Recent Decisions of the New Jersey Appellate Courts
from 2018-04-08 to 2018-04-22

Supreme Court Decisions


Docket No.: a_52_16
Decided: 2018-04-19
Caption: State v. Dorian Pressley
Summary:
PER CURIAM Counsel for both sides raise an intriguing question: whether an identification made by a law enforcement officer should be tested by the same standards that apply to a civilian.

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Docket No.: a_71_16
Decided: 2018-04-18
Caption: Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders
Summary:
RABNER, C.J., writing for the Court. From 2012 to 2015, Morris County awarded $4.6 million in taxpayer funds to repair twelve churches, as part of a historic preservation program.

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Docket No.: a_55_16
Decided: 2018-04-17
Caption: Mark R. Krzykalski v. David T. Tindall
Summary:
SOLOMON, J., writing for the Court. In this automobile accident case brought under the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8 (CNA), the Court is called upon to determine whether a jury should be asked to apportion fault between a named party defendant and a known but unidentified defendant (John Doe). This case arises out of a car accident in Florence Township. The car driven by plaintiff Mark Krzykalski was in the left lane traveling north, and the car driven by defendant David Tindall was directly behind plaintiff’s car. As the left-lane traffic proceeded through an intersection, a vehicle in the right lane driven by John Doe unexpectedly made a left turn, cutting off the cars in the left lane. Plaintiff was able to stop his car without striking the vehicle in front of him. Defendant, however, was unable to stop in time and rear-ended plaintiff’s vehicle. Plaintiff suffered serious injuries in the accident and filed an uninsured motorist (UM) claim against his automobile insurance carrier. Plaintiff sued defendant and John Doe for negligence. In defendant’s answer, he asserted third-party negligence as a defense, included cross-claims for indemnity and contribution from any co- defendants, and demanded fault allocation against any defendants that might settle before trial. The UM carrier chose not to intervene in the lawsuit. At the conclusion of the trial, over plaintiff’s objection, the trial court included John Doe on the verdict sheet and instructed the jury to allocate fault between defendant and John Doe in the event that both parties were found negligent. The jury found defendant three percent negligent and John Doe ninety-seven percent negligent. Ultimately, the jury awarded plaintiff $107,890 in damages. On appeal, the Appellate Division affirmed, concluding that an alleged tortfeasor does not need to be an identified party for his or her negligence and degree of responsibility to be considered by a jury. The Court granted plaintiff’s petition for certification. 229 N.J. 622 (2017). HELD: The jury properly apportioned fault between defendant and the John Doe defendant because plaintiff and defendant acknowledged the role of John Doe in the accident, plaintiff’s UM carrier was aware of the litigation, and plaintiff had fair and timely notice that defendant would assert that John Doe was the cause of the accident. 1. The CNA and the Joint Tortfeasors Contribution Law (JTCL), N.J.S.A. 2A:53A-1 to -5, comprise the statutory framework for the allocation of fault when multiple parties are alleged to have contributed to the plaintiff’s harm. Under New Jersey law, “joint tortfeasors” are “two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” N.J.S.A. 2A:53A-1. The allocation of damages among joint tortfeasors is prescribed by the CNA. The CNA provides that, when multiple defendants have been found liable, the trier of fact shall determine “[t]he extent, in the form of a percentage, of each party’s negligence or fault.” N.J.S.A. 2A:15-5.2(a)(2). (pp. 8-10) 2. The CNA requires the jury to make a good-faith allocation of the percentages of negligence among joint tortfeasors based on the evidence—not based on the collectability or non-collectability of the tortfeasors’ respective shares of the damages. That principle applies not only to defendants without the assets necessary to satisfy any judgment against them, but also to defendants who are at fault but would not be required to satisfy judgments for other reasons. For example, fault can be allocated to those defendants who have reached independent settlements with a plaintiff. But allocation to settling defendants is contingent on the plaintiff’s receipt of “fair and timely notice” that the remaining defendants will argue that liability should be attributed to those defendants who have settled. Young v. Latta, 123 N.J. 584, 596-97 (1991). (pp. 10-13) 1 3. In New Jersey, a plaintiff may sue a person or entity as “John Doe” if the plaintiff knows a cause of action exists against the defendant but does not know the defendant’s identity. The rules direct the plaintiff to “amend the complaint to state defendant’s true name” at a time “prior to judgment.” R. 4:26-4. Amendment under Rule 4:26-4 is a prerequisite to recovery: “[n]o final judgment shall be entered against a person designated by a fictitious name.” Sometimes, it may be impossible to learn the identity of a fault-bearing defendant. This is a frequent problem, for example, in hit-and-run accidents. To protect those injured in motor vehicle accidents caused by known but unidentified drivers, New Jersey has required that automobile insurance policies include a UM provision since 1968. N.J.S.A. 17:28-1.1; Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493, 499 (1987). UM provisions insure drivers against “damages from the operator of an uninsured motor vehicle, or hit and run motor vehicle.” Riccio, 108 N.J. at 499. Under that scheme, accident victims can recover through their own UM carrier—up to the policy limits—for the damages caused by a “phantom vehicle,” or a known, fault-bearing driver who cannot be identified. (pp. 13-15) 4. In Riccio, the Court affirmed a judgment in which fifty percent of the fault for the accident had been allocated to a known but unidentified driver. Id. at 496-97. The result in that case suggests that known but unidentified defendants who are not immune from liability may be allocated fault alongside the known defendants in the case. The Appellate Division held as much in Cockerline v. Menendez, 411 N.J. Super. 596 (App. Div. 2010). In Cockerline, the plaintiff brought a wrongful death suit against the drivers involved in a multi-vehicle accident that killed her husband. Id. at 605. A number of those drivers were identified, but other drivers involved in the accident, who left the scene and were never identified, appeared in the complaint as John Doe defendants. Id. at 610. The panel noted the “different goals and purposes” served by the law that governs UM coverage and the JTCL and CNA: the former aims “‘to make the victim whole, but not provide a windfall or to allow a double recovery’”; the latter laws are designed “‘to relieve tortfeasors of an injustice among themselves.’” Id. at 619 (quoting Riccio, 108 N.J. at 504). In accordance with those distinct policy aims, the Appellate Division panel allowed the allocation of fault to the John Doe drivers. Ibid. From Riccio and Cockerline derives the principle that parties known to be at least in part liable should be allocated their share of the fault, even when unidentified. In such cases, known but unidentified parties may be allocated fault even though recovery against those parties will be possible only through the plaintiff’s UM coverage. (pp. 15-17) 5. An exception to that general rule can be found in Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399 (App. Div. 1992). In that case, a nightclub patron sued the club after he was punched in the face by a fellow patron, whose identity he did not know. Id. at 402. The complaint named the assailant as a John Doe defendant. Ibid. The trial court, however, refused to allow the jury to consider the John Doe defendant’s negligence. Ibid. The Appellate Division relied on a policy justification to affirm the trial court—that the nightclub was more likely than the plaintiff to know the assailant’s identity. Id. at 410. (pp. 17-18) 6. This case strongly resembles Cockerline. John Doe here is a known but unidentified party. Indeed, plaintiff and defendant acknowledge the role that John Doe played in causing the accident. By requiring that automobile insurance policies include a UM provision, the Legislature has acknowledged and prepared for precisely such circumstances. “Phantom vehicles” driven by known but unidentified motorists that play a part in an accident presumptively may be allocated fault in accordance with the JTCL, the CNA, and the laws requiring UM coverage. The presumptive ability to allocate fault to such defendants may be defeated if the identified defendants do not provide fair and timely notice of their intent to argue that fault should be allocated to the John Doe defendant. Here, it is undisputed that plaintiff received fair and timely notice defendant would assert that John Doe was the cause of the accident. Plaintiff’s UM carrier, moreover, received notice of the litigation and had the option to intervene. Additionally, the other grounds upon which allocation has been denied in other cases do not apply here. Under the circumstances of this case and in light of the undisputed evidence that John Doe’s negligence contributed to the accident, the trial court appropriately submitted the question of John Doe’s negligence to the jury for fault allocation. (pp. 18-21) 7. John Doe’s party status under the CNA does not mean that the UM carrier who will ultimately cover any damages attributed to John Doe must intervene in the case and formally become a party to the negligence suit. (pp. 21-22) The judgment of the Appellate Division is AFFIRMED. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and TIMPONE join in JUSTICE SOLOMON’s opinion. JUSTICE FERNANDEZ-VINA did not participate. 2 SUPREME COURT OF NEW JERSEY A-55 September Term 2016 078744 MARK R. KRZYKALSKI and MICHELE KRZYKALSKI, Plaintiffs-Appellants, v. DAVID T. TINDALL, Defendant-Respondent. Argued January 30, 2018 – Decided April 17, 2018 On certification to the Superior Court, Appellate Division, whose opinion is reported at 448 N.J. Super. 1 (App. Div. 2016). Kenneth G. Andres, Jr., argued the cause for appellant Mark R. Krzykalski (Andres & Berger, attorneys; Kenneth G. Andres, Jr., of counsel and on the brief, and Abraham Tran, on the brief). Daniel J. Pomeroy argued the cause for respondent (Pomeroy, Heller & Ley, attorneys; Daniel J. Pomeroy and Karen E. Heller, on the brief). Michael J. Epstein argued the cause for amicus curiae New Jersey Association for Justice (The Epstein Law Firm, attorneys; Michael J. Epstein, of counsel and on the brief, and Michael A. Rabasca, on the brief). JUSTICE SOLOMON delivered the opinion of the Court. 1 In this automobile accident case brought under the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8 (CNA), we are called upon to determine whether a jury should be asked to apportion fault between a named party defendant and a known but unidentified defendant (John Doe). We conclude that the jury properly apportioned fault between the named party defendant David Tindall (defendant) and the John Doe defendant because plaintiff Mark Krzykalski (plaintiff) and defendant acknowledged the role of John Doe in the accident, plaintiff’s Uninsured Motorist (UM) carrier was aware of the litigation, and plaintiff had “fair and timely” notice that defendant would assert that John Doe was the cause of the accident. I. According to the appellate record, this case arises out of a car accident in Florence Township. The car driven by plaintiff was in the left lane traveling north, and the car driven by defendant was directly behind plaintiff’s car. As the left-lane traffic proceeded through an intersection, a vehicle in the right lane driven by John Doe unexpectedly made a left turn, cutting off the cars in the left lane. Plaintiff was able to stop his car without striking the vehicle in front of him. Defendant, however, was unable to stop in time and rear-ended plaintiff’s vehicle. 2 Plaintiff suffered serious injuries in the accident and filed a UM claim against his automobile insurance carrier. Plaintiff rejected his insurance company’s offer to settle the UM claim for the policy limits and sued defendant and John Doe1 for negligence. In defendant’s answer, he asserted third-party negligence as a defense, included cross-claims for indemnity and contribution from any co-defendants, and demanded fault allocation against any defendants that might settle before trial. Prior to trial, plaintiff moved for a directed verdict against defendant. The trial court denied plaintiff’s motion, and the case proceeded to a jury trial. During trial, plaintiff again refused his UM carrier’s settlement offer for the full policy limits on the UM claim, and the UM carrier chose not to intervene in the lawsuit. At the conclusion of the trial, over plaintiff’s objection, the trial court included John Doe on the verdict sheet and instructed the jury to allocate fault between defendant and John Doe in the event that both parties were found negligent. 1 The complaint names three John Doe defendants. John Doe I is described as the driver of the car that made the improper left turn; John Doe II is described as the owner of that car; and John Doe III is described as the individual or entity on whose behalf that car was being driven. The action was litigated only against defendant and John Doe I. 3 The jury found defendant three percent negligent and John Doe ninety-seven percent negligent. Ultimately, the jury awarded plaintiff $107,890 in damages. The trial court denied plaintiff’s post-verdict motion for a new trial or additur. On appeal, the Appellate Division affirmed, concluding that an alleged tortfeasor does not need to be an identified party for his or her negligence and degree of responsibility to be considered by a jury. In the panel’s view, precluding fault allocation to known but unidentified defendants would give litigants in plaintiff’s position an improper windfall. The appellate panel reasoned that similarly situated plaintiffs could recover all of their damages from the identified defendant and then also receive compensation from their UM carrier for the known but unidentified defendant’s share of the fault. A member of the panel, writing separately, concurred in the opinion, stating that allowing the jury to assess the fault of John Doe defendants is proper for a number of reasons: 1) it prevents plaintiffs from strategically delaying their UM claim until after the lawsuit; 2) it allocates fault based on the actual negligence of the various drivers; and 3) it avoids double recovery by plaintiffs. We granted plaintiff’s petition for certification. 229 N.J. 622 (2017). We also granted amicus curiae status to the New Jersey Association for Justice (NJAJ). 4 II. A. Plaintiff argues that a jury should not be permitted to apportion fault between a named party defendant and an unidentified party who is not represented by counsel. In plaintiff’s view, John Doe is not a “true party” to the case under the CNA, and placing John Doe on the jury verdict sheet and allowing fault allocation to John Doe results in a miscarriage of justice. Plaintiff asserts that the cases relied upon by the Appellate Division are inapposite because they involved named defendants who were dismissed before jury deliberations. Here, plaintiff argues that John Doe’s identity was never ascertained and so he never actually became a party to the lawsuit. Plaintiff raises three additional arguments. First, he argues that allowing fault allocation to John Doe improperly allows identified defendants to present an “empty chair defense”2 by blaming unidentified John Doe defendants. Therefore, according to plaintiff, if this Court allows allocation to John Doe defendants, it should require UM carriers to present a defense on behalf of the John Doe defendant. Second, plaintiff 2 “The practical effect of a defendant proving that the ‘empty chair’ was responsible for the accident is that the plaintiff will receive no recovery.” Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 114 (2004). 5 asserts that if this Court allows allocation, it should require identified defendants to advise the court and opposing counsel that they will assert John Doe’s negligence. Finally, plaintiff claims that allowing allocation to John Doe in this case creates a slippery slope by permitting defendants to assert the negligence of entities outside the litigation. B. Defendant argues that it was proper to allocate fault to John Doe because the legislative purpose of the CNA is to promote the fair sharing of the burden of a judgment. In defendant’s view, it is the joint tortfeasor status, not the party status, that determines whether allocation is appropriate, and each tortfeasor should pay damages in accordance with the percentage of fault attributed to it by the fact-finder. Thus, according to defendant, because the complaint alleged that he and John Doe were joint tortfeasors, it was proper for the jury to allocate fault both to him and to John Doe. Defendant further stresses that plaintiff should not have been surprised that John Doe was listed on the verdict sheet, given that plaintiff elected to name John Doe as a defendant in the complaint. Defendant adds that there is no “rule prohibiting the allocation of fault to fictitious parties” and that Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399 (App. Div. 1992), from 6 which that proposition stems, is inapposite. Finally, defendant argues that joinder should not be mandatory because UM carriers already receive notice of litigation and have the option to intervene. Therefore, in defendant’s view, there is no reason to force carriers to participate in litigation where they would not do so of their own volition. C. The NJAJ argues that the Appellate Division conflated the concept of fictitious parties with the concept of phantom vehicles3 for which there is mandatory insurance coverage in all motor vehicle policies issued in New Jersey. It asks that this Court “clarify and reaffirm” the “long-standing rule barring the jury’s assessment of a fictitious party’s negligence and the placement of a fictitious party on the verdict sheet.” The NJAJ also argues that this Court should adopt a bright-line rule “requiring the joinder of a plaintiff’s UM carrier in motor vehicle cases where there is a known and identified defendant driver and a phantom vehicle.” 3 “Phantom vehicle” is a term used for vehicles that were known to be involved in an automobile accident but never sufficiently identified as to permit the owner or operator to be hauled into court. See Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 598-99, 609 (2015) (describing the unidentified vehicle that caused an accident as a “phantom vehicle”); Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374, 389 (2010) (same). 7 The NJAJ notes that John Doe was never identified during discovery, substituted in as a party to the litigation, or served with process, and stresses that plaintiff’s UM insurance carrier never intervened in the case or presented a defense on behalf of John Doe, even though the UM claim was unresolved and the carrier had notice of the litigation. The NJAJ argues that the Appellate Division’s decision therefore violates the rule set forth in Bencivenga -- that John Doe defendants are not parties for the purpose of fault allocation under the CNA. In the NJAJ’s view, the panel improperly established a “blanket” “empty chair” defense available whenever plaintiff names fictitious defendants in a complaint. III. A. “The [CNA] and the Joint Tortfeasors Contribution Law [(JTCL), N.J.S.A. 2A:53A-1 to -5,] comprise the statutory framework for the allocation of fault when multiple parties are alleged to have contributed to the plaintiff’s harm.” Town of Kearny v. Brandt, 214 N.J. 76, 96 (2013). Under New Jersey law, “joint tortfeasors” are “two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” N.J.S.A. 2A:53A-1. “The [JTCL] was enacted to promote the fair sharing of the burden of judgment by joint 8 tortfeasors and to prevent a plaintiff from arbitrarily selecting his or her victim.” Holloway v. State, 125 N.J. 386, 400-01 (1991). The allocation of damages among joint tortfeasors is prescribed by the CNA. The CNA provides that, when multiple defendants have been found liable, the trier of fact shall determine “[t]he extent, in the form of a percentage, of each party’s negligence or fault.4 The percentage of negligence or fault of each party shall be based on 100% and the total of all percentages of negligence or fault of all of the parties to a suit shall be 100%.” N.J.S.A. 2A:15-5.2(a)(2). A plaintiff ordinarily can recover only the percentage of damages attributed to a particular defendant. N.J.S.A. 2A:15-5.3(c). However, if a defendant is found to be sixty percent or more at fault, the plaintiff can recover the full amount of damages from that one defendant, N.J.S.A. 2A:15-5.3(a), and that defendant may in turn “recover contribution from the other joint tortfeasor or joint 4 The CNA also provides that a plaintiff cannot recover damages if his or her negligence was “greater than the negligence of the person against whom recovery is sought or . . . greater than the combined negligence of the persons against whom recovery is sought.” N.J.S.A. 2A:15-5.1. “In other words, a plaintiff who is found to be more than fifty percent at fault is entitled to no recovery,” whereas “[a] plaintiff who is found to be fifty percent or less at fault is entitled to a recovery, but any award of damages is diminished by the percentage of negligence attributed to her.” Brodsky, 181 N.J. at 109. 9 tortfeasors for the excess so paid over his pro rata share.” N.J.S.A. 2A:53A-3. “The [CNA] was designed to further the principle that ‘[i]t is only fair that each person only pay for injuries he or she proximately caused.’” Jones v. Morey’s Pier, Inc., 230 N.J. 142, 159 (2017) (second alteration in original) (quoting Fernandes v. DAR Dev. Corp., 222 N.J. 390, 407 (2015)). “The law favors apportionment even where the apportionment proofs are imprecise, allowing only for rough apportionment by the trier of fact.” Boryszewski v. Burke, 380 N.J. Super. 361, 384 (App. Div. 2005). Moreover, the CNA requires the “jury to make a good-faith allocation of the percentages of negligence among joint tortfeasors based on the evidence -- not based on the collectability or non-collectability” of the tortfeasors’ respective shares of the damages. Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 121 (2004); see also Brandt, 214 N.J. at 103 (“[A]pportionment of fault under the [CNA] and the [JTCL] does not turn on whether the plaintiff is in a position to recover damages from the defendant at issue.”). That principle applies not only to defendants without the assets necessary to satisfy any judgment against them, but also to defendants who are at fault but would not be required to satisfy judgments for other reasons. For example, fault can be 10 allocated to those defendants who have reached independent settlements with a plaintiff and thus will not have to pay further even if a greater payment would be required based on eventual allocation of fault. See, e.g., Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 569 (1980). But allocation to settling defendants is contingent on the plaintiff’s receipt of “fair and timely notice” that the remaining defendants will argue that liability should be attributed to those defendants who have settled. Young v. Latta, 123 N.J. 584, 596-97 (1991); see also Higgins v. Owens-Corning Fiberglas Corp., 282 N.J. Super. 600, 609, 615 (App. Div. 1995) (remanding for new trial because trial judge granted defendant’s motion and included on jury verdict sheet additional asbestos manufacturer never named as defendant that settled with plaintiff). In Morey’s Pier, for example, we allowed the allocation of fault to a public entity defendant who had been dismissed because the plaintiff had failed to serve it with a timely notice of claim as required by the Tort Claims Act after noting that the “parties ha[d] long been on notice of the . . . defendants’ intention to seek the apportionment of a percentage of fault.” 230 N.J. at 165; see also Brodsky, 181 N.J. at 108 (allowing allocation of fault to defendant dismissed from litigation pursuant to discharge in bankruptcy); Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 305 (App. Div. 2001) 11 (holding that doctor dismissed from malpractice litigation due to plaintiff’s failure to properly file affidavit of merit was still fault-allocable party under CNA). By contrast, when a named defendant is found to be immune from liability -- as opposed to at fault but invulnerable to recovery because a defendant is either unable to satisfy or excused from satisfying an adverse judgment -- then fault may not be allocated to that defendant. The Appellate Division explained that distinction in Ramos v. Browning Ferris Industries of South Jersey, Inc., 194 N.J. Super. 96, 101, 105 (App. Div. 1984), rev’d on other grounds, 103 N.J. 177 (1986). In Ramos, a worker was injured on the job while wheeling a 400- pound drum of solid waste. 194 N.J. Super. at 100. The jury attributed twenty-five percent of the negligence to the worker and seventy-five percent to defendant Browning Ferris, “a solid waste hauler that leased the container to plaintiff’s employer.” Ibid. The Appellate Division considered Browning Ferris’s argument that the employer’s negligence should have been considered in assessing the cause of the worker’s injuries, even though the employer was immune from suit under a provision of the New Jersey Workers’ Compensation Act, N.J.S.A. 34:15-8. Id. at 102-03. The appellate panel properly held that “our Legislature expressed its intent to limit the task of the trier of fact to 12 determining the percentages of negligence of only those persons, necessarily parties, whose percentages must be known in order to mold the judgment.” Id. at 107. Thus, because the employer’s immunity meant it could not be a joint tortfeasor as a matter of law or a party to the litigation, it was properly exempt from the allocation of fault. Ibid. In sum, the CNA requires the allocation of fault to defendants who may be responsible for the injury without regard to whether those defendants are, for other reasons, invulnerable to recovery by the plaintiff. This case poses the question of how those principles apply when a defendant is a known but unidentified “John Doe” defendant. To answer that question, we review the law of fictitious parties. B. In New Jersey, a plaintiff may sue a person or entity as “John Doe” if the plaintiff knows a cause of action exists against the defendant but does not know the defendant’s identity. See Greczyn v. Colgate-Palmolive, 183 N.J. 5, 11 (2005). Our court rules provide that “if the defendant’s true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification.” R. 4:26-4. The rules also direct the 13 plaintiff to “amend the complaint to state defendant’s true name” at a time “prior to judgment.” Ibid. Amendment under Rule 4:26-4 is a prerequisite to recovery: “[n]o final judgment shall be entered against a person designated by a fictitious name.” Indeed, the fictitious name rule acts to “suspend the running of the statute of limitations until the actual identity of a defendant is discovered.” Lawrence v. Bauer Publ’g & Printing Ltd., 78 N.J. 371, 375-76 (1979). Sometimes, it may be impossible to learn the identity of a fault-bearing defendant. This is a frequent problem, for example, in hit-and-run accidents. To protect those injured in motor vehicle accidents caused by known but unidentified drivers, New Jersey has required that automobile insurance policies include a UM provision since 1968. N.J.S.A. 17:28-1.1; Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493, 499 (1987). UM provisions insure drivers against “damages from the operator of an uninsured motor vehicle, or hit and run motor vehicle.” Riccio, 108 N.J. at 499. “[T]o collect under UM coverage, the claimant-insured must be able to prove an automobile liability case against the uninsured.” Ibid. Under that scheme, accident victims can recover through their own UM carrier -- up to the policy limits -- for the damages caused by a “phantom vehicle,” or a known, fault-bearing driver who cannot 14 be identified. In other words, the UM coverage scheme anticipates and provides for judgment to be entered in favor of plaintiffs when the tortfeasor is a known but unidentified motorist. We next consider cases that have harmonized the foregoing principles applicable to fictitious parties, particularly in the UM context, with the allocation of fault among tortfeasors pursuant to the JTCL and the CNA. C. In Riccio, this Court considered the damages recoverable by a plaintiff whose daughter was killed when the car in which she was a passenger was forced off the road by an unidentified vehicle. Id. at 495-97. We affirmed a judgment in which fifty percent of the fault for the accident had been allocated to the known but unidentified driver. See id. at 496-97 (after successful Demand for Arbitration,5 “the arbitrator determined that the drivers -- [the driver of the vehicle in which the plaintiff’s daughter was a passenger] and the ‘phantom’ uninsured -- shared responsibility for the accident on an equal basis”). Although allocation of fault was not the central question in Riccio, the result in that case suggests that known 5 A Demand for Arbitration can be filed, in lieu of a lawsuit, under the UM provisions of an insurance contract. See Riccio, 108 N.J. at 496. 15 but unidentified defendants who are not immune from liability may be allocated fault alongside the known defendants in the case. The Appellate Division held as much in Cockerline v. Menendez, 411 N.J. Super. 596 (App. Div. 2010). In Cockerline, the plaintiff brought a wrongful death suit against the drivers involved in a multi-vehicle accident that killed her husband. Id. at 605. A number of those drivers were identified, but other drivers involved in the accident, who left the scene and were never identified, appeared in the complaint as John Doe defendants. Id. at 610. The plaintiff also initiated a UM claim with her insurance carrier for the damages caused by the John Doe drivers. Ibid. The UM carrier intervened in the lawsuit and then settled with the plaintiff. Ibid. The panel noted the “different goals and purposes” served by the law that governs UM coverage and the JTCL and CNA: the former aims “‘to make the victim whole, but not provide a windfall or to allow a double recovery’”; the latter laws are designed “‘to relieve tortfeasors of an injustice among themselves.’” Id. at 619 (quoting Riccio, 108 N.J. at 504). In accordance with those distinct policy aims, the Appellate Division panel allowed the allocation of fault to the John Doe drivers. Ibid. The panel concluded that “to preclude defendants from seeking an apportionment of liability against 16 the phantom vehicles does not advance the purposes of the UM law and frustrates the purposes of the joint tortfeasor and comparative fault law.” Ibid. From Riccio and Cockerline we derive the principle that parties known to be at least in part liable should be allocated their share of the fault, even when unidentified. In such cases, known but unidentified parties may be allocated fault even though recovery against those parties will be possible only through the plaintiff’s UM coverage. An exception to that general rule can be found in the case on which plaintiff relies here -- Bencivenga. In that case, a nightclub patron sued the club after he was punched in the face by a fellow patron, whose identity he did not know. 258 N.J. Super. at 402. The complaint named the assailant as a John Doe defendant. Ibid. The trial court, however, refused to allow the jury to consider the John Doe defendant’s negligence. Ibid. On appeal, the nightclub argued that the trial court should have allowed the jury to apportion fault between the nightclub and the John Doe assailant. Id. at 406. The Appellate Division relied on a policy justification to affirm the trial court -- that the nightclub was more likely than the plaintiff to know the assailant’s identity.6 Id. at 410. The panel reasoned that 6 To the extent that the holding in Bencivenga also rested on the panel’s determination that fault could not be allocated to 17 by keeping the John Doe assailant off the verdict sheet, the trial court forced the nightclub to either identify him and mitigate its share of the fault, or decline to name him and bear the cost of his share. Ibid. According to the Appellate Division, that would create an incentive for the identified defendant to name John Doe tortfeasors so that they can, in turn, share in the allocation of fault, reducing the identified defendant’s exposure. Ibid. We turn now to the facts of this case and review de novo the legal question of whether fault was properly allocated to the known but unidentified John Doe defendant under the JTCL and the CNA. See Brandt, 214 N.J. at 96 (citing Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). IV. Although there were only two defendants here -- the identified defendant and the John Doe defendant -- this case the John Doe defendant because “a fictitious person is not a party to a suit,” 258 N.J. Super. at 407, we note that a John Doe defendant’s unavailability for final judgment under the law of fictitious persons affects the ability to recover damages, but does not affect that defendant’s status as a party for purposes of fault allocation. Indeed, in the context of this case, it is necessary that fault be allocated to such known but unidentified defendants because of the existence of UM insurance coverage. 18 strongly resembles Cockerline. In that case, the drivers of the “phantom vehicles” were never identified, but they were known inasmuch as their roles in that accident were acknowledged. Therefore, just as fault could be allocated to the John Does in that case, fault was properly allocated to John Doe here. Plaintiff describes John Doe in this case as a “fictitious” person “who was not named and could never be named” and can never be a “true party under [the CNA].” We disagree. To begin with, John Doe here is a known but unidentified party. Indeed, plaintiff and defendant acknowledge the role that John Doe played in causing the accident -- he improperly made a left turn, cutting off the line of cars in plaintiff’s lane of travel. It is true that John Doe “is not someone against whom recovery can be sought because the fictitious person rule, R. 4:26-4, and due process prevents entry of judgment against a person designated by a fictitious name.” Bencivenga, 258 N.J. Super. at 406-07. However, John Doe in this case is not a “fictitious person” in the sense that his existence and involvement in the accident are not subject to dispute. Rather, John Doe was the operator of a motor vehicle involved in plaintiff’s accident, who cannot be identified. By requiring that automobile insurance policies include a UM provision, the Legislature has acknowledged and prepared for precisely such circumstances. See N.J.S.A. 17:28-1.1. Stated simply, “phantom 19 vehicles” driven by known but unidentified motorists that play a part in an accident presumptively may be allocated fault in accordance with the JTCL, the CNA, and the laws requiring UM coverage. We agree that the presumptive ability to allocate fault to such defendants may be defeated if the identified defendants do not provide “fair and timely” notice of their intent to argue that fault should be allocated to the John Doe defendant. Young, 123 N.J. at 596. However, here, it is undisputed that plaintiff received “fair and timely” notice defendant would assert that John Doe was the cause of the accident. Indeed, defendant’s third-party negligence defense was set forth in his answer to the complaint. Plaintiff’s UM carrier, moreover, received notice of the litigation, offered the policy limits in settlement of the UM claim, and had the option to intervene. Additionally, the other grounds upon which allocation has been denied in other cases do not apply here. In contrast to the employer in Ramos, there is no statutory bar to finding John Doe liable. Unlike the asbestos manufacturer added to the verdict sheet in Higgins, John Doe was properly joined as a party in this case. Finally, unlike the club owner in Bencivenga, defendant in this case was not more likely than plaintiff to know John Doe’s identity. 20 We agree with defendant that, under the circumstances of this case and in light of the undisputed evidence that John Doe’s negligence contributed to the accident, the trial court appropriately submitted the question of John Doe’s negligence to the jury for fault allocation. For completeness, we add that John Doe’s party status under the CNA’s fault-allocation provision does not mean that the UM carrier who will ultimately cover any damages attributed to John Doe must intervene in the case and formally become a party to the negligence suit. Here, plaintiff’s UM carrier received notice of the litigation and had the option to intervene and participate at trial in an effort to limit its exposure. Because it is plaintiff’s UM carrier that is responsible for the damages caused by John Doe, there is no reason to require its participation in this litigation where it chose not to do so. Indeed, our courts recognize that under some circumstances “a defendant is allowed to prove that a non-party was the sole proximate cause of the plaintiff’s harm -- the so-called ‘empty chair’ defense in which a defendant shifts blame to a joint tortfeasor who is not in the courtroom.” Brodsky, 181 N.J. at 114. To the extent that plaintiff and amicus claim that the “empty chair” defense is being permitted here, this is such a circumstance. 21 In sum, plaintiff and defendant both asserted the existence of a “phantom vehicle.” Plaintiff and plaintiff’s UM carrier received necessary notice that defendant would assert John Doe’s responsibility for the accident. Cf. R. 4:7-5. Therefore, the CNA mandates the allocation of fault to John Doe, a party to this action. V. For the reasons set forth above, the judgment of the Appellate Division is affirmed. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and TIMPONE join in JUSTICE SOLOMON’s opinion. JUSTICE FERNANDEZ-VINA did not participate. 22

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Docket No.: a_57_16
Decided: 2018-04-16
Caption: David Spade v. Select Comfort Corp.
Summary:
PATTERSON, J., writing for the Court. In this appeal, the Court addresses two questions of law certified by the United States Court of Appeals for the Third Circuit. The Third Circuit’s certified questions arise from two putative class actions brought under the Truth-in- Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18. The plaintiffs in both actions premise their TCCWNA claims on defendants’ alleged violations of N.J.A.C. 13:45A-5.2 and -5.3. Those regulations, promulgated by the Attorney General under the authority of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210, address the content of contracts of sale or sale orders for the delivery of household furniture. The certified questions are: 1. Does a violation of the Furniture Delivery Regulations alone constitute a violation of a clearly established right or responsibility of the seller under the TCCWNA and thus provides a basis for relief under the TCCWNA? 2. Is a consumer who receives a contract that does not comply with the Furniture Delivery Regulations, but has not suffered any adverse consequences from the noncompliance, an “aggrieved consumer” under the TCCWNA? In 1995, the Division of Consumer Affairs proposed and adopted regulations governing the delivery of household furniture and furnishings, N.J.A.C. 13:45A-5.1 to -5.4. The regulations impose a series of delivery and notice requirements on “[a]ny person who is engaged in the sale of household furniture for which contracts of sale or sale orders are used for merchandise ordered for future delivery.” N.J.A.C. 13:45A-5.1(a). Plaintiffs David Spade and Katina Spade (Spade plaintiffs) assert that they purchased furniture from a retail store owned and operated by defendant Select Comfort Corporation (Select Comfort). They allege that Select Comfort’s sales contract included language prohibited by N.J.A.C. 13:45A-5.3(c): a statement that the sale of certain products “are final,” and a statement that as to certain categories of products, “[n]o returns will be accepted” or “[n]o returns or exchanges will be authorized or accepted.” The Spade plaintiffs also allege that the sales contract provided to them did not include language mandated by N.J.A.C. 13:45A-5.2(a) and N.J.A.C. 13:45A-5.3(a). Plaintiffs Christopher D. Wenger and Eileen Muller (Wenger plaintiffs) allege that they ordered furniture from a store owned by defendant Bob’s Discount Furniture, LLC (Bob’s Discount Furniture). They allege that the “sales document” provided by Bob’s Discount Furniture included language that violates N.J.A.C. 13:45A-5.3(c), which mandates a full refund in the event of a late delivery of the furniture ordered. The Wenger plaintiffs also contend that the sales document did not entirely conform with N.J.A.C. 13:45A-5.2(a) and N.J.A.C. 13:45A-5.3(a) because language required by those provisions appeared in a font different from the “ten-point bold face type” that the regulations prescribe. HELD: (1) The inclusion of language prohibited by N.J.A.C. 13:45A-5.3(c) in contracts of sale or sale orders for the delivery of household furniture may alone give rise to a violation of a “clearly established legal right of a consumer or responsibility of a seller” for purposes of the TCCWNA. N.J.S.A. 56:12-15. (2) A consumer who receives a contract that includes language prohibited by N.J.A.C. 13:45A-5.3(c), but who suffers no monetary or other harm as a result of that noncompliance, is not an “aggrieved consumer” entitled to a remedy under the TCCWNA. N.J.S.A. 56:12-17. 1 1. The TCCWNA is intended “to prevent deceptive practices in consumer contracts.” Dugan v. TGI Fridays, Inc., 231 N.J. 24, 67 (2017). When it enacted the TCCWNA, the Legislature sought to require sellers to acknowledge clearly established consumer rights, and to provide remedies for posting or inserting provisions contrary to law. A plaintiff pursuing a TCCWNA cause of action must prove: that the defendant was a “seller, lessor, creditor, lender or bailee or assignee of any of the aforesaid”; that the defendant offered or entered into a “written consumer contract or [gave] or display[ed] any written consumer warranty, notice or sign”; that at the time that the written consumer contract is signed or the written consumer warranty, notice or sign is displayed, that writing contains a provision that “violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee” as established by State or Federal law; and that the plaintiff is an “aggrieved consumer.” N.J.S.A. 56:12-15, -17. (pp. 13-15) 2. The Third Circuit’s first certified question asks whether a violation of N.J.A.C. 13:45A-5.2 or -5.3 alone constitutes a violation of a clearly established legal right of a consumer or a responsibility of a seller under the TCCWNA, and therefore provides a basis for relief under the TCCWNA. In these appeals, all plaintiffs allege that defendants included in their sales documents language constituting an affirmative misrepresentation, contrary to N.J.A.C. 13:45A-5.3(c). Because those allegations are present in both appeals, the Court does not reach the question of whether a seller’s omission of a provision required by N.J.A.C. 13:45A-5.2 or -5.3 would give rise to a TCCWNA claim. Nothing in either the TCCWNA’s plain language or its legislative history suggests that the inclusion of language in a contract or other writing that violates a regulation cannot be the basis for a claim under N.J.S.A. 56:12-15. Moreover, accepting regulations as a source of law in the application of N.J.S.A. 56:12-15’s “clearly established” standard furthers the TCCWNA’s consumer-protection objectives. Although the CFA generally describes unlawful commercial practices that give rise to a cause of action, the Legislature envisioned that the Attorney General would specifically identify unlawful practices in particular commercial markets, and that such regulations would constitute law. New Jersey decisions also acknowledge that a TCCWNA violation may be premised on the violation of a regulation. N.J.A.C. 13:45A-5.3(c) is plainly the source of a “clearly established legal right of a consumer or responsibility of a seller” within the meaning of N.J.S.A 56:12-15. The regulation carries the force of law; indeed, a violation “shall be subject to the sanctions contained in” the CFA. N.J.A.C. 13:45A-5.4. Moreover, N.J.A.C. 13:45A-5.3(c)’s prohibition on misleading refund terms in furniture-sales contracts provides unambiguous direction to furniture sellers. Accordingly, a furniture seller’s inclusion in a consumer sales contract or agreement of language prohibited by N.J.A.C. 13:45A-5.3(c) may alone constitute a violation of a “clearly established legal right of a consumer or responsibility of a seller” under N.J.S.A. 56:12-15, and thus may provide a basis for relief under the TCCWNA. (pp. 16-20) 3. The Third Circuit’s second certified question asks whether a consumer who receives a contract containing provisions that violate one of the regulations at issue, but who has suffered no adverse consequences as a result of the contract’s noncompliance with the regulation, constitutes an “aggrieved consumer,” as that term is used in N.J.S.A. 56:12-17. “The TCCWNA does not specifically define what makes a ‘consumer’ an ‘aggrieved consumer’ for purposes of N.J.S.A. 56:12-17,” Dugan, 231 N.J. at 69, and the Third Circuit’s request to define an “aggrieved consumer” raises a question of first impression for the Court. In the provision of the TCCWNA that defines a statutory violation, the word “consumer”—unmodified by the term “aggrieved”—broadly denotes “any individual who buys, leases, borrows, or bails any money, property or service which is primarily for personal, family or household purposes.” N.J.S.A. 56:12- 15. In the TCCWNA’s remedial provision, however, the Legislature chose a more precise term: “aggrieved consumer.” N.J.S.A. 56:12-17. The Legislature clearly intended to differentiate between “consumers and prospective consumers”—the broad category of people whom the Legislature seeks to shield from offending provisions—and “aggrieved consumers” entitled to a remedy under the TCCWNA. If “aggrieved consumer” were construed to mean nothing more than a “consumer” to whom a contract or other writing is offered, given or displayed, the term “aggrieved” would be superfluous. That word distinguishes consumers who have suffered harm because of a violation of N.J.S.A. 56:12-15 from those who have merely been exposed to unlawful language in a contract or writing, to no effect. That harm is not limited to injury compensable by monetary damages. Proof of harm resulting from contract language prohibited by N.J.S.A. 56:12-15 may warrant a civil penalty under N.J.S.A. 56:12-17, even if the harm is not compensable by damages. In the setting of these appeals, if a consumer has entered into a sales contract containing a provision that violated N.J.A.C. 13:45A-5.3, but his or her furniture was delivered conforming and on schedule, and he or she has incurred no monetary damages or adverse consequences, that consumer has suffered no harm. Such a consumer is not an “aggrieved consumer” under N.J.S.A. 56:12-17. (pp. 20-27) CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion. 2 SUPREME COURT OF NEW JERSEY A-57 September Term 2016 078611 DAVID SPADE and KATINA SPADE, H/W, individually and as a class representative on behalf of others similarly situated, Plaintiffs-Appellants, v. SELECT COMFORT CORP., d/b/a SLEEP NUMBER, LEGGETT & PLATT INC., Defendants-Respondents. CHRISTOPHER D. WENGER and EILEEN MULLER, on behalf of themselves and those similarly situated, Plaintiffs-Appellants, v. BOB’S DISCOUNT FURNITURE, LLC, Defendant-Respondent. Argued November 8, 2017 – Decided April 16, 2018 On certification of questions of law from the United States Court of Appeals for the Third Circuit. Lewis G. Adler argued the cause for appellants David Spade and Katina Spade (Lewis G. Adler and Law Office of Paul DePetris, attorneys; Lewis G. Adler and Paul DePetris, on the briefs). 1 Andrew R. Wolf argued the cause for appellants Christopher D. Wenger and Eileen Muller (The Wolf Law Firm, attorneys; Andrew R. Wolf and Henry P. Wolfe, on the briefs). Andrew S. Hansen of the Minnesota bar, admitted pro hac vice, argued the cause for respondent Select Comfort Corp. (Fox Rothschild, attorneys; Karen A. Confoy, on the brief, and Heidi A.O. Fisher, of the Minnesota bar, admitted pro hac vice, and Andrew S. Hansen, of the Minnesota bar, admitted pro hac vice, of counsel and on the briefs). Brett D. Carroll of the Florida and Massachusetts bars, admitted pro hac vice, argued the cause for respondent Bob’s Discount Furniture, LLC (Holland & Knight, attorneys; Brett D. Carroll, Sean C. Sheely and Duvol M. Thompson, on the briefs). James A. Barry argued the cause for amicus curiae New Jersey Association for Justice (Locks Law Firm and Law Offices of Charles N. Riley, attorneys; James A. Barry, Michael A. Galpern, Andrew P. Bell, and Charles N. Riley, on the brief). David R. Kott argued the cause for amicus curiae New Jersey Business & Industry Association (McCarter & English, attorneys; David R. Kott, Edward J. Fanning, and Zane C. Riester, of counsel and on the brief). Gavin J. Rooney submitted a brief on behalf of amicus curiae the New Jersey Civil Justice Institute (Lowenstein Sandler, attorneys; Gavin J. Rooney and Naomi D. Barrowclough, of counsel and on the brief). Bruce D. Greenberg submitted a brief on behalf of amicus curiae Consumers League of New Jersey (Lite DePalma Greenberg, attorneys; Bruce D. Greenberg, of counsel and on the brief, and Susana Cruz Hodge, on the brief). 2 Christopher J. Michie and Christopher J. Dalton submitted a brief on behalf of amicus curiae Commerce and Industry Association of New Jersey (Clark Michie and Buchanan Ingersoll & Rooney, attorneys; Christopher J. Michie, Bruce W. Clark, Christopher J. Dalton, and Jinkal Pujara, on the brief). Drew Cleary Jordan submitted a brief on behalf of amicus curiae New Jersey Retail Merchants Association (Morgan, Lewis & Bockius, attorneys; Drew Cleary Jordan and Kristin M. Hadgis on the brief, and Gregory T. Parks, of the Pennsylvania bar, admitted pro hac vice, on the brief). Michael P. Daly and Matthew J. Fedor submitted a brief on behalf of amicus curiae The Retail Litigation Center, Inc. (Drinker Biddle & Reath, attorneys; Michael P. Daly, Matthew J. Fedor, Meredith C. Slawe, Kathryn E. Deal, Jenna M. Poligo, and Andrew B. Joseph, of counsel and on the brief). Benjamin D. Morgan submitted a brief on behalf of amicus curiae Tailored Brands, Inc. (Archer & Greiner and Armstrong Teasdale, attorneys; Benjamin D. Morgan, on the brief, Charles W. Steese, of the Colorado, Arizona and Iowa bars, admitted pro hac vice, and Douglas N. Marsh, of the Colorado and Illinois bars, admitted pro hac vice, of counsel and on the brief). JUSTICE PATTERSON delivered the opinion of the Court. In this appeal, we address two questions of law certified by the United States Court of Appeals for the Third Circuit to this Court. The Third Circuit’s certified questions arise from two putative class actions brought under the Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to 3 -18. The plaintiffs in both actions premise their TCCWNA claims on defendants’ alleged violations of N.J.A.C. 13:45A-5.2 and - 5.3. Those regulations, promulgated by the Attorney General under the authority of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210, address the content of contracts of sale or sale orders for the delivery of household furniture. The certified questions are: 1. Does a violation of the Furniture Delivery Regulations alone constitute a violation of a clearly established right or responsibility of the seller under the TCCWNA and thus provides a basis for relief under the TCCWNA? 2. Is a consumer who receives a contract that does not comply with the Furniture Delivery Regulations, but has not suffered any adverse consequences from the noncompliance, an “aggrieved consumer” under the TCCWNA? We answer the first certified question in the affirmative and the second certified question in the negative. We hold that the inclusion of language prohibited by N.J.A.C. 13:45A-5.3(c) in contracts of sale or sale orders for the delivery of household furniture may alone give rise to a violation of a “clearly established legal right of a consumer or responsibility of a seller” for purposes of the TCCWNA. N.J.S.A. 56:12-15. We further hold that a consumer who receives a contract that includes language prohibited by N.J.A.C. 13:45A-5.3(c), but who suffers no monetary or other harm as a result of that 4 noncompliance, is not an “aggrieved consumer” entitled to a remedy under the TCCWNA. N.J.S.A. 56:12-17. I. A. In 1995, pursuant to N.J.S.A. 56:8-4, the Division of Consumer Affairs proposed and adopted regulations governing the delivery of household furniture and furnishings, N.J.A.C. 13:45A-5.1 to -5.4. See 17 N.J.R. 3575 (Sept. 18, 1995). The regulations impose a series of delivery and notice requirements on “[a]ny person who is engaged in the sale of household furniture for which contracts of sale or sale orders are used for merchandise ordered for future delivery.” N.J.A.C. 13:45A- 5.1(a). N.J.A.C. 13:45A-5.1(a) requires the seller to either “[d]eliver all of the ordered merchandise by or on the promised delivery date,” or “[p]rovide written notice to the consumer of the impossibility of meeting the promised delivery date.” That written notice, which must be provided to the consumer prior to the delivery date in the event that the seller does not meet the agreed-upon delivery schedule, “shall offer the consumer the option to cancel said order with a prompt, full refund of any payments already made or to accept delivery at a specified later time.” Ibid. 5 Two of the regulations prescribe specific language that must appear in contract forms or sales documents in “ten-point bold face type” with information specific to the transaction to be added by the seller. N.J.A.C. 13:45A-5.2, -5.3. First, contract forms or sales documents for furniture sales must include the following statement: The merchandise you have ordered is promised for delivery to you on or before (insert date or length of time agreed upon). [N.J.A.C. 13:45a-5.2(a) (boldface in original).] Second, such forms or documents “shall conspicuously disclose the seller’s obligations in the case of delayed delivery in compliance with N.J.A.C. 13:45A-5.1” and “shall contain, on the first page of the contract form or sales document the following notice”: If the merchandise ordered by you is not delivered by the promised delivery date, (insert name of seller) must offer you the choice of (1) canceling your order with a prompt, full refund of any payments you have made, or (2) accepting delivery at a specific later date. [N.J.A.C. 13:45A-5.3(a) (boldface in original).] Another provision prohibits a seller from including certain language in a furniture contract or sales agreement: It shall be unlawful for any person to use any contract or sales agreement that contains any terms, such as “all sales final,” “no 6 cancellations” or “no refunds,” which violate or are contrary to the rights and responsibilities provided for by this rule. Any contract or sales agreement which contains such a provision shall be null and void and unenforceable. [N.J.A.C. 13:45A-5.3(c).] Finally, N.J.A.C. 13:45A-5.4 declares that “any violation of the provisions of this subchapter shall be subject to the sanctions” set forth in the CFA. B. 1. Plaintiffs David Spade and Katina Spade (Spade plaintiffs) assert that on or about April 25, 2013, they purchased furniture from a retail store owned and operated by defendant Select Comfort Corporation (Select Comfort).1 They allege that Select Comfort’s sales contract included the following language prohibited by N.J.A.C. 13:45A-5.3(c): a statement that the sale of certain products “are final,” and a statement that as to certain categories of products, “[n]o returns will be accepted” or “[n]o returns or exchanges will be authorized or accepted.” The Spade plaintiffs also allege that the sales contract that Select Comfort provided to them did not include language mandated by N.J.A.C. 13:45A-5.2(a) and N.J.A.C. 13:45A-5.3(a). 1 We derive our summary of the Spade plaintiffs’ allegations from the complaint and its exhibits in the record. 7 It is undisputed that the furniture ordered by the Spade plaintiffs was timely delivered to them on or about May 29, 2013. As the Third Circuit noted, “[t]he Spade plaintiffs experienced problems with their furniture, but it was initially delivered in a conforming manner.”2 2. Plaintiffs Christopher D. Wenger and Eileen Muller (Wenger plaintiffs) allege that on November 28, 2013, they ordered furniture from a store owned by defendant Bob’s Discount Furniture, LLC (Bob’s Discount Furniture).3 They allege that the “sales document” provided by Bob’s Discount Furniture included the following language: 2 The Spade plaintiffs allege that on two unspecified dates following delivery, they found defects in the furniture sold by Select Comfort. They assert that after unsuccessful attempts to repair the defects, they retained counsel to revoke their acceptance of the delivery pursuant to N.J.S.A. 12A:2-608, and that Select Comfort has not resolved the parties’ dispute over the alleged defects. Select Comfort represents that the Spade plaintiffs did not contact it to complain about the furniture until several months after the furniture was delivered and accepted. It asserts that two components of the furniture were replaced in accordance with the applicable warranty, and that plaintiffs’ warranty claim was resolved. In light of the Third Circuit’s statement that the Spade plaintiffs’ furniture was timely delivered in a conforming condition, the parties’ dispute is irrelevant to our consideration of the certified questions. See Delta Funding Corp. v. Harris, 189 N.J. 18, 35 (2006) (“The purpose of the certification process is to answer the question of law submitted pursuant to Rule 2:12A, not to resolve [the parties’] factual differences.”). 3 We derive our summary of the Wenger plaintiffs’ allegations from the complaint and its exhibits in the record. 8 You may cancel special orders within three (3) days after the order date (11/28/2013) and we will refund your Special Order deposit in full. If you cancel your special order later than three (3) days after the order date (11/28/2013), we will refund your Special Order Deposit less the Special Order fee. The Wenger plaintiffs assert that this language violates N.J.A.C. 13:45A-5.3(c), because that regulation mandates a full refund in the event of a late delivery of the furniture ordered. The Wenger plaintiffs also contend that the sales document did not entirely conform with N.J.A.C. 13:45A-5.2(a) and N.J.A.C. 13:45A-5.3(a) because language required by those provisions appeared in a font different from the “ten-point bold face type” that the regulations prescribe.4 Although the record does not reveal the date on which Bob’s Discount Furniture delivered the furniture ordered by the Wenger plaintiffs, it is undisputed that the furniture was timely delivered. C. The Spade plaintiffs filed a putative class action in the Law Division, naming Select Comfort and the manufacturer of the 4 The Wenger plaintiffs also allege that a “brochure/folder” provided by Bob’s Discount Furniture violated N.J.A.C. 13:45A- 5.2(a) and N.J.A.C. 13:45A-5.3(a), because it advised the consumer that when the store’s delivery team “is ready to leave your home, we will ask you to confirm that your delivery was totally satisfactory, or, if there was a problem, to immediately speak with a Customer Care representative.” 9 furniture that they ordered, Leggett & Platt, as defendants. The Spade plaintiffs asserted a claim under the TCCWNA, based on alleged violations of N.J.A.C. 13:45A-5.2 and -5.3 on behalf of “all other persons similarly situated to plaintiffs who were issued/received contracts of the same kind and in the same way as plaintiffs.”5 The action was removed to the United States District Court for the District of New Jersey, based on 28 U.S.C. §§ 1332(a) and (d). The Wenger plaintiffs also filed a putative class action in the Law Division. They asserted TCCWNA claims against Bob’s Discount Furniture based on alleged violations of N.J.A.C. 13:45A-5.1, -5.2 and -5.3, and sought certification of the following class: All New Jersey consumers who purchased household furniture or furnishings for future delivery from Defendant at any time on or after the day six years prior to the day this Complaint was filed, using a sales document the same as or similar to the sales document used in the transaction with Plaintiffs that contains the following sentence: ”The Merchandise that you have ordered is promised for delivery to you on or before _____” and where the delivery date in the blank space at the end of the sentence was not filled in. 5 The district court dismissed the Spade plaintiffs’ claims against Select Comfort based on the CFA and the Magnuson Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301 to 2312. It also dismissed the Spade plaintiffs’ claims against Leggett & Platt. None of those claims are relevant to the Third Circuit’s certified questions. 10 Bob’s Discount Furniture removed the action to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. §§ 1332(a) and (d). The district court denied the Wenger plaintiffs’ motion to remand. In Spade, Select Comfort filed a motion for judgment on the pleadings. Fed. R. Civ. P. 12(c). In Wenger, Bob’s Discount Furniture filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). After consolidating the cases, the district court granted both motions in accordance with the standard of Fed. R. Civ. P. 12(b)(6). Citing the plain language of N.J.S.A. 56:12-17, the district court held that in order to be an “aggrieved consumer” entitled to relief under the TCCWNA, a plaintiff would be required to demonstrate that he or she “suffer[ed] the effects of a violation” of the regulation at issue. It concluded that because N.J.A.C. 13:45A-5.2 and -5.3 exist to “foster timely delivery of conforming furniture” -- an objective achieved by the defendant sellers in both cases -- none of the plaintiffs constituted an “aggrieved consumer” for purposes of the TCCWNA. The district court accordingly dismissed both complaints. The Spade plaintiffs and the Wenger plaintiffs appealed the district court’s judgment. After briefing, the Third Circuit panel determined that the appeals raised important and 11 unresolved questions of New Jersey law. Pursuant to Rule 2:12A- 3, the Third Circuit certified the questions to this Court. We accepted the questions as posed by the Third Circuit.6 We also granted the applications of the New Jersey Association for Justice, the Consumers League of New Jersey, the Retail Litigation Center, Inc., the New Jersey Retail Merchants Association, the New Jersey Business and Industry Association, the New Jersey Civil Justice Institute, the Commerce and Industry Association of New Jersey, and Tailored Brands, Inc., to appear as amici curiae. II. A. To answer the Third Circuit’s certified questions, we apply familiar principles of statutory construction. The Legislature instructs that in its statutes, “words and phrases shall be read and construed with their context,” and that such words and phrases “shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, 6 The Third Circuit designated its question regarding the definition of an “aggrieved consumer” under N.J.S.A. 56:12-17 as its first question, and its question concerning a “clearly established legal right of a consumer or responsibility of a seller” under N.J.S.A. 56:12-15 as its second question. Because N.J.S.A. 56:12-15 defines a TCCWNA violation and N.J.S.A. 56:12- 17 prescribes the remedy for such a violation, we answer the questions in reverse order. 12 according to the approved usage of the language.” N.J.S.A. 1:1- 1. Accordingly, “[t]he starting point of all statutory interpretation must be the language used in the enactment.” DCPP v. Y.N., 220 N.J. 165, 178 (2014); accord Acoli v. State Parole Bd., 224 N.J. 213, 227 (2016). We construe the words of a statute “in context with related provisions so as to give sense to the legislation as a whole.” N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229 N.J. 541, 570 (2017) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). “If the plain language leads to a clear and unambiguous result, then our interpretative process is over.” Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016) (quoting Richardson v. Bd. of Trs., PFRS, 192 N.J. 189, 195 (2007)). We rely on extrinsic evidence of legislative intent “only when the statute is ambiguous, the plain language leads to a result inconsistent with any legitimate public policy objective, or it is at odds with a general statutory scheme.” Shelton v. Restaurant.com, Inc., 214 N.J. 419, 429 (2013). B. The TCCWNA is intended “to prevent deceptive practices in consumer contracts.” Dugan v. TGI Fridays, Inc., 231 N.J. 24, 67 (2017) (quoting Kent Motor Cars, Inc. v. Reynolds & Reynolds Co., 207 N.J. 428, 457 (2011)). When it enacted the TCCWNA in 13 1981, the Legislature acknowledged the presence of legally invalid provisions in “[f]ar too many consumer contracts, warranties, notices and signs,” which acted to “deceive[] a consumer into thinking [the provisions] are enforceable,” and deterred consumers from enforcing their legal rights. Sponsor’s Statement to A. 1660 2 (1980). In the TCCWNA, the Legislature sought not to confer new legal rights, but to require sellers “to acknowledge clearly established consumer rights,” and to “provide[] remedies for posting or inserting provisions contrary to law.” Shelton, 214 N.J. at 432; see also Governor’s Statement on Signing A. 1660 (Jan. 11, 1982) (noting that TCCWNA would “strengthen[] provisions of the Consumer Fraud Act”). To that end, the TCCWNA provides that [n]o seller, lessor, creditor, lender or bailee shall in the course of his business offer to any consumer or prospective consumer or enter into any written consumer contract or give or display any written consumer warranty, notice or sign after the effective date of this act which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or Federal law at the time the offer is made or the consumer contract is signed or the warranty, notice or sign is given or displayed. [N.J.S.A. 56:12-15.] The TCCWNA authorizes the award of a civil penalty, damages, attorneys’ fees, and costs to an “aggrieved consumer”: 14 Any person who violates the provisions of this act shall be liable to the aggrieved consumer for a civil penalty of not less than $100.00 or for actual damages, or both at the election of the consumer, together with reasonable attorneys’ fees and court costs. This may be recoverable by the consumer in a civil action in a court of competent jurisdiction or as part of a counterclaim by the consumer against the seller, lessor, creditor, lender or bailee or assignee of any of the aforesaid, who aggrieved him. A consumer also shall have the right to petition a court to terminate a contract which violates the provisions of [N.J.S.A. 56:12-15] and the court in its discretion may void the contract. [N.J.S.A. 56:12-17.] A plaintiff pursuing a TCCWNA cause of action must prove four elements: first, that the defendant was a “seller, lessor, creditor, lender or bailee or assignee of any of the aforesaid”; second, that the defendant offered or entered into a “written consumer contract or [gave] or display[ed] any written consumer warranty, notice or sign”; third, that at the time that the written consumer contract is signed or the written consumer warranty, notice or sign is displayed, that writing contains a provision that “violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee” as established by State or Federal law; and finally, that the plaintiff is an “aggrieved consumer.” N.J.S.A. 56:12-15, -17. 15 C. 1. Against that backdrop, we consider the Third Circuit’s first certified question: whether a violation of N.J.A.C. 13:45A-5.2 or -5.3 alone constitutes a violation of a clearly established legal right of a consumer or a responsibility of a seller under the TCCWNA, and therefore provides a basis for relief under the TCCWNA. The Spade plaintiffs, the Wenger plaintiffs, and amici curiae the New Jersey Association for Justice and the Consumers League of New Jersey, argue that any violation of N.J.A.C. 13:45A-5.2 or -5.3 violates a “clearly established legal right of a consumer or responsibility of a seller” under N.J.S.A. 56:12-15. Defendants contend that, in general, administrative regulations cannot give rise to a “clearly established” legal right or responsibility for purposes of the TCCWNA. Amicus curiae the Retail Litigation Center, Inc., argues that a consumer asserting that a seller violated N.J.A.C. 13:45A-5.2 or -5.3 must also show ascertainable loss under the CFA to demonstrate a violation of a “clearly established” legal right or responsibility. Amicus curiae the New Jersey Civil Justice Institute urges the Court not to deem an omission of required language, or the appearance of such language in an incorrect font, to give rise to a cause of action under N.J.S.A. 56:12-15. 16 Amici curiae the Commerce and Industry Association of New Jersey and Tailored Brands, Inc., assert that only the contravention of well-recognized requirements should constitute a violation of a “clearly established” legal right or responsibility under N.J.S.A. 56:12-15. The remaining amici curiae take no position on this issue. In these appeals, all plaintiffs allege that defendants included in their sales documents language constituting an affirmative misrepresentation, contrary to N.J.A.C. 13:45A- 5.3(c), a regulation that prohibits potentially misleading language concerning the availability of a refund. Because those allegations are present in both appeals, we need not reach the question of whether a seller’s omission of a provision required by N.J.A.C. 13:45A-5.2 or -5.3 would give rise to a TCCWNA claim. We address only those allegations of an affirmative violation of N.J.A.C. 13:45A-5.3(c). Nothing in either the TCCWNA’s plain language or its legislative history suggests that the inclusion of language in a contract or other writing that violates a regulation cannot be the basis for a claim under N.J.S.A. 56:12-15. In the TCCWNA, the Legislature did not limit the term “State or Federal law” to statutes, as it could have done with a minor revision of the TCCWNA’s text. 17 Moreover, accepting regulations as a source of law in the application of N.J.S.A. 56:12-15’s “clearly established” standard furthers the TCCWNA’s consumer-protection objectives. The Legislature not only included affirmative acts and knowing omissions in the category of consumer fraud violations, but also “impose[d] strict liability” for regulatory violations, regardless of the defendant’s intent. Cox v. Sears Roebuck & Co., 138 N.J. 2, 18 (1994). It did so because “parties subject to the regulations are assumed to be familiar with them, so that any violation of the regulations, regardless of intent or moral culpability, constitutes a violation of the [CFA].” Id. at 18- 19. Although the CFA generally describes unlawful commercial practices that give rise to a cause of action, N.J.S.A. 56:8-2, the Legislature envisioned that the Attorney General would specifically identify unlawful practices in particular commercial markets, and that such regulations would constitute law. See N.J.S.A. 56:8-4 (“To accomplish the objectives and to carry out the duties prescribed by [the CFA], the Attorney General . . . may . . . promulgate such rules and regulations . . . as may be necessary, which shall have the force of law.”). Accordingly, the content of contracts and other writings used in commercial transactions is typically addressed in regulations, rather than statutes. See, e.g., N.J.A.C. 13:45A- 16.2(a)(12)(ii) (requiring all home improvement contracts for 18 purchase price in excess of $500.00 to include “[a] description of the work to be done and the products and materials to be used or installed in performance of the contract”); N.J.A.C. 13:45A- 26B.2(a)(2) (requiring motor vehicle sellers to itemize charges for pre-delivery services “in at least 10-point type, on the sales document”). Our decisions also acknowledge that a TCCWNA violation may be premised on the violation of a regulation. In Bosland v. Warnock Dodge, Inc., 396 N.J. Super. 267, 278-79 (App. Div. 2007), aff’d on other grounds, 197 N.J. 543 (2009), the Appellate Division recognized a TCCWNA claim based on alleged violations of automotive sales practices regulations promulgated pursuant to the CFA. We noted in Dugan that courts applying N.J.S.A. 56:12-15 “assess whether the CFA or another consumer protection statute or regulation clearly prohibited the contractual provision or other practice that is the basis for the TCCWNA claim.” 231 N.J. at 69; see also Kent Motor Cars, 207 N.J. at 457-58 (affirming dismissal of defendant’s claims against insurer in TCCWNA action based on violation of automotive sales regulations governing font size in sales contract). There is, in short, no support in the TCCWNA or in case law for the proposition that regulations cannot serve as the source of a consumer’s “clearly established legal right” or a “responsibility of a seller” under N.J.S.A. 56:12-15. 19 N.J.A.C. 13:45A-5.3(c) is plainly the source of a “clearly established legal right of a consumer or responsibility of a seller” within the meaning of N.J.S.A 56:12-15. The regulation carries the force of law; indeed, a violation “shall be subject to the sanctions contained in” the CFA. N.J.A.C. 13:45A-5.4. Moreover, N.J.A.C. 13:45A-5.3(c)’s prohibition on misleading refund terms in furniture-sales contracts provides unambiguous direction to furniture sellers. The regulation generally bars terms in furniture sales contracts or sales agreements “which violate or are contrary to the rights and responsibilities” set forth in the regulations, and provides specific examples of prohibited language: “‘all sales final,’ ‘no cancellations’ or ‘no refunds.’” N.J.A.C. 13:45A-5.3(c). The regulation is simple and clear. Accordingly, we conclude that a furniture seller’s inclusion in a consumer sales contract or agreement of language prohibited by N.J.A.C. 13:45A-5.3(c) may alone constitute a violation of a “clearly established legal right of a consumer or responsibility of a seller” under N.J.S.A. 56:12-15, and thus may provide a basis for relief under the TCCWNA. 2. The Third Circuit’s second certified question requires that we determine whether a consumer who receives a contract containing provisions that violate one of the regulations at 20 issue, but who has suffered no adverse consequences as a result of the contract’s noncompliance with the regulation, constitutes an “aggrieved consumer,” as that term is used in N.J.S.A. 56:12- 17. “The TCCWNA does not specifically define what makes a ‘consumer’ an ‘aggrieved consumer’ for purposes of N.J.S.A. 56:12-17.” Dugan, 231 N.J. at 69. In several decisions, we have evaluated TCCWNA claims without squarely addressing the question posed by the Third Circuit in this case. See id. at 71-72 (reversing certification of TCCWNA class because “a claimant who does not, at a minimum, prove that he or she received a menu cannot satisfy the elements of the TCCWNA and is not an ‘aggrieved consumer’”); Manahawkin Convalescent v. O’Neill, 217 N.J. 99, 125-26 (2014) (affirming dismissal of TCCWNA claim predicated on alleged violation of prohibition on Medicaid or Medicare-certified nursing homes requiring third- party guarantees of payment as condition of resident admission or retention); Shelton, 214 N.J. at 435 (“[T]he phrase ‘primarily for personal, family or household purposes’ in N.J.S.A. 56:12-15 cannot be interpreted to exclude intangible property from the scope of the TCCWNA.”). The Third Circuit’s request that we define an “aggrieved consumer” thus raises a question of first impression for this Court. 21 The Spade plaintiffs, the Wenger plaintiffs, amicus curiae the New Jersey Association for Justice, and amicus curiae the Consumers League of New Jersey urge an expansive definition of “aggrieved consumer.” They argue that any consumer who is offered or enters into a contract or other writing that violates N.J.A.C. 13:45A-5.2 or -5.3, either by inclusion of an offending provision or omission of a required provision, is an “aggrieved consumer” under N.J.S.A. 56:12-17, whether or not he or she has consequently suffered harm. Defendants in both appeals and amici curiae the Retail Litigation Center, Inc., the New Jersey Retail Merchants Association, the New Jersey Business and Industry Association, the New Jersey Civil Justice Institute, the Commerce and Industry Association of New Jersey, and Tailored Brands, Inc., maintain that in order to be an “aggrieved consumer,” a plaintiff must demonstrate an adverse consequence caused by an unlawful provision in a contract or other writing. We find ample evidence of the Legislature’s intent in the TCCWNA’s plain language to resolve this question of statutory interpretation. In the provision of the TCCWNA that defines a statutory violation, the word “consumer” -- unmodified by the term “aggrieved” -- broadly denotes “any individual who buys, leases, borrows, or bails any money, property or service which is primarily for personal, family or household purposes.” 22 N.J.S.A. 56:12-15. The Legislature prohibited any “seller, lessor, creditor, lender or bailee” from including an unlawful provision in any “written consumer contract” offered to “any consumer or prospective consumer,” or entered into with such a “consumer or prospective consumer,” or in “any written consumer warranty, notice or sign.” Ibid. Thus, when it defined the conduct barred by the TCCWNA, the Legislature chose expansive language to describe the consumers and potential consumers whom the statute was enacted to protect. In the TCCWNA’s remedial provision, however, the Legislature chose a more precise term: “aggrieved consumer.” N.J.S.A. 56:12-17. The Legislature clearly intended to differentiate between “consumers and prospective consumers” -- the broad category of people whom the Legislature seeks to shield from offending provisions -- and “aggrieved consumers” entitled to a remedy under the TCCWNA. “[L]egislative language must not, if reasonably avoidable, be found to be inoperative, superfluous or meaningless.” Carter v. Doe (In re N.J. Fireman’s Ass’n Obligation), 230 N.J. 258, 274 (2017) (alteration in original) (quoting State v. Regis, 208 N.J. 439, 449 (2011)). If “aggrieved consumer” were construed to mean nothing more than a “consumer” to whom a contract or other writing is offered, given or displayed, the term “aggrieved” would indeed be superfluous. We interpret that word 23 so as to give it significance; it distinguishes consumers who have suffered harm because of a violation of N.J.S.A. 56:12-15 from those who have merely been exposed to unlawful language in a contract or writing, to no effect. As reference sources contemporaneous to the TCCWNA’s enactment reflect,7 the term “aggrieved consumer” denotes a consumer who has suffered some form of harm as a result of the defendant’s conduct. See Black’s Law Dictionary 60 (5th ed. 1979) (defining “aggrieved party” as “[o]ne whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by a degree or judgment,” and “aggrieved” to denote “[h]aving suffered loss or injury; damnified; injured”); Oxford English Dictionary 255 (2d ed. 1989) (observing that “aggrieve” was “rarely used” except “[i]n the passive to be aggrieved: to be injuriously affected, to have a grievance or cause of grief[;] 2. [t]o afflict oneself, to grieve, to feel 7 In construing legislative language, we may consider the usage of that language at the time of a statute’s enactment. See, e.g., Sandifer v. U.S. Steel Corp., 571 U.S.___, 134 S. Ct. 870, 877-79 (2014) (relying on dictionary definitions in use at time of statute’s enactment to define “clothes” and “changing” in order to determine whether “the donning and doffing of protective gear” qualifies as “changing clothes” within the meaning of Fair Labor Standards Act); Perrin v. United States, 444 U.S. 37, 42 (1979) (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. Therefore, we look to the ordinary meaning of the term ‘bribery’ [in the Travel Act, 18 U.S.C. § 1952,] at the time Congress enacted the statute in 1961.” (citation omitted)). 24 grief, 3. [t]o make more grave or serious; to aggravate, exaggerate”); Webster’s Third New International Dictionary 41 (3d ed. 1981) (defining “aggrieved” to mean “1. troubled or distressed in spirit[;] 2. showing grief, injury, offense, having a grievance, specifically suffering from an infringement or denial of legal rights”). Thus, an “aggrieved consumer” is a consumer who has been harmed by a violation of N.J.S.A. 56:12- 15. We do not, however, view that harm to be limited to injury compensable by monetary damages. The Legislature clearly envisioned that an “aggrieved consumer” is not necessarily a consumer entitled to an award of damages; it provided for “a civil penalty of not less than $100.00 or . . . actual damages, or both at the election of the consumer.” N.J.S.A. 56:12-17. The TCCWNA thus contemplates that a consumer may be entitled to a remedy notwithstanding the absence of proof of monetary damages. Ibid.; see also Bohus v. Restaurant.com, Inc., 784 F.3d 918, 930 (3d Cir. 2015) (“We cannot disregard the Legislature’s choice to award statutory damages in the absence of actual damages.”); Shelton, 214 N.J. at 432-43 (describing Assembly Commerce, Industry and Professions Committee’s decision to change language providing for statutory remedy “from civil ‘damages’ of not less than $100 to a civil ‘penalty’ of not less than $100”). 25 Thus, a consumer may be “aggrieved” for purposes of N.J.S.A. 56:12-17 if he or she has suffered harm as a result of the defendant’s inclusion of prohibited language in a contract or other writing even if that harm is not a basis for a damages award. If, for example, a furniture seller fails to timely deliver a consumer’s furniture, and the consumer would have sought a refund had he or she not been deterred by the “no refunds” language prohibited by N.J.A.C. 13:45A-5.3, that consumer may be an “aggrieved consumer” entitled to a civil penalty under N.J.S.A. 56:12-17. If an untimely delivery and misleading “no refunds” language leave a consumer without furniture needed for a family gathering, the consumer may be an “aggrieved consumer” for purposes of N.J.S.A. 56:12-17. Proof of harm resulting from contract language prohibited by N.J.S.A. 56:12-15 may warrant a civil penalty under N.J.S.A. 56:12-17, even if the harm is not compensable by damages. In the absence of evidence that the consumer suffered adverse consequences as a result of the defendant’s regulatory violation, a consumer is not an “aggrieved consumer” for purposes of the TCCWNA. In the setting of these appeals, if a consumer has entered into a sales contract containing a provision that violated N.J.A.C. 13:45A-5.3, but his or her furniture was delivered conforming and on schedule, and he or she has incurred no monetary damages or adverse consequences, 26 that consumer has suffered no harm. Such a consumer is not an “aggrieved consumer” under N.J.S.A. 56:12-17. III. In sum, we construe the TCCWNA to recognize an affirmative violation of N.J.A.C. 13:45A-5.3(c), by virtue of the inclusion of language prohibited by that regulation in a contract of sale or sale order for the delivery of household furniture, to constitute a violation of a “clearly established legal right of a consumer or responsibility of a seller.” N.J.S.A. 56:12-15. We interpret N.J.S.A. 56:12-17 to require a consumer to show that he or she has suffered harm, even if that harm does not warrant an award of damages, as a result of a violation of N.J.S.A. 56:12-15, in order for that consumer to constitute an “aggrieved consumer” for purposes of the TCCWNA. N.J.S.A. 56:12-17. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion. 27

