, 2015, adopted Resolution 2015-12, which certified a revised payment schedule for 2015. The Authority then paid the designated amounts to the municipalities, as required by N.J.S.A. 5:10A-59(b). None of the constituent municipalities filed an appeal challenging the approved payments for 2015. For calendar year 2016, the Authority calculated the adjustment payments using the average of the municipality's pre- adjustment payments for years 2014, 2015, and 2016. The Authority then adopted Resolution 2016-70 certifying the payments for 2016. These appeals followed. 4 A-2602-15T4 On appeal, Kearny, North Arlington, and Ridgefield argue that the Authority erred by calculating the adjustment payments for 2016 because the Authority did not use the average of the pre- adjustment payments for the three prior calendar years, as required by N.J.S.A. 5:10A-59(a). Ridgefield challenges the 2015 adjustment payments for the same reason. In addition, North Arlington argues that the Authority erroneously calculated its 2016 adjustment payment by applying the amount of a payment North Arlington received in 2012 pursuant to a settlement of a tax appeal. II. The Authority argues that Ridgefield is precluded from challenging its 2015 adjustment payment because it failed to file a timely appeal from the resolutions the Authority adopted in 2015, which approved the adjustment payments for that calendar year. The Authority also argues that the doctrine of laches bars Ridgefield from challenging its 2015 adjustment payment. Rule 2:4-1(b) states that appeals must be taken from final decisions or actions of state administrative agencies within forty-five days after "the date of service of the decision or notice of the action taken." When an appeal is not filed within the time prescribed by the rule, the court lacks jurisdiction to decide the matter on the merits. Alberti v. Civil Serv. Comm'n, 5 A-2602-15T4 41 N.J. 147, 154 (1963); In re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990). The forty-five-day filing requirement applies to an administrative "agency's quasi-judicial decisions that adjudicate the rights of a particular individual." Nw. Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 135 (2001) (quoting Pressler, Current N.J. Court Rules, comment 2 on R. 2:4-1 (2001)). In determining whether an agency's decision is a quasi-judicial act, the key question is "whether the fact finding involves a certain person or persons whose rights will be directly affected." Id. at 136 (quoting Cunningham v. Dep't of Civil Serv., 69 N.J. 13, 22 (1975)). The Authority's 2015 resolutions are quasi-judicial acts because those resolutions represent factual determinations pertaining to the adjustment payments due to the District's constituent municipalities in 2015. Because Ridgefield did not file a timely appeal from the Authority's 2015 resolutions, it may not challenge its adjustment payment, which was authorized by those actions. In view of our decision, we need not address the Authority's argument that the laches doctrine also precludes Ridgefield from challenging the 2015 adjustment payment. 6 A-2602-15T4 III. Kearny, North Arlington, and Ridgefield argue that the Authority erred in calculating their 2016 adjustment payments. These municipalities argue that the Authority erroneously based the payments on the average of each municipality's pre-adjustment payments for 2014, 2015, and 2016, rather than the pre-adjustment payments for 2013, 2014, and 2015, as expressly required by N.J.S.A. 5:10A-59(a). The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013). An agency's decision will not be reversed unless it is arbitrary, capricious, or unreasonable. Ibid. (citing In re Petition for Rulemaking, N.J.A.C. 10:82-1.2 & 10:85-4.1, 117 N.J. 311, 325 (1989)). Therefore, the court's role in reviewing an agency's decision is limited to three inquiries: (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 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. [Id. at 385-86 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).] 7 A-2602-15T4 Furthermore, we are "not bound by the agency's legal opinions." A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div.) (quoting Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001)), certif. denied, 200 N.J. 210 (2009). The construction of a statute is "a purely legal issue [that is] subject to de novo review." Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). Here, the municipalities challenge the Authority's interpretation and application of N.J.S.A. 5:10A-59(a). When the court interprets statutory language, "the goal is to divine and effectuate the Legislature's intent." State v. Shelley, 205 N.J. 320, 323 (2011) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). We begin our inquiry with the language of the statute, giving the words used therein their ordinary and accepted meaning. Ibid. (citing DiProspero, supra, 183 N.J. at 492). If the statutory language is clear and unambiguous, we must "construe and apply the statute as enacted." In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980). N.J.S.A. 5:10A-59(a) states that for calendar year 2015, the adjustment payments "shall be the average of the meadowlands pre- adjustment payments for calendar years 2012, 2013, and 2014." The statute also states that for calendar year 2016 and all subsequent 8 A-2602-15T4 years, "the meadowlands adjustment payment shall be the average of the meadowlands pre-adjustment payments for the prior three calendar years." Ibid. Thus, N.J.S.A. 5:10A-59(a) plainly and unambiguously requires that the 2016 adjustment payments must be based on the average of the pre-adjustment payments for 2013, 2014, and 2015. It is undisputed that for 2016, the Authority based the adjustment payments upon the average of each municipality's pre-adjustment payments for 2014, 2015, and 2016. Therefore, the Authority did not calculate the payment in accordance with N.J.S.A. 5:10A-59(a). The Authority maintains, however, that its calculation of the 2016 adjustment payments was reasonable. According to the Authority, it calculated the 2016 payments in accordance with the prior statutory formula, which required the Authority to base the adjustment payments upon the average of the pre-adjustment payments for three calendar years — the current year and the two prior years. See N.J.S.A. 13:17-74(a).2 The Authority asserts its continued use of the prior statutory formula is entitled to deference. We disagree. 2 N.J.S.A. 5:10A-2(j) provides that in the event there is any conflict between the Act and L. 1968, c. 404 (codified at N.J.S.A. 13:17-1 to -86), the provisions of the Act will control. 9 A-2602-15T4 The Authority's action is inconsistent with the plain language of N.J.S.A. 5:10A-59(a). Although the Authority may have made its calculations based on the former statutory formula, the Act established a new formula and required that it be applied beginning in 2015. Ibid. The Authority was required to apply the new formula in determining the adjustment payments for 2016. It erred by failing to do so. The Authority further argues that if the court determines that the 2016 adjustment payments should have been calculated based on the average of the pre-adjustment payments for the three prior calendar years, it should be allowed to address any issues resulting from the erroneous calculation of the 2016 payments, including any underpayments or overpayments, when it calculates the next annual adjustment payments, which now would be in February 2018. We conclude it would be reasonable for the Authority to address these issues when it next calculates the adjustment payments. Accordingly, the 2016 Resolution is reversed and the matter remanded to the Authority to recalculate the 2016 adjustment payments in accordance with N.J.S.A. 5:10A-59(a). Furthermore, the Authority may address any issues arising from the erroneous calculation of the 2016 adjustment payments when it calculates the payments for 2018. 10 A-2602-15T4 IV. In addition to arguing that the Authority erred by basing its 2016 adjustment payment on the basis of the average of the pre- adjustment payments for 2014, 2015, and 2016, North Arlington argues that the Authority erred by including $1.1 million that it received in 2012 pursuant to a settlement of a tax appeal. A constituent municipality's adjustment payment is based in part on the amount that municipality is required to pay into the intermunicipal account. Ibid. The amount payable to the account is based in part upon the increase, if any, in the aggregate true value of taxable real property in the municipality in a comparison year. N.J.S.A. 5:10A-53(f).3 Any payments in lieu of taxes (PILOT) on real property that the municipality has received are taken into account in determining the increase or decrease in the aggregate true value of taxable real property in the municipality. N.J.S.A. 5:10A-53(e). The record shows that in April 2011, the New Jersey Meadowlands Commission (Commission) filed a tax appeal challenging North Arlington's real estate tax assessment upon property that the Commission owned in that municipality. The parties eventually 3 The term "comparison year" is defined as "the second calendar year preceding the adjustment year." N.J.S.A. 5:10A-3. 11 A-2602-15T4 settled the appeal, and the Commission agreed to pay North Arlington $1.1 million. The settlement agreement required North Arlington to execute a PILOT agreement, which states in part that the $1.1 million would be paid to the municipality as a payment in lieu of taxes "for the period from May 2008 through December 31, 2011[,] and in settlement of all future payments in lieu of taxes on the [p]roperty through December 31, 2030[,] or until such time as use of the [p]roperty changes . . . [.]" The PILOT agreement also states that the parties agreed the payment would be made "in satisfaction of all past and future taxes or payments in lieu of taxes on the [p]roperty for the period through December 31, 2030[,] . . . ." It is undisputed that the $1.1 million was paid to North Arlington in 2012. On appeal, North Arlington argues that the Authority erroneously included the $1.1 million it received in 2012 in calculating its pre-adjustment payment for 2012. North Arlington contends that if the Authority had not included the $1.1 million payment in determining that pre-adjustment payment, its adjustment payments for 2015 and 2016 would have been significantly greater. We reject North Arlington's arguments because they are not supported by the plain language of N.J.S.A. 5:10A-53(e). As noted, the statute expressly provides that if a constituent municipality 12 A-2602-15T4 has received in any comparison year "a payment in lieu of real estate taxes on property located within the district," that payment must be taken into account when determining whether there has been an increase or decrease in the aggregate true value of all taxable real property in the municipality. Ibid. As noted, the aggregate true value of all taxable property is part of the calculation that ultimately results in the determination of the municipality's adjustment payment. N.J.S.A. 5:10A-53(b)-(f); N.J.S.A. 5:10A-59(a). The 2012 payment was properly considered in determining North Arlington's pre- adjustment payment for 2012, and therefore properly taken into account in calculating the adjustment payments for 2015 an 2016. North Arlington contends that, at best, the payment it received in 2012 was largely for unpaid real estate taxes and not future tax assessments. It argues that the revenue was not related to any 2012 tax assessments. North Arlington further contends that the Commission labeled the payment a PILOT payment for its "internal purposes." North Arlington therefore maintains that the payment should not have been used in determining its 2012 pre- adjustment payment, or the adjustment payments for 2015 and 2016. We are not persuaded by these arguments. As noted, the PILOT agreement declares the payment to be a PILOT payment, and North Arlington received the payment in 2012. The Authority's decision 13 A-2602-15T4 to take the 2012 payment into account when calculating North Arlington's 2012 pre-adjustment payment was consistent with the plain language of N.J.S.A. 5:10A-53(e) and supported by sufficient credible evidence in the record. Reversed and remanded to the Authority for recalculation of the 2016 adjustment payments in accordance with this opinion. We do not retain jurisdiction. 14 A-2602-15T4

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Docket No.: a3221-14
