Recent Decisions of the New Jersey Appellate Courts
from 2022-06-14
to 2022-06-28
Docket No.: a-74-20
Decided: 2022-06-23
Caption: Robert Sipko v. Koger, Inc.
Summary:
PIERRE-LOUIS, J., writing for a unanimous Court.
In this case, the Court considers whether a marketability discount should be
applied to the valuation of Robert Sipko's interests in Koger Distributed Solutions,
Inc. (KDS) and Koger Professional Services, Inc. (KPS).
Docket No.: a-15-21
Decided: 2022-06-22
Caption: State v. Abayuba Rivas
Summary:
ALBIN, J., writing for a unanimous Court. When a suspect invokes the right to counsel during a custodial interrogation, questioning must cease unless the accused initiates further communication or conversation, counsel is made available, or a sufficient break in custody occurs. The issue in this case is whether defendant Abayuba Rivas freely initiated further communications with the police immediately on the heels of a nearly six-hour unlawful interrogation that led to a full confession.
Docket No.: a-60-20
Decided: 2022-06-21
Caption: State v. Ashley D. Bailey
Summary:
PATTERSON, J., writing for a unanimous Court.
In this appeal of defendant Ashley D. Bailey's conviction of two counts of
second-degree official misconduct, the Court considers whether the crime-fraud
exception to the marital communications privilege governed text messages that
defendant exchanged with her husband on September 16, 2014 -- after the Court
proposed the exception in State v. Terry, 218 N.J. 224 (2014), but before the
Legislature enacted it into law via L. 2015, c. 138, § 2.
Docket No.: a-17-21
Decided: 2022-06-16
Caption: State v. Rahee Lane
Summary:
PATTERSON, J., writing for the Court. In 2020, the Legislature amended N.J.S.A. 2C:44-1 to add a new mitigating factor fourteen: “[t]he defendant was under 26 years of age at the time of the commission of the offense.” N.J.S.A. 2C:44-1(b)(14). It provided that “[t]his new act shall take effect immediately.” L. 2020, c. 110, § 2. In this appeal, the Court considers defendant Rahee Lane's argument that the new mitigating factor should be applied to defendants who were under twenty-six years old at the time of their offenses, if their direct appeals were pending when the statute was amended.
Docket No.: a0714-20
Decided: 2022-06-20
Caption: MAC PROPERTY GROUP LLC v. SELECTIVE FIRE AND
CASUALTY INSURANCE
COMPANY
Status: Published
Summary:
SUMNERS, JR., J.A.D. These six back-to-back appeals arising from Law Division orders in two vicinages have been consolidated for the issuance of a single opinion. They require us to consider an issue of first impression––whether in the context of Rule 4:6-2(e) motions to dismiss with prejudice, insurance policies issued by defendants did not cover business losses incurred by plaintiffs that were forced to close or limit their operations as a result of Executive Orders (EOs) issued by Governor Philip Murphy to curb the COVID-19 global health crisis.
Docket No.: a1534-21
Decided: 2022-06-20
Caption: FAYE HOELZ v. ANDREA LEGATH BOWERS,
M.D.
Status: Published
Summary:
MESSANO, P.J.A.D. Prior to the 1952 enactment of the Joint Tortfeasors Contribution Law (the JTCL), N.J.S.A. 2A:53A-1 to -5, the common law of New Jersey "permitted a plaintiff to place the entire burden of fault on one defendant, who was then helpless to shift any of the responsibility to any other joint defendants." Tino v. Stout, 49 N.J. 289, 298 n.3 (1967); see also Town of Kearny v. Brandt, 214 N.J. 76, 97 (2013) (noting the JTCL "was enacted to promote the fair sharing of the burden of judgment by joint tortfeasors and to prevent a plaintiff from arbitrarily selecting his or her victim" (quoting Holloway v. State, 125 N.J. 386, 400–01 (1991))). "Once enacted, the JTCL apportioned any damage award on a pro rata basis among adjudicated tortfeasors." Glassman v. Friedel, 465 N.J. Super. 436, 446–47 (App. Div. 2020) (citing Blazovic v. Andrich, 124 N.J. 90, 103 (1991)), aff'd as mod., 249 N.J. 199 (2021).
Docket No.: a0476-21
Decided: 2022-06-16
Caption: VADIM CHEPOVETSKY v.
LOUIS CIVELLO, JR.
Status: Published
Summary:
PER CURIAM Defendant Louis Civello, Jr. appeals from a September 3, 2021 Chancery Division order vacating a June 24, 2021 judgment entered against plaintiffs Vadim Chepovetsky and Svetlana Nashtatik pursuant to Rule 4:50-1(d) and reinstating plaintiffs complaint to quiet title. We affirm in part, as modified, vacate in part, and remand.
Docket No.: a0726-20
Decided: 2022-06-16
Caption: SHEILA BRYANT v. COUNTY OF CUMBERLAND
Status: Published
Summary:
FISHER, P.J.A.D.
In a matter of first impression, we hold that service of a Tort Claims Act
notice of claim on a county is sufficient when sent to the county clerk rather
than the board of county commissioners.
Docket No.: a0912-20
Decided: 2022-06-16
Caption: SHEILA BRYANT v. COUNTY OF CUMBERLAND
Status: Published
Summary:
FISHER, P.J.A.D.
In a matter of first impression, we hold that service of a Tort Claims Act
notice of claim on a county is sufficient when sent to the county clerk rather
than the board of county commissioners.
Docket No.: a1374-20
Decided: 2022-06-23
Caption: STATE OF NEW JERSEY v. GREGORY CRANCE
Status: Unpublished
Summary:
PER CURIAM Defendant Delaware River Tubing, Inc. (DR Tubing) appeals from a January 25, 2021 order finding the company guilty of twenty-five violations of N.J.A.C. 7:2-2.5, for operating a commercial enterprise on State parklands without a permit. The order penalized DR Tubing $1800 for each violation for total penalties of $20,000. We affirm because the fines were authorized by statute, the court's findings were supported by substantial credible evidence, and the amounts imposed were within the court's discretion.
