Docket No.: a0161-17
Decided: 2017-09-13
Caption: STATE OF NEW JERSEY v. EDWARD FORCHION
Status: published
Summary:
GILSON, J.A.D. Defendant Edward Forchion has been detained in jail since early March 2017, in accordance with the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26. He contends that the time for his trial under the speedy trial provisions of the CJRA is about to be reached. On leave granted, he appeals three orders that found a total of sixty-seven days of "excludable time," N.J.S.A. 2A:162-22(a), under the CJRA. We hold that our standard of review of the period to "be excluded in computing the time in which a case shall be indicted or tried" under N.J.S.A. 2A:162-22(b) is de novo. We also hold that we apply the traditional deferential standard of review to the trial court's factual findings concerning the amount of time excluded. Applying these standards, we affirm the orders that found sixty-seven days of excludable time.
Docket No.: a0354-15
Decided: 2017-09-13
Caption: JEFFREY SAUTER v. COLTS NECK VOLUNTEER FIRE COMPANY NO. 2
Status: published
Summary:
ACCURSO, J.A.D. Plaintiff Jeffrey Sauter, a volunteer firefighter, appeals from a summary judgment dismissing his complaint against defendant Colts Neck Volunteer Fire Company No. 2, and several individual officers and members of the fire company, including his brother. Plaintiff contends the vote of the fire company terminating his membership constituted a violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Because we agree with the trial court that plaintiff is not an employee of Fire Company No. 2 entitled to the protections of CEPA, we affirm. The essential facts are undisputed. Colts Neck's fire department consists of two all-volunteer companies, Colts Neck Volunteer Fire Company No. 1 and Fire Company No. 2, overseen by an Executive Fire Council made up of representatives from each company and members or designees of the Township Committee. See Colts Neck Municipal Code, §§ 28-1 to -3. Volunteer firefighters in Colts Neck are eligible for Emergency Services Volunteer Length of Service Award Program1 (LOSAP), N.J.S.A. 40A:14-183 to -193, deferred compensation benefits of between $400 and $1150 per year of active service, Colts Neck Municipal Code, § 36-4. The Township maintains workers' compensation and liability insurance on their behalf for incidents arising out of the performance of their firefighting duties. Colts Neck Municipal Code, § 28-17. Members are also entitled to reduced fees for certain municipally issued permits and licenses. Id. at § 68-2.
Docket No.: a4756-15
Decided: 2017-09-20
Caption: IN THE MATTER OF THE DENIAL OF THOMAS TEDESCO'S REQUEST FOR A SECOND AND/OR DUPLICATE FIREARMS PURCHASER IDENTIFICATION CARD
Status: unpublished
Summary:
PER CURIAM Tedesco appeals from a May 23, 2016 order denying his request for a "second and/or duplicate Firearms Purchaser Identification Card (FPIC)." Judge Edward A. Jerejian entered the order and rendered a thorough oral opinion. After conducting a hearing, the judge found that it would be against the public health, safety, and welfare for Tedesco to receive the FPIC. There exists substantial credible evidence in the record to support such a finding. We therefore affirm.
Docket No.: a5232-15
Decided: 2017-09-20
Caption: NATIONSTAR MORTGAGE, LLC v. RODNEY LEE
Status: unpublished
Summary:
PER CURIAM Defendant Rodney Lee appeals from a June 2, 2016 final judgment of foreclosure entered in favor of plaintiff Nationstar Mortgage LLC, and from an August 1, 2016 order denying his motion to vacate the final judgment.1 We affirm. Defendant gave Bank of America, N.A. a note and mortgage in 2007, as security for a $192,000 loan. The bank filed a foreclosure complaint in 2009, alleging that defendant defaulted on the loan. Defendant did not deny that the loan was in default, but raised defenses based on the bank's alleged lack of standing. The trial court granted summary judgment on June 21, 2010, striking defendant's answer. The court permitted Nationstar to substitute as plaintiff in 2014, and final judgment was issued on June 2, 2016. On August 1, 2016, the trial court denied defendant's motion to vacate the final judgment, for reasons set forth in a written statement accompanying the order.
Docket No.: a1217-15
Decided: 2017-09-19
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. MORTON RESNICOFF
Status: unpublished
Summary:
FUENTES, P.J.A.D. A Bergen County grand jury returned Indictment No. 09-02- 00314, charging defendant Morton Resnicoff with three counts of second degree attempted sexual assault, N.J.S.A. 2C:14-2c(4), and N.J.S.A. 2C:5-1, third degree attempted endangering of a child, N.J.S.A. 2C:24-4a and N.J.S.A. 2C:5-1, second degree dissemination or distribution of child pornography, N.J.S.A. 2C:24-4b(5)(a), and second degree possession of child pornography, N.J.S.A. 2C:24- 4b(5)(b). Pursuant to a negotiated agreement with the State, defendant pled guilty on August 31, 2009 to one count of fourth degree attempted criminal sexual contact, N.J.S.A. 2C:14-3b. The State agreed to dismiss the remaining counts in the indictment and recommended the court sentence defendant to a term of probation, conditioned on serving 364 days in the county jail. On October 23, 2009, the court sentenced defendant, consistent with the plea agreement, to a two-year term of probation, conditioned upon serving 364 days in the county jail. As part of his sentence, the court ordered defendant to register as a convicted sex offender under N.J.S.A. 2C:7-2, commonly known as Megan's Law. Defendant did not appeal his sentence. N.J.S.A. 2C:7-2f provides: Except as provided in subsection g. of this section, a person required to register under this act may make application to the Superior Court of this State to terminate the obligation upon proof that the person has not 2 A-1217-15T3 committed an offense within 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others. [Emphasis added.] Defendant was sixty-seven years old when he committed this crime. He claims he will be eighty-four years old by the time he is eligible to apply for relief under N.J.S.A. 2C:7-2f. On October 17, 2014, defendant filed a post-conviction relief (PCR) petition arguing that the fifteen-year offense-based procedural bar to termination unconstitutionally discriminates against a class of convicted defendants who are at least sixty years old at the time of conviction. According to defendant, the application of this fifteen-year procedural bar under N.J.S.A. 2C:7-2f to this class of elderly registrants is the functional equivalent of a lifetime registration requirement. The court will lose jurisdiction to provide any relief because the registrant will likely be dead or unable to reap any meaningful benefit due to poor health. The matter came for oral argument before the PCR judge on September 24, 2015. In support of his petition, defendant cited studies that "suggest" that individuals released from prison after the age of sixty present a mere 3.8% risk of reoffending. Defendant also noted that the Legislature recognized "advanced age 3 A-1217-15T3 or debilitating illness" as among the factors relevant to the risk of re-offense. N.J.S.A. 2C:7-8b(2). The PCR judge explained the reasons for rejecting defendant's argument and denying his PCR petition in a written opinion dated October 6, 2015. Before addressing defendant's arguments directly, the judge provided the following brief recitation of the circumstances that led to defendant's conviction. On January 9, 2008, an undercover agent of the Bergen County Prosecutor's Office assumed the online identity of a thirteen-year-old girl named "Danielle DeJoseph" in an internet chat room on Yahoo.com, entitled "New Jersey 4," using the screen name "danigurl1017." The same day, at approximately 3:32 p.m., another user with a screen name entitled mike_reese2002," later identified to be [defendant], contacted the agent online. [Defendant] then sixty-seven years old, texted he was seventeen years of age, and the agent responded that she was thirteen-years old. He asked the agent if she had ever seen male genitalia and subsequently transmitted those images to her. [Defendant] also sent the agent an invitation to view a webcam feed, depicting a male masturbating. He invited the agent to join him after school one day for sexual activity. On January 28, 2008, [defendant] and the undercover agent, purporting to be a thirteen- year old child, exchanged internet chat communications in which [defendant] transmitted a webcam feed, depicting him masturbating. In the same chat session, [defendant] sent twenty-four pornographic images to the purported thirteen-year old girl. 4 A-1217-15T3 On February 27, 2008, [defendant] again sent the agent a webcam showing him masturbating. Finally, on March 3, 2008, [defendant] provided his cellular phone number to the presumed thirteen-year old child. A recorded phone call subsequently took place between [defendant] and "danigurl107," voiced by BCPO [D]etective Kristen Mecionis. During the call [defendant] arranged to meet the child at the Old Navy store in the Paramus Park Mall. [Defendant] expressed an interest in going to a nearby hotel after meeting at the mall where he suggested that he and the child could look at pictures and videos. The day the meeting was to take place, [defendant] was sighted at the Crowne Plaza Hotel adjacent to the mall where the meeting was to occur. He was arrested, having in his possession a duffle bag containing condoms, lubricant, a portable DVD player and two DVDs. The PCR judge noted that defendant was, at the time of the hearing, seventy-five years old. He had successfully completed his two-year term of probation. The judge also considered a report of a psychological evaluation of defendant submitted by Sean Hiscox, Ph.D., who concluded: [It] is my opinion to a reasonable degree of professional certainty that in [defendant's] case specifically and with offenders at an advanced age generally, a comprehensive, individualized, risk and needs based assessment informed by the empirical research is superior to a charge-based assessment of risk. Such an approach is best practice in the field and it is also my opinion that such an approach sufficiently protects the public from sex offenders who are at an advanced age. It is also my opinion that [defendant] is not 5 A-1217-15T3 likely to pose a threat to the safety of others and therefore could be safely removed from the requirements of New Jersey's community notification and registration law. The PCR judge began his legal analysis by reaffirming our Supreme Court's admonition in State v. Preciose, 129 N.J. 451, 459 (1992): "Post-conviction relief is neither a substitute for direct appeal, R. 3:22-3, nor an opportunity to relitigate cases already decided on the merits, R. 3:22-5." The judge also noted that the constitutionality of the statutory notification scheme of convicted sex offenders known as Megan's Law was settled by the Supreme Court in Doe v. Poritz, 142 N.J. 1, 90-91 (1995). The judge also rejected defendant's attempt to apply the Court's holding in In re Registrant J.G., 169 N.J. 304 (2001), which concerned the application of the registration and community notification requirements of Megan's Law to a juvenile who pled guilty to conduct that, if committed by an adult, would constitute the crime of second degree sexual assault as defined in N.J.S.A. 2C:14-2c(1). J.G "was ten years old when the incident occurred, and the victim was the juvenile's eight-year-old female cousin." Id. at 309. Applying the registration and notification requirements of Megan's Law, "the trial court Law Division classified J.G. as a Tier 2 offender and ordered notification of 6 A-1217-15T3 various elementary and middle schools in the vicinity of J.G.'s residence." Ibid. In holding that Megan's Law registration and community notification orders for juvenile delinquents under the age of fourteen will terminate at age eighteen, the Court took "careful cognizance of the philosophy underlying the creation of our separate juvenile justice system, as well as of the specific provisions of our Juvenile Code intended to implement that philosophy." Id. at 321. The Court also emphasized that: The Juvenile Code also limits the duration of dispositions imposed on juveniles by providing that all orders of disposition other than for incarceration in delinquency cases shall terminate at age eighteen, or three years from the date of the order, whichever is later. Moreover, as noted, ante at 324, 777 A.2d 904, the Code states that no disposition "shall operate to impose any of the civil disabilities ordinarily imposed by virtue of a criminal conviction. . . ." N.J.S.A. 2A:4A- 48. [Id. at 335-36.] Of particular relevance here, the Court in J.G. made clear that it had previously "generally upheld the constitutionality of Megan's Law." Id. at 338 (citing Doe v. Poritz, supra, 142 N.J. at 12, 110-11). The PCR judge addressed and rejected the remaining arguments raised by defendant, concluding that "Megan's Law, as 7 A-1217-15T3 it is presently written, does not authorize special exceptions for any alleged class of sex offenders." Defendant now appeals raising the following arguments: POINT I THE PURPOSE OF MEGAN'S LAW IS TO DEFEND AGAINST INDIVIDUALS LIKELY TO POSE A THREAT OF SEX OFFENSE RECIDIVISM; ADVANCED AGE REGISTRANTS ARE EMPIRICALLY LESS LIKELY TO PRESENT A RISK THAN THEIR YOUNGER COUNTERPARTS. POINT II OFFENSE-BASED BARS TO TERMINATION OF MEGAN'S LAW, WHEN APPLIED TO ADVANCED AGE REGISTRANTS, CREATE AN IRREBUTTABLE PRESUMPTION OF RISK AND ARE UNCONSTITUTIONAL UNDER PROCEDURAL DUE PROCESS AND FUNDAMENTAL FAIRNESS ANALYSIS. POINT III OFFENSE-BASED BARS TO TERMINATION OF MEGAN'S LAW, WHEN APPLIED TO ADVANCED AGE REGISTRANTS, VIOLATE SUBSTANTIVE DUE PROCESS. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the PCR judge. Affirmed. 8 A-1217-15T3
