Recent Decisions of the New Jersey Appellate Courts
from 2018-02-08 to 2018-02-22

Supreme Court Decisions


Appellate Division PUBLISHED Decisions


Docket No.: a5447-15
Decided: 2018-02-14
Caption: K.K. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Status: published
Summary:
KOBLITZ, J.A.D. K.K. appeals from the July 27, 2016 final agency decision of the Department of Human Services, Division of Medical Assistance and Health Services (DMAHS) denying him coverage under the New Jersey Medical Assistance and Health Services Act, (Medicaid), N.J.S.A. 30:4D-1 to -19.5, because he "had not been a permanent resident for five years or more." Because K.K. was a legal permanent resident (LPR) before August 22, 1996, we reverse based on the plain wording of the Medicaid eligibility statute, N.J.S.A. 30:4D-3(q)(1)(a). K.K., an eighty-eight-year-old man, first became an LPR of the United States on July 15, 1991. K.K. worked in the United States for at least forty qualified quarters (ten years), and received a modest social security benefit of $226 per month in 2015. K.K. gave up his LPR card in 2007 upon leaving the United States. Seven years later, in 2014, K.K. returned to the United States and obtained a new LPR card. On June 16, 2015, he applied for Medicaid benefits through the Somerset County Board of Social Services (SCBSS). His application was denied two months later on the basis that he had not been an LPR of the United States for five years or more. K.K. appealed and the matter was referred to the Office of 2 A-5447-15T3 Administrative Law. N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13. The supervisor of Adult Medicaid for the SCBSS testified that when K.K. applied for Medicaid, both his new LPR card and the agency computer system noted an entry date of July 2014, with no indication that he had previously resided in the country. His application stating his 1991 entry was not considered. K.K. was thus rejected because the computer records reviewed reflected he had not been an LPR for five years, as required of someone who entered the United States after August 22, 1996. At the hearing, K.K. proved he had entered the United States in 1991 and received an LPR card in 1996, which he surrendered upon leaving the country in 2007. His LPR card was at that time set to expire in 2015, after he applied for Medicaid. The card he obtained upon reentry in 2014 is valid until 2024. Both cards have the same identification number. The Administrative Law Judge (ALJ) issued an initial decision affirming the Medicaid denial on the basis that K.K. surrendered his card and obtained a new one. The ALJ determined that K.K. had thus fully abandoned his original LPR status. DMAHS adopted the ALJ's decision. "Appellate review of an agency's determination is limited in scope." Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). As our Supreme Court has made clear, "[i]n administrative law, the overarching informative principle 3 A-5447-15T3 guiding appellate review requires that courts defer to the specialized or technical expertise of the agency charged with administration of a regulatory system." In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008). We are bound to uphold the administrative agency decision "unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." Ibid. (citing In re Herrmann, 192 N.J. 19, 28 (2007)). "A court is in no way bound by an agency's interpretation of a statute or its determination of a strictly legal issue. [If] an agency's determination . . . is a legal determination, the appellate court's review is de novo." L.A. v. Bd. of Educ. of City of Trenton, Mercer Cty., 221 N.J. 192, 204 (2015) (citation omitted). Our Supreme Court has explained that a state agency interpretation of a federal statute should be reviewed de novo and without deference to the agency. In re RCN of NY, 186 N.J. 83, 92 (2006). "Medicaid was created by Congress in 1965 to provide medical services to families and individuals who would otherwise not be able to afford necessary care." S. Jersey Family Med. Ctrs., Inc. v. City of Pleasantville, 351 N.J. Super. 262, 274 (App. Div. 2002) (citation omitted). "The Medicaid program is fairly 4 A-5447-15T3 characterized as a 'cooperative federal-state endeavor' where, in return for federal monies, states must comply with federal requirements." A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 342 (App. Div. 2009) (quoting L.M. v. State, Div. of Med. Assistance & Health Servs., 140 N.J. 480, 484 (1995)). Thus we review de novo how Medicaid interacts with federal immigration law, U.S.C. § 1101(a)(13)(C), and the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWOR1). Levine v. State, Dep't of Transp., Div. of Motor Vehicles, 338 N.J. Super. 28, 32 (App. Div. 2001). The Legislature amended Medicaid to comply with PRWOR. PRWOR was enacted by Congress to continue the federal immigration policy of promoting self-sufficiency and self-reliance of immigrants to reduce the burden on public benefits such as Medicaid. 8 U.S.C. § 1601. If an LPR was present in the United States prior to August 22, 1996, or if an LPR entered after that date but maintained a continuous residency for at least five years, she or he is eligible for Medicaid. A.B., 407 N.J. Super. at 350-51 (holding that brief visits to the United States prior to August 22, 1996 do not qualify an individual for Medicaid). 1 PRWOR, Pub.L. No. 104-104, 110 Stat. 56, is codified as amendments to various sections, including 42 U.S.C., 7 U.S.C., and 8 U.S.C. 5 A-5447-15T3 K.K. argues that because he lived in the United States and received an LPR card prior to August 22, 1996, he qualifies for Medicaid and "the analysis should end" there. DMAHS argues that any permanent resident who enters the United States after August 22, 1996, is subject to the five-year waiting period, even if the individual was an LPR before August 22, 1996. DMAHS urges that K.K. should be treated for Medicaid eligibility purposes as he was treated by the United States Citizenship and Immigration Services when he sought readmission in 2014. After an absence that exceeded 180 days, pursuant to U.S.C. § 1101(a)(13)(C)(ii), he was treated as if he were entering the country for the first time. "[I]f a lawful permanent resident falls into one of the six subsections [under U.S.C. § 1101(a)(13)(C)], the clear import [] is that he is stripped of his lawful permanent residence. That is, he becomes an alien seeking admission as if he were entering for the first time." Taveras v. AG of the United States, 731 F.3d 281, 290 (3d Cir. 2013) (citation omitted). DMAHS reasons that if K.K.'s residency status resets, so should his Medicaid eligibility. That position, however, is not supported by Medicaid-specific regulations. A 2007 Federal Register instruction regarding means-tested public benefits such as Medicaid reads: If the applicant entered the United States before August 22, 1996 and obtained qualified 6 A-5447-15T3 alien status before that date, he or she is eligible for all federal means-tested public benefits for which he or she satisfies all programmatic eligibility requirements. You should not engage in any further verification of immigration status for those persons. [62 Fed. Reg. 61415 (Nov. 17, 1997) (emphasis added).] The United States Department of Health and Human Services Centers for Medicare and Medicaid Services answered questions on the eligibility of permanent residents to receive Medicaid, stating that continuous presence in the country was not required. Question nine states: "What does it mean to [] remain 'continuously present' in the United States?" It answered: Any single absence from the United States of more than 30 days, or a total aggregate of absences of more than 90 days, is considered to interrupt “continuous presence." Once an immigrant obtains qualified alien status, he or she does not have to remain continuously present in the United States in order to avoid application of the five-year bar. "Continuous presence" is discussed in more detail in DOJ’s Interim Guidance at 62 Federal Register 61415. [Department of Health and Human Services Centers for Medicare and Medicaid Services “Questions and Answers on the Five-Year Bar,” http://library.niwap.org/wp-content/uploads/ 2015/pdf/PB-faq-QA5YearBar-06.23.04.pdf (last visited December 12, 2017) (emphasis added); A.B., 407 N.J. Super. at 338.] A lapse in continuous presence is thus permitted, so long as an individual has already obtained qualified alien status. 7 A-5447-15T3 62 Federal Register 61415 states: TANF, Medicaid, and SSI are federal means- tested public benefits that are not otherwise exempted under [PRWOR]. . . . The eligibility of qualified aliens for federal means-tested public benefits turns on [1] whether they entered the U.S. before August 22, 1996, [2] the number of years since they obtained qualified alien status, [3] their particular immigration status, and [4] the specific benefits they were seeking. K.K. entered before August 22, 1996 and obtained LPR status. K.K.'s absence from the country for seven years after reaching the age of sixty-five relieved the government of making Medicaid payments during that time, thus safeguarding the taxpayer's resources. In light of federal immigration policy intended to reduce the burden on public benefits, such absences need not be discouraged. Reversed. 8 A-5447-15T3

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Docket No.: a1003-16
Decided: 2018-02-13
Caption: BERYL ZIMMERMAN v. SUSSEX COUNTY EDUCATIONAL SERVICES COMMISSION
Status: published
Summary:
FASCIALE, J.A.D. In this appeal from a final agency decision by the Commissioner of Education (the Commissioner), we address three legal questions related to the rights that Beryl Zimmerman and Judy Comment (collectively petitioners) enjoy pursuant to the New Jersey Tenure Act (the Tenure Act), N.J.S.A. 18A:28-1 to - 18. Petitioners worked as part-time tenured teachers for the Sussex County Educational Services Commission (SCESC). Petitioners provided remedial instruction to eligible students in non-public schools. The parties resorted to litigation after the SCESC reduced petitioners' annual income by decreasing their work hours. The Commissioner concluded that their tenure and seniority rights under the Tenure Act did not protect them from that reduction because their collective bargaining agreement (CBA) and employment contracts omitted a guaranteed minimum number of work hours. Specifically, the Commissioner determined that the decrease in work hours did not reduce their compensation or trigger their seniority rights under the Tenure Act. In reaching this conclusion, the Commissioner focused only on petitioners' hourly rates, which did not decrease, rather than 2 A-1003-16T4 also considering their seniority status and actual reduction in annual income. The first question is whether the failure to include language in the contracts that guaranteed petitioners a minimum number of hours deprived them of their tenure and seniority rights under the Tenure Act. We hold that the omission of that information from those documents does not deprive petitioners of those rights. Once petitioners obtained tenure, the Tenure Act required that tenure be a mandatory condition of their employment. The failure to guarantee a minimum number of hours in the contract documents cannot strip petitioners of their tenure rights, specifically the protection against reduction in compensation. To hold otherwise would render their undisputed tenure and seniority status meaningless. We therefore reverse the Commissioner's decision that petitioners are without protection under the Tenure Act. On the remaining two issues, whether the reduction in hours reduced petitioners' compensation under N.J.S.A. 18A:28-5 and whether the reduction in hours triggered petitioners' seniority rights, we remand for further proceedings consistent with this opinion. We do so because the Commissioner upheld findings reached by an administrative law judge (ALJ), who adjudicated 3 A-1003-16T4 those issues on an incomplete record using limited stipulations of fact on motions for summary disposition. The remand proceedings will give the agency the opportunity to exercise its technical expertise in the first instance. On remand, we direct the ALJ to apply the term "compensation" by considering the practical effect of the reduction in hours on petitioners' annual income. We also instruct the ALJ to determine whether the decrease in hours resulted in a reduction in force (RIF), and if so, devise the appropriate remedy. Doing so will enable further meaningful judicial review if need be. I. The SCESC provides educational auxiliary and remedial support and programs in the non-public school setting.2 The record is unclear, but at some point, SCESC employed ten part- time teachers on a ten-month term to provide these educational services. Some of them, like petitioners, were tenured, and some were not. Petitioners each provided three categories of educational instruction. 2 The SCESC operates a public school called the Northern Hills Academy, which provides educational services for Sussex County students with special needs. On this record, we are unable to determine whether petitioners provided teaching instruction there, and if so, what impact those services would have on the issues before us. 4 A-1003-16T4 The Legislature codified the first category of educational services in N.J.S.A. 18A:46A-1 to -17 (Chapter 192, or Chapter 192 services). Chapter 192 services, which the State funds, are available to eligible students enrolled full-time in non-public elementary and secondary schools. The Legislature declared the public policy behind Chapter 192 services in N.J.S.A. 18A:46A-1, which provides: The Legislature hereby finds and determines that the welfare of the State requires that present and future generations of school age children be assured opportunity to develop to the fullest their intellectual capacities. It is the intent of this Legislature to [e]nsure that the State shall furnish on an equal basis auxiliary services to all pupils in the State in both public and nonpublic schools. "Auxiliary services" means "compensatory education services for the improvement of students' . . . communication skills; supportive services for acquiring communication proficiency in the English language for children of limited English-speaking ability; and home instruction services." N.J.S.A. 18A:46A-2(c). "Compensatory education services" means preventive and remedial programs offered during the normal school day, or in programs offered beyond the normal school day or during summer vacation, which are integrated and coordinated with programs operated during the regular school day and year. The programs shall be approved by the State Board of Education, supplemental to the regular programs and designed to assist 5 A-1003-16T4 pupils who have academic needs that prevent them from succeeding in regular school programs. [N.J.S.A. 18A:46A-2(e).] Thus, Chapter 192 services provide non-public school students with auxiliary compensatory education in basic skills, such as reading, writing, and math, as well as English as a second language, and home instruction. The Legislature codified the second category of educational services in N.J.S.A. 18A:46-19.1 to -19.10 (Chapter 193, or Chapter 193 services). Chapter 193 services, which the State also funds, are available to eligible students enrolled full- time in non-public elementary and secondary schools. The Legislature declared the public policy behind Chapter 193 services in N.J.S.A. 18A:46-19.1, which provides: The Legislature hereby finds and determines that the security and welfare of the State require that all school-age children be assured the fullest possible opportunity to develop their intellectual capacities. In order to achieve this objective it is the intent of this Legislature to require that the State and local communities identify and provide remedial services for handicapped children in both public and nonpublic schools. Thus, Chapter 193 services provide non-public schools with services for students with disabilities, including evaluation and determination of eligibility for special education, and 6 A-1003-16T4 supplementary instruction and speech-language services. Chapter 193 services supplement the third category of educational services. The third category consists of services provided pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA), 20 U.S.C. §§ 1400 to 1482. The IDEIA requires school districts to provide special education and related services designed to meet the needs of children with disabilities. The federal government funds the IDEIA services. The parties stipulated that Comment is a part-time tenured teacher "who holds an instructional certificate with endorsements as an elementary N-8 teacher, as well as a K-12, [h]ighly [q]ualified English Teacher." She worked for the SCESC beginning in the 1997-1998 school year. Comment provided Chapter 192, Chapter 193, and IDEIA services at various non- public schools in Sussex County. Comment's 2013-2014 contract reflects an hourly rate of $32.98. She worked approximately 1117 hours and earned $36,838.74 for the 2013-2014 year. Comment's 2014-2015 contract reflects an hourly rate of $33.79. She worked approximately 305 hours and earned $10,331.13 for the 2014-2015 year. During the 2014-2015 year, the SCESC limited her teaching to Chapter 192 instruction, and changed the class size to no fewer than three 7 A-1003-16T4 students. Therefore, for the 2014-2015 school year, the SCESC decreased her hours by approximately 784, prevented her from providing Chapter 193 and IDEIA instruction, and reduced her income by $26,507.61. The record is silent as to the years prior to 2013. As to Zimmerman, the parties stipulated that she is a part- time tenured teacher "who holds an educational certificate with an endorsement as an elementary school teacher"; she worked for the SCESC since the 2002-2003 school year; and she provided Chapter 192, Chapter 193, and IDEIA services at various non- public schools in Sussex County. Zimmerman's 2013-2014 contract reflects an hourly rate of $28.98. She worked approximately 954 hours and earned $27,668.81 for the 2013-2014 year. Zimmerman's 2014-2015 contract reflects an hourly rate of $29.79. She worked approximately 658 hours and earned $19,603.42 for the 2014-2015 year. As with Comment, in the 2014-2015 year, the SCESC limited her teaching to Chapter 192 instruction, and changed the class size to no fewer than three students. Therefore, for the 2014- 2015 school year, the SCESC decreased her hours by approximately 270, prevented her from providing Chapter 193 and IDEIA instruction, and reduced her income by $8065.39. The record is silent as to the years prior to 2013. 8 A-1003-16T4 The parties disputed whether the SCESC correctly limited petitioners' instruction to Chapter 192 services during the 2014-2015 year. Petitioners asserted before the ALJ that the SCESC "improperly eliminated the[ir] Chapter 193/IDEIA hours [that] they had enjoyed in the past on the erroneous belief that they could not provide Chapter 193/IDEIA services with a 'students with disabilities' or 'teacher of the handicapped' certification." The ALJ did not adjudicate that dispute. On this record, we are unable to evaluate petitioners' contention at oral argument before us that even if that was the case, there would have been enough Chapter 192 services during the 2014-2015 school year to maintain petitioners' previous workload. Of the remaining eight part-time tenured teachers retained by the SCESC, the parties stipulated generally as to the teaching instruction for only four of them. Three of those four were non-tenured, and worked during the 2014-2015 school year, and two of whom worked during the 2013-2014 school year. The parties agree that the fourth "attained tenure and seniority rights," and that she had worked for the SCESC since the 2002- 2003 school year. The parties dispute whether these four teachers benefited from the hours that petitioners lost during the 2014-2015 school year. We have no information as to the remaining part-time teachers. 9 A-1003-16T4 II. We now turn to the petitioners' protections under the Tenure Act and related jurisprudence. Specifically, the protection against reduction in compensation. Doing so informs our conclusion that after petitioners achieved tenure, the Tenure Act makes tenure a mandatory condition of their employment, which superseded the purported effect of the omission of a contractual guaranteed minimum number of hours. Undertaking this analysis provides further support for our holding that the omission of that contractual language does not deprive petitioners of their tenure and seniority protections under the Tenure Act. For more than thirty years, the precedent in this State has been that part-time teachers are eligible for tenure under the Tenure Act. Spiewak v. Bd. of Educ., 90 N.J. 63, 75 (1982). Part-time teachers, like petitioners, are entitled to tenure so long as they satisfy the requirements of N.J.S.A. 18A:28-5.3 Thus, part-time teachers like petitioners are entitled to tenure 3 N.J.S.A. 18A:28-5(a) pertains to all teaching staff members employed prior to the effective date of L. 2012, c. 26 (N.J.S.A. 18A:6-117 to -129), which provides: "This act shall take effect in the 2012-2013 school year . . . . N.J.S.A. 18A:28-5(b) pertains to all teaching staff members employed on or after this effective date. On this record, we understand that petitioners earned tenure before 2012. 10 A-1003-16T4 if they "(1) . . . work[] in a position for which a teaching certificate is required; (2) . . . hold[] the appropriate certificate; and (3) . . . [have] served the requisite period of time." Spiewak, 90 N.J. at 74. Here, it is undisputed that petitioners are tenured.4 As to the critical educational instruction available through the SCESC, the importance of the Tenure Act cannot be underestimated. Our Court has recognized that providing adequate remedial education to students with special needs is "a permanent part of New Jersey's system of 'thorough and efficient education.'" Id. at 75 (quoting N.J.S.A. 18A:7A-2 (repealed 1996)). One purpose of the Tenure Act is to "prevent[] school boards from abusing their superior bargaining power over teachers in contract negotiations." Id. at 73. Thus, the Tenure Act ensures an even playing field between the parties in the remedial education setting. Once achieved, "[the Tenure Act] makes tenure a mandatory term and condition of employment." Id. at 72. Public employees and employers are not free to "agree to contractual terms [or the lack thereof] that contravene a specific term or condition 4 Substitute teachers are ineligible for tenure under the Tenure Act, N.J.S.A. 18A:16-1.1, but the parties agree that petitioners are not substitute teachers or temporary employees who "act in place of any . . . employee during the absence, disability or disqualification of any such . . . employee." Ibid. 11 A-1003-16T4 of employment set by a statute." Id. at 76. "[T]he tenure provisions of N.J.S.A. 18A:28-5 constitute a mandatory contractual term that may not be waived or bargained away." Spiewak, 90 N.J. at 76. Thus, the failure to guarantee a minimum number of hours cannot eliminate petitioners' statutory protection from reduction in compensation. Just as eligibility for tenure cannot be dependent "on the contractual agreement between . . . teachers and [a] board of education," id. at 77, neither can the statutory tenure protections provided to petitioners – such as protection from reduction in compensation – once they obtained tenure under the Tenure Act. "As a practical matter, the protection of tenure would be greatly reduced if it were subject to contract principles." Id. at 80. Petitioners' flexible work schedules and the absence of a contractual guaranteed minimum number of hours cannot alter the prohibition against a reduction in compensation contained in N.J.S.A. 18A:28-5. Contrary to the SCESC's contention, the absence of a contractual guarantee to a minimum number of hours in petitioners' CBA and employment contracts is therefore not dispositive. Petitioners are therefore entitled to the protections of the Tenure Act, including but not limited to protection from reduction in compensation. 12 A-1003-16T4 The Commissioner determined that because petitioners were not contractually entitled to a minimum number of hours, there would be no reduction in compensation if their hourly rate remained the same. Because such an application of the word "compensation," as that term is used in N.J.S.A. 18A:28-5, would render nugatory petitioners' tenure rights, we reject the Commissioner's approach. III. Determining the definition of "compensation" in N.J.S.A. 18A:28-5 is a legal question. "In matters of statutory interpretation, our review is de novo." Verry v. Franklin Fire Dist. No. 1, 230 N.J. 285, 294 (2017). We "are not bound by an agency interpretation of a strictly legal issue when that interpretation is inaccurate or contrary to legislative objectives." G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999) (citation omitted). Such is the case here. "The Legislature's intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005). A court should "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." Ibid. (citations omitted). "[I]f 13 A-1003-16T4 there is ambiguity in the statutory language that leads to more than one plausible interpretation, we may turn to extrinsic evidence, 'including legislative history, committee reports, and contemporaneous construction.'" Id. at 492-93 (quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004)). There is no need to use extrinsic evidence to define the word "compensation" under the Tenure Act. For full-time teachers, compensation generally refers to their annual income. Such a reference also applies to petitioners. We reach that conclusion ascribing the ordinary meaning and significance of the word "compensation" in the context of the Tenure Act. Of course, we are mindful of the Tenure Act's remedial purpose to "prevent[] school boards from abusing their superior bargaining power over teachers in contract negotiations," Spiewak, 90 N.J. at 73, and the principle that "the Tenure Act should be liberally construed to achieve its beneficent ends," id. at 74. The Tenure Act should not be interpreted to permit avoidance of a fair application of the term "compensation" as to petitioners. For us, the challenge is how to apply the term to petitioners, rather than the meaning of the word. Focusing only on hourly rate by itself to define petitioners' compensation fails to recognize the amount of their 14 A-1003-16T4 annual income. We understand their yearly hours might change depending on the number of students in need of remedial instruction. Using solely the hourly rate does not capture that reduction. For example, if they worked 1000 hours last year at $30, their income would be $30,000. If they worked one hour this year because the need changed, then they would have earned $30. Even though their hourly rate remained the same, their income dropped by $29,970. There is another way to calculate compensation – or annual income – without prejudicing the parties. It is obvious, because of the number of fluctuating hours that they might work based on pupils in need of remedial instruction, that petitioners have no right to a minimum number of hours per year. But they do have seniority, which means the parties could establish the percentage of available work to which they are entitled. Focusing on seniority illuminates whether there has been a reduction in their annual income under the Tenure Act, even if the available educational need fluctuates. For example, assume petitioners' seniority status entitles each of them to forty percent of the available work for the 2013-2014 school year. Assume further that during that year, the educational need for SCESC's services created 1000 hours of 15 A-1003-16T4 instructional service. Petitioners would be entitled to an allocation of forty percent of the 1000 hours for the 2013-2014 year. If the educational demand for the 2014-2015 year decreased to 500 hours, then based on seniority, petitioners would receive forty percent of the 500 hours. This hypothetical accounts for annual income and considers petitioners' flexible hours based on educational need for SCESC's services. This approach safeguards against a reduction in annual income without forcing the SCESC to pay petitioners for hours they do not work due to a reduction in educational need. It does so recognizing that petitioners worked on an as-needed basis. There would be no prejudice to the SCESC because the compensation level – or annual income – depends on seniority, rather than an artificial expectation to a minimum number of work hours during a given school year. Applying petitioners' actual hourly rates to this hypothetical demonstrates this fact. We do so as to petitioners separately. Comment would have earned $13,192 (multiplying 400 by $32.98) for the 2013-2014 school year. She would have earned $6758 (multiplying 200 by $33.79) for the 2014-2015 school year. Even though Comment's income dropped by $6434 in the 2014-2015 school year, there would be no reduction in compensation under 16 A-1003-16T4 the Tenure Act because her seniority percentage remained the same. Zimmerman would have earned $11,592 (multiplying 400 by $28.98) for the 2013-2014 school year. She would have earned $5958 (multiplying 200 by $29.79) for the 2014-2015 school year. Even though Zimmerman's income dropped by $5634 in the 2014-2015 school year, there would be no reduction in compensation under the Tenure Act because her seniority percentage remained the same. Finally, to illustrate our point that the SCESC's consideration of only the hourly rate to calculate petitioners' compensation ignores their actual reduction in annual income, we look to the substantial earnings they lost by the reduction of hours during the 2014-2015 school year. The SCESC reduced Comment's income by $26,507.61, and reduced Zimmerman's income by $8065.39. Relying solely on their hourly rate to show no decrease in compensation is absurd on its face. This cannot be what the Legislature envisioned. The decrease to petitioners' seniority-percentage allocation more realistically illuminates the reduction in petitioners' annual income under the Tenure Act. We remand on the issue of compensation because of the incompleteness of the record. Calculating petitioners' 17 A-1003-16T4 compensation, given their flexible workload, so that it comports with N.J.S.A. 18A:28-5, may require establishing petitioners' seniority percentage as compared to each other and the other part-time teachers, and then multiplying petitioners' hourly rates, which should remain the same or increase, like here, by the number of hours worked. Using this approach, the answer to whether the SCESC reduced petitioners' compensation would turn on whether it reduced that seniority percentage. On remand, we do not mean to limit the exercise of the agency's expertise in devising any other reasonable means for determining the annual income, and then to apply the term "compensation" to petitioners pursuant to the Tenure Act. IV. Finally, as to the third legal issue, whether the decrease in hours triggered their seniority rights because that reduction may have amounted to a RIF, we remand for further proceedings to develop the reasons for the reduction in petitioners' hours. We do so recognizing that in some instances, a reduction in hours triggers seniority rights under the Tenure Act. The Tenure Act protects tenured teachers by providing "a measure of security in the ranks they hold after years of service." Viemeister v. Bd. of Educ., 5 N.J. Super. 215, 218 (App. Div. 1949). "Seniority is a by-product of tenure and 18 A-1003-16T4 comes into play only if tenure rights are reduced by way of dismissal or reduction in . . . benefits." Carpenito v. Bd. of Educ., 322 N.J. Super. 522, 531 (App. Div. 1999). In Klinger v. Board of Education, 190 N.J. Super. 354, 357 (App. Div. 1982), we held that a reduction in hours of employment is considered a RIF. N.J.S.A. 18A:28-9 governs RIFs and states: Nothing in this title or any other law relating to tenure of service shall be held to limit the right of any board of education to reduce the number of teaching staff members, employed in the district whenever, in the judgment of the board, it is advisable to abolish any such positions for reasons of economy or because of reduction in the number of pupils or of change in the administrative or supervisory organization of the district or for other good cause upon compliance with the provisions of this article. We understand the difficulty associated with determining petitioners' seniority and associated tenure rights, especially because their service may be pro-rated, but the incomplete record has hampered our ability to resolve whether petitioners' reduction of hours amounted to a RIF. At a minimum, we do not know the basis for the reduction of hours, such as whether it was for economic reasons, reduction in enrollment, improper certification, or for other good cause. Therefore, we are unable to determine whether the reduction in hours constituted a 19 A-1003-16T4 RIF, the SCESC violated petitioners' seniority rights, and the related appropriate remedies. Reversed and remanded. We do not retain jurisdiction. 20 A-1003-16T4