Docket No.: a1824-21
Decided: 2022-06-23
Caption: AC OCEAN WALK, LLC v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY
Status: Unpublished
Summary:
PER CURIAM By way of leave to appeal granted, defendant insurance carriers American Guarantee and Liability Insurance Company (AGLIC), AIG Specialty Insurance Company (AIG), and Interstate Fire and Casualty Company (IFCC) (collectively defendants), appeal from a December 22, 2021 Law Division order denying their motion to dismiss plaintiff AC Ocean Walk LLC's (Ocean) complaint. 1 Ocean operates the Ocean Casino Resort in Atlantic City. In its complaint, Ocean sought property and business interruption insurance under defendants' policies for losses of income during closure of its casino pursuant to COVID-19 Executive Orders issued by the Governor. The trial court found Ocean sufficiently pled that COVID-19 caused a direct physical loss or damage to its casino to surmount defendants' motion to dismiss and the coverage sought by Ocean under various sections of the issued policies. The court determined that the contamination exclusion contained in the policies did not apply because they were ambiguous. 2 For the reasons that follow, we reverse.
Docket No.: a1903-20
Decided: 2022-06-23
Caption: STATE OF NEW JERSEY v. EDWARD RASKIN
Status: Unpublished
Summary:
PER CURIAM Defendant Edward Raskin, a previously licensed acupuncturist, appeals from his conviction and sentence for sexually assaulting and criminally sexually contacting a patient, L.V. (Lori).1 We affirm in part, vacate in part, and remand.
Docket No.: a2117-20
Decided: 2022-06-23
Caption: STATE OF NEW JERSEY v. JAMEEL DIXON
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from the August 19, 2020 Law Division order denying his petition for post-conviction relief (PCR). Judge John A. Young, Jr., determined that defendant's PCR petition was time-barred, but nonetheless addressed defendant's contentions on the merits. Judge Young found that his claims were based on bare assertions and, as a result, concluded that defendant had failed to establish a prima facie case to justify an evidentiary hearing. After carefully reviewing the record in light of the governing legal principles, we affirm substantially for the reasons explained in Judge Young's cogent written opinion.
Docket No.: a2264-20
Decided: 2022-06-23
Caption: NOREEN FLUGGER v. AA RIDGEWOOD REGISTERED PROFESSIONAL NURSES ASSOCIATION
Status: Unpublished
Summary:
PER CURIAM Plaintiffs Noreen Flugger and Margaret Hayes appeal from an order granting defendants' summary-judgment motion. Plaintiffs do not challenge the motion judge's conclusion that plaintiffs' claims were barred by the entire controversy doctrine. We agree with the judge's conclusion and affirm.
Docket No.: a2459-20
Decided: 2022-06-23
Caption: STATE OF NEW JERSEY v. PHILLIPE BARTHELUS
Status: Unpublished
Summary:
PER CURIAM Defendant Phillipe Barthelus appeals from June 28, 2019 and October 8, 2020 orders entered following successive evidentiary hearings, regarding his petition for post-conviction relief (PCR). We affirm.
Docket No.: a2523-19
Decided: 2022-06-23
Caption: STATE OF NEW JERSEY v. JERYL MIDDLETON
Status: Unpublished
Summary:
PER CURIAM Defendant Jeryl Middleton appeals from a judgment of conviction that was entered on November 14, 2018, after defendant pled guilty to one count of second-degree witness tampering, N.J.S.A. 2C:28-5(b), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The trial court sentenced defendant consistent with his plea agreement to an aggregate seven-year term with a forty-two-month period of parole ineligibility. On appeal, defendant challenges his conviction by arguing the trial court erred by denying his motion to suppress the inculpatory, custodial statement he gave to law enforcement. Specifically, defendant argues the following one point: POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENT BECAUSE THE RECORD CLEARLY DEMONSTRATES THAT HIS PROLONGED CONFINEMENT AMONG CO-DEFENDANTS WHO PRESSURED HIM TO TALK RENDERED HIS WAIVER OF THE RIGHT TO REMAIN SILENT INVOLUNTARY. Having carefully reviewed the record, we disagree with defendant's contention and affirm.
Docket No.: a3263-20
Decided: 2022-06-23
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.T and R.O
Status: Unpublished
Summary:
PER CURIAM In this appeal, we consider whether the court erred when it found the New Jersey Division of Child Protection and Permanency proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence and terminated defendant father's parental rights. Defendant claims there was no evidence presented at trial he actually harmed the children, the Division did not make reasonable efforts to help him find adequate housing, and the Division failed to prove terminating his parental rights would do no more harm than good to the children. The children's law guardian urges us to affirm.
Docket No.: a3366-20
Decided: 2022-06-23
Caption: J.D v. R.J.C
Status: Unpublished
Summary:
PER CURIAM After a hearing on defendant R.J.C.'s motion to vacate a domestic violence final restraining order (FRO) due to lack of proper service, a Family Part judge denied the application as meritless and untimely. See Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. For the reasons stated by Judge Christine Smith, we affirm.
Docket No.: a3807-19
Decided: 2022-06-23
Caption: STATE OF NEW JERSEY v. JUAN R. NIEVES
Status: Unpublished
Summary:
PER CURIAM After pleading guilty to second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), Juan Nieves (Nieves) was sentenced to a forty-two- month term of imprisonment, subject to forty-two months of parole ineligibility. Nieves petitioned for post-conviction relief (PCR) before the sentencing court, and the application was denied without an evidentiary hearing. Nieves appealed alleging that trial counsel rendered ineffective assistance of counsel by mistakenly telling him he would face thirty-six months in prison, not forty-two months, and by failing to communicate, meet, or review discovery with him, essentially forcing him to plead guilty. We affirm for the reasons set forth in this opinion.