Decided: 2017-11-09
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. J.Y.D
Status: unpublished
Summary:
PER CURIAM Defendant, J.Y.D. (defendant), appeals from his November 14, 2014 judgment of conviction after pleading guilty to first-degree robbery, N.J.S.A. 2C:15-1, and second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). Defendant argues the family part judge's decision to waive him into adult court was error because the likelihood for rehabilitation outweighed the reasons for the waiver. He further argues his sentence must be vacated as the trial court did not apply the guidelines set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), failed to account for defendant's age and attendant circumstances, and failed to properly weigh the aggravating and mitigating factors. We affirm. We discern the following facts from the record. On June 9, 2010, the victim, a twenty-four year old mother, was returning from work and driving home to Atlantic City. While stopped at a red light, defendant, age fifteen, and an accomplice, R.J., jumped into her car. Defendant entered through the rear passenger door, and R.J. entered through the rear driver's side door and pointed a gun at her saying, "[i]f you want to live you'll do as I say." After defendant instructed the victim to move the car to a more discreet location, R.J. demanded money, but she did not have any. She offered her bank card, cell phone, and eventually, her car. R.J. declined the car. 2 A-3221-14T4 Defendant instructed the victim to again move the car, and asked her if she was going to call the police. Once they were in a darker location, R.J. handed the gun to defendant, who continued to point it at her head. R.J. wanted to "get[] something out of this[,]" and demanded the victim strip and to get on top of him. Defendant then exclaimed, "Fuck this. I'm getting something out of this, too." They forced the victim to have vaginal intercourse with R.J. and perform oral sex on defendant simultaneously. Both defendants ejaculated into her, and she spit defendant's semen onto her sweatshirt. Defendant ordered the victim to drive them to a sub shop. While she was driving, defendant repeatedly asked her if she was going to notify the police. She responded no, and that she was going home to shower. Defendant and R.J. exited the vehicle and "clapped each other up," laughed, and walked down Mississippi Avenue towards Fairmont Avenue. The victim immediately drove to the public safety building and entered the Detective Bureau and reported two males had raped her. An ambulance transported her to the hospital. Police canvassed the area where the incident occurred and recovered video surveillance from a bar showing the two suspects entering the victim's car. A confidential informant helped to identify R.J. and defendant. The victim identified defendant as 3 A-3221-14T4 the male who was who pointed the gun at her head while she performed oral sex on him and vaginal intercourse with R.J. Both were arrested. On June 21, 2010, a juvenile delinquency complaint charged defendant with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(A); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(B); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(B)(4); second-degree conspiracy, N.J.S.A. 2C:5-2(A)(1); first-degree carjacking, N.J.S.A. 2C:15- 2(A)(2); first-degree kidnapping, N.J.S.A. 2C:13-1(B)(1); first- degree robbery, N.J.S.A. 2C:15-1(A)(2); and first-degree aggravated sexual assault, N.J.S.A. 2C:13-1(B)(1). On July 15, 2010, the State moved to waive jurisdiction from the family part to the adult court. On October 6, 2010, the family part judge conducted a waiver hearing. The court heard testimony from Detective Stacey Herrerias, who was present at the time the victim arrived at the public safety building and described the subsequent investigation. Following the detective's testimony, the court made the initial finding that defendant was above the age of fourteen at the time of the offense, and the acts alleged by the victim "fit the allegations or the complaints that [had] been filed." The court found the evidence and testimony proffered supported a finding that probable cause 4 A-3221-14T4 existed as to the crimes of conspiracy, carjacking, kidnapping, robbery, and aggravated sexual assault. Having made the initial findings, the burden shifted to defendant to show the probability of his rehabilitation prior to age nineteen and that potential rehabilitation outweighed the waiver. On November 3, 2011, defendant called Rochelle Andres, Acting Assistant Superintendent and social worker at the Harborfields Detention Center for the New Jersey Juvenile Justice Commission. Andres worked with defendant for more than 500 days at Harborfields. She noted when defendant first arrived, he was "terrible," regularly acting out and causing disruptions to the rest of the class. Andres further testified when kept away from R.J., defendant's conduct generally improved, however, there were still times he caused disruptions. Andres provided the court a letter in support of defendant. Defendant presented Dr. Elliott L. Atkins, Ed.D., who testified defendant could be rehabilitated within the statutory timeframe by the juvenile justice system. After evaluating defendant, Dr. Atkins found him remorseful and genuine. Dr. Atkins also described defendant's chaotic family history and his history of attachment, behavioral, and attention deficit disorders, which heavily attributed to defendant's psychological struggles. Dr. 5 A-3221-14T4 Atkins believed defendant possessed the rehabilitative nature to succeed. The State initially retained Dr. Phillip Witt, Ph.D., but sought the services of another expert, Dr. Louis B. Schlesinger, Ph.D., after Dr. Witt opined defendant was amenable to rehabilitation. Dr. Schlesinger testified after administering his own tests and reviewing defendant's history, that it was his opinion defendant was unable to be rehabilitated within the requisite timeframe. Dr. Schlesinger noted defendant failed to accept the consequences of his actions. Furthermore, Dr. Schlesinger noted that although R.J., not defendant, was the dominant actor in the incident, defendant still participated. On April 13, 2012, the court found, in a separate written opinion, the State met its burden to waive jurisdiction, pursuant to N.J.S.A. 2A:4A-26(a)(1) and (2). The court also found there was a probability defendant could be rehabilitated in accordance with the time requirements of N.J.S.A. 2A:4A-26, but that ultimately his prospects for rehabilitation did not outweigh the reason for waiver. The court considered the testimony as well as defendant's background, noting the improvement in defendant's behavior during the years he lived with his father. The court further noted defendant's two years at Harborfields and increased maturity supported a finding of potential rehabilitation. 6 A-3221-14T4 However, the court considered five factors, outlined in State in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 344-45 (1982), and determined that "clearly, grave offenses were committed[,] . . . [t]he acts perpetrated upon the victim were particularly heinous, and are of the type the legislation and the [c]ourts have advised engender the need for deterrence," and that defendant's actions were deliberate. The Family Part judge granted the State's motion, finding the State met the probable cause threshold to waive jurisdiction and defendant's prospects for rehabilitation did not substantially outweigh the reason for waiver. On May 10, 2012, an Atlantic County grand jury indicted both defendant and R.J.1 The charges against defendant included two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b); second- degree conspiracy, N.J.S.A. 2C:5-2; two counts of first-degree carjacking, N.J.S.A. 2C:15-2(a)(2)&(4); first-degree conspiracy, N.J.S.A. 2C:5-2; two counts of first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy, N.J.S.A. 2C:5-2; four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree conspiracy, N.J.S.A. 2C:5-2; second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); 1 Though defendant and R.J. were both listed on the indictment, both were tried separately, and R.J. is not a party to this appeal. 7 A-3221-14T4 third-degree conspiracy, N.J.S.A. 2C:5-2; and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). On November 22, 2013, defendant pled guilty to first-degree robbery and second-degree sexual assault. As part of the plea agreement, the State recommended an aggregate sentence of eighteen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43- 7.2, which included a ten-year sentence for the first-degree robbery charge and an eight-year consecutive sentence for the second-degree sexual assault charge. On November 14, 2014, defendant, then age nineteen, was sentenced to an aggregate eighteen-year prison term, subject to parole ineligibility under NERA. Defendant was also subject to mandatory parole supervision and Megan's Law consequences. The other charges were dismissed. This appeal followed.2 2 On April 29, 2016, defendant moved to supplement the appellate record to include a videotaped statement made by the victim at the police station on the day following the events in question. By order of June 3, 2016, the motion was deferred to the merit panel. We granted the motion and reviewed the videotape for the sake of completeness. Defendant argues the State manipulated the record by relying on Detective Herrerias' hearsay testimony, rather than the videotape, because the videotape account offers a more reliable and accurate account of the incident. Notably, defendant provides no explanation about when the defense came into possession of the videotape and why it was not part of the record. In particular, defendant provides no explanation about why Detective Herrerias was not cross-examined about any alleged inconsistencies between her testimony and the 8 A-3221-14T4 Defendant raises the following arguments on appeal: POINT I. THE COURT ERRED IN WAIVING J.D. TO ADULT COURT BECAUSE THE PROBABILITY OF HIS REHABILITATION PRIOR TO THE AGE OF NINETEEN SUBSTANTIALLY OUTWEIGHED THE REASONS FOR THE WAIVER. A. Legal Framework. B. The Family Court Failed to Apply Correct Legal Standards Resulting in a Clear Error Judgment. 1. The Family Court Erred by Failing to Provide Any Reasons as to How J.D.'s Waiver Would Deter Crime. 2. The Family Court Incorrectly Analyzed the Gravity of the Crime and Deliberateness Prongs of the Test Established in C.A.H. 3. Application of Proper Legal Principles Indicates that Waiving J.D. to Adult Court is Unnecessary to Specifically Deter Him. 4. Application of Proper Legal Principles Indicates that Subjecting J.D. to the More Severe Sentences in Adult Court is Highly Unlikely to Deter Similarly Situated Individuals. C. J.D.'s Trial Counsel Was Ineffective, Resulting in Prejudice to J.D. POINT II. J.D.'S EIGHTEEN-YEAR SENTENCE MUST BE VACATED AND THE MATTER REMANDED BECAUSE THE COURT FAILED TO APPLY THE YARBOUGH GUIDELINES, FAILED TO CONSIDER J.D.'S AGE-15 AT THE TIME OF THE OFFENSE, AND FAILED TO PROPERLY ASSESS AGGRAVATING AND MITIGATING FACTORS. videotaped statement. More significantly, defendant does not argue, nor do we discern, any errors on the part of either the Family Part judge or the sentencing judge in not considering the videotape. 9 A-3221-14T4 A. The Court Failed To Conduct A Yarbough Analysis Before Imposing Consecutive Sentences. Had It Properly Done So, It Would Have Found That The Factors Set Forth in Yarbough Counsel Against Imposition Of Consecutive Sentences. B. The Court Failed To Consider J.D.'s Age And Attendant Circumstances During Sentencing. C. The Court Failed To Properly Weigh Aggravating and Mitigating Factors. I. We review juvenile waiver cases under an abuse of discretion standard. State in re V.A., 212 N.J. 1, 25-26 (2012). We consider "whether the correct legal standard has been applied, whether inappropriate factors have been considered, and whether the exercise of discretion constituted a 'clear error of judgment' in all of the circumstances." State v. R.G.D., 108 N.J. 1, 15 (1987) (quoting State v. Humphreys, 89 N.J. 4, 13 (1982)); State in Interest of J.F., 446 N.J. Super. 