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Docket No.: a0668-15
Decided: 2018-02-12
Caption: NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION v. EXXON MOBIL CORPORATION
Status: published
Summary:
MESSANO, P.J.A.D. In 1991, the New Jersey Department of Environmental Protection (DEP) and Exxon Mobil Corporation (Exxon) entered into two administrative consent orders (ACOs), requiring Exxon to remediate polluted sites it owned and operated at the Bayway Refinery in Linden (Bayway) and the Bayonne Facility (Bayonne). In addition to requiring Exxon to pay a civil penalty, the ACOs required the company to: undertake remedial investigations; 2 A-0668-15T1 prepare work plans and feasibility studies; undertake all additional investigations and actions necessary to remediate the sites under DEP's supervision; submit quarterly progress reports; and reimburse DEP for all oversight costs and costs incurred in investigating and responding to Exxon's discharges. See N.J. Dep't of Envtl. Prot. v. Exxon Mobil Corp., 393 N.J. Super. 388, 391-93 (App. Div. 2007) (Exxon I) (providing historical background regarding operation of these two sites and the ACOs). Under the ACOs, the State of New Jersey reserved its right to recover additional "natural resource damages" (NRD), i.e., compensation for the injury and destruction of natural resources and the public's loss of the use and enjoyment of those resources. In August 2004, DEP filed two complaints against Exxon seeking NRD at Bayway and Bayonne, and asserting claims under the Spill Compensation and Control Act, N.J.S.A. 58:10- 23.11 to -23.24 (Spill Act), and common law theories of public nuisance and trespass. We need not discuss in detail pretrial rulings and controversies, except to note that in 2006, the trial court granted DEP summary judgment holding Exxon was strictly liable for NRD and restoration costs under the Spill Act. It also dismissed DEP's NRD claim for "loss of use damages." We granted 3 A-0668-15T1 DEP leave to appeal — Exxon did not seek interlocutory review — and, in Exxon I, 393 N.J. Super. at 410, we reversed and restored DEP's claim for "loss of use" NRD damages. In New Jersey Department of Environmental Protection v. Exxon Mobil Corp., 420 N.J. Super. 395, 397-98 (App. Div. 2011) (Exxon II), we reversed the trial court's dismissal of DEP's strict liability claim, which was added in an amended complaint, on statute of limitations grounds. In 2014, Judge Michael J. Hogan presided over a sixty-six day bench trial. Both DEP and Exxon moved pre-trial to bar the testimony of all or most of their adversaries' experts. Rather than conduct pre-trial hearings to determine admissibility, see N.J.R.E. 104(a), with the judge's approval, all experts testified while the parties preserved their objections. Utilizing a complex, mathematical methodology known as "Habitat Equivalency Analysis" (HEA), DEP's experts estimated that NRD damages at both sites totaled $8.9 billion. Exxon's experts challenged the admissibility of any opinions based on HEA in the first instance, although, as Judge Hogan noted in his written decision, Exxon's experts, utilizing HEA, estimated NRD damages to be between $1.4 and $3 million.1 1 The parties have not supplied full trial transcripts, see Rule 2:5-3(b), nor have they sought abbreviation of the transcripts (continued) 4 A-0668-15T1 After two days of summations and the submission of written closing arguments, Judge Hogan set about to render a written decision on the reserved N.J.R.E. 104(a) motions and the case in chief. Before he did, however, the parties advised they had reached a settlement. Under the terms of the proposed consent judgment, Exxon agreed to pay $225 million to the state treasurer, and the State agreed to place that money in a segregated account within the Hazardous Discharge Site Cleanup Fund, where the monies "shall earn interest and may not be used for any purpose" until the consent judgment "becomes final and non-appealable." The State also agreed to: release Exxon from all NRD claims based on the discharge of contaminants onto the soil and sediments of Bayway and Bayonne; dismiss surface water NRD claims without prejudice to raising them, under certain conditions, in a future action; release Exxon with prejudice and covenants not to sue for all NRD claims relating to more than one thousand Exxon retail gas (continued) pursuant to Rule 2:5-3(c). This deficiency has no impact on our review of the legal arguments raised, because they do not involve Judge Hogan's trial rulings or the actual evidence presented. But see Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (affirming our refusal to address an issue because appellant did not provide the complete transcript, thereby "prohibit[ing] review" of claims advanced on appeal). We rely on the judge's description of the trial proceedings and post- trial events as contained in his written decisions. 5 A-0668-15T1 stations in New Jersey, excluding those where methyl tertiary butyl ether (MTBE)2 had been discharged; release Exxon with prejudice from all NRD claims relating to sixteen other statewide facilities (designated as Attachment C facilities), including the former Paulsboro Terminal, which had been the subject of ongoing litigation since 2007, but excluding those facilities where MTBE had been discharged; and defer the final remedy determination and remediation of Morses Creek near Bayway until Exxon ceased refining operations at the site. The parties further agreed that: the consent judgment would not alter, suspend, or otherwise impact Exxon's obligations under any ACO, except for the Morses Creek deferral; the State would retain full authority and sole discretion to require Exxon to take any action to "address an immediate environmental concern, an imminent and substantial endangerment to public health, welfare or the environment, or an emergency response arising from or related to" Bayway, Bayonne, the gas stations and Attachment C facilities; and, the court would retain continued jurisdiction and enforcement of the consent judgment's terms. Lastly, the consent judgment declared that 2 According to DEP, MTBE, used in gasoline, is highly soluble, migrates long distances very quickly, does not degrade readily and, at sites where MTBE has been discharged, represents, in relation to other hazardous substances, the greatest extent of groundwater plumes. 6 A-0668-15T1 nothing contained therein "shall be considered an admission by [Exxon]," and it granted Exxon contribution protection "to the fullest extent possible" pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-675, the Spill Act, and any other statute, regulation, or common law principle that allowed contribution rights against Exxon.3 DEP provided notice of the proposed consent judgment in accordance with N.J.S.A. 58:10-23.11e2. See Cumberland Farms, Inc. v. N.J. Dep't of Envtl. Prot., 447 N.J. Super. 423, 441 (App. Div. 2016) ("[U]nder N.J.S.A. 58:10-23.11e2, the DEP and a potentially responsible party may not agree to a settlement of NRD liability until after the DEP has published notice of the terms of the settlement."), certif. denied, 229 N.J. 149 (2017). DEP received 16,013 public comments, mostly objections, including comments from Raymond J. Lesniak, a resident of the Bayway section of Elizabeth and State Senator for the 20th Legislative District, (appellant in A-0668-15), and the New Jersey Sierra Club, Clean Water Action, Environment New Jersey, and Delaware Riverkeeper Network (collectively, the Environmental Groups) (appellants in A-0810-15). 3 Although not contained in the consent judgment, Judge Hogan noted in his written opinion that "Exxon entered into ACOs for the Attachment C Facilities and Retail Gas Stations." 7 A-0668-15T1 Before DEP responded to the comments and indicated whether it intended to seek approval of the consent judgment or not, Lesniak and the Environmental Groups moved to intervene in the lawsuit. In a written opinion, Judge Hogan denied those motions without prejudice. The same day, DEP issued its response to the public comments, portions of which we summarize. DEP stated the proposed judgment was the second largest NRD settlement with a single corporate defendant in United States' history, and the largest NRD settlement in New Jersey's history. DEP asserted that Exxon had already spent more than $130 million remediating Bayway and more than $120 million remediating Bayonne, and that the proposed consent judgment would not change or cap Exxon's continued obligation to "spend whatever amount of money is necessary to fully remediate all of its contaminated sites in accordance with DEP's regulatory standards." DEP also noted "numerous and significant" legal and evidentiary issues in the lawsuit were still unresolved, with no assurance DEP would ultimately succeed. For example, early pre- trial decisions in the State's favor as to liability could be subject to appeal and ultimately reversed. Additionally, Judge Hogan had not yet ruled on the admissibility of DEP's experts' opinions, or determined the amount of NRD, if any, actually 8 A-0668-15T1 proven by the State. Under the proposed settlement, Exxon gave up its right to appeal all issues. DEP further noted that the proposed consent judgment did not settle claims against Exxon at gas stations and other facilities where MTBE was discovered. With Exxon's support, DEP subsequently moved before Judge Hogan for approval of the settlement. Judge Hogan permitted the Environmental Groups and Lesniak to appear as amicus curiae. They filed extensive briefs and orally argued against approval. In a written decision and conforming order filed August 25, 2015, Judge Hogan approved the consent judgment, holding it was fair, reasonable, faithful to the Spill Act's goals, and in the public interest. He concluded that DEP had applied "rational methods" to estimate total damages and to determine what Exxon's fair payment would be for those damages, and that $225 million represented "a reasonable compromise given the substantial litigation risks the DEP faced at trial and would face on appeal." The court filed a fully executed consent judgment on August 31, 2015; Exxon tendered payment a few weeks later. The Environmental Groups and Lesniak renewed their requests to intervene, arguing in part that intervention was appropriate so they could appeal Judge Hogan's approval of the consent judgment. By orders dated October 9, 2015, accompanied by a 9 A-0668-15T1 comprehensive written decision, Judge Hogan denied both applications with prejudice. These appeals followed. We have consolidated them now for purposes of issuing a single opinion. I. Appellants argue Judge Hogan erred in concluding standing was a prerequisite to their intervention in the lawsuit, and, even if he was correct, they established standing both to intervene at trial and to challenge the court's approval of the consent judgment on appeal. We first consider whether standing is a prerequisite to intervention at trial, and, if so, whether appellants had standing to intervene. A. Our Rules of Court govern intervention at trial, and the trial court's interpretation of those rules is subject to our de novo review. Washington Commons, L.L.C. v. City of Jersey City, 416 N.J. Super. 555, 560 (App. Div. 2010). "We apply familiar canons of statutory construction to interpret the court rules[,] . . . look[ing] first to the plain language . . . and giv[ing] the words their ordinary meaning." Robertelli v. N.J. Office of Att'y Ethics, 224 N.J. 470, 484 (2016) (citations omitted). "We also read the language of a rule 'in context with related provisions so as to give sense to the [court rules] as a 10 A-0668-15T1 whole.'" Ibid. (quoting Wiese v. Dedhia, 188 N.J. 587, 592 (2006)). Rule 4:33-1 governs intervention as of right. To satisfy the rule, a moving party must (1) claim "an interest relating to the property or transaction which is the subject of the transaction," (2) show [that the movant] is "so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest," (3) demonstrate that the "[movant's] interest" is not "adequately represented by existing parties," and (4) make a "timely" application to intervene. [Am. Civil Liberties Union of N.J., Inc. v. Cty. of Hudson, 352 N.J. Super. 44, 67 (App. Div. 2002) (ACLU) (quoting Meehan v. K.D. Partners, L.P., 317 N.J. Super. 563, 568 (App. Div. 1998)).] "As the rule is not discretionary, a court must approve an application for intervention as of right if the four criteria are satisfied." Meehan, 317 N.J. Super. at 568. On the other hand, Rule 4:33-2 (emphasis added) permits intervention "[u]pon timely application . . . if the claim or defense and the main action have a question of law or fact in common." The rule must be "liberally construed . . . with a view to whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties[,]" ACLU, 352 N.J. Super. at 70, "and whether intervention will eliminate the need for subsequent litigation." Zirger v. Gen. Accident Ins. 11 A-0668-15T1 Co., 144 N.J. 327, 341 (1996) (citation omitted). The decision to grant or deny permissive intervention "vests considerable discretion in the trial court[,]" Evesham Township Zoning Board of Adjustment v. Evesham Township Council, 86 N.J. 295, 299 (1981), thus we review the court's determination of a permissive intervention motion under an abuse of discretion standard. City of Asbury Park v. Asbury Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006). Whether permissible intervention or intervention as of right, a party must comply with the procedure set out in Rule 4:33-3 (emphasis added): A person desiring to intervene shall file and serve on all parties a motion to intervene stating the grounds therefor and accompanied by a pleading setting forth the claim or defense for which intervention is sought along with a Case Information Statement pursuant to R. 4:5-1(b)(1). This procedure is "mandatory," Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 4:33-3 (2018), although courts should liberally permit movants "reasonable opportunities to cure procedural defects in their motions to intervene." ACLU, 352 N.J. Super. at 66-67 (emphasis added). Rule 4:33-3 requires the movant to set forth a "claim or defense" in its pleading to intervene. Rule 4:33-2, the more liberal permissive intervention rule, provides the standard to 12 A-0668-15T1 guide the motion court's exercise of discretion, i.e., intervention is appropriate "if [the movant's] claim or defense" presents "a question of law or fact in common" with the pending action. Ibid. Under the plain language of these two Rules, intervention is not appropriate unless the putative intervenor can assert its own "claim or defense." See Pressler & Verniero, cmt. 1 on R. 4:33-2 ("Clearly those without standing in the first instance are also without sufficient interest to warrant intervention."). If the moving party must have standing to assert its own claim or defense before the court exercises its discretion and permits intervention, it seems illogical that in some situations a court must grant intervention under Rule 4:33- 1, even if the movant cannot assert its own claim or defense. Appellants argue that none of our reported cases has squarely held that a putative intervenor must establish standing in order to intervene successfully under either Rule 4:33-1 or 4:33-2. We do not necessarily disagree. However, when considering whether a third party may become directly involved in pending litigation or administrative action, our courts have repeatedly used the phrase "standing to intervene" as conceptually equivalent to "standing." See, e.g., State v. N.J. Zinc Co., 40 N.J. 560, 576-78 (1963) (holding that the holder of an unexercised option to buy land lacked standing 13 A-0668-15T1 to intervene or participate in a condemnation proceeding); N.J. Div. of Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 602- 03 (App. Div. 2011) (concluding resource parents, statutorily- barred from becoming parties to a Title Nine proceeding, lacked "standing to intervene"); In re A.S., 388 N.J. Super. 521, 524- 26 (App. Div. 2006) (holding adoption agency lacked standing to intervene in Title Nine action); Loigman v. Twp. Comm. of Middletown, 297 N.J. Super. 287, 297 (App. Div. 1997) (citing with approval Woodbridge State School Parents Ass'n v. American Federation of State, County & Municipal Employees, 180 N.J. Super. 501, 503 (Ch. Div. 1981), holding parents' association lacked "standing to intervene in a labor dispute between employees . . . and the governmental entity responsible for the school's operation"); State v. Jan-Mar, Inc., 210 N.J. Super. 236, 240-41 (Law Div. 1985) (holding that option holder lacked "standing to intervene" in condemnation action, and relying on N.J. Zinc), aff'd in part on other grounds, 236 N.J. Super. 28 (App. Div. 1989). Rule 4:33-1 tracks the language of Fed. R. Civ. P. 24(a)(2) verbatim. Allstate N.J. Ins. Co. v. Neurology Pain Assocs., 418 N.J. Super. 246, 254 (App. Div. 2011); Pressler & Verniero, cmt. 1 on R. 4:33-1. The federal rule and our Rule mandate intervention if the intervenor's status is comparable to that of 14 A-0668-15T1 a party that must be mandatorily joined in the action by the court, with the additional requirement that the party's interest is not otherwise adequately represented by existing parties. Ibid. Compare Fed. R. Civ. P. 19(a)(1)(B)(i) (requiring joinder "if . . . th[e] person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may . . . as a practical matter impair or imped the person's ability to protect the interest"), and the nearly identical language of R. 4:28-1(a)(2)(i) (requiring joinder "if . . . the person claims an interest in the subject of the action and is so situated that the disposition of the action in the person's absence may . . . as a practical matter impair or impede the person's ability to protect that interest"), with Fed. R. Civ. P. 24(a)(2) (stating for "Intervention of Right . . . the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest"), and the nearly identical language of R. 4:33-1 (mandating intervention "if the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a 15 A-0668-15T1 practical matter impair or impede the ability to protect that interest"). In other words, a court must grant intervention if the putative intervenor is on the same footing as someone the court must otherwise "join[] as a party to the action." R. 4:28-1(a). As one federal court explained, "[t]he only difference between intervention of right under [the analogous federal rule] and joinder under [the analogous federal rule] is which party initiates the addition of a new party to the case." New York State Ass'n for Retarded Children, Inc. v. Carey, 438 F. Supp. 440, 445 (E.D.N.Y. 1977). It is, therefore, entirely understandable our courts routinely recognize that a successful intervenor is a party to the litigation. Williams v. State, 375 N.J. Super. 485, 530 (App. Div. 2005), aff'd sub nom. In re P.L. 2001, Chapter 362, 186 N.J. 368 (2006). In 1986, the United States Supreme Court noted in Diamond v. Charles, 476 U.S. 54, 68 n.21 (1986), that "[t]he Courts of Appeals have reached varying conclusions as to whether a party seeking to intervene as of right must himself possess standing." Compare Brennan v. N.Y. City Bd. of Educ., 260 F.3d 123, 131 (2d Cir. 2001) ("[W]here a proposed intervenor's interests are otherwise unrepresented in an action, the standard for intervention is no more burdensome than the standing 16 A-0668-15T1 requirement."), Wade v. Goldschmidt, 673 F.2d 182, 185 n.5 (7th Cir. 1982) (A proposed intervenor must demonstrate a direct, significant and legally protectable interest in the property at issue in the law suit. The interest "must be based on a right which belongs to the proposed intervenor rather than to an existing party in the suit.") (emphasis added), and Solien v. Miscellaneous Drivers & Helpers Union, 440 F.2d 124, 132 (8th Cir. 1971) ("Intervention as of right presupposes that the applicant has a right to maintain a claim for the relief sought"), with United States v. Imperial Irrigation Dist., 559 F.2d 509, 521 (9th Cir. 1977) ("A party seeking to intervene pursuant to [Fed. R. Civ. P.] 24 . . . need not possess the standing necessary to initiate the lawsuit."), rev'd and vacated on other grounds, 447 U.S. 352 (1980). However, in June 2017, the Supreme Court definitively stated in Town of Chester v. Laroe Estates, Inc., 581 U.S. ___, 137 S. Ct. 1645, 1651 (2017), "an intervenor of right must have Article III standing in order to pursue relief that is different from that which is sought by a party with standing." We are not, of course, bound by this federal precedent, but we find it persuasive, given the nearly verbatim equivalency between our Rules and their source, the Federal Rules of Civil Procedure. Moreover, the core concepts contained in Rule 4:33-1 17 A-0668-15T1 governing intervention as of right — the movant must have an "interest" in the "subject of the action," which may be "impair[ed] or impede[d]" without intervention — find equal voice in our standing jurisprudence. See, e.g., In re Camden Cty., 170 N.J. 439, 449 (2002) (holding, to have standing, "a party must present a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and a substantial likelihood that the party will suffer harm in the event of an unfavorable decision."). Further, for the reasons already stated, based upon the express language of Rules 4:33-2 and 4:33-3, we conclude that in deciding whether to permit intervention, the court should consider if the intervenor has standing in its own right to assert a claim or defense that presents a "common" "question of law or fact" with the pending action. As we discuss more fully below, our standing jurisprudence has always evidenced "an approach that is less rigorous than the federal standing requirements." Camden Cty., 170 N.J. at 448 (citing Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107-08 (1971) ("Unlike the Federal Constitution, there is no express language in New Jersey's Constitution [confining] our judicial power to actual cases and controversies.")). Nevertheless, we conclude that intervention 18 A-0668-15T1 at trial as of right or by permission of the court is premised upon the putative intervenor's demonstrating that he or she has standing either in the action in chief — which essentially compels a court to grant a timely motion for intervention as of right pursuant to Rule 4:33-1, unless the intervenor's interests are otherwise adequately protected — or to bring an independent action — in which the putative intervenor's "claim or defense" involves a question of "law or fact" common to the pending action, R. 4:33-2. B. The concept of standing in a legal proceeding refers to a litigant's "ability or entitlement to maintain an action before the court." People for Open Gov't v. Roberts, 397 N.J. Super. 502, 508-09 (App. Div. 2008) (quoting Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 80 (App. Div. 2001)). Whether a party has standing is "a threshold justiciability determination," In re Six Month Extension of N.J.A.C. 5:91-1 et seq., 372 N.J. Super. 61, 85 (App. Div. 2004), neither subject to waiver nor conferrable by consent. In re Adoption of Baby T., 160 N.J. 332, 341 (1999). "[A] lack of standing . . . precludes a court from entertaining any of the substantive issues for determination." EnviroFinance Grp. v. Envtl. Barrier Co., 440 N.J. Super. 325, 339 (App. Div. 2015) (quoting Baby T., 160 N.J. 19 A-0668-15T1 at 340). We apply de novo review to the trial court's determinations regarding standing. NAACP of Camden Cty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 444 (App. Div. 2011). Our courts generally take a liberal view of standing, since, as noted, we are not confined by the "case or controversy" requirement of Article III, Section 2 of the United States Constitution. Camden Cty., 170 N.J. at 448-49; EnviroFinance, 440 N.J. Super. at 340; Loigman, 297 N.J. Super. at 294-95. But, standing is not automatic. Bondi v. Citigroup, Inc., 423 N.J. Super. 377, 436 (App. Div. 2011). Judge Hogan concluded appellants lacked standing for purposes of intervention. He reasoned: (1) appellants were not entitled to bring a claim for NRD because the Spill Act only authorized DEP to bring such suits; (2) appellants could not utilize the private right of action provided by the Environmental Rights Act (ERA), N.J.S.A. 2A:35A-1 to -14, because the ERA provides only declaratory and injunctive relief, and appellants could not establish inaction or inadequate action by DEP; and (3) appellants' intervention motions were procedurally deficient under Rule 4:33-3 because they failed to state a claim. i. 20 A-0668-15T1 In 1991, the Legislature amended the Spill Act to provide a private right of action for contribution so that pollution dischargers could share the costs of remediation with additional dischargers not so designated by DEP, i.e., non-settling entities. Magic Petroleum Corp. v. Exxon Mobil Corp., 218 N.J. 390, 405 (2014); Hous. Auth. of New Brunswick v. Suydam Inv'rs, L.L.C., 177 N.J. 2, 18 (2003). The Spill Act "provides for two causes of action: one to recover clean-up costs from [other] dischargers (contribution claim), [N.J.S.A.] 58:10-23.11f(a)(2), and one to recover damages from the NJDEP, or Spill Compensation Fund, [N.J.S.A.] 58:10-23.11k." Bonnieview Homeowners Ass'n v. Woodmont Builders, L.L.C., 655 F. Supp. 2d 473, 503 (D.N.J. 2009). Appellants have not asserted a claim under either section. Except for the right to contribution, only DEP may recover cleanup costs and other damages from responsible parties under the Spill Act: [A]ny person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred. Such person shall also be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs incurred by the [DEP] . . . . [N.J.S.A. 58:10-23.11g(c).] 21 A-0668-15T1 More importantly for purposes of this appeal, the Spill Act clearly provides that only DEP may sue to recover NRD. [DEP] may commence a civil action in Superior Court for, singly or in combination: (1) a temporary or permanent injunction; (2) the costs of any investigation, cleanup or removal (3) the cost of restoring, repairing, or replacing real or personal property damaged or destroyed by a discharge . . . and any reduction in value of the property caused by the discharge by comparison with its value prior thereto; (4) the cost of restoration and replacement, where practicable, of any natural resource damaged or destroyed by a discharge; and (5) any other costs incurred by the department. [N.J.S.A. 58:10-23.11u(b) (emphasis added).] ii. Both appellants seemingly accept that the Spill Act provides no private right of action for citizens to seek NRD 22 A-0668-15T1 from a polluter. The Environmental Groups argue, however, that they have standing under the ERA because of DEP's inadequate enforcement; that is, DEP's decision to settle the lawsuit under the terms of the consent order. They also contend they have standing pursuant to the common law. We disagree. "The ERA creates a private cause of action for declaratory and injunctive relief to protect the environment against 'pollution, impairment and destruction.'" Patterson v. Vernon Twp. Council, 386 N.J. Super. 329, 330-31 (App. Div. 2006) (quoting N.J.S.A. 2A:35A-2 and -4). "The ERA . . . grants a private person standing to enforce an environmental protection statute as an alternative to inaction by the government which retains primary prosecutorial responsibility. ERA does not itself provide any substantive cause of action." Superior Air Prods. Co. v. NL Indus., Inc., 216 N.J. Super. 46, 58 (App. Div. 1987). Beginning with our decision in Township of Howell v. Waste Disposal, Inc., 207 N.J. Super. 80, 98-9 (App. Div. 1986), we have recognized that the ERA grants a private citizen standing to enforce environmental laws, including the Spill Act, as an alternative to inaction or inadequate action on the part of DEP. See, e.g., Morris Cty. Transfer Station, Inc. v. Frank's Sanitation Serv., Inc., 260 N.J. Super. 570, 577 (App. Div. 23 A-0668-15T1 1992) (private plaintiff can use ERA to supplement government action); Port of Monmouth Dev. Corp. v. Middletown Twp., 229 N.J. Super. 445, 451 (App. Div. 1988) (ERA action permitted when DEP failed to act effectively); Superior Air Prods., 216 N.J. Super. at 58-59 (private cause of action may lie when agency inadequately enforces a statute). There are, however, limits. DEP "must normally be free to determine what solution will best resolve a problem on a state or regional basis given its expertise and ability to view those problems and solutions broadly." Howell, 207 N.J. Super. at 95- 96. Whether DEP's actions are adequate requires consideration of "the individual set of facts in each case." Id. at 95; see also Mayor & Council of Rockaway v. Klockner & Klockner, 811 F. Supp. 1039, 1055 (D.N.J. 1993) (whether government's efforts have been sufficient and whether ERA action can proceed are "fact-specific" questions). Although Judge Hogan found appellants failed to demonstrate DEP's actions in this case were inadequate, a conclusion with which we agree, any private right of action under the ERA is limited to "injunctive or other equitable relief to compel compliance with a statute, regulation or ordinance, or to assess civil penalties for the violation as provided by law." N.J.S.A. 2A:35A-4(a); see also Bowen Eng'g v. Estate of Reeve, 799 F. 24 A-0668-15T1 Supp. 467, 479 (D.N.J. 1992) (noting private right of action "through ERA for injunctive relief under the Spill Act"). An action under the ERA may only be "commenced upon an allegation that a person is in violation, either continuously or intermittently, of a statute, regulation or ordinance, and that there is a likelihood that the violation will recur in the future." N.J.S.A. 2A:35A-4(a). The ERA does not provide, and none of the cases cited permit, a private party to sue a polluter to recover NRD under the Spill Act. In short, given the nature of this particular litigation, the ERA did not provide a path for the Environmental Groups or Lesniak to intervene at trial before Judge Hogan.4 We therefore affirm the denial of appellants' motions to intervene at trial. Moreover, even if we are wrong about the need to demonstrate standing in order to intervene at trial, any error in denying intervention in this case was not prejudicial and did not bring about an unjust result. R. 2:10-2. Appellants sought intervention solely to argue against the settlement. In 4 In their brief, the Environmental Groups argue that they had standing through the ERA under the "common law." The judge rejected this claim, concluding that both appellants could not bring a common law claim because they lacked an "ownership interest" in the polluted sites and their proposed complaints in intervention, filed pursuant to Rule 4:33-3, never included such a cause of action. Only Lesniak's complaint is in the appellate record, and it asserts no common law claim or claim under the ERA. 25 A-0668-15T1 granting both appellants' motions to file briefs and make argument as amici, Judge Hogan essentially permitted them to assert their claims as if they had intervened, and he considered fully the arguments they raised before approving the consent judgment. See Atl. Emp'rs Ins. Co. v. Tots & Toddlers Pre- School Day Care Ctr., Inc., 239 N.J. Super. 276, 281 (App. Div. 1990) (finding judge's denial of intervention to be harmless error because "[h]e did allow appellants to argue fully at the summary judgment hearing just as if they formally had been granted permission to intervene, and gave full consideration to their arguments"). II. We come to what is the more difficult issue presented by these appeals. Judge Hogan's conclusion that appellants could not intervene to preserve a right to appeal is not entitled to any deference, because the trial court lacks authority to decide whether an appeal is cognizable in the Appellate Division and whether any particular appellant is entitled to bring the appeal. See Prado v. State, 186 N.J. 413, 422-23 (2006) (discussing Appellate Division's exclusive authority to review agency action under R. 2:2-3(a)(2) even when there is a pending action in the Law Division); State v. A.L., 440 N.J. Super. 400, 418 (App. Div. 2015) (a party aggrieved by a judgment may 26 A-0668-15T1 appeal, and to be aggrieved, the party "must have a personal or pecuniary interest or property right adversely affected by the judgement") (quoting Howard Sav. Inst. v. Peep, 34 N.J. 494, 499 (1961)). Lesniak contends DEP's decision to settle the litigation is akin to any other agency action, and, therefore, reviewable as of right on appeal pursuant to Rule 2:2-3(a)(2). We disagree, only to the extent that we are not reviewing agency action in this case, but rather the consent judgment approved by Judge Hogan. However, although appellants could not intervene at trial because they had no standing to pursue the claims made in the lawsuit, we must now consider whether appellants may challenge the merits of Judge Hogan's approval of the settlement before this court. We have considered the ability of a non-party to file an appeal challenging the judgment entered by the trial court in a variety of settings. "In the post-judgment setting, motions for intervention have received mixed treatment by our courts." Warner Co. v. Sutton, 270 N.J. Super. 658, 662 (App. Div. 1994). "Generally, intervention after judgment is allowed if necessary 'to preserve some right which cannot otherwise be protected.'" Ibid. (quoting Chesterbrooke Ltd. P'ship. v. Planning Bd. of Chester, 237 N.J. Super. 118, 123 (App. Div. 1989)). Our 27 A-0668-15T1 decisions have tailored the standards of Rule 4:33-1 to the unique circumstances presented on appeal. Ibid. See Chesterbrooke, 237 N.J. Super. at 123. Similarly, federal courts have been circumspect in granting intervention post-settlement. See, e.g., R&G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 1 (1st Cir. 2009) (denying post-settlement intervention primarily on timeliness grounds); Farmland Dairies v. Comm'r of N.Y. Dep't of Agric. & Mkts., 847 F.2d 1038, 1044 (2nd Cir. 1988) (denying intervention to challenge settlement after New York Attorney General decided not to appeal, and concluding settlement would be "jeopardized" by intervention); City of Bloomington v. Westinghouse Elec. Corp., 824 F.2d 531 (7th Cir. 1987) (affirming denial of intervention as untimely). However, when the settling party no long adequately represents the putative intervenor's interests, or where the party chooses not to appeal, the federal courts have been more accommodating. See, e.g., United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977) (concluding post-settlement motion to intervene to appeal denial of class certification should have been granted because intervenor's interests were no longer protected by named class representatives). Certainly, "[o]ur prior decisions have recognized the appropriateness of granting a party affected by a judgment leave 28 A-0668-15T1 to intervene to pursue an appeal if a party with a similar interest who actively litigated the case in the trial court has elected not to appeal." CFG Health Sys., L.L.C. v. Cty. of Essex, 411 N.J. Super. 378, 385 (App. Div. 2010). In CFG Health Systems, an unsuccessful bidder (CFG) sued the county and the successful bidder (CHS) seeking to set aside the award of a public contract. Id. at 381. The trial court concluded CHS's bid was defective and ordered the award of the contract to CFG. Ibid. The county and CHS appealed, and we reversed, finding CFG's suit was premature. Id. at 381-82. The county then rejected all bids. Id. at 382. CFG filed a new action, claiming the county's decision was arbitrary and capricious, and CHS's bid was fatally defective. Id. at 382-83. After granting CHS's motion to dismiss, the trial court ordered the county to award the contract to CFG. Id. at 383. The county originally filed an appeal, but later withdrew it; contemporaneously, CHS, no longer a party in the Law Division, moved before us to intervene to file an appeal. CFG opposed the motion. Ibid. Before reaching the merits of the appeal and reversing, Judge Skillman wrote: Our grant of CHS's motion for intervention was directly supported by the principles set forth in Chesterbrooke. CHS's position in this litigation was the 29 A-0668-15T1 same as the County's position; that is, the County's decision to rebid the contract was reasonable and should be upheld. Thus, CHS's position was adequately represented before the Law Division by the County. However, once the County elected not to pursue an appeal from the judgment of the Law Division invalidating its resolutions, CHS's position was no longer adequately represented by the County. Therefore, we reaffirm our decision to grant CHS leave to intervene in order to pursue this appeal. [Id. at 385-86.] Likewise, in Chesterbrooke, 237 N.J. Super. at 124-26, we concluded that objectors who owned property adjacent to a proposed development should be allowed to intervene for purposes of appealing the trial court's decision overturning the planning board's denial of development approvals, even though the board elected not to pursue an appeal. In SMB Associates v. New Jersey Department of Environmental Protection, 264 N.J. Super. 38, 43 (App. Div. 1993), aff'd, 137 N.J. 58 (1994), DEP choose not to appeal the grant of a development waiver by the Coastal Area Review Board (CARB), even though the Commissioner opposed the waiver. We specifically rejected a claim by the developer that public interest environmental groups lacked standing to appeal and reversed the waiver. Id. at 44, 61. We have also recognized a party's right to file an appeal following settlement in the trial court. Warner presented facts that are somewhat similar to this case. There, the appellant 30 A-0668-15T1 environmental groups sought intervention to appeal a settlement reached between a mining company and the local planning board. Warner, 270 N.J. Super. at 660-61. Following our remand, the trial judge denied intervention, concluding appellants' application was untimely. Id. at 662. We reversed and remanded, concluding intervention was timely, particularly since the consent order settling the case "raise[d] a host of new issues which did not exist prior to its entry." Id. at 666 (emphasis added). In Meehan, 317 N.J. Super. at 570-71, we reversed the trial court and recognized an adjacent property owner's right to intervene after settlement between a developer and another objector because no party represented the intervenor's interests any longer. We limited intervention "to challenging the appropriateness of the settlement." Id. at 565. We have also considered appeals brought by individuals and public interest groups that challenged settlements between DEP and others. See, e.g., Pinelands Pres. All. v. State, Dep't of Envtl. Prot., 436 N.J. Super. 510 (App. Div. 2014); Dragon v. N.J. Dep't of Envtl. Prot., 405 N.J. Super. 478 (App. Div. 2009); In re N.J. Pinelands Comm'n Resolution, 356 N.J. Super. 363 (App. Div. 2003). 31 A-0668-15T1 Exxon argues appellants have no standing to appeal because they were not parties in the trial before Judge Hogan. Certainly, some of our opinions have implicitly or explicitly recognized that the intervenor-appellant had standing to pursue the claim in the trial court before bringing the appeal. See CFG, 411 N.J. Super. at 381-85 (intervenor-appellant was once a party to the suit); Warner, 270 N.J. Super. at 664 n.1. (recognizing intervenor-appellant could have filed a direct action challenging the settlement); Chesterbrooke, 237 N.J. Super. at 124 (recognizing objectors' rights to have intervened at trial). However, we have not necessarily preconditioned the right to appeal upon participation in the prior proceeding. SMB Assocs., 264 N.J. Super. at 44 (rejecting challenge to standing "because appellants did not participate below and were not parties in any of the proceedings below"). See also Ocean Cty. Chapter Inc. of Izaak Walton League of Am. v. Dep't of Envtl. Prot., 303 N.J. Super. 1, 11 (App. Div. 1997) (assuming without deciding appellant had standing to appeal even though it chose not to participate in administrative proceedings prior to DEP settlement). As the Court said in Elizabeth Federal Savings & Loan Ass'n v. Howell, 24 N.J. 488, 499-500 (1957) [T]his right to seek judicial review of administrative decisions inheres not only in 32 A-0668-15T1 those who are direct parties to the initial proceedings before an administrative agency . . . but also belongs to all persons who are directly affected by and aggrieved as a result of the particular action sought to be brought before the courts for review. Indeed, in its per curiam opinion affirming our judgment in SMB Associates, the Court concluded that the American Littoral Society (ALS) had standing to appeal CARB's final decision even though it had not participated in the agency proceedings. The policy choice between the desire to have a manageable administrative hearing process (without a proliferation of parties) and the public interest in not having non-party objectors raise issues in judicial appeals that might better be resolved in the agency process is difficult. This case is atypical in that the position of the primary regulator (DEPE) in the administrative hearing was at variance with that of the final review body (CARB). ALS argues that it could not have foreseen that existing DEPE policy would not be applied to the case under review. ALS did not lay back to sandbag its opponents later. Thus, although our dissenting colleague makes an excellent argument that notions of fundamental fairness and exhaustion of administrative remedies should preclude sophisticated third-party objectors from intervening in litigation after observing its progress for several years, this is not the case for application of those principles. These facts are much too unusual to deny ALS standing to appeal, even though ALS should have made its position known earlier in the administrative process. Under the circumstances, the Appellate Division did not err in concluding that ALS, as an association concerned with the preservation of our coastal resources, had sufficient 33 A-0668-15T1 interests in the water-dependent development issues of this case to appeal the CARB action under Rule 2:2-3(a)(2). [SMB Assocs., 137 N.J. at 61-62.] We therefore reject Exxon's argument. DEP acknowledges that a party may challenge settlements under the Spill Act, but only if the challenger can independently assert standing. It contends that Lesniak's interests, as a resident of Elizabeth and legislator for that district, fail to provide him with standing. DEP argues that the Environmental Groups lack standing to appeal for some of the same reasons that prevented their intervention before Judge Hogan, noting no court has permitted a private third party to challenge an NRD settlement on appeal because private parties cannot sue for NRD under the Spill Act. It also argues that the Environmental Groups cannot appeal because DEP has adequately represented their interests throughout the litigation, including settlement of the lawsuit. However, in Salorio v. Glaser, 82 N.J. 482, 491 (1980), the Court declared: "We have consistently held that in cases of great public interest, any 'slight additional private interest' will be sufficient to afford standing." See SMB Assocs., 264 N.J. Super. at 46 ("Our courts have held that a 'slight private interest, added to and harmonizing with the public interest,' is 34 A-0668-15T1 sufficient to give standing to seek judicial review of official action.") (quoting Elizabeth Fed., 24 N.J. at 499). See also In re Tax Credit Application of Pennrose Props., Inc., 346 N.J. Super. 479, 482 (App. Div. 2002) ("While we find that the standing issue is certainly debatable, we prefer, given the public interest in a matter such as this, to resolve the issue on its substantive merits."). In particular, we have expanded standing to appeal agency action when it is likely that no one can or will assert the public's opposing interests. See In re Waterfront Dev. Permit, 244 N.J. Super. 426, 438 (App. Div. 1990) (permitting public interest environmental group to challenge DEP's actions in granting development permit when it was unlikely that local residents and others would). We conclude Lesniak lacks standing to pursue this appeal. We agree with DEP that he lacks a sufficient "personal or pecuniary interest or property right adversely affected by the judgement." A.L., 440 N.J. Super. at 418. We therefore affirm in A-0668-15. We conclude, however, the Environmental Groups do have standing to appeal, based upon their broad representation of citizen interests throughout this state. We disagree with DEP that the Environmental Groups have no standing to appeal because 35 A-0668-15T1 DEP shares the same objectives they do, and the agency continues to adequately represent the groups' interests. We recognize DEP's preeminent position as the agency designated by the Legislature to "formulate comprehensive policies for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State." N.J.S.A. 13:1D-9. We further acknowledge that the choice to settle litigation rests largely within an agency's discretion, and we generally defer to that choice "so long as it 'is responsive to the purpose and function of the agency.'" Dragon, 405 N.J. Super. at 492-93 (quoting Texter v. Dep't of Human Servs., 88 N.J. 376, 385-86 (1982)). However, as we already noted, those general principles do not automatically eliminate all challenges to DEP's decision to settle a dispute. Although we agree private actors cannot sue for NRD, the Legislature amended the Spill Act by enacting N.J.S.A. 58:10- 23.11e2 in 2005. That section provides DEP, prior to its agreement to any administrative or judicially approved settlement entered into pursuant to [the Spill Act], . . . shall publish in the New Jersey Register and on the New Jersey Department of Environmental Protection's website the name of the case, the names of the parties to the settlement, the location of the property on which the discharge occurred, and a summary of the terms of the settlement, including 36 A-0668-15T1 the amount of any monetary payments made or to be made. The Department of Environmental Protection shall provide written notice of the settlement, which shall include the information listed above, to all other parties in the case and to any other potentially responsible parties of whom the department has notice at the time of the publication. [Ibid. (emphasis added).] We note that this section was enacted at the same time N.J.S.A. 58:10-23.11f(a)(2)(b) was added to the Spill Act, Cumberland Farms, 447 N.J. Super. at 429-430, which shields settling polluters from contribution claims made by other polluters and at the same time provides non-settling polluters with pro tanto credit for the amount of the settlement DEP reaches with the settling polluter. DEP's obligation to provide written notice of the settlement to "all other parties in the case and to any other potentially responsible parties of whom the department has notice," N.J.S.A. 58:10-23.11e2 (emphasis added), furthers the Legislature's obvious purpose and is consistent with DEP's position that only parties, or other polluters who might intervene, may challenge a court approved Spill Act settlement. However, the statute's legislative history does not elucidate the Legislature's purpose in also requiring DEP to furnish a separate public notice of the court settlement. As we have noted, "[e]ven prior to the enactment of N.J.S.A. 58:10- 37 A-0668-15T1 23.11e2, . . . the settlement agreements negotiated between the DEP and responsible parties included provisions requiring the publication of public notice in the New Jersey Register of a settlement agreement, even if it was already signed." Cumberland Farms, 447 N.J. Super. at 430 (emphasis added). Because the Legislature required public notice, in addition to the written notice DEP must provide to all parties and possible parties of which the agency is aware, we doubt the Legislature intended notice and comment would immunize DEP from all challenges to its ultimate decision to settle litigation brought in the trial courts of this State under the Spill Act. We therefore conclude the Environmental Groups have standing to appeal Judge Hogan's decision approving the consent judgment. We now turn to that issue. III. Our cases have long recognized the necessity of holding a judicial hearing to approve a settlement in a variety of situations when significant public interests are involved. Courts have taken this approach when reviewing settlements of: land use litigation, see Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Board, 407 N.J. Super. 404 (App. Div. 2009); Gandolfi v. Town of Hammonton, 367 N.J. Super. 527 (App. Div. 2004); Warner Co. v. Sutton, 274 N.J. Super. 464 38 A-0668-15T1 (App. Div. 1994) (Warner II); exclusionary zoning suits, see Livingston Builders, Inc. v. Township of Livingston, 309 N.J. Super. 370 (App. Div. 1998); and litigation over utility connection fees, see Builders League of South Jersey, Inc. v. Gloucester County Utilities Authority, 386 N.J. Super. 462 (App. Div. 2006). In Warner II, 274 N.J. Super. at 480, we recognized "no court rule or other Supreme Court guidance as to the parameters of such a fairness hearing." However, as Judge Skillman wrote when sitting as a trial judge: The hearing on the proposed settlement is not a plenary trial and the court's approval of the settlement is not an adjudication of the merits of the case. Rather, it is the court's responsibility to determine, based upon the relative strengths and weaknesses of the parties' positions, whether the settlement is "fair and reasonable," that is, whether it adequately protects the interests of the persons on whose behalf the action was brought. [Morris Cty. Fair Hous. Council v. Boonton Twp., 197 N.J. Super. 359, 370 (Law Div. 1984) (citations omitted), aff'd o.b., 209 N.J. Super. 108 (App. Div 1986).] We might add one further standard, although it seems implicit from Judge Skillman's description. The judge conducting the fairness hearing must conclude that the settlement does not exceed the legal authority of the public entity. See, e.g

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Docket No.: a5306-15
Decided: 2018-02-09
Caption: STATE OF NEW JERSEY v. R.J.M.
Status: published
Summary:
REISNER, P.J.A.D. Under N.J.R.E. 609, there are different standards for admissibility of a prior criminal conviction for impeachment purposes, depending on whether "more than ten years have passed" since the defendant's1 conviction "or release from confinement for it, whichever is later." N.J.R.E. 609(b)(1). In this appeal, we decide whether the time period during which a defendant has been civilly committed pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, must be included in determining the ten-year time period. We hold that because civil commitment is not confinement "for" the crime of which a defendant was convicted, the period of civil commitment must be included in determining the ten-year time period.2 The trial court erred in holding that, for purposes of N.J.R.E. 609(b), defendant's conviction was not remote because of his continued confinement to the Special Treatment Unit (STU) pursuant to the SVPA. The trial court also mistakenly applied discretion in holding, in the alternative, that if the conviction was remote under N.J.R.E. 609(b)(1), the State carried its burden of proving admissibility. Due to the 1 We use "defendant," because this is a criminal case. By its terms, however, N.J.R.E. 609 applies to "any witness." N.J.R.E. 609(a)(1). 2 We use the term "remote" to refer to a conviction that is more than ten years old within the meaning of N.J.R.E. 609(b)(1). 2 A-5306-15T1 judge's erroneous ruling, defendant decided not to testify at his trial. Because defendant was unfairly prevented from testifying, and the jury might have reached a different result had defendant testified, we reverse the conviction and remand the case for retrial. I Defendant R.J.M.3 was previously convicted of first-degree sexual assault, for which he was sentenced on May 4, 1990. In 2000, after defendant completed his sentence for that criminal conviction, the State successfully applied to have him civilly committed under the SVPA. In 2014, while he was a resident at the STU, defendant was accused of making threats against one of the corrections officers who staffed the STU, resisting efforts by other corrections officers to subdue him, and assaulting several officers. Defendant was indicted and tried for third- degree terroristic threats, N.J.S.A. 2C:12-3(a), third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a), fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1(b), and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(h). Defendant's trial took place in March 2016 – almost twenty- six years after his 1990 conviction, and sixteen years after his 3 Because defendant is civilly committed, we use initials to protect his privacy. 3 A-5306-15T1 2000 release from prison. Prior to the trial, the State applied for a Sands4 hearing, seeking permission to impeach defendant with the 1990 conviction if he testified. The State argued that defendant's civil commitment should be treated as "confinement," within the meaning of N.J.R.E. 609(b), and thus ten years had not elapsed since the end of his confinement for his 1990 conviction. The trial court accepted that construction of N.J.R.E. 609(b). In an alternate analysis, the trial court reasoned that, even if the conviction was remote, the seriousness of the crime outweighed other factors that favored preclusion. See N.J.R.E. 609(b)(2) (listing factors the court may consider in deciding admissibility). We need not discuss the trial evidence in detail. Corrections Officer Francis testified that defendant hurled threats and obscene insults at her, and tried to incite other STU residents to take his side. She thought she was facing an incipient riot. She sprayed defendant with pepper spray, and called for back-up assistance, after he made what she considered a threatening gesture. The back-up officers testified that after defendant retreated to his room, they entered in order to bring him to the shower room and wash off the pepper spray. They testified that defendant violently resisted their efforts 4 State v. Sands, 76 N.J. 127 (1978). 4 A-5306-15T1 to put him in handcuffs, and in the ensuing struggle, he was injured when he hit his head on a bed frame. Defendant declined to testify, because he did not want to face impeachment with his prior conviction. Defendant's version of the incident - presented through witness cross-examination and his attorney's arguments to the jury - was that he made some offensive comments but no verbal or physical threats. Defendant contended that Francis was offended by his insults, and she and her fellow officers pepper-sprayed him and beat him up as payback. The trial court dismissed the resisting arrest charge at the close of the State's case. The jury acquitted defendant of aggravated assault, but convicted him of terroristic threats and obstruction. Defendant appeals from his conviction, raising one issue: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE STATE TO USE DEFENDANT'S REMOTE 19[90] CONVICTION FOR AGGRAVATED SEXUAL ASSAULT TO IMPEACH DEFENDANT'S CREDIBILITY IF HE TESTIFIED. DEFENDANT'S CIVIL COMMITMENT TO THE SPECIAL TREATMENT UNIT (STU) PURSUANT TO THE SEXUALLY VIOLENT PREDATOR ACT (SVPA) WAS NOT "CONFINEMENT FOR [THE CONVICTION]" WITHIN THE MEANING OF N.J.R.E. 609(B)(1). II Ordinarily we review a trial court's evidentiary rulings for abuse of discretion. State v. T.J.M., 220 N.J. 220, 233-34 5 A-5306-15T1 (2015). However, we do not defer to a ruling that is based on a mistaken interpretation of an evidence rule, or that misapplies the rule. See State v. Rose, 206 N.J. 141, 158 (2011); State v. Lykes, 192 N.J. 519, 534 (2007); State v. Reddish, 181 N.J. 553, 608-09 (2004). Pursuant to N.J.R.E. 609(a), a defendant's prior criminal conviction is admissible for impeachment purposes, unless the defense establishes, pursuant to N.J.R.E. 403, that its admission will be substantially more prejudicial than probative. See N.J.R.E. 403; T.J.M., 220 N.J. at 233; State v. Kelly, 97 N.J. 178, 217 n. 21 (1984). However, N.J.R.E. 609(b)(1) creates a presumption that a conviction more remote than ten years is inadmissible for impeachment purposes, unless the State carries the burden of proving "that its probative value outweighs its prejudicial effect." The ten-year period runs from the date of conviction or defendant's release from confinement "for it": If, on the date the trial begins, more than ten years have passed since the witness's conviction for a crime or release from confinement for it, whichever is later, then evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof. [N.J.R.E. 609(b)(1) (emphasis added).] 6 A-5306-15T1 "We interpret an evidence rule, as we would a statute, by first looking at its plain language." State ex rel. J.A., 195 N.J. 324, 338 (2008). We give "the terms used . . . their ordinary and accepted meaning," State v. Shelley, 205 N.J. 320, 323 (2011), and we construe the words in the context in which they appear. N.J.S.A. 1:1-1; State v. Regis, 208 N.J. 439, 447 (2011). Viewed in context, the words "for it" logically refer to confinement for the crime for which a defendant was convicted. However, on this appeal, as in the trial court, the State focuses on the term "confinement," which it argues is broader than the terms imprisonment or incarceration and should be construed to include civil commitment. We cannot agree. The pertinent language in the rule is not simply "confinement," but rather, "confinement for it," where "it" refers to the "conviction for a crime." N.J.R.E. 609(b)(1). Defining "confinement" in a vacuum, as the State urges, rather than reading it in context, produces an overbroad reading at odds with the statute's plain language. The State also argues that because the 1990 conviction served as the predicate act for defendant's civil commitment under the SVPA, his commitment was "a direct result of that conviction." That argument flies in the face of case law 7 A-5306-15T1 construing the SVPA, and the constitutional limits under which civil commitment is permissible. A conviction for an underlying sexual offense is not the only permissible predicate for civil commitment, and by itself is not sufficient evidence to justify commitment. See N.J.S.A. 30:4-27.26.5 Although defendant's prior conviction satisfied one of the predicate elements leading to his confinement under the SVPA, he was not committed for the conviction. As our Supreme Court has recognized in another context: [C]ommitment pursuant to the [SVPA] is not a direct consequence of pleading guilty to a predicate sexual offense because commitment does not automatically flow from the conviction. . . . [A] person may be convicted of a predicate sex offense, and yet not be committed under the Act because the evidence is not sufficient to find that his or her present mental condition creates a likelihood of future sexually violent behavior. [State v. Bellamy, 178 N.J. 127, 138 (2003) (emphasis added).] 5 Pursuant to N.J.S.A. 30:4-27.26, a "sexually violent predator" is "a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial." Additionally, the person must "suffer[] from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." Ibid. 8 A-5306-15T1 Moreover, basing civil commitment on a prior conviction, without proof of a defendant's current dangerousness due to a serious mental disorder, would be unconstitutional. See Kansas v. Crane, 534 U.S. 407, 411-13 (2002); In re Commitment of W.Z., 173 N.J. 109, 128-29 (2002). In light of the rule's plain language, and applicable precedent construing the SVPA, a civil commitment under the SVPA is not confinement "for" the conviction serving as the SVPA predicate offense. The State argues that N.J.R.E. 609(b) excludes remote convictions in order to avoid unfair prejudice to defendants who have voluntarily lived law-abiding lives for a substantial period of time since their prior convictions. The State contends that the term "confinement" should include civil commitment because, like imprisonment, commitment to the STU prevents a defendant from committing new crimes. We reject that argument. Determining "[t]he Legislature's intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005). Where the meaning is evident from the plain language, we need not look further in interpreting the rule. State v. Rangel, 213 N.J. 500, 509 9 A-5306-15T1 (2013) ("If giving an enactment's words their commonsense and ordinary meaning reveals legislative intent, our mission is complete."); DiProspero, 183 N.J. at 492. In this case, N.J.R.E. 609(b)(1) is not ambiguous and we decline to give it a broader construction than its plain language will support.6 Taken in context, "confined" clearly refers to the custodial portion of a defendant's criminal sentence, and is not a more general reference to any deprivation of physical liberty. See State v. Lee, 60 N.J. 53, 58 (1972). Defendant's confinement for his 1990 conviction terminated in 2000, almost sixteen years before his trial. Therefore, the trial court mistakenly applied discretion in holding that the conviction was admissible under N.J.R.E. 609(a). In its alternate analysis, the trial court also erred in applying the standards for admissibility of a remote conviction under N.J.R.E. 609(b). Evidence of a remote conviction is only admissible if "its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof." N.J.R.E. 609(b)(1). In making that determination, the court "may consider" four listed factors. N.J.R.E. 609(b)(2). 6 The State's argument proves too much. If we untether the term "confinement" to the words "for it," the State's argument would support excluding all periods of time during which a defendant was physically confined for any reason, including any mental illness or physical injury. 10 A-5306-15T1 (i) whether there are intervening convictions for crimes or offenses, and if so, the number, nature, and seriousness of those crimes or offenses, (ii) whether the conviction involved a crime of dishonesty, lack of veracity or fraud, (iii) how remote the conviction is in time, (iv) the seriousness of the crime. [N.J.R.E. 609(b)(2)(i) to (iv).] However, making findings as to those four factors is not enough. The court must then engage in the weighing process under (b)(1), to determine whether the State has carried its burden of proving that evidence of the remote conviction would not be more prejudicial than probative. N.J.R.E. 609(b)(1). Here, the trial court gave controlling weight to the seriousness of the crime - although none of the other factors applied - and did not analyze the prejudice versus the probative value of this remote conviction. The court also mistakenly relied on State v. Paige, 256 N.J. Super. 362 (App. Div. 1992), in the analysis. Paige predated the adoption of N.J.R.E. 609(b), and turned in part on defendant having the burden of proving that his remote murder conviction should be excluded. Id. at 373. In the context of this case, defendant was already facing unavoidable prejudice from the jury's knowledge that he was in a facility run by the Department of Corrections and staffed by 11 A-5306-15T1 corrections officers. The prior conviction was very remote, and although it was the product of a repulsive crime, it did not reflect on defendant's honesty or veracity, but rather on his sexual compulsion. On these facts, we conclude that the State did not carry its proof burden, and the trial court's ruling was a mistaken exercise of discretion. III Based on our review of the trial record, including the video footage of the STU security cameras, we cannot conclude that the trial court's erroneous evidentiary ruling was harmless. The case hinged on the jury's evaluation of witness credibility. The testimony of the State's witnesses was contradictory in some respects, and the security videos do not entirely support their version of events. The jurors evidently did not credit all of their testimony, because they acquitted defendant of the assault charge. Defendant understandably declined to testify in light of the court's ruling that if he did so, the State could impeach him with his prior first-degree conviction. Had defendant testified, the jury may have acquitted him of additional charges. Because the State's evidence cannot fairly be described as overwhelming, and defendant's testimony might have influenced the outcome, the error had a clear capacity to 12 A-5306-15T1 produce an unjust result. See R. 2:10-2; State v. Scott, 229 N.J. 469, 483-84 (2017); State v. Murphy, 412 N.J. Super. 553, 561 (App. Div. 2010). Accordingly, we are constrained to reverse defendant's conviction and remand the case for retrial. Reversed and remanded. We do not retain jurisdiction. 13 A-5306-15T1