Docket No.: a1474-15
Decided: 2017-09-19
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 CHESTNUT SQUARE APARTMENTS LLC, and DR. JAMIL AKHTAR v. CITY OF VINELAND and CITY OF VINELAND FIRE
Status: unpublished
Summary:
PER CURIAM Chestnut Square Apartments, LLC (Chestnut Square), and Dr. Jamil Akhtar (collectively plaintiffs) appeal from the July 10, 2015 order of the Law Division affirming in part the decision of the Cumberland County Construction Board of Appeals (Board). The Board determined that Chestnut Square and Dr. Akhtar violated Ordinance No. 2003-70 and Uniform Fire Code Section 503 by removing the fire lane signage, and imposed a $5000 fine on each of them. The trial court upheld the violation against Chestnut Square but reduced the fine to $2500. As to Dr. Akhtar, the court vacated and dismissed the violation and the fine. The Board also determined that Chestnut Square and Dr. Akhtar violated N.J.S.A. 52:27D-210 by interfering with the duties of the Fire Bureau, and imposed a $2500 fine on each of them. The court affirmed the violation and the fine against Chestnut Square but vacated and dismissed both as to Dr. Akhtar. The City of Vineland cross- appeals the provisions of the July 10, 2015 order that relieved Dr. Akhtar of all personal liability and reduced the fine imposed 2 A-1474-15T4 on Chestnut Square. We conclude that the arguments raised in both the appeal and cross-appeal are without merit and, accordingly, we affirm. The express purpose of the Uniform Fire Safety Act (UFSA), N.J.S.A. 52:27D-192 to -213, enacted in 1983, is to create a "uniform, minimum, fire safety code" to "protect the lives and property of the State's citizens[,]" ensure "uniform" and "thorough . . . fire safety inspections[,]" and provide "swift and commensurate" penalties for violations. N.J.S.A. 52:27D-195. UFSA "is remedial legislation . . . and shall be liberally construed to effectuate these purposes." N.J.S.A. 52:27D-193. Pursuant to N.J.S.A. 52:27D-210a(1), "[n]o person shall . . . [o]bstruct, hinder, delay or interfere by force or otherwise with the . . . local enforcing agency in the exercise of any power or the discharge of any function or duty under the provisions of [UFSA.]" Under N.J.S.A. 52:27D-210b(1), "[a] person who violates or causes to be violated a provision of [N.J.S.A. 52:27D-210a] shall be liable to a penalty of not more than $5,000 for each violation." To implement UFSA, the Legislature specifically instructed the Department of Community Affairs (DCA) to "promulgate . . . regulations to [e]nsure the maintenance and operation of buildings and equipment in such a manner as will provide a reasonable degree 3 A-1474-15T4 of safety from fire and explosion." N.J.S.A. 52:27D-198(a). Pursuant to those legislative instructions, the DCA adopted the model code of the International Code Council as the State Fire Prevention Code for New Jersey (Uniform Fire Code), subject to the modifications set forth in N.J.A.C. 5:70-3.2. See N.J.A.C. 5:70- 1.1 to -4.20. N.J.A.C. 5:70-1.3(a) provides that the Uniform Fire Code is designed "for the safeguarding to a reasonable degree of life and property from . . . conditions hazardous to life or property in the use or occupancy of buildings or premises." Section 503 of the Uniform Fire Code, governing fire apparatus access roads, provides: 503.1. Where required. Fire apparatus access roads shall be provided and maintained in accordance with Section 503.1.1. 503.1.1. The fire official may require and designate public or private fire lanes as deemed necessary for the efficient and effective operation of fire apparatus, access to building openings by fire fighters or egress of occupants. 503.1.1.1. Proposed fire lanes shall not conflict with prior approvals issued by the planning and/or zoning boards unless the administrative authority for the planning and/or zoning board grants approval of the creation of the fire lane in writing. 503.2. Specifications. Fire apparatus access roads shall be installed and arranged in accordance with Section 503.2.1 through 503.2.7. 4 A-1474-15T4 503.2.2. Authority. The fire code official shall have the authority to require an increase in the minimum access widths where they are inadequate for fire or rescue operations. 503.3. Marking. Where required by the fire code official, approved signs or other approved notices shall be provided for the fire apparatus access roads to identify such roads or prohibit the obstruction thereof. Signs or notices shall be maintained in a clean and legible condition at all times and be replaced or repaired when necessary to provide adequate visibility. 503.4. Obstruction of fire apparatus access roads. Fire apparatus access roads shall not be obstructed in any manner, including the parking of vehicles. The minimum widths and clearances established in Section 503.2.1 shall be maintained at all times. Similarly, N.J.S.A. 40A:14-53 provides that a "municipality, by ordinance, may authorize the officials in charge of the paid or part-paid fire department and force to establish fire areas to regulate traffic and parking therein and provide penalties for violations." Pursuant to UFSA, Vineland Ordinance No. 2003-70 was adopted on December 24, 2003, to update all existing fire lanes and ensure compliance with the Uniform Fire Code. The ordinance amended prior Ordinance No. 973, and includes comprehensive requirements concerning fire lanes, such as curb markings and signage. The Ordinance further delineates various locations in the City of 5 A-1474-15T4 Vineland where fire lanes were to be established or maintained as follows: §253-1. Prohibited parking. No person shall park or stop a motor vehicle in or in any other manner obstruct a properly designated fire lane, fire hydrant or fire department connection. This shall apply to any public street, private street or access lane. §253-2. Enforcement. Violations of this chapter or any provision of the Uniform Fire Safety Act . . . or the New Jersey Uniform Fire Code . . . which pertains to this chapter shall be enforced by the Fire Prevention Bureau. §253-3. Fire lane locations. All fire lane locations shall be recorded in a file maintained by the Fire Prevention Bureau and shall be made available for public inspection. Copies of said file shall also be located in the City Clerk's Office, the Police Department, and the Fire Department. §253-4. Curb markings. All curbs in a fire lane shall be painted exclusively with yellow traffic paint that meets the specifications for Type 1 Pure Drying Yellow Traffic Paint for road and bridge construction of the New Jersey Department of Transportation. . . . §253-5. Posting and signs. Whenever a fire lane is established on any property, the property owner shall erect, replace, repair and maintain all fire lane signs and markings on said property as specified in this section and by the Fire Prevention Bureau. The property owner shall have fifteen (15) days to comply with this 6 A-1474-15T4 section upon proper notice by the Fire Prevention Bureau. . . . §253-6. Violations and penalties. The Fire Prevention Bureau shall have the authority to issue any fine, penalty or enforcement action as provided for in the Uniform Fire Safety Act or the New Jersey Uniform Fire Code. §253.7. Appeals. Any person may appeal a fine, penalty or enforcement action issued under this chapter by submitting a written hearing request to the City of Vineland Construction Board of Appeals. . . . [Vineland, N.J., Ordinance No. 2003-70 (2003).] Chestnut Square is a large apartment complex in the City of Vineland constructed in 1968. It consists of 232 units encompassing thirteen different buildings with wood-frame construction and a common attic space across the top of each building. Chestnut Square is one of the designated locations in Vineland where fire lanes were to be established and maintained under Ordinance No. 2003-70. In 2005, Chestnut Square and Dr. Akhtar, the managing member of the LLC, were cited for violations relating to the curbing and signage of its fire lanes. Among other things, they were ordered to repaint the "[e]xisting [y]ellow [c]urbing" and repaint the "No Parking Fire Lane" sign. The 7 A-1474-15T4 violations were abated and a certificate of compliance was issued in 2006. In 2012, Chestnut Square and Dr. Akhtar were again cited for violations relating to the color of the curbing of its fire lanes. The violations were abated with the proper colored curbs and certificates of compliance were issued in September 2013. Subsequently, an inspection revealed that the "Fire Lane-No Parking" signs had been removed and replaced with "No Parking-Tow Away Zone" signs. As a result, Chestnut Square and Dr. Akhtar were cited by the Fire Marshal and issued two violations, resulting in the issuance of a September 25, 2013 Order to Pay Penalty and Abate Violations as follows: #1. Entire Complex: Fire lanes shall be installed in accordance with Vineland City Ordinance #2003-70, Uniform Fire Code, Section 503, Fire Apparatus Access Roads. Fine imposed: $5,000.00. # 2. Removal of Fire Lanes Post Inspection: No person shall hinder or interfere with the duties of the local enforcement agency, N.J.S.A. 52:27d-210. Fine imposed: $5,000.00. Plaintiffs appealed the issuance of the violations to the Board. A testimonial hearing was conducted on January 7, 2014, during which Dr. Akhtar and Fire Marshal, Michael Cifaloglio, testified. Cifaloglio testified that after the 2012 violations were abated, his officers began enforcing the parking restrictions. However, Chestnut Square residents informed his 8 A-1474-15T4 office that Chestnut Square's head of maintenance, Cafael Torres, had instructed them that "they did not have to pay their tickets because it was not a fire lane, it was a tow away zone and the signs say tow away zone." When Cifaloglio investigated on September 25, 2013, he discovered "that the signs had, in fact, been changed." Cifaloglio confronted Torres who informed him that Dr. Akhtar had told him "they're not fire lanes. They're tow away zones." Cifaloglio acknowledged that "[t]hings got a little heated" until Dr. Akhtar intervened. However, Cifaloglio admitted that he never heard Dr. Akhtar tell anyone not to pay their ticket. Dr. Akhtar testified that he directed staff to replace the fire lane signs with the tow-away zone signs, explaining that "it's . . . absolutely counterproductive to make that a fire lane" because it was "not a through lane." However, according to Dr. Akhtar, he did not instruct staff to tell residents they did not have to pay the tickets, and he denied being aware of the 2005 or 2012 violations and resulting abatements. Regarding Ordinance No. 2003-70, Cifaloglio testified that the ordinance was purposely vague to give him enforcement flexibility and to avoid having to amend the ordinance every time the Uniform Fire Code was revised. According to Cifaloglio, the ordinance "doesn't need to be specific because Section 503 of the Uniform Fire Code is quite specific." 9 A-1474-15T4 The Board sustained the violations but reduced the fine on the hindering violation from $5000 to $2500. In rejecting plaintiffs' challenges to the violations, the Board determined that (1) the language of the Uniform Fire Code, Section 503 is clear and unambiguous; (2) fire lanes were previously established at the subject apartment complex prior to November 11, 2005 and the owner, in fact, abated violations regarding same at said time[;] (3) the owner subsequently abated violations regarding the fire lanes in or about July 2013; (4) [t]he owner thereafter unilaterally modified the signage to "Tow Away" Zone; (6) the owner LLC, by and through its building manager, instructed tenants that the areas were not fire lanes but were "tow away" zones and they did not have to pay any violations. To challenge the Board's decision, plaintiffs filed a complaint in lieu of prerogative writs seeking to overturn the violations and fines, alleging that the Board and the Fire Bureau's actions were "arbitrary, capricious and unreasonable and in violation of State and Federal Law." Specifically, plaintiffs alleged that Ordinance No. 2003-70 was "vague and overbroad and therefore unenforceable against [p]laintiffs[.]" Plaintiffs alleged the Board sustained the violations without any "valid proof" establishing "either violation[.]" Plaintiffs also alleged that their "property, improvements, and building predate any ordinance regarding fire lanes and therefore they are not subject 10 A-1474-15T4 to same." Further, plaintiffs contend that because "[n]o specific proof was provided" indicating that "he individually hindered or obstructed the Fire Marshal[][,]" Dr. Akhtar was "not individually responsible for decisions made by the entity."1 In a July 10, 2015 written decision, Judge Richard J. Geiger upheld the violations against Chestnut Square, determining the Board's findings and conclusions were supported by "substantial credible evidence in the record[,]" and were neither arbitrary, capricious, nor unreasonable. However, the judge vacated and dismissed the violations against Dr. Akhtar, finding insufficient evidence of personal involvement or any wrongdoing on his part. Further, Judge Geiger determined that as a member, rather than an owner of the LLC, Dr. Akhtar was "not liable for the acts of the LLC or its employees that he did not personally undertake or direct." Judge Geiger also reduced the fine against Chestnut Square imposed for the ordinance violation to $2500. The judge found the $5000 fine "to be unreasonable and excessive under the circumstances[,]" given the fact that "plaintiffs did not remove the fire lane signs for purposes of creating additional illegal 1 Plaintiffs' complaint consisted of three counts. However, with the agreement of the parties, counts two and three were subsequently dismissed. 