39, 51-52 (App. Div. 2016). Our review requires that "1) findings of fact be grounded in competent, reasonably credible evidence, 2) correct legal principles be applied, and 3) the judicial power to modify a trial court's exercise of discretion will be applied only when there is a clear error of judgment that shocks the judicial conscience." J.F., supra, 446 N.J. Super. at 52. We defer to the family part's expertise, but reverse if "the trial court has erroneously applied 10 A-3221-14T4 the governing principles of law[.]" In re State ex rel. A.D., 212 N.J. 200, 215 (2012); J.F., supra, 446 N.J. Super. at 52. At the time of defendant's crime, N.J.S.A. 2A:4A-26 controlled juvenile waivers.3 See State in Interest of N.H., 226 N.J. 242, 248-49 (2016). The statute provided, in pertinent part, that: On a motion by the prosecutor, a court shall, without the consent of the juvenile, waive jurisdiction over a case . . . if it finds, after hearing, that: (1) The juvenile was 14 years of age or older at the time of the charged delinquent act; and (2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute: (a) Criminal homicide other than death by auto, strict liability for drug induced deaths, pursuant to [N.J.S. 2C:35-9], robbery which would constitute a crime of the first degree, carjacking, aggravated sexual assault, sexual assault, aggravated assault which would constitute a crime of the second degree, kidnapping, aggravated arson, or gang criminality . . . . [N.J.S.A. 2A:4A-26.] If the court finds both elements are met, then it must engage in further analysis: 3 This statute was repealed and replaced by N.J.S.A. 2A:4A-26.1, effective on March 1, 2016. 11 A-3221-14T4 If the juvenile can show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, waiver shall not be granted. . . . [N.J.S.A. 2A:4A-26(e).] When a defendant demonstrates the potential for rehabilitation by age nineteen, "the court must then determine whether the prospects for rehabilitation overcome the need for deterrence in the given case." C.A.H., supra, 89 N.J. at 338-39. Thus, the court balances the defendant's rehabilitation against deterrence of crime. The deterrence concept is twofold: whether the punishment will dissuade the individual offender from committing the criminal acts again and whether the punishment will discourage others from committing similar offenses. Id. at 334- 35. Such analysis must account for the following factors: (1) the commission of a grave offense; (2) the deliberateness of conduct; (3) an older juvenile offender; (4) the offender's past record of infractions; (5) and the offender's background of delinquency and exposure to the juvenile justice system. Id. at 344-45. Here, the court found defendant was fifteen years and seven months old at the time of the alleged offenses and probable cause existed that he committed the alleged offenses. These findings are entitled our deference. 12 A-3221-14T4 The court engaged in the next level of analysis and evaluated the evidence and testimony presented by both parties at the hearings, including expert testimony. The court found there was a probability defendant could be rehabilitated by age nineteen, that defendant's behavior had improved while he was at Harborfields, and there was evidence of increasing maturity. The court then balanced defendant's rehabilitation against deterrence, finding defendant's rehabilitation did not outweigh the reason for the waiver. See ibid. Specifically, the court found grave offenses present as defendant was charged with committing five of ten crimes characterized as waivable offenses pursuant to N.J.S.A. 2A:4A-26(2)(a). Based upon the testimony of Dr. Atkins and Dr. Schlesinger, as well as testimony from the victim, the court found defendant "acted with deliberateness of conduct and purpose with respect to the offenses for which he has been charged." The court found defendant was of at least average intelligence and free will, and although reluctant, acted at his own behest. The third factor, an older juvenile offender, did not apply, since defendant was fifteen at the time of the alleged offenses. As to the fourth factor and fifth factors, the court found defendant's past record showed a negligible record of infractions and some exposure to the juvenile justice system. 13 A-3221-14T4 We reject defendant's assertion that the court evaluated the C.A.H. factors without consideration of how the waiver promotes individual deterrence or general deterrence, and failed to provide a required statement of reasons. In balance, the court found defendant's potential for rehabilitation did not outweigh the reasons for the waiver and deterrence. We cannot say this was an abuse of the court's discretion. Defendant asserts the court incorrectly analyzed the gravity of the crime and deliberateness prongs of C.A.H., supra, 89 N.J. at 344-45, and engaged in "double counting," placing additional emphasis on the elements of the "heinous" crimes committed. He asserts his "conduct was [not] heinous beyond the elements of the crimes themselves," arguing he tried to "extricate himself from the situation" and was less culpable than R.J. The gravity of the crime prong is "perhaps the most obvious and potent factor in the favor of deterrence[.]" C.A.H., supra, 89 N.J. at 345. Here, the court made a finding based on substantial credible evidence there was probable cause to believe defendant pointed a gun at the victim, pressured her not go to the police, and ejaculated into her mouth while she was being raped by R.J. Defendant acted in a manner beyond that required for a conviction on the charged offenses, and imposed excessive violence on the 14 A-3221-14T4 victim. Cf. State v. Carey, 168 N.J. 413, 425-26 (2001); State v. Dunbar, 108 N.J. 80, 96-97 (1987); State v. Noble, 398 N.J. Super. 574, 599 (App. Div. 2008). As to the second prong, defendant contends his acts were not purposeful or deliberate conduct. We disagree. The court found defendant acted with deliberateness, reasoning that he was of average intelligence and free will, agreed to robbing someone, allegedly walked away "high-fiving" his co-conspirator, and there was sufficient evidence in the record to infer defendant knew about the gun. Deliberate conduct is volitional and nonimpulsive behavior. C.A.H., supra, 89 N.J. at 335. Perhaps defendant did not set out with deliberate action to sexually assault the victim, and may have only acted in the moment. However, the record demonstrates defendant knew he and R.J. planned to carjack and rob someone using a gun. He knew or should have known that such actions would result in additional danger. Thus, defendant acted with deliberateness in the inception of his actions. Moreover, the two targeted a vulnerable victim, which shows a degree of planning. Defendant next argues the court erred in waiving him to adult court under the premise of individual deterrence. Defendant argues subjecting him to the more severe sentences in adult court is highly unlikely to deter similarly situated individuals, because 15 A-3221-14T4 juveniles are less likely to consider punishment when making decisions, and general deterrence, divorced from individual deterrence, has insignificant penal value. Both of these arguments are without merit. Defendant emphasizes that juveniles lack maturity, are less likely to consider punishment, and argues the court failed to engage in an analysis of the penal value and deterrence. Defendant provides no support for the first two assertion. Furthermore, when criminal conduct is of "'pressing public' concern," courts "should give 'priority to punishment as a deterrence to others and as an aid to law enforcement.'" State v. Onque, 290 N.J. Super. 578, 586 (App. Div. 1996) (quoting C.A.H., supra, 89 N.J. at 336). Rehabilitation is "more appropriately reserved for cases involving 'relatively minor antisocial conduct of juveniles[,]'" ibid. (quoting C.A.H., supra, 89 N.J. at 337), not "for juveniles who have committed serious offense," when "the range of discretion for courts to balance deterrence and rehabilitation is greatly reduced." Ibid. (quoting State v. Scott, 141 N.J. 457, 472 (1995)). "Protection of the public is not limited to ensuring society's safety or physical security from the offender; rather, deterrence is a relevant factor in its objective of preventing future criminal conduct by both the juvenile and others." R.G.D., supra, 108 N.J. 16 A-3221-14T4 at 7 (citing C.A.H., supra, 89 N.J. at 334). Here, such punishment is aimed at the general population of individuals who commit heinous acts similar to those of the defendant. Defendant did not only commit these crimes, but also appreciated the criminal nature of his actions. II. Defendant argues his consecutive eighteen-year sentence must be vacated because the court did not apply the guidelines set forth in State v. Yarbough, supra.4 Defendant argues the 4 Though there are no statutorily set rules for imposing consecutive sentences, the Court, in Yarbough, adopted six criteria for such situations: (1) there can be no free crimes in a system for which the punishment shall fit the crime; (2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision; (3) some reasons to be considered by the sentencing court should include facts relating to the crimes, . . . including whether or not: (a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely 17 A-3221-14T4 sentencing court did not account for defendant's age and attendant circumstances, and did not properly weigh the aggravating and mitigating factors. Our review of a criminal sentence is governed by the "clear abuse of discretion" standard. State v. Roth, 95 N.J. 334, 363 (1984). We consider whether the sentencing guidelines were violated, whether the aggravating and mitigating factors were determined based upon credible evidence within the record, and whether the sentence shocks the judicial conscience. in time and place as to indicate a single period of aberrant behavior; (d) any of the crimes involved multiple victims; (e) the convictions for which the sentences are to be imposed are numerous; (4) there should be no double counting of aggravating factors; (5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and (6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses. [Yarbough, supra, 100 N.J. at 643-44 (footnotes omitted); see also State v. Zuber, 227 N.J. 422, 429 (2017).] 18 A-3221-14T4 Id. at 364-65. Sentences entered into in accordance with negotiated plea agreements are presumed reasonable. State v. Fuentes, 217 N.J. 57, 70-71 (2014). Defendant contends, under Yarbough, proper application of the required analysis, before imposing consecutive sentences, would have prevented defendant's current sentence. This argument is without merit. Courts "may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." Carey, supra, 168 N.J. at 427-28; see also State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) (holding that concurrent sentences were not mandated even where the crimes were connected by a "unity of specific purpose, . . . were somewhat interdependent of one another," and were both committed in a short time frame), certif. denied, 165 N.J. 492 (2000). Our courts recognize that "there should be no free crimes[.]" Swint, supra, 328 N.J. Super. at 264. Additionally, sentencing courts must provide a separate statement of reasons for imposing consecutive sentences, or risk a remand for resentencing. State v. Miller, 108 N.J. 112, 122 (1987). However, we may affirm a consecutive sentence "where the facts and circumstances leave little doubt as to the propriety of the sentence imposed." State v. Jang, 359 N.J. Super. 