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Docket No.: a3349-15
Decided: 2018-02-08
Caption: ANTHONY Y. KITE v. DIRECTOR, DIVISION OF TAXATION
Status: published
Summary:
YANNOTTI, P.J.A.D. Plaintiff Anthony Y. Kite appeals from a judgment entered by the Tax Court, granting summary judgment in favor of defendant Director, Division of Taxation (Division), and denying plaintiff's motion for summary judgment. The court upheld the Division's assessment of additional taxes, penalties, and interest pursuant to the New Jersey Gross Income Tax Act (the Act), N.J.S.A. 54A:1-1 to 10-12. The court's opinion is published at Kite v. Dir., Div. of Taxation, 29 N.J. Tax 75 (Tax 2016). We affirm. I. The relevant facts are undisputed. In 2004, while performing certain financial consulting services, plaintiff discovered what he believed to be a pattern of fraudulent practices by certain hospitals. According to plaintiff, these hospitals were submitting false claims to the United States government under the Medicare program by inflating charges for routine procedures by as much as four hundred percent. After conducting further research, plaintiff concluded that he had sufficient evidence to substantiate his belief that the hospitals were engaging in fraudulent billing practices, which had resulted in millions of dollars of Medicare overpayments. Plaintiff retained a law firm to file a qui tam action on behalf of the United States, pursuant to a provision of the False Claims Act (FCA), 31 U.S.C. § 3730(b). The FCA requires a qui tam plaintiff to file his or her complaint in camera and serve the federal government with a copy along with 2 A-3349-15T3 substantially all of the material evidence and information that supports the claim. 31 U.S.C. § 3730(b)(2). A qui tam plaintiff is generally referred to as the "relator." See U.S. ex rel. Hefner v. Hackensack Univ. Med. Ctr., 495 F.3d 103, 109 (3d Cir. 2007). The FCA provides that the federal government has sixty days in which to decide whether to proceed with the action. 31 U.S.C. § 3730(b)(4)(A). If the federal government chooses to do so, it takes control of the lawsuit, but the person who brought the action remains a party and is entitled to receive a portion of the amount recovered. 31 U.S.C. § 3730(d)(1). Under the FCA, the person who brought the action is entitled to receive at least fifteen percent, but not more than twenty-five percent, of the proceeds of the action or settlement of the claim, "depending upon the extent to which the person substantially contributed to the prosecution of the action." Ibid. Plaintiff commenced his qui tam action in June 2005, by filing a complaint in the United States District Court for the District of New Jersey. As required by the FCA, the complaint was filed under seal and served upon the federal government. Thereafter, the government elected to proceed with the action. When the complaint was unsealed, plaintiff learned that private parties had filed two other qui tam actions under the FCA, and 3 A-3349-15T3 the complaints in those cases included claims against many of the same hospitals that were defendants in plaintiff's action. In 2006, plaintiff and the relators in the other actions entered into a "Relators' Joint Prosecution and Sharing Agreement." In that agreement, plaintiff and the other relators agreed to work together to successfully prosecute their respective actions against the hospitals. They also agreed to share "all monies that [were] awarded as relator's share awards as a result of [the] claims" asserted in the complaints. The relators' agreement provides in pertinent part that [u]pon receipt by any one law firm of any or all settlement proceeds from the United States, the proceeds shall be placed in a trust escrow account maintained by the recipient law firm for the benefit of its [r]elator or [r]elators pursuant to the Rules of Professional Conduct in the state in which the escrow account is located. The relators' agreement further provides for the allocation of the settlement proceeds of the qui tam actions. In 2008, plaintiff and the other parties in his qui tam action executed agreements resolving claims asserted against three hospitals. Each agreement set forth the amount the hospital would pay to the United States, and the amount the United States would pay to plaintiff "through his legal counsel" as his share of the amounts recovered. Pursuant to these 4 A-3349-15T3 agreements, the defendant hospitals paid the United States $7.5 million, and plaintiff's share of the recovery was $1,229,255. The federal government paid that amount to plaintiff's attorneys, and they withheld $368,776.50 as their agreed-upon contingency fee. Plaintiff's attorneys also distributed $307,313.75 to the other relators, pursuant to the "Relators' Joint Prosecution and Sharing Agreement." The attorneys distributed the remaining $553,164.75 to plaintiff. The Internal Revenue Service (IRS) issued a 1009-Misc form to plaintiff for the 2008 tax year showing income of $1,229,255, the amount he received from his qui tam action. Plaintiff reported that amount as "other income" on his federal income tax form 1040 for 2008. For federal income tax purposes, the fees that plaintiff paid to his attorneys for prosecuting the qui tam action were deductible from his taxable income. Plaintiff did not, however, report the $1,229,255 recovery as income on his 2008 New Jersey gross income tax return. In January 2012, the Division of Taxation issued a notice of tax deficiency to plaintiff. In the notice, the Division informed plaintiff that the $1,229,255 recovered from the qui tam action was taxable income because it was a "prize or award" under N.J.S.A. 54A:5-1(l). 5 A-3349-15T3 As a result of the resulting increase in plaintiff's taxable income, the Division increased the amount of plaintiff's property tax deduction. The Division also adjusted the return to add plaintiff's gambling winnings as taxable income. The Division did not, however, allow plaintiff to deduct the fees he paid to his attorneys for the qui tam action, or the amounts he paid to the other relators pursuant to the "Joint Prosecution and Sharing Agreement." The Division therefore assessed plaintiff $118,882.52, which represented the additional gross income tax of $95,517.19, penalties, and interest. Plaintiff filed a protest with the Division and requested an administrative conference. The conference took place on October 23, 2012. Thereafter, the Division issued a final decision in the matter, upholding the assessment of additional taxes, penalties, and interest. With interest calculated to December 15, 2012, the assessment totaled $124,476. Thereafter, plaintiff filed a complaint in the Tax Court challenging the Division's final determination. The court later granted the Director's motion for summary judgment on the inclusion of plaintiff's gambling winnings in his taxable income, which plaintiff did not oppose. Thereafter, the parties filed cross motions for summary judgment on the remaining issues pertaining to the assessment. 6 A-3349-15T3 Plaintiff argued that the amount he recovered in the qui tam action was not subject to New Jersey gross income tax. Alternatively, he argued that if the recovery is subject to taxation, he is entitled to deductions for the fees he paid to his attorneys and the amounts paid to the other relators pursuant to the sharing agreement. After hearing oral argument, Judge Patrick DeAlmeida filed an opinion in which he found that the amount plaintiff recovered from the qui tam action constituted an "award" under N.J.S.A. 54A:5-1(l) and therefore was properly included as taxable gross income. Kite, 29 N.J. Tax at 85-86. The judge also determined that the fees plaintiff paid to his attorneys to prosecute the action and the amounts paid to the other relators were not deductible. Id. at 86. The judge therefore entered an order granting the Division's motion for summary judgment and denying plaintiff's motion for summary judgment. Id. at 90. This appeal followed. II. On appeal, plaintiff argues that the Tax Court erred by upholding the Division's deficiency assessment. He contends the funds he received as a relator's share for prosecuting his claim under the FCA are not taxable under the Act. Plaintiff contends his recovery does not meet the definition of a "prize or award" 7 A-3349-15T3 under N.J.S.A. 54A:5-1(l), and therefore does not constitute taxable gross income. He further argues that if the recovery is subject to taxation, the Division should have permitted him to deduct the fees he paid to his attorneys for prosecuting the action and the amounts paid to the other relators pursuant to the sharing agreement. We note initially that the trial court shall grant a motion for summary judgment when "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., 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). We apply the same standard when reviewing an order granting or denying a motion for summary judgment. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Here, there is no dispute as to the material facts, and the issue on appeal is whether the trial court correctly determined as a matter of law that plaintiff's recovery from the qui tam action is subject to taxation under the Act, and if so, whether plaintiff should have been permitted to deduct his attorneys' fees and the monies paid to other relators from the amount of 8 A-3349-15T3 the recovery. In considering those issues, we owe no special deference to the trial court's legal determinations. Templo Fuente, 224 N.J. at 199 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). III. We turn first to plaintiff's contention that the amounts he received from the proceeds of the qui tam litigation are not subject to taxation under the Act. He contends the recovery is not taxable income because it is neither a "prize" nor an "award" under N.J.S.A. 54A:5-1(l). We disagree. In interpreting a statute, "we must identify and implement the legislative intent." Smith v. Millville Rescue Squad, 225 N.J. 373, 389 (2016) (quoting State v. Smith, 197 N.J. 325, 332 (2009)). In doing so, we first consider the plain language of the statute, which is "the best indicator of that intent[.]" Ibid. (alteration in original) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). We must interpret language of a statute "in accordance with its ordinary and common-sense meaning." Id. at 389-90 (quoting Saccone v. Bd. of Trs. of the Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014)). We also must read the statute "in context with related provisions so as to give sense to the legislation 9 A-3349-15T3 as a whole." DiProspero, 183 N.J. at 492 (citing Chasin v. Montclair State Univ., 159 N.J. 418, 426-27 (1999)). N.J.S.A. 54A:5-1 defines New Jersey gross income and identifies various categories of taxable income, which include "[a]mounts received as prizes and awards." N.J.S.A. 54A:5-1(l). Here, Judge DeAlmeida correctly determined that the term "award" in N.J.S.A. 54A:5-1(l) is commonly understood to include the monies a person receives as damages in a lawsuit. Kite, 29 N.J. Tax at 83. The judge's conclusion is supported by dictionary definitions of the word "award," which are indicative of the ordinary meanings of the word. As a noun, "award" means "a decision, as by a judge or arbitrator" and "something that is awarded; [such as a] prize." Webster's New World College Dictionary 95 (3d ed. 1997). Furthermore, as a verb, "award" means "to give by the decision of a law court or arbitrator [the plaintiff was awarded damages]" and "to give as the result of judging the relative merits of those in competition; grant [to award a prize for the best essay]." Ibid. (alterations in original). See also Webster's Third New International Dictionary 152 (1981) (defining "award" to mean, among other things, "to give by judicial decree"). 10 A-3349-15T3 Judge DeAlmeida noted that N.J.S.A. 54A:6-6(b) also supports the conclusion that monies a person receives as damages in a lawsuit are taxable gross income. Kite, 29 N.J. Tax at 84. That statute excludes from gross income "the amount of damages received, whether by suit or agreement, on account of personal injuries or sickness." N.J.S.A. 54A:6-6(b). Thus, the exclusion indicates that the Legislature intended that other monies recovered as damages in a lawsuit or settlement, such as damages in a qui tam action under the FCA, would be considered an "award" and gross income under the Act. Kite, 29 N.J. Tax at 84. The judge also noted that the FCA expressly refers to the amounts a person receives from the proceeds of a qui tam action or settlement as an "[a]ward." Kite, 29 N.J. Tax at 83 (citing 31 U.S.C. § 3730(d)). In addition, in their sharing agreement, plaintiff and the other relators referred to the monies awarded in their respective qui tam actions as "awards." Plaintiff argues, however, that his recovery in the qui tam action is not a taxable "prize or award" under N.J.S.A. 54A:5- 1(l). In support of this argument, plaintiff cites certain other dictionary definitions of the words "prize" and "award." Based on those definitions, plaintiff argues that a "prize" is something offered in a competition or contest of chance, and an 11 A-3349-15T3 "award" is something that is conferred or bestowed especially on the basis of merit or need. We are convinced, however, that plaintiff's interpretation of the word "award" is unduly narrow and, as we have explained, inconsistent with the ordinary meanings of that word. In any event, the dictionary definitions that plaintiff selected do not support his interpretation of N.J.S.A. 54A:5-1(l). Rather, those definitions support the Tax Court's interpretation of the statute. Here, plaintiff claims the federal government's recovery in his qui tam action was due, in part, to his skill at identifying and prosecuting the claims. Thus, according to plaintiff, his recovery in the qui tam action was based on the merit of the claims presented in that action. Ibid. As the judge commented, "even if the court were to look to the dictionary definitions upon which plaintiff relies, [the] conclusion would be the same." Kite, 29 N.J. Tax at 85-86. We therefore conclude the Tax Court correctly found that the Division's interpretation of the term "award" in N.J.S.A. 54A:5-1(l) is reasonable and consistent with the plain meanings of the words used in the statute. The court correctly determined that an "award" includes the proceeds plaintiff received for prosecuting the qui tam action. 12 A-3349-15T3 IV. Plaintiff further argues that if the monies he received from the recovery in the qui tam action are an "award" under N.J.S.A. 54:5-1(l) and considered to be gross income under the Act, the Division should have permitted him to deduct his expenses in obtaining the award, specifically the fees paid to his attorneys to prosecute the action. He also argues that the Division should have allowed him to deduct the amounts paid to the other relators. Neither argument has merit. Here, the judge noted that the federal government paid the entire $1,229,225 to plaintiff's attorneys and those funds were deposited in the firm's trust account. Kite, 29 N.J. Tax at 86- 87. The judge found that thereafter, plaintiff paid his attorneys $386,776.50 from the trust account pursuant to the retainer agreement, and a share of the proceeds to the other relators pursuant to their sharing agreement. Id. at 87. The judge determined that these payments were made after the federal government had disbursed to plaintiff the full amount of his share of the recovery. Ibid. The judge correctly found that the entire $1,229,225 paid to plaintiff was taxable to him under the Act. Ibid. The judge aptly observed that the tax consequences would be no different if plaintiff had 13 A-3349-15T3 instructed his attorney to pay other debts or obligations from those funds. Ibid. Plaintiff argues that in the Act, the Legislature only intended to assess the tax upon income after credit was given for the costs and expenses incurred in the generation of the income. The judge noted, however, that sixteen categories of income are identified in the Act as gross income, and only a few of those categories are "net income." See N.J.S.A. 54A:5-1(b) ("[n]et profits from business"); N.J.S.A. 54A:5-1(c) ("[n]et gains or income from disposition of property"); N.J.S.A. 54A:5- 1(d) ("[n]et gains or net income from or in the form of rents, royalties, patents, and copyrights"); N.J.S.A. 54A:5-1(h) ("[n]et gains or income derived through estates or trusts"); and N.J.S.A. 54A:5-1(p) ("[n]et pro rata share of S corporation income"). The judge pointed out that the other categories of income, including "awards" under N.J.S.A. 54A:5-1(l), are not defined as "net income." Kite, 29 N.J. Tax at 87-88. The judge therefore determined that the gross amount of plaintiff's recovery was taxable, not the net amount after deductions. Id. at 88. The judge correctly found that plaintiff could not deduct his attorney's fees or the amounts paid to the other relators from his recovery. Ibid. 14 A-3349-15T3 The judge also correctly found that even though the IRS permitted plaintiff to deduct his attorneys' fees on his federal tax return, this was not controlling. Id. at 89. The Act is distinctly different from the federal income tax law. See Smith v. Dir., Div. of Tax., 108 N.J. 19, 32 (1987) (noting that our Legislature rejected the federal tax model "in favor of a gross income tax" without the loopholes available under the federal law). The Division properly disallowed the deductions plaintiff was seeking because they are not provided by the Act. Plaintiff also contends the Tax Court erred by failing to consider public policy concerns and equitable considerations, which he asserts should allow him to deduct his attorneys' fees from his recovery. He contends he provided a benefit to the public by facilitating the repayment of $7.5 million to the federal government due to fraudulent billing, and that his efforts put a stop to the fraudulent billing practices. He contends that if the tax burden is too onerous, individuals will not pursue these claims. We note that the federal taxation of qui tam awards has not discouraged relators such as plaintiff from pursuing them. In any event, as Judge DeAlmeida determined, these public policy concerns and equitable considerations should be addressed to the representatives of the other branches of government. Kite, 29 15 A-3349-15T3 N.J. Tax at 90. The judge observed that it is not the "province of the judiciary to determine public policy." Ibid. The judge noted that whether recoveries in qui tam actions brought under the FSA should be exempt from taxation, in whole or in part, is a question for elected branches of government, not the judiciary. Ibid. We agree. Affirmed. 16 A-3349-15T3

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Docket No.: a3968-15
Decided: 2018-02-08
Caption: ROBERTJ. CURRAN v. DEBRA CURRAN
Status: published
Summary:
CURRIER, J.A.D. In this matrimonial action, we consider the effect of an unenforceable clause inserted by counsel into an agreement to arbitrate entered pursuant to the New Jersey Arbitration Act (Act), N.J.S.A. 2A:23B-1 to -32. Because we find that the illegal clause does not affect or defeat the dominant purpose of the agreement, the offending clause may be severed, leaving the remainder of the agreement enforceable. As plaintiff Robert Curran has not demonstrated any of the limited grounds specified in the Act to either modify or vacate the arbitration award, we affirm the trial court's order confirming the award. After Robert Curran filed for divorce from his wife of twenty years, defendant Debra Curran,1 the parties, with counsel, entered into a consent order referring issues incident to their divorce to arbitration pursuant to the Act. In the order, entitled "Referral to Binding Economic Arbitration," the parties acknowledged in paragraph 3 that "the [c]ourt is required to confirm and enforce the [a]rbitration award unless good cause exists to set aside or modify the Award under one of the following limited grounds for a court vacating an Arbitration Award, permitted by the New Jersey Arbitration Act." The remainder of the paragraph quoted N.J.S.A. 2A:23B-23 and the 1 For the ease of the reader, we refer to the parties by their first names. We mean no disrespect. 2 A-3968-15T2 specific circumstances under which an award may be vacated.2 Paragraph 3A was a handwritten provision inserted by Debra's counsel. It read: "The parties reserve their rights to appeal the arbitrator's award to the appellate division as if 2 a. Upon the filing of a summary action with the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if: (1) the award was procured by corruption, fraud, or other undue means; (2) the court finds evident partiality by an arbitrator; corruption by an arbitrator; or misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding; (3) an arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to section 15 of this act, so as to substantially prejudice the rights of a party to the arbitration proceeding; (4) an arbitrator exceeded the arbitrator's powers; (5) there was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection pursuant to subsection c. of section 15 of this act not later than the beginning of the arbitration hearing; or (6) the arbitration was conducted without proper notice of the initiation of an arbitration as required in section 9 of this act so as to substantially prejudice the rights of a party to the arbitration proceeding. [N.J.S.A. 2A:23B-23.] 3 A-3968-15T2 the matter was determined by the trial court." Both parties initialed the notation. The parties also signed a retainer agreement for the arbitrator in which they agreed to be bound by the arbitrator's decision, which was not appealable other than in accordance with the provisions of the Act. The retainer further stated: "The parties . . . represent that upon advice of counsel they have been made fully aware that they gave up their right of appeal by entering into binding arbitration." The section entitled "Procedural Guidelines" provided that "[t]he parties agree that the Final Award will be the final and binding resolution of the disputes in their matrimonial litigation. Judgment may be entered on the award according to law. There shall be no appeal, except for reasons set forth in N.J.S.A. . . . 2A:23B- 24." After the arbitrator entered a preliminary arbitration award, Robert requested reconsideration. In June 2015, the arbitrator issued his findings of fact and conclusions of law, and a final arbitration award was entered in July. In October 2015, Robert filed a motion in the Law Division to modify the arbitration award, asserting eight "mistakes of law" by the arbitrator, including alimony and equitable distribution issues. He cited to paragraph 3A as his authority for the trial court's 4 A-3968-15T2 review. In response, Debra filed a cross-motion to confirm the award. In an oral decision following argument on November 13, 2015, the trial judge referred to the Act and concluded that there was no evidence presented to vacate the award under any of the grounds listed under N.J.S.A. 2A:23B-23. He also noted that there was no provision under the Act to permit a direct appeal from an arbitrator's decision to the Appellate Division. In addressing paragraph 3A, the judge stated: "The parties are not permitted to create subject matter jurisdiction by agreement which I think they tried to do here. The authority of a court to hear and determine certain classes of cases rests solely with the Constitution and the Legislature." He concluded that paragraph 3A was unenforceable. The judge determined that: the parties intended something more than just a review of the grounds in [N.J.S.A. 2A:23B-28] and then passing this on to the Appellate Division, I think there's room to find here that the parties intended a little more, more review than that. So with that in mind, I'm going to in essence act as the Appellate Division of the arbitrator in this case. Therefore, he performed a comprehensive review of the challenged portions of the award, referring to the arbitrator's findings of fact and determinations in the award, and citing to the 5 A-3968-15T2 applicable case law and statutes. The judge confirmed the arbitration award and entered an order reflecting his oral rulings on the same date. Contrary to his motion in the trial court that requested modification of only certain portions of the award, Robert asserts on appeal, for the first time, that paragraph 3A is illegal and voids the entire arbitration agreement and subsequent proceedings. He contends that the trial judge erred in failing to vacate the award.3 Robert reiterates his arguments that the arbitrator erred in the award of alimony and equitable distribution of the parties' second home. "Our standard of review of the validity of an arbitration agreement, like any contract, is de novo." Morgan v. Sanford Brown Inst., 225 N.J. 289, 302 (2016). It is undisputed that the parties agreed to submit all unresolved issues arising out of their matrimonial litigation to binding arbitration pursuant to N.J.S.A. 2A:23B-1 to -32. "'[A]rbitration . . . is a favored means of dispute resolution[,]' . . . [and] [i]t is well-settled that New Jersey's strong public policy favors settlement of disputes 3 If this court is not inclined to vacate the award, then Robert asks in the alternative that the case be remanded for the trial court to create a "record that is reviewable as to findings and conclusions." 6 A-3968-15T2 through arbitration." Minkowitz v. Israeli, 433 N.J. Super. 111, 131 (App. Div. 2013) (quoting Hojnowski v. Vans Skate Park, 187 N.J. 323, 342 (2006)). Our Supreme Court has lauded the benefits of using arbitration in the resolution of family litigation as "an effective alternative method of dispute resolution." Id. at 132 (quoting Faherty v. Faherty, 97 N.J. 99, 107 (1984)); see also Fawzy v. Fawzy, 199 N.J. 456 (2009). The goal of arbitration is to bring the parties' issues to a final resolution, "in a speedy, inexpensive, expeditious, and perhaps less formal manner" than full-blown litigation in court culminating in a lengthy trial. Minkowitz, 433 N.J. Super. at 132. As a result, the court's role is limited following the parties' agreement to proceed in an arbitral forum. Most importantly, the judiciary has no role in the determination of any substantive issues that the parties have agreed to arbitrate. From the judiciary's perspective, once parties contract for binding arbitration, all that remains is the possible need to: enforce orders or subpoena issued by the arbitrator, which have been ignored, N.J.S.A. 2A:23B-17(g); confirm the arbitration award, N.J.S.A. 2A:23B-22; correct or modify an award, N.J.S.A. 2A:23B- 24, and in very limited circumstances, vacate an award N.J.S.A. 2A:23B-23. If not for this limitation on judicial intervention of arbitration awards, "the purpose of the arbitration contract, which is to provide an 7 A-3968-15T2 effective, expedient, and fair resolution of disputes, would be severely undermined." [Id. at 134 (quoting Fawzy, 199 N.J. at 470).] Robert does not contend that he has satisfied any of the grounds enumerated under Section 23 of the Act to vacate the award. He argues instead, that paragraph 3A is illegal because it permits a direct appeal of the award to the Appellate Division.4 Robert asserts that the illegality of the clause renders the arbitration award void in its entirety. Parties who enter into agreements pursuant to the Act "are free to invoke [the Act's] procedures in toto or subject to agreed[-]upon modifications." Van Duren v. Rzasa-Ormes, 394 N.J. Super. 254, 265 (App. Div. 2007) (quoting Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 149 (1998)) (alterations in original). "Thus, even in the context of the Act's highly circumscribed scope of judicial review of arbitration awards, the parties may voluntarily elect to expand that review by providing for such expansion in their contract." Ibid. Here, the insertion of paragraph 3A was counsel's attempt to expand the judicial scope of review. As the trial judge found, parties may not bypass the trial court and seek immediate appellate review. The parties cannot 4 Debra does not dispute the illegality of paragraph 3A. 8 A-3968-15T2 create subject matter jurisdiction by agreement. "The authority of a court to hear and determine certain classes of cases rests solely with the Constitution and Legislature." Weinstock v. Weinstock, 377 N.J. Super. 182, 190 (App. Div. 2005). The Act does not permit a direct appeal from an arbitrator's decision. The only recourse available to the parties is the review by the trial court provided under the statute. We must consider, then, whether the trial judge's decision to sever paragraph 3A and enforce the remainder of the arbitration award was appropriate or whether the illegal clause voids the entire award. We "must determine whether the unenforceability of [the] provision[] renders the remainder of the contract unenforceable. In other words, should we sever the offending portion and enforce the remainder . . . ?" Jacob v. Norris, 128 N.J. 10, 32 (1992). "If striking the illegal portion defeats the primary purpose of the contract, we must deem the entire contract unenforceable. However, if the illegal portion does not defeat the central purpose of the contract, we can sever it and enforce the rest of the contract." Id. at 33. The primary purpose of the agreement was the resolution of the issues incident to the parties' divorce through binding arbitration pursuant to the Act. This is evident from the contractual language stating: "The Parties having determined 9 A-3968-15T2 that such issues be referred to binding Arbitration pursuant to the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 et. seq. . . . The parties shall attend binding Arbitration pursuant to the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 et. seq." The parties attached an inclusive list to the agreement of all of the issues they intended the arbitrator to consider and resolve. The purpose of the agreement was for a final resolution of those issues. The arbitration agreement noted in multiple provisions that it was binding and not appealable, other than the limited grounds specified under the Act to modify or vacate an award. Paragraph 3A did not defeat the parties' intent to have their matrimonial litigation determined and considered by an arbitrator in an expeditious and comprehensive manner. After reviewing the parties' submissions, the arbitrator rendered a preliminary award. Oral argument was heard on Robert's application for reconsideration of the award. The arbitrator subsequently issued comprehensive findings of fact and conclusions of law, and a detailed final award. Robert's application to the Law Division was for a modification of the award, and he sought the court's review on the merits on several specific issues with which he disagreed. He received that review by the trial judge who carefully considered each of Robert's arguments. The trial judge did not 10 A-3968-15T2 find grounds on which to either modify or vacate the final award. As a result, the award was confirmed. Robert did not argue to the trial judge that the final award was rendered void as a result of paragraph 3A. To the contrary, he argued that the intent of the provision was not "to by-pass the Trial Court and go straight to the Appellate Division, but rather to have the Arbitration Award be subject to modification by the Trial Court, with the right thereafter preserved to appeal to the Appellate Division from an adverse ruling by the Trial Court." This intent was achieved. There was consideration by the trial judge and a determination on Robert's points of contention. We are satisfied that the purpose of the parties' agreement was accomplished by the arbitration proceeding and subsequent review of the final award by the trial judge. Severance of paragraph 3A does not defeat the primary purpose of the agreement. To the contrary, a revocation of the final award would only serve to frustrate the parties' intent of reaching a final resolution to their matrimonial litigation and defeat the purpose of the arbitration agreement. The agreement is valid and enforceable. Having determined the severed clause does not affect the enforceability of the agreement, we address the judge's order 11 A-3968-15T2 confirming the final award. As stated, Robert does not contend that there was fraud, corruption or similar wrongdoing on the part of the arbitrator and, therefore, he has not met his burden to vacate the award. See Minkowitz, 433 N.J. Super. at 136 (holding that a party seeking to vacate an arbitration award bears a heavy burden in light of the strong judicial presumption in favor of the award). As a result, we discern no basis to disturb the arbitrator's award. Affirmed. 12 A-3968-15T2

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Appellate Division UNPUBLISHED Decisions


Docket No.: a0360-16
Decided: 2018-02-15
Caption: STATE OF NEW JERSEY v. C.J.B.
Status: unpublished
Summary:
PER CURIAM Defendant, C.J.B.,1 was convicted of possession of a controlled dangerous substance (CDS) (heroine), N.J.S.A. 2C:35- 10(a)(1), after pleading guilty to that offense. He appeals from the denial of his motion to suppress evidence found in his possession at the time of his arrest. Judge Donna M. Taylor entered an order denying his motion after she found that the warrant issued for defendant's arrest on a charge of contempt, N.J.S.A. 2C:29-9, was valid, and that the arresting officer conducted a proper search incident to his arrest that revealed the CDS in defendant's possession. Defendant argues on appeal, as he did to Judge Taylor, that the arresting officer conducted an inadequate investigation into the validity of the contempt charge to justify his arrest and search. He also contends that the officer should not have sought a warrant for his arrest based upon an alleged violation of a stale, final restraining order (FRO) that was entered years earlier pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We disagree and affirm. Prior to denying defendant's suppression motion, Judge Taylor conducted an evidentiary hearing at which officers John T. 1 Pursuant to Rule 1:38-3(d), we use initials and fictitious names to protect the confidentiality of the participants in the underlying domestic violence proceedings. 2 A-0360-16T1 Armbruster and Cory A. Scheid of the Lower Township police department testified for the State. Defendant presented the testimony of Mary Beth Hueter, an investigator for the Public Defender, and Carol Jones, whose daughter, Andrea, had obtained a FRO against defendant years earlier. After considering the testimony, Judge Taylor denied the motion for the reasons stated in her cogent October 6, 2015 written decision. In her decision, Judge Taylor made specific credibility determinations and factual findings. Her findings of fact are summarized as follows. In September 2008, the Family Part issued a FRO to Andrea, restraining defendant from having contact with her or going to her residence that was specifically identified by address in the FRO. In 2014, another resident in the Jones home, who bore no familial relationship, filed a complaint with the police that accused defendant of entering the premises through a window and removing an item. The police investigated the report and determined that the home specified in the FRO was owned and occupied by Carol, who told police she did not object to defendant entering her home as she and defendant had been in a romantic relationship. Moreover, she told police that her daughter had moved out years ago and lived in her own home. When Armbruster contacted Andrea to verify 3 A-0360-16T1 her current home address, she reported that she was out of town and that upon return she would go to the police station to pick up a victim witness notification form. There was no evidence that Andrea ever notified authorities that she no longer lived in her mother's home, or that she or defendant ever obtained an order vacating the 2008 FRO. Based upon defendant's apparent violation of the FRO, a warrant was issued for his arrest. On May 27, 2014, Scheid located defendant in town, arrested and searched him incident to the arrest. The search yielded, what was suspected to be and later proved to be, CDS. After setting forth her findings in her written decision, Judge Taylor addressed defendant's contentions that the warrant for his arrest was improperly issued. According to defendant, further investigation would have established that Andrea no longer lived at the subject premises, and therefore, the FRO was no longer in effect for that residence. Judge Taylor rejected this contention. Citing to State v. Harris, 211 N.J. 566, 587 (2012), the judge observed that items seized during an arrest for violating a FRO "can serve as the basis for a subsequent criminal prosecution if [their] illegal nature is immediately apparent." She also noted that under N.J.S.A. 2C:25-31, "where an officer finds 4 A-0360-16T1 probable cause that a defendant has committed contempt of an order entered pursuant to the provisions of the [PDVA], the defendant shall be arrested and taken into custody." (Emphasis added). In reaching her conclusion that the officer acted properly, Judge Taylor relied on the fact that there are no time limits on FROs, including restraints prohibiting entry into specific residences, in order to carry out the Legislature's intention to permit victims to feel safe wherever they live. The judge entered an order on November 16, 2015, denying defendant's motion. Defendant pled guilty to the one count indictment and received a sentence of two-years probation with the condition that he serve 364 days in jail. This appeal followed. On appeal, defendant raises the following contention: POINT I THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE (1) THE POLICE OFFICER FAILED TO ADEQUATELY INVESTIGATE WHETHER BILLINGSLY HAD VIOLATED A FINAL RESTRAINING ORDER, AND (2) EVEN IF THE OFFICER BELIEVED THAT THE RESTRAINING ORDER HAD BEEN VIOLATED, HE ERRED IN SEEKING AN ARREST WARRANT UNDER CIRCUMSTANCES WHEN THE LAW REQUIRED THE ISSUANCE OF A SUMMONS. (PARTIALLY RAISED BELOW . . . ) Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing 5 A-0360-16T1 a motion to suppress evidence, we must uphold the judge's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, 200 N.J. at 15). Additionally, we defer to a trial judge's findings that are "substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original) (quoting Robinson, 200 N.J. at 15). We do not, however, defer to a trial judge's legal conclusions, which we review de novo. Ibid. Applying this standard of review, we conclude defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). We affirm substantially for the reasons set forth by Judge Taylor in her well-reasoned decision. We add only the following brief comments. A FRO under the PDVA last in perpetuity, absent a motion by one of the parties to vacate the restraint and an order entered by the court granting that relief. See M.V. v. J.R.G., 312 N.J. Super. 597, 601 (Ch. Div. 1997) ("Final restraints granted under the Act do not have a statutorily imposed expiration date"); see also N.J.S.A. 2C:25-29(d). If an application is made, a defendant cannot rely solely upon a victim's consent to vacate. Sweeney v. Honachefsky, 313 N.J. Super. 443, 447 (App. Div. 1998). A 6 A-0360-16T1 defendant who seeks relief from a FRO must make an application and satisfy the criteria established in Carfagno v. Carfagno, 288 N.J. Super. 424, 435 (Ch. Div. 1995). Applying these controlling principles here, even if Andrea consented to the vacation of the FRO, or no longer lived at the prohibited residence, the officers correctly determined that there was at least probable cause to believe defendant violated the still active FRO. Moreover, their obtaining a warrant for his arrest and the search incident thereto was entirely appropriate because there was no order vacating the FRO before defendant entered the premises from which he was restrained. Affirmed. 7 A-0360-16T1

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Docket No.: a0459-16
Decided: 2018-02-15
Caption: STATE OF NEW JERSEY v. RICARDO PEREZ
Status: unpublished
Summary:
PER CURIAM After his motions for admission to pre-trial intervention (PTI) and to suppress evidence were denied, defendant pled guilty to possession of a .32 caliber handgun without a permit, contrary to N.J.S.A. 2C:39-5(b)(1), a second-degree offense. The trial court thereafter sentenced defendant to five years of incarceration, with a one-year period of parole ineligibility. Defendant appeals from the judgment of conviction entered by the trial court on August 25, 2016. We affirm. I. On May 21, 2015, Jersey City Police Officers Omar Aly and Daniel Mundo were on patrol in the area of Bramhall Avenue and Sackett Street of Jersey City, responding to civilian complaints of disorderly groups, drug dealing, and shots being fired in the area. While on parole, the officers observed defendant speak with an individual at the door to a residence on Bramhall Avenue. The individual was later identified as defendant's cousin, C.N.1 The officers said that during this discussion, defendant opened his backpack to show C.N. what was inside. The two men then walked towards Kennedy Boulevard. The officers followed them because they suspected defendant was in possession of narcotics. Eventually, the officers observed defendant remove his backpack. 1 We use initials to protect this individual's identity. 2 A-0459-16T3 According to Aly, defendant opened the bag, partially removed the handle of a black handgun, and immediately placed the gun back in the bag. Defendant closed the bag, placed the bag back on his shoulder, and continued walking. The officers requested backup, and at the corner of Clendenny Avenue and Kennedy Boulevard, they drove onto the sidewalk and exited their vehicle. They approached defendant and C.N. They searched his backpack, found the gun, and placed him under arrest. Defendant later gave a statement to the police explaining how and where he obtained the weapon and the person from whom he obtained the weapon. Defendant also explained why he was transporting the gun. Defendant was charged with second-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5(b). Defendant thereafter submitted an application for admission to PTI. The assistant criminal division manager (CDM) in Hudson County denied defendant's application, and on November 20, 2015, an assistant prosecutor issued a letter stating that the county prosecutor agreed with that decision. Defendant filed a motion seeking his admission to PTI over the State's objection. On March 2, 2016, Judge Mark J. Nelson considered the motion and placed his decision on the record. The judge noted that defendant had been charged with a second-degree 3 A-0459-16T3 offense, and there was a presumption against his admission to PTI. The judge found that the prosecutor had considered the relevant factors, and the prosecutor's decision was not a patent or gross abuse of discretion. The judge entered an order dated March 2, 2016, denying the motion. In addition, on March 21, 2016, Judge Nelson heard oral argument on defendant's suppression motion. The judge then placed his decision on the record. The judge determined the motion should be denied and entered an order memorializing his decision. On April 18, 2016, defendant pled guilty to second-degree possession of a weapon without a permit. The State submitted an application to the court pursuant to N.J.S.A. 2C:43-6.2 for an exemption from the mandatory minimum term required by N.J.S.A. 2C:43-6(c). The State recommended a five-year prison term, with one-year of parole ineligibility. Judge Sheila A. Venable entered an order granting the application. Defendant then filed a motion with the Assignment Judge seeking a probationary sentence. On June 17, 2016, Assignment Judge Peter F. Bariso filed an order denying the motions for the reasons set forth in an accompanying statement of reasons. Defendant appeared for sentencing before Judge Venable on August 25, 2016. The judge sentenced defendant in accordance with the 4 A-0459-16T3 plea to a term of five years of incarceration with one year of parole ineligibility. This appeal followed. On appeal, defendant raises the following arguments: POINT I THE TRIAL COURT ERRED BY DECLINING TO ADMIT [DEFENDANT], A FIRST-TIME OFFENDER, INTO PTI. AMONG SEVERAL REASONS THIS COURT SHOULD REVERSE, THE PROSECUTOR AND CRIMINAL DIVISION MANAGER FALSELY ALLEGED [DEFENDANT] HAD A DOZEN ARRESTS AND THREE DISORDERLY-PERSONS CONVICTIONS, [WHEREAS DEFENDANT] HAD NEITHER POINT II THE ASSIGNMENT JUDGE IMPERMISSIBLY SENTENCED [DEFENDANT] TO PRISON WITHOUT A HEARING. U.S. Const., amends. V, VI, XIV; N.J. Const., art. I, ¶¶ 1, 9, 10; R. 3:21-4(b). . . . POINT III THE PRESIDING JUDGE, AT THE ONLY HEARING ACTUALLY HELD, FOUND FOUR SIGNIFICANT MITIGATING FACTORS, AND ONLY ONE NEGLIBLE AGGRAVATING FACTOR, BUT DETERMINED THE ASSIGNMENT JUDGE HAD LEFT HER "NO CHOICE." THIS COURT SHOULD REMAND TO THE PRESIDING JUDGE FOR A QUALITATIVE ANALYSIS NOT BOUND BY THE ASSIGNMENT JUDGE'S PRONOUNCEMENT OF SENTENCE WITHOUT A HEARING. . . . POINT IV ALTERNATIVELY, THIS COURT SHOULD REMAND TO THE ASSIGNMENT JUDGE, WHO ALSO ERRED, WHEN SENTENCING [DEFENDANT] ON THE PAPERS, BY (1) MISINTERPRETING N.J.S.A. 2C:43-6.2, (2) FAILING TO FIND THREE MITIGATING FACTORS SUBSEQUENTLY FOUND BY THE PRESIDING JUDGE, AND (3) ENGAGING IN DISPARATE TREATMENT. . . . 5 A-0459-16T3 II. We turn first to defendant's contention that the trial court erred by denying his motion for admission to PTI. He contends the prosecutor's decision was a patent and gross abuse of discretion. We disagree. PTI is a "diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior." State v. Roseman, 221 N.J. 611, 621 (2015) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). Acceptance into PTI is dependent upon an initial recommendation by the CDM and the prosecutor's consent. Ibid. "The assessment of a defendant's suitability for PTI must be conducted under the Guidelines for PTI provided in Rule 3:28, along with consideration of factors listed in N.J.S.A. 2C:43-12(e)." Ibid. The decision to admit a defendant to PTI is a "quintessentially prosecutorial function." Id. at 624 (citing State v. Wallace, 146 N.J. 576, 582 (1996)). Therefore, the prosecutor's decision to grant or deny a defendant's PTI application is entitled to great deference. Ibid. (citing State v. Leonardis, 73 N.J. 360, 381 (1977)). A trial court may overrule a prosecutor's PTI determination only when the circumstances "clearly and convincingly establish that the prosecutor's refusal 6 A-0459-16T3 to sanction admission into the program was based on a patent and gross abuse of . . . discretion." Id. at 624–25 (quoting Wallace, 146 N.J. at 582). To establish a patent and gross abuse of discretion, a defendant must show that the prosecutor's decision "(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgement" and that "the prosecutorial error complained of will clearly subvert the goals underlying [PTI]." Id. at 625 (citing State v. Bender, 80 N.J. 84, 93 (1979)). The prosecutorial decision must be "so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." Wallace, 146 N.J. at 583 (quoting State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985)). Here, Judge Nelson correctly found that the prosecutor's decision to deny defendant's application for admission to PTI was not a patent and gross abuse of discretion. The judge noted that Guideline 3(i)(3) provided, among other things, that a defendant charged with a second-degree offense ordinarily should not be considered for enrollment in PTI. Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 3:28 (2018); see also Roseman, 221 N.J. at 622. The guideline creates a "presumption against 7 A-0459-16T3 acceptance" into PTI. State v. Watkins, 193 N.J. 507, 520 (2008) (quoting State v. Baynes, 148 N.J. 434, 442 (1997)). To overcome the presumption, the defendant must present "compelling reasons" for admission to PTI. Ibid. (quoting Nwobu, 138 N.J. at 252). Here, defendant was charged with possession of a handgun, which is a second-degree offense, and he failed to show compelling reasons for his admission to PTI. Defendant argues, however, that the prosecutor failed to consider all relevant factors in evaluating his eligibility for PTI. Although the assistant prosecutor did not discuss all seventeen factors in the decision denying PTI admission, the court must "presume that a prosecutor considered all relevant factors, absent a demonstration by the defendant to the contrary." State v. Waters, 439 N.J. Super. 215, 233 (App. Div. 2015) (quoting Wallace, 146 N.J. at 584). Defendant did not rebut that presumption. Thus, the trial court properly found that the "prosecutor and the criminal division [considered] all of the [appropriate] factors." Defendant further argues that the assistant prosecutor relied on inappropriate factors in denying his application. The State acknowledges that the assistant prosecutor and CDM erroneously alluded to defendant's dismissed charges in their respective decisions. However, the error was harmless. As the judge noted in 8 A-0459-16T3 his decision, in denying admission to PTI, the assistant prosecutor had not relied on defendant's prior criminal record. Indeed, the judge stated that this was defendant's first offense and presumably his first arrest. The judge found that the prosecutor had properly given weight to factor one (the nature and circumstances of the offense). N.J.S.A. 2C:43-12(e)(1). As stated previously, unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b)(4), is a second- degree offense. The judge also found that the prosecutor properly considered factor two (the facts specific to this case). N.J.S.A. 2C:43-12(e)(2). The judge noted that defendant had been carrying a loaded gun on the street in Jersey City. Defendant did not have a permit allowing him to possess the weapon. The judge further found that the prosecutor had properly considered factors seven (the needs and interests of the victims and society); fourteen (the nature of the crime and whether the value of supervisory treatment would be outweighed by the public need for prosecution); and seventeen (the harm done to society by abandoning criminal prosecution). N.J.S.A. 2C:43-12(e)(7), (14), and (17). The record supports the judge's findings. Defendant also argues that the assistant prosecutor erred by relying upon factor ten (whether defendant was charged with a violent offense), N.J.S.A. 2C:43-12(e)(10). He argues that the 9 A-0459-16T3 failure to get a license to possess a handgun is not a violent act. He notes that the State has not alleged he used the weapon, and no individual was shot or threatened with the gun. As the trial court recognized, however, possession of a loaded weapon on the streets in Jersey City created a danger that members of the public may be harmed. Even if the prosecutor erred by considering this factor, the decision to deny defendant admission to PTI is amply justified by the other factors that the prosecutor relied upon. We are therefore convinced that the trial court correctly determined that the prosecutor's decision to deny defendant's application for admission to PTI was not a patent and gross abuse of discretion. We affirm the court's order denying defendant's motion. III. Defendant contends he was denied due process because Judge Bariso decided his motion for a probationary sentence without a hearing. Defendant contends he had the right to be present and to be heard when the judge ruled on the motion. The Graves Act was enacted as "a direct response to a substantial increase in violent crime in New Jersey," and provides for the imposition of a mandatory minimum term of incarceration and parole ineligibility for an offender "who uses or possesses a 10 A-0459-16T3 firearm while committing, attempting to commit, or fleeing after the commission of certain designated crimes." State v. Nance, 228 N.J. 378, 384, 390 (quoting first State v. Des Marets, 92 N.J. 62, 68 (1983); then State v. Robinson, 217 N.J. 594, 607 (2014)). The mandatory minimum term is "fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater . . . during which the defendant shall be ineligible for parole." N.J.S.A. 2C:43-6(c). However, N.J.S.A. 2C:43-6.2 provides that when a defendant has not been previously convicted of a Graves Act offense, and the statutory mandatory minimum term "does not serve the interests of justice," the prosecutor may move before the assignment judge for imposition of a one-year mandatory minimum term or a probationary term. The prosecutor retains the discretion to decide whether to seek the waiver and may argue in favor of either sentence. Nance, 228 N.J. at 389. Moreover, "nothing in the statute suggests that the assignment judge or designee must accept the prosecutor's recommendation." Ibid. If the State has not sought the Graves Act exception, the defendant may not simply "challenge the prosecutor's decision in a conclusory manner." State v. Alvarez, 246 N.J. Super. 137, 148 (App. Div. 1991). The defendant "must make a showing of arbitrariness constituting an unconstitutional discrimination or 11 A-0459-16T3 denial of equal protection constituting a 'manifest injustice,' and should be required to do so by moving papers designed to convince the [a]ssignment [j]udge that any kind of hearing on the issue is warranted." Ibid. (citing R. 3:21-10(c)). A hearing will be conducted only if the assignment judge, "after review of the materials submitted with the motion papers, concludes that a hearing is required in the interests of justice." Ibid. Thus, "a hearing need not be conducted on every application before the assignment judge." State v. Mastapeter, 290 N.J. Super. 56, 64-65 (App. Div. 1996). In this case, the State agreed to waive the mandatory minimum term required by N.J.S.A. 2C:43-6(c), but did not agree to a probationary sentence. As we have explained, in the plea agreement, the State agreed to recommend a five-year custodial term with one- year of parole ineligibility. Defendant then filed a motion seeking a probationary sentence. The State and defendant presented their arguments to the court in written submissions, and the Assignment Judge made his decision based on those submissions. On appeal, defendant argues that the judge's decision on the waiver motion was essentially a sentencing proceeding and he had a constitutional right to be present and to be heard before the judge decided the motion. He argues the judge erred by failing to conduct a hearing on the motion. 12 A-0459-16T3 The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee a defendant's right to be present at trial. State v. Tedesco, 214 N.J. 177, 189 (2013) (citing U.S. v. Gagnon, 470 U.S. 522, 526 (1985)). Moreover, Rule 3:16(b) states that "[t]he defendant shall be present at every stage of the trial . . . and at the imposition of sentence, unless otherwise provided by Rule." In addition, Rule 3:21-4(b) provides that a "[s]entence shall not be imposed unless the defendant is present or has filed a written waiver of the right to be present. Before imposing sentence the court shall address the defendant personally." A decision on a motion to the assignment judge under N.J.S.A. 2C:43-6.2 is not, however, a proceeding during which the sentence is imposed. Indeed, in Nance, the Court distinguished between the role of the assignment judge or designee in deciding the Graves Act waiver motion, and the role of the sentencing court in imposing the sentence. Nance, 228 N.J. at 394-97. The Court noted that under N.J.S.A. 2C:43-6.2, the assignment judge or designee is authorized to decide if the defendant will be sentenced to a probationary term or a term of incarceration with one year of parole ineligibility. Id. at 393–94. The sentencing court is not authorized to choose between the two statutory alternatives. Id. at 394. The Court explained that "[t]he 13 A-0459-16T3 sentencing court's task is to devise a sentence that comports with the assignment judge's ruling and the sentencing provisions of the Code." Ibid. The Court stated that the sentencing court "may impose the sentence recommended by the State under the plea agreement, [but] it is not required to do so." Ibid. The Court added that after the assignment judge or designee has decided the motion under N.J.S.A. 2C:43-6.2, "the sentencing court, applying N.J.S.A. 2C:44-1 and other pertinent provisions of the Code, exercises its discretion to weigh the aggravating and mitigating factors and determine the remaining terms of the sentence." Id. at 397. Thus, the assignment judge's decision on the waiver motion is not the proceeding in which the sentence is imposed. Moreover, N.J.S.A. 2C:43-6.2(c) does not require a hearing on a waiver motion unless the assignment judge or designee determines that a hearing is required in the interests of justice. Here, Judge Bariso did not abuse his discretion by finding that a hearing was not required on defendant's motion. Furthermore, defendant was present and exercised his right of allocution at the sentencing hearing before Judge Venable on August 25, 2015. We conclude defendant was not denied his constitutional right to be present when his sentence was imposed. 14 A-0459-16T3 IV. Defendant further argues that we should remand the matter to the Assignment Judge for reconsideration of his decision on the waiver motion. Defendant contends the judge erred by noting in his decision that defendant had been charged with a second-degree offense, "which directly implicates the presumption of incarceration under N.J.S.A. 2C:44-1(d)." Defendant argues that in N.J.S.A. 2C:43-6.2, the Legislature "plainly intended" to give the court "meaningful discretion" and the statute creates a specific exemption to the "inflexible presumption" of incarceration in N.J.S.A. 2C:44-1(d). However, in Nance, which was decided after defendant filed his brief on appeal, the Court expressly rejected this contention. The Court held that "[t]he presumption of incarceration set forth in N.J.S.A. 2C:44- 1(d) should apply when an assignment judge or his or her designee chooses between" the alternative sentences in N.J.S.A. 2C:43-6.2. Nance, 228 N.J. at 397. Next, defendant argues that Judge Bariso erred because he did not find three "important" mitigating factors later found by the sentencing judge. Here, Judge Bariso found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The judge found only mitigating factor 15 A-0459-16T3 seven, N.J.S.A. 2C:44-1(b)(7) (defendant has no prior history of delinquency or criminal activity). Judge Bariso considered and rejected the other mitigating factors, including mitigating factors eight, N.J.S.A. 2C:44- 1(b)(8) ("defendant's conduct was the result of circumstances unlikely to recur"); and nine, N.J.S.A. 2C:44-1(b)(9) (defendant's "character and attitude . . . indicate that he is unlikely to commit another offense"). In his opinion, the judge stated: In regards to factor eight, . . . the defense merely states that this was the first time that [defendant] handled a firearm. However, there is no other evidence provided to show that his actions were the result of a unique set of circumstances that are unlikely to reoccur. Moreover, [defendant's] untruthfulness with law enforcement demonstrates a lack of responsibility, accountability, and lack of remorse or appreciation for his conduct. [Defendant] also cannot claim that [his] character and attitude . . . indicate that he is unlikely to commit another offense in accordance with factor nine. The defense has not presented any evidence to show that [defendant] has taken steps to avoid reoffending. Additionally, no employment history or educational background were provided. At sentencing, Judge Venable found aggravating factor nine, and mitigating factors seven, eight, and nine. She also noted the non-statutory factor of remorse. Defendant contends the matter should be remanded and Judge Bariso ordered to reconsider his decision in light of the sentencing court's findings. We disagree. 16 A-0459-16T3 Here, there is sufficient credible evidence to support Judge Bariso's findings on the aggravating and mitigating factors. The judge need not reconsider his decision on the waiver motion based on the subsequent findings of the sentencing judge. Moreover, the aggravating and mitigating factors must be weighed qualitatively, not quantitatively. State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Fuentes, 217 N.J. 47, 72–73 (2014)). The record shows that Judge Bariso weighed the aggravating and mitigating factors appropriately. In addition, defendant argues that in denying his motion for a probationary sentence, the Assignment Judge treated him differently from a similarly-situated defendant. In support of this contention, defendant relied upon an unpublished opinion of this court, in which the defendant had been charged with second- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(d); second-degree possession of a weapon for an unlawful purpose; N.J.S.A. 2C:39-4(a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2). State v. Tanco-Brito, No. A-4218- 13 (App. Div. 2015) (slip op. at 2, n.1) 17 A-0459-16T3 The defendant in Tanco-Brito was tried before a jury and found guilty of second-degree unlawful possession of a weapon, and not guilty on the other charges. Id. at 3. Judge Bariso downgraded the conviction to a third-degree offense for sentencing purposes and granted the defendant's motion to waive the mandatory-minimum term required by N.J.S.A. 2C:43-6(c). Ibid. The judge decided that the defendant should be sentenced to a three-year term of probation. Ibid. The State appealed and we affirmed. Id. at 2–3. In this case, Judge Bariso found that defendant was not similarly-situated to the defendant in Tanco-Brito. The judge noted, defendant had the benefit of a plea agreement, whereas the defendant in Tanco-Brito was tried on numerous charges. Id. at 2, n.1. In addition, defendant pled guilty to a second-degree offense, and the conviction in Tanco-Brito was downgraded to a third-degree offense for sentencing purposes. Id. at 3. The record supports the judge's rejection of defendant's claim of disparate sentencing. Affirmed. 18 A-0459-16T3