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Docket No.: a_87_16
Decided: 2018-04-11
Caption: Robert Ferrante v. New Jersey Manufacturers Insurance Group
Summary:
FERNANDEZ-VINA, J., writing for the Court. In this appeal, the Court considers what impact a driver’s failure to inform his auto insurance carrier about litigation against an underinsured tortfeasor has on the driver’s later ability to collect on his underinsured motorist (“UIM”) policy. Specifically, the Court addresses to what extent a carrier is required to pay a UIM claim when its subrogation rights are totally nullified. Plaintiff Robert Ferrante was involved in an automobile accident in 2006 where the other motorist (“the tortfeasor”) caused the collision. Without informing his auto insurance carrier, defendant New Jersey Manufacturers Insurance Group (“NJM”), Ferrante initiated a negligence lawsuit against the tortfeasor, who had a liability limit of $100,000 on his insurance policy. The parties participated in mandatory arbitration, which set Ferrante’s damages at $90,000. Again, without informing NJM and allowing it to exercise its subrogation rights, Ferrante rejected the award, and sought a trial de novo. He also refused a $50,000 settlement offer without notifying NJM. Prior to the trial, Ferrante entered into a high-low agreement with the tortfeasor, which set the range of damages between $25,000 and $100,000, notwithstanding a jury verdict. Ferrante did not communicate this agreement or the trial itself to NJM, either. Following the trial, a jury awarded plaintiff $200,000 in damages, but the Law Division entered a judgment of $100,000 based on the high-low agreement. For the first time in 2011, Ferrante sent NJM a letter required by Longworth v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988), stating that he was seeking UIM benefits. In the letter, Ferrante wrote that the tortfeasor was willing to settle for $100,000. However, Ferrante failed to mention the arbitration, high-low agreement, completed trial, or jury verdict. Based on this information, NJM told Ferrante to accept the offer. NJM and Ferrante proceeded to litigation over UIM coverage in the Law Division. Only during a pretrial discovery exchange did Ferrante finally disclose his past dealings with the tortfeasor. NJM moved to dismiss the complaint, and the Law Division granted the motion, finding that Ferrante violated Longworth by not notifying NJM of any of the proceedings with the tortfeasor. On appeal, a split panel of the Appellate Division reversed. The majority held that because the trial court did not consider if NJM was actually prejudiced by the lack of notice, a remand was needed to determine if NJM sustained any prejudice. In a dissent, Judge Accurso disagreed that NJM must demonstrate prejudice in order to void the UIM claim. Rather, she found that Ferrante’s failure to provide any notice to NJM during the initial suit and his later omission of the trial proceedings and high-low agreement caused NJM’s subrogation rights to be “irretrievably lost.” NJM filed its appeal as of right under Rule 2:2-1(a)(2). The Court’s review is limited to the issue raised by Judge Accurso. HELD: Due to the complete absence of notice by Ferrante to NJM at any point over years of litigation, including the lack of notice about the high-low agreement or completed jury trial during the UIM process, NJM may refuse to pay the UIM benefits. 1. New Jersey case law has routinely emphasized the importance of candor by insureds and the obligation to act in a forthright, open, and honest manner with their carriers throughout the entire process of their claim. The relationship between an insurer and the insured is contractual, but the obligation to offer UIM coverage is derived from statute. In Zirger v. General Accident Insurance Co., 144 N.J. 327 (1996), the Court outlined the right of UIM carriers to 1 intervene in trials against tortfeasors as a way to avoid relitigating a plaintiff’s claim and as a method of binding them to the issues at trial. Id. at 340-42. Thus, plaintiffs are affirmatively obligated to provide their carriers with notice “of the institution of suit against the tortfeasor.” Id. at 340-41. This duty to notify in the UIM context is intended to protect a carrier’s right of subrogation. (pp. 10-13) 2. In Longworth, the Appellate Division grappled with an insured’s initial obligation to attempt to recover from a tortfeasor prior to pursuing UIM benefits from his carrier. 223 N.J. Super. at 177-78. The court recognized that the carrier’s pursuit of subrogation against the wrongdoer has an “adverse effect . . . on the statutorily-accorded competing and paramount right of the insured victim to seek as full a recovery as possible from the combined resources of the tortfeasor’s liability carrier and his own UIM carrier.” Id. at 183. Longworth noted the tension in this process, as the insurer would inevitably seek to keep the damages low, thus providing the insured with minimal recovery for his injuries. Ibid. Regardless of those conflicts, the court determined that when the insured received “an acceptable settlement offer” from the tortfeasor, he must notify the UIM carrier. Id. at 194. Then, the carrier may decide either to allow the insured to accept the offer or provide the insured with the same amount in exchange for the assignment of the subrogation right against the tortfeasor. Ibid. (pp. 13-14) 3. The Court sought to balance the tensions of UIM subrogation cases in Rutgers Casualty Insurance Co. v. Vassas, 139 N.J. 163, 171-72 (1995), in which it identified the occasions when the insured must notify the carrier: (1) when he or she takes legal action against the tortfeasor; (2) “[i]f, during the pendency of the claim, the tortfeasor’s insurance coverage proves insufficient to satisfy the insured’s damages”; and (3) if the insured is seeking UIM benefits because he or she “receive[d] a settlement offer or arbitration award that does not completely satisfy the claim, because the tortfeasor is underinsured,” id. at 174. The Court ratified the Longworth holding. Id. at 174-75. In Vassas, the insured filed a suit against the tortfeasor without informing the carrier, and, after later receiving an award from an arbitrator, he again failed to notify the carrier. Id. at 175. The Court held that his failure “to comply with the provisions of his insurance contract and the dictates of Longworth” barred him from recovering UIM benefits. Id. at 176. (pp. 14-16) 4. Unlike in Green v. Selective Insurance Co. of America, 144 N.J. 344, 346 (1996), where the carrier had the opportunity to exercise its subrogation rights after the initial settlement offer and chose not to, NJM here was never told about the arbitration, high-low agreement, jury verdict, or judgment until after the events occurred. A prejudice determination here is not needed unlike in Green, where the carrier waived its subrogation rights, because NJM never had the opportunity to exercise its rights. Due to the numerous landmarks where Ferrante could have, and should have, but did not notify NJM, the Court does not address his state of mind or weigh any potential prejudice to the carrier. By delaying notice to NJM, Ferrante violated the terms of his policy, Longworth, Vassas, and Zirger, which required him to inform NJM as soon as the lawsuit was brought—not after arbitration, a high-low agreement, or a jury trial. Those requirements seek to protect NJM’s right to subrogation, which was clearly extinguished by Ferrante’s actions, irrespective of his state of mind. (pp. 16-19) The judgment of the Appellate Division is REVERSED and the trial court’s order is REINSTATED. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’s opinion. 2 SUPREME COURT OF NEW JERSEY A-87 September Term 2016 078496 ROBERT FERRANTE, Plaintiff-Respondent, v. NEW JERSEY MANUFACTURERS INSURANCE GROUP, Defendant-Appellant. Argued January 3, 2018 – Decided April 11, 2018 On appeal from the Superior Court, Appellate Division. Daniel J. Pomeroy argued the cause for appellant (Pomeroy Heller & Ley, attorneys; Daniel J. Pomeroy and Karen E. Heller on the briefs). Joseph P. Grimes argued the cause for respondent (Joseph P. Grimes, Esq., attorney; Joseph P. Grimes on the brief). JUSTICE FERNANDEZ-VINA delivered the opinion of the Court. In this appeal, we consider what impact a driver’s failure to inform his auto insurance carrier about litigation against an underinsured tortfeasor has on the driver’s later ability to collect on his underinsured motorist (“UIM”) policy. Specifically, we address to what extent a carrier is required to pay a UIM claim when its subrogation rights are totally nullified. 1 Plaintiff Robert Ferrante was involved in an automobile accident in 2006 where the other motorist (“the tortfeasor”) indisputably caused the collision. Without informing his auto insurance carrier, defendant New Jersey Manufacturers Insurance Group (“NJM”), Ferrante initiated a negligence lawsuit against the tortfeasor, who had a liability limit of $100,000 on his insurance policy. The parties participated in mandatory arbitration, which set Ferrante’s damages at $90,000. Again, without informing NJM and allowing it to exercise its subrogation rights, Ferrante rejected the award, and sought a trial de novo. He also refused a $50,000 settlement offer without notifying NJM. Prior to the trial, Ferrante entered into a high-low agreement with the tortfeasor, which set the range of damages between $25,000 and $100,000, notwithstanding a jury verdict. Ferrante did not communicate this agreement or the trial itself to NJM, either. Following the trial, a jury awarded plaintiff $200,000 in damages, but the Law Division entered a judgment of $100,000 based on the high-low agreement. For the first time in 2011, Ferrante sent NJM a letter required by Longworth v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988), stating that he was seeking UIM benefits. In the letter, Ferrante wrote that the tortfeasor was willing to settle for $100,000. However, Ferrante failed to mention the 2 arbitration, high-low agreement, completed trial, or jury verdict. Based on this information, NJM told Ferrante to accept the offer. NJM and Ferrante proceeded to litigation over UIM coverage in the Law Division. Only during a pretrial discovery exchange did Ferrante finally disclose his past dealings with the tortfeasor. NJM moved to dismiss the complaint, and the Law Division granted the motion, finding that Ferrante violated Longworth by not notifying NJM of any of the proceedings with the tortfeasor. On appeal, a split panel of the Appellate Division reversed. The majority held that because the trial court did not consider if NJM was actually prejudiced by the lack of notice, a remand was needed to determine if NJM sustained any prejudice. We disagree. In Zirger v. General Accident Insurance Co., 144 N.J. 327 (1996), we imposed a duty on insureds to notify their carriers at the initiation of litigation with tortfeasors; Longworth and our later opinion in Rutgers Casualty Insurance Co. v. Vassas, 139 N.J. 163 (1995), mandated that insureds inform their carriers of settlement offers. Our precedent was not followed here. Due to the complete absence of notice by Ferrante to NJM at any point over years of litigation, including the lack of notice about the high-low agreement or completed jury trial during the UIM process, NJM may refuse to pay the UIM 3 benefits. Therefore, we reverse the Appellate Division judgment. I. A. Ferrante was in a motor vehicle collision with the tortfeasor on October 2, 2006. The parties do not dispute that the tortfeasor was at fault for the collision and that his policy’s limit was $100,000. Aside from the tortfeasor’s insurance coverage, he is essentially without assets to pay damages that exceed $100,000. At the time of the accident, Ferrante’s policy with NJM provided for $300,000 in UIM coverage. The policy required Ferrante to “promptly” send NJM any legal papers regarding litigation and to “notify [NJM] in writing of a tentative settlement” with the underinsured motorist’s insurance carrier. This process gave NJM thirty days to pay the insured the tortfeasor’s insurance carrier’s offer in order to preserve its subrogation rights. The policy also required Ferrante to do “whatever is necessary to enable NJM to exercise” its subrogation rights and do “[n]othing after loss to prejudice” those rights. Instead of contacting NJM, Ferrante and his wife initiated a lawsuit against the tortfeasor in 2008, asserting negligence claims and the wife’s per quod claims. Ferrante did not notify 4 NJM of the suit. The parties proceeded to arbitration. In May 2010, the arbitrator awarded Ferrante $90,000 for his injuries and $10,000 in lost wages, but he rejected that offer without noticing NJM. He moved for a trial de novo in the Law Division in June 2010. The tortfeasor offered to settle with Ferrante for $50,000. He alternately proposed a high-low agreement that would limit damages notwithstanding the exact amount of the verdict. The agreement set the floor of damages at $25,000 and the ceiling at $100,000. Ferrante rejected the settlement offer, but accepted the high-low agreement. He did not notify NJM of either proposal, or of his acceptance of the high-low agreement. At the ensuing trial de novo in January 2011, in which NJM did not participate, a jury found the tortfeasor one hundred percent liable. The jury awarded Ferrante $200,000 in damages, and his wife $50,000 on her claim. However, due to the high-low agreement, the trial court molded the entire award to $100,000, and entered judgment. On January 12, 2011, the day after the judgment, Ferrante’s counsel sent NJM a letter. He told NJM that “the tortfeasor’s carrier has tendered the policy limits of $100,000 in exchange for execution of a Release in favor of the tortfeasor,” and requested NJM’s consent to settle. Additionally, he informed NJM that Ferrante would pursue UIM arbitration for his injuries 5 beyond the $100,000. The letter failed to mention any of the prior offers, the high-low agreement, the arbitration, the completed trial with a molded award or the judgment. Two weeks later, NJM responded and indicated it had performed an asset investigation regarding the tortfeasor. NJM authorized Ferrante to settle, and waived its subrogation rights. It then began to seek information about the UIM claim. B. In October 2012, Ferrante filed the instant UIM claim in the Law Division, and the parties engaged in discovery. Not until 2014 did Ferrante inform NJM about the $250,000 judgment in the prior litigation. NJM filed a motion in limine seeking to limit Ferrante’s recovery to $50,000 -- what NJM considered to be the difference between the tortfeasor judgment and the $300,000 UIM policy limit. Shortly thereafter, Ferrante’s attorney disclosed to NJM that his client had entered into the high-low agreement with the tortfeasor that capped damages at $100,000. NJM then amended its motion in limine to instead move for a dismissal, claiming that Ferrante had improperly waived NJM’s subrogation rights. NJM argued that Ferrante had violated Zirger, 144 N.J. at 340, which obligated insureds to inform their UIM carriers of suits against tortfeasors. 6 The Law Division dismissed the complaint in an oral decision on February 28, 2014.1 The court found that Ferrante failed to provide any notice of settlement offers, as required by Longworth, 223 N.J. Super. at 194-95, and the eventual notice to NJM was “grossly incomplete” and “woefully deficient.” The court ruled that by entering into a high-low agreement, Ferrante had waived future UIM claims against NJM. Ferrante appealed, arguing that NJM had waived its subrogation rights by authorizing him to accept the tortfeasor’s settlement offer. Further, he alleged that NJM waived its Longworth defense by not raising it during discovery. In a two-to-one decision, with Judge Accurso dissenting, the Appellate Division reversed the trial court. The majority first found that Ferrante did not waive his UIM coverage by entering into the high-low agreement. The court noted that the agreement did not reflect the value of the case, but rather was a contractual protection that Ferrante entered into to mitigate the inherent risk of a jury trial. The $100,000 range, the court wrote, was a logical cap because it was the limit of the tortfeasor’s policy, as Ferrante had determined his adversary was without assets. 1 After oral argument, the trial court granted summary judgment in favor of NJM in an oral decision. The granted order noted it as a motion in limine. 7 The majority next determined that NJM needed to demonstrate prejudice from the deficient Longworth notice in order to void the UIM policy. The court distinguished Ferrante’s situation from the setting of this Court’s opinion in Vassas, 139 N.J. at 175-76, in which we released the carrier from its UIM obligation. The court found that because Ferrante contended that NJM was not prejudiced by his actions, the case was different from Vassas, in which prejudice was assumed. The court determined that even though NJM was not in a position to exercise its right to subrogation because of Ferrante’s conduct, it was not necessarily excused from paying UIM benefits. Because the trial judge did not address the issue of prejudice, the court remanded the matter to analyze whether Ferrante’s failure to provide a timely Longworth notice actually prejudiced NJM. In that deliberation, the court placed the burden on Ferrante. In a dissent, Judge Accurso disagreed that NJM must demonstrate prejudice in order to void the UIM claim. Rather, she found that Ferrante’s failure to provide any notice to NJM during the initial suit and his later omission of the trial proceedings and high-low agreement caused NJM’s subrogation rights to be “irretrievably lost.” She concluded the case fit squarely within Vassas and thus would have ruled in favor of NJM. 8 NJM filed its appeal as of right under Rule 2:2-1(a)(2). Our review is limited to the issue raised by Judge Accurso. II. NJM argues that this Court should adopt Judge Accurso’s reasoning in her dissenting opinion and reverse the Appellate Division’s judgment. It advocates that delaying disclosure and omitting information were intentional acts that robbed NJM of its rights to subrogation or participation in the trial with the tortfeasor. NJM argues that Ferrante cannot be entitled to UIM benefits because he sent the required Longworth letter two years after the initial settlement offer. Although NJM concedes that an insured who negligently did not send a Longworth notice may be entitled to UIM benefits, in Ferrante’s situation, where he strategically opted against sending the notice, the right to UIM coverage is destroyed. Ferrante, on the other hand, denies deceiving NJM and urges this Court to affirm the Appellate Division’s opinion and allow the trial court to determine if NJM was prejudiced. Ferrante admits that his Longworth notice was defective, but faults NJM for failing to raise this deficiency until after discovery and only on the eve of trial. Additionally, Ferrante asserts that he was not required to notify NJM at all prior to an offer from the tortfeasor, which he says did not occur until immediately prior to the tortfeasor 9 trial. He also argues that Vassas only requires the insured to notify a carrier when there is an offer for the policy limits of the tortfeasor. Further, he argues the notice requirement in Zirger gives him the option of informing NJM of a settlement offer, and is not a mandate. Prior to the judgment, he argues, he had no reason to believe that the claim would be worth the tortfeasor’s $100,000 policy limit. III. A. When reviewing a grant of summary judgment, an appellate court employs the same standards used by the motion judge. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012)). The reviewing court must first determine whether the moving party has demonstrated there were no genuine issues of material fact. Ibid. If not, then the Court must decide “whether the moving party is entitled to summary judgment as a matter of law.” Ibid. Absent factual questions, this Court reviews legal determinations de novo. Templo Fuente De Vida Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). B. Our case law has routinely emphasized the importance of candor by insureds and the obligation to act in a forthright, 10 open, and honest manner with their carriers throughout the entire process of their claim. See Longobardi v. Chubb Ins. Co. of N.J., 121 N.J. 530, 539 (1990) (“[A]n insured’s commitment not to misrepresent material facts extends beyond the inception of the policy to a post-loss investigation.”) We have provided insureds “an incentive to tell the truth. It would dilute that incentive to allow an insured to gamble that a lie will turn out to be unimportant.” Id. at 541-42. Although this case arises in a different context, we seek to avoid rewarding insureds for omitting key details in a UIM claim. The relationship between an insurer and the insured is contractual, but the obligation to offer UIM coverage is derived from statute. See Zirger, 144 N.J. at 333; N.J.S.A. 17:28- 1.1(b). An individual against whom recovery is sought after an accident is considered “underinsured” when his or her liability limits are, “at the time of the accident, less than the applicable limits for underinsured motorist coverage afforded under the motor vehicle insurance policy held by the person seeking that recovery.” N.J.S.A. 17:28-1.1(e)(1). The Legislature requires carriers “to offer each insured the option of purchasing coverage up to the limits of liability coverage, but not exceeding $250,000 per person and $500,000 per accident against the risk of injury caused by underinsured tortfeasors or a single limit of $500,000.” Zirger, 144 N.J. at 11 333 (citing N.J.S.A. 17:28-1.1(b)). The availability of UIM coverage “reflects a strong public-policy interest in providing . . . adequate compensation to New Jersey Motorists for injuries sustained in accidents with underinsured motorists.” Id. at 334. In Zirger, we outlined the right of UIM carriers to intervene in trials against tortfeasors as a way to avoid relitigating a plaintiff’s claim and as a method of binding them to the issues at trial. Id. at 340-42. Thus, plaintiffs are affirmatively obligated to provide their carriers with notice “of the institution of suit against the tortfeasor.” Id. at 340-41 (citing Vassas, 139 N.J. at 174). To what extent the carrier will participate in the underlying trial is determined by the trial court, see Rule 4:33-2, but there is no flexibility in an insured’s obligation to communicate the lawsuit to the carrier. Zirger, 144 N.J. at 340-41. This duty to notify in the UIM context is intended to protect a carrier’s right of subrogation. Ferrante’s policy with NJM specifically provided for a subrogation right, which allows the “subrogee in effect [to] step into the shoes of the insured and . . . recover only if the insured likewise could have recovered.” Standard Accident Ins. Co. v. Pellecchia, 15 N.J. 162, 172 (1954) (citations omitted). The law “highly favors” subrogation as “a device of equity to compel the 12 ultimate discharge of an obligation by the one who in good conscience ought to pay it.” Holloway v. State, 125 N.J. 386, 394 (1991) (quoting Pellecchia, 15 N.J. at 171). In practice, the insurer may choose to pay out the insured for the loss and retain a cause of action against the tortfeasor. Ibid. In Longworth, the Appellate Division grappled with an insured’s initial obligation to attempt to recover from a tortfeasor prior to pursuing UIM benefits from his carrier. 223 N.J. Super. at 177-78. To protect itself from paying out a full claim, an insurance carrier could seek reimbursement from the tortfeasor who caused the loss. Id. at 183. However, the court recognized that the carrier’s pursuit of subrogation against the wrongdoer has an “adverse effect . . . on the statutorily- accorded competing and paramount right of the insured victim to seek as full a recovery as possible from the combined resources of the tortfeasor’s liability carrier and his own UIM carrier.” Ibid. This issue arises because the insured must seek “recovery from the tortfeasor’s insurer as a prerequisite to recourse to the UIM coverage.” Ibid. Longworth noted the tension in this process, as the insurer would inevitably seek to keep the damages low, thus providing the insured with minimal recovery for his injuries. Ibid. Regardless of those conflicts, the court determined that when the insured received “an acceptable settlement offer” from the 13 tortfeasor, he must notify the UIM carrier. Id. at 194. Then, the carrier may decide either to allow the insured to accept the offer or provide the insured with the same amount in exchange for the assignment of the subrogation right against the tortfeasor. Ibid. We sought to balance the tensions of UIM subrogation cases in Vassas. 139 N.J. at 171-72. Importantly, the issue there was protecting the insured’s ability to recover from the tortfeasor in addition to his own UIM coverage, while allowing the carrier the opportunity to evaluate the merits of the UIM claim while “maintaining a subrogation action against the tortfeasor.” Id. at 175. To protect those interests, we identified the occasions when the insured must notify the carrier: (1) when he or she takes legal action against the tortfeasor; (2) “[i]f, during the pendency of the claim, the tortfeasor’s insurance coverage proves insufficient to satisfy the insured’s damages”; and (3) if the insured is seeking UIM benefits because he or she “receive[d] a settlement offer or arbitration award that does not completely satisfy the claim, because the tortfeasor is underinsured.” Id. at 174. In explicitly ratifying the Longworth holding, we held that after receiving notice in the third scenario, the carrier either can “offer to pay the insured the amount of the tortfeasor’s 14 settlement offer or the arbitration award, usually the tortfeasor’s policy limit, in exchange for subrogation of the insured’s rights against the tortfeasor; or, allow the insured to settle.” Id. at 174-75. Based on the facts presented in Vassas, we found in favor of the carrier. Id. at 175-76. The insured filed a suit against the tortfeasor without informing the carrier, and, after later receiving an award from an arbitrator, he again failed to notify the carrier. Id. at 175. We held that his failure “to comply with the provisions of his insurance contract and the dictates of Longworth” barred him from recovering UIM benefits. Id. at 176. Following Vassas, the Appellate Division analyzed several cases involving disputed UIM benefits. The Appellate Division has found that an insured who accepted a settlement offer after informing his carrier of the offer, but before he received permission, did not necessarily violate Longworth. Breitenbach v. Motor Club of Am. Ins. Co., 295 N.J. Super. 328, 332-34 (App. Div. 1996). There, the court remanded for a determination of prejudice, which it reasoned, the Vassas court did not prohibit. Id. at 335. In Rivers, the Appellate Division found for the carrier when the insured sent two letters informing the carrier of litigation but failed to detail that he had already settled the 15 case. Rivers v. Allstate Ins. Co., 312 N.J. Super. 379, 381 (App. Div. 1998). Because the insured did not show why the carrier was not prejudiced by losing its subrogation rights, the court denied him UIM benefits. Id. at 386. And in Cave, the insured initiated a lawsuit against two tortfeasors and properly informed the carrier. CNA Ins. Cos. v. Cave, 332 N.J. Super. 185, 186-88 (App. Div. 2000). The carrier waived its subrogation rights against one tortfeasor but never made a decision as to the other tortfeasor, so the matter proceeded to trial. Id. at 188. Before trial, the insured accepted a settlement offer without consulting the carrier, and later sought UIM benefits. Id. at 189. Although the court found the insured violated Longworth, it held that unlike in Vassas where the carrier was unfairly prejudiced by the loss of its subrogation rights, it was less clear there who was at fault. Id. at 193. UIM arbitration was appropriate, the court held, because if only one tortfeasor was found to be at fault, the carrier could not be prejudiced. Ibid. IV. With those principles in mind, we turn to whether Ferrante’s actions violated Longworth and Vassas to the extent that they vitiated his ability to seek UIM benefits from NJM. Despite Ferrante’s efforts to distinguish his case from Vassas, we find Vassas precludes him from recovering UIM 16 benefits. Like in Vassas, where the insured initiated a lawsuit and received an arbitration award without informing the carrier, Ferrante did the same. He further violated his duty to inform NJM by entering into a high-low agreement and taking the matter through a full jury trial without informing NJM. In addition, Ferrante improperly extinguished NJM’s right under Zirger to participate in the trial and mitigate damages in some way. Zirger is not premised on the idea that the insured has to give notice to the carrier only if he thinks the UIM claim will exceed the policy limit. The purpose of this notice is to give a carrier the opportunity to pay the insured the settlement proceeds and then try the case itself as if in the insured’s shoes. At minimum, the notice allows the carrier to participate in the trial to whatever extent the trial court allows. By virtue of Ferrante’s actions in this case, NJM lost that subrogation option. Ferrante has also attempted to rely on our precedent in Green v. Selective Insurance Co. of America, 144 N.J. 344, 346 (1996). However, those facts are inapposite to the facts here. A plaintiff’s duty to notify the UIM carrier is not mitigated by plaintiff’s earlier notice of a PIP claim. An insurer’s handling of an earlier PIP claim does not create a presumption that the insurer has received notice of the later claim against the tortfeasors. 17 Unlike in Green, where the carrier had the opportunity to exercise its subrogation rights after the initial settlement offer and chose not to, NJM here was never told about the arbitration, high-low agreement, jury verdict, or judgment until after the events occurred. A prejudice determination here is not needed unlike in Green, where the carrier waived its subrogation rights, because NJM never had the opportunity to exercise its rights. Further, the cited Appellate Division cases are distinguishable due to the numerous times Ferrante failed to inform NJM. In Breitenbach and Rivers, the insured informed the carrier during litigation, and both cases dealt more with at which point, if any, it was appropriate for the insured to accept the settlement offer without the carrier’s consent. Here, we never reach that point because Ferrante did not inform NJM of the litigation until more than two years after it was initiated and actually completed. Similarly, this case did not involve a day-of-trial settlement or include multiple tortfeasors, as in Cave; here, the single tortfeasor was well known, and NJM was still kept in the dark throughout. As a defense to his actions, Ferrante has argued that if he negligently, rather than intentionally, violated Longworth, the trial court should conduct a prejudice analysis. We conclude that due to the numerous landmarks where Ferrante could have, 18 and should have, but did not notify NJM, we need not address his state of mind or weigh any potential prejudice to the carrier.2 Our decision here is not rooted in Ferrante’s state of mind, but rather in his actions. We ratify the following approach suggested by the dissenting judge: If . . . the insured, regardless of his state of mind, fails to give the UIM carrier any notice of the UIM claim until after the final resolution of the underlying tort action, thereby causing the irretrievable loss of the carrier’s rights to subrogation and intervention before the carrier has ever learned of the existence of the claim, coverage is forfeited. By delaying notice to NJM, Ferrante violated the terms of his policy, Longworth, Vassas, and Zirger, which required him to inform NJM as soon as the lawsuit was brought -- not after arbitration, a high-low agreement, or a jury trial. Those requirements seek to protect NJM’s right to subrogation, which was clearly extinguished by Ferrante’s actions, irrespective of his state of mind. V. Accordingly, we reverse the judgment of the Appellate Division and reinstate the trial court’s order. 2 Counsel for NJM suggests that if the insured’s failure to provide notice was the result of pure negligence, and there was no misleading conduct, it may be appropriate to impose a rebuttable presumption of prejudice and place the burden on the insured to show the absence of prejudice. We need not resolve that issue in this case. 19 CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’s opinion. 20

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Appellate Division PUBLISHED Decisions


Docket No.: a0095-16
Decided: 2018-04-19
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.W.
Status: published
Summary:
PER CURIAM Defendants C.B. (Carol) and C.W. (Carl) are the parents of two children: Q.W. (Quincy), who was born in 2010, and P.W. (Paul), who was born in 2011.1 The Division of Child Protection and Permanency commenced a Title Nine action in July 2014 against Carol and Carl when informed that the children were found wandering in the street unsupervised and unclothed. The Division's emergent removal of the children was sustained by the trial court, and the Division retained custody as services were provided. The Division also gathered information about Carl's wife, J.S. (Joan); in the meantime, the judge required that any of Joan's involvement with the children be supervised. Carl was permitted unsupervised visits but was ordered to engage in parenting-skills classes and later reunified with the children. 1 All names used are fictitious. 2 A-0095-16T4 The Division, however, remained concerned about Carl because, in the Division's view, Carl was not compliant with provided services, which included parenting classes. In February 2015, the judge ordered Carl's compliance and continued his prior order that Joan's contact with the children be supervised. The following month, the Division filed an amended complaint, alleging Carl and Joan's physical abuse of the youngest child, Paul. In June 2015, the trial judge heard testimony during a two- day fact-finding hearing about the allegations in the amended complaint. At the hearing, the Division provided documentary evidence and called an expert witness and three caseworkers to testify. The Law Guardian also provided evidence and testimony from the children's daycare staff. And Carl called an expert to testify on his behalf. Neither Carl nor Joan testified. The judge concluded, by way of his July 1, 2015 oral opinion that Carl and Joan had abused or neglected Paul. Carl unsuccessfully moved for reconsideration. In February 2016, the children were reunited with Carol, and in July 2016, an order was entered that terminated the litigation; that order required that Carl's contact with the children be supervised. Carl appeals, arguing: 3 A-0095-16T4 I. THE TRIAL COURT ERRED IN FINDING THAT [CARL] CAUSED INJURY TO PAUL. II. THE TRIAL COURT ERRED IN FINDING THAT [THE DIVISION] ESTABLISHED A PRIMA FACIE CASE OF ABUSE. III. THE TRIAL COURT FAILED TO APPLY THE CORRECT DOCTRINE OF RES IPSA LOQUITOR (ARGUMENT NOT RAISED BELOW). IV. THE TRIAL COURT'S FINDING AGAINST [CARL] MUST BE REVERSED AS HE DID NOT ACT IN A GROSSLY NEGLIGENT MANNER.[2] We find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments. The March 2015 referral that was the genesis for the amended complaint against Carl and Joan resulted from the fact that when dropped off at daycare Paul exhibited wounds to his ear and a scratch near his right eye. When a daycare representative attempted to clean the blood away from Paul's wounds, she noticed bruising to the front and back of his ears and that a layer of skin was removed as a result of whatever had recently occurred. When asked what happened, Paul said Joan "did it." When later medically examined, it was determined Paul was also suffering from ringworm. Because the two separable claims arising from these allegations – excessive corporal punishment and a failure to seek 2 We have renumbered these arguments. 4 A-0095-16T4 medical treatment – were tried together, as was appropriate, there was a natural potential for confusion about the legal standards to be applied. Indeed, at the outset, the judge referred to the burden-shifting doctrine discussed in N.J. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 457 (App. Div. 2008), and In re D.T., 229 N.J. Super. 509, 517 (App. Div. 1988). Notwithstanding, we find no merit in Carl's arguments that the judge applied the wrong standard because we discern from his oral opinion that the judge found persuasive direct evidence to support both claims. That is, the judge found the Division's and Law Guardian's witnesses credible. And he found that their testimony, the child's statements, the corroborating photographs of the child and the observations made by the day-care staff, and the expert testimony, as well, supported a finding that the child was physically punished to an extent that caused considerable bleeding in an area around his ear. The fact that the judge observed that neither Carl nor Joan offered some other explanation for Paul's injury does not suggest that the judge had shifted the burden of persuasion to them. The judge only stated the obvious – that the only version offered for his consideration was the version presented by the Division and Law Guardian. Consequently, the judge was merely required to determine whether the credible evidence tilted the scales in favor of the Division's allegations 5 A-0095-16T4 of abuse and neglect. The judge answered that question in the affirmative, and we have been presented with no principled reason to second-guess his finding that Paul's injury occurred while he was in the care of Carl and Joan and that the nature of the injury supported a finding that Paul was subjected to excessive corporal punishment within the meaning of N.J.S.A. 9:6-8.21(c)(4). The judge also found from the credible evidence that Paul's ringworm condition was in "various stages of remission" and, therefore, had persisted for a long enough period of time to support the Division's contention that Carl failed to timely seek medical treatment for the child. This, too, provided a sound basis for a finding of abuse or neglect. Affirmed. 6 A-0095-16T4

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Docket No.: a0219-16
Decided: 2018-04-19
Caption: STATE OF NEW JERSEY v. FELIX A. MERCADO
Status: published
Summary:
PER CURIAM A jury convicted defendant Felix A. Mercado on three counts of first-degree aggravated sexual assault; three counts of second- degree sexual assault; one count of third-degree endangering the welfare of a child; and one count of third-degree aggravated criminal sexual contact. In his direct appeal, we affirmed the convictions, but remanded and directed the judge to determine the applicable parole ineligibility period pertaining to one of the aggravated sexual assault convictions and to amend the judgment of conviction (JOC) if warranted. State v. Mercado, No. A-3394- 11 (App. Div. Jan. 22, 2015). Defendant then filed a post- conviction relief (PCR) petition alleging that trial counsel provided ineffective assistance of counsel by: meeting with him for a limited time; not hiring an investigator to assist in trial preparation; not objecting at trial, which allowed testimony to go unchallenged; and not objecting to the State's expert's testimony. Judge Collen M. Flynn denied PCR without an evidentiary hearing, issuing an order and written opinion dismissing the petition. Applying the well-known PCR standard articulated in Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987), the judge found that defendant failed to set forth a prima facie case of ineffective assistance of counsel. As to defendant's claim that counsel met with him a limited number of times, Judge Flynn determined that such a claim can 2 A-0219-16T4 serve as a basis for counsel's ineffectiveness, State v. Savage, 120 N.J. 594, 617 (1990), but defendant neither explained what he meant by claiming to have "limited time" with counsel nor indicated how more time with counsel would have changed the outcome of the trial. Moreover, the judge found that since the defense presented two witnesses who attacked the credibility of defendant's accusers by substantiating his testimony that the allegations against him were fabricated, counsel developed a reasonable defense. With the same reasoning, the judge rejected the claim that counsel failed to hire an investigator because it was a vague allegation without any indication to what an investigator could have done to alter his conviction, and the witnesses he presented supported his defense, which the jury apparently determined was not credible. Judge Flynn found no merit to defendant's remaining arguments that counsel failed to object to the testimony of the State's witnesses. As to the lay witnesses, the judge maintained defendant made broad assertions without citing any specific testimony that was inadmissible and how it prejudiced his trial. Besides, the judge pointed to several times in the record where counsel made objections to witnesses' testimony that were denied. With respect to the State's expert witness, Dr. Jamila Irons-Johnson, who testified about the child sexual abuse accommodation syndrome (CSAAS), the behaviors in sexually abused children, the judge 3 A-0219-16T4 determined there was no reasonable basis to object to her testimony; she was properly qualified and her testimony was within the bounds set forth in State v. W.B., 205 N.J. 588, 611 (2011) (recognizing that a CSAAS expert cannot opine that a child victim was abused). On appeal, defendant argues: POINT I THE PCR COURT'S DECISION SHOULD BE REVERSED AND THIS MATTER REMANDED TO THE LAW DIVISION AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN PRESENTING HIS PETITION FOR PCR IN THE LAW DIVISION. (NOT RAISED BELOW) POINT II THE PCR COURT'S DECISION SHOULD BE REVERSED AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION. [A.] TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO MEET WITH DEFENDANT SUFFICIENTLY BEFORE TRIAL. [B.] TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO OBJECT TO THE STATE'S INTRODUCTION OF EXPERT TESTIMONY ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME. [C.] TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO RETAIN AN INVESTIGATOR TO ASSIST IN TRIAL PREPARATION. 4 A-0219-16T4 Having considered these arguments in light of the record and applicable legal standards, defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons set forth by Judge Flynn in her cogent decision. We add only the following. A court reviewing a PCR petition based on claims of ineffective assistance has the discretion to grant an evidentiary hearing if a defendant establishes a prima facie showing in support of the requested relief. State v. Preciose, 129 N.J. 451, 462 (1992). The mere raising of a claim for PCR does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The court should only conduct a hearing if there are disputed issues as to material facts regarding entitlement to PCR that cannot be resolved based on the existing record. State v. Porter, 216 N.J. 343, 354 (2013). Because here there are no such disputed facts and defendant failed to set forth a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not warranted. Affirmed. 5 A-0219-16T4

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Docket No.: a0559-15
Decided: 2018-04-19
Caption: JEFFREY A. WICHOT v. SHERIFF RICHARD BERDNIK
Status: published
Summary:
PER CURIAM Plaintiff appeals from numerous interlocutory orders entered on various dates including: an order granting a summary judgment motion; an order denying a motion to amend the complaint; an order denying an extension of discovery; and an order awarding counsel fees and costs to defendants. Plaintiff also appeals from an order dated August 21, 2015, denying a motion for reconsideration of a June 30, 2015 order dismissing the complaint without prejudice based upon failure to provide discovery and denying plaintiff's motion to reinstate the complaint. The August 21, 2015 order 2 A-0559-15T2 provided that the complaint was dismissed with prejudice.2 Defendant Robert Weston cross-appeals from orders denying his motion for summary judgment. Having considered the record in light of controlling substantive and procedural law, we dismiss the appeal and the cross-appeal. The August 21, 2015 order dismissing the complaint with prejudice, deemed to be a final judgment for purpose of appellate review, was entered without authority. The June 30, 2015 order under reconsideration was entered pursuant to Rule 4:23-5(a)(1) for plaintiff's failure to provide discovery. As we recently noted in Thabo v. Z. Transp., "Rule 4:23-5 codified a two-step procedural paradigm that must be strictly adhered to" prior to the sanction of dismissal of the complaint with prejudice. 452 N.J. Super. 359, 369 (App. Div. 2017) (citation omitted). We added, "These procedural requirements must be scrupulously followed and technically complied with." Ibid. (citation omitted). Here, it is without dispute that the two-step process did not occur. In fact, defendants never moved to convert the dismissal 2 During oral argument, counsel for defendants stated that the June 30, 2015 order contained a technical error by its reference to Rule 4:23-5, and that the relief sought was pursuant to another rule. Counsel acknowledged that no motion was filed to correct the "error." Counsel also acknowledged that no motion was filed on behalf of defendants seeking to dismiss the complaint with prejudice prior to the August 21, 2015 order. As such, the judge, sua sponte, dismissed the complaint with prejudice. 3 A-0559-15T2 of the complaint from "without prejudice" to "with prejudice." R. 4:23-5(a)(2). That plaintiff moved for reconsideration did not provide the basis for dismissal of the complaint with prejudice nor justify the failure by defendants or the judge to comport with the strict procedural requirements of Rule 4:23-5. The order of the Law Division dated August 21, 2015 dismissing plaintiff's complaint with prejudice is vacated. Since the remaining orders under review are interlocutory, without leave to appeal granted per Rule 2:2-3(b), the appeal and cross-appeal are dismissed and the case is remanded to the Law Division. Dismissed and remanded. We do not retain jurisdiction. 4 A-0559-15T2

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Docket No.: a0942-16
Decided: 2018-04-19
Caption: MUNTERS CORPORATION v. ENVIRO-SCIENCES
Status: published
Summary:
PER CURIAM Plaintiffs Munters Corporation and its indemnitors filed a malpractice action against defendant Enviro-Sciences Inc. Defendant moved to dismiss the complaint because it was barred by the statute of limitations and therefore failed to state a claim. The trial court dismissed plaintiffs' complaint with prejudice. We affirm. The following facts are taken from the record. From 1983 to 1990, plaintiffs1 operated a manufacturing facility in Livingston. From 1991 to 1997, plaintiffs retained counsel to assist with the wind-down of its New Jersey operations, including environmental and regulatory matters, and sale of the property. In order to sell the property, plaintiffs had to comply with certain obligations under the New Jersey Industrial Site Recovery Act (ISRA). Plaintiffs allege defendant was hired as plaintiffs' environmental consultant to work in tandem with counsel on ISRA compliance matters. On December 30, 1996, upon the advice of defendant, plaintiffs executed a negative declaration stating there was no discharge of 1 Nicholas and Rebecca Des Champs owned Des Champs Laboratories, Inc., a former industrial manufacturer, which merged into Munters Corporation in 2007. 2 A-0942-16T1 hazardous substances from the property, and on January 9, 1997, defendant submitted the negative declaration to the New Jersey Department of Environmental Protection (DEP) formally requesting the issuance of a No Further Action (NFA) letter. The DEP approved the request and issued an NFA letter on January 22, 1997, closing its case related to ISRA compliance, and the property was subsequently sold. In 2008, the DEP rescinded the NFA letter after groundwater contamination was discovered originating from the property. On November 10, 2008, the DEP issued a letter stating: "Because the [DEP] has rescinded the January 22, 1997 NFA approval [plaintiffs] no longer ha[ve] the required authorization that allowed the sale of property to occur in 1997." The rescission letter instructed plaintiffs to complete an application for a remediation agreement with the DEP, conduct an investigation of the property to define the source of contamination, submit a preliminary assessment and site investigation report, and pay the appropriate review fees. After receiving the DEP's rescission letter, plaintiffs were advised by legal counsel regarding a De Minimis Quantity Exception ("DQE"). According to plaintiffs' complaint, if defendant had advised plaintiffs to obtain a DQE rather than the NFA Letter, the DEP would have been barred from pursuing plaintiffs for the 3 A-0942-16T1 groundwater contamination discovered at a later date. Unlike an NFA letter, a DQE could not be rescinded. Thus, plaintiffs submitted a retroactive DQE application to the DEP on March 23, 2009. The DEP denied plaintiffs' retroactive DQE application on April 21, 2009, due to the presence of groundwater contamination on the property. On October 27, 2014, plaintiffs contacted defendant requesting defendant execute a tolling agreement pertaining to plaintiffs' potential malpractice claims against defendant. In a letter, plaintiffs stated: "The time within which [plaintiffs] may bring a claim for professional malpractice and breach of contract against [defendant] under the applicable six-year statute of limitation running from their discovery of the breach (November 10, 2008) may expire on November 10, 2014." Defendant agreed to enter into the limited tolling agreement with plaintiffs, and agreed any claims plaintiffs may have had against defendant that had not expired as of the effective date of the agreement on November 4, 2014, were tolled to October 1, 2015. The tolling period was excluded from the calculation of the statute of limitations for any claim brought after the tolling date. The tolling agreement was not extended after it expired. On March 17, 2016, plaintiffs filed a complaint against defendant in this matter. Defendant filed its motion to dismiss. 4 A-0942-16T1 Defendant argued the complaint failed to state a claim upon which relief could be granted because plaintiffs' potential malpractice claim accrued on November 10, 2008. Defendant argued while the discovery rule applied in professional malpractice claims, plaintiffs' complaint was still untimely because it was filed approximately five-and-a-half months after the expiration of the statute of limitations, notwithstanding the benefit of the tolling agreement. In response, plaintiffs argued the statute of limitations expired on March 18, 2016, six years after the DEP's April 21, 2009 denial of the retroactive DQE, plus the 332 days of the tolling period that were tacked on to apply to claims filed after the tolling date. Plaintiffs also argued the court was required to conduct a Lopez2 hearing to determine the date upon which its malpractice claim against defendant accrued. The motion judge entered an order granting defendant's motion to dismiss plaintiffs' complaint with prejudice. In her oral decision, the judge found the cause of action accrued on March 23, 2009, and thus plaintiffs should have filed their complaint by February 18, 2016, pursuant to the tolling agreement. The judge dismissed plaintiff's complaint for failure to state a claim 2 Lopez v. Swyer, 62 N.J. 267 (1973). 5 A-0942-16T1 pursuant to Rule 4:6-2(e), because it was filed on March 17, 2016. The judge also determined "plaintiffs have failed to meet their burden of establishing a need for a Lopez [h]earing, as the admissions pled in the plaintiff[s'] complaint provide the [c]ourt with the facts necessary to dispose of their claims." This appeal followed. We begin by reciting our standard of review. Appellate review of a trial court's ruling on a motion to dismiss is de novo. Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010) (citing Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002)). "A complaint should be dismissed for failure to state a claim pursuant to Rule 4:6-2(e) only if 'the factual allegations are palpably insufficient to support a claim upon which relief can be granted.'" Ibid. (quoting Rieder v. State Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)). "This standard requires that 'the pleading be searched in depth and with liberality to determine whether a cause of action can be gleaned even from an obscure statement.'" Ibid. (quoting Seidenberg, 348 N.J. Super. at 250). Plaintiffs contend because defendant failed to advise of the need to apply for a DQE prior to the sale of the property, they were thereafter barred from obtaining a DQE. Therefore, the date of accrual for the action was April 21, 2009, the date when the 6 A-0942-16T1 DEP denied plaintiffs' application for a retroactive DQE. Plaintiffs argue the statute of limitations and the additional 332 days pursuant to the tolling agreement, would run from April 21, 2009 and expire March 18, 2016. Thus, plaintiffs claim the March 17, 2016 complaint was timely. N.J.S.A. 2A:14-1 states: "Every action at law for [professional malpractice] . . . shall be commenced within [six] years next after the cause of any such action shall have accrued." "The traditional rule is that a cause of action accrues on the date when 'the right to institute and maintain a suit', first arises." Russo Farms v. Vineland Bd. of Educ., 144 N.J. 84, 98 (1996) (quoting Rosenau v. City of New Brunswick, 51 N.J. 130, 137 (1968)). "[P]ursuant to the discovery rule, a professional malpractice claim accrues when: (1) the claimant suffers an injury or damages; and (2) the claimant knows or should know that its injury is attributable to the professional negligent advice." Vision Mortg. Corp. v. Patricia J. Chiapperini, Inc., 156 N.J. 580, 586 (1999) (alteration in original) (quoting Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 142 N.J. 280, 296 (1995)). Thus, when a party is either unaware that he has sustained an injury or, although aware that an injury has occurred, he does not know that it is, or may be, attributable to the fault of another, the cause of action does not 7 A-0942-16T1 accrue until the discovery of the injury or facts suggesting the fault of another person. [Tevis v. Tevis, 79 N.J. 422, 432 (1979).] "Fault" in the context of the discovery rule is simply that it is possible -- not provable or even probable -- that a third person's conduct that caused the injury was itself unreasonable or lacking in due care. In other words, knowledge of fault does not mean knowledge of a basis for legal liability or a provable cause of action; knowledge of fault denotes only facts suggesting the possibility of wrongdoing. Thus, knowledge of fault for purposes of the discovery rule has a circumscribed meaning: it requires only the awareness of facts that would alert a reasonable person exercising ordinary diligence that a third party's conduct may have caused or contributed to the cause of the injury and that conduct itself might possibly have been unreasonable or lacking in due care. [Savage v. Old Bridge-Sayreville Med. Grp., P.A., 134 N.J. 241, 248 (1993).] "Legally-cognizable damages occur when a plaintiff detrimentally relies on . . . the negligent advice . . ." in the context of professional malpractice. Grunwald v. Bronkesh, 131 N.J. 483, 495-96 (1993). "[A]lthough an adverse judgment may increase a plaintiff's damages, it does not constitute an indispensable element to the accrual of a cause of action." Ibid. Here, the trial court correctly reasoned: In accordance with [Rule] 4:6-2(e), and New Jersey precedent, the Court finds that the plaintiff's identified accrual date of April 21st, 2009 is not consistent with the 8 A-0942-16T1 recognized and designated ways a claim can accrue. Because the time a cause of action accrues is the date at which the plaintiff both realized that they were injured and "knew or should have known." [This is] [b]asically an objective standard that the injury could have been caused by negligence, sufficient facts to start the statute of limitations running. [Savage, 134 N.J. at 249.] The Court finds that the latest possible date that the claim could have commenced, the statute of limitations clock is March 23rd, 2009. As set forth in plaintiff’s brief in opposition of this motion, plaintiff states that after receiving the letter from the DEP on November 10th, 2008, rescinding the 1997 NFA letter for the [property], because hazardous materials had supposedly been found in ground water coming from the property, [plaintiff] consulted with new counsel. This new counsel informed [plaintiff] for the first time about the availability of obtaining a DQE from the DEP, as an alternative method of complying with the ISRA. Additionally, [plaintiff] was informed that based on [defendant]'s prior report, [plaintiff] would have been entitled to receive a DQE back in 1997[,] and had it been obtained, it would have barred the DEP from attempting to hold plaintiffs liable for the alleged new found contamination. Thus, as stated in plaintiff’s opposition brief, the receipt of the DEP letter on November 10th, 2008, "was the first indication that [plaintiff] might face liability for remediation of the alleged pollution." 9 A-0942-16T1 And by March 23rd, 2009, [plaintiff] filed an application for a DQE. This is after consulting with new counsel that [plaintiff] learned about the availability of a DQE that was available back in 1997[,] and had they obtained it at that time, the DEP would have been barred from attempting to hold plaintiff liable in 2008. This is what the DEP was attempting to do by rescinding the NFA letter. Thus, by March 23rd, 2009, plaintiffs knew that one, the NFA letter was revoked and they faced the risk of cleanup if they were unable to obtain a DQE and two, that had Enviro-Sciences attempted to procure a DQE initially, instead of an NFA letter, the entire issue would have been avoided. Thus, by March 23rd, 2009, plaintiffs were "aware of facts that would alert a reasonable person exercising ordinary diligence that Enviro-Science’s conduct may have caused or contributed to the cause of the injury and that the conduct itself might possibly have been unreasonable or lacking in due care." [Savage, 134 N.J. at 248.] . . . . Therefore, based on the date of March 23rd, 2009, the plaintiffs must have filed the complaint against ESI calculated with the additional 332 days provided in the [t]olling [a]greement by February 18th, 2016, in order to . . . avoid violating the statute of limitations. Since plaintiff’s complaint was filed March 17th, 2016, it was not timely and consequently is barred by the expiration of the statute of limitations. 10 A-0942-16T1 Our review of the record does not lead us to a different conclusion than the motion judge. By filing for a DQE on March 23, 2009, plaintiffs knew or should have known their cause of action had accrued because they discovered defendant's conduct may have caused injury in connection to the wind-down of their business.3 Plaintiffs contend "[t]he [t]rial [c]ourt could not have made an informed decision on the accrual date for the statute of limitations, specifically the date of knowledge of fault, without even reviewing the critical March letter or without conducting a 3 Plaintiffs' argument counsel's failure to advise them of a DQE barred them from obtaining one, and therefore harmed them, has been addressed while this appeal was pending. In R&K Assocs., LLC v. N.J. Dep't of Envtl. Prot., __ N.J. Super. __, __ (App. Div. 2017) (slip op. at 11), we held "there is no language in the text of the statute explicitly prohibiting a former owner of property . . . from pursuing a DQE after it has sold its parcel." We stated: It would be inequitable to construe the statutory scheme to deprive former owners of contaminated sites, who can be held liable retrospectively under ISRA for those conditions, of the opportunity to pursue DQEs or other exemptions that may be enjoyed by current owners. If liability under ISRA can extend to a former "owner" then the avenue for an exemption equitably and logically should extend reciprocally to qualified former owners, as well. [Id. at 16-17.] 11 A-0942-16T1 Lopez hearing to establish a factual record." Plaintiffs argue the motion judge "improperly denied [p]laintiffs' request for a hearing[.]" Lopez, 62 N.J. at 274. A Lopez hearing is meant to provide an opportunity for the "equitable claims of opposing parties [to] be identified, evaluated and weighed" by the trial court before determining the date upon which a plaintiff became aware of the facts giving rise to the cause of action. Lopez, 62 N.J. at 275. "The burden of proof will rest upon the party claiming the indulgence of the rule." Id. at 276. "The proofs need not evoke a finding that plaintiff knew for a certainty that the factual basis [for defendant's liability] was present." Burd v. N.J. Tel. Co., 76 N.J. 284, 293 (1978). When the credibility of the plaintiff is a significant factor, "[t]he determination by the judge should ordinarily be made at a preliminary hearing . . . ." Lopez, 62 N.J. 267, 275 (1973). However, "[w]here credibility is not involved, affidavits, with or without depositions, may suffice; it is for the trial judge to decide." Ibid. Where "the record . . . unquestionably establishes [a] plaintiff's awareness of the essential facts, no formal hearing [is] necessary to resolve the discovery rule issue." Lapka v. Porter Hayden Co., 162 N.J. 545, 558 (2000). 12 A-0942-16T1 Here, plaintiffs' complaint provided the motion judge with the requisite information to determine the issue of plaintiffs' awareness of the essential facts that should have alerted them to the possibility of the claim by March 23, 2009. Indeed, the judge concluded: [B]ased upon the . . . facts in the pleadings and Lopez v. Swyer, 62 N.J. 262 (1973), the [c]ourt does not find that a Lopez [h]earing is necessary as the plaintiffs have failed to meet their burden of establishing a need for a Lopez hearing, as the admissions pled in the plaintiffs' complaint provide the [c]ourt with the facts necessary to dispose of their claims. We agree. Plaintiffs' complaint contained admissions, which the motion judge found established plaintiffs should have been aware the date of accrual was March 23, 2009. A Lopez hearing was not necessary to establish these facts. Furthermore, there is no indication a hearing was required to address issues of credibility as the motion before the judge was to dismiss for failure to state a claim, and plaintiffs' pleadings were afforded all reasonable inferences. Therefore, the motion judge properly determined plaintiffs failed to meet the burden of establishing the need to conduct a Lopez hearing. Nonetheless, plaintiffs contend a hearing was mandated here pursuant to Palisades at Fort Lee Condo. Assoc., Inc. v. 100 Old Palisade, LLC, 230 N.J. 427 (2017). The plaintiff in Palisades, 13 A-0942-16T1 commenced a suit regarding defective construction of a condominium. Id. at 434. The Palisades plaintiff was the new owner of the condominium and did not have possession at the time of construction. Id. at 449-50. The defendant argued the statute of limitations had run and barred the plaintiff's construction- related claims. Id. at 434, 455. The Court stated: "Based on the record before us, we cannot [determine the accrual date] because it requires findings of fact to determine when [plaintiff] . . . first knew or . . . should have known of a cause of action against . . . defendant. . . . To answer those questions, the trial court must conduct a Lopez hearing . . . ." Id. at 452. The Court held as follows: In summary, the following principles guide application of the property-tort statute of limitations in construction-defect cases. The date that a structure is deemed substantially complete oftentimes is when a cause of action accrues because some construction defects will be readily apparent on inspection and therefore the plaintiff will have a reasonable basis for filing a claim. But many construction defects will not be obvious immediately. In such instances, a cause of action does not accrue until the plaintiff knows or, through the exercise of reasonable diligence, should know of a cause of action against an identifiable defendant. A plaintiff who is a successor in ownership takes the property with no greater rights than an earlier owner. If the earlier owner knew or should have known of a cause of action against an identifiable defendant, the accrual clock starts then. 14 A-0942-16T1 The determination of when a claim accrued ordinarily should be made at a Lopez hearing. At the hearing, the plaintiff will bear the burden of proving that the claim accrued at a time after a project's substantial completion. See Lopez, 62 N.J. at 276. The plaintiff is in the best position to establish when he first knew or reasonably should have known of his cause of action. The court's decision must be based on objective evidence. The court may consider documentary evidence, deposition transcripts, and, in its discretion, take testimony. Last, the court must state its reasons for its findings of facts. [Palisades, 230 N.J. at 454 (citation omitted).] The facts and circumstances here are dissimilar from Palisades. This case did not involve a latent construction defect that was not readily discoverable by plaintiffs. Moreover, plaintiffs did not inherit the conditions on their property from a prior owner, such that the motion judge's imputation of knowledge of the potential claims against defendant required a fact finding hearing. The judge was able to determine the date upon which the statute of limitations for the commencement of the lawsuit expired based on the parties' pleadings. Finally, plaintiffs contend the motion judge's decision the statute of limitations commenced on March 23, 2009, was an argument defendant asserted for the first time in its reply brief in support of its motion to dismiss. Plaintiffs argue they were deprived of 15 A-0942-16T1 due process because it was improper for the motion judge to consider an argument raised in a reply brief without affording them the opportunity to respond. We are not persuaded. In its reply brief to the motion judge, defendant reiterated the accrual date was the November 10, 2008 rescindment. The purpose of the reply brief was to reply to an argument plaintiffs had advanced regarding the April 2009 denial and reiterate that, based on their pleadings, plaintiffs were aware of the DQE option by March 23, 2009, at the latest. Thus, defendant's reply brief introduced no new facts or issues that plaintiffs had not already raised themselves, and plaintiffs' due process rights were not violated. Affirmed. 16 A-0942-16T1

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Docket No.: a0998-16
Decided: 2018-04-19
Caption: WELLS FARGO BANK, NATIONAL ASSOCIATION v. TODD MARRAZZO
Status: published
Summary:
PER CURIAM In this mortgage foreclosure action, defendant Todd Marrazzo appeals from a June 24, 2016 Chancery Division order granting plaintiff Wells Fargo's1 motion for summary judgment, striking defendant's answer and entering default against him, and an October 13, 2016 final judgment of foreclosure. Defendant argues the court erred by rejecting his contention the complaint was filed beyond the six-year limitations period set forth in N.J.S.A. 2A:50- 56.1(a), and by finding plaintiff had standing to bring the foreclosure action. We disagree and affirm. I. On December 10, 2004, defendant signed a $319,500 promissory note in favor of Option One Mortgage Corporation. The note 1 Plaintiff's full name is Wells Fargo Bank, National Association, as Trustee for Mastr Asset Backed Securities Trust 2005-OPT1, Mortgage Pass-Through Certificates, Series 2005-OPT1. 2 A-0998-16T1 included an expressly defined "Maturity Date" of January 1, 2035. Defendant executed a mortgage to Option One granting a security interest in residential property located in Hackensack. The mortgage included an acceleration clause granting plaintiff "the option" of declaring all sums and interest secured by the mortgage immediately due in the event of a default under the note or mortgage. The mortgage was recorded in the Bergen County Clerk's Office on January 13, 2005. Defendant defaulted on September 1, 2008, and thereafter has failed to make any payments under the note. On December 10, 2008, plaintiff filed a foreclosure complaint, which included a declaration accelerating the total amount due under the note. On February 25, 2014, the complaint was dismissed by stipulation of the parties. On January 8, 2016, plaintiff filed a second foreclosure complaint. Defendant's contesting answer included the affirmative defense that the action was time-barred, claiming it was filed beyond the six-year limitations period under N.J.S.A. 2A:50- 56.1(a). Defendant also averred that plaintiff lacked standing because it was "neither a possessor of the note, a holder in due course, or a non-holder with a right to enforce." On May 4, 2016, plaintiff filed a motion for summary judgment, which the court granted following oral argument. The court 3 A-0998-16T1 rejected defendant's claims that plaintiff lacked standing and the complaint was filed beyond the limitations period in N.J.S.A. 2A:50-56.1(a). The court reasoned that N.J.S.A. 2A:50-56.1(a) required the filing of a foreclosure complaint within six years of the maturity date set forth in the mortgage and note, and found plaintiff's 2016 complaint was timely because the note's maturity date is January 1, 2035. The court further determined plaintiff had standing because plaintiff possessed the note and had a valid assignment of the mortgage prior to the filing of the complaint. Plaintiff moved for final judgment of foreclosure, which was entered on October 13, 2016. This appeal followed. Defendant presents the following arguments for our consideration: POINT I THE COURT ERRED WHEN IT DETERMINED THAT THE MATURITY DATE OF THE MORTGAGE WAS NOT ACCELERATED AND N.J.S.A. 2A:50-56.1(a) DID NOT APPLY. POINT II THE COURT ERRED WHEN IT RELIED ON A VOID ASSIGNMENT OF MORTGAGE AND THE UNSUPPORTED ASSERTIONS OF A NON-PARTY TO AWARD PLAINTIFF STANDING TO FORECLOSE. II. We review a summary judgment order de novo, applying the same standard as the trial court. State v. Perini Corp., 221 N.J. 412, 4 A-0998-16T1 425 (2015) (citing Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013); Liberty Surplus Ins. Corp. v. Nowell Amoroso, PA, 189 N.J. 436, 445-46 (2007)). When considering a motion for summary judgment, "both trial and appellate courts must view the facts in the light most favorable to the non-moving party, which in this case is" defendant. Bauer v. Nesbitt, 198 N.J. 601, 604-05 n.1 (2009); see also R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment is appropriate where the record demonstrates "no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment . . . as a matter of law." Burnett v. Gloucester Cty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009). The interpretation of a statute, such as a statute of limitations, is a question of law requiring de novo review. See Royster v. N.J. State Police, 227 N.J. 482, 493 (2017); see also Brandt, 214 N.J. at 91. Defendant argues the court erred in finding the complaint was timely filed. He contends plaintiff's acceleration declaration in the December 10, 2008 complaint modified the maturity date of the note to the date of the complaint's filing. Defendant reasons that the acceleration date became the new maturity date under the note, and the 2016 foreclosure complaint was time-barred under 5 A-0998-16T1 N.J.S.A. 2A:50-56.1(a) because it was filed more than six years later. We are not persuaded. In interpreting N.J.S.A. 2A:50-56.1, our "overriding goal must be to determine the Legislature's intent." Cast Art Indus., LLC v. KMPG LLP, 209 N.J. 208, 221 (2012) (citation omitted). Our interpretation begins, as it must, with the plain language of the statute because that is the best indicator of legislative intent. DiProspero v. Penn, 183 N.J. 477, 492 (2005); accord State v. Gandhi, 201 N.J. 161, 176-77 (2010). We "ascribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole." Perrelli v. Pastorelle, 206 N.J. 193, 200 (2011) (quoting Hardy v. Abdul-Matin, 198 N.J. 95, 101 (2009)). N.J.S.A. 2A:50-56.1 defines the limitations period for a residential mortgage foreclosure, and provides that a foreclosure action shall not be commenced beyond the earliest of three defined deadlines. N.J.S.A. 2A:50-56.1 provides: An action to foreclose a residential mortgage shall not be commenced following the earliest of: a. Six years from the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note, bond, or other obligation secured by the mortgage, whether the date is itself set forth or may be calculated from information contained in the mortgage or note, bond, or 6 A-0998-16T1 other obligation, except that if the date fixed for the making of the last payment or the maturity date has been extended by a written instrument, the action to foreclose shall not be commenced after six years from the extended date under the terms of the written instrument; b. Thirty-six years from the date of recording of the mortgage, or, if the mortgage is not recorded, 36 years from the date of execution, so long as the mortgage itself does not provide for a period of repayment in excess of 30 years; or c. Twenty years from the date on which the debtor defaulted, which default has not been cured, as to any of the obligations or covenants contained in the mortgage or in the note, bond, or other obligation secured by the mortgage, except that if the date to perform any of the obligations or covenants has been extended by a written instrument or payment on account has been made, the action to foreclose shall not be commenced after 20 years from the date on which the default or payment on account thereof occurred under the terms of the written instrument. [N.J.S.A. 2A:50-56.1 (Emphasis added).] Here, defendant does not claim the complaint is barred under the limitation periods in subsections (b) or (c). Instead, he relies solely on the subsection (a) limitations period, arguing the complaint was not filed within six years of the filing of the December 10, 2008 complaint that included the acceleration declaration. 7 A-0998-16T1 The plain language of subsection (a) does not support defendant's argument. Subsection (a) requires commencement of the foreclosure action within six years of "the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note, . . . whether the date is itself set forth or may be calculated from information contained in the mortgage or note." N.J.S.A. 2A:50-56.1(a). The maturity date expressly "set forth" in the note is January 1, 2035. Defendant does not contend otherwise. Thus, the 2016 complaint was filed well before the six-year period following the maturity date "set forth" in the note. Defendant argues that although the maturity date set forth in the note is January 1, 2035, subsection (a) also provides for application of a maturity date that "may be calculated from information contained in the mortgage or note." N.J.S.A. 2A:50- 56.1(a). Defendant reasons that the mortgage allows for acceleration of the sums due under the note, plaintiff's declaration of acceleration in the December 10, 2008 complaint modified the maturity date, and plaintiff failed to commence the foreclosure action until more than six years later, when it filed its 2016 complaint. Defendant contends that December 10, 2008 is the maturity date "that may be calculated from information contained in the mortgage or note" under N.J.S.A. 2A:50-56.1(a), 8 A-0998-16T1 and plaintiff's complaint therefore was filed beyond the six-year limitations period. Defendant's argument ignores N.J.S.A. 2A:50-56.1(a)'s plain language, which provides that the applicable maturity date is derived from the mortgage or note and not the lender's actions. The statute permits the calculation of the pertinent maturity date "from information contained in the mortgage or note." N.J.S.A. 2A:50-56.1(a). This language provides no refuge for plaintiff, however, because the December 10, 2008 accelerated maturity date upon which defendant relies is based on facts and circumstances existing outside of any "information contained in the mortgage or note." More particularly, defendant's contention that December 10, 2008 is the applicable maturity date under N.J.S.A. 2A:50- 56.1(a) is wholly dependent on the filing of the 2008 complaint and the complaint's acceleration declaration. Neither the filing of the complaint nor the acceleration of the note is information "contained in the mortgage or note." See N.J.S.A. 2A:50-56.1(a). Defendant's reliance on the 2008 complaint's acceleration declaration as the trigger for the running of the N.J.S.A. 2A:50- 56.1(a) six-year limitations period is also not supported by the record. Even accepting defendant's erroneous contention that acceleration could define the maturity date applicable under 9 A-0998-16T1 N.J.S.A. 2A:50-56.1(a), the acceleration was rescinded in 20142 when plaintiff dismissed the complaint. The mortgage provided that acceleration was at plaintiff's option, and plaintiff opted to rescind the acceleration in 2014. As a result, the accelerated maturity date on which defendant relies to define the applicable limitations period under N.J.S.A. 2A:50-56.1(a) did not exist following the dismissal of the 2008 complaint and could not, as a matter of fact, thereafter define the maturity date of the note even under defendant's interpretation of the statute. In sum, we are convinced that neither N.J.S.A. 2A:50- 56.1(a)'s plain language nor the facts support defendant's claim that the acceleration declaration contained in the 2008 complaint defined the maturity date for calculating the six-year limitations period. The January 1, 2035 maturity date set forth in the note constituted the sole maturity date pertinent to the determination of the limitations period under N.J.S.A 2A:50:56.1(a)'s plain language. The court correctly determined plaintiff's 2016 foreclosure complaint was timely filed. Defendant also claims that the court erred by finding plaintiff had standing to bring the foreclosure action. 2 For the reasons we explained supra, we reject defendant's contention that the acceleration declaration contained in the 2008 complaint modified the maturity date of the note for purposes of determining the limitations period under N.J.S.A. 2A:50-56.1(a). 10 A-0998-16T1 Defendant's arguments are without merit sufficient to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that the competent evidence presented to the court shows an assignment of the mortgage to plaintiff and plaintiff's possession of the note prior to the filing of the complaint. The court therefore correctly determined plaintiff had standing. See Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012) (citing Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 216 (App. Div. 2011)) ("[E]ither possession of the note or an assignment of the mortgage that predated the original complaint confer[s] standing" to bring a foreclosure action). Affirmed. 11 A-0998-16T1

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Docket No.: a3316-16
Decided: 2018-04-19
Caption: IRENE KURC v. ALL STAR ONE
Status: published
Summary:
PER CURIAM Plaintiff Irene Kurc appeals the Law Division's February 3, 2017 order granting summary judgment in favor of defendants All Star One, Karen Brenner, Himmelstein Associates, LLC, and All Star One Parent Booster Club, Inc. She also appeals the March 17, 2017 order denying her motion for reconsideration. We affirm. I. We summarize the facts in the trial court's February 3 opinion, supplemented with plaintiff's factual assertions. On January 23, 2013, plaintiff accompanied her granddaughter to cheerleading practice at defendants' facility in Egg Harbor Township. In her deposition, plaintiff testified as follows. She entered the front of the building, and walked to the rear seating/viewing area along a walkway designated for non-athletes. After viewing her granddaughter's practice, plaintiff walked toward the front to meet her waiting granddaughter on the same walkway near the rear reception area. She encountered a young child athlete sitting on a separate moveable mat on the walkway, blocking her path. To pass the seated child, plaintiff stepped off the walkway and onto the 2 A-3316-16T1 spring mat used for cheerleading. Plaintiff testified that while up on the cheerleading mat, she saw some young girls approaching, and she turned around to step off the mat, which was raised about four inches. The mat moved out from underneath plaintiff, causing her to fall and injure her wrist. Defendants filed a motion for summary judgment on the grounds that plaintiff failed to offer any proofs establishing they were negligent. The trial court agreed "[p]laintiff failed to put forth any proof showing the actions or inactions of [d]efendants led to an unsafe condition or lack of reasonable care such that it was a proximate cause to [p]laintiff's fall and injury." The court granted summary judgment in favor of defendants. Plaintiff filed a motion for reconsideration, which the court denied.1 Plaintiff appeals. II. Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." 1 It is undisputed the trial court denied reconsideration, though it signed plaintiff's proposed order stating its summary judgment order "is hereby vacated." 3 A-3316-16T1 R. 4:46-2(c). The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "'"[T]he court must accept as true all the evidence which supports the position of the party defending against the motion and must accord [that party] the benefit of all legitimate inferences which can be deduced therefrom[.]"'" Id. at 535 (citations omitted). An appellate court "review[s] the trial court's grant of summary judgment de novo under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We must hew to that standard of review. III. Courts "have long held that it is ordinarily a plaintiff's burden to prove negligence, and that it is never presumed." Khan v. Singh, 200 N.J. 82, 91 (2009). "[I]ndeed there is a presumption against it[.]" Buckelew v. Grossbard, 87 N.J. 512, 525 (1981). "To sustain a cause of action for negligence, a plaintiff must establish four elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and; (4) actual 4 A-3316-16T1 damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)). A. Thus, "[a] prerequisite to recovery on a negligence theory is a duty owed by defendant to plaintiff." Strachan v. John F. Kennedy Mem'l Hosp., 109 N.J. 523, 529 (1988). "When a person alleges that a landowner has acted negligently, the existence of a duty by a landowner to exercise reasonable care to third persons is generally governed by the status of the third person — guest, invitee, or trespasser — particularly when the legal relationship is clearly defined." Robinson v. Vivirito, 217 N.J. 199, 209 (2014). Here, it is undisputed plaintiff was a business invitee. A business invitee is a "person . . . invited on the premises for purposes of the owner that often are commercial or business related." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). A landowner owes to a business invitee "a duty of reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered." Id. at 434. This includes the duty to conduct "a reasonable inspection to discover latent dangerous conditions." Ibid. Therefore, defendants owed a duty of reasonable care to 5 A-3316-16T1 guard against dangerous conditions they "kn[ew] about or should have discovered." Id. at 433. Thus, "an invitee seeking to hold a business proprietor liable in negligence 'must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.'" Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 257 (2015) (citation omitted). "[T]he mere existence of a dangerous condition does not, in and of itself, establish actual or constructive notice." Prioleau v. Ky. Fried Chicken, Inc., 434 N.J. Super. 558, 571 (App. Div. 2014), aff'd as modified, 223 N.J. 245, 258 (2015). Here, plaintiff proffered no evidence that defendants had actual knowledge of the child blocking the walkway. There was no evidence that defendants or any of their employees saw the child was sitting on the walkway, heard complaints about the child's presence there, or had any knowledge that the child was blocking the walkway. See Drazin, New Jersey Premises Liability § 6:4 (2018). A defendant has constructive knowledge "when the condition existed" "'for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.'" Troupe v. Burlington Coat Factory Warehouse Corp., 443 N.J. Super. 596, 602 (App. Div. 2016) 6 A-3316-16T1 (citation omitted). "The characteristics of the dangerous condition giving rise to the slip and fall or eyewitness testimony" regarding the length of time the conditions existed "may support an inference of constructive notice about the dangerous condition." Ibid. In Troupe, the plaintiff slipped and fell on a berry located on the floor of the defendant clothing store. 443 N.J. Super. at 600. The court noted the plaintiff did not provide any evidence showing how long the berry remained on the floor, or that any employee should have known the berry was there. Id. at 602. Therefore, the court ruled the defendant had no constructive notice regarding the berry on the floor. Ibid. As in Troupe, the record here is devoid of any evidence the defendants had constructive notice. Plaintiff simply suggests because she fell near the rear reception desk, the receptionist had constructive knowledge of the child on the walkway and thus a duty to move the child. However, plaintiff proffered no evidence showing the receptionist knew or should have known before plaintiff's fall that there was a child blocking the walkway. Moreover, there was no evidence about how long the child was there, and thus about the amount of time defendant had to discover and remedy the situation. The absence of evidence of "actual or constructive notice . . . is fatal to plaintiff's 7 A-3316-16T1 claims of premises liability." Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013); see Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984). Citing cases outside the realm of premises liability, plaintiff argues it was foreseeable that a child athlete would sit in the walkway and would cause spectators to walk on the spring mat. However, plaintiff did not support her argument with any evidence, such as a history of other children sitting and blocking the walkways. In any event, "the Supreme Court has cautioned that 'imposing a duty based on foreseeability alone could result in virtually unbounded liability[.]'" Peguero v. Tau Kappa Epsilon Local Chapter, 439 N.J. Super. 77, 94 (App. Div. 2015) (quoting Estate of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 319 (2013)). "The duty owed by a premises owner, referred to as premises liability, depends in general upon the application of well-established categories through which the status of the injured party is used to define both duty and foreseeability." Desir, 214 N.J. at 316. "[T]he duty analysis has already been performed in respect of invitees, licensees (social guests), and trespassers. In furtherance of the goal of a 'reasonable degree of predictability[,]' those standards continue to guide" New 8 A-3316-16T1 Jersey courts. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 45 (2012) (alteration in original) (citation omitted). Plaintiff falls squarely in the category of business invitee. As she cannot establish the actual or constructive knowledge required for a duty to a business invitee, she cannot rely on general assertions of foreseeability to redefine that well-defined duty. Therefore, the trial court properly found she failed to show defendants had a duty which they breached. B. Plaintiff also argues the trial court improperly granted summary judgment on the issue of proximate cause because that is a jury issue. See Perez v. Wyeth Labs. Inc., 161 N.J. 1, 27 (1999) ("Ordinarily, issues of proximate cause are considered to be jury questions." (citation omitted)). Plaintiff raised the same argument in her motion for reconsideration. However, in denying her motion for reconsideration, the trial court ruled that, even ignoring proximate cause, plaintiff failed to show a breach of duty: Although proximate cause is a jury question, [p]laintiff has still failed to put forth any evidence whatsoever this incident stems from a breach of [d]efendant's duty to [p]laintiff, which is not a jury question. The lack of evidence [of breach of duty] is an issue even before reaching proximate cause. 9 A-3316-16T1 "The issues of whether a defendant owes a legal duty to another and the scope of that duty are generally questions of law for the court to decide." Robinson, 217 N.J. at 208. "[W]hether the duty was breached is a question of fact." Jerkins v. Anderson, 191 N.J. 285, 305 (2007). Because the lack of evidence of a duty breached was the reason the court denied reconsideration, and thus summary judgment, we need not reach the issue of proximate cause. We also need not consider the validity of plaintiff's argument before the trial court that the spring mat was defective because it was "a known slip-and-fall safety hazard." At both ends of the training area, defendants posted signs that stated: "Only athletes and coaches beyond this point." Plaintiff also cites defendant Karen Brenner's deposition testimony that the signs were posted for "a hundred safety issues," including "[t]ripping and falling." However, Brenner made no specific mention of the spring mat, and did not state the mat was defective, a tripping hazard, or a safety hazard. In any event, in her reply brief, plaintiff concedes that her "theory of negligence is not that the subject mat was defective but rather [d]efendants negligently allowed the pedestrian walkway to be blocked forcing Plaintiff and other parents/spectators to step up onto the cheerleading mat." 10 A-3316-16T1 We also need not address plaintiff's argument that she did not have to present expert testimony. See Hopkins, 132 N.J. at 449-51 (finding expert testimony was not "necessary in order for plaintiff to establish the existence of a dangerous condition" of an unseen step). In granting summary judgment, the trial court noted but did not rely on defendants' complaint that plaintiff had not provided any sort of expert testimony. We similarly rely instead on the absence of any evidence showing defendants had actual or constructive knowledge of the child blocking the walkway. Affirmed. 11 A-3316-16T1

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Docket No.: a3481-16
Decided: 2018-04-19
Caption: STATE OF NEW JERSEY v. JOHN GORMAN
Status: published
Summary:
MOYNIHAN, J.S.C. (temporarily assigned). Defendant John Gorman appeals from an order denying his motion to withdraw a guilty plea he entered to second-degree theft by deception, N.J.S.A. 2C:20-4,1 arguing: POINT I THERE WAS AN INADEQUATE FACTUAL BASIS FOR THE CRIME OF THEFT BY DECEPTION, THEREFORE DEFENDANT'S PLEA MUST BE VACATED. We agree that defendant's plea allocution did not establish a factual basis for each element of the charged crime because defendant did not admit he obtained the victim's money by deception. The plea judge's reliance on the theft consolidation statute, N.J.S.A. 2C:20-2(a), to accept defendant's factual basis for a different form of theft was misplaced as that statute applies only in trial settings — not to plea proceedings. We therefore reverse. I From the plea colloquy we garner that from November 1, 2008 through July 31, 2010, defendant accepted money from sixteen individuals for whom he was supposed to purchase New York Giants game tickets. Elicitation of the factual basis continued: [Defense Counsel:] Okay. And their understanding was that in exchange for the 1 The plea agreement provided the charge would be treated as a third-degree crime for sentencing purposes, and that the other two indicted charges would be dismissed. 2 A-3481-16T4 money, that you would -- you had available to you tickets. Correct? [Defendant:] Yes. [Defense Counsel:] When, in fact, you did not have the tickets. Is that right? [Defendant:] No. [Defense Counsel:] So, so their understanding was with the money then you would give them the tickets but, in fact, that was not what you had done. Is that right? [Defendant:] Yes. [Defense Counsel:] Okay. And you knew you weren't going to be able to do that. Is that right? There came a point when you knew that that was something you weren't going to be able to accomplish. Right? [Defendant:] Yes. [Defense Counsel:] Okay. And -- but you still had taken the money and you hadn't returned it to them. Correct? [Defendant:] I did not know I wasn't getting the tickets until I had taken all the money. [Defense Counsel:] Okay. But then you didn't have an intention of giving it back to them. Right? [Defendant:] I did have an intention. I just had -- [Defense Counsel:] You never gave it back to them. Right? [Defendant:] No, I did not. 3 A-3481-16T4 [Defense Counsel:] Okay. So their, their idea was that, that they were going to give you money and then you were going to in exchange give them these tickets. Correct? [Defendant:] Yes. [Defense Counsel:] And in fact, you did not do that. Is that right? [Defendant:] No. [Defense Counsel:] Okay. You used the money for any other purposes other than what these folks had given you the money for. Is that right? [Defendant:] Some, yes. [Defense Counsel:] Okay. So, so you're pleading to Count Two of theft by deception because you are guilty of that? [Defendant:] Yes. The plea judge found meritless defendant's argument that he asserted a colorable claim of innocence during his plea allocution,2 and ruled "there was a factual basis . . . to a theft," because defendant admitted that he obtained money from his [sixteen] victims with a clear understanding that he was going to use that money to purchase Giant[s] tickets on . . . behalf of the victims and then refused to return the money to the victims after he realized he 2 The judge considered the four factors – one of which is the assertion of a colorable claim of innocence — announced in State v. Slater, 198 N.J. 145 (2009), in deciding defendant's motion. When, however, a motion to withdraw is premised on an inadequate factual basis, judges should not undertake a Slater analysis. State v. Tate, 220 N.J. 393, 404-05 (2015). 4 A-3481-16T4 couldn't purchase the tickets. And he used [the money] for his own purposes. "An appellate court is in the same position as the trial court in assessing whether the factual admissions during a plea colloquy satisfy the essential elements of an offense." State v. Tate, 220 N.J. 393, 404 (2015). As such, when a defendant challenges the factual basis for a guilty plea, our review is de novo. Id. at 403-04. A judge "shall not accept" a guilty plea without determining "there is a factual basis for the plea." R. 3:9-2. "Indeed, 'it is essential to elicit from the defendant a comprehensive factual basis, addressing each element of a given offense in substantial detail.'" State v. Perez, 220 N.J. 423, 432 (2015) (quoting State v. Campfield, 213 N.J. 218, 236 (2013)). The factual basis requirement "serves a variety of purposes." State v. Barboza, 115 N.J. 415, 421 (1989). The requirement helps "to 'protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.'" Ibid. (quoting Fed. R. Crim. P. 11 advisory committee's note to 1966 amendments). "Because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the 5 A-3481-16T4 defendant possesses an understanding of the law in relation to the facts." State v. Urbina, 221 N.J. 509, 526 (2015) (quoting McCarthy v. United States, 394 U.S. 459, 466 (1969)). "[I]f a factual basis has not been given to support a guilty plea, the analysis ends and the plea must be vacated." Tate, 220 N.J. at 404. Our de novo review reveals that defendant did not provide a factual basis for each element of theft by deception; the applicable statute, N.J.S.A. 2C:20-4, provides in part: A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely: a. Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind, and including, but not limited to, a false impression that the person is soliciting or collecting funds for a charitable purpose; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise; b. Prevents another from acquiring information which would affect his judgment of a transaction; or c. Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship. 6 A-3481-16T4 Contrary to the State's argument that defendant "purposely [misled] the victims to believe that he had the Giants tickets," defendant stated that he did not have the tickets when he took the victims' money, and "did not know [he] wasn't getting the tickets until [he] had taken all the money." He further claimed he intended to return the victims' money. Thus defendant did not admit he obtained the victims' money by deception; he did not know at the time he took the money that he would not be able to obtain the tickets. Further, defendant's admissions did not establish another element of the crime — that the victims relied on the deception when they tendered the money. If defendant did not know at the time he took the money that he would not be able to obtain the tickets, he could not "purposely create[] or reinforce[] a false impression in order to obtain [the] property," an essential element of theft by deception. State v. Bennett, 194 N.J. Super. 231, 235 (App. Div. 1984). Since defendant did not admit he obtained the victims' money by deception, he did not establish a factual basis for that crime. II The plea judge agreed with the State's argument "that . . . [d]efendant cannot and should not be permitted to escape his admitted guilt simply because he disclaimed an element of theft by deception while admitting to hav[ing] committed a theft of a 7 A-3481-16T4 different kind, which is theft by failure to make required disposition." The State echoes that holding, arguing that under N.J.S.A. 2C:20-2(a), which consolidates theft offenses, "evidence that defendant committed theft by failing to make required disposition can support a guilty plea to any type of theft." When analyzing statutory provisions, we owe no deference to the judge's legal interpretation of those statutes, a purely legal issue, and conduct our review de novo. State v. Buckley, 216 N.J. 249, 260-61 (2013); Manalapan Realty LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "Our task in statutory interpretation is to determine and effectuate the Legislature's intent." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009). In construing the laws, words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language. [State v. Gandhi, 201 N.J. 161, 177 (2010) (quoting N.J.S.A. 1:1-1).] "[W]e look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen." 8 A-3481-16T4 Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008). If additional analysis is required, we utilize "a variety of sources . . . [c]entral among [which] is a statute's legislative history." Richardson v. Bd. of Trs., P.F.R.S., 192 N.J. 189, 196 (2007). The pertinent theft consolidation subsection of the statute relied upon by the State provides: Conduct denominated theft or computer criminal activity in this chapter constitutes a single offense, but each episode or transaction may be the subject of a separate prosecution and conviction. A charge of theft or computer criminal activity may be supported by evidence that it was committed in any manner that would be theft or computer criminal activity under this chapter, notwithstanding the specification of a different manner in the indictment or accusation, subject only to the power of the court to ensure fair trial by granting a bill of particulars, discovery, a continuance, or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise. [N.J.S.A. 2C:20-2(a).] Although the statutory language does not, as defendant argues, explicitly limit consolidation to trials, some of it clearly references trial settings. The phrase, "[a] charge of theft . . . may be supported by evidence," implicates a trial; evidence is presented only at a trial while pleas are supported by a defendant's factual basis. Likewise, "continuance," 9 A-3481-16T4 "conduct of the defense," and "prejudiced by lack of fair notice or by surprise" pertain to trial proceedings, not to the more controlled plea setting. And the context of "to ensure fair trial" is obvious. A review of secondary sources – our Supreme Court's historical review of the original New Jersey consolidation statute and the commentary to the Model Penal Code theft consolidation provision — also supports our view that the consolidation statute applies only to trial settings. The Court, in State v. Talley, 94 N.J. 385, 390-91 (1983) (alterations in original), analyzed the history of the original version of N.J.S.A. 2C:20-2(a): As stated in the commentary to the Code, "[t]he common unifying conception in all these [offenses] is the 'involuntary transfer of property'; the actor appropriates property of the victim without his consent or with consent obtained by fraud or coercion." II Final Report of the New Jersey Criminal Law Revision Commission, commentary to N.J.S.A. 2C:20-2, at 291 (1971). The commentary to the Model Penal Code, after which the Criminal Code was modeled, discussed the consolidation concept as follows: Nevertheless, consolidation cannot eliminate the necessity for careful drafting, nor can it avoid the necessity for a properly specific delineation of the various types of property deprivations that should be punished by the criminal law. 10 A-3481-16T4 The purpose of consolidation, therefore, is not to avoid the need to confront substantive difficulties in the definition of theft offenses. The appropriate objective is to avoid procedural problems. Even a consolidated offense . . . will retain distinctions among methods of acquisition and appropriation. The real problem arises from a defendant's claim that he did not misappropriate the property by the means alleged but in fact misappropriated the property by some other means and from the combination of such a claim with the procedural rule that a defendant who is charged with one offense cannot be convicted by proving another. [Model Penal Code § 223.1 cmt. 2(b) at 132-33 (Am. Law Inst.) (rev. cmts. 1980) (emphasis added).] The Court spoke of a trial setting when it held that "attempting to defeat one charge by arguing that [a defendant] committed a different criminal offense" is "the very vice at which the 'consolidation' statute is directed." Talley, 94 N.J. at 391. In conclusion, the Court emphasized "the adversary system cannot be permitted to deteriorate into a mere game in which defendant brazenly manifests his contempt for the system by openly admitting his guilt of an offense and then seeking 11 A-3481-16T4 exoneration on the basis of some arcane notion of pleading." Id. at 394. In addition to the analysis set forth in Talley, the commentary to the Model Penal Code illustrates instances where the consolidation statute is appropriate: Examples come readily to mind where an unwary prosecutor might stumble in distinguishing larceny, false pretenses, extortion, and embezzlement. An offender who is prosecuted for fraud might escape by proving that the victim did not believe the representations made to him but was merely frightened by them. Similarly, one who gives a bad check as a down payment on an automobile which is thereupon delivered to him on conditional sale may defeat criminal prosecution for obtaining by false pretenses by arguing that the vendor reserved title and that the vendee could therefore only be guilty of larceny, the offense against possession. The intricacies of distinguishing between stealing and receiving stolen goods and of the proper procedure for presenting these alternative views of the defendant's involvement may also lead to needless reversals of convictions. [Model Penal Code, § 223.1 cmt. 2(b) at 134 (Am. Law Inst.) (rev. cmts. 1980) (footnotes omitted).] A fair reading of this background material leads to one conclusion: the statute is applicable only to trials. The mention of "the proper procedure for presenting these alternative views of the defendant's involvement" references trial procedures and has no application in a plea setting, ibid; 12 A-3481-16T4 so too, a defendant can "openly admit[] his guilt of an offense and then seek[] exoneration on the basis of some arcane notion of pleading" only at a trial. Talley, 94 N.J. at 394. During a plea, a defendant should not be permitted to manipulate the process by admitting one type of theft of which he is not accused and then defending against another type with which he is charged – the very danger N.J.S.A. 2C:20-2(a) was designed to guard against. That risk is present only in the "adversary system" – trials – of which the Talley Court spoke. 94 N.J. at 394. If a defendant does not admit a basis for a charge to which he is pleading guilty, the judge should reject the plea and let the case proceed to trial or an alternate resolution. See R. 3:9-2. "The trial court must overcome 'a defendant's natural reluctance to elaborate on the details,' and reject a guilty plea absent the defendant's admission of 'the distasteful reality that makes the charged conduct criminal.'" Campfield, 213 N.J. at 231 (quoting State ex rel. T.M., 166 N.J. 319, 334- 35 (2001)). Defendant's plea should have been rejected here. As we have explained, the consolidation statute was not enacted to allow a defendant to admit the elements of a theft with which he 13 A-3481-16T4 is not charged.3 Rule 3:9-2 and our case law provide an orderly process by which a defendant, with a thorough understanding of the charge and the consequences of a plea, admits the elements of that charge. See Urbina, 221 N.J. at 528-29 (quoting State v. Handy, 215 N.J. 334, 362 (2013)) (placing responsibility on the plea judge to undertake "'a thorough and searching inquiry' into '[the defendant's] understanding of the nature of the right being waived and the implications that flow from that choice'"). Because that procedure was not followed in this case, we are constrained to vacate the plea and remand the case for further proceedings on the indictment. See Campfield, 213 N.J. at 237 ("[F]ollowing [the] revocation of a plea agreement, the parties must be restored to their respective positions prior to the guilty plea, and all counts dismissed by the trial court in accordance with a plea agreement must be reinstated."). Reversed and remanded. We do not retain jurisdiction. 3 Arguably, defendant admitted the elements of theft by failure to make lawful disposition. N.J.S.A. 2C:20-9. In a theft by failure to make lawful disposition, "the initial taking is authorized but at a later time a theft occurs when the property is converted to the possessor's own use." State v. Dandy, 243 N.J. Super. 62, 64-65 (App. Div. 1990), superseded by statute in part on other grounds, N.J.S.A. 2C:20-10(b). We need not consider whether a factual basis for that crime was established; defendant was never charged with that crime in the indictment, or in any accusation. 14 A-3481-16T4

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Docket No.: a3706-16
Decided: 2018-04-19
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.M.
Status: published
Summary:
PER CURIAM Defendant K.M.,1 the biological father of V.M. (Vincent), born in 2012, appeals from the February 14, 2107 judgment of guardianship, which terminated his parental rights to the child. Vincent's biological mother, M.G.M. (Mary), is deceased. On appeal, defendant contends the trial judge erred in finding respondent New Jersey Division of Child Protection and Permanency (Division) proved prongs all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. We disagree and affirm. We will not recite in detail the history of the Division's involvement with defendant. Instead, we incorporate by reference the factual findings set forth in Judge Bernadette N. DeCastro's February 14, 2017 written opinion. However, we add the following comments. Defendant has a history of heroin addiction, domestic violence, and lack of employment and housing. He became involved with the Division on August 18, 2014, as the result of an act of 1 Pursuant to Rule 1:38-3(d), we use initials and fictitious names to protect the confidentiality of the participants in these proceedings. 2 A-3706-16T2 domestic violence with Mary, which led to her death. Defendant was under the influence of drugs at the time of the domestic violence incident and also used drugs on other occasions when Vincent was in his care. Defendant's involvement with the Division prior to his arrest for Mary's death was marked by his non- compliance with substance abuse treatment. On the day of the domestic violence incident, the police found drugs and drug paraphernalia in the home and saw the home was in total disarray. The police arrested defendant and charged him with drug-related offenses. Because defendant was incarcerated and Mary was deceased, the Division executed a Dodd2 removal of Vincent, who was present during the domestic violence incident and allegedly witnessed his mother's death. The Division placed Vincent with his maternal uncle, where he remains. The maternal uncle wants to adopt him. Defendant was released on bail on August 22, 2014. He was later arrested, charged with Mary's murder, and incarcerated until March 2015. Approximately six months after his release on bail, 2 "A 'Dodd removal' refers to the emergency removal of a child children from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010). 3 A-3706-16T2 he relapsed, was arrested, charged with robbery, and his bail was revoked. He remains incarcerated and his murder and robbery charges are pending. He is in maximum security, where only grief counselling services were available. While defendant reported having abstained from drug use while incarcerated, the Division's expert psychologist, who Judge DeCastro found more persuasive than defendant's expert psychologist, opined defendant did so in a controlled setting and had to demonstrate sustained abstinence in a community setting outside prison for at least one year; however, his prognosis was poor. Defendant offered no plan for parenting Vincent should he be released from incarceration, and lacked the psychological and emotional functioning to resume parental care for the child. Because defendant remained incarcerated with uncertainty as to the outcome of his criminal charges, his capacity to provide care for Vincent within the foreseeable future was unknown. Even if defendant was acquitted of the charges and released, he would lack the immediate means to provide stability and permanency for Vincent, who needs and deserves permanency. The Division's expert also opined that Vincent's uncle is his psychological parent and Vincent has an emotional attachment to 4 A-3706-16T2 him.3 There is an intact and secure bond between Vincent and his uncle, and Vincent has thrived in his care. If removed from his uncle, Vincent would suffer emotional and psychological harm. The Division's expert further opined that Vincent and defendant had an insecure bond, defendant was not the child's psychological parent, and Vincent's uncle could mitigate any harm posed by separation from defendant. A court should terminate parental rights when the Division shows by clear and convincing evidence that: (1) The child's safety, health or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and (4) Termination of parental rights will not do more harm than good. 3 Defendant's expert did not conduct a bonding evaluation between Vincent and his uncle. 5 A-3706-16T2 [N.J.S.A. 30:4C-15.1(a).] Judge De Castro reviewed the evidence presented at the trial, made detailed factual findings as to each prong of N.J.S.A. 30:4C- 15.1(a), and thereafter concluded the Division met by clear and convincing evidence all of the legal requirements for a judgment of guardianship. As to prong one, the judge found that due to his incarceration, unresolved substance abuse and domestic violence issues, and instability, defendant has been unable to provide a safe and stabile home for Vincent now or in the foreseeable future. As to prong two, the judge found defendant had not corrected the circumstances that led to Vincent's removal and was unable to offer a viable plan for Vincent's care due to his uncertain future. The judge concluded that Vincent requires permanency in a safe and stable home, further delay in permanency would add to the harm Vincent will experience, and separation from his uncle would cause him serious and enduring emotional or psychological harm. As to prong three, Judge DeCastro found the Division provided services to defendant, including substance abuse, psychological, and bonding evaluation, substance abuse treatment, parenting skills, counseling, and visitation. The judge considered, but found no viable alternatives to termination, including the paternal grandmother and paternal aunt. As to prong four, the judge found Vincent will not suffer a greater harm from the 6 A-3706-16T2 termination of ties with defendant than from the permanent disruption of his relationship with his uncle. The judge concluded it was not in Vincent's best interest to hold him hostage to the uncertain outcome of defendant's criminal proceedings and the need for permanency was paramount. Judge DeCastro's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), accords with N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420 (2012), N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88 (2008), In re Guardianship of K.H.O., 161 N.J. 337 (1999), In re Guardianship of D.M.H., 161 N.J. 365 (1999), and N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), and is more than amply supported by the record. F.M., 211 N.J. at 448-49. We affirm substantially for the reasons the judge expressed in her comprehensive and cogent February 14, 2017 written opinion. Affirmed. 7 A-3706-16T2