11 A-1474-15T4 parking[,]" and "removing the fire lane signs did not result in any actual harm." The judge acknowledged, however, that "this was not the first time that Chestnut Square had been cited for fire lane violations and that this was an intentional violation, not a careless mistake." Nonetheless, Judge Geiger noted that the $5000 fine "was the maximum allowable under the law" and "five times higher than the fine permitted for committing a disorderly persons offense." In rendering his decision, Judge Geiger rejected plaintiffs' arguments after thoroughly canvassing the record, giving due deference to the Board's credibility findings, and accurately applying the legal principles governing the action in lieu of prerogative writs. In analyzing plaintiffs' contention that Ordinance No. 2003-70 was "void for vagueness" and failed "to put property owners on notice of its requirements[,]" Judge Geiger acknowledged that the prior ordinances included a schedule or listing of the specific location and dimensions of the fire lanes at each affected commercial property, while Ordinance No. 2003-70 does not. "Instead, it merely lists the mailing addresses of the affected properties and provides: 'All fire lane locations shall be recorded in the file maintained by the Fire Prevention Bureau[.]'" Judge Geiger further noted that the ordinance, "does not contain any specific reference to Section 503" of the Uniform 12 A-1474-15T4 Fire Code, nor "any details with regard to the width, length or location of the fire lanes." Nonetheless, Judge Geiger found that: The record in this matter clearly demonstrates that since at least 2005, Chestnut Square and Dr. Akhtar had actual notice of the location, length and width of the fire lanes required at Chestnut Square. Indeed the curbs for the fire lanes were painted and signs posted at each required fire lane. Enforcement action occurred when the color of the curbs was changed by Chestnut Square from yellow to red. After being cited, Chestnut Square changed the color back to yellow. In addition, the fire lanes were at one point properly posted with Fire Lane-No Parking signs, which were subsequently changed by Chestnut Square to No Parking-Tow [Away] Zone signs, and have now been changed back. It is thus clear that both Chestnut Square and Dr. Akhtar have known the precise location and dimensions of the fire lanes since 2005. Accordingly,[] [t]hey had actual knowledge of the requirements. This is not a case in which they have been penalized for not complying with fire lane requirements that they did not know about. Nor is this a case in which the reasonableness of the size and dimensions of the fire lanes is under any legitimate substantive attack. In rejecting plaintiffs' contention that the City Council "impermissibly gave unbridled, complete and unlimited power to the Fire Marshal[] to decide where and what fire lanes would be established[,]" Judge Geiger explained: While the City delegated the authority to determine and enforce the location and dimensions of the fire lanes at the designated 13 A-1474-15T4 commercial locations to the Fire Marshal[], the list of locations would naturally change over time as new commercial entities were created. More importantly, Section 503.1.1 of the Uniform Fire Code expressly authorizes fire officials to require and designate public or private fire lanes as deemed necessary for the efficient and effective operation of fire apparatus, access to building openings by fire fighters or egress of occupants. Determining the location and dimensions of fire lanes is a function that requires the particularized knowledge and expertise of fire officials, who have necessary ability to determine the specific areas that fire apparatus need unfettered access to for ingress, egress and positioning fire engines and ladder trucks during fires. This includes the size of the trucks and outriggers, locations of fire hydrants, building size and configuration in relation to curb lines and other pertinent information within their knowledge base. In rejecting plaintiffs' contention that Chestnut Square was not subject to the Uniform Fire Code because it was built before the Uniform Fire Code was adopted, Judge Geiger considered plaintiffs' reliance on "Bulletin 2010-4 issued by the Department of Community Affairs," reiterating the language of N.J.A.C. 5:70- 3.1(d), which states: This subchapter establishes fire prevention requirements governing the safe maintenance of all buildings and premises subject to the code. It is not the intent of the new Uniform Fire Code Subchapter 3 to require the installation or upgrading of any system, equipment or building component not already required by [N.J.A.C.] 5:70–4 or by the Uniform Construction Code in effect at the time of construction of the building or at the 14 A-1474-15T4 time of installation of any existing system, equipment or building components. This subchapter shall not be cited as the basis for any retrofit requirement. Judge Geiger found plaintiffs' reliance on the Bulletin misplaced because "imposing fire lanes does not involve 'the installation or upgrading of any system, equipment or building component.' It only involves creating, demarcating and signing no parking zones." Likewise, Judge Geiger rejected plaintiffs' contention that Chestnut Square "should be grandfathered in as to the later adopted Uniform Fire Code requirements" because of its compliance with "all applicable Uniform Construction Code [N.J.S.A. 52:27D-119 to -141] and Planning Board requirements when it was built[.]" The judge explained that "the Uniform Construction Code does not regulate exterior fire lanes. In addition, the Uniform Construction Code did not become effective in New Jersey until 1976, some eight years after Chestnut Square was constructed." Similarly, Judge Geiger rejected plaintiffs' contention "that the creation of the fire lanes is in conflict with the Site Plan approved by the Planning Board." The judge noted: There is no evidence in the record that the fire lanes eliminate any designated parking spaces approved or required by the Site Plan. The fire lanes did not change any curb lines, the width of any driveways, or location of any entrance or exit within the apartment complex. Therefore, imposing the fire lanes did not violate Section 503.1.1.1 of the Uniform Fire 15 A-1474-15T4 Code by conflicting with prior approvals issued by the planning or zoning boards. This appeal and cross-appeal followed. On appeal, Chestnut Square renews the arguments that were rejected by Judge Geiger. The City of Vineland cross-appeals the reduction of the fine imposed on Chestnut Square and the judge's finding that Dr. Akhtar was not personally liable. We affirm substantially for the reasons stated by Judge Geiger in his comprehensive and well-reasoned written decision. We add only the following brief comments. We review the Board's action using the same standard of review as the trial court. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). We must determine whether the "board'[s] decision 'is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion.'" New Brunswick Cellular Tel. Co. v. S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999) (quoting Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)). The Board's decision must be supported by substantial evidence in the record, Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013), not by unsupported allegations or conjecture, Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 88 (2002). Having reviewed the record and the parties' arguments in light of the controlling 16 A-1474-15T4 legal principles, we find no basis to disturb Jude Geiger's insightful analysis of the issues presented. R. 2:11-3(e)(1)(A). Affirmed. 17 A-1474-15T4
Docket No.: a1582-15
Decided: 2017-09-19
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 MIRIAM B. STENGER v. JAMES R. STENGER
Status: unpublished
Summary:
PER CURIAM Defendant James R. Stenger appeals from an order entered on June 30, 2015 denying his motion for termination or modification of his alimony obligation to plaintiff Miriam B. Stenger. Defendant also appeals from the November 20, 2015 order denying his motion for reconsideration. Plaintiff cross-appeals from the portion of the November 20, 2015 order denying her motion for counsel fees and costs. The parties married in 1986, and divorced in 2005. Four children were born of the marriage, all of whom are now emancipated. During the marriage, defendant worked for plaintiff's father in his insurance business, F.A. Bonauto and Associates (FABA), in Morristown. Defendant's brother-in-law, Kenneth French, also worked at FABA. In 1986, defendant and French formed National Association Services, Inc. (NAS), providing wholesale and retail insurance services, including health insurance policies, to the general public. Plaintiff filed a complaint for divorce in 2004 and retained a forensic accountant to examine defendant's income and the value of his interest in NAS. The parties engaged in discovery, including depositions, interrogatories, and document production. In January 2005, after extensive negotiations, the parties entered into a property settlement agreement (PSA) which 2 A-1582-15T4 resolved all outstanding issues. On March 31, 2005, a final judgment of divorce was entered incorporating the PSA. Pursuant to the PSA, defendant was obligated to pay plaintiff permanent alimony of $162,000 per year which would terminate upon the death of either party or plaintiff's remarriage. Defendant was required to maintain a $1,000,000 life insurance policy, naming plaintiff as the beneficiary. Of significance to our discussion, the PSA provides: When the HUSBAND reaches age sixty-two (62), assuming the WIFE has not remarried or predeceased him, the parties shall negotiate an adjustment in the face amount of the insurance based on the cost of the premium, the HUSBAND's income, the WIFE's income at the time, if any, and actuarial considerations. If the parties cannot reach an agreement with respect to the amount of insurance coverage the HUSBAND is obligated to provide to the WIFE, either party may make application to the Superior Court of New Jersey, Chancery Division[.] The PSA permitted defendant to retain his business interest in NAS "free and clear" of any interest of plaintiff. In consideration for this waiver by plaintiff, the agreement obligated defendant to pay plaintiff $800,000 with interest in quarterly installments. This amount was calculated pursuant to a business evaluation report, which estimated that NAS was worth approximately $1.8 million at the time of the divorce. This 3 A-1582-15T4 payment term was to be evidenced by a promissory note secured by a pledge agreement of defendant's stock in NAS. In March 2010, NAS was sold to BenefitMall Holdings, Inc. (BenefitMall) for $10.2 million. Defendant received $5.1 million for his fifty-percent share of the company. Defendant then made a lump sum payment of $800,000 to plaintiff pursuant to the PSA and placed the remaining proceeds of approximately $4.3 million in an investment account with Wells Fargo. After the sale, defendant agreed to work for BenefitMall as the director of business development, earning $203,733 in 2010; $143,396 in 2011; and $73,485 in 2012. Then, at age sixty-one, defendant retired and relocated to Florida. In 2013, plaintiff sold the former marital home in Morristown for $875,000 and purchased a smaller home in Morris Plains for $640,000. Plaintiff worked part-time at a retail store in Morristown, earning approximately $11,440 in 2013, and $15,826 in 2014. In March 2015, defendant filed a motion to terminate or reduce his alimony and life insurance obligations based on the change of circumstance of his retirement. Defendant's case information statement indicated his net income for 2014 was $134,356, and his monthly expenses totaled $9062. Plaintiff 4 A-1582-15T4 opposed the motion and sought to compel defendant to maintain the $1,000,000 life insurance policy. On June 30, 2015, the motion judge entered an order accompanied by a written statement of reasons denying defendant's motion. The judge also denied plaintiff's cross- motion to maintain the insurance obligation and encouraged the parties "to discuss lowering the policy amount." Defendant moved for reconsideration and sought discovery and a plenary hearing. That motion was denied on November 20, 2015. On appeal, defendant argues the motion judge erred in failing to order discovery and a plenary hearing as he made a prima facie showing of changed circumstances, and the parties conflicting certifications demonstrated a clear dispute of fact. Defendant also claims he established that his earned income had been reduced from $700,000 per year to zero as a result of his retirement and he was unable to continue to pay alimony to plaintiff at a rate of $13,500 per month. Defendant also maintains that plaintiff no longer has an ongoing need for that amount of alimony, and the parties had contemplated his retirement at age sixty-two in the PSA. Finally, defendant claims the judge erred in determining that he has the ability to pay based on monies defendant received from the sale of NAS. 5 A-1582-15T4 The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Gnall v. Gnall, 222 N.J. 414, 428 (2015). We do not disturb the "factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Because of the family courts' special jurisdiction and expertise in family matters, [we] accord deference to family court factfinding." Id. at 413. However, our review of a trial court's legal conclusions is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We review a decision on a motion for reconsideration under an abuse of discretion standard. Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). 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. 6 A-1582-15T4 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). "Motions for reconsideration are granted only under very narrow circumstances[.]" Fusco, supra, 349 N.J. Super. at 462. Reconsideration should be used only for those cases which fall into that narrow corridor in which 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. [Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).] Defendant argues that his retirement constitutes a changed circumstance as his earned income was reduced to zero. He also claims the previously referenced provision in the PSA mandating an adjustment in the amount of insurance coverage when he reached age sixty-two indicates the parties anticipated he would retire at that age. The motion judge rejected this argument and held the provisions in the PSA relating to alimony and insurance coverage were "clearly separable," and defendant's argument to the contrary was "at best misplaced, and at worst grossly disingenuous." A property settlement agreement is governed by basic contract principals. J.B. v. W.B., 215 N.J. 305, 326 (2013). 7 A-1582-15T4 The language of the PSA is clear that the parties intended to reevaluate the life insurance policy when defendant reached the age of sixty-two because, at that age, the premium increases from $1463.75 to $27,968.15. Based on this increase, it is apparent why defendant would have negotiated for this clause in the PSA. Nowhere in the document is there an indication that defendant intended to retire or renegotiate alimony at this age. The judge noted that defendant voluntarily sold his interest in NAS in 2010, and in the four years following the divorce, his average income substantially exceeded the income figure utilized in the PSA to calculate his alimony obligation. Of more significance is the judge's conclusion that defendant failed to provide sufficient documentation to allow him "to scrutinize the investment portfolio and determine the level of passive income being generated by the account." Defendant's response to this finding is that the judge should have ordered a plenary hearing in order to obtain the needed information. This cart-before-the-horse approach is fundamentally at odds with the settled principle that the party moving for modification bears the burden of making a prima facie showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). This showing must be made before a court considers whether to order a plenary hearing. Id. at 159. The 8 A-1582-15T4 judge's finding that defendant failed to provide sufficient documentation finds ample support in the record and we see no reason to disturb it. Finally, defendant claims the motion judge erred in considering proceeds from the sale of his business when weighing defendant's ability to pay his alimony obligation, and should have limited his inquiry to defendant's "current income" and excluded any income flowing from the sale of his business. We disagree. "Although some assets may be exempt from those subject to equitable distribution (such as an inheritance), income derived from those excludable assets may be considered in the initial alimony decision or modification of an alimony award." Miller v. Miller, 160 N.J. 408, 422 (1999). There is no indication in the PSA that the parties intended to exclude the proceeds or income generated from the proceeds of the sale of defendant's business. Even if the parties had exempted the proceeds, "the income generated by [an exempted asset] is no different from income generated by any other asset, exempt or otherwise, for an alimony analysis." Aronson v. Aronson, 245 N.J. Super. 354, 363 (App. Div. 1991). The remaining arguments presented by defendant lack sufficient merit to warrant further discussion in our opinion, 9 A-1582-15T4 as does plaintiff's claim that the judge erred in denying her request for counsel fees and costs. R. 2:11-3(e)(1)(E). Affirmed. 10 A-1582-15T4
Docket No.: a1856-15
Decided: 2017-09-19
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 BINA SHAH v. MAGUIRE BURKE, INC REAL ESTATE AGENCY
Status: unpublished
Summary:
SUMNERS, J.A.D. Plaintiff Bina Shah appeals from the November 17, 2015 order denying her motion for reconsideration of a June 3, 2015 order, which denied her default judgment request for an unpaid commission from defendant Maguire Burke Real Estate, Inc. Real Estate Agency.1 We affirm. Plaintiff was employed by defendant, a real estate broker, as a licensed real estate salesperson under a written employment contract. Plaintiff sued defendant alleging she was entitled to an additional commission of $80,000 from the sale of a banquet facility/liquor store (the property) that had occurred five years ago.2 Default was subsequently entered against defendant when no answer to the complaint was filed. In a June 3, 2015 order, the trial court denied plaintiff's unopposed pro se motion for entry of default judgment.3 1 Plaintiff's notice of appeal seeks review only of the court's November 17, 2015 order denying her motion for reconsideration, not the June 3, 2015 order denying entry of default judgment. We could, therefore, limit our review to that order alone. See W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544, (2002). We choose to overlook that technical error and consider the merits of defendant's appeal because "the substantive issues in the case and the basis for the . . . judge's ruling [at motion to enter default judgment] and [the] reconsideration motion[] [were] the same." Fusco, supra, 349 N.J. Super. at 461. 2 Her claim for "tortious interference with a contractual relationship and prospective economic advantage" is not the subject of appeal. 3 Based upon the record provided, we assume that the court's ruling was on the papers without an oral or written opinion by the court. 2 A-1856-15T2 Apparently, plaintiff did not present sufficient proofs because the order stated that she could file a motion for reconsideration or a motion to vacate the order, and such motion needed to provide: 1. The agreement which governs commissions allegedly due and owing to [p]laintiff; 2. A copy of the signed real estate contract; 3. A copy of the applicable statutes or administrative codes that govern [p]laintiff's affirmative claims; 4. A list of commission checks received by [p]laintiff; [and] 5. A written calculation of the real estate commissions which have been paid and which [p]laintiff claims are due and owing. Plaintiff submitted a motion for reconsideration directly to the trial court, which the court directed her to file with the court clerk. Plaintiff was further directed to submit a written certification providing the amount of commission she was paid and the amount due. She complied, submitting a certification stating she was due $74,308 based upon a forty percent commission on defendant's gross five percent commission on the property's seven million dollar original contract purchase price. As with plaintiff's motion for default judgment, defendant submitted no opposition. 3 A-1856-15T2 On November 17, 2015, the court entered an order denying plaintiff's reconsideration motion and rendered an oral opinion. The court determined that based upon an addendum to the contract of sale executed by the seller, buyer, and defendant, the purchase price was reduced to $6.7 million and the commission was reduced to $200,000. The court noted that, according to the real estate closing statement, the property actually sold for only $6,550,000, but defendant was still paid a $200,000 commission. The court found no merit to plaintiff's contention that she was entitled to an additional commission due to a buyer she produced who executed a letter of intent to purchase the property for $7.4 million, because a contract was not executed for that amount. After plaintiff appealed, the trial court submitted a written amplification of its decision. R. 2:5-1(b). Based upon plaintiff's submission, the court found that, shortly following the property's October 8, 2008 closing, she received $43,750, a twenty-five percent commission based upon the following calculation: Sales Price $6,550,000 Defendant's %5 base commission $200,000 Less fee to P. Ryan Consulting, LLC $25,000 Balance $175,000 4 A-1856-15T2 25% commission $43,750 Less advance $4,308 Paid to plaintiff after closing $39,442 Sometime after the sale, plaintiff received an additional commission check from defendant in the amount of $26,250.4 The court therefore found that plaintiff received a total commission of $70,000 from the property sale, forty percent of $175,000.5 Plaintiff argues that defendant's $25,000 payment to P. Ryan Consulting violates N.J.S.A. 45:15-3, and the payment of her additional $26,250 commission was untimely under N.J.S.A. 45:15- 3.1. In accordance with Rule 4:43-2(b), a plaintiff may be granted a judgment by default upon application to the court where a default has been properly entered against a defendant. The rule gives the court authority to "determine the amount of damages" through a proof hearing "as it deems appropriate." Ibid. A plaintiff is 4 It is unclear from the record when the check was received. According to plaintiff's certification dated November 24, 2014, she received the check seven weeks after the closing. However, almost ten months later, she submitted another certification that the additional commission check was received two-and-a-half weeks after the closing. The certification included an exhibit of a check stub with defendant's name and the following type: "10/27/2008," "Bina Shah," "$26,250," and "Cedar Gardens – CZ Patel." Cedar Gardens is the name of the property. 5 $4308 advance, plus $39,442, plus $26,250. 5 A-1856-15T2 also required "to furnish proof [as to] liability." Johnson v. Johnson, 92 N.J. Super. 457, 464 (App. Div. 1966); accord Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 183 (App. Div. 1993). "[T]he question of what proofs are necessary is inherently within the judge's discretion." Chakravarti v. Pegasus Consulting Grp., Inc., 393 N.J. Super. 203, 210 (App. Div. 2007). The trial court is obliged to view a plaintiff's proofs indulgently, and the general practice is "to require only a prima facie case." Heimbach v. Mueller, 229 N.J. Super. 17, 20 (App. Div. 1988); see also Pressler & Verniero, Current N.J. Court Rules, comment 2.2.2 on R. 4:43-2 (2016). We have also determined that we will not disturb a judge's denial of a motion for reconsideration absent an abuse of discretion. See Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010). Plaintiff has not demonstrated such an abuse of discretion. We conclude plaintiff has failed to establish that N.J.S.A. 45:15-3.1 applies. The statute prohibits a broker from paying a referral fee or commission to a person not licensed in New Jersey unless the person "is a licensed real estate broker of another jurisdiction in which the licensed broker maintains a bona fide office." Ibid. Plaintiff's mere assertion that P. Ryan Consulting, which was paid $25,000 from the commission received by defendant, 6 A-1856-15T2 is not a New Jersey licensed real estate broker based upon purported print-out records of the State of New Jersey, Department of Banking and Insurance, is insufficient. There is no authentication of the documents, N.J.R.E. 901, and the documents were not self-authenticating. N.J.R.E. 902. Moreover, even if the documents were considered, they fail to establish that P. Ryan Consulting was not a licensed real estate broker in New Jersey or in any state when it received the fee. Plaintiff's remaining argument concerning the timing of her commission lacks sufficient merit to warrant discussion. R. 2:11- 3(e)(1)(E). Affirmed. 7 A-1856-15T2
Docket No.: a1861-14
Decided: 2017-09-19
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 CHARLES UDOH v. ENTERPRISE RENTAL CAR INC and JOHN MATTONE and CHRISTOPHER G. TURNER
Status: unpublished
Summary:
GOODEN BROWN, J.A.D. This appeal arises out of plaintiff's claims for damages against Elrac, Inc., d/b/a Enterprise Rent A Car1 (Enterprise), and two of its employees, Christopher Turner and John Mattone, stemming from plaintiff's rental of a van that broke down while he was moving to North Carolina. According to plaintiff, the rented van broke down with his belongings still inside. Plaintiff claims that Enterprise agreed to take possession of the items and ship them back to him in New Jersey but lost them instead. Plaintiff appeals from two October 17, 2014 orders; one order dismissed all claims against Mattone for failure to state a cause of action and granted summary judgment to Enterprise on all claims other than loss of property and breach of contract, and the other order denied plaintiff's motion for summary judgment. Plaintiff also appeals from the January 5, 2015 order entering judgment for Enterprise following a jury verdict of no cause of action.2 In 1 Enterprise Rent A Car was improperly pled as Enterprise Rental Car Inc. 2 In a July 12, 2013 order, the trial court administratively dismissed the complaint against Turner for lack of prosecution pursuant to Rule 1:13-7 because plaintiff failed to effectuate process in a timely manner. The court reaffirmed its dismissal in a December 15, 2014 order. In his notice of appeal, plaintiff 2 A-1861-14T4 his merits brief, plaintiff does not present any legal argument or citation of law explaining how the trial court erred in entering the October 17, 2014 orders.3 As a result, plaintiff has effectively waived this argument on appeal. See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div.), certif. denied, 222 N.J. 17 (2015). As to the January 5, 2015 order, we affirm. On June 27, 2012, proceeding pro se, plaintiff filed a complaint against Enterprise, Mattone, the regional vice- president, and Turner, the employee who rented him the van, alleging breach of contract and negligence. The trial court does not appeal either of these orders. Accordingly, those orders are not subject to review on appeal. See 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) (explaining that "it is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review") (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) ("In civil actions the notice of appeal shall ... designate the judgment, decision, action, or rule, or part thereof appealed from...."). 3 We note that plaintiff's only arguments addressing the October 17, 2014 orders appear in his reply brief. However, "'[r]aising an issue for the first time in a reply brief is improper.'" Goldsmith v. Camden Cty. Surrogate's Office, 408 N.J. Super. 376, 387 (App. Div.) (alteration in original) (quoting Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J. 294 (2001)), certif. denied, 200 N.J. 502 (2009). Thus, we decline to consider the arguments. 3 A-1861-14T4 dismissed the complaint against Turner and Mattone,4 and granted summary judgment to Enterprise on all claims other than the loss of property and breach of contract claims.5 For the remaining claims, the court empaneled a jury of eight and conducted a four- day jury trial from December 16, 2014 to December 19, 2014. At the trial, Enterprise stipulated that it had a rental agreement with plaintiff, pursuant to which plaintiff rented a large van on March 1, 2010, from Fort Lee, New Jersey. Enterprise also stipulated that the rented van subsequently broke down in North Carolina and was towed to the Durham airport Enterprise branch, where plaintiff received another rental car. Plaintiff testified that when Enterprise was unable to find another vehicle to transport his belongings, he decided to abandon his move. According to plaintiff, Enterprise took possession of his personal belongings in the rental van and agreed to send them back to him in New Jersey but never did. Plaintiff submitted to Enterprise a 106-page list of his personal belongings that were in the van, including computer equipment, clothing, and household items, along 4 The claims against Mattone were dismissed on summary judgment for failure to state a claim, as plaintiff failed to present any evidence of actionable conduct on his part. 5 Enterprise was granted summary judgment on the negligence claims on the ground that plaintiff's June 27, 2012 complaint was filed after the expiration of the two-year statute of limitations, which expired on March 1, 2012. See N.J.S.A. 2A:14-2(a). 4 A-1861-14T4 with purported supporting receipts and checks for loan payments. Plaintiff testified that he estimated the value of the lost items to be $200,000. Although plaintiff testified that he was accompanied by two movers when the van broke down, he did not call either of them to testify at the trial. In addition, during cross-examination, defense counsel questioned plaintiff about testimony he gave during a December 14, 2007 deposition and at a trial on July 16, 2010. Both the deposition and trial testimony were from an unrelated case in which plaintiff sued his former landlord for loss of some of the same property plaintiff now claimed Enterprise lost. For example, in his 2007 deposition testimony, plaintiff claimed that he lost a Ju-Ju mask purchased in November 1994, which was one of the items listed in his submission to Enterprise. In his 2010 trial testimony, plaintiff testified, "I'm seeking total damage of my property, my loss . . . everything I owned in my life, everything, they took it." When confronted with his prior sworn deposition testimony, plaintiff refused to answer. When confronted with his prior sworn trial testimony, plaintiff denied his prior statements and testified that the transcript was "wrong." Michael DeBlasio, a risk manager for Enterprise, testified that while Enterprise may ship small items left in their rental 5 A-1861-14T4 vehicles back to their customers, such as cell phones, EZpass transponders, or garage door openers, Enterprise would never agree to ship "a van full of items." Instead, Enterprise would ordinarily hold the items for thirty days for the customer to recover. DeBlasio further testified that no Enterprise employee acknowledged seeing or holding plaintiff's belongings. Following summations on December 18, 2014, plaintiff complained that he was sick and was transported by ambulance to the hospital at the judge's direction. When the trial resumed the following morning, plaintiff claimed he lost his exhibits when he was transported to the hospital the day before. At the judge's request, defense counsel recreated all of plaintiff's exhibits that were in evidence. Plaintiff requested a mistrial, arguing that he was still sick and needed to return to the hospital for additional treatment, his original exhibits were missing, and the jury was incomplete. The judge denied plaintiff's application. Although juror number three had not yet arrived, the judge proceeded with the seven jurors who were present. The judge later explained his ruling thusly: [Plaintiff] has been a very difficult party in this action. He's created many difficulties, many problems and I think deliberately caused delays in this trial by various conduct[] such as walking out at times. Now he claims to have a health problem but he's never given the [c]ourt any 6 A-1861-14T4 information as to . . . why he needed to take these sudden walk outs. He refused to cooperate on exhibits. He also misled the [c]ourt at various times such as when he, in the [c]ourt's view, removed documents from [an] exhibit . . . and then denied it occurred. . . . Now, defendant is also entitled to a fair trial and I think the plaintiff has done everything in his power to deprive the defendant of a fair trial in this matter I think the [plaintiff] in this matter has taken various maneuvers and steps to try and prevent that. It['s] reached the point now while he came here from Hackensack Hospital whether he's truly released or not I don't know. I [have] to take his word for that. . . . [W]hen he shows up he knows his exhibits are necessary. He says he doesn't know where they are. I find that hard to believe. . . . And I think that he's just intent now to avoid having a decision reached. I don't believe he is operating in good faith or has during this trial so many times and therefore the [c]ourt proceeded because the defendant is entitled to have a case end. Before charging the jury, at plaintiff's request, the judge allowed plaintiff to address the jury despite having previously given his summation. Plaintiff made a rambling statement complaining that the exhibits itemizing his losses were missing and that he had not been treated fairly. Plaintiff also explained that he had to return to the hospital for treatment and left the courtroom. The judge charged the seven jurors. One alternate was 7 A-1861-14T4 selected and the remaining six jurors retired to the jury room to deliberate.6 Thereafter, the jury returned a unanimous verdict of 6-0 in favor of defendant on the claims of breach of contract, negligence, and conversion. This appeal followed. Plaintiff makes the following argument for our consideration. I. THE TRIAL COURT ERRED IN SENDING THE CASE TO AN INCOMPLETE JURY WITHOUT PLAINTIFF BEING THERE DUE TO HIM BEING RUSHED FROM THE COURTROOM TO HACKENSACK [UNIVERSITY MEDICAL CENTER] HOSPITAL FOR CONDITIONS THAT THE COURT WAS AWARE OF. Plaintiff argues that the judge erred by not declaring a mistrial and by sending the case to an incomplete jury. We disagree. The decision to declare a mistrial is committed to the trial court's sound discretion, and "[t]he abuse of discretion standard of review should pertain when reviewing such determinations of a trial court." State v. R.D., 169 N.J. 551, 559 (2001). "Juries in civil cases shall consist of 6 persons" or more. N.J.S.A. 2B:23-1(b); see N.J. Const. art. I, ¶ 9. The rule expressly states that "[a] deliberating jury in a civil action shall consist of six persons[.]" R. 1:8-2(b). A court may excuse jurors prior to 6 The missing juror arrived after the jury began deliberating, explaining that he had overslept. 8 A-1861-14T4 deliberations "provided the number of jurors is not reduced to less than" six in a civil case. R. 1:8-2(d)(1). Here, six jurors deliberated and returned a unanimous verdict of 6-0 in favor of defendant on all the questions presented for deliberation. Plaintiff's assertion that the case was submitted to an incomplete jury is entirely belied by the record. The judge clearly complied with the rule. See LaManna v. Proformance Ins., 184 N.J. 214, 228 (2005) (noting "our trial courts should comply fully with Rule 1:8-2."). Moreover, the judge did not abuse his discretion in denying plaintiff's application for a mistrial. As the judge noted, plaintiff engaged in manipulative tactics that undermined the integrity of the trial, and also engaged in brinkmanship that challenged the authority of the court. As our Supreme Court observed: A plaintiff cannot invoke the jurisdiction and machinery of our civil justice system, openly defy the court's authority to suit his own purposes, and expect to triumph. A plaintiff does not get to present to the jury his evidence while suppressing another party's evidence, or to pick and choose the rules he intends to follow. The defendant, as much as the plaintiff, has a right to his day in court. Because one of the essential purposes of a civil trial is the search for truth, the one who initiates that process by filing a complaint cannot be permitted to obstruct that search when it becomes unpleasant or inconvenient. 9 A-1861-14T4 [Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 117 (2005).] To the extent we have not specifically addressed plaintiff's remaining arguments of judicial impropriety,7 we deem them to be belied by the record and without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 7 Plaintiff argues that he was treated unfairly because the judge failed to order opposing counsel to comply with his discovery demands; ordered two armed sheriff's officers to stand in proximity to him throughout the proceedings; failed to provide him a French and Swahili interpreter; failed to grant his request for an adjournment to tend to his medical needs; failed to discharge jurors who indicated they did not want to serve; assisted opposing counsel by asking defendant's witness leading questions; allowed opposing counsel to peruse plaintiff's documents on counsel table while plaintiff went to the bathroom; interrupted plaintiff as he tried to present his case; refused to read plaintiff's jury instructions to the jury; and lost the evidence that he left in the courtroom. 10 A-1861-14T4
Docket No.: a2903-15
Decided: 2017-09-19
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 ROBERT J. TRIFFIN v. FOREMOST PROPERTY AND CASUALTY INSURANCE COMPANY and MICHAEL GRAF a/k/a MICHAE
Status: unpublished
Summary:
PER CURIAM In this check-cashing case, Robert J. Triffin appeals from three orders: a February 11, 2016 order dismissing Triffin's complaint and granting summary judgment to defendant Foremost Property and Casualty Ins. Co.1; a February 11, 2016 order denying Triffin's motion for summary judgment; and a December 23, 2014 order granting defendant Citibank, N.A.'s motion to dismiss Triffin's complaint with prejudice. Judge James W. Palmer, Jr. entered the orders and rendered a thorough written opinion dated February 11, 2016. Triffin is the assignee of a check-cashing entity that cashed two checks, both of which were jointly payable to Michael Graf and Service Master of the Shore. The endorsements, real or fraudulent, were by Graf; the cashing of the checks in the absence of an endorsement by Service Master, whether true or not, constitutes a violation of the Check Cashers Regulatory Act, barring Triffin's assignor from recovering. As assignee, Triffin's rights extend only so far as the check-cashing entity. 1 In the judge's written decision, the judge reflects that he dismissed Triffin's complaint against these defendants with prejudice. 2 A-2903-15T3 On appeal, Triffin raises the following arguments in his corrected brief and reply brief, which we have re-numbered to appear in consecutive order: POINT I. THE TRIAL JUDGE'S FAILURE TO COMPLY WITH THE SUPREME COURT'S SEMINAL CHECK COLLECTION HOLDING, AS TO THE UCC'S SOLE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES, CONSTITUTES REVERSIBLE ERROR. POINT II. FOREMOST NEITHER PLEAD A REAL OR PERSONAL DEFENSE AS DEFINED IN N.J.S.A. 12a:3-305, AND AS REFRENCED IN N.J.S.A. 12a:3-308, THUS THE ISSUE OF TRIFFIN'S LEGAL STATUS AS A HOLDER IN DUE COURSE I[S] NOT APPLICABLE TO THE FACTS OF THIS APPEAL. POINT III. THE TRIAL JUDGE COMMITTED ERROR WHEN HE ASSUMED THAT HIS ASSIGNOR'S "GOOD FAITH" IS A MATERIAL ELEMENT OF TRIFFIN'S UCC RECOUPMENT CLAIMS, AND TO WHICH CLAIMS FOREMOST FAILED TO ASSERT A COGNIZABLE PERSONAL DEFENSE. POINT IV. NEW JERSEY'S STANDARDS OF STATUTORY CONSTRUCTION FORECLOSES FOREMOST'S ARGUMENT, THAT THE NEW JERSEY CHECK CASHERS[] REGULATORY ACT BARS TRIFFIN'S UCC RECOUPMENT CLAIMS. POINT V. BY THEIR NATURE, FOREMOST'S ARGUMENTS ARE A CALL FOR A DECISION UPON HYPOTHETICAL FACTS, AND WHICH HYPOTHETICAL FACTS NEW JERSEY COURTS DO NOT HAVE SUBJECT MATTER JURISDICTION TO ENTERTAIN. POINT VI. CONTRARY TO FOREMOST'S ARGUMENTS, THE NEW JERSEY LEGISLATURE HAS NOT AMENDED THE UCC TO INCLUDE A PLAINTIFF'S COMPLIANCE WITH THE NEW 3 A-2903-15T3 JERSEY CHECK CASHERS[] REGULATORY ACT AS A MATERIAL ELEMENT OF A CLAIM TO RECOVER UPON A DISHONORED CHECK. After reviewing the record and the briefs, we conclude that Triffin's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the thoughtful reasons expressed by Judge Palmer. 4 A-2903-15T3
Docket No.: a3577-14
Decided: 2017-09-19
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. URIAH HILL
Status: unpublished
Summary:
SUMNERS, J.A.D. At the start of trial, the judge denied defendant's motion to suppress his video-recorded statement to the police and the audio recording of a 911 call. When the State did not produce the 911 caller to testify at trial, the trial judge denied defendant's request that the jury be allowed to draw an adverse inference due to her non-appearance. The jury subsequently found defendant guilty of the lesser-included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), against his then girlfriend (the victim). The trial judge granted the State's motion for a discretionary extended term as a persistent offender, N.J.S.A. 2C:44-3(a), and imposed a sentence of seven years with three years of parole ineligibility. Defendant raises the following arguments on appeal: POINT I DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED BY THE TRIAL COURT'S RULING THAT DEFENDANT'S STATEMENT WOULD BE ADMISSIBLE IN SPITE OF THE FACT THAT HE WAS NOT GIVEN AN OPPORTUNITY TO DECLINE TO WAIVE HIS FIFTH AMENDMENT RIGHTS. U.S. CONST. Amend. V; N.J. CONST. [(1947),] Art. I, PARA. 1 and 10. POINT II THE ADMISSION OF THE DECLARATIONS MADE IN THE 911 TAPE BY THE NON-TESTIFYING WITHNESS [] VIOLATED CRAWFORD V. WASHINGTON [1] BECAUSE THE DECLARATION WAS TESTIMONIAL AND THE DEFENSE 1 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, 194 (2004). 2 A-3577-14T3 HAD NO PRIOR OPPORTUNITY TO CROSS-EXAMINE HER. U.S. CONST. Amends. VI, XIV; N.J. CONST. (1947), Art. I, PARAS. 1, 9 and 10 POINT III THE TRIAL COURT'S DENIAL OF DEFENDANT'S REQUEST TO PROVIDE THE JURY WITH A CLAWANS[2] CHARGE ABOUT THE STATE'S FAILURE TO PRODUCE [THE 911 CALLER] DENIED THE DEFENDANT HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (RAISED BELOW). POINT IV THE EXTENDED TERM SENTENCE OF SEVEN YEARS, THREE WITHOUT PAROLE, FOR THIS THIRD-DEGREE AGGRAVATED ASSAULT IN THE MATTER IS EXCESSIVE. Having considered defendant's arguments in light of the record and the applicable law, we affirm his conviction, but reverse and remand for resentencing. I. The trial record revealed the following. According to two eyewitness, a man punched a woman in the face and kicked her, as she lay unconscious on the ground next to a gas station pump. The third witness, who reported the assault to the police by calling 911, did not testify because the State could not locate her. In her recorded call played to the jury, she stated that she "just 2 State v. Clawans, 38 N.J. 162 (1962). 3 A-3577-14T3 witnessed a woman get the shit beat out of her [by a man]. . . . She's knocked unconscious[,]" and "he kicked her like 3 times[,]" then "walked off cussing." She also commented that the woman was bleeding, crying, and upset. Based upon the description of the assailant provided by the three witnesses, the police apprehended defendant a few hundred yards away from the gas station. At the police station, defendant gave a video-recorded statement that was shown to the jury, in which he admitted hitting the victim, his then girlfriend.3 Also shown to the jury were video surveillance cameras' recordings depicting defendant's confrontation with the victim, and defendant kicking her after she fell to the ground. The victim did not testify, but photographs taken at the hospital showing her injuries were admitted into evidence. II. We first address defendant's claim in Point I that his video- recorded statement taken at the police station was obtained in violation of his Miranda4 rights, and that, following a pre-trial hearing, the trial judge erred in allowing its admission. 3 A transcript of the interview was provided to the jury to follow during the playing of the video but was not admitted into evidence. 4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 4 A-3577-14T3 Prior to giving a statement, defendant was read his Miranda rights, which he said he understood. Although defendant was not specifically asked if he was waiving his rights before he gave a statement, he confirmed his understanding of his rights by initialing, signing, and dating the Miranda card. Defendant then proceeded to describe the events that led to his admission that he struck his girlfriend. At the conclusion of his statement, he again acknowledged that he understood his Miranda rights and that he was not forced into making statements that he did not want to make. The judge denied defendant's motion to suppress the statement based upon his review of the video recording and the transcript of the recording. Looking at the totality of the circumstances and acknowledging that it was the State's burden to prove the statement's admissibility, the judge found "there is no reasonable doubt that would yield to the conclusion that this was nothing other than a knowing and voluntary waiver of Miranda rights." We review a trial judge's factual findings in support of granting or denying a motion to suppress to determine whether "those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). Where the judge determines whether a defendant waived his right to remain silent based solely on a video-recorded statement or documentary 5 A-3577-14T3 evidence, our Supreme Court recently held that we defer to a trial court's factual findings. State v. S.S., 229 N.J. 360, 374 (2017). The Court in S.S. also addressed and reaffirmed this State's historical commitment to an individual's right against self- incrimination. "The right against self-incrimination is guaranteed by the Fifth Amendment to the United States Constitution and this state's common law, now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503." Id. at 28 (quoting State v. Nyhammer, 197 N.J. 383, 399, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009)). Most importantly, the Court reaffirmed the standard that a reviewing court uses to determine if a defendant asserted his right against self- incrimination. Any words or conduct that reasonably appear to be inconsistent with defendant's willingness to discuss his case with the police are tantamount to an invocation of the privilege against self-incrimination. In those circumstances in which the suspect's statement is susceptible to two different meanings, the interrogating officer must cease questioning and "inquire of the suspect as to the correct interpretation." Unless the suspect makes clear that he is not invoking his right to remain silent, questioning may not resume. In other words, if the police are uncertain whether a suspect has invoked his right to remain silent, two alternatives are presented: (1) terminate the interrogation or (2) ask only those questions necessary to clarify whether the defendant intended to invoke his right to silence. 6 A-3577-14T3 To invoke the right to remain silent, a suspect does not have to follow a prescribed script or utter talismanic words. Suspects are mostly lay people unschooled in the law. They will often speak in plain language using simple words, not in the parlance of a constitutional scholar. So long as an interrogating officer can reasonably understand the meaning of a suspect's words, the suspect's request must be honored. [Id. at 29-30 (citations omitted).] Here, the record supports the motion judge's finding that defendant was fully informed of his right to remain silent, waived that right, and was aware that he was being investigated for the assault in a domestic violence situation before he decided to cooperate with the investigation and provide self-incriminating information. Thus, defendant's Miranda rights were not violated. Next, we turn to defendant's contention in Point II that admission of the 911 audio recording of the non-testifying caller violated his confrontation rights under Crawford. Defendant argues some of the 911 remarks were testimonial and were so intertwined with non-testimonial comments that he was denied the opportunity to challenge the testimonial comments because the caller did not testify. We review the trial court's evidentiary rulings to determine whether there was a mistaken exercise of discretion. State v. 7 A-3577-14T3 J.D., 211 N.J. 344, 354 (2012). Where a 911 call is admitted into evidence, we must consider the principles embodied in the Sixth Amendment's Confrontation Clause, which preclude the admission against a defendant of "[t]estimonial statements of witnesses absent from trial," unless "the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. "Testimonial" statements often include those made during structured police interrogation. Id. at 69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. Nonetheless: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. [Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006).] Generally, "at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to 'establis[h] or prov[e]' some past fact, but to describe current circumstances requiring police assistance." Id. at 827, 126 S. 8 A-3577-14T3 Ct. at 2276, 165 L. Ed. 2d at 240 (alterations in original). That is particularly so when "any reasonable listener would recognize [the 911 caller] was facing an ongoing emergency." Ibid. If, when viewed objectively, the nature of the colloquy between the 911 caller and the person called is such "that the elicited statements [are] necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past," the content of the call is not testimonial. Ibid. We agree with the trial judge that the 911 caller was facing an ongoing emergency and that her statements were non-testimonial. As in Davis, the caller's sole purpose was to describe present facts requiring police assistance. Although the caller gave a graphic and colorful description of what she saw, nothing in the call suggests that it was her or the 911 operator's intent that the she was declaring what had happened in the past to preserve testimony for trial. Similarly, we agree with the judge's finding that the 911 call was admissible under our evidence rules as a present sense impression or an excited utterance. A present sense impression is "[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1). An excited 9 A-3577-14T3 utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2). The 911 statements satisfied the elements of both hearsay exceptions. We also note that these exceptions apply "[w]hether or not the declarant is available as a witness[.]" N.J.R.E. 803(c). Furthermore, even if we concluded the 911 call was inadmissible, it would not cause us to reverse defendant's conviction. Reversal of a conviction is required only if there was error "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Daniels, 182 N.J. 80, 95 (2004) (alteration in original) (internal quotation omitted) (quoting State v. Macon, 57 N.J. 325, 336 (1971)); R. 2:10-2. Our review of the record convinces us that there was overwhelming evidence of defendant's guilt through the two eyewitnesses' testimony that they saw defendant strike and kick the victim, the surveillance videos depicting the confrontation and defendant's kick of the victim, photos of the victim's injury, and the defendant's admission that he argued with and then struck the victim. Thus, admission of the 911 call did not cause an unjust result. 