Docket No.: a0016-21
Decided: 2022-06-22
Caption: JOSEPH PILEGGI I v. ZONING BOARD OF ADJUSTMENT OF CITY OF NORTH WILDWOOD and CITY OF NORTH WILDWOOD
Status: Unpublished
Summary:
PER CURIAM Kevin Cassidy appeals from the trial court's denial of his motion to intervene in this long-running zoning dispute in North Wildwood. We affirm the trial court's decision.
Docket No.: a0772-20
Decided: 2022-06-22
Caption: STATE OF NEW JERSEY v. MARCUS WHITFIELD
Status: Unpublished
Summary:
PER CURIAM Defendant Marcus Whitfield appeals from the May 28, 2020 order of the Law Division dismissing his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Docket No.: a0925-20
Decided: 2022-06-22
Caption: STATE OF NEW JERSEY v. JASON MITTLEMAN
Status: Unpublished
Summary:
PER CURIAM Defendant Jason Mittleman appeals from an order denying his motion to compel his admission into the Pretrial Intervention Program (PTI) over the prosecutor's objection. Because the Law Division correctly determin ed that the prosecutor's decision was not a patently gross abuse of discretion, we affirm.
Docket No.: a0984-20
Decided: 2022-06-22
Caption: IN THE MATTER OF PETITION TO REPEAL RULES PERMITTING BLACK BEAR HUNTING INCLUDING THE COMPREHENSIVE BLACK BEAR MANAGEMENT POLICY N.J.A.C. 7:25-5.6 AND 5.24
Status: Unpublished
Summary:
PER CURIAM Appellants Robert Torricelli, the Animal Protection League of New Jersey, and The League of Humane Voters of New Jersey, among others, petitioned the Department of Environmental Protection (DEP) to repeal certain rules permitting black bear hunting, specifically N.J.A.C. 7:25-5.6 and -5.24, and the Comprehensive Black Bear (Ursus americanus) Management Policy, N.J.A.C. 7:25-5.6 (App.) (2020) (Policy).1 Because petitioners sought the repeal of portions of the Game Code, N.J.A.C. 7:25-5 to -5.39, the DEP concluded the petition should have been submitted to the Fish and Game Council (Council), not the DEP, and denied it on that procedural ground. Appellants appeal that denial. We agree with the DEP and affirm.
Docket No.: a1473-20
Decided: 2022-06-22
Caption: M.B v. D.L
Status: Unpublished
Summary:
PER CURIAM Plaintiff M.B. (Matt)1 appeals from a December 24, 2020 order denying his application to compel visitation under the Grandparent Visitation Statute (GVS), N.J.S.A. 9:2-7.1. He also challenges a June 17, 2021 order denying his reconsideration motion and his motion to vacate. We affirm.
Docket No.: a2338-19
Decided: 2022-06-22
Caption: STATE OF NEW JERSEY v. ADEI A. ANDREWS
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from her jury trial conviction for operating a motor vehicle while her license was suspended for a prior conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. After carefully reviewing the record in light of the arguments of the parties and the governing legal principles, we affirm.
Docket No.: a2811-19
Decided: 2022-06-22
Caption: STATE OF NEW JERSEY v. CHRISTOPHER POOLE
Status: Unpublished
Summary:
PER CURIAM Defendant Christopher Poole appeals his convictions and sentence for first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2), second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A 2C:39-4(a), arguing:1 I. THE LEAD DETECTIVE'S REPEATED IDENTIFICATIONS OF DEFENDANT AS THE SHOOTER ON THE VIDEO AND HIS OPINION THAT DEFENDANT "MATCHED" THE DESCRIPTION OF THE SHOOTER GIVEN BY EYEWITNESSES WAS INAPPROPRIATE, PREJUDICIAL, AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS. II. ADMISSION OF OTHER-BAD-ACT EVIDENCE THAT DEFENDANT POSSESSED CONTROLLED DANGEROUS SUBSTANCES AND PACKAGING MATERIALS USED TO DISTRIBUTE CONTROLLED DANGEROUS SUBSTANCES WAS IRRELEVANT, INADMISSIBLE, AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS. III. THE LEAD DETECTIVE'S SPECULATION THAT PEOPLE DID NOT "COOPERATE" WITH THE POLICE BECAUSE THEY WERE AFRAID OF DEFENDANT WAS BASELESS, 1 We have reorganized defendant's point headings to reflect the order in which we discuss each issue in our opinion. A-2811-19 2 PREJUDICIAL, AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS. IV. HEARSAY TESTIMONY THAT THE EYEWITNESSES WERE "CONFIDENT" IN THEIR IDENTIFICATIONS, DESPITE THEIR CONFIDENCE LEVEL NOT BEING RECORDED IN THEIR OWN WORDS DURING THE IDENTIFICATION PROCEDURE, WAS INAPPROPRIATE, PREJUDICIAL, AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS. V. EVEN IF ANY ONE OF THE COMPLAINED-OF ERRORS WOULD BE INSUFFICIENT TO WARRANT REVERSAL, THE CUMULATIVE EFFECT OF THOSE ERRORS WAS TO DENY DEFENDANT DUE PROCESS AND A FAIR TRIAL. VI. DEFENDANT'S LIFE SENTENCE, IMPOSED FOR AN OFFENSE COMMITTED WHEN HE WAS [TWENTY-FOUR], IS EXCESSIVE. We have reviewed and considered each of these arguments in light of the entire record and applicable law. Although the errors identified by defendant, which were not objected to at trial, may not independently rise to the level of plain error, an issue which we do not address, we are satisfied that their cumulative effect clearly deprived him of a fair trial mandating that we reverse his conviction and remand for a new trial.
Docket No.: a2879-20
Decided: 2022-06-22
Caption: SEVAN ASSOCIATES, INC v. SUBWAY REAL ESTATE LLC
Status: Unpublished
Summary:
PER CURIAM Plaintiff Sevan Associates appeals from a May 21, 2021 order granting defendant Kanchi Patel's motion for summary judgment. We affirm.