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Docket No.: a4057-15
Decided: 2018-04-19
Caption: STATE OF NEW JERSEY v. MELVIN A. OWENS
Status: published
Summary:
PER CURIAM Defendant Melvin A. Owens appeals from an October 2, 2015 order denying his motion to dismiss a third superseding indictment arising out of alleged acts of sexual penetration against a child on or about January 10, 2014. He argues the indictment must be dismissed because the State failed to present exculpatory evidence that the five-year-old victim denied penetration occurred. We disagree and affirm. After the prosecutor dismissed the first two indictments, a Gloucester County grand jury charged defendant in the third indictment with: first-degree aggravated sexual assault by digitally penetrating the victim's anus, N.J.S.A. 2C:14-2(a)(1) (count one); two counts of second-degree sexual assault of a child less than thirteen years old, N.J.S.A. 2C:14-2(b) (counts two and three); second-degree sexual penetration through the use of physical force or coercion, N.J.S.A. 2C:14-2(c)(1) (count four); and second-degree knowingly engaging in sexual conduct with a child in his care, N.J.S.A. 2C:24-4(a) (count five). After the court denied his motion to dismiss the indictment, defendant pled guilty to count one, first-degree aggravated sexual assault, reserving his right to appeal from his motion to dismiss.1 Consistent with the plea agreement, defendant was sentenced to an 1 Defendant also pled guilty to second-degree endangering a child, pursuant to N.J.S.A. 2C:24-4(a) under Indictment No. 14-08-0801- I, which is not a part of this appeal. 2 A-4057-15T2 eleven-year term of incarceration with an eighty-five percent parole disqualifier and five years of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.2 The remaining counts of the indictment were dismissed. The sole witness at the grand jury proceeding for the third indictment, Detective Louis Butler, testified to the following. Detective Butler received a call from a patrolman who stated a woman had come into the police station and reported that a neighbor, defendant, had touched her five-year-old son, C.H.,3 inappropriately. The mother had taken C.H. to stay at defendant's house overnight. Upon returning home, C.H. told his mother he did not want to stay with defendant anymore. C.H. told his mother that defendant had placed his hands down C.H.'s pants and touched C.H.'s penis and put his finger between C.H.'s buttocks. Defendant followed C.H. into the bathroom and requested they play sword fights with their penises. After the incident, C.H.'s mother called defendant on a taped line facilitated by law enforcement. During that phone call, defendant admitted that his finger probably touched C.H.'s "butt 2 Defendant was also sentenced to a concurrent six-year term of incarceration under Indictment No. 14-08-0801-I. 3 We use initials for the child to protect his privacy. R. 1:38- 3(c)(12). 3 A-4057-15T2 hole" when he picked C.H. up, and that he put his hands down C.H.'s pants. Detectives Butler and Stacie Lick also obtained a taped admission from defendant. Defendant stated he drank a twelve-pack of beer and took prescription painkillers, but knew what he was doing. Defendant admitted he grabbed C.H.'s butt cheek and that his finger could have penetrated C.H.'s anus. Defendant later acknowledged it was "more than likely" his finger did penetrate C.H.'s anus. Additionally, the police report reveals that C.H. told his mother that defendant did not penetrate his anus, but the child complained his "butt was sore." C.H.'s denial of penetration, which had been presented to the other grand juries, was not presented to the third grand jury. On appeal, defendant argues: POINT I: THE TRIAL COURT ERRED IN FAILING TO DISMISS THE INDICTMENT BECAUSE DEFENDANT MADE ONLY EQUIVOCAL ADMISSIONS AND THE STATE NEGLECTED TO PRESENT THE VICTIM'S EXCULPATORY STATEMENT THAT REFUTES AN ESSENTIAL ELEMENT OF THE CRIMES CHARGED. We review the denial of a motion to dismiss an indictment under an abuse of discretion standard. State v. McCrary, 97 N.J. 132, 144 (1984). Furthermore, the discretionary authority to dismiss "should not be exercised except on 'the clearest and plainest ground' . . . ." State v. N.J. Trade Waste Ass'n, 96 4 A-4057-15T2 N.J. 8, 18-19 (1984) (quoting State v. Weleck, 10 N.J. 355, 364 (1952)). Defendant argues the grand jury was unable to properly perform its function because the State withheld exculpatory information that negates an essential element of the crime charged. The judge stated his reasons for denying the dismissal motion: The child's statement, although possibly relevant to the defense at trial, does not negate an element; but, contradicts the defendant's own personal account. A [p]etit [j]ur[y] will determine proper weight to give [to] both of these statements, [because] they are the ones [who] will be the trier of fact in a jury trial. By defendant's own admission, he put his hand down the child's pants, played with child's penis three times, put [h]is hand in the child's butt cheek, and more than likely, penetrated the child's anus. This statement made by the defendant is enough to show that a crime was committed. And, the crimes that were elicited were committed. And, that the defendant was the one that committed it, or them. The State has put forth evidence [of] each element of the crime charged, based upon my review of the transcript, and that which was submitted. "An indictment is presumed valid and should only be dismissed if it is 'manifestly deficient or palpably defective.'" State v. Feliciano, 224 N.J. 351, 380 (2016) (quoting State v. Hogan, 144 N.J. 216, 229 (1996)). "The court should evaluate whether, viewing 5 A-4057-15T2 the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it." State v. Morrison, 188 N.J. 2, 13 (2006). Thus, an indictment must be upheld as long as the State presents "some evidence establishing each element of the crime to make out a prima facie case." State v. Saavedra, 222 N.J. 39, 57 (2015) (quoting Morrison, 188 N.J. at 12). N.J.S.A. 2C:14-2(a)(1) provides "[a]n actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (1) [t]he victim is less than [thirteen] years old . . . ." N.J.S.A. 2C:14-2(b) states that "[a]n actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than [thirteen] years old and the actor is at least four years older than the victim." Lastly, N.J.S.A. 2C:14- 2(c)(1) provides "[a]n actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (1) [t]he actor uses physical force or coercion, but the victim does not sustain severe personal injury . . . ." N.J.S.A. 2C:14-1(c) defines "sexual penetration" as the "insertion of the hand, finger or object into the anus." The 6 A-4057-15T2 statute states "[t]he depth of insertion shall not be relevant as to the question of commission of the crime . . . ." Defendant argues C.H.'s statement that there was no penetration, produced at the first two grand jury hearings, was exculpatory evidence that should have been introduced at the presentation for the third indictment. In contrast, the State argues C.H.'s statements were not "clearly exculpatory" as defendant made contrary and incriminating statements and the young victim's statement was merely evidence of the degree that defendant violated him. During the grand jury presentation for the first indictment, Detective Butler testified: Q: And, he stated that he did not want to sleep at [defendant]'s house ever again because [defendant] tickled his penis and stuck his finger between [C.H.]'s butt cheeks? A: Correct. Q: Okay. And, did [C.H.] indicate that [defendant] did not actually penetrate his "poopie hole" (phonetic) as he called it? A: Correct. Q: Okay. But, that he did place his finger between his butt cheeks? A: Correct. 7 A-4057-15T2 The grand jury proceedings for the second indictment also included similar testimony from Detective Butler about C.H.'s statements. Our Supreme Court determined the prosecutor's duty to present exculpatory evidence to a grand jury in State v. Hogan, 144 N.J. 216 (1996). The Court held that "[i]n order to perform [its] vital protective function, the grand jury cannot be denied access to evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused." Id. at 236. The Court noted that "the routine presentation of evidence by prosecutors to grand juries only rarely will involve significant questions about exculpatory evidence." Ibid. These rare cases that trigger a prosecutor's duty arise only when the evidence both directly negates guilt and is clearly exculpatory. Id. at 237. As to whether the evidence directly negates guilt, the evidence at issue must "squarely refute[] an element of the crime in question . . . ." Ibid. (emphasis in original). Further, as to the second requirement, a court must evaluate the "quality and reliability of the evidence." Ibid. "[T]he exculpatory testimony of one eyewitness is not 'clearly exculpatory' if contradicted by the incriminating testimony of a number of other witnesses." 8 A-4057-15T2 Hogan, 144 N.J. at 238. The Court noted that the testimony of a "reliable, unbiased alibi witness that demonstrates that the accused could not have committed the crime in question would be clearly exculpatory." Ibid. The Court cautioned that courts should dismiss on such a ground only after considering the prosecutor's evaluation of whether the evidence at issue is "clearly exculpatory." Ibid. The record does not support defendant's assertion that C.H. adamantly stated no penetration occurred. Apart from the references in the first two grand jury presentations, the only other evidence of an interview with C.H. is in Detective Lick's investigation report, noting that C.H. was "withdrawn and reticent during his interview" and did not disclose any abuse. Under the principles in Hogan, there are no "clearly exculpatory" statements by C.H. that had to be presented to the grand jury. Under the first prong, C.H.'s statements do not "squarely refute an element" — here that there was sexual penetration — and thus C.H.'s statements do not directly negate the guilt of defendant. Under the second prong, C.H.'s statements are not particularly reliable. C.H. was a young child at the time and as such may not have realized what had happened to him, especially considering the upsetting nature of the incident. He complained 9 A-4057-15T2 of soreness, which appears inconsistent with a lack of penetration. Most importantly, defendant's incriminating statements contradict the claim that no penetration occurred. The trial judge carefully reviewed the grand jury record and appropriately found that the State presented sufficient evidence to support each element of the offenses. Feliciano, 224 N.J. at 381. Defendant's incriminating statements support the element of penetration. Defendant admitted on more than one occasion that he touched C.H. inappropriately and that it was more than likely his finger did penetrate C.H.'s anus. As such, viewing this evidence in the light most favorable to the State, the grand jury could reasonably believe the crime of aggravated sexual assault occurred and defendant committed it. Morrison, 188 N.J. at 13. "Credibility determinations and resolution of factual disputes" are not appropriately before a grand jury, but are "reserved almost exclusively for the petit jury." Hogan, 144 N.J. at 235. Affirmed. 10 A-4057-15T2

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Docket No.: a4302-15
Decided: 2018-04-19
Caption: STATE OF NEW JERSEY v. A.T.C.
Status: published
Summary:
GEIGER, J.S.C. (temporarily assigned). Defendant A.T.C. appeals from a May 13, 2016 judgment of conviction and order denying his motion for a modification of sentence. After a review of the arguments in light of the record and applicable principles of law, we affirm defendant's convictions and remand for resentencing. I. We summarize the salient facts and procedural history from the record. In October 2014, the Passaic County Internet Crime Task Force conducted an investigation into the distribution of child pornography and identified defendant as a person of interest based on numerous child pornography files he had made available for others to download. A search warrant was subsequently executed at defendant's residence on March 9, 2015. When officers explained their presence and the nature of their child pornography investigation, defendant stated, "Might as well put the bracelets on me, yeah I did it." Based on the files found on defendant's computers and his admission that he had routinely viewed child pornography during the preceding seven years, defendant was arrested and charged with four counts of second-degree distribution of child pornography, N.J.S.A. 2C:24-4(b)(5)(a)(i), and four counts of third-degree possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b). Defendant resided with his girlfriend and her minor child, M.L., for seven years preceding his arrest. When interviewed by investigators, defendant confessed to possessing pornographic videos of M.L. on his computer. He admitted to videotaping M.L. 2 A-4302-15T4 when she was in the bathtub, photographing and video recording M.L.'s vaginal area, and transferring the images to his computers. Defendant further revealed his conduct with M.L. began when she was ten years old, and the most recent incident occurred two months before his arrest, when she was twelve years old. Investigators interviewed M.L. the same day. She disclosed that defendant began sexually abusing her when she was eight years old and had touched her vagina on numerous occasions, with the last incident occurring less than one month prior to the interview. M.L. asked defendant to stop, but he did not. Subsequent investigation revealed defendant took additional pornographic videos of M.L. with his cellphone. On May 28, 2015, defendant waived his right to indictment and trial by jury and pled guilty to an accusation that charged him with first-degree aggravated sexual assault of a child under thirteen, N.J.S.A. 2C:14-2(a)(1) (count one), and second-degree endangering the welfare of a child by distribution of child pornography, N.J.S.A. 2C:24-4(b)(5)(a) (count two), in exchange for a recommended sentence of concurrent twenty-year prison terms without the possibility of parole. During his plea hearing, defendant admitted digitally penetrating the vagina of M.L. in or about August 2014, when she 3 A-4302-15T4 under the age of thirteen. Defendant also admitted that during the same time period he downloaded, viewed, and distributed child pornography containing images of children engaging in prohibited sexual acts through a "file sharing program." Defendant was evaluated by Dr. Mark Frank at the Adult Diagnostic and Treatment Center (ADTC) in Avenel, New Jersey for the purpose of determining his eligibility for sentencing under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10 (requiring diagnosis of repetitive and compulsive behavior, amenability to sex offender treatment, and willingness to participate in such treatment). In a July 24, 2015 report, Dr. Frank opined defendant engaged in a "pattern of sexual attraction towards juveniles" and his "criminal sexual behavior was performed compulsively." Dr. Frank concluded defendant was eligible for sentencing under the purview of the Sex Offender Act given the "repetitive, compulsive elements discerned," the need for sex offender treatment, and defendant's willingness to participate in a program of therapy at the ADTC. Prior to sentencing, defendant moved to modify the twenty- year term without parole provided for in the plea agreement. He sought to remove this matter from sentencing under the Jessica Lunsford Act (JLA), N.J.S.A. 2C:14-2, or, in the alternative, for the court to "exercise its inherent supervisory capacity" to 4 A-4302-15T4 craft a lesser sentence. Defendant argued he should be sentenced within the ordinary first-degree range to a prison term of ten to twenty years, subject to an 85% parole ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, because the mandatory minimum prison term and parole ineligibility requirements imposed by the JLA did not apply to his case. More specifically, defendant contended an amendment enacted on January 17, 2014, with an effective date of July 1, 2014, L. 2013, c. 214, § 3 (the July 2014 amendment), competed with a second amendment, which was enacted and became immediately effective on May 15, 2014, L. 2014, c. 7, § 1 (the May 2014 amendment), with regard to sentencing defendants convicted of aggravated sexual assault of a victim less than thirteen years old. Defendant claimed the amendments created an ambiguity and argued the rule of lenity should apply. The earlier enacted July 2014 amendment made a minor definitional modification to subsection (a)(7) of the statute, changing the language from "[t]he victim is one whom the actor knew or should have known was physically helpless, mentally incapacitated, or had a mental disease or defect" to "[t]he victim is one whom the actor knew or should have known was physically helpless or incapacitated, intellectually or mentally 5 A-4302-15T4 incapacitated, or had a mental disease or defect." N.J.S.A. 2C:14-2(a)(7) (emphasis added). The May 2014 amendment, by enacting the JLA, imposed much longer mandatory minimum prison terms without parole eligibility. Prior to the May 2014 amendment, a person convicted of aggravated sexual assault of a victim under thirteen years old was subject to the ordinary first-degree sentencing range of ten to twenty years in prison and to NERA. Defendant claimed, because the earlier enacted July 2014 amendment became effective after the May 2014 amendment, and because the July 2014 amendment did not include the sentencing provisions added by the May 2014 amendment, NERA, rather than the JLA, should apply. Defendant argued the amendments created an ambiguity and the rule of lenity should apply. Defendant also claimed the May 2014 amendment violated the separation of powers clause of the New Jersey Constitution. On May 13, 2016, the trial court issued an order and opinion denying defendant's motions. The trial court rejected defendant's argument that the sentencing provisions of the May 2014 amendment should not apply due to the subsequent effective date of the July 2014 amendment. The trial court reasoned: While it may be true that the JLA does not mention [the July 2014 amendment], the amendments address separate and distinct provisions of the statute and can stand 6 A-4302-15T4 alone. Clearly, the Legislature did not change the sentencing provisions by enacting the [May 2014 amendment] for six weeks, which would be pointless. The effective dates of the two amendments to the same statute altering different provisions were surely meant to stand on their own without any language to the contrary. Since the plain meaning of the statute is clear, the analysis stops short of requiring the use of extrinsic evidence to decipher its interpretation. Moreover, a plain reading of the statute does not lead to an absurd result, nor is it at odds with the overall statutory scheme – it rather imposes a harsher penalty on those individuals convicted of specifically enumerated aggravated sexual assaults. The trial court analyzed the sentencing requirements imposed by the Legislature, noting: Subsection (d) of N.J.S.A. 2C:14-2 authorizes the Prosecutor, in consideration of the interests of the victim, notwithstanding the mandatory sentencing provision in the statute, to negotiate a plea agreement of not less than fifteen (15) years with fifteen years of parole ineligibility; however, there is no indication that the prosecutor is required to impose a fifteen year sentence; rather, it is in the prosecutor's discretion to impose a sentence under the mandatory minimum twenty-five years. In this case, the prosecutor chose to impose a mid-range sentence of twenty years, having considered the victims. Furthermore, subsection (d) of N.J.S.A. 2C:14-2 (under [the May 2014 amendment]) states, in pertinent part, "the court may accept a negotiated plea agreement and upon such conviction shall impose the term of imprisonment and period of parole ineligibility as provided for in the plea agreement, and may not impose a lesser term 7 A-4302-15T4 of imprisonment or parole, or a lesser period of parole ineligibility than that expressly provided in the plea agreement." Pursuant to a plain reading of this statute, the [c]ourt may accept the plea agreement, and it must only impose the sentence afforded by the plea agreement; the [c]ourt may not, however, override the Prosecutor's decision to offer a mid-range sentence by sentencing Defendant to an even lesser term of imprisonment. The JLA took effect on May 15, 2014; Defendant was subsequently convicted of aggravated sexual assault in violation of this statute on May 28, 2015. The trial court also rejected the argument that the JLA violated the separation of powers clause, concluding adequate checks and balances remain in place when sentencing a defendant under the JLA. On the same day, defendant appeared for sentencing. The trial court found the offenses were committed in a "cruel and depraved manner" and the victim "was really incapable of exercising normal physical and mental power of resistance," noting that at the time of the offenses, the victim was only twelve or thirteen years old.1 The court applied aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense, and the role of actor therein); two, N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness of harm inflicted on the 1 The reference to the victim possibly being thirteen years old during the incidents in question was incorrect. The victim was only twelve years old when defendant was arrested. The incidents took place before his arrest. 8 A-4302-15T4 victim); three, N.J.S.A. 2C:44-1(a)(3) (risk that the defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and seriousness of offenses he is being convicted of); and nine, N.J.S.A. 2C:44- 1(a)(9) (need for deterring the defendant and others from violating the law). The judge found aggravating factors one and two were not duplicative "given the circumstances here." The court also found mitigating factors six, N.J.S.A. 2C:44-1(b)(6) (defendant has compensated or will compensate the victim for the injury the victim sustained); and seven, N.J.S.A. 2C:44-1(b)(7) (defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before committing present offense). The trial court gave "great weight" to aggravating factors one, two and nine, slight weight to mitigating factor six, and concluded the aggravating factors outweighed the mitigating factors. In accordance with the plea agreement, defendant was sentenced to concurrent twenty-year prison terms, without parole eligibility, to be served in whole or in part at the ADTC; parole supervision for life; mandatory parole supervision under NERA. Defendant was also required to comply with the registration requirements under Megan's Law, N.J.S.A. 2C:7-1 to -23, and prohibited from having contact with M.L. pursuant to 9 A-4302-15T4 Nicole's Law, N.J.S.A. 2C:14-12 and N.J.S.A. 2C:44-8. This appeal followed. Although originally submitted for review on an excessive sentencing oral argument calendar, Rule 2:9-11, the appeal was transferred to a plenary calendar. Defendant presents the following issues: POINT I BECAUSE THE LEGISLATURE FAILED TO CLEARLY AND DEFINITELY SPECIFY THE PUNISHMENT FOR VIOLATION OF N.J.S.A. 2C:14-2, [DEFENDANT] IS SUBJECT TO THE ORDINARY SENTENCE FOR A FIRST-DEGREE CRIME SUBJECT TO A NERA PAROLE DISQUALIFIER, RATHER THAN THE FAR HARSHER SENTENCE CREATED BY THE AMENDMENTS KNOWN AS THE JESSICA LUNSFORD ACT. POINT II N.J.S.A. 2C:14-2(D) IS UNCONSTITUTIONAL ON ITS FACE BECAUSE IT IS A VIOLATION OF THE SEPARATION OF POWERS DOCTRINE. POINT III DESPITE HIS BELIEF HE WAS BOUND BY PROSECUTORIAL SENTENCING DISCRETION, THE JUDGE FOUND IMPROPER AGGRAVATING FACTORS AND FAILED TO FIND MITIGATING FACTORS. II. The arguments of unconstitutionality and applicability of the enhanced sentencing range for aggravated sexual assault raised here by defendant are questions of first impression. We review those questions de novo because they concern issues of 10 A-4302-15T4 law. State v. Robinson, 217 N.J. 594, 603-04 (2014); State v. Galicia, 210 N.J. 364, 381 (2012). Defendant challenges the constitutionality and applicability of the enhanced sentencing provisions imposed by the JLA when the Legislature enacted the May 2014 amendment. Prior to the May 2014 amendment, a defendant convicted of first- degree aggravated sexual assault of a victim under thirteen years old could be sentenced to a prison term from ten to twenty years, subject to the parole ineligibility and mandatory parole supervision requirements imposed by NERA. The May 2014 amendment imposed the following mandatory minimum prison terms and parole ineligibility for aggravated sexual assault of a victim less than 13 years old: Except as otherwise provided in subsection d. of this section, a person convicted under paragraph (1) of this subsection shall be sentenced to a specific term of years which shall be fixed by the court and shall be between 25 years and life imprisonment of which the person shall serve 25 years before being eligible for parole, unless a longer term of parole ineligibility is otherwise provided pursuant to this Title. d. Notwithstanding the provisions of subsection a. of this section, where a defendant is charged with a violation under paragraph (1) of subsection a. of this section, the prosecutor, in consideration of the interests of the victim, may offer a negotiated plea agreement in which the 11 A-4302-15T4 defendant would be sentenced to a specific term of imprisonment of not less than 15 years, during which the defendant shall not be eligible for parole. In such event, the court may accept the negotiated plea agreement and upon such conviction shall impose the term of imprisonment and period of parole ineligibility as provided for in the plea agreement, and may not impose a lesser term of imprisonment or parole or a lesser period of parole ineligibility than that expressly provided in the plea agreement. [N.J.S.A. 2C:14-2(a), (d) (emphasis added).] Defendant committed the aggravated sexual assault after the effective date of the May 2014 amendment. Defendant argues the mandatory minimum prison terms and parole ineligibility imposed by the May 2014 amendment is inconsistent with the original sentencing range, which he contends was restored when the July 2014 amendment became effective. We are unpersuaded by this argument. The Legislature is presumed to be "thoroughly conversant with its own legislation." Brewer v. Porch, 53 N.J. 167, 174 (1969). "Certainly, the Legislature is conversant with its own enactments, particularly when a statute is considered for amendment." Comm. of Petitioners for Repeal of Ordinance No. 522 (2013) of Borough of W. Wildwood v. Frederick, 435 N.J. Super. 552, 567 (App. Div. 2014). The Legislature enacted the July 2014 amendment several months before the later May 2014 12 A-4302-15T4 amendment adopting the JLA. Thus, it seems clear the Legislature intended the sentencing provisions to remain in effect even after the July 2014 amendment became effective. The Legislature could not have intended to repeal portions of a statute not yet enacted. "[W]e will not interpret a statute in a way that 'leads to an absurd result.'" State v. Williams, 218 N.J. 576, 586 (2014) (quoting DiProspero v. Penn, 183 N.J. 477, 493 (2005)). Moreover, considered in the context of the time it was adopted, the July 2014 amendment expanded the definition of victim in subsection (a)(7). Defendant was not convicted of violating subsection (a)(7); he was convicted of violating subsection (a)(1). The amendment to subsection (a)(7) does not pertain to sentencing under subsection (a)(1) and is not relevant. Instead, as noted by the trial court, the two amendments "address separate and distinct provisions of the statute and can stand alone." Defendant argues the rule of lenity should be invoked due to the ambiguity created by the successive amendments of N.J.S.A. 2C:14-2. We disagree. As explained by the Court in State v. Regis, "[t]he rule of lenity is an important principle of statutory construction; if a statutory ambiguity cannot be resolved by analysis of the relevant text and the use of 13 A-4302-15T4 extrinsic aids, the rule requires that the ambiguity be resolved in favor of the defendant." 208 N.J. 439, 451 (2011) (citing State v. Gelman, 195 N.J. 475, 482 (2008)). However, "the rule of lenity is applied only if a statute is ambiguous, and that ambiguity is not resolved by a review of 'all sources of legislative intent.'" Id. at 452 (quoting State v. D.A., 191 N.J. 158, 165 (2007)). That is not the case here. The plain and unambiguous language of N.J.S.A. 2C:14-2 imposes a specific mandatory minimum sentence different than other second-degree offenses. Accordingly, we need not resort to utilizing extrinsic aids. Therefore, the trial court properly concluded the rule of lenity does not apply. III. Defendant further argues the mandatory sentencing provisions of the JLA violate the separation of powers clause of the New Jersey Constitution, N.J. Const. art. III, ¶ 1, and unconstitutionally impair the State's right to engage in plea bargaining. We disagree. The separation of powers clause states, "[t]he powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as 14 A-4302-15T4 expressly provided in this Constitution." Ibid. "However, the fact that the actions of one branch will affect the exercise of power in another branch does not invalidate those actions as violative of the principles of separation of powers." State v. Hessen, 145 N.J. 441, 451 (1996) (per curiam). "[I]t is within the sole power of the legislature to determine what acts constitute crime and to prescribe punishment for those acts." State v. Todd, 238 N.J. Super. 445, 455 (App. Div. 1990). As we recognized in State v. Oliver, our courts have consistently held that the determination of penalties for crimes is a legislative function, not a judicial one. A trial court does not have the right to do whatever it pleases. The court's discretion in sentencing is limited by the sentencing ranges given to it by the Legislature. Furthermore, it is within the power of the Legislature to provide the minimum and maximum terms of a sentence. [298 N.J. Super. 538, 549 (App. Div. 1996) (citations omitted).] "For example, the Legislature may enact mandatory sentencing statutes which serve to restrict a court's sentencing decision." Todd, 238 N.J. Super. at 460 (citing State v. Des Marets, 92 N.J. 62, 80 (1983)). Generally, "whatever discretion courts are given, the basic legislative design must govern." State v. Lopez, 395 N.J. Super. 98, 108 (App. Div. 2007). "[T]he judiciary has no power . . . to mete out a punishment in 15 A-4302-15T4 excess of that prescribed by the Legislature or to lessen or reduce a sentence where the Legislature has provided a mandatory penalty." State v. Bausch, 83 N.J. 425, 433 (1980) (citations omitted). As recognized by the Court in State v. Vasquez, "when the Legislature chooses to prescribe a mandatory sentence for certain offenses, it is strongly motivated by substantial law enforcement concerns." 129 N.J. 189, 200 (1992) (citing Des Marets 92 N.J. 62). "When that intent and expression are clear and unmistakable, the Court will construe such sentencing schemes to effectuate fully their obvious penal purposes." Ibid. (citations omitted). We view the intent and expression of the Legislature in enacting the JLA to be clear and unmistakable—to impose substantial mandatory minimum sentences with no parole eligibility for this extremely serious crime perpetrated against children. We recognize that "[w]hile it is within the sole power of the legislature to determine what acts constitute crime and to prescribe punishment for those acts, it cannot give the prosecuting attorney the authority, after a conviction, to decide what the punishment shall be. That is a judicial function." Todd, 238 N.J. Super. at 455 (citations omitted) (quoting State v. Jones, 689 P.2d 561, 564 (Ariz. App. Div. 16 A-4302-15T4 1984)). "[T]he parties to a plea agreement can only agree to a sentence that the prosecutor will recommend to the court and are not empowered to negotiate a sentence which is binding on the court." Id. at 459. "The determination of a criminal sentence is always and solely committed to the discretion of the trial court to be exercised within the standards prescribed by the Code of Criminal Justice." State v. Warren, 115 N.J. 433, 447 (1989) (citing State v. Roth, 95 N.J. 334 (1984)). "Hence, separate prosecutorial discretion cannot be superimposed on the court's sentencing discretion." Id. at 449. With these principles in mind, the issue becomes whether N.J.S.A. 2C:14-2 "preserves the ultimate sentencing decision to the court rather than the prosecutor." Todd, 238 N.J. Super. at 461. We conclude the trial court retains the ultimate sentencing decision when sentencing under the JLA because it "may accept the negotiated plea agreement" at its discretion. N.J.S.A. 2C:14-2(d). Here, the word "may" is used permissively. See Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325 (2000) (stating "the word 'may' ordinarily is permissive"). The trial court may reject the plea "[i]f at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement." R. 3:9-3(e). 17 A-4302-15T4 Consequently, the plea agreement is not binding on the trial court, as the statute "reserve[s] to the judiciary the power to approve or reject any agreement between the defendant and the State." Todd, 238 N.J. Super. at 462. For this reason, defendant's separation of powers argument fails. Defendant further contends the JLA impermissibly interferes with prosecutorial discretion to engage in plea bargaining. Although defendant would otherwise have been sentenced between twenty-five years and life imprisonment without parole pursuant to subsection (a), the prosecutor offered a negotiated plea deal of twenty years without parole, in accordance with subsection (d). N.J.S.A. 2C:14-2(a), (d). Defendant entered into the plea agreement and was sentenced in accordance with the terms of the agreement. Although plea bargaining is an accepted practice in this state, "[t]here is no constitutional or statutory requirement that the New Jersey judicial system recognize plea bargaining." State v. Brimage, 271 N.J. Super. 369, 374 (App. Div. 1994). "Plea bargaining is not a right of a defendant or the prosecution. It is an accommodation which the judiciary system is free to institute or reject." Hessen, 145 N.J. at 452 (quoting Brimage, 271 N.J. Super. at 379) (holding a ban against plea bargaining drunk driving cases does not violate separation 18 A-4302-15T4 of powers clause or impermissibly infringe on the powers of the prosecutor). Moreover, "[w]hile a prosecutor may exercise discretion and enter into a plea agreement with a defendant, the sentencing judge may reject it if the interests of justice are not served." Brimage, 271 N.J. Super. at 374 (citing R. 3:9-3(e); Todd, 238 N.J. Super. at 461). "Sentencing remains a judicial function, and a sentencing court, notwithstanding the agreement of the parties, may refuse to accept any of the terms and conditions of a plea agreement." State v. Howard, 110 N.J. 113, 123 (1988) (citing State v. Kovack, 91 N.J. 476, 485 (1982)). The JLA prohibits prosecutors from offering plea agreements and recommending sentences in the ordinary second-degree range of ten to twenty years subject to NERA. Instead, the prosecutor may only "offer a negotiated plea agreement in which the defendant would be sentenced to a specific term of imprisonment of not less than [fifteen] years, during which the defendant shall not be eligible for parole." N.J.S.A. 2C:14-2(d). While the mandatory minimum sentencing provisions of the JLA limit the discretionary authority of the prosecutor, we do not view this limitation as an impermissible restriction on the prosecutor's discretionary authority to offer recommended sentences as part of proposed plea agreements. 19 A-4302-15T4 IV. We next address defendant's arguments regarding the sentence imposed. Defendant argues the trial court erred by engaging in improper double-counting, applying aggravating factors one and two, N.J.S.A. 2C:44-1(a)(1) and (2), and failing to apply mitigating factor eight, N.J.S.A. 2C:44-1(b)(8). Defendant contends the sentence should be vacated and the case remanded for resentencing. We review a "trial court's 'sentencing determination under a deferential [abuse of discretion] standard of review.'" State v. Grate, 220 N.J. 317, 337 (2014) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)). We affirm a sentence if: (1) the trial court followed the sentencing guidelines; (2) its findings of fact and application of aggravating and mitigating factors were "based upon competent credible evidence in the record;" and (3) "the application of the guidelines to the facts" of the case does not "shock[] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). "Elements of a crime, including those that establish its grade, may not be used as aggravating factors for sentencing of that particular crime." Lawless, 214 N.J. at 608 (citations omitted). To do so would result in impermissible double- 20 A-4302-15T4 counting. State v. Kromphold, 162 N.J. 345, 353 (2000) (citing State v. Yarbough, 100 N.J. 627, 633 (1985)). Sentencing courts "must scrupulously avoid 'double-counting' facts that establish the elements of the relevant offense." State v. Fuentes, 217 N.J. 57, 74-75 (2014) (citing Yarbough, 100 N.J. at 645). A court, however, does not engage in double-counting when it considers facts showing defendant did more than the minimum the State is required to prove to establish the elements of an offense. Id. at 75; see State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992) ("The extent of the injuries, which exceed the statutory minimum for the offense, may be considered as aggravating."). "At the time sentence is imposed the judge shall state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence[.]" R. 3:21-4(g); see also N.J.S.A. 2C:43-2(e); State v. Kruse, 105 N.J. 354, 359-60 (1987). The "judge must determine whether specific aggravating or mitigating factors are grounded in credible evidence in the record and then weigh those factors." State v. Case, 220 N.J. 49, 54 (2014). The court's statement of the factual basis for its findings is necessary and "important for meaningful appellate review of any criminal sentence," because we are 21 A-4302-15T4 "expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, 95 N.J. at 364-65). Although "sentencing courts frequently apply both aggravating factors one and two, each requires a distinct analysis of the offense for which the court sentences the defendant." Lawless, 214 N.J. at 600. A finding of aggravating factor one requires the court to consider "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1). The Code does not define "heinous, cruel, or depraved manner." In order to find that an offense was committed in a "cruel" manner under the statute, there must be evidence defendant inflicted pain or suffering gratuitously and beyond that which was required to establish the elements of the crime charged. State v. O'Donnell, 117 N.J. 210, 217-18 (1989). In a concurring opinion in State v. V.R., Judge Humphreys concluded "secretly videotap[ing] a thirteen year old child while she was nude in the shower, asleep in bed and in the bathroom" constituted heinous acts. 387 N.J. Super. 342, 348 (App. Div. 2006) (Humphreys, J., concurring). We find no published case 22 A-4302-15T4 law defining "depraved" in the context of N.J.S.A. 2C:14-2(a)(1) or N.J.S.A. 2C:24-4(b)(5)(a). A finding of aggravating factor two requires the court to consider: The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance. [N.J.S.A. 2C:44-1(a)(2).] Aggravating factor two "focuses on the setting of the offense itself with particular attention to any factors that rendered the victim vulnerable or incapable of resistance at the time of the crime." Lawless, 214 N.J. at 608. A court may not base its finding of aggravating factor two solely upon the fact that the harm contemplated by the statute proscribing the criminal conduct occurred. Kromphold, 162 N.J. at 356-58. Rather, the sentencing court must "engage in a pragmatic assessment of the totality of harm inflicted by the offender on the victim, to the end that defendants who purposely or recklessly inflict substantial harm receive more severe sentences than other defendants." Id. at 358. In weighing aggravating factor two, the court may consider the victim's 23 A-4302-15T4 particular vulnerability to the perpetrator. See O'Donnell, 117 N.J. at 219; State v. Martin, 235 N.J. Super. 47, 58-59 (App. Div. 1989). Although the trial court recounted the underlying facts, it did not adequately state the factual or legal basis for applying aggravating factors one and two. The court's finding of aggravating factor one was limited to a conclusory assertion that the offenses were committed in "a cruel and depraved" manner. As to aggravating factor two, the judge found the victim "was really incapable of exercising normal physical and mental power of resistance" given her age at the time of the offenses. The judge did not express any other factual basis for concluding the victim was incapable of exercising normal physical and mental power of resistance, such as the relationship between M.L. and defendant. Aggravating factor two refers to the "extreme youth" of the victim. N.J.S.A. 2C:44-1(a)(2). As to count one, the victim being less than thirteen years old is an element of the offense. N.J.S.A. 2C:14-2(a)(1). Similarly, as to count two, the victim being under eighteen years old is an element of the offense. N.J.S.A. 2C:24-4(b)(1) and (5). Because the age of a child victim is an element of the crimes of which defendant was 24 A-4302-15T4 convicted, it cannot be considered an aggravating factor for sentencing purposes. See State v. Yarbough, 195 N.J. Super. 135, 143 (App. Div. 1984) (holding that where the age of the victim is an element that makes sexual assault against her a crime of first degree, victim's age may not be used as an aggravating factor), remanded for resentencing on other grounds, 100 N.J. 627, 645-46 (1985). In Yarbough, the victim was eleven years old. Ibid. Here, as to count one, the victim was between eleven and twelve years old at the time the offenses were committed. As to count two, defendant told investigators the images of child pornography involved children ranging in age from three to seventeen years old. The record does not allow review of the findings assigned to each aggravating factor or whether the court engaged in impermissible double-counting. Defendant's contention that the trial court erred in not finding mitigating factor eight (the circumstances of the offense are unlikely to recur), N.J.S.A. 2C:44-1(b)(8), lacks merit. Contrary to his position, intensive cognitive-behavioral treatment at ADTC, where he will spend at least part of his prison term; registration under Megan's Law, which restricts internet access; and parole supervision for life does not alone support this factor. 25 A-4302-15T4 We discern no abuse of discretion in not applying mitigating factor eight. Defendant's conduct was determined to be repetitive and compulsive. Despite being aware his conduct was illegal and likely to result in his arrest, defendant was unable to control his sexual attraction toward juveniles. Defendant also argues he is unlikely to reoffend because he will be almost sixty years old when he completes his sentence. We are unpersuaded by this argument. The "successful treatment of sex offenders appears to be rare." Doe v. Poritz, 142 N.J. 1, 15 (1995). As a result, "very few offenders sentenced to ADTC . . . ever meet the dual standards required for parole from ADTC." Ibid. Consequently, "the large majority of ADTC inmates leave only after having served their maximum sentences." Id. at 16. "The danger of recidivism posed by sex offenders and offenders who commit other predatory acts against children" led to the enactment of the registration requirements imposed by Megan's Law. N.J.S.A. 2C:7-1(a); see also Poritz, 142 N.J. at 15. "[O]f those who recidivate, many commit their second crime after a long interval without offense. In cases of sex offenders, as compared with other criminals, the propensity to commit crimes does not decrease over time." Poritz, 142 N.J. at 26 A-4302-15T4 15. Thus, "the tendency to reoffend does not appear to decline with an offender's increasing age." Id. at 17. V. Finally, we address the twenty-year term with no parole eligibility imposed on count two for endangering the welfare of a child by distribution of child pornography, a second-degree offense that is not subject to the JLA or NERA. The range of incarceration for that offense is between five and ten years. N.J.S.A. 2C:43-6(a)(2). The maximum period of parole ineligibility is one-half of the prison term. N.J.S.A. 2C:43- 6(b). The State concedes the prison term imposed on count two exceeded the statutory maximum. We agree that the sentence on count two was illegal. "[S]ince a trial court may not impose an illegal sentence, see State v. Copeman, 197 N.J. Super. 261, 265 (App. Div. 1984), a prosecutor should not offer a plea bargain which may not be legally implemented." State v. Baker, 270 N.J. Super. 55, 70 (App. Div. 1994). "[A] reviewing court is not free to ignore an illegal sentence." State v. Moore, 377 N.J. Super. 445, 450 (App. Div. 2005) (citing State v. Flores, 228 N.J. Super. 586, 594 (App. Div. 1988)). 27 A-4302-15T4 VI. Based upon the illegal sentence on count two and the trial court's failure to sufficiently state the reasons supporting aggravating factors one and two, we are constrained to vacate defendant's sentence and remand for resentencing on both counts. On remand, the court shall fully detail the factual basis for each aggravating and mitigating factor, shall consider whether any impermissible double-counting will result, and shall perform the required qualitative weighing and balancing of the factors in accordance with the sentencing guidelines. The trial court shall also sentence on count two within the statutory range. In summary, defendant's convictions are affirmed. We vacate the sentence and remand for resentencing in accordance with this opinion. Affirmed in part, and vacated and remanded in part. We do not retain jurisdiction. 28 A-4302-15T4

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Docket No.: a4705-15
Decided: 2018-04-19
Caption: STATE OF NEW JERSEY v. LUIS E. GAMBOA-APARICIO
Status: published
Summary:
PER CURIAM This case is back to us after a remand. See State v. Gambao- Aparicio, No. A-4358-13 (App. Div. Mar. 18, 2015). On remand, the Middlesex County Prosecutor again rejected defendant Luis E. Gambao-Aparicio's application for admission into the pre-trial intervention (PTI) program, and the trial court affirmed. For the following reasons, we affirm. A grand jury indicted defendant for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35- 10(a)(1); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). The charges stemmed from defendant's sale of approximately three grams of cocaine to an undercover narcotics officer for $80 during an ongoing investigation into defendant's drug dealing. Defendant applied for admission into the PTI program. The record revealed that he emigrated from Mexico at the age of thirteen and one-half but was residing in this country illegally. The State provided no record of his criminal history, if any, in Mexico, and, except for two arrests in New Jersey for non- indictable offenses, he had no prior juvenile adjudications or adult convictions in the United States. The charges for those arrests were dismissed after defendant voluntarily left the United States. Defendant committed the present offenses after illegally 2 A-4705-15T1 returning to this country. Following his arrest, he obtained employment and stable housing with family members. The prosecutor rejected defendant's application for admission into the PTI program, but the trial court granted defendant's motion to compel admission. On appeal, we vacated the order admitting defendant into PTI and remanded for the prosecutor to reconsider defendant's application. Id. at 4-5. We determined that defendant's brother's incarceration was irrelevant to whether defendant qualified for PTI, defendant's employment and housing were relevant positive factors to be considered, the prosecutor's reasons for N.J.S.A. 2C:43-12(e)(14), (15) and (17) were too generalized, and it was improper to use defendant's prior dismissed charges alone as evidence supporting N.J.S.A. 2C:43-12(e)(8). Id. at 4. On remand, the prosecutor no longer relied on defendant's brother's criminal record or defendant's dismissed charges as factors weighing against admission. The prosecutor reassessed the statutory factors, and found all but two weighed against admission.1 As to N.J.S.A. 2C:43-12(e)(1), "[t]he nature of the offense[,]" the prosecutor reasoned: 1 The prosecutor did not consider N.J.S.A. 2C:43-12(e)(12), "[t]he history of the use of physical violence toward others[,]" or N.J.S.A. 2C:43-12(e)(16), "[w]hether or not the applicant’s 3 A-4705-15T1 The defendant was indicted for possessing [c]ocaine, possessing the [c]ocaine with the intent to distribute, and distributing [c]ocaine. Our office considers an individual who possesses drugs with the intent to distribute and in fact distributes drugs as a serious crime. The defendant is not to be considered in the same category as a person who is addicted to the use of illegal drugs. A drug user may very well benefit from the PTI program and attend counseling to receive help for his addiction. On the contrary, this defendant is providing the would-be drug addicts the means and opportunity to continue their addiction thereby leading them down the path to self-destruction. As to N.J.S.A. 2C:43-12(e)(2), "[t]he facts of the case[,]" the prosecutor reasoned: The arrest of his defendant was the result of an ongoing investigation into the drug dealing of this defendant and others. Information had been received that this defendant was engaged in the selling of [c]ocaine. As a result of that information, members of the Middlesex County Prosecutor['s] Office Narcotics Task force and the Old Bridge Police Department became involved in the investigation. . . . [T]he use of an undercover police officer exposes the officer to a dangerous situation where he could be seriously injured. This office considers the instant matter as an entirely different situation whereby a drug dealer is observed and arrested selling drugs to his normal customers. participation in pretrial intervention will adversely affect the prosecution of codefendants[.]" 4 A-4705-15T1 As to N.J.S.A. 2C:43-12(e)(3), "[t]he motivation and age of the defendant[,]" the prosecutor reasoned: The defendant was clearly motivated by profit. This is not a situation where an individual had to steal a loaf of bread to feed his family. This defendant was interested in material gains for himself. Moreover, he was [twenty-five] years old at the time he committed this crime and was fully mature and aware of the potential consequences. His power of reason did not consider the harm he would be doing to others, only how much money he could make for himself. As to N.J.S.A. 2C:43-12(e)(4), "[t]he desire of the complainant or victim to forego prosecution[,]" the prosecutor reasoned that the detective, "who functioned in the undercover capacity, is adamant about not foregoing prosecution in this matter." As to N.J.S.A. 2C:43-12(e)(5), "[t]he existence of personal problems and character traits which may be related to the applicant’s crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment[,]" the prosecutor reasoned: After carefully considering all the information provided by the defense, we are unable to find any personal problems or character traits of this defendant for which services are unavailable within the criminal 5 A-4705-15T1 justice system or that the cause of the behavior can be controlled by proper treatment. The character trait that drove this defendant to commit this crime was profit. He desired money and material gains for himself to the detriment of anyone who would purchase his drugs. It is the State's position that the PTI program does not offer any unique programs that are not available through the criminal justice system for this defendant. Supervisory treatment offered through PTI will not control his desire to acquire material objects through the sale of illegal drugs. As to N.J.S.A. 2C:43-12(e)(6), "[t]he likelihood that the applicant’s crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment[,]" the prosecutor reasoned: There is no indication in this case that the defendant's actions were related to a situation which could be changed due to participation in the supervisory treatment. It appears that defendant was solely influenced by profit. This is not a situation where an individual had to steal a car in order to get to work so he [would not] get fired. The selling of drugs was providing funds for him in addition to his purported job. As to N.J.S.A. 2C:43-12(e)(7), "[t]he needs and interests of the victim and society[,]" the prosecutor reasoned: It is quite clear that there is a great need and interest of society to stop the sale of illegal drugs. It is well known that the actions of people who sell drugs as this defendant did, destroys lives. People become addicted; squander their life savings and those of family members. Addicts become a 6 A-4705-15T1 drain on society and often lead to a life of crime such as burglaries, robberies, and theft to support their habit. The fact that this defendant cared more for his material gain than the lives of those who he is destroying indicate that this factor weighs against his admission into PTI. As to N.J.S.A. 2C:43-12(e)(8), "[t]he extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior[,]" the prosecutor reasoned: The fact that a phone call was placed to the defendant and he readily was able to meet with an undercover police officer, (an individual whom he had never met before), and sell him a quantity of cocaine on short notice is indicative of a continuing pattern of drug dealing on the part of the defendant. If a phone call were placed to any law abiding citizen and that citizen were asked to provide a quantity of [c]ocaine, the State contends that the average law abiding citizen would be hard pressed to provide the [c]ocaine. As to N.J.S.A. 2C:43-12(e)(9), "[t]he applicant’s record of criminal and penal violations and the extent to which he may present a substantial danger to others[,]" the prosecutor reasoned: A review of the defendant's criminal history reveals that the defendant failed to appear in Municipal Court on February 24, 2012 and a [b]ench [w]arrant was issued for his arrest on April 24, 2012. While those charges were pending, he sold [c]ocaine to an undercover police officer in May of 2013. He was convicted of [d]riving [w]hile [i]ntoxicated [on] October 22, 2013. This contempt for the criminal justice process is 7 A-4705-15T1 indicative of the defendant's contempt for the law and the judicial system and makes him an unfavorable candidate for PTI. Moreover, the defendant was in this country illegally. He faced deportation and was ordered to either voluntarily depart himself by a United States Immigration Judge or be deported. He chose to depart before he was deported and left the country I January of 2011. Within months of his leaving this country, he then again illegally reentered this country and was arrested and subsequently convicted of [d]riving [w]hile [i]ntoxicated. The defendant was caught committing the instant offense while the [d]riving [w]hile [i]ntoxicated charges were pending. This is a further indication of the defendant's contempt for the criminal justice system and is illustrative of his desire not to obey the laws of this country. Upon his illegal reentry into this country, he did not choose to become a productive member of society but rather he chose to commit a crime that poses a direct danger to the people who buy his drugs. As to N.J.S.A. 2C:43-12(e)(10), "[w]hether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior[,]" the prosecutor reasoned: The definition of an assault is a knowing or purposeful act that causes injury to another. As indicated above, the actions of this defendant create a direct injury upon the individuals that ingest the drugs that he sells. He has shown no remorse for his actions and has not accepted the consequences of his actions. 8 A-4705-15T1 As to N.J.S.A. 2C:43-12(e)(11), "[c]onsideration of whether or not prosecution would exacerbate the social problem that led to the applicant’s criminal act[,]" the prosecutor reasoned: Prosecution of this defendant in the traditional manner would assist in alleviating not exacerbating the drug problem in society. If this defendant is allowed to be placed into PTI, it would fuel a misconception that drug dealers can escape with minor punishment and will be seen by others as acceptance of the illegal drug trade. As to N.J.S.A. 2C:43-12(e)(13), "[a]ny involvement of the applicant with organized crime[,]" the prosecutor reasoned: The illegal drug trade is, in and of itself, "organized crime". The major drug cartels cultivate the drugs and arrange for transportation into this country. The drugs are then moved to distribution points within the country. Those distribution points then distribute the drugs to the higher level distributors who in turn eventually distribute the drugs to individuals such as this defendant who sells them to the individuals on the street. During each step of the procedure the criminals involved receive a share of the proceeds. Without individual sellers such as this defendant the drug cartels would cease to exist. In order to properly combat the drug distribution organization, defendants such as this must be prosecuted in the traditional fashion. As to N.J.S.A. 2C:43-12(e)(14), "[w]hether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution[,]" the prosecutor reasoned: 9 A-4705-15T1 The State contends that there is no proper "supervisory treatment" in this particular case for this defendant. His ready access to drugs and lack of consideration for who he sells the drugs to are indicative of the facts that he cares not for the consequences of his actions. He will sell to people he does not know and has met for the first time. The fact that this individual does not care about the consequences of his actions makes "supervisory treatment" inapplicable in this case. As to N.J.S.A. 2C:43-12(e)(15), "[w]hether or not the applicant’s involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures[,]" the prosecutor reasoned: The fact that there are no other codefendants indicted in this case does not remove this factor from consideration by the State. Clearly this defendant did not cultivate and transport the drugs into this country thereby indicating that there are other unindicted unknown coconspirators with this defendant. The interest of the State is best served by sending a clear message to those other individuals in this case as well as in other cases that illegal drug trafficking will not be tolerated and will be prosecuted through the traditional criminal justice system procedures. As to N.J.S.A. 2C:43-12(e)(17), "[w]hether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program[,]" the prosecutor reasoned: 10 A-4705-15T1 One of the key purposes of traditional prosecution is to focus on both general and specific deterrence. Even if this defendant might be deterred by his arrest and involvement in this criminal episode, there is the question of general deterrence by the prosecution of defendant. Here, the facts and circumstances of the case makes clear that the public need for prosecution outweighs any of the potential benefits to society by channeling this defendant into a program of supervisory treatment. There is no benefit to society from channeling this offender into a supervisory treatment program. He is not a drug user; he is a drug seller, motivated by profit. This is not an individual who is an addict; he is a profiteer making his living by preying on the unfortunate disabilities of others. Lastly, the prosecutor explained that Guideline 3(i) of Rule 3:28-1 disfavors admission of a person charged with the sale or dispensing of a Schedule I or II narcotics, and there is a rebuttable presumption against enrollment when the prosecutor refuses to consent. In assessing defendant individually, the prosecutor considered positive information, including that he financially contributed to support his family; lived with his family; graduated from vocational high school and wanted to pursue a career as a diesel mechanic; and was employed full-time from June 2009 to September 2010, from March 2011 to January 2012, and for two weeks in 2014. 11 A-4705-15T1 The prosecutor also considered defendant's amenability and potential responsiveness to rehabilitation, and found: Nowhere in the submissions does defendant indicate that he no longer engages in the illegal behavior related to the sale of illegal drugs. He has submitted no drug related tests nor medical records which demonstrate that he has determined to eliminate the sale and/or use of illegal substances from his life. Factually, there is no proof offered that this [twenty-five] year old defendant has been rehabilitated relating to the root causes of his crime as well as his obvious personal attraction to profit at the misfortune of others. Defendant appealed to the Law Division. In a written opinion, Judge Diane Pincus found the prosecutor improperly considered factors (4) and (13), but properly considered the other factors. As to factors (1) and (2), the judge rejected defendant's view that this was merely a one-time occurrence involving a small amount of drugs. Rather, the judge found "[d]efendant was arrested as part of an ongoing investigation whereby the State set up this undercover operation focusing on [d]efendant[,] and [d]efendant was readily available to quickly acquire and sell drugs to a stranger." The judge also found that dealing drugs is a serious crime that harms the community and society as a whole. As to factor (3), Judge Pincus found defendant's work history and efforts to support his family did not mean he was not motivated by profit in his sale of drugs or was so young as to not appreciate 12 A-4705-15T1 the consequences of his actions. As to factors (5) and (6), the judge found "[d]efendant committed this crime solely for profit and . . . the traditional criminal justice process, rather than PTI, would adequately deter [d]efendant from continuing to commit crimes." As to factor (7), Judge Pincus found "the sale of drugs is a detriment to the community, and society has an interest in deterring the distribution of drugs." As to factor (8), the judge recognized defendant had no subsequent involvement with the criminal justice system, but found he had "a prior DWI conviction and was readily available to acquire and sell drugs to a stranger." As to factor (9), Judge Pincus found defense counsel conceded that defendant's immigration status could be considered in conjunction with other PTI factors, and counsel did not dispute defendant's failure to appear in municipal court could be considered a criminal or penal violation and used to support the denial of PTI. As to factor (10), the judge accepted the State's analysis that "[d]efendant's sale of drugs injures those who ingest the drugs and this constitutes an assault" was proper. As to factor (11), the judge found there was sufficient information supporting the State's analysis "that traditional prosecution of [d]efendant would alleviate, not exacerbate the problem in that 13 A-4705-15T1 it would send a message to drug dealers that they are not entitled to special treatment in the criminal justice system." (Da33) As to factor (15), Judge Pincus accepted the State's analysis that "there are people involved as [d]efendant could not have cultivated and transported the drugs he was selling himself[,]" and "denying [d]efendant entry into PTI . . . is sending a message to the people who are cultivating and transporting drugs that illegal drug trafficking will not be tolerated." As to factor (17), Judge Pincus accepted the State's analysis that "the general deterrence offered by traditional prosecution of [d]efendant is so great that the public need for prosecution far outweighs the benefits of allowing [d]efendant into PTI." The judge concluded: The State has presented sufficient facts to sustain its decision to reject [d]efendant's PTI application. The State conducted a reassessment of relevant factors after removing the factors cited by the Appellate Division as inappropriate and considered positive information regarding [d]efendant cited by the Appellate Division. Furthermore, there is a strong presumption in favor of denying [d]efendant's admission into PTI. Despite finding that the State improperly considered factors (4) and (13), the [c]ourt finds that the State did not make a clear error in judgment. The State's decision to not admit [d]efendant into PTI did not clearly subvert the goals underlying the program. Accordingly, this [c]ourt finds that [d]efendant has not established by clear and convincing evidence that the State's decision 14 A-4705-15T1 to reject his PTI application was a patent and gross abuse of discretion. Moreover, [d]efendant has failed to establish that the State's decision was arbitrary or irrational such that a remand is required. This appeal followed. On appeal, defendant raises the following contentions: POINT I THE PROSECUTOR'S REJECTION OF THE DEFENDANT FROM PTI WAS A PATENT AND GROSS ABUSE OF DISCRETION; THIS COURT SHOULD THEREFORE COMPEL THE DEFENDANT'S ADMISSION INTO PTI. A. The prosecutor improperly applied nearly all of the statutory factors in rejecting the defendant's application. 1. The facts of the case -- that the defendant made a single sale of a small amount of cocaine to an undercover officer -- do not weigh against admission [N.J.S.A. 2C:43- 12(e)(2)]. 2. The defendant's relative youth does not weigh against admission [N.J.S.A. 2C:43-12(e)(3)]. 3. The prosecutor's reliance on [N.J.S.A. 2C:43-12(e)(5), (6) and (14)] to deny admission is belied by the fact that he recommended non- custodial probation as the ultimate sentence. 4. There is no evidence in the record that the defendant engaged in a continuing pattern of anti-social behavior [N.J.S.A. 2C:43-12(e)(8)]. 15 A-4705-15T1 5. Consideration of a bench warrant as evidence of a criminal or penal violation was improper [N.J.S.A. 2C:43-12(e)(9)]. 6. The prosecutor's conclusion that the defendant's conduct was "assaultive" was plainly erroneous and contrary to law [N.J.S.A. 2C:43- 12(e)(10]. 7. [N.J.S.A. 2C:43-12(e)(3), (7), (11), (15), and (17)] were premised on the nature of the crime without an individualized assessment of the defendant. 8. The trial court properly found that [N.J.S.A. 2C:43-12(e) (4) and (13)] were inappropriately applied. B. The prosecutor failed to consider the many factors weighing in favor of admission. C. The prosecutor's willingness to admit the defendant into PTI if he confessed to the crime reveals that the prosecutor, in fact, believed that the defendant would be an acceptable candidate for PTI, and that his ultimate rejection of the defendant's application was arbitrary. D. The defendant's immigration status underlies the prosecutor's rejection. E. Rejection of the defendant will subvert the goals of PTI. F. Because the prosecutor's denial was a patent and gross abuse of discretion, this [c]ourt should compel the defendant's admission into PTI. 16 A-4705-15T1 Our scope of review of a PTI rejection is severely limited. State v. Negran, 178 N.J. 73, 82 (2003). We afford the prosecutor's decision great deference. State v. Wallace, 146 N.J. 576, 589 (1996)). Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." Negran, 178 N.J. at 82. A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his [or her] admission into PTI." State v. Watkins, 193 N.J. 507, 520 (2008) (citation omitted). In order to overturn a prosecutor's rejection, a defendant must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (citation omitted). "A patent and gross abuse of discretion is defined as a decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Watkins, 193 N.J. at 520 (quoting Wallace, 146 N.J. at 582-83). "Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Bender, 80 N.J. 84, 93 (1979). 17 A-4705-15T1 We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We are satisfied that the prosecutor's rejection of defendant's PTI application was not a patent or gross abuse of discretion. Thus, there is no basis to disturb Judge Pincus' decision sustaining the prosecutor's decision. The reasons for the prosecutor's rejection were premised on consideration of relevant factors, which weighed against defendant's admission, and the prosecutor did not consider irrelevant or inappropriate factors. We agree with Judge Pincus that while the prosecutor improperly considered factors (4) and (13), the State did not make a clear error in judgment. Defendant failed to clearly and convincingly establish that the prosecutor's decision went so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention. Affirmed. 18 A-4705-15T1

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Docket No.: a5084-16
Decided: 2018-04-19
Caption: KYUNG PAK v. NJ FITNESS FACTORY, INC
Status: published
Summary:
PER CURIAM In this personal injury case, plaintiff appeals from an April 28, 2017 order granting summary judgment to defendant NJ Fitness Factory, Inc. (the fitness club). In entering the order and dismissing the case, the judge relied on Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286 (2010). We conclude Stelluti is distinguishable and reverse. Plaintiff participated in an exercise class at the fitness club. The fitness club required plaintiff to sign an acknowledgment of liability waiver form (the waiver form), which states in part that I . . . waive any and all claims I may have . . . against [the fitness club] in connection with or arising out of my participation with [the fitness program] . . . . I understand that any exercise program carries with it some risk and acknowledge that risk. Further, in consideration of my participation in the [fitness] program, I agree . . . to release, indemnify, and hold harmless . . . [the fitness club] . . . from all liability for any personal injury . . . I might sustain during this [fitness] program. Unlike the exculpatory clause in Stelluti, the waiver form did not address plaintiff exercising at her own risk or exculpating the fitness center for injuries sustained while engaging in strenuous activity. The fitness club maintained a policy of keeping treadmills running after use. The treadmill also contained no visual markings 2 A-5084-16T2 on the belt to alert users that the machine was running. Plaintiff's accident, which caused a substantial injury requiring spinal surgery for a fractured neck, was unrelated to using physical fitness equipment while engaging in strenuous exercises involving an inherent risk of injury. Rather, a fitness club employee directed plaintiff to step onto a running treadmill. Plaintiff, without knowing the tread was running, stepped onto the machine, which threw her off the spinning belt. The fitness club changed its policy after plaintiff's accident. On appeal, plaintiff argues primarily that the judge misapplied the Stelluti decision. She contends that the waiver form here is different than the exculpatory clause in Stelluti. She maintains that the waiver form is unenforceable because it did not contain language that she agreed to engage in activities at her own risk, and that the waiver form did not attempt to exculpate the fitness center for injuries caused from the use of fitness equipment. When reviewing an order granting summary judgment, we apply "the same standard governing the trial court." Oyola v. Liu, 431 N.J. Super. 493, 497 (App. Div. 2013). We owe no deference to the motion judge's conclusions on issues of law. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Applying these standards, we respectfully conclude the judge erred. 3 A-5084-16T2 It is a longstanding principle of law that business owners in New Jersey have well-established duties of care to patrons that enter their premises. Stelluti v. Casapenn Enters., LLC, 408 N.J. Super. 435, 446 (App. Div. 2009), aff'd, 203 N.J. 286 (2010). An owner has a duty to guard against any dangerous conditions that the owner knows about or should have discovered; and to conduct reasonable inspections to discover latent dangerous conditions. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993). Any attempt to limit these duties by directing patrons to sign exculpatory agreements requires careful attention by our courts. Indeed, our Supreme Court has stated that exculpatory agreements "have historically been disfavored in law and thus have been subjected to close judicial scrutiny." Stelluti, 203 N.J. at 303. An exculpatory agreement, and we submit the waiver form, is enforceable if (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable. [Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 248 (App. Div. 2004); see also Stelluti, 203 N.J. at 304.] Applying these principles, we concluded in Walters v. YMCA, 437 N.J. Super. 111, 120 (App. Div. 2014), that the exculpatory 4 A-5084-16T2 agreement with the YMCA was unenforceable. Pursuant to that agreement, Walters released the YMCA for injuries he sustained while he was on the YMCA premises or from YMCA-sponsored activity. Id. at 116. Walters slipped on a step leading to an indoor pool at the YMCA. Id. at 116-17. Like plaintiff, Walters was not engaged in strenuous exercises involving an inherent risk of injury. Plaintiff is correct that the exculpatory clause in Stelluti is different than the waiver form. Nevertheless, applying the Gershon factors, we also conclude the waiver form is unenforceable. It adversely affects the public interest by transferring the redress of civil wrongs from the responsible tortfeasor to either an innocent injured party or society-at-large. It eviscerates the common law duty of care that the fitness center owes to its invitees. And it is unconscionable, as the fitness center has attempted to shield itself from all liability based on a one-sided agreement that offered no countervailing or redeeming societal value. Like in Walters, we conclude Stelluti is factually distinguishable. The Court's holding in Stelluti is grounded on the recognition that health clubs are engaged in a business that offer their members a place to use physical fitness equipment by performing strenuous exercises involving an inherent risk of 5 A-5084-16T2 injury. Stelluti, 203 N.J. at 311. Plaintiff did not engage in any activity involving an inherent risk of injury. She followed the instructor's direction and unknowingly stepped onto a running treadmill. Unlike the plaintiff in Stelluti, who was involved in strenuous activity and injured herself while riding a spin bike, id. at 313, plaintiff injured herself while engaged in non- strenuous activity. Reversed. 6 A-5084-16T2

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Docket No.: a0622-15
Decided: 2018-04-16
Caption: STATE OF NEW JERSEY v. JAMES HEMENWAY
Status: published
Summary:
FUENTES, P.J.A.D. A Middlesex County grand jury returned an indictment against defendant James Hemenway charging him with third degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); first degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); fourth degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3); and third degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11). The court denied defendant's motion to suppress physical evidence seized by the police from his apartment as well as statements defendant made to the police officers who arrested him outside of his apartment building. Defendant thereafter entered into a negotiated agreement with the State through which he pled guilty to second degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1). The State agreed to dismiss the remaining charges and recommend that the court sentence defendant to a term of eight years, with four years of parole ineligibility. Defendant preserved his right to appeal the denial of his motion to suppress. See R. 3:5-7(d). The court sentenced defendant to a custodial term in accordance with the plea agreement, ordered the forfeiture of defendant's property seized at the time of his arrest, and imposed the mandatory fines and penalties. 2 A-0622-15T2 In this appeal, defendant argues the court erred in denying his motion to suppress because the arresting officers seized the evidence found in his apartment without a warrant. After reviewing the record developed before the motion judge, we affirm. The police officers entered defendant's residence pursuant to a search warrant issued by the Family Part under the Prevention of Domestic Violence Act. When defendant refused to permit the officers entry into his residence to execute the search warrant, the officers lawfully arrested defendant for knowingly obstructing the effectuation of a judicial order pursuant to N.J.S.A. 2C:29- 9(b)(1). Once lawfully inside the residence, the officers found in plain view illicit narcotics and paraphernalia. This provided sufficient probable cause to sustain the search warrant subsequently issued by the Criminal Part. We derive the following facts from the testimonial and documentary evidence presented at the suppression hearing. I On June 28, 2012, D.S.1 filed a complaint against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, seeking a temporary restraining order (TRO). The complaint listed the following predicate offenses: assault, 1 Pursuant to Rule 1:38-3(c)(12), we use initials to protect the confidentiality of a victim of domestic violence. 3 A-0622-15T2 N.J.S.A. 2C:12-1, terroristic threats, N.J.S.A. 2C:12-3, criminal mischief, N.J.S.A. 2C:17-3, and criminal trespass, N.J.S.A. 2C:18- 3, and identified "dating relationship" as the jurisdictional basis. Attached to the complaint was the following narrative statement of the incident that prompted D.S. to seek judicial relief: 6/27/12, [defendant] call via tel. argument ensued. [Defendant] appeared at [plaintiff's] apt unannounced, [defendant] broke into [plaintiff's] apt via the living room window causing the air [] conditioner to fall & damage [the] apt, [defendant] subjected [plaintiff] to name calling, yelling foul, language, [defendant] pushed [plaintiff] & she fell & hit herself with the living room chair, [plaintiff's] mother entered the living room, [plaintiff's] mother tried to get [defendant] off of [plaintiff], [defendant] became enraged, [defendant] pushed [plaintiff's] mother, [defendant] then punched [plaintiff's] mother with a closed fist, [defendant] then scratched [plaintiff's] mother on her face, [plaintiff] attempted to push [defendant] off of her mother, [defendant] then began to strangle [plaintiff] by her throat, [plaintiff] pulled [defendant's] hair, [defendant] pushed [plaintiff] causing [plaintiff] to fall on the ground, [plaintiff's] mother attempted to call EPD but [defendant] hit her on the hand causing [plaintiff's] mother['s] cellphone to fall on the ground & [break], [defendant] said, "I'm going to kill you ! ! ! kill your mom, kill your dad & brother ! ! ! I'm going to get someone to throw [acid] on your face ! !" Shortly thereafter [defendant] left [plaintiff's] apt. 4 A-0622-15T2 D.S. appeared before a Family Part judge in Union County that same day without counsel to testify at an ex parte hearing in support of her application for the TRO against defendant. The transcript of the TRO hearing reflects that D.S. testified with the assistance of an interpreter. The Family Part judge elicited the following testimonial evidence from D.S.: THE COURT: Did you have a dating relationship at one time with [defendant]? D.S.: Yes. For two years. THE COURT: You say that on [June] 28th[,] which is today[,] at 10:30 a.m., you sa[w] [defendant] in front of a bank parking lot. Is that correct? D.S.: Yes. THE COURT: And there was some exchange of money. Is that right? D.S.: Yes. THE COURT: And then did he say to you, you will never see your mother again[;] I will kill her? D.S.: Yes. THE COURT: Did he say, I will destroy you and your family? D.S.: Yes. THE COURT: Did he say, I will destroy your car? D.S.: Yes. 5 A-0622-15T2 THE COURT: And did he say he would cause you bodily harm? D.S.: Yes. THE COURT: On . . . June 27th, which [was] yesterday, did you speak to him on the phone? D.S.: Yes. THE COURT: And then did he come to your apartment and come through the window? D.S.: He knocked down the air conditioner and came through the window. THE COURT: Did he have permission to do that? D.S.: No. THE COURT: And then he pushed you, and you fell. Is that right? D.S.: Yes. THE COURT: Okay. And your complaint has more details. You have a child with [defendant]? D.S.: No. THE COURT: Okay . . . [D]o you have [an] awareness that he has any weapons? D.S.: Yes. THE COURT: What kind of weapons do you claim he has? D.S.: Handguns, knives. THE COURT: A handgun? D.S.: Knives, blades. THE COURT: Handguns? 6 A-0622-15T2 D.S.: Switchblades. THE COURT: Knives? D.S.: Switchblades. THE COURT: Where does he have these? D.S.: Special compartments in his car and at his apartment. THE COURT: What kind of car does he have? D.S.: Honda Pilot. THE COURT: A Honda - - Honda Hybrid? D.S.: Pilot. Pilot. THE COURT: Pilot? THE INTERPRETER: P-I-L-O-T. Based on D.S.'s testimony, the Family Part found sufficient evidence to issue a TRO against defendant pursuant to N.J.S.A. 2C:25-28(g). As authorized by N.J.S.A. 2C:25-28(j), the TRO included a provision "prohibit[ing] . . . [defendant] from possessing any and all firearms or other weapons" and authorized the police officers to search for and seize any "handguns, knives [and] switchblades." D.S. provided the Family Part with defendant's home address and the make, model, and color of each of his three vehicles. The TRO expressly authorized the police officers to search defendant's residence and vehicles and seize any weapons found therein. 7 A-0622-15T2 On June 29, 2012, Old Bridge Police Officers Brandon Ward and Edward Riporti were instructed to serve defendant with the TRO and search warrant at his residence between the hours of 5:30 p.m. and 7:30 p.m. The officers knocked on the door of defendant's residence, but no one answered. Ward recognized the Honda Pilot and Honda Accord described in the search warrant parked near the apartment complex where defendant resided. He also detected an odor of marijuana emanating from the vicinity of defendant's apartment, but was unable to pinpoint its source. The officers decided to leave and return later before the end of their shift. Several hours later, defendant's attorney contacted the Old Bridge Police Department and advised the dispatcher that defendant was aware of the TRO and intended to voluntarily go to the police station to accept service. Ward told the police dispatcher that he planned to return to defendant's residence as soon as possible because the judge who issued the TRO and search warrant directed the officers to serve defendant at his place of residence, not at a neutral location. Ward then contacted Riporti, who was closer to defendant's residence, and instructed him not to permit anyone to enter or leave defendant's apartment. When Ward arrived at defendant's residence shortly thereafter, he found defendant speaking with Riporti on the sidewalk in front of the building. According to Ward, as he 8 A-0622-15T2 approached, he heard defendant saying to Riporti: "I guess she lied again[.] . . . [G]ive me whatever . . . I have to sign[.] . . . [S]he gets jealous, makes stuff up; I kind of expected this." Ripoli had not served defendant with the TRO and search warrant because Ward was the only one in possession of these documents. Ward told defendant that he and Riporti were there to serve him with a domestic violence TRO and a warrant to search his apartment and seize any firearms or other weapons found therein. According to Ward, defendant stated: "I'm not going in my apartment. My attorney said not to let anybody in the apartment." Ward testified that he explained to defendant that "at this point it was not a choice; it was an order issued by a judge and I was required by law to make entry into the apartment to search for the weapons and go over and serve him with the order." Defendant removed a cellphone from his pocket and informed the officers he was calling his attorney. Ward then took the following action: I removed [the] cellphone from [defendant's] hand for our safety; I did not know who he was calling. I told him this . . . had nothing to do at this point with his attorney. There was an order issued by a judge and for our safety we were not allowing him to make any phone calls so as to alert anybody, possibly bring anybody else to the scene. At this point it was a moot issue; we had to make entry into the apartment. 9 A-0622-15T2 Undaunted, defendant removed another cellphone from his pocket and again advised the officers he was calling his attorney. Ward described defendant's demeanor at this point as "more agitated." Ward removed the second cellphone from defendant's hand and "explained again it was a judicial order, any failure to comply with the order or allow us to search would result in him being placed under arrest[.]" Ward testified that defendant responded: "You're not going into the apartment[;] arrest me[.]" The officers arrested defendant.2 Before entering the apartment, Ward asked defendant if there was anyone else inside his apartment. Defendant "shrugged his shoulders" and stated: "I don't know." The officers used the key they seized from defendant to enter a "common vestibule area" of the building. Ward testified that upon entering this area of the building, "[we] were hit with a distinctly strong odor of raw marijuana." However, they were not able to pinpoint its location at the time. 2 Defendant was not physically served with the TRO until 6:30 a.m. on June 30, 2012. In a complaint and summons, Ward charged defendant with fourth degree contempt under N.J.S.A. 2C:29- 9(b)(1). He certified that defendant "purposely or knowingly" violated an order entered under the PDVA "by impeding the effectuation of the order [and] refusing to allow officers access into his apartment to search for multiple weapons as stipulated in the order." 10 A-0622-15T2 Old Bridge Police Sergeant Brian Smalley arrived at the scene to assist Ward in searching defendant's apartment; Riporti remained with defendant.3 Once they opened the "main door" of defendant's apartment, Ward testified "the smell became much more distinct and there were multiple opened air fresheners all over the stairway ascending up into the apartment." Ward also saw air fresheners at the bottom of the steps. Ward testified the air fresheners were "scattered . . . as we made our entryway up into the stairway. As we ascended the stairs, there were more placed throughout the stairs and in the living room . . . and dining [room]." The officers conducted a room-by-room search of the apartment to confirm there were no other occupants. As they walked through the apartment, Ward noticed more air fresheners in the living room and "a Mason jar almost [filled] with what appeared to be marijuana sitting on a small computer table near the window[.]" In the bathroom, Ward discovered a transparent "freezer-style bag" of suspected cocaine on the floor in front of the toilet. Using defendant's keys, the officers opened a locked closet in the living room; inside the closet was a large gun safe. After "clearing" 3 At one point, defendant complained of chest pain and difficulty breathing. A first aid squad responded and transported him to a nearby hospital. Defendant remained in custody while he was medically evaluated and treated at the hospital. 11 A-0622-15T2 the apartment, the officers suspended their search for weapons and waited for a detective to respond to the scene to apply for a telephonic search warrant for narcotics. The officers also called a tow truck to impound defendant's vehicles. Detective Robert Mazalewski arrived at defendant's apartment approximately fifteen to thirty minutes later. He took photographs of the condition of the contraband and the location where it was found in defendant's apartment. Mazalewski returned to the police station to apply for a telephonic search warrant. He testified that his role in the investigation "was strictly in an ID capacity to photograph what the officers had seen." At a telephonic hearing held at 1:30 a.m. on June 30, 2012, Detective Mazalewski testified to a judge to obtain a warrant to search defendant's apartment for the presence of illicit narcotics and other related contraband. Mazalewski described to the judge the circumstances that led Old Bridge Police Officers to enter and search defendant's apartment pursuant to a TRO and search warrant issued by the Family Part. After considering the evidence, the judge made the following findings: Based on the testimony of the Detective, it is clear that upon executing the domestic violence search warrant that upon entering the house, pursuant to the search warrant that drugs were observed as well as an odor smell that would indicate the presence of marijuana which certainly gives the officers cause to 12 A-0622-15T2 believe that there may be additional drug paraphernalia or other materials relating to drugs in the apartment. And the fact that a strong odor of marijuana is emanating from two safes in a closet, certainly gives the officers probable cause to open and use whatever force is necessary as to the particular safes. And in view of the extent of the drugs that are believed to exist in the premises, it certainly would be appropriate and probable cause has been established to search the cars that are registered or believed to be registered in the name of [defendant] and certainly were located at [defendant's] residence. So I think all of the facts testified to[] by the Detectives certainly gives more than sufficient probable cause to search the cars, the residence[,] as well as do whatever is necessary to search the two space[s]. Detective Mazalewski contacted the officers who had remained at defendant's apartment and advised them they could begin searching the residence for illicit narcotics and related contraband. Through this search, the officers found cocaine and drug paraphernalia, and five hollow-point .38 caliber bullets in one of the gun safes. On July 2, 2012, law enforcement agents executed the telephonic search warrant with respect to defendant's two automobiles, a Honda Pilot and Honda Accord.4 Old Bridge Police 4 The police did not locate the Toyota Sienna D.S. described in the TRO hearing. 13 A-0622-15T2 Detective Joseph Gaugeon testified at the suppression hearing that the officers used "a gun dog and a narcotics dog to narrow down [the] search of the vehicle." The police found $20,000 and a large bag of marijuana concealed behind the passenger air bag of the Honda Pilot and $72,000 "in a trap between the seats under the console" of the Honda Accord. The police officers who searched defendant's residence and motor vehicles did not find any weapons matching the description provided by Suarez at the TRO hearing on June 28, 2012. II On July 11, 2012, the Family Part conducted a hearing to determine whether D.S. was entitled to a final restraining order (FRO) under the PDVA. D.S. appeared pro se and was provided with an interpreter. Defendant was represented by private counsel. At the start of the hearing, the judge noted that the FRO hearing was originally scheduled for July 5, 2012, but it was adjourned at the request of defendant's counsel to allow defendant to obtain the transcript of the June 28, 2012 TRO hearing. Before taking any testimony, the judge asked the parties if they were "prepared to go forward." Both sides responded affirmatively. The judge then asked defense counsel: "Does the defense dispute that [defendant] and [D.S.] were in a dating 14 A-0622-15T2 relationship?" Counsel responded: "We do." The following colloquy captured how the judge addressed this issue. THE COURT: I'll accept an attorney proffer for purposes of now. What is the defense's position? DEFENSE COUNSEL: Defense's position is that this woman is married to another man. My client resides most of the time in Florida. He has rental properties up here in New Jersey that he tends to. And what Your Honor is going to find out is that [D.S.] was minding a safe deposit box that had monies that belonged to [defendant]. And what led to the severance of that relationship, which was not a dating relationship, is that [defendant] wanted the money. [Defendant] wanted the money and that incident supposedly occurred on June 28, 2012. He denies that he was in a dating relationship with her. She's married to another man. THE COURT: Well, just because she's married to another man of course, Counsel, doesn't necessarily negate the possibility that they had a romantic relationship, correct? DEFENSE COUNSEL: That's true. THE COURT: So . . . your client's taking the position that there was no amorous, romantic, or intimate relationship between himself and [D.S.]? DEFENSE COUNSEL: That . . . won't be provable. Yes. The record shows the FRO judge did not ask D.S. whether she understood the jurisdictional implications under the PDVA of 15 A-0622-15T2 defense counsel's proffer. The judge simply swore in D.S. and asked her, "what criminal offenses are you identifying with regard to [defendant's] conduct?" Given the complex nature of the judge's question, D.S.'s response was understandably nonresponsive. After the judge rephrased the question, D.S. testified that defendant forced himself into her home through the window, having broken the air conditioner. D.S. ultimately testified that defendant had criminally trespassed into her apartment, committed criminal mischief by breaking and damaging her furniture, and threatened "to put acid on [her] face," and kill her and members of her family. After he identified the predicate offenses at issue, the judge addressed defense counsel directly to confirm that he had prior notice of these offenses and was prepared "to mount a defense to those very charges." Defense counsel confirmed he was aware of the offenses recited in the domestic violence complaint and the supplemental typewritten statement attached thereto. The judge then addressed D.S. directly as follows: THE COURT: [D.S.], let me tell you how this proceeding will take place. The burden of proof for the issuance of . . . a final restraining order rests on the plaintiff. On you, the movant, the person who seeks the protection. Do you understand that? D.S.: Does that mean that it doesn't include my family? 16 A-0622-15T2 THE COURT: Ma'am, I am talking about what your legal obligations are in terms of who has the burden of proof. Do you understand that? D.S.: Yes. THE COURT: The Prevention of Domestic Violence Act requires a plaintiff to prove by a preponderance of the evidence that a restraining order must [be] issue[d]. Do you understand that? D.S.: I understand. THE COURT: I will be asking you to put forward your case-in-chief, your proofs. You may testify on your own behalf, for example, under oath. You may call additional witnesses to testify on your behalf who have personal knowledge. You may seek to admit exhibits; documents, perhaps text messages and the like in support of your claim. Do you understand that? D.S.: I understand. THE COURT: In addition, you will be subject perhaps to cross-examination by [defendant's] lawyer. Do you understand that? D.S.: (In English) I understand them. THE COURT: The defense may also present evidence in its own case-in-chief. But that, of course, does not modify the overriding burden of proof which is only and always on the plaintiff. Do you understand that? D.S.: I understand. THE COURT: The [c]ourt will have to determine pursuant to [Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006)] whether a -- one or more predicate acts were committed by the defendant 17 A-0622-15T2 and whether a final restraining order is necessary to protect the plaintiff from immediate danger or further acts of domestic violence. We are doubtful that a lay litigant seeking the protection of the court in a domestic violence hearing can meaningfully comprehend this explanation. The judge's use of technical terms such as "cross-examination", "case-in-chief," "preponderance of the evidence," and his citation to Silver to determine whether "one or more predicate acts were committed" made this "explanation" needlessly dense, ultimately reducing the experience to a mere perfunctory exercise. Of particular concern in light of defense counsel's proffer expressly challenging the court's subject matter jurisdiction, is the judge's failure to apprise D.S. that she was required to present evidence showing she and defendant had a "dating relationship" before June 28, 2012. The record also shows that D.S.'s presentation of the evidence was hampered not only by her unfamiliarity with the rules of evidence and trial procedures, but by the court-assigned interpreter's inability to simultaneously interpret both D.S.'s questions and her mother's answers while testifying as a fact witness. The interpreter announced this difficulty at the start of her mother's testimony: INTERPRETER: Your Honor, your Honor, we're going to have a problem if I'm not going to 18 A-0622-15T2 be able to interpret for your Honor and the record what is being asked and answered. THE COURT: True. INTERPRETER: Now you tell me, your Honor, what you want me to do. THE COURT: Well, we're going to be at this for a long time, I predict, and so I'm going to ask everybody -- everybody to relax. We're going to get through this. [D.S.], the interpreter is correct. She has a difficult job, and that is she has to translate for you, for the Spanish-speaking witness, and then translate for me back into English. Understood? The record shows D.S. asked her mother a number of times whether she knew that she and defendant were "boyfriend and girlfriend." Defense counsel objected each time arguing the questions were phrased as leading questions. The judge sustained the objections each time. At one point, however, the judge addressed D.S. directly in an effort to explain to her the proper way to phrase the question: THE COURT: The correct way to ask the question is [D.S.] do you know [defendant]? And if the answer to that is, as we presume, yes; how do you know [defendant]? That is a non-leading method to get at the same answer, presumably. And forgive me for interceding, Counsel, but I have a, as you know, an extremely congested docket. DEFENSE COUNSEL: I understand. I don't mean to slow this down any[ ]more than necessary. 19 A-0622-15T2 THE COURT: . . . I'm not interpreting that you are. DEFENSE COUNSEL: All right. Thank you. THE COURT: [D.S.], you may not ask leading questions of witnesses on direct-examination. D.S.: I'm sorry. THE COURT: Even though you are a lay [] person representing yourself, which you're entitled to, there are rules of evidence and trial procedure which are applicable to everyone, lawyer and non-lawyer alike, and you must abide by them. Do you seek an adjournment to retain your own lawyer? D.S.: No. I don't want to. D.S. resumed her direct examination of her mother, but did not return to the issue of her relationship with defendant. The judge continued to sustain defense counsel's objections based on the leading nature of D.S.'s questions. In fact, in sustaining counsel's objections, the judge at one point sua sponte ruled that D.S.'s question "[a]lso assumes facts not in evidence." Because the mother did not speak English and defendant did not speak Spanish, the judge ultimately struck most of the mother's testimony describing defendant's threats and other statements to her and her daughter. When D.S. took the stand to testify on her own behalf, the judge gave the following instructions: 20 A-0622-15T2 You are not going to be asked questions by the [c]ourt. You are going to have to testify on your own behalf as to the incidents or incident which you are alleging and any prior history of domestic violence. You will then be subject to cross-examination. Once again, we note the judge's failure to admonish D.S. that this was her opportunity to testify or present any evidence about her relationship with defendant, which was the threshold, dispositive issue defense counsel identified before the start of the FRO hearing. Consistent with the judge's instructions, D.S. testified about the June 28, 2012 incident that caused her to seek the judicial protection available under the PDVA. Although D.S. did not directly characterize the nature of her relationship with defendant, her description of her encounter with defendant included the following facts: That morning we met in front of the bank and his behavior was apparently normal at the beginning. I gave him clothing that he had in my apartment; shoes, underwear, personal stuff. I gave him the money that I had, but I made him sign a piece of paper so that there would be proof that I had given him what he had given me to save for him. [(Emphasis added).] At the conclusion of D.S.'s relatively brief direct testimony, the judge recessed the proceedings for a few minutes. When the hearing reconvened, defense counsel declined to cross- 21 A-0622-15T2 examine D.S. and instead moved to dismiss the complaint for lack of subject matter jurisdiction. Defense counsel argued that D.S.'s testimony only described "the arrangement that I proffered to the [c]ourt about giving back money that she was minding for him." The judge granted the motion. In support of this ruling, the judge stated: There is no evidence in the record indicating that you are a spouse or a former spouse of the defendant. There is no evidence that you had a child with the defendant or that you are pregnant with a child from the defendant. There is no testimony that you are a person who is presently or formerly in the same household as the defendant. And, lastly, aside from the assertion in the complaint, there is no testimony, and surely no credible testimony that you are or were in a dating relationship with the defendant. [(Emphasis added).] The judge held that as a plaintiff seeking relief under the PDVA, D.S. was on "constructive notice" of the need to establish subject matter jurisdiction. The judge also found that D.S. had actual notice of the need to establish a dating relationship between herself and defendant. The judge noted it would have been "improper for the [c]ourt to spoon[-]feed either a plaintiff or a defendant." 22 A-0622-15T2 III Against this procedural backdrop, we now return to defendant's motion to suppress before the Criminal Part. The motion judge found the Family Part properly issued a TRO and search warrant pursuant to the PDVA on June 28, 2012. Although the Family Part subsequently found there was insufficient credible evidence to conclude D.S. and defendant ever had a dating relationship, such a finding did not retroactively impugn the validity of the search warrant. Given the evidence presented at this threshold ex parte hearing, the Family Part reasonably concluded a TRO was "necessary" to protect D.S.'s "life, health or well-being" in accordance with N.J.S.A. 2C:25-28(f). The Criminal Part also found that defendant's refusal to permit the police officers' entry into his apartment, in direct contravention of the domestic violence search warrant, provided the officers with sufficient probable cause to believe defendant was obstructing justice. The judge concluded that defendant's arrest and the incidental search of his person that permitted the officers to seize the keys to his apartment was entirely proper. Indeed, the motion judge found that pursuant to our State's well- established knock-and-announce jurisprudence, the search warrant authorized the officers to enter defendant's residence by force if necessary. Once the officers lawfully entered defendant's 23 A-0622-15T2 residence in accordance with the warrant, the judge found the contraband they discovered was admissible under the plain view doctrine. Notwithstanding the lack of exigent circumstances, the motion judge found the telephonic search warrant was "procedurally sound." Although the State established probable cause to search defendant's residence and gun safes, the judge disagreed with the telephonic judge's finding of probable cause to search defendant's vehicles. However, the motion judge found the absence of probable cause to search defendant's vehicles for narcotics was "not necessarily fatal to the State's case[.]" The police officers were authorized, indeed duty bound, to execute the domestic violence search warrant by searching defendant's cars for weapons. The Criminal Part denied defendant's motion to cross-examine the affiants who testified in support of the civil and criminal search warrant applications. Because D.S. is "not a law enforcement officer[,]" her alleged misrepresentations to the Family Part as a "private citizen complainant rendered the concerns in "Franks5 and its progeny" inapplicable. The same principles also insulated Detective Mazalewski's testimony before the telephonic judge. 5 Franks v. Delaware, 438 U.S. 154 (1978). 24 A-0622-15T2 Finally, the Criminal Part denied the motion to suppress the incriminating statements defendant made to Officers Ward and Riporti outside of his apartment building. Citing State v. Dispoto, 383 N.J. Super. 205 (App. Div. 2006), the motion judge found defendant was not in custody when the officers attempted to serve him with the TRO and search warrant. Accordingly, the officers were not required to apprise defendant of his rights under Miranda.6 IV Against this backdrop, defendant raises the following arguments: POINT I The judgment of conviction should be reversed because the trial court erroneously denied Mr. Hemenway's motion to suppress evidence seized without a warrant. A. The temporary restraining order and domestic violence search warrant were invalid, as they [were] issued based upon admitted falsehoods, and as a result, all evidence derived seized without a warrant therefrom must be suppressed. B. Mr. Hemenway's arrest for obstruction of justice was unlawful and all evidence seized from Mr. Hemenway's person and all evidence 6 Miranda v. Arizona, 384 U.S. 436 (1966). 25 A-0622-15T2 seized after his illegal arrest must be suppressed. C. The first warrantless search of Mr. Hemenway's residence was a pretext for a narcotics search and exceeded the scope of the domestic violence search warrant and all evidence unlawfully seized therefrom must be suppressed. D. The second warrantless search of Mr. Hemenway's residence was unlawful as this search was not justified by any exception to the warrant requirement. The State admitted during final oral argument to the trial court that this search was illegal, and therefore, all evidence obtained during this warrantless search and all evidence obtained thereafter must be suppressed. POINT II The judgment of conviction should be reversed because the trial court erroneously denied Mr. Hemenway's motion to suppress evidence seized with a warrant. A. The search warrants were fruits of the poisonous tree and therefore were invalid and illegally issued and any evidence derived therefrom must be suppressed. B. There was no probable cause for the search warrant of the residence or of the two (2) motor vehicles. The trial court found no probable cause for the search warrants for the motor vehicles. 26 A-0622-15T2 C. The trial court erred in denying Mr. Hemenway's application for a Franks v. Delaware [hearing], as the temporary restraining order and domestic violence search warrant applications contained reckless misrepresentations and material omissions. D. The trial court erred in denying Mr. Hemenway's application for a Franks v. Delaware hearing, as the telephonic search warrant application contained reckless misrepresentations and material omissions. E. The trial court erroneously applied the independent source doctrine sua sponte and relied on this doctrine which was not applicable in this case, and therefore, any and all evidence unlawfully seized as a result of the defective search warrant and unlawful warrantless searches should be suppressed. POINT III The judgment of conviction should be reversed because the trial court erroneously denied Mr. Hemenway's motion to suppress statements made at the scene in violation of the Fourth [sic] Amendment and Article I, Paragraph 7 of the New Jersey Constitution [sic]. We reject these arguments and affirm. The record we have described at length here demonstrates that the evidence against defendant was gathered by the State consistent with the privacy and due process protections guaranteed by our federal and State 27 A-0622-15T2 Constitutions. However, before addressing the substantive merit of defendant's arguments, we will first reaffirm the relevant standard of review. We are bound to uphold the factual findings made by the Criminal Part judge in support of his ruling denying defendant's motion to suppress, provided they are "supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). Thus, we can disturb or reject the judge's findings of fact "only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). This deferential standard of review is predicated on the notion that factual findings are substantially influenced by the motion judge's opportunity to "'hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting Elders, 192 N.J. at 244). A search executed pursuant to a warrant issued by a court carries a presumption of validity, State v. Valencia, 93 N.J. 126, 133 (1983); we must also accord substantial deference to the trial judge's decision to issue such a warrant. State v. Sullivan, 169 N.J. 204, 211 (2001). In determining whether there is probable cause to issue a search warrant, a judge "must consider the 28 A-0622-15T2 totality of the circumstances, without focusing exclusively on any one factor[.]" Id. at 216. Ordinarily, a warrant application is legally sufficient provided the factual assertions contained therein would lead a prudent person to believe a crime has been committed and evidence of criminality will be found at the specified location. Id. at 217. We review de novo the motion judge's legal conclusions. State v. Gandhi, 201 N.J. 161, 176 (2010). Here, it is undisputed that the evidence that established probable cause for the search warrant issued by the Criminal Part judge was inextricably connected to the TRO issued by the Family Part to protect D.S. under the PDVA. The PDVA defines a "[v]ictim of domestic violence" as: any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present household member or was at any time a household member. "Victim of domestic violence" also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant. "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship. [N.J.S.A. 2C:25-19(d) (emphasis added).] 29 A-0622-15T2 Based on the allegations D.S. made in the domestic violence complaint filed on June 28, 2012, the Family Part judge properly conducted an ex parte hearing pursuant to N.J.S.A. 2C:25-28(f). The testimonial evidence D.S. provided at this hearing established "good cause" for the issuance of emergency ex parte relief in the form of a TRO. N.J.S.A. 2C:25-28(i); R. 5:7A. The TRO may also include a provision forbidding the defendant from possessing any firearm or other weapon enumerated in subsection r. of [N.J.S.A.] 2C:39-1, ordering the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located and the seizure of any firearms purchaser identification card or permit to purchase a handgun issued to the defendant and any other appropriate relief. The judge shall state with specificity the reasons for and scope of any search and seizure authorized by the order. [N.J.S.A. 2C:25-28(j).] Here, D.S. testified at the TRO hearing that defendant possessed a variety of weapons including knives, switchblades, and guns. The judge thus included a provision in the TRO under N.J.S.A. 2C:25-28(j) that directed the police officers to search defendant's residence and seize any firearms found therein. The 30 A-0622-15T2 judge did not "state with specificity the reasons for and scope of any search and seizure authorized by the order." In this appeal, defendant collaterally attacks the propriety of the TRO search warrant. Defendant argues D.S. misrepresented her relationship with defendant as involving a "dating relationship" to improperly obtain relief under the PDVA. Defendant emphasizes that the TRO judge failed to challenge D.S.'s credibility at the ex parte hearing and merely accepted her "conclusory allegations" by asking her a series of "leading questions based on the written complaint that was apparently prepared by [c]ourt staff." Finally, defendant argues that N.J.S.A. 2C:25-28(j) is facially unconstitutional because it allows the Family Part to issue a search warrant based only on a finding of "reasonable cause." According to defendant, this lower statutory standard impermissibly conflicts with the Fourth Amendment to the United States Constitution, which requires a showing of probable cause to justify a search warrant of a person's home. Defendant bases this argument on Justice Albin's dissent in State v. Harris, 211 N.J. 566 (2012), which was also joined by Justice LaVecchia, in which he maintained that: As written, the Domestic Violence Act permits the search of a home for weapons, even in the absence of exigent circumstances or some other 31 A-0622-15T2 well-recognized exception to the Constitution's warrant requirement, based on a warrant issued without a judicial finding of probable cause. See [N.J.S.A.] 2C:25- 28(j). Relying on the Act, the family court in this case issued a warrant for the search for weapons in defendant's home -- without a finding of probable cause or a finding that would have excused non-compliance with the dictates of the Fourth Amendment. The United States Supreme Court has never suggested -- even remotely -- that the special-needs doctrine would justify a home search in circumstances such as presented here. [Id. at 593 (Albin, J., dissenting).] We begin our analysis of this issue by emphasizing that as an intermediate appellate court, we are only bound to follow the decisions of the Supreme Court. A dissenting opinion authored by a minority of the Justices in a case, no matter how well-reasoned we think it may be, does not constitute binding precedent. In Harris, the majority of the Court declined to respond directly to the concerns raised by the dissenting Justices because they had "not [been] raised by any of the parties at this point in this litigation." Id. at 592. We are thus free to address the issue defendant has raised here and express our views on the matter. However, it is a matter of settled policy that a court should "avoid reaching constitutional questions unless required to do so." State v. Ingram, 230 N.J. 190, 202 (2017) (quoting Comm. to Recall Robert Menendez from the Office of U.S. Senator v. Wells, 32 A-0622-15T2 204 N.J. 79, 95 (2010)). We are satisfied that this appeal can be decided without reaching this constitutional dilemma. In adopting the PDVA, the Legislature found and declared that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide. [N.J.S.A. 2C:25-18 (emphasis added).] To enforce this public policy, the Legislature emphatically made clear that the primary duty of a law enforcement officer when responding to a domestic violence call is to enforce the laws allegedly violated and to protect the victim. Further, it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public. [Ibid.] 33 A-0622-15T2 The Supreme Court has "liberally construed" the PDVA to achieve these purposes. In re F.M., 225 N.J. 487, 509 (2016) (citing Cesare v. Cesare, 154 N.J. 394, 400 (1998)). As codified by the Court in Rule 5:7A, a plaintiff seeking domestic violence emergency relief must testify in person before the Family Part judge or submit a sworn complaint setting forth her allegations. In order to justify the Family Part's issuance of a search warrant, a plaintiff must establish: (1) probable cause to believe the defendant has committed an act of domestic violence; (2) reasonable cause to believe the place identified in the warrant contains a qualifying weapon under N.J.S.A. 2C:39-1(r); and (3) reason to believe a defendant's access to the weapon poses a "heightened risk of injury." See N.J.S.A. 2C:25-28(j); State v. Dispoto, 189 N.J. 108, 120–21 (2007); State v. Cassidy, 179 N.J. 150, 164 (2004). When a Family Part judge orders emergent relief, he or she is required to "state with specificity the reasons for and scope of any search and seizure authorized by the order." N.J.S.A. 2C:25-28(j). The PDVA directs that any ex parte order "shall immediately be forwarded to the appropriate law enforcement agency" and shall "immediately be served upon the defendant[.]" N.J.S.A. 2C:25-28(l). Furthermore, any restraining order issued 34 A-0622-15T2 pursuant to the PDVA "shall be in effect throughout the State, and shall be enforced by all law enforcement officers." N.J.S.A. 2C:25-28(p). We have described "reasonable cause" as "a more relaxed standard than probable cause[,]" and as "akin to 'reasonable suspicion[.]'" State v. Perkins, 358 N.J. Super. 151, 159 (App. Div. 2003) (citing State v. Arthur, 149 N.J. 1, 8 (1997)). To establish reasonable cause, a police officer "must be able to 'point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" Id. at 160 (alteration in original) (quoting State v. Citarella, 154 N.J. 272, 278 (1998)). In Dispoto, the Court held that "[t]o sustain the validity of the domestic violence search warrant that issued against [the] defendant, probable cause must have existed to believe that [the] defendant committed the offense of terroristic threats. Specifically, there must have been probable cause to believe that defendant made a threat against his wife." Dispoto, 189 N.J. at 122. Here, the domestic violence complaint D.S. filed against defendant and her sworn testimony before the Family Part judge in support of her application for a TRO is consistent with the violent encounter she described in a typewritten statement attached to her domestic violence complaint. 35 A-0622-15T2 The Court's discussion in Cassidy is particularly relevant here. We will briefly recite the salient facts of Cassidy to provide context to our analysis. At the urging of her friends, the victim of domestic violence reported the alleged incident of domestic violence to the police one month after the incident allegedly occurred. Cassidy, 179 N.J. at 154. The police officer who responded "telephoned the municipal court judge to seek a TRO on an ex parte basis." Id. at 155. The judge "spoke" to both the victim and the police officer, but did not swear-in either one, as required under N.J.R.E. 603. Ibid. The judge did not record his "conversation" with these two putative witnesses. Ibid. Despite these deficiencies, the judge found "probable cause" to issue an ex parte TRO under the PDVA and instructed the police officer "to fill out the pre-prepared form order for a TRO and authorized the police to search for and seize weapons." Ibid. The Court in Cassidy noted "that the warrant portion of the TRO" was completed by the police officer "at the judge's instruction[.]" Ibid. The warrant contained "a check-off at the line" that directed the defendant "to turn over all weapons and permits to carry firearms." Ibid. The police officer added language specifying the weapons as shotguns, pistols, and rifles. The record is unclear whether the judge specifically instructed [the police officer] to add that language. Finally, the judge authorized 36 A-0622-15T2 execution of the TRO that night . . . Simultaneously, the judge issued a domestic violence complaint against defendant. [Ibid.] Although the Cassidy Court acknowledged that the PDVA authorizes a judge to issue a TRO without the applicant being physically present at the court, it emphasized that such relief must be supported by "sworn testimony or complaint of an applicant who is not physically present, pursuant to court rules." Id. at 158 (quoting N.J.S.A. 2C:25-28(h)). In light of this material deviation from the requirements of the PDVA, the Court held that "although the warrant to search [the] defendant's home arose in the context of a domestic violence restraining order, for all intents and purposes it is a telephonic warrant and for purposes of a criminal prosecution must be judged by those standards." Id. at 159. The material facts here stand in sharp contrast to the ad hoc approach the Court found wanting in Cassidy. D.S. completed and filed the domestic violence complaint against defendant on June 28, 2012, the day after the violent incident. The complaint contains her sworn statement describing defendant's violent invasion of her home as well as the altercation that ensued after defendant forced himself through the window, causing the air conditioner to fall to the ground. Once inside, defendant 37 A-0622-15T2 physically assaulted her and her mother, and threatened to mutilate D.S.'s face with acid. D.S. testified under oath before the Family Part judge who issued the TRO. This testimonial evidence provided specific evidence to substantiate the predicate offenses identified in the domestic violence complaint. D.S. also described under oath the various weapons defendant had in his possession, including a handgun, a knife, and a switchblade. D.S. also provided defendant's home address and identified three motor vehicles defendant owned or had access to, that had hidden compartments to store weapons. Officer Ward testified that defendant's counsel was aware of the TRO and instructed defendant to report to the police station to accept service. Ward responded to defendant's residence as directed by the Family Part to serve defendant and execute the search warrant. Despite the officers' attempt to execute a facially valid warrant, defendant refused to permit the officers to enter his apartment. The Criminal Part judge found Officer Ward's testimony concerning these events credible. In this light, we note the following admonition the Court made in Cassidy: It goes without saying that although failure to meet the technical and substantive requirements for a restraining order results 38 A-0622-15T2 in an invalid order, the order nonetheless has legal effect until vacated. Thus, even if an ex parte domestic violence TRO is issued pursuant to a flawed process, the person intended to be protected must receive the benefits of the order. A defendant must comply with the TRO's restraints and any search and seizure order contained therein, if only to challenge the validity of its respective parts in an appropriate forum later. In respect of the restraints, a defendant may obtain relief from the TRO under an expedited process set forth in the Act. [Cassidy, 179 N.J. at 159 n.3 (citations omitted) (emphasis added).] Thus, the subsequent dismissal of the domestic violence complaint at the FRO hearing did not ex post facto vitiate the validity of the search warrant the Family Part issued under N.J.S.A. 2C:25-28(j). Defendant's failure to comply with the police officers' direct instruction to allow them entry into his residence to execute a facially valid TRO and search warrant gave the officers probable cause to arrest defendant on the charge of fourth degree contempt under N.J.S.A. 2C:29-9(b)(1). Once inside his apartment, the officers immediately detected the strong odor of raw marijuana and saw in plain view multiple air fresheners located throughout the apartment to mask the scent. The record also shows that before entering the apartment, the officers asked 39 A-0622-15T2 defendant whether anyone else was inside. Defendant responded with a shrug of his shoulders and stated he did not know. Given defendant's non-cooperation and mindful of the allegations concerning the presence of weapons, once lawfully inside the apartment, the officers conducted "a protective sweep," limited to areas where a person could be hiding and to "ferret out weapons" that might be used against them. State v. Davila, 203 N.J. 97, 125-129 (2010). Defendant's remaining arguments concerning the admissibility of certain statements he made to Officer Riporti while awaiting the arrival of Officer Ward were legally inconsequential because defendant was not in a custodial setting at the time. Although Ward told defendant he could not accept service of the TRO at the police station, this did not imply he was not free to leave. Furthermore, we would reach the same conclusion even if we were to conclude that a reasonable person under defendant's circumstances would believe he was not free to leave. According to Ward, as he approached Riporti, he overheard defendant saying: "I guess she lied again[.] . . . [G]ive me whatever . . . I have to sign[.] . . . [S]he gets jealous, makes stuff up; I kind of expected this." These statements are not facially incriminatory to the criminal charges in the indictment. Their relevancy, if any, would be to establish the existence of a romantic relationship 40 A-0622-15T2 between D.S. and defendant. This implicates only the subject matter jurisdiction of the Family Part. Affirmed. 41 A-0622-15T2