85, 97-98 19 A-3221-14T4 (App. Div.), certif. denied, 177 N.J. 492 (2003). Thus, a sentence need not be modified or remanded if it is not "clearly mistaken." Id. at 98 (quoting State v. Kromphold, 162 N.J. 345, 355 (2000)). Here, as in Jang, the sentencing court did not expressly explain why it imposed consecutive sentences. However, defendant has not shown the sentencing court was "clearly mistaken." The attendant "facts and circumstances leave little doubt" about the sentence imposed. Id. at 97-98. The prosecutor provided the context of defendant's crimes and negotiated sentences to the sentencing court. Furthermore, the court reasoned, on the record, that taking into account all the evidence and testimony provided, including the horrid consequences suffered by the victim, the plea agreement was fair to all parties. Finally, and perhaps most importantly, defendant entered into this plea agreement, knowing full well about the consecutive sentences. As such, the sentencing court's rationale is indirectly ascertained, and there is no reason to remand. See Miller, supra, 205 N.J. at 129-30 ("[S]entences can be upheld where . . . [w]e can safely 'discern' the sentencing court's reasoning."). We reject the assertion the court did not consider defendant's age and attendant circumstances, including his background, mental, and emotional development as required by Miller v. Alabama, 567 U.S. 460, 476-77, 132 S. Ct. 2455, 2467, 183 L. Ed. 2d 407, 422 20 A-3221-14T4 (2012). See Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 2026, 176 L. Ed. 2d 825, 842-43 (2010); see also, Roper v. Simmons, 543 U.S. 551, 569-71, 125 S. Ct. 1183, 1195-96, 161 L. Ed. 2d 1, 21-22 (2005). These cases limit the possible sentences imposed upon juveniles, Zuber, supra, 277 N.J. at 438-39, and all dealt with juvenile defendants who had either been sentenced to capital punishment, or under sentencing schemes that require life imprisonment without possibility of parole. Here, defendant was sentenced, pursuant to a plea agreement, to a maximum imprisonment of eighteen years – even less when considering NERA. Moreover, the sentencing court clearly accounted for defendant's age and background, either by notice from the prosecutor or raised in its own reasoning. Finally, defendant argues the sentencing court did not properly weigh the aggravating and mitigating factors. In reviewing such arguments, we affirm if the trial court properly identified and balanced the factors that are supported by competent credible evidence. State v. O'Donnell, 117 N.J. 210, 215-16 (1989). Here, the sentencing judge noted a presumption of imprisonment for the two counts within the purview of the plea agreement. He then found that aggravating factors one, three, and nine, of N.J.S.A. 2C:44-1(a), applied. 21 A-3221-14T4 Defendant contends that the court did not specify the facts supporting aggravating factor one, which considers "the severity of the defendant's crime, 'the single most important factor in the sentencing process,' assessing the degree to which defendant's conduct has threatened the safety of its direct victims and the public." State v. Lawless, 214 N.J. 594, 609 (2013) (internal citations omitted) (quoting State v. Hodge, 95 N.J. 369, 378-79 (1984)). The record reflects the court found the prosecutor's summary credible, and adopted it accordingly. Furthermore, the court again noted the pain and struggle the victim endured. The heinous nature of defendant's crime is apparent in the record. Regarding aggravating factor three, the risk that defendant will commit another offense, the court determined although defendant did not have a prior history of offenses, there was evidence within the record to support re-offending, including defendant's lack of remorse and minimization of his role. The court also found aggravating factor nine, the need for deterrence, existed. In this regard, the court determined that the entire sentence was "ultimately about" deterrence. This entire record, notably the juvenile waiver, supports this finding. Finally, the court found mitigating factor seven existed, as the adverse to defendant's lack of previous criminal activity. The court then determined that "the aggravating factors clearly 22 A-3221-14T4 preponderate[.]" We cannot say the sentence imposed here "shocks the judicial conscience." O'Donnell, supra, 117 N.J. at 216. Finally, defendant claims his trial counsel was ineffective, resulting in prejudice to him. Because defendant's ineffective assistance claim would be more appropriately addressed in a separate post-conviction relief appeal we do not address it here. See State v. Preciose, 129 N.J. 451, 459-60 (1992). Affirmed. 23 A-3221-14T4

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Docket No.: a3483-15
Decided: 2017-11-09
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the PNC BANK, N.A v. DEIDRE GUINE and MR. GUINE her husband
Status: unpublished
Summary:
PER CURIAM Defendant Deidre Guine appeals from a final judgment of foreclosure, arguing she was never served with the amended complaint upon which the judgment was entered, default was never entered on the amended complaint, and plaintiff PNC Bank, N.A. lacked standing. Because the record shows plaintiff had standing based on its merger with the original mortgagee and its possession of the note, defendant was properly served with the amended complaint and default was entered, we affirm. Defendant does not dispute that she borrowed $187,064 from National City Mortgage Co. in October 2002, and executed a note secured by a mortgage on property located in South Amboy. National City merged with plaintiff in 2009. The following year, plaintiff modified defendant's loan. On March 1, 2013, defendant defaulted. Plaintiff filed its foreclosure complaint in December 2013, and the court granted its motion for entry of default ten months later. Defendant subsequently filed a motion to vacate the default. After hearing argument, the court found defendant failed to offer any explanation for her failure to file an answer and rejected her contention that plaintiff lacked standing. The court entered a December 19, 2014 order denying defendant's motion. In March 2015, plaintiff filed an amended complaint alleging defendant's default under the loan modification agreement. Plaintiff served defendant with the amended complaint and summons by regular and certified mail. Defendant failed to file a responsive pleading and on April 27, 2015, default was entered. In May 2015, defendant filed a motion for reconsideration of the court's December 19, 2014 order. The court denied the motion. 2 A-3483-15T1 Plaintiff moved for entry of a final judgment of foreclosure. Defendant opposed the motion, arguing she was deprived of the opportunity to contest plaintiff's allegations. The court advised defendant that her objection to an entry of final judgment was improper because her challenge was not limited to the correctness of plaintiff's certification of the amount due. See R. 4:64-1(d). In January 2016, defendant filed a motion for relief from "all judgments and orders rendered in favor of plaintiff." In a February 19, 2016 order, the motion was denied. The court entered a final judgment of foreclosure ten days later on February 29, 2016. This appeal followed. We have considered each of plaintiff's arguments and they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e). We offer the following additional comments. Defendant contends the final judgment and the orders denying her other motions were entered in error because plaintiff lacked standing and she was not served with either the original or amended complaint. We find no merit in either contention. The record shows plaintiff has standing for two reasons. First, plaintiff possessed the note when the complaint was filed. See Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011) (finding plaintiff's possession of the 3 A-3483-15T1 note at the time the complaint is filed is sufficient to confer standing in a foreclosure action). Second, plaintiff has standing because it is "deemed to be the same corporation" as the original mortgagee by virtue of National City's 2009 merger with plaintiff. 12 U.S.C.A. § 215(e). We also find no merit in defendant's assertion that she was not properly served with either the original complaint or the amended complaint and that, as a result, the court erred in denying her motions and entering final judgment. Most simply stated, the record shows defendant was served in both instances in accordance with the Rules of Court, and she fails to demonstrate otherwise. Defendant also claims the court erred because default was not entered based on her failure to respond to the amended complaint. The argument is contradicted by the record, which shows defendant was served with the amended complaint and failed to file a responsive pleading, and plaintiff filed a notice of default on April 27, 2015. Further, as defendant admitted in the certification supporting her January 2016 motion, the court entered default on April 27, 2015, based on her failure to respond to the amended complaint. See R. 1:6-8, R. 4:43-1 and R. 4:64- 1(c). Affirmed. 4 A-3483-15T1

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Docket No.: a3649-15
Decided: 2017-11-09
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. RAMON RIVERA-FIGUEROA
Status: unpublished
Summary:
PER CURIAM Defendant Ramon Rivera-Figueroa appeals from the denial of his petition for post-conviction relief (PCR), contending he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial judge correctly determined the evidence insufficient to sustain defendant's burden, we affirm. Following a robbery committed with a co-defendant in which the victim was struck in the head with a gun and stabbed several times with a screwdriver, a grand jury indicted defendant on charges of first-degree robbery, N.J.S.A. 2C:15-1; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:58-4; second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); fourth-degree prohibited devices, N.J.S.A. 2C:39-3f; second-degree conspiracy, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35- 10a(1). Defendant pled guilty to first-degree robbery in exchange for the State's agreement to recommend a sentence in the second- degree range, subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), 2 A-3649-15T4 N.J.S.A. 2C:43-7.2, and to dismiss the remaining charges. Judge Pincus took defendant's plea and subsequently sentenced him to a seven-year NERA term. Defendant appealed his sentence, which we reviewed on a sentencing calendar, R. 2:9-11, and affirmed. In his petition for post-conviction relief, defendant claimed his plea counsel misled him as to his sentence exposure by telling him "because of [his] lack of a prior record and because of the four young children that [he] support[ed], that the mitigating factors would be found in [his] favor," and he "would be receiving a five year state prison sentence." Based on his counsel's advice, defendant claimed he understood his "open" plea would "allow the Judge to sentence [him] to five years in prison, despite the State's objection." He further claimed his counsel was ineffective for failing to investigate and consider all defenses and by failing to argue all mitigating factors at sentencing. After hearing argument by assigned counsel, Judge Pincus issued a comprehensive written opinion denying the petition on the basis that defendant had failed to establish a prima facie claim for relief. State v. Preciose, 129 N.J. 451, 462-64 (1992). The judge noted defendant had represented at the plea hearing that he understood the plea agreement and the consequences of his "open" plea. She nevertheless reviewed the 3 A-3649-15T4 plea forms with defendant and advised him that he "would be sentenced in the second-degree range of five to ten years subject to NERA instead of facing the maximum sentence of twenty years subject to NERA for a first-degree charge." She found "no suggestion by Petitioner that he expected to receive a sentence of only five years subject to NERA" and "nothing to suggest that trial counsel did not properly advise Petitioner of the plea agreement and potential sentencing consequences as a result of the plea agreement." As to defendant's claim that his counsel failed to argue all mitigating factors, the court found trial counsel "strongly advocated for mitigating factors" and submitted "a detailed sentencing memorandum . . . in which [he] argued for the lowest sentence available in the second-degree range, five years subject to NERA." The judge made clear she would not have found the mitigating factors defendant claimed his trial counsel should have argued, and she dismissed his claim that counsel had failed to investigate defenses as a bald assertion unsupported by any certification attesting to the facts such investigation would have revealed. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999), certif. denied, 162 N.J. 199 (1999); see also State v. Jones, 219 N.J. 298, 311-12 (2014). On appeal, defendant presents the following arguments: 4 A-3649-15T4 POINT I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE THE PCR COURT'S FINDINGS, WHICH WERE BASED ON THE PLEA VOIR DIRE, THE PRESUMPTION OF TRIAL COUNSEL COMPETENCY, AND THE FAVORABLE PLEA BARGAIN, WERE INCONSISTENT WITH PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL STANDARDS. POINT II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. We reject those arguments as without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Pincus's February 19, 2016 cogent and well-reasoned written opinion. Affirmed. 5 A-3649-15T4

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Docket No.: a3805-15
Decided: 2017-11-09
Caption: D.M. v. K.M.