Docket No.: a3142-20
Decided: 2022-06-22
Caption: TERESSA SIMBA BHARATH v. JAMES H. YOUNG
Status: Unpublished
Summary:
PER CURIAM In this non-dissolution matter brought under the Uniform Interstate Family Support Act (UIFSA), N.J.S.A. 2A:4-30.124 to -30.201, defendant James Young appeals from the May 25, 2021 order fixing his child support obligation. We affirm.
Docket No.: a4746-18
Decided: 2022-06-22
Caption: W. CHARLES NIESSNER v. FUTURE NOW ENERGY, LTD
Status: Unpublished
Summary:
PER CURIAM These back-to-back appeals arise from a dispute over the ownership of plaintiff Keeley Lake Lodge Ltd. (1989) (the Lodge), a Canadian corporation, whose principal asset is a hunting and fishing lodge in Saskatchewan. Co- plaintiffs Charles Niessner and Richard Lunemann were both New Jersey citizens. Defendant Timothy Cimmer is a Canadian citizen residing in Saskatoon, and defendant James Sharp is a resident of Virginia.
Docket No.: a0265-20
Decided: 2022-06-21
Caption: STATE OF NEW JERSEY v. DWAYNE S. PENIX
Status: Unpublished
Summary:
PER CURIAM A jury convicted defendant Dwayne S. Penix of first-degree robbery, N.J.S.A. 2C:15-1(a)(2), and fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e). On August 13, 2020, the trial judge, after finding aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3) and (9), and no factors in mitigation, merged the possession offense into the robbery, and sentenced defendant to twelve years subject to the No Early Release Act's eighty-five percent parole ineligibility, N.J.S.A. 2C:43-7.2. Defendant appeals, and we affirm.
Docket No.: a0414-19
Decided: 2022-06-21
Caption: STATE OF NEW JERSEY v. EVAN WALKER
Status: Unpublished
Summary:
PER CURIAM Defendant Evan Walker appeals from the September 29, 2019 order of the Law Division convicting him after a trial de novo of driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm.
Docket No.: a0537-19
Decided: 2022-06-21
Caption: STATE OF NEW JERSEY v. TYRIE R. BULLOCK
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from his guilty plea convictions for first-degree aggravated manslaughter and possession of a handgun. The prosecution arises from a failed robbery during which one of the victims, Edgar Patricio, was shot in the chest and killed. Defendant was charged by a grand jury with committing a knowing/purposeful murder in the course of a first-degree robbery. The murder charge was downgraded and the robbery charge dismissed pursuant to a plea bargain. As part of the plea agreement, defendant preserved the right to challenge pretrial evidentiary rulings made by the trial court.
Docket No.: a0973-21
Decided: 2022-06-21
Caption: V.S. v. T-MOBILE, USA, INC.
Status: Unpublished
Summary:
PER CURIAM Plaintiff V.S. appeals from the October 26, 2021 Law Division order dismissing her complaint against defendant T-Mobile, USA, Inc. (T-Mobile) without prejudice and compelling arbitration. Plaintiff's complaint alleges thirteen causes of action against T-Mobile and defendant Jayson Patroche stemming from events, which occurred on February 5, 2021, involving her purchase of a new cell phone and the unauthorized transfer of nude photos and data. For the reasons that follow, we affirm.
Docket No.: a1826-21
Decided: 2022-06-21
Caption: ROCKLEIGH COUNTRY CLUB, LLC v. HARTFORD INSURANCE GROUP
Status: Unpublished
Summary:
PER CURIAM Plaintiff Rockleigh Country Club, LLC, owns and operates a facility that conducts "pre-contracted for and pre-planned social events [such as] weddings." In March 2020, Governor Philip D. Murphy issued Executive Order 107 (EO 107) in response to the COVID-19 pandemic. Exec. Order No. 107 (Mar. 21, 2020), 52 N.J.R. 554(a) (Apr. 6, 2020). In pertinent part, EO 107 "cancelled" "[g]atherings of individuals, such as parties, celebrations, or other social events," required the closure of "[t]he brick-and-mortar premises of all non- essential retail businesses," and mandated the closure of "[a]ll recreational and entertainment business." In accordance with EO 107, plaintiff closed its venue pending further orders from the Governor.
Docket No.: a2088-20
Decided: 2022-06-21
Caption: S.W. and J.W v. ELIZABETH BOARD OF EDUCATION
Status: Unpublished
Summary:
PER CURIAM Appellants S.W.1 and J.W. (the parents) appeal on behalf of their son, J.W., from a February 17, 2021 Law Division order issued by Judge Daniel R. Lindemann denying their request for an order to show cause and dismissing with prejudice their complaint against the Elizabeth Board of Education (Board) alleging a violation of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. After carefully reviewing the record in view of the arguments of the parties and the applicable legal principles, we affirm substantially for the reasons expressed in Judge Lindemann's eleven-page written opinion.
Docket No.: a2424-20
Decided: 2022-06-21
Caption: STATE OF NEW JERSEY v. OLUTOKUNBO EFUNNUGA
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from a February 2, 2021, Law Division order denying his request for specified jail credits towards the eight-year prison sentence imposed on his guilty plea conviction for first-degree armed robbery. From January 24, 2018, to April 24, 2018, defendant was in a federal correctional facility in Pennsylvania serving a federal sentence for violating supervised release.1 Immediately following the expiration of the federal sentence on April 24, 2018, defendant was detained in Philadelphia pursuant to a New Jersey detainer based on the New Jersey robbery charges and subsequently arrested on these charges on April 25, 2018. Defendant was released on bail on April 26, 2018. After carefully reviewing the record in light of the governing principles of law, we reject defendant's contention that he is entitled to jail credit during the period when he was in a federal correctional facility in Pennsylvania serving the federal sentence for violating federal supervised release. However, we agree with defendant that he is entitled to jail credits from April 24, 2018, when he was taken into custody in Pennsylvania based on the New Jersey armed robbery detainer, to April 26, 2018, when he posted bail. Because that period of confinement appears to have been due solely to the New Jersey detainer, he is entitled to credit for those two days of incarceration. We therefore remand to 1 Under federal law, supervised release is the non-custodial portion of the sentence that is imposed on a defendant's federal conviction.