10 A-3577-14T3 In Point III, defendant further challenges the admission of the 911 call by contending that the judge erred in refusing to give a Clawans charge to allow the jury to draw an adverse inference from the State's failure to produce the testimony of the 911 caller. There is no merit to this contention. In Clawans, our Supreme Court ruled that a party's failure to produce a witness at trial may give rise to an inference that the witness' testimony would have been unfavorable to that party. Clawans, supra, 38 N.J. at 170 (1962). A trial judge may provide an adverse inference charge after considering and making findings based on the following circumstances: (1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven. [State v. Hill, 199 N.J. 545, 561 (2009) (alteration in original) (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986)).] 11 A-3577-14T3 Here, none of these circumstances applies. There is no evidence that the caller was in the sole control of the State, or had a special relationship with the State. She was available to defendant if he wanted her to testify. Yet, given her observations, we find no basis to conclude that her testimony would have aided his defense. Considering the other strong evidence presented by the State, the caller's testimony was not essential to establish defendant's guilt. Finally, we turn to defendant's contention in Point IV that we should remand for resentencing because the judge's application of aggravating factor number one, N.J.S.A. 2C:44-1(a)(1) (the nature and circumstances of the offense, including whether it was committed in an especially heinous, cruel, or depraved manner), was not supported by the facts. We agree. We note that "[a]ppellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). Nevertheless, we do not affirm a sentence where "the aggravating factors . . . found by the sentencing court were not based upon competent and credible evidence in the record." State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). "When applying [factor one], 'the sentencing court reviews the severity of the defendant's crime, the single most important factor in the sentencing process, 12 A-3577-14T3 assessing the degree to which defendant's conduct has threatened the safety of its direct victims and the public.'" Id. at 74. (quoting State v. Lawless, 214 N.J. 594, 609 (2013)). "[A] sentencing court may justify the application of aggravating factor one . . . by reference to the extraordinary brutality involved in an offense. . . . A sentencing court may consider 'aggravating facts showing that [a] defendant's behavior extended to the extreme reaches of the prohibited behavior.'" Id. at 75 (alteration in original) (citations omitted) (quoting State v. Henry, 418 N.J. Super. 481, 493 (Law. Div. 2010)). In applying aggravating factor one, the trial judge cited State v. Mara, 253 N.J. Super. 204 (1992), to find that defendant's kicking of the victim while she lay on the ground and left her there was in excess of the injury needed to sustain second-degree aggravated assault. However, we conclude that in this situation reliance on Mara was misplaced. In Mara, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and in a separate trial, of driving under the influence of alcohol, N.J.S.A. 39:4-50. Id. at 208. He struck the victim, who was on the side of the road with a disabled vehicle, causing serious bodily injury. Ibid. He did not stop or attempt to obtain assistance for the victim. Id. at 213-14. We affirmed the court's finding that aggravating factor 13 A-3577-14T3 one applied where, in an aggravated assault case, "the serious injuries were far in excess of that required to satisfy" statutory elements. Id. at 214.5 Here, the facts do not warrant application of aggravating factor one. The defendant's act of kicking the victim was not far in excess of what was necessary to satisfy second-degree aggravated assault. There is no evidence that the kicking caused any injury to the victim. Hence, we remand the matter to the trial judge to re-sentence defendant without consideration of this factor. We do not express any opinion as to the appropriate sentence. Affirmed in part; reversed in part and remanded. We do not retain jurisdiction. 5 We did, however, remand for resentencing because the trial court double counted elements of aggravated assault by considering aggravating factors recklessness and conduct manifesting indifference to human life. Mara, supra, 253 N.J. Super. at 215. 14 A-3577-14T3
Docket No.: a4734-15
Decided: 2017-09-19
Caption: STATE OF NEW JERSEY v. NICHOLAS D. SOKOLOVSKI
Status: unpublished
Summary:
PER CURIAM By our leave granted, the Monmouth County Prosecutor's Office (MCPO) appeals from the April 15, 2016 order entered by Assignment Judge Lisa P. Thornton, granting the motion of defendant Nicholas D. Sokolovski to consolidate complaints pending in two municipal courts. Defendant was arrested in Freehold Township on July 13, 2015, and charged with disorderly persons offenses involving possession of marijuana and drug paraphernalia. Fifteen days later, defendant was arrested in Howell Township and again charged with marijuana related offenses.1 Defendant moved pursuant to Rule 7:8-4 to consolidate the two municipal matters in order to apply for a conditional discharge, N.J.S.A. 2C:36A-1, which would not be available if the two cases were prosecuted separately. Defendant's motion was unopposed by both municipal prosecutors, but MCPO objected, arguing the Rule did not permit consolidation of unrelated charges pending in different municipalities. After hearing oral argument, Judge Thornton granted defendant's motion and ordered both matters consolidated and heard in Howell municipal court. The judge conditioned the consolidation on resolution of the matters by guilty pleas 1 Although the initial summons included a third-degree distribution charge and a fourth-degree charge alleging possession of more than fifty grams, both were downgraded to disorderly persons offenses after review by MCPO. 2 A-4734-15T2 within forty-five days, or they would be returned to the respective municipalities for trial. On appeal, MCPO presents one argument: THE LOWER COURT ERRED IN GOING BEYOND THE PLAIN LANGUAGE OF THE RULE AND GRANTING CONSOLIDATION OF DEFENDANT'S MUNICIPAL COURT CASES FOR SENTENCING PURPOSES. Rule 7:8-4 addresses consolidation of municipal court matters: The court may order two or more complaints to be tried together if the offenses arose out of the same facts and circumstances, regardless of the number of defendants. In all other matters, the court may consolidate complaints for trial with the consent of the persons charged. Complaints originating in two or more municipalities may be consolidated for trial only with the approval of the appropriate Assignment Judge, who shall designate the municipal court in which trial is to proceed. A party seeking consolidation of complaints originating in different municipalities shall file a written motion for that relief directly with the Assignment Judge. MCPO argues the Rule permits consolidation only if the charges arise from "the same facts and circumstances" or if the consolidation is sought "for trial." Recently, we rejected a similar challenge to consolidation by MCPO in State v. Whooley, No. A-3395-15 (App. Div. Aug. 8, 2017). In Whooley, we observed: 3 A-4734-15T2 While the first sentence of Rule 7:8-4 appears to limit consolidation to matters arising "out of the same facts and circumstances," when read in conjunction with the next sentence, it is apparent that the restriction is limited to instances where the persons charged do not consent to consolidation. The second sentence refers to "all other matters" and suggests that complaints may be consolidated "with the consent of the persons charged." R. 7:8-4. When read in context, the Rule allows for consolidation of municipal complaints when the offenses do not arise from the same facts and circumstances, as long as the defendant consents. Because defendant not only consented but sought consolidation here, we reject MCPO's argument that consolidation is precluded because the two matters did not arise out of the same facts and circumstances. For the reasons stated in Whooley, we reject MCPO's argument that Judge Thornton erred in ordering consolidation here. Affirmed. 4 A-4734-15T2
Docket No.: a4753-15
Decided: 2017-09-19
Caption: WENTWORTH AT CRYSTAL SPRINGS COUNCIL ASSOCIATION, INC v. LAKALE T. GAGE
Status: unpublished
Summary:
PER CURIAM Plaintiff Wentworth At Crystal Springs Council Association, Inc., commenced this Special Civil Part collection action against defendants Gage, the owners of a condominium unit within the plaintiff-association. The association's two-page complaint alleged defendants owed $3610 in unpaid assessments and $3139.50 in counsel fees. When the parties appeared for trial, defendants maintained the stance they took from the outset: the assessments were due but the counsel fees sought were unreasonable. By the time of trial, even though the reasonableness of the counsel fee was the only contested issue, the association had not provided defendants with a statement or invoice quantifying those fees. Rather than hear testimony, the trial judge directed the association to provide a certification of services, and he allowed defendants an opportunity to respond. For reasons expressed in a cogent written opinion, the judge awarded the association $3610 in unpaid assessments and only $1500 in counsel fees. The judge determined that plaintiff engaged in numerous unnecessary services and sought reimbursement for items that were "inflated" or "excessive." He observed that the fees requested had almost doubled since the action's commencement even though defendants had never disputed their obligation to pay the assessments. The judge also viewed the counsel fee sought as disproportionate to the assessments upon which the suit was based. The judge concluded that the association's counsel fee request was unreasonable and awarded 2 A-4753-15T1 $1500. The judge also denied the association's reconsideration motion for reasons expressed in another written opinion, which contained an additional analysis of the award sought. In appealing, the association argues the judge relied on incorrect legal principles, failed to apply the business judgment rule, and arbitrarily reduced the counsel fee request. We find no merit in these arguments and affirm both the initial judgment and the order denying reconsideration for the reasons expressed by Judge David J. Weaver in his thorough and well-reasoned written opinions. Affirmed. 3 A-4753-15T1
Docket No.: a4888-14
Decided: 2017-09-18
Caption: EMIGRANT MORTGAGE COMPANY INC v. KAREN COSTA Telephonically
Status: unpublished
Summary:
PER CURIAM The New Jersey Home Ownership Security Act of 2002, N.J.S.A. 46:10B-22 to -35 (HOSA), authorizes a homeowner who has borrowed money for home improvements to assert against the loan creditor all affirmative claims and defenses the borrower may have against the home improvement contractor if the contractor arranged the loan.
Docket No.: a4973-14
Decided: 2017-09-18
Caption: BRIAN D. ASARNOW v. CITY OF LONG BRANCH
Status: unpublished
Summary:
PER CURIAM Plaintiff Brian D. Asarnow appeals from an October 3, 2014 order granting summary judgment in favor of defendants City of Long Branch and public officials Adam Schneider, Mary Jane Celli, Howard Woolley, Kevin Hayes, Michelle Bernich, Terry Janeczek, Michael Irene, and Long Branch Zoning Board of Adjustment ("Zoning Board"), ("public defendants"). Plaintiff also appeals from trial court orders vacating defaults against certain defendants and from a June 11, 2015 order memorializing a jury verdict entered in favor of defendants Edward Bruno, E&L Paving, Inc., Ray Greico, Atlantic Paving and Coating, LLC, Joe Rosario, Rosario Contracting Corp., Rosario Mazza Demolition and Recycling Co., and Custom Lawn Sprinkler Co., LLC ("private defendants").
Docket No.: a5162-14
Decided: 2017-09-18
Caption: STATE OF NEW JERSEY v. YASMEEN ANDERSON
Status: unpublished
Summary:
J.A.D. Following a jury trial, defendant was convicted of fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d), and acquitted of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). She was sentenced on March 13, 2015, to a one-year probationary term. Defendant now appeals from the memorializing judgment of conviction entered on March 20, 2015. We have considered defendant's arguments in light of our review of the record and applicable legal principles. We affirm, as we conclude that defendant's contentions are without merit. The following facts were adduced at the trial. At approximately 2:30 p.m. on February 5, 2014, Sergeant Robert Lavin of the Bound Brook Police Department was dispatched to a Fisher Avenue address on a report of a domestic dispute. Upon arrival, Lavin overheard both a male and a female voice "yelling and screaming" inside the residence. After Officer Jan Babula arrived to back-up Lavin, Lavin knocked on the front door of the residence and identified himself and his partner as police officers. About fifteen seconds later, a woman Lavin recognized as defendant from prior domestic disputes partially opened the door. Lavin observed a man known to him as R.C., defendant's live-in boyfriend, seated on the stairwell next to the front door. Defendant continued to yell at R.C. and refused to open the door entirely despite Lavin's insistence.