Status: unpublished
Summary:
PER CURIAM Defendant appeals from the February 23, 2016 Family Part order denying reconsideration of the court's October 8, 2014 and December 16, 2014 orders.1 The October 8, 2014 order dismissed the remand of defendant's motion seeking college contribution from plaintiff. The December 16, 2014 order granted plaintiff the tax exemption for both children and terminated child support retroactively to May 2, 2014. We affirm. In December 2010, plaintiff and defendant divorced after seventeen years of marriage. They have two children, a daughter born in 1992 and a son born in 1996. The parties signed a property settlement agreement (PSA), which the court incorporated into their final judgment of divorce. The PSA provided the parties would address the issue of contribution toward college expenses at the time their children entered college, based on the factors set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982). The PSA also 1 While defendant's notice of appeal lists all three orders, only the February 23, 2016 order denying reconsideration properly appears before us. Defendant filed her notice of appeal and motion for leave to appeal out of time on May 9, 2016 seeking to appeal all three orders. Ninety-two days expired between the October 8, 2014 order and defendant's motion for reconsideration. Twenty- three days expired between the December 16, 2014 order and defendant's motion for reconsideration. The time for appeal tolled while the reconsideration motion remained pending. The trial court dismissed the reconsideration motion on February 23, 2016, but defendant did not file her notice of appeal until May 9, 2016 — seventy-five days later. We granted defendant's leave to appeal out of time for the February 23, 2016 order only. Thus, defendant failed to timely appeal from the October 8, 2014 and December 16, 2014 orders. See R. 2:4-1; see also R. 2:4-3; see also R. 2:4- 4(a). Accordingly, we limit our review to the February 23, 2016 order denying reconsideration. 2 A-3805-15T1 required plaintiff to pay $100 per week in child support and allowed each party to claim a tax exemption for one child. Plaintiff owned several businesses during the marriage. Defendant alleges plaintiff issued the parties' children payroll checks from one of his businesses and deposited that money into a college fund for the children. Defendant further alleges plaintiff actually used the college fund containing the children's money rather than his own money to pay the college expenses. When the parties' daughter started college, defendant paid the first three semesters, then filed a motion requesting reimbursement from plaintiff and contribution for future college expenses. The trial court dismissed this motion and defendant appealed. On appeal, we found the trial court improperly denied college contribution based solely on the fact that defendant requested reimbursement after she paid the expenses. D.M. v. K.M., No. A-3301-12 (App. Div. May 23, 2014) (slip op. at 8). We therefore reversed and remanded to the trial court to perform a full Newburgh analysis. Ibid. On remand, the trial court dismissed defendant's motion after she refused to testify at a plenary hearing scheduled to gather evidence relating to the Newburgh factors. In addition, the trial court ordered the termination of child support and granted plaintiff the right to claim the tax exemptions for both children 3 A-3805-15T1 after plaintiff agreed to pay all college expenses for both children. On this appeal, defendant argues the trial court erred in considering the children's money from the college fund as plaintiff's contribution, and therefore erred in terminating child support and granting plaintiff the tax exemptions for both children. When a trial court denies a party's motion for reconsideration, we overturn the denial only in the event the trial court abused its discretion. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997) (citing Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996)). In determining whether such an abuse has taken place, a reviewing court should be mindful that a party should not utilize reconsideration just because of "dissatisfaction with a decision of the [c]ourt." Capital Fin. Co. of Delaware Valley v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)), certif. denied, 195 N.J. 521 (2008). Courts should only grant reconsideration when "either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." Fusco v. Bd. of Educ. of Newark, 4 A-3805-15T1 349 N.J. Super. 455, 462 (App. Div.) (quoting D'Atria, supra, 242 N.J. Super. at 401), certif. denied, 174 N.J. 544 (2002); see also R. 4:49-2. Trial courts should grant motions for reconsideration "only under very narrow circumstances." Ibid. The trial court dismissed the motion for reconsideration because defendant filed the motion at least one day late, even accepting defendant's contention that she did not receive the underlying orders until December 18, 2014. The court also noted defendant failed to identify any information that the court failed to consider in its original decision. We agree with the trial court's conclusion that defendant filed her motion for reconsideration late. See R. 4:49-2. In addition, even if the trial court had decided the motion on the merits, we conclude the ultimate outcome would have been the same, as defendant failed to present any valid basis for the trial court to grant reconsideration in her favor. Before us, defendant argues the trial court "made an egregious error . . . by ruling the payroll [checks] issued to the parties' daughter belonged to the [p]laintiff." Defendant alleges plaintiff deposited the children's payroll checks into a college fund in his name, and therefore the college fund belongs to the children rather than plaintiff. However, the record indicates the 5 A-3805-15T1 parties settled this issue as part of the PSA, which distributed the college fund to plaintiff. The trial court denies taking any position on the payroll checks issued to the children during a September 30, 2014 hearing. The trial court scheduled the September 30, 2014 hearing to allow the parties to present evidence regarding their respective contributions, the children's contributions, and the other Newburgh factors. However, when defendant refused to testify at that hearing, she deprived the court of the ability to garner the evidence necessary to determine the Newburgh factors, and then address the issue of contribution for college expenses. As a result, the trial court dismissed defendant's motion. Defendant further argues the trial court based its decision to terminate child support and grant plaintiff the tax exemptions for both children on the determination that the college fund belonged to plaintiff. However, we note the trial court's December 16, 2014 order terminating child support and granting plaintiff the tax exemptions for both children explicitly references plaintiff's agreement to pay the remainder of his daughter's college expenses. Plaintiff argues the PSA distributed the college fund to him, therefore the parties decided the issue of who owned the college fund in 2010 when the parties divorced. We agree. While the PSA 6 A-3805-15T1 does not specifically address the college fund by name, it does state that each party shall "retain his or her own personal bank accounts . . . as their respective separate property." It also states any asset not specifically set forth in the agreement shall remain the property of that party. Defendant asserts the college fund was not a marital asset that could have been distributed in the PSA. However, defendant identifies account 33-xxxxxx-7 as the college fund, and an equitable distribution summary she provided includes that account number. The summary states each party was entitled to half of the $42,230 in account 33-xxxxxx-7, and distributed the entire account to plaintiff. The record clearly demonstrates the parties previously decided the issue of ownership of the college fund as part of their divorce seven years ago. In addition, defendant argues the trial court failed to consider the tax issues regarding the children's college fund and payroll checks. However, in addressing the motion for reconsideration, the trial judge specifically instructed plaintiff to submit evidence that defendant knew of the tax issues prior to the September 30, 2014 hearing and allowed defendant to respond. After reviewing these submissions, the judge determined this was not a new issue as the court previously considered it; therefore, reconsideration was inappropriate on this basis. 7 A-3805-15T1 Defendant failed to show the trial court committed an egregious error or that the trial court failed to consider material evidence. We conclude the trial court did not abuse its discretion in denying reconsideration. Affirm. 8 A-3805-15T1

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Docket No.: a3855-15
Decided: 2017-11-09
Caption: STATE OF NEW JERSEY v. ANGELA L. OTEY
Status: unpublished
Summary:
PER CURIAM A grand jury indicted defendant for second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count two); second-degree burglary, N.J.S.A. 2C:18-2 (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five). On October 26, 2015, defendant pled guilty to count three and admitted burglarizing the apartment of S.H., her ex-girlfriend, while armed with a box cutter. In exchange for the guilty plea, the State agreed to dismiss the remaining counts and to recommend sentencing in the third-degree range, see N.J.S.A. 2C:44-1(f)(2), specifically a five-year custodial sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Under the terms of the plea agreement, defendant reserved the right to apply for sentencing into Drug Court and, if her application was rejected, to argue for a three-year custodial sentence. Pursuant to N.J.S.A. 2C:35-14(a), defendant applied to Drug Court, but was rejected by the Drug Court prosecutor. Defendant appealed her rejection to the trial court, but her appeal was denied on January 14, 2016. Thereafter, defendant was sentenced to three years imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to NERA. Defendant now appeals her March 3, 2016 judgment of conviction, arguing the 2 A-3855-15T3 court erred in denying her appeal from the prosecutor's rejection of her Drug Court application. We disagree and affirm. After pleading guilty to second-degree burglary, defendant, then thirty-four years old, applied to Drug Court on October 26, 2015. Her application was reviewed as a Track 1 case. At the time, defendant had no prior history of indictable convictions. In conjunction with her application, defendant underwent a Treatment Assessment Services for the Courts (TASC) evaluation in order to determine her level of drug or alcohol dependency. The TASC evaluator found that defendant manifested symptoms of severe alcohol use disorder and severe heroin use disorder, and recommended a short-term residential inpatient program. However, the Drug Court prosecutor denied defendant's admission to Drug Court, citing the significant