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Docket No.: a1493-15
Decided: 2018-02-15
Caption: STATE OF NEW JERSEY v. WALLY NANCE
Status: unpublished
Summary:
PER CURIAM Following the denial of his motion to suppress his statement to employees of the Department of Labor investigating his claim for unemployment benefits, defendant Wally Nance was convicted by a jury of one count of third-degree theft by deception, N.J.S.A. 2C:20-4(a). Defendant was sentenced to 364 days in the county jail, ninety days to be served immediately on the weekends, with the remainder to be served at the end of his five years' probation. Defendant was also ordered to pay $16,000 in restitution on a five-year payment plan. Defendant appeals, raising the following issues: POINT I. THE COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE BY STRIKING CERTAIN TESTIMONY IN SUCH A WAY AS TO MAKE DEFENDANT APPEAR UNTRUTHFUL AND AS AN INFERIOR WITNESS; THIS ERROR WAS EXACERBATED BY THE JURY INSTRUCTIONS AND THE PROSECUTOR'S STATEMENTS. (Partially Raised Below). He adds the following points in a pro se brief: POINT I. APPELLANT'S CONFESSION WAS INADMISSIBLE BECAUSE IT WAS NOT VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY GIVEN AND VIOLATED APPELLANT'S FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE NEW JERSEY AND THE UNITED STATES CONSTITUTION. 2 A-1493-15T2 POINT II. THE TRIAL JUDGE'S VIOLATION OF THE RULES OF EVIDENCE VIOLATED THE APPELLANT'S CONSTITUTIONAL RIGHTS. Having considered defendant's arguments in light of the facts and the applicable law, we affirm. The facts presented to the jury were not complicated. Following the end of his employment by the City of Trenton after twenty-five years, defendant applied for unemployment benefits in January 2011. He began receiving benefits in the second week of June. In the middle of July, he got a job with R.M. Nizzardi, Inc., a plumbing contractor. He did not, however, advise the Department of Labor. The Department only learned of defendant's reemployment when Nizzardi filed a "new hire" report in August. Upon receiving Nizzardi's report, the Department of Labor placed a hold on defendant's unemployment benefits. Defendant, however, told a representative of the Department on the telephone that he had not yet started work for Nizzardi, and the hold was lifted. Defendant started reporting the wages he was earning at Nizzardi in September 2011, and continued to do so into May 2012. In July 2012, another hold was placed on defendant's account. After learning of the hold, defendant went to the Department of Labor and asked to speak to someone about his 3 A-1493-15T2 benefits. Defendant met with an investigator, who initiated an inquiry into the claim. The investigator asked Nizzardi for defendant's weekly wages. Nizzardi provided the investigator with a report of defendant's weekly wages based on the timecards defendant completed each week reporting his hours. A comparison of Nizzardi's documents to the Department's records of defendant's reported wages made clear defendant was omitting and underreporting his earnings. When defendant went again to the Department to discuss his claim after receiving the Department's summary fact-finding notice, he was greeted by the investigator and two supervisors. Their meeting, in a small, windowless conference room with the door closed, was recorded on a tape machine in the room. The investigators told defendant they were there to discuss what happened and to make a determination "as to the overpayment that is going to be coming back to the State of New Jersey." Defendant immediately asked if he needed a lawyer. One of the senior investigators replied, "Nah, you don’t need a lawyer," but quickly added, "I mean, it's up to you. You are entitled to representation." After defendant said, "nah, it's, nah I just want to get this [over]," he proceeded to make several incriminating statements. Defendant acknowledged the 4 A-1493-15T2 underreporting, but claimed he was unfamiliar with the reporting requirements, got bad or incomplete advice from the local unemployment office and was placed in a difficult financial situation when the Department delayed almost six months before starting his benefits. Defendant explained the delay in his receipt of benefits left him "in a situation where I'm just about to lose my home ok so whatever I needed to do, whatever I had to do, I had to do, ok and you know and however you know you, y'all want to put it together." Defendant also told the investigators he was "taking full responsibility for it and I'm saying yes, yes whatever ya know whatever it is, it is what it is and I take full responsibility of it." Following a N.J.R.E. 104 hearing, the court denied defendant's request to suppress the statement, finding defendant not in custody and the statement clearly voluntary. The statement figured prominently at trial. The prosecutor referred to it in his opening, played it for the jury in the course of the State's case in chief and replayed bits of it in his summation. Through witnesses from Nizzardi and the Department of Labor, the State presented proof that defendant was overpaid $15,548 in unemployment benefits over the course of twenty-seven weeks. 5 A-1493-15T2 Defendant testified in his own behalf. In response to questions by his counsel, defendant was unable to say when he began receiving unemployment benefits or when he started work for Nizzardi, and did not know whether he had begun receiving his benefits by that time. Defendant also could not say how many hours he worked per week for Nizzardi and could only estimate that he might have worked for the company for six or seven months. He claimed it was not he but his wife who called every two weeks to report his earnings. Defendant maintained he did not fail to report his employment with Nizzardi or how much he earned in wages. When confronted on cross-examination with the Department of Labor's records showing the underreporting, defendant claimed the records failed to show he "paid over $10,000 back." The prosecutor moved to strike, saying, "There's absolutely no evidence of that in this case." The court granted the motion and told the jury it was not to consider the statement. A few minutes later, defendant again testified he paid back the money. Becoming emotional, defendant said, You don't see that. I paid back into it. I set up a payment, and I paid back into it. They gave me a suspension. They told me to pay it back. They told me even put a fine. And you know what I said, whatever it is, I'll take it, because you know what, whatever I need to do to protect my family, 6 A-1493-15T2 I'm going to do it. But to tell me I'm a criminal, that's just wrong. After defendant continued into other areas he had been repeatedly advised not to mention before the jury having to do with a separate indictment, the judge ordered a break to permit defendant to compose himself. After the trial reconvened, defendant returned again to the topic of repayment, saying, "You asked me pay the money back. I set up a payment plan. I paid the money back." The judge responded, saying "Mr. Nance, Mr. Nance, please. Please lower your voice. . . . I've addressed that. . . . And so the payment plan, it's stricken from the record. There is no evidence about the payment plan." On the last exchange in the cross, defendant testified the investigators told him if he made payment he would not be prosecuted, "and now I'm being prosecuted." After defendant rested, the State requested a curative instruction on the issue of repayment, claiming there was no proof defendant repaid any monies voluntarily. The prosecutor claimed any sums defendant repaid were either withheld from other benefits or were court-ordered while defendant was enrolled in the Pre-trial Intervention Program, which he could not address with defendant on cross examination given the 7 A-1493-15T2 obvious prejudice of discussing his participation in PTI.1 Noting the several times defendant returned to the topic even after the court struck the testimony, the prosecutor claimed the jury "has now been left with the thought that somehow Mr. Nance has come up with $10,000 and repaid the State of New Jersey, and now the big bad State is going after him again for some unknown reason." Defendant's counsel expressed the view that a curative instruction was not necessary. The judge explained he struck the testimony regarding repayment because [t]heft by deception occurs when one obtains the property of another by creating a false impression. It's purposeful conduct, and the State has alleged that the Defendant has created the false impression that he was [un]employed at various [times]. His efforts to compensate at a later date does not really have anything to do with his state of mind at the time he allegedly gave that false impression. The Defendant's restitution in this matter or repayment commenced well after the offense, the alleged offense had been committed. In addition, his repayment was ordered by PTI. There was really no choice in the matter. Therefore, any evidence as to his 1 Defendant was admitted into PTI and remained in the Program for a year before voluntarily withdrawing without completing it. The prosecutor represented the initial amount defendant was deemed to owe to the Department of Labor was $23,970, which was reduced subsequently by benefits withheld. The prosecutor claimed defendant was ordered to repay the State $18,890 in PTI. At trial, the State claimed defendant was overpaid $15,548. 8 A-1493-15T2 restitution or repayment is not relevant to his state of mind or to offset any type of intent at the time the alleged offense was committed. Additionally, the State is entitled to criminally prosecute the Defendant for his crime whether or not he decided to pay it back at a later date or not. It does not touch upon the issues of the Court, and I believe it improperly focuses attention on the Defendant's subsequent efforts to repay the debt, and it's just not proper. Following that discussion, the judge delivered two "curative" instructions to the jury, the first at the request of defendant and the second at the request of the State. They were as follows: And I would like to address two matters concerning testimony you may have heard in this case. During this case, you may have heard testimony from Department of Labor witnesses that the Department of Labor made certain determinations in this case with regard to fraud or penalty. I direct you, I further direct you, that you are in no way to consider in your deliberations any determination in this case by the Department of Labor with regard to fraud or the penalty. In addition, the Defendant in this matter testified that he repaid a portion of his employment benefits to the State. Immediately after I provided — he provided such testimony, I ordered it stricken from the record and instructed you to disregard it. I would like to repeat that instruction. His testimony concerning repayment is stricken. It is not evidence and shall not enter into your final deliberations. It must be disregarded by 9 A-1493-15T2 you. This means that even though you may remember the testimony, you are not to use it in your discussions or deliberations. We reject defendant's argument that the court's decision to strike his testimony regarding the repayment of benefits was error or that it deprived him of a meaningful opportunity to present a complete defense. "A defendant in a criminal trial has a Sixth Amendment right to offer any evidence that refutes guilt or bolsters a claim of innocence." State v. Harris, 156 N.J. 122, 177 (1998). The right to present a defense, "[a]lthough fundamental, . . . is not absolute." State v. Jenewicz, 193 N.J. 440, 451 (2008). "The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Ibid. (quoting Montana v. Egelhoff, 518 U.S. 37, 42 (1996)). Defendant claims his "defense was that any underreporting on his part was negligent, not intentional or criminal" and that his "willing[ness] to pay the money back upon realizing his mistakes" was relevant to prove his errors were unintentional. We accept that conduct occurring after a charged offense may circumstantially support an inference about a defendant's state of mind, and that such evidence might be offered to show the defendant's conduct was not intentional. See State v. Williams, 10 A-1493-15T2 190 N.J. 114, 125 (2007). To the extent the proffered evidence, limited to defendant's willingness to repay the funds, was probative of his state of mind, however, it was cumulative of similar statements defendant made to the investigators, which were played for the jury. But the statements excluded went beyond merely expressing a willingness to return any overpayment. Defendant attempted to testify, not only that he was willing to repay the money, but that he paid back $10,000, and the State was prosecuting him anyway. The State argued that testimony was misleading because defendant's repayment was not voluntary. The State maintained it recouped monies overpaid to defendant by withholding other benefits due him and from payments defendant was ordered to make as a condition of PTI. Defendant did not dispute that assertion at trial. We agree that any such payments were not probative of a "willingness" to repay if not made voluntarily. Further, involuntary payments do not make it more likely defendant's conduct in obtaining the funds was negligent and not intentional. We also agree the State was limited in attacking the testimony on cross-examination because of the prejudice to defendant in discussing his participation in PTI. Accordingly, the evidence, even if deemed relevant, was properly excluded 11 A-1493-15T2 under N.J.R.E. 403(a) because its probative value was substantially outweighed by the risk of undue prejudice, confusion of issues and misleading the jury. We accordingly do not find the trial judge abused his considerable discretion in excluding defendant's testimony that he repaid monies to the State. See State v. Cole, 229 N.J. 430, 449 (2017). We do not agree the judge's instruction striking the testimony was in any way prejudicial to defendant, see State v. Tilghman, 385 N.J. Super. 45, 60 (App. Div. 2006), or that the "curative" instruction, considered in the context of the entire charge, was error. See State v. McKinney, 223 N.J. 475, 497 (2015). At the same time the judge told the jury it was to disregard any evidence of repayment to the State, he also advised them to disregard any statements by the investigators at the Department of Labor referring to fraud or penalty. We see no prejudice to defendant. We find no error in the prosecutor's remarks in summation. The prosecutor's argument was based on the facts in the record, indeed, defendant's own words, and the reasonable inferences to be drawn therefrom. See State v. Timmendequas, 161 N.J. 515, 594 (1999). Defense counsel made no objection to the remarks, leading us to infer he did not find them prejudicial. See State v. Irving, 114 N.J. 427, 444 (1989). Having examined the entire 12 A-1493-15T2 record, we are satisfied "it was the weight of the evidence, particularly the damning statements uttered by defendant himself, that led to this . . . conviction rather than the prosecutor's . . . comments." See Timmendequas, 161 N.J. at 596 (quoting State v. Feaster, 156 N.J. 1, 63-64 (1998)). Finally, we reject defendant's argument that the judge erred in admitting his statement to the Department of Labor investigators. There is no dispute that defendant was not in custody when he made his recorded statement to the investigators. The investigators thus had no obligation to provide him with Miranda2 warnings or to terminate the questioning when defendant asked whether he should get a lawyer. See State v. P.Z., 152 N.J. 86, 121 (1997) (finding "no basis to require [Division of Youth and Family Services] caseworkers to give Miranda warnings or afford a right to counsel during non- coercive, non-custodial interviews of parents subject to Title Nine investigations" and no constitutional or other basis on which to hold the statement inadmissible). There is no indication in the record that the investigators interviewed defendant with the purpose of aiding in this criminal prosecution, which had yet to be instituted. Id. at 120. 2 Miranda v. Arizona, 384 U.S. 436 (1966). 13 A-1493-15T2 To the extent we have not addressed them, defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). Affirmed. 14 A-1493-15T2

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Docket No.: a2007-16
Decided: 2018-02-15
Caption: STATE OF NEW JERSEY v. MICHAEL T. HUDSON
Status: unpublished
Summary:
PER CURIAM Defendant Michael Hudson appeals from an October 7, 2016 order denying his petition for post-conviction relief without an evidentiary hearing. We affirm because defendant's petition was untimely filed. On October 23, 2006, defendant pled guilty to an accusation charging him with second-degree sexual assault, N.J.S.A. 2C:14- 2(c)(4), in exchange for a recommendation that he be sentenced as a third-degree offender to a four-year flat prison term. Defendant signed or initialed each page of the plea forms, including a form entitled "Additional Questions for Certain Sexual Offenses," which confirmed he understood he would be subjected to specified registration, address verification, parole supervision for life (PSL), and internet posting requirements of Megan's Law, N.J.S.A. 2C:7-2. At the plea hearing, defendant testified he could read, write, and understand English. He indicated he understood the nature of the second-degree charge, which arose from consensual sexual intercourse with a younger girl. He stated he understood his sentencing exposure and the recommended sentence. He testified he was satisfied with his trial counsel's services, had enough time to talk to counsel, was entering the plea freely and voluntarily, without force or threats being made against him, and was waiving his right to an indictment and jury trial and the rights associated with same. Defendant further testified he understood he would be required to undergo a psychological 2 A-2007-16T4 evaluation to determine whether his conduct was repetitive and compulsive. Defendant testified he understood he would be required to register under Megan's Law and would be placed on PSL, his attorney had explained it to him, he had answered all the questions on the plea forms with regard to Megan's Law and PSL, and he had no questions at all. He also confirmed he had no questions about the plea forms and had no reservations about entering into the plea. Defendant then gave a factual basis for his plea, admitting to having sexual intercourse with the female victim who was between thirteen and sixteen years old while defendant was at least four years older than her. He again confirmed he had no questions. In addition to finding defendant entered into the plea freely and voluntarily, the judge found defendant understood the parameters of the plea bargain, understood he had pled guilty to a Megan's Law offense, understood he could be charged with an offense punishable by up to eighteen months incarceration if he failed to register, and understood he was subject to PSL and all other aspects of Megan's Law. On March 17, 2007, defendant was sentenced to a four-year flat prison term, subject to Megan's Law and PSL, in accordance with the recommendation. Before imposing the sentence, the judge stated defendant was "going to be under parole supervision for 3 A-2007-16T4 life." After imposing the sentence, the judge told defendant: "You are also subject to all of the terms of Megan's Law requiring registration." Defendant's reply indicated he was aware of that requirement and understood he could seek relief from that requirement after ten years. The judge reiterated: "And you're also subject to parole supervision for life." Defendant responded: "Understood." The judge further informed defendant: My understanding is also that, as far as the Megan's Law requirements, that will include registration with local law with local law enforcement, address notification, and notification of release from prison. And, the parole supervision for life now includes that your personal characteristics will be posted on the internet according to the information I have. The judge reminded defendant: "But remember, your parole supervision is lifetime, okay?" The judge then stated this was another reason she was accepting the plea bargain, "because he will be dealing with this for the rest of his life." Defendant did not move to withdraw his plea either before or after sentencing. Nor did he file a direct appeal from his conviction or sentence. Defendant was released from prison on April 17, 2009. He subsequently committed several PSL violations. On August 18, 2009, defendant was sentenced to a one-year prison term for violating PSL and was released on August 17, 2010. On April 16, 4 A-2007-16T4 2012, he was sentenced to a fourteen-month prison term for a second violation of PSL and was released on October 15, 2013. On November 26, 2013, defendant was sentenced to a sixteen-month prison term for a third violation of PSL and was released on March 25, 2013. On May 6, 2015, defendant was sentenced to an eighteen-month prison term for a fourth violation of PSL. Defendant's petition arises from his March 16, 2007 conviction for second-degree sexual assault. Defendant filed his petition on September 16, 2015, more than eight years after he was convicted, and was assigned PCR counsel. In his petition, defendant claimed ineffective assistance of counsel, alleging his attorney failed to advise him of the specific requirements of PSL and, therefore, his sentence was illegal. He also argued his petition was not time-barred because he only became aware of the procedural requirements for filing a petition after he learned of the ramifications of PSL. Judge James M. Blaney issued a comprehensive fourteen-page written decision denying defendant's petition. Judge Blaney held the petition was time-barred by Rule 3:22-12(a), finding defendant had not established excusable neglect. The judge concluded that "[t]he fact that [p]etitioner did not know the law regarding time to file is not an exceptional circumstance compelling enough to constitute excusable neglect to allow [p]etitioner to file after 5 A-2007-16T4 the five-year period; therefore, [p]etitioner's claim is time- barred pursuant to [Rule] 3:22-12(a)." The judge further concluded there would be substantial prejudice to the State if defendant were granted PCR. The judge also noted defendant did not assert a colorable claim of innocence. Addressing the merits of the petition, the judge determined defendant's trial counsel "was not ineffective because the [c]ourt finds that [p]etitioner was informed of the consequences of PSL, and would not have proceeded to trial anyway." This appeal followed. Defendant presents the following argument for our consideration: POINT ONE MR. HUDSON IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL. POINT TWO THE PCR COURT ERRONEOUSLY RULED THAT MR. HUDSON'S PETITION WAS TIME BARRED BECAUSE ANY DELAY IN FILING THE PETITION WAS DUE TO EXCUSABLE NEGLECT AND THERE IS A REASONABLE PROBABILITY THAT IF THE DEFENDANT'S FACTUAL ASSERTIONS WERE FOUND TO BE TRUE, ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE. POINT THREE MR. HUDSON INCORPORATES THE OTHER ARGUMENTS RAISED BELOW THAT WERE RULED ON BY THE PCR COURT, ASKING THIS COURT TO FIND THAT THE PCR COURT ERRED AND THAT HE IS ENTITLED TO RELIEF. 6 A-2007-16T4 Having reviewed the record on appeal, we affirm substantially for the reasons expressed by Judge Blaney in his comprehensive and well-reasoned written decision. We add the following comments. To demonstrate ineffective assistance of counsel, a defendant must satisfy the two-part Strickland test by demonstrating "counsel's performance was deficient," that is, "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for 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). Merely raising 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). A court reviewing a PCR petition based on ineffective assistance of counsel has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing. State v. Preciose, 129 N.J. 451, 462 (1992). 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 supported by "specific facts 7 A-2007-16T4 and evidence supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013). In order to establish a prima facie case, a defendant's petition must satisfy the time limits for filing a claim. See State v. Echols, 199 N.J. 344, 357 (2009). Rule 3:22-12(a)(1) requires a defendant's first petition for PCR be filed no more than five years after the entry of the judgment of conviction. However, Rule 3:22-12(a)(1)(A) allows a court to relax the five- year time bar if the petition alleges facts showing the delay was due to defendant's excusable neglect and there is a reasonable possibility that, if defendant's factual assertions were found to be true, enforcement of the time-bar would result in a fundamental injustice. "The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). "[A] court should relax Rule 3:22-12's bar only under exceptional circumstances." State v. Mitchell, 126 N.J. 565, 580 (1992). "If the petitioner does not allege sufficient facts, the Rule bars the claim." Id. at 576. A defendant's unfamiliarity or lack of sophistication in the law does not satisfy the exceptional circumstances required by Mitchell. See State v. Murray, 162 N.J. 240, 246 (2000). Thus, neither misunderstanding 8 A-2007-16T4 the meaning of Rule 3:22-12, State v. Dugan, 289 N.J. Super. 15, 22 (App. Div. 1996), nor ignorance of the law and rules of court, State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002), constitutes excusable neglect. Here, the judgment of conviction was entered on April 17, 2009, and defendant's first and only PCR was filed over eight years later on September 16, 2015. The record amply supports Judge Blaney's conclusion that defendant has not demonstrated excusable neglect for not raising his claim within five years of his conviction. The time-bar imposed by Rule 3:22-12(a)(1) does not apply to claims of illegality of sentence. Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 3:22-12 (2018). Relief from an illegal sentence is by motion pursuant to Rule 3:21-10(b)(5), which may be filed "at any time." Defendant argues his sentence is illegal because PSL violates the double jeopardy clause, imposes conditions that are unconstitutionally vague, and violates the separation of powers doctrine. These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 9 A-2007-16T4

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Docket No.: a2208-16
Decided: 2018-02-15
Caption: SEAN TURANICZA v. CLAUDIA KERMAN
Status: unpublished
Summary:
PER CURIAM On April 7, 2012, nineteen-year old Sean Turanicza (Sean)1 tragically passed away from a methadone overdose with a contributing factor of bronchopneumonia. In this appeal, plaintiff Nancy Turanicza, the administratrix ad prosequendum of her son Sean's estate, appeals from a December 21, 2016 Law Division order granting the summary judgment dismissal of the complaint she filed against defendants, Claudia Kerman and her mother, Ellen Kerman-Gilbert. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm. I We derive the following facts from the summary judgment record, viewed in the "light most favorable to plaintiff[], the non-movant[] . . . ." Schiavo v. Marina Dist. Dev. Co., 442 N.J. Super. 346, 366 (App. Div. 2015) (citation omitted). On April 6, 2012 at approximately 11:30 p.m., Claudia received a phone call from her friend asking if Sean could sleep at Claudia's home because his parents had "kicked [him] out." Ellen 1 For ease of reference, we refer to Sean and defendants by their first names; we refer to Sean's mother as plaintiff. 2 A-2208-16T1 granted permission for the sleepover, and Sean arrived at defendants' home around midnight on April 7, 2012. Following his arrival, Sean and Claudia entered Claudia's bedroom and "watch[ed] some TV" until they fell asleep soon thereafter — between 12:30 a.m. and 1:00 a.m. At around 2:30 a.m., Sean's "loud snoring" woke up Claudia. Claudia called out Sean's name "a few times to try and wake him up," and then tried "shov[ing] him a little bit, like [a] nudge;" nevertheless, Sean continued to sleep. Assuming he was "in a deep sleep," Claudia returned to sleep herself. Claudia testified she next awoke at noon. At that time, Sean was "faint[ly] breathing," but unresponsive. Claudia tried to wake Sean by "nudging him," "calling out [to] him," and "spill[ing] some water" on his face; however, these efforts proved unsuccessful, so she called out for her mother. Ellen then attempted CPR for five to ten minutes;2 she called 9-1-1 after Sean failed to respond and began "foaming at the mouth." Contrary to her deposition testimony, on the day of the incident, Claudia told police she awoke at approximately 11:00 2 Ellen had been previously licensed as a certified nursing assistant and had also studied towards becoming a registered nurse. Prior to this incident, however, she had never performed CPR outside of her training. 3 A-2208-16T1 a.m.; at that time, plaintiff "was making noises. . . . [and he] was not cold or clammy, [but] his hair and head were sweaty." Claudia further told police that, after calling out for her mother, she and her mother then "tried to get [Sean] into the bathroom," prior to Ellen calling 9-1-1. Upon arrival, emergency personnel performed life-saving efforts but terminated those efforts after approximately fifteen minutes. They transported Sean to Beth Israel Hospital, where he was pronounced dead at 12:58 p.m. A doctor discovered a prescription bottle that contained methadone pills inside plaintiff's underwear waistband. The medical examiner determined plaintiff's death was an accident caused by the "adverse effect of methadone and THC, [with] a contributory factor [of] acute bronchopneumonia." Following Sean's death, a detective with the Jackson Township Police Department interviewed Sean's brother's girlfriend. She reported that prior to his death, Sean told her he was going to try to sell the methadone pills, but if he was unsuccessful, he was going to "do" them himself. In February 2015, plaintiff filed an amended complaint alleging that defendants were negligent "in providing controlled dangerous substances" (CDS) to Sean, and Ellen "was negligent in . . . permitting the use of [CDS] within her home." Additionally, 4 A-2208-16T1 plaintiff alleged defendants negligently "failed to timely contact" emergency personnel, thus resulting in Sean's death. Defendants, represented by separate counsel, denied all claims of wrongdoing. Following discovery, both defendants filed motions for summary judgment, arguing plaintiff failed to produce evidence to support her claims. After oral argument, the motion judge granted defendants' motions and set forth his reasons in a written opinion. The judge concluded, "[T]he factual record is completely devoid of any inferences or proofs" that defendants provided any drugs to Sean. The judge further concluded the factual record does not support plaintiff's claim that defendants "'wasted time' before calling for emergency personnel." Moreover, the judge concluded, "The actions or omissions by either or both [d]efendants are not proximately linked to [Sean's] death from overdosing on methadone pills." This appeal followed. II We review a ruling on summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). Thus, we 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 [fact-finder] to resolve the alleged disputed issue in favor of the non-moving party." Id. at 406 (quoting 5 A-2208-16T1 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). 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) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). "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 damages." Townsend v. Pierre, 221 N.J. 36, 51 (2015) (internal quotations and citation omitted). "It is generally plaintiff's burden to prove not only that defendant[s were] negligent, but also that defendant[s'] negligence was a proximate cause of the injuries and damages suffered." O'Brien (Newark) Cogeneration, Inc. v. Automatic Sprinkler Corp. of Am., 361 N.J. Super. 264, 274 (App. Div. 2003) (citing Paxton v. Misiuk, 34 N.J. 453, 463 (1961)). On appeal plaintiff argues the motion judge erred in granting summary judgment "because there exist genuine issues of material fact as to whether defendants acted negligently." To wit: plaintiff argues defendants breached the heightened standard of care they owed Sean because he was a social guest. See Endre v. 6 A-2208-16T1 Arnold, 300 N.J. Super. 136, 139, 144 (App. Div.) ("[A] host . . . has a duty to exercise reasonable care to render aid to a social guest who the host knows or has reason to know has seriously injured himself or herself. . . . [even if] the injury was sustained through no fault of the host."), certif. denied, 150 N.J. 27 (1997). Here, even assuming defendants breached this heighted duty of care by negligently "fail[ing] to timely contact" emergency personnel,3 plaintiff fails to demonstrate this alleged breach proximately caused his death. Plaintiff's evidence supporting proximate cause relies solely on the expert opinion of Dr. William L. Manion, a pathologist. Pursuant to N.J.R.E. 703, an expert opinion must be based on "facts or data derived from (1) the expert's personal observations or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts." Townsend, 221 N.J. at 53. Moreover, "an expert's opinion must be based on a proper factual foundation," meaning "[e]xpert testimony should not be received if it appears the witness is not in 3 On appeal, plaintiff essentially abandoned the claim that defendants negligently supplied CDS to Sean or otherwise permitted him to use CDS. Regardless, the record lacks any credible evidence to support the claim. 7 A-2208-16T1 possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture." Endre, 300 N.J. Super. at 147 (alteration in original) (quoting Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 322-23 (App. Div. 1996)). Under the net opinion doctrine, "expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities." Id. at 147-48. In his report, Dr. Manion opines that: [I]f rescue personnel had been called at 2:00 [a.m.] or at 11:00 [a.m.], [Sean] could certainly have been resuscitated. It is well known in the state of New Jersey that police and emergency personnel carry Narcan4 in order to inject into drug overdose patients so that they can rapidly reverse the effects of the opiates. Unfortunately, [Sean] was never given the chance to have Narcan administered to him. Thus, the failure to contact emergency personnel in a timely fashion was the most significant contributing factor to his death from methadone overdose." Plaintiff failed to carry her burden to produce evidence of the facts on which her expert relied. Neither plaintiff nor her expert produced any evidence or cited any authority to establish that the "rescue personnel" who attended to Sean carried Narcan at 4 Narcan is a brand of naloxone, a narcotic blocker; common parlance often uses these terms interchangeably. 8 A-2208-16T1 the time of this incident.5 As such, the opinion of plaintiff's expert that Sean would have been revived with Narcan if rescue personnel had been called earlier clearly constitutes a net opinion. See Townsend, 221 N.J. at 55 (holding plaintiff may not prove an element of his claim using an expert opinion "that is unsupported by the factual record."). Accordingly, we affirm the Law Division's order on the basis that the record lacks sufficient evidence from which a reasonable fact-finder could conclude defendants' alleged delay in calling emergency personnel proximately resulted in Sean's death.6 In so holding, we decline to address Ellen's argument that New Jersey's Good Samaritan Act, N.J.S.A. 2A:62A-1, applies here and immunizes her from liability. Affirmed. 5 In fact, defendants cite to an article from the Ocean County Prosecutor's Office stating that law enforcement agencies in that county became equipped with Narcan in April 2014 — two years after Sean's death. Although this article is not competent evidence in itself, it illustrates why plaintiff's expert was unreasonable in assuming all rescue personnel carried Narcan at the time of the incident under review. 6 Notably, "we review orders and not, strictly speaking, reasons that support them. We have held, in other contexts, that a correct result, even if predicated on an erroneous basis in fact or in law, will not be overturned on appeal." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005). 9 A-2208-16T1

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Docket No.: a2271-15
Decided: 2018-02-15
Caption: STATE OF NEW JERSEY v. RHYMAN M. HICKS, JR.
Status: unpublished
Summary:
PER CURIAM Defendant Rhyman M. Hicks appeals his conviction for various drug offenses, arguing the court erred by permitting expert testimony concerning his guilt. Having reviewed the record in light of the applicable law, we agree and reverse. I. Defendant1 was charged in an indictment with two counts of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (counts one and six); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of a controlled dangerous substance with intent to distribute on or within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of a controlled dangerous substance with intent to distribute on or within 500 feet of a public facility, N.J.S.A. 2C:35-7.1 (count four); third-degree manufacturing of a controlled 1 Co-defendants Aaron C. Ritman and Jaimelyn Hans were charged in the first eight counts of the indictment. Hans's charges were resolved by her admission into the pre-trial intervention program. The record does not show the disposition of the charges against Ritman. The trial here was only on the charges against defendant. 2 A-2271-15T1 dangerous substance, N.J.S.A. 2C: 35-5(a)(1) and N.J.S.A. 2C:35- 5(b)(3) (count five); two counts of fourth-degree possession of prohibited weapons and devices, N.J.S.A. 2C:39-3(e) (counts seven and eight); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a) (count nine). At trial, Jaimelyn Hans testified she contacted defendant in February 2014, asked if he had any crack cocaine, and he said he did. She went to the house defendant shared with his mother, was brought to defendant's bedroom where defendant's friend Ritman was present, and bought a "dime bag of crack cocaine" from defendant. Hans smoked the crack cocaine and saw defendant smoking crack cocaine as well. Hans stayed in defendant's bedroom watching television for a few hours until police arrived, came into the bedroom, and arrested Hans, defendant and Ritman. Burlington City police officers Christopher J. Walsh and William Ruskowski were among the officers who participated in the arrests and searched defendant's home.2 They testified the following items were found in defendant's bedroom: two glass pipes, razor blades, a glass vial containing a light-colored residue, a grinder, a measuring cup, forty-six plastic baggies containing white powder, two tins of sterno, numerous empty plastic bags, 2 The search was conducted pursuant to a search warrant that was issued prior to the officers' initial arrival at defendant's home. 3 A-2271-15T1 baking soda, a digital scale, a jar containing a hardened white substance, a dagger and a police baton. A representative from the Burlington County Forensic Science Laboratory testified the white powder in the baggies was cocaine, weighing 2.76 grams in total. The State also presented Burlington County Prosecutor's Office detective sergeant David Burr, who was qualified "as an expert in the pricing, purchasing, sale, distribution and use of a controlled dangerous substance." During his direct testimony, Burr offered opinions based on a hypothetical question. THE PROSECUTOR: Detective Burr, I'm going to ask you or present you with a hypothetical situation. Based on that hypothetical I'm going to ask you whether the drugs from the hypothetical were intended for personal use or for distribution, okay. The hypothetical is as follows: The police conduct a search of a home. In that home they locate two plastic bags containing a total of 46 small Ziploc style packets of crack cocaine. The total weight of that cocaine is, assume . . . is 2.76 grams. Also located is a number of empty plastic baggies, similar size and style, larger empty bag with trace amounts of cocaine, digital scale, baking soda, measuring cups, a jar containing hardened cocaine, sternos and razors. Sir, based upon your training and experience and the hypothetical I just presented you with, do you have an opinion as to whether the narcotics were possessed for personal use or with intent to distribute? 4 A-2271-15T1 BURR: In my opinion based upon my training and experience I would say that that clearly shows to me that it's for possession with intent to distribute, not just simple possession. DEFENSE COUNSEL: [] Objection. May I approach? COURT: Yes. The following exchange took place during the sidebar conference: DEFENSE COUNSEL: Your Honor, under State v. McLean[3] the officer can't parrot the language from the statute. I'm not trying to split hairs here but he regurgitated the language of the statute. I think there needs to be some sort of correction or at least a caution moving forward. COURT: It's a close call. COURT: [] The court will direct the prosecutor to avoid the use of the statutory language. Because in its present form it almost sounds as if it's an opinion as to the guilt in this case and that's not the witness'[s] function. On the other hand, I don't know how else you state the circumstance whether it was possessed for personal use or for distribution. DEFENSE COUNSEL: [] I don't have an objection if [the prosecutor] is leading his witness through this and, you know, I'm not trying to tell him what to do, but possession with 3 State v. McLean, 205 N.J. 438 (2011). 5 A-2271-15T1 intent to distribute is the language in the statute . . . . COURT: [The prosecutor] agrees with you. DEFENSE COUNSEL: I don't think we need to rehash that, but moving forward if there's any THE PROSECUTOR: That's fine. The court did not direct that the jury disregard Burr's prior response to the hypothetical, and the prosecutor did not rephrase the hypothetical. Instead, the prosecutor asked Burr additional questions about the hypothetical: THE PROSECUTOR: Sir, I'm going to redirect you to the hypothetical situation I just posed to you. Again, I'm going to ask you whether it is your opinion that in that hypothetical the drugs were for use or for sale or to give to others[?] The court overruled defendant's objection to the question. Burr then testified: BURR: It's . . . in my opinion based upon . . . your hypothetical, it's for distribution to others. The prosecutor asked Burr additional questions based on the hypothetical. Burr opined that the person involved in the sale of the crack cocaine was also a "user." He also testified that based on the hypothetical, the individuals involved were manufacturing cocaine, and the sternos referenced in the 6 A-2271-15T1 hypothetical "showed . . . the person was converting powder cocaine into crack cocaine before selling it and/or using it." The jury found defendant guilty on eight of the nine counts charged in the indictment.4 The court imposed an aggregate eight- year custodial term, with a four-year period of parole ineligibility. This appeal followed. Defendant presents the following argument for our consideration: BECAUSE THE STATE'S EXPERT TESTIFIED ON THE ULTIMATE ISSUE OF DEFENDANT'S STATE OF MIND IN A DRUG DISTRIBUTION CASE AND THE PROSECUTOR POSED A HYPOTHETICAL QUESTION DESIGNED TO ELICIT AN OPINION THAT THE DEFENDANT POSSESSED DRUGS WITH THE INTENT TO DISTRIBUTE, THE JURY'S EXCLUSIVE DOMAIN AS FACTFINDER WAS INVADED AND THE STATE'S FACT EVIDENCE WAS IMPROPERLY BOLSTERED. II. Defendant contends Burr's responses to the hypothetical questions offered opinions about defendant's state of mind which the court prohibited in State v. Cain, 224 N.J. 410, 429 (2016), and Burr's testimony the person in the hypothetical possessed crack cocaine with intent to distribute and was engaged in manufacturing crack cocaine constituted impermissible 4 The jury acquitted defendant of count six, third-degree possession of a controlled dangerous substance, buprenorphine, N.J.S.A. 2C: 35-10(a)(1). 7 A-2271-15T1 pronouncements of defendant's guilt, State v. Simms, 224 N.J. 393, 406 (2016). The State does not dispute the challenged hypothetical questions and responses violate the holdings in Cain and Simms, but contends the Court's decisions in those cases should not be applied retroactively and the hypothetical questions were proper under the law at the time of trial. We find no merit to the State's contention we should not apply the principles in Cain and Simms here. Another panel of this court has held the decisions should be given pipeline retroactivity to cases, like this one, pending on appeal when they were decided. See State v. Green, 447 N.J. Super. 317, 328 (App. Div. 2016); see also State v. Hyman, 451 N.J. Super. 429, 446 (App. Div. 2017) (applying the Cain principles in a case that was "on appeal when Cain was decided"). The State argues we should reject the panel's determination in Green because application of Cain and Simms will result in a retrial of a case conducted in accordance with the law extant at the time of trial. We reject the contention for the same reason it was rejected in Green: "There will be no unfair prejudice to the State in reversing cases pending appeal that involve improper hypothetical questions. We routinely remand cases for new trials where error has prevented defendants from receiving a fair trial." 8 A-2271-15T1 447 N.J. Super. at 328. We therefore apply, as we must, the holdings in Cain and Simms here. In Cain, the Court rejected the procedure, which it previously approved in State v. Odom, 116 N.J. 65, 80-81 (1989), that permitted an expert to testify about a defendant's state of mind in an intent-to-distribute drug case. 224 N.J. at 429. The Court found improper a hypothetical that "recited nearly every detail of the case . . . and call[ed] for the expert to give an opinion whether the drugs recovered were possessed with the intent to distribute . . . ." Id. at 431. The Court found the hypothetical "allow[ed] the prosecutor to package his entire case in a single question and elicit affirmation of defendant's guilt from an expert." Ibid. The Court noted that the use of the term "individual" in the hypothetical constituted a "thinly veiled guise that serves no purpose and fails to dissipate any potential prejudice" to the defendant. Ibid. The Court held that "in drug cases, an expert witness may not opine on the defendant's state of mind. Whether a defendant possessed a controlled dangerous substance with the intent to distribute is an ultimate issue of fact to be decided by the jury." Id. at 429 (emphasis in original). The Court also cautioned that hypotheticals should not be used in drug cases "[w]hen the evidence is straightforward and the facts are not in dispute . . . ." Ibid. 9 A-2271-15T1 In Simms, the Court similarly determined the State's use of a "lengthy hypothetical question posed to the drug expert [that] include[d] the assumed fact that the detective actually observed defendant hand a buyer drugs for cash," violated the principles set forth in Cain. 224 N.J. at 396. The Court also determined the expert's testimony regarding defendant's involvement in a conspiracy impermissibly mimicked the statutory language. Id. at 406. Applying these principles, we are convinced Burr's testimony in response to the hypothetical was improper. The hypothetical provided a brief but detailed and comprehensive summary of all of the drug-related evidence found in defendant's bedroom. In his initial response to the hypothetical, Burr offered an impermissible opinion on defendant's state of mind and mimicked the statutory language, stating that the drugs were "for possession with intent to distribute, not just simple possession." Defense counsel objected, and the court acknowledged the testimony "almost sound[ed] as if it's an opinion as to [defendant's] guilt," but the court neither sustained the objection nor instructed the jury to disregard the testimony.5 5 Of course, the trial court did not have the benefit of the Court's decisions in Cain and Simms. However, because the decisions apply retroactively, we need not determine if the court's ruling was proper under the law extant at the time of trial. 10 A-2271-15T1 Instead, the State's next question essentially repeated the improper inquiry. The prosecutor asked if the drugs described in the hypothetical "were for use or for sale or distribution to give it to others." After overruling defendant's objection to the question, Burr offered an impermissible opinion as to defendant's state of mind, which was an ultimate issue for the jury, stating the drugs were "for distribution to others." See Cain, 224 N.J. at 429. Burr offered similarly impermissible testimony that the individual in the hypothetical was not only a drug seller, but was a user as well. "An expert, who advises the jury that the defendant possessed drugs with intent to distribute is, in essence, telling the jury that the State has proven all of elements of the crime[,] . . . [and] has announced his own verdict, whether or not he uses the word 'guilty.'" Id. at 427 (quoting State v. Summers, 176 N.J. 306, 323 (2003) (Albin, J., dissenting)). The State's questions and Burr's responses were not limited to the possession with intent to distribute charge. Defendant was also charged with third-degree manufacturing of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35- 5(b)(3). In response to the prosecutor's questions, Burr offered an opinion mimicking the language of those statutes. Burr testified the person in the hypothetical was "manufacturing cocaine" and converting powder cocaine into crack cocaine. In 11 A-2271-15T1 doing so, Burr provided an impermissible "opinion about defendant's guilt." Ibid. We are convinced, and the State does not dispute, that the questions posed to Burr and his responses are impermissible under the Court's holdings in Cain and Simms. In our review of the admission of the testimony, we disregard "[a]ny error or omission . . . unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. To require reversal, there must "be 'some degree of possibility that [the error] led to an unjust [verdict]. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'"6 State v. R.B., 183 N.J. 308, 330 (2005) (second and fourth alterations in original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)). In Cain, the Court concluded an expert's impermissible testimony about the defendant's state of mind on the possession 6 We review Burr's testimony concerning whether the drugs were possessed with intent to distribute for harmless error because defendant objected to the testimony at trial. See, e.g., State v. Pillar, 359 N.J. Super. 249, 290 (App. Div. 2003) (reviewing testimony that was admitted without objection for harmless error). We review Burr's testimony that the person in the hypothetical was a user and manufacturer of crack cocaine for plain error. See Cain, 224 N.J. at 432-33 (reviewing testimony that was presented without objection for plain error). In any event, the standard for establishing harmless and plain error is identical under R. 2:10-2. State v. Macon, 57 N.J. 325, 337-38 (App. Div. 1971). 12 A-2271-15T1 with intent charge "had the capacity to infect all of the charges and [was] 'clearly capable of producing an unjust result.'" 224 N.J. at 432-33. In Simms, the Court found plain error where in the defendant's trial on a charge of conspiracy to distribute a controlled dangerous substance, the State's expert offered an opinion that "mimick[ed] the statutory language of conspiracy and . . . conclud[ed] defendant conspired to distribute" the controlled dangerous substance. 224 N.J. at 406. The Court stated the testimony constituted an impermissible "pronouncement of guilt." Ibid. In Green, 447 N.J. Super. at 319, the defendant was charged with possession of marijuana with intent to distribute. At trial, the State called a narcotics expert and asked a lengthy hypothetical question detailing all of the evidence found in the defendant's home. Id. at 324. The State asked the expert to conclude whether the defendant possessed the marijuana for personal use or with intent to distribute. Ibid. We held the expert's testimony constituted plain error requiring reversal because "the question of whether [the defendant] had 'intent to distribute' was based solely on circumstantial evidence . . . ." Id. at 329. Consideration of whether admission of evidence is clearly capable of producing an unjust result "depends on an evaluation 13 A-2271-15T1 of the overall strength of the State's case." State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Here, there was direct evidence defendant possessed the crack cocaine with the intent to distribute. Hans testified she contacted defendant, asked if he had any crack cocaine to sell, and he said he did. She went to his home and purchased crack cocaine from him a few hours before the police arrived. This evidence established defendant possessed the crack cocaine with intent to distribute independently of Burr's impermissible testimony. We therefore are not convinced admission of Burr's testimony, standing alone, "raises a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." R.B., 183 N.J. at 330; see also State v. Sowell, 213 N.J. 89, 107-08 (2013) (affirming conviction given strength of evidence against defendant despite admission of improper expert testimony). Burr, however, also offered an impermissible expert opinion on the manufacturing charge, testifying that the person in the hypothetical was a manufacturer of crack cocaine and converted powder cocaine into crack cocaine. Other than Burr's impermissible opinion testimony, there was no other direct evidence that defendant manufactured crack cocaine. Thus, we are persuaded that for the jury to have convicted defendant of manufacturing, it 14 A-2271-15T1 reasonably must have relied on Burr's expertise and impermissible testimony. Admission of the testimony was clearly capable of producing an unjust result. R. 2:10-2. We are also convinced admission of Burr's testimony concerning the manufacturing charge requires reversal of his conviction on all of the charges. Permitting Burr to impermissibly declare that defendant was a manufacturer of crack cocaine had the capacity to infect the jury's consideration of the other offenses for which he was charged, and improperly buttressed the State's contention defendant committed the offenses. We also cannot ignore that the cumulative effect of Burr's three separate declarations of defendant's guilt, as a drug user, manufacturer and possessor with intent to distribute, was clearly capable of producing an unjust result on each of the charges for which defendant was convicted. Reversed. 15 A-2271-15T1