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Docket No.: a4293-15
Decided: 2018-04-16
Caption: INRE: VICINAGE 13 OF THE NEW JERSEY SUPERIOR COURT
Status: published
Summary:
ALVAREZ, P.J.A.D. The New Jersey Office of the Public Defender (OPD) appeals from an April 29, 2016 declaratory judgment finding Courtroom No. 2 in the Warren County Courthouse to be constitutionally adequate for the conduct of criminal jury trials. We now reverse and remand. We also suggest the assignment judge of Middlesex County, to whom the matter had been transferred for decision, consider appointing a special master, pursuant to Rule 4:41-1, to make findings and recommendations before rendering a decision. This case has an unusual procedural history. It commenced in 2011, when a Warren County public defender objected to conducting a criminal trial in newly renovated Courtroom No. 2. 1 His objection was overruled, and the matter proceeded to conclusion. On February 6, 2012, a second case was scheduled to be heard in the courtroom, and this time, the trial judge granted the motion to move the trial elsewhere. That judge described in detail problems with the design, including obstructions to a defendant's view of the witness stand and the jury box. The judge determined that the courtroom was constitutionally inadequate. On February 9, 2012, the Warren County Prosecutor's Office (prosecutor's office) filed a motion before the Warren County assignment judge, seeking to vacate the trial judge's order barring the use of Courtroom No. 2. Meanwhile, a third application was made to stay a criminal trial in that courtroom. The Warren County assignment judge consolidated the matters and transferred them for 1 The courtroom had undergone renovations beginning in 2008. After the renovations, four criminal trials were conducted in the courtroom. 2 A-4293-15T3 hearing before the assignment judge of Middlesex County. The prosecutor's office then filed a verified complaint and order to show cause in that vicinage. The OPD removed the matter to federal court; it was remanded back to state court on June 20, 2012. The case, captioned "In re Vicinage 13," thereafter languished. In the interim, Warren County filed separate litigation concerning the courtroom, which was settled with the Administrative Office of the Courts (AOC) in September 2015. 2 After the parties agreed to certain renovations, the action was dismissed. In March 2016, for reasons not included in the record on appeal, Warren County moved for declaratory judgment pursuant to the Declaratory Judgment Act (DJA), N.J.S.A. 2A:16-50 to -62.3 The matter bore the docket number of the prior——by then inactive— —proceeding. It was the outcome of the DJA application that resulted in the order now appealed. Turning to that decision, the assignment judge to whom the matter had been transferred ruled that the OPD lacked standing to participate. Acknowledging New Jersey's expansive view of the doctrine, the judge nonetheless reached this conclusion because 2 No copy of the settlement or other pleading from that case has been provided, thus we are uncertain if the AOC was a named party. 3 The record on appeal does not include a copy of either a motion or a separate complaint. 3 A-4293-15T3 the OPD did not represent a specific individual whose trial was currently scheduled in the courtroom. Additionally, the court reasoned that even if the OPD had standing, the modifications agreed to in 2015 in the Vicinage 13 action between Warren County and the AOC corrected the six courtroom defects identified by the trial judge in 2012. The assignment judge based his determination in part on the representations of an architect the judge had designated for that purpose. A certification from an OPD attorney, however, stated that not only were the constitutional issues with the courtroom unresolved, the settlement agreement called for modifications that were not completed. The attorney alleged that the alterations to the courtroom made it more cosmetically functional but failed to: correct line of sight issues, provide the space necessary for a criminal trial, and increase the available seats in the courtroom— —meaning that, overall, the space was inadequate for jury selection as well as for public attendance. The OPD raises the following points for our consideration: POINT I THE PUBLIC DEFENDER HAS STANDING [] POINT II THE TRIAL COURT'S GRANT OF A DECLARATORY JUDGMENT WAS [NOT] APPROPRIATE [] 4 A-4293-15T3 POINT III RES JUDICATA BARRED THE ISSUANCE OF A DECLARATORY JUDGMENT [] POINT IV TRIAL COURT INAPPROPRIATELY TOOK JUDICIAL NOTICE OF FACTS IN DISPUTE WITHOUT FOLLOWING RULE 201'S REQUIREMENTS [] POINT V THE TRIAL COURT ERRED IN GRANTING RELIEF AS A MATTER OF LAW, ESPECIALLY ON A DISPUTED RECORD POINT VI COURTROOM TWO, AS DESIGNED, IS NOT CONSISTENT WITH FEDERAL ACCESS TO JUSTICE LAWS AND APPEARS TO VIOLATE THE AMERICAN[S] WITH DISABILITIES ACT [] We discuss only the issues of standing and whether the matter is justiciable under the DJA. The remaining points on appeal either do not warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), or are made moot by our decision to remand. I. We conclude that the OPD has standing and should have been afforded the opportunity to participate in the declaratory judgment action. "The issue of standing is a matter of law as to which [this Court] exercise[s] de novo review." People For Open Gov't v. Roberts, 397 N.J. Super. 502, 508 (App. Div. 2008) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); see also Rowe v. Hoffmann-La Roche Inc., 383 N.J. Super. 442, 452 (App. Div. 2006), rev’d on other grounds, 189 N.J. 5 A-4293-15T3 615 (2007). New Jersey has traditionally taken a much more liberal approach on the issue than have the federal courts. In re Camden Cty., 170 N.J. 439, 451 (2002); Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 101 (1971). Our courts are not bound by the "case or controversy" requirement that governs federal courts under U.S. Const. Art. III, § 2. Salorio v. Glaser, 82 N.J. 482, 490 (1980). In Salorio, our Supreme Court said it was "free to fashion its own law of standing consistent with notions of substantial justice and sound judicial administration." Id. at 491. Thus, the Court has "consistently held that in cases of great public interest, any 'slight additional private interest' will be sufficient to afford standing." N.J. Dep't of Envtl. Prot. v. Exxon Mobil Corp., ___ N.J. Super. ___, ___ (2018) (slip op. at 32) (citations omitted). However, we "will not render advisory opinions or function in the abstract" nor "entertain proceedings by plaintiffs who are 'mere intermeddlers' or are merely interlopers or strangers to the dispute." Crescent Park Tenants Ass'n, 58 N.J. at 107 (citations omitted). "In the overall we have given due weight to the interests of individual justice, along with the public interest, always bearing in mind that throughout our law we have been sweepingly rejecting procedural frustrations in favor of 'just and expeditious determinations on the ultimate merits.'" Roberts, 397 6 A-4293-15T3 N.J. Super. at 510 (quoting Crescent Park Tenants Ass'n, 58 N.J. at 107-08). The assignment judge reasoned that the OPD lacked standing because the office was not actively representing a defendant whose trial was about to take place in Courtroom No. 2. Setting that undisputed circumstance aside, however, it was the OPD that initiated the proceedings years before. The subject matter of the litigation implicates the interests of the indigent criminal defendants the OPD is mandated to represent in that county, and such cases will be assigned to that courtroom. Thus, issues "of substantial justice and sound judicial administration" cannot be conclusively addressed without the OPD's participation. See Salorio, 82 N.J. at 491. The federal court remanded the case to the state court in part because the OPD lacked standing to remove a matter in which it was not a named defendant. The analysis, however, is different and distinct——standing for removal purposes——from the question of whether the OPD has standing at all. The State agrees with the OPD on this issue. So does Warren County, with the caveat that the OPD's interest extends only to per se violations of the Sixth Amendment, not to the other concerns the OPD raised before the assignment judge and by way of appeal. 7 A-4293-15T3 Even if that argument were correct, the OPD has a right, if not an obligation, to participate in the proceedings. In a different context we have said a litigant must "raise the constitutional rights of a third party when the third party's rights are likely to be diluted or adversely affected unless they are raised by a plaintiff holding a confidential relationship with the third party." Stubaus v. Whitman, 339 N.J. Super. 38, 51 (App. Div. 2001) (citing In re Estate of Neuwirth, 155 N.J. Super. 410, 419 (Cty. Ct. 1978)). It is the OPD's voice that speaks to the due process rights of indigent criminal defendants. To exclude it from the process would be contrary to both substantial justice for the agency's clients as well as principles of sound judicial administration. See Salorio, 82 N.J. at 491. II. The DJA "authorizes courts to declare rights, status and other legal relations so as to afford litigants relief from uncertainty and insecurity." Chamber of Commerce v. State, 89 N.J. 131, 140 (1982). A decision regarding the constitutional suitability of the courtroom would "settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations." N.J.S.A. 2A:16-51. As the Court recently reiterated, the DJA provides interested parties with a means of "preserv[ing] the status quo without having 8 A-4293-15T3 to undergo costly and burdensome proceedings." Carter v. Doe (In re N.J. Firemen's Ass'n Obligation), 230 N.J. 258, 275 (2017). Adjudication under the DJA requires an actual controversy, avoiding "abstract disagreements." Ibid. (quoting Abbott Labs v. Gardner, 387 U.S. 136, 148 (1967)). "[T]he facts [must] present 'concrete contested issues conclusively affecting the parties' adverse interests.'" Ibid. (citing N.J. Tpk. Auth. v. Parsons, 3 N.J. 235, 241 (1949)). Warren County's application for declaratory judgment sought resolution of a pending, consequential dispute that, for reasons not found in the record, had not been finalized for years. Warren County's decision to seek judicial review of the return on its investment in courtroom modifications, and its compliance with the settlement it had earlier reached with the AOC, is proper. The OPD's attempted removal of the case to the federal system demonstrates it too viewed the controversy as ongoing and worthy of adjudication, despite its contention on appeal that the subject matter should not have been addressed under the DJA. The declaratory judgment granted in this case unquestionably resolved an actual controversy. See ibid. The OPD also contends that the federal district court's remand to state court demonstrates that no declaratory judgment should have issued, and that law of the case principles should bar further 9 A-4293-15T3 proceedings. Feldman v. Lederle Lab., 125 N.J. 117, 132 (1991) ("The law-of-the-case doctrine is a guide for judicial economy based on the sound policy that 'when an issue is once litigated and decided during the course of a case, that decision should be the end of the matter.'" (citation omitted)). As we have said, we disagree with the OPD's interpretation of the federal judge's decision. He only determined that the OPD was not a "defendant" within the context of 28 U.S.C. § 1441(a), and that, accordingly, it could not remove the matter to district court. The judge did not mean that he found the matter to be non-adversarial. He only intended to address the propriety of removal within the jurisdictional requirements of federal law. See 28 U.S.C. § 1441(a). Additionally, it is not necessary for the parties to have an explicitly adverse interest to each other. So long as the parties disagree concerning the effect of significant statutes and regulations governing their rights and duties, while maintaining different priorities, that suffices to make the matter justiciable under the DJA. N.J. Ass'n for Retarded Citizens v. N.J. Dep't of Human Servs., 89 N.J. 234, 243 (1982). These parties have overlapping responsibilities, but none share precisely the same goals. The disagreement creates a significant legal controversy 10 A-4293-15T3 between branches of government that makes this proceeding adversarial and subject to the DJA. III. Res judicata prevents a party from relitigating for a second time a claim already determined between the same parties. Collateral estoppel (or "issue preclusion") is "that branch of the broader law of res judicata which bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action." State v. Gonzalez, 75 N.J. 181, 186 (1977) (citations omitted). In assessing whether the doctrine applies, courts consider five factors: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding. [N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 115 (2011) (quoting Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006)).] However, "even where these requirements are met, the doctrine, which has its roots in equity, will not be applied when it is unfair to do so." Ibid. (quoting Olivieri, 186 N.J. at 521-22). 11 A-4293-15T3 The OPD's assertion that res judicata bars the 2016 declaratory judgment warrants little discussion in a written opinion. See R. 2:11-3(e)(1)(E). The initial 2012 decision was about a courtroom that has since been renovated. The decision did not include these parties. Warren County became an active participant in the dispute only afterwards. Accordingly, none of the five prongs of the test have been met. By way of sidelight, we find no merit in Warren County's position that only the assignment judge had the authority to render a decision in the first instance regarding the suitability of the courtroom. Rule 1:33-4(b) does not preclude affected parties from raising claims regarding the constitutional right to a fair trial. 4 The rule did not bar the trial judge in 2012 from granting the defense attorney's application to remove his client's trial to another courtroom. All judges are required to protect the constitutional rights of the litigants who appear before them. 4 Rule 1:33-4(b) states: The Assignment Judge shall be the authorized representative of the Chief Justice for the efficient and economic management of all courts within the vicinage. The responsibilities of the Assignment Judge also shall include all such matters affecting county and municipal governments, including but not limited to budgets, personnel, and facilities. 12 A-4293-15T3 IV. Finally, the OPD contends that the assignment judge who rendered judgment erroneously took judicial notice of disputed facts. State v. Silva, 394 N.J. Super. 270, 275 (App. Div. 2007) ("[T]he cases support the proposition that facts that can be reasonably questioned or disputed may not be judicially noticed."). We do not reach that argument because the record on appeal is insufficient for appellate review and requires a remand. For that reason, we suggest that the Middlesex County assignment judge refer the matter to a master pursuant to Rule 4:41-1, at the parties' shared expense. "[E]xtraordinary circumstances" exist that justify such an appointment, as called for by the rule. R. 4:41-1. This controversy involves several governmental entities, funded from separate sources, whose responsibilities and interests overlap but are not strictly aligned. The issues implicate the due process rights of litigants whose matters are tried in the courtroom, as well as the budgetary concerns of Warren County. Any final decision reached regarding the courtroom will have long- term consequences. Should the assignment judge agree, the master may, as the rule allows, schedule proceedings, conduct hearings, and even appoint experts to document the extent to which the renovations serve their intended purpose. R. 4:41-3. The question 13 A-4293-15T3 of whether Courtroom No. 2 passes constitutional muster demands a more comprehensive examination. We do not retain jurisdiction. Reversed and remanded. 14 A-4293-15T3

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Docket No.: a5077-15
Decided: 2018-04-12
Caption: STATE OF NEW JERSEY v. RENE M. RODRIGUEZ
Status: published
Summary:
OSTRER, J.A.D. Each defendant in these five back-to-back appeals by the State was convicted of fourth-degree operating a motor vehicle during a period of license suspension. N.J.S.A. 2C:40-26. The statute prescribes a sentence of a "fixed minimum" term of at least 180 days without parole eligibility. N.J.S.A. 2C:40- 26(c). We must decide whether the trial court exceeded its authority by ordering that defendants serve such sentences intermittently, under N.J.S.A. 2C:43-2(b)(7). The State contends the intermittent sentences are illegal. It argues a minimum period of parole ineligibility precludes an intermittent sentence. Having reviewed the plain language of the two statutes and the pertinent case law, we disagree. 3 A-5077-15T3 However, to satisfy the mandated term of days, a defendant must serve continuous twenty-four-hour periods to satisfy each day of the 180-day mandated term. We therefore modify the sentences of Eric L. Lowers in A-5146-15 and Stephen E. Nolan in A-5147-15; remand for the trial court to reconsider the sentence of Courtney D. Swiderski in A-5160-15; and reverse the sentences of Rene M. Rodriguez in A-5077-15 and Elizabeth A. Colon in A- 5078-15, who were sentenced only to nights, and remand those matters for resentencing. I. Four defendants pleaded guilty to violating N.J.S.A. 2C:40- 26(b). Appearing before the same judge, they admitted they drove a motor vehicle while their licenses were suspended for a second or subsequent conviction of driving while under the influence (DUI), N.J.S.A. 39:4-50. A fifth defendant pleaded guilty to violating N.J.S.A. 2C:40-26(a). She admitted driving a motor vehicle while her license was suspended for DUI. It evidently was the second time she did so during that suspension. The court initially sentenced three defendants — Rene Rodriguez, Eric Lowers and Courtney Swiderski — to serve their 180-day term in a treatment program or home detention.1 However, 1 Rene Rodriguez, Eric Lowers, and Stephen Nolan also pleaded guilty to violating N.J.S.A. 39:3-40. The sentences for the (continued) 4 A-5077-15T3 we reversed those sentences in light of State v. Harris, 439 N.J. Super. 150 (App. Div. 2015) and State v. French, 437 N.J. Super. 333 (App. Div. 2014), and remanded for resentencing. State v. Rodriguez, No. A-2541-14 (App. Div. July 29, 2015) (ESOA calendar); State v. Lowers, No. A-4260-13 (App. Div. June 22, 2015) (ESOA calendar); State v. Swiderski, No. A-2496-14 (App. Div. July 29, 2015) (ESOA calendar). Ultimately, each defendant pleaded guilty based on the court's promise of a sentence that would allow each defendant to serve 180 days intermittently, over the State's objection. Three defendants – Stephen Nolan, Eric Lowers and Courtney Swiderski – specifically reserved the right to withdraw their guilty pleas if their intermittent sentences were invalidated. Rene Rodriguez pleaded guilty to two separate indictments charging violations of N.J.S.A. 2C:40-26(b). The first charged a violation on July 11, 2012, in Pennsauken; the second on November 16, 2013, in Cherry Hill.2 They were the second and third times he was caught driving while his license was (continued) Title 39 violations were ultimately merged into the sentences for the fourth-degree crimes, but the mandatory penalties survived. 2 The second indictment included a drug possession charge, which was dismissed as part of his plea agreement. 5 A-5077-15T3 suspended. Rodriguez had three DUI convictions, the last in 2010. Rodriguez was fifty-five years old when sentenced. The court found that his lack of a prior criminal record and his amenability to probation outweighed the risk of his reoffending and the need to deter. See N.J.S.A. 2C:44-1(b)(7), (10) (mitigating factors); N.J.S.A. 2C:44-1(a)(3), (9) (aggravating factors). The court sentenced Rodriguez to two concurrent terms of two years of probation, conditioned on service of concurrent 180-day parole-ineligible terms of imprisonment, to be served "at night[] on . . . Monday, Tuesday, Wednesday and Thursday of each week." The court found that the sentence would accommodate his work schedule and promote his success on probation. Rodriguez reportedly had worked for a computer service firm for sixteen years. The court did not specify when Rodriguez was required to report to the jail each night, or when he would be released each morning. However, he evidently would not be required to serve any continuous twenty-four-hour period in custody. Also, the court did not specify how each nightly stint would count toward the 180-day minimum. 6 A-5077-15T3 In Elizabeth Colon's plea allocution, she admitted that she had been previously convicted of DUI.3 Like Rodriguez, Colon was sentenced to two years of probation, conditioned upon service of the 180-day jail term "at night on Monday, Tuesday, Wednesday and Thursday of each week." Colon had worked at a frozen dessert shop for eleven years. She was a manager, but still earned a very modest income. She was twenty-eight years old at sentencing. She had three prior municipal court convictions for loitering, disorderly conduct and breach of the peace, the last in 2013. The court found the likelihood she would respond affirmatively to probationary treatment outweighed the slight risk she would reoffend, and the need to deter. See N.J.S.A. 2C:44-1(b)(10) (mitigating factor); N.J.S.A. 2C:44-1(a)(3), (9) (aggravating factors). As in Rodriguez's sentencing, the court did not expressly address how each nightly stint would count toward the 180-day minimum. 3 Colon's indictment charged a violation of N.J.S.A. 2C:40-26(b), which requires at least two prior DUI convictions. Colon only admitted to one. Although her indictment was not formally amended, her judgment of conviction stated she was convicted of N.J.S.A. 2C:40-26(a), which requires only one DUI, but two or more instances of driving while suspended for that DUI. However, in her allocution, Colon did not mention a prior instance of driving while suspended. We note the record on appeal does not include any defendant's driver abstract, which would indicate each defendant's prior motor vehicle violations. However, the trial court apparently possessed the abstracts, based on the references to them in the sentencing hearings. 7 A-5077-15T3 Eric Lowers had three prior DUI convictions.4 The last was in 2005. According to his presentence report, he had one municipal court conviction from 1997 that resulted in a fine (although the court stated he had three municipal court convictions). Forty-six years old at sentencing, Lowers lived with his wife and one child. He paid child support for another. Two adult children lived outside the home. Employed for sixteen years as a heavy equipment operator through a local union, he currently worked at a Philadelphia refinery. He was his household's principal breadwinner. He also assisted his ailing grandmother during the week. The court sentenced Lowers to serve his 180-day term from Friday evening until Sunday evening of each week. No probation was imposed. The court found that his lack of a prior criminal history or his law-abiding behavior for a substantial period of time, and his character and attitude outweighed the risk he would reoffend and the need to deter. See N.J.S.A. 2C:44- 1(b)(7), (9) (mitigating factors); N.J.S.A. 2C:44-1(b)(3), (9) (aggravating factors). The court noted that the intermittent 4 In his allocution to the fourth-degree offense, Lowers admitted the offense was committed on January 2, 2013. However, the indictment stated that offense occurred on October 5 of the preceding year. In a later allocution to violating N.J.S.A. 39:3-40, he admitted he was driving on October 5. Defendant had six prior convictions for driving while on the revoked list, the last one in 1999, but none while suspended for DUI. 8 A-5077-15T3 sentence would enable Lowers to maintain his employment and to continue to support those who depended on him. Stephen Nolan had at least three DUI convictions, according to his attorney. He was in his early fifties when he entered his guilty plea. He had a high school education, and earned a very modest income working for a printing company. He was the sole support of his wife and son. He and his wife were in poor health. His attorney stated that if he were sentenced to a continuous term, he would lose his job and health insurance, and his family would be forced to turn to public assistance. Consistent with Nolan's request, the court sentenced him to serve his 180-day parole-ineligible term from Friday evening to Sunday evening each week. No probation was imposed. The court explained that an intermittent sentence would allow defendant to keep his job and his health insurance. The court found his lack of a prior criminal record and his character and attitude outweighed the risk of reoffending and the need to deter. See N.J.S.A. 2C:44-1(b)(7), (9) (mitigating factors); N.J.S.A. 2C:44-1(a)(3), (9) (aggravating factors). Courtney Swiderski, thirty-four years old at sentencing, had two prior DUI convictions. In accord with her plea agreement, her imprisonment was a condition of a two-year term of probation. She was sentenced to serve her 180-day term on 9 A-5077-15T3 Saturdays and Sundays. The court found that her lack of a criminal record, her character and attitude, and her amenability to probationary treatment outweighed the risk of her reoffending and the need to deter. See N.J.S.A. 2C:44-1(b)(7), (9), (10) (mitigating factors); N.J.S.A. 2C:44-1(b)(3), (9) (aggravating factors). The court found an intermittent sentence would enable her to preserve her long-term employment as a medical receptionist, and to enhance her prospects for success on probation. In each of the five cases, the trial court stayed service of the sentence pending appeal. II. On appeal, the State, by the Camden County Prosecutor, contends that N.J.S.A. 2C:40-26 implicitly mandates a continuous term, and supersedes the more general authorization in N.J.S.A. 2C:43-2(b)(7) for intermittent sentences. Both the State and the Attorney General, as amicus curiae, analogize intermittent periods of release to parole, which N.J.S.A. 2C:40-26 prohibits during the minimum 180-day term. The State and the Attorney General argue that an intermittent sentence fails to fulfill the Legislature's punitive purpose in enacting N.J.S.A. 2C:40-26. 10 A-5077-15T3 Defendants5 and the New Jersey Public Defender, as amicus curiae, respond that a parole-ineligible term is not incompatible with an intermittent sentence. They argue parole and intermittent periods of release fundamentally differ. In particular, intermittent periods of release, unlike parole, do not reduce the overall period of custody. Some defendants and the Public Defender argue that intermittent sentences will have a greater deterrent effect than a continuous sentence. III. The Code of Criminal Justice provides that the general authority to impose intermittent sentences must yield to specific sentencing provisions to the contrary. N.J.S.A. 2C:43-2. The crux of this appeal is whether such contrary provisions include the mandate of a 180-day parole-ineligible term for fourth-degree driving while suspended, N.J.S.A. 2C:40- 26. The power to impose intermittent sentences is found in the section authorizing various sentencing dispositions. N.J.S.A. 2C:43-2. Among other options, a court may sentence a defendant "[t]o imprisonment at night or on weekends with liberty to work or to participate in training or educational programs." N.J.S.A. 2C:43-2(b)(7). That general authority bows to contrary 5 Defendant Colon has not filed a brief. 11 A-5077-15T3 provisions in N.J.S.A. 2C:43, and the Code more broadly. N.J.S.A. 2C:43-2(b). Subsection (a) of N.J.S.A. 2C:43-2 states that persons shall be sentenced in accord with N.J.S.A. 2C:43, "[e]xcept as otherwise provided by this code . . . ." Also, a court may impose an intermittent sentence (or another authorized sentence type) "[e]xcept as provided in subsection a. of this section and subject to applicable provisions of the code." N.J.S.A. 2C:43-2(b). Thus, we must examine the mandatory 180-day sentencing provision for fourth-degree driving while suspended, to determine if it is incompatible with an intermittent sentence. The mandatory sentencing provision expressly supersedes "the term of imprisonment provided under N.J.S.[A.] 2C:43-6" – which prescribes a prison term of zero to eighteen months for a fourth-degree offense – and "the provisions of subsection e. of N.J.S.[A.] 2C:44-1" – which establish a presumption of non- incarceration for most third and fourth-degree first-time offenders. N.J.S.A. 2C:40-26(c). However, it does not expressly override N.J.S.A. 2C:43-2(b)(7). Thus, our focus is on the meaning and implication of the language that the "sentence imposed shall include a fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole." N.J.S.A. 2C:40-26(c). 12 A-5077-15T3 We are obliged to give effect to the Legislature's intent. State v. Harper, 229 N.J. 228, 237 (2017). Our analysis begins with the statute's plain language. "If it clearly reveals the Legislature's intent, the inquiry is over." Ibid.; see also In re Kollman, 210 N.J. 557, 568 (2012) ("If the plain language is clear, the court's task is complete."). We ascribe to words their "ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citations omitted). We must avoid literalism that would lead to absurd results, or violate the overall statutory scheme and its goals. Perrelli v. Pastorelle, 206 N.J. 193, 200-01 (2011). When the face of a statute is thereby unclear, or ambiguous, we may resort to extrinsic legislative materials to discern legislative intent. Harper, 229 N.J. at 237. If ambiguity remains, despite such review, it must be resolved in favor of a criminal defendant. State v. Regis, 208 N.J. 439, 452 (2011). Turning to the statutory language, we find no basis for the argument that an intermittent sentence under N.J.S.A. 2C:43- 2(b)(7) violates the parole ineligibility term mandated by N.J.S.A. 2C:40-26. Simply put, periodic release under an intermittent sentence is not parole. 13 A-5077-15T3 The essential nature of parole is release from custody before a prisoner has completed his or her imposed term, subject to conditions that, if satisfied, will reduce the prisoner's total period of confinement. "Parole is a period of supervised release 'by which a prisoner is allowed to serve the final portion of his sentence outside the gates of the institution on certain terms and conditions, in order to prepare for his eventual return to society.'" State v. Black, 153 N.J. 438, 447 (1998) (quoting State v. Oquendo, 262 N.J. Super. 317, 324 (App. Div.), rev'd on other grounds, 133 N.J. 416 (1993)). Parole may reduce real time in custody for a flat sentence by as much as two-thirds, not counting commutation time and work credits that may further reduce the parole eligibility term. N.J.S.A. 30:4-123.51(a); N.J.A.C. 10A:71-3.2(a), -3.2(g).6 However, a defendant sentenced to a county jail term must serve at least sixty days before parole eligibility. N.J.S.A. 30:4- 123.51(g). A prisoner who violates the conditions of his or her release risks the revocation of parole, and the return to custody for the balance of his or her custodial term. State v. Franklin, 175 N.J. 456, 470 (2003). 6 For example, with such credits, a first-time offender sentenced to a flat three-year term is eligible for parole after nine months. See New Jersey Parole Board, Parole Eligibility Basic Calculations at 17 (2002) (parole eligibility table for first- time offenders). 14 A-5077-15T3 By contrast, periods of release during service of an intermittent sentence do not reduce the total time of confinement. Rather, they simply interrupt the days of custody. As our late, esteemed colleague noted while sitting in the trial court, "The duration of [a] custodial term remains the same whether it is served consecutively or on weekends." State v. Silva, 236 N.J. Super. 90, 92 (Law Div. 1989) (Rodriguez, J.). Thus, he rejected the State's contention that weekend service of a plea-bargained 180-day custodial sentence for a school zone offense, N.J.S.A. 2C:35-7, was a "lesser term of imprisonment" under N.J.S.A. 2C:35-12. Id. at 91-93. As John M. Cannel notes, "[S]ubsection b(7) merely authorizes flexibility in the way imprisonment is to be served . . . ." Cannel, N.J. Criminal Code Annotated, cmt. 7 on N.J.S.A. 2C:43-2 (2017). Furthermore, the State's and the Attorney General's intermittent-release-is-like-parole argument fails because an intermittent sentence does not subject a defendant to parole- like conditions or supervision. Nor does N.J.S.A. 2C:43-2(b)(7) authorize a court to modify an intermittent sentence, based on an offender's behavior during periods of release. We also reject the contention that implicit in the mandate of a 180-day sentence is the requirement that the days be served without interruption. The statute does not say so expressly. 15 A-5077-15T3 By contrast, in multiple other provisions, the Legislature expressly stated when a period of days shall be "consecutive days." See, e.g., N.J.S.A. 2C:7-2(a)(2); N.J.S.A. 2C:46- 2(a)(2); N.J.S.A. 2C:43-8.1; see also N.J.S.A. 2A:4A-43(c)(1) (disposition of delinquency cases). "A person convicted of an offense under . . . [N.J.S.A. 2C:40-26(a) or -26(b)] shall be sentenced by the court to a term of imprisonment." N.J.S.A. 2C:40-26(a), -26(b). According to the State, "term of imprisonment" implies uninterrupted service. The State's argument proves too much. If "term" were read to mean an uninterrupted period of time, then even the general provision that fourth-degree offenders shall receive a "specific term" not more than "18 months," N.J.S.A. 2C:43-6(a)(4), would preclude intermittent sentences. Thus, not even the least serious criminal offender would be eligible for an intermittent sentence under the Code. We reject such an interpretation. We are persuaded that "term of imprisonment" means simply a period of imprisonment, which does not preclude an intermittent period. See Silva, 236 N.J. Super. at 92-93 (holding, based on the dictionary definition of "term," that "term of imprisonment" refers to "the length or duration of confinement rather than the manner in which it is to be served"). 16 A-5077-15T3 Nor does the use of the word "fixed" imply an uninterrupted sentence. See N.J.S.A. 2C:40-26(c) (requiring custodial term for fourth-degree driving while suspended to "include a fixed minimum sentence of not less than 180 days"). As the past participle of the verb "to fix," "fixed" evidently means that the 180-day minimum is set, and cannot be reduced, either by the court, or by application of commutation time or work credits. See Karatz v. Scheidemantel, 226 N.J. Super. 468, 470-72 (App. Div. 1988) (holding that "fixed minimum sentence" under N.J.S.A. 2C:14-6 could not be reduced by commutation credits).7 In that respect, a "fixed minimum sentence" is not substantively different from a "mandatory minimum sentence." See N.J.S.A. 2C:43-7.2(b); cf. N.J.S.A. 2C:43-6.2(a) (referring to "mandatory minimum term"); N.J.S.A. 2C:43-6.3 (using "mandatory minimum sentence" and "mandatory minimum term" interchangeably).8 7 We recognize the Parole Act expressly states that such credits shall not reduce a mandatory minimum sentence. See N.J.S.A. 30:4-123.51; see also N.J.A.C. 10A:9-5.2; N.J.A.C. 10A:31-23.1. 8 Elsewhere in the Code, "to fix" may be used to create an immutable term. See, e.g., N.J.S.A. 2C:43-7.2 (stating that a court "shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole"). Or, it may not. See, e.g., N.J.S.A. 2C:43-6(a) (noting that regular flat sentences "shall be fixed by the court" for the periods specified). We are aware of only one other section of the Code, N.J.S.A. 2C:14-6, which uses the phrase "fixed minimum sentence." 17 A-5077-15T3 The Legislature tellingly chose to define the sentence in terms of 180 days, not six months, or half-a-year. A day is "[a]ny 24-hour period; the time it takes the earth to revolve once on its axis." Black's Law Dictionary 479 (10th ed. 2014). Thus, any continuous twenty-four-hour period of custody satisfies a day's imprisonment. By contrast, a month is "[a]ny time period approximating 30 days," id. at 1161, or the "period extending from a date in one calendar month to the corresponding date in the following month," The American Heritage Dictionary 812 (2d College ed. 1985). Had the Legislature defined the sentence in terms of months, one could make a stronger argument that the Legislature intended the days be served consecutively in groups of at least thirty. The Legislature did not.9 However, the plain meaning of a "day" precludes counting a nightly stint of say, twelve hours, as one of the 180 days 9 We recognize, by an alternative definition, a day is the twenty-four-hour period beginning at midnight. See A Dictionary of Modern Legal Usage 247 (2d ed. 1995) (stating that a day is "the period of 24 hours, beginning at the stroke of midnight"). Similarly, a month may be the period beginning on the first of any of the twelve months, and a year as the period beginning on January 1st. However, it would be absurd to conclude, in interpreting the statutes before us, that a sentence in days, months, or years, must begin at 12:01 a.m.; on the first day of the month; or on the first day of January, respectively. 18 A-5077-15T3 required.10 Furthermore, aggregating two twelve-hour nightly stints would constitute only the equivalent of a day (and a rough equivalent at that, as it would join one night-time period with another of the same, rather than with one day-time period). Where the Legislature has approved such aggregation, it has said so. In municipal court, "[a] court may order that a sentence of imprisonment be served periodically on particular days, rather than consecutively." N.J.S.A. 2B:12-22. In such circumstances, the Legislature expressly provided, "The person imprisoned shall be given credit for each day or fraction of a day to the nearest hour actually served." Ibid.11 10 To demonstrate the asserted unfairness of an intermittent sentence, the State contended in oral argument that partial days must count as a full day, using the counting mechanism for jail credits. R. 3:21-8(a) (stating that a "defendant shall receive credit on the term of a custodial sentence for any time served in custody . . . between arrest and the imposition of sentence"); see also State v. C.H., 228 N.J. 111, 117 (2017) ("Jail credits are 'day for day credits.'") (quoting State v. Rawls, 219 N.J. 185, 192 (2014)). Thus, the State contended, a twenty-four-hour period of incarceration beginning one calendar day and ending the next would count as two days, thereby enabling a defendant with an intermittent sentence to serve significantly less actual time in custody than a defendant with a continuous sentence. However, the counting rule for jail credit pertains to time in custody "before sentence is ever pronounced . . . ." State v. Rosado, 131 N.J. 423, 429 (1993). The rule was devised for a different purpose and does not bind our effort to reconcile N.J.S.A. 2C:40-26 and N.J.S.A. 2C:43- 2(b)(7). 11 The allowance of partial day credit pre-dates enactment of the Code in 1978, L. 1978, c. 95. See L. 1969, c. 146, § 1, (continued) 19 A-5077-15T3 The Public Defender conceded at oral argument that a defendant sentenced to nights pursuant to N.J.S.A. 2C:43-2(b)(7) should be credited only with the fraction of the day served, toward the 180-day minimum. Thus, an offender receiving an intermittent term of nights would serve, hour-for-hour, the same period in custody as one who served 180 days continuously. However, we conclude that aggregation of partial days is not permitted by the plain language of N.J.S.A. 2C:40-26(c), particularly absent express authority to do so as found in N.J.S.A. 2B:12-22. "The law will not ordinarily concern itself with fractions of a day; the day is deemed to be the single unit of time, unless the statute . . . expressly provides for a different approach." U.S. Steel Corp. v. Dir., Div. of Taxation, 38 N.J. 533, 539 (1962). We recognize that a mandatory minimum sentence substantially restricts a court's sentencing discretion. A judge may not reduce a mandatory minimum sentence nor "impose a sentence that, in length or form, is different from that plainly provided in the statute." State v. Lopez, 395 N.J. Super. 98, 107-08 (App. Div. 2007). For example, under the Graves Act, a (continued) codified at N.J.S.A. 2A:8-30.1 (allowing fractional credit of intermittent sentences for offenses punishable by imprisonment for thirty days or less), repealed by L. 1993, c. 293, § 6. 20 A-5077-15T3 judge may not suspend a mandatory minimum sentence, impose a non-custodial disposition, or impose an indeterminate term for a youthful offender. State v. Des Marets, 92 N.J. 62, 64, 74 (1983). Under N.J.S.A. 2C:40-26 in particular, we held that the statute did not allow for service of the sentence in an inpatient drug rehabilitation program, French, 437 N.J. Super. at 338; on home detention, Harris, 439 N.J. Super. at 160; or community service, ibid. "Because N.J.S.A. 2C:40-26(c) requires a 'fixed minimum sentence of not less than 180 days' without parole eligibility for violations of N.J.S.A. 2C:40-26(b), a sentence to a non-custodial 'alternative program,' instead of jail, is plainly illegal." Ibid. Cf. State v. Toussaint, 440 N.J. Super. 526, 535-37 (App. Div. 2015) (holding that absent clear limiting language as found in N.J.S.A. 2C:40-26(c), N.J.S.A. 39:3-40(e) did not preclude sentence to home confinement). However, an intermittent sentence under N.J.S.A. 2C:43- 2(b)(7) does not vary the length of the sentence provided by N.J.S.A. 2C:40-26. Nor does it vary the form of the sentence — which is custodial — into one that is not. An intermittent sentence is still a term of imprisonment. It is not a commitment to a rehabilitation program, even one that is 21 A-5077-15T3 inpatient. An intermittent sentence is also not a non-custodial sentence, as the offender does not satisfy the sentence during the intervening non-custodial periods. N.J.S.A. 2C:43-2(b)(7) "is not really an alternate sentencing provision in the same way as" N.J.S.A. 2C:43-2(b)(5), authorizing community release or community service, or N.J.S.A. 2C:43-2(b)(6), authorizing sentence to a half-way house or residential community facility. Cannel, N.J. Criminal Code Annotated, cmt. 7 on N.J.S.A. 2C:43-2 (2017).12 12 In State v. Kotsev, 396 N.J. Super. 389 (App. Div. 2007) and State v. Luthe, 383 N.J. Super. 512 (App. Div. 2006), the court interpreted N.J.S.A. 39:4-50(a)(3), which states that a person convicted of a third or subsequent DUI shall be sentenced to "imprisonment for a term of not less than 180 days," but up to ninety days may be served in an inpatient rehabilitation program. In Kotsev, the defendant argued the court should have sentenced him to ninety days in the Sheriff's Labor Assistance Program (SLAP), instead of jail. 396 N.J. Super. at 390. Holding that non-custodial sentences were not allowed, the panel stated, "SLAP is not an option." Id. at 392. It then added without further analysis in dictum, "Weekend service is not an option." Ibid. In Luthe, we rejected defendant's argument that the trial court's refusal to consider "alternative sentencing options" denied her equal protection. 383 N.J. Super. at 513-15. We held, "There is no statutory authority for work release programs, out-patient treatment, or the like as an alternative." Id. at 515. Presented with anecdotal information that some trial courts imposed such dispositions, including "weekend reporting," the panel stated, "[I]f disparity exists as to the use of these alternative programs, it must cease, consistent with our construction of the statute." Id. at 516. (continued) 22 A-5077-15T3 Although we find no ambiguity in N.J.S.A. 2C:40-26, relating to the permissibility of intermittent sentences, the State and the Attorney General nonetheless resort to the provision's legislative history. However, the extrinsic materials fall short of compelling the result they seek. No doubt, the Legislature intended to stiffen the punishment for certain repeat offenders who drive with a suspended or revoked license. State v. Carrigan, 428 N.J. Super. 609, 613 (App. Div. 2012) (noting that prior to enactment of N.J.S.A. 2C:40-26 the sanction under Title 39 was ten to ninety days in jail, without a mandatory minimum parole ineligible term). The statute tars offenders with criminal records, and imposes significant terms of incarceration, whether intermittent or not. The State contends that the Legislature's overriding intent was simply to get recidivists off the road. However, we have found no evidence in the legislative history — nor does the State or the Attorney General point to any — that the Legislature so intended, let alone that it contemplated taking a (continued) The references to weekend sentences in Kotsev and Luthe are dicta. They also pertain to a different violation of a different statute with a different legislative history, and did not discuss N.J.S.A. 2C:43-2(b)(7). The decisions do not persuade us that weekend sentences under N.J.S.A. 2C:43-2(b)(7) are non-custodial dispositions. Notably, neither the State nor the Attorney General rely on Kotsev or Luthe in their briefs before us. 23 A-5077-15T3 driver off the road for 180 continuous days, as opposed to 180 non-continuous days. Had the Legislature's focus been separating offenders from vehicles, non-jail custodial alternatives such as inpatient treatment may have been acceptable. Notably, N.J.S.A. 2C:40-26 does not impose a period of license suspension in addition to the custodial sentence.13 Furthermore, a person convicted of a crime under N.J.S.A. 2C:40- 26(a) or (b) who is in and out of jail over ninety weekends (assuming a weekend sentence from Friday night to the same time on Sunday night), would be repeatedly reminded of his or her crime and its punishment. After a year and a half, that person, still serving his or her sentence, may be more deterred than a person who finished a continuous sentence a year earlier. We acknowledge that the sponsor of the bill that added N.J.S.A. 2C:46-20 to the Code equated the mandated 180-day parole ineligible term to a six-month period. See Sponsor's Statement to A. 4303 (Nov. 30, 2009) ("A person convicted of violating the bill's provisions is to be sentenced to a term of imprisonment which would include a six month period of parole 13 As part of Courtney Swiderski's plea agreement, the State dismissed the N.J.S.A. 39:3-40 charge against her, which would have mandated a license suspension period, if convicted. Evidently, Elizabeth Colon was not charged with violating N.J.S.A. 39:3-40. The State did not seek her license suspension under N.J.S.A. 2C:43-2(c). 24 A-5077-15T3 ineligibility."); see also Assemb. Law & Pub. Safety Comm. Statement to Assemb. Comm. Substitute for A. 4303 (Dec. 3, 2009) (same). However, the legislative history may not create ambiguity that is absent on the face of the statute. See DiProspero, 183 N.J. at 506 (declining to rely on "legislative history . . . to create an ambiguity in an otherwise clear statute"). We decline to rewrite the "180 days" as found in the statute, to state "six months." "[A] court may not rewrite a statute or add language that the Legislature omitted." State v. Munafo, 222 N.J. 480, 488 (2015). We conclude the reference to six months in the sponsor's statement was simply an imprecise summary of the statutory language, without anticipating the issue of intermittent sentencing presented to us. Finally, even if the State's and the Attorney General's readings of N.J.S.A. 2C:40-26(c) were plausible, they at most leave us with an ambiguous penal enactment, because the contrary reading is no less plausible. As discussed above, extrinsic legislative materials do not address the interpretative issue before us. Therefore, the rule of lenity would compel us to reject the State's and Attorney General's construction of N.J.S.A. 2C:40-26(c). Compare Rosado, 131 N.J. at 430 (applying the rule), with Regis, 208 N.J. at 452 (declining to apply rule). 25 A-5077-15T3 Based on the foregoing analysis, we are constrained to reverse and remand the sentences of Rene Rodriguez and Elizabeth Colon, as N.J.S.A. 2C:46-20(c) precludes a partial-day, nights- only sentence under N.J.S.A. 2C:43-2(b)(7). As for Eric Lowers and Stephen Nolan, we modify their sentences to provide that the commencement of their service on Friday evening, shall not occur at a time earlier in the day than their release on Sunday evening, to assure credit for two days. We remand for reconsideration of the sentence of Courtney Swiderski, who was sentenced to imprisonment on Saturday and Sunday. Unless she reports at the very beginning of Saturday until the very end of Sunday, she would complete service of only one day each weekend. We close with brief observations about intermittent sentences and the Legislature's efforts to address "the scourge of intoxicated driving . . . ." State v. Denelsbeck, 225 N.J. 103, 120 (2016). The Supreme Court has expressed its "commitment to eliminating intoxicated drivers from our highways . . . ." State v. Hessen, 145 N.J. 441, 458 (1996). The Court has also recognized the Legislature's "increased emphasis on incarceration" to combat driving under the influence by recidivists. Denelsbeck, 225 N.J. at 120. Enactment of N.J.S.A. 2C:46-20 is consistent with that direction. 26 A-5077-15T3 It is not for us to question or endorse the Legislature's policy judgment. We respect it. We are mindful of the devastating toll that impaired driving exacts upon society. We also acknowledge the erosion of the enforcement scheme that results from persons driving while suspended. That is so, even if they are unimpaired when they do so, although too often they are impaired, resulting in tragic consequences. However, the Legislature added N.J.S.A. 2C:46-20 to a Code that, since the Code's enactment in 1978, has authorized intermittent sentences. L. 1978, c. 95. Although not included in the original proposed revision of the New Jersey criminal law, see I The New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission § 2C:43-2 (1971), the Legislature found it appropriate to include intermittent sentencing as a sentencing option. In so doing, it followed other states that, in one form or another, have authorized such dispositions. Nicolette Parisi, Part-Time Imprisonment: The Legal and Practical Issues of Periodic Confinement, 63 Judicature 385 (1980) (surveying various state laws on intermittent sentencing); see also Model Penal Code and Commentaries § 6.02 n.28 (Am. Law Inst. 1985) (noting that Illinois and Michigan, like New Jersey, revised their criminal 27 A-5077-15T3 laws, which were based on the Model Penal Code, to include authority for intermittent sentencing). Intermittent sentences may preserve the deterrent and rehabilitative effect of a custodial sentence, while enabling an offender to continue to be employed, and avoid the financial and emotional burden that would result if he or she could not. See Silva, 236 N.J. Super. at 93; Parisi, 63 Judicature at 391-93. We are unpersuaded that the Legislature, in adopting the stiffened penalties in N.J.S.A. 2C:46-20, intended to bar an intermittent sentence, absent which an offender like Stephen Nolan would lose his job and health insurance, and his wife and child would likely seek public assistance. We also need not decide here whether an intermittent sentence is "easier time" or "harder time" than a continuous one. We presume that depends on the offender's personality and situation. See John M. Castellano, Practice Insights, N.Y. Penal Law § 85.00 (Lexis Nexis 2018) (noting that "[f]or many reasons, not all defendants have the ability to handle the difficult prospect of regular re-incarceration or its attendant stresses"). An intermittent prisoner faces potentially severe consequences for failing to return timely to custody. See N.J.S.A. 2C:29-5 (defining crime of escape to include the unauthorized failure "to return to official detention following 28 A-5077-15T3 temporary leave granted for a specific purpose or limited period"). In sum, the Legislature has provided intermittent sentencing as an option to sentencing courts. We decline to find that it chose to preclude that sentencing option in N.J.S.A. 2C:40-26 absent a clear expression of the intent do so. Reversed and remanded as to Rodriguez and Colon; modified as to Lowers and Nolan; and remanded for reconsideration as to Swiderski. We do not retain jurisdiction. We stay our decision for thirty days, to enable a party to seek any relief from the Supreme Court. 29 A-5077-15T3

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Docket No.: a2268-16
Decided: 2018-04-10
Caption: DWIGHT MORRIS v. T.D. BANK
Status: published
Summary:
MESSANO, P.J.A.D. Plaintiff Dwight Morris appeals from the Law Division's January 6, 2017 order granting summary judgment to defendant TD Bank, N.A., and dismissing plaintiff's complaint asserting claims of negligence, false imprisonment, assault and violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.1 Plaintiff contends the judge erred in deciding as a matter of law that defendant did not breach the duty owed by a business owner to its customers to maintain reasonably safe premises or the duty to exercise reasonable care in the supervision of its employees. He also argues that the judge failed to apply proper summary judgment standards in considering his LAD claim by failing to view the motion evidence in a light most favorable to plaintiff. R. 4:46-2(c). Neither argument is persuasive. We affirm.2 I. Contrary to plaintiff's assertion, the facts are essentially undisputed. Plaintiff, a fifty-nine-year-old African-American male, was wearing a striped collared shirt, black jacket, and grey baseball cap when he entered defendant's Union Township branch to make a withdrawal. Surveillance video shows a second African-American man, wearing white coveralls and 1 In a second order, the judge entered summary judgment in favor of defendant Township of Union's Police Department. Plaintiff has not appealed from that order. 2 Plaintiff makes no argument regarding the other counts in his complaint for false imprisonment and assault. An issue not briefed is deemed waived on appeal. N.J. Dept. of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div. 2015). 2 A-2268-16T1 a hardhat, entered the bank, stood near plaintiff, who thought the man was also completing a withdrawal slip, and approached the teller immediately ahead of plaintiff. This man handed the teller a slip, at which point the teller handed the man a stack of bills, and the man walked out of the bank. Plaintiff advanced to the counter; however, unbeknownst to him, the other man had handed the teller a note saying, "[b]ig bills please this is a hold up." While plaintiff was standing before the teller, another bank employee exited the break room, saw the note and discerned that it said something "in reference to a robbery." She walked back to her desk and called 9-1-1. Under the misimpression that plaintiff was the robber, she told police the robber, an African-American man, was still in the bank. While she was on the phone with the operator, two employees locked the bank's doors. Meanwhile, in this commotion, plaintiff took a seat in the bank's lobby area. Critical to plaintiff's common law negligence claim was the employee's admitted departure from defendant's policy regarding procedures to be followed in the event of a robbery. The employee handbook provided: "FOLLOWING A ROBBERY only AFTER the Robber has left . . . Call Police to Report Robbery." 3 A-2268-16T1 Within four minutes of the 9-1-1 call, police arrived and defendant's employees unlocked the doors. Although plaintiff testified at deposition that police had "their guns pointed towards" him when they were "outside," the video shows their guns were not drawn when they entered the bank. Police asked defendant which way the robber went and plaintiff responded, "[h]e went that way," pointing with his left arm. Union Township Police Officer, Teon Freeman, testified at deposition that he never arrested plaintiff, but interviewed him as a witness. Plaintiff remained calm during the interview and provided information about the suspect, leading Freeman to believe plaintiff "knew he wasn't under arrest." Plaintiff left the bank and returned home approximately ninety minutes after the incident. He recalled during his deposition testimony being "pretty upset about the situation" and "kind of emotional." In February 2015, six months after the robbery, plaintiff sought counseling from Patricia Delgado, a social worker, because he was experiencing "emotional distress," "fear[] of police" and inhibited sleep. Plaintiff attended three counseling sessions with Delgado between February 2015 and April 2015. Delgado testified her "diagnosis within a reasonable degree of social worker probability" was that plaintiff suffered from post-traumatic 4 A-2268-16T1 stress disorder (PTSD). Although conceding she was not an expert in PTSD, Delgado opined that plaintiff's condition was related to the robbery at TD Bank. A. At oral argument before the motion judge and before us, plaintiff submits defendant breached its duty to provide a reasonably safe environment for its customers, including protection against foreseeable criminal activity on and around the business' premises. Plaintiff argues the risk of criminal activity from a third party was foreseeable, noting defendant's policy specifically outlined the procedure to follow during a robbery. As we understand the argument, plaintiff contends defendant breached its duty because it failed to properly train its employees not to call 9-1-1 until the robber left the bank. According to plaintiff, the information provided in the 9-1-1 call led police to treat him as the "perpetrator" and point their weapons at him, resulting in plaintiff's claimed PTSD. We "review[] de novo the . . . entry of summary judgment[,]" Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014), applying "the same standard as the trial court." Conley v. Guerrero, 228 N.J. 339, 346 (2017). Summary judgment is appropriate if the record demonstrates there is "no genuine issue as to any material fact challenged and that the moving 5 A-2268-16T1 party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 135 (2017). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). If no genuine issue of material fact exists, the inquiry turns to "whether the trial court correctly interpreted the law." DepoLink Ct. Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). "The trial court's conclusions of law and application of the law to the facts warrant no deference from a reviewing court." W.J.A. v. D.A., 210 N.J. 229, 238 (2012) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). To sustain a negligence claim, plaintiff must prove: "(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages." Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)). "[W]hether a defendant owes a legal duty to another and the scope of that duty are generally questions of law for the court to decide." Robinson v. Vivirito, 217 N.J. 199, 208 6 A-2268-16T1 (2014). "[W]hether the duty was breached is a question of fact." Jerkins v. Anderson, 191 N.J. 285, 305 (2007) (citing Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994)). The duty an owner or occupier of land owes to others depends on the status of the injured party, i.e., "that of a business invitee, licensee, or trespasser." Estate of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 316 (2013) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993)). While "business premises owners[] are not generally responsible for the criminal acts of others[,]" there may be exceptions "based on an analysis of whether the premises owner exercised reasonable care under the circumstances." Id. at 318. In Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 507, 514 (1997), the Court adopted a "totality of the circumstances" analysis when considering an owner's liability for third party criminal conduct on its premises. This standard encompasses considerations of fairness in imposing a duty, foreseeability of the third party conduct, and "whether the premises owner exercised reasonable care under the circumstances." Desir, 214 N.J. at 318. Here, plaintiff's claimed injury did not result from defendant's breach of a duty to maintain safe premises and 7 A-2268-16T1 protect plaintiff from the criminal conduct of another. Rather, plaintiff argues defendant's employee's breach of internal policies give rise to actionable negligence. However, we have held that "[a] defendant's internal policies - standing alone - cannot demonstrate [an] applicable standard of care." Cast Art Industries, LLC v. KPMG LLP, 416 N.J. Super. 76, 106 (App. Div. 2010). More importantly, the alleged violation of the bank's policy cannot be an actionable breach of defendant's duty under the circumstances of this case. That is so because the evidence is undisputed — the 9-1-1 call was made after the robber left the bank. As a result, plaintiff's assertion that defendant's violation of its policies or its failure to adequately train its employees in those policies was actionable negligence must fail as a matter of law because there was no breach of the duty, if indeed one existed. Plaintiff's claim, as Judge Ciarrocca explained in his comprehensive written decision, essentially seeks to impose liability for "negligent misidentification." Our courts have never recognized such a cause of action. Indeed, in other contexts, we have recognized a strong public policy in support of citizen cooperation with law enforcement, even when that cooperation leads to unexpected consequences. See, e.g., Bayer 8 A-2268-16T1 v. Twp. of Union, 414 N.J. Super. 238, 247-48 (App. Div. 2010) (affirming the dismissal of the plaintiff's § 1983 claim where the plaintiff "was arrested for a bank robbery he did not commit, based on a bank teller's misidentification of him . . . shortly after the crime"); Potter v. Vill. Bank of N.J., 225 N.J. Super. 547, 560 (App. Div. 1988) (observing "few people would cooperate with law enforcement officials if the price they must pay is retaliatory discharge from employment[, which] . . . would have a chilling effect on criminal investigations and law enforcement"). Instead, we have found a potential breach of the duty owed by businesses to their customers when they have failed to summon police. See, e.g., Ventresco v. Gokvlesh Convenience, Inc., 318 N.J. Super. 473, 475-76 (App. Div. 1999) (reversing summary judgment where the plaintiff asked store employee to call police after witnessing a fracas in the store parking lot, but the employee did not respond, and plaintiff was assaulted when he returned to the parking lot); Cassanello v. Luddy, 302 N.J. Super. 267, 273-74 (App. Div. 1997) (holding a jury could find a tavern breached its duty when the plaintiff was attacked by other patrons and the defendant refused to call police); Dubak v. Burdette Tomlin Memorial Hosp., 233 N.J. Super. 441, 458 (App. Div. 1989) (holding "under certain circumstances, a tavern 9 A-2268-16T1 owner is duty-bound to summon the police when it is reasonably foreseeable a patron may otherwise be harmed by the criminal acts of another"). Other jurisdictions have considered and rejected the imposition of tort liability under circumstances more compelling than those presented here. In Davis v. Equibank, 603 A.2d 637, 638 (Pa. Super. Ct. 1992), following a robbery, a bank teller was shown a series of photographs by the police and wrongly identified the plaintiff as the perpetrator, causing plaintiff's arrest and incarceration. Thereafter, the plaintiff filed a negligence claim against the teller and the bank. Ibid. The court found public policy precluded such a claim, noting that [w]ith regard to the provision of information to law enforcement authorities, it is generally recognized that to allow recovery where an individual's provision of incorrect or mistaken information results in the arrest of another would have a substantial chilling effect upon the willingness of citizens to come forward with information relevant to criminal investigations. [Ibid.] The court held "the public interest in investigation of crime outweighs the recognition of a negligence action for negligent identification of a suspect." Id. at 641 (emphasis added); see also Jaindl v. Mohr, 661 A.2d 1362, 1364 (Pa. 1995) (finding the 10 A-2268-16T1 "reasoning of the Superior Court in Davis [v. Equibank] to be sound, and join[ing] the ranks of other jurisdictions who have . . . refused to recognize a cause of action for negligent identification"). Other jurisdictions have also refused to recognize a cause of action for negligent identification/misidentification. See, e.g., Campbell v. City of San Antonio, 43 F.3d 973, 979 (5th Cir. 1995) ("[W]e are unaware of[] any Texas authority holding that [the plaintiff] has a cause of action . . . for . . . a merely negligent misidentification."); Jones v. Autry, 105 F. Supp. 2d 559, 561-62 (S.D. Miss. 2000) (citations omitted) (noting "the law allows a wide latitude for honest action on the part of the citizen who purports to assist public officials" and holding "there is no cognizable cause of action for negligent identification"); Manis v. Miller, 327 So.2d 117, 118 (Fla. Dist. Ct. App. 1976) (declining to impose "liability for false imprisonment upon a witness making an honest, good faith mistake in identifying a criminal suspect where the identification contributes to arrest and prosecution of the suspect"); Foley v. University of Dayton, 181 N.E.3d 398, 401-02 (Ohio 2016) (citations omitted) (noting "[p]ublic policy favors the exposure of crime[,]" and holding "Ohio does not recognize the tort of negligent misidentification"); Shires v. Cobb, 534 P.2d 188, 189 11 A-2268-16T1 (Or. 1975) (declining to recognize a cause of action for negligent misidentification on public policy grounds); see also Restatement (Second) of Torts § 653 cmt. g (Am. Law Inst. 1977) (noting "[t]he exercise of [a police] officer's discretion makes the initiation of . . . prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings"). As a court of intermediate jurisdiction, we "normally defer to the Supreme Court with respect to the creation of a new cause of action." Riley v. Keenan, 406 N.J. Super. 281, 297 (App. Div. 2009). In this case, we refuse to recognize a new cause of action for negligent misidentification that is inconsistent with our State's strong public policy encouraging citizen cooperation with law enforcement officials in the investigation of criminal activity. We affirm the grant of summary judgment dismissing plaintiff's negligence cause of action. B. Plaintiff contends that because he was the only African- American customer in the bank at the time, defendant's employee assumed he was the robber. His misidentification, therefore, evidences defendant's racial animus because the only "common denominator" between plaintiff and the robber was their race. 12 A-2268-16T1 The argument lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Undoubtedly, the LAD provides a cause of action for discrimination based upon race in any "place of public accommodation." N.J.S.A. 10:5-12(f); Turner v. Wong, 363 N.J. Super. 186, 212 (App. Div. 2003). However, there is nothing in the record, except plaintiff's supposition that the bank's employee was racially motivated, that supports his LAD claim. The assumption that the man standing in front of the teller, who had the robber's note on her keyboard at the time, was the robber was entirely logical. No reasonable fact finder could conclude otherwise. Affirmed. 13 A-2268-16T1

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Appellate Division UNPUBLISHED Decisions


Docket No.: a1346-16
Decided: 2018-04-18
Caption: WELLS FARGO BANK, N.A. v. CHRISTINE BUCKLEY
Status: unpublished
Summary:
PER CURIAM Defendants Christine Buckley and William A. Buckley, III appeal from the September 9, 2016 order that denied their motion to dismiss the foreclosure complaint under Rule 4:6-2 for lack of service, and from the November 4, 2016 order that denied their motion for reconsideration. We affirm both orders. On December 30, 2015, Christine Buckley (Christine)1 signed a note in the principal amount of $376,000 to Washington Mutual Bank, F.A. (WaMu) for the purchase of a residential property in Waldwick, New Jersey. Her husband, William A. Buckley, III (William) was not a signatory on the note. On the same day, Christine and William also executed a purchase money mortgage in favor of WaMu. The mortgage was assigned to plaintiff Wells Fargo 1 We refer to the parties by their first names only to avoid confusion because they share the same surname. When we refer to them jointly, it is as "defendants". 2 A-1346-16T1 Bank, N.A., as Trustee for WaMu Mortgage Pass-Through Certificates Series 2006-PR1 Trust (Wells Fargo) and recorded in February 2010.2 Christine resides at the property. William and Christine separated in 2011. William moved to his mother's home in Ramsey and in 2013, rented an apartment in the same town. William did not notify Wells Fargo that he was living at a different address. Defendants defaulted on the mortgage in October 2010. No mortgage payments have been made since then. On March 14, 2013, a notice of intention to foreclose was sent to Christine by regular and certified mail to the address of the mortgaged property. Wells Fargo filed a foreclosure complaint against Christine and William on January 16, 2014. A process server attempted three times in January 2014, to serve the complaint at the address in Waldwick but was not successful. The certification of attempted service and diligent inquiry provided that a note was left for defendants at the property and a notice to tenants was posted. Contact with the Waldwick postmaster and the tax office confirmed defendants' address as that of the mortgaged property. An internet search yielded the same result. 2 JP Morgan Chase Bank, N.A. was the purchaser of the loans and other assets of WaMu from the Federal Deposit Insurance Corporation, acting as receiver. On January 25, 2010, it assigned this mortgage to Wells Fargo, together with the note. 3 A-1346-16T1 Wells Fargo then served the complaint by mail pursuant to Rule 4:4-3(a), sending it regular and certified to the Waldwick property. The certified mail was returned unclaimed. The regular mail was not returned. A default was entered on June 4, 2014, and mailed to defendants. An unopposed final judgment of foreclosure was entered on December 16, 2014, in the amount of $458,852.85. Copies of the motion and final judgment were mailed to defendants by regular and certified mail. The regular mail was not returned and the certified mail was unclaimed. Counsel for Wells Fargo sent a letter dated June 21, 2016, to defendants at the property, advising them that it would be sold at a sheriff's sale on August 5, 2016. The certified mail was unclaimed and the regular mail was not returned. Christine acknowledged that she received the letter on June 23, 2016. She advised William. On July 27, 2016, Christine and William asked to file a motion to dismiss the complaint under Rule 4:6-2, claiming that they were not properly served with it and requesting an order to stay the sheriff's sale scheduled for August 5, 2016. They exercised their two statutory adjournments under N.J.S.A. 2A:17-36, and the sale was rescheduled to September 2, 2016. 4 A-1346-16T1 On August 15, 2016, defendants filed an "emergency" motion to dismiss the complaint under Rule 4:6-2. In the supporting certifications, Christine alleged she did not receive a copy of the foreclosure complaint nor any of the other foreclosure related documents except for the letter in June 2016, advising that the property would be sold at a sheriff's sale. William certified that he had been residing in Ramsey since 2011. He also claimed not to have received a copy of any of the foreclosure documents. Wells Fargo filed opposition, contending that it properly served the complaint by mail under Rule 4:4-3(a) after conducting a diligent inquiry. Defendants' motion to dismiss was denied on September 9, 2016. The court found that "a reasonable and good faith attempt was made to effectuate personal service" based on the three attempts by the process server. The court also found plaintiff made diligent inquiry to determine defendants' "place of abode" by contacting the postmaster and conducting tax and internet searches, all of which confirmed defendants' last known address was the mortgaged property. Because the pleadings and notices sent by regular mail were not returned, the court held that service was effective under Rule 4:4-3(a) and that defendants' allegations did not "nullify the effective service made by simultaneous 5 A-1346-16T1 mailing." The court also noted that defendants did not inform plaintiff that William had moved, as required by the mortgage. Defendants' motion for reconsideration was denied on November 4, 2016. At oral argument, Christine advised the court that she received a letter telling her ownership of the mortgage was assigned to MTGLQ Investors LP as of August 29, 2016. Defendants argued they had no obligation to notify Wells Fargo about a change in address because their "lender" under the mortgage was WaMu, which had gone out of business years earlier. The court found that defendants' claims were self-serving and were made "without any corroborating evidence." It observed that defendants could have informed their lender's successors or assigns of any change of address because the mortgage was a transferable document, citing to [Uniform Commercial Code Comment, cmt. 9 on N.J.S.A. 12A:9-203]. It rejected defendants' argument based on an unpublished opinion from this court. Defendants raised the same arguments about service that were made in the underlying motion. The property was sold at a sheriff's sale on December 2, 2016. On appeal, defendants contend that the court erred in denying their motion to dismiss the complaint and for reconsideration because service of the complaint was "insufficient," the final 6 A-1346-16T1 judgment should have been vacated, and they were denied equal access to the courts. They contend there were disputed issues of fact and credibility issues, the court violated the rule against hearsay, the court lacked subject matter jurisdiction, and the court abused its discretion based on certain unreported cases. Defendants also contend that Wells Fargo had no authority to foreclose the loan that was transferred to a different servicer. We find no merit in these issues. We defer to the trial court's factual findings, which are binding on appeal when supported by adequate, substantial, credible evidence. Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "The requirements of the Rules with respect to service of process go to the jurisdiction of the court and must be strictly complied with." Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 204 (App. Div. 1990) (quoting Driscoll v. Burlington- Bristol Bridge Co., 8 N.J. 433, 493 (1952)). "'[S]ubstantial deviation from service of process rules' typically makes a judgment 7 A-1346-16T1 void." M & D Assocs. v. Mandara, 366 N.J. Super. 341, 353 (App. Div. 2004) (quoting Jameson v. Great Atl. and Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003)). In a foreclosure case, service can be obtained by satisfying the requirements of Rule 4:4-3 or Rule 4:4-5. Rule 4:4-3 applies where "personal service cannot be effected after a reasonable and good faith attempt, which shall be described with specificity in the proof of service required by R. 4:4-7". R. 4:4-3(a). In that case, "service may be made by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, to the usual place of abode of the defendant or a person authorized by rule of law to accept service for the defendant." Ibid. However, service by mail is effective only "[i]f it appears by affidavit satisfying the requirements of Rule 4:4-5(b) that despite diligent effort and inquiry personal service cannot be made." R. 4:4-4(b)(1). Service made by mail without satisfying the affidavit requirement under Rule 4:4-4(b)(1) is ineffective and will not support the entry of default, unless the defendant "answers the complaint or otherwise appears in response thereto." R. 4:4-4(c). Thus, there must be "a reasonable and good faith attempt" to serve defendant personally and a diligent inquiry to determine their "place of abode" before serving defendant by mail 8 A-1346-16T1 under Rule 4:4-3. See U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94, 106 (App. Div. 2016). Here, we agree with the trial court that service was proper under Rule 4:4-3(a) because the record supported the good faith and reasonable efforts made by Wells Fargo in attempting personal service upon defendants and then by mailing a copy of the complaint to the property. Christine did not dispute that she lived at the property. William never advised the lender that he had a different address. Plaintiff made a diligent inquiry to find Christine and William through the postmaster, tax office and internet after the process server was not successful in personally serving the complaint. Then, the complaint was served in accord with Rule 4:4-3(a) at the property where Christine actually resided and where William last resided by mailing a copy of the complaint to that address. The certified mail was unclaimed but the regular mail was not returned. That was effective service under Rule 4:4- 3(a). Christine's explanation that she was having an issue with one of the mail carriers did not plausibly explain why she received the June 2016 notice of sheriff's sale and not any of the other prior notices. Stated succinctly, Christine did not substantiate 9 A-1346-16T1 her claim of lack of notice by any evidence other than her own bald assertion. Defendants' citation to the unreported opinion from this court is unavailing. See R. 1:36-3 (providing that "[n]o unpublished opinion shall constitute precedent or be binding upon any court"). Defendants did not challenge that the mortgage was assigned to Wells Fargo and recorded. They offered no support for their contention that they were only obligated to advise the original lender if they moved. Additionally, in the context of the financial transaction involved here, we find it implausible that the lender would self-impose such a restriction. The law firm of Phelan Hallinan Diamond & Jones was substituted as counsel for plaintiff in August 2015. Wells Fargo's attorney represented that the records of the prior firm were transferred to it. As with their other claims, defendants cite no support for their contention that those records no longer constitute business records under N.J.R.E. 803(c)(6). We agree that defendants' motion for reconsideration did not satisfy the applicable standard for relief. "[A] trial court's reconsideration decision will be left undisturbed unless it represents a clear abuse of discretion." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 10 A-1346-16T1 2015). Reconsideration is appropriate only where "1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). Here, the court did not fail to consider the evidence nor was the court's decision based on something incorrect or irrational. Defendants' original motion did not raise the issue that Wells Fargo may have assigned the final judgment to another entity in August 2016. See Naik v. Naik, 399 N.J. Super. 390, 395 (App. Div. 2008) (stating R. 4:49-2 "is not the vehicle for raising a new issue"). Defendants do not explain how this relates to the issue about service of process nor is there a prohibition on the assignment of a judgment. See N.J.S.A. 2A: 25-1. After carefully reviewing the record and the applicable legal principles, we conclude that defendants' further arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 11 A-1346-16T1