threat to the community posed by defendant's commission of a violent offense. On January 14, 2016, the court considered defendant's appeal of the rejection. Initially, the court summarized the facts as follows: [O]n December [] 5th, 2014 the defendant broke into S.H.'s residence and assaulted A.D. with a box cutter knife. The defendant had previously been in a relationship with S.H. It appears that the defendant climbed the fire escape, entered the residence, then encountered A.D. . . . [I]t appears that the incident happened at around 3:30 a.m. A.D. was asleep, heard a noise, jumped up, the 3 A-3855-15T3 defendant swung towards his face, cut his face, cut his arm with a box cutter. . . . A.D. said he didn't even realize that he was cut until . . . the lights [went] on[,] there was blood everywhere and the box cutter was in the defendant's right hand. The defendant was also wearing blue latex gloves according to A.D. After some issues[,] the defendant was finally pushed out the door by A.D. and it's my understanding that she also suffered an injury as a result of this encounter. In evaluating the statutory criteria for Drug Court admission,1 the court found that defendant met the requirements of 1 Under N.J.S.A. 2C:35-14(a), to be eligible for admission into Drug Court, the sentencing court must find the following nine factors: (1) the person has undergone a professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment; and (2) the person is a drug or alcohol dependent person within the meaning of [N.J.S.A. 2C:35- 2] and was drug or alcohol dependent at the time of the commission of the present offense; and (3) the present offense was committed while the person was under the influence of a controlled dangerous substance, controlled substance analog or alcohol or was committed to acquire property or monies in order to support the person’s drug or alcohol dependency; and (4) substance use disorders treatment and monitoring will serve to benefit the person by addressing the person’s drug or alcohol dependency and will thereby reduce the likelihood that the person will thereafter commit another offense; and 4 A-3855-15T3 N.J.S.A. 2C:35-14(a)(1) through (4) because "defendant does have a drug or alcohol dependence" based upon the findings of the TASC evaluator. Regarding N.J.S.A. 2C:35-14(a)(5) through (7), the court determined that there were "no disqualifying crimes or firearms history that would prevent the defendant from coming into (5) the person did not possess a firearm at the time of the present offense and did not possess a firearm at the time of any pending criminal charge; and (6) the person has not been previously convicted on two or more separate occasions of crimes of the first or second degree, other than those listed in paragraph (7); or the person has not been previously convicted on two or more separate occasions, where one of the offenses is a crime of the third degree, other than crimes defined in [N.J.S.A. 2C:35- 10], and one of the offenses is a crime of the first or second degree; and (7) the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States; and (8) a suitable treatment facility licensed and approved by the Division of Mental Health and Addiction Services in the Department of Human Services is able and has agreed to provide appropriate treatment services in accordance with the requirements of this section; and (9) no danger to the community will result from the person being placed on special probation pursuant to this section. 5 A-3855-15T3 Drug Court statutorily[,]" and a "suitable treatment facility" was available to satisfy N.J.S.A. 2C:35-14(a)(8). However, in evaluating N.J.S.A. 2C:35-14(a)(9), the court was troubled by the violent nature of the offense as well as defendant's psychiatric history as recounted in the TASC evaluation and determined that "on balance, . . . the mental health concerns outweigh[ed] the substance abuse issues[,]" making Drug Court inappropriate for defendant. The court noted: The report indicates that the defendant has experienced psychological problems during the past 30 days including serious anxiety, tension, hallucinations, trouble understanding, concentrating or remembering. During her lifetime she has suffered serious depression, serious anxiety, hallucination where she sees things, hears things, trouble controlling her violent behavior, she had been court-mandated to attend anger management even before this incident occurred, thoughts of suicide and she has attempted suicide in the past. Indeed, she reported experiencing psychological or emotional problems 30 days within the past 30 days, so we have this very violent situation, we have that history of psychological problems. The court acknowledged the hardship imprisonment would have on defendant, "especially in light of the fact that the defendant has a daughter who does rely upon her so heavily." However, the court denied defendant's appeal based upon "the violent nature of this crime," and "the significant mental health history." The court explained: 6 A-3855-15T3 [A]lthough I commend the defendant for recognizing her need . . . for treatment to combat her substance abuse addiction[,] I cannot escape the conclusion that to permit her to participate in Drug Court would likely pose a danger to the community. Even if we were to take all the facts as set forth by the defendant, that this was an act of self[- ]defense, it's 3:30 in the morning, undoubtedly somebody is going to be encountered. The defendant is wearing latex gloves, she has a box cutter in her hand. If she didn't encounter A.D.[,] she probably would have encountered S.H. and the likelihood of some serious injury was very, very high.2 So although the plea might have been ultimately to a second[-]degree burglary[,] there was a significant element of violence involved. So again, it's a one time criminal record but it was a very violent offense nonetheless. The victim was very significantly injured and it was, as I said, a very violent offense and the Drug Court program is for the nonviolent offender[.] This appeal followed. On appeal, defendant raises the following argument for our consideration: POINT I THE DRUG COURT JUDGE ERRED IN DENYING [DEFENDANT'S] DRUG COURT APPEAL. 2 Notably, although defendant had no prior indictable convictions, in the year prior, defendant had been convicted of simple assault in a domestic violence incident involving S.H. Defendant received a suspended jail sentence and was sentenced to a one-year probationary term conditioned upon undergoing anger management and having no contact with S.H. 7 A-3855-15T3 "Drug Courts are specialized courts within the Superior Court that target drug-involved 'offenders who are most likely to benefit from treatment and do not pose a risk to public safety.'" State v. Meyer, 192 N.J. 421, 428-29 (2007) (citing Administrative Office of the Courts, Manual for Operation of Adult Drug Courts in New Jersey (July 2002)). There are two general ways to be admitted to drug court. See State v. Maurer, 438 N.J. Super. 402, 413 (App. Div. 2014). Defendants admitted to Drug Court who are subject to sentencing with a presumption of incarceration and who satisfy the nine separate factors embodied in N.J.S.A. 2C:35- 14(a), are assigned to Track 1 and required to serve a period of "special probation" pursuant to N.J.S.A. 2C:35-14(a). Maurer, supra, 438 N.J. Super. at 413. Defendants with drug abuse problems who are not subject to a presumption of incarceration are assigned to Track 2 and are eligible for Drug Court under the general sentencing provisions of the Criminal Code pursuant to N.J.S.A. 2C:45-2. Maurer, supra, 438 N.J. Super. at 413 (citing State v. Clarke, 203 N.J. 166, 174-76 (2010)). Under a prior version of the statute governing admission to Drug Court, "N.J.S.A. 2C:35-14(c) granted the prosecutor the right to object to an otherwise qualified defendant's entry into Drug Court and, absent a showing of 'gross and patent abuse of [the prosecutor's] discretion,' a court could not override that 8 A-3855-15T3 objection and admit the defendant to Drug Court." Maurer, supra, 438 N.J. Super. at 414 (alteration in original). However, "[s]ubsection (c) was deleted in the 2012 amendments" to the Drug Court Statute, thus removing the prosecutor's objection as an impediment to the sentencing court's decision to sentence a defendant to special probation. Ibid. Therefore, it is clear that under the current statutory framework, it is the sentencing court, not the prosecutor, who makes the final determination regarding an applicant's eligibility for Drug Court. See Ibid. "By its action, the Legislature clearly evinced an intention to rely on a judge's discretion and ability to better determine admission without continuing the prosecutor's right to veto." Id. at 418. While the "'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) (citing Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F. 2d 1260, 1265 (7th Cir. 1985)). Here, the court determined that, while defendant pled guilty to a qualifying offense for a Track 1 Drug Court application and satisfied most of the statutory criteria, defendant's admission into Drug Court posed a danger to the community based upon the 9 A-3855-15T3 violent nature of the offense in conjunction with her mental health history. We discern no abuse of discretion in the court's decision. Defendant argues that "neither the nature of the offense nor [defendant's] mental health history support the conclusion that [defendant's] participation in drug court would pose a danger to the community[,]" particularly since the court's "finding was based entirely on [defendant's] self-reported psychiatric status contained in the TASC evaluation." Further, defendant asserts that the court "erred in finding that [defendant] presented a danger to the community based on the violent nature of the instant offense and the fact that [defendant] has had 'trouble controlling her violent behavior' in the past[.]" We disagree. In determining whether to sentence a defendant to special probation, the court shall consider all relevant circumstances, and shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings, and shall also consider the presentence report and the results of the professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment. [N.J.S.A. 2C:35-14(a).] Here, the court's findings are supported by the "relevant circumstances" contained in the record. 10 A-3855-15T3 Affirmed. 11 A-3855-15T3

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Docket No.: a5060-15
Decided: 2017-11-09
Caption: INDYMAC VENTURE, LLC v. CARMINE E. GIORDANO
Status: unpublished
Summary:
PER CURIAM In this mortgage foreclosure action, defendants Carmine E. Giordano and Sheryl A. Giordano appeal from the May 20, 2016 final judgment of foreclosure entered in favor of plaintiff Indymac Venture, LLC.1 Defendants also appeal from five pendente lite orders, entered April 19, 2013, April 1, 2014, December 9, 2014, March 20, 2015, and April 29, 2016. Following our review of the record and applicable legal principles, we affirm. I We glean the following from the motion record. In 2003, defendants obtained a loan in the amount of $340,000 from IndyMac Bank, FSB. In consideration for that loan, defendants executed a note and mortgage in favor of IndyMac Bank, FSB. Subsequently, IndyMac Bank, FSB failed as an institution and, in 2009, the Federal Deposit Insurance Corporation (FDIC) became its receiver. Thereafter, on June 24, 2009, the FDIC assigned defendants’ mortgage to IndyMac Venture, LLC. On January 27, 2012, IndyMac Venture, LLC assigned the mortgage to 1 Defendant Llanfair House Care and Rehabilitation Center is named in the complaint because it is another judgment creditor of defendants; this defendant did not participate in this appeal. For simplicity, for the balance of this opinion the term “defendants” refers only to Carmine E. Giordano and Sheryl A. Giordano. 2 A-5060-15T1 OneWest Bank, FSB (OneWest). On June 27, 2012, OneWest filed the within action, alleging defendants defaulted on their mortgage in September 2009 and remained in default. While the litigation was still pending, on September 15, 2014, OneWest assigned the mortgage back to plaintiff Indymac Venture, LLC. On December 9, 2014, the court entered an order stating the complaint and all subsequent pleadings were amended to reflect that plaintiff is IndyMac Venture, LLC. During the litigation, various motions were filed that resulted in the orders defendants now appeal. We surmise these were the only orders before the entry of final judgment. We review those motions and the ensuing orders, but for the sake of brevity exclude reference to any issue in those motions not relevant to the arguments defendants raise on appeal. Order of April 19, 2013 - In 2013, plaintiff filed a motion for summary judgment, which also included a request to amend the complaint to name a judgment creditor inadvertently excluded from the complaint. In their response, defendants claimed plaintiff lacked standing to file the complaint because it was not in possession of the mortgage when the complaint was filed. In its reply, plaintiff pointed out defendants failed to support its claim with any evidence. 3 A-5060-15T1 On April 19, 2013, the court struck defendants' answer and entered default against them; granted plaintiff permission to amend the complaint in the manner requested; and permitted plaintiff to seek judgment through the Office of Foreclosure as an uncontested action. The order stated the court’s reasons were set forth on the record, but defendants failed to include a copy of the transcript of the court’s decision in the record. Plaintiff promptly filed an amended complaint, to which defendants filed an answer asserting various defenses, including that plaintiff did not have standing. Order of April 1, 2014 - In 2014, plaintiff filed another motion for summary judgment, essentially arguing it was entitled to the entry of a judgment of foreclosure because it was the holder of defendants’ mortgage, defendants defaulted on the mortgage, and there were no facts to support any of the defenses in defendants’ answer. Defendants filed a response and a cross motion to dismiss the complaint. Defendants did not contest there was in fact an assignment of the mortgage to OneWest before it filed its complaint in foreclosure. Instead, defendants claimed OneWest had previously taken the position the mortgage had been assigned to it in 2009, rendering OneWest’s subsequent claim it was assigned the mortgage in 2012 inconsistent and untrustworthy. 4 A-5060-15T1 Defendants further contended all signatures affixed to any previous assignments and allonges were forged. We note here it is clear from a review of the record defendants simply misunderstood the documentary evidence, which demonstrates Onewest was assigned the mortgage in January 2012, before the complaint was filed in June 2012. Even if OneWest had taken the position it obtained the mortgage in 2009, the fact remains OneWest was in possession of the mortgage when it filed its complaint. Defendants also argued the Notice of Intention to Foreclose (NOI) was defective because it stated IndyMac Mortgage Services, not OneWest, was the holder of the mortgage. There is no dispute IndyMac Mortgage Services is a division of OneWest. In its decision, the court found the technical error in the NOI insignificant. After noting “IndyMac, [is] now a part of One West,” the court stated, “[i]f there is a technical inadequacy of the NOI, applying princi[ples] of equity to both plaintiff and defendant, I will not require a new NOI or require the plaintiff to withhold for 2 months an application to enter final judgment . . . . [T]he default date is September 1, 2009.” Finding defendants failed to produce any material facts to support their remaining arguments, the court denied defendants’ cross motion. 5 A-5060-15T1 The court struck defendants’ answer and entered default against them. The court also permitted the matter to proceed to the Office of Foreclosure for further disposition. See R. 4:64- 1(d). Order of December 9, 2014 – As previously stated, on this date the court entered an order finding the complaint and all subsequent pleadings deemed amended to state plaintiff is IndyMac Venture, LLC. Defendants did not provide in its record a copy of the court’s decision. Order of March 20, 2015 – Defendants filed a motion to reconsider the April 1, 2014 and December 9, 2014 orders. Citing D’Atria v. D‘Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), the court denied the motion on the ground defendants failed to bring any new evidence or law to the court’s attention. Order of April 29, 2016 – Plaintiff filed a motion for entry of final judgment with the Office of Foreclosure, pursuant to Rule 4:64-1(d). Defendants responded by filing a motion to fix the amount due, challenging the sufficiency of plaintiff’s proofs in its certification in support of its motion for entry of final judgment. The court denied defendants’ objection, noting they failed to produce any evidence contesting the amount due. On May 20, 6 A-5060-15T1 2016, the court entered final judgment in favor of plaintiff and against defendants. II On appeal, defendants assert the following arguments for our consideration: POINT I - THE TRIAL COURT ERRED IN ITS CONCLUSION THAT ONEWEST BANK HAD STANDING TO FILE THE COMPLAINT. POINT II - INADEQUATE CERTIFICATION TO SUPPORT SUMMARY JUDGMENT. POINT III - THE NOTICE OF INTENTION TO FORECLOSE IS DEFECTIVE. POINT IV - THE COMPLAINT MUST BE DISMISSED UNDER THE UNCLEAN HANDS DOCTRINE. Having scrutinized the record and applicable legal authority, we are satisfied none of defendants’ arguments possesses sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We note some of the arguments were not raised before the trial court and, generally, "an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). Defendants do not articulate any argument in support of its third argument point, and their remaining arguments are not supported by the record. We add only the following brief comment. 7 A-5060-15T1 OneWest demonstrated its standing to foreclose the mortgage based upon its assignment of the mortgage from IndyMac Venture. Upon that assignment, plaintiff became the holder of the mortgage. The assignment predated the filing of the foreclosure complaint. As holder of the mortgage, OneWest had standing to file a complaint in foreclosure and enforce the mortgage in this foreclosure proceeding. See Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011). Affirmed. 8 A-5060-15T1

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Docket No.: a5499-15
Decided: 2017-11-09
Caption: VIVIAN ACOSTA QUINTINAL v. LIEBENZELL MISSION OF USA
Status: unpublished
Summary:
PER CURIAM Plaintiff Vivian Acosta Quintinal appeals from a final order denying reconsideration of summary judgment dismissing her personal injury complaint against defendant Liebenzell Mission of USA. Because we agree defendant is immune from liability for plaintiff's accident pursuant to N.J.S.A. 2A:53A-7, we affirm, essentially for the reasons expressed by Judge D'Alessandro in the statements of reasons accompanying his June 9, 2016 order for summary judgment and July 27, 2016 order for reconsideration. The facts essential to resolution of the motion are undisputed. Defendant Liebenzell Mission is a 501(c)3 tax exempt, not-for-profit corporation, organized "to promote, support and advance the cause of Christ and the Christian way of life." It operates a 150-acre retreat in Morris County, which it makes available to churches and other non-profit groups for a fee. Plaintiff was attending a three-day conference at the retreat center sponsored by Church of God of Brooklyn,1 and the pastors of Nueva Arca, a church she attended. She traveled to the retreat center in a van provided by the pastors of Nueva 1 Church of God of Brooklyn obtained summary judgment in the same order as Liebenzell. Plaintiff has not appealed from that aspect of the order and Church of God of Brooklyn is not a participant in this appeal. Accordingly, "defendant" refers only to Liebenzell. 2 A-5499-15T1 Arca. Plaintiff paid $120 to attend the retreat, $6 of which was allocated for costs of insurance. While leaving a "religious conference" at the center on Saturday, plaintiff slipped on snow and ice on a ramp leading out of the building, sustaining injury. Following discovery, Liebenzell moved for summary judgment contending it is a charitable association engaged in the works it was organized to advance, when plaintiff, a beneficiary of those works, was injured, thus entitling it to immunity pursuant to the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -13.1. Plaintiff opposed the motion claiming defendant deviated from its stated purpose by charging her a $6 fee for insurance, that there was a "dispute as to what type and amounts of income that Defendant receives in order to operate," and that plaintiff was not a beneficiary because "Defendant was not promoting [its] objectives as a religious retreat at the time of the injury." Judge D'Alessandro rejected those arguments in a comprehensive thirty-one page opinion. The judge concluded from the evidence in the record that Liebenzell was organized exclusively for religious and charitable purposes as defined in the Charitable Immunity Act because those purposes represented its "dominant motive." See Parker v. St. Stephen's Urban Dev. Corp., Inc., 243 N.J. Super. 317, 325 (App. Div. 1990) 3 A-5499-15T1 (explaining examination of the aims, origins and method of operation of an "entity seeking to clothe itself in the veil of charitable immunity" is necessary "to determine whether its dominant motive is charity or some other form of enterprise"). Noting "[a] qualifying organization does not lose its statutory immunity merely because it charges money for its services," Rupp v. Brookdale Baptist Church, 242 N.J. Super. 