Docket No.: a5740-14
Decided: 2017-09-18
Caption: STATE OF NEW JERSEY v. MICHAEL ESPOSITO
Status: unpublished
Summary:
GOODEN BROWN, J.A.D. Defendant Michael Esposito appeals his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), DWI in a school zone, N.J.S.A. 39:4-50(g), and refusal to submit to a breath test (Refusal), N.J.S.A. 39:4-50.4(a). Defendant was convicted following a trial de novo in the Law Division.1 After merger, defendant's driver's license was suspended for two consecutive one-year terms, participation in the Intoxicated Driver Resource Center for twelve hours was imposed, installation of an ignition interlock device for six months following restoration of his driving privileges was ordered, and all applicable fines and penalties were assessed. We affirm.
Docket No.: a5030-15
Decided: 2017-09-15
Caption: PAONESSA COLON & RECTAL SURGERY, P.C. v. CERNERO CHILDREN'S TRUST
Status: unpublished
Summary:
PER CURIAM R. 1:7-4 directs trial judges to render findings of fact and conclusions of law "on every motion decided by a written order that is appealable as of right. . . ." That basic tenet has been often repeated. The absence of the analysis that leads a judge to his or her conclusion makes our review impossible. After all, we exercise a limited role on appeal. We do not disturb findings of fact or conclusions of law unless convinced "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J 474, 484 (1974), see also Petrozzi v. City of Ocean City, 433 N.J. Super. 290, 316-317 (App. Div. 2014). On April 29, 2016, summary judgment was granted to plaintiff Paonessa Colon and Rectal Surgery, P.C. Defendants Cernero Children's Trust and JMC Management Group are plaintiff's landlord and property managers respectively. The underlying dispute involved the cost of defendants' fit out of rental premises for plaintiff's use as a medical office.
Docket No.: a5052-14
Decided: 2017-09-15
Caption: STATE OF NEW JERSEY v. CHARLES GOULD
Status: unpublished
Summary:
PER CURIAM Defendant Charles Gould appeals the trial court’s denial of his petition for post-conviction relief ("PCR") without an evidentiary hearing. We affirm, except to remand for a slight correction to the period of parole ineligibility expressed imprecisely within defendant's judgment of conviction.
Docket No.: a5496-14
Decided: 2017-09-14
Caption: STATE OF NEW JERSEY v. SHAWN D. HOLLABAUGH
Status: unpublished
Summary:
PER CURIAM Defendant appeals from the July 2, 2015 order of the trial court denying his motion for a reduction of sentence. We affirm.
Docket No.: a5551-14
Decided: 2017-09-14
Caption: LEARNING COMMUNITY CHARTER SCHOOL v. BOARD OF EDUCATION OF THE CITY OF JERSEY CITY
Status: unpublished
Summary:
PER CURIAM In a July 6, 2015 final agency decision, the Commissioner of Education adopted the initial decision of the administrative law judge, granted motions for summary decision filed by the Board of Education of the City of Jersey City and the New Jersey Department of Education, and dismissed the petition filed by four Jersey City charter schools: Learning Community Charter School; Soaring Heights Charter School; The Ethical Community Charter School; and Golden Door Charter School.
Docket No.: a5562-14
Decided: 2017-09-14
Caption: STATE OF NEW JERSEY v. JULIO RIVERO
Status: unpublished
Summary:
PER CURIAM Defendant Julio C. Rivero appeals from the July 17, 2015 order entered by the Criminal Part denying his post-conviction relief (PCR) petition. We affirm.
Docket No.: a3649-14
Decided: 2017-09-13
Caption: FRANCES CASO v. FERNANDO GUERRERO
Status: unpublished
Summary:
PER CURIAM Plaintiff Frances Caso appeals from the March 2, 2015 order of the Family Part, granting defendant Fernando Guerrero's motion to terminate his alimony obligation based on plaintiff's cohabitation, and ordering plaintiff to repay $111,600, representing the overpayment of alimony from March 25, 2013 to February 28, 2015. We affirm.
Docket No.: a4398-14
Decided: 2017-09-13
Caption: STATE OF NEW JERSEY v. JAMAAL CAMPBELL
Status: unpublished
Summary:
PER CURIAM Defendant Jamaal Campbell appeals from a May 4, 2015 judgment of conviction for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), charged in count twenty-one of Indictment No. 14-12-3442. Defendant was initially charged as a juvenile in a complaint alleging acts of delinquency that, if committed by an adult, would constitute second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one), and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two). After the State prevailed on its motion to waive jurisdiction by the Family Part and prosecute defendant as an adult pursuant to N.J.S.A. 2A:4A-26(a),1 he was charged with both offenses in counts twenty-one and twenty-two, respectively, of Indictment No. 14-12-3442. Thereafter, defendant entered a negotiated guilty plea to count twenty-one of the indictment and was sentenced to a five-year term of imprisonment with a three-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). On appeal, defendant challenges the Family Part order waiving jurisdiction, arguing that the State failed to establish probable cause that he possessed a handgun for an unlawful purpose, a Chart 1 offense, and that the State abused its discretion in seeking a waiver. After reviewing the arguments advanced on appeal, in light of the record and applicable law, we affirm.
Docket No.: a4669-14
Decided: 2017-09-13
Caption: CARRIER CLINIC-PATIENTS v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Status: unpublished
Summary:
PER CURIAM Petitioner Carrier Clinic appeals from a April 29, 2015 final decision of respondent Division of Medical Assistance and Health Services (Division), which denied Medicaid benefits for services petitioner rendered to two of its patients, A.M. and C.I. We remand for further proceedings.
Docket No.: a5638-14
Decided: 2017-09-13
Caption: STATE OF NEW JERSEY v. SEAN TALIAFERRO
Status: unpublished
Summary:
PER CURIAM Defendant Sean Taliaferro appeals the May 5, 2015 order of the Criminal Part denying his pro se motion to correct an illegal sentence which was imposed by the trial court on August 8, 2008. We affirm. Defendant was tried before a jury on February 15 and 16, 2006, and convicted of second degree robbery, N.J.S.A. 2C:15-1, third degree receiving stolen property, N.J.S.A. 2C:20-7, and third degree eluding, N.J.S.A. 2C:29-2b. On March 31, 2006, the trial court sentenced defendant to an extended term of seventeen years on the robbery conviction, with an eighty-five percent period of parole ineligibility and five years of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court imposed a term of five years, with two-and-one-half years of parole ineligibility on the convictions for receiving stolen property and eluding, to run concurrent to each other but consecutive to the seventeen-year term imposed on the robbery.
Docket No.: a0202-16
Decided: 2017-09-12
Caption: IN THE MATTER OF THE CIVIL COMMITMENT OF B.R.
Status: unpublished
Summary:
PER CURIAM B.R. appeals from a judgment entered by the Law Division committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38. He contends there was insufficient evidence supporting the court's determination that he suffered from a mental abnormality or personality disorder and presents a high risk of reoffending, the court erred by shifting the burden of proof to him during the commitment hearing, and the State failed to sustain its burden of proof. We disagree and affirm.
Docket No.: a1598-14
Decided: 2017-09-12
Caption: STATE OF NEW JERSEY v. O.L.
Status: unpublished
Summary:
PER CURIAM Defendant appeals from his judgment of conviction stemming from engaging in sexual conduct with his girlfriend's fourteen-year-old sister, C.H. He was charged in an indictment with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count one);1 second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count two); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three). A jury trial was conducted from May 6 through 15, 2014, during which, with defendant's consent, count one was amended to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The jury found defendant not guilty on counts one and two, but guilty on count three. He was sentenced to a five-year term of imprisonment and a special sentence of parole supervision for life, N.J.S.A. 2C:43-6.4. All applicable fines and penalties were imposed. On appeal, defendant argues:
Docket No.: a2511-15
Decided: 2017-09-12
Caption: TROY HENDERSON v. SOMERSET COUNTY
Status: unpublished
Summary:
PER CURIAM Plaintiff Troy Henderson appeals from the October 9, 2015 Law Division order, which dismissed his complaint against defendant the County of Somerset (County) with prejudice pursuant to Rule 4:6-2(e). Plaintiff also appealed from the January 22, 2016 order, which dismissed the complaint against defendant Warren Township Police Department with prejudice. However, plaintiff failed to submit the order or the judge's statement of reasons, leaving us no alternative but to affirm the January 22, 2016 order. Cipala v. Linclon Tech. Inst., 179 N.J. 45, 55 (2004); Soc'y Hill Condo. Ass'n. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). For the following reasons, we affirm the October 9, 2015 order as well. We derive the following facts from the record. Following a motor vehicle stop on June 10, 2011, the police searched plaintiff's vehicle and found six bricks of heroin. A grand jury indicted defendant for possession with intent to distribute a controlled dangerous substance (heroin), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(13). Defendant also received summonses charging him with several motor vehicle violations.
Docket No.: a2667-15
Decided: 2017-09-12
Caption: JAMIELYN GERARD v. BOARD OF REVIEW and SURFACE SOURCE INTERNATIONAL, INC
Status: unpublished
Summary:
PER CURIAM Claimant Jamielyn Gerard appeals from the February 8, 2016 final agency decision of the Board of Review (Board), rejecting her claim for unemployment benefits. Claimant worked as an administrative assistant for Surface Source International, Inc. (SSI) from February 2008 until she sent an email resigning in April 2014. Claimant argues she had good cause to quit her job because her coworker continuously harassed her for over three years, and SSI failed to take effective steps to stop the harassment. We agree and reverse.
Docket No.: a4175-15
Decided: 2017-09-12
Caption: ROSEMARY STANLEY v. CAPRI TRAINING CENTER, INC
Status: unpublished
Summary:
PER CURIAM Plaintiff Rosemary Stanley appeals from an order dismissing her putative class action complaint with prejudice for failure to state a claim upon which relief can be granted. R. 4:6-2(e). Based on our review of the record in light of the applicable law, we reverse and remand for further proceedings. I.
Docket No.: a4210-15
Decided: 2017-09-12
Caption: MARTIN ROGERS v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: unpublished
Summary:
PER CURIAM Appellant Martin Rogers appeals from the August 6, 2015 final agency decision of respondent New Jersey Department of Corrections (DOC), which affirmed the decision of a hearing officer finding him guilty of, and imposing disciplinary sanctions for, committing prohibited acts *.004, fighting with another person, and *.402, being in an unauthorized area, in violation of N.J.A.C. 10A:4-4.1(a). For the following reasons, we affirm.
Docket No.: a5291-14
Decided: 2017-09-12
Caption: 26 FLAVORS, LLC v. TWO RIVERS COFFEE, LLC
Status: unpublished
Summary:
PER CURIAM Third-party defendant Emil Friedman appeals from a provision in a May 15, 2015 order granting defendant/third-party plaintiff Two Rivers Coffee, LLC leave to file a third-party complaint against him.1 Friedman also appeals from those provisions of a June 30, 2015 order permitting defendant to retain counsel and to pay for its attorney's fees. After reviewing the record and applicable legal principles, we conclude the provisions in the orders under review are moot.
Docket No.: a5505-14
Decided: 2017-09-12
Caption: PAUL J. BANACH v. ALEX TARAKANOV
Status: unpublished
Summary:
PER CURIAM Plaintiffs Paul and April Banach1 filed suit against defendant New Jersey Manufacturers Insurance Company (NJM) asserting claims of negligence, gross negligence, and willful misconduct relating to inadequate underinsured motorist (UIM)2 coverage in their commercial automobile insurance policy. Plaintiffs now appeal from two Law Division orders: the first denied their motion to amend their complaint, and the second granted NJM's motion for summary judgment, dismissing their complaint.
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