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Docket No.: a2385-16
Decided: 2018-02-15
Caption: MD SASS MUNICIPAL FINANCE PARTNERS v. CESAR MELENDEZ
Status: unpublished
Summary:
PER CURIAM Appellant Arnold N. Kimmel, Trustee under the Revocable Trustee Agreement dated June 8, 1990, appeals from an order entered on January 20, 2017, which denied his motion for the disbursement of surplus funds from a sheriff's sale. We affirm. The following facts are taken from the record. Appellant sold commercial property in Trenton to defendant, Carmen Natal- Melendez (Natal-Melendez) on February 27, 2004. Natal-Melendez financed the sale by a purchase money mortgage, secured by a mortgage note. Natal-Melendez defaulted on the note and unbeknownst to appellant, had previously conveyed her fee simple interest in the property, subject to the mortgage, to Cesar Melendez (Melendez) by deed. As a result of Natal-Melendez's default, appellant filed a foreclosure complaint on March 11, 2009 against her and all junior lienholders. Appellant did not pursue the foreclosure or obtain a final judgment. 2 A-2385-16T2 On October 15, 2010, respondent MD Sass Municipal Finance Partners, V., LLC filed a complaint for foreclosure of the tax sale certificate. Final Judgment was entered in favor of respondent, fixing the amount due to respondent as $25,926.13, granting interest at the statutory rate of $9.50 per day from September 2011 to April 30, 3012, and $500 for attorney's fees. The property was ordered to be sold by the Mercer County Sheriff to satisfy the total amount due, $28,449.63. Appellant and respondent then entered into an agreement for the assignment of the tax sale certificate. Pursuant to the agreement, appellant received the assignment and agreed to pay respondent the redemption amount as of August 13, 2012, plus an additional premium for a total of $44,400.36. Appellant paid respondent, and respondent executed and delivered an assignment of bid for the sheriff's sale to appellant. The property was sold to appellant at the sheriff's sale for $105,000. Appellant was credited $27,513.58 for the amount due on the final judgment. After the final judgment and Sheriff's costs and fees were paid, there remained a surplus of $72,473.46. Appellant then sold the property for $195,000, and after the broker's commission and closings costs were deducted from the sale, appellant realized $118,018.74. 3 A-2385-16T2 Appellant filed a motion for disbursement of the surplus funds pursuant to Rule 4:64-3 and Rule 1:34-6(15), which the motion judge denied on January 20, 2017. The judge found appellant was not entitled to the surplus funds because he "voluntarily chose to forego his own foreclosure action rather than redeem [respondent's] tax sale certificate and proceed to judgment." The motion judge found appellant compounded the problem by purchasing the property at sheriff's sale and then "sell[ing] the property for what . . . appears to be less monies than what was still owed to him at the time by [Natal-Melendez]." The judge found the tax lien foreclosure extinguished appellant's lien on the property. Thus, the motion judge concluded appellant "is neither a judgment creditor [nor] a lienholder with regard to the subject property." This appeal followed. We begin by reciting our standard of review. "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 v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Rather, our review is de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007). Appellant argues the motion judge erred in concluding appellant was not entitled to the surplus funds pursuant to N.J.S.A. 2A:50-37. Specifically, appellant claims the judge erred 4 A-2385-16T2 by distinguishing between a mortgage lien and a judgment lien, and holding that only a judgment would entitle appellant to the surplus funds under the statute. Appellant further argues the judge erroneously relied upon a rule adopted by the Foreclosure Unit in the Office of the Clerk of the Superior Court, which prohibits an individual who purchases a property at sheriff's sale from applying for surplus funds under the merger doctrine. Lastly, appellant argues he should receive the funds because he did not recoup the funds owed to him by Natal-Melendez through the subsequent sale of the property. Thus, appellant argues there would be no windfall to him if he received the surplus funds. N.J.S.A. 2A:50-37 states: The moneys arising from a [sheriff's] sale . . . shall be applied to pay off and discharge the moneys ordered to be paid, and the surplus, if any, shall be deposited with the court and the same shall be paid to the person or persons entitled thereto, upon application therefor, as the court shall determine. [emphasis added]. Therefore, it follows that individuals "entitled" to the surplus funds may petition the court for distribution pursuant to Rule 4:64-3 and Rule 1:34-6(15). "It is generally acknowledged that surplus funds take on the character of the land, at least with respect to junior 5 A-2385-16T2 encumbrancers whose liens existed at the time of the foreclosure." Morsemere Fed. Sav. & Loan Ass’n v. Nicolaou, 206 N.J. Super. 637, 642 (App. Div. 1986). Additionally, subsequent judgment creditors may also apply for surplus funds. Id. at 643. In Morsemere we held that lienholders at the time of and subsequent to a foreclosure, even if they defaulted in the foreclosure, were entitled to surplus funds. Id. at 637. Here appellant was not entitled to the surplus funds because he lacked any rights to the property as either a judgment creditor or lienholder. Indeed, appellant's failure to pursue the foreclosure on the note to Natal-Melendez precluded any opportunity to obtain a judgment and a lien on the property, and thus a right to the surplus funds. For these reasons, we conclude the motion judge correctly interpreted N.J.S.A. 2A:50-37. Because we affirm the judge's holding respecting the statute, we do not address appellant's argument that the motion judge improperly relied on rules adopted by the Foreclosure Unit. Finally, we disagree that appellant's failure to recoup the funds owed by Natal-Melendez warrants distribution of the surplus funds to appellant, and that a distribution of these funds to him would not constitute a windfall. As we noted, appellant misapprehends the purpose of N.J.S.A. 2A:50-37. Because the surplus funds stand in lieu of the property, those who are entitled 6 A-2385-16T2 to the funds under the statute are judgment creditors and lien holders against the property. Here, after appellant acquired and then sold the property following the sheriff's sale, he relinquished the ability to assert a claim against the property, and only possessed the right to pursue Natal-Melendez under the terms of the mortgage note. Indeed, because a mortgage is "a form of 'security for the payment of a debt,'" individuals may pursue a money judgment to recover "full payment of the underlying debt[.]" Brunswick Bank & Tr. v. Affiliated Bldg. Corp., 440 N.J. Super. 118, 125 (App. Div. 2015) (quoting J.W. Pierson Co. v. Freeman, 113 N.J. Eq. 268, 271 (E. & A. 1933)). As the motion judge noted, appellant "has a right to pursue a claim against the original mortgagee[,]" but appellant does not "have a right to ask this Court to award [him] monies from surplus funds which stand in lieu of property." We have no basis to disturb the motion judge's ruling. Affirmed. 7 A-2385-16T2

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Docket No.: a2556-16
Decided: 2018-02-15
Caption: STATE OF NEW JERSEY v. ZAHIER K. CROSELL
Status: unpublished
Summary:
PER CURIAM Defendant Zahier Crosell appeals from the December 1, 2016 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. We derive the following facts from the evidence presented at the motion to suppress a handgun found during a warrantless search of defendant's car. According to New Jersey State Trooper Andrew Menzoni, at approximately 10:00 p.m. on January 17, 2014, he and State Trooper Staub saw a car stopped in the lane of travel on Highway 49 in Bridgeton, with the driver, later identified as defendant, speaking to a pedestrian on the side of the roadway. Menzoni and Staub activated the overhead lights of their patrol cars as they followed defendant's car into a nearby parking lot, and stopped the car after defendant made an evasive maneuver. Staub approached the driver's side of defendant's car and spoke to defendant, who had no identification. Menzoni called in the stop to dispatch and then exited his patrol car and went to the passenger side of defendant's car. Menzoni illuminated his flashlight into the passenger side and saw the grip of a gun sticking out from under the front passenger seat. Menzoni went to the driver's side, asked defendant to exit his car, placed him under arrest, and administered his Miranda1 rights. Menzoni then 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 A-2556-16T3 returned to the passenger side, opened the door, bent down, reached into the car, immediately retrieved the handgun, and secured it in the trunk of his patrol car. Neither Trooper looked any further into defendant's car. The stop was recorded on the motor vehicle recording (MVR) device in Menzoni's patrol car. The handgun was tested and found to be operable and capable of being discharged. A grand jury indicted defendant for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count one), and third- degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(3) (count two).2 In denying defendant's motion to suppress the handgun, Judge Robert G. Malestein viewed the MVR recording and found Menzoni's testimony credible. The judge determined the stop was lawful based on Menzoni's reasonable and articulable belief that defendant committed a motor vehicle violation, and the plain view exception applied to the warrantless search of defendant's car and seizure of the handgun. Defendant then pled guilty to count one and two counts of violation of probation, and was sentenced to a five-year term of imprisonment with a forty-two month period of parole ineligibility. Defendant did not appeal his conviction or sentence. Instead, he filed a pro se PCR petition, arguing that defense counsel 2 Defendant was also charged with several motor vehicle offenses. 3 A-2556-16T3 rendered ineffective assistance by failing to investigate how and where the handgun was found and pursue a defense under the Gun Amnesty Law, L. 2013, c. 117. With no supporting certification, defendant asserted in his pro se PCR brief, as he does in his merits brief on appeal, that he told defense counsel "he was on his way to turn the . . . weapon in, in accordance with [the Gun Amnesty Law,]" but counsel failed to investigate the law and advised him not to mention it because "the Judge would not buy it." Assigned PCR counsel submitted a brief, adding that defense counsel was ineffective for failing to file a motion to suppress, and if counsel did file a motion, the court improperly denied it because the elements of the plain view doctrine were not met. In a written opinion, Judge Malestein found that defense counsel filed a motion to suppress and vigorously cross-examined Menzoni, the motion was properly denied, and defendant did not allege any deficiencies in defense counsel's performance on the motion. The judge also found defendant provided no proof that an investigation would have revealed anything different than the evidence presented at the motion to suppress, and that based on the MVR recording, there was no need for a further investigation as to how and where the gun was found. The judge also determined that defendant failed to comply with the notice requirements of N.J.S.A. 2C:39-12, as required by the Gun Amnesty Law. Lastly, 4 A-2556-16T3 the judge found there was no competent evidence that defendant was intending to voluntarily surrender his handgun, as the gun "was not disabled or locked away, but just out in the open under the seat ready for use and not stored for transport." On appeal, defendant reiterates the arguments made to Judge Malestein. Defendant adds that PCR counsel rendered ineffective assistance by arguing, incorrectly, that defense counsel did not file a motion to suppress. We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. State v. Preciose, 129 N.J. 451, 462 (1992). Where "no evidentiary hearing was conducted, we may review the factual inferences the court has drawn from the documentary record de novo." State v. Blake, 444 N.J. Super. 285, 294 (App. Div.), certif. denied, 226 N.J. 213 (2016). Applying these standards, we discern no reason to disturb Judge Malestein's decision. To establish a prima facie claim of ineffective assistance of counsel, the defendant must satisfy two prongs. First, he must demonstrate that counsel made errors "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." An attorney's representation is deficient when it "[falls] below an objective standard of reasonableness." 5 A-2556-16T3 Second, a defendant "must show that the deficient performance prejudiced the defense." A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a "fair trial." The prejudice standard is met if there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." A "reasonable probability" simply means a "probability sufficient to undermine confidence in the outcome" of the proceeding. [State v. O'Neil, 219 N.J. 598, 611 (2014) (alteration in original) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984)).] "[I]n order to establish a prima facie claim, [the defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013). "[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. at 343, 353 (2013) (alteration in original) (quoting Cummings, 321 N.J. Super. at 170). 6 A-2556-16T3 With respect to a guilty plea, our Supreme Court has 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. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (second alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994).] The defendant must also show "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010); see also State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011). "Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences." Lee v. United States, 582 U.S. ___, 137 S. Ct. 1958, 1967 (2017). Defendant did not establish a prima facie case of ineffective assistance of PCR counsel. Despite PCR counsel's erroneous argument that defense counsel failed to file a motion to suppress, defendant failed to show PCR counsel's error prejudiced him. 7 A-2556-16T3 Defendant does not argue that PCR counsel failed to raise arguments he requested or otherwise performed deficiently in pursuing the arguments raised. We have considered defendant's contentions with respect to defense counsel 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 affirm substantially for the reasons Judge Malestein expressed in his written opinion. However, we make the following brief comments. The Gun Amnesty Law provides that [a]ny person who has in his possession a handgun in violation of [N.J.S.A. 2C:39-5(b)] or a rifle or shotgun in violation of [N.J.S.A. 2C:39-5(c)] on the effective date of this act may retain possession of that handgun, rifle, or shotgun for a period of not more than 180 days after the effective date of this act. During that time period, the possessor of that handgun, rifle, or shotgun shall: (1) transfer that firearm to any person lawfully entitled to own or possess it; or (2) voluntarily surrender that firearm pursuant to the provisions of [N.J.S.A. 2C:39- 12]. [L. 2013, c. 117, § 1.] 8 A-2556-16T3 The amnesty provision became effective on August 8, 2013, and was set to "expire on the 181st day after enactment[,]" or February 4, 2014. L. 2013, c. 117, § 3. As our Supreme Court stated: [T]he amnesty law did not afford defendants blanket immunity for the entire amnesty period. . . . Instead, the law created a period of no more than six months during which people could dispose of weapons they illegally possessed without being prosecuted. The provision affords a defense to those who attempted to comply with its terms. [State v. Harper, 229 N.J. 228, 232 (2017).] "A defendant charged under [N.J.S.A. 2C:39-6(b) with unlawful] possession [of a weapon] during the amnesty period may raise the amnesty law as an affirmative defense." Id. at 241. To do so, a defendant must show two things: (1) that he possessed a handgun in violation of [N.J.S.A.] 2C:39-5(b) or (c) 'on the effective date of this act'. . . and (2) that he took steps to transfer the firearm or voluntarily surrender it during the 180-day period beginning on August 8, 2013, consistent with [N.J.S.A.] 2C:39-12 -- that is, before authorities brought any charges or began to investigate his unlawful possession. [Ibid. (emphasis added) (citing L. 2013, c. 117; N.J.S.A. 2C:39-12).] N.J.S.A. 2C:39-12 provides that [n]o person shall be convicted of an offense under this chapter for possessing any 9 A-2556-16T3 firearms, weapons, destructive devices, silencers or explosives, if after giving written notice of his intention to do so, including the proposed date and time of surrender, he voluntarily surrendered the weapon, device, instrument or substance in question to the superintendent or to the chief of police in the municipality in which he resides, provided that the required notice is received by the superintendent or chief of police before any charges have been made or complaints filed against such person for the unlawful possession of the weapon, device, instrument or substance in question and before any investigation has been commenced by any law enforcement agency concerning the unlawful possession. [(Emphasis added).] Defendant did not comply with N.J.S.A. 2C:39-12. He gave no written notice to law enforcement of his intention to voluntarily surrender his handgun and did not voluntarily surrender it before he was arrested and charged under N.J.S.A. 2C:39-5(b) with unlawful possession of a weapon. Accordingly, because defendant was not entitled to the protection of the Gun Amnesty Law, defense counsel committed no error in failing to raise the defense. Affirmed. 10 A-2556-16T3

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Docket No.: a3616-15
Decided: 2018-02-15
Caption: IN THE MATTER OF THE CIVIL COMMITMENT OF D.B.
Status: unpublished
Summary:
PER CURIAM D.B. appeals from a December 29, 2015 judgment committing him under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4- 27.24 to -27.38, to the Special Treatment Unit (STU), the State facility designated for the custody, care, and treatment of sexually violent predators. He argues: THE TRIAL COURT ERRED IN FINDING D.B. WAS PRESENTLY HIGHLY LIKELY TO COMMIT A SEXUAL OFFENSE BECAUSE THE TESTIMONY PRESENTED DID NOT PROVIDE A BASIS FOR A FINDING OF A MENTAL ABNORMALITY NOR DID IT PROVIDE A BASIS FOR A PRESENT RISK TO SEXUALLY REOFFEND. We have found no clear mistake or error in either the trial court's factual determinations or its legal conclusions. To the contrary, the trial court's decision is amply supported by substantial credible evidence on the record. We therefore affirm. These are the facts. On different dates between August 1988 and May 1989, throughout Essex and Union Counties, D.B. raped six women and attempted to rape a seventh. In each case, through either ruse or force, D.B. gained entry to the women's homes. D.B. pled guilty to one count of aggravated sexual assault on each of two Union County indictments. The court sentenced him on each offense to serve an indeterminate term, not to exceed twenty years, with ten years of parole ineligibility, at the Adult Diagnostic and Treatment Center (ADTC) at Avenel. The sentences were concurrent. On each of four Essex County indictments, D.B. pled guilty to one count of second-degree burglary and one count of first- degree aggravated sexual assault. On a fifth Essex County indictment, D.B. pled guilty to second-degree burglary and second- degree attempted sexual assault. For all offenses, the court 2 A-3616-15T5 sentenced D.B. to an aggregate fifty-year prison term with twenty- five years of parole ineligibility. D.B. served ten years at the ADTC and the remainder of his time before parole in state prison. Shortly before his release from state prison, the State filed a petition for D.B.'s civil commitment under the SVPA. The trial court issued an order for D.B.'s temporary civil commitment on July 1, 2015. Judge Philip M. Freedman held a hearing on November 19 and December 22, 2015. At the hearing, the State presented two expert witnesses, and D.B. presented one expert witness. The first of the State's experts, Dr. Dean DeCrisce, MD, a psychiatrist, was asked explicitly, "Did you find that [D.B.] suffers from a mental abnormality or personality disorder that impacts his volitional, emotional or cognitive functioning so as to predispose him to engage in acts of sexual violence?" Dr. DeCrisce responded, "Yes, I did." Dr. DeCrisce testified his diagnosis included "coercive paraphilia," "antisocial personality disorder without evidence for conduct disorder as a youth," and a number of substance abuse diagnoses. D.B.'s expert witness, Dr. Christopher Lorah, Ph.D., an expert psychologist, also testified at the November 2015 hearing. Dr. Lorah testified D.B. suffered from a paraphilic disorder but 3 A-3616-15T5 not an antisocial personality disorder, and "all of his offending comes from the strength of the paraphilic disorder." The State also offered the testimony of Dr. Jamie Canataro, Psy.D., an expert psychologist. Dr. Canataro diagnosed D.B. as exhibiting "sexual sadism provisionally, paraphilia [not otherwise specified], nonconsent, with elements of voyeurism, other specified personality disorder with antisocial features, and alcohol and cannabis use disorder, moderate." Dr. Canataro did not diagnose anti-social personality disorder because "the early onset of his personality disorder is not clear." With regard to D.B.'s likelihood of reoffending upon his reentry into the community, Dr. DeCrisce testified he "believe[d] the diagnosis predisposes him to re-offend because of the nature of his offense history, the strength of the arousal and the history of his offenses." The doctor explained D.B.'s diagnosis affects him volitionally, cognitively, and emotionally. Also, when asked how he would "characterize [D.B.'s] current risk to . . . sexually re-offend if released into the community," Dr. DeCrisce believed "he would be highly likely" to sexually re-offend. Dr. Lorah, however, testified D.B. could control his conditions if managed properly upon his return to the community. Dr. Canataro, like Dr. DeCrisce, testified that D.B.'s paraphilia condition predisposes him to sexually re-offend. 4 A-3616-15T5 Further, she explained D.B. had a high risk of sexually reoffending if released into the community because of "[h]is deviant sexual arousal patterns combined with his antisocial personality structure and the psychopathic personality traits." On December 29, 2015, in an oral decision, Judge Freedman explained that after hearing the testimony of all three experts, he found by clear and convincing evidence D.B. "suffers from mental abnormalities, anti-personality disorder that [a]ffect him . . . emotionally, cognitively, and volitionally" and D.B. "would be highly likely . . . in the reasonably foreseeable future, to engage in acts of sexual violence." Further, the judge found D.B. is a dangerous person who poses a high risk to the community. He cited the testimony of both of the State's experts, stating he credited their testimony that none of the treatment had had any effect on D.B. and the "kind of arousal [he suffers from] does not go away." Judge Freedman granted the State's petition to civilly commit D.B. under the SVPA. This appeal followed. The SVPA authorizes the Attorney General to initiate court proceedings for involuntary commitment of sexually violent predators. N.J.S.A. 30:4-27.28. Sexually violent predators include persons: who ha[ve] been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent 5 A-3616-15T5 offense . . . and suffer[] from a mental abnormality or personality disorder that makes [them] likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment. [N.J.S.A. 30:4-27.26.] Thus, to have a person committed under the SVPA, the State must prove by clear and convincing evidence three elements: the person has been convicted of a sexually violent offense; the person suffers from a mental abnormality or personality disorder; and, as a result of such mental abnormality or personality disorder, "it is highly likely that the [person] will not control his or her sexually violent behavior and will reoffend." In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014) (quoting In re Commitment of W.Z., 173 N.J. 109 at 130 (2002)).1 "The scope of appellate review of a commitment determination is extremely narrow." R.F., 217 N.J. at 174 (quoting In re D.C., 146 N.J. 31, 58 (1996)). We afford "special deference" to the 1 The term "sexually violent offense" refers to offenses enumerated in the SVPA, including: aggravated sexual assault; sexual assault; aggravated criminal sexual contact; criminal sexual contact; and "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26. The term "'[m]ental abnormality' means a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. 6 A-3616-15T5 expertise of judges who hear SVPA cases because they are generally "specialists" in that field. Ibid. (citing In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). A trial court's decision to commit an individual should be modified only when "the record reveals a clear mistake." Id. at 175 (quoting D.C., 146 N.J. at 58). "The appropriate inquiry is to canvass the significant amount of expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." D.C., 146 N.J. at 58-59 (citation omitted). Having canvassed the expert testimony in the record, we have found no clear mistake or error. To the contrary, Judge Freedman's findings are amply supported by substantial credible evidence in the record. See State v. Locurto, 157 N.J. 463, 470-71 (1999). These findings satisfy the statutory elements required to civilly commit a sex offender under the SVPA. D.B.'s arguments to the contrary, which are mostly based on D.B.'s disagreement with the weight the judge gave to the evidence, are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 7 A-3616-15T5

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Docket No.: a3822-16
Decided: 2018-02-15
Caption: N.C.T. v. F.T.S.
Status: unpublished
Summary:
PER CURIAM Plaintiff, N.C.T., filed a verified complaint in the Family Part seeking custody of his brother, Oliver, presently age eighteen, as a predicate to obtaining Special Immigrant Juvenile (SIJ) status for him, pursuant to the Immigration Act of 1990, as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110- 457, 122 Stat. 5044 (2008).1 A juvenile2 who obtains SIJ status may seek lawful permanent residency, a step toward citizenship, see H.S.P. v. J.K., 223 N.J. 196, 200 (2015), and is protected from deportation. Id. at 209. Plaintiff appeals from the March 28, 2017 order denying him custody of Oliver and other relief. Following our review of the record and applicable legal principles, we reverse and remand for further proceedings. I Defendant F.T.S (mother) is Oliver's and plaintiff's mother. Although served with the complaint, she did not appear at the hearing and has not responded to the complaint in any fashion. The salient evidence adduced during the hearing was as follows. Plaintiff and Oliver live in New Jersey, and their parents in Guatemala. In 2006, plaintiff moved to New Jersey from 1 We use pseudonyms and initials to protect the parties' and their family members' privacy. 2 Because the federal statute accords "special immigrant juvenile" status to persons up to the age of twenty-one, we use the term "juvenile" to refer to Oliver. 2 A-3822-16T3 Guatemala at age twenty. Oliver has been living with plaintiff since he crossed the border illegally in December 2015 at age sixteen; at the time of the hearing, Oliver was seventeen years of age. Neither parent has contributed toward Oliver's support since his arrival in the United States; Oliver depends upon plaintiff exclusively for support. Plaintiff acknowledged he was in the United States illegally, but has applied for asylum. Both plaintiff and Oliver described Oliver's life growing up in Guatemala. Plaintiff's and Oliver's parents separated when Oliver was a small child, and for long periods the family did not know the father's whereabouts. Because their mother's diabetic condition precluded her from working, Oliver and his six siblings3 had to work to support themselves and their mother. Oliver began to work at six years of age and, as a result, attended school only sporadically. Whenever he told his mother he wanted to attend school or play rather than work, she responded he would have to move out if he did not work. She also told him to leave the home whenever she became angry. Since he arrived in the United States, Oliver has been pursuing an education and, in fact, has already obtained a General Equivalency Diploma. 3 One sibling died approximately three years ago. 3 A-3822-16T3 Oliver testified if he returned to Guatemala, he either would have to live on the street or in his mother's home, where he would be expected to work and relinquish his earnings to his mother. Although they have no obligation to contribute toward his support, Oliver noted his relatives, most of whom are older than he, either do not have room in their homes to accommodate him or live on the street. Therefore, he has no viable place to live in Guatemala. The court determined the mother neither abused, neglected, nor abandoned Oliver, rationalizing that requiring her children to forego an education and work to support the family was reasonable. In addition, the court found it was not in Oliver's best interests to be placed in the custody of a person who is an undocumented immigrant because, if plaintiff were deported, Oliver would be left alone in the United States. Finally, the court stated it was not "credible that . . . no other sibling [in Guatemala] would step in and help out their brother," if Oliver returned home. II On appeal, plaintiff raises various contentions, one of which is the trial court failed to properly apply the law of New Jersey when it determined the mother had neither abused, neglected, nor abandoned Oliver. We agree. 4 A-3822-16T3 To obtain SIJ status, either the subject juvenile or an adult acting on his behalf "must first petition for 'an order from a state juvenile court [to] mak[e] findings that the juvenile satisfies certain criteria.'" H.S.P., 223 N.J. at 210 (citation omitted). Those criteria, enumerated in 8 C.F.R. § 204.11(c), are: (1) The juvenile is under the age of 21 and is unmarried; (2) The juvenile is dependent on the court or has been placed under the custody of an agency or an individual appointed by the court; (3) The "juvenile court" has jurisdiction under state law to make judicial determinations about the custody and care of juveniles; (4) That reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under State law; and (5) It is not in the "best interest" of the juvenile to be returned to his parents' previous country of nationality or country of last habitual residence within the meaning of 8 U.S.C. § 1101(a)(27)(J)(ii); 8 C.F.R. § 204.11(a), (d)(2)(iii) [amended by TVPRA 2008]. [H.S.P., 223 N.J. at 210 (quoting In re Dany G., 117 A.3d 650, 655-56 (Md. Ct. Spec. App. 2015)).] After a State court has made and placed these five findings into an order, the juvenile may submit a petition, attaching the 5 A-3822-16T3 State court's order, to the United States Citizenship and Immigration Services (USCIS) for SIJ status. The State court's findings are necessary for the USCIS to determine if a juvenile is entitled to such status. H.S.P., 223 N.J. at 200-01. If the USCIS approves the juvenile's petition, he is awarded SIJ status. Id. at 210 (citing Perez-Olano v. Gonzalez, 248 F.R.D. 248, 254 (C.D. Cal. 2008)). Significantly, when addressing the five factors, the law of the State is to be applied. H.S.P., 223 N.J. at 215. "[T]he SIJ evidence must be viewed through the lens of New Jersey law, not the law of the juvenile's country of origin." O.Y.P.C. v. J.C.P., 442 N.J. Super. 635, 641 (App. Div. 2015). Further, a State court must "make all of the federally-required findings, regardless of whether they believe that the juvenile should be declared dependent on the court or placed under the custody of an entity or individual." Ibid. In our review of a non-jury trial, we defer to a trial court's fact findings if "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). However, "legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review." Reese v. Weis, 430 N.J. Super. 552, 568 6 A-3822-16T3 (App. Div. 2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Here, the court found the mother had not abused, neglected, or abandoned Oliver. However, in making this finding, it is apparent the court did not consider whether the mother's conduct violated New Jersey law. We note that starting at age six, the mother regularly withheld Oliver from school, so he could work and contribute toward her and the family's support. Under New Jersey law, neglect of a child includes willfully failing to provide a child with a regular school education, as required by law. N.J.S.A. 9:6-1. The law in this State is that every parent (or guardian) who has custody and control of a child between the ages of six and sixteen must ensure such child regularly attends public school or receives an equivalent education. N.J.S.A. 18A:38-25. Thus, under New Jersey law, a parent may not impede a child from attending school, and that includes withholding a child from school so he may work to support his family. In addition, the court found it was not in Oliver's best interest to be placed in plaintiff's custody because, as an illegal alien, plaintiff may be deported. However, first, there is no evidence deportation was imminent or that any deportation proceeding even had been commenced. Second, plaintiff has 7 A-3822-16T3 initiated an action to become a lawfully-present alien, specifically, an alien granted asylum. Third, even if plaintiff were deported at some point in the future, Oliver may by then be emancipated. Thus, the trial court's concern plaintiff is not eligible to take custody of Oliver because presently plaintiff is an undocumented immigrant is unfounded. Further, the court's conclusion Oliver has the option of living with relatives in Guatemala is not supported by the evidence. There is no indication Oliver's relatives, some of whom do not even have homes, are willing to contribute toward Oliver's support in any manner. More important, there is no law in our State that would compel Oliver's relatives -- other than his parents or a guardian who is a relative-- to contribute toward Oliver's support. We are aware Oliver has turned eighteen years of age since the hearing. However, an alien juvenile is eligible for SIJ classification as long as he is under twenty-one years of age. In O.Y.C.P, we held the Family Part is obligated to make SIJ findings in cases where a child is between the ages of eighteen and twenty-one. A.E.C. v. P.S.C., _____ N.J. Super. _____ (App. Div. 2018) (slip op. at 2). Further, "[p]ursuant to N.J.S.A. 9:17B-3, the Family Part has jurisdiction to grant a [guardian] custody of an 8 A-3822-16T3 unemancipated child who is over eighteen, but under twenty-one, and to issue a declaratory ruling that the child is dependent on [such guardian] and is not emancipated[,]" ibid., and the court may place the custody of a juvenile in another as part of an SIJ-related application, ibid. As we stated in A.E.C.: Indeed, the idea that child custody necessarily ends, or is barred, when a child turns eighteen, is belied by the case law concerning emancipation. These related concepts were addressed in the seminal case of Newburgh v. Arrigo, 88 N.J. 529 (1982), which held that in appropriate circumstances, parents must contribute to the college expenses of a child over age eighteen. Id. at 543. . . . . There is ample precedent for declaring children over the age of eighteen to be unemancipated when they are still completing their education, are economically dependent on their parents, and remain within the parental "sphere of influence and responsibility." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995))[.] . . . Lastly, to address the related SIJ issue, we conclude that either a declaration of unemancipation or a custody order would justify the court in noting, for purposes of an SIJ finding, that the child is "dependent" on the court. See 8 C.F.R. § 204.11(c). A finding of dependency dovetails with the underlying purpose of the pertinent language in N.J.S.A. 9:17B-3, which recognizes that in appropriate situations, young adults still depend on the protection of the Family Part. See Recinos v. Escobar, 46 N.E.3d 60, 67-68 (Mass. 2016) 9 A-3822-16T3 (noting that the SIJ statute "does not limit the dependency requirement to a custody determination."). [Id. at 13-15 (footnote omitted).] In light of the deficiencies in the trial court's ruling, we reverse the March 28, 2017 order and remand this matter to the trial court to: (1) determine whether the mother abused, neglected, or abandoned Oliver under New Jersey law; (2) decide plaintiff's application for custody of Oliver; and (3) make findings as to all of the factors in 8 C.F.R. § 204.11(c). The trial court shall make its findings based upon the evidence adduced at the March 28, 2017 hearing, and shall set forth its findings in a written decision within forty-five days. Plaintiff shall have fifteen days from the day he receives the court's written decision to file a supplemental brief with this court, which shall not exceed ten pages. Because of our disposition, we need not reach plaintiff's remaining arguments. Reversed and remanded for further proceedings consistent with this opinion. We retain jurisdiction. 10 A-3822-16T3

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Docket No.: a3892-15
Decided: 2018-02-15
Caption: STATE OF NEW JERSEY v. ALLAN FARMER
Status: unpublished
Summary:
PER CURIAM In this appeal, defendant Allan Farmer challenges the denial of his motion to suppress drugs and a weapon that were seized during a search of his motel room, and a weapon that was seized during a subsequent search of an unoccupied apartment. Both searches were conducted without a warrant, and had their genesis in a tip police received from a known informant that defendant possessed an assault weapon, which he planned to move from one room to another room in the motel. For the reasons that follow, we affirm. I. Defendant was charged with first-degree attempted murder and various drug and weapons offenses in a series of Union County indictments, including Indictment Nos. 08-11-0953-I, 08-12-1156- I, 09-04-0317-I, 09-04-0318-I, 09-07-0600-I, 09-10-0926-I, 10-08- 0870-I, and 11-02-0159-I. Specifically at issue in this appeal are Indictment Nos. 09-04-0317-I and 09-04-0318-I, which stem from the December 4, 2008 warrantless searches of the motel room and vacant apartment. Indictment No. 09-04-0317-I charged defendant with third- degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f) (count two), fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count three); 2 A-3892-15T1 third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39- 5(c)(1) (count four); and third-degree possession of a prohibited weapon (sawed-off shotgun), N.J.S.A. 2C:39-3(b) (count five). In Indictment No. 09-04-0318-I, defendant was charged with second- degree certain persons not to possess weapons, N.J.S.A. 2C:39- 7(b)(1) (count one); and fourth-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(a) (count two). From March 19, 2010, to April 12, 2010, the trial court conducted evidentiary hearings on defendant's motions to suppress evidence relating to Indictment Nos. 08-11-0953-I, 09-04-0317-I, 09-04-0318-I, and 09-07-0600-I.1 Pertinent to this appeal, on April 19, 2010, the motion judge denied defendant's motion to suppress the guns and drugs seized from the motel room and vacant apartment. On January 15, 2016, defendant entered into a consolidated plea agreement on Indictment Nos. 08-12-1156-I, 09-04-0317-I, 09- 04-0318-I, 09-10-0926-I, 10-08-0870-I, and 11-02-0159-I. Defendant pled guilty to (1) count two of Indictment No. 08-12- 1156-I, third-degree possession of cocaine; (2) count one, third- degree possession of cocaine, and count two, third-degree unlawful possession of an assault firearm, under Indictment No. 09-04-0317- 1 The record reflects the court granted defendant's motion to suppress evidence in Indictment No. 09-07-0600-I, presumably resulting in the dismissal of that indictment. 3 A-3892-15T1 I; (3) count two of Indictment No. 09-10-0926-I, second-degree resisting arrest; and (4) count one of Superseding Indictment No. 11-02-0159, first-degree attempted murder. Defendant reserved the right to appeal the denial of his suppression motions. In return, the State agreed to (1) dismiss the remaining counts of those four indictments; (2) dismiss Indictment Nos. 09-04-0318 and 10-08- 0870-I in their entirety; and (3) recommend an aggregate twelve- year prison sentence with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On March 11, 2016, the trial court sentenced defendant to an aggregate ten-year prison term, with an eighty- five percent period of parole ineligibility under NERA. II. As noted, in this appeal, defendant challenges only the December 4, 2008 warrantless searches of his motel room and an unoccupied apartment, which formed the basis of Indictment Nos. 09-04-0317-I and 09-04-0318-I. We recount the facts developed in connection with defendant's motion to suppress the evidence seized in those searches. The State presented the testimony of Detective James Malone, Jr. at the suppression hearing. Malone estimated he had made over 1000 narcotics-related arrests and "probably a couple hundred" 4 A-3892-15T1 gun-related arrests during his twenty-five-year career with the Elizabeth Police Department. Malone testified that on December 4, 2008, he received an in- person tip from a confidential informant (CI) that defendant possessed a weapon in Room 204 of the Knights Inn. The CI referred to the weapon as an AK47, but he described it to Malone as a smaller automatic weapon. The CI advised Malone that defendant told the CI he was preparing to move the AK47 to room 210 "because too many people knew he had it and sooner or later the police were going to find out and come looking for it." According to Malone, the CI had provided credible information that led to arrests in the past. Malone was already familiar with defendant "as someone who was violent and selling drugs in the Elizabeth area." Malone was also aware that the Knights Inn was a high-crime area, known for narcotics and prostitution, and he had previously made some ten to fifteen arrests there. After receiving the tip, Malone, accompanied by Sergeant Todd Kelly, Detective Lawrence Smith, Detective Thomas Mekros, and Detective Jim D'Oreo, immediately drove to the Knights Inn to investigate, arriving there at approximately 9:49 p.m. As the officers pulled into the Knights Inn parking lot in their unmarked car, they observed defendant walk across the second-floor walkway and enter Room 204 with a key card. 5 A-3892-15T1 Malone testified there was no "vantage point where [the police] could sit and watch that particular apartment without sooner or later being detected as police officers." He further explained that, even if he had a vantage point where he could watch the hotel room, he would not be able to tell if someone left the room with the gun because "[i]t could have been placed down their pants [or] under a jacket." He also deemed it "way too dangerous to place someone up on the second floor waiting for someone to come out with . . . a weapon[,]" and stated the police officers' "vests would be useless with an AK47." Malone cited his inability to safely approach Room 204 to make further observations, the danger involved with the assault weapon, and the lateness of the hour, as reasons he decided to attempt to gain defendant's consent to search the motel room rather than seek a search warrant. He conceded, however, that the officers have "pager numbers" and "[j]udges that [they] can call to get warrants no matter what the hour." The police proceeded to Room 204, with Detective D'Oreo leading the way. D'Oreo walked by Room 204's window and observed defendant in the room. He also saw a woman, subsequently identified as M.P.,2 lying on the bed. 2 M.P. subsequently testified at the suppression hearing. We use initials to protect the privacy interests of the witnesses. 6 A-3892-15T1 D'Oreo knocked and defendant opened the motel room door. Malone asked defendant if the officers could enter and defendant consented. Defendant was aware they were police officers, and Malone informed defendant they "had a report that he was in possession of a . . . firearm, or . . . [they] suspected that he was in possession of a firearm." Malone then "asked [defendant] if he had a weapon, he said he did and I said where is it, he pointed towards the bathroom. And I asked [defendant] if I could go retrieve it and he said yes." Malone went to the bathroom and discovered a semi-automatic Tec 9 assault weapon and a plastic bag containing a vial of cocaine. The assault weapon was loaded with an attached large- capacity magazine containing eighteen rounds of ammunition. The police also recovered marijuana and drug paraphernalia, which they observed in plain view on the nightstand next to the bed. According to Malone, defendant was cooperative, was not handcuffed, and there were no guns drawn on him throughout this interaction. On cross-examination, Malone conceded the police had no consent forms with them and did not inform defendant he had the right to refuse consent to search the room. 7 A-3892-15T1 After Malone stated he found the weapon, Detective Mekros advised defendant of his Miranda3 rights and asked him if he had any other weapons. Defendant replied "there was another shotgun located at XXX Westminster Ave."4 Malone testified that "[a]s far as the apartment number[,] [defendant] didn’t know. He said if you walked in . . . through the front door it was the first apartment to the right and it would be in there." Defendant was then arrested and transported to police headquarters. Malone and the other officers then drove to XXX Westminster Avenue, which was also in an area known to be "[h]igh in crime" and "high in narcotics and prostitution." Upon arriving, Malone rang the superintendent's doorbell and the superintendent's brother, J.H., answered. In his statement to police, the superintendent, A.B., explained that J.H. "is sort of like [his] helper and he lives with [him]." Believing that J.H. was the superintendent, Malone asked him if anyone lived in the apartment that defendant had described to the police. J.H. responded "no it was vacant" but "they were getting ready to rent it." When asked if anything was in the 3 Miranda v. Arizona, 384 U.S. 436 (1966). 4 We use a fictitious street address to protect the privacy of the owners and occupants of the multi-family dwelling. 8 A-3892-15T1 apartment, J.H. replied "no, there shouldn’t be." Malone asked J.H. if he could enter the apartment to look, and J.H. consented. Malone and the other officers entered the apartment and, in the kitchen, Detective Larry Smith found a sawed-off shotgun on top of the cabinets. Smith also found a bag containing numerous letters addressed to defendant. Malone testified that the apartment was "clearly vacant" and there was "[n]o furniture, no clothes, [and] some paint cans." He elaborated that the apartment "smelt of freshly painted walls or ceilings for that matter." The superintendent's statement to police was admitted in evidence without objection at the suppression hearing. In his statement, A.B. confirmed that the apartment had been vacant for approximately three months. Consequently, defendant may have had access to the apartment "because it was unlocked." A.B. stated he had seen defendant around XXX Westminster Avenue "[a] lot of times" because he "sells drugs." M.P. testified on behalf of defendant at the suppression hearing and gave a different version of events. M.P. described herself as defendant's girlfriend and confirmed she was present in the motel on the night of the police entry. According to M.P., the police did not announce their presence but instead "they kicked the door in and [ran] in with guns, and stuff, and they put us in handcuffs." The police then began searching the room while asking 9 A-3892-15T1 "Where's the gun at? Where's the gun at?" After searching for approximately twenty minutes, one of the officers announced he found a gun in the bathroom. On cross-examination, M.P. denied any knowledge of the gun or the marijuana on the nightstand. After hearing the testimony of both witnesses, the motion judge found Malone "was a credible and believable witness." Specifically, the judge found Malone was "calm, persuasive, prepared, and responsive to the questions[,]" and there was "nothing in [Malone's] demeanor that caused me any problems in accepting the truthfulness of his testimony." In contrast, the judge found M.P. "not to be a credible or believable witness." The judge cited M.P.'s "prior conviction for prostitution, her hesitancy in responding [to] questions, and her admitted relationship with . . . defendant" as factors bearing on his credibility determination. The judge found that, while probable cause may not have initially existed to search the motel room based on the CI's tip alone, "when Detective Malone saw [defendant] use a key card to enter [room 204], then at that point probable cause had clearly ripened." The judge concluded that "exigent circumstances . . . existed and they justified not applying for [a search] warrant." The judge elaborated: 10 A-3892-15T1 [W]e have a firearm by a violent offender in a fly-by-night hotel where . . . there is occupancy that is in and out, we know that a defendant is . . . aware that too many people know [about] the gun and are about to move it, we have a surveillance point where the officers could easily be detected if they waited [too] long. I'm satisfied that it was objectively reasonable under the circumstances for the police officers upon seeing [defendant] go into that room for those officers to go to that room and to ask and to inquire regarding it. I am further satisfied that upon [corroborating] the tip, by observing [defendant] enter Room [204] it was reasonable for the officers to enter without a warrant and to search and seize any weapons found. The judge also found that defendant's consent to the search of the motel room formed an independent basis to validate the search. The judge reasoned: [A]lternately, I'm also satisfied that there was consent to search here. After knocking at the door and allowing the . . . officers['] entry into the apartment, once he was confronted with the information they had it, [defendant] gave no indication . . . of anything other than cooperation, he never said anything, he nodded in the direction of the . . . bathroom where the weapon was ultimately recovered. I'm satisfied that given [defendant's] previous experience, he testified under another indictment that he understands the system as well as anyone, and . . . under all of the circumstances he knew that he had a right to refuse [the] search, he had a right to refuse the . . . occupancy of that motel room by the officers. There was certainly no 11 A-3892-15T1 break in by the officers. They confronted him with the information they had and he gave it up willingly. So I'm satisfied that there is probable cause plus exigency but alternately I'm satisfied that the defendant consented to this search. With respect to the ensuing search at XXX Winchester Avenue, the judge found it "clear" that defendant "has standing to contest seizure in that vacant room." Nonetheless, the judge determined that merely because [defendant] has automatic standing to contest the seizure does not mean that he has an expectation of privacy in a room in which he has no tenancy. Merely because he was an apparent trespasser or . . . a former tenant does not mean that he has the right to assert that the superintendent of the building cannot consent to a search of that vacant apartment and I'm satisfied that the recovery of the firearms at [XXX] . . . [Westminster] Avenue was reasonable under the circumstances. That search is good without the necessity of a warrant . . . . And I'm also satisfied that under [Wong Sun v. United States, 371 U.S. 471 (1963),] even if there was any illegal arrest . . . in the initial intrusion, that the providing of [defendant] with his Miranda [r]ights and the consent of the . . . superintendent that the recovery of the firearm[] would have been admissible even had there been any original violation but I don't find there was any Fourth Amendment violation to begin with. Consequently, the judge denied defendant's motion to suppress the evidence seized from the motel room and vacant apartment. This 12 A-3892-15T1 appeal followed, in which defendant presents the following arguments: THE TRIAL COURT'S FAILURE TO SUPPRESS THE EVIDENCE SEIZED IN THE ILLEGAL SEARCHES OF THE MOTEL ROOM AND THE APARTMENT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS. A. NEITHER THE INFORMER'S TIP ALONE NOR THE CORROBORATION OF THE ASPECT OF THE TIP THAT PLACED [DEFENDANT] AT THE MOTEL PROVIDED PROBABLE CAUSE TO SEARCH THE MOTEL ROOM. B. THE TRIAL JUDGE'S FINDINGS OF FACT WITH RESPECT TO THE SEARCH OF THE MOTEL ROOM ARE NOT BASED ON CREDIBLE EVIDENCE IN THE RECORD. C. [DEFENDANT] DID NOT GIVE VALID CONSENT TO SEARCH BECAUSE THE POLICE DID NOT TELL HIM THAT HE HAD THE RIGHT TO REFUSE CONSENT. D. NO EXIGENCY JUSTIFIED THE WARRANTLESS SEARCH. E. THE EVIDENCE SEIZED FROM THE APARTMENT WAS EXCLUDABLE AS THE FRUIT OF THE POISONOUS TREE BECAUSE IT WAS THE PRODUCT OF THE UNLAWFUL SEARCH OF THE MOTEL ROOM. II. Our Supreme Court has recently reaffirmed the principles by which our review is governed: 13 A-3892-15T1 An appellate court reviewing a motion to suppress evidence in a criminal case must uphold the factual findings underlying the trial court's decision, provided that those findings are "supported by sufficient credible evidence in the record." State v. Scriven, 226 N.J. 20, 40 (2016). The suppression motion judge's findings should be overturned "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)). However, we owe no deference to conclusions of law made by lower courts in suppression decisions, which we instead review de novo. State v. Watts, 223 N.J. 503, 516 (2015). [State v. Boone, ___ N.J. ___, ___ (2017) (slip op. at 9).] An appellate court remains mindful not to "disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." Elders, 192 N.J. at 244 (quoting Johnson, 42 N.J. at 162). Rather, we reverse only when the court's findings "are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, 42 N.J. at 162). Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, a warrantless search is presumed invalid, and places the burden on 14 A-3892-15T1 the State to prove that the search "falls within one of the few well-delineated exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). A. With these principles in mind, we first address defendant's arguments with respect to the search of the motel room. It is true, as defendant contends, that "[p]olice are generally required to secure a warrant before conducting a search of . . . a hotel room." State v. Hathaway, 222 N.J. 453, 468 (2015) (citing Stoner v. California, 376 U.S. 483, 486 (1964)). Defendant contends the trial court erred in upholding the validity of the search of the motel room based on the exigent circumstances and consent exceptions to the warrant requirement. (i) Exigent Circumstances "New Jersey law establishes that one exception to the warrant requirement of Article I, Paragraph 7 is a search justified by probable cause and exigent circumstances." Brown v. State, 230 N.J. 84, 101 (2017). Although "exigent circumstances" cannot be precisely defined or reduced to a neat formula, see State v. Nishina, 175 N.J. 502, 516 (2003), some factors to be considered in determining whether law enforcement officials faced such circumstances are the urgency of the situation, the time it will take to secure 15 A-3892-15T1 a warrant, the seriousness of the crime under investigation, and the threat that evidence will be destroyed or lost or that the physical well-being of people will be endangered unless immediate action is taken. . . . At the very least, exigent circumstances will be present when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene. [State v. Johnson, 193 N.J. 528, 552-53 (2008).] "Police officers oftentimes must rely on information provided by others in assessing whether there is probable cause to believe a crime has been committed or whether there is an objectively reasonable basis to believe an ongoing emergency threatens public safety." Hathaway, 222 N.J. at 470-71. Hearsay may constitute probative evidence of probable cause "so long as a substantial basis for crediting the hearsay is presented." State v. Smith, 155 N.J. 83, 92 (1998) (quoting State v. Novembrino, 105 N.J. 95, 111 (1987)). An informant's "veracity" and "basis of knowledge" are two highly relevant factors under the totality of the circumstances. Ibid. A deficiency in one of those factors "may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." 16 A-3892-15T1 Illinois v. Gates, 462 U.S. 213, 233 (1983). An informant's veracity may be established in a variety of ways. For example, "the informant's past reliability will contribute to the informant's veracity." State v. Zutic, 155 N.J. 103, 110-11 (1998) (citations omitted). In this case, there is sufficient credible evidence in the record supporting the motion judge's ruling that exigent circumstances existed at the time of the officers' search of defendant's motel room and that the police had probable cause to search the room. As required under Johnson, Detective Malone and his fellow officers had probable cause to believe the public would be exposed to physical danger and defendant would remove a dangerous assault weapon from the scene if they did not search his motel room. The tip that created this probable cause was not offered anonymously. Rather, it came from a known informant, who explained to Malone that defendant was preparing to move an assault weapon out of his motel room "because too many people knew he had it and sooner or later the police were going to find out and come looking for it." The veracity of the CI's information was buttressed by his past credibility. The CI had provided information to the police in the past, which led to arrests. Furthermore, the CI's source of knowledge came from his direct conversation with defendant, 17 A-3892-15T1 during which defendant himself spoke about the gun and expressed to the CI his intention to move it. Additionally, Malone already knew defendant "as someone who was violent and selling drugs in the Elizabeth area." Malone testified that he and the other officers did not have a vantage point where they could watch defendant's motel room "without sooner or later being detected as police officers." He further indicated that, even if the police had a vantage point from which they could watch the room, they would not be able to tell if someone left the room with the weapon because it "could have been placed down their pants [or] under a jacket." Malone testified, however, that he and the other officers were able to observe defendant walking across the second-floor walkway of the hotel and into Room 204, using a key card to get in, thus corroborating the CI's information. We must "examine the conduct of [the police] in light of what was reasonable under the fast-breaking and potentially life- threatening circumstances that were faced at the time." Hathaway, 222 N.J. at 469 (citing State v. Frankel, 179 N.J. 586, 599 (2004)). "When viewing the circumstances of each case, a court must avoid 'the distorted prism of hindsight' and recognize 'that those who must act in the heat of the moment do so without the 18 A-3892-15T1 luxury of time for calm reflection or sustained deliberation.'" Ibid. (citing Frankel, 179 N.J. at 599)). Here, the police were confronted with rapidly developing circumstances. The C.I. reported that defendant had a dangerous assault weapon in the motel room and planned to move it. The officers recognized defendant as a violent person who had previously engaged in illegal drug transactions. The police thus faced a situation where a substantial likelihood existed that they, along with any occupants of the motel, would be exposed to physical danger, and defendant could have concealed the weapon and removed it from the scene, during the period of time required to obtain a search warrant. We conclude that credible evidence in the record supports the judge's determination that the officers had probable cause to search defendant's motel room under the exigent circumstances exception to the warrant requirement. (ii) Consent Consent is a well-recognized exception to the Fourth Amendment's search warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 227-28 (1973). Furthermore, "consent searches are considered a 'legitimate aspect of effective police activity.'" State v. Domicz, 188 N.J. 285, 305 (2006) (quoting Schneckloth, 412 U.S. at 228). 19 A-3892-15T1 "Consent may be obtained from the person whose property is to be searched, from a third party who possesses common authority over the property, or from a third party whom the police reasonably believe has authority to consent." State v. Maristany, 133 N.J. 299, 305 (1993) (citations omitted). To be valid, a consent to search must be voluntary and knowing in nature. Schneckloth, 412 U.S. at 222. In New Jersey, the person giving consent must first be advised of his or her right to refuse. State v. Johnson, 68 N.J. 349, 353-54 (1975). Preliminarily, defendant concedes the State was not required to show he knew he could refuse to let the police enter the motel room. See State v. Padilla, 321 N.J. Super. 96, 102-03 (App. Div. 1999) (distinguishing between consent to allow police to enter motel room, which does not require notice of right to refuse, and consent to let police search the room, which requires that defendant be advised of right to refuse). Notwithstanding, we part company with the motion judge's conclusion that defendant validly consented to the subsequent search of the room. It is undisputed the police did not inform defendant of his right to refuse consent. Nor can we infer from the fact that defendant was previously involved in "the system" that he knew he had the right to refuse consent or otherwise had a choice in the matter. Accordingly, on this record, we are 20 A-3892-15T1 constrained to find defendant's consent to search the room was not voluntary. B. Finally, we address defendant's challenge to the subsequent search of the XXX Westminster Avenue apartment. Defendant argues the sawed-off shotgun seized there should be suppressed as the fruit of the illegal search of the motel room. He contends that, "[h]ad the police not conducted the unconstitutional search of the motel room and found a gun, they would not have arrested [defendant] and obtained his confession concerning the second gun at the apartment." We disagree. "The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion." Wong Sun, 371 U.S. at 485. "[V]erbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest . . . is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion." Ibid. Here, the "fruit of the poisonous tree" doctrine does not apply because the search of the motel room was valid under the exigent circumstances exception to the warrant requirement. Moreover, defendant told the officers about the gun in the 21 A-3892-15T1 Westminster Avenue apartment after he was administered Miranda warnings, the validity of which he does not otherwise challenge. We note further that "under Article I, Paragraph 7 of the New Jersey Constitution, 'a criminal defendant is entitled to bring a motion to suppress evidence obtained in an unlawful search and seizure if he has a proprietary, possessory or participatory interest in either the place searched or the property seized.'" State v. Randolph, 228 N.J. 566, 581-82 (2017) (quoting State v. Alston, 88 N.J. 211, 228 (1981)). However, "[a]n accused will not have standing to challenge a search of abandoned property, property on which he was trespassing, or property from which he was lawfully evicted." Id. at 585 (citations omitted). "The State has the burden of establishing that one of those exceptions applies to strip a defendant of automatic standing to challenge a search." Ibid. (citing State v. Brown, 216 N.J. 508, 527-28 (2014)). "A landlord of a building or his agent — if identifiable and available — presumably would know whether an apartment is leased and to whom." Id. at 586. "[C]ontacting the person who knows the rental status of the apartment is one way the police can identify a trespasser." Ibid. Here, the police contacted the building superintendent and were informed by his helper, J.H., that the apartment defendant described was vacant and unoccupied. Accordingly, defendant 22 A-3892-15T1 lacked any possessory or proprietary interest in the Westminster Avenue apartment and at best was a trespasser there, as the motion judge aptly concluded. Further, the police reasonably believed J.H. was the superintendent and was thus vested with the authority to consent to the search of the vacant apartment. Affirmed. 23 A-3892-15T1