457, 465 (App. Div. 1990), the judge found nothing in the record to contradict Liebenzell's assertion it charged the $6 fee "'to encourage the churches to have their own insurance and to offset the costs'" of Liebenzell's insurance. The judge rejected plaintiff's claim that she had raised sufficient questions as to the source of Liebenzell's operating funds to defeat summary judgment, finding plaintiff failed to evince any evidence "that Liebenzell was a profit-making organization with any aim other than a 'dominant motive' of charity by providing a place for low-cost religious and personal reflection." See Pomeroy v. Little League Baseball, 142 N.J. Super. 471, 473 (App. Div. 1976) (finding no genuine issue of material fact as to whether the defendant had been organized for exclusively educational purposes). Analyzing the question of whether plaintiff was a beneficiary of the works of Liebenzell within the intendment of 4 A-5499-15T1 N.J.S.A. 2A:53A-7, the court applied the two-part test enunciated in DeVries v. Habitat for Humanity, 290 N.J. Super. 479, 487-88 (App. Div. 1996), aff’d, 147 N.J. 619 (1997): "(1) did the injury occur while the organization was engaged in its charitable works, and (2) was the injured party a direct recipient of those works." Concluding there could be no genuine dispute that plaintiff accepted the invitation of her church "to attend the retreat, to use [Liebenzell's] facilities and to attend services or conferences during the retreat," Judge D'Alessandro found plaintiff was clearly a beneficiary of Liebenzell's charitable works. Plaintiff moved for reconsideration, contending Liebenzell did not establish it was a charitable organization because by charging plaintiff the $6 fee to offset insurance costs, Liebenzell "deviated from [its] stated purpose and has received a profit, non-related to its charitable works," and that plaintiff had raised a genuine issue of material fact regarding the types and amount of income Liebenzell received in order to operate, "especially from the recreational activities provided on its premises." Plaintiff also claimed Liebenzell could not demonstrate she was a beneficiary of its works at the time of the accident because Liebenzell "was not promoting [its] objectives at the time . . . and she paid extra-monies for 5 A-5499-15T1 liability insurance, . . . which clearly is not related to retreat or religious objectives." The judge heard argument on the motion, providing plaintiff the opportunity to further argue the points raised in her brief on reconsideration. The judge thereafter issued a nineteen-page opinion addressing each point. The judge acknowledged plaintiff's arguments, but found she had failed to come forward with evidence in the record to support her claims. Plaintiff appeals, reprising the arguments she made on the motions. We, of course, review summary judgment using the same standard that governs the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Thus, we consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Applying that standard here after having considered plaintiff's arguments and having reviewed the entire record, we agree with the trial judge that plaintiff failed to set forth any evidence that could have sustained a different decision. Accordingly, we affirm for the reasons set forth in 6 A-5499-15T1 Judge D'Alessandro's two thorough and thoughtful written opinions. Affirmed. 7 A-5499-15T1

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Docket No.: a0008-16
Decided: 2017-11-08
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., CS
Status: unpublished
Summary:
PER CURIAM Defendants, Robert and Christine Coppola, appeal from a July 19, 2016 judgment of foreclosure. Defendants contend the trial court erred in finding plaintiff had standing to foreclose. Because plaintiff is a non-holder in possession of the note with the rights of the holder, we affirm. Defendant Christine Coppola borrowed $371,000 from NJ Lenders Corp. (NJ Lenders). In 2006, the loan was secured by a mortgage executed by Christine and Richard Coppola naming the Mortgage Electronic Registration System, Inc. (MERS) as mortgagee and nominee for NJ Lenders. On May 12, 2006, NJ Lenders indorsed the note and delivered it to Wells Fargo Bank, NA (Wells Fargo), plaintiff's document custodian and loan servicer. On or about March 20, 2012, the loan was sold and the mortgage was assigned to plaintiff. Defendants defaulted on the note, and, in January 2013, plaintiff commenced a foreclosure action. A bench trial was conducted on May 20, 2015. A Wells Fargo loan verification analyst testified regarding the documents sought to be admitted into evidence. The judge found the analyst's testimony sufficient to admit the documents and determined plaintiff had standing to foreclose. The judge determined plaintiff had standing because 2 A-0008-16T3 there was an assignment of the mortgage before the complaint was filed. This appeal followed. Defendants argue the trial judge erred in finding plaintiff had standing to foreclose because it did not own the underlying debt. We disagree. We accord "substantial deference" to the trial judge's determination and review the decision for an abuse of discretion. Deutsche Bank Trust Co. Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012) (citing U.S. Bank Nat'l Assoc. v. Guillaume, 209 N.J. 449, 467 (2012)). We will find a judge abused his or her discretion only "when a decision is 'made without rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" U.S. Bank Nat'l Assoc., supra, 209 N.J. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). A party attempting to foreclose a mortgage "must own or control the underlying debt." Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011) (quoting Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011)). Parties who can enforce such a negotiable instrument, like a note, include "[1] the holder of the instrument, [2] a nonholder in possession of the instrument who has the rights of a holder, or [3] a person not in possession of the instrument who 3 A-0008-16T3 is entitled to enforce the instrument pursuant to [N.J.S.A.] 12A:3- 309 or subsection d of [N.J.S.A.] 12A:3-418." N.J.S.A. 12A:3-301. Regarding the first category, a person to whom the instrument is not payable may become the holder if there is a negotiation. Ford, supra, 418 N.J. Super. at 598 (citing N.J.S.A. 12A:3-201(a)). In order for a negotiation to occur, there must be a transfer of possession and an indorsement by the holder. Mitchell, supra, 422 N.J. Super. at 223. An indorsement requires "a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for the purpose of negotiating the instrument." Ibid. (quoting N.J.S.A. 12A:3-204(a)). Without an indorsement, standing may be insufficient to satisfy this category. Ford, supra, 418 N.J. Super. at 598. To fall within the second category, one must show the transfer of rights to the note. Id. at 599. Transfer occurs "when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument." N.J.S.A. 12A:3-203(a). This transfer "vests in the transferee any right of the transferor to enforce the instrument" whether or not a negotiation also occurs. N.J.S.A. 12A:3-203(b). If the transferee is not a holder because the transferor did not indorse, the transferee is nevertheless a person entitled to enforce the 4 A-0008-16T3 instrument under section 3-301 if the transferor was a holder at the time of transfer. Although the transferee is not a holder, under subsection (b) the transferee obtained the rights of the transferor as holder. [UCC Cmt. 2 to N.J.S.A. 12A:3-203.] Documents establishing transfer, including an assignment of a mortgage, must be properly authenticated with certifications based on personal knowledge, as required by Rule 1:6-6. Ford, supra, 418 N.J. Super. at 599-600. Here, the record establishes plaintiff is a non-holder in possession of the note with the rights of the holder. MERS was the mortgagee as nominee for NJ Lenders, its successors and assigns. MERS delivered the original note to Wells Fargo as plaintiff's custodian and servicer and the mortgage was assigned prior to the filing of the complaint. Based upon the record before us, we see no reason to disturb the trial judge's findings. Affirmed. 5 A-0008-16T3

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Docket No.: a0758-15
Decided: 2017-11-08
Caption: Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the FRANK CARABALLO v. CITY OF JERSEY CITY POLICE DEPARTMENT, a municipal entity and THOMAS COMEY, indi
Status: unpublished
Summary:
PER CURIAM Plaintiff Frank Caraballo appeals from an August 28, 2015 order granting defendant Jersey City Police Department (JCPD) summary judgment dismissing plaintiff's employment discrimination complaint. We reverse. The following facts are taken from the record. Plaintiff joined the JCPD in 1973. On August 13, 1999, while on duty, plaintiff was involved in a serious auto accident caused by the failure of the brakes on the city vehicle he was operating. As a result of the accident, plaintiff sustained several injuries including herniated discs, broken surgical pins, temporary paralysis, a neurological injury, and a torn meniscus. In 2001, plaintiff filed a workers' compensation claim against Jersey City regarding his injuries. The claim was settled in 2013. From 2001 until 2006, plaintiff's employment status with JCPD fluctuated between paid sick leave, light duty, and full duty. In 2006, a city-appointed orthopedic physician, Dr. Juluru Rao, recommended physical therapy and indicated in his report "anthroscopy may buy [plaintiff] relief for a very short period of time . . . [but then plaintiff] may need total knee replacement." Thereafter, plaintiff was sent to another physician, Dr. Leonard Jaffe, for another opinion. Dr. Jaffe concluded plaintiff "would not recover without significant 2 A-0758-15T3 surgery, namely total knee replacements[.]" The recommendation that plaintiff receive knee surgery was documented in connection with plaintiff's workers compensation claim in December 2006 by Dr. Edward Boylan who wrote in a Case Progress Report "AWAITING B/L KNEE REPLACEMENT." This pattern continued whereby plaintiff was sent to Dr. Rao on April 17, 2007, and January 15, 2008, and Dr. Jaffe on July 7, 2009, and January 10, 2011. The final evaluation by Dr. Jaffe on January 10, 2011, was requested by Jersey City's risk management department in order to evaluate plaintiff's knees and comment on his fitness for duty. After receiving the evaluation, defendant advised plaintiff that he should retire by March 1, 2011 or JCPD would apply on plaintiff's behalf for a New Jersey Police and Firemen's Retirement System (PFRS) disability retirement.1 A meeting between plaintiff, his union representative, and Jersey City Chief of Police Thomas Comey was held on February 28, 2011, to discuss plaintiff's retirement. Following the meeting, plaintiff's union representative informed Comey that he would be retiring "under protest." Plaintiff retired March 11, 2011. 1 Plaintiff submitted an application for retirement to PFRS on August 24, 2010, with a requested effective date of September 1, 2010. Plaintiff then changed the effective date to November 1, 2010, and ultimately March 1, 2011. 3 A-0758-15T3 Plaintiff filed a complaint in the Law Division on Februar