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Docket No.: a1670-16
Decided: 2018-04-18
Caption: GLASSBORO GUARDIANS v. BOROUGH OF GLASSBORO GLASSBORO GUARDIANS
Status: unpublished
Summary:
PER CURIAM In these appeals, we consider whether the trial judge erred in finding a 2004 ordinance, which required all rental properties within the municipality to "provide a minimum of one off-street parking space for every one authorized occupant 18 years of age or more," to be arbitrary and capricious. Because we agree the record fails to disclose a rational reason for the ordinance, we affirm. Glassboro Guardians, a non-profit corporation comprised of individuals who own rental properties within the municipality, challenged Ordinance No. 379-5(I), adopted on July 27, 2004, which declares in subsection (1): Every rental facility shall provide a minimum of one off-street parking space for every one authorized occupant 18 years of age or more, as approved by the Housing Officer pursuant to the following requirements. For owner- occupied rental facilities, such requirements shall be in addition to those spaces required for residential use other than the rental facility portion of the premises. Said parking spaces shall be a minimum of 10 feet by 20 2 A-1670-16T3 feet. Parking areas must be maintained and configured so as not to create a safety hazard to the tenants using the areas or to any drivers or pedestrians on the public right- of-way, and in such a manner that does not cause inconvenience to the occupants. We previously vacated a summary judgment entered in Guardians' favor and remanded for further consideration as to whether there was a rational basis for the ordinance's adoption. Glassboro Guardians v. Borough of Glassboro, No. A-4001-12 (App. Div. Nov. 5, 2014). On remand, Guardians claimed the ordinance: (1) was arbitrary, capricious, and unreasonable; (2) was improperly enacted under the municipality's police power; (3) violated the equal protection clause of the New Jersey Constitution as well as the New Jersey Civil Rights Act, N.J.S.A. 10:6-2; and (4) was void due to the alleged involvement of a councilman with a conflict of interest. The trial judge ruled, based on factual findings made at the conclusion of a three-day trial, that, among other things, "[t]here has been adduced no reason which was articulated contemporaneous with the governmental action" and, consequently, the ordinance was arbitrary, capricious, and unreasonable. In appealing, the municipality argues:1 I. THE TRIAL COURT ERRED IN DECLARING THE ORDINANCE VOID AND UNENFORCEABLE ON THE BASIS 1 We have renumbered the municipality's arguments. 3 A-1670-16T3 THAT IT WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE. II. [GUARDIANS] DID NOT MEET ITS HEAVY BURDEN OF DEMONSTRATING THE ABSENCE OF ANY RATIONAL BASIS FOR THE ORDINANCE. III. [THE MUNICIPALITY] ESTABLISHED THE CONTEMPORANEOUS RATIONAL BASIS FOR THE ORDINANCE THROUGH THE TESTIMONY OF ITS COUNCIL MEMBERS AND HOUSING INSPECTION OFFICIALS. IV. THE TRIAL COURT ERRED IN CONCLUDING THAT THE ORDINANCE IS INHERENTLY UNREASONABLE BECAUSE IT REQUIRES A PARKING SPACE FOR EVERY TENANT AND DOES NOT PROVIDE A MEANINGFUL METHOD TO OBTAIN RELIEF FROM THE REQUIREMENT. In a separate appeal, Guardians questions the trial judge's failure to find the ordinance invalid on the other challenged grounds. Guardians contends: I. THE [TRIAL COURT] ERRED IN CONCLUDING THAT IT WAS APPROPRIATE FOR THESE PARKING REGULATIONS FOR PRIVATE PROPERTY IN THE RENTAL HOUSING ORDINANCE TO BE PLACED IN A GENERAL POLICE POWER ORDINANCE AND NOT IN A ZONING ORDINANCE. II. THE [TRIAL COURT] ERRED IN CONCLUDING THAT THE RENTAL PARKING ORDINANCE DID NOT VIOLATE THE NEW JERSEY EQUAL PROTECTION CLAUSE AND THE NEW JERSEY CIVIL RIGHTS ACT. III. THE [TRIAL COURT] ERRED IN CONCLUDING THAT THE RENTAL HOUSING ORDINANCE SHOULD NOT BE INVALIDATED BECAUSE OF THE ACTIONS OF COUNCILMAN D'ALESSANDRO. 4 A-1670-16T3 Because we affirm the trial judge's determination that the ordinance is arbitrary, capricious, and unreasonable, we need not reach the alternative grounds suggested by Guardians. Our standard of review counsels that we not interfere with a trial judge's fact findings when supported by adequate, substantial and credible evidence, unless the findings would work an injustice. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We grant such deference to judge- made findings because the trial judge has the opportunity to hear and see all the witnesses and to review all evidence in the first instance, thus allowing for a better "feel" of the case than we can gain from a static record. Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132-33 (1997). For this reason, credibility determinations are entitled to particular deference. Ibid. We also start with the premise that municipal ordinances are presumed valid; consequently, a challenger has a heavy burden in seeking to overturn them. Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 447 (1980); see also Berk Cohen Assocs. at Rustic Village, LLC v. Borough of Clayton, 199 N.J. 432, 445- 47 (2009). To overturn an ordinance, a challenger must clearly show the ordinance is arbitrary, capricious or unreasonable, Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998), because "the underlying policy and wisdom" of an 5 A-1670-16T3 ordinance is assumed to reside with the governing body, not the courts, which are strangers to the controversy, Quick Chek, 83 N.J. at 447. For these reasons, an ordinance will not be set aside if any set of reasonable facts justifies the ordinance. Ibid. In considering a challenge, a court must examine "the relationship between the means and ends of the ordinance." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 290 (2001). Although a court will not inquire into a municipality's motives when the ordinance is valid on its face, a court will weigh evidence about the legislative purpose "when the reasonableness of the enactment is not apparent on its face." Riggs v. Long Beach Township, 109 N.J. 601, 613 (1988). Reviewing the ordinance facially, the trial judge observed the lack of any "introductory language" or "statement of reasons" justifying or even just explaining why it was enacted. Because of the lack of such an explanation, the trial judge examined its legislative history but found that work session and council meeting minutes also offered "no statement of reasons, elucidation of issues raised or problems sought to be solved . . . virtually no discussion of substance of the parking ordinance, no public comment by council members and no comment from the public." The record does show the discussion of the ordinance in one instance: a May 6 A-1670-16T3 6, 2004 council meeting where a councilperson drew a distinction between how the ordinance would affect "college rental" and "family rental" parking, stating that a college rental needs one space per tenant while a family rental could obtain a "parking decal" to park on the street.2 As additional evidence that the ordinance was enacted without a reasonable basis, Guardians presented the testimony of two representatives – rental property owners in Glassboro – and an expert. The trial judge accepted as credible the representatives' testimony which suggested the ordinance was enacted to control college student renters. The trial also judge found credible testimony that in various conversations the witnesses had with municipal officials no parking problem was ever mentioned as a reason for the ordinance's enactment. The judge relied on testimony regarding conversations the witnesses had with council members and administrators where a parking problem was never identified or discussed as a reason for the ordinance's enactment. In addition, the trial judge found credible references to: the municipality's claimed intent to control "animal houses"; a "stack of police reports" relating to college renters; residents' complaints about 2 Even though there was a dispute about the identity of the speaker of these comments, no one disputes the comments were made by a member of the municipal council. 7 A-1670-16T3 college renters; and the "inadequate 'strictness' of the state rental code" as reasons for the enactment of the parking ordinance as the means for gaining control of college student renters. The judge found this testimony credible because it was corroborated, "albeit reluctantly," by the municipality's witnesses. The municipality relied on the testimony of an expert and numerous town officials. The expert testified there was a "parking problem" in the municipality based upon his personal observations. And the expert extrapolated the reasons for the ordinance, citing an increased enrollment at Rowan University, an increased number of vehicles in town, and alleged safety concerns and tenant convenience.3 The judge rejected this testimony because it was uncorroborated by any reference in the record. The judge also found testimony by council members serving when the ordinance was enacted to be unhelpful to the municipality's position because those council members claimed "no recollection of why [the ordinance] was passed or what problem they were trying to solve [and] . . . recalled no public outcry or even a whimper that prompted their action."4 The trial judge noted there was only a 3 The expert testified that the population has fluctuated around 19,000 residents over since 2000. 4 One council member testified the ordinance was to ensure the "environment was not overflowing with cars and that cars would not 8 A-1670-16T3 "general denial" that the ordinance was enacted to "constrict college rentals." The municipality also argued the reasons for enacting the current ordinance are set out in its preceding 1972 ordinance,5 but that ordinance only states that it was enacted "after much study" without explanation as to what that study involved or what it revealed. Finding an absence of a purpose for the ordinance – and, if there was a purpose, it was more than likely to combat concerns about college renters – the judge concluded the ordinance was arbitrary, capricious and unreasonable. We agree, concluding that the jduge's findings were supported by credible, adequate, and substantial evidence in the record. The municipality additionally challenges the fact that the trial judge applied a standard that required a contemporaneous reason be given for municipal action. This argument misapprehends the trial judge's holding. The judge, in concluding the ordinance's adoption was arbitrary, capricious, and unreasonable, found the record lacked any reason or purpose "articulated contemporaneous be parking on the streets" but does not recall any member of the public coming to council meetings to complain about parking issues in the town. 5 Similar to the current ordinance, the 1972 ordinance required every residential unit have one parking spaces for every three occupants seventeen years or older. 9 A-1670-16T3 with the governmental action." But the judge did not create a standard imposing such a requirement; rather, the judge found the lack of any contemporaneous reasoning as evidence that discredited the municipality's witnesses assertion that there was a reason and as giving rise to an inference that the ordinance lacked a rational basis and was merely a means to unlawfully limit college renters in the municipality. As the judge determined, the "explanations" offered by the municipality were "not grounded in any facts of record and in fact, are at odds with the inability of any witness to recall or relate the actual basis for the government action." The trial judge also explained that the legal arguments and expert testimony presented by the municipality would not be "the least bit objectionable if there had been some antecedent reference to those concerns" but the record lacked "any reasons for the enactment . . . at the time it was enacted." In essence, the trial judge rejected the testimony of the municipality's witnesses and expert as not credible because there was nothing in the record prior to trial corroborating the fact that there was an alleged parking problem in the municipality and concluded that such reasoning was invented for this litigation. These are determinations based on the evidence presented and are deserving of our deference. 10 A-1670-16T3 It is also enlightening that the municipality previously tried to limit college renters by requiring rentals in certain areas to be occupied by "traditional family units" or a functional equivalent. The Supreme Court ruled that college students satisfying stability and permanency requirements satisfied the "single housekeeping unit" standard. Glassboro v. Vallorosi, 117 N.J. 421, 431-32 (1990). In that ordinance, the municipality included a statement of purpose which explained its desire to control "groups of individuals whose living arrangements, although temporarily in the same dwelling unit, are transient in nature and do not possess the elements of stability and permanency which have long been associated with single family occupancy" and that "[Rowan University] maintains substantial dormitory and apartment facilities for students . . . [meaning] ample housing exists within the Borough for college students . . . ." Id. at 423-24.6 Thus, where the municipality may have said too much last time, it certainly said too little this time. In any event, we defer to the 6 In dicta, the Court observed that "[t]raffic congestion can appropriately be remedied by reasonable, evenhanded limitations upon the number of cars which may be maintained at a given residence." Vallorosi, 117 N.J. at 433 (quoting State v. Baker, 81 N.J. 99, 111 (1979)). As the trial judge recognized, if some credible evidence was presented to explain that the municipality enacted the ordinance for the purpose of combatting traffic congestion, or parking issues, it would be upheld so long as it was implemented in an evenhanded manner. 11 A-1670-16T3 trial judge's determination that there is insufficient persuasive evidence in the record to support the ordinance's enactment. Affirmed. 12 A-1670-16T3

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Docket No.: a1961-15
Decided: 2018-04-18
Caption: DIVIAION OF CHILD PROTECTION AND PERMANENCY v. S.T.
Status: unpublished
Summary:
PER CURIAM These two matters, which have been consolidated for the purpose of a single opinion, involve appeals by S.T. (Susan)1 of Family Part orders finding that she abused or neglected her then two-year daughter C.T. (Claudia); and that her parental rights to Claudia, then five-years-old, is terminated.2 Our review of the trial judges' decisions are limited. We defer to the expertise of Family Part judges, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we are bound to their factual findings when supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. 1 We use acronyms and pseudonyms to protect the identities of the parties involved. 2 The order also terminated the parental rights of the father D.M., which is not the subject of this appeal. 2 A-1961-15T3 v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In A-1961-15, we consider the judge's oral decision that Susan's drug addiction placed Claudia in an extreme risk of harm, which constituted abuse or neglect in accordance with N.J.S.A. 9:6-8.21(c)(4). The judge noted that she did not attend the second day of the two-day trial because she "advised that she would not need a ride to court as, due to the fact that she didn't want to waste her day in court and planned, instead, to go to the mall with her friend or to go to Shop-Rite." Susan did not testify nor refute the Division's testimony. The judge pointed to the Division's credible testimony detailing Susan's extensive history of substance abuse; causing her to spend almost fifty dollars a day on heroin as opposed to purchasing food, clothing, doctors' visits, etc. for Claudia. The judge reasoned: [Susan] admitted to the Division workers on multiple occasions that she's a heroin addict . . . . A drug addict presents a danger to their child. A drug addict who uses on average five bags of heroin a day while in a primary caretaker role for their child is a danger to that child. He concluded that Susan "continued to put her desire to go out, use drugs, and have a social life generally over the needs of the 3 A-1961-15T3 child[] . . . [along with] her heroin addiction put[ting] the two- year-old [Claudia] at substantial risk of harm." On appeal, Susan contends the judge's finding of abuse and neglect is not supported by sufficient evidence that Claudia was in substantial risk of harm within the meaning of Title 9. She argues "there was no demonstration of a connection between [her] use of heroin and any substantial risk of harm to [Claudia]. At most, [she] . . . was merely an observer . . . [and] not directly affected by [her] conduct." She further contends the judge violated principles of fundamental fairness when it failed to convert the case to a termination of parental rights under Title 30. We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We agree with Division and the Law Guardian that the judge's finding of abuse or neglect was based on credible substantial evidence and, for that reason, we must defer to those findings. In A-2713-16, Susan's drug addiction was also the centerpiece of the action. This time a different judge, applying the four- prong best interests of the child test, N.J.S.A. 30:4C-15.1(a)(1)- (4), issued a thirty-eight page written decision3 finding that the 3 Also including the termination of D.M.'s parental rights. 4 A-1961-15T3 Division proved by clear and convincing evidence that Susan's parental rights to Sarah should be terminated. In regards to prong one, continued endangerment of the child's safety and health, N.J.S.A. 30:4C-15.1(a)(1), the judge stated "the Division has unquestionably demonstrated that [Susan] placed [her daughter] at substantial risk of harm" as evinced by the Division's extensive involvement with Susan's addiction and her multiple relapses. For prong two, inability to eliminate the harm facing the child or provide a safe and stable home, N.J.S.A. 30:4C-15.1(a)(2), the judge credited the testimony of the Division's expert Dr. Frank Dyer over the testimony of Susan's two experts. Though she noted that "none of the three experts recommended reunification at this time and each acknowledged that [Susan] would need continued substance abuse treatment and significant mental health treatment." Summarizing Dr. Dyer's testimony, the judge remarked: Dr. Dyer concluded that while [Susan] is high average in intellectual functioning, her psychological profile is "extremely negative with respect to parenting capacity." He explained that [Susan] has an "extremely severe drug problem that so far proved refractory to multiple attempts at rehabilitation" and that her use of PCP is "particularly worrisome, as this substance has been known to precipitate psychotic episodes in its users." Dr. Dyer noted that [Susan] has little capacity to resist the urge to use drugs; has "extremely poor interpersonal 5 A-1961-15T3 relations[;]"[] is "prone to respond to minor frustrations and difficulties with irritation and anger[;]"[] and has a "low threshold for physical aggression.["] Dr. Dyer noted that "[t]he severity and chronicity of [Susan's] drug problem and emotional problems present enormous obstacles to treating her [and] [t]his would be true even if [Susan] had been cooperative with attempts to provide services for her; however, her history is one of poor compliance." He continued that "she remains much too disorganized, immature, emotionally unstable, socially alienated, and vulnerable to drug relapse to be entrusted with the care of any child." Moreover, "[h]er prognosis for acquiring adequate parenting capacity within the foreseeable future is extremely poor, given her history and the severity of her problems." Dr. Dyer found that [Susan] was not fit to care for Claudia and Claudia "would be [at] extremely high risk of medical neglect, as well as [at] risk of ordinary neglect, in light of [Susan's] emotional instability and unreliability." The judge thus reasoned that Susan was unable to adequately address the risk of harm she created that resulted in Claudia's removal, and is unlikely to do so in the near future. Addressing prong three, whether the Division made reasonable efforts to help Susan correct the problems that lead to her daughter's harm and if it considered alternatives to termination, N.J.S.A. 30:4C-15.1(a)(3), the judge determined that the evidence demonstrated the Division offered multiple services to assist Susan; it attempted to prevent the initial removal of Claudia with a protection plan; it advocated on Susan's behalf for several 6 A-1961-15T3 treatment programs; and it investigated and ruled out all possible alternative placements. And as to prong four, will termination of parental rights do more harm than good, N.J.S.A. 30:4C-15.1(a)(4), the judge agreed with Dyer's testimony that, "although Claudia did have a 'degree' of attachment to her mother, she considers her resource parents as her 'primary source of security, nurturance, and structure rather than her mother.'" She also accepted his opinion "that while the resource parents could mitigate any harm that resulted from termination of parental rights, Susan lacked the capacity to mitigate the loss Claudia would experience if contact with the resource parents was severed." In challenging the judge's decision, defendant contends the finding that the Division satisfied its burden under the best interests test was not supported by credible evidence. Specifically, she argues there was no proof that her past drug use harmed Claudia, or that she would harm Claudia in the future given that she established at the time of trial she was being treated. She also contends the Division did not prove that it offered her the appropriate services to remediate both her substance abuse and mental health issues. Susan further contends termination of her parental rights would damage her loving relationship with her daughter. Similar to our conclusion regarding abuse or neglect, 7 A-1961-15T3 we find insufficient merit in Susan's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Credible substantial evidence supported the termination of Susan's parental rights to Claudia and, for that reason, we must defer to the judge's findings. Affirmed. 8 A-1961-15T3

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Docket No.: a3011-16
Decided: 2018-04-18
Caption: STATE OF NEW JERSEY v. JESSICA LEVINE
Status: unpublished
Summary:
PER CURIAM Defendant Jessica Levine appeals from the denial of her petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm. Defendant pled guilty to fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). The court sentenced defendant in accordance with her plea agreement to a one-year period of non- custodial probation. Defendant did not file a direct appeal from her conviction and sentence. The charges against defendant arose from an argument she and her boyfriend Edgardo Flores had on September 22, 2012, that he reported to the police. On that date, the responding police officer spoke with defendant who denied possessing a knife and using it to threaten Flores. According to the officer, Flores told police that defendant "threatened to kill him as she stabbed the kitchen table with a knife several times." When defendant pled guilty on April 15, 2013, she confirmed while giving her factual basis that she had a knife in her possession that night "with the purpose of using it in circumstances that were not manifestly appropriate." Defendant also confirmed that she understood the charges against her and that she was pleading guilty because she was "in fact" guilty of the offense. The court accepted her plea and later imposed its sentence.1 Defendant filed a PCR petition on June 22, 2016, in which she argued that trial counsel "failed to investigate possible defenses 1 At the time of her sentencing, defendant was living at home with Flores and their three children. 2 A-3011-16T3 [and] fail[ed] to interview readily available defense witnesses." In addition, she contended that counsel did not properly advise her about "the offense to which she" had pled to, and did not "establish an adequate factual basis for the plea." Finally, she claimed that "[b]ecause of the cumulative effect" of counsel's error she was entitled to relief. In support of her PCR petition, defendant did not file her own certification. Instead, she filed a certification from Flores. In the certification, he described the events that led to defendant's arrest, and stated that defendant grabbed a knife to use to remove a battery from her cell phone that Flores broke that night while they argued. According to Flores, defendant "got frustrated with the phone and [their] argument and stabbed the table with [the] knife." At no time did defendant direct the knife toward Flores or threaten him with any harm. When their argument escalated, defendant demanded that he leave the home and, out of concern for his own well-being, Flores contacted the police and claimed that defendant threatened him with the knife. As a result of that statement, the police arrested defendant. Flores claimed that he later told prosecutors that he had lied and "wanted to withdraw the charges." The prosecutor would not comply, and thereafter Flores attended each of defendant's court appearances. According to Flores, defendant's trial counsel never spoke to him. 3 A-3011-16T3 Moreover, Flores confirmed that had he been asked to testify, he would have stated that what he told the police was a lie. Judge Richard F. Wells denied defendant's petition by order dated March 20, 2017, after considering oral argument on March 17, 2017 and placing his reasons on the record that day. The judge initially reviewed the applicable law, and in so doing, cited to State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014), stating that even if trial counsel erred, a defendant whose petition challenges a conviction after a guilty plea must establish that counsel erred, and that "but for counsel's errors, [defendant] would not have pleaded guilty and would have insisted on going to trial." In addition, any allegation that counsel failed to investigate must be supported with "the facts that an investigation would have revealed, supported by affidavits or certifications. . . ." Judge Wells turned his attention to defendant's plea and citing to State v. Lee, 96 N.J. 156, 163 (1984) and State v. Wright, 96 N.J. 170, 172-73 (1984), he rejected her argument that relief was warranted because her factual basis did not include an expression of any intent or threat to cause harm. According to Judge Wells, "intent is irrelevant" and he found no issue with the contents of defendant's factual basis after analyzing it in light of N.J.S.A. 2C:39-5(d). He concluded defendant's plea colloquy 4 A-3011-16T3 met the elements of the offense, and that there was no indication that defendant did not understand the charge to which she was voluntarily pleading guilty. The judge next addressed defendant's claim that trial counsel failed to investigate, specifically not speaking with Flores and having him testify at a trial. After considering Flores' certification, the judge was satisfied that defendant did not establish that counsel erred and, even if she did, that defendant would have rejected the plea offer of non-custodial probation and would have exposed herself to eighteen months in prison by going to trial and relying solely upon Flores' recantation of his original statement. Judge Wells also noted Flores maintained that defendant possessed the knife and stabbed the table several times while in an argument with Flores, and observed that at her plea hearing, defendant confirmed she was in fact guilty of the crime charged. This appeal followed. Defendant presents the following issues for our consideration in her appeal. POINT I DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING WHERE SHE PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL BASED UPON TRIAL COUNSEL'S FAILURE TO INTERVIEW THE ALLEGED VICTIM. 5 A-3011-16T3 POINT II IN LIGHT OF THE RECENT UNITED STATES SUPREME COURT DECISION IN LEE V. UNITED STATES, THE PCR COURT ERRED IN HOLDING THAT RELIEF SHOULD BE DENIED BECAUSE OF THE LIKELIHOOD OF CONVICTION. We are not persuaded by these arguments and affirm. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42, 49 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687, 694. This two-prong analysis applies equally to convictions after a trial or after a defendant pleads guilty. In the context of a PCR petition challenging a guilty plea, the first Strickland prong 6 A-3011-16T3 is satisfied when a defendant establishes a reasonable probability he or she would not have pled guilty but for counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012). The second prong is met when a defendant establishes a reasonable probability he or she would have insisted on going to trial. Ibid. "When a defendant has entered into a plea agreement, a deficiency is prejudicial if there is a reasonable probability that, but for counsel's errors, the defendant would not have decided to forego the plea agreement and would have gone to trial." State v. McDonald, 211 N.J. 4, 30 (2012) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985); State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)). We conclude that defendant failed to make a prima facie showing of ineffectiveness of counsel within the Strickland-Fritz test. We find her arguments to the contrary to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, there is nothing in the record to indicate that defendant was not aware of Flores' recantation2 before she pled guilty, which is established by the fact that he supported defendant and attended each of her court 2 As we have previously observed, even if newly discovered, recantations are perceived as an inherently suspect and unreliable form of evidence. State v. Hogan, 144 N.J. 216, 239 (1996). See also State v. Carter, 85 N.J. 300, 314 (1981) (addressing test for determining when the discovery of such evidence warrants a new trial). 7 A-3011-16T3 appearances. Even if she was not aware of the recantation, the record does not contain any assertion by defendant that she would not have pled guilty if she had known about it. We therefore affirm substantially for the reason expressed by Judge Wells' cogent decision and agree that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Affirmed. 8 A-3011-16T3

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Docket No.: a3348-16
Decided: 2018-04-18
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.J.A.
Status: unpublished
Summary:
PER CURIAM Defendants S.J.A. and P.B.G. are the parents of seven children who were born in 2005, 2006, 2008, 2011, 2012, 2013 and 2016. Judge Timothy W. Chell presided over a two-day guardianship trial, after which he found that the evidence warranted termination of both defendants' parental rights to all but the oldest child. Both defendants appeal, arguing the judge erred in finding clear and convincing evidence on any of the four prongs of the applicable statutory test, N.J.S.A. 30:4C-15.1; defendant P.B.G. also argues 2 A-3348-16T2 he "should not be penalized for the actions of S.J.A."1 We find insufficient merit in these arguments, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth by Judge Chell in his thorough and well-reasoned written decision. Affirmed. 1 All the children but two – the two youngest, L.J.A. and J.A. – support defendants' arguments. 3 A-3348-16T2

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Docket No.: a3535-15
Decided: 2018-04-18
Caption: JACQUELINE NGUYEN v. JOEL SELTZER
Status: unpublished
Summary:
PER CURIAM Plaintiff appeals from an order dated March 30, 2016, dismissing her legal malpractice claim against defendant, her former attorney. After a bench trial, Judge Mark P. Ciarrocca issued an oral opinion on March 30, 2016, finding that defendant was a credible witness, but plaintiff, her husband and her expert witness were not credible. Based on the facts as he found them, the judge concluded that plaintiff did not prove defendant committed malpractice. We affirm for the reasons stated in Judge Ciarrocca's opinion. We add the following comments. On an appeal from a bench trial, our review is limited. We must defer to the trial judge's findings, as long as they are supported by substantial credible evidence. Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974). We owe special deference to the judge's evaluation of witness credibility. Cesare v. Cesare, 154 N.J. 394, 412 (1998). After reviewing the record, we find no basis to disturb Judge Ciarrocca's decision. Plaintiff's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 2 A-3535-15T2

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Docket No.: a3677-13
Decided: 2018-04-18
Caption: STATE OF NEW JERSEY v. DWAYNE E. DRICKETTS
Status: unpublished
Summary:
PER CURIAM A grand jury indicted defendant Dwayne E. Dricketts and his co-defendant, Tyrell Jackson, for first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(a) (count three). Following severed jury trials, defendant and Jackson were convicted on all counts.2 The trial judge sentenced defendant to a forty-five year term of imprisonment with an eighty- five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The charges against defendant and Jackson stemmed from the shooting death of Dana Reid on May 9, 2005. The State presented evidence at trial that defendant and Jackson were engaged in a drug dealing operation headed by defendant, Jackson was defendant's close friend and the drug operation's "enforcer," defendant ordered Jackson to kill Reid after Reid failed to pay for drugs defendant gave him to sell, and Jackson shot and killed Reid. Witnesses heard defendant threaten to shoot Reid, and a witness identified Jackson as the person who shot him. 2 On direct appeal, we affirmed Jackson's conviction. State v. Jackson, No. A-2372-11 (App. Div. Sept. 12, 2016). Our Supreme Court denied certification. State v. Jackson, 230 N.J. 556 (2017). 2 A-3677-13T2 On appeal, defendant raises the following contentions: POINT I DEFENDANT'S CONVICTION OF MURDER MUST BE REVERSED. THE TRIAL JUDGE'S INSTRUCTIONS WERE HOPELESSLY WRONG IN THAT THEY CONFLATED THREE SEPARATE THEORIES OF LIABILITY: MURDER AS AN ACCOMPLICE; CONSPIRACY TO COMMIT MURDER; AND GUILT OF THE SUBSTANTIVE OFFENSE OF MURDER AS A CO- CONSPIRATOR UNDER STATE V. BRIDGES[, 133 N.J. 447 (1993)]. (Partially Raised Below). POINT II DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL WHEN THE TRIAL COURT IMPROPERLY ADMITTED A HOST OF [N.J.R.E.] 404(b) EVIDENCE THAT PRESENTED HIM TO THE JURY IN AN UNFAVORABLE LIGHT. (Partially Raised Below). POINT III THE AGGREGATE [FORTY-FIVE] YEAR TERM IMPOSED WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES, AND COUNT TWO WAS REQUIRED TO MERGE INTO COUNT ONE FOR SENTENCING PURPOSES. We affirm defendant's conviction, but remand for resentencing. I. Reid's girlfriend, F.B.,3 testified at trial that at approximately 12:30 a.m. on May 9, 2005, she and Reid were walking down Madison Avenue in Elizabeth toward East Grand Street on their 3 We use initials to identify the witnesses involved in this matter to protect their identity. 3 A-3677-13T2 way to a restaurant on Broad Street. She heard footsteps, turned her head to look behind her, and saw a man running toward them holding a gun out in his right hand and aiming towards them. Reid said to her, "baby, get down," and threw himself on top of her. F.B. heard five shots and saw that Reid had been struck. She tried to resuscitate him, but he was dead by the time help arrived. She later identified Jackson as the person who shot Reid. L.P. testified that in 2005, she lived in the second floor apartment of a house in Elizabeth called the "Honeycomb" or "the Honeycomb Hideout" because "it was a hideout for drug dealing." Numerous people stayed in the apartment, including F.B., to sleep or get high. L.P. was not sure if F.B. was a prostitute, but they used drugs together. F.B. introduced L.P. to Reid. L.P. allowed drug dealers to stay in her apartment to sell drugs in order to support her own drug habit. In the beginning, there were five or six dealers, and at the "peak," there were at least ten drug dealers. Drug dealers and prostitutes "partied" at her apartment and sold drugs in shifts. L.P. left town for a few weeks and when she returned, her nephew and a few others, including defendant, were selling drugs out of her apartment. L.P. identified defendant by his street 4 A-3677-13T2 nickname "Pimp"4 and testified he sold crack cocaine. Defendant had people working for him who were "enforcers" whose job was to "protect them from somebody to come stick them up or if anybody got out of line." According to L.P., Jackson was one of defendant's closest friends. L.P. described defendant as "the boss" of the drug operation and Jackson as "the worker[.]" Defendant introduced Jackson as "the enforcer" and said Jackson carried guns in order to protect the house. In an earlier statement, L.P. said defendant told her that Jackson's role was "Triggerman." L.P. saw both defendant and Jackson with guns at the Honeycomb, including a "[s]awed-off shotgun, 9 millimeter, [and] 380." L.P. testified she saw Reid at the Honeycomb at the same time defendant and Jackson were there. At some point in early 2005, she saw defendant give Reid a package with "50 dime bottles" of crack cocaine with yellow caps, or a "K-pack[,]" which sold for ten dollars each. Defendant said to Reid: "[D]on't mess the pack up like you did the last time." L.P. explained that "messing up a pack" meant that "the money is short." After that exchange, L.P. never saw Reid at the Honeycomb 4 Throughout the trial, witnesses identified Jackson by his street nickname "Twist" and Reid by his street nicknames "KU" or "D." Other individuals mentioned during the trial were also identified by their street nicknames. 5 A-3677-13T2 again. Defendant and Jackson told her that if Reid came there to tell him "he better have his money." About two weeks before Reid was murdered, L.P. heard defendant say: "If [Reid] didn't have his money, he'd pop him." She explained that "pop" meant to shoot. M.R. testified that she sometimes stayed at the Honeycomb, used drugs, and made a living by "escorting." She was Reid's fiancée until they broke up in February 2005. Before their breakup, they stayed together at the Honeycomb. Reid started out selling drugs and then began using crack cocaine. He sold drugs "for himself" that he got from people she did not know. His drug use "got progressively worse" at the beginning of 2005. She did not see him much after their breakup, but saw him the first week of May 2005. M.R. met defendant at the Honeycomb and saw him there selling crack cocaine. She referred to defendant as "Pimp" and identified him in court. She testified that she bought crack from defendant at the Honeycomb and would sometimes hold packages for him or "go and make a sale for him." She admitted she did not like defendant and "[t]ried to" stay away from him. She never saw Reid with defendant. M.R. gave a statement to the police after Reid was murdered. She said that sometime between February and May 2005, she encountered defendant in the hallway of the Honeycomb. Defendant's 6 A-3677-13T2 voice was "loud, like angry" and he had the gun in his hand "trying to bully [her.]" He put the gun to her face and asked if she had seen Reid. Defendant said he had given Reid five bottles of crack cocaine to sell so he could make money and get on his feet, but had not seen Reid and wanted to know where he was. Defendant also said, "you're his girlfriend so you're going to pay his debt." When she said she had not seen Reid, defendant "kind of relaxed [the gun]." She also said she would not pay Reid's debt, and left the hallway and went to L.P.'s apartment. She told Reid about the encounter during the first week of May. M.R. testified that between 9:00 p.m. and 11:00 p.m. on May 8, 2005, she and Reid went for a walk on Madison Avenue and sat on a stoop next to a bank parking lot. As they were sitting and talking, she noticed defendant drive by them. She noticed because of the earlier incident with defendant and did not believe Reid's claim that he had already taken care of the debt. She did not know if defendant saw them, but the car did not stop. She told Reid that they should leave, so they started walking, and at some point became separated. T.B. testified she sold crack cocaine in 2005, and made a living selling drugs and prostituting. There were a number of drug dealers in the neighborhood then, including defendant, who she identified in court as "Pimp[,]" and defendant's best friend, 7 A-3677-13T2 Jackson. Those were the "main players in the game" but there were "runners" as well who would "get a package from one of those guys and sell it." Jackson was part of defendant's "crew[.]" T.B. witnessed defendant selling drugs. She sold drugs in the same area where he sold drugs and sometimes shared a sale with him or other drug dealers if a buyer wanted more than what she had on hand. T.B. testified that defendant came to Elizabeth in the beginning of 2005, and he and Jackson were always together. She described Jackson as defendant's "right handyman" and defendant as "definitely the higher-up." T.B. was a friend of L.P.'s and knew the Honeycomb "had a lot of drug dealers" there, including defendant. She knew Reid, as they used crack cocaine together and he she saw him and M.R. at the Honeycomb. She also knew Reid sold crack cocaine in the neighborhood and got the drugs to sell from defendant. She described one occasion when she was riding in a car with defendant and Jackson to a corner store. As they approached the store, they saw Reid and defendant said to the driver "hey, hey, hey, stop the car[.]" According to T.B.: When the car stopped, that's when the defendant said to [Reid], hey, yo, yo, come over here, you got my fuckin' money . . . and [Reid] was like, nah, nah. And [defendant] was like, yo, you better get my fuckin' money, you better get my money, I'm telling you, I'm telling you. 8 A-3677-13T2 T.B. then heard defendant say to Reid: "[I]f you don't have my money, I'm going to put a cap in your ass." T.B. explained this was slang for going to "shoot you with a bullet." She described defendant as "[a]ngry" when he spoke to Reid and that Reid "looked scared for his life." As the car drove off, defendant told T.B. that he "gave [Reid] a package, and [Reid] messed the package up and owed him so[me] money, so he was after [Reid] for his money." T.B. testified that sometime in 2005, she saw defendant with a gun. He said to her "yo, can you take this around the block for me" and asked her to open her purse. When she did, he dropped a "heavy gun" into it. Defendant asked her to take the gun around the block to "Shorty," and followed her on a bicycle while she did so. T.B. also testified about a statement she gave to the police in May 2005. She told the police about defendant, the gun he had her bring to "Shorty," and the incident in the car with defendant and Reid. J.W. testified that in 2005, he sold crack cocaine, otherwise known as "cook-up[,]" in small bottles with colored caps that signified who supplied the drugs. He generally either sold drugs on the street or in the Honeycomb, and sold with defendant's group, which included Jackson. He identified defendant as "Pimp" in court, and described defendant and Jackson as friends. He also witnessed defendant supplying drugs to Jackson to sell. 9 A-3677-13T2 Defendant told J.W. that Jackson had come from New York to sell drugs and to be a "hit man" who would beat up or kill somebody if they owed money or "did something wrong." J.W. saw both defendant and Jackson with a handgun at the Honeycomb and at a hotel. He maintained that Jackson worked for defendant, although in his statement to the police he said Jackson worked for both defendant and another drug dealer known by the street nickname "Sheik." J.W. knew L.P. and was at her apartment at the Honeycomb between January and May 2005 to sell her drugs. He saw defendant and Jackson selling drugs there as well. J.W. also knew M.R. because he sold drugs to her in and around the Honeycomb. He knew M.R.'s boyfriend was Reid, a drug user, and he saw Reid at and around the Honeycomb. J.W. testified he sold drugs "along with" defendant. He maintained that defendant had a number of people working for him and was a supplier, but not on the level of other suppliers. J.W. also testified another supplier had sellers "punished for not paying for drugs" or for "messing up" the money or drugs, and that when a drug dealer was owed money, the person could be beat up or required to "make up the money" by selling more drugs without taking their cut. J.W. had been in that situation himself and it was "a common practice." He testified that "guns [were] 10 A-3677-13T2 threatened[,]" although he had previously testified he was not sure guns had been used in these situations before. J.W. testified he saw defendant give drugs to Reid in the hallway of the Honeycomb sometime between January and May 2005. Defendant gave Reid a "pack" of fifty vials of "[c]ook-up" and told him to "[b]ring him back" $350. J.W. never saw Reid return money to defendant for those drugs. At some time later, defendant asked J.W. if he had seen Reid because "[Reid] owe[d] him money[,]" but J.W. had not seen him since defendant gave him the drugs. J.W. also testified that, in the early morning hours on May 9, 2005, he was selling drugs on Catherine Street in front of the corner store that intersected William Street and East Grand Street. He saw defendant and Jackson running across Catherine Street from the direction of William Street and toward the highway at "1 and 9," and they "seemed nervous." Defendant told J.W. to "get low, get off the block and meet him at the hotel." J.W. understood this to mean "something in the area just happened, and the police are around." He waited for five to ten minutes until he heard police sirens and then left. He did not go to the hotel and did not tell anyone that he saw defendant and Jackson running. A few weeks later, he asked defendant why he and Jackson were running, and defendant said "that they got at [Reid]" and Jackson had killed him. 11 A-3677-13T2 In June 2005, J.W. gave the police a statement about the shooting of Reid and identified defendant and Jackson by photos. J.W. said he knew Reid was killed because of a drug exchange with defendant that took place at the Honeycomb and "they . . . got at him" over money that was owed. He said defendant told him that Jackson killed Reid because he "didn't come up with the money or the drugs." He also said that in that neighborhood, when people owed drug dealers money, the person who was owed the money was able to give a "warning" and allowed time for payment, or people could be "beat up." He only knew one person who owed defendant money, and that was Reid. II. The State never claimed defendant was the shooter. Rather, the State's theory to charge and convict defendant focused on the conspiracy between him and Jackson to commit murder as payback for the unpaid drug debt. Defendant argues in Point I that the court's jury instructions were "hopelessly wrong in that they conflated three separate theories of liability: murder as an accomplice; conspiracy to commit murder; and guilt of the substantive offense of murder as a co-conspirator[.]" Defendant also argues the court erred in refusing to delete language from State v. Bridges, 133 N.J. 447 (1993) in the co-conspirator charge because he was not charged with conspiracy and there is a "critical difference" 12 A-3677-13T2 between conspiracy and accomplice liability that could have impacted deliberations based on conflicting witness testimony. These arguments lack merit. "[A]ppropriate and proper charges are essential for a fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)). "The trial court must give 'a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.'" Id. at 159 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "Thus, the court has an 'independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party.'" Ibid. (alteration in original) (quoting Reddish, 181 N.J. at 613). "Because proper jury instructions are essential to a fair trial, 'erroneous instructions on material points are presumed to' possess the capacity to unfairly prejudice the defendant." Ibid. (quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)). When a defendant fails to object to an error regarding jury charges, we review for plain error. State v. Funderburg, 225 N.J. 66, 79 (2016). "Under that standard, we disregard any alleged error 'unless it is of such a nature as to have been clearly 13 A-3677-13T2 capable of producing an unjust result.'" Ibid. (quoting R. 2:10- 2). "The mere possibility of an unjust result is not enough. To warrant reversal by this Court, an error at trial must be sufficient to raise 'a reasonable doubt . . . as to whether the error led the jury to a result it otherwise might not have reached.'" Ibid. (alteration in original) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). A jury charge "must be read as a whole in determining whether there was any error." State v. Torres, 183 N.J. 554, 564 (2004). Moreover, the effect of any error must be considered "in light 'of the overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Because defendant actively participated in the charge conference, submitted proposed charges, and only partially objected to the final charges, we provide the following context for our analysis. At the charge conference after the close of proofs, the court reviewed the parties' proposed charges in depth.5 During the discussion of lesser-included offenses, defendant requested the 5 The discussion is difficult to follow, as the parties' reference page numbers and lines to defendant's proposed charges that were not included in the record on appeal, even though it was marked as an exhibit for this purpose. 14 A-3677-13T2 following language on vicarious liability and co-conspirator liability: Dwayne Dricketts as part of his general denial of guilt contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that Tyrell Jackson is the person who committed the alleged offense . . . and that Dwayne Dricketts acted as his co-conspirator and/or accomplice to commit the murder. Defendant did not object to adding a reference to the lesser- included offenses to that proposed charge. In discussing the identification charge, defendant argued his proposed charge was "more consistent with the rest of the charge on co-conspiracy and vicarious liability" because the jury first had to determine if Jackson was the shooter. The court rejected this argument. Defendant also asked the court to instruct the jury that "the defendant has pleaded not guilty, denies his guilt and denies that he was part of any such conspiracy," which the court allowed, and to instruct on conspiracy to commit murder as a lesser-included offense, which the court rejected. Thus, despite defendant's argument on appeal that "conspiracy was simply not in the case," it is clear his proposed charges included language related to the conspiracy between him and Jackson as presented by the State and his general denials that he participated in that conspiracy. 15 A-3677-13T2 In discussing what the language should be in the conspiracy charge, the court found Bridges used the language "reasonably foreseeable as the necessary or natural consequences of the conspiracy." When the court stated it was "just quoting exactly the language from Bridges[,]" defense counsel responded: "Yes. Thank you." However, defense counsel asked that the court not use the Bridges language and instead charge conspiracy to commit murder as a lesser-included offense. The court denied the request. Relying on State v. Cagno, 211 N.J. 488 (2012), the court explained there was no basis to charge conspiracy as a lesser-included offense because "the conspiracy was consummated" when the murder occurred as planned and there would have been no basis to find defendant guilty of conspiracy to murder without finding him guilty of murder. Prior to closing arguments, the court noted that both parties received a copy of the final charges and the court had not received any comments or objections. However, after closing arguments, defendant again moved to strike the Bridges language. Arguing that conspiracy was not part of the case, defendant also moved to strike the language: "a co-conspirator may be liable for the commission of a substantive crime and criminal acts that are not within the scope of the conspiracy if they are reasonable and foreseeable and necessary under natural consequences of a 16 A-3677-13T2 conspiracy" because it was not part of the State's theory of the case. Defendant provided no authority that required the State to argue every single alternative theory. The court denied the request. Right after issuing the limiting charge on N.J.R.E. 404(b) evidence, the court issued the following charge, which defendant challenges on appeal: Dwayne Dricketts as part of his general denial of guilt contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that Tyrell Jackson is the person who committed the crimes of murder or any lesser included offense; possession of a handgun without a permit, and possession of a weapon for an unlawful purpose; and that Dwayne Dricketts acted as his co-conspirator and/or his accomplice to commit those offenses. The burden of proving the identity of the person who committed the crime is upon the State. For you to find the [d]efendant guilty, the State must prove beyond a reasonable doubt that Tyrell Jackson is the person who committed the crimes of murder or any lesser included offense; possession of a handgun without a permit; and possession of a weapon for an unlawful purpose; and that Dwayne Dricketts acted as his co-conspirator and/or accomplice to commit those offenses. The [d]efendant had neither the burden nor the duty to show that the crime if committed was committed by someone else or to prove the identity of that other person. You must determine, therefore, not only whether the State has proven each and every element of the offense charged beyond a reasonable 17 A-3677-13T2 doubt, but also that Tyrell Jackson is the person who committed the crimes of murder or any lesser included offense; possession of a handgun without a permit; and possession of a weapon for an unlawful purpose; and that Dwayne Dricketts acted as his co-conspirator, and/or as accomplice to commit those offenses. The court then instructed the jury as to co-conspirator and accomplice liability before instructing on the substantive offenses. The court also instructed the jury that defendant was presumed innocent until the State proved each and every element of each offense beyond a reasonable doubt. Despite his request for the court to charge conspiracy to commit murder as a lesser-included offense, defendant concedes on appeal that the court correctly denied that request under Cagno, 211 N.J. at 522. In Cagno, the Court found no rational basis to charge the included offense of conspiracy to commit murder because "the conspiracy was consummated when [the victim] was murdered as planned." Ibid. Similarly, in this case, the conspiracy between defendant and Jackson to kill Reid over a drug debt, as alleged by the State, was consummated when Reid was killed. As such, there was no basis to instruct the jury on conspiracy to commit murder as a lesser-included offense. However, defendant argues on appeal that since "conspiracy was simply not in this case," the court erred in charging the jury that it could convict defendant "as either an accomplice or a co- 18 A-3677-13T2 conspirator (or perhaps both)." This argument fails to recognize that "[a] person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both." N.J.S.A. 2C:2-6(a). "That section makes a person legally accountable for the conduct of another when, among other things, he 'is engaged in a conspiracy with such other person.'" State v. Mance, 300 N.J. Super. 37, 63-64 (App. Div. 1997) (quoting N.J.S.A. 2C:2-6(b)(4)). "Although there is 'a great deal of similarity between accomplice and conspirator liability and frequently liability may be found under both theories' the concepts are not identical." State v. Samuels, 189 N.J. 236, 254 (2007) (quoting Cannel, N.J. Criminal Code Annotated, cmt. to N.J.S.A. 2C:2-6(c) (2006) (additional citations omitted)). "The critical difference is that, as statutorily defined, conspiracy requires proof of an agreement to commit a crime whereas accomplice liability does not." Ibid. Citing no supporting authority, defendant argues the court should have given the jury the option to convict him as just a co- conspirator because of the "sentencing ramifications," and erred in instructing the jury that it need not be unanimous as to whether he was guilty as an accomplice or co-conspirator. However, "[a] defendant . . . may be found guilty of murder even if jurors cannot 19 A-3677-13T2 agree on whether the defendant is a principal, accomplice, or a co-conspirator." State v. Roach, 146 N.J. 208, 223 (1996). Given the reasonable inferences to be drawn from the evidence of both accomplice and co-conspirator liability, including evidence that defendant ordered Jackson to shoot Reid and was present when it happened, the court properly charged the jury on both theories. See also State v. Brown, 138 N.J. 481, 511 (1994) ("unanimity is not required to support a verdict that a defendant guilty of murder did not commit the murder by his own conduct"). Moreover, not only did defendant not object to the language of the charge instructing the jury it need not be unanimous as to whether he was guilty as an accomplice or co-conspirator, he included that language in his proposed charge. The court correctly charged that "[a]ll jurors do not have to agree unanimously concerning the basis, meaning of co-conspirator or as an accomplice for the [d]efendant's guilt regarding murder or the lesser included offenses so long as all believe that the State has proven the [d]efendant's guilt beyond a reasonable doubt either as a co- conspirator or an accomplice." Defendant also challenges the court's inclusion of the Bridges language in the conspiracy charge. It is important to note that the model jury charge for co-conspirator liability has not been updated in almost thirty years. Model Jury Charge 20 A-3677-13T2 (Criminal), "Conspiracy – Vicarious Liability (N.J.S.A. 2C:2- 6b(4))" (Oct. 17, 1988). Significantly for this case, it has not been updated to incorporate the change in law that occurred in 1993 with the Supreme Court's decision in Bridges. See 133 N.J. at 466-67. Therefore, it could not be used as the exclusive source for the court's co-conspirator charge. See Pressler & Verniero, Current N.J. Court Rules, cmt. 8.1 on R. 1:8-7 (2018) (stating that in using model jury charges, court and counsel should be aware of "intervening contrary case law[;]" and failure to adapt the model charge to the facts in evidence may be error); State v. Green, 318 N.J. Super. 361, 376 (App. Div. 1999) (holding that "[t]he Model Jury Charges are only guidelines, and a trial judge must modify the Model Charge when necessary so that it conforms with the facts, circumstances, and law that apply to the facts being tried"). Defendant does not challenge the specific language the court used in its modified charge incorporating Bridges. He argues only the court should not have added the language because he was not charged with conspiracy as a separate offense. However, the jury was not asked to decide the issue of conspiracy as a separate charge. See Mance, 300 N.J. Super. at 63 (noting that "[t]he conspiracy charge was simply part of the overall charge on accomplice liability"). 21 A-3677-13T2 Defendant argues this charge was error because the jury could have determined he engaged in a conspiracy to harm Reid "in some nonfatal way" but did not intend Reid's death and was not acting as an accomplice at the time Jackson killed Reid. Although defendant cites to conflicting testimony of key witnesses and evidence presented that a lesser punishment was customary for such a small drug debt, he minimizes his own role in this, claiming his threats to "shoot" Reid were not the same as saying "kill," and evidence of his threats came from untrustworthy sources. When the charge is viewed as a whole, as it must, the jury was properly instructed that in order to find defendant guilty of murder, or a lesser-included offense, it must first be convinced beyond a reasonable doubt that Jackson committed the murder and defendant acted as his accomplice or co-conspirator. The instructions used at trial were derived from the model charge, case law, and suggestions from counsel which were tailored to the facts of the case. The jury had a written copy of the charges in the deliberation room and there is nothing on the record to suggest there was any confusion on this issue. We are satisfied the court did not conflate the theories of liability or otherwise err in the charge on accomplice or co-conspirator liability. This does not end our inquiry. At oral argument and in a post-argument supplemental brief, defendant added a twist to his 22 A-3677-13T2 initial challenge to the charge. He argues that neither party addressed how N.J.S.A. 2C:1-8(d)(2) and our Supreme Court's interpretation of the statute in State v. LeFurge, 101 N.J. 505 (1986) would impact the legal analysis. He posits the statute does not apply in this case and falls outside the parameters enunciated in LeFurge because there was no evidence of a conspiracy, and thus, the essential elements of the crime of conspiracy were not clearly implicated in the evidence the grand jury considered when it indicted him for the substantive offense. N.J.S.A. 2C:1-8(d)(2) provides that "[a] defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when . . . [i]t consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein[.]" In LeFurge, a grand jury indicted the defendant for theft, but not conspiracy to commit theft. 101 N.J. at 409. Although the defendant was not indicted for conspiracy to commit theft, the crime involved an elaborate prearranged plan of theft involving a number of people over a course of several months that could only be described as a conspiracy. Id. at 422- 23. The Court found N.J.S.A. 2C:1-8(d)(2) constitutional as applied to the defendant, who was found not guilty of the substantive offense of theft, but guilty of conspiracy to commit 23 A-3677-13T2 theft as an included offense. Id. at 424. The Court determined there was no constitutional violation of notice to the defendant because the essential elements of the crime of conspiracy to commit theft were clearly implicated in the evidence the grand jury considered when it indicted the defendant for the substantive offense. Ibid. By contrast, defendant argues the allegation that he and Jackson engaged in a conspiracy to murder Reid did not represent a course of criminal conduct. Rather, it involved a single act by only two people that may or may not have been planned in advance, and there was no evidence of any interaction between the two alleged co-conspirators prior to the shooting. We disagree. There was a plethora of evidence that the shooter, Jackson, acted as the enforcer for defendant's drug operation and shot Reid over a drug debt. We find nothing in the record to suggest that just because one theory of a case may not support a finding of conspiracy, when another theory could support it, the inclusion of co-conspirator liability in the charge was error. We also disagree with defendant that the charge presented conspiracy as a separate or additional theory of guilt. Rather, the court instructed the jury that in order to find defendant guilty, it had to first determine whether the State proved beyond 24 A-3677-13T2 a reasonable doubt that Jackson actually committed the crime of murder or any lesser-included offense, and then the jury was to determine if defendant acted as Jackson's co-conspirator and/or accomplice in committing those offenses. Because unanimity is not required to support a verdict that a defendant guilty of murder did not commit the murder by his own conduct, the charge of both co-conspirator and accomplice liability was appropriate based on the evidence presented at trial. For these reasons, we discern no error in the charge and no reason to reverse defendant's conviction. III. Defendant contends in Point II the court improperly admitted N.J.R.E. 404(b) other crimes, wrongs, or acts evidence that presented him in an unfavorable light. For the first time on appeal, defendant challenges the use of his street nickname "Pimp." He argues "the likely impact on the jury of being hammered with that name over and over throughout the course of the trial was substantial prejudice rising to the level of plain error[.]" Defendant also argues the court improperly admitted evidence of his prior possession of a gun. He asserts this evidence was irrelevant because he was not charged as the shooter, the court erred in finding it admissible to show opportunity, and the 25 A-3677-13T2 testimony about his prior gun possession was cumulative to other admissible testimony that Jackson carried guns.6 "Trial court decisions concerning the admission of other- crimes evidence should be afforded 'great deference,' and will be reversed only in light of a 'clear error of judgment.'" State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting State v. Barden, 195 N.J. 375, 390-91 (2008)). "The admissibility of such evidence is left to the sound discretion of the trial court, as that court is in the best position to conduct the balancing required under [State v. Cofield, 127 N.J. 328 (1992)] due to its 'intimate knowledge of the case.'" Ibid. (quoting State v. Covell, 157 N.J. 554, 564 (1999)). "Therefore, a trial court's decision concerning the admission of other-crimes evidence will not be disturbed absent a finding of abuse of discretion." Ibid. (quoting Covell, 157 N.J. at 564). We discern no abuse of discretion here. N.J.R.E. 404(b) governs other crimes, wrongs, or acts evidence and provides as follows: Except as otherwise provided by [N.J.R.E.] 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, 6 Defendant does not challenge the admission of evidence that he was a drug dealer. 26 A-3677-13T2 opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. "'[B]ecause [N.J.R.E.] 404(b) is a rule of exclusion rather than a rule of inclusion,' the proponent of evidence of other crimes, wrongs or acts must satisfy a four-prong test." State v. Carlucci, 217 N.J. 129, 140 (2014) (quoting State v. P.S., 202 N.J. 232, 255 (2010)). Under the four-prong test, in order for other crimes, wrongs, or acts evidence to be admissible under N.J.R.E. 404(b), the evidence: (1) "must be admissible as relevant to a material issue;" (2) "must be similar in kind and reasonably close in time to the offense charged;"7 (3) "must be clear and convincing; and "(4) its probative value "must not be outweighed by its apparent prejudice." Cofield, 127 N.J. at 338. The court must provide limiting instruction to inform the jury of the purposes for which it may and may not consider the evidence of the defendant's uncharged misconduct, both when the evidence is presented and in the final instructions. Gillispie, 208 N.J. at 92-93. To satisfy the first prong, the evidence must have "a tendency in reason to prove or disprove any fact of consequence to the 7 Proof of the second prong is not required in all cases, but only in those that replicate the facts in Cofield, namely, illegal drug possession. Carlucci, 127 N.J. at 141. This prong is not at issue here. 27 A-3677-13T2 determination of the action." See N.J.R.E. 401 (defining "[r]elevant evidence"). "Consequently, to be relevant, the other- crimes evidence must bear on a subject that is at issue at the trial, for example, an element of the offense or some other factor such as motive, opportunity, intent, or plan." P.S., 202 N.J. at 255 (citations omitted). "In relevance determinations, the analysis focuses on 'the logical connection between the proffered evidence and a fact in issue.'" State v. Williams, 190 N.J. 114, 123 (2007) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004)). Where the fact to be proven is an element of the offense, such as motive and intent, the relevance prong is satisfied. See State v. Brown, 180 N.J. 572, 584-85 (2004) (holding that other crimes evidence is admissible where the State must prove an element of the offense). Other crimes evidence may be admissible under N.J.R.E. 404(b) on the issue of motive. State v. Yormark, 117 N.J. Super. 315, 336 (App. Div. 1971). "Generally, in 'motive' cases under [N.J.R.E.] 404(b) . . . the evidence in question is designed to show why a defendant engaged in a particular, specific criminal act." State v. Mazowski, 337 N.J. Super. 275, 283 (App. Div. 2001). Thus, in contrast to pattern evidence, establishing motive does not require similarity between the other bad acts and the crime charged. Id. at 286 n.3. Other crimes evidence may be 28 A-3677-13T2 admissible under N.J.R.E. 404(b) if it discloses the defendant's mental intention or purpose when he committed the offense or to negate the existence of innocent intent. State v. J.M., Jr., 438 N.J. Super. 215, 223 (App. Div. 2014). The third prong requires clear and convincing proof that the person against whom the evidence is being used actually committed the other crime or wrong. Carlucci, 217 N.J. at 143; Cofield, 127 N.J. at 338. The fourth prong is typically the most difficult to overcome. Barden, 195 N.J. at 389. "Because of the damaging nature of such evidence, the trial court must engage in a 'careful and pragmatic evaluation' of the evidence to determine whether the probative worth of the evidence is outweighed by its potential for undue prejudice." Ibid. (citation omitted). The analysis incorporates balancing prejudice versus probative value required by N.J.R.E. 403, but does not require, as does N.J.R.E. 403, that the prejudice substantially outweigh the probative value of the evidence. Reddish, 181 N.J. at 608. The risk of undue prejudice must merely outweigh the probative value. A "very strong" showing of prejudice is required to exclude motive evidence under this prong. State v. Castagna, 400 N.J. Super. 164, 180 (App. Div. 2008). Under the fourth prong, the trial court must also consider if other less prejudicial evidence may be presented to establish 29 A-3677-13T2 the same issue on which the other crimes or wrongs evidence was offered. P.S., 202 N.J. at 256. Additionally, in order to minimize "the inherent prejudice in the admission of other-crimes evidence, our courts require the trial court to sanitize the evidence when appropriate." Barden, 195 N.J. at 390 (citation omitted). Whenever the State seeks to admit evidence of other crimes, wrongs, or acts, the court must make a threshold determination as to whether it is subject to a N.J.R.E. 404(b) analysis or whether the evidence is intrinsic to the charged crime and admitted as an exception to the Rule. State v. Rose, 206 N.J. 141, 179 (2011). "[E]vidence that is intrinsic to the charged crime is exempt from the strictures of [N.J.R.E.] 404(b) even if it constitutes evidence of uncharged misconduct that would normally fall under [N.J.R.E.] 404(b) because it is not evidence of other crimes, wrongs, or acts." Id. at 177. To determine what is intrinsic, the Court adopted the test in United States v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010), and held that evidence is considered intrinsic if it "directly proves" the crime charged or if the acts in question are performed contemporaneously with, and facilitate, the commission of the crime charged. Id. at 180 (quoting Green, 617 F.3d at 248-49). Courts have utilized a "case-by-case approach" in making this determination. Id. at 179. 30 A-3677-13T2 In addition, the Court appeared to have broadened the intrinsic evidence exception by noting "that other crimes evidence may be admissible if offered for any non-propensity purpose, [including] the need 'to provide necessary background information' about the relationships among the players as a proper purpose." Id. at 180-81 (alteration in original) (quoting Green, 617 F.3d at 249). The Court held that such background evidence is admissible "outside the framework of [N.J.R.E.] 404(b)," and when admissible for this purpose, the evidence is subject to the probative value/prejudice balancing test under N.J.R.E. 403, not N.J.R.E. 404(b). Id. at 177-78, 181. The Court added: There is no need to regard [N.J.R.E.] 404(b) as containing an exhaustive list of the non- propensity purposes permitted of other crime evidence. . . . [T]here is no reason that our courts cannot allow, under [N.J.R.E.] 404(b), evidence to be admitted for a . . . 'necessary background' or, as otherwise stated, 'the need to avoid confusing the jury, non-propensity purpose.' [Id. at 181 (quoting Green, 617 F.3d at 249).] Defendant concedes he did not object to the admission and use of his street nickname "Pimp" at trial. "[I]if the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" Id. at 157 (quoting R. 2:10-2). 31 A-3677-13T2 The "use of defendant's street nickname during trial cannot serve as a per se predicate for reversal." State v. Paduani, 307 N.J. Super. 134, 146 (App. Div. 1998). When a nickname is pejorative, such as "Marijuana" or "Trouble[,]" it should generally be kept from the jury unless it is relevant for some purpose. Id. at 147. The admission of irrelevant nicknames does not mandate reversal unless "some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt." Ibid. (quoting State v. Salaam, 225 N.J. Super. 66, 73 (App. Div. 1988)). Here, defendant's nickname was not used intentionally as indicia of his guilt or bad character, and he acquiesced to its repeated use throughout the trial. Use of his nickname was relevant and necessary to identify him because the witnesses knew him only by that nickname. The court carefully instructed the witnesses not to mention defendant's connection to promoting prostitution and the witnesses complied with that mandate. Moreover, defense counsel frequently used and referenced the street nicknames of defendant, witnesses, and other drug dealers, and relied on those nicknames as part of his trial strategy that defendant was merely a low-level drug dealer lacking the power to order an execution and other drug dealers from whom Reid stole drugs may have murdered him. 32 A-3677-13T2 Despite the negative connotation of defendant's street nickname, he failed to show any tangible form of prejudice from its use. There was no evidence presented connecting defendant to promoting prostitution. In view of the overwhelming evidence of defendant's guilt of the crimes charged, use of his street nickname was not clearly capable of producing an unjust result. See Salaam, 225 N.J. Super. at 76 (holding "in view of the overwhelming proof of defendant's guilt, there was no real possibility that the trial court's reference to defendant's [alias] names 'led the jury to a result it otherwise might not have reached'"). Accordingly, we find no error in the admission and use of defendant's street nickname "Pimp" throughout the trial. We also find no error in the admission of evidence of defendant's prior gun possession. Defendant was charged with possession of a weapon for an unlawful purpose and unlawful possession of a weapon. The State was required to present evidence that defendant, who was vicariously liable for Jackson's actions, knowingly possessed a handgun and possessed it with a purpose to use it against another's person or property. Because the evidence of defendant's prior gun possession directly proved the charged offenses, it was intrinsic to the charged crimes, and thus, exempt from the strictures of N.J.R.E. 404(b). Rose, 206 N.J. at 177, 180. Because the evidence was exempted from the strictures of 33 A-3677-13T2 N.J.R.E. 404(b), no limiting instruction was necessary. Even if not intrinsic, the evidence was admissible under N.J.R.E. 404(b). When motive or intent are at issue, our courts "generally admit a wider range of evidence." State v. Jenkins, 178 N.J. 347, 365 (2004) (quoting Covell, 157 N.J. at 565). "That includes evidentiary circumstances that 'tend to shed light' on a defendant's motive and intent or which 'tend fairly to explain his actions,' even though they may have occurred before the commission of the offense." Covell, 157 N.J. at 565 (quoting State v. Rogers, 19 N.J. 218, 228 (1955)). In this case, the court found that evidence of defendant's prior gun possession was relevant to his motive to kill Reid for failing to pay a drug debt and as to his method of using guns in his drug operation and using Jackson as an enforcer. The court specifically found the evidence admissible because of defendant's "access to guns in relation to the drug business. That this is all relevant to the motive of the [d]efendant to kill [Reid]. That it was done because he shorted him on the package allegedly. And that it was important to his general street reputation as somebody who would not be a pushover on the street in the drug business." The State's theory of the case was that defendant ordered Jackson to shoot Reid because Reid failed to pay a drug debt. Thus, evidence related to access to guns, the threat with the gun, 34 A-3677-13T2 and the relationship between defendant and Jackson would shed light on the motive, intent, and opportunity for the crime, and was properly admissible under N.J.R.E. 404(b). IV. Defendant challenges his sentence in Point III. He argues a remand is necessary because the court failed to engage in a qualitative analysis of the aggravating and mitigating factors. He also argues the court erred in failing to merge count two (possession of a weapon for an unlawful purpose) into count one (murder). We review a court's sentencing decision under an abuse of discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we must determine whether: (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience." [Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).] "[T]he court must describe the balancing process leading to the sentence." State v. Kruse, 105 N.J. 354, 360 (1987) (citations omitted). "To provide an intelligible record for review, the trial court should identify the aggravating and mitigating 35 A-3677-13T2 factors, describe the balance of those factors, and explain how it determined defendant's sentence." Ibid. "Merely enumerating those factors does not provide any insight into the sentencing decision, which follows not from a quantitative, but from a qualitative, analysis." Id. at 363 (citation omitted). We may remand where the court errs in applying the aggravating and mitigating factors to the facts in the record, or where no qualitative analysis of sentencing factors was placed on the record. Ibid. In sentencing defendant to a forty-five year term subject to NERA, the court made only these brief comments: As mentioned, I've sat through the trial. You testified at the trial. The jury obviously didn't believe you. The testimony reflected that, as does your criminal record, that you spent a number of years drug dealing, in possession and control of weapons. And the jury in this case found that you ordered an execution over a small debt. And it's really a horrible reflection of yourself and the environment on the streets where these drugs are sold. There's four adult indictments and I'm considering this New York charge, a first- degree robbery, as a juvenile charge, but there was a three to six-year state prison sentence, and it's a serious charge. It's the only charge you have that involves violence. I acknowledge that it happened at -- at [age seventeen]. I find that aggravating factors three, six, and nine outweigh no mitigating factors. 36 A-3677-13T2 You're sentenced to [forty-five] years, [eighty-five] percent on the murder charge concurrent to seven and concurrent to four on the two drug -- gun charges, 982 days of jail credit. DNA and prints. Three $50 fines, three $75 fines, and one $30 fine. The court did not engage in a qualitative analysis of the aggravating and mitigating factors that applied to this case. Although the court noted defendant's prior criminal record, including four adult indictments, it then merely found three aggravating factors without any discussion, analysis, or application to defendant in particular. Accordingly, we remand for resentencing and direct the court engage in a qualitative analysis of the aggravating and mitigating factors. The court shall also address the merger issue. Defendant's conviction is affirmed, and the matter is remanded for resentencing in accordance with this opinion. We do not retain jurisdiction. 37 A-3677-13T2

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Docket No.: a4275-16
Decided: 2018-04-18
Caption: PARVIN REMOLINA v. SHUMAILA KASHIF
Status: unpublished
Summary:
PER CURIAM This is a residential landlord-tenant property damage case. Plaintiff, who leased the premises to defendants, appeals from a May 1, 2017 judgment of no cause of action entered after a bench trial.1 Judge Thomas J. Walsh tried the case, made findings of fact and conclusions of law, and determined that without expert testimony, there existed insufficient proof to warrant a judgment in plaintiff's favor. On appeal, plaintiff argues that the judge failed "to find a cause of action based on a landlord tenant breach of contract as it pertains to normal 'wear and tear' versus destruction of real property." Plaintiff did not produce expert testimony addressing the cause of the alleged property damage or the reasonable costs associated with repairs. Although defendants claimed plaintiff failed to return their security deposit, defendants did not file a counterclaim or cross-appeal. We conclude that plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(E). We affirm substantially for the clear and concise reasons expressed by Judge Walsh. We add the following brief remarks. The standard of review of judgments or orders entered after bench trials is well settled. The findings of the trial judge are binding on appeal if they are supported by "adequate, substantial 1 The May 1, 2017 order specifies the matter was tried to completion by a jury. Further review of the record confirms Judge Walsh conducted a bench trial. 2 A-4275-16T3 and credible evidence." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974). We review a "trial court's interpretation of the law and the legal consequences that flow from established facts" de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Applying this standard, we see no error. Judge Walsh found that there existed a landlord-tenant relationship between the parties. But he concluded plaintiff failed to produce expert testimony as to the alleged property damage. The judge acknowledged that without that opinion testimony, he would be unable to determine the basis for the alleged repairs and the reasonable costs associated with any repair work in the premises. We have no reasons to disturb Judge Walsh's findings and conclusions. Affirmed. 3 A-4275-16T3

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Docket No.: a4289-16
Decided: 2018-04-18
Caption: U.S. BANK NATIONAL ASSOCIATION v. FRANCESCO J. ROSARIO
Status: unpublished
Summary:
PER CURIAM This is the second appeal in this mortgage foreclosure action. Defendants, Francesco and Lori Rosario, previously appealed from two March 10, 2015 orders that (1) substituted a new plaintiff on the final judgment of foreclosure, and (2) denied defendants' cross-motion to vacate default. We affirmed both orders. U.S. Bank Nat'l Ass'n v. Rosario, No. A-3934-14 (App. Div. July 5, 2016). Defendants now appeal from April 20, 2017 orders substituting a new plaintiff on the final judgment, and denying defendants' cross-motions to vacate final judgment and quiet title. We now affirm those orders because defendants' claims are barred by the doctrine of collateral estoppel and are otherwise without merit. I. In 2004, defendants borrowed $445,000 from Wachovia Mortgage Corporation (Wachovia) and signed a promissory note. The loan was secured by a mortgage on their home located in Randolph, New Jersey. In January 2009, defendants defaulted on the loan and note and stopped making payments. 2 A-4289-16T1 On March 26, 2009, Wachovia assigned the note and mortgage to U.S. Bank National Association, as Trustee, by Residential Funding Company, LLC f/k/a Residential Funding Corporation Attorney in Fact (U.S. Bank I). Shortly thereafter, U.S. Bank I filed a complaint to foreclose on the mortgage. When defendants failed to answer or otherwise respond to U.S. Bank I's complaint, a final judgment of foreclosure was entered in favor of U.S. Bank I on July 27, 2010. On October 27, 2014, U.S. Bank I assigned the final judgment to U.S. Bank National Association, as Trustee, for Residential Funding Mortgage Security I, Inc., Mortgage Pass-Through Certificate, Series 2005-S1 (U.S. Bank II). In December 2014, U.S. Bank II was substituted as plaintiff on the final judgment. On March 22, 2016, U.S. Bank II assigned the note and mortgage to U.S. Bank National Association, as Trustee, of the NRZ Pass-Through Trust V (U.S. Bank III). Finally, on February 3, 2017, U.S. Bank III assigned the mortgage to Wilmington Savings Fund Society F.S.B., d/b/a Christina Trust, not individually, but as Trustee for Pretium Mortgage Acquisition Trust (Wilmington Savings). Thereafter, U.S. Bank III filed motions to vacate the final judgment due to procedural errors, and to substitute Wilmington Savings as plaintiff on the final judgment. Defendants opposed those motions and filed a cross-motion seeking to quiet title. 3 A-4289-16T1 The Office of Foreclosure initially granted U.S. Bank III's request to vacate final judgment, but later vacated that order as improvidently entered because defendants had filed opposition to the motion. Accordingly, the matter was transferred back to the Chancery Division. Before the Chancery Division could address the motion to vacate final judgment, however, the motion was withdrawn by U.S. Bank III. Thus, the final judgment entered in 2010 remained in full force and effect. On April 20, 2017, the Chancery Division issued orders and written statements of reasons granting U.S. Bank III's motion to substitute Wilmington Savings as plaintiff, and denying defendants' cross-motions to vacate final judgment and quiet title. Defendants filed a late notice of appeal. We allowed the appeal, but limited it to the April 20, 2017 orders. II. On this appeal, defendants contend (1) Wilmington Savings was not permitted to initiate litigation in the State of New Jersey, and (2) they were entitled to an order quieting title to their home. Effectively, defendants challenge Wilmington Savings' standing to obtain the final judgment of foreclosure. When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, that determination is conclusive in 4 A-4289-16T1 a subsequent action between the parties, whether on the same or a different claim. Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 522 (2006). Thus, relitigation of an issue is precluded when (1) the issue to be precluded is identical to the issue decided in the prior proceeding, (2) the issue was actually litigated in the prior proceeding, and (3) there was a final judgment of the issue on the merits. Brookshire Equities, LLC v. Montaquiza, 346 N.J. Super. 310, 319-20 (App. Div. 2002). Applying these well-settled principles to the present case, we conclude that the arguments raised by defendants are barred under the doctrine of collateral estoppel. Defendants challenged U.S. Bank II's standing to foreclose in their January 2015 motion to vacate default. The trial court denied defendants' motion as time-barred, and also held that U.S. Bank II had standing to prosecute the foreclosure action. We affirmed the March 10, 2015 orders substantially for the reasons expressed in the trial court's written statement of reasons. Rosario, slip op. at 4. After our decision, defendants did not file a petition for certification with the Supreme Court. Accordingly, the standing argument now raised by defendants has been litigated and determined in a final judgment. Our decision in defendants' prior appeal addressed U.S. Bank II's standing to obtain the final judgment of foreclosure. 5 A-4289-16T1 Defendants now contend that Wilmington Savings lacks standing to hold the same final judgment at issue in the prior appeal. Since we previously held that the final judgment of foreclosure was properly entered, that issue cannot be relitigated. See Washington Commons, LLC v. City of Jersey City, 416 N.J. Super. 555, 564 (App. Div. 2010) (stating that once an issue has been determined in a prior appeal, it cannot be relitigated in a later appeal of the same case). Even if we considered defendants' arguments on the merits, U.S. Bank I had a valid assignment of the mortgage before it initiated the foreclosure action in 2009. Accordingly, standing has long been established. Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 216 (App. Div. 2011). The series of valid, properly recorded assignments that occurred after our prior decision did not impact Wilmington Savings' standing to hold the final judgment. See R. 4:34-3 ("In case of any transfer of interest, the action may be continued by . . . the person to whom the interest is transferred[.]"). Affirmed. 6 A-4289-16T1

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Docket No.: a4356-16
Decided: 2018-04-18
Caption: STATE OF NEW JERSEY v. RICKKWAN A. COPPAGE
Status: unpublished
Summary:
PER CURIAM Defendant appeals from his conviction for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1). A police officer observed a Chevrolet Impala run through a red traffic light. The officer and his partner stopped the vehicle, approached it, and observed defendant – whom the officer recognized from previous encounters – in the front passenger seat. The officer observed defendant looking down at his waist and repeatedly touching his waistband, where the officer noticed a "slight bulge." The officer asked another officer to remove defendant from the vehicle and escort him to the rear of the vehicle, which he did. The officer asked defendant if he had a weapon in his possession, and he denied that he did. The officer informed defendant that he was not arresting defendant, but was going to frisk him for weapons. The officer frisked defendant and found a handgun in his waistband. On appeal, defendant argues: THE HANDGUN MUST BE SUPPRESSED BECAUSE THE POLICE HAD ONLY A "HUNCH" THAT DEFENDANT WAS ARMED AND DANGEROUS, NOT THE REASONABLE AND ARTICULABLE SUSPICION REQUIRED TO JUSTIFY THE WARRANTLESS INTRUSION ON DEFENDANT'S PRIVACY. Defendant essentially maintains that the officer conducted an illegal Terry1 frisk without a reasonable and articulable suspicion that defendant was armed. As a result, he argues the judge erred by denying his motion to suppress. We conclude that 1 Terry v. Ohio, 392 U.S. 1 (1968). 2 A-4356-16T4 defendant's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons set forth by Judge Benjamin C. Telsey in his thorough and well-reasoned oral decision. Affirmed. 3 A-4356-16T4

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Docket No.: a5215-14
Decided: 2018-04-18
Caption: C.A. v. ERIC BENTOLILA, M.D.
Status: unpublished
Summary:
PER CURIAM A prior appeal in this medical malpractice case addressed pretrial issues of discovery and confidentiality under the Patient Safety Act ("PSA"), N.J.S.A. 26:2H-12.23 to -12.26. The case now returns to our court following a lengthy trial. The jury issued a verdict in favor of defendants. Plaintiffs appeal, raising a host of alleged trial errors. In addition, defendants provisionally cross-appeal some of the trial court's rulings. For the reasons amplified in this opinion, we affirm in part, reverse in part, and remand for a new jury trial. Our primary 2 A-5215-14T4 ground for reversal concerns material flaws in the jury instructions and the verdict sheet that were likely to have misguided the jurors, thereby producing an inconsistent and unsound verdict. We also reverse the trial court's handling of issues concerning a settling co-defendant's privilege against self-incrimination and the prejudicial manner in which that privilege was invoked. We affirm the balance of the other rulings challenged on the appeal and cross-appeal, reserving some discrete issues for re-examination at or before the new trial. I. A. As we previously noted in our 2012 opinion, C.A., 428 N.J. Super. at 121, this medical malpractice case arises out of the delivery of an infant, C.A., who was deprived of oxygen at birth, resulting in her sustaining permanent brain damage. Plaintiff Esther Applegrad is the mother and guardian ad litem of C.A. Co- plaintiff Gedalia Applegrad is C.A.'s father.2 C.A. was born at defendant Valley Hospital on May 26, 2007. Her mother's obstetrician/gynecologist, defendant Eric Bentolila, M.D., was the attending physician who managed the pregnancy. Dr. Bentolila vaginally delivered C.A. from a breech position. 2 For simplicity, we shall refer to the mother as "Mrs. Applegrad" and the father as "Mr. Applegrad." 3 A-5215-14T4 Defendant Kourtney Kaczmarski, R.N., was on shift at the Hospital when Mrs. Applegrad was admitted. Nurse Kaczmarski provided care to Mrs. Applegrad during her labor. The nurse communicated with Dr. Bentolila several times during that time frame, although she ended her shift almost two hours before C.A. was born. Defendant Yie-Hsien Chu, M.D., is the pediatrician who attended to C.A. after her delivery. Defendants Gita Patel, a labor and delivery nurse, and Mary Brown, a respiratory therapist, also participated in the patients' care.3 Although some facts regarding C.A.'s birth were described in the prior opinions of this court and the Supreme Court, we revisit the pertinent chronology of events in light of the proofs that emerged at trial. Dr. Bentolila saw Mrs. Applegrad from the time she was twenty- four weeks pregnant until C.A.'s delivery. The fetus was in a breech position at twenty-six weeks, but Dr. Bentolila did not view that as a concern at that time because he felt most babies will "turn" during pregnancy. In fact, as of May 10, 2007, the baby's position was vertex, or head down. Dr. Bentolila saw Mrs. Applegrad on May 25. He noted she was forty weeks and three days into her pregnancy at that point. He 3 As we note infra, both Patel and Brown have been dismissed from the case. 4 A-5215-14T4 determined that the baby's position had become vertex and that Mrs. Applegrad was dilated one centimeter. He also determined that the amniotic fluid was within normal limits. Because Mrs. Applegrad was "post-date," several days beyond forty weeks, Dr. Bentolila considered when to induce her. Mrs. Applegrad agrees that she saw Dr. Bentolila on May 25, and that he gave her an ultrasound. Around midnight, her water broke. After calling Dr. Bentolila, Mrs. Applegrad arrived at the Hospital on May 26 shortly after 5:00 a.m. The amniotic fluid in the womb was clear. Events on May 26 Before the Delivery Dr. Bentolila arrived at the Hospital around 8:00 a.m. and saw Mrs. Applegrad that morning. At that time, he filled out a physician's order sheet. The medical order stated that if Mrs. Applegrad did not go into labor by noon, the drug Pitocin should be administered to induce contractions. The order noted that no internal examination be conducted prior to the administration of the drug Pitocin. It further notated that the fetal position was vertex. Dr. Bentolila stated in his deposition that he did not examine Mrs. Applegrad internally on May 26 because her water had broken and he was concerned about causing an infection. He further stated that he "relied on [his] exam from the day before." After he 5 A-5215-14T4 wrote the order, Dr. Bentolila left the Hospital to go to religious services. According to Mrs. Applegrad, Dr. Bentolila told her before he left that if she did not go into labor by noon, he would induce her. The Hospital's policy and procedure regarding the administration of Pitocin stated the physician must "examine the patient to confirm a vertex presentation within one hour prior to the start" of administration of the drug. The Pitocin may be administered by a registered nurse. If there is a "non-reassuring fetal heart rate pattern," the Pitocin drip should be discontinued and the responsible physician notified. Nurse Kaczmarski was working the 11:00 a.m. to 7:00 p.m. shift on May 26. Mrs. Applegrad was her only patient that day. The nurse recalled that Dr. Bentolila told her that Mrs. Applegrad's water had broken around midnight. Kaczmarski understood the order to mean that she was not to examine Mrs. Applegrad vaginally prior to the start of the Pitocin. She was aware of the Hospital's policy not to induce if the baby was breech. Labor not yet having started, Nurse Kaczmarski administered the Pitocin at noon. Nurse Kaczmarski called Dr. Bentolila at about 2:30 p.m. to tell him that Mrs. Applegrad was complaining of a headache. Dr. Bentolila prescribed Tylenol. At about that time, Kaczmarski 6 A-5215-14T4 noticed meconium, a fetal discharge, coming from the patient. Kaczmarski, in her experience, did not believe the meconium to be unusual because Mrs. Applegrad was past her due date. The nurse did not recall whether she told Dr. Bentolila about the meconium when she spoke to him at that time. Because Mrs. Applegrad began feeling contractions, Nurse Kaczmarski performed a sterile vaginal examination of her at 3:45 p.m. Kaczmarski testified that there was a "standard order" in the Hospital giving a nurse the discretion to conduct such an examination when she believed it to be necessary. She determined from the examination Mrs. Applegrad was four centimeters dilated. Nurse Kaczmarski could not determine the position of the baby at that time, but she believed the baby was "still very high" up. However, the nurse stated that when she did the vaginal examination she was not trying to determine the position of the baby. Sometimes Kaczmarski could feel a head when doing such an examination, but she testified that it was not part of her job to determine fetal presentment. Nurse Kaczmarski did another sterile vaginal examination at 4:45 p.m., at which time Mrs. Applegrad was six centimeters dilated. According to Mrs. Applegrad, Kaczmarski told her at both the 3:45 p.m. and 4:45 p.m. examinations that she had felt the baby's head. 7 A-5215-14T4 About 5:00 p.m., Nurse Kaczmarski noticed that the fetal heart rate had risen from 155 to 170. She also noted the presence, once again, of meconium. The nurse called Dr. Bentolila at 5:00 p.m. and informed him of the increased heart rate, but not the meconium. Dr. Bentolila ordered an antibiotic be administered because of the possibility that Mrs. Applegrad might be developing an infection as a result of her water having been broken by that point for seventeen hours. He noted the increase in the fetal heart rate, known as tachycardia, could have been a sign of an infection. Mrs. Applegrad was given an epidural at 5:30 p.m. Nurse Kaczmarski did another sterile examination at 5:40 p.m. and found Mrs. Applegrad was by that point eight centimeters dilated. Kaczmarski also noticed large, thick meconium. She called Dr. Bentolila and told him about the thicker meconium and that the fetal heart rate had risen to 175. Dr. Bentolila advised the nurse that he was on his way to the Hospital. Mrs. Applegrad continued to receive Pitocin. Dr. Bentolila arrived back at the Hospital at 6:15 p.m., at which time he determined that the baby was in a breech position. He also examined the heart rate strip. He performed a vaginal examination, which revealed that Mrs. Applegrad was nine centimeters dilated. 8 A-5215-14T4 Dr. Bentolila claimed in his deposition that he fully discussed with Mr. and Mrs. Applegrad the respective pros and cons of vaginal delivery and a Cesarean section ("C-section"), and that they decided on a vaginal delivery. According to Dr. Bentolila, he had performed at least three breech vaginal deliveries in the previous four to five months. Mrs. Applegrad testified that after Dr. Bentolila told her that the baby was breech, she asked him if a C-section was necessary, and he assured her that she could deliver vaginally. She stated that she preferred to deliver vaginally because the recovery was easier. According to Mrs. Applegrad, Dr. Bentolila did not advise her that she was unsuitable for vaginal delivery due to the baby's position. Nurse Kaczmarski testified that Dr. Bentolila was informed that an operating room was available, should he decide to perform a C-section. Dr. Bentolila and the Applegrads then had a discussion, apparently in Hebrew, following which Dr. Bentolila told Nurse Kaczmarski that the plan was to have a vaginal delivery. Nurse Patel was the charge nurse in the labor and delivery ward on May 26 from 3:00 p.m. to 11:00 p.m. She stated that, after Dr. Bentolila determined the baby was breech, he told her that he nonetheless believed the baby could be safely delivered vaginally. 9 A-5215-14T4 The Delivery Nurse Kaczmarski's shift ended at 7:00 p.m., at which time Mrs. Applegrad was fully dilated. Mrs. Applegrad began pushing. Kaczmarski left the hospital fifteen minutes later. Nurse Susan DaSilva4 came on duty at 7:00 p.m. The baby's heart rate was 175 to 180 at that time. DaSilva put an oxygen mask on Mrs. Applegrad. DaSilva observed a large amount of meconium five minutes later. During the next ninety minutes or so, Dr. Bentolila had Mrs. Applegrad push on and off, and increased the level of Pitocin. The fetal heart rate rose to as high as 190, and as low as 60, during this time. C.A. was born at 8:44 p.m. There was thickened meconium at delivery. C.A. was born "hypotonic," meaning with no tone. Nurse DaSilva described C.A. as pale and limp upon delivery, noting that a code was called a minute after the child's birth. Events After the Delivery After the baby was delivered, Nurse DaSilva saw Dr. Bentolila tear up the original order he had written that morning and place it in a shredder box. She told Nurse Patel what she had seen. Patel proceeded to unlock the shredder box and retrieve the order. 4 Nurse DaSilva died before trial. 10 A-5215-14T4 Nurse Patel similarly stated that, after the delivery, Nurse DaSilva told her something that caused her to check the shredder box. Patel found in the box an order sheet that had been "ripped in half." Patel notified the labor and delivery unit. Patel then handed the order to the manager of the hospital's risk management department. She identified the handwriting on the order as being Dr. Bentolila's. The order was eventually taped back together. Nurse Patel saw another order for Pitocin in the chart. This new order apparently omitted the statement on the original order that the baby was vertex, as well as Dr. Bentolila's instruction to defer a vaginal examination prior to administering the Pitocin. Nurse Kaczmarski, meanwhile, denied having anything to do with the attempted destruction of the original order. Dr. Chu, the pediatrician, arrived at the delivery room prior to delivery. She set up a resuscitation table and made sure that all her equipment was in working order. Dr. Chu was told of the presence of the meconium-stained amniotic fluid, which indicated to her some form of stress to the baby during delivery. After the umbilical cord was cut, C.A. was handed to Dr. Chu, who proceeded to examine the baby's throat. C.A. was not moving or breathing. The baby also had poor color and poor muscle tone. Dr. Chu suctioned the baby's upper airway, using a suction catheter, because C.A. had many secretions in her mouth and Dr. 11 A-5215-14T4 Chu could not see C.A.'s vocal cords. Dr. Chu then used an endotracheal tube ("ET tube") connected to a meconium aspirator, in order to suction C.A.'s throat. Although there were "a lot" of secretions, Dr. Chu did not find any meconium present. Dr. Chu then intubated C.A. by placing the ET tube through the baby's vocal chords. Her first attempted intubation was unsuccessful because of the amount of secretions in the vocal chords. Dr. Chu was successful, however, on her second attempt to insert the ET tube. Brown, the respiratory therapist, then heard breathing sounds in both of the baby's lungs. Dr. Chu denied that she had placed the tube in the baby's esophagus rather than the throat. According to Dr. Chu, had she done so, she would not have heard any air being pumped into the baby's lungs, but rather the air would have gone into the stomach. C.A. failed to respond to being placed on a warming table, and Dr. Chu applied a towel. At thirty seconds to one minute after birth, Dr. Chu began positive pressure ventilation ("PPV"). She did this through an "Ambu bag," because of C.A.'s breathing difficulties. As explained by Dr. Chu, PPV involves the use of air pressure to expand the lungs. C.A.'s heart rate improved a small amount for two or three minutes, increasing to 50-70 beats per minute. However, at that point, C.A. stopped breathing. Dr. Chu began chest compressions 12 A-5215-14T4 and called a Neonatal Intensive Care Unit ("NICU") code. At the five-minute mark, C.A.'s Apgar score was zero, and remained so until the ten-minute mark. Prosperita Du, a nurse with the Hospital's neonatal unit, had been in the delivery room taking notes while C.A. was born. At 8:55 p.m., Nurse Du wrote that the NICU unit was called. The record does not reveal precisely how long it took for the code cart to arrive, but it apparently took between one to three minutes. At 8:55 p.m., Dr. Chu called for an anesthesiologist to help with the baby's resuscitation. Dr. Chu did so because, despite repeated attempts at suctioning and opening the baby's airway, she still observed inadequate chest movement. At 8:58 p.m., Dr. Chu administered epinephrine through the ET tube. Dr. Chu testified that she did not consider removing the ET tube from C.A. because air was still getting into the lungs, and she "felt confident" that the tube was in the correct position. Dr. Chu further stated that the risk of giving epinephrine too early was that it could damage the heart by making it work harder to supply oxygen. Dr. Stephen Gal, the anesthesiologist, arrived at or about 9:00 p.m. He observed the intubation tube was apparently dislodged. He was able to re-intubate C.A. In order to do so, 13 A-5215-14T4 Dr. Gal had to occlude the pop-off valve, a device that prevented the delivery of too much air to the lungs which could cause them to collapse. C.A. was transferred to the neonatal unit at 9:25 p.m. Brown, the respiratory therapist, placed C.A. on a ventilator about forty- five minutes after birth. It is undisputed that C.A. has profound and permanent disabilities associated with her brain damage. B. In March 2008, plaintiffs filed an initial complaint in the Law Division asserting medical negligence against Dr. Bentolila and the Hospital. Thereafter, in May 2009, plaintiffs filed an amended complaint to add Nurses Kaczmarski and Patel as defendants. A stipulation dismissing the complaint against Nurse Patel with prejudice was entered in October 2009. Eventually, Dr. Bentolila and plaintiffs reached a settlement for an undisclosed sum. A stipulation of dismissal as to Dr. Bentolila was entered on November 25, 2009. In March 2010, plaintiffs filed a second amended complaint, this time adding Dr. Chu and Therapist Brown as defendants. They both denied liability. During discovery, plaintiffs moved to compel the disclosure of the Hospital's investigative and peer review records relating 14 A-5215-14T4 to C.A.'s birth. The Hospital withheld several of those documents. After the trial court ruled that certain of those documents were protected from discovery, this court granted plaintiffs' motion for leave to appeal and remanded the matter for further development of the record. C.A. v. Bentolila, No. A-3747-09 (App. Div. Jan. 5, 2011). After the record on the privilege issue was more fully developed, plaintiffs again appealed from the trial court's order denying discovery. On August 9, 2012, we held that some of the contested documents were privileged from discovery under the PSA, but others were not. C.A. v. Bentolila, 428 N.J. Super. 115 (App. Div. 2012), rev'd, 219 N.J. 449 (2014). The privilege issue then was considered by the Supreme Court, which reversed the portion of this court's holding that some of the documents sought by plaintiffs were not privileged under the PSA. C.A. v. Bentolila, 219 N.J. 449 (2014). Back on remand in the trial court, therapist Brown's motion for summary judgment was granted in January 2015.5 However, Nurse Kaczmarski's own motion for summary judgment was denied. The jury trial took place over forty-five intermittent days in February, March, April, and May 2015. During the course of the 5 This disposition has not been appealed. 15 A-5215-14T4 protracted trial, the court entered an order which, relevant to this appeal, stated that (1) evidence regarding Dr. Bentolila's attempted "spoliation" of and revision to his medical order was admissible; (2) a jury charge on preexisting cause under Scafidi v. Seiler, 119 N.J. 93 (1990), would be given; and (3) defendants were permitted to introduce evidence regarding Mrs. Applegrad's preexisting condition of chorioamionitis. C. The trial proofs included testimony from numerous fact witnesses and several competing experts. We describe in detail key facets of that testimony because of its importance to the legal issues before us. Dr. Crawford (Neonatal & Perinatal Medicine – Plaintiffs) Caroline Crawford, a physician, testified for plaintiffs as an expert in neonatal and perinatal medicine, and resuscitation. Dr. Crawford testified that C.A. was in a "very difficult situation" at birth. Her heart rate was only fifty and she was limp, "floppy like a rag doll," with poor color, no response to stimulation and not breathing. Dr. Crawford testified that the uniform resuscitation procedures recommended by the American Academy of Pediatrics required four steps within two minutes of life if a baby is in distress. These were: (1) clear the airway; (2) if the baby still was not breathing, insert the ET tube with 16 A-5215-14T4 Ambu bag into the trachea; (3) assure adequate blood circulation; and (4) if necessary, the use of epinephrine to jolt the heart into pumping. Dr. Crawford opined that Dr. Chu deviated from accepted standards of care by not immediately intubating C.A. to clear the airway of thick meconium, and by not calling an emergency code sooner. According to Dr. Crawford, the code should have been called after no more than two minutes. In addition, Dr. Crawford determined that Dr. Chu had not placed the ET tube in the proper area, and had improperly left it in place even though there was inadequate chest movement. She concluded that the intubation was made into the esophagus rather than the trachea. According to Dr. Crawford, Dr. Chu's failure to correct this error allowed the baby's cardiac arrest to continue longer than necessary. In addition, Dr. Crawford asserted that C.A. should have been intubated at thirty seconds, not at three minutes. As a result of this claimed deviation, an obstruction of mucous or meconium was created in the baby's trachea. Dr. Crawford further noted that the very brief increase in the baby's heart rate after Dr. Chu utilized the PPV was insufficient. The failure to call the code and administer the epinephrine until the eleven-minute mark also contributed, in her view, to the adverse outcome. Dr. Crawford concluded that, as a result of the "faulty 17 A-5215-14T4 resuscitation," C.A. suffered "profound irreversible brain damage from a prolonged cardiac arrest and prolonged deprivation of oxygen and blood flow to her brain." Dr. Crawford added that had the resuscitation been properly and timely carried out, C.A. would have been "fine." In addition, Dr. Crawford testified that chorioamnionitis, i.e. an inflammation of the amniotic fluid caused by the meconium, did not have an effect on C.A. That is because there was no fetid vaginal discharge and no uterine tenderness. Nor was there a drop in C.A.'s blood platelets, as Dr. Crawford explained would be seen with chorioamnionitis. Dr. Adler (Pediatric Neurology – Plaintiffs) Daniel Adler, M.D., testified for plaintiffs as an expert in pediatric neurology. Dr. Adler stated that C.A. suffered from permanent brain damage in the form of cerebral palsy. Her condition resulted from hypoxic-ischemic encephalopathy, reduced blood flow and oxygen levels to the brain because of events surrounding the time of her birth. Based on his review of C.A.'s brain scans, Dr. Adler concluded that the damage to her occurred after she was delivered. Dr. Adler noted the blood platelet level, a measure of the oxygen going to the brain, was in normal range prior to C.A.'s birth. Therefore, "any hypoxia before the birth wasn't significant" and did not contribute to the injury. 18 A-5215-14T4 Dr. Adler noted that C.A.'s heart rate was not normal for twenty-two minutes after birth. He maintained this is when the child's brain injury took place. Dr. Adler acknowledged that, considering the extent of the injury, "there must have been some hypoxia occurring right before the delivery . . . . It must have preexisted the delivery by some minutes." Nonetheless, he concluded that, had C.A. been adequately resuscitated by ten minutes of age, she would only have suffered limited neurological injury, if any. Those injuries would have included walking at a late developmental time, delayed language skills, and some behavioral difficulties. Further, Dr. Adler testified that chorioamnionitis did not play a role in C.A.'s brain injury. He asserted that condition would not explain a baby who was born with a heart rate of fifty, but rather would cause chronic problems that were not present in C.A.'s blood tests. Nor was there any evidence that C.A. had an infection. In Dr. Adler's opinion, C.A. was comatose and in a persistent vegetative state after she was born, but became minimally conscious in 2010. She remained dependent on a feeding tube. He added that there was no possibility that C.A.'s condition would improve. He predicted that she would live to no more than fifteen to twenty years of age. 19 A-5215-14T4 Nurse Bolletino (Obstetrical Nursing – Plaintiffs) Tina Bolletino, a labor and delivery nurse, testified for plaintiffs as an expert in obstetrical nursing. She opined that Nurse Kaczmarski failed to follow the Hospital's nursing policy with regard to the administration of Pitocin by failing to question Dr. Bentolila's order; in not telling him about the abnormal fetal heart rate sooner; and in not acting as the patient's advocate to make sure that Dr. Bentolila examined Mrs. Applegrad to assess whether the baby was in a vertex position before ordering that she be induced. Nurse Bolletino criticized Kaczmarski's failure to inform Dr. Bentolila of the meconium until almost three hours after she had first documented it. Nurse Bolletino also opined that Kaczmarski deviated from the appropriate standard of nursing care by not putting Mrs. Applegrad on an oxygen mask, which would have increased the amount of oxygen to the baby. Kucsma (Forensic Economist – Plaintiffs) Kristin Kucsma, a forensic economist, testified for plaintiffs as an expert in economic losses. She performed an appraisal of C.A.'s economic loss based on lifetime care through 2021 and 2026 under a ten-to-fifteen-year life expectancy. Kucsma determined that if C.A. lives till 2019, the cost of her home care 20 A-5215-14T4 would be nearly $12 million.6 She also concluded that the present value of C.A.'s total economic loss, had she received a high school diploma, was $12,957,854. Assuming that, if healthy, C.A. would have obtained a college degree, Kucsma calculated the present value of the total economic loss at $13,543,369. Dr. Beckmann (Labor & Delivery Nursing – Defense) Claudia Beckmann, who holds a doctorate in infant nursing, testified for Nurse Kaczmarski as a defense expert in labor and delivery nursing. Dr. Beckmann concluded that Kaczmarski complied with the applicable standard of care for a labor and delivery nurse in her treatment of Mrs. Applegrad. Dr. Beckmann further opined that Kaczmarski acted appropriately in following Dr. Bentolila's instructions to defer a vaginal examination, because of the risk of infection due to Mrs. Applegrad's water having broken. According to Dr. Beckmann, Kaczmarski met the applicable standard of care when she performed a vaginal examination at 3:45 p.m. to determine how far Mrs. Applegrad was dilated, and in calling Dr. Bentolila at around 5:00 p.m. after the baby's heart rate had increased. Dr. Small (Obstetrics/Labor & Delivery – Defense) Daniel Small, M.D., testified for Nurse Kaczmarski as an 6 The proofs reflected, as stipulated on the verdict sheet, $2,375,596 in past medical costs. 21 A-5215-14T4 expert in obstetrics and labor and delivery. According to Dr. Small, a doctor can defer a vaginal examination within one hour of inducement if there is a medical reason indicating it is not in the patient's best interest to do so. In this instance, because Mrs. Applegrad's water had broken, Dr. Small felt there was a much higher risk of infection for her and for the baby had a vaginal examination been done before inducement. Dr. Small believed that Dr. Bentolila's 8:30 a.m. order on May 26 was "entirely appropriate . . . ." In addition, he testified that a labor and delivery nurse has to rely on a doctor's representation as to the baby's presentation. However, Dr. Small did conclude that Dr. Bentolila had deviated from the applicable standard of care, when he failed to call for a C-section after he arrived at the hospital at 6:15 p.m. According to Dr. Small, the harm from Dr. Bentolila's failure to do so became compounded as time went on. Had C.A. been born by 7:00 p.m., Dr. Small believed that she would have been fine. He noted that very few doctors deliver babies vaginally who are in breech position, because there is an increased risk of head entrapment. Delivering a baby who was breech after the mother had been on Pitocin was even more unusual. In addition, C.A.'s heartbeat was growing faster by the hour, indicating an infection. Dr. Small also faulted Dr. Bentolila for not having a sufficiently- 22 A-5215-14T4 detailed informed consent discussion with the parents about the risks of a vaginal delivery in these circumstances. Dr. Small rejected the suggestion that it was too late to do a C-section at 6:15 p.m. on May 26 because Mrs. Applegrad was then nine centimeters dilated. According to Dr. Small, a C-section can be performed any time prior to delivery. He believed that by 6:30 p.m. Dr. Bentolila should have performed the C-section. In addition, he noted that there were large decelerations in the heart rate, starting at around 7:00 p.m. Dr. Small opined that Dr. Bentolila, having seen this, violated the applicable standard of care by not calling for a C-section at this point. Starting after 7:30 p.m., Mrs. Applegrad began experiencing "deep decelerations." This is when Dr. Small believed that the brain damage occurred. The baby's heart rate remained low until delivery. Dr. Mandelbaum (Pediatric Neurology – Defense) David Mandelbaum, M.D., testified for Nurse Kaczmarski as a defense expert in pediatric neurology. He concluded that C.A.'s neurological disability was due to hypoxic ischemic encephalopathy, meaning an inadequate supply of blood oxygen to the brain. According to Dr. Mandelbaum, this condition was due to a combination of injuries prior to birth, including: too much amniotic fluid that was swallowed by the fetus; Mrs. Applegrad's 23 A-5215-14T4 hypothyroidism; the baby being breech; the chorioamnionitis; and the "dramatic" fluctuation in heart rate after Mrs. Applegrad began pushing. As Dr. Mandelbaum described it, "there was . . . a profound . . . impairment of blood flow to the fetus . . . that was manifest in this dramatically abnormal heart rate." Based on the placental tissue obtained from C.A. after birth, Dr. Mandelbaum stated that there was chorioamnionitis, i.e., an inflammation of the amniotic sack, as well as funisitis, an inflammation of the umbilical cord. As to the timing of the baby's injury, Dr. Mandelbaum testified that he believed it had occurred before birth, when Mrs. Applegrad started pushing. He added: "This was a devastated baby at birth and if it wasn't . . . devastated . . . the resuscitation would have been more effective. The reason the resuscitation failed was because of the preexisting injury." Dr. Mandelbaum estimated that only twenty percent of the injury would have been evident, had the baby been delivered prior to the "period of acute profound hypoxia ischemia." Dr. Bedrick (Neonatologist and Pediatrics – Defense) Alan Bedrick, M.D., a neonatologist, testified for Nurse Kaczmarski and Dr. Chu as a defense expert in pediatrics and neurology. In Dr. Bedrick's opinion, the bulk of C.A.'s injury occurred prior to birth, and, more specifically, within the sixty to ninety minutes beforehand. Upon examining the fetal heart 24 A-5215-14T4 monitor strips, Dr. Bedrick noted a progressive deterioration over that period of time, to a point where there were "very profound, distinct abnormalities . . . ." He reviewed the placenta pathology report, and noted that there was acute chorioamnionitis and acute funisitis. As a result, C.A. was receiving less oxygen and nutrients. According to Dr. Bedrick, both of those conditions were related to the subsequent development of cerebral palsy. Thus, he believed these conditions "very well could have" played a role in the damage suffered by C.A., but he could not quantify to what degree. Dr. Bedrick described the effort to resuscitate C.A. as "challenging." In his opinion, "the medical and nursing team handled that situation expertly and appropriately." With respect to Dr. Chu, he testified that she met the standard of care in her treatment of C.A. He felt Dr. Chu had appropriately addressed C.A.'s airway and supported her heart with cardiac massage. Nor was it a deviation for Dr. Chu to have departed from neonatal resuscitation guidelines because C.A. was born with profound brain damage. Dr. Bedrick opined that Dr. Chu further acted appropriately by clearing the airway of fluid, and by initiating PPV thirty seconds to one minute after birth, because there was no meconium recovered from the suctioning. Dr. Bedrick did not believe that 25 A-5215-14T4 C.A.'s gasping for air (known as "apneic") required Dr. Chu to call a code, because that call is reserved for cardiac difficulties. Dr. Bedrick did not believe that there was a total occlusion of C.A.'s ET tube, because breathing sounds were heard. Nor did he believe that the ET tube was misplaced in the esophagus, but that it was in the trachea the entire time. Further, Dr. Bedrick opined that Dr. Chu's failure to administer epinephrine by two minutes after birth did not violate the standard of care, and was within her medical judgment, because C.A.'s airway and breathing had not been "taken care of." Thus, stimulating the heart in those circumstances could have caused the baby harm. As a result, not administering the epinephrine until seventeen minutes after birth was also appropriate. Nor did Dr. Chu violate the applicable standard of care by not pulling the tracheal tube sooner because there were breathing sounds. According to Dr. Bedrick, C.A. responded after the pop-off valve was occluded, because there likely was mucus partially occluding the ET tube, which was "inadvertently popped . . . ." On the whole, Dr. Bedrick concluded that Dr. Chu's overall care and treatment was within accepted standards of medical practice, because she effectively provided ventilation and confirmed that there was no meconium in C.A.'s airway. He asserted that C.A.'s "ongoing airway difficulty" was not due to Dr. Chu's 26 A-5215-14T4 treatment, but rather to the secretions in the airway. Even had the resuscitation gone perfectly, Dr. Bedrick believed that C.A. would have had a brain injury because she was brain-damaged at the time of birth. He cited in this regard the changes in the baby's heart rate sixty to ninety minutes before delivery, and the low heart rate and difficulty breathing at birth. He also cited the chorioamnionitis, which he opined can cause brain injury. Dr. Posencheg (Neonatal Resuscitation – Defense) Michael Posencheg, M.D., a neonatologist, testified for Dr. Chu as a defense expert in neonatal resuscitation. Dr. Posencheg stated that either a suction catheter or an ET tube with a meconium aspirator could appropriately be used to remove meconium prior to the administration of PPV. According to Dr. Posencheg, when C.A.'s heart rate fell at two to three minutes of life, Dr. Chu complied with the applicable standard of care by initiating chest compressions. The expert added that Dr. Chu was "doing her best to establish ventilation, and that is the most important thing . . . ." Nor did he believe that it was a violation of the standard of care for Dr. Chu to have been unsuccessful on her initial attempt to intubate. Further, Dr. Posencheg opined that Dr. Chu had acted with proper judgment in the timing of the administration of the epinephrine, because to administer the drug when the baby's 27 A-5215-14T4 breathing is poor can damage the baby's heart. Therefore, he felt Dr. Chu did not violate the standard of care by not giving the epinephrine at one and a half to two minutes of life because there was insufficient ventilation at that time. The Parents' Testimony Mrs. Applegrad, who has four other children, testified that when she was told of C.A.'s impaired condition, she was "devastated." According to Mrs. Applegrad, C.A.'s condition impacted the "whole family dynamics" including her relationship with her husband. She noted he began to worry about everyone in the family, but they were able to "work it out" through counseling. Mr. Applegrad testified that his wife "changed" after C.A.'s birth, remarking that she "is just not happy anymore." Mr. Applegrad was present during the entire labor and delivery, including when the medical personnel were working to resuscitate C.A. He recalled that at one point, Dr. Bentolila told both parents that "it doesn't look good." D. After considering these extensive proofs, the jury returned a verdict, finding that (1) Nurse Kaczmarski had deviated from accepted standards of nursing practice; (2) her deviation was the proximate cause of some of C.A.'s injuries; and (3) the deviation was a substantial factor in the cause of the ultimate injury. 28 A-5215-14T4 However, the jury also found that the defense had proven that Dr. Bentolila's acts or omissions had "destroyed" the connection between the nurse's deviation and C.A.'s ultimate injury. The jury separately found that plaintiffs had failed to prove that Dr. Chu deviated from accepted standards of medical practice. Judgment in favor of Nurse Kaczmarski and the Hospital, and dismissing plaintiffs' complaint, was entered on June 8, 2015. The court also entered a judgment of no cause of action as to Dr. Chu on the same date. Plaintiffs appealed. Nurse Kaczmarski cross-appealed from the January 12, 2015 order denying summary judgment. Dr. Chu cross-appealed from the trial court's May 11, 2015 in limine ruling to deny her motion to dismiss plaintiffs' negligent infliction of emotional distress claim. II. Among the many arguments plaintiffs advance in support of reversal and a new trial, none are more significant or compelling than their contention that the jury instructions and corresponding verdict sheet were severely flawed in several respects. In particular, plaintiffs contend the jury charge contained an improper and confusing mixture of passages on liability, proximate causation, and superseding intervening cause, while at the same time prejudicially confining a Scafidi "increased risk" 29 A-5215-14T4 instruction only to defendant Dr. Chu's conduct. The instructions also included what plaintiffs characterize as a vague and insufficiently tailored "medical judgment" charge as to Dr. Chu. These flawed instructions on the law were accompanied by an "equally problematic" verdict form. Plaintiffs maintain these errors produced a confounding and legally-inconsistent series of juror responses on the verdict form, and an unsustainable verdict. We agree, albeit based upon a slightly different analysis. The verdict form the court created and used in this case, 7 consisted of the following queries and yielded the following juror votes with respect to the liability issues: JURY INTERROGATORIES 1. Have the Plaintiffs proven by the preponderance of the evidence that Kourtney Kaczmarski, RN deviated from accepted standards of nursing practice? Yes ______ If your answer is "Yes", proceed to Question 2. No ______ If your answer is "No", proceed to Question 5. Vote 8-0 2. Have the Plaintiffs proven that Ms. Kaczmarski's deviation from accepted standards of nursing practice was a proximate cause of some of the plaintiff's injury? 7 We were advised at oral argument by plaintiffs' counsel that she did not see the form of the verdict sheet until the day it was issued. 30 A-5215-14T4 Yes ______ If your answer is "Yes", proceed to Question 3. No ______ If your answer is "No", proceed to Question 5. Vote 8-0 3. Have the Plaintiffs proven that Ms. Kaczmarski's deviation from accepted standards of nursing practice was a substantial factor in causing the Plaintiff's ultimate injury? Yes ______ No ______ Vote 7-1 If your answer is "Yes", proceed to Question 4. If your answer is "No", proceed to Question 5. 4. Has Kourtney Kaczmarski proven that Dr. Bentolila's acts and/or omissions destroyed the connection between Ms. Kaczmarski's deviation from accepted standards of nursing care and the plaintiff's ultimate injury? Yes ______ No ______ Vote 8-0 Proceed to Question 5. 5. Have the Plaintiffs proven by the preponderance of the evidence that Yie-Hsien Chu, MD deviated from accepted standards of medical practice? Yes __ ____ If your answer is "Yes", proceed to Question 6. No ______ If your answer is "No", and your answer to 1, 2 or 3 was "No", or your answer to 4 was "Yes", stop and return your verdict. 31 A-5215-14T4 If your answer to 1, 2 and 3 was "Yes" and your answer to 4 was "No", proceed to Question 10. Vote 7-1 6. Have the Plaintiffs proven that Dr. Chu's deviation from accepted standards of medical practice increased the risk of harm posed by the Plaintiff's pre-existing condition at birth? Yes __ ____ If your answer is "Yes", proceed to Question 7. No __ ____ If your answer is "No", and your answer to 1, 2 or 3 was "No", or your answer to 4 was "Yes", stop and return your verdict. If your answer to 1, 2 and 3 was "Yes" and your answer to 4 was "No", proceed to Question 10. Vote __ ____ 7. Was the increased risk of harm a substantial factor in causing the Plaintiff's ultimate injury? Yes __ ____ If your answer is "Yes", proceed to Question 8. No __ ____ If your answer is "No", and your answer to 1, 2 or 3 was "No", or your answer to 4 was "Yes", stop and return your verdict. If your answer to 1, 2 and 3 was "Yes" and your answer to 4 was "No", proceed to Question 10. Vote __ ____ 8. Has Dr. Chu met her burden of proving that some portion of the ultimate injury was a result of the pre-existing condition? 32 A-5215-14T4 Yes __ ____ If your answer is "Yes", proceed to Question 9. No ______ If your answer is "No", proceed to Question 10. Vote __ ____ 9. State in percentages, what portion of the ultimate injury is a result from: A. The pre-existing condition __________% (Only answer if answer to Question 8 was "Yes") B. Yie-Hsien Chu, MD's deviation from the accepted standard of medical practice ____________% Total __ 100 __% The total must equal 100%. Vote _______ Proceed to Question 10. 10. Has a defendant(s) proven by the preponderance of the evidence that Eric Bentolila, MD deviated from accepted standards of medical practice? Yes __ ____ If your answer is "Yes", proceed to Question 11. No __ ____ If your answer is "No", and your answer to 3 was "Yes", and your answer to 4 was "No", and, your answer to 7 was "Yes", proceed to Question 12. If the answer is "No", and your answer to 3 was "Yes", 4 was "No" or your answer to 7 was "Yes", proceed to Question 13. 33 A-5215-14T4 Vote __ ____ 11. Has a Defendant(s) proven that Dr. Bentolila's deviation from accepted standards of medical practice was a proximate cause of the plaintiff's injury? Yes __ ____ If your answer is "Yes", proceed to Question 12. No __ ____ If your answer is "No", and your answer to 3 was "Yes", and your answer to 4 was "No", and, your answer to 7 was "Yes", proceed to Question 12. If the answer is "No", and your answer to 3 was "Yes", 4 was "No" or your answer to 7 was "Yes", proceed to Question 13. Vote __ ____ 12. State in percentages, what portion of the ultimate injury is a result of: A. Kourtney Kaczmarski, RN's deviation from the accepted standard of nursing practice ____________% B. Yie-Hsien Chu, MD's deviation from the accepted standard of medical practice ____________% C. Eric Bentolila, MD's deviation from the accepted standard of medical practice ____________% Total __ 100 __% The total must equal 100%. Only assign a percentage to Nurse Kaczmarski if you answered "Yes" to Question 3 and "No" to Question 4; only assign a percentage to Dr. Chu if you answered "Yes" to Question 7; only assign a percentage to Dr. Bentolila if you answered "Yes" to Question 11. 34 A-5215-14T4 [Remainder of verdict form relating to damages issues omitted]. As we will now demonstrate, this series of queries on the verdict form was confusing, incomplete, and improperly sequenced. In fact, the jurors found it necessary to request clarification of the critical concepts of proximate cause and substantial factors during their deliberations. It is well-established that appropriate instructions to a jury concerning the applicable law are "essential" for a fair trial. Wade v. Kessler Inst., 172 N.J. 327, 341 (2002); see also Henebema v. S. Jersey Transp. Auth., 430 N.J. Super. 485, 501 (App. Div. 2013), aff'd 219 N.J. 481 (2014). The instruction should correctly state the law in understandable language. Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-92 (1966). A jury charge and a verdict sheet should not confuse or mislead the jury. Maleki v. Atl. Gastroenterology Assocs., PA, 407 N.J. Super. 123, 128 (App. Div. 2009). Although there are some variations, traditional negligence elements, or their analogs, largely apply in a medical malpractice case. Verdicchio v. Ricca, 179 N.J. 1, 23 (2004). A plaintiff in such cases must prove: (1) the applicable standard of care, (2) breach of that standard, and (3) that the breach proximately caused the injury. Ibid. 35 A-5215-14T4 In a more routine malpractice case in which the plaintiff's injury can be traced to a single cause, the traditional "but for" test, i.e., assessing whether the injury would not have occurred but for the wrongful act, applies to the question of causation. Ibid. However, the "but for" test can be unsuitable where one or more actions "operate to bring about a certain result, and any one of them operating alone would be sufficient." Id. at 24 (citation omitted). For such contexts, our courts have adopted an alternate "substantial factor" test. Ibid. Under this different legal test of causation in a medical malpractice case, the fact-finder must decide whether the "defendant's deviation . . . increased a patient's risk of harm, or diminished the chance of survival, and whether such an increased risk was a substantial factor in producing the ultimate harm." Ibid. (citation omitted). The substantial-factor test, as applied in the context of medical malpractice actions, was refined in Evers v. Dollinger, 95 N.J. 399 (1984). In Evers, the Supreme Court held that when there is evidence that a defendant's negligent act or omission increased the risk of harm to the plaintiff, and that the harm was sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the ultimate result. Id. at 414-15. Thereafter, in Scafidi, 119 N.J. at 108, the Court applied 36 A-5215-14T4 this test to circumstances where a patient was treated for a preexisting condition, (i.e., premature labor), and a physician's negligence allegedly worsened that condition. The Court recognized that, in such a situation, it may be difficult to identify and prove the precise injury caused solely by the physician. Ibid. As the Court explained: Because the modified standard of proximate causation is limited to that class of cases in which a defendant's negligence combines with a preexistent condition to cause harm . . . the jury is first asked to verify, as a reasonable medical probability, that the deviation . . . increased the risk of harm from the preexistent condition. Assuming that the jury determines that deviation increased the risk of harm from the preexistent condition, we [then] use the "substantial factor" test of causation . . . . [Id. at 108-09 (citations omitted) (emphasis added).] Thus, a typical Scafidi situation involves a plaintiff who sought treatment for a preexisting condition, and a defendant physician, through negligence, allegedly either failed to diagnose or improperly treated the condition, causing it to worsen. Komlodi v. Picciano, 217 N.J. 387, 415 (2014). Such a "preexistent condition or disease is one that has become sufficiently associated with a plaintiff prior to the defendant's negligent conduct . . . ." Anderson v. Piciotti, 144 N.J. 195, 211 (1996) (citation omitted). 37 A-5215-14T4 Once a jury determines that a plaintiff has satisfied these inquiries about increased risks and substantial factors, it must next apportion damages. Reynolds v. Gonzalez, 172 N.J. 266, 283 (2002). Although the Scafidi model jury charge was devised generally for the benefit of plaintiffs (because it is the defendant who allegedly effectively deprived the plaintiff of a greater chance to survive or avoid deterioration), in some cases a defendant may seek the Scafidi charge in order to ensure a proper apportionment of damages. Anderson, 144 N.J. at 211. Generally speaking, without evidence of a preexisting condition, a Scafidi charge is inappropriate. In many Scafidi- type cases, the existence or identity of a preexisting condition is readily apparent and undisputed. Even so, where the condition is not so apparent prior to the defendant's alleged deviation, that does not automatically preclude "a Scafidi charge on the one hand, nor mandate[] a straight proximate cause instruction on the other." Gonzalez v. Silver, 407 N.J. Super. 576, 590 (App. Div. 2009). In addition, the charge tends to be applied in cases with complicated fact patterns. See Anderson, 144 N.J. at 207 (citing the "complicated claims" in Evers and Scafidi). We agree with plaintiffs that, in this case, the trial court should not have confined the Scafidi instruction to Mrs. Applegrad's preexisting condition of chorioamnionitis as it 38 A-5215-14T4 related to Dr. Chu's conduct as anesthesiologist after C.A. was delivered. Instead, the court should have broadened the Scafidi charge to encompass the care provided by Nurse Kaczmarski and to include other preexisting conditions beyond chorioamnionitis. At least two potential preexisting conditions were involved in the chronology of events. First, at some point between Dr. Bentolila's examinations of Mrs. Applegrad on May 25 and May 26, the baby, who apparently had been in a vertex position, moved into a breech position. According to plaintiff's experts and their theories of the case, this fetal position made a vaginal delivery more complicated, and should have alerted defendants to exercise greater precautions in the hours leading up to the birth. Second, the ongoing hypoxia likewise was a preexisting condition that arguably required different measures to assure a successful delivery. There is evidence both of these preexisting conditions were manifest before Dr. Bentolila delivered the child. As we have already noted, according to plaintiffs' experts, Nurse Kaczmarski deviated from the standards of care and increased the risks of harm to the baby in several ways. These alleged deviations included the nurse's failure to report sufficient information about the baby's status sooner to Dr. Bentolila. As plaintiffs argue, if the nurse had done so, Dr. Bentolila might have returned to the Hospital earlier to deliver the child, might 39 A-5215-14T4 not have ordered Pitocin to be administered to promote contractions, and might not have tried a risky vaginal delivery and instead proceeded with a C-section. We agree this is an appropriate context for a Scafidi charge to be issued on enhanced risk. The charge should have been given with respect to Nurse Kaczmarski's liability and not confined to Dr. Chu. We further agree with plaintiffs that the court erred in having the jury consider principles of superseding cause in the manner presented on the verdict form. A superseding or intervening act is one that breaks the chain of causation linking a defendant's wrongful act and the harm suffered by a plaintiff. Komlodi, 217 N.J. at 418 (citation omitted). Such an act is essentially the immediate or sole cause of the injury or harm. Ibid. "Therefore, if in looking back from the harm and tracing the sequence of events by which it was produced, it is found that a superseding cause has operated, there is no need of determining whether the actor's antecedent conduct was or was not a substantial factor in bringing about the harm." Restatement (Second) of Torts § 440 cmt. b (Am. Law Inst. 1965) (emphasis added). Case law on issues of superseding cause generally focuses upon whether the intervening cause was "so closely connected with the defendant's negligent conduct" that the defendant's responsibility should not be terminated. Lynch v. Scheininger, 40 A-5215-14T4 162 N.J. 209, 227 (2000). That inquiry looks to whether the intervening cause was sufficiently foreseeable. Ibid. The factors to be considered in that inquiry typically include: (a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence; (b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of the operation; (c) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation; (d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act; (e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him; (f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion. [Restatement (Second) of Torts § 442 (Am. Law Inst. 1965).] The failure of a third party to act to prevent harm threatened to another by an actor's negligent conduct is not a superseding cause unless, because of the lapse of time or otherwise, the 41 A-5215-14T4 actor's negligent conduct is found to have shifted from the actor to a third party. Restatement (Second) of Torts § 452 (Am. Law Inst. 1965). Thus, ordinarily, if the third person "is under a duty to the other to take such action, his failure to do so will subject him to liability for his own negligence . . . but his failure to perform his duty does not relieve the original actor of liability for the results of his own negligence." Id. at cmt. b. However, in "exceptional cases," a court may find that the entire duty and responsibility for the prevention of harm has passed to a third person as a superseding cause: Various factors will enter into it. Among them are the degree of danger and the magnitude of the risk of harm, the character and position of the third person who is to take responsibility, his knowledge of the danger and the likelihood that he will or will not exercise proper care, . . . the lapse of time, and perhaps other considerations. The most that can be stated here is that when by reason of the interplay of such factors, the court finds that full responsibility for control of the situation and prevention of the threatened harm has passed to the third person, his failure to act is then a superseding cause, which will relieve the original actor of liability. [Id. at cmt. f (emphasis added).] These principles of superseding cause were illuminated and applied by the Supreme Court in Komlodi, 217 N.J. at 413. In that case, a physician was accused of malpractice for prescribing a 42 A-5215-14T4 narcotic patch, to a patient whom she knew abused alcohol and drugs. Id. at 393. The patient had orally ingested the patch, causing permanent brain damage. Id. at 394. The Court held that the trial judge erred by giving a Scafidi charge in conjunction with a superseding cause charge, because the two charges, as presented, "became blurred." Id. at 413-15. The Court also held that the Scafidi charge and the verdict form failed to give the jury sufficient guidance. Id. at 416. Therefore, the Court reversed the verdict in favor of the plaintiff and remanded for a new trial and proper instructions on both the concepts of enhanced risk of harm and superseding cause. Id. at 417-20. The present case likewise is one in which the verdict sheet critically "blurred" the concept of a superseding cause with other key concepts relating to causation. The result was a jury verdict that is hopelessly inconsistent. Specifically, on Question 2 of the verdict sheet, the jury found that Nurse Kaczmarski's negligent conduct was a "proximate cause" in producing at least some of C.A.'s post-birth injuries. Then, in Question 3, the jury found that the nurse's deviation from standards of care was a "substantial factor" in causing those injuries to C.A. But then, inexplicably, in Question 4 the jurors further concluded that Dr. Bentolila's actions "destroyed the 43 A-5215-14T4 connection" between Nurse Kaczmarski's deviations and the baby's ultimate injuries. If, as the jurors found in Question 4, Nurse Kaczmarski's casual connection was "destroyed" by an intervening force, i.e., Dr. Bentolila, then the nurse logically could not have been a "substantial" factor in producing the harm to the child. The jury's two divergent findings in Questions 3 and 4 cancel out one another. The superseding cause, by its very

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Docket No.: a0969-16
Decided: 2018-04-17
Caption: STATE OF NEW JERSEY v. ANTHONY GLASS
Status: unpublished
Summary:
PER CURIAM Defendant Anthony Glass appeals from a September 13, 2016 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. The following facts are taken from the record. An Atlantic County grand jury charged defendant, in three separate indictments, with: third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 and 2C:2-6; second-degree robbery, N.J.S.A. 2C:15-1 and 2C:2-6; and third-degree theft by unlawful taking, N.J.S.A. 2C:20- 3 and 2C:2-6. Defendant pled guilty to second-degree robbery and four counts of third-degree theft by unlawful taking. During defendant's plea colloquy, he admitted that on June 14, 2010, he stole a wallet containing approximately $130 belonging to a Showboat Atlantic City casino patron. On June 23, 2010, co- defendant David Albright drove defendant to Caesars casino and distracted a patron while defendant stole an envelope containing $500 from the patron's shirt pocket. On July 7, 2010, defendant wrote a note which stated, "Give me all hundreds and fifties, don't make me do something I might regret," that co-defendant Johnny Pannell passed to a Resorts casino cashier. On June 23, 2010, defendant stole $130 from the back pocket of a Borgata casino patron, while Albright distracted the patron. On July 17, 2010, defendant stole vouchers worth $1500 and $975 from the pocket of a Caesars casino patron, while Albright blocked the view of others. 2 A-0969-16T1 In exchange for defendant's plea, the State agreed to recommend a sentence of seven years imprisonment, subject to an eighty-five-percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, followed by three years of parole supervision upon release on the second-degree robbery count. The State also agreed to recommend a concurrent term of four years imprisonment on each of the remaining indictments. The plea was conditioned on defendant's appearance at sentencing and truthful testimony against his co-defendants. During the plea colloquy, defendant testified as follows: he understood the terms of his plea agreement; no one forced him to enter into the plea deal; he understood he was relinquishing his right to a trial; his lawyer reviewed all of the discovery with him; he understood the robbery charge was subject to NERA; and understood if he failed to return to the court for sentencing, the plea deal would be voided, and he could receive the maximum sentence allowed for his charges. The court accepted defendant's plea as knowing and voluntary, and scheduled sentencing for January 14, 2011. Defendant was released on his own recognizance pending sentencing. Defendant failed to appear for his sentencing, and remained a fugitive until he was arrested in September 2013. Following his arrest, defendant filed a motion to withdraw his guilty plea. 3 A-0969-16T1 At the motion hearing, defendant's counsel argued defendant fled because he had been threatened by Albright. Counsel noted the police report following defendant's arrest reflected that he told police he had nothing to do with the robberies and was willing to testify against Albright. He asserted the reason he accepted the State's plea offer was because Albright threatened to kill him if he talked. Defendant further asserted Albright made threats against defendant's wife and niece "if [defendant] talked." The motion judge rejected defendant's argument and denied the motion. The judge found no colorable claim of innocence. The judge stated "The facts upon which the defendant ma[de] this motion [were], in a word, bogus. They're not credible." Noting defendant had received the benefit of "a very lenient, fair plea bargain," the judge rejected defendant's allegation he entered into his plea deal under duress due to threats from Albright as "also bogus." Defendant was sentenced to ten years in prison on the second- degree robbery indictment, with an eighty-five-percent period of parole ineligibility under NERA, and three years of parole supervision upon release, concurrent with four years in prison on the remaining indictments, each concurrent to the other. Defendant was ordered to pay restitution and was prohibited from entering Atlantic City casinos. 4 A-0969-16T1 Defendant appealed his sentence, which we heard on our Excessive Sentencing Oral Argument calendar. We affirmed defendant's sentence, but remanded for defendant to receive 190 days of jail credit on each indictment. State v. Glass, No. A- 2588-13 (App. Div. April 15, 2015). The Supreme Court denied defendant's petition for certification. State v. Glass, 223 N.J. 165 (2015). Defendant filed a pro se petition for PCR, and pro se supplemental brief and certification. Counsel for defendant filed a letter brief in support of the PCR petition. Defendant asserted his trial counsel was ineffective for failing to investigate defendant's claim that he had been threatened by Albright prior to accepting the plea deal, and for failing to provide discovery documents and review the accusations and indictments with defendant. The PCR judge denied defendant's petition. The judge also found defendant's claim he pled guilty under duress was not credible because defendant's testimony implicating Albright indicated he did not take Albright's alleged threats seriously. The judge rejected defendant's claim counsel failed to review discovery and consult with him as "bare . . . and bald assertions that . . . are simply not supported by the record." 5 A-0969-16T1 This appeal followed. Defendant makes the following arguments: POINT I – DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF AND AN EVIDENTIARY HEARING. A. Counsel Was Ineffective For Failing To Investigate Defendant's Contention That He Was Entering A Plea Under Duress By Threat Of Co-Defendant Thereby Compelling Defendant To Fail To Report For Sentencing For His Own Safety Which In Turn Increased The Penal Exposure He Would Have Otherwise Been Exposed To. B. Counsel Was Ineffective For Failing To Review Discovery Prior To Advising Defendant To Accept A Plea. We begin by reciting our standard of review. A PCR court need not grant an evidentiary hearing unless "a defendant has presented a prima facie [case] in support of post-conviction relief." State v. Marshall, 148 N.J. 89, 158 (1997) (alteration in original) (quoting State v. Preciose, 129 N.J. 451, 462 (1992)). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. The court must view the facts "in the light most favorable to defendant." Ibid. (quoting Preciose, 129 N.J. at 462-63); accord R. 3:22-10(b). If the PCR court has not held an evidentiary hearing, we "conduct a de novo review . . . ." State v. Harris, 181 N.J. 391, 421 (2004). 6 A-0969-16T1 To establish ineffective assistance of counsel, defendant must satisfy a two-prong test: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, 466 U.S. at 687).] Counsel's performance is evaluated with extreme deference, "requiring 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .'" Fritz, 105 N.J. at 52 (alteration in original) (quoting Strickland, 466 U.S. at 688-89). To demonstrate prejudice, "'actual ineffectiveness' . . . must [generally] be proved[.]" Ibid. (quoting Strickland, 466 U.S. at 692-93). Defendant must show the existence of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a 7 A-0969-16T1 probability sufficient to undermine confidence in the outcome." Ibid. (quoting Strickland, 466 U.S. at 694). "A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post- conviction relief[.]" R. 3:22-10(b). "A court shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory, or speculative[.]" R. 3:22-10(e)(2). "Rather, defendant must allege specific facts and evidence supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013). Defendant argues he was denied the effective assistance of counsel. Specifically, he contends counsel failed to investigate his claims that he accepted his plea deal under duress, and failed to review discovery with defendant prior to negotiating his plea deal. Defendant asserts he is entitled to an evidentiary hearing "in order to establish a record of counsel's prejudicial inaction on these issues." The PCR judge determined defendant's plea and appellate counsel were not ineffective. The judge found defendant's "bare . . . and bald assertions . . . his various attorneys did not share with him discovery or he did not have adequate time to discuss the matters with them are just simply not supported by the record." The judge concluded: "Based on the totality of the record 8 A-0969-16T1 and the transcripts . . . [defendant's] guilty plea was in fact intelligent and voluntary." We agree. Counsel has no duty to investigate unfounded or meritless claims. State v. Cummings, 321 N.J. Super. 154, 170 (1999). Counsel's duty is to make "reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." State v. Savage, 120 N.J. 594, 618 (1990) (quoting Strickland, 466 U.S. at 691). Defense counsel was not ineffective as to the investigation of the case, including defendant's claim he was forced to plead guilty by Albright. At the hearing on defendant's motion to withdraw his guilty plea prior to sentencing, the judge found it was irrational for defendant to contend Albright coerced him to plead guilty, and yet defendant implicated Albright. Defendant's favorable plea agreement was conditioned on truthful testimony against Albright. Therefore, defendant did not satisfy the first Strickland prong. Moreover, defendant cannot show prejudice to meet the second Strickland prong. Defendant failed to assert any facts that indicated a reasonable probability he would not have pled guilty and would have insisted on going to trial, but for the alleged ineffective assistance of counsel. Indeed, the evidence against defendant, which included eyewitness evidence, was considerable. 9 A-0969-16T1 He faced a significant sentence, including an extended term due to the charged offenses and an extensive criminal history. Defendant also has not shown the failure to investigate his duress claim would have changed the outcome of his motion to withdraw his guilty plea. When a defendant attempts to withdraw his plea, he bears the burden of demonstrating that fairness requires withdrawal of his plea, and he must make that showing upon a balance of competing factors. State v. Slater, 198 N.J. 145, 157-58 (2009); State v. Russo, 262 N.J. Super. 367, 373 (App. Div. 1993). A motion to withdraw a plea after sentencing must be supported by "strong, compelling reasons[,] . . .a lesser showing is required for motions raised before sentencing." Slater, 198 N.J. at 160. In evaluating motions to withdraw a guilty plea, trial courts should consider the following factors: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. [Id. at 150.] While all factors must be considered and balanced, "[n]o factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief." Id. at 162. 10 A-0969-16T1 With respect to the first factor, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea." Id. at 158. Instead, a "[d]efendant[] must present specific, credible facts and, where possible, point to facts in the record that buttress [his] claim." Ibid. There must be "more than [just] a change of heart" to warrant leave to withdraw a guilty plea once entered. Id. at 157. The second factor "focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Id. at 159. Although we are not to approach the reasons for withdrawal with "skepticism," we "must act with 'great care and realism' because defendants often have little to lose in challenging a guilty plea." Id. at 160 (quoting State v. Taylor, 80 N.J. 353, 365 (2009)). Under the third factor, "defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain." Id. at 160. However, the Court did "not suggest [the third] factor be given great weight in the balancing process." Id. at 161. As to the fourth factor, "[t]here is no fixed formula to analyze the degree of unfair prejudice or advantage that should override withdrawal of a plea[,] [and] . . . courts must examine this factor by looking closely at the particulars of each case." 11 A-0969-16T1 Ibid. "The critical inquiry . . . is whether the passage of time has hampered the State's ability to present important evidence." Ibid. The State need not "show prejudice if a defendant fails to offer proof of other factors in support of the withdrawal of a plea." Id. at 162. Here, the motion judge denied defendant's motion to withdraw his plea, finding it failed to "come close to satisfying the Slater criteria to withdraw the plea." Specifically, the judge found no colorable claim of innocence, determined defendant's reasons for withdrawal to be illegitimate, noted defendant's plea as part of a plea bargain carried a heavier burden for withdrawal, and found there would be prejudice to the State if the plea was withdrawn. The PCR judge agreed with the motion judge's assessment, and so do we. The transcript of the plea colloquy does not support defendant's claims he pled guilty under duress. Defendant also has not demonstrated prejudice as a result of the plea, as he avoided exposure to a thirty-year sentence and instead opted for a sentence potentially under six years after the NERA disqualifier. For these reasons, the PCR judge correctly concluded an evidentiary hearing was not warranted. To the extent we have not specifically addressed arguments raised by defendant, we find them without 12 A-0969-16T1 sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 13 A-0969-16T1

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Docket No.: a0980-16
Decided: 2018-04-17
Caption: REGINA LONGMUIR v. KICKIN' IT, INC.
Status: unpublished
Summary:
PER CURIAM Defendants Gina Marie Raimondo (G.M. Raimondo) and Thomas Raimondo (T. Raimondo) (collectively defendants) appeal from a July 19, 2016 judgment in the amount of $35,0101 entered after a bench trial, and an October 31, 2016 order denying their motion for a new trial. On appeal they argue: [POINT I] THE TRIAL COURT'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND REPRESENTS A CLEAR MISCARRIAGE OF JUSTICE. A. THE TRIAL COURT APPLIED THE WRONG BURDEN OF PROOF, WHICH CONSTITUTES REVERSIBLE ERROR AND MUST RESULT IN THE JUDGMENT BEING REVERSED. B. THE TRIAL COURT DID NOT IDENTIFY ANY FACTS WHICH WOULD PROVE FRAUD, BY CLEAR AND CONVINCING EVIDENCE, FOR THE PURPOSE OF PIERCING THE CORPORATE VEIL AND HOLDING G.[M.] RAIMONDO AND T. RAIMONDO PERSONALLY LIABLE FOR [KICKIN' IT, INC.'S] DEBT. We are constrained to reverse and remand this case because the trial judge applied the incorrect standard of proof. 1 The court did not award attorneys' fees and court costs. 2 A-0980-16T1 "Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review." D’Agostino v. Maldonado, 216 N.J. 168, 182 (2013) (quoting Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Seidman, 205 N.J. at 169 (quoting In re Tr. Created by Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)). To the extent that the trial court’s decision constitutes a legal determination, we review it de novo. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Both parties in their merits briefs agree the trial involved the only remaining count of an amended complaint alleging fraud in the inducement. That allegation stems from two checks paid to Kickin' It, Inc.,2 by plaintiffs totaling $35,010. The judge, after making extensive findings of fact, concluded the advanced funds were a loan that was not repaid to plaintiffs, and that it 2 One check for $20,010 was payable to plaintiff, Douglas A. Longmuir, Jr.; the other for $15,000 was specifically endorsed to Kickin' It, Inc. 3 A-0980-16T1 was not "an investment in the sense that the [plaintiffs] . . . expect[ed] anything other than to be paid their money back." In holding defendants liable for the loan, the judge was satisfied that [plaintiffs had] shown by a preponderance of the evidence that [defendants] were involved in a plan, the plan not to use [the] money specifically for Kickin[’] It, Inc., but the plan was to use this money to . . . fuel whatever expenses that the daughter, [G. M. Raimondo], may have incurred as a result of her pursuing this . . . tenuous business plan of hers, Kickin['] It, Inc.[3] He further found "the money was used for [G.M. Raimondo's] own personal gain," and that T. Raimondo "should be held accountable," citing to evidence of his involvement in the business. "[A] corporation is an entity separate from its stockholders. In the absence of fraud or injustice, courts generally will not pierce the corporate veil to impose liability on the corporate principals." Lyon v. Barrett, 89 N.J. 294, 300 (1982). "Although a corporation and its stockholders are usually treated as separate 3 We do note that this and some other language in the judge's oral decision could lead to confusion as to the judge's determination. At one point he stated, "And the representations or the position of the plaintiff[s] is that, hey we gave this money over to [G.M. Raimondo], she said she had intentions on using this money to kick off her business." At another, he said, "I understand that this was a lousy business deal for [plaintiffs]." Although we do not believe, from an overall reading of the judge's decision, that the judge found plaintiffs' payment was an investment – not a loan – the judge can clarify that issue on remand. 4 A-0980-16T1 entities, 'a court of equity is always concerned with substance and not merely form, and thus, it will go behind the corporate form where necessary to do justice.'" Hartford Fire Ins. Co. v. Conestoga Title Ins. Co., 328 N.J. Super. 456, 459 (App. Div. 2000) (quoting Walensky v. Jonathan Royce Int'l, Inc., 264 N.J. Super. 276, 283 (App. Div. 1993)). Courts will disregard corporate, legal singularity and hold individual principals liable if they use the corporation as their alter ego and abuse the corporate form in order to advance their personal interests. Sean Wood, LLC v. Hegarty Grp., Inc., 422 N.J. Super. 500, 517 (App. Div. 2011) (citing Casini v. Graustein, 307 B.R. 800, 811 (Bankr. D.N.J. 2004)). "[W]hen the corporate fiction is a mere simulacrum, an alter ego or business conduit of an individual, it may be disregarded in the interest of securing a just determination of an action." Coppa v. Taxation Div. Dir., 8 N.J. Tax 236, 249 (Tax 1986) (quoting Iron City Sand & Gravel Div. of McDonough Co. v. W. Fork Towing Corp., 298 F. Supp. 1091, 1098-99 (N.D.W. Va. 1969), rev'd on other grounds 440 F.2d 958 (4th Cir. 1971)).4 4 In Coppa, two individuals purchased a boat in their corporation’s name, 8 N.J. Tax at 239, and claimed they were exempt under the New Jersey Sales and Use Tax Act, N.J.S.A. 54:32B-1 to -55, because the boat was not purchased for personal use, and their company was a "distinct legal entity" with a "bona fide intention to conduct a chartering business," id. at 242-44. The court disregarded the corporate form, finding the individuals "continuously used the 5 A-0980-16T1 The burden of proof is on the party seeking to pierce the corporate veil. Richard A. Pulaski Constr. Co. v. Air Frame Hangars, Inc., 195 N.J. 457, 472 (2008); Verni ex rel. Burstein v. Harry M. Stevens, Inc., 387 N.J. Super. 160, 199 (App. Div. 2006). That burden is by clear and convincing evidence. See United Food & Commercial Workers Union v. Fleming Foods E., Inc., 105 F. Supp. 2d 379, 388 (D.N.J. 2000) (quoting Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503, 1521 (3d Cir. 1994)) (recognizing the equitable alter ego concept "should be utilized by the courts only on clear and convincing evidence[5] of 'fraud, illegality or injustice, or when recognition of the corporate entity would defeat public policy or shield someone from public liability for a crime,'" in an alter ego veil-piercing case). The issue is one for the factfinder, "unless there is no evidence vessel for their personal convenience and benefit for almost six years. This unity of ownership and unity of interest now militate against supporting the corporate fiction of [the corporation]." Id. at 248-49. 5 Fraud must be proved by clear and convincing evidence. See Gennari v. Weichert Co. Realtors, 148 N.J. 582, 611 (1997) (affirming a finding of no common law fraud where trial court applied clear-and-convincing standard); Bears v. Wallace, 59 N.J. 444, 450 (1971) (stating that fraud must generally be proved by clear and convincing evidence); Pahy v. Pahy, 107 N.J. Eq. 538, 540 (E. & A. 1931) ("[F]raud is a fact that will never be presumed, but must always be clearly and convincingly proved.") 6 A-0980-16T1 sufficient to justify disregard of the corporate form." Verni, 387 N.J. Super. at 199. The judge, in applying the preponderance of the evidence standard, set plaintiffs' bar too low. We therefore remand the case, not for a new trial, but for a reapplication of the facts to the proper burden of proof. On remand, the court should separately consider whether plaintiffs have proved their cause of action on the sole remaining count, and then determine whether they met their burden to pierce the corporate veil. Because the application of the proper burden of proof may or may not result in the same findings of fact, we do not retain jurisdiction. The stay previously entered by the trial court is continued. Remanded. 7 A-0980-16T1

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Docket No.: a1351-16
Decided: 2018-04-17
Caption: IN THE MATTER OF OLUWASEGUN OLADIPO
Status: unpublished
Summary:
PER CURIAM Oluwasegun Oladipo appeals the Civil Service Commission's final administrative action upholding the administrative law judge's initial decision removing Oladipo from his human services assistant position with the Department of Human Services. He requests that we "focus on [the ALJ's] misapplication of the evidence in the record." A careful review of the record leads us to conclude the ALJ's decision was supported by substantial credible evidence and was not arbitrary, capricious or unreasonable. Accordingly, we affirm. The ALJ found that Oladipo, while on duty at Trenton Psychiatric Hospital, assaulted a patient by punching him in the stomach. The ALJ credited the sequestered testimony of two eyewitnesses – Oladipo's coworkers — who both testified they heard a commotion in the patient's room, and responded to see a milk carton thrown at Oladipo as he exited the room. Oladipo reentered the room; despite efforts by both coworkers to have him leave because he and the patient were yelling at each other, he refused to leave. The patient pushed Oladipo in the chest. Although both coworkers moved in and stood on either side of the patient to keep the patient and Oladipo separated, Oladipo forcefully punched the patient in the abdomen. Oladipo had to be physically removed from the room by other staff. The ALJ also watched videotaped footage 2 A-1351-16T1 of the hallway outside the patient's room and listened to the testimony of both coworkers who, as the ALJ said, "describ[ed] their movements and those of other staff" and "correlated the contents of the tape to their testimony." She also heard medical testimony about the patient's abdominal contusion, and testimony from instructional and managerial staff that staff are never to strike a patient. The ALJ found the two coworkers to be credible, observing they "were direct and articulate in their testimony and corroborated the other's version of events." She described their recount of the incident as "coherent, linear and believable from their testimony and in light of the other corroborating evidence in the record," including the videotape footage. She found Oladipo's testimony "not as credible" because his contentions were uncorroborated and the videotape footage was "more consistent" with the coworkers' version than his. We recognize our "'limited role' in the review of [Commission] decisions." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "An appellate court affords a 'strong presumption of reasonableness' to an administrative agency's exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat. Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980)). "In order to reverse 3 A-1351-16T1 an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" Stallworth, 208 N.J. at 194 (quoting Henry, 81 N.J. at 579-80) (alteration in original)). [Matter of Restrepo, Dept. of Corrections, 449 N.J. Super. 409, 417 (App. Div.), certif. denied, 230 N.J. 574 (2017).] As a general rule, the reviewing court should give "due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . [give] due regard also to the agency's expertise where such expertise is a pertinent factor." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (alterations in original) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). Adhering to that limited review standard, we conclude the ALJ's findings were well-supported by the record, and that her decision was not arbitrary, capricious or unreasonable.1 Affirmed. 1 Appellant did not challenge the sanction imposed. 4 A-1351-16T1

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Docket No.: a2788-16
Decided: 2018-04-17
Caption: STATE OF NEW JERSEY v. JOSE A. CANTARERO
Status: unpublished
Summary:
PER CURIAM This is an appeal from the denial of a petition for post- conviction relief (PCR). A jury convicted defendant of third- degree assault by auto, serious bodily injury, N.J.S.A. 2C:12- 1(c)(2), and driving while intoxicated (DWI), N.J.S.A. 39:4-50. The trial judge sentenced defendant to a three-year custodial term on the assault offense and a ninety-day concurrent custodial term on the DWI offense. The judge also imposed appropriate penalties, fines, and assessments. Defendant did not appeal. He filed a PCR petition a year after the judge sentenced him. The trial judge denied defendant's PCR petition without an evidentiary hearing. Defendant appeals and argues: POINT I AS PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, HE WAS ENTITLED TO POST-CONVICTION RELIEF. (1) Defense counsel failed to investigate the case to determine whether an expert witness was required for the defense. (2) Defense counsel failed to object to inadmissible and prejudicial hearsay and opinion testimony. (3) Defense counsel's cumulative errors denied his client effective assistance of counsel. POINT II AS THERE ARE GENUINE ISSUES OF MATERIAL FACTS IN DISPUTE AN EVIDENTIARY HEARING WAS REQUIRED. Finding no merit in defendant's arguments, we affirm. 2 A-2788-16T2 These were the State's trial proofs. On a foggy October morning in 2012, Newark patrol officers Natasha Green and Rhonda Washington were walking to their patrol vehicle from precinct headquarters when they heard an approaching car's engine revving loudly. A gray taxicab with a "Classic" company emblem, traveling north on Broadway, came into view. The speed limit was twenty- five miles per hour. The officers watched the cab pass at a high rate of speed and disregard a red traffic light before disappearing into the fog. Concerned that members of the public would be endangered if they pursued the cab through the fog, the officers did not pursue; rather, they completed a check of their patrol car then proceeded northbound on Broadway. They had not driven far when they encountered the cab and its driver, defendant. Approximately a block from the precinct, at the intersection of Chester and Broadway, the taxicab had collided with a blue Nissan. The collision occurred when defendant, driving the cab, disregarded a red traffic signal. The cab could not be driven because of the damage to its front passenger side. The Nissan's driver's side was heavily damaged. The young woman driving the Nissan was slumped over the steering wheel and either semi- conscious or unconscious. Following the accident, she was hospitalized for approximately a week and underwent surgery and other treatment for her injuries. Her injuries included a 3 A-2788-16T2 fractured pelvis, six fractured ribs, internal bleeding, and a traumatic brain injury. Both officers attempted to speak with defendant at the accident scene. Because defendant spoke only Spanish and the officers did not, they were unable to carry on a conversation with him. Nonetheless, defendant attempted to exit the cab. He got approximately halfway out by holding onto the car door with one hand and placing one foot outside of the car on the ground. He nearly fell, but caught himself before he hit the ground, at which time Officer Green told him to remain in the car. He eventually got out anyway. Officer Green stood between the door and the car, approximately one foot from defendant, as she attempted to speak to him. He attempted to answer her in Spanish and "[h]e was slurring a little bit." Officer Green described defendant's attempted speech as a long, slow slur. His face was "a little flush" and the officer could smell a strong odor of alcohol. She initially thought the odor was coming from his breath but conceded during cross-examination it could have been coming from the car. Defendant made no attempt to communicate that he had been injured. He was not bleeding. Based on her observations of defendant and her previous experience with DWI arrests, Officer Green opined defendant was under the influence of alcohol. 4 A-2788-16T2 Officer Washington reached the same conclusion. Defendant was standing outside the cab leaning on the door and holding onto the roof for balance when she first attempted to speak with him. He was swaying and staggering a little bit. The officer observed defendant's face was flushed. She could smell alcohol coming from him, not the car. Officer Washington testified defendant did not appear to be hurt from the accident. The officer opined defendant was under the influence of alcohol. With the assistance of a Spanish-speaking officer who had arrived at the accident scene, Officer Washington asked defendant to take a breath test. Defendant did not respond. He would not talk. When Officer Washington placed defendant under arrest, however, he said in English, "I do nothing." The Spanish-speaking officer was Edgardo Gonzalez, who had arrived at the accident scene to help with traffic. In response to Officer Washington's request, he asked defendant to voluntarily take a field sobriety test. Defendant replied that he would not, he was fine, and he did not want to comply. Officer Gonzalez asked about injuries. Defendant replied he was fine. Speaking to defendant from a distance of approximately two feet, Officer Gonzalez detected an odor of alcohol that appeared to be coming from defendant's mouth when he spoke. Defendant was slurring his speech. From Officer Gonzalez's observations of defendant's 5 A-2788-16T2 speech and general demeanor, as well as defendant's refusal to take field sobriety tests and later a breath test, Officer Gonzalez concluded defendant was under the influence of alcohol. Defendant argued in his PCR petition that his trial counsel was ineffective for failing to consult with an expert. To support his PCR argument, defendant submitted the report of an expert licensed to practice law, medicine, and surgery in New Jersey, and Board Certified in Addiction Medicine. In his report to defense counsel, the expert wrote: Your client was accused of driving while intoxicated and refusal to submit to a breath specimen. This decision was based loosely upon the National Highway Traffic Safety Administration (NHTSA) "clues". Such positive determinations are fraught with a high false- positive rate compared to [the Diagnostic and Statistical Manual of Mental Disorders (DSM)]. In New Jersey, DSM criteria are used. The expert added: "The questions in [defendant's] case revolve around whether there were any circumstances, particularly medical conditions that impacted upon the prosecution's observations, psychophysical tests, and biochemical analysis resulting from conclusions that lead to the impression that your client was driving while intoxicated." The expert explained why the odor of alcoholic beverage, blood shot eyes, and defendant's "indifferent" demeanor were not reliable indicators of intoxication. The expert also explained why a police officer's 6 A-2788-16T2 belief defendant did not perform satisfactorily on Standardized Field Sobriety Tests might have been misplaced. The expert concluded, "[t]he DSM criteria for alcohol and intoxication are not satisfied." He also concluded, "[t]he prosecution's observations in discovery were insufficient to indicate impairment due to intoxication within a reasonable degree of medical certainty. Additionally, there were medical conditions sufficient to cast doubt upon the results of the prosecution's findings, analysis and conclusions in this case." Defendant also alleged trial counsel was ineffective for failing to object to inadmissible hearsay and opinion testimony. Specifically, defendant recounted how Officer Green had authenticated traffic tickets, including one for disregarding a red traffic light near the precinct, and others for reckless driving, refusal to submit to a breath test, and DWI. Defense counsel also failed to object to Officer Green's opinion that defendant had been driving recklessly, as well as her reading from the "State Police Drinking and Driving" report, where she noted defendant "grasping for support, . . . staggering . . . rambling a little bit . . . bloodshot eyes, flushed face . . . just kind of slow and the smell of alcohol." In its January 27, 2017 written opinion, the trial judge denied defendant's petition without first conducting an 7 A-2788-16T2 evidentiary hearing. The judge determined defense counsel "opted not to engage with an expert as part of his defense strategy." The judge further concluded, contrary to defendant's assertions, the testimonial evidence complained of by defendant was "not hearsay, within the scope of expert opinion and tended to prove a fact of consequence in this litigation – that the defendant was intoxicated." Again, the judge determined defense counsel's choice not to object was a matter of trial strategy. On appeal, defendant raises essentially the same arguments as he made to the trial judge. We review his arguments under well-established standards. "A petitioner must establish the right to [post-conviction] relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992). To sustain their burden, the petitioner must set forth specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). To establish a PCR claim that trial counsel was constitutionally ineffective, a defendant must prove two elements: first, that "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; second, that "there is a reasonable probability that, but for 8 A-2788-16T2 counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). To prove the first element, a defendant must "overcome a strong presumption that counsel exercised reasonable professional judgment and sound trial strategy in fulfilling his responsibilities." State v. Nash, 212 N.J. 518, 542 (2013) (citation omitted). To prove the second element, a defendant must demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." United States v. Cronic, 466 U.S. 648, 659 n.26 (1984). A defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Whether a PCR hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. See Preciose, 129 N.J. at 462; see also Rule 3:22- 10(b) ("A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by 9 A-2788-16T2 reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief."). We discern no abuse of discretion on the part of the trial judge in denying defendant's PCR petition without an evidentiary hearing. The expert report submitted with defendant's PCR petition appears to be a generic report that has little application to defendant's case. For example, the expert discusses why the field sobriety tests are not reliable, even though in this case defendant refused to perform them. And though the expert asserted "there were medical conditions sufficient to cast doubt on the results of the prosecution's findings, analysis, and conclusions in this case," defendant provided no certification as to any such medical conditions. Cummings, 321 N.J. Super. at 170 ("[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification."). Moreover, the expert based his opinion mostly on DSM criteria. He apparently did not interview defendant and had no knowledge of how much alcohol defendant had consumed. The expert did not address the odor of alcohol on defendant's breath, his imbalance 10 A-2788-16T2 and staggering, his flushed face, or his slurred speech in the context of defendant speeding through the fog in a twenty-five mile per hour speed limit zone while disregarding red traffic lights. In view of such glaring omissions, we cannot conclude defendant established a prima facie case that but for defense counsel's failure to investigate the use of an expert, the trial result would have been different. Fritz, 105 N.J. at 58. Defendant also contends his trial counsel was ineffective for failing to object to the following: Officer Washington reading from the State Police Drinking and Driving report concerning her observations of defendant's appearance and demeanor; Officer Green opining defendant's conduct was reckless; and the State introducing motor vehicle summonses for various traffic offenses, including reckless driving and refusal to submit a breath sample. Having considered these arguments in light of the record, we conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that the three officers who opined defendant was intoxicated based their impressions on first-hand observations that amply supported their lay opinions. N.J.R.E. 701. Their testimony, considered in view of defendant's operation of the taxicab, refusal to take field sobriety tests, and refusal to submit to a breath test, rendered 11 A-2788-16T2 harmless any error based on trial counsel's failure to object to the testimony defendant now cites. Affirmed. 12 A-2788-16T2

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Docket No.: a3160-15
Decided: 2018-04-17
Caption: ARLENE SHUSTER v. AXA EQUITABLE LIFE INSURANCE COMPANY
Status: unpublished
Summary:
PER CURIAM In 1993, plaintiff Arlene Shuster purchased a Flexible Premium Variable Life Insurance Policy (the Contract) from the predecessor of defendant, AXA Equitable Life Insurance Company (AXA). Plaintiff made two premium payments of $100,000 each in 1993 and 1994. In November 2014, plaintiff filed a putative class action complaint alleging AXA breached the Contract. Broadly stated, the Contract permitted policyholders to direct the investment of net premium amounts — amounts in excess of insurance costs and expenses — either with the Guaranteed Interest Division (GID), which guaranteed an annual percentage return, or with a "Separate Account" (SA). At the policyholder's direction, funds in the SA would be invested with different investment divisions within AXA, which, by the terms of the Contract, invested "in securities and other investments whose value [wa]s subject to market fluctuations and investment risk." Plaintiff directed investment in particular SA funds. 2 A-3160-15T1 In the Contract, AXA represented it would comply with all applicable laws, including those of New York. Additionally, the Contract provided, "[w]e will not make any material change in the investment policy of an investment division of our SA without the prior approval of the Superintendent of Insurance of New York State." Plaintiff claimed that beginning in 2009, AXA pursued a "volatility-management strategy" in some of its SA funds, including those in which she had invested. New York law regulates an insurer's investments in separate accounts, and requires the New York State Department of Financial Services (DFS) to approve an insurer's "statement as to its methods of operation of such separate account." If the insurer files an amendment of any such statement with the superintendent that does not change the investment policy of a separate account and the superintendent does not approve or disapprove such amendment within a period of thirty days after such filing, such amendment shall be deemed to be approved as of the end of such thirty day period . . . . An amendment of any such statement that changes the investment policy of a separate account shall be treated as an original filing. [N.Y. Ins. Law § 4240(e) (emphasis added).] Plaintiff alleged that in its filing with DFS, AXA portrayed the amendment adopting its "volatility-management strategy" as 3 A-3160-15T1 "routine," permitting implementation of the strategy in due course without review as a new "original" filing. In March 2014, AXA entered into a consent order with DFS (Consent Order). The Consent Order summarized DFS's findings resulting from an investigation commenced in 2011 into AXA's implementation of changed investment strategies in its "variable annuity products." DFS found AXA violated §4240(e) in 2009, 2010 and 2011 "by filing . . . Plans of Operation . . . without adequately informing and explaining to [DFS] the significance of the changes to the insurance product." AXA's adoption of this investment strategy "limit[ed] the gains that may accrue to a policyholder's account." The consent order required AXA to pay a civil fine, obtain necessary approvals for modifications and communicate with policyholders. Plaintiff's complaint alleged AXA breached its contractual promise to comply with applicable law and not make material changes in the SA's operating plan without DFS approval. It alleged the breach resulted in AXA's implementation of the volatility- management strategy that "reduced the returns" in funds held by plaintiff and other class members. The Securities Litigation Uniform Standards Act of 1998 (SLUSA), specifically, 15 U.S.C. § 78bb(f), provides: 4 A-3160-15T1 Limitations on remedies. (1) Class action limitations. No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging — (A) a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security; or (B) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security. (2) Removal of covered class actions. Any covered class action brought in any State court involving a covered security, as set forth in paragraph (1), shall be removable to the Federal district court for the district in which the action is pending, and shall be subject to paragraph (1). AXA removed plaintiff's complaint to federal district court and asked that venue be transferred to the Southern District of New York, where another action, Zweiman v. AXA Equitable Life Ins. Co., 146 F. Supp. 3d 536 (S.D.N.Y. 2015), was pending at the time. Before AXA's change of venue motion was heard, AXA moved to dismiss the complaint, arguing it was precluded by SLUSA. Plaintiff opposed the motions and moved to remand the complaint to the Law Division. She argued her complaint alleged 5 A-3160-15T1 a breach of the Contract and did not allege AXA made any "misrepresentation or omission" to policyholders "in connection with the purchase or sale of a covered security."1 In a comprehensive written decision, the district court judge concluded "AXA's misrepresentation [wa]s an essential predicate for [plaintiff's] breach of contract claim." However, applying four factors relevant to whether the misrepresentation satisfied the "in connection" prong of SLUSA, see Rowinski v. Salomon Smith Barney Inc., 398 F.3d 294, 302 (3d Cir. 2005), the judge concluded AXA failed to make the required showing. He remanded the complaint to the Law Division. 1 Plaintiff also asserted in a letter to the court that transfer was not appropriate because Zweiman "involves annuity products whereas [this case] involves life insurance policies with substantively different terms." While continuing to assert before us that differences exist between the two investment products, plaintiff acknowledged before the Law Division that "[i]f the [C]onsent [O]rder . . . provides that AXA's violation of [§]42- 40(e) is limited solely to annuities, then life insurance policy holders wouldn't have a claim." Furthermore, plaintiff's brief does not attach any significance to the difference between her variable life insurance policy and the annuities that were the subject of Zweiman, except to say that the district court judge in Zweiman recognized that every SLUSA preclusion analysis was fact sensitive and his analysis did not consider the facts alleged in plaintiff's complaint. Zweiman, 146 F. Supp. at 546 n.21. 6 A-3160-15T1 AXA promptly filed a motion to dismiss.2 It claimed among other things that plaintiff failed to allege AXA made any misrepresentation to policy holders, or that she suffered consequential damages from any breach of the Contract. AXA also reiterated that SLUSA precluded plaintiff's complaint. AXA supplemented its motion with the recently issued New York federal district court's decision in Zweiman, in which the judge concluded SLUSA precluded class claims in that suit for breach of contract based upon the Consent Order. Zweiman, 146 F. Supp. 3d at 539. After considering oral argument, the Law Division judge essentially relied on the Zweiman court's analysis, and the United States Supreme Court's decision in Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71 (2006). He dismissed plaintiff's complaint with prejudice because SLUSA precluded the action.3 This appeal ensued. 2 Plaintiff has not asserted, nor could she, that AXA's motion in the Law Division was precluded by res judicata, collateral estoppel or other similar doctrines. See Kircher v. Putnam Funds Trust, 547 U.S. 633, 647 (2006) ("Collateral estoppel should be no bar to such a revisitation of the preclusion issue, given that [28 U.S.C.] § 1447(d) prevents the funds from appealing the District Court's decision."). 3 The judge's order also dismissed the complaint for other reasons, including failure to state a cause of action, Rule 4:6-2(e), failure to plead fraud with particularity, Rule 4:5-8(a), and forum non conveniens. Although AXA asserts they provide alternate reasons to affirm the judgment, we need not consider these issues. 7 A-3160-15T1 Plaintiff contends the success of her breach of contract claim did not require she prove "a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security," 15 U.S.C. § 78bb(f)(1)(A) (emphasis added), and therefore the complaint was not precluded by SLUSA. We disagree and affirm. "Our review, accepting the facts alleged in the complaint as true and drawing all reasonable inferences in favor of the plaintiff, is plenary." Rowinski, 398 F.3d 298 (citing In re Adams Golf, Inc. Secs. Litig., 381 F.3d 267, 273 (3d Cir. 2004)). In this area, one maxim is clear: [C]ourts have noted that plaintiffs should not be permitted to escape SLUSA by artfully characterizing a claim as dependent on a theory other than falsity when falsity nonetheless is essential to the claim, such as by characterizing a claim of falsity as a breach of the contractual duty of fair dealing. [In re Kingate Mgmt. Litig., 784 F.3d 128, 140 (2nd. Cir. 2015).] The Supreme Court has broadly interpreted the "in connection with" element of SLUSA "and held the requisite connection is established where a 'fraudulent scheme' and a securities transaction 'coincide.'" Rowinski, 398 F.3d at 300 (quoting SEC v. Zandford, 535 U.S. 813, 825 (2002)). And, while "Zandford's 'broad' interpretation is not boundless[,] . . . courts have . . . 8 A-3160-15T1 scrutinized the pleadings to arrive at the 'essence' of a state law claim, in order to prevent artful drafting from circumventing SLUSA preemption." Id. at 301 (citations omitted). In Rowinski, the court identified four factors relevant "in distinguishing between preempted claims and those remaining within the province of state law." Id. at 302. [F]irst, whether the covered class action alleges a "fraudulent scheme" that "coincides" with the purchase or sale of securities; second, whether the complaint alleges a material misrepresentation or omission "disseminated to the public in a medium upon which a reasonable investor would rely"; third, whether the nature of the parties' relationship is such that it necessarily involves the purchase or sale of securities; and fourth, whether the prayer for relief "connects" the state law claims to the purchase or sale of securities. [Ibid. (citations omitted).] However, the court cautioned these "non-inclusive four factors . . . are not requirements, but rather guideposts in a flexible preemption inquiry[,]" and "[i]n a SLUSA case involving different facts or allegations, other considerations also may be relevant." Id. at 302 n.7. We need not detail the Supreme Court's explication of the "in connection" prong of SLUSA since Rowinski. Citing Dabit, and the Court's own refinement of Dabit in Chadbourne & Parke LLP v. Troice, 134 S. Ct. 1058 (2014), the judge in Zweiman wrote: 9 A-3160-15T1 In light of Troice and Dabit, the "in connection with" doctrine can be articulated as follows: the fraud must be of the type that is material to someone other than the fraudster to buy, sell, or hold a covered security; and, if so, any claim involving that transaction (or lack thereof) — regardless of whether the plaintiff herself was induced to take a position — is precluded. [Zweiman, 146 F. Supp. 3d at 550.] We agree with this synthesis of the controlling case law. When applied to the facts alleged in plaintiff's complaint, SLUSA precludes her breach of contract claim. It is undisputed that plaintiff alleged AXA breached the Contract by misrepresenting the nature and scope of its volatility management strategy in order to secure DFS approval without the review compelled by an "initial" filing. This misrepresentation to DFS resulted in AXA initiating the particular trading strategy and trading securities within the SA accounts, allegedly to the detriment of plaintiff and putative class members. Plaintiff contends AXA's non-public DPS filings did not induce her to make any investment decision and therefore the misrepresentation cannot be "in connection" with the purchase or sale of covered securities as required by SLUSA. However, the Supreme Court has rejected such a cramped construction. See Dabit, 547 U.S. at 85 (quoting United States v. O'Hagan, 521 U.S. 642, 658 (1997) ("The requisite showing . . . is 'deception "in 10 A-3160-15T1 connection with the purchase or sale of any security," not deception of an identifiable purchaser or seller.'")) Under the terms of the Contract, plaintiff retained the ability to transfer her shares in the SA account to "one or more other divisions of [the] SA or to [the] GID" upon her written request. Plaintiff's claim for damages relies wholly upon the assertion that AXA's misrepresentation to DFS resulted in AXA implementing a trading strategy for the investments she maintained in the SA accounts that inured to her detriment. The broad interpretation of the "in connection" prong applied by the Supreme Court and other courts means that SLUSA precludes plaintiff's titular breach of contract claim. Affirmed. 11 A-3160-15T1

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Docket No.: a3196-16
Decided: 2018-04-17
Caption: STATE OF NEW JERSEY v. J.J.W.
Status: unpublished
Summary:
PER CURIAM Defendant appeals from the January 20, 2017 Law Division order denying his petition for post-conviction relief (PCR). We affirm. This appeal concerns two separate convictions based upon guilty pleas entered by defendant. First, he pled guilty to third- degree receiving stolen property, N.J.S.A. 2C:20-7(a). During the plea hearing, he acknowledged possessing an Avis rental car he knew had been stolen. Second, he pled guilty to third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). The State offered the plea agreement in exchange for the dismissal of nine other charges related to an alleged sexual assault. In pleading guilty, defendant acknowledged taking the victim to a motel room, preventing her from leaving, and touching her breasts and buttocks for his sexual gratification. The trial court sentenced defendant in accordance with the plea agreement to five years in prison for the sexual contact offense and one year of probation for the receiving stolen property offense. In connection with the sexual contact conviction, the court also sentenced defendant to Megan's Law requirements and parole supervision for life (PSL). Defendant did not file a direct appeal. On February 10, 2016, defendant filed his petition for PCR. Defendant sought to withdraw his guilty pleas and to set aside his 2 A-3196-16T4 convictions, asserting multiple arguments of ineffective assistance of trial counsel. On January 20, 2017, the PCR court denied defendant's petition without an evidentiary hearing, finding defendant’s arguments meritless. This appeal followed, with defendant presenting the following arguments: POINT ONE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING[.] A. Failure to Advise of Specifics of PSL B. Counsel's Failure to Investigate C. Failure to Investigate the Entrapment Defense Following our review of the record and the applicable law, we conclude defendant's appeal lacks merit. We affirm substantially for the reasons set forth by Judge Jeanne T. Covert in her cogent written opinion. We add the following comments. To establish a prima facie case of ineffective assistance of counsel, defendant must satisfy the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 3 A-3196-16T4 (quoting Strickland, 466 U.S. at 687). Defendant must then show counsel's deficient performance prejudiced the defense. Ibid. To show prejudice, defendant must establish by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction . . . ." Id. at 58. In his PCR petition, defendant first claims his attorney provided ineffective assistance by failing to advise him of the specifics of PSL. Defendant contends his counsel failed to advise him that if he was charged with a new offense, the court could sentence him to prison before convicting him of the new charge. Defendant certified that had he known he would face imprisonment for being charged with an offense before being convicted, he would not have agreed to the plea agreement. However, defendant signed plea forms indicating he knew he was subject to PSL and he faced imprisonment for a parole violation. Defendant also testified under oath that he signed all of the plea forms, understood them, and reviewed them with his attorney. Accordingly, we agree with the PCR court that defendant failed to show trial counsel was deficient. Defendant next claims his attorney provided ineffective assistance by failing to adequately investigate his case. Defendant contends he is innocent of both aggravated sexual contact and receiving stolen property. Defendant contends he told his 4 A-3196-16T4 counsel the sexual contact was consensual, but counsel "kept pushing [him] to accept a plea." However, defendant fails to raise any specific facts supporting his innocence or any particular facts counsel should have investigated. When a defendant wishes to withdraw a guilty plea based on a claim of innocence, the court must "consider whether a defendant's assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts." State v. Slater, 198 N.J. 145, 159 (2009). We agree with the PCR court that defendant fails to point to particular facts, and his claims of innocence are no more than bald assertions. Defendant next claims his attorney provided ineffective assistance by failing to investigate an entrapment defense. Defendant contends the police entrapped him by releasing to him a car they knew was stolen. Entrapment "can arise whenever a defendant introduces evidence of the government's involvement in the crime through initiation, solicitation, or active participation." State v. Johnson, 127 N.J. 458, 464 (1992) (citation omitted). Here, the record reflects no evidence the police knew the car released to defendant was stolen. We agree with the PCR court that an entrapment defense would not have succeeded; therefore, counsel was not ineffective in failing to investigate or raise it. 5 A-3196-16T4 Defendant further contends the PCR court erred by ruling on his petition without an evidentiary hearing. However, this matter did not require a hearing because defendant failed to present a prima facie case of ineffective assistance of counsel. See R. 3:22-10(b); see also State v. Porter, 216 N.J. 343, 354 (2013) (citing State v. Preciose, 129 N.J. 451, 462-63 (1992)). Affirmed. 6 A-3196-16T4

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Docket No.: a3557-15
Decided: 2018-04-17
Caption: NORTH ORATON URBAN RENEWAL LP v. CITY OF EAST ORANGE
Status: unpublished
Summary:
PER CURIAM Defendant City of East Orange appeals from that part of the Chancery Division's1 March 7, 2016 final judgment setting interest rates on tax payments made by defendant Boca Environmental after acquiring a later-voided tax sale certificate.2 East Orange argues the judge erroneously assessed interest at the rate set forth in N.J.S.A. 54:4-67(c), and should have applied the post-judgment rate provided in Rule 4:42-11(a). We disagree and affirm for the reasons Judge DeAlmeida expressed in his written memorandum opinion. 1 Due to the narrow issue considered here, it is unnecessary to recite the full procedural history of this multi-party, multi- faceted litigation; but we note Chief Justice Rabner ordered all remaining matters transferred to the Chancery Division and temporarily assigned Judge Patrick DeAlmeida to handle them to resolution. We do not see that order is part of the record. 2 The tax sale certificate was originally purchased by Fidelity Tax, LLC; Boca is its successor in interest. 2 A-3557-15T1 The tax sale certificate related to a property owned by North Oraton Urban Renewal, LP. East Orange approved the property for development as a forty-two unit low-income residential building, and it was deemed tax-exempt by East Orange under the Long Term Tax Exemption Law, N.J.S.A. 40A:20-1 to -22. North Oraton, pursuant to a Financial Agreement with East Orange, agreed to make annual service charge payments in lieu of taxes. When East Orange discovered that North Oraton failed to make payments and otherwise comply with the Financial Agreement, it unilaterally rescinded the tax abatement and subsequently issued the tax sale certificate later transferred to Boca. Boca made several tax payments after the transfer. After ruling, in connection with related litigation, that East Orange wrongfully annulled the tax abatement, Judge DeAlmeida reinstated the abatement, declared the tax sale certificate invalid when issued, and vacated it. In fashioning an appropriate remedy, Judge DeAlmeida ordered East Orange to refund both the purchase price of the certificate, with interest at the post-judgment rate, R. 4:42-11(a), and Boca's subsequent tax payments. After allowing further briefing on the interest rate to be applied to those subsequent payments, the judge concluded Boca was "entitled to receive interest at the 3 A-3557-15T1 statutory rate applicable to delinquent taxes" as set in N.J.S.A. 54:4-67(c). The determination of which interest rate to apply is a legal one which we review de novo. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We find compelling Judge DeAlmeida's analysis of the tax sale certificate legislation, and his equitable rationale that Boca should receive, in accordance with that legislation, what it expected when it made the subsequent tax payments. We thus affirm his thoughtful, well-reasoned ruling which was influenced by Crusader Servicing Corp. v. City of Wildwood, 345 N.J. Super. 456 (Law Div. 2001), and highlight the following points. Although the judge awarded interest at the post-judgment rate on the voided tax sale certificate – the "lawful interest" rate found appropriate in Brinkley v. W. World, Inc., 281 N.J. Super. 124, 130-32 (Ch. Div. 1995), aff'd as modified and remanded, 292 N.J. Super. 134 (App. Div. 1996) – he found applying that interest rate to subsequent tax payments would "undermine the purposes of the . . . statutes by discouraging investment in tax sale certificates and subsequent tax payments by lienholders." He insightfully recognized that Boca was not a judgment creditor of East Orange, but a party entitled to a refund of money of which East Orange had long use. 4 A-3557-15T1 Judge Callinan, in Crusader Servicing, logically determined that because the certificate holder paid subsequent taxes "with the justifiable expectancy of being redeemed at the statutory rate of interest, . . . the property owners should have fully expected to be liable for interest at the [eight/eighteen percent] rate on taxes unpaid for almost three years." 345 N.J. Super. at 464. He also observed that the property owners "enjoyed the use of the tax money through the period of their delinquency"; the City used the tax certificate purchaser’s funds during this period; and the tax certificate purchaser was the only party not at fault. Id. at 464-65. Here, Judge DeAlmeida similarly recognized Boca's "legitimate and reasonable expectation" that it would recover interest under N.J.S.A. 54:4-67 on the tax payments it made after purchasing the certificates. He noted, "Boca's predecessor purchased the tax sale certificate in good faith intending to profit from its investment, as contemplated by the statutory mechanism enacted to facilitate the smooth collection of revenue by municipalities and to discourage tax delinquencies by property owners." We agree with his sound analysis, and his conclusion that Boca was entitled to the higher rate of interest under N.J.S.A. 54:4-67(c) on the subsequent tax payments. Affirmed. 5 A-3557-15T1

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Docket No.: a4659-15
Decided: 2018-04-17
Caption: JACINTO KOGER-HIGHTOWER v. NEW JERSEY STATE PAROLE BOARD
Status: unpublished
Summary:
PER CURIAM Appellant Jacinto Koger-Hightower appeals from the July 27, 2016 final decision of the New Jersey State Parole Board (Board). The final decision affirmed the Board's two-member panel's decision denying parole and referring the matter to the Board's three-member panel to establish a future eligibility term (FET). The final decision also affirmed the three-member panel's decision establishing a 200-hundred month (16.66 years) FET. We affirm the denial of parole, but reverse the imposition of the 200-month FET and remand for a new FET determination. I In 1986, appellant was convicted by jury of first-degree murder, N.J.S.A. 2C:11-3(a)(3); first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Following a trial on the penalty-phase, on November 10, 1986, the jury sentenced appellant to death on the murder charge. On June 4, 1987, he was sentenced to an aggregate term of thirty-five years on the remaining charges. On July 12, 1990, the New Jersey Supreme Court overturned appellant's death sentence and remanded the matter for a new penalty-phase trial, because the trial court had erroneously instructed the jury that unanimity was required to find mitigating factors. State v. Hightower, 120 N.J. 378, 386 (1990). The second jury also sentenced appellant to death. On August 8, 1996, the Supreme Court again reversed the death 2 A-4659-15T4 sentence, because the trial court improperly removed a juror during deliberations. State v. Hightower, 146 N.J. 239, 255-56 (1996). The third trial on the penalty-phase resulted in a hung jury. On March 21, 2002, appellant was sentenced in the aggregate to life in prison with a thirty-year period of parole ineligibility. He became eligible for parole for the first time on August 19, 2015. Appellant's convictions arose out of the following facts. In July 1985, appellant, then twenty-one years of age, pointed a gun at a store clerk in a convenience store and demanded she open the cash register. When she refused, appellant shot her in the chest. She continued to refuse to open the register, so he shot her in the neck. She fell to the floor and when he felt her grab his leg, he shot her in the head. He then dragged her into the freezer and left the store. The victim died later that day of the gunshot wounds. In 2015, appellant participated in a parole hearing before a two-member panel. Because of appellant's lack of progress in reducing the likelihood he would engage in criminal activity if released, the panel denied appellant parole and referred the matter to a three-member panel to consider the imposition of a FET outside the standard twenty-seven months. See N.J.A.C. 3 A-4659-15T4 10A:71-3.21(a)(1). The three-member panel imposed a 200-month FET, issuing a seven-page written explanation of its decision. In its decision, the three-member panel noted it had listened to appellant's testimony before the two-member panel. The three-member panel commented upon the two-member panel's efforts to ascertain whether appellant had any insight into why he committed the murder, so the two-member panel could assess whether there was a substantial likelihood appellant would commit another crime if released. The three-member panel reported that, when asked by the two-member panel why he committed the murder, appellant's response was he needed money and, in an act of desperation, decided to commit the robbery. Then, after pointing the gun at the clerk and seeing a look of fear in her face, he "became afraid" and "wanted to leave." However, instead of leaving, he closed his eyes and "just started pulling the trigger." Appellant did not provide any explanation for why he pulled the trigger. He also stated he committed the crime to show his wife, who planned to divorce appellant, that their marriage was worth saving. He did not provide the basis for his belief committing this crime would salvage the marriage. The three-member panel found: 4 A-4659-15T4 [A]fter three (3) decades of incarceration you do not recognize nor do you acknowledge the fact that beyond the instability of your failing marriage affecting you as you claim, why you were impelled to react to that situation by committing the extreme and violent murder of a stranger. The Board panel notes that familial, monetary and societal issues affect individuals on a daily basis, but the stressors that you claim fell upon you, led you to commit murder. This aspect to the perceived realizations you related to the [two-member] Board panel has not yet been explored by you. Beyond recognizing a specific traumatic event that possibly led to the underlying motivations to your decision to commit the murder, the Board panel believes that you must come to understand why you reacted and behaved in the crime-specific manner that you did. Because of appellant's failure to get to the root of what caused his criminal conduct, the panel determined the standard eligibility term of twenty-seven months was too limited a period to enable appellant to determine what motivated him to commit the act of murder. Therefore, the three-member panel imposed a FET of 200 months. The three-member panel also put some weight on the fact appellant minimized and failed to accept responsibility for the institutional infractions he committed, further exhibiting an unwillingness or inability to engage in any "substantive introspection" into past criminal conduct. But his failure to gain any insight into why he committed the murder was the panel's principal reason for imposing the subject FET. 5 A-4659-15T4 Appellant administratively appealed the panels' decisions, but on July 27, 2016, the full State Parole Board affirmed both. The Board concurred with the two-member panel's determination appellant lacked insight into why he engaged in criminal conduct and that there was a substantial likelihood he would commit a crime if released on parole. The Board agreed a FET of only twenty-seven months was inappropriate due to appellant's lack of progress in eliminating the likelihood of recidivism, and approved the FET of 200-months. II On appeal, appellant contends: (1) the Board failed to consider material facts; (2) the Board failed to document the evidence that demonstrates there is a substantial likelihood appellant will commit a crime if released on parole; (3) a Board member was prejudiced against appellant; and (4) the two-member panel failed to comply with the Board's professional code of conduct. With one exception, we reject these arguments, which are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). A Board's decision to grant or deny parole for crimes committed before August 1997 turns on whether there is a "substantial likelihood" the inmate will commit another crime if released. N.J.S.A. 30:4-123.53(a) (1979), amended by L. 1997, 6 A-4659-15T4 c. 213, § 1; N.J.S.A. 30:4-123.56(c) (1979), amended by L. 1997, c. 213, § 2; Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div. 2000); N.J.A.C. 10A:71-3.10(a). Our standard of review of Board decisions is limited and "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 200 (2001) (Baime, J., dissenting). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Id. at 201 (Baime, J., dissenting) (citing Beckworth v. New Jersey State Parole Bd., 62 N.J. 348, 358-59 (1973)). Our courts "may overturn the Parole Board's decisions only if they are arbitrary and capricious." Ibid. With respect to the Board's factual findings, we do not disturb them if they "could reasonably have been reached on sufficient credible evidence in the whole record." Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div. 2004) (quoting Trantino, 166 N.J. at 172). We accord such deference because "[t]he decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Trantino, 166 N.J. at 201 (second alteration in original) (Baime, J., dissenting) (citing Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979)). 7 A-4659-15T4 Having reviewed the record in light of these legal principles, we affirm the Board's denial of parole. Appellant's parole eligibility was evaluated by the full Board in a comprehensive written decision. The Board accepted and adopted the determination made by the two-member panel appellant lacked insight into why he committed the murder and presented "a substantial likelihood that [he] will commit a crime . . . if released on parole." See N.J.S.A. 30:4-123.53(a) (1979). There is sufficient credible evidence in the record supporting these findings, and we discern nothing arbitrary or capricious in the Board's decision to deny parole. After denying parole the Board must establish a FET. N.J.A.C. 10A:71-3.18(a)(2). When the Board denies parole for an inmate serving a life sentence, the standard eligibility term is twenty-seven months. N.J.A.C. 10A:71-3.21(a)(1). The Board, however, may exceed the FET if it determines the presumption of twenty-seven months is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71- 3.21(d). Here, there was substantial credible evidence in the record for the Board to conclude the presumptive twenty-seven-month FET was inappropriate in light of appellant's lack of insight into 8 A-4659-15T4 why he committed the murder, warranting a departure from the FET guidelines. However, the Board did not articulate why a FET seven times the presumptive FET was necessary. "While we must defer to the agency's expertise, we need not surrender to it." N.J. Chapter of the Nat'l Ass'n of Indus. & Office Parks v. N.J. Dep't of Envtl. Prot., 241 N.J. Super. 145, 165 (App. Div. 1990). This is particularly true when the agency fails "to address critical issues, or to analyze the evidence in light of those issues." Green v. State Health Benefits Comm'n, 373 N.J. Super. 408, 415 (App. Div. 2004). "[W]e insist that the agency disclose its reasons for any decision, even those based upon expertise, so that a proper, searching, and careful review by this court may be undertaken." Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 203 (App. Div. 2003). An explanation of the agency's reasoning is necessary because it is "[o]ne of the best procedural protections against arbitrary exercise of discretionary power." Monks v. N.J. State Parole Bd., 58 N.J. 238, 245 (1971) (quoting Davis, Administrative Law § 16.12 (1970 Supp.)). Thus, a decision without an explanation as to how the agency reached its result is arbitrary and capricious. See Mejia v. N.J. Dep't of Corr., 446 N.J. Super. 369, 376 (App. Div. 2016). 9 A-4659-15T4 Here, the Board did not articulate why appellant's lack of insight into what caused him to commit an act of murder will require another sixteen years of rehabilitation. Without explanation for the Board's approval of such a lengthy FET, we cannot evaluate the propriety of the Board's decision. Accordingly, the Board's failure to explain its reasoning renders the Board's decision arbitrary and capricious. We therefore vacate the 200-month FET, and remand this matter to the Board to reconsider the FET and fully explain any FET selected on remand. Affirmed in part; reversed and remanded in part. We do not retain jurisdiction. 10 A-4659-15T4

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Docket No.: a4783-15
Decided: 2018-04-17
Caption: D.A. v. R.C.
Status: unpublished
Summary:
PER CURIAM R.C., the father, appeals from an April 14, 2016 order rendered after failed mediation and a plenary hearing to determine 1 The court elects to use initials for the parties to protect the identities of the minor children. custody and child support for his son. He also appeals from a June 13, 2016 order denying reconsideration and a September 20, 2016 enforcement order assessing additional counsel fees. R.C. appeals the custody, child support, college payment allocation and attorney fees. We affirm substantially for the reasons placed on the record. This matter returns to us after our 2014 remand for mediation and, if that failed, a plenary hearing to determine custody of the then sixteen-year-old child. D.A. v. R.C., 438 N.J. Super. 431, 433 (App. Div. 2014). We previously described the situation: The parties had a dating relationship from 1996 to 2000. Their son "Jeremy" (a fictitious name to protect his privacy) was born in December 1998. Represented by separate counsel, the parties agreed to mediate the legal issues concerning their son and entered into a Consent Order for Joint Custody and Parenting Time dated April 26, 2002. This Consent Order comprehensively addressed and resolved all of the issues generally associated with the rearing of the parties' then three-year-old son, including agreeing that the child would reside with plaintiff (mother), while giving defendant (father) "reasonable and liberal parenting time with the child." The Consent Order included a detailed description of the terms governing defendant's parenting time with his son. [Id. at 433-34.] After our remand, Jeremy graduated two years early from high school and was about to begin college in the fall of 2015. In 2 A-4783-15T2 May, the parties agreed to R.C. obtaining primary custody of Jeremy with no child support paid by the mother, D.A. Jeremy moved in with his father for two weeks. Then, due to job requirements and without notice to the court, R.C. relocated out of state to Georgia with his wife and three children in July 2015. R.C. sought to obtain custody of Jeremy in Georgia, although Jeremy is going to college in New York City and D.A. lives close by in Jersey City where Jeremy grew up. Jeremy was seventeen years old at the time of the hearing. After the plenary hearing, the court awarded primary custody to D.A. and required R.C. to pay child support of $383 weekly, 77 percent of Jeremy's college costs after the child obtains all available loans and grants, and a portion of D.A.'s counsel fees in the amount of $6170.50 plus $1485.50 for R.C.'s nonappearance on a prior date. The court found that D.A. earned approximately $85,000 and R.C. earned approximately $280,000. Because Jeremy was only seventeen years old and highly dependent on his parents, financially and otherwise, the court awarded significant child support as well as college expenses. The court found that Jeremy stays at his mother's house often, as it is close to his college and he returns to see friends, obtain haircuts, and enjoy his home environment as a child under the age of most college students. The court discussed the combination of child support and college expenses ordered and explained why a 3 A-4783-15T2 higher child support was ordered than is usual when the child is attending college, based on the age of the child and the college's geographic proximity to his mother. D.A. sought enforcement and R.C. sought a modification of child support based on his loss of employment. In its September order, the court enforced its earlier order, pursuant to Rule 5:3- 7(a), but correctly determined it did not have jurisdiction to address the change of circumstances while the case was pending on appeal. The court awarded $3425 in counsel fees to D.A. We now affirm substantially for the reasons stated by the court in its thorough and comprehensive April 14, 2016 oral opinion, where it discussed the facts in relation to both statutory factors and cases relating to custody and child support. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding," and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998). "When reviewing a trial judge's order, we defer to factual findings 'supported by adequate, substantial, credible evidence.'" Ricci v. Ricci, 448 N.J. Super. 546, 564 (App. Div. 2017) (quoting Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015)). The court gave a well-reasoned opinion based on the facts found. 4 A-4783-15T2 We add only the following with regard to R.C.'s argument, raised for the first time on appeal, that forcing unmarried parents to pay for college costs unconstitutionally disfavors children of intact families. Because this argument was not raised in the trial court and does not go to the jurisdiction of the court or concern matters of great public interest, we decline to consider it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nonetheless, we make the following brief comments. R.C. cites to Curtis v. Kline, 666 A.2d 265, 268-70 (Pa. 1995), where the Pennsylvania Supreme Court found that their statute requiring divorced parents to pay for college had no rational basis for distinguishing between the rights of children of divorced parents and children of married parents. Under Pennsylvania law, a parent's duty to support ends when the child reaches eighteen or finishes high school, whichever is sooner, and there is no obligation to make a college contribution. Blue v. Blue, 616 A.2d 628, 632-33 (Pa. 1992). In contrast, the law of this State is that a parent's child support obligation does not automatically terminate at age eighteen, and the obligation encompasses a child's right to college contribution when the parents are financially capable and the child is college qualified. Newburgh v. Arrigo, 88 N.J. 529, 543-44 (1982); Ricci, 448 N.J. Super. at 555, 572. Our current emancipation provisions hold that 5 A-4783-15T2 a child attending college full-time is not emancipated if under the age of twenty-three. R. 5:6-9; N.J.S.A. 2A:17-56.67(b). Additionally, in New Jersey, even parents who are not divorced or separated may be required to pay college costs. Ricci, 448 N.J. Super. at 571. Affirmed. 6 A-4783-15T2

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Docket No.: a5374-15
Decided: 2018-04-17
Caption: WELLS FARGO BANK, N.A. v. IRIS GONZALEZ-FRAZEE
Status: unpublished
Summary:
PER CURIAM Defendants Iris Gonzalez-Frazee and Dwight M. Frazee appeal from a June 29, 2016 final judgment of foreclosure in the amount of $380,180.83 plus interest, arguing that plaintiff Wells Fargo Bank, N.A. did not have standing to file the complaint and that they have no financial obligation to Wells Fargo due to their timely rescission of the loan under the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601 to -67f. We affirm. On October 19, 2004, defendant Iris Gonzalez-Frazee executed a $232,000 note. To secure payment of the note, Gonzalez-Frazee executed a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Commerce Bank, N.A. and its successors and assigns, on her property located in Toms River. On October 8, 2007, MERS assigned the mortgage to Wells Fargo. Gonzalez- Frazee stopped making payment in 2007, more than ten years ago, and purportedly wrote a notice of rescission to Wells Fargo on July 1, 2007, without a tender of funds. Defendants provided a copy of the handwritten notice, dated July 1, 2007, without any proof of service. It states it is "To: Wells Fargo" without a specific address. Wells Fargo has no record of receiving the note, which is titled "Truth in Lending Act Rescission Notice" and raises a list of various TILA violations, alleging "we recently discovered that the required notices of our right to rescind the loan and other material disclosures were never provided or delivered, the APR is wrong, fees excessive, title ins, etc., no notices of our Right to Rescission. Please forward to owner." 2 A-5374-15T1 Wells Fargo had possession of the note as well as the assignment of mortgage before filing this foreclosure complaint on May 19, 2014. During oral argument on a summary judgment motion, defendant Dwight M. Frazee conceded several times that defendants did not have the ability to tender the value of the property to Wells Fargo. On March 20, 2015, the court granted summary judgment to Wells Fargo. Defendants moved for reconsideration based on their discovery that "the loan was owned by Fannie Mae and not the servicer Wells Fargo Bank." This motion was denied in a November 20, 2015 order.1 Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017). We consider, as the trial judge did, "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, PA, 189 N.J. 436, 445-46 1 Although the March and November orders are not referenced in defendants' notice of appeal, we will review those orders. "Rule 2:5-1(f)(3)(A) declares that, in civil actions, the notice of appeal 'shall designate the judgment, decision, . . . or part thereof appealed from.' We have recognized that the failure to comply with this rule permits our refusal to consider its merits," but we have also in appropriate circumstances considered orders not listed on the notice of appeal. Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 97 n.3 (App. Div. 2014) (alteration in original). 3 A-5374-15T1 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). "To defeat a motion for summary judgment, the opponent must 'come forward with evidence' that creates a genuine issue of material fact." Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). "[C]onclusory and self-serving assertions by one of the parties are insufficient to overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41 (2005). "If there is no genuine issue of material fact, we must then 'decide whether the trial court correctly interpreted the law.'" DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 4 A-5374-15T1 (2013). Applying the above standards, we conclude that summary judgment was appropriate. "As a general proposition, a party seeking to foreclose a mortgage must own or control the underlying debt." Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011) (quoting Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011)). To show ownership or control, the plaintiff must establish there was a valid assignment of the mortgage or possession of the original note that pre-dated the complaint. Ibid. "[E]ither possession of the note or an assignment of the mortgage that predated the original complaint confer[s] standing." Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012) (emphasis added) (citing Mitchell, 422 N.J. Super. at 216, 225). Moreover, a plaintiff need not actually possess the original note in order to have standing to file a foreclosure complaint. Mitchell, 422 N.J. Super. at 225. A plaintiff can establish standing as an assignee if it presents an authenticated assignment of the note indicating that it was assigned the note before it filed the complaint. Ibid. Lastly, under the Uniform Commercial Code (UCC), the note may be enforced by the holder of the note, or a non-holder in possession of the note who has the rights of the holder. N.J.S.A. 12A:3-301. "The right to enforce an instrument and ownership of the instrument 5 A-5374-15T1 are two different concepts." UCC comment to N.J.S.A. 12A:3-203 at ¶ 1. Here, the competent evidence in the record confirms that Wells Fargo had standing by possessing both the original note and an authenticated assignment of the mortgage that pre-dated the complaint. Defendants provide an undated "Loan Information Report" that lists Fannie Mae as the "Owner/Assignee." It is immaterial whether Wells Fargo is the "owner." "[A] foreclosure court has the discretion to deny rescission under TILA if the defendant cannot tender the balance of his or her loan." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 483 (2012). Defendants argue that the United States Supreme Court has recently ruled to the contrary. Jesinoski v. Countrywide Home Loans, Inc., 574 U.S. ___, 135 S. Ct. 790 (2015). The Supreme Court ruled that a homeowner must notify the lender in writing of rescission within three years, but need not sue within that time period. Jesinoski, 574 U.S. ___, 135 S. Ct. at 792. The Court stated that tender of the loan is not necessary for the borrower to exercise his or her right to rescind. Id. at 793. The United States Supreme Court only reached "the narrow issue of whether [debtors] had to file a lawsuit to enforce a rescission" or "merely deliver a rescission notice within three years of the loan transaction," and "nothing in the Supreme Court's opinion . . . 6 A-5374-15T1 would override TILA's tender requirement". Jesinoski v. Countrywide Home Loans, Inc., 196 F. Supp. 3d 956, 962 (D. Minn. 2016), aff'd, Jesinoski v. Countrywide Home Loans, Inc., No. 16- 3385, 2018 U.S. App. LEXIS 4974 (8th Cir. Feb. 28, 2018). With regard to an alleged TILA violation, it is not enough to seek rescission and stop paying the mortgage to gain ownership of the home outright. Defendants argue they own the home outright because Wells Fargo failed to respond to the rescission notice within twenty days. Although failure to respond to a rescission notice within twenty days would constitute another TILA violation, TILA also explicitly states that if a "creditor does not take possession of the property within 20 days after tender by the obligor, ownership of the property vests in the obligor without obligation on his [or her] part to pay for it." 15 U.S.C. § 1635(b) (emphasis added). Here, defendants did not ever tender the home's reasonable value to Wells Fargo following the notice of rescission. Thus, no tender took place that would have forced Wells Fargo to take possession of the property within twenty days or lose the home to defendants. Additionally, Jesinoski did not overturn Third Circuit precedent that "a notice of rescission is not effective if the obligor lacks either the intention or the ability to perform, i.e., repay the loan." Sherzer v. Homestar Mortg. Servs., 707 7 A-5374-15T1 F.3d 255, 265 n.7 (3d Cir. 2013). Jesinoski also did not take away a court's discretion to modify the rescission procedures. See 15 U.S.C. § 1635(b) (stating that the rescission "procedures prescribed by this subsection shall apply except when otherwise ordered by a court") (emphasis added); see also 12 C.F.R. 226.23(d)(4) (stating that the rescission "procedures outlined in paragraphs (d)(2) and (3) of [§ 226.23] may be modified by court order") (emphasis added). Jesinoski did not eliminate TILA's requirement that defendants tender the property's reasonable value to fully effectuate rescission, nor did it eliminate the need for good faith when serving a notice of rescission. Affirmed. 8 A-5374-15T1

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Docket No.: a5398-15
Decided: 2018-04-17
Caption: E.H. v. J.L.
Status: unpublished
Summary:
PER CURIAM In this post-judgment divorce matter, defendant J.L.1 appeals from a September 16, 2014 order denying his motion to vacate a consent order, and a March 10, 2015 order increasing his child support obligation. Plaintiff E.H. cross-appeals from portions of the March 10, 2015 order allocating the guidelines-based child support award, and a June 30, 2016 order denying her request for attorney's fees. We affirm the September 16, 2014 order denying defendant's motion to vacate the consent order, and the June 30, 2016 order denying plaintiff's request for attorney's fees because those orders were supported by substantial, credible evidence. We are constrained to vacate the March 10, 2015 order, however, and remand the matter to the Family Part to recalculate the amount and allocation of child support. I. The parties were married in June 2005. They have one child, a daughter, born in October 2007. Plaintiff filed for divorce in 2010. With the assistance of counsel, the parties entered into a matrimonial settlement agreement (MSA). The MSA was incorporated into their final judgment of divorce, and the judgment was entered in March 2011. 1 We use initials to protect the parties' privacy interests. See R. 1:38-3(d). 2 A-5398-15T4 Under the terms of the MSA, defendant agreed to pay plaintiff $147,000 per year in limited duration alimony for three and one- half years. Defendant also agreed to pay $2750 per month in basic child support, and seventy percent of other child-related expenses. The MSA provided that after alimony was terminated, the parties would renegotiate defendant's child support and child- related expense obligations. Following their divorce, both parties have remarried. Plaintiff began dating her current husband in 2011. They were engaged in March 2012, moved in together in June 2012, and got married in September 2012. When defendant learned that plaintiff was planning to remarry, the parties began to discuss resolving alimony with a lump sum payment. Initially, the parties were not successful in negotiating a resolution and, in August 2012, defendant filed a motion to terminate or modify alimony based on plaintiff's cohabitation with her then-fiancé. During those negotiations, plaintiff did not disclose her actual wedding date. Through mediation, the parties eventually agreed that defendant would pay a lump sum of $55,000 to plaintiff as full satisfaction of all alimony obligations. That agreement was incorporated into an August 31, 2012 consent order (August 2012 consent order). 3 A-5398-15T4 In October 2012, plaintiff moved to modify defendant's child support obligation in light of the termination of alimony and in accordance with the terms of the MSA. Defendant cross-moved to vacate the August 2012 consent order contending that plaintiff fraudulently concealed her September 2012 wedding date during settlement negotiations. In connection with his motion, defendant sought to elicit testimony from the mediator to establish plaintiff's alleged fraud. The Family judge ruled that the mediator could not be called as a witness because the parties' discussions during mediation were privileged and inadmissible. The Family Part held a five-day plenary hearing between April and December 2014. After the hearing, the court denied defendant's motion to vacate the August 2012 consent order and granted plaintiff's motion to increase defendant's child support obligation. The court embodied its rulings in a September 16, 2014 order. Addressing defendant's application to vacate the August 2012 consent order, the court found that defendant failed to establish that plaintiff had engaged in fraud. Specifically, the Family judge found that "it would be different . . . if defendant's attorney or defendant had specifically asked [plaintiff] when she was getting married, but there was no testimony or evidence presented showing that that question was ever asked[.]" With 4 A-5398-15T4 regard to child support, the court calculated the child's reasonable monthly expenses, and then addressed the child support guidelines. Ultimately, the court ordered defendant to pay a total of $3700 per month in child support. Defendant moved for reconsideration of the September 16, 2014 order, arguing that the court erred in calculating his modified child support obligation. Plaintiff cross-moved for attorney's fees. On March 10, 2015, the court entered an order granting in part and denying in part defendant's motion for reconsideration as to child support. In that regard, the court decreased defendant's child support obligation to $3,553.43 per month due to certain miscalculations. On June 30, 2016, the court entered an order, supported by a statement of reasons, denying both parties' requests for attorney's fees in connection with the plenary hearing. Following the entry of the June 30, 2016 order, defendant filed a notice of appeal and plaintiff filed a notice of cross- appeal. II. On appeal, defendant makes five arguments, contending that the trial court erred in (1) failing to find that plaintiff engaged in fraud, (2) not vacating the August 2012 consent order, (3) requiring defendant to pay 100 percent of supplemental child 5 A-5398-15T4 support in excess of the guidelines-based amount, and (4) calculating the amount of supplemental child support. Defendant also argues that this court should correct the alleged errors in the March 10, 2015 decision. In her cross-appeal, plaintiff argues that the trial court erred in (1) allocating the amount of guidelines-based child support that each party was obligated to pay, and (2) denying her request for attorney's fees in connection with the plenary hearing. Both plaintiff and defendant have identified minor errors in the calculation of the child support obligations. Thus, we affirm in part and reverse and remand in part. We will analyze the consent order, the child support issues, and the attorney's fees in the following three sections. A. The August 2012 Consent Order Defendant contends that the trial court erred in finding that plaintiff did not engage in fraud, and in denying his motion to vacate the August 2012 consent order. We disagree. Settlement agreements in matrimonial cases are contracts that should be enforced provided that they are fair and just. Quinn v. Quinn, 225 N.J. 34, 44 (2016); Petersen v. Petersen, 85 N.J. 638, 642 (1981); see also Lepis v. Lepis, 83 N.J. 139 (1980). "Indeed, there is a 'strong public policy favoring stability of arrangements in matrimonial matters.'" Quinn, 225 N.J. at 44 6 A-5398-15T4 (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). "[F]air and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.'" Ibid. (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)). Thus, a party seeking to set aside a settlement agreement must prove fraud by clear and convincing evidence. See Smith v. Fireworks by Girone, Inc., 380 N.J. Super. 273, 291 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006). Defendant argues that plaintiff intentionally concealed her wedding date during settlement negotiations and, as a result, received a windfall that exceeded the alimony that she otherwise would have received. The record does not support that argument. The Family judge found no evidence that plaintiff's wedding date was discussed during the August 2012 mediation. In addition, defendant failed to establish that plaintiff's non-disclosure of her wedding date constituted fraud. In that regard, the Family judge found that "[w]hether [plaintiff's decision not to disclose her wedding date] was a settlement tactic or a negotiation tactic . . . [it did not] rise[] to the level of fraud." The Family judge properly exercised her discretion in denying defendant's motion, and we discern no basis to disturb that decision. See DEG, LLC v. Township of Fairfield, 198 N.J. 7 A-5398-15T4 242, 261 (2009) (reviewing a trial court's denial of a motion to vacate a consent order for an abuse of discretion). B. Child Support Calculations Family judges are vested with "great judicial discretion" in determining the amount of child support. Gnall v. Gnall, 222 N.J. 414, 431 (2015); Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015). We will overturn a child support award, however, when there was a clear abuse of discretion, a failure to correctly apply governing legal principles, or findings of fact that were clearly mistaken or lacking support in the record. Elrom, 439 N.J. Super. at 433; Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996). Defendant contends that the Family judge erred in calculating the amount and allocation of supplemental child support. Plaintiff argues that the Family judge erred in allocating the guidelines- based child support in defendant's favor.2 Having reviewed the parties' arguments in light of the record, we are constrained to 2 Plaintiff did not raise this issue before the Family Part. Generally, we do not consider issues not raised before the trial court. Under the circumstances presented in this appeal, however, we address plaintiff's argument because it affects the recalculation of defendant's total monthly child support award. See Paff v. Ocean Cty. Pros. Office, 446 N.J. Super. 163, 190 (App. Div. 2016) ("[A]n issue not raised below may be considered . . . if it meets the plain error standard or is otherwise of special significance to the litigant . . . ."). 8 A-5398-15T4 vacate the March 10, 2015 order, and remand to the Family Part to recalculate defendant's total child support obligation. 1. Allocation of Guidelines-Based Child Support Rule 5:6A provides that the child support guidelines "shall be applied when an application to establish or modify child support is considered by the court." To calculate each parent's percentage share of income for purposes of guidelines-based child support, the court must divide each parent's individual net income by their combined net income. Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A (2017). The total guidelines-based child support award is then multiplied by each parent's percentage share of income to determine each parent's guidelines-based child support obligation. Ibid. Even where the parents' combined income exceeds the child support guidelines, the maximum support under the guidelines must be allocated between the parents based on their relative net incomes. Caplan v. Caplan, 364 N.J. Super. 68, 89 (App. Div. 2003). Here, the Family judge stated that she used defendant's base salary and two annual bonuses in calculating the amount and allocation of guidelines-based child support. Notably, the judge did not include defendant's substantial commissions in calculating his gross and net income, as required under the guidelines. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court 9 A-5398-15T4 Rules, Appendix IX-B to R. 5:6A (2017) ("Gross income, includes, but is not limited to compensation for services, including wages, fees, tips, and commissions."). On remand, the Family judge must consider each party's individual net income as a percentage of their total combined net income when allocating the guidelines-based child support award. That calculation must include defendant's commission-based income. Accordingly, on remand, both plaintiff and defendant must produce amended case information statements, and supporting financial documents reflecting their respective gross and net incomes. 2. Amount of Discretionary Child Support In cases where the parties earn in excess of $187,200, the court must apply the child support guidelines up to that amount, then supplement the guidelines-based award with a discretionary amount based upon the remaining family income and the factors set forth in N.J.S.A. 2A:34-23(c). Elrom, 439 N.J. Super. at 443. Thus, in determining the discretionary child support award, the maximum [guidelines-based] child support amount . . . should be subtracted from the [total child-related expenses] to determine the remaining children's needs to be allocated between the parties. Then, the court must analyze the factors outlined in N.J.S.A. 2A:34-23 and determine each party's responsibility for satisfying those remaining needs. [Caplan, 364 N.J. Super. at 90.] 10 A-5398-15T4 In the March 10, 2015 order, the Family judge found that the child's total monthly expenses were $4,022.75. The judge then correctly stated that she had to deduct the total guidelines-based child support award from the total monthly expenses to determine the amount of discretionary supplemental child support. In doing so, however, the Family judge inadvertently miscalculated the amount of supplemental child support. The correct calculation for supplemental child support would have been the child's total monthly expenses of $4,022.75, less the total guidelines-based child support of $2,455.30 ($571 x 4.3) for a total supplemental child support award of $1,567.45 per month. The Family judge did not deduct the correct amount from the child's total monthly expenses and, therefore, a recalculation of the supplemental child support award is necessary. 3. Allocation of Supplemental Child Support In allocating 100 percent of the supplemental child support obligation to defendant, the Family judge correctly identified and weighed the factors detailed in N.J.S.A. 2A:34-23(c). The court based the allocation of supplemental child support on factors two (standard of living and economic circumstances of each parent), three (all sources of income and assets of each parent), and six (age and health of the child and each parent). The judge placed the greatest amount of weight on factor three (defendant's high 11 A-5398-15T4 income). These findings were based on substantial, credible evidence and we discern no basis to disturb the Family judge's allocation of 100 percent of supplemental child support to defendant. C. Denial of Plaintiff's Request for Attorney's Fees Plaintiff contends that the Family judge erred in denying her request for attorney's fees because defendant did not participate in settlement negotiations in good faith, and forced her to incur legal fees by engaging in needless motion practice. An award of counsel fees in matrimonial matters rests within the sound discretion of the Family judge. See N.J.S.A. 2A:34-23; R. 5:3-5(c). We will disturb a counsel fee award "only on the 'rarest occasion,' and then only because of a clear abuse of discretion." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (quoting Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)). Here, the Family judge appropriately considered the standards set forth in N.J.S.A. 2A:34-23 and Rule 5:3-5(c) in evaluating the requests for attorney's fees. The judge concluded that neither party was entitled to attorney's fees based upon their ability to pay, and the positions taken during litigation. We discern no abuse of discretion in the Family judge's decision to deny plaintiff's request for attorney's fees. 12 A-5398-15T4 III. In sum, we affirm the September 16, 2014 order denying defendant's motion to vacate the August 2012 consent order, and the June 30, 2016 order denying plaintiff's request for attorney's fees. We vacate the March 10, 2015 order and remand the matter for the limited purpose of recalculating defendant's total monthly child support obligation consistent with this opinion. In directing this remand, we emphasize that the parties should not be allowed to re-litigate issues already decided or to raise issues that could have been previously raised, but were not raised. Affirmed in part, reversed and remanded in part. We do not retain jurisdiction. 13 A-5398-15T4

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Docket No.: a1864-16
Decided: 2018-04-16
Caption: STATE OF NEW JERSEY v. L.J.A.
Status: unpublished
Summary:
PER CURIAM Defendant L.J.A. appeals from the October 19, 2016 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. A jury convicted defendant of serious sexual assaults on his young daughter. Defendant is serving an aggregate extended term of fifty years in prison with an 85% parole disqualifier. N.J.S.A. 2C:43-7.2. We affirm substantially for the reasons expressed by Presiding Criminal Judge Sheila A. Venable in her August 31, 2016 fifteen-page written opinion. We also reject defendant's argument that his PCR counsel was ineffective. We affirmed defendant's convictions on direct appeal. State v. L.J.A., No. A-0493-11 (App. Div. Dec. 27, 2013) (slip op. at 33). The Supreme Court reversed the sentence only and remanded to us for reconsideration. State v. L.J.A., 220 N.J. 565 (2015). We, in turn, remanded to the trial court and defendant was resentenced. State v. L.J.A., No. A-0493-11 (App. Div. Mar. 31, 2015) (slip op. at 5). On this appeal, defendant argues: POINT I: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS AND THE LOWER COURT ERRED IN CONCLUDING OTHERWISE. A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF. B. BECAUSE OF TRIAL COUNSEL'S INEFFECTIVE REPRESENTATION, INADMISSIBLE EVIDENCE REGARDING THE EXISTENCE OF A RESTRAINING ORDER AGAINST DEFENDANT, AND HIS ARREST FOR HAVING VIOLATED THAT ORDER, PERMEATED THE TRIAL RECORD. 2 A-1864-16T4 C. TRIAL COUNSEL'S CROSS EXAMINATION OF THE STATE'S EXPERT, DR. TASKA, WAS WHOLLY INSUFFICIENT, AND THEREFORE, DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSER. D. DEFENDANT'S OTHER CONTENTIONS CONTAINED IN PCR COUNSEL'S SUPPLEMENTAL BRIEF AMOUNT TO INEFFECTIVE [ASSISTANCE] OF COUNSEL. POINT II: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST CONVICTION RELIEF COUNSEL (not raised below). POINT III: THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR. POINT IV: THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable 3 A-1864-16T4 professional judgment." Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy. . . ." Fritz, 105 N.J. at 42, 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963)). We rely primarily on Judge Venable's thorough opinion, adding only a few brief comments. On direct appeal we noted that defense counsel's reference to a final restraining order against defendant was a matter of trial strategy. L.J.A., slip op. at 22 (2013). With regard to the cross-examination of the expert, it too was trial strategy, as explained in detail by Judge Venable. Defendant argues that his PCR counsel was ineffective because his thirty-three page written supplemental brief did not cover in detail four of the eight issues raised.1 PCR "counsel should advance any grounds insisted on by defendant notwithstanding that counsel deems them without merit." State v. Rue, 175 N.J. 1, 13 (2002) (quoting R. 3:22-6). Counsel is not required, however, to write in detail on every issue. "[T]he brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider 1 Defendant supplied the supplemental brief but not the first brief filed. 4 A-1864-16T4 them." State v. Webster, 187 N.J. 254, 257 (2006). The issues not briefed extensively involve a purported failure to sufficiently investigate information potentially discrediting the victim and her mother as well as a failure to call an expert used at the Michaels2 hearing. These issues also involve trial strategy. Defendant's argument that PCR counsel was ineffective is unsupported and does not require a hearing. See State v. Preciose, 129 N.J. 451, 462 (1992). We therefore affirm substantially for the reasons expressed by Judge Venable in her opinion. Affirmed. 2 State v. Michaels, 136 N.J. 299 (1994). 5 A-1864-16T4

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Docket No.: a2391-16
Decided: 2018-04-16
Caption: STATE OF NEW JERSEY v. DARVIN CANNON
Status: unpublished
Summary:
PER CURIAM Defendant appeals from the November 18, 2016 order that denied his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm. On February 26, 2014, a man dressed in dark clothing with a mask and gun went into a convenience store in Bridgeton. When the store clerk saw him, she screamed. He put the gun to her back and told her to open up the registers. The storeowner was in the rear of the business and heard the employee scream. He looked at the surveillance monitor and saw an armed robber directing the employee to go behind the counter. The owner drew his own weapon. He and the robber exchanged gunfire until the robber fled the store. The owner's shirt was grazed. The surveillance video captured this exchange, showed the robber fall in the parking lot, get up and run toward a white car. When the police responded to the store, they were notified that defendant was at the hospital with a non-life threatening gunshot wound to the head. Although he told the police officers at the hospital that he was shot in another area of Bridgeton, he and the clothing he was wearing matched the description of the armed robber. Defendant was indicted on four counts, including first-degree armed robbery with a handgun, N.J.S.A. 2C:15-1 (count one); fourth- degree aggravated assault, N.J.S.A. 2C:12(1)(b)(4) (count two); 2 A-2391-16T3 second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) (count four). Pursuant to a negotiated agreement with the State, defendant pled guilty on June 18, 2015 to the first count in the indictment charging him with first-degree armed robbery. The State agreed to dismiss the other three counts. The sentencing court imposed the recommended sentence of fifteen-years imprisonment with an eighty-five percent period of parole ineligibility and five years of parole supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant did not file a direct appeal from his conviction or sentence. Defendant filed a PCR petition on November 30, 2015, alleging ineffective assistance of counsel. He claimed his counsel advised him to plead guilty although he wanted to go to trial. He also wanted a change in venue and claimed the court lacked jurisdiction. Defendant's PCR attorney filed a letter brief where he alleged that defendant's trial counsel did not review all of the discovery with him, including the videotape of the incident, did not look at the videotape, and did not complete investigation of the case. He contended the plea was not entered knowingly and voluntarily. Defendant requested an evidentiary hearing. 3 A-2391-16T3 In September 2016, the PCR court allowed defendant to submit a certification in support of his PCR petition. In defendant's October 19, 2016 certification, he contended that he never received a complete copy of discovery and was not shown the surveillance tape footage of the robbery. He argued his trial counsel insisted that he plead guilty and accept the fifteen-year sentence. He alleged his trial attorney failed to file pretrial motions. Defendant's PCR petition was heard on November 18, 2016. The PCR judge denied the petition after considering the oral arguments of counsel. Defendant alleges that his trial counsel told him before the plea hearing that she had not viewed the videotape. The PCR court found that even if counsel and defendant did not view the videotape before the plea, defendant did not allege there was a discrepancy between what the tape was purported to show and what it did show. There was no showing the tape deviated in any meaningful way from what was represented at the time defendant entered his guilty plea. Thus, even if defendant could show that his counsel's performance were deficient, defendant did not show that he was prejudiced. Defendant presents the following issues for our consideration in his appeal. 4 A-2391-16T3 POINT I THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION. POINT II THE GUILTY PLEA WAS NOT ENTERED KNOWINGLY AND VOLUNTARILY AS REQUIRED BY THE LAW. POINT III THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING. We are not persuaded by any of these arguments and affirm. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on an ineffective assistance of counsel claim, defendant must meet a two-prong test by establishing that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists "a reasonable probability that, but for counsel's unprofessional 5 A-2391-16T3 errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687, 694. In the plea bargain context, "a defendant must prove 'that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial,'" State v. Gaitan, 209 N.J. 339, 351 (2012) (alteration in original) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)), and that "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010). We agree with the PCR court that defendant failed to show a prima facie case of ineffective assistance. The State provided discovery to defendant's counsel, including the surveillance videotape. Defendant acknowledged that before he pled guilty, he knew that his attorney had not viewed the tape. We agree with the PCR court that even if his trial attorney did not look at the videotape and even if this were deficient performance, defendant failed to show a reasonable probability the results of the proceedings would have been different. The videotape purported to show defendant coming into the store dressed in dark clothes with a gun and threatening the employee. The storeowner and defendant shot at each other, and defendant left the store. Defendant never alleged that there was any discrepancy 6 A-2391-16T3 between what the tape purported to show and what it actually showed. "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Porter, 216 N.J. 343, 353 (2013) (alteration in original) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). Defendant did not meet his burden of showing factually that further investigation of the videotape would have made a difference. We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992). We conclude that defendant's further arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 7 A-2391-16T3

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Docket No.: a2608-16
Decided: 2018-04-16
Caption: RICK LARUE v. MONMOUTH COUNTY AGRICULTURE DEVELOPMENT BOARD
Status: unpublished
Summary:
PER CURIAM In this appeal, petitioners Monica and Rick LaRue submitted a Site Specific Agricultural Management Practice (SSAMP) application to appellant Monmouth County Agricultural Development Board (MCADB). Pertinent to this appeal was petitioners' request for approval of a farm work area location under the Right to Farm Act (RTFA), N.J.S.A. 4:1C-1 to -10.4, despite its violation of a municipal setback ordinance. The MCADB found that the farm work area was not entitled to RTFA protection and issued a resolution to that effect. On appeal, the State Agriculture Development Committee (SADC) overturned that ruling in a December 11, 2016 final decision, concluding that the RTFA protected the farm work area location. After a review of the contentions in light of the record and applicable legal principles, we affirm. Petitioners own and operate a commercial farm consisting of 24.09 acres located in a "Rural Agricultural" zone. On February 20, 2014,1 petitioners submitted a revised SSAMP application to MCADB, seeking RTFA protection for a number of activities, including the location of an equipment storage and trailer parking 1 Petitioners had submitted an initial SSAMP application in January 2012. The first SSAMP application is not at issue in this appeal. 2 A-2608-16T1 area (the farm work area), which violated the municipality's ten- foot side yard setback requirement.2 After several hearings on the application, MCADB adopted four resolutions pertaining to petitioners' application.3 With regard to the farm work area location, MCADB adopted Resolution No. 2014- 06-02, finding that the farm work area was not entitled to RTFA protection because petitioners failed to show that an "agricultural hardship" existed and, therefore, the farm work area must comply with the municipal ten-foot side yard setback requirement. Petitioners appealed from the resolutions and the matter was transferred to the Office of Administrative Law. Following a hearing, an Administrative Law Judge (ALJ) issued an initial decision on August 22, 2016, concluding that MCADB's "decision that petitioners were not entitled to relief from the setback requirement was appropriate." Petitioners submitted exceptions to the ALJ's initial decision. After exceptions to the ALJ's initial decision were filed, the SADC issued a final decision on the matter on December 1, 2 The revised SSAMP application also sought RTFA protection for six other activities that are not the subject of this appeal. 3 Only the resolution regarding the farm work area and setback requirement is at issue on appeal. 3 A-2608-16T1 2016. The SADC concurred with the MCADB and ALJ that the proper storage of vehicles and equipment for farming operations was a generally accepted agricultural management practice. However, it determined that the ALJ and MCADB had applied the wrong standard when determining when an accepted agricultural management practice may preempt a local ordinance. Petitioners did not have to show an agricultural hardship to receive the protection of RTFA, but instead needed to "demonstrate a legitimate, farm-based reason for not complying with the local law." The SADC balanced the "legitimate, farm-based interest [presented by petitioners] against the public interest in the side yard setback requirement" and concluded that the farm work area was entitled to RTFA protection. The SADC, therefore, granted petitioners' request for RTFA protection of the location of the farm work area. On appeal, MCADB argues that the SADC erred in granting RTFA protection to the location of the farm work area. We are mindful that our review of administrative agency decisions is limited. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). We will not disturb an agency's action unless it was clearly "arbitrary, capricious, or unreasonable." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). As the reviewing court, we "may not substitute [our] own judgment for the agency's, even though [we] might have reached a different 4 A-2608-16T1 result." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)). We do, however, review an agency's interpretation of a statute or case law de novo. Russo, 206 N.J. at 27. Applying our highly deferential standard of review, we conclude that there is substantial credible evidence in the record to support the SADC's finding that the farm work area was eligible for RTFA protection. We affirm. The RTFA "represents a legislative determination 'to promote, to the greatest extent practicable and feasible, the continuation of agriculture in the State of New Jersey while recognizing the potential conflicts among all lawful activities in the State.'" Twp. of Franklin v. Hollander, 338 N.J. Super. 373, 383 (App. Div. 2001) (quoting L. 1983, c. 31) aff'd, 172 N.J. 147 (2002). In order to assure "the State's regulatory action with respect to agricultural activities" was "undertaken with a more complete understanding of the needs and difficulties of agriculture," the Act established the SADC within, but independent of, the Department of Agriculture. N.J.S.A. 4:1C-4(a). To effectuate this express purpose, the provisions of the RTFA are paramount to "any municipal or county ordinance, resolution, or regulation to the contrary." N.J.S.A. 4:1C-9; see also Borough of Closter v. Abram Demaree Homestead, Inc., 365 N.J. Super. 338, 347 (App. Div. 2004). 5 A-2608-16T1 Our Supreme Court has recognized that the RTFA implicates "the relationship between commercial farming activities . . . and the right of municipalities to enforce local zoning and land use ordinances enacted pursuant to the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -129." Twp. of Franklin v. Hollander, 172 N.J. 147, 149 (2002). In doing so, the Court also held that the RTFA "preempts municipal land use authority over commercial farms." Ibid. Under Hollander, when an applicant seeks RTFA protection, the reviewing board must engage in a two-part inquiry. Id. at 152. First, the board must determine "whether an agricultural management practice is at issue." Ibid. Second, the board must "consider relevant municipal standards in rendering its ultimate decision." Ibid. (quoting Hollander, 338 N.J. Super. at 393). This "fact-sensitive inquiry" requires a careful balancing of "the interests of farmers, . . . 'the extent of [the] use [of agricultural management practices] and . . . the limitations imposed on such uses by a municipality.'" Id. at 153 (quoting Hollander, 338 N.J. Super. at 392). In reviewing petitioners' revised SSAMP application, the MCADB interpreted Hollander to require petitioners to demonstrate an "agricultural hardship" for RTFA protections. However, Hollander does not require the showing of a "hardship"; it requires 6 A-2608-16T1 only "a legitimate, agriculturally-based reason" for the agricultural management practice at issue. 172 N.J. at 153. The SADC noted that the MCADB and ALJ had applied the wrong standard, and the SADC appropriately followed the guidelines stated in Hollander. The SADC found, first, "that proper storage of vehicles and equipment for farming operations is a generally accepted agricultural management practice." The SADC next balanced petitioners' interests against the public interest in enforcing the municipal setback requirement. Petitioners' reasons for non-compliance with the setback requirement were that the farm lacks sufficient flat terrain outside of the 10' setback area and that the farm equipment storage and trailer parking area needs to remain at the current location in order to have . . . a 'significant turning radius' without having to move farm equipment. The public interest in [enforcing] the setback requirement . . . was the importance of providing a buffer between neighboring properties and farms. Considering these interests, the topographic constraints of the farm, and the fact that the only structures on the abutting property were "approximately 1,000 feet southeast of the . . . farm work area," the SADC reasoned that "it appears that the activities occurring in the farm work area would have minimal, if any, impact on the neighboring property." The SADC also noted, as did the MCADB, that there were no complaints against petitioners 7 A-2608-16T1 from neighbors regarding the placement of the farm work area.4 The SADC reasoned that this "lack of complaints . . . further evidences that farm work area activities have had no or insubstantial adverse impacts on public and private interests." As such, the SADC concluded that, on balance, "the trailer parking and farm equipment storage in the farm work area may receive RTFA protection." Having reviewed the record on appeal, we are satisfied that the SADC applied the proper standard under Hollander and sufficiently balanced petitioners' interests against the public interests in concluding that the farm work area was eligible for RTFA protection. We are also satisfied that the MCADB failed to demonstrate that the SADC's conclusions were arbitrary, capricious, or unreasonable, or unsupported by the substantial credible evidence in the record. Accordingly, there is no basis to disturb the SADC's decision. Affirmed. 4 In the testimony presented at the OAL hearing, there was a vague reference to a neighbor who had complained about the proximity of the farm work area location at the MCADB hearing. The neighbor did not appear before the OAL and petitioners advised that the neighbor had since moved. There was no specific information presented as to the nature of the complaints. 8 A-2608-16T1

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Docket No.: a2889-16
Decided: 2018-04-16
Caption: STATE OF NEW JERSEY v. DONG SEOK
Status: unpublished
Summary:
PER CURIAM On July 15, 2016, following multiple adjournments so defendant Dong Seok could seek the advice of independent immigration counsel, the judge accepted defendant's guilty plea to third-degree conspiracy to "violate the narcotics laws," N.J.S.A. 2C:5-2 and 35-5, and third-degree possession of heroin with intent to distribute within one thousand feet of a school, N.J.S.A. 2C:35-7(a). Under oath, defendant, who was not a United States citizen, indicated he clearly understood his rights, understood his guilty plea could result in deportation and told the judge he was pleading guilty voluntarily. In return, the State agreed to recommend a non-custodial probationary sentence and dismiss ten other counts in the indictment against defendant.1 As to the conspiracy count, defense counsel elicited the following factual basis for the plea: Q. [D]irect[ing] your attention to August 25th of 2015. . . . [D]id you . . . have a phone conversation with someone on that day? A. Yes, sir. Q. And during that conversation, you discussed the purchase and sale of narcotics — specifically, heroin . . . . A. Yes, sir. 1 The indictment contained a total of 62 counts, against 26 defendants, including defendant's mother, brother and ex- girlfriend. The prosecutor consented to their entry into the Pre- trial Intervention Program as part of the plea bargain. 2 A-2889-16T2 Q. [A]t some point, you were going to meet with [your co-defendant] and . . . either purchase or sell him narcotics. A. Yes. Directing defendant's attention to a different date, defense counsel asked: Q. [A]t some point, the police came to your house and executed a search warrant, right? A. Yes. Q. And during the search of your home, certain drugs were discovered. A. Yes. Q. And one of those drugs was heroin. A. Yes. Q. And you're a user of heroin. A. Mm-hmm. Q. You knew it was heroin, right? A. Yes, sir. Q. You knew it was illegal to possess heroin. A. Yep. Q. Now with those drugs that you had in your possession, your plan was to maybe not sell them, but definitely share them with people that you take drugs with, right? Give it out? A. Mm-hmm. 3 A-2889-16T2 Q. Yes or no? A. Yes. On October 11, 2016, defense counsel moved to be relieved because of a "fundamental disagreement" with defendant, who now wished to withdraw his guilty plea and go to trial. 2 On the scheduled sentencing date, counsel told the judge defendant "was looking to seek different counsel." The judge noted the plea had been adjourned several times, and the sentencing had been adjourned from a prior date. He told defendant, "This [i]s the sentencing date. There's no one here representing that they will represent you." Defendant told the judge he thought successor counsel had contacted the court or spoken to the prosecutor, and he expected to have the funds necessary to retain successor counsel the next week. However, the judge said no one called the court and no one filed an appearance. He denied the adjournment request. Believing she had an obligation to advance defendant's withdrawal motion, counsel argued the four factors outlined by the 2 Apparently, defendant sent a certification to the judge outlining his desire to withdraw his guilty plea. It is not in the appellate record. 4 A-2889-16T2 Court in State v. Slater, 198 N.J. 145, 158-62 (2009).3 Counsel said defendant believed he was innocent of the charges. After considering the Slater factors, the judge denied the motion to withdraw and sentenced defendant in accordance with the plea agreement. Approximately two weeks later, successor counsel filed a motion for reconsideration. He certified that at the time of defendant's guilty plea, he "was not fully aware of the immigration consequences that would ensue." Counsel asserted that defendant had since hired an immigration lawyer and was now aware "of his likely deportation as a result of th[e] conviction."4 The judge held oral argument on the motion for reconsideration. Defendant asserted the judge erred by denying the adjournment request, and that he should have permitted defendant to withdraw his guilty plea. Regarding the latter, counsel argued relief was not premised upon the Slater factors; 3 The judge agreed, likening counsel's responsibility to the obligation of post-conviction relief counsel. See State v. Rue, 175 N.J. 1, 19 (2002) ("[C]ounsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them."). 4 The certification was not based on successor counsel's "personal knowledge" and does not comply with Rule 1:6-6. Claypotch v. Heller, Inc., 360 N.J. Super. 472, 489 (App. Div. 2003). 5 A-2889-16T2 rather, defendant provided an inadequate factual basis at the time of his guilty plea. The judge acknowledged he had not previously engaged in a thorough review of the factors that guide a trial court's exercise of discretion in considering a late adjournment request. See State v. Hayes, 205 N.J. 522, 538 (2011) (quoting State v. Furguson, 198 N.J. Super. 395, 402 (App. Div. 1985)). In a comprehensive oral decision, the judge did so and denied the motion for reconsideration of the denial of defendant's request to adjourn sentencing. The judge then considered the newly asserted basis for withdrawal of defendant's guilty plea. Defendant argued his factual basis established only that he jointly possessed the heroin with others, not that he possessed the drug with the intent to distribute. Relying on the factual basis we cited above, the judge denied defendant's motion for reconsideration of the denial of his withdrawal motion. This appeal followed. Before us, defendant reiterates the arguments made during his motion for reconsideration. We affirm. The Court faced a similar situation in Hayes, a case which defendant does not cite in his brief. There, after pleading guilty to counts in two separate indictments while represented by two different attorneys, the defendant sought to withdraw his guilty 6 A-2889-16T2 pleas. Hayes, 205 N.J. at 528-30. Trial counsel on one of the indictments confirmed that the defendant was seeking new counsel, and that one of the attorneys contacted agreed to represent the defendant on the withdrawal motion but had a schedule conflict that kept him from appearing that day. Id. at 530-31. Trial counsel could not advance an argument himself because he likely would be a witness regarding the defendant's claim of ineffective assistance. Ibid. He asked for an adjournment. Id. at 531. Without ruling, the judge then heard from the defendant, who essentially argued his motion to withdraw his guilty plea. Id. at 531-32. The judge denied the request for an adjournment, denied the motion to withdraw and proceeded to sentence the defendant. Id. at 532-33. After considering the factors set out in Furguson, id. at 538, the Court said, No doubt, when defendant requested an adjournment of his sentencing proceeding in order to secure uncompromised counsel to represent him in respect of the motion to withdraw his guilty pleas, the trial court was confronted with a quandary, although one that, common experience tells us, occurs with disturbing regularity. [I]n the circumstances presented, the denial of defendant's request for an adjournment was unreasonable and prejudicial to defendant's rights. 7 A-2889-16T2 [Id. at 539-40.] The Court also rejected the State's argument that any error in denying the defendant's adjournment request was harmless. Id. at 540. It specifically found the trial court provided "no meaningful analysis of the denial of defendant's withdrawal motion," id. at 540-41, and the Court had "no confidence in the uncounseled proceedings below," noting "[w]e cannot know whether defendant might have been able to satisfy the Slater standards with the help of a lawyer." Id. at 541. Since deciding Hayes, the Court has reiterated that "[i]f a trial court conducts a reasoned, thoughtful analysis of the appropriate factors, it can exercise its authority to deny a request for an adjournment to obtain counsel of choice." State v. Kates, 216 N.J. 393, 396-97 (2014) (citations omitted). Thus, we underscore that only if a trial court summarily denies an adjournment to retain private counsel without considering the relevant factors, or abuses its discretion in the way it analyzes those factors, can a deprivation of the right to choice of counsel be found. Structural error is not triggered otherwise. [Id. at 397.] Here, the judge himself noted that he originally failed to engage in a detailed weighing of the Hayes factors on sentencing day. The judge conducted a more thorough analysis when defendant 8 A-2889-16T2 moved for reconsideration. Based on his comprehensive oral opinion denying the reconsideration motion, we have no doubt that the judge did not mistakenly exercise his discretion by denying any further adjournment prior to imposing sentence. Of course, without a full explanation of the judge's reasoning on sentencing day, defendant was placed in the unenviable position of having an attorney, who herself was seeking to be relieved, argue his motion to withdraw his guilty plea. Unlike the defendant in Hayes, however, defendant was not without the benefit of counsel. From the record provided, it appears that the only legal support defendant supplied his attorney at the time was a claim of actual innocence, something belied by defendant's own words at the time of his plea allocution. Yet, counsel fashioned an argument based upon the Slater factors as best she could. More importantly, even if the judge should have granted yet another adjournment of the sentencing, we are convinced, unlike the Court was in Hayes, that any mistaken exercise of the judge's discretion was harmless. We say that with assurance because the reconsideration motion, albeit heard after sentence was imposed, provides the essence of what would have been defendant's argument had sentencing been adjourned, i.e., that defendant's factual 9 A-2889-16T2 basis was inadequate, a legal argument not asserted prior to sentencing.5 Defendant argues that he only admitted to possessing heroin with an intent to "share" the drugs with others. Therefore, his factual basis asserted an affirmative defense to the possession with intent charge.6 See State v. Morrison, 188 N.J. 2, 18 (2006) (quoting State v. Lopez, 359 N.J. Super. 222, 233 (App. Div. 2003) ("We accept the self-evident precept . . . that 'one cannot acquire something one already possesses' and thus two or more persons cannot 'distribute to each other drugs they jointly possess.'")). We acknowledged a defendant asserting facts that imply an affirmative defense to the charge cannot provide an adequate factual basis for a guilty plea. State v. Urbina, 221 N.J. 509, 528 (2015). However, nothing in defendant's allocution implied that others jointly possessed the heroin with defendant, an underlying predicate of the holdings in Morrison and Lopez. In 5 As noted, we do not have the certification defendant apparently sent to the judge that was his de facto motion for withdrawal, so we cannot tell precisely upon what he based a claim of actual innocence. It may well have mirrored successor counsel's assertion that defendant admitted facts that were legally insufficient to prove the elements of conspiracy and possession with intent. 6 Other than to quote the Criminal Code's definition of conspiracy, defendant's brief makes no specific argument regarding the conspiracy count. An argument not briefed is deemed waived. State v. L.D., 444 N.J. Super. 45, 56 n.7 (App. Div. 2016). 10 A-2889-16T2 addition, our Criminal Code makes it unlawful for someone to "distribute" or "possess or have under his control with intent to . . . distribute . . . a controlled dangerous substance." N.J.S.A. 2C:35-5(a)(1). "'Distribute' means to deliver," and "'[d]eliver' or 'delivery' means the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance." N.J.S.A. 2C:35-2. In short, possessing heroin with the intent to share it with another is distribution, and defendant's admissions under oath made him guilty of the charge. Affirmed. 11 A-2889-16T2

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Docket No.: a2893-16
Decided: 2018-04-16
Caption: G.A. BARRETT, LLC v. STATE OF NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
Status: unpublished
Summary:
PER CURIAM We are advised this matter settled and the parties stipulated to the dismissal of this appeal. Accordingly, the appeal is dismissed with prejudice and without costs. 2 A-2893-16T1

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Docket No.: a3412-15
Decided: 2018-04-16
Caption: STATE OF NEW JERSEY v. ABRAHAM MCFARLAND
Status: unpublished
Summary:
PER CURIAM Defendant Abraham McFarland appeals from his conviction for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39- 5(b). He claims the court's jury instructions on the elements of the offense were erroneous and require reversal of his conviction. We disagree and affirm. I. Defendant was charged in an indictment with unlawful possession of a .380 caliber handgun without first obtaining a permit to carry a firearm. The trial evidence showed that during the execution of an arrest warrant at co-defendant John W. Lee's apartment, police recovered a .25 caliber handgun and a .380 caliber handgun from a bedroom hamper. Defendant was arrested at the apartment with John W. Lee and Tymonn S. Lee. During defendant's recorded police interrogation that was played for the jury, he admitted ownership of the .380 caliber handgun. There was also testimony that in a separate interrogation, John W. Lee admitted ownership of the .25 caliber handgun.1 Without objection, the State introduced into evidence 1 John W. Lee and Tymonn S. Lee were charged in the indictment with two drug-related offenses. John W. Lee was also charged with second-degree unlawful possession of the .25 caliber handgun while committing the crime of possessing a controlled dangerous substance, N.J.S.A. 2C:39-5(b)(1), and second-degree possession of the handgun by a certain person prohibited from possessing a handgun, N.J.S.A. 2C:39-7(b)(1). The record shows the charges against John W. Lee were resolved prior to defendant's trial. The record does not disclose the disposition of the charges against Tymonn S. Lee. In any event, defendant was tried as a single defendant on the sole charge in the indictment against him. 2 A-3412-15T4 a State Police Firearms Unit representative's certification stating the pertinent records showed defendant "never had a permit to carry a handgun in the State of New Jersey." An officer also testified the investigation revealed the recovered guns were not purchased using a permit. During the charge conference, the court said it would instruct the jury concerning the elements of unlawful possession of a handgun under N.J.S.A. 2C:39-5(b), and provided counsel with a copy of proposed final jury instructions that included the model jury charge for the offense. See Model Jury Charges (Criminal), "Unlawful Possession Of A Handgun (N.J.S.A. 2C:34-5(b))" (rev. Feb. 26, 2001). Defense counsel's only objection to the proposed charge on the offense was to the inclusion of an instruction on joint possession. The court overruled the objection. Consistent with the discussions during the charge conference, in its final jury instruction the court stated defendant was charged with unlawful possession of a weapon. The court explained the statute upon which the charge was based provides that [a]ny person who knowingly has in his possession any handgun, without first having obtained a permit to carry the same, is guilty of a crime. [(Emphasis added).] 3 A-3412-15T4 Utilizing the model jury instruction, the court then separately defined the elements of the crime, explaining the State was required to prove three essential elements: (1) the gun introduced into evidence was a handgun: (2) defendant knowingly possessed the handgun, and (3) "[d]efendant did not have a permit to possess such a weapon." (Emphasis added). See Model Jury Charges (Criminal), "Unlawful Possession Of A Handgun (N.J.S.A. 2C:34-5(b))" (rev. Feb. 26, 2001). After providing further instructions concerning the first two elements of the offense, the court addressed the third element, stating: The third element that the State must prove beyond a reasonable doubt is that the [d]efendant did not have a permit to possess such a weapon – a handgun. If you find that the [d]efendant knowingly possessed the handgun and that there is no evidence that the [d]efendant had a valid permit to carry such a handgun, then you may infer, if you think it appropriate to do so, based upon the facts presented, that [d]efendant had no such permit. Note, however, that as with all other elements, the State bears the burden of showing beyond a reasonable doubt the lack of a valid permit and that you may draw the inference only if you feel it appropriate to do so under all of the facts and circumstances. 4 A-3412-15T4 Later in the charge, the judge explained the verdict sheet to the jurors. The judge said: The only question you need to answer is question number one, Possession of a Weapon. How do you find the Defendant on the charge that on or about the 19th day of February 2013, . . . knowingly did possess a certain weapon; that is a . . . 380 caliber handgun . . . without first having obtained a permit to carry a firearm in accordance with the provisions of N.J.S.A. 2C:58-4. [(Emphasis added).] The jury was given a verdict sheet restating the question in accordance with the judge's instructions. After being advised the jury reached a verdict, the judge polled each juror, asking, "How do you find the [d]efendant on the charge that on or about the 19th day of February 2013, . . . [he] knowingly did possess a . . . 380 caliber handgun . . . without having first obtained a permit to carry a firearm, in accordance with the provisions of N.J.S.A. 2C:58-4?" Each juror stated they found defendant guilty of the charge. The court sentenced defendant to a five-year custodial term with a three-year period of parole ineligibility. This appeal followed. On appeal, defendant presents the following argument: 5 A-3412-15T4 POINT I THE JURY INSTRUCTION ON UNLAWFUL POSSESSION OF A WEAPON WITHOUT A CARRY PERMIT IMPROPERLY TOLD THE JURY THAT THE "PERMIT" ELEMENT REQUIRED THE STATE TO PROVE THAT THE DEFENDANT DID NOT HAVE A "PERMIT TO POSSESS" THE WEAPON; PARTICULARLY WHEN THERE WAS EVIDENCE IN THE CASE ABOUT BOTH PURCHASER PERMITS AND CARRY PERMITS, REFERRING TO A NONEXISTENT "PERMIT TO POSSESS" THE GUN FAILED TO PROPERLY INFORM THE JURY OF THAT ELEMENT OF THE CRIME. (NOT RAISED BELOW). II. In pertinent part, N.J.S.A. 2C:39-5(b)(1) provides that "[a]ny person who knowingly has in his possession any handgun . . . without first having obtained a permit to carry same as provided in N.J.S.A. 2C:58-4, is guilty of a crime of the second degree." (Emphasis added). The "absence of a permit" to carry "is an essential element of the offense" of unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), "and thus, one to be determined by the jury." State v. Ingram, 98 N.J. 489, 494-95 (1985). Our Supreme Court has held a trial court's refusal to instruct the jury on the State's burden of proving the absence of a license to carry requires reversal of a conviction under N.J.S.A. 2C:39-5(b). State v. Vick, 117 N.J. 288, 289, 292-93 (1989). The State bears the burden of proving a defendant knowingly possessed a handgun without a permit to carry a handgun. See ibid. 6 A-3412-15T4 For the first time on appeal, defendant claims the court erred in defining the third element of unlawful possession of a handgun under N.J.S.A. 2C:39-5(b). More particularly, defendant argues N.J.S.A. 2C:39-5(b) prohibits possession of a handgun "without first having obtained a permit to carry . . . [the handgun] as provided in N.J.S.A. 2C:58-4," (emphasis added), but the court instructed that the State was required to prove defendant possessed the handgun while he "did not have a permit to possess such a weapon." (Emphasis added). Defendant asserts the purported error was clearly capable of producing an unjust result because there was evidence defendant lacked both a permit to purchase and a permit to carry the handgun. Defendant contends the instruction's reference to the "permit to possess" may have confused the jury and resulted in a guilty verdict founded on the absence of a purchaser's permit, and not on the absence of the carry permit specified in N.J.S.A. 2C:39- 5(b). We are not persuaded. "[A]ppropriate and proper charges [to a jury] are essential for a fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)). "Because proper jury instructions are essential to a fair trial, 'erroneous instructions on material points are presumed to' possess the 7 A-3412-15T4 capacity to unfairly prejudice the defendant." Id. at 159 (quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)). However, where there is no objection to the jury charges, "it may be presumed that the instructions were adequate." State v. Belliard, 415 N.J. Super. 51, 66 (App. Div. 2010) (quoting State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003)). "A claim of deficiency in a jury charge to which no objection is interposed 'will not be considered unless it qualifies as plain error.'" State v. R.B., 183 N.J. 308, 321 (2005) (quoting State v. Hock, 54 N.J. 526, 538 (1969)). A defendant who fails to object to a jury charge at trial bears a "considerable" burden and must establish "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Ibid. (quoting Hock, 54 N.J. at 538); accord State v. Burns, 192 N.J. 312, 341 (2007). Defendant fails to sustain that burden here. In our assessment of the court's jury charge, we do "not look at portions of the charge alleged to be erroneous in isolation." State v. McKinney, 223 N.J. 475, 494 (2015). We consider the charge "'as a whole to determine its overall effect,' and 'whether 8 A-3412-15T4 the challenged language was misleading or ambiguous.'" Ibid. (internal citations omitted) (first quoting State v. Jordan, 147 N.J. 409, 422 (1997); and then quoting State v. Nelson, 173 N.J. 417, 447 (2002)). Applying these principles, we are satisfied that when the charge is considered in its entirety, the court's reference to the "permit to possess" was neither misleading nor ambiguous. See id. at 494. The court first explained defendant was charged under a statute proscribing possession of a handgun without having obtained a "permit to carry." Although the subsequent instruction concerning the elements of the offense refers to a "permit to possess," the court provided a more specific instruction that if the jury determined defendant knowingly possessed the handgun and there was no evidence "[d]efendant had a valid permit to carry such a handgun," it could infer defendant "had no such permit." The court also instructed that the State had the burden of proving "the lack of a valid permit," and explained that the jury could, if it chose to do so, draw the inference there was a lack of a valid permit based on the evidence showing the lack of a "permit to carry." Thus, the instruction, when viewed in its entirety, used the terms "permit to possess" and "permit to carry" interchangeably to properly define the State's burden under N.J.S.A. 2C:39-5(b). 9 A-3412-15T4 The court also expressly instructed the jury that the only issue it was required to decide was whether defendant was guilty of knowingly possessing the handgun "without having first obtained a permit to carry a firearm." The verdict sheet required the jury to determine defendant's guilt based on that issue, and each juror separately stated they found defendant guilty of that precise offense. We are not persuaded by defendant's contention that because there was testimony the gun was purchased without a purchase permit, the reference to a "permit to possess" in the charge may have confused the jury. As noted, the totality of the court's instructions made clear the State was required to prove defendant did not have a permit to carry. Moreover, the testimony concerning the permit to purchase was fleeting, the jury was never advised defendant was charged under a statute proscribing possession of a weapon without a permit to purchase, and the jury charge makes no reference to a permit to purchase. "[P]ortions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Marshall, 123 N.J. 1, 135 (1991) (quoting State v. Wilbely, 63 N.J. 420, 422 (1973)). When considered in their totality, there is nothing in the jury instructions that permits a reasoned conclusion the jury 10 A-3412-15T4 may have convicted defendant based on a finding he did not have a permit to purchase the handgun, and we find no basis to conclude the instructions included any legal impropriety prejudicially affecting defendant's rights or possessing the clear capacity to bring about an unjust result. See R.B., 183 N.J. at 321. We last observe the judge honored the requirement that "insofar as consistent with and modified to meet the facts adduced at trial, model jury charges should be followed and read in their entirety to the jury[,]" because "[t]he process by which model jury instructions are adopted in this State is comprehensive and thorough." Id. at 325. Although the court's use of the model jury charge "is not determinative, it is a persuasive argument in favor of the charge as delivered." State v. Angoy, 329 N.J. Super. 79, 84 (App. Div. 2000). Affirmed. 11 A-3412-15T4

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Docket No.: a4658-15
Decided: 2018-04-16
Caption: MAUREEN FREEDENFELD v. STUART H. FREEDENFELD
Status: unpublished
Summary:
PER CURIAM Defendant Stuart H. Freedenfeld appeals three orders issued as a result of his attempts to modify his alimony and related financial obligations. We affirm in part, reverse in part, and remand for further proceedings. Briefly, the parties were married for thirty-nine years when divorced and have two emancipated children. Defendant is a retired physician; for many years, plaintiff was the bookkeeper in defendant's medical practice, which closed June 30, 2016. The parties jointly owned the commercial building where the practice was located. The building was sold in March 2017. Defendant filed case information statements (CIS) in 2007, 2008, and 2016. He certified that the practice made $2,001,799 in gross receipts in 2006; $1,997,703 in 2007; and $1,474,606 in 2014. Crucial to this appeal is the parties' election to resolve their financial issues through binding arbitration. Twenty-three arbitration sessions were conducted throughout 2009. The parties agreed in writing that the award would include only a limited "[s]tatement of [r]easons[,] [f]indings of [f]act and [c]onclusions of [l]aw," and "that any analysis of income, lifestyle, cash flow and expense payments [would be] omitted from the written award." The arbitrator recommended that defendant pay plaintiff $90,000 a year in permanent alimony, to be increased to $100,000 2 A-4658-15T1 a year upon the sale of the building. Defendant was also required to maintain $500,000 in life insurance while he had an ongoing alimony obligation. The building rental payments, maintenance and repair costs, and management fees became intensely contested issues post-divorce judgment. In May 2011, defendant unilaterally reduced his rental payments from $6905.15 to $5174.08 monthly, citing changed market conditions and the practice's declining revenues as justification. Although the court permitted defendant to continue to make reduced payments, the judge also reallocated the rent receipts. Defendant was ordered to pay plaintiff $15,000 for seven months of past-due rental payments. On September 17, 2015, defendant filed a cross-motion to modify alimony based on his intent to retire in November 2015, when he would become sixty-seven years of age. The judge denied the application in part because he considered defendant's expressed intent to retire "speculative," despite the relevant language in N.J.S.A. 2A:34-23, which specifically authorized the relief he sought. Additionally, while acknowledging the decline in defendant's gross receipts, because defendant inherited a $4 million asset shortly before the filing of the divorce complaint, the judge denied the motion. 3 A-4658-15T1 In two separate orders, the judge awarded plaintiff a combined total of $10,500 in attorney's fees. We quote more extensively from the judge's decisions in the relevant section of this opinion. There was a delay between the parties' late summer/early fall 2015 motions and cross-motions and the judge's eventual November 12, 2015 decision, and the May 2016 denial of reconsideration. The delay occurred because the parties unsuccessfully participated in economic mediation and attempted to resolve their dispute amicably. Defendant raises the following points: POINT I THE TRIAL COURT ERRED BY FAILING TO APPROPRIATELY APPLY THE RETIREMENT PROVISIONS OF THE AMENDMENT TO N.J.S.A. 2A:34-23 POINT II THE TRIAL COURT ERRED IN ITS ANALYSIS OF THE DEFENDANT/APPELLANT[']S REQUEST FOR A MODIFICATION OF SUPPORT BASED UPON A CHANGE OF CIRCUMSTANCES POINT III THE TRIAL COURT DIRECTED THE PRODUCTION/FILING OF A CASE INFORMATION STATEMENT, UTILIZED FOR ARBITRATION PURPOSES ONLY, IN VIOLATION OF THE ARBITRATION AGREEMENT AND PUBLIC POLICY POINT IV THE TRIAL COURT ERRED IN ORDERING STOCKTON FAMILY PRACTICE TO BRING CURRENT THE GROSS RENTAL PAYMENT, IN THE AMOUNT OF $5,174 PER MONTH FROM JULY 2015 TO THE PRESENT BY FAILING TO CONSIDER THE PREVIOUSLY ORDERED NET PAYMENT MADE TO THE PLAINTIFF/RESPONDENT OF $15,000 4 A-4658-15T1 REPRESENTING HER ACTUAL NET PROCEEDS ON THE RENT FROM JULY 2015 THROUGH JANUARY 2016 POINT V THE TRIAL COURT ERRED IN FAILING TO APPLY LANDLORD TENANT CASE LAW AND ADDRESS THE LEGITIMATE ISSUE OF THE PRACTICES CLAIM FOR LOSS OF USE AND QUIET ENJOYMENT OF THE LEASED PREMISES DUE TO THE MOLD CONTAMINATION POINT VI THE TRIAL COURT ERRED IN ALLOWING THE PLAINTIFF/RESPONDENT TO PAY HERSELF A MANAGEMENT FEE FOR HER COLLECTION OF RENT ON SUITE C POINT VII THE TRIAL COURT ERRED IN DENYING THE DEFENDANT/APPELLANT'S REQUEST TO MODIFY THE LIFE INSURANCE PROVISIONS OF THE ARBITRATION AWARD POINT VIII THE TRIAL COURT ERRED IN AWARDING COUNSEL FEES TO THE PLAINTIFF/RESPONDENT, IN THE ORDERS DATED NOVEMBER 12, 2015 & MAY 26, 2016 AND DENYING THE DEFENDANT/APPELLANT'S REQUEST FOR COUNSEL FEES I. "[M]atrimonial courts possess special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Because of this expertise in such areas, "appellate courts should accord deference to family court fact[-]finding." Id. at 413. Thus, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort Inc. v. Inv'rs Ins. Co., 65 5 A-4658-15T1 N.J. 474, 484 (1974)). Appellate courts review a trial court's legal conclusions de novo. Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016) (citation omitted). II. Defendant's first point is moot in light of his subsequent retirement, although we agree that under the statute he was entitled to have his application reviewed. Defendant further claims the judge should have rendered a decision based on his court-filed CISs in deciding whether the circumstances had changed sufficiently to warrant discovery and a plenary hearing. Lepis v. Lepis, 83 N.J. 139, 157 (1980). He also contends his failure to produce the 2009 CIS presented to the arbitrator was not so consequential as to justify the judge's flat refusal to entertain his motion for modification. However, both parties agreed to keep the financial documents confidential. They even agreed that the arbitrator's recommendation would omit any detailed discussion of the financial information submitted during the process. Given these circumstances, the parties' understanding should not be effectively nullified by compelling defendant to produce the CIS supplied to the arbitrator. The confidentiality agreement benefitted plaintiff as well as defendant. 6 A-4658-15T1 There is a narrow scope of review for an arbitration award. Minkowitz v. Israeli, 433 N.J. Super. 111, 136 (App. Div. 2013). In fact, "there is a strong preference for judicial confirmation of arbitration awards." Id. at 135 (quoting Linden Bd. of Educ. v. Linden Educ. Ass'n, 202 N.J. 268, 276 (2010)). The scope of an arbitrator's authority is based on the terms of the contract between the parties. Cty. Coll. of Morris Staff Ass'n v. Cty. Coll. of Morris, 100 N.J. 383, 391 (1985) (citations omitted). When the parties have an agreement with certain terms and conditions, "the arbitrator may not disregard those terms," and "may not rewrite the contract terms for the parties." Grover v. Universal Underwriters Ins. Co., 80 N.J. 221, 230 (1979). Admittedly, the CIS submitted to the arbitrator may well be the most accurate and complete baseline document——but the parties' own stipulation limits its usage. Furthermore, there have been several other CISs filed since 2009. If the concern is determining the parties' lifestyle, plaintiff's own CIS from the relevant period should suffice to establish that starting point. Also, the missing 2009 CIS is not the only means for testing whether defendant's subsequent disclosures are truthful. There are other tools available to plaintiff's counsel with which to do so, including, for example, the issuance of subpoenas to banks, 7 A-4658-15T1 and economic appraisals of defendant's current lifestyle information. That Rule 5:5-4(a) requires the filing of CISs in support of a motion for modification is not dispositive. Here, the parties reached a mutually agreed-upon mechanism to sidestep public disclosure. The nondisclosure of the financial information submitted in arbitration is a double-edged sword, no doubt made for reasons that presumably benefitted plaintiff as it did defendant. There were CISs filed prior to arbitration, and there have been CISs filed in the years following. Given his ample resources, defendant may very well be able to comfortably maintain his current alimony obligation. However, he is entitled to a review of his modification motion, given his retirement at age sixty-seven and the sale of the commercial building. The parties' agreement did not——and could not——absolutely bar future modification. Lepis, 83 N.J. at 146 ("As a result of this judicial authority, alimony and child support orders define only the present obligations of the former spouses. Those duties are always subject to review and modification on a showing of 'changed circumstances.'" (citations omitted)); see also N.J.S.A. 2A:34-23. To deny any review until he disclosed the arbitration CIS would effectively make the alimony award forever exempt from review. 8 A-4658-15T1 III. In points four, six, and eight, defendant raises alleged errors that we believe, albeit for different reasons, do not warrant much discussion in a written opinion. R. 2:11-3(e)(1)(E). Defendant alleges that the court's December 7, 2015 order requiring him to pay plaintiff $15,000 on account of unpaid and past-due rent resulted in a mathematical error when the judge entered a subsequent order regarding rents. In a later May 26, 2016 letter decision, however, the judge notes defendant's earlier $15,000 payment against rent arrears, when requiring him to bring the balance current and to resume timely monthly payments beginning May 1, 2016. Thus, there was no abuse of discretion in the court's order. See Elrom v. Elrom, 439 N.J. Super. 424, 434 (App. Div. 2015) ("While an abuse of discretion . . . defies precise definition, we will not reverse the decision absent a finding the judge's decision rested on an impermissible basis, considered irrelevant or inappropriate factors, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." (citations omitted)). Defendant claims the trial court erred in permitting plaintiff to pay herself a $216 a month management fee for her collection of rents and other obligations related to the commercial building. The judge found the payments to be "de minimis." It 9 A-4658-15T1 was the same amount previously paid to another who managed the property, plaintiff performed the same services, and the amount at issue was quite modest. The judge's decision is entitled to deference and is supported by the record. The court's counsel fee award was not an abuse of discretion. We "disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). When the first $3000 award was made, the court found defendant in violation of litigant's rights for failure to pay alimony and document his continuation of the life insurance policy. Clearly, plaintiff prevailed on this application, although defendant obtained some relief, and the court considered appropriate precedent in reaching a decision. When the court granted plaintiff $7500 in fees on the reconsideration application, plaintiff had again substantially prevailed on her application. In rendering his decision, the judge again examined all the relevant factors found in Rule 5:3-5(c) and caselaw. That award was not an abuse of discretion either. Finally, in points five and seven, defendant raises two issues not raised to the trial judge. We do not consider them for that reason, as they do not challenge jurisdiction or address matters 10 A-4658-15T1 of great public interest. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted). Affirmed in part, reversed in part, and remanded to the trial court for further proceedings in accordance with this opinion. 11 A-4658-15T1

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Docket No.: a5156-15
Decided: 2018-04-16
Caption: STATE OF NEW JERSEY v. EVERETT HOLLOWAY
Status: unpublished
Summary:
PER CURIAM Defendant Everett Holloway appeals from the May 16, 2016 denial of his second petition for post-conviction relief (PCR) without an evidentiary hearing. After a review of the arguments in light of the record and applicable principles of law, we affirm. This matter arises from an incident on October 12, 2007, during which defendant brutally, sexually assaulted the victim, E.H. A jury found defendant guilty of two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7) (count one) and N.J.S.A. 2C:14-2(a)(3) (count two), and three related offenses that were merged when defendant was sentenced on August 6, 2009. The details of defendant's offenses are recounted thoroughly in our opinion affirming defendant's conviction on direct appeal and need not be repeated here. State v. Holloway, No. A-0464-09 (App. Div. September 29, 2011) (Holloway I) (slip op. at 3-9). In his direct appeal, defendant raised the following issues: I. THE ADMISSION OF HEARSAY STATEMENTS VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AT TRIAL. II. THE EXPERT TESTIMONY INTRODUCED BY THE STATE WAS IMPROPER AND, COMBINED WITH THE INSUFFICIENT JURY INSTRUCTIONS ON THE SUBJECT GIVEN BELOW, CAUSED AN UNFAIR TRIAL. III. DEFENDANT'S MOTION FOR ACQUITTAL SHOULD HAVE BEEN GRANTED. IV. THE PROSECUTOR EXCEEDED FAIR COMMENT AND DEPRIVED DEFENDANT OF A FAIR TRIAL. V. DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY WAS VIOLATED. 2 A-5156-15T4 VI. REMAND SHOULD BE ORDERED SO DEFENDANT CAN HAVE AN OPPORTUNITY TO PRESENT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL NOTED BELOW. VII. DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE. Although we rejected the claims advanced in Points I through IV and affirmed defendant's conviction, we deferred consideration of Point VI for PCR. We remanded the issues surrounding Point VII for resentencing because we determined the trial court erred by imposing two extended term sentences contrary to N.J.S.A. 2C:44- 5(a)(2), which provides that "[n]ot more than one sentence for an extended term shall be imposed." The Supreme Court denied defendant's petition for certification. State v. Holloway, 210 N.J. 109 (2012). On remand, the trial court resentenced defendant on the second count of aggravated sexual assault to a twenty-year custodial term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently with the life sentence the trial court had previously imposed on the first count of aggravated sexual assault. On March 1, 2012, defendant filed his first PCR petition. Counsel was appointed to represent him. In the petition, he alleged trial counsel was ineffective for the following reasons: (1) trial counsel failed to provide defendant with discovery and review it with him, which was exacerbated because defendant is 3 A-5156-15T4 blind; (2) trial counsel failed to investigate and locate witnesses who would have testified defendant and the victim had a prior sexual relationship; and (3) trial counsel's cumulative errors deprived defendant of effective assistance of counsel. In an oral decision delivered from the bench on January 4, 2013, Judge Joseph L. Foster denied defendant's petition without an evidentiary hearing. Defendant appealed, raising the following argument: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO PROVIDE HIM WITH DISCOVERY AND FAILING TO INVESTIGATE PROSPECTIVE WITNESSES. We affirmed substantially for the reasons explained by Judge Foster in his oral decision, finding defendant's arguments to be without sufficient merit to warrant discussion in a written opinion. State v. Holloway, No. A-2700-12 (App. Div. April 119, 2014) (slip op. at 3) (Holloway II) (citing R. 2:11-3(e)(2)). The Supreme Court denied defendant's petition for certification. State v. Holloway, 220 N.J. 40 (2014). On August 26, 2013, defendant filed his second petition for PCR. Pursuant to Rule 3:22-3, the matter was stayed pending the outcome of the first PCR. The second PCR was reinstated following the denial of the first PCR. Counsel was appointed to represent defendant and filed an amended petition and a supporting 4 A-5156-15T4 certification of defendant. The amended petition raised the following issues: [I.] The State of New Jersey deprived Petitioner of his Due Process right to a fair trial, pursuant to the Fifth and Fourteenth Amendments to the United States Constitution because Petitioner is a disabled blind person and the State failed to provide him with (a) the necessary equipment to read the discovery or a Social Worker to read the discovery to him; (b) the necessary equipment to communicate with his attorney; and (c) the equipment to listen to the audio tapes of his statement and the statements of the State witnesses. [II.] Petitioner was deprived effective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution and N.J. Const. (1947), Art. I, par. 10. Petitioner alleges that trial counsel was ineffective as follows: A. Petitioner's right to Due Process was violated because defense counsel failed to provide discovery to Petitioner; failed to read all discovery to Petitioner; failed to review the numerous audio tape statements of witnesses with Petitioner; failed to review Petitioner's recorded statements given to the police with Petitioner; failed to investigate Petitioner's defense; and failed to consult with Petitioner to discuss a defense strategy. B. Failed to object to the admission of hearsay testimony from [Nurse] Valarie Johnson-Green, a State expert witness who had treated the victim, who provided testimony that the victim told her that Petitioner committed the offense along with details of the offense; 5 A-5156-15T4 C. Failed to request appropriate limiting jury instruction for how the jury could use hearsay testimony; D. Failed to request a mistrial after it became known that some of the juror's observed a [newspaper] headline that stated, "Rapist on trial" for the crimes which the jury was to deliberate. This allowed the jury to have knowledge that Petitioner had previously been convicted of rape charges. [III.] Petitioner was deprived effective assistance of appellate counsel in violation of the Sixth Amendment to the United States Constitution and N.J. Const. (1947), Art. I, par. [10] because counsel failed to raise the above referenced hearsay issues during petitioner's direct appeal of his conviction. [IV.] Petitioner was deprived effective assistance of PCR counsel in violation of the Sixth Amendment to the United States Constitution and N.J. Const. (1947), Art. I, par. 10. Petitioner alleges that PCR counsel was ineffective for failing to properly raise the above and below referenced issues. [V.] Petitioner was deprived effective assistance of appellate counsel in violation of the Sixth Amendment to the United States Constitution and N.J. Const. (1947), Art. I, par. [10] because counsel failed to raise the above referenced hearsay and jury issues during petitioner's PCR appeal. Following oral argument on May 10, 2016, the PCR judge issued an order and comprehensive written decision denying the petition without an evidentiary hearing. As noted by the judge, defendant essentially argues trial counsel was ineffective for failing to: 6 A-5156-15T4 provide discovery to him and review discovery with him; object to the Johnson-Green's hearsay testimony recounting the victim's statements to her; request a mistrial after jurors discussed a newspaper headline regarding defendant; and obtain sufficient accommodations for defendant's blindness at trial. With regard to providing reasonable accommodations to defendant's blindness at trial, the trial judge and counsel engaged in the following colloquy during the pretrial conference: THE COURT: The final issue the [c]ourt would like to address is the extent of your client's vision and any reasonable accommodations to be made. Let me first hear from you, Mr. Smith [defendant's trial counsel], regarding that. MR. SMITH: Yes, Judge, thank you. Your Honor, as I understand it, Mr. Holloway is completely blind, not just legally blind, and he is unable to read anything. And regarding that, Judge, several months back in one of my visits to see Mr. Holloway upstairs in the jail, I did review with him and I read through page by page all of the discovery we had at that point. I did receive today the transcribed statement that Mr. Holloway gave to the police, it's approximately 105, 107 pages in length. I indicated to Mr. Holloway that given the court schedule tomorrow which I understand will break at 12:30, I will spend the afternoon with him upstairs and I will read him that transcript as well and review any other discovery that he wants to go over again before we start the testimony next Tuesday. 7 A-5156-15T4 Judge, I also spoke with him, one of the concerns was his ability to assist in his defense and I explained to him that during the course of the trial and the testimony, we would [be] unable to speak and I know sometimes clients will write out questions for the defense attorney to respond to with regard to whether the relevant issues are so as to not interrupt the testimony which Mr. Holloway would be unable to do to some extent. However, I think at this point, just from looking at what he brought down with him and discussing with him before your Honor came out on the bench, if he is provided with a note pad and a pen, I have instructed him to during the course of the testimony, if he has an issue or concern with regard to something that's transpiring during the course of the trial, for him to make a note or two, or even a word or two, and then I would at the first available opportunity as needed ask your Honor for a very brief break so I can discuss the issue with him before we proceed, and I think that would work out just fine. THE COURT: All right. And the [c]ourt will accommodate you once it's brought to the [c]ourt's attention you need time to communicate to your client. It is my understanding there may be some pictures that may be presented and I understand the State will also give you pictures in order to review and speak with your client in describing those pictures as well. MR. SMITH: Yes, Judge. In fact, Miss Pierro [the trial prosecutor] was kind enough to provide me already with photos of the anticipated exhibits that will be larger for the jurors to review and the witnesses to review. And what I also indicated to Mr. Holloway is tomorrow afternoon when I see him 8 A-5156-15T4 upstairs, I will go through with him one by one and explain what the photos depict and that way during the course of the trial when the exhibits are utilized, I will already have explained to him what they are and I can just make reference to that. THE COURT: Very good. Without telling me what your client brought down, was it writing that you were able to see and is it legible that he communicated to you? I don't know. MR. SMITH: Yes, it is, Judge. I think he would have difficulty writing out full sentences in a manner where I would be able to address an issue immediately with testimony. However, I think he's able to, I see words he has written and if he's able to do that, I would be able to address any concerns he might having during the course of the trial. With regard to trial counsel providing discovery to and reviewing discovery with defendant, the judge recounted the following colloquy between the trial judge and counsel before jury selection commenced: THE COURT: All right. There is another issue the [c]ourt would like to address at this time. Previously, Mr. Smith, you had indicated and you were instructed to spend some time with your client to review the pictures and describe them in detail. Did you have that opportunity? MR. SMITH: I did, Judge. Prior to last week, Mr. Holloway and I had reviewed, upstairs, the discovery that I had in my possession last week. We received photographs 9 A-5156-15T4 that were anticipated to be exhibits in the trial. I did go up to the jail and reviewed. I described what each photograph depicts in anticipation of them being used at the trial. THE COURT: How much time would you approximate you spent with your client? MR. SMITH: Last week, with regard to the pictures, it was a little over an hour. It was after court. A little over an hour. The PCR judge concluded trial counsel made reasonable attempts to provide defendant with discovery given his disability. The judge emphasized Judge Foster had discussed and decided the discovery issue in his ruling denying defendant's first PCR. Specifically, Judge Foster stated: First of all, with respect to the claim that the defendant was not provided discovery, Mr. Smith represented . . . to Judge Daniels, and there's nothing before this [c]ourt on a competent basis which in any way contradicts Mr. Smith's representations . . . that he received the discovery provided to him prior to trial, that he took the discovery to the defendant while the defendant was incarcerated prior to trial, and reviewed on a line by line basis all the discovery. Defense counsel later represented that he took photographs which were provided to defense counsel during discovery, took them to the jail, sat down with the defendant for an hour and described the contents of those photographs in detail and explained to the defendant how the State would use those photographs . . . . Unfortunately, defendant in this matter is blind. I don't know what else defense counsel could have done other than what he did. 10 A-5156-15T4 The PCR judge further explained: [Defendant's] argument that discovery should have been translated to Braille or a social worker should have read all discovery to him does not establish that reasonable accommodations were not made. Furthermore, facts underlying the claim that discovery was not appropriately provided unfolded at or before trial. Therefore, they could have been discovered through reasonable diligence by the time of [defendant's] direct appeal, or even by the time of his first PCR petition. Therefore, the claim is also barred under the general bar on subsequent PCR petitions pursuant to [Rule] 3:22-4(b). The PCR judge further held trial counsel was not ineffective in not requesting a limiting instruction as to Johnson-Green's testimony. In essence, the PCR judge held any failure to object to Johnson-Green's hearsay testimony identifying defendant as the perpetrator was harmless since the testimony of Seaside Heights Police Officer Edward Pasieka included the admissible excited utterance of the victim identifying defendant as the perpetrator, citing N.J.R.E. 803(c)(2). We concluded Pasieka's testimony regarding the victim's identification of defendant as the rapist was admissible under the excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2). Holloway I, slip op. at 13. This issue was addressed on the merits on direct appeal. In our opinion we noted the trial court provided a limiting 11 A-5156-15T4 instruction to the jury before Johnson-Green testified. Id. at 6-7. We then described Johnson-Green's testimony: Johnson-Green testified that E.H. had a "rug burn" under her chin, her tongue was swollen, she had petechiae (pinpoint broken blood vessels) around her left eye, a reddened area around her neck, a laceration on her left chin and a "dime-sized abrasion" on her left ankle. After Johnson-Green described E.H.'s injuries, the prosecutor asked Johnson-Green whether she had formed an opinion about whether E.H.'s injuries were "consistent with what [E.H.] reported to [her] on that date," to which Johnson-Green answered "[y]es." She responded that the petechiae around E.H.'s left eye, the reddened area around her neck, and her swollen tongue were all "indicative of being strangled and choked until unconsciousness"; the bump on her tongue and the burn under her chin would have been sustained "when [she] passed out and hit the floor;" and "the friction from the rug would cause the rug burn under her chin." [Id. at 7-8 (alteration in original).] We concluded the admission of the testimony of Johnson-Green and Rita O'Connor, the State's other expert, was not error, reasoning: Neither expert offered an opinion that defendant was guilty of sexually assaulting E.H., or that he had engaged in vaginal intercourse with her without her consent. Instead, each one merely commented that E.H.'s injuries were consistent with the type of incident she had described, which had included falling to the floor and sustaining a "rug burn" under her chin, and being choked, thereby sustaining petechiae around her eye. Describing the injuries as "consistent with" 12 A-5156-15T4 E.H.'s account told the jury nothing more than E.H.'s injuries could be explained by being choked to unconsciousness. So viewed, nothing in the testimony of either expert invaded the province of the jury, but instead assisted the jurors by providing them with "specialized knowledge" to "assist" them in "understand[ing] the evidence or . . . determin[ing] a fact in issue." N.J.R.E. 702. We therefore reject defendant's contention that the testimony of Johnson-Green and O'Connor exceeded the permissible bounds of expert testimony. [Id. at 17-18 (alteration in original).] Defendant claimed there were several witnesses who could have testified he was engaged in a consensual relationship with the victim. Defendant did not provide any affidavits or certifications from these witnesses setting forth their testimony had they been called. Nor did he provide addresses or telephone numbers for the alleged witnesses. The PCR judge noted this issue was previously adjudicated in defendant's first PCR. In his oral decision denying defendant's first PCR, Judge Foster stated: [N]one of those individuals are able to be located, can't be identified, there's no certification or even proffer from the defendant as to what those witnesses would testify to at an evidentiary hearing. The assertions here are nothing more than quite simply bald assertions unsupported by any detail or competent evidence which would suggest that an evidentiary hearing would have 13 A-5156-15T4 any purpose at all in this matter or alter the outcome in any way. Defendant further claimed trial counsel was ineffective by failing to request a mistrial after it became known that during the trial two jurors observed a newspaper headline that stated: "Sex Offender Goes On Trial for Raping Neighbor Two Months after Leaving Prison," and "Woman Says She Ran From Rapist Yesterday." Defendant contended this violated his right to due process. The PCR court held this issue was raised and decided against defendant on direct appeal. In our opinion on direct appeal, we stated: In Point V, defendant argues that his right to a fair trial was violated when the judge failed to excuse two jurors who had seen a newspaper headline in the Asbury Park Press. The record reflects that as a precautionary measure at the beginning of each day's proceedings, the judge inquired of the jurors whether any of them had inadvertently been exposed to any media coverage of the trial. In response to the judge's question, on March 25, 2009, juror number five told the judge that she had seen a headline that morning, but had not read the article. She commented that she had only seen the word "naked." Upon being asked, she assured the judge that seeing a portion of the headline would not impact her ability to be fair and impartial. When the judge asked defense counsel whether he was seeking the excusal of juror number five, defense counsel answered "no." The headline in question apparently read, "Woman Says She Ran From Rapist Yesterday." The record does not explain where the word "naked" was positioned in the headline. 14 A-5156-15T4 Next, the judge interviewed juror number two, who had seen the same headline. As had juror number five, he told the judge that after seeing the headline, he "stopped," and read nothing else. He also told the judge that nothing about the article or the headline would interfere with his ability to be fair and impartial. Defense counsel did not ask that juror number two be excused. As a precaution, the judge conducted a voir dire of each of the remaining jurors at sidebar, and although a few had overheard a passing remark in the jury room that there had been an article in the newspaper, none had seen the article and each assured the judge that he or she could be fair and impartial. Having carefully considered defendant's arguments, we conclude they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, the judge scrupulously adhered to the procedures for the handling of mid-trial publicity that the Supreme Court developed in State v. Bey, 112 N.J. 45, 86 (1988). We see no basis for reversal, especially in light of the fact that defendant did not request the excusal of any of the jurors. [Holloway I, slip op. at 24-26.] The PCR judge concluded trial counsel's performance did not fall below the objective standard of reasonableness required under either prong of the Strickland/Fritz1 test. With regard to whether the alleged deficiencies in assistance of counsel materially contributed to the outcome of the trial, the judge stated: 1 Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42 (1987). 15 A-5156-15T4 Merely stating that the alleged deficiencies in assistance of counsel would have materially contributed to the outcome in the matter, instead of displaying how it could have done so, is a "bald assertion." In order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied effective assistance of counsel. Viewing the facts in a light most favorable to defendant, the judge found defendant failed to demonstrate the jury would have reached a different verdict had the discovery been provided to him in the manner he claims it should have. The judge held defendant's arguments did not warrant an evidentiary hearing. This appeal followed. Defendant raises the following issues: POINT I THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DEPRIVED HOLLOWAY OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE. POINT II HOLLOWAY WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL BECAUSE HE WAS NOT PROVIDED WITH THE REQUISITE EQUIPMENT TO PARTICIPATE MEANINGFULLY IN THE INVESTIGATION, PRE-TRIAL PREPARATION AND ACTUAL TRIAL AND HOLLOWAY WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL INSOFAR AS COUNSEL FAILED TO ENSURE THAT THE COURT REASONABLY ACCOMMODATED HOLLOWAY'S VISUAL IMPAIRMENT DISABILITY. 16 A-5156-15T4 POINT III TRIAL COUNSEL'S ERRORS, CONSIDERED CUMULATIVELY, AMOUNTED TO THE INEFFECTIVE ASSISTANCE OF COUNSEL FOR HOLLOWAY. POINT IV THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF HOLLOWAY'S CLAIMS. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland and adopted by our Supreme Court in Fritz. In order to prevail on a claim of ineffective assistance of counsel, defendant must meet a two-prong test, establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should 17 A-5156-15T4 grant evidentiary hearings only if the defendant meets the following requirements: (b) A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits. (c) Any factual assertion that provides the predicate for a claim of relief must be made by an affidavit or certification pursuant to Rule 1:4-4 and based on personal knowledge of the declarant before the court may grant an evidentiary hearing. [R. 3:22-10(b) and (c).] "Rule 3:22-10 recognizes judicial discretion to conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992) (citations omitted). "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied effective assistance of counsel." Cummings, 321 N.J. Super. at 170. "[R]ather, the defendant must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Jones, 219 N.J. 298, 312 (2014) (citations omitted) (quoting State 18 A-5156-15T4 v. Porter, 216 N.J. 343, 355 (2013)). Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted); see R. 3:22-10(e)(1)- (2). "[A] prior adjudication on the merits ordinarily constitutes a procedural bar to the reassertion of the same ground as a basis for post-conviction review." Preciose, 129 N.J. at 476 (citing R. 3:22-12; State v. Mitchell, 126 N.J. 565, 575-83 (1992)). Additionally, a defendant is precluded from raising an issue on PCR that could have been raised on direct appeal. State v. McQuaid, 147 N.J. 464, 483 (1997). As explained by the Court in McQuaid: A defendant ordinarily must pursue relief by direct appeal, see R. 3:22-3, and may not use post-conviction relief to assert a new claim that could have been raised on direct appeal. See R. 3:22-4. Additionally, a defendant may not use a petition for post-conviction relief as an opportunity to relitigate a claim already decided on the merits. See R. 3:22- 5. [Ibid.] 19 A-5156-15T4 The application of these standards require the "[p]reclusion of consideration of an argument presented in post-conviction relief proceedings . . . if the issue raised is identical or substantially equivalent to that adjudicated previously on direct appeal." State v. Marshall, 173 N.J. 343, 351 (2002) (quoting Marshall, 148 N.J. at 150)). The same principle applies to issues decided on the merits in a prior PCR proceeding. A PCR claim is based upon the "same ground" as a claim already raised by direct appeal when "the issue is identical or substantially equivalent" to the issue previously adjudicated on the merits. McQuaid, 147 N.J. at 484 (quoting Picard v. Connor, 404 U.S. 270, 276-77 (1971)). We review the denial of a PCR petition without an evidentiary hearing for abuse of discretion. State v. Peoples, 446 N.J. Super. 245, 255 (App. Div. 2016) (citing Preciose, 129 N.J. at 462). We discern no such abuse of discretion by the PCR court. We are satisfied that the PCR court's conclusions are well supported by the record. We, therefore, affirm the denial of the PCR petition substantially for the reasons expressed in the PCR judge's well-reasoned written decision. We add only the following comments. Defendant raises several issues that were decided on the merits on direct appeal or in his first PCR. The PCR judge 20 A-5156-15T4 properly held that defendant is procedurally barred from re- raising those issues in this second PCR. R. 3:22-5; McQuaid, 147 N.J. at 484; Preciose, 129 N.J. at 476. The trial court properly rejected defendant's unsupported claim that trial counsel was ineffective for failing to investigate and call as witnesses several individuals who would testify defendant had been engaged in a consensual relationship with the victim. Defendant did not submit any affidavits or certifications of those witnesses verifying what they would have testified to at trial. Nor has defendant demonstrated that he provided trial counsel with sufficient contact information to pursue interviewing those alleged witnesses. Consequently, the allegations amount to no more than bald assertions. Affirmed. 21 A-5156-15T4

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Docket No.: a5321-15
Decided: 2018-04-16
Caption: STATE OF NEW JERSEY v. STEVEN FOWLER
Status: unpublished
Summary:
PER CURIAM Defendant Steven Fowler appeals from a May 24, 2016 order denying his petition for post-conviction relief (PCR), which alleged the ineffective assistance of two attorneys. One represented defendant in connection with charges arising out of a 1991 indictment (Indictment No. 91-06-3262), and the other in connection with charges arising out of two 1995 indictments (Indictment No. 95-10-3280 and Indictment No. 95-10-3289) and a 1997 accusation (Accusation No. 97-10-0070). We affirm. I With respect to the 1991 indictment, defendant pled guilty to second-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(b)(2), and third-degree distribution of CDS within 1000 feet of school property, N.J.S.A. 2C:35-7(a). On January 16, 1992, he was sentenced in the aggregate to a five-year term of imprisonment; a judgment of conviction was entered the same day. Defendant did not file a direct appeal. As for the 1995 indictments, defendant pled guilty to second-degree possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5(b)(2); two counts of second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(a); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(b)(3); and 2 A-5321-15T2 third-degree distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7(a). With respect to the accusation, on March 7, 1997, defendant pled guilty to third-degree possession with intent to distribute a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7(a). On March 7, 1997, defendant was sentenced to a five-year term of probation on the charges arising out of the 1995 indictments and the 1997 accusation. The sentence on each charge ran concurrently to the others. The remaining charges in the indictments and accusation were dismissed, and a judgment of conviction was entered the same day. Defendant did not file a direct appeal. For the balance of the opinion, we refer to the convictions arising out of the 1995 indictments and the 1997 accusation as the "1997 convictions," and refer to the attorney who represented him in these matters as "1997 counsel." Likewise, we refer to the convictions arising out of the 1991 indictment as the "1992 convictions" and the attorney who represented him as "1992 counsel." In 1999, a federal jury convicted defendant of conspiracy to distribute in excess of fifty grams of cocaine, 21 U.S.C. § 3 A-5321-15T2 841(a)(1) and 21 U.S.C. § 846. On August 18, 1999, defendant was sentenced to life in prison, pursuant to 21 U.S.C. § 841(b)(1)(A). Among other things, this statute provides a person convicted of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846 who has had at least two previous felony drug convictions must serve a life sentence. It is not disputed that, in imposing sentence, the federal judge relied on defendant's 1990 conviction for possession of cocaine, the 1992 conviction for possession with intent to distribute, N.J.S.A. 2C:35-5(b)(2), and either the 1997 conviction for third-degree distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7(a), or third-degree possession with intent to distribute a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7(a).1 The Fourth Circuit Court of Appeals affirmed the conviction and sentence. In his appeal, defendant did not challenge the applicability of the sentencing enhancement provision of 21 U.S.C. § 841(b)(1)(A). Defendant's petition for certiorari to the United States Supreme Court was denied. 1 It is not clear from the record which of the two 1997 convictions the federal judge relied upon when sentencing defendant. 4 A-5321-15T2 Defendant claims he filed a pro se petition for PCR on or about June 20, 2002, asserting both his 1992 and 1997 counsel were ineffective and the court lost the petition. Defendant does not have proof such petition was actually filed. We note that in the petition he filed in 2012, defendant states he did not file any previous petitions. However, we also observe that in a certification he executed on September 9, 2014, defendant stated his first petition for post-conviction relief was "drafted" in "2007 and 2008," and in the record there is a copy of a petition for PCR that was stamped by the Appellate Division as "received" on November 2, 2007. In any event, not hearing from the court after filing a petition in 2002, defendant claims he sent correspondence to the court inquiring about the status of such petition between 2005 and 2007, but never received a response. Then, on October 12, 2012, defendant filed the within petition. After he was assigned counsel, defendant filed various certifications and both he and PCR counsel filed briefs. The allegations of ineffective assistance defendant asserted before the PCR court are the same as those he maintains on appeal. They are: (1) neither the 2002 nor 2012 petition for PCR is time-barred under Rule 3:22-12(a)(1); (2) 1997 counsel 5 A-5321-15T2 ignored defendant's claim he did not possess a sufficient quantity of drugs to sustain a conviction for third-degree distribution on or near school property, N.J.S.A. 2C:35-7(a); (3) 1997 counsel induced defendant to plead guilty by advising the ensuing convictions from such plea would not result in an enhancement of the sentence on the federal drug charge and, further, such convictions could be expunged; (4) defendant did not plead guilty to the 1997 convictions knowingly and voluntarily because of 1997 counsel's erroneous advice; (5) both 1992 and 1997 counsel failed to file a suppression motion challenging the warrantless search of defendant's home; (6) the factual bases defendant provided when he pled guilty to distribution within 1000 feet of a school in 1992 and 1997 were insufficient; and (7) 1997 counsel failed to investigate and vigorously advocate on defendant's behalf. In a lengthy, comprehensive written opinion, Judge Martin G. Cronin carefully analyzed each contention and determined all were groundless; on May 24, 2016, Judge Cronin entered an order denying defendant's request for post-conviction relief. II On appeal, defendant asserts the following arguments for our consideration: 6 A-5321-15T2 POINT I - DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF IS NOT PROCEDURALLY BARRED. (1) THE PCR COURT RELIED ON THE WRONG DECISIONAL RULE TO FIND DEFENDANT'S PETITION WAS PROCEDURALLY BARRED. (2) DEFENDANT IS ENTITLED TO RELAXATION OF THE PROCEDURAL BAR. (3) AS DEFENDANT RAISES A CONSTITUTIONAL CLAIM, HIS PETITION AS IT RELATES TO [INDICTMENT NO. 91-6-3262] MAY BE CONSIDERED. (4) DEFENDANT'S FAILURE TO FILE A DIRECT APPEAL WAS DUE TO HIS RELIANCE ON HIS ATTORNEY'S MISLEADING AND ERRONEOUS ADVICE. POINT II – PLEA COUNSEL WAS INEFFECTIVE. POINT III – THE FACTUAL BASES FOR DEFENDANT'S GUILTY PLEAS WERE DEFICIENT. (1) INDICTMENT NO. 91-06-3262. (2) ACCUSATION NO. 87-01-0070. POINT IV – AS DEFENDANT'S ATTORNEY AFFIRMATIVELY MISLED HIM ABOUT THE COLLATERAL CONSEQUENCES OF ENTERING A GUILTY PLEA, DEFENDANT'S GUILTY PLEA WAS NOT VOLUNTARILY, INTELLIGENTLY, AND KNOWINGLY MADE. POINT V- PLEA COUNSEL WAS INEFFECTIVE BY FAILING TO CHALLENGE THE VALIDITY OF THE SEARCHES. (1) FIRST SEARCH. 7 A-5321-15T2 (2) SECOND SEARCH. POINT VI – DEFENSE COUNSEL AFFIRMATIVELY MISLED DEFENDANT ABOUT THE POSSIBILITY OF EXPUNGEMENT IF HE PLED GUILTY. POINT VII – DEFENSE COUNSEL FAILED TO PROPERLY INVESTIGATE THE CASE. POINT VIII – AS THERE ARE GENUINE ISSUES OF MATERIAL FACTS IN DISPUTE, AN EVIDENTIARY HEARING IS REQUIRED. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment to the United States Constitution was formulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must satisfy a two-prong test. The first prong requires defendant to prove counsel's performance was deficient and he or she made errors so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The second prong requires defendant to prove the defect in performance prejudiced defendant's rights to a fair trial and there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. If a defendant has pled guilty, 8 A-5321-15T2 the second prong requires defendant to show "there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). After perusing the record and examining the applicable legal principles, we are satisfied defendant's arguments have no merit. We affirm the denial of defendant's petition for substantially the same reasons expressed by Judge Cronin in his well-reasoned opinion. We highlight the judge's key findings. Rule 3:22-12(a)(1)(A) provides no petition for PCR shall be filed more than five years after the day the judgment of conviction being challenged was entered, unless the petition alleges facts showing the delay in filing a timely petition is due to defendant's excusable neglect and there is a reasonable probability that if the defendant's factual assertions are found to be true enforcement of the time bar would result in a fundamental injustice. Here, defendant articulates no basis to relax the clear time restrictions imposed by this rule. Even if defendant filed a petition for post-conviction relief on June 20, 2002, he 9 A-5321-15T2 provides no reason or any explanation whatsoever why he waited until then to file a petition, which is more than ten years after the 1992, and more than five years after the 1997, judgments of conviction were entered. Defendant seeks to have the 1992 and 1997 convictions vacated because of the impact they – or at least one – had upon the federal judge's decision to impose a life sentence for the federal drug conviction. Defendant argues the five-year time bar in Rule 3:22-12(a)(1)(A) did not start to run until he was sentenced on the federal drug conviction on August 18, 1999. He claims it was on this date he discovered 1997 counsel erred by advising the convictions emanating from the guilty plea would not enhance his sentence were he convicted of the federal drug charge. Defendant contends he is entitled to the application of the "discovery rule" utilized in civil matters, see Lopez v. Swyer, 62 N.J. 267, 272 (1973) (holding that in the appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered, that he may have a basis for an actionable claim), and, thus, had until August 18, 2004, to file his petition. 10 A-5321-15T2 There is no legal authority that supports defendant's argument. To overcome the time restrictions in Rule 3:22- 12(a)(1), in addition to showing a fundamental injustice will otherwise result, a petitioner must demonstrate he failed to file his petition on time due to excusable neglect. Here, defendant failed to identify what precluded him from filing his petition on a timely basis. Thus, defendant was required to file his petition challenging the 1992 convictions no later than January 15, 1997, and the 1997 convictions no later than March 6, 2002. If defendant filed a petition challenging both the 1992 and 1997 convictions on June 20, 2002, it was out of time, as was the October 12, 2012 petition. Turning to defendant's substantive contentions, defendant claims 1997 counsel ignored his protests he did not possess a sufficient quantity of drugs to sustain a conviction for distribution; we note defendant does not state what he claims was the amount in his possession when arrested. He also contends counsel failed to file a suppression motion challenging the warrantless search of his home. Our review of the record reveals there was sufficient evidence to support a conviction for distribution, and the police did have a search warrant when they entered and searched 11 A-5321-15T2 defendant's home. Defendant admitted to the following when he pled guilty. On May 31, 1995, defendant sold heroin to an undercover police officer, a sale that was made within 1000 feet of a school. Two days later, defendant again sold drugs2 to an undercover police officer. Later in the day, the police searched defendant's home pursuant to a search warrant. During that search the police discovered heroin and cocaine in an amount greater than one-half of an ounce but less than five ounces. Defendant acknowledged his home was within 1000 feet of a school. He also conceded the police found two handguns in his home for which he did not have a permit, and that he had previously been convicted of a crime. Defendant further admitted that, on October 22, 1996, he was found in possession of 1.4 grams of cocaine, all of which he intended to sell, and that he was within 1000 feet of a school. Defendant claims there was an inadequate factual basis to his plea. As is evident from what he admitted during the plea colloquy, this claim is devoid of merit, not to mention it could 2 The transcript does not identify the kind or quantity of drugs defendant sold to the officer during this particular transaction. 12 A-5321-15T2 have been raised on direct appeal and, thus, is a claim barred by Rule 3:22-4. Defendant contends counsel induced him to plead guilty by advising the convictions resulting from such plea would not subject him to a sentence enhancement if convicted of the pending federal charge. It is not disputed the attorney representing him in the federal matter (federal counsel) informed defendant otherwise before he pled guilty to the state charges. Federal counsel advised defendant the convictions emanating from the guilty plea would result in a sentence enhancement in the federal matter if he were convicted. Defendant does not address why he rejected federal counsel's advice and accepted 1997 counsel's opinion on this issue. Regardless, and more important, defendant failed to make any showing that, even if 1997 counsel advised he would be exposed to a sentence enhancement, there was a reasonable possibility he would have rejected the plea offer permitting him to serve a five-year probationary term on these second- and third-degree offenses, and would have instead opted to go to trial. As the plea court noted, if defendant went to trial and was convicted, he faced up to forty-five years of imprisonment. 13 A-5321-15T2 Defendant maintains 1997 counsel failed to investigate the 1997 charges and "vigorously advocate" on his behalf. Other than making the specific allegations referenced above, defendant does not identify how counsel failed to do either. Asserting speculative deficiencies in representation does not provide a basis for post-conviction relief. "[A petitioner] must allege facts sufficient to demonstrate counsel's alleged substandard performance. . . . [H]e must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). We need not summarize the PCR court's remaining findings. Suffice to say defendant's substantive contentions lack merit and, in any event, both the 2002 and 2012 petitions are time- barred. Affirmed. 14 A-5321-15T2

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Docket No.: a0343-16
Decided: 2018-04-12
Caption: S.B.P. v. D.J.P.
Status: unpublished
Summary:
PER CURIAM Defendant D.J.P. appeals from an August 22, 2016 order awarding counsel fees to plaintiff S.B.P., now known as S.B.S. We affirm. The parties were married on October 21, 2007, and divorced on February 12, 2013. The final judgment of divorce incorporated the terms of the Matrimonial Settlement Agreement (MSA) entered into by the parties. Two children were born of the marriage: a daughter, born in 2010, and a son, born in 2012. The MSA provides for joint legal custody of the children, with plaintiff designated as parent of primary residence and defendant designated as parent of alternative residence. The MSA further provides that after their son reached the age of one, defendant would have supervised parenting with the children on alternate Saturdays, with the supervision being provided by defendant's mother. The MSA also required defendant to undergo substance abuse and psychological evaluations and to follow any treatment recommendations. Defendant was also required to complete the Alternatives to Domestic Violence Counseling Program and thereafter continue with individual counseling. The MSA further provides each party would be responsible for their own counsel fees and costs. Frequent motion practice has led to the entry of numerous post-judgment orders. A February 18, 2014 order denied parenting time for defendant's mother, denied defendant's application for unsupervised parenting time, and determined defendant's mother was no longer permitted to supervise defendant's parenting time. The order also denied the application to compel defendant to continue unification therapy. A June 15, 2015 order denied defendant's 2 A-0343-16T4 emergent application for unsupervised parenting time on Father's day. A June 26, 2015 order established an interim parenting time schedule for two days. A subsequent order awarded defendant gradually increasing parenting time. A September 8, 2015 order denied defendant's motion for reconsideration of the June 26, 2015 order, denied plaintiff's cross-motion, and denied both parties' applications for counsel fees and costs. A February 4, 2016 order appointed a parenting coordinator "to assist the parties to resolve conflicts related to parenting schedule and to address the resumption of parenting time" by defendant. The order further provided that if "either party has been recalcitrant and/or non- cooperative and thereby has interfered with the parenting coordinating process," the affected party "may then petition the court for appropriate relief, including, but not limited to[,] [s]anctions, counsel fees, and the remedies set forth in Rule 5:3- 7." On June 3, 2016, defendant applied for an order to show cause to: (1) increase his parenting time on their daughter's upcoming birthday; (2) allow pick-up and drop-off in Emerson because plaintiff was moving to Morris Plains, making it more difficult for defendant to exercise his parenting time; (3) allowing his mother to be present during his parenting for more than two hours per month; and (4) increasing his parenting time due to plaintiff's 3 A-0343-16T4 12.5-hour work shifts. The application was converted to a motion returnable on a date after their daughter's birthday due to scheduling issues. Plaintiff filed opposition and a cross-motion seeking to restrain defendant from filing meritless applications and for an award of counsel fees and costs. On July 21, 2016, defendant filed another application for an order to show cause regarding his parenting time schedule and pick-up and drop-off location. On August 5, 2016, the motion judge heard oral argument on the pending applications and issued an oral decision: (1) determining defendant's request for additional parenting on their daughter's birthday to be moot; (2) denying defendant's request to pick up and drop off the children in Emerson; (3) denying defendant's request for specific parenting time on July 23 and July 24, 2016; (4) denying plaintiff's request to restrain defendant from filing frivolous, meritless applications; and (5) granting plaintiff's application to compel defendant to cooperate with the court-appointed parenting coordinator. With regard to cooperation with the parenting coordinator, the judge noted: "The parties were supposed to work out parenting issues with their parenting coordinator." The judge explained the order appointing the parenting coordinator "requires both parties to act with good faith and fair dealings." The judge was not 4 A-0343-16T4 convinced defendant "has made a good-faith effort to try to negotiate the issues." He then stated: Now dad, you can roll your eyes. You can shake your head. You can hit your table, whatever you want, but as far as I'm concerned, based on what I've seen here, dad, you are not acting in good faith and fair dealings. As to the award of counsel fees to plaintiff, the judge stated: The court does not believe that all of [defendant's] requests are frivolous. At least some of [defendant's] request, including the order to show cause that was filed while the motion was pending, was not consistent with the premise of good faith and fair dealings. [Defendant] has been running up . . . unnecessary counsel fees instead of trying to work out issues with [plaintiff] through the parenting coordinator. I don't deem it appropriate to go back and award counsel fees for prior motions as [plaintiff] requested. The judge directed plaintiff's counsel to submit a certification of services for the period between June 6 and August 5, 2016, afforded defendant an opportunity to object, and, at defendant's request, directed both parties to submit Case Information Statements (CIS) and their 2015 income tax returns. The parties filed CIS's. Plaintiff's counsel timely submitted an affidavit of services. The affidavit disclosed counsel has been a member of the bar since 1982 and his practice is primarily devoted to 5 A-0343-16T4 matrimonial law. He has served as a Matrimonial Early Settlement Panel panelist for over twelve years and is a certified family law mediator. Counsel billed plaintiff at the rate of $400 per hour. The affidavit addressed each of the factors set forth in RPC 1.5(a). The attached billing records disclose counsel expended approximately eighteen hours on behalf of plaintiff from June 7, 2016, to August 5, 2016, for services totaling $7309.36. In addition, counsel incurred a $50 filing fee on behalf of plaintiff. Accordingly, plaintiff sought an award of $7359.36. Although given the opportunity to do so, defendant did not submit any objection to counsel's fee certification. Indeed, in his reply brief, defendant's counsel states: "The amount of counsel fees that were being requested and the certification of services were not being contested regarding accuracy." Thus, defendant does not contest the hourly rate or billable hours charged by plaintiff's counsel. Instead, defendant contends the trial court overstated his ability to pay plaintiff's counsel fees by failing to consider the $1060 per month he pays for child support and his having to borrow money from third parties in order to meet his expenses and pay his child support. He further contends that when the child support plaintiff receives is added to her net income, her budget does not exceed her available funds. He also contends 6 A-0343-16T4 the trial court failed to allocate any part of plaintiff's fixed shelter expenses to her fiancé who resided with her. On August 22, 2016, the judge awarded plaintiff $7359.36 in counsel fees and costs to be paid by defendant within thirty days. Defendant requested the trial court provide its basis for the ruling. On September 16, 2016, the judge issued a written statement of reasons. The judge stated, in part: Thereafter, on July 21st [defendant] filed an Order to Show Cause requesting emergent relief to permit him to pick up and drop off the minor children in Emerson and to permit him to have visitation with the children on two days in late July. That very issue was raised by the parties with their parent coordinator, Cynthia Johnson, on June 14, 2016 and defendant "absolutely refused" to address the issue with Ms. Johnson. Since this request did not involve a situation demanding immediate action due to a situation involving "immediate and irreparable harm," the application for immediate relief sought in the Order to Show Cause was denied[] and converted into a Motion. On June 26, 2015[,] Judge Sattely had previously ruled that defendant "shall pick- up and drop-off the minor children for his parenting time at [his mother's] residence." In 2016[,] defendant filed Motions with regard to that Order which resulted in further Orders of January 22nd, February 4th and May 27th[,] all of which refused to lift the restriction that Judge Sattely ordered. There was no 7 A-0343-16T4 change in circumstances warranting a re-visit of the issue. The attempt to obtain emergent relief bordered on frivolous. On the cross-motion, the plaintiff pointed out that she had incurred thousands of dollars in counsel fees due to the defendant's excessive motion filings. It was pointed out that the defendant had several multi-week and multi[-]month absences and it was pointed out that the defendant had stopped seeing the children and did not call his daughter on her birthday, June 26th. As part of the cross-motion the plaintiff requested an award of counsel fees. . . . The [c]ourt was satisfied that at least some of the defendant's request, including the Order to Show Cause that was filed while the motion was pending was done in bad faith and was frivolous. The defendant had caused plaintiff to incur unnecessary counsel fees instead of trying to work out the issues with the plaintiff and the parent coordinator. The request for award of counsel fees covered the day the defendant filed his initial motion up to and including the return date of the hearing. With regard to the financial circumstances of the parties, the judge stated: Although plaintiff is employed as a Nurse in New York[,] [s]he has covered the vast majority of the costs of raising the family and had to withdraw from her retirement [plan] just to pay bills and been forced to defend and file motions mostly due to defendant's unreasonable demands. It was asserted that plaintiff has had to borrow money to pay attorney's fees on several occasions. 8 A-0343-16T4 Defendant earned in excess of $61,000 in 2015 and netted in excess of $45,000. His Case Information Statement lists his Schedule A, B and C expenses of approximately $41,700. With regard to the ability of the parties to pay their own fees and pay the fees of the other party, the judge stated: "A review of the plaintiff's CIS shows that her monthly expenses exceed her monthly income by thousands of dollars. She has had to take more than $16,000 from her retirement account and, even with that withdrawal, is left with a shortfall of more than $5,000 annually." As to the past history of dealings between the parties, the judge stated: There has been a history of court events between these parties including [m]otions for [r]econsideration, many times by the defendant, all of which caused plaintiff to file responses or to bring affirmative claims to protect her or the children's rights. Even though they have been [o]rdered to address parenting issues with the coordinator, defendant declined and, if dissatisfied with the Coordinator's decisions, he files [m]otions. It must be noted that the filings by the defendant have been so numerous that plaintiff sought an Order precluding defendant from filing motions. That request was denied. The judge further noted defendant was previously ordered to pay counsel fees and costs of $3500 to plaintiff. The judge further stated: 9 A-0343-16T4 The award of counsel fees should also serve as notice to the defendant that the practice of filing motions, not based on good faith and fair dealings, are not an appropriate manner to resolve issues. These parties have the benefit of the experienced parent coordinator to address issues of parenting time. This appeal followed. On appeal, defendant argues the trial court erred in refusing to address visitation and awarding counsel fees to plaintiff equivalent to fifteen percent of his annual income despite her alleged ability to pay for her own fees. He also asserts his parenting time applications were not made in bad faith. We first note defendant's notice of appeal identifies only the August 22, 2016 order as the order being appealed. It is well-settled that we review "only the judgment or orders designated in the notice of appeal." 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div. 1994)); see also R. 2:5-1(f)(3)(A). In addition, we conclude defendant abandoned any argument relating to the trial court's decision regarding parenting time by failing to brief that issue. See Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001) (indicating the failure to present an argument relating to an appeal renders that appeal "abandoned"). Accordingly, defendant's appeal shall be limited to review of the August 22, 2016 order 10 A-0343-16T4 awarding plaintiff counsel fees. We decline to review any prior visitation rulings. Defendant challenges the award of $7359.36 in counsel fees and costs to plaintiff. Defendant argues the trial court improperly analyzed the requisite factors of Rule 5:3-5(c). Specifically, defendant asserts the trial court overstated his ability to pay counsel fees and failed to take into consideration plaintiff's higher income and the child support payments she received in assessing the parties' ability to pay. Defendant further asserts the trial court failed to allocate any part of the food and fixed shelter expenses to the fiancé with whom plaintiff was residing. Fee allowances may be made in family actions pursuant to Rule 5:3-5(c). R. 4:42-9(a)(1). The trial court must consider nine factors in making an award of counsel fees: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award. 11 A-0343-16T4 [R. 5:3-5(c).] The Supreme Court distilled these factors to their essence by explaining: [I]n awarding counsel fees, the court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees. [Mani v. Mani, 183 N.J. 70, 94-95 (2005) (citing Williams v. Williams, 59 N.J. 229, 233 (1971); Mayer v. Mayer, 180 N.J. Super. 164, 169-70 (App. Div. 1981)).] The decision to award counsel fees in a matrimonial action lies within the sound discretion of the Family Part judge. See Williams v. Williams, 59 N.J. 229, 233 (1971); Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007); R. 5:3-5(c). "Appellate courts accord particular deference" to the Family Part's findings "because of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). "We will disturb a trial court's determination on counsel fees only on the 'rarest occasion[s],' and then only because of [a] clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). 12 A-0343-16T4 Notably, defendant has not included the CIS's or income tax returns upon which his argument is based in his appendix, and they are not part of the appellate record. A party on appeal is obliged to provide the court with "such other parts of the record . . . as are essential to the proper consideration of the issues." R. 2:6-1(a)(1). The CIS's and income tax returns are essential to any meaningful analysis of the parties' respective income and budgets. Defendant's failure to supply this critical financial information substantially impedes our ability to effectively review the trial court's findings and conclusions.1 Based on the truncated record before us, defendant has not demonstrated the trial court overstated his income or failed to adequately consider plaintiff's income level, other available funds, and budget. Defendant also contends his applications were not made in bad faith. "Fees in family actions are normally awarded to permit parties with unequal positions to litigate (in good faith) on an 1 The failure to provide the CIS's and income tax returns is compounded by the woefully deficient statement of facts section of defendant's brief, which fails to set forth "a narrative chronological summary incorporating all pertinent evidence" that is "supported by references to the appendix and transcript." R. 2:6-2(a)(5); see also Walters v. YMCA, 437 N.J. Super. 111, 120- 22 (App. Div. 2014) (discussing impact of the failure "to clearly and accurately narrate the salient facts of a case, followed by a precise citation to the page number in the appendix or transcript"). Defendant's statement of facts, which is only one sentence long, does not set forth any of the pertinent underlying facts and contains only a single citation to the record. 13 A-0343-16T4 equal footing." J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App. Div. 2012) (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992)). However, "where one party acts in bad faith, the relative economic position of the parties has little relevance." Kelly, 262 N.J. Super. at 307. Stated another way, "[t]he argument between the parties over their 'real' income, net worth and monthly needs would not be as significant if defendant were truly the person in bad faith." Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000). Thus, while a financial disparity between the parties affecting their respective ability to pay might otherwise militate against an award of counsel fees, one who acts in bad faith can be compelled to pay counsel fees "to protect the innocent party from unnecessary costs and to punish the guilty party." Welch v. Welch, 401 N.J. Super. 438, 448 (Ch. Div. 2008) (citing Yueh, 329 N.J. Super. at 461). The motion judge found the filing of the order to show cause application "bordered on frivolous" and "was not consistent with the premise of good faith and fair dealings." He concluded defendant caused plaintiff to incur unnecessary counsel fees by filing inappropriate motions and orders to show cause rather than utilizing the court-ordered parenting coordinator. The motion judge further found at least some of defendant's application "was 14 A-0343-16T4 done in bad faith and was frivolous." Each of these findings is amply supported by the record. We find no basis to disturb the counsel fee award. The trial court addressed each of the factors in Rule 5:3-5(c), making specific findings as to the applicable factors and finding other factors inapplicable. The trial court's findings and conclusions are supported by the record before us. The court also properly took into account defendant's conduct, including his bad faith, lack of fair dealings, and failure to try to resolve parenting time issues through the parenting coordinator, which caused plaintiff to unnecessarily incur considerable legal expenses. Accordingly, we discern no abuse of discretion by the trial court. Affirmed. 15 A-0343-16T4

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Docket No.: a0460-17
Decided: 2018-04-12
Caption: STATE OF NEW JERSEY v. D.K.
Status: unpublished
Summary:
PER CURIAM The State, on leave granted, appeals from a September 22, 2017 order, which granted defendant's petition for post-conviction relief (PCR) for ineffective assistance of counsel and vacated defendant's plea. We reverse. The following facts are taken from the record. On April 11, 2012, a Hudson County grand jury indicted defendant on one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and one count of fourth-degree child abuse, N.J.S.A. 9:6-1 and 9:6-3. As defendant's trial date approached, defense counsel filed a motion to be relieved as counsel citing a breakdown in communications with defendant. In December 2012, defendant failed to appear in court. Therefore, the trial judge issued a bench warrant and bail forfeiture order. Defendant was arrested a few days later and charged with bail jumping, N.J.S.A. 2C:29-7. On January 14, 2013, a hearing occurred to address defense counsel's motion to be relieved. The trial judge advised she could not relieve counsel from representing defendant until defendant retained new counsel. The trial judge rescheduled the matter for another hearing two weeks later and advised defendant to retain new counsel by then. When the matter returned on January 28, 2013, defendant had not retained a new attorney, and her defense counsel advised the judge defendant wanted to apply for a public defender. The assistant prosecutor placed the State's final offer on the record, namely, defendant would plead guilty to the second-degree endangering the welfare of a child charge, 2 A-0460-17T4 which would be treated as a third-degree offense for sentencing purposes, the State would recommend a three-year prison sentence, and would not pursue the child abuse or bail jumping charges. Defendant stated she wished to accept the State's offer and plead guilty. However, the trial judge granted defendant a recess to consider her decision and consult with defense counsel. Defense counsel advised the judge defendant was a Tibetan residing in the United States as an asylee. Defense counsel noted defendant "said she spoke to an immigration attorney and she may not be deported." Defense counsel also stated he was reviewing the plea form with defendant and said defendant "indicated a couple of times that she wanted to speak to an immigration attorney." When the trial judge asked defendant if she had consulted with an immigration attorney, defendant informed the judge a friend had consulted one on her behalf, but that defendant herself had not spoken with an attorney about the immigration consequences of her plea. Thus, the trial judge adjourned the matter to enable defendant to consult with an immigration attorney. The matter returned on February 11, 2013, and on that date defendant pled guilty in accordance with the plea offer. During her plea colloquy, defendant confirmed she had reviewed the plea form with her attorney, understood the questions contained in the form, and had answered them truthfully. The trial judge questioned 3 A-0460-17T4 defendant at length regarding her status as a legal permanent resident. The judge confirmed defendant was aware an Immigration and Customs Enforcement detainer had been issued for her. The judge confirmed defendant still wished to plead guilty. Defendant confirmed she had reviewed her criminal case with defense counsel, was satisfied with his representation, and did not require additional time or to speak with any other person before entering into the plea. Defendant's answers on the plea form mirror her answers to the judge's questions and her counsel's representations that he had not provided her with any immigration related advice. In pertinent part, defendant answered as follows: 17 a. Are you a citizen of the United States? [No.] b. Do you understand that if you are not a citizen of the United States, this guilty plea may result in your removal from the United States . . . ? [Yes.] c. Do you understand that you have the right to seek individualized advice from an attorney about the effect your guilty plea will have on your immigration status? [Yes.] 4 A-0460-17T4 d. Have you discussed with an attorney the potential immigration consequences of your plea? If the answer is "No," proceed to question 17e. . . . [No.] e. Would you like the opportunity to do so? [No.] f. Having been advised of the possible immigration consequences and of your right to seek individualized legal advice on your immigration consequences, do you still wish to plead guilty? [Yes.] Defendant then admitted she was the caregiver for the victim, a seven-month old infant. Defendant testified she hit the victim in the arm several times and kicked him knowing this could cause him harm. The trial judge concluded defendant's plea was voluntary and accepted it. The trial judge sentenced defendant in accordance with the plea agreement. Defendant filed her PCR petition. The PCR judge granted defendant an evidentiary hearing. Defendant thereafter and her former defense counsel at the time of the plea and sentencing testified. At the evidentiary hearing, defendant testified her defense attorney had provided her with no advice regarding the immigration consequences of her plea. Instead, she indicated that the only 5 A-0460-17T4 advice she received was from her interpreter who said: "since I am a refugee, [I] won't get deported." Defendant further stated: "The interpreter who interpreted [for] me he said that I don't have to consult any immigration lawyer, [I] don't have to worry." Defendant testified the trial judge had afforded her an adjournment to speak with an immigration attorney. She also testified she told the trial judge she was satisfied with her defense counsel's representation. Defense counsel testified he had represented non-citizen defendants. He stated his general practice with such clientele was "[t]o have them contact an immigration attorney to see whether or not their guilty plea . . . or conviction would affect their immigration status." Defense counsel described the plea negotiations in pertinent part as follows: ". . . no one wants to go to prison but [defendant] was acceptable to the offer and . . . she was advised to go speak to an immigration attorney to see how it would affect her status since she was a refugee." Defense counsel testified similarly to defendant that the trial judge had granted an adjournment of the plea hearing to permit defendant to speak with an immigration attorney. The assistant prosecutor asked defense counsel what happened as a result, and the following colloquy occurred: 6 A-0460-17T4 [Assistant prosecutor]: Did [defendant] express having met with an immigration attorney prior to returning? [Defense counsel]: I don't recall who she exactly met with or what his name was but she, I believe, she advised me that she had met with someone . . . during that time. [Assistant prosecutor]: Did [defendant] ever express any hesitation in pleading guilty as a result of these immigration consequence to you? [Defense counsel]: Not that I recall. As to the reasons why defendant would seek to avoid trial, the following colloquy ensued between the assistant prosecutor and defense counsel: [Assistant prosecutor]: Did [defendant] ever advise you of any defenses, potential defenses, she had to these charges? [Defense counsel]: No, there was never any question that what occurred in the video is what happened. She never said that's not me in the video, she never said the video is spliced. It is what it is. [Assistant prosecutor]: And what was your opinion then about the strength of [defendant's] case? [Defense counsel]: I believe she had a very weak case and plea negotiations and trying to give her the least amount of exposure was the appropriate way to proceed. The PCR judge granted defendant's petition. He concluded petitioner had proven ineffective assistance of counsel because 7 A-0460-17T4 defense counsel had failed to advise her of the immigration consequences of the plea. The judge also found defendant had been prejudiced by counsel's performance because defendant would not have pled guilty, but for counsel's failure to affirmatively advise her of the immigration consequences of the plea. The State filed a motion for leave to appeal, and for a stay of the PCR judge's order, which we granted. On appeal the State argues the following point: POINT I – PETITIONER RECEIVED THE EFFECTIVE ASSISTANCE OF COUNSEL. a. The record shows Petitioner was aware that by pleading guilty she faced the risk of deportation. b. Petitioner failed to demonstrate that she would not have pled guilty if not for counsel's deficient performance. To establish ineffective assistance of counsel, defendant must satisfy a two-prong test: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a 8 A-0460-17T4 breakdown in the adversary process that renders the result unreliable. [Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, 466 U.S. at 687).] Counsel's performance is evaluated with extreme deference, "requiring 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .'" Fritz, 105 N.J. at 52 (alteration in original) (quoting Strickland, 466 U.S. at 688-89). "To rebut that strong presumption, a [petitioner] must establish . . . trial counsel's actions did not equate to 'sound trial strategy.'" State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, 466 U.S. at 689). "Mere dissatisfaction with a 'counsel's exercise of judgment' is insufficient to warrant overturning a conviction." State v. Nash, 212 N.J. 518, 542 (2013) (quoting State v. Echols, 199 N.J. 344, 358 (2009)). The Supreme Court has stated: When a guilty plea is part of the equation, we have explained that "[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. DiFrisco, 137 N.J. 434, 457 9 A-0460-17T4 (1994) (citations omitted) (alteration in original). [State v. Nunez-Valdez, 200 N.J. 129, 139 (2009).] To demonstrate prejudice, "'actual ineffectiveness' . . . must [generally] be proved[.]" Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 692-93). Defendant must show the existence of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. (quoting Strickland, 466 U.S. at 694). In our review of a . . . PCR petition following an evidentiary hearing, we afford deference to the PCR judge's factual findings, as long as they are "supported by sufficient credible evidence in the record." Nash, 212 N.J. at 540; see also State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" (quoting State v. Johnson, 42 N.J. 146, 162 (1964))). However, we do not defer to legal conclusions, which we review de novo. Nash, 212 N.J. at 540-41; see State v. Gregory, 220 N.J. 413, 419-20 (2015). [State v. Holland, 449 N.J. Super. 427, 434 (App. Div. 2017).] The State argues defendant's counsel was not ineffective because counsel had advised defendant her plea may result in 10 A-0460-17T4 deportation. Defendant argues the law was clear that she would be deported as a result of her plea and her counsel's failure to affirmatively advise of such was ineffective assistance of counsel. The State also argues defendant failed to demonstrate any prejudice by entering into the plea agreement because she achieved a more favorable result than if she had proceeded to trial. Defendant argues she was prejudiced because she had valid defenses to the charges against her, and proceeding to a trial, even with the slim chance of acquittal, was a better option than deportation. We recently recounted obligation of counsel to provide advice where a criminal defendant may face deportation as a result of a guilty plea. We stated: In State v. Nunez-Valdez, 200 N.J. 129, 143 (2009), our State Supreme Court held that a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from "inaccurate information from counsel concerning the deportation consequences of his plea." The Court's focus was on "false or misleading information" from counsel as establishing the violation of the defendant's constitutional rights. Id. at 138. Later, in Padilla v. Kentucky, 559 U.S. 356, 486 (2010), the United States Supreme Court held that counsel's failure to give any advice whatsoever about deportation might also be deficient performance in violation of a defendant's constitutional rights. . . . 11 A-0460-17T4 The Court also added that counsel's constitutional duty is not limited to avoiding incorrect advice. Counsel has an affirmative duty to inform a defendant when a guilty plea will result in deportation, at least where the relevant law pertaining to mandatory deportation is "succinct, clear, and explicit." Id. at 381. [State v. Brewster, 429 N.J. Super. 387, 392- 93 (App. Div. 2013) (emphasis added).] As noted, following the hearing, the PCR judge found the first Strickland prong was met because plea counsel failed to render affirmative advice to defendant regarding deportation as a result of her plea. We agree with the PCR judge plea counsel was ineffective for failing to affirmatively advise defendant she would be deported. Pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), a non-United States citizen "convicted of an aggravated felony at any time after admission is deportable." An aggravated felony includes "a crime of violence . . . for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). Under 18 U.S.C. § 16, a crime of violence is defined as: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the 12 A-0460-17T4 person . . . may be used in the course of committing the offense. Additionally, 8 U.S.C. § 1227(a)(2)(E)(i) punishes a crime of child abuse with deportation. Also, 8 U.S.C. § 1158(b)(2)(A)(ii) provides a person in the United States who has been granted asylum "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States[.]" A person "who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime." 8 U.S.C. § 1158(b)(2)(B)(i). The person convicted thus loses asylum status because they become "deportable." 8 U.S.C. § 1227(a) and (a)(2)(A)(iii). Defendant's guilty plea to endangering the welfare of a child was a deportable offense because it was clearly an aggravated felony and a crime of child abuse. At the time, N.J.S.A. 2C:24- 4(a)1 stated: 1 Subsequent to defendant's plea, N.J.S.A. 2C:24-4(a)(2) was amended and now reads as follows: Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child as defined in [N.J.S.A.] 9:6- 1, [N.J.S.A.] 9:6-3, and [N.J.S.A.] 9:6-8.21[] is guilty of a crime of the second degree. 13 A-0460-17T4 Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who cause the child harm that would make the child an abused or neglected child . . . is guilty of a crime of the second degree. N.J.S.A. 9:6-8.21 states, in pertinent part as follows: "Abused or neglected child" means a child less than 18 years of age whose parent or guardian,2 as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree. 2 N.J.S.A. 9:6-8.21(a) states: "'Parent or guardian' means . . . any person, who has assumed responsibility for the care, custody, or control of a child or upon whom there is a legal duty for such care." 14 A-0460-17T4 excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.] As noted, defendant testified she was the victim's caregiver, and that she punched him several times and kicked him. Defendant's conduct as a caregiver placed her seven-month old victim at risk of harm or serious injury. Therefore, defendant provided an adequate factual basis to meet the elements of the criminal offense of endangering the welfare of a child. Because the elements of the offense were met, defendant was clearly deportable for having committed an "aggravated felony," "a crime of child abuse," or a "particularly serious crime" as defined by federal statute. We agree with the PCR judge that providing defendant with this advice would have required no more than basic legal research. It did not require an expertise in immigration law to point out defendant's exposure to deportation, which was clearly explicated by federal statute and did not require a nuanced legal analysis. The record demonstrates plea counsel instead suggested defendant speak with an immigration attorney rather than affirmatively providing the necessary legal advice contrary to the mandate of Padilla. For these reasons, the first Strickland prong was met. Notwithstanding, the record fails to support the PCR judge's finding the second Strickland prong was met. The judge's only findings in this regard were that "despite the strength of the 15 A-0460-17T4 [State's] case, [defendant] has shown . . . but for counsel's errors, that she would not have pled guilty." Defendant argues she would not have pled guilty because she had valid defenses to the charge, namely, that she suffers from mental illness, and the victim was uninjured. Defendant also argues if she had known she would be deported she would have proceeded to trial. Citing Lee v. United States, ___ U.S. ___, 137 S. Ct. 1958 (2017), defendant asserts avoiding deportation was the determinative factor in agreeing to the plea. Thus, she asserts it would have been a better outcome if she had proceeded to trial on the slim chance she would be acquitted. We reject defendant's argument and the PCR judge's reasoning that but for counsel's failure to affirmatively advise defendant regarding the deportation consequences defendant would not have pled guilty. As noted, the victim was a defenseless infant. There was video evidence of defendant's assault on the victim clearly proving the State's case pursuant to N.J.S.A. 2C:24-4(a)(2). Defendant's mental health and the lack of injury would not constitute valid defenses to the fact she endangered the welfare of the infant victim. Furthermore, defendant misreads the facts and holding of Lee. Indeed, in Lee the United States Supreme Court stated: 16 A-0460-17T4 A grand jury indicted Lee on one count of possessing ecstasy with intent to distribute . . . . Lee retained an attorney and entered into plea discussions with the Government. The attorney advised Lee that going to trial was "very risky" and that, if he pleaded guilty, he would receive a lighter sentence than he would if convicted at trial. . . . Lee informed his attorney of his noncitizen status and repeatedly asked him whether he would face deportation as a result of the criminal proceedings. The attorney told Lee that he would not be deported as a result of pleading guilty. Based on that assurance, Lee accepted the plea . . . . [Lee, ____ U.S. ____, 137 S. Ct. at 1963 (citations omitted) (emphasis added).] Finding the prejudice prong had been established in Lee, the Court stated: A defendant without any viable defense will be highly likely to lose at trial. And a defendant facing such long odds will rarely be able to show prejudice from accepting a guilty plea that offers him a better resolution than would be likely after trial. But that is not because the prejudice inquiry in this context looks to the probability of a conviction for its own sake. It is instead because defendants obviously weigh their prospects at trial in deciding whether to accept a plea. Where a defendant has no plausible chance of an acquittal at trial, it is highly likely that he will accept a plea if the Government offers one. But common sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and 17 A-0460-17T4 by plea. See INS v. St. Cyr, 533 U.S. 289, 322-323 (2001). When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For example, a defendant with no realistic defense to a charge carrying a [twenty]-year sentence may nevertheless choose trial, if the prosecution’s plea offer is [eighteen] years. Here Lee alleges that avoiding deportation was the determinative factor for him; deportation after some time in prison was not meaningfully different from deportation after somewhat less time. He says he accordingly would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a "Hail Mary" at trial. [Id. at 1966-67 (citations omitted).] The facts here are different than Lee. As noted, Lee was affirmatively advised by his counsel, albeit erroneously, that he would be deported unless he entered into the plea. Here, defendant received no advice from defense counsel other than, perhaps, to confer with an immigration attorney. Moreover, the consequences of proceeding to trial as opposed to accepting a plea were not "similarly dire" for defendant as the Lee Court contemplated might impel a defendant to proceed to trial. Indeed, defendant was sentenced in accordance with the plea agreement, which treated the offense as a third-degree offense and received a three-year-term. Defendant avoided a prosecution on the child abuse and bail jumping charges, which were dismissed. She avoided a trial and conviction on the endangering of a child 18 A-0460-17T4 charge as a second-degree offense for which defendant faced a maximum sentence of ten years. Finally, we note defendant's testimony during the plea hearing and the testimony of her PCR counsel dispel her argument here that deportation was the prime motivator for her decision to accept the plea. Therefore, Lee is inapposite. For these reasons, the second Strickland prong was not met. Reversed. Defendant's conviction is reinstated. 19 A-0460-17T4

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Docket No.: a0468-16
Decided: 2018-04-12
Caption: STATE OF NEW JERSEY v. JONATHAN L. RADCLIFFE
Status: unpublished
Summary:
PER CURIAM Defendant Jonathan L. Radcliffe Bivins appeals from an order denying his motion to suppress evidence, contending: POINT I SINCE THE POLICE OFFICER REALIZED THAT THE DRIVER WAS NOT THE OWNER OF THE VEHICLE PRIOR TO SMELLING MARIJUANA, THERE WAS NO BASIS FOR A FIELD INQUIRY FOR [BIVINS'] DRIVER'S LICENSE, AND THE DRUGS SUBSEQUENTLY FOUND IN THE CAR SHOULD HAVE BEEN SUPPRESSED. When reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). "To the extent that the trial court's determination rests upon a legal conclusion, we conduct a de novo, plenary review." Ibid. Applying that standard of review, we affirm. The motion judge's findings were derived from testimony she heard at an evidentiary hearing from two Toms River police officers, one of whom randomly entered the license plate of the vehicle defendant was operating in a police computer when it passed his stationary, marked patrol vehicle on the shoulder of Route 70. The "DMV database" revealed the registered owner of the vehicle – a white male – had a suspended driver's license. The officer was unable to see the driver of the vehicle because of the traffic 2 A-0468-16T1 volume, the vehicle's speed at which it passed his patrol car – approximately forty to fifty miles per hour – and the delay between entry of the license plate and the display of the license information on the computer screen.1 The officer pursued the vehicle, pulled up behind it, and conducted a motor vehicle stop. See State v. Pitcher, 379 N.J. Super. 308, 314-15 (App. Div. 2005) (recognizing New Jersey Supreme Court precedent upholding motor vehicle stops based on random license plate checks that revealed a driver's license is suspended). The officer approached the vehicle after defendant had pulled into a Wawa lot. The judge's finding – critical to the determination of this case – was based on the officer's testimony that, and the [c]ourt finds that his testimony was credible, . . . he walked up to the car and at this juncture is when he indicated that he had a strong smell of burnt marijuana . . . . And then it was when he observed the driver and at that point the physical description did not match the registered owner's driver. . . . At this point because of the indication that he had smelled the marijuana he continued his investigation. Notwithstanding defendant's contention that the officer's report indicated that he did not smell marijuana until after he had asked 1 The officer testified there was "maybe a three to five second delay." 3 A-0468-16T1 defendant for his credentials, we accord strong deference to the judge's ability to assess the credibility of the witnesses in light of her "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We do not perceive that the judge's finding was "so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). In light of those findings we need not determine whether the officer's actions after he saw defendant – who is African-American, not the white male described as the unlicensed registered owner – were proper.2 Nor need we examine the propriety of the officer's request for credentials from defendant.3 The plain smell of marijuana, as the motion judge found, justified the officer's continued investigation.4 2 Defendant does not argue that race was the officer's sole motivation in entering the license plate in the computer, thereby rendering the stop illegal. State v. Segars, 172 N.J. 481 (2002). 3 The State urges State v. Hickman, 335 N.J. Super. 623 (App. Div. 2000), supports the officer's request. 4 The motion judge, citing State v. Myers, 442 N.J. Super. 287 (App. Div. 2015), also concluded the smell of marijuana gave rise 4 A-0468-16T1 Defendant does not challenge the balance of police action. When asked to produce his credentials, defendant did not produce a driver's license and gave what the officer discovered was a false name. The officer ascertained defendant was wanted on outstanding warrants and arrested defendant. The officer's testimony and that of the other responding officer – both credited by the judge – proved defendant's vehicle, which was stopped in a busy area of the Wawa lot next to the gas pumps, was moved at defendant's request so his girlfriend could later retrieve it and avoid having the vehicle impounded. When the other officer moved the vehicle, he observed glassine baggies in the open console which he, based on his training and experience, recognized as controlled dangerous substances.5 The motion judge found all of the necessary factors of the plain-view test were met. State v. Johnson, 171 N.J. 192, 206-07 (2002);6 since defendant has not challenged that aspect of this search and seizure, we need not review the judge's findings. Robinson, 200 N.J. at 20. to probable cause that defendant had committed an offense, and that "contraband might be present." See also State v. Walker, 213 N.J. 281, 290 (2013). 5 The controlled dangerous substances were later determined to be cocaine and heroin. 6 In State v. Gonzales, 227 N.J. 77 (2016), our Supreme Court modified the plain view test. This motion predated that case, which was given only prospective application. 5 A-0468-16T1 Giving deference to the motion judge's findings of fact that were supported by the record, we affirm. 6 A-0468-16T1

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Docket No.: a1073-16
Decided: 2018-04-12
Caption: NANCY LANDERS v. PATRICK J. LANDERS
Status: unpublished
Summary:
PER CURIAM Plaintiff Nancy Landers appeals from a provision of a Family Part order1 granting defendant, Patrick J. Landers's request to 1 The order was stamped "FILED" on April 15, 2016. Plaintiff sets forth in her notice of appeal, court transcript request, and civil case information statement — and both parties agree in their modify alimony, reducing his monthly payments from $1000 per month to $350. Plaintiff argues the motion judge "imposed an artificially high burden of proof" on her; "did not have sufficient information to make [his] decision"; improperly reviewed the statutory factors; and if we remand the case, "a plenary hearing must be held before a different judge." We agree that, under the procedures set by the motion judge, he did not base his decision on complete information, and remand the case to him for further proceedings. We previously reversed the motion judge's grant of defendant's February 2, 2015 motion to terminate or modify his alimony obligation to plaintiff, and remanded the case for the judge "to conduct proceedings as he deem[ed] necessary and to apply the burden of proof and specific standards defined in N.J.S.A. 2A:34-23(j)(3)." Landers v. Landers, 444 N.J. Super. 315, 325 (2016). The factual background of this case is set forth in our prior opinion and will not be repeated here. On remand, the motion judge entered a case management order on March 4, 2016, requiring defendant to resubmit "his original respective briefs — that is the order in issue here. The text of the order, however, provides that it was issued on the "15th day of March, 2015"; "2015" is crossed out and the handwritten words, "should be 2016," appear below "2015." The relevant oral argument transcript is dated April 15, 2016. 2 A-1073-16T1 motion and all attachments"; allowing plaintiff to "file a reply and/or cross[-]motion"; setting a deadline for defendant's reply certification; and scheduling the matter for oral argument. At argument, both parties requested an evidentiary hearing, 2 but the judge found it unnecessary, "acknowledg[ing] there [were] some issues of disputed fact," but concluding, "I don't find that those issues of disputed fact . . . rise to a level of a material enough nature for this [c]ourt to have . . . a plenary hearing in this case." Our standard of review is the same applied in our previous consideration of this case: In our review of a Family Part judge's motion order, we defer to factual findings "supported by adequate, substantial, credible evidence" in the record. Gnall v. Gnall, 222 N.J. 414, 428 (2015). Reversal is warranted when we conclude a mistake must have been made because the trial court's factual findings are "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. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). However, when reviewing legal conclusions, our obligation is different; "[t]o the extent that the trial court's decision constitutes a legal determination, we 2 Defendant sought an evidentiary hearing on the issue of attorney's fees only, which is not a subject of this appeal. 3 A-1073-16T1 review it de novo." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013). [Landers, 444 N.J. Super. at 319 (alterations in original).] We note, contrary to plaintiff's arguments, the judge applied N.J.S.A. 2A:34-23(j)(3), including the proper burden of proof which he oftentimes repeated in his written decision. The judge also considered the evidence plaintiff proffered regarding defendant's part-time employment at a "hot rod shop," and concluded: The [c]ourt is less clear regarding whether [d]efendant will continue to be employed part-time or work reduced hours. The [c]ourt is satisfied and finds he will not do so in his prior industry or at his prior employer. There is some evidence that [d]efendant plans to work part time. Plaintiff submitted an exhibit that is a letter typically sent around Christmas to friends and family updating them regarding the family. The letter was sent by [d]efendant and his wife. The letter indicates that [d]efendant "took a part[-]time job at a local hot rod shop that builds and restores classic, street rod, and muscle cars." This is a clear indication that [d]efendant is working at least a part[-]time job. This is not disputed in any certification submitted by [d]efendant. There is nothing in the record to indicate what type of income [d]efendant is enjoying from his part[-]time work. The [c]ourt finds based upon the certification of [p]laintiff that has not been disputed that it is likely that defendant will continue to be employed part-time. 4 A-1073-16T1 Based upon all of the above the [c]ourt finds that this factor weighs slightly in favor of continuing some modified amount of alimony. The letter in question was dated "Christmas 2015." Those findings buttress some of plaintiff's arguments: "[t]he [t]rial [c]ourt based its decision on [d]efendant's incomplete current case information statement [(CIS)], which is dated 2014"; and defendant did not provide the court with income tax returns. The judge's March 4, 2016 case management order – entered after our remand – compelled defendant to resubmit the original motion and attachments. In that the judge found defendant likely "will continue to be employed part-time," the judge should have required an updated CIS. That information would bear on the amount defendant was earning from his post-retirement employment, a relevant statutory factor, N.J.S.A. 2A:34-23(j)(3)(f). We also see no reason why the Supreme Court's mandate that tax returns be attached to a CIS, Lepis v. Lepis, 83 N.J. 139, 157-58 (1980), should not survive the enactment of N.J.S.A. 2A:34-23(j), especially since that information relates to a court's review of the statutory factors, including the extent of any modification. The judge set the amount of the reduction without any current information regarding defendant's earnings. Although we conclude the judge's findings were otherwise supported by the record, we 5 A-1073-16T1 are compelled to remand this matter for the judge to order defendant to produce an amended CIS, including tax returns, and to consider same in determining the proper outcome here. We do not mandate that the judge conduct a plenary hearing. A plenary hearing is necessary when the parties' submissions show "a genuine and substantial factual dispute." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); see also, Spangenberg v. Kolakowski, 442 N.J. Super. 529, 540-41 (App. Div. 2015). "Importantly, '[t]he credibility of the parties' contentions may wither, or may be fortified, by exposure to cross-examination and through clarifying questions posed by the court[]' in a plenary hearing." Spangenberg, 442 N.J. Super. at 541 (alterations in original) (quoting Barblock v. Barblock, 383 N.J. Super. 114, 122 (App. Div. 2006)). A plenary hearing is unnecessary where it "would adduce no further facts or information," and "[a]ll of the relevant material was supplied to the motion judge." Llewelyn v. Shewchuk, 440 N.J. Super. 207, 217 (App. Div. 2015) (quoting Fineberg v. Fineberg, 309 N.J. Super. 205, 218 (App. Div. 1998)). We leave to the judge's sound discretion, after reviewing the CIS and tax returns, the decision to hold a plenary hearing. We determine the balance of plaintiff's arguments, including her request that this matter be assigned to a different judge, to 6 A-1073-16T1 be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 7 A-1073-16T1

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Docket No.: a1106-16
Decided: 2018-04-12
Caption: STATE OF NEW JERSEY v. LUIS M. OLIVA
Status: unpublished
Summary:
PER CURIAM Defendant Luis M. Oliva appeals from the September 15, 2016 judgment of conviction entered following his guilty plea to fourth degree operating a motor vehicle during a period of license suspension, N.J.S.A. 2C: 40-26(b), and to driving with a suspended license, N.J.S.A. 39:3-40. His application for pretrial intervention (PTI) was denied. Defendant's guilty plea preserved his ability to appeal the December 5, 2014 order that denied his acceptance into PTI. See R. 3:9-3(f). We affirm that denial. On March 6, 2014, defendant was driving his vehicle in Lincoln Park when a police officer, who had performed a routine vehicle registration check, learned that defendant's driver's license was suspended, and stopped him. Defendant was on his way home from his part time job. He was not under the influence of alcohol. Defendant admitted that he knew his license was suspended based on his 2013 second conviction for driving while under the influence (DWI), N.J.S.A. 39:4-50. Defendant was indicted for fourth-degree driving while suspended, N.J.S.A. 2C:40-26(b) and charged with motor vehicle summonses for driving with a suspended license, N.J.S.A. 39:3-40, and for failure to surrender a suspended license, N.J.S.A. 39:5- 35. N.J.S.A. 2C:40-26(b) provides that "[i]t shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension . . . if the actor's license was suspended 2 A-1106-16T1 . . . for a second or subsequent violation of R.S. 39:4-50." "A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment." Ibid. "[T]he sentence imposed shall include a fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole." N.J.S.A. 2C:40-26(c). The Morris County Prosecutor's Office rejected defendant's application for PTI on August 7, 2014, advising that, [a]fter a careful weighing of the interests of society and considering the circumstances of the offense, and taking into account the amenability of this defendant for the PTI program, it is clear the state must exercise its discretion to handle this crime in the normal course of prosecution. The letter provided that defendant's driving record, which included "two (2) prior DWI convictions,1 eight (8) previous suspensions of driving privileges and two (2) persistent offenders," that "indicate[d] a pattern of anti-social behavior and lack of amenability to rehabilitation." The prosecutor contended that the Legislature's mandatory sentence and parole ineligibility under N.J.S.A. 2C:40-26 was "clearly intended to 1 Defendant's first DWI was December 4, 2004, and the second, July 17, 2013. 3 A-1106-16T1 deter" driving under the influence, which deterrence would be "undermined" if defendant were not prosecuted. Defendant filed a motion to compel admission to PTI. The prosecutor's brief in opposition addressed the PTI Guidelines2 and each of the criteria set forth in N.J.S.A. 2C:43-12, including the nature of the offense and need to deter, defendant's unwillingness to abide by the law, age, criminal history, motivation to enter PTI, and that the crime was not related to "any condition or situation that a period of supervisory treatment would . . . change." The prosecutor noted the mandatory minimum period of incarceration under the statute. On December 5, 2014, the court denied defendant's motion, finding that the prosecutor's review of defendant's application was objective and without consideration of anything that was inappropriate. The State had considered the applicable factors and guidelines. Thus, the court found no "patent or gross abuse of discretion" by the prosecutor in its determination that traditional prosecution was necessary because defendant "would not be responsive to [PTI]." On July 18, 2016, defendant pled guilty to fourth-degree operating a motor vehicle during a period of license suspension, 2 See Rule 3:28, Guidelines for Operation of Pretrial Intervention. 4 A-1106-16T1 N.J.S.A. 2C:40-26(b) and to driving with a suspended license, N.J.S.A. 39:3-40.3 He was sentenced on the fourth-degree offense to 180 days in the Morris County Correctional Facility and fined. His guilty plea to driving with a suspended license was merged, and the remaining motor vehicle charge was dismissed. On appeal, defendant raises the following issues: POINT I THE PROSECUTOR'S REJECTION OF MR. OLIVA'S PTI APPLICATION CONSTITUTES AN ABUSE OF DISCRETION, THUS WARRANTING A REMAND FOR RECONSIDERATION OF THE APPLICATION. A. The Prosecutor's Justification for Rejecting Mr. Olivo from PTI was Premised on the Erroneous and Impermissible Notion that a Per Se Bar Against PTI Admission Exists for All Individuals Charged with Violating N.J.S.A. 2C:40-26. B. Although the State Ostensibly Analyzed the PTI Factors for Purposes of the Record, the Prosecutor's Improper Application of a Per Se Bar Clouded His Ability to Objectively Assess the PTI Factors. Consequently, the Prosecutor's Other Proffered Reasons for Rejecting Mr. Oliva from PTI Overemphasized the PTI Factors Present in Every N.J.S.A. 2C:40-26 Case, and Failed to Properly Consider Mr. Oliva's Individual Application. "PTI is a 'diversionary program through which certain offenders are able to avoid criminal prosecution by receiving 3 Defendant's plea followed the denial of his motion to suppress the statement he made to the police when he was stopped. 5 A-1106-16T1 early rehabilitative services expected to deter future criminal behavior.'" State v. Roseman, 221 N.J. 611, 621 (2015) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). The goal of PTI is to allow, in appropriate situations, defendants to avoid the potential stigma of a guilty conviction and the State to avoid "the full criminal justice mechanism of a trial." State v. Bell, 217 N.J. 336, 348 (2014). "[E]ligibility for PTI is broad enough to include all defendants who demonstrate sufficient effort to effect necessary behavioral change and show that future criminal behavior will not occur." Roseman, 221 N.J. at 622. Deciding whether to permit a defendant to divert to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996) (citing State v. Dalglish, 86 N.J. 503, 513, (1981)). It involves the consideration of a non-exhaustive list of seventeen statutory factors, see N.J.S.A. 2C:43-12(e), in order to "make an individualized assessment of the defendant considering his or her 'amenability to correction' and potential 'responsiveness to rehabilitation.'" Roseman, 221 N.J. at 621-22 (citing State v. Watkins, 193 N.J. 507, 520 (2008)); N.J.S.A. 2C:43-12(b). Prosecutors are given "broad discretion" in determining whether to divert a defendant into PTI. State v. K.S., 220 N.J. 190, 199 (2015) (citing Wallace, 146 N.J. at 582)). 6 A-1106-16T1 "The fourth degree offense that defendant is charged with committing . . . does not carry a presumption against admission into PTI." State v. Rizzitello, 447 N.J. Super. 301, 312 (App. Div. 2016). The scope of our review of a PTI rejection is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003) (citing Nwobu, 139 N.J. at 249)). "In order to overturn a prosecutor's rejection, a defendant must clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion," Watkins, 193 N.J. at 520 (citing Negran, 178 N.J. at 82), meaning that the decision "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." Ibid. (quoting Wallace, 146 N.J. at 582-83). An abuse of discretion is manifested where it can be proven "that the [PTI] denial '(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment[.]'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (quoting State v. Bender, 80 N.J. 84, 93 (1979)). Applying these principles, there is no basis to disturb the trial court's decision. Defendant's contention is that the 7 A-1106-16T1 prosecutor applied a per se bar to his application for PTI because his conviction under N.J.S.A. 2C:40-26(b) required a sentence to a term of imprisonment "of not less than 180 days during which the defendant shall not be eligible for parole." N.J.S.A. 2C:40- 26(c). Defendant parses through the brief that the prosecutor submitted to the trial court, citing to portions that reference the statute's incarceration requirement, in support of his position. The argument raised now about a per se bar, was not raised before the trial court. Instead, defendant's counsel contended that defendant's driving record was not reflective of who he was presently, asserting he "is a man who grew up, changed and became an individual who is a productive member of our society." Defendant's current argument has mischaracterized the prosecutor's position. Neither the August 7, 2014 letter nor the brief in opposition to defendant's motion referred to a per se rule. The prosecutor analyzed the criteria under the statute and guidelines, concluding that based on all of those factors, it chose to "exercise its discretion to handle this crime in the normal course of prosecution" because defendant's record did not show an amenability to rehabilitation. The assistant prosecutor expressly represented to the trial court during argument of the 8 A-1106-16T1 motion that there was no per se rule in its office, stating, "[s]o it's not a bright line rule in our office. We look at each and every case on a case by case basis." We agree there is no indication from this record that the prosecutor applied a per se rule in rejecting defendant's PTI application. Defendant's driving record supported the finding that he was a poor candidate for PTI's goal of short-term rehabilitation. This showed that over a ten year period, he had two DWI convictions, eight previous suspensions of driving privileges, and was considered a persistent offender. The infraction in 2014 did not arise from an addiction; he was not arrested for DWI. Defendant did not explain how his current circumstances justified operating a vehicle without a license in defiance of his license suspension. As such, the record did not show defendant's amenability to rehabilitation. We agree therefore that there was no patent and gross abuse of discretion by the prosecutor in denying defendant's admission into PTI. Affirmed. 9 A-1106-16T1

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Docket No.: a1179-16
Decided: 2018-04-12
Caption: LIBERTARIANS GOVERNMENT v. THE COLLEGE OF NEW JERSEY
Status: unpublished
Summary:
PER CURIAM Plaintiff Libertarians for Transparent Government (LFTG) appeals from an October 14, 2016 order denying its order to show cause (OTSC) and dismissing its complaint with prejudice. Because the October 14, 2016 order relied on the unsworn, hearsay assertions of counsel for defendant The College of New Jersey (TCNJ), we vacate the order and remand for further proceedings. The facts are undisputed. TCNJ was involved in litigation entitled Guerrini v. The College of New Jersey. The parties to the Guerrini case reached a settlement in principle. On July 13, 2016, the judge dismissed the Guerrini matter, subject to either party reopening the case within sixty days if the settlement could not be finalized. Three days after the dismissal of the Guerrini litigation, LFTG filed a request pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, seeking documents related to the Guerrini case, including draft agreements and documents demonstrating the terms of the settlement. TCNJ responded there was no final settlement agreement and denied LFTG's request for documents reflecting ongoing settlement negotiations. On August 1, 2016, LFTG filed an OTSC and complaint alleging TCNJ violated OPRA. On September 6, 2016, the Guerrini settlement was finalized and Ms. Guerrini signed a release containing the 2 A-1179-16T4 settlement terms.1 According to TCNJ's counsel, prior to September 6, 2016, the matter was under negotiation and any settlement terms were tentative. On September 19, 2016, TCNJ sent the signed Guerrini release to LFTG. That same day, TCNJ filed opposition to the OTSC and requested dismissal of LFTG's complaint. In its brief in opposition to the OTSC, TCNJ's counsel wrote "the only document arguably responsive to [LFTG's] request is a single email message from the Guerrini plaintiff's counsel to TCNJ's counsel proposing a particular term of the proposed settlement." However, TCNJ failed to provide an affidavit or certification that the withheld document was in furtherance of confidential settlement negotiations. The judge heard argument on October 14, 2016. Relying on N.J.S.A. 47:1A-9(b), the judge found that settlement negotiations and communications in furtherance of settlement are privileged and, thus, protected from disclosure under OPRA. Based on her finding, the judge denied the OTSC and dismissed LFTG's complaint. LFTG appeals from dismissal of its OPRA litigation. On appeal, LFTG raises several arguments. We need only address LFTG's 1 The trial court was not given a copy of the release in Guerrini. Nor does the appellate appendix contain a copy of the release. 3 A-1179-16T4 claim that the judge erred in dismissing its complaint based on an unsworn, hearsay statement made by TCNJ's counsel in opposition to LFTG's OTSC. OPRA affords requestors the right to bring an action in Superior Court as a summary proceeding. N.J.S.A. 47:1A-6. Under Rule 4:67-5, "[i]f no objection is made by any party, or . . . the affidavits show palpably that there is no genuine issue as to any material fact, the court may try the action on the pleadings and affidavits, and render final judgment thereon." R. 4:67-5. On appeal, we will not disturb a motion judge's factual findings unless "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. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.Super. 154, 155 (App. Div. 1963)). However, "determinations about the applicability of OPRA and its exemptions are legal conclusions, and are therefore subject to de novo review." Carter v. Doe (In re N.J. Firemen's Ass'n Obligation), 230 N.J. 258, 273–74 (2017) (citations omitted). LFTG claims the judge mistakenly dismissed the complaint because TCNJ failed to present competent evidence that settlement negotiations were ongoing when LFTG served the OPRA request. LFTG requests TCNJ be required to disclose all withheld documents, 4 A-1179-16T4 specifically the e-mail from plaintiff's counsel in Guerrini to TCNJ's counsel. LFTG argues remanding the case for further fact- finding would impermissibly give TCNJ a second chance to argue the document is exempt under OPRA. TCNJ contends there was sufficient evidence in the record to support the judge's conclusion that the withheld email reflected on-going settlement negotiations. TCNJ argues that because there was no final settlement when LFTG served the OPRA request, any emails pre-dating execution of the agreement could not have reflected a final document. The record in this case lacks competent evidence reflecting the content and context of the disputed document. Without a full record of exactly what was withheld, the date of the withheld document, and the date the settlement was executed, it is impossible to determine whether TCNJ violated OPRA. "If a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify . . . ." R. 1:6-6. In reviewing an OPRA determination, if the record below is incomplete, we are constrained to remand for development of a full record. See Kovalcik v. Somerset Cty. Prosecutor's Office, 206 N.J. 581, 595 (2011) ("We . . . are constrained to remand this 5 A-1179-16T4 matter to the trial court for a further proceeding during which the parties shall be given an adequate opportunity to marshal sufficient proofs as to the nature of the contents of the particular documents . . . ."). TCNJ's counsel asserted there was only one document responsive to LFTG's OPRA request, and the document reflected ongoing settlement negotiations. There is no affidavit or other evidence proving negotiations were ongoing when LFTG made the OPRA request. The judge acknowledged the absence of competent evidence in the record, and expressed her concern regarding "[w]hat [to] do with [a] record that is so bare?" The judge determined that "a[n] email exchange between attorneys after the [Guerrini] case has been noted to be settled . . . , but within the [sixty] day period when either party could reopen the case, is a document that is entitled to protection" as part of settlement negotiations. However, the judge relied on an unsworn representation of counsel despite an admission by TCNJ's attorney that he did "not have the date of the email." The judge also relied on TCNJ's unsworn response to LFTG's OPRA request in concluding that TCNJ did not violate OPRA. Thus, we are compelled to remand the matter for the submission of competent proofs as to the content of the document or documents withheld by TCNJ. 6