Docket No.: a2696-20
Decided: 2022-06-21
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.B and P.K
Status: Unpublished
Summary:
PER CURIAM In this action filed under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, and Title Thirty, N.J.S.A. 30:4C-12, defendant P.K. (Phil)1 appeals from the Family Part's May 20, 2021 order denying his Rule 4:50-1(f) motion that sought to amend the trial court's December 7, 2020 order that terminated the litigation with the consent of all parties. In his motion, Phil requested the order be amended to include a statement that "either party may file an application with the court regarding custody and parenting time without a further showing of a substantial change in circumstances," as it related to Phil's and defendant L.K.'s (Lisa's) now fourteen-year-old daughter N.K. (Nancy) and their now adult son M.K. (Mike). According to Phil, he and Lisa agreed that the provision should have been added to the December 7 order and the motion judge erred by refusing to follow their agreement when they initially, informally asked for it to be part of an order and again later when the judge denied Phil's motion that was filed months later.
Docket No.: a3665-20
Decided: 2022-06-21
Caption: STATE OF NEW JERSEY v. NICHOLAS B. GRASSO
Status: Unpublished
Summary:
PER CURIAM Defendant Nicholas B. Grasso appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Docket No.: a2160-20
Decided: 2022-06-20
Caption: IN THE MATTER OF M.F
Status: Unpublished
Summary:
PER CURIAM Registrant M.F. appeals from the March 30, 2021, Law Division order classifying him as a Tier III sex offender under the registration and community notification provisions of "Megan's Law," N.J.S.A. 2C:7-1 to -23. He contends the calculation of his risk of re-offense on the Registrant Risk Assessment Scale (RRAS) was not supported by the record. Moreover, he argues that regardless of his final calculated RRAS score, his circumstances did not justify an "outside the heartland" upward departure to a Tier III classification level or Tier III scope of notification. Because the record before us is incomplete and thus does not support M.F.'s scores under certain RRAS factors on which the trial court relied to make its determination, we are convinced the challenged order cannot stand and are constrained to vacate the order and remand for further proceedings.
Docket No.: a2191-20
Decided: 2022-06-20
Caption: STATE OF NEW JERSEY v. TRAVIS DANIELS
Status: Unpublished
Summary:
PER CURIAM Defendant Travis Daniels appeals from a June 9, 2020 order denying his petition for post-conviction relief (PCR) without a hearing. After a careful review of the record and the governing legal principles, we affirm, substantially for the reasons set forth in Judge Mayra V. Tarantino's thorough and thoughtful
written opinion. We add the following remarks.
Docket No.: a2777-20
Decided: 2022-06-20
Caption: JOAN MARIE GRANATO v. ALEX KRUTYANSKY
Status: Unpublished
Summary:
ER CURIAM
Defendant Alex Krutyansky appeals from a final judgment and a
subsequent award of counsel fees to plaintiff Joan Marie Granato after a two-
day bench trial. The judge determined that Krutyansky had no ownership or
other beneficial interest in New Jersey Adult Medical Day Care, Inc.
(NJAMDC), a business exclusively owned by Granato. For the reasons st ated
in the thorough, cogent, and thoughtful decisions rendered by the Honorable
James J. DeLuca, J.S.C., we affirm. We add the following comments.
Docket No.: a2906-20
Decided: 2022-06-20
Caption: STATE OF NEW JERSEY v. ANDRE F. OLIVEIRA
Status: Unpublished
Summary:
PER CURIAM Defendant was charged in an indictment with various drug offenses and pleaded guilty in November 2018 to first-degree maintaining or operating a controlled dangerous substance production facility, N.J.S.A. 2C:35-4. On February 1, 2019, in accordance with a plea agreement, the trial judge imposed a ten-year prison term with a three-year period of parole ineligibility. Defendant did not file a direct appeal but instead, on August 26, 2019, filed a pro se post-conviction relief (PCR) petition, arguing his trial attorney failed to: adequately advise him of the penal consequences of his guilty plea; explain the Brimage1 guidelines; review discovery with him so he could make an informed decision about accepting a plea offer or going to trial; move for the suppression of evidence and the suppression of statements he gave to police; and sufficiently advise him about his appeal rights. The PCR judge denied the petition without conducting an evidentiary hearing. Defendant appeals, arguing: I. [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FILE A DIRECT APPEAL THAT HE OTHERWISE WOULD HAVE TAKEN AND BY FAILING TO ADVISE HIM ADEQUATELY DURING THE PLEA PROCESS SO THAT HE COULD MAKE AN 1 State v. Brimage, 153 N.J. 1 (1998). A-2906-20 2 INFORMED DECISION ABOUT PLEADING GUILTY OR GOING TO TRIAL. II. THE PCR COURT ERRONEOUSLY RULED THAT [DEFENDANT'S] CLAIMS WERE PROCEDURALLY BARRED. We agree with the PCR judge that defendant was not entitled to an evidentiary hearing and not entitled to relief because there is no genuine factual dispute about the adequacy of the advice rendered. Because of that ruling, we need not consider whether the PCR judge properly found defendant's ineffectiveness claims procedurally barred.
Docket No.: a3330-20
Decided: 2022-06-20
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.U.R. and J.F and K.C
Status: Unpublished
Summary:
PER CURIAM I. T.U.R. (Tamar) and K.C. (Kevin) are the biological parents of K.A.M.C. (Kay), who was born December 24, 2015. 1 Tamar executed a voluntary surrender of Kay on December 9, 2020, and she is not a party to this appeal. Kevin appeals the Family Part's June 30, 2021 order and judgment terminating his parental rights to Kay. After carefully reviewing the record in view of the applicable legal principles, we reject Kevin's contentions and affirm.