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Docket No.: a4163-15
Decided: 2018-02-15
Caption: STATE OF NEW JERSEY v. JOHN K. AGYEMANG
Status: unpublished
Summary:
PER CURIAM We granted defendant John K. Agyemang's motion for leave to consolidate appeals relating to his applications for a Graves Act1 waiver, discovery for Graves Act cumulative files, and post- conviction relief (PCR). Although not requested in that motion we also consolidate his appeal from the denial of his motion for a new trial for purpose of this opinion. Defendant was convicted after a jury trial of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(a)(1), and third-degree criminal restraint, N.J.S.A. 2C:13- 2(a).2 He argues: POINT I THE LOWER COURT ERRED IN DENYING APPELLANT'S MOTION TO ACCESS THE STATE'S GRAVES ACT CUMULATIVE FILES. POINT II THE LOWER COURT ERRED IN DENYING APPELLANT'S PETITION FOR [PCR]. A. FAILURE TO MAKE A GRAVES WAIVER APPLICATION B. FAILURE TO REQUEST THE CUMULATIVE FILE C. FAILURE TO CALL CHARACTER WITNESSES 1 N.J.S.A. 2C:43-6(c). 2 The State dismissed a fourth-degree aggravated assault charge in the indictment against defendant after the jury could not reach a verdict on that count. 2 A-4163-15T2 D. FAILURE TO CALL DR. PIERSON E. FAILURE TO PROVIDE THE JURY WITH INFORMATION REGARDING WHY A GUN OWNED BY APPELLANT WAS IN POLICE CUSTODY F. FAILURE TO OBJECT TO STATE POINTING A GUN AT THE JURY DURING CLOSING STATEMENTS G. FAILURE TO ADEQUATELY MEET WITH APPELLANT PRIOR TO HIS TESTIFYING POINT III THE [LOWER] COURT ERRED IN NOT GRANTING APPELLANT'S MOTION FOR NEW TRIAL BASED ON THE NUMEROUS ISSUES DURING TRIAL AND CLOSING ARGUMENTS. POINT IV THE LOWER COURT ERRED IN FAIING TO GRANT A NEW TRIAL DUE TO THE FACT THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. We disagree and affirm. I. We reject defendant's arguments in Point I. Our Supreme Court recently held that "defendants are not entitled to discovery of a prosecutor's case-specific memorializations and cumulative files when challenging the denial of a Graves Act waiver in an Alvarez3 motion because there are sufficient procedural safeguards in place for meaningful judicial review of a prosecutor's waiver 3 State v. Alvarez, 246 N.J. Super. 137 (1991). 3 A-4163-15T2 decision." State v. Benjamin, 228 N.J. 358, 375 (2017). The motion judge, therefore, did not err in denying defendant's request for the State's cumulative files in order to challenge the denial of his request for a Graves Act waiver.4 II. Defendant's timely-filed PCR application was denied without an evidentiary hearing. Our review of the factual inferences drawn by the court from the record is therefore de novo. State v. Blake, 444 N.J. Super. 285, 294 (App. Div.), certif. denied, 226 N.J. 213 (2016). Likewise, we review de novo the PCR court's legal conclusions. Ibid. In order to establish a case of ineffective assistance of counsel defendant must demonstrate a reasonable likelihood of success under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 694 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must first show that counsel was deficient, or made errors so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment of the United States Constitution. Strickland, 4 On motion by the prosecutor or referral by a sentencing judge with the approval of the prosecutor, N.J.S.A. 2C:43-6.2 authorizes an assignment judge to grant relief from the mandatory-minimum- term sentencing provisions of the Graves Act, N.J.S.A. 2C:43-6(c), for first-time Graves Act offenders. 4 A-4163-15T2 466 U.S. at 687. A defendant must also demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690. Further, because prejudice is not presumed, Fritz, 105 N.J. at 60-61, defendant must establish "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). Because, under the Benjamin holding, the State's cumulative files were not discoverable, 228 N.J. at 375, we reject defendant's argument that counsel was ineffective for failing to request those files. Defendant's argument that his trial counsel was ineffective because he failed to seek a Graves Act waiver fails to convince us that the results of the proceedings would have been different if an application was made. There is no indication the prosecutor would have moved the assignment judge to impose a reduced sentence, especially considering the State claimed – and the jury obviously found – defendant possessed a gun for an unlawful purpose during a videotaped incident in which he criminally restrained the victim. 5 A-4163-15T2 Moreover, the prosecutor's motion for waiver would not have automatically resulted in a probationary sentence. If a prosecutor moves before an assignment judge, the judge has the authority to choose to impose a probationary sentence or a one-year mandatory prison term. State v. Nance, 228 N.J. 378, 394 (2017). A prosecutor may argue in favor of one sentence recommendation or another, but the judge need not accept that recommendation. Ibid. Further, the acceptance of a Graves Act waiver does not exempt defendant – on a second-degree crime – from the presumption of incarceration. Id. at 395-96. Defendant contends trial counsel failed to submit evidence of: defendant's long-standing military service; his protection- based reason for possessing the gun in connection with his pharmacy practice; his assertion that he had no intention to harm anyone when he pranked the victim; and the numerous character references accessible to counsel, so that defendant's case could be "removed from the normal course of prosecution" and a probationary sentence be extended. We agree with the PCR judge's finding that there is nothing in the record to indicate defendant would have accepted a probationary sentence. Defendant also argues his trial counsel ineffectively failed to call character witnesses and Dr. Melvin Pierson at trial. A defendant who "asserts that his attorney failed to call witnesses 6 A-4163-15T2 who would have exculpated him . . . must assert the facts that would have been revealed, 'supported by affidavits or certifications based upon . . . personal knowledge'". State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). As the PCR judge found, defendant failed to submit, in connection with his PCR petition, affidavits or certifications from any prospective character witnesses or Pierson. We do not know what those witnesses would have said, and do not know if they were available to testify. See State v. Arthur, 184 N.J. 307, 326 (2005). Defendant also failed to establish the second prong of the standard in arguing trial counsel erred in failing to call witnesses to testify about his reputation for honesty and non- violence. Even if counsel was ineffective by failing to call those witnesses, defendant's reputation for honesty was besmirched when, in his statement to police, he denied pointing the gun at the victim, contrary to surveillance footage which showed him doing just that. His reputation for non-violence was also sullied by that same footage. Testimony of any character witnesses would be dubious in light of that evidence. Likewise, even considering defendant's now-proffered argument that Pierson would have testified that he "consistently played 7 A-4163-15T2 jokes on [the victim] and others . . . during [the victim's] employment" with Pierson, showing the victim had reason to believe she was not in danger, that evidence does not satisfy the second prong of the standard. The victim did not know of Pierson's involvement until well after the incident. The victim's mental state, as the PCR judge noted, was not an element of either crime for which defendant was convicted. And defendant admitted that the victim was so shaken during the incident she could not dial the phone to call Pierson, and that Pierson never told defendant to possess or point a gun during the prank. We reject defendant's argument that counsel was ineffective for failing to present evidence to explain a detective's trial testimony referencing a gun owned by defendant – not relevant to the instant matter – that was in police custody. The statement was made when the assistant prosecutor was attempting to elicit from the detective defendant's misstatements about where the gun brandished to the victim was located. After the detective related defendant's statement that the gun was in a gun shop, the assistant prosecutor asked if defendant mentioned that the gun was at another location. Instead of the answer the prosecutor was seeking – that defendant said it was at a friend's house – the detective said, "There was another weapon that he said was in . . . police custody." Trial counsel thereafter cross-examined the detective about his 8 A-4163-15T2 mention of three guns and established that the detective might not have been clear in questioning defendant about the location of the gun he was seeking. The trial judge characterized the statement by the detective as "fleeting" – so fleeting that he missed it. In fact, trial counsel broached the subject to the trial judge saying, "I don't know if the [c]ourt's aware, but one of the weapons [defendant] owned was in the custody of the police for some other reason." It is clear that the brief comment about the gun had no relation to the gun used during the crimes charged against defendant, and that there was no mention that another gun was in police custody because of some other misdeed by defendant. Because there was no evidence elicited about the gun in police custody, the jury would had to have speculated about that gun in order for defendant to be prejudiced – an act from which they were prohibited by the trial judge in his final charge. A jury is presumed to follow the trial court's instructions, State v. Burns, 192 N.J. 312, 335 (2007); hence, defendant was not prejudiced by the detective's fleeting remark. Defendant contends trial counsel was ineffective for failing to object when the assistant prosecutor – during summation – pointed the gun toward the jury panel. The record reveals the 9 A-4163-15T2 prosecutor pointed the gun while she was refuting defendant's contention that the gun wasn't loaded: Oh, no, it wasn't loaded. Really? Why does he have the gun? To protect himself. He told you, I have it to protect myself in case I get robbed, in case somebody comes in and tries to shoot me, in case someone tries to harm me. I put it in my holster every morning. That's what he said. Oh, no, but I have the clip hanging. Okay. Oh, I'm sorry. You're robbing me? Can you wait a minute? Don't shoot yet. I've got to get my gun out, take my loaded magazine, which is hanging there, and shove it in now, and now -- now I can -- I'm so sorry that I pointed it that way. And now I can protect myself. Really? The PCR judge found "the record is clear that the gun was not loaded." The trial judge also told the jury they would not have the bullets and the gun together in the jury room. Examining defendant's contention under the circumstances existing at the time, we conclude defendant has met neither of the Fritz/Strickland factors. The brief and obviously inadvertent pointing of the unloaded gun during a demonstration of how defendant would unholster and load the weapon if threatened, followed by the prosecutor's immediate apology, was not objectionable or prejudicial. No objection was made. See State v. Frost, 158 N.J. 76, 83-84 (1999) (finding when a defense counsel fails to objects to improper remarks, "the remarks will not be deemed prejudicial"). Nor, especially since there was no evidence 10 A-4163-15T2 of any juror reaction, is there any established prejudice to defendant. If the pointing was simultaneously accompanied by the assistant prosecutor asking the jury how they would feel if a gun was pointed at them, our analysis and conclusion would differ; that was not the case here. Finally, defendant argues that trial counsel was ineffective because he failed to meet with defendant prior to his testimony, and have defendant "acknowledge" to the jury that his statement to the police in which he denied pointing the gun at the victim – a statement belied by the surveillance footage – was made in fear of being arrested. We determine that argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant admits that "it would have been difficult" for him to "explain" that motivation to the jury. Defendant was aware of the video and his statement. He knew he had falsely denied pointing the gun in the video – parts of which were played for the jury – and chose to continue that lie on the witness stand. It was not incumbent on trial counsel to manufacture an explanation. If that was the true reason for the initial lie to the police, nothing prevented defendant from relating that reason. Defendant's PCR application was properly denied. 11 A-4163-15T2 III. Defendant argues his motion for a new trial was erroneously denied, urging that the prosecutor effectively vouched for the victim's credibility by consoling her on the witness stand; and that the detective's testimony regarding the gun in police custody, combined with the prosecutor's conduct during summation – repeatedly telling the jury defendant was a liar, asking jurors how they would feel if a gun was pointed at them, and pointing the gun at the jury – denied him a fair trial. In a separate point, defendant argues he is entitled to a new trial because the verdict was against the weight of the evidence.5 Under our well-settled standard of review, pursuant to Rule 2:10-1, a trial court's ruling on a motion for a new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." A trial judge shall not set aside a jury verdict unless "it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. In this context, there is no difference between 5 We consider defendant's argument, rejecting the State's contention that it is procedurally barred because "post-conviction proceedings are not a substitute for direct appeal, and so, defendant's claims are inappropriately raised for the first time in the instant PCR appeal." The denial of the motion for a new trial was included in the notice of appeal; this is defendant's first appeal. 12 A-4163-15T2 "miscarriage of justice" and "manifest denial of justice under the law." See Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 3:20-1 (2017) (citing State v. Perez, 177 N.J. 540, 555 (2003)). "[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Armour, 446 N.J. Super. 295, 306 (App. Div.) (alteration in original) (quoting State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000)), certif. denied, 228 N.J. 239 (2016). We conclude the motion judge did not abuse his discretion in denying the motion and, incorporating our foregoing remarks on some of these issues, affirm substantially for the reasons set forth in his oral opinion on October 9, 2015. The grounds advanced by defendant did not clearly and convincingly establish a manifest denial of justice in light of the strong evidence supporting the State's allegations. Even if defendant did not receive a "perfect trial," he received a fair one. See State v. Loftin, 287 N.J. Super. 76, 110 (App. Div. 1996). Affirmed. 13 A-4163-15T2

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Docket No.: a0065-16
Decided: 2018-02-14
Caption: MARKKOSCINSKI v. NEW JERSEY MOTOR VEHICLE COMMISSION
Status: unpublished
Summary:
PER CURIAM Petitioner Mark Koscinski appeals from the June 27, 2016 final decision of respondent Motor Vehicles Commission (Commission), which increased the amount of a monthly surcharge payment it imposed after petitioner was convicted of driving while under the influence of alcohol in Illinois (Illinois conviction). We affirm. I Petitioner is a resident of New Jersey. In 2008, he was convicted of driving while intoxicated in New Jersey (New Jersey conviction), his first conviction for such offense. In 2011, petitioner was charged in Illinois for the same offense. For reasons not clear in the record, this charge was not resolved until April 8, 2015, when he pled guilty to this offense. The sentence the Illinois court imposed was that he "continue counseling in New Jersey"1 and pay a fine of $750. Both New Jersey and Illinois are members of the Interstate Driver License Compact (Compact), N.J.S.A. 39:5D-1 to -14 and N.J.A.C. 13:19-11.1. The compact requires party states to impose penalties upon licensed drivers who have been convicted of specific offenses in other states. After receiving a record of the Illinois conviction, on May 5, 2015, the Commission issued petitioner a notice of suspension. The noticed stated the Commission proposed to suspend petitioner's New Jersey driving privileges for 730 days, the statutorily mandated 1 The Illinois court does not specify the kind of counseling petitioner had to continue in New Jersey. 2 A-0065-16T4 minimum period for a second conviction. See N.J.S.A. 39:4- 50(a)(2). Petitioner was also advised of his right to request a hearing, including the format of the hearing request; specifically, the notice stated that if he was seeking a hearing, he was to detail all disputed material facts and specify all legal issues he wished to raise at the hearing. Petitioner promptly responded by letter, in which he requested a hearing, set forth what he perceived were material issues of fact, and identified the legal issues he deemed relevant to the proposed suspension of his license. On July 17, 2015, the Commission issued an "Order of Suspension" and "Denial of Hearing Request/Final Decision," in which it suspended petitioner's license for 730 days, effective August 17, 2015. In the order, the Commission denied petitioner's request for a hearing, finding none of the factual or legal issues petitioner asserted warranted such a proceeding. The order further stated it constituted a final decision of the Chief Administrator of the Commission, and that petitioner had forty- five days to file a notice of appeal in the Appellate Division. In a letter dated "July 17, 2018," petitioner asserted he was making a motion for reconsideration of the order; a complete copy of the petitioner's letter was not included in the record. We discern the motion for reconsideration was denied, but the 3 A-0065-16T4 Commission's decision also was omitted from the record. Petitioner did not appeal from the July 17, 2015 order or from the Commission's determination to deny his motion for reconsideration. In a letter dated June 7, 2016, petitioner informed the Commission he received a notice the Commission intended to increase the monthly payment toward the surcharge it imposed as a result of the Illinois conviction, from eighty-three to ninety-seven dollars per month.2 In that letter, petitioner requested a hearing before the Commission because: (1) although he did not appeal from either the New Jersey or Illinois convictions, he wanted to challenge both on the ground his sleep apnea condition caused him to drive while under the influence of alcohol; (2) he wanted to attack the Illinois conviction on the ground the prosecution of such matter was impermissibly delayed for four years; (3) the Commission improperly imposed monetary penalties and a two-year driver's license suspension "more than three years after the event"; and (4) the Commission was without authority to impose a surcharge or any increases on a surcharge because he had previously paid a fine to Illinois in connection with the Illinois conviction. 2 A copy of the notice was not included in the record. 4 A-0065-16T4 On June 27, 2016, the Commission issued a written decision, in which it pointed out N.J.S.A. 17:29A-35 requires an assessment of $1000 per year for three years when a New Jersey driver has been convicted of driving under the influence of alcohol. The Commission further explained petitioner owed $1062 toward the annual surcharge he had been required to pay in 2015; therefore, the Commission determined to impose a payment plan, whereby he would be required to pay ninety-seven dollars per month for the surcharge. The Commission also informed petitioner it did not have the authority to change any "court-reported violations" and, thus, if he questioned the validity of the Illinois conviction, he would have to submit documentation from an Illinois court stating he had not been convicted of driving while under the influence. The Commission did not grant petitioner's request for a hearing. Petitioner appeals from the June 27, 2016 determination. II On appeal, in addition to asserting contentions he did not raise before the Commission when he challenged the increase in the surcharge payment, petitioner reprises the arguments he made before the Commission and further contends the Commission erred when it failed to grant his request for a hearing. 5 A-0065-16T4 We do not address any contentions that were not made before the Commission. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). As for the remaining arguments, all are without merit. Our role in reviewing a decision of the Commission is limited. In the absence of a "a clear showing that it is arbitrary, capricious, unreasonable or not supported by credible evidence in the record as a whole[,]" the decision will be sustained. Klusaritz v. Cape May County, 387 N.J. Super. 305, 313 (App. Div. 2006); Brady v. Bd. of Review, 152 N.J. 197, 210- 11 (1997). We reject petitioner's argument the Commission was without authority to impose a surcharge or an increase in the surcharge because he had previously paid a fine to the Illinois court in connection with the Illinois conviction. The Compact provides for party states to impose penalties upon licensed drivers who have been convicted of specific offenses in other states. When a New Jersey driver has been convicted of driving under the influence of alcohol in another state, N.J.S.A. 39:5D-4 directs the Commission to "give the same effect to the conduct reported . . . as it would if such conduct had occurred in the home state," New Jersey. 6 A-0065-16T4 In New Jersey Division of Motor Vehicles v. Egan, 103 N.J. 350, 357 (1986), our Supreme Court reviewed the policy of the Director of the Division of Motor Vehicles to exercise the discretion granted by N.J.S.A. 39:5D-4 to "uniformly impos[e] New Jersey's more stringent penalty instead of being reduced to 'the least common denominator of other States[.]'" The Court noted the "legislative policy of exacting stringent penalties for drunk-driving offenses has never been stronger[,]" and concluded the "Director's administrative policy of imposing these home state penalties furthers this legislative policy" and was not an abuse of discretion. Ibid. Accordingly, petitioner was subject to punishment in both Illinois and New Jersey for driving while intoxicated. State, Div. of Motor Vehicles v. Pepe, 379 N.J. Super. 411, 418 (App. Div. 2005). The fact the Illinois court imposed a sentence did not preclude the Commission from imposing applicable mandatory sanctions and penalties for petitioner's second driving while intoxicated conviction. Thus, the Commission had the authority to impose the surcharge and any increases on such surcharge. We also reject petitioner's contention the Commission erred when it declined petitioner's request to hold a hearing, so that he could collaterally attack the New Jersey and Illinois convictions. Although the Administrative Procedure Act, 7 A-0065-16T4 N.J.S.A. 52:14B-1 to -15, affords licensees an administrative hearing if there are disputed material facts, see N.J.S.A. 52:14B-11, by the same token, a contested case hearing is not required where the material facts are not in dispute. Pepe, 379 N.J. Super. at 419 (noting if there are no disputed issues of fact, a hearing is unnecessary). Here, petitioner failed to identify any material facts that were in dispute, including the existence of the New Jersey and Illinois judgments of conviction. A hearing is not required when, as was the case here, "the agency is required by any law to revoke, suspend or refuse to renew a license, as the case may be, without exercising any discretion in the matter, on the basis of a judgment of a court of competent jurisdiction[.]" N.J.S.A. 52:14B-11; Tichenor v. Magee, 4 N.J. Super. 467, 470-71 (App. Div. 1949) (holding a hearing is not required when out-of- state conviction was undisputed). Petitioner argues that, had the Commission conducted a hearing, he would have successfully convinced it to overturn the New Jersey and Illinois convictions, once the Commission was made aware his sleep apnea condition caused him to drink alcohol and drive. We decline to delve into the many deficiencies of this argument. Suffice it to say there is no serious dispute 8 A-0065-16T4 the administrative hearing petitioner sought was not the appropriate forum in which to challenge these convictions. Finally, petitioner contends the four-year delay between being charged with the subject offense in Illinois in 2011 and disposition of this matter in 2015 precluded the Commission from taking any action against him. We reject this premise as unsupported by any statutory, regulatory or decisional authority. To the extent such delay impacts the Illinois conviction, petitioner's recourse is to challenge such conviction in Illinois, not in New Jersey. See, e.g., State v. Laurick, 120 N.J. 1, 11-12 (1990); State v. Ferrier, 294 N.J. Super. 198, 200 (App. Div. 1996); Tichenor, 4 N.J. Super. at 471 (where driver did not appeal Maryland conviction for drunk driving, he cannot "assert" invalidity of the same in a reciprocal suspension proceeding by New Jersey). To the extent we have not addressed any argument petitioner advances, it either is due to the fact such argument is not properly before us or is devoid of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 9 A-0065-16T4

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Docket No.: a0185-14
Decided: 2018-02-14
Caption: PAUL CIBELLI, JR v. JEANNETTE P. QUIROGA
Status: unpublished
Summary:
PER CURIAM Paul Cibelli, Jr. appeals from the July 25, 2014 Law Division order granting summary judgment to Jeannette P. Quiroga, his ex- girlfriend, and dismissing counts one through three of his four- count complaint.1 We reverse. Quiroga and Cibelli began a romantic relationship in 2006. In June 2007, Cibelli was convicted for murder of a former girlfriend and incarcerated until September 2009, when his conviction was reversed and he was released on bail pending a re- trial. After his release, Cibelli resumed his relationship with Quiroga until the end of September 2010, when the relationship ended. Following their break up, on October 12, 2010, Quiroga filed a domestic violence civil complaint and obtained a temporary restraining order (TRO) against Cibelli alleging harassment. During the ex parte TRO proceeding before a municipal court judge, Quiroga testified that although she had broken up with Cibelli "two weeks ago," he was "following" her and "text[ing] [her] every single day" despite telling him "to leave [her] alone" and to stop texting her. Quiroga testified that she was in "fear for [her] kids' li[ves] and [her] life." In addition to issuing the TRO, on the same date, the municipal court judge found "probable cause" for the issuance of 1 The remaining count of the complaint was dismissed without prejudice by a different judge on August 11, 2014. Plaintiff does not appeal that dismissal. 2 A-0185-14T2 a criminal complaint charging Cibelli with harassment, N.J.S.A. 2C:33-4. The police officer who had responded to Quiroga's home after she reported Cibelli to the police appeared before the municipal court judge to swear to the complaint. Upon questioning, the officer told the municipal court judge that he had "viewed [Quiroga's] cell phone" and there were "[fifteen] text messages from the 1st of October up until today . . . trying to reconnect with her." According to the officer, one of the text messages was "a picture text" of "an intimate photo" showing Quiroga topless, which "[Cibelli] basically threatened to print . . . and bring . . . to [Quiroga's] place of employment . . . ." The officer stated that Quiroga told him "all these text messages started" after Quiroga told Cibelli "she want[ed] no part of him anymore" and refused to "testify on his behalf . . . as a character witness" at his upcoming re-trial. On October 13, 2010, Cibelli was served with the TRO, arrested on the criminal complaint, and jailed. On the same date, the prosecutor on the murder charge filed an application in the Law Division "to revoke [Cibelli's] bail and remand him to the Correction Center pending the conclusion of this [re-]trial." The application was predicated upon the TRO and the criminal complaint issued the day before. The prosecuting attorney argued that Cibelli was "a danger to the community" based upon "[his] history 3 A-0185-14T2 of domestic violence with respect to his former wife and because of his actions now . . . ." Instead of revoking Cibelli's bail on the murder charge, the Law Division judge increased the bail from $1 million to $1.3 million, resulting in Cibelli being remanded. On November 19, 2010, a final restraining order (FRO) hearing was conducted during which Cibelli disputed that he engaged in harassing conduct. On the contrary, Cibelli claimed "they were involved in a dialogue about the relationship" and he "was only kidding" about threatening to expose the intimate photograph. At the hearing, Cibelli's aunt testified that she had two phone conversations with Quiroga in September 2010 during which Quiroga demanded "money" on a credit card debt she believed Cibelli owed her and threatened to "have [Cibelli] arrested" if "she [didn't] get the money . . . ." On cross-examination, Quiroga denied calling Cibelli's aunt solely about the credit card debt. According to Quiroga, she called his aunt because Cibelli "was scaring [her] because of the picture" and Cibelli had threatened "that if [she] were to call the attorney and his aunt . . . to tell them what was going on[,] that [she] was going to regret it." Ultimately, the Family Part judge denied Quiroga the FRO and dismissed the TRO and the domestic violence complaint. As for the criminal complaint, on February 17, 2011, a municipal court judge 4 A-0185-14T2 dismissed the complaint based on Quiroga's failure to appear, despite the court notifying her of the court date on January 12, 2011. Subsequently, Quiroga moved to restore the criminal complaint out of time over Cibelli's objection. On December 20, 2011, the municipal court judge denied Quiroga's motion but modified the dismissal order to indicate "[d]ismissal [was] not based on victim's failure to appear." On October 11, 2011, Cibelli filed a four-count civil complaint against Quiroga for malicious prosecution, abuse of process, severe emotional distress, and breach of contract. In the complaint, Cibelli alleged that after their relationship "resumed[,]" from September 2009 to September 2010, he "made various improvements to and fixed various items in [Quiroga's] residence and an investment property she owned[,]" and "[Quiroga] permitted [him] to use her credit card to buy construction materials needed" for the work. However, "[a]s [Cibelli's] October 1, 2010 retrial approached," Quiroga demanded payment of "$6000 in credit card charges" and "threaten[ed] to take action against [Cibelli] if he did not pay . . . ." According to Cibelli, when "[he] refused [Quiroga's] demands insisting he did not owe her anything[,]" Quiroga "without any probable cause and with malice swore out a criminal complaint . . . against [Cibelli] . . . charging him with harassment[,] 5 A-0185-14T2 . . . and . . . caused a [TRO] to be issued against [him]" based on the same allegation. Cibelli alleged that, subsequently, Quiroga's "request for a permanent restraining order was denied[,]" and the TRO and the criminal complaint were dismissed. However, as a result of Quiroga's "malicious prosecution" and "malicious abuse of process[,]" Cibelli "was arrested, imprisoned, and forced to defend against [Quiroga's] false charges" and "suffered severe emotional distress." Cibelli alleged that his "bail on his Middlesex County charges was revoked by his trial judge and he was remanded to the Middlesex County Jail for the remainder of his trial." Cibelli also alleged that "[he] agreed to make repairs and improvements to [Quiroga's] various properties in return for compensation" and demanded $7070 "for [his] services." In response, on November 21, 2011, Quiroga filed a contesting answer and affirmative defenses. On February 6, 2013, an arbitrator awarded Cibelli $3500 in damages and Quiroga filed a timely notice of demand for trial de novo. On June 16, 2014, Quiroga moved for summary judgment, waived oral argument, and consented to disposition on the papers. In her affidavit submitted in support of her motion, Quiroga averred that "[she] filed the harassment complaint based on the advice of the Bayonne police officer who investigated [her] complaint." Quiroga further certified that "[w]hile [Cibelli] lived at [her] house, 6 A-0185-14T2 he didn't pay rent and [she] paid for all materials[,]" and "[they] never ever discussed him charging [her] on a per hour or per job basis." Quiroga continued that it was not until "[a]lmost a year after [Cibelli] moved out and after his second [murder] conviction" that she was sent the bill for services. Cibelli opposed the motion and requested oral argument. When oral argument was rescheduled from July 23 to July 25, 2014, Cibelli's attorney notified the motion judge that because "neither [he] nor [his] adversary [was] available on July 25," which was the judge's "last day before vacation," and "the trial date . . . [was] August 11, 2014, . . . there [was] no alternative but to decide the motion on the papers." Accordingly, without oral argument and without making findings of fact and conclusions of law, on July 25, 2014, the motion judge entered an order granting Quiroga summary judgment and dismissing counts one, two and three of the complaint. The only reasoning provided by the motion judge was a notation on the order stating "charges pursued in municipal court [and] substantiated. Court found sufficient probable cause for claims. Thus no genuine issues of material facts in dispute."2 This appeal followed. 2 As to count four, the order stated "[g]enuine issues of material fact in dispute as to existence of verbal contract. Summary judgment denied as to contract claims." 7 A-0185-14T2 On appeal, Cibelli raises the following points for our consideration: POINT I THE COURT BELOW COMMITTED REVERSIBLE ERROR BY THE ENTRY OF SUMMARY JUDGMENT AND DISMISSAL OF COUNTS ONE, TWO, AND THREE OF THE PLAINTIFF'S COMPLAINT CONTRARY TO THE GENUINE ISSUES OF MATERIAL FACTS PRESENTED WHICH DEFEAT SUMMARY JUDGMENT AND SHOULD BE SUBMITTED TO THE JURY. POINT II THE COURT BELOW COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION BY FAILING TO PROVIDE A WRITTEN OR ORAL OPINION IN SUPPORT OF ITS DECISION TO GRANT SUMMARY JUDGMENT RESULTING IN AN ARBITRARY AND CAPRICIOUS DISMISSAL ON COUNTS ONE, TWO AND THREE OF THE PLAINTIFF'S COMPLAINT. Because we agree with Cibelli's second point, we will not address the first. Except for pre-trial discovery motions or motions directly addressed to a calendar, oral argument "shall be granted as of right" if a party requests it in the moving, answering, or reply papers. R. 1:6-2(d). Where a request for oral argument on a substantive motion is properly made, denial, absent articulation of specific reasons for denial on the record, constitutes reversible error. Raspantini v. Arocho, 364 N.J. Super. 528, 531- 34 (App. Div. 2003). However, the court may deny such request when special or unusual circumstances exist. Filippone v. Lee, 8 A-0185-14T2 304 N.J. Super. 301, 306 (App. Div. 1997). The court may also deny such a request if the motion is frivolous or unsubstantiated. Kozak v. Kozak, 280 N.J. Super. 272, 274-76 (Ch. Div. 1994). Here, it is of great concern to us that the motion judge failed to accommodate the request for oral argument or specify the special or unusual circumstances for the denial of oral argument on the record. Of even greater concern, however, is the fact that the motion judge failed to make written or oral findings of fact and conclusions of law for the motion. A trial judge has an obligation to render "an opinion or memorandum decision, either written or oral, [with] find[ings of] fact[] and . . . conclusions of law thereon in all actions tried without a jury." R. 1:7-4(a). "The purpose of the rule is to make sure that the court makes its own determination of the matter." In re Tr. Created by Agreement Dated Dec. 20, 1961, by & between Johnson & Hoffman, Lienhard & Perry, 399 N.J. Super. 237, 254 (App. Div. 2006). "When a trial court issues reasons for its decision, it 'must state clearly [its] factual findings and correlate them with relevant legal conclusions, so that parties and the appellate courts [are] informed of the rationale underlying th[ose] conclusion[s].'" Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 594-95 (App. Div. 2016) (alterations in original) (quoting Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986)). In 9 A-0185-14T2 particular, when a trial judge issues an order granting summary judgment, the "judge is required to detail the findings of fact and conclusions of law in a written or oral opinion. Those findings and conclusions must then be measured against the standards set forth in [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)]." Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 299-300 (App. Div. 2009) (citations omitted) (quoting Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 498 (App. Div. 2000)). When that is not done, a reviewing court does not know whether the judge's decision is based on the facts and law or is the product of arbitrary action resting on an impermissible basis. See Monte, 212 N.J. Super. at 565. The manner in which a trial judge complies with Rule 1:7-4(a) is left to the judge's discretion. In re Tr. Created by Agreement Dated Dec. 20, 1961, 399 N.J. Super. at 253. A judge is not required to specify grounds for the grant or denial of a motion and, instead, can rely upon reasons expressed by a party. Id. at 253-54. However, the judge must make "such reliance 'explicit,'" Fisher, 408 N.J. Super. at 301 (quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 1:7-4 (2018)), and make "clear the extent of [the judge's] agreement with and reliance on [the] proposed findings of fact and conclusions of law[,]" demonstrating that the judge "carefully considered the evidentiary 10 A-0185-14T2 record and did not abdicate [the judge's] decision-making responsibility." In re Tr. Created by Agreement Dated Dec. 20, 1961, 399 N.J. Super. at 254. To be sure, a judge "does not discharge [his or her] function simply by recounting the parties' conflicting assertions and then stating a legal conclusion, or . . . incorporating by reference one of the parties' arguments." Avelino-Catabran, 445 N.J. Super. at 595. Rather, "an articulation of reasons is essential to the fair resolution of a case." O'Brien v. O'Brien, 259 N.J. Super. 402, 407 (App. Div. 1992). Here, there is nothing in the order under review that confirms the motion judge made an independent decision based upon an analysis of the facts and applicable law. "While the failure to provide reasons necessitates a remand, we are left with the option of remanding for a statement of reasons or reversing and remanding for consideration of the motion . . . anew. We determine that the latter course of action is appropriate here." Fisher, 408 N.J. Super. at 303. The order under review is vacated. The matter is remanded and the court is directed to conduct oral argument, consider the motion anew, and enter a new order together with a written or oral statement of reasons in conformity with Rule 1:7-4(a). We do not retain jurisdiction. 11 A-0185-14T2

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Docket No.: a0378-17
Decided: 2018-02-14
Caption: STATE OF NEW JERSEY v. DEIDRE DAVIS
Status: unpublished
Summary:
PER CURIAM Following leave to appeal, the State appeals from a June 28, 2017 order that granted a motion by defendant Deidre Davis to suppress evidence. We reverse the suppression order and remand to the trial court for proceedings consistent with our decision. In June 2016, defendant1 was indicted in Ocean County on three counts of third-degree possession of controlled dangerous substances that included heroin, oxycodone, and alprazolam, N.J.S.A. 2C:35-10(a)(1) (Counts One, Four and Six); three counts of third-degree possession with the intent to distribute controlled dangerous substances, N.J.S.A. 2C:35-5(b)(3) (Counts Two, Five and Seven); and one count of third-degree distribution of a controlled dangerous substance (heroin), N.J.S.A. 2C:35- 5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (Count Three). Defendant's motion to suppress evidence was granted on June 28, 2017. The State contends the trial court erred because the evidence was seized based on a valid search that followed from an investigatory stop based on reasonable, articulable suspicion. We gather the following facts from the record developed at the suppression motion. At about 2:30 a.m. on February 27, 2016, Officer Scott Keefe of the Lacey Township Police Department was in his patrol vehicle when he received a radio transmission from the police dispatcher 1 Two other co-defendants were charged in the nine-count indictment. The co-defendants are not parties to this appeal. 2 A-0378-17T2 that there was a "possible drug transaction taking place" in the female bathroom of the Wawa near Taylor Lane. The Wawa store manager had called the police to report she saw a Caucasian woman hand money to an African American woman in the female bathroom of the Wawa, and then both women exited the bathroom. The Caucasian woman then approached a Caucasian male and left the Wawa with him, walking south on Route 9. The manager saw the African American woman get into a vehicle that had two other occupants, a woman and a man, both African American. She provided a description of the vehicle and the license plate number. Officer Keefe was patrolling on Route 9 southbound when he received the call from the dispatcher. He went directly to the Wawa and arrived "pretty quick." The Wawa was on Route 9 adjacent to Taylor Lane. As Keefe drove through the intersection of Route 9 and Taylor Lane, he observed a vehicle, matching the provided description, stopped at the light. Keefe also observed that the three occupants of the vehicle were "two black females and one black male". Given these observations, Keefe positioned his vehicle behind the suspect vehicle and confirmed that it matched the description and the license plate given by the dispatcher. The vehicle made a left turn, proceeding north on Route 9. Keefe 3 A-0378-17T2 activated his lights and when the vehicle did not stop, he activated his siren. The vehicle eventually came to a stop. The defendant was driving. Upon approaching the vehicle, Keefe identified himself and asked for defendant's vehicle credentials. Keefe advised defendant that police received a "call that a drug transaction had possibly taken place between possibly [defendant] and another white female." Subsequent to the arrival of other officers, Officer Michael Verwey spoke with the other passengers. The male passenger in the backseat, later identified as Kevin Mack, initially provided false information about his identity. While speaking to Mack, Verwey "smelled the odor of marijuana coming from inside the car where he was seated." Verwey then requested that Mack exit the vehicle. After Mack exited the vehicle, Verwey observed a rolled-up dollar bill with a white powdery substance on it laying on the back seat where the male was sitting. The officer also smelled the odor of marijuana coming from Mack. Mack eventually provided his actual identity and admitted he had outstanding warrants, that he had smoked marijuana, and that he had marijuana under his genitalia. Mack was arrested and searched. The search yielded a large quantity of money, but defendant claimed it was hers. 4 A-0378-17T2 The officers conducted a search of the vehicle based on the odor of marijuana, Mack's admitted use of it, and Verwey's observation of drug paraphernalia. The search revealed a bottle of unmarked pills in the center console as well as a bottle of prescription labeled pills in defendant's name. Upon examination of that bottle, the officers noted that the pills contained therein were two different types, including oxycodone. The search also revealed a quantity of cash on both Mack and defendant. Defendant was arrested. Meanwhile, two other officers stopped the Caucasian female as she was walking south on Route 9. She admitted that she had purchased heroin from defendant. The trial judge granted defendant's motion to suppress. The court found the officer stopped defendant's vehicle based on the tip from the Wawa manager who "merely witnessed an exchange of United States currency, and nothing more." The judge noted that what the manager observed was "legal activity" and that there was no evidence she had experienced a hand-to-hand transaction. The judge held that the police did not have a "specific and articulable set of facts to rely upon to justify the motor vehicle stop" because the officers were relying "solely on a report from a 5 A-0378-17T2 concerned citizen . . . that two individuals exchanged cash in a Wawa bathroom, left the store, and one entered a vehicle and left." The State timely moved for leave to appeal. Based on that motion, the trial court issued an "Amplification of a Prior Opinion" under Rule 2:5-1(b). In the Amplification, the judge took issue with the State's claim that the Wawa manager said the two females "immediately left" the Wawa, noting there was no testimony about how soon defendant exited the Wawa once she left the bathroom. The judge stated that "it [was] not unusual for more than one person to be present in a bathroom at 2:30 a.m. in a store that is open twenty-four hours per day." and that it was "speculation" that the exchange of money was a "patron-to-patron financial transaction." The judge noted that there was no testimony this was a high crime neighborhood or that "bathrooms were commonplace for drug transactions." The judge concluded the manager reported she only observed legal activity. Since neither the manager nor the dispatcher testified, the judge did not find the testimony by the State "was sufficiently credible." On appeal, the State raises one argument for our consideration. The State argues that the investigatory stop of defendant's vehicle was validity predicated on reasonable, 6 A-0378-17T2 articulable suspicion that defendant had just engaged in criminal activity. We agree. II "When reviewing a trial court's decision to grant or deny a suppression motion, [we] 'must defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record.'" State v. Dunbar, 229 N.J. 521, 538 (2017) (quoting State v. Hubbard, 222 N.J. 249, 262 (2015)). "We will set aside a trial court's findings of fact only when such findings 'are clearly mistaken.'" Ibid. (quoting Hubbard, 222 N.J. at 262). "We accord no deference, however, to a trial court's interpretation of law, which we review de novo." Ibid. (quoting State v. Hathaway, 222 N.J. 453, 467 (2015)). Here, the facts are not disputed. Whether those facts provided the police a reasonable, articulable basis to stop the Davis vehicle, is legal determination, not a factual one, to which we owe no deference. We disagree with the trial court that this was a constitutionally invalid investigative stop. Both the federal and State constitutions protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. An investigatory stop, sometimes 7 A-0378-17T2 referred to as a Terry2 stop, implicates constitutional requirements and must be based on "specific and articulable facts which, taken together with rational inferences from those facts" provide a "reasonable suspicion of criminal activity." State v. Elders, 192 N.J. 224, 247 (2007) (quoting State v. Rodriquez, 172 N.J. 117, 126 (2002)). "Because an investigative detention is a temporary seizure that restricts a person's movement, it must be based on an officer's 'reasonable and particularized suspicion . . . that an individual has just engaged in, or was about to engage in, criminal activity.'" State v. Rosario, 229 N.J. 263, 272 (2017) (quoting State v. Stovall, 170 N.J. 346, 356 (2002)). The officer's "articulable reasons" or "particularized suspicion" is based on the officer's assessment of the totality of the circumstances. State v. Davis, 104 N.J. 490, 504 (1986). Here, the stop was based on information relayed to the officer by a tip from the Wawa manager, a citizen eyewitness. "In determining the reliability of a tip, a court must consider an informant's 'veracity,' 'reliability,' and 'basis of knowledge.'" Stovall, 170 N.J. at 362 (quoting Alabama v. White, 496 U.S. 325, 328-29 (1990)). Where an ordinary citizen is the informant, "courts assume that the informant has sufficient veracity and 2 Terry v. Ohio, 392 U.S. 1 (1968). 8 A-0378-17T2 require[s] no further demonstration of reliability." Ibid. "There is an assumption grounded in common experience that such a person is motivated by factors that are consistent with law enforcement goals." Davis, 104 N.J. at 506. To determine the informant's "basis of knowledge", "the nature and details revealed in the tip may imply" that the knowledge of the criminal activity comes from a "trustworthy source." Stovall, 170 N.J. at 362. This was not an anonymous tip; the manager gave her name and location. She relayed specific information that a drug transaction was in progress or had occurred. It was 2:30 a.m. The manager described the women involved, that money was handed from one person to another in the bathroom, that they both then left the bathroom and departed the Wawa separately. According to the manager, one woman drove away in a vehicle with two others, a man and a woman. The other woman was on foot with a male companion walking south on Route 9. The manager gave a description of the vehicle and its license plate number. "In determining whether reasonable suspicion exists, a court must consider 'the totality of the circumstances- the whole picture.'" Id. at 361 (quoting United States v. Cortez, 449 N.J. 411 (1981)). The reliability of the tip is part of the totality of the circumstances analysis. Id. at 361-62. 9 A-0378-17T2 In State v. Amelio, 197 N.J. 207 (2008), the defendant's seventeen-year old daughter reported to the police that her father was operating a vehicle while intoxicated. The Court held that the tip provided a "reasonable and articulable suspicion of an offense to support a constitutional motor vehicle stop by the police." 197 N.J. at 209. Although the Court said that "an anonymous tip, standing alone, is rarely sufficient to establish reasonable articulable suspicion of criminal activity," the tip of a "known person" was not viewed in the same way. Amelio, 197 N.J at 212 (quoting Rodriquez, 172 N.J. at 127). In State v. Zapata, 297 N.J. Super. 160, 174 (App. Div. 1997), we held that the police had "an articulable and reasonable suspicion" for an investigatory stop based on their independent corroboration of an anonymous tip to the police dispatcher that "several male Hispanics were in a tan Chevy with New York license plates that had been in Vinnie's Tavern parking lot. The anonymous caller stated that these men had been distributing cocaine." The tip further provided the license plate number of the van. We held that "the totality of the circumstances justified the investigatory stop" of the van. Ibid. We are not persuaded that the factual scenario presented here is apposite to State v. Maryland, 167 N.J. 471 (2001), a case 10 A-0378-17T2 relied on by defendant, where the Court reversed the denial of a suppression motion. There, the basis for stopping the defendant was an observation by the police that he shoved a brown paper bag into his waistband. The Court found the stop was based on a hunch by the police with no other facts to transfer their hunch into a suspicion. 167 N.J. at 488. Nor are we persuaded by State v. Richards, 351 N.J. Super. 289 (App. Div. 2002), cited by the motion judge. In that case, unlike here, the defendant was stopped based on an anonymous tip that had no indicia of reliability. In the instant matter, there was a detailed description by an identified citizen who suspected that a drug transaction occurred. This citizen-reporter provided a description of the transaction, the physical description of the participants and their movements after the transaction including specific details of the vehicle in which one participant left the WaWa. Keefe corroborated the tip when he "quickly" arrived at the scene and observed a vehicle matching the description and confirmed the license plate. Given the information provided to the police and its corroboration, we conclude, as in Stovall and Zapata, the officer would have been derelict not to investigate the report of potential criminal activity. We further conclude that the stop 11 A-0378-17T2 of the vehicle was reasonable in light of the attendant circumstances presented in that there was a reasonable articulable suspicion by police of criminal activity which implicated the vehicle. Further, whether what the store manager observed in the bathroom of the WaWa at 2:30 a.m. was actually criminal activity is not dispositive of the legality of the motor vehicle stop. To be sure, police routinely receive reports from citizens of potential criminal activity that, upon investigation, reveal that no criminal activity has occurred. Those "negative" results however do not abrogate law enforcement's duty, under circumstances such as here, to investigate the reports. As such, we are constrained to reverse the June 28, 2017 order, holding that the police executed a constitutionally valid investigatory stop of Davis' vehicle. Predicated upon the judge's holding that the stop of defendant's vehicle was not valid, the judge made no determination relative to the constitutionality of the subsequent warrantless search. Therefore, we remand to the Law Division for further proceedings on this issue. Reversed and remanded for proceedings consistent with this decision. We do not retain jurisdiction. 12 A-0378-17T2

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Docket No.: a1329-16
Decided: 2018-02-14
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.F.
Status: unpublished
Summary:
PER CURIAM Defendant D.F. appeals from an October 27, 2016 order of the Family Part terminating Title 30 litigation initiated by the Division of Child Protection and Permanency (Division), awarding sole legal custody of her children, E.W. and B.W., to their father, C.W, and requiring D.F.'s visitation with her children be 1 supervised. We affirm. Diane and Charles are the parents of twins, Nathan and Evan, born August 30, 2000, and Brian, born October 9, 2001. Nathan, who was autistic and epileptic, died on April 24, 2014. Evan and Brian also suffer from autism and epilepsy. Brian is non-verbal, severely epileptic, violent, self-injurious, and requires more assistance than Evan. 1 To protect the privacy interests of the parties, we refer to D.F., as Diane, and C.W., as Charles, the older child, E.W., as Evan, and the younger child, B.W., as Brian. We refer to the deceased child, N.W., as Nathan. 2 A-1329-16T1 In considering this appeal, we summarize the Division's nearly four years of involvement with this family. This litigation alone spanned two and one-half years. On October 16, 2012, the Division filed a verified complaint for the care and supervision of Nathan, Evan, and Brian, alleging neglect. The case was closed in September 2013. Thereafter, Diane and Charles divorced. Pursuant to the judgment of divorce, both parents shared legal custody of the children and Diane was granted primary residential custody. In April 2014, the Division learned of Nathan's death and opened a new investigation. At the time of Nathan's death, Diane was home, but not supervising Nathan while he took a bath. The investigation revealed that Nathan drowned in the bathtub after suffering a seizure. A pediatrician with New Jersey Cares deemed Nathan's death accidental, but noted his death may have been the result of "recklessness or worse." On May 12, 2014, the Division learned that Diane had been arrested. According to the arrest report, Diane was drinking and got into a motor vehicle accident. Diane was charged with aggravated assault, reckless driving, driving while intoxicated (DWI),2 leaving the scene of an accident, refusing to provide a 2 The incident was Diane's second DWI charge. 3 A-1329-16T1 breath sample, and having an open alcoholic beverage. During her arrest, Diane made comments expressing thoughts of self-harm and was transported to a psychiatric hospital. Diane was discharged from the emergency psychiatric facility with a recommendation that she receive follow-up treatment. Diane began a private treatment program at Princeton House, where she was diagnosed with depression and acute trauma. Based upon the criminal charges against Diane, her expression of self-harm, and her failure to comply with the Division's new investigation following Nathan's death, the Division instituted an emergency safety plan requiring full-time monitoring of Diane when she was with the children. On May 21, 2014, the Division filed a verified complaint for the care and supervision of Evan and Brian under Title 9 and Title 30.3 A hearing was held and the Division requested that Diane be supervised when she was with the children. The judge granted the Division's application and appointed a Law Guardian for the children. The judge expressed concern with Diane's mental health and stability, especially since Nathan's death. The judge stated 3 The Division filed a single complaint, citing both Title 9 and Title 30, as it was unsure whether to pursue neglect proceedings based on an open investigation into Nathan's death. The Division decided to proceed solely under Title 30 after the investigation into Nathan's death was closed. 4 A-1329-16T1 that "[w]e have relatives describing a hard situation to handle, kind of day-to-day life. Children stay up late. They're little. One child is becoming increasingly violent. We had the [care management organization] involved." The judge held that "until the Division can recommend to the [c]ourt . . . that [Diane]'s stable, and that any alcohol issue, or grief issue, that's being treated, . . . any medical advice with alcohol, is dealt with, then the supervision will need to remain in place." At the next hearing, on June 18, 2014, Division caseworker Anthony Simone testified that he referred the family to Epic Health Services (Epic), an organization that works with autistic children and their families. Epic provided overnight care of the children and was an approved supervisor for Diane. At this hearing, Diane asked the judge to vacate the supervision requirement due to the financial burden associated with paying the court-authorized supervisors. Because the Division had not received treatment records for Diane, the judge declined to rescind the supervision order. The judge signed an order compelling the release of Diane's treatment records, and requiring both parents undergo psychological evaluations. On August 15, 2014, a different judge met with counsel to review the status of the litigation. The Law Guardian reported the children were doing well under Diane's supervised care, and 5 A-1329-16T1 noted that Brian would likely need residential placement in a facility for individuals with severe autism. The judge continued supervision for Diane and the children. In September 2014, Diane told a Division caseworker that she was overwhelmed, lost her job, and was having financial difficulty caring for the children. Further complicating the situation at that time was Brian's suspension from school for behavioral issues. On October 24, 2014, the judge conducted a Title 30 fact- finding hearing. Vicky Burbage, a Division caseworker, told the judge that the Division was providing mentoring services to Evan, and that both children were receiving services through PerformCare. Epic continued to provide overnight care and supervision. The Law Guardian reported that the children were doing "as fine as can be expected." Burbage then offered testimony regarding Diane. Burbage stated that Diane was "fully compliant" with her private therapist's recommendations. Therefore, the Division was willing to lift Diane's supervision requirement. However, Burbage believed that Diane "may not be seeing the . . . therapist that she was seeing prior. [Diane] felt that there was a breach of trust between the Division and her therapist, when [Burbage] called to confirm that she was seeing the therapist." Burbage also testified that while Diane had been referred to Services to 6 A-1329-16T1 Overcome Drug Abuse Among Teenagers, Inc. (SODAT) for an eighty- hour alcohol urine test, she did not comply. At the conclusion of this hearing, the judge found that "this is a family in need of services that are being provided" and the court retained jurisdiction in the best interests of the children. The judge ordered Diane to comply with random eighty-hour alcohol screens scheduled by the Division and continue mental health counseling. On November 20, 2014, Tsahye Bradley, an Epic home care nurse, went to Diane's home. Bradley discovered that Evan and Brian were alone on the first floor, and Diane was upstairs. Bradley discovered Diane passed out on her bed and found pills "all over the bed and the floor." Bradley collected the pills and put them in a locked cabinet. Around 12:30 a.m., Diane woke up and came downstairs. According to Bradley, Diane was disheveled and smelled of alcohol. Bradley reported the incident to her supervisor, who reported it to the Division. A few days later, on November 25, 2014, a Division caseworker took Diane for an eighty-hour alcohol screen. Diane tested positive for alcohol and it was recommended that she continue out- patient substance abuse treatment. 7 A-1329-16T1 On December 17, 2014, Burbage went to Diane's home to check on the children. Diane refused to allow Burbage to enter the home or see the children. On January 23, 2015, the Division filed an amended verified complaint seeking custody, care, and supervision of the children. The judge signed a consent order continuing supervision of Diane while with the children, and requiring Diane to allow access to the children for Division safety checks. The order also required Diane to complete a substance abuse re-evaluation, submit to random urine tests, complete a psychological examination, attend therapy, and continue services for the children with Epic and PerformCare. On the morning of January 27, 2015, Diane called a Division hotline and claimed that her children were being abused because the Division caseworkers coming to her home caused the children to believe that the Division was going to abduct them. Based on this concern, Diane said she took the children and refused to provide her location. A caseworker went to Diane's home on January 28, 2015, to check on the children. The caseworker rang the doorbell and knocked on the front door, but initially no one answered. Eventually, Diane came to the front door, but refused to let the caseworker inside. The caseworker contacted the police. While the caseworker was waiting for the police to arrive, she saw Diane 8 A-1329-16T1 get into her car with Evan and Brian but without a supervisor. The caseworker called 911 and advised that Diane took the children in violation of a court order. The police stopped Diane at a nearby drug store. As a result, the Division conducted an emergency removal of the children. Later that day, the caseworker returned to Diane's home with a police officer to check on Diane. Diane began yelling from a second-story window, telling the police officer to "shut up" and leave because she was not going to talk to them. The caseworker and officer observed red wine stains on Diane's shirt. As a result of these events, on January 30, 2015, the Division filed a second amended verified complaint for care, custody, and supervision of the children. A hearing on the second amended complaint was held. The Division witnesses included the caseworker who went to Diane's home on January 28, 2015, and the Epic nurse who found Diane passed out in November 2014. The Division witnesses provided testimony as to the events that had taken place since the court proceeding in October 2014. Also testifying were Diane, Diane's boyfriend, and Charles. Diane admitted that she refused to give the Division access to her home and children, and that she left the house on January 28, 2015, without a court-ordered supervisor. Diane claimed she left the house with the children because she assumed that the 9 A-1329-16T1 caseworker had come to take the children, and Diane wanted to get medication refills for the children to ensure they had their medication when they were removed. When asked why she believed the Division would take the children prior to a hearing on the new custody complaint, Diane explained, "this is how they operate. They've been aggressive for three years and harassed us. They've tortured me." Diane denied she was drunk on Tuesday, January 27, or Wednesday, January 28, 2015. She claimed that the stains on her shirt on January 28, 2015, were just a "really ugly" floral print. Diane testified that her recent treatment was for post-traumatic stress disorder and depression, not substance abuse. However, Diane failed to provide any medical evidence or testimony to support her claims, and declined to identify her treating psychiatrist. Diane stated that it was in the children's best interests to remain in her custody due to the complex nature of their disabilities. She insisted that she was her children's only advocate and uniquely understood their needs. Diane's boyfriend provided testimony during the hearing. Diane's boyfriend acknowledged that Diane drank in his presence. He also told the judge that Diane "has an intense distrust of the Division; and, she sees the Division as attacking her. And, she responds in kind." 10 A-1329-16T1 At the hearing, Charles testified as follows: [Diane] needs to . . . come to the conclusion that she is unable to parent these children on her own. . . . It's just too much. And, the drinking's been going on for a long time; and was going on during our marriage. And, under a combination of her medications and drinking, and being unable to supervise the kids, it's not safe and healthy for them . . . . We've already lost one son . . . . It's – it's quite apparent that she has a drinking problem. And, . . . the boys need help, and staying in that house is just doing them more harm than good. Considering the testimony and evidence presented during this hearing, the judge granted the Division's application. The judge deemed the testimony provided by the Epic nurse, who found Diane passed out from alcohol and surrounded by pills, particularly credible. The judge expressed sympathy for Diane, but found that she was not supervising her children. Based upon Diane's hostility toward the Division and other care providers, coupled with her alcohol consumption, depression, and failure to supervise her children, the judge found that it was in the children's best interests to be removed from the home so that Diane could "focus[] on [her] own needs" and receive "a respite, some care for herself," and "a better perspective." As to Brian, whose cognitive issues were particularly severe, the judge ruled that "it would be an unacceptable risk to his safety, health, and perhaps, life, if he remained solely in 11 A-1329-16T1 [Diane]'s care." Consequently, the judge ordered Brian removed from Diane's care and placed in Bancroft, a residential facility for autistic individuals. As to Evan, whose impairments are less severe, the judge found that Evan was "still exposed to danger" by remaining in the home, and that "[i]t is time that [he] also be protected; and . . . that his remaining in the home would be contrary to his welfare . . . . [I]n order to protect his safety, health, and life, he should be removed." The judge ordered the Division to investigate the children's maternal grandparents as a temporary placement option. At the hearing, the judge spoke directly to Diane: Putting the case into perspective, you need to return to the strength you once had, by focusing on your own needs. With the aid of care givers, at least temporarily . . . . [W]hen [Evan] is ready, he'll be returned to you; and, I think that you'll have to be ready for him. So, this is a time when you should be focusing on getting better yourself, strengthening your own abilities to care for [Evan] . . . . The judge ordered Diane to undergo a psychological evaluation, comply with all recommendations, undergo a substance-abuse evaluation, submit to random urine screens, and continue to be supervised during visits with the children. 12 A-1329-16T1 On February 24, 2015, the parties returned to court. The Division told the judge that Evan and Brian were doing well in a therapeutic foster home. The Division reported that Diane was not doing as well. During a supervised visit, Diane told the children that it was the Division's fault they were not at home and that the Division lied to take them away. Diane also interrogated the children regarding their foster family. The Division believed that Diane's behavior agitated the children and caused Brian to lash out at the caseworkers. The judge ordered Diane to stop agitating the children and fostering animosity between the children and the Division. The judge instructed Diane to comply with her mental health treatment and urine testing. The judge found a continuing danger to the children if placed in Diane's care, and continued custody of the children with the Division. On April 23, 2015, the judge held a Title 30 hearing. Brian Jacobowski, a Division permanency worker, advised that Diane was attending an intensive outpatient program for substance abuse at Solstice Counseling. He reported that Diane "does not believe that she has a substance abuse problem and therefore is resistant to treatment," and that her program counselor believed "she sometimes seems to go through the motions during treatment." 13 A-1329-16T1 According to Jacobowski, Diane claimed she was attending private therapy, but refused to disclose her therapist's information. The judge found that there was a continuing need for the Division to retain custody, care, and supervision of the children based on their intense needs, the significant services provided, and the need for family therapy. He ordered Diane to attend individual therapy, domestic violence counseling, and substance abuse treatment, and submit to random eighty-hour alcohol screens. The judge also ordered Diane to release her private treatment information to the Division. Diane's visits with the children remained supervised. On July 27, 2015, the judge held a compliance hearing. Jacobowski testified that while Diane's new therapist reported she was "progressing in her treatment," Diane was discharged from Solstice Counseling due to an incident with another resident and a possible DWI. Jacobowski stated that Diane checked herself into a hospital for psychiatric treatment after being discharged from Solstice Counseling, and began attending dialectical behavior therapy (DBT) counseling at Princeton House. According to Jacobowski, the Princeton House therapist indicated Diane did not need substance abuse treatment. Jacobowski testified that Evan and Brian were doing well in their therapeutic foster home, and that Brian had been approved 14 A-1329-16T1 for residential treatment at Bancroft. Evan requested overnight visits with his father, which the court approved. At this hearing, there was a discussion that custody of Evan be transferred, temporarily, to his maternal grandmother. The parties agreed that placement with the maternal grandmother would be beneficial, if the grandmother could handle Evan's intense needs. The judge ordered the Division to evaluate the grandmother for placement of Evan. On September 22, 2015, another judge held a compliance hearing. Jacobowski told the judge that Brian was accepted by Bancroft and would be admitted as a resident within five weeks. He also confirmed that the Division was vetting the maternal grandmother for temporary placement of Evan. Jacobowski testified that Diane completed the Princeton House program and was discharged with the following recommendations: medical monitoring with a psychiatrist, individual therapy, DBT counseling, skills group sessions, and art therapy. Jacobowski also stated that the Division was trying to obtain a bus pass to allow Diane to attend her urine screens, because she no longer had a car. He further reported that Diane was participating in Robin's Nest Family Ties visitation services. Due to Brian's high need level, the court ordered the Division to ask Bancroft to accelerate his admission date. Diane asked the 15 A-1329-16T1 judge for legal custody of Brian when he became a resident at Bancroft, so that she could properly advocate on his behalf. The judge ruled that the Division needed to retain custody to process Brian's transfer to Bancroft, but that, when the Division case was completed, legal custody of Brian would be jointly awarded to Diane and Charles. The judge signed an order requiring Diane to continue individual therapy and any services recommended by Princeton House, and to submit to random eighty-hour alcohol screens. On January 4, 2016, the judge held a permanency hearing. The Division's counsel advised that the permanency plan was for reunification of the children with Diane. The Division's attorney reported that Diane was attending treatment, providing negative urine screens for alcohol, and regularly visiting Evan at the grandmother's house. Diane's attorney confirmed that Diane "likes . . . therapy," "wants [it] to continue," and "finds it helpful." The Division's only concern at this hearing was whether Diane could secure stable housing. The Division indicated that all parties agreed it was in Brian's best interest to remain at Bancroft. The Law Guardian agreed that the Division's plan for both children was in their best interests. 16 A-1329-16T1 On April 28, 2016, the judge held a permanency and Title 30 hearing. Angela Gardner, a Division permanency caseworker, testified. Gardner stated that Diane moved to Pennsylvania since the last court date and refused to provide her new address.4 According to Gardner, Diane relapsed and it was recommended that she attend a program for the mentally ill and chemically addicted. The caseworker testified that Diane failed to complete DBT counseling and missed several urine screens. In addition, there was an incident at the grandmother's house in January where Diane had been drinking. Diane did not testify at this hearing. Diane's attorney told the judge that his client lacked visitation with her children since January 2016, and requested an order restoring parenting time. Diane's attorney acknowledged that Diane ceased participating in the Division's offered services, but claimed that "they were causing great problems with her with regard to being able to work, being able to maintain a residence, all the things that we need to do just to take care of our basic life functions." When the judge questioned the explanation for Diane's failure to receive the offered services, her counsel responded, "[Diane] has found those services not to be particularly helpful." 4 The judge signed an order compelling Diane to disclose her Pennsylvania address. 17 A-1329-16T1 Gardner advised the judge that the Division's new permanency plan was for reunification of the children with Charles. Charles had secured housing, which was approved by the Division. Charles was made aware of the various requirements to achieve permanency, including obtaining health insurance for the children, ensuring continuation of the children's services through PerformCare, and registering the children in the local school district. Diane did not object to awarding legal and primary physical custody of Evan to Charles. In fact, Diane's counsel stated: at some point the Division is going to seek to terminate this litigation. I suspect it will be at the next hearing . . . I would like to get [Diane] back to a point where the [c]ourt feels comfortable in deeming her what we call "safe," . . . so she can be the parent at least of alternate residence at this point. The judge approved the Division's plan for reunification with Charles, and signed orders transferring legal custody of both children to Charles, transferring physical custody of Evan to Charles, and finding the family in need of continuing care and supervision by the Division. In explaining his reasoning for the entry of these orders, the judge stated: the [c]ourt has considered the testimony of Ms. Gardner. It is familiar with this case and it has reviewed the [c]ourt report. It has also heard the position of the Law Guardian who does not object to the plan . . . . [H]aving heard all the evidence, I 18 A-1329-16T1 find that the plan is in the best interest of the two boys for reunification with dad. The judge also issued the following instruction to Diane: [A]lthough you may not at this point in time evaluate the Division perhaps with a positive assessment, I don't share in that . . . . [T]his court is going to be bound by previous orders and if those orders . . . require[] you to do certain services, you're going to have to demonstrate by going to those services. They don't have to necessarily be the same . . . providers that the Division has provided to you, . . . but certainly they would have to provide the same type of service and the Division would have to be able to corroborate, meaning they would get proof that you're actually doing those things before the Court can consider lifting supervision. The judge directed the Division to work with Diane to select a location for alcohol testing accessible by public transportation from her home in Pennsylvania. He also directed Charles to make reasonable efforts to allow Diane visitation with the children, as long as Diane was supervised. On August 16, 2016, the judge held a compliance hearing. The Division was prepared to dismiss the litigation upon resolution of the following issues: (1) Diane's claim that she was having trouble finding supervisors for her visits with the children, and that Charles was not providing visitation opportunities; (2) Diane's failure to undergo a valid urine screen in eight months; and (3) Charles's insuring both children. The Division asked the 19 A-1329-16T1 judge to keep the case open to address these issues and, hopefully, eliminate Diane's supervision requirement by the next hearing. The Law Guardian was unable to make any recommendations, because Charles had not allowed her to visit Evan at his home since the last hearing. Charles's attorney indicated that, although the Law Guardian had not been able to visit, the Division conducted a home visit in June and reported that "the house was fine, [Evan] was fine." Diane provided a letter from her new therapist stating that therapy was going well and she was complying with her treatment plan. Diane asked the court to vacate the supervision order and deem her the "parent of alternate residence." Diane did not object to Charles having legal and primary physical custody of Evan. Diane explained that she failed to comply with the urine screens because the Division asked her to go to Camden for the screens, and she did not feel safe taking public transportation to that location. Diane asked to take the tests in Pennsylvania, near her home. The Division told the judge that it had no out-of-state vendors to conduct urine screens and argued: [W]e discussed this at the very last hearing. There was agreement – previously she was attending the urine screens somewhere other than SODAT and she wanted us to change that, which we did and the [c]ourt report indicates that. Now, she's saying she wants them over 20 A-1329-16T1 in Pennsylvania. All of these are excuses for her not doing these urine screens. The judge ordered the Division to work with Diane to find a testing location, other than Camden, convenient to public transportation. The judge directed Charles to allow the Law Guardian to visit with Evan at his home and follow a schedule for Diane to visit with the children. The judge also ordered Diane attend DBT counseling and submit to random eighty-hour alcohol screens. On October 27, 2016, the judge held a Title 30 summary hearing. The Division sought to terminate the litigation, with Charles retaining legal custody of the children and physical custody of Evan. The Division's counsel had one remaining concern regarding custody of the children and their relationship with Diane. The Division's attorney stated that Diane was ordered to engage in certain services throughout the history of the litigation, including substance abuse treatment, therapy, and random urine screens, and that Diane failed to complete the services. The Division was unable to contact Diane's therapist after repeated attempts, had received no information from her therapist, and was unable to verify the therapist's credentials. The Division reported that Diane had not completed random urine screens and was 21 A-1329-16T1 scheduling her own testing such that the screens were not random. The Division's counsel argued: We have a case that has been open over 890 days and still we're here dealing with the same issues as far as treatment, random screens and even DBT . . . . [Diane] was ordered to do DBT counseling, she dropped out of that. Now, she's coming here again with these excuses about random screens. She wants to dictate when and where she does services and that's not how these cases go . . . . So we have no way of assessing her safety at this point in time because we have no random screens on her and she's not in DBT counseling. We can't get any information out of her private therapist except a letter, no strings, no collaterals, no callbacks to [the permanency worker] . . . . So we have nothing to gauge her safety. Her visits should remain supervised until she can comply. Diane did not testify at this hearing. Nor did she submit any medical records or urine screen results to the court. Diane's attorney conceded that "[w]e had hoped to come here today with . . . clean screens[,] . . . a set of screens that Your [H]onor could look at, random screens since August, which would allay the [c]ourt's fears, and we don't have them." Diane's counsel offered no explanation for his client's failure to attend treatment or provide information about her private therapy. Diane's counsel objected to closing the litigation, stating that Diane "wants custody of her boys back." 22 A-1329-16T1 The Law Guardian reported that there were "no concerns with either Evan or Brian's well-being at this point." The Law Guardian reported that Bancroft was "very happy with [Brian]'s progress," and that "[Evan] reports that he likes living with his dad, that things are going well and that's where he wants to stay." Further, the Law Guardian told the judge that "[t]he children are visiting each other and [Evan] reports that these are . . . going well and he wants them to continue." At this hearing, Charles testified: I'm just concerned from here on out that [Diane] – my concerns are she still needs to be supervised and that that continues. Her place of residence where she lives right now is not an appropriate setting for my children and I don't believe she's mentally fit and ready to make decisions on the children's behalf. And she has a hard time just taking care of herself, let alone the children. So I just, from here on out, I really want to make sure that her visitations, whenever she wants them to be[,] remain supervised. After hearing from the parties, the judge addressed Diane's claim that the failure to provide random urine screens was the Division's fault. The judge stated: The Division was just trying to do their best efforts to try to find a place after [Diane] time and time again said I can't go there, I can't go here, so they tried and they found out that they don't provide those services. So I understand that, but they were working within the confines of what [Diane] gave them which were very restrictive . . . . And even 23 A-1329-16T1 now, she says I'll go to Camden, but only on my terms, on my days, at my time. That's not a random screen . . . . The judge found that concerns regarding Diane's substance abuse and mental health were not resolved and, accordingly, dismissed the litigation, with custody to remain with Charles. He ordered the Division to keep the administrative file open for ninety days so that "[Diane] can work with the Division to comply with the services that have been ordered by the [c]ourt, to get them finished." The judge explained that any further changes in custody required a court order, and that "certainly [Diane] can come back under an FD custody and be heard at a later time." A final order was signed on October 27, 2016. The order (1) terminated the litigation, (2) awarded legal custody of the children to Charles, continued physical custody of Brian with Bancroft, and awarded physical custody of Evan to Charles, (3) continued Diane's supervised visitation schedule in accordance with the prior court order, and (4) allowed Evan to decline parenting time with Diane, with the parents "to use best efforts to continue consistent visitation." On appeal, Diane argues that the judge's order awarding custody of Evan and Brian to Charles, and only permitting Diane to have supervised visits with the children was not in the children's best interests. 24 A-1329-16T1 Our review of a trial court's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "[W]hen there is substantial credible evidence in the record to support the court's findings," the decision should not be disturbed. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). However, we owe no deference to a trial court's interpretation of the law, and review issues of law de novo. Mountain Hill, LLC v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008). We also extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010). Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). "[P]roceedings under Title 30, other than to terminate parental rights, are governed by the preponderance of the evidence standard." N.J. Div. of Youth & Family Servs. v. I.S., 423 N.J. 25 A-1329-16T1 Super. 124, 126 (App. Div. 2011).5 Under N.J.S.A. 30:4C-12, there must be "a showing that the parent has failed to ensure the health and safety of the child and that the child's best interests require" the relief sought. N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 27 (2013). The paramount purpose of N.J.S.A. 30:4C-12 is to protect children. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). N.J.S.A. 30:4C-12 "authorize[s] services to children who have not been abused or neglected, . . . but whose needs may be too complex and beyond a parent's or parents' ability to work through without the Division extending minimal supervision, or more intrusive involvement, coupled with services until that is no longer necessary." I.S., 214 N.J. at 36. Applying these standards, we discern no basis for disturbing the judge's determination that Evan should be placed in Charles's care and custody with continuing services provided by the Division. Charles "was the only appropriate parent to award custody to at the dispositional conclusion of this fact-sensitive Title 30 5 In this case, the Division concurrently filed a Title 9 complaint and a Title 30 complaint, but ultimately proceeded with the matter as a Title 30 family in need of services litigation. See N.J. Div. of Youth & Family Serv. v. N.D., 417 N.J. Super. 96, 109 (App. Div. 2010) (terminating a Title 9 action in the absence of an abuse or neglect finding, but allowing the Division to provide care, custody, and supervision to children in need of services under Title 30). 26 A-1329-16T1 proceeding." Id. at 41. Charles had a stable home, and was willing and able to care for Evan, who wished to live with him. Moreover, there was no objection to Charles having primary custody of the children from the Division, the Law Guardian, or Diane. The judge found that Diane suffered from depression and post- traumatic stress disorder for which she received sporadic treatment, only to relapse. Diane also had difficulty coping emotionally, especially after Nathan's death, was unable to maintain a steady job and secure housing, and struggled with alcohol addiction during the course of this litigation. The judge repeatedly urged Diane to complete the court-ordered services, provide evidence of her compliance with the services, and undertake any follow up services in order to have unsupervised visitation with the children. Diane's own failure to participate in the court-ordered services and get her life back on course resulted in the judge's custody and visitation determinations. We are satisfied that there was competent, credible evidence in the record to support the judge's finding that it was not safe to return Evan to Diane's care and custody, and that placing the child with Charles served the child's best interests. Having reviewed the transcripts from the fourteen hearings conducted by the court, spanning two and one-half years of litigation, we find sufficient credible evidence to support the 27 A-1329-16T1 judge's decision to grant custody of the children to Charles and continue supervised visitation for Diane. Affirmed. 28 A-1329-16T1

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Docket No.: a1636-16
Decided: 2018-02-14
Caption: J.L.O. v. L.E.G.
Status: unpublished
Summary:
PER CURIAM Plaintiff J.L.O. and defendant L.E.G. were once married. In August 1994, plaintiff obtained a temporary restraining order (TRO) pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based upon a complaint that defendant assaulted and harassed her. The TRO was issued in Essex County, apparently shortly before, or contemporaneously with, the commencement of the parties' divorce action. The March 13, 1995 final judgment of divorce (JOD) reflects a continued contentious relationship. It provided that defendant was permitted to have a "blood relative" accompany him during "supervised visitation" with his infant daughter outside plaintiff's presence.1 The JOD also provided that the court was assuming jurisdiction of the pending domestic violence matter (DV matter). On July 5, 1995, the same judge entered a final restraining order (FRO) in the DV matter that referenced the JOD and provided "all issues were settled on 11/10/94. It was agreed that the restraining order would continue [and] that defendant would have no contact with [plaintiff and] would stay at least [two] blocks away, except for purposes of visitation." There is no indication in the "Return of Service" portion of the FRO that defendant was served with the FRO, and he subsequently denied that he was. In June 2015, defendant moved to vacate the FRO in Essex County. See N.J.S.A. 2C:25-29d (permitting dissolution or modification of an FRO upon a showing of good cause). The court refused to hear the application because plaintiff now resided in Atlantic County, and transferred venue in January 2016. For 1 The JOD also ordered the parties and the child to submit to DNA testing because defendant did not acknowledge paternity. 2 A-1636-16T1 reasons unexplained by the record, defendant then filed a new motion in September 2016 seeking the same relief. Defendant certified that he became aware of the FRO when he applied for a "pistol permit," which was denied because of the FRO.2 He claimed that he had no contact with plaintiff for "roughly eighteen years" and was unable to accept a job as a private security agent because he could not obtain the permit. Defendant also demonstrated that he could not furnish transcripts from the 1994 or 1995 court proceedings because the "tapes [and] logs were purged." Plaintiff's certification in opposition included attachments from the 1990s that she claimed demonstrated defendant's violation of conditions regarding visitation and his knowledge of the FRO's existence. Plaintiff also claimed there were "pending criminal charges" against defendant. Plaintiff certified that she had no contact with defendant for eighteen years, until 2014, when defendant contacted the parties' daughter, in alleged violation of the FRO. Plaintiff also claimed defendant and his attorney made false allegations in court documents in an attempt to recoup past child support 2 Defendant also claimed that he held a firearms purchaser identification card that was confiscated when he filed his original motion to dissolve the FRO. 3 A-1636-16T1 payments. Plaintiff asserted that "[d]efendant's actions over the last sixteen months" made it "obvious that [he] still poses a threat to me and my family." We need not discuss the reply filed by defense counsel. A hearing on defendant's motion took place on November 7, 2016. Defendant was represented by counsel and plaintiff appeared pro se. After both parties were sworn, the judge heard legal argument from defense counsel regarding the factors identified in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), as guideposts for the exercise of the court's discretion in dissolving or modifying an FRO. Defendant did not testify, except to answer an occasional question posed by the judge. Plaintiff, however, testified at length, first, by reading a prepared written statement, because she was "really scared," and then in response to the judge's questioning. Plaintiff accused defendant of "repeatedly" lying "to the police, the [c]ourt and his own attorneys" over the prior twenty years. Plaintiff claimed she was "still afraid" of defendant and, contrary to her certification, said defendant had contacted her after the FRO was issued, but she never called the police. The judge asked directly how defendant's contact with his adult daughter was making plaintiff fearful, and plaintiff responded: "I believe he's using her to get information and to compile stuff to harass me through 4 A-1636-16T1 these courts." Plaintiff claimed she was "working" on an unspecified criminal complaint against defendant. Although defense counsel responded to plaintiff's testimony with further argument, he never asked to cross-examine plaintiff or to have defendant testify. The judge noted that although there had been no contact between the parties for at least a decade, plaintiff was "shaking" during her testimony. Turning to the Carfagno factors, the judge found there were no violations of the FRO, no contempt complaints filed since the FRO issued and no restraining orders issued in other jurisdictions. The judge also concluded "there [was] not a valid basis to find that [defendant was] abusing the legal process," because requesting emancipation of the parties' daughter was "not a matter of harassment." The judge concluded plaintiff still had a deep-seeded concern . . . based upon what she alleges the actions of [defendant] back when the restraining order was [issued], whether he had a knife, whether he shook the child, whether he pushed her in the face, are all significant matters that do[] still reside in [plaintiff's] mind and in her belief that she has a fear [of defendant]. And I do find that for whatever reasons, although it . . . ought to perhaps have been negated by the ten-year period of time that they had no contact, it's apparent that that's still something that is affecting [plaintiff]. 5 A-1636-16T1 So for those reasons[,] I find that [plaintiff's] fear or her concern for her safety still exists, and so for those reasons[,] I am going to deny [defendant's] request to vacate the [FRO]. Noting plaintiff's claim that she intended to file charges against defendant, the judge said she was denying defendant's request "at least until the time that that matter is resolved." However, she also told plaintiff that once that "legal issue is over," the court might very well be in a position to grant [defendant's] request because at some point . . . you just have to live your own lives . . . and it's getting to that point soon, except that you're saying there might be some litigation, and so for that period of time I'm going to leave the restraint in place. Citing Bresocnik v. Gallegos, 367 N.J. Super. 178 (App. Div. 2004), defense counsel asked if the judge was finding plaintiff's fear was "rational." The judge said she was making such a finding, "based upon the fact . . . that . . . I'm observing [plaintiff]. . . . [A]t least at this point in her mind . . . there is a rational basis for it." (emphasis added). The judge entered an order denying defendant's motion, and this appeal followed. We defer to the trial judge's factual findings when supported by "adequate, substantial, credible evidence," particularly when 6 A-1636-16T1 those findings are based upon the judge's opportunity to observe the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We do not defer, however, to the judge's legal conclusions if they are based upon a misunderstanding of applicable legal principles. T.M.S. v. W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017) (citations omitted). A judge should consider the Carfagno factors in determining whether good cause supports a request to modify or dissolve an FRO. Sweeney v. Honachefsky, 313 N.J. Super. 443, 447-48 (App. Div. 1998). Those factors are: (1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant's request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court. [Carfagno, 288 N.J. Super. at 435.] Here, the judge recognized that plaintiff did not consent to vacating the FRO but then found several other Carfagno factors 7 A-1636-16T1 weighed in defendant's favor. Indeed, the only factor the judge considered in deciding not to dissolve the FRO was plaintiff's professed fear of defendant. Defendant argues that the judge erred, because she based her decision solely on plaintiff's subjective fear of defendant, which lacked any rational basis. See Bresocnik, 367 N.J. Super. at 182- 84 (reversing FRO because the plaintiff's fear lacked any rational basis). We agree. The Carfagno court emphasized that while the plaintiff's fear is an important consideration, "courts should focus on objective fear." 288 N.J. Super. at 437. "Objective fear is that fear which a reasonable victim similarly situated would have under the circumstances." Ibid. Here, although she found that plaintiff's fear was rational, the judge qualified that finding by stating it was rational "at this point in [plaintiff's] mind." In this regard, the judge applied the wrong legal standard. We note some other concerns. N.J.S.A. 2C:25-29d provides that an FRO may be dissolved or modified upon a showing of good cause, "but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was 8 A-1636-16T1 based." In Kanaszka v. Kunen, 313 N.J. Super. 600, 606 (App. Div. 1998), we held: In cases where the motion judge did not enter the final restraining order, . . . the "complete record" requirement of the statute includes, at a minimum, all pleadings and orders, the court file, and a complete transcript of the final restraining order hearing. Without the ability to review the transcript, the motion judge is unable to properly evaluate the application for dismissal. We further held that the moving party seeking modification or dissolution must first establish a prima facie case showing good cause prior to the judge "fully considering the application for dismissal. If that burden is met, the court should then determine whether there are facts in dispute material to a resolution of the motion prior to ordering a plenary hearing." Id. at 608. The failure to furnish "the final hearing transcript" was "fatal" to the defendant's appeal. Id. at 607. We took a step back from that position recently in G.M. v. C.V., ___ N.J. Super. ___ (App. Div. Jan. 17, 2018). There, the trial judge denied the defendant's motion because she could not produce a copy of the FRO transcript due to the passage of time. (slip op. at 6). We reversed and held: If the judge is satisfied that reconstruction of the record is not feasible, the judge must make specific findings describing the reasons for this conclusion. In such a case, we hold 9 A-1636-16T1 that where a party requesting to modify or dissolve a FRO has shown prima facie evidence of changed circumstances and where the audio record of the FRO hearing is no longer able to be transcribed, in whole or in part, without the fault of the moving party, the judge may conduct a plenary hearing to determine whether the party seeking modification or dissolution of the FRO is entitled to any relief. [(slip op. at 20).] Here, defendant demonstrated that no transcripts of the 1994 and 1995 court hearings could be produced because the tapes had been purged. Defendant was not at fault. Further, from the record before us, it appears there never was a hearing on the FRO. Instead, the matrimonial judge took jurisdiction of the DV matter and entered the FRO based on terms settled upon by the parties as part of the matrimonial case.3 It certainly appears that reconstruction is not feasible. We also conclude that defendant made a prima facie showing of good cause for modification. Ibid. We therefore vacate the order under review and remand the matter for a plenary hearing consistent with this opinion and our holding in G.M., at which the judge shall apply the appropriate legal standard as to whether plaintiff has an "objective fear" of 3 In J.S. v. D.S., 448 N.J. Super. 17, 22 (App. Div. 2016), we disapproved such a procedure by noting, "[p]ublic policy precludes the entry, continuation, or dismissal of an FRO as a bargaining chip in the settlement of other disputes." 10 A-1636-16T1 defendant, i.e., "fear which a reasonable victim similarly situated would have under the circumstances." Carfagno, 288 N.J. Super. at 437. One other issue bears comment. In reaching her conclusion, the judge referenced some of plaintiff's allegations regarding the alleged 1994 incident of domestic violence that led to the issuance of the TRO. The judge based her ultimate decision almost exclusively on plaintiff's demeanor during her testimony. However, defense counsel never cross-examined plaintiff nor did defendant ever testify. We find no particular fault with the judge in this regard because counsel never specifically asked for the opportunity to have his client testify or to cross-examine plaintiff. However, at the plenary hearing, the court must give defendant an opportunity to present his own proofs and cross- examine plaintiff. Vacated and remanded. We do not retain jurisdiction. 11 A-1636-16T1

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Docket No.: a2001-16
Decided: 2018-02-14
Caption: JOYEBUZOR-ONAYEMI v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
Status: unpublished
Summary:
PER CURIAM Appellant Joy Ebuzor-Onayemi appeals from the December 5, 2016 decision of the Board of Review (Board) finding that she was not entitled to extended unemployment benefits during training (ABT). For the reasons that follow, we reverse. The relevant facts are not in dispute. Appellant worked for three different employers as a direct care aide. She was employed by Caringhouse Projects from March 2011 until she was laid off on March 30, 2014; by AW Holdings from September 2011 until she was laid off on March 30, 2014; and by Sussex County ARC from September 2009 until she was fired on March 9, 2014. On April 13, 2014, appellant filed a claim for unemployment benefits based upon her work for each of her three employers. On May 21, 2014, a Deputy Claims Examiner (Deputy) found that appellant was disqualified for benefits because all three employers had allegedly discharged her for severe misconduct connected with the work under N.J.S.A. 43:21-5(b). Appellant appealed these determinations to the Appeal Tribunal (Tribunal). Following a telephone hearing at which appellant and all three employers participated, the Tribunal found that Sussex County ARC terminated appellant's employment "because she was 2 A-2001-16T4 caught on camera sleeping on the job." The Tribunal concluded that appellant's actions that evening constituted "simple misconduct" and disqualified her for benefits for the eight-week period between March 9, 2014 and May 3, 2014. After this period of disqualification, appellant became eligible again and collected all the benefits due to her for her work for Sussex County ARC. With regard to appellant's two other employers, the Tribunal found that appellant "did not engage in any act that could be construed as misconduct." Accordingly, the Tribunal found appellant eligible for unemployment benefits without disqualification based upon her employment at Caringhouse Projects and AW Holdings. Appellant thereafter collected all the benefits due to her for her work with these two employers. On August 28, 2016, appellant applied for ABT while she was participating in a vocational training program. The purpose of ABT is to provide benefits to workers who have been displaced from their employment while they attend training programs that teach them "new skills to reenter a more marketable area of the economy." Bonilla v. Bd. of Review, 337 N.J. Super. 612, 616 (App. Div. 2001). In order to receive ABT, a claimant must meet a number of statutory requirements set forth in N.J.S.A. 43:21-60, including 3 A-2001-16T4 two that are relevant to the present appeal. In pertinent part, N.J.S.A. 43:21-60 provides that ABT shall be provided to any individual who: a. Has received a notice of a permanent termination of employment by the individual's employer or has been laid off and is unlikely to return to his previous employment because work opportunities in the individual's job classification are impaired by a substantial reduction of employment at the worksite; [and] b. Is, at the time of the layoff or termination, eligible, pursuant to the "unemployment compensation law," [N.J.S.A.] 43:21-1 et seq., for unemployment benefits[.] As already noted, appellant was laid off from two of her employers, Caringhouse Projects and AW Holdings. The Tribunal found that appellant's third employer, Sussex County ARC, had terminated her for simple misconduct. A Deputy initially granted appellant's application for ABT, and she collected these benefits for two weeks. However, the Deputy then issued a redetermination holding her ineligible for benefits for ABT because of her prior disqualification for simple misconduct in connection with her work at Sussex County ARC. The Deputy also requested that appellant refund the ABT she had already received. Appellant filed an appeal with the Tribunal, arguing that even if she was not eligible for ABT because she had been 4 A-2001-16T4 terminated for simple misconduct, rather than laid off, by Sussex County ARC, she still qualified for ABT based upon her employment with Caringhouse Projects and AW Holdings. On October 18, 2016, the Tribunal determined after a telephone hearing that appellant was ineligible for ABT under N.J.S.A. 43:21-60(a). The Tribunal found that because appellant was terminated by Sussex County ARC for simple misconduct, her separation from employment was not due to "substantial reduction in work" as required by N.J.S.A. 43:21-60(a). The Tribunal did not address the fact that appellant had worked for two other employers and that both of them had laid her off because of a lack of work. Appellant filed an appeal with the Board, which issued its final decision on December 5, 2016. Although the Board adopted the Tribunal's findings of fact, it disagreed with the Tribunal's conclusion that appellant was ineligible for ABT under N.J.S.A. 43:21-60(a). Instead, the Board denied her claim based upon N.J.S.A. 43:21-60(b) which, as stated above, provides that ABT benefits are not available to a claimant who "at the time of the layoff or termination," is not "eligible . . . for unemployment benefits." In so ruling, the Board noted that Sussex County ARC terminated appellant on March 9, 2014 for simple misconduct and she would later be disqualified for benefits for an eight-week 5 A-2001-16T4 period ending on May 3, 2014. Thus, the Board concluded that appellant was not eligible for unemployment benefits when she applied for them on the basis of her work for three separate employers on April 13, 2014. According to the Board, it did not matter that appellant was laid off by Caringhouse Projects and AW Holdings three weeks after Sussex County ARC terminated her, and she was eligible for unemployment benefits for her work with these two employers from March 30, 2014. The Board stated: The fact that [appellant's] separation with two other employers were [sic] not for disqualifying reasons does not overcome the disqualification imposed with [Sussex County ARC]. Since [appellant] was not eligible for benefits after her termination, she is ineligible for [ABT] in accordance with N.J.S.A. 43:21-60(b). This appeal followed. On appeal, appellant argues that the Board erred when it found her ineligible for ABT under N.J.S.A. 43:21-60(b) because she was plainly eligible for unemployment benefits at the time she was laid off by Caringhouse Projects and AW Holdings. Therefore, appellant asserts she was entitled to ABT based upon her work with, and wages earned from, these two employers. We agree. Our review of an administrative agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In reviewing the agency's factual findings, we give due regard to the agency's 6 A-2001-16T4 expertise. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Absent a finding that it was "arbitrary, capricious, or unreasonable," we will not disturb an agency's decision. Brady, 152 N.J. at 210. To ascertain whether an agency's decision is arbitrary, capricious, or unreasonable, we must determine: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Lavezzi v. State, 219 N.J. 163, 171 (2014) (quoting In re Stallworth, 208 N.J. 182, 194 (2011)).] "As a reviewing court, while we respect an agency's expertise, ultimately the interpretation of statutes and regulations is a judicial, not administrative, function and we are not bound by the agency's interpretation." Silver v. Bd. of Review, 430 N.J. Super. 44, 58 (App. Div. 2013). Therefore, we are "not 'bound by [an] agency's interpretation of a statute or its determination of a strictly legal issue[.]'" Lavezzi, 219 N.J. at 172 (quoting Norfolk S. Ry. Co. v. Intermodal Props., LLC, 215 N.J. 142, 165 (2013)). 7 A-2001-16T4 "Our analysis of a statute begins with its plain language, giving the words their ordinary meaning and significance." In re Estate of Fisher, 443 N.J. Super. 180, 190 (App. Div. 2015) (citing State v. Olivero, 221 N.J. 632, 639 (2015)). When, as here, the language of a statute "clearly reveals [its] meaning, the court's sole function is to enforce the statute in accordance with those terms." Ibid. Applying these principles, we are constrained to conclude that the Board's determination that appellant was not eligible for ABT based upon her work for Caringhouse Projects and AW Holdings was arbitrary, capricious, and unreasonable because it was contrary to the plain language of N.J.S.A. 43:21-60(b).1 As noted above, this statute provides that in order to qualify for ABT, the claimant must be, "at the time of the layoff or termination, eligible . . . for unemployment benefits." Here, the record clearly demonstrates that appellant was eligible for unemployment benefits for her work with both Caringhouse Projects and AW Holdings on March 30, 2014, the date these employers laid her off. Thus, appellant was clearly "eligible" for unemployment benefits from these two employers "at the time of the layoff[,]" which is 1 Consistent with its final decision, the Board does not assert on appeal that appellant failed to meet the requirements of N.J.S.A. 43:21-60(a). 8 A-2001-16T4 all that N.J.S.A. 43:21-60(b) requires. Therefore, the Board should have granted appellant's application for ABT based upon her work with, and wages earned from, Caringhouse Projects and AW Holdings. On appeal, the Board asserts that once appellant was disqualified for unemployment benefits for her work with Sussex ARC as of March 9, 2014, she was not "eligible" for these benefits when she was laid off three weeks later by her two other employers. It boldly states, "[t]he fact that [appellant] was terminated from two other employers for separate reasons does not negate her ineligibility." In making this argument, however, the Board does not cite to any statute, regulation, or decisional law in this State supporting this proposition. It is well established that "[c]ourts should use common sense in interpreting statutes and avoid absurd results." Simpkins v. Saiani, 356 N.J. Super. 26, 36 (App. Div. 2002) (citation omitted). If the Board's reasoning were adopted, appellant would be punished for having worked for three separate employers and then having the misfortune of being fired by one of them before being laid off by the other two because of a lack of work. There is simply nothing in N.J.S.A. 43:21-60(b) that requires, or even suggests, that a disqualification based on a claimant's work with one employer should act as a bar to ABT based upon the claimant's separate work 9 A-2001-16T4 history with two other employers, which resulted in her receipt of unemployment benefits without any period of disqualification. Therefore, we reject the Board's contention. We reverse the final decision of the Board denying ABT and the request for refund. The case is remanded to the Division of Unemployment Insurance to determine the amount of ABT to which appellant is entitled for her employment with Caringhouse Projects and AW Holdings within thirty days of the date of this opinion. Reversed and remanded. We do not retain jurisdiction. 10 A-2001-16T4

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Docket No.: a2190-16
Decided: 2018-02-14
Caption: STATE OF NEW JERSEY v. JESUS M. MELENDEZ
Status: unpublished
Summary:
PER CURIAM Following leave granted, the State appeals from a November 18, 2016 order that suppressed evidence seized in a warrantless search of a jewelry store in Plainfield owned by defendant Fadi Hamade and managed by defendant Jesus Melendez. We affirm the suppression order. Defendants were indicted on nine counts of an eleven-count indictment arising from the search of a jewelry store in Plainfield on August 8, 2015. Six of the counts related to the seizure of synthetic cannabinoid and were the subject of the suppression motion. These included: second-degree possession of synthetic cannabinoid with intent to distribute, N.J.S.A. 2C:35-5.3(b) (count one); third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(13) (count two); third-degree possession of a controlled dangerous substance with intent to distribute on or within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of a controlled dangerous substance with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count 2 A-2190-16T3 five); and fourth-degree possession of a synthetic cannabinoid, N.J.S.A. 2C:35-5.3(c) (count six). The remaining counts alleged fourth-degree possession of drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3 (count nine); fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(e) (count ten); and fourth-degree possession of a stun gun, N.J.S.A. 2C:39-3(h) (count eleven).1 The November 18, 2016 order that granted defendants' suppression motion did not suppress evidence related to those charges. We gather the following facts from the record developed at the suppression motion. I Detective Michael Metz of the Plainfield Police Department testified that on August 8, 2015, he was assigned to the narcotics and vice section. As he and his partner were getting into their unmarked vehicle, he saw two women and a man walking northbound on Watchung Avenue in Plainfield. He recognized one of the women, S.L., from a previous investigation where she was found to be in possession of synthetic cannabinoid. He did not recognize the second woman, Mildred Moore, who at the next intersection, made a left turn while S.L. continued straight, crossed over and stood 1 Co-defendant, Mildred Moore was charged along with defendants in count five of the indictment and charged solely in counts seven and eight. She is not a respondent here. 3 A-2190-16T3 on the corner. Metz watched Moore go into the jewelry store. She was there less than a minute and came out carrying a black plastic bag. She proceeded on Watchung Avenue, now going southbound. Meanwhile, S.L. turned around and also was proceeding southbound on Watchung Avenue, but looking back as if she and Moore were going to "re-group." Metz believed that Moore just had purchased synthetic cannabinoid. This was based on prior information he had from a confidential informant, who said it was being sold from the store, an inter-departmental memo that reported a juvenile said he purchased synthetic cannabinoid there, and similar information from his direct supervisor. Metz requested that nearby units stop Moore and investigate. She was found to be in possession of synthetic cannabinoid and was arrested. Moore admitted purchasing the drug from the jewelry store. After speaking with his supervisor, Acting Lieutenant Christopher Sylvester, Metz "secure[d] the store to ensure no one went back," and to ensure that "no evidence could be destroyed or concealed." When he entered the store, Metz noticed a sweet smell, which he believed was synthetic cannabinoid based on his experience from past investigations. Defendants Hamade and Melendez were both standing behind a counter. Their niece, who was about fourteen or fifteen, was in the backroom. Another male was 4 A-2190-16T3 cleaning the glass display cases. Some displays included jewelry, but others contained drug paraphernalia and weapons, including expandable batons, a stun gun and gravity knives. Hamade told Metz that he was the owner of the store and that Melendez was the manager. Metz explained that he was conducting a narcotics investigation and advised them that no one could enter or leave the store. He asked Hamade for consent to search the store, explaining that if Hamade did not consent, the police would attempt to obtain a search warrant. Other police arrived, including Acting Lieutenant Sylvester. When Hamade did not consent to a search, Sylvester contacted an assistant prosecutor for approval to apply for a search warrant, and Metz left to prepare the search warrant paperwork. Sylvester testified he did not threaten defendants, saying only that "with the search warrant anybody in the store may be arrested." He said Hamade became "cooperative" after realizing the officers "weren't bluffing" about obtaining a warrant and said either "fuck it" or "forget about it," "I'll sign the paper" and then signed the consent to search form. Metz testified he was only gone a short time when Sylvester called to advise him that Hamade consented to a search of the premises. Metz returned to the store. Melendez handed synthetic cannabinoid to the officers from behind the counter; other 5 A-2190-16T3 cannabinoid was found in the back of the store. Most of the cannabinoid was commercially packaged in foil under the brand name Scooby Snacks, like the package Moore had in her possession when she was arrested. The police seized a total of 5000 grams of synthetic cannabinoid. Hamade testified that he knew he did not have to consent to the search. However, he said he was told several times that if he did not sign the consent form, the police were going to request a search warrant and, if obtained, then turn his niece over to juvenile authorities, call immigration on the fourth individual, and "take everything in the store." He sold toys, incense, body oils and hookahs. The store was his "life savings" and he "didn't want it to go." The trial court granted defendants' motion to suppress the synthetic cannabinoid. Although the trial court believed that defendants had exaggerated their testimony, it found that "some version" of potential repercussions was told to Hamade by the officers. The court noted that the comments by the police about what would happen to the niece and to the fourth individual were "designed to bring pressure on Hamade to consent." The court assessed the factors set forth in State v. King, 44 N.J. 346 (1965), finding that Hamade's consent to the search was not voluntary. In addition, the court found there was "insufficient" 6 A-2190-16T3 information to establish probable cause for a search warrant and that the police lacked a reasonable, articulable suspicion when they stopped Moore. The State appeals the suppression order, claiming that Hamade gave knowing and voluntary consent to search. Even if the search were unlawful, the State contends the evidence should have been admissible under the inevitable discovery doctrine. II Our review of the denial of a suppression motion is limited. State v. Handy, 206 N.J. 39, 44 (2011). We review a motion judge's factual findings in a suppression hearing with great deference. State v. Gonzales, 227 N.J. 77, 101 (2016). 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. Gamble, 218 N.J. 412, 424 (2014). We defer "to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We owe no deference, however, to the trial court's legal conclusions or interpretation of the legal consequences that flow 7 A-2190-16T3 from established facts. Our review in that regard is de novo. State v. Watts, 223 N.J. 503, 516 (2015). Both the federal and State constitutions protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "[A] warrantless search is presumptively invalid," Brown v. State, 230 N.J. 84, 100 (2017) (citation omitted) (quoting Gonzales, 227 N.J. at 90), "unless [the search] falls within one of the few well-delineated exceptions to the warrant requirement." Ibid. (alteration in original) (citations omitted) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). "[T]he State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure 'falls within one of the few well-delineated exceptions to the warrant requirement.'" Elders, 192 N.J. at 246 (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)). The consent to search is a well-recognized exception. State v. Domicz, 188 N.J. 285, 305 (2006). Consent must be voluntarily given. However, it can "not be coerced, by explicit or implicit means, by implied threat or covert force." Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). "[T]he proper analytical framework is whether a person has knowingly waived his right to refuse to consent to the search." Domicz, 188 N.J. at 308. The 8 A-2190-16T3 burden is on the State to prove that consent was voluntary. State v. Johnson, 68 N.J. 349, 354 (1975). To determine if consent was coerced, the court must examine the "surrounding circumstances." Schneckloth, 412 U.S. at 229. "Voluntariness is a question of fact to be determined from all the circumstances." Id. at 248-49. Under the State constitution, an essential element in determining whether consent is voluntary is proof that an individual was aware of the right to refuse. Johnson, 68 N.J. at 353-54. In King, 44 N.J. at 352-53, the Court identified a non- exclusive list of factors to consider in evaluating if a defendant's consent was voluntary or coerced, cautioning, "the existence or absence of one or more of the . . . factors is not determinative of the issue." The factors that tend to show voluntariness of a consent include: "(1) that consent was given where the accused had reason to believe that the police would find no contraband; (2) that the defendant admitted his [or her] guilt before consent; [and] (3) that the defendant affirmatively assisted the police officers." Id. at 353 (citations omitted). The factors that tend to show that consent was coerced include: (1) that consent was made by an individual already arrested; (2) that consent was obtained despite a denial of guilt; (3) that consent was obtained only after the accused had refused initial requests for consent to 9 A-2190-16T3 search; (4) that consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered; [and] (5) that consent was given while the defendant was handcuffed. [Id. at 352-53 (citations omitted).] Here, "[t]he trial court had the 'feel of the case' [and] the opportunity to make observations of the witnesses." Domicz, 188 N.J. at 309 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). The record supported the trial court's findings that the police discussed the repercussions of obtaining a search warrant with defendants. Sylvester said that everyone would be arrested and that none of the people there were free to leave the premises. Hamade refused consent for forty minutes, a period of time the trial court considered "substantial." Nonetheless, he consented even though, as the judge found, defendants "certainly" had to be aware of the drugs in light of the quantity that was seized. Hamade explained he was concerned for his niece, who might be taken into custody, for the fourth person who might have immigration issues, and for the disposition of all of his property in the store. Predicated upon our decision that the trial court properly held that the State failed to sustain the validity of the search based upon consent, we do not need to address the determination 10 A-2190-16T3 that there was insufficient probable cause to obtain a search warrant. Affirmed. 11 A-2190-16T3

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Docket No.: a3057-16
Decided: 2018-02-14
Caption: PSEG ENERGY RESOURCES TRADE, LLC v. ONYX RENEWABLE PARTNERS, LP
Status: unpublished
Summary:
PER CURIAM This is an interlocutory appeal pursued as of right pursuant to Rule 2:2-3(a)(3) from the trial court's March 6, 2017 order denying plaintiff's motion to compel arbitration in accordance with a contractual arbitration provision. The trial court denied the motion. It did so after determining the parties had not entered into a binding agreement, and that contract documents which had been drafted but were never executed were not enforceable. On appeal, plaintiff argues that the trial court erred in its legal analysis of the documents and the surrounding circumstances, and that the court should have found that a binding agreement had been consummated. In the alternative, plaintiff contends that the court should not have ruled against plaintiff without first conducting an evidentiary hearing. Having considered these and plaintiff's other arguments following our de novo review of the record in light of the applicable law, we affirm the trial court's determination. We do so substantially for the sound reasons set forth in Judge Stephanie A. Mitterhoff's detailed twenty-six-page written opinion dated March 6, 2017. We underscore and amplify the judge's analysis, 2 A-3057-16T2 and address plaintiff's assorted criticisms of her decision, with the following commentary. I. We need not repeat here at length the underlying factual chronology detailed in Judge Mitterhoff's opinion. That factual chronology is substantially undisputed. The crux of the dispute on appeal essentially revolves instead around the judge's legal conclusions drawn from those facts. Briefly stated, the regulatory and business context of this matter is as follows. To promote the generation of solar energy, the State of New Jersey has adopted regulations establishing Renewable Portfolio Standards. See N.J.A.C. 14:8-1 and -2. The regulations require energy suppliers to possess a specified quantity of Solar Renewable Energy Credits ("SRECs"), in order to induce such suppliers to procure a minimum portion of their energy sales from facilities that generate electricity from solar panels. When a facility generates electricity from solar panels and meets certain other criteria, SRECs are issued to that facility, based upon the amount of solar energy generated. If energy suppliers do not have enough SRECs on hand to meet the specified requirements, they must make a Solar Alternative Compliance 3 A-3057-16T2 Payment to the State.1 SRECs are transferable, and the trading of SRECs has created a market in which the price of SRECs fluctuates due to supply and demand. Plaintiff, PSEG Energy Resources & Trade, LLC ("PSEG"), is a Delaware limited liability company with offices in New Jersey. Plaintiff is the trading arm of PSEG Power LLC, an energy supplier that is subject to New Jersey's SREC requirements. Plaintiff buys and sells SRECs for its affiliated energy suppliers and generators. Defendant Onyx Renewable Partners, L.P. ("Onyx") is a Delaware limited partnership with offices in New York. Onyx engages in the business of supplying and trading in SRECs. In addition to defendant Onyx, the complaint named as a co-defendant Blackstone Energy Partners, L.P., a Delaware limited partnership. The record indicates that another Blackstone entity, Blackstone Solar HoldCo., L.P., owns an equity interest in Onyx.2 Before the present circumstances arose, the parties had no established trading relationship. Through the efforts of a third- party brokerage service, on November 12, 2014, PSEG and Onyx 1 The compliance payment was $323 per SREC in 2016. 2 Defendants' brief asserts that Blackstone Solar HoldCo., L.P. should be substituted as the proper co-defendant with Onyx in this case. The trial court did not reach this question of party identification and we have no need to resolve it in deciding this appeal. 4 A-3057-16T2 assented to a prospective five-year arrangement for Onyx to sell 20,000 New Jersey SRECs annually to PSEG at a price of $171.00 per SREC for Energy Years 2016 to 2020. The total purchase and sale price for the SREC transaction was $17.1 million, which plaintiff's brief describes as one of the "very largest" SREC transactions "in New Jersey's history." The brokered terms of the arrangement further specified that "Delivery to be agreed upon in contracting. Buyer will initiate purchase and sale agreement (PSA). Trade subject to mutual contract and credit terms. This product is Firm LD."3 (Emphasis added). In December 2014, PSEG and Onyx began to exchange drafts of a proposed contract. According to Onyx, in March 2015, it made clear to PSEG that neither Blackstone nor any of the Blackstone affiliates would provide a guaranty or credit support. Upon learning this, PSEG requested in April 2015 that Onyx provide a 3 According to plaintiff's brief on appeal, the term "Firm LD" means that either party would be relieved of its obligations to sell and deliver or purchase and receive SRECs if such performance was prevented by force majeure. Plaintiff further contends that, in the absence of force majeure, the party to whom performance is owed is entitled to receive payment in the amount representing the difference between the contract price and the price of a replacement purchase in an event of a seller failure. We need not focus upon this point, because plaintiff does not contend that the November 12, 2014 brokerage arrangement, absent further negotiation of delivery, credit and other contract terms, comprised a binding and comprehensive contract. Instead, the dispute concerns whether subsequent interactions between the parties, post-dating November 2014, created a binding contract. 5 A-3057-16T2 $15 million letter of credit for the transaction. Onyx demurred, believing that such a large letter of credit was not sensible financially. In September 2015, PSEG backed off its request to receive a full $15 million letter of credit, but the credit issue remained unresolved. On December 3, 2015, Onyx's Chief Executive Officer, Matthew Rosenblum, and its chief legal officer, Ryan Marrone, had a telephone conference call with representatives of PSEG. During that conference call, the Onyx representatives proposed that Onyx would provide to PSEG a letter of credit for the contemplated SREC transaction in a much-lower sum of $1.25 million. The Onyx representatives also proposed that PSEG delay the SREC delivery date for Energy Year 2016 from July 2016 to September 2016. In another telephone conference call the following day, December 4, representatives of PSEG orally informed representatives of Onyx that PSEG was willing to accept Onyx's oral proposals for both a $1.25 million letter of credit and the postponement of the initial delivery date to September 2016. PSEG incorporated these added terms into a drafted Master Power Purchase & Sale Agreement (the "Master Agreement") and a drafted Purchase 6 A-3057-16T2 and Sale of Solar Renewable Energy Credits Transaction Confirmation Letter (the "Confirmation Letter").4 As the trial court aptly recognized, the Confirmation Letter and proposed Master Agreement both contain important language reflecting the parties contemplated the contract documents needed to be executed by duly authorized representatives of both companies in order to consummate the transaction. Among other things, we note in this regard, as did the trial court, that the draft Confirmation Letter recites: This Confirmation Letter, together with the General Terms and Conditions, supplements, forms part of, and is subject to, the Master Power Purchase and Sale Agreement entered into by the Parties hereto dated February 1, 2016, as it may be amended from time to time . . . IN WITNESS THEREOF, and intending to be legally bound, the Parties have executed this Agreement by their undersigned duly authorized representative as of the date below to be effective as of the Effective Date hereof. [(Emphasis added)]. As the trial court also pointed out, Section 10.2(ii) of the draft Master Agreement contains an explicit representation and warranty that "the execution, delivery and performance of this 4 PSEG asserts that the Master Agreement contains several core terms that are standard within the industry, subject to tailoring and modification to fit the specific needs of the parties. The standardized Master Agreement (version 2.1) apparently was issued in 2000 by the Edison Electric Institute and National Energy Marketers Association. 7 A-3057-16T2 Master Agreement and each [SREC] Transaction (including any Confirmation accepted in accordance with Section 2.3 [of the Master Agreement]) are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulations, order or like applicable to it." (Emphasis added). In like manner, Section 10.2(iv), also highlighted by the trial court, represents that the Master Agreement, each SREC transaction, and "each other document executed and delivered in accordance with [the] Master Agreement constitutes its legally valid and binding obligation enforceable against it in accordance with its terms; subject to any Equitable Defenses." (Emphasis added). The trial court also found noteworthy that Section 10.8 of the Master Agreement similarly emphasizes the importance of written execution in instances of amendment or modification. That provision states, "Except to the extent herein provided for, no amendment or modification of this Master Agreement shall be enforceable unless reduced to writing and executed by both Parties." (Emphasis added). The proposed contract documents also included an Addendum specifically tailored to the proposed PSEG-Onyx transaction. As the trial court noted, the Addendum contained a mandatory 8 A-3057-16T2 arbitration clause in Section 10.13, requiring the arbitration of disputes that might arise concerning the transaction. Notably, the Addendum also contains language reiterating that the contract "can only be modified or amended through a written and fully executed amendment . . . ." (Emphasis added). The Addendum further specifies in an additional provision, Section 10.12 ("Authorizations"), that either party to the contract had the right to obtain, among other things, a secretary's "certificate of corporate resolutions authorizing the execution, delivery and performance of the [a]greement" and authorizing the party "to execute, deliver and perform under any guaranty." (Emphasis added). Section 10.12 also provides either party with a right to demand signature specimens for the "respective signatories executing this Agreement and any Guaranty on its behalf." (Emphasis added). In response to PSEG's transmission of the drafted Confirmation Letter, Master Agreement, and Addendum, Onyx's chief counsel Marrone advised PSEG in a December 17, 2015 email that he had reviewed the drafts, that he still had "one or two" substantive changes, and that he would advise when he had "clearance to release" the documents. Rosenblum, the CEO of Onyx, was copied on that email. A few days later, Onyx sent to PSEG a proposed form for the letter of credit, which PSEG indicated was acceptable. 9 A-3057-16T2 Another revision concerning a clarifying phrase was discussed and resolved by email on January 25, 2016. On January 29, 2016, Onyx's counsel Marrone and Luciano Pisano, PSEG's associate general trading counsel, took part in a telephone conference call. Onyx's CEO Rosenblum was not on that call. According to Pisano, during that January 29 call Marrone5 allegedly acknowledged that the parties were in agreement as to "all terms and conditions for the SREC transaction." PSEG thereafter provided Onyx with a full set of the contract documents for execution. It is undisputed that the parties never mutually signed the contract documents. It is also undisputed that Onyx did not deliver a letter of credit to PSEG by the contemplated date in February 2016. Consequently, PSEG began buying SRECs from other sources. Further negotiations in 2016 between the parties failed. PSEG took the position that Onyx had bound itself to an enforceable 5 Marrone disputes Pisano's characterization and recollection of precisely what he said during the call. He specifically denies telling the PSEG representatives on the call that Onyx had agreed to the drafted contract terms. Marrone also certifies that he did not represent to PSEG "at any time" that he had the authority to bind Onyx, and that only Onyx's CEO Rosenblum had such authority. In any event, for the reasons noted by the trial court we discuss infra, that difference of recollection is legally inconsequential to the issues presently on appeal, in light of the legal conclusion that a fully executed set of written agreements was necessary to bind these parties. 10 A-3057-16T2 agreement, while Onyx asserted that no binding obligations existed because the $17.1 million, five-year contract was never mutually executed. II. In October 2016, PSEG filed a seven-count verified complaint and Order to Show Cause against Onyx and Blackstone in the Law Division. Among other things, the complaint asserted that defendants are liable based on alternative theories of breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel, and fraud and misrepresentation. The complaint also alleged that Blackstone is Onyx's alter ego, and that the corporate veil should be pierced so as to make Blackstone liable to PSEG for Onyx's alleged obligations. Invoking the arbitration clause within the Addendum, PSEG simultaneously moved in its Order to Show Cause to compel the dispute to be resolved through binding arbitration. PSEG amplified its contentions with various supporting certifications. If the trial court detected any material disputed factual issues, PSEG requested that those issues be considered on a summary basis at an expedited hearing, pursuant to the summary action procedures of Rule 4:67-5. Onyx responded to the complaint and Order to Show Cause with certifications from Rosenblum and Marrone, along with additional 11 A-3057-16T2 exhibits and documents. In essence, Onyx maintained, as it had previously, that there was no signed enforceable agreement and thus Onyx had no obligation to perform the alleged contract or to participate in a compelled arbitration. Rosenblum explained in his certification that ultimately he determined that the proposed transaction was not "consistent with market conditions" and was "too economically disadvantageous for Onyx to agree to." After sifting through these submissions and hearing oral argument, Judge Mitterhoff issued her detailed written decision denying plaintiff's motion to compel arbitration. Fundamentally, the judge concluded that the record, objectively considered, does not support PSEG's claim that the parties entered into a binding agreement, in the absence of fully-executed contract documents for this large and sophisticated business transaction. Among other things, the judge reasoned that PSEG "viewed both the provision of a letter of credit and an executed contract as essential to cementing an enforceable agreement," and that the letter of credit and executed contract were essential to PSEG to cement the transaction. In addition, the judge ruled "there are otherwise insufficient objective indicia of unambiguous assent to the terms of the agreement for the court to find that a binding agreement was formed in the absence of a signed contract." She noted that there had been no prior dealings between the parties 12 A-3057-16T2 and the transaction was "fraught from its inception by mutual distrust." Rejecting PSEG's arguments that the parties achieved a binding agreement in the December 3 and 4, 2015 phone calls or, alternatively, in the January 29, 2016 conference call, the judge particularly noted that: (1) Onyx never delivered a letter of credit, (2) the parties never signed the agreement, and (3) Marrone individually lacked the authority to bind Onyx to the transaction. The trial judge discerned no need to conduct an evidentiary hearing to reach or confirm its legal conclusions. The judge noted in this regard that the "objective conduct" reflected in the documentary record was not truly in dispute, and that a plenary hearing "would not meaningfully add information that would inform the court's decision." III. Now on appeal, PSEG contends that the trial judge mistakenly concluded that mutually signed writings were necessary to bind the parties, and that the oral discussions that took place on December 3 and 4, 2015, and thereafter in the January 29, 2016 conference call adequately substantiated a mutual and binding agreement. We respectfully disagree. We recognize that, in some instances, parties may be bound by the mutual exchange of oral promises with the intention of 13 A-3057-16T2 later executing a formal instrument to memorialize their undertaking, assuming that such an oral commitment does not violate the statute of frauds.6 See, e.g., Pascarella v. Bruck, 190 N.J. Super. 118, 126 (App. Div. 1983). Nevertheless, the absence of a fully executed agreement can be a key consideration in determining whether such a mutual agreement of the parties to be bound actually existed. See, e.g., Leodori v. CIGNA Corp., 175 N.J. 293, 304-05 (2003) (noting that when one party presents a contract for signature to another party, the omission of the latter's signature is "a significant factor in determining whether the two parties mutually have reached an agreement"). Here, the judge soundly determined from the record – including the multiple provisions within the drafted Confirmation Letter, Master Agreement, and Addendum underscoring the important requirement that the contract documents be "executed" by persons having authority within these two enterprises – that the parties each intended that the execution of the contracts was a key precondition to bind them to this five-year, $17.1 million transaction. A fully-executed contract in this setting plainly was not a mere formality. 6 We need not reach Onyx's alternative claim that an oral agreement of this nature would violate the statute of frauds under New York law. 14 A-3057-16T2 To the extent PSEG emphasizes attorney Marrone's role in participating in the parties' negotiations (including the January 29 telephone conference that took place without Onyx's CEO Rosenblum on the line), we concur with the trial court that neither Marrone's actual or apparent authority to bind Onyx is fairly established by the record. See LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 497 (App. Div. 2003) (noting that "a conclusion that a party has acted with apparent authority must rest upon the actions of the principal, not the alleged agent"); Beck v. Edwards & Lewis, Inc., 141 N.J. Eq. 326, 332 (Ch.1948) (instructing that a party dealing with a business enterprise "must inform [itself] of the powers of the officers or of the agent purporting to act for it if [it] hopes to effectuate a binding contract"). In fact, Marrone's email to PSEG following the January 29 conference call sought a "fully executable" set of documents for CEO Rosenblum to sign, a phrasing which is consistent with Onyx's position that the transaction could not be binding until the contract documents were actually signed by both parties. Moreover, even if Rosenblum had provided his personal oral assent to all of the negotiated terms of the proposed transaction, the language of the drafted contract documents – which we have already spotlighted – emphasizing the importance of "execution," defeats PSEG's claim of enforceability. 15 A-3057-16T2 We reject PSEG's contention that the trial judge unduly focused on the parties' post-January 2016 conduct in finding no binding agreement was present. We recognize that PSEG was entitled, and perhaps even obligated, to reasonably endeavor to mitigate its damages once it became apparent that Onyx was not going to perform. White v. Twp. of North Bergen, 77 N.J. 538, 546 (1978) (regarding mitigation of damages); Quinlan v. Curtiss- Wright Corp., 425 N.J. Super. 335, 359-65 (App. Div. 2012) (regarding mitigation of damages). Further, we appreciate that the post-January 2016 discussions theoretically could be viewed as indicative of efforts at re-negotiating an existing contract. But the more compelling objective evidence in this case indicates that these additional discussions were merely an attempt to salvage a deal that never was consummated. We defer to the trial court's decision to forego an evidentiary hearing under Rule 4:67-5. For one thing, we have considerable doubts whether the testimony from both sides expounding upon the multiple certifications – with attendant direct and cross-examination by counsel – would have been realistically amenable to a summary trial subject to completion over a day or two. Moreover, as the judge rightly observed, there was no necessity here for an evidentiary hearing, given the 16 A-3057-16T2 strength of the objective record supporting her findings as to the absence of a binding agreement. For all of these reasons, we therefore affirm the trial court's interlocutory order denying arbitration and her related decision rejecting PSEG's contract-based contentions. Logically, PSEG's claim of a breach of the covenant of good faith and fair dealing must also fail. See Noye v. Hoffmann-La Roche, Inc., 238 N.J. Super. 430, 434 (App. Div. 1990) (recognizing that, in the absence of a valid contract, there can be no cause of action for breach of the implied covenant of good faith and fair dealing). We assert no views as to whether PSEG's remaining claims of fraud, promissory estoppel, and piercing the corporate veil survive. We defer those unadjudicated questions to the trial court. See Mita v. Chubb Computer Services, Inc., 337 N.J. Super. 517, 529 (App. Div. 2001) (noting the potential non-viability of non-contract claims, where they are "derivative" of an untenable contract claim).7 7 In addressing the discrete issues before us on appeal, we neither endorse nor criticize Onyx's conduct in refusing to execute the drafted documents that PSEG presented to it. We simply uphold the trial court's narrow ruling that the record provides no basis for a claim of contractual breach. Among other things, we presume that on remand the parties and the court will more fully develop proofs concerning Rosenblum's explanation of why Onyx ultimately held back on committing to a contract after the parties' lengthy negotiations. We also presume the remand will explore whether PSEG reasonably relied to its detriment on any "clear and definite" 17 A-3057-16T2 Affirmed. The matter is remanded to the trial court to adjudicate the open claims. We do not retain jurisdiction. promises by Onyx (assuming arguendo such promises justifying reliance were made independent of an enforceable contract). 18 A-3057-16T2

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Docket No.: a4152-15
Decided: 2018-02-14
Caption: LASALLE BANK NATIONAL ASSOCIATION v. KEVIN L. BAYLOR
Status: unpublished
Summary:
PER CURIAM On January 29, 2018, we were notified that the parties had dismissed this appeal. The "Stipulation to Withdraw Appeal With Prejudice" was prepared by plaintiff and signed by defendant on December 13, 2017. Six weeks later, plaintiff signed and submitted the withdrawal. During the six-week delay we spent time considering the merits of this complex foreclosure appeal. "We have previously emphasized in published decisions the importance of notifying us when a settlement seems imminent." Sessner v. Merck Sharp & Dohme Corp., 435 N.J. Super. 347, 349 (App. Div. 2014). We remind counsel once again. Having been advised by the parties in the above matter that the issues in dispute have been amicably resolved, the appeal is dismissed with prejudice and without costs to either party. Dismissed. 2 A-4152-15T2

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Docket No.: a4572-15
Decided: 2018-02-14
Caption: DIVISION OFCHILD PROTECTION AND PERMANENCY v. A.W.
Status: unpublished
Summary:
PER CURIAM The Family Part entered a Judgment of Guardianship against defendant A.W., terminating his parental rights to his minor daughter2 A.M.A.F.W. In this appeal, defendant argues the Division of Child Protection and Permanency (the Division) failed to satisfy prongs two, three, and four of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Defendant also argues the Division violated his due process rights by denying his requests for visitation with A.M.A.F.W. throughout the guardianship litigation. We reject these arguments and affirm. 2 The Family Part also terminated the parental rights of A.M.A.F.W.'s biological mother, T.M.F., a/k/a T.M.B.F. She did not file an appeal. 2 A-4572-15T3 I A A.M.A.F.W. was born in 2008. She has a significant history of emotional and behavioral problems, including "impulsive behavior, aggressive behavior, defiance, suicidal ideation, problematic sexual behavior, and poor interpersonal boundaries." She was diagnosed in 2014–2015 with Attention Deficit Hyperactivity Disorder (ADHD), Fetal Alcohol Syndrome, and learning disabilities associated with reading and mathematics. The record also shows that she may have been sexually abused. Defendant has a long history of heroin dependence dating back to the early 1990s. He was born and raised in Newark, where he has resided with his mother "off and on" since 1977. Defendant completed twelfth grade in the Livingston public school system. His most recent job was in 2010 as a "machine operator." His substance abuse problem has also produced drug-related criminal activity for which he has served short periods of incarceration. He has been arrested for "wandering," "loitering," "breaking and entering," drug possession, failure to pay child support, and violation of the terms of a probationary sentence. A psychological evaluation report dated October 31, 2013, shows defendant has been charged with aggravated arson, theft, disturbing the peace, and resisting arrest. The report does not reveal the disposition of 3 A-4572-15T3 these charges. As of February 24, 2016, defendant did not receive any form of public assistance. The Division's involvement with this family began approximately two years before A.M.A.F.W. was born. The referrals involved allegations of physical abuse of A.M.A.F.W.'s older siblings by their biological mother. Throughout 2008, the Division substantiated allegations of neglect, abandonment and "substantial risk of physical injury[.]" Shortly after A.M.A.F.W. was born, the Division received a referral from St. Barnabas Medical Center that A.M.A.F.W.'s biological mother: (1) was unable to provide a name that corresponded with a valid social security number; and (2) could not confirm that she received prenatal care during her pregnancy. When the Division caseworker interviewed A.M.A.F.W.'s mother, T.M.F., she stated that her apartment was "bordered up[.]" She planned to care for her newborn infant at her sister's home. However, the Division was unable to confirm this alleged living arrangement. When asked about the child's biological father, T.M.F. claimed defendant was incarcerated at the time. The Division substantiated T.M.F. for neglect and removed A.M.A.F.W. from her care. The child was reunified with her parents on September 25, 2009, approximately nine months later. From November 17, 2010 to October 5, 2012, the Division received four separate 4 A-4572-15T3 referrals regarding T.M.F.'s "explosive temper" and suspected alcohol abuse. Defendant denied that T.M.F. had a "drinking problem." On December 12, 2011, defendant also denied being A.M.A.F.W.'s father and refused to provide the Division with his date of birth or social security number. The first incident that triggered judicial involvement occurred on October 24, 2013. On that date, the Division received a referral that a passerby had contacted the police after discovering then four-year-old A.M.A.F.W. "wandering" by herself at the High Bridge Train Station. Both T.M.F. and defendant refused to accept any responsibility for the incident. Each parent gave conflicting accounts of the event. When she was interviewed by High Bridge Police Officers at police headquarters, T.M.F. claimed that she had placed A.M.A.F.W. on a train with defendant before she returned home. Defendant told the Division caseworker that he had an argument with T.M.F. and left her house when she "kicked him out." He claimed he was alone when he took a train to New York City to return to the Palladia-Esperanza Transitional Shelter, where he allegedly resided at the time. Defendant told the caseworker that as the train pulled away, he saw T.M.F. and A.M.A.F.W. on the station platform. He then saw T.M.F. "turn around to walk away" and A.M.A.F.W. "running after her and crying." Defendant told the 5 A-4572-15T3 caseworker that T.M.F. could not have expected him to take A.M.A.F.W. with him to New York City because she knew that children are not allowed in the transitional shelter. Division records show that later that same day a caseworker telephoned the Palladia-Esperanza Transitional Shelter to verify defendant's statement. The woman who answered the phone refused to identify herself. However, she told the caseworker that defendant "was no longer staying there" and "it [had] been a while since [A.W.] [was] there." When confronted with this information, defendant conceded that he was residing with his mother in the Township of Irvington. A.M.A.F.W., who was five years old at the time, told the caseworker that her parents had been arguing over who should take care of her that day. She boarded the train with her father, but she stepped off before the train pulled away from the station. Thus, according to A.M.A.F.W., her mother was the one who abandoned her that day. After completing this preliminary investigation, the Division executed an emergency DODD removal of A.M.A.F.W. and placed her in a Division-approved resource home. See N.J.S.A. 9:6-8.29; N.J.S.A. 9:6-8.30. The Division ultimately substantiated both T.M.F. and A.W. for neglect, finding both parents "deprived [A.M.A.F.W.] [of] necessary care[,]