Docket No.: a3668-20
Decided: 2022-06-20
Caption: IN THE MATTER TO REVOKE CANCEL, OR SUSPEND THE PERMANENT REGISTRATION OF ROBERT WARD BECKER A-17729
Status: Unpublished
Summary:
PER CURIAM Appellant Robert Ward Becker appeals from a July 26, 2021 order of the Waterfront Commission of New York Harbor (Commission) denying his petition to reconsider the Commission's July 12, 2021 decision to revoke his registration to work as a maintenance man in the port of New York-New Jersey. We affirm.
Docket No.: a4508-19
Decided: 2022-06-20
Caption: ASAP REALTY, INC v. YOSEF BIRNBOIM
Status: Unpublished
Summary:
PER CURIAM This appeal arises out of disputes concerning a home-renovation project. The homeowners, Yosef and Judy Birnboim (the Birnboims or defendants), appeal from a March 3, 2020 final judgment that awarded the contractor, ASAP Realty, Inc. (ASAP or plaintiff) $1149,378.96 in damages, attorneys' fees, and costs. Following a trial, a jury found that ASAP was owed $77,917.95 for the renovation work done under the contract. The jury also found that ASAP had committed violations of regulations issued under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -227, but the Birnboims had suffered no ascertainable loss from those violations. The jury, therefore, awarded no damages to the Birnboims.
Docket No.: a4605-19
Decided: 2022-06-20
Caption: STATE OF NEW JERSEY v. APOLLO H. CARDENAS
Status: Unpublished
Summary:
PER CURIAM Defendant Apollo H. Cardenas appeals from the denial of his petition for post-conviction relief (PCR) following a limited evidentiary hearing. Defendant asserts trial counsel was ineffective for failing to call an expert witness to support defendant's passion/provocation manslaughter defense at trial and for failing to correct the judge's instructions in response to a jury question, and appellate counsel provided ineffective assistance by failing to raise this latter issue on direct appeal. In a supplemental pro se brief, defendant reiterates that trial counsel was ineffective for failing to call an expert witness to support his defense, and he also claims PCR counsel was ineffective for failing to call an expert witness at the evidentiary hearing. We affirm.
Docket No.: a4829-18
Decided: 2022-06-20
Caption: STATE OF NEW JERSEY v. FREDERICK OWLE
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from his jury trial convictions for two armed robberies and related weapons offenses. He contends for the first time on appeal that (1) his rights under the Sixth Amendment Confrontation Clause were violated by the admission of hearsay testimony explaining how police initially identified him as a suspect, and (2) the trial court erred by failing to properly instruct the jury concerning out-of-court eyewitness identifications. Defendant further argues in a pro se supplemental brief that the prosecutor committed misconduct during both the charging process and at trial, and that the mandatory sentence of life imprisonment without parole imposed pursuant to the "Three Strikes Law," N.J.S.A. 2C:43-7.1, is illegal.
Docket No.: a0004-21
Decided: 2022-06-16
Caption: OLABODE AJOSE v. PATRICIA HALLOWELL
Status: Unpublished
Summary:
PER CURIAM This is the second time the parties have been before us in this dispute about the ownership of a home they once shared in Dayton. Prior to the first appeal, the trial judge conducted a plenary hearing and concluded that although the home was titled only in plaintiff Olabode Ajose's name, defendant Patricia Hallowell possessed an equitable interest. The judge ordered Ajose to execute a deed, which Hallowell was ordered to prepare, that would reflect each owned an equal share of the Dayton property. After Hallowell, who was self-represented, failed on numerous occasions to adequately or timely comply with the judge's repeated directives about the submission to Ajose of a deed, the judge vacated the prior order that acknowledged Hallowell's interest in the property. Only then did Hallowell retain counsel, who unsuccessfully moved for reconsideration, prompting Hallowell to file an appeal. For reasons expressed in an unpublished opinion, we reversed and remanded for further proceedings "that would include an orderly transfer of the property interest to H[a]llowell and for the judge's consideration of an appropriate monetary award to compensate Ajose – if appropriate, considering as well his alleged failures to cooperate – for the injuries proximately caused by H[a]llowell's failure to comply with the prior orders.
Docket No.: a0342-20
Decided: 2022-06-16
Caption: IN THE MATTER OF COUNTY OF HUDSON AND HUDSON COUNTY PBA LOCAL 334
Status: Unpublished
Summary:
PER CURIAM Juan Mendoza appeals an August 13, 2020 final agency decision of the State of New Jersey Public Employment Relations Commission (PERC) denying reconsideration of an earlier decision granting summary judgment to Hudson County. PERC also affirmed the denial of a cross-motion filed by Hudson County Police Benevolent Association (PBA), Local 334.
Docket No.: a0816-20
Decided: 2022-06-16
Caption: NANCY BRENT v. ADAM L. BRENT
Status: Unpublished
Summary:
PER CURIAM Defendant Adam Brent appeals from an August 28, 2020 order denying his motion to reduce his child support obligation. We affirm.
Docket No.: a1526-20
Decided: 2022-06-16
Caption: IN THE MATTER OF MONIQUE SMITH IRVINGTON TOWNSHIP DEPARTMENT OF PUBLIC SAFETY
Status: Unpublished
Summary:
PER CURIAM This matter returns to us following a remand. Monique Smith appeals
from a February 3, 2021 final agency decision by the Civil Service Commission
(Commission) after the remand proceeding. We affirm.
Docket No.: a2154-20
Decided: 2022-06-16
Caption: STATE OF NEW JERSEY v. D.D.Z.
Status: Unpublished
Summary:
PER CURIAM 1 We use initials to protect the identity of the minor. R. 1:38-3(c)(9). Defendant D.D.Z. appeals from a January 14, 2021 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Docket No.: a2236-20
Decided: 2022-06-16
Caption: MIGUEL VERA v. STATE FARM INDEMNITY COMPANY
Status: Unpublished
Summary:
PER CURIAM Plaintiff Miguel Vera was injured in an automobile accident. He sued his insurer, State Farm Indemnity Company (State Farm or defendant), alleging that State Farm breached its policy by delaying approval of a medical test and surgery that caused his injuries to be more serious and permanent. Plaintiff appeals from an order granting summary judgment to State Farm and dismissing his complaint with prejudice. We reverse and remand for further proceedings.
Docket No.: a2823-20
Decided: 2022-06-16
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. Y.D. and A.D and C.T
Status: Unpublished
Summary:
PER CURIAM Defendants Y.D. (Mother) and A.D. (Father) appeal from the February 18, 2021 order of the Family Part finding they abused or neglected their child G.D. within the meaning of N.J.S.A. 9:6-8.21(c). We affirm.
Docket No.: a2960-20
Decided: 2022-06-16
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.R and L.S
Status: Unpublished
Summary:
PER CURIAM Defendant L.R. (Leo) 1 appeals from a June 2, 2021 judgment of guardianship after a trial terminating parental rights to his son, M.L.R. (Mark), born January 15, 2019.2 Defendant contends plaintiff New Jersey Division of Child Protection and Permanency (Division) failed to make reasonable efforts to provide him with services, including paternity testing. We disagree and affirm.
Docket No.: a0296-21
Decided: 2022-06-15
Caption: DEUTSCHE BANK TRUST COMPANY AMERICAS v. HATTIE V. HAWKINS
Status: Unpublished
Summary:
PER CURIAM In this residential foreclosure action, defendant Hattie Hawkins appeals from a July 9, 2021 order denying her motion to vacate a June 8, 2021 final judgment of foreclosure entered in favor of plaintiff, Deutsche Bank Trust Company Americas formerly known as Bankers Trust Company as Trustee for Salomon Brothers Mortgage Securities VII, Inc., Asset-Backed Floating Rate Certificates, Series 1996-5. We affirm.
Docket No.: a0381-20
Decided: 2022-06-15
Caption: STATE OF NEW JERSEY v. W.J.H., III,
Status: Unpublished
Summary:
PER CURIAM Defendant W.H. appeals from a September 3, 2020 judgment of conviction after a jury found him guilty of twelve sexual abuse offenses involving his niece M.M., born in 1995, and his daughter N.H., born in 1996, who were children at the time of the alleged offenses. Defendant chiefly contends testimony from M.M.'s friend and her aunt were improperly admitted, and evidence of prior sexual activity of M.M. was improperly excluded. We affirm.
Docket No.: a1175-19
Decided: 2022-06-15
Caption: PATERSON HOUSING AUTHORITY v. SUNSHINE LEARNING CENTER
Status: Unpublished
Summary:
PER CURIAM Defendants Sunshine Learning Center (Sunshine) and Paradise Beverage, LLC (Paradise) (collectively defendants) appeal from the October 7, 2019 Special Civil Part order, ejecting them from using parking spaces for their patrons on property owned by plaintiff Paterson Housing Authority. The judge invoked jurisdiction under Rule 6:1-2(a)(4) over plaintiff's summary action for the possession of its real property and determined defendants have no colorable claim of title or possession pursuant to N.J.S.A. 2A:35-1 and 39-1. For the reasons that follow, we affirm.
Docket No.: a1293-19
Decided: 2022-06-15
Caption: STATE OF NEW JERSEY v. SHAHOUNA DUTTON
Status: Unpublished
Summary:
PER CURIAM Defendant Shahouna Dutton appeals from an October 15, 2019 judgment of conviction sentencing her to four years for witness tampering, N.J.S.A. 2C:28-5(a)(3). We affirm, substantially for the reasons articulated by Judge John A. Young in his thoughtful and well-reasoned opinion.
Docket No.: a1808-20
Decided: 2022-06-15
Caption: STATE OF NEW JERSEY v. BRYAN BURFORD
Status: Unpublished
Summary:
PER CURIAM Defendant Bryan Burford appeals from the denial of his petition for post - conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Docket No.: a2152-20
Decided: 2022-06-15
Caption: STATE OF NEW JERSEY v. SHANE X. LITTLES
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from the denial of his post-conviction relief (PCR) petition. He contends his counsel was ineffective and did not advise him he would be subject to parole supervision for life (PSL) as a condition of his guilty plea. He states that he would not have pleaded guilty if he was aware of that condition. Because defendant was advised during several plea and sentencing hearings of the consequences of his guilty plea and the terms and conditions of PSL, we affirm.
Docket No.: a2905-20
Decided: 2022-06-15
Caption: STATE OF NEW JERSEY v. K.D.C
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from the June 9, 2021 Law Division order denying his petition for post-conviction relief (PCR). After reviewing the record, we affirm.
Docket No.: a2935-20
Decided: 2022-06-15
Caption: STATE OF NEW JERSEY v. RODNEY DELVA
Status: Unpublished
Summary:
PER CURIAM Defendant Rodney Delva appeals from a May 10, 2021 order denying his motion to reduce his sentence. Because defendant can neither procedurally present an excessive sentencing argument consistent with N.J.S.A. 2C:44- 1(b)(14) nor meet the standards to show an illegal sentence under Miller v. Alabama, 567 U.S. 460 (2012) and its progeny, we affirm.
Docket No.: a3856-19
Decided: 2022-06-15
Caption: J.F v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, and MORRIS COUNTY BOARD OF SOCIAL SERVICES
Status: Unpublished
Summary:
PER CURIAM J.F. appeals from a May 1, 2020 final agency decision of the Division of Medical Assistance and Health Services imposing a 203-day disqualification period and the related "transfer" penalty of $169,800. The Division imposed the 203-day disqualification period because of J.F.'s alleged transfer of assets for less than fair market value within the five-year look-back period before J.F. entered a skilled nursing facility. See N.J.A.C. 10:71-4.10(a). We reverse.
Docket No.: a4336-19
Decided: 2022-06-15
Caption: DOROTA C. GARCIA v. JOSEPH J. GARCIA
Status: Unpublished
Summary:
PER CURIAM Plaintiff Dorota Garcia appeals an order granting in part the motion of defendant Joseph Garcia to have more parenting time with the parties' ten-year- old son, specifically providing defendant with one more week of parenting time during the summer in even years and six additional nonconsecutive overnights of parenting time in odd years. Because we conclude the motion judge did not abuse her discretion by determining changed circumstances supported defendant's request for a modification of the party's earlier agreement and that it was in their son's best interests to increase defendant's parenting time, we affirm.
Docket No.: a0301-21
Decided: 2022-06-14
Caption: CHERYL KING v. IQVIA
Status: Unpublished
Summary:
PER CURIAM This case arises out of a hit-and-run accident that damaged plaintiff Cheryl King's vehicle while it was parked in the parking lot of her employer, defendant IQVIA Holdings, Inc. (IQVIA). The case proceeded to mandatory arbitration, where the arbitrator found defendants IQVIA and Marie A. Thomas not liable and did not award plaintiff damages. Plaintiff did not file or serve a demand for trial de novo within thirty days of the arbitration award. Defendants moved to confirm the arbitration award. Plaintiff cross-moved for leave to file a demand for trial de novo out-of-time. Plaintiff appeals from a Law Division order that granted defendants' motion to confirm the arbitration award, denied plaintiff's cross-motion, and dismissed the complaint with prejudice. We affirm.
Docket No.: a0939-21
Decided: 2022-06-14
Caption: GREENWAY RUN CONDOMINIUM ASSOCIATION, INC v. K. HOVNANIAN AT HOWELL LLC
Status: Unpublished
Summary:
PER CURIAM When service of process "cannot be made by any of the modes" provided elsewhere in Rule 4:4-4, its subsection (b)(3) permits service "as provided by court order, consistent with due process of law." In this appeal, we consider an order that permitted service of process on an unlocatable defendant through service on that defendant's alleged insurer.
Docket No.: a1422-20
Decided: 2022-06-14
Caption: SABRINA N. BLOCKER v. RICHARD DELOATCH
Status: Unpublished
Summary:
PER CURIAM In this automobile negligence action, plaintiff Sabrina Blocker, 1 appeals from two orders entered on March 13, 2020 granting summary judgment in favor of defendants Joseph Revolinsky, Richard and Verna DeLoatch (DeLoatch defendants), and dismissing plaintiff's complaint with prejudice. Plaintiff also appeals from a May 8, 2020 order denying reconsideration of the March 13, 2020 orders. We reverse the dispositive orders entered in favor of defendants.
Docket No.: a1641-20
Decided: 2022-06-14
Caption: STATE OF NEW JERSEY v. RASHAWN CARTER
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from an October 23, 2020 Law Division order issued by Judge Edward McBride denying defendant's petition for post-conviction relief (PCR) without a hearing. Defendant was convicted by a jury of felony murder and multiple robberies and was sentenced to an aggregate term of 107 years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He contends his trial counsel rendered ineffective assistance by (1) failing to procure funding from the Office of the Public Defender (OPD) for an expert to counter the State's historical cell site analysis expert, and (2) failing to interview two individuals before trial. After carefully reviewing the record in view of the governing principles of law, we reject defendant's contentions and affirm the denial of PCR without a hearing substantially for the reasons expressed by Judge McBride in his written opinion.
Docket No.: a2198-20
Decided: 2022-06-14
Caption: THE BASIL LAW GROUP, PC v. NOAH BANK
Status: Unpublished
Summary:
PER CURIAM Plaintiff appeals from the trial court's order denying its summary judgment motion and granting defendant summary judgment. In its cross- appeal, defendant challenges the trial court's order denying its request for attorney's fees and costs under Rule 4:46-5(b). We affirm the court's order granting defendant summary judgment.
Docket No.: a3218-20
Decided: 2022-06-14
Caption: STATE OF NEW JERSEY v. M.S.
Status: Unpublished
Summary:
PER CURIAM Defendant M.S. appeals from a March 5, 2021 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Docket No.: a3250-20
Decided: 2022-06-14
Caption: J.E.H v. M.M
Status: Unpublished
Summary:
PER CURIAM Defendant M.M. appeals from a final restraining order (FRO) that was entered against her in favor of plaintiff J.H. on June 2, 2021. We affirm.
Docket No.: a3424-20
Decided: 2022-06-14
Caption: KELLY A. FUSCO v. JOSEPH SHERIDAN
Status: Unpublished
Summary:
PER CURIAM Defendant Joseph Sheridan appeals from a June 28, 2021 order of the Superior Court of Cape May County Family Part denying his application to vacate a December 19, 2019 child support order entered against him. Having reviewed the record and the applicable law, we conclude that the order must be vacated as personal jurisdiction was not established in accordance with the Rules of Court. On remand, retroactivity of any modification is preserved to the original filing date of October 25, 2019.
Docket No.: a4289-19
Decided: 2022-06-14
Caption: STATE OF NEW JERSEY v. DOMINIC SUMLER
Status: Unpublished
Summary:
PER CURIAM Following denial of his motion to suppress a handgun and drugs seized pursuant to a warrantless search of his vehicle, defendant Dominic Sumler pled guilty to first-degree unlawful possession of a handgun by an individual with a prior conviction for a crime enumerated in N.J.S.A. 2C:43-7.2(d),1 N.J.S.A. 2C:39-5(j) (count one), and third-degree possession with intent to distribute a controlled dangerous substance (CDS) within 1000 feet of school property, N.J.S.A. 2C:35-7(a) (count six), charged in a seven-count Union County indictment. Defendant thereafter moved for reconsideration of the judge's order denying his suppression motion. After affording defendant the opportunity to testify and call a police witness on his behalf, the judge denied defendant's motion. Defendant was sentenced pursuant to the negotiated plea agreement to a ten-year prison term, with a five-year period of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c), on the weapons conviction, and a concurrent
four-year prison sentence on the drug conviction. Those terms were imposed consecutively to the sentence defendant was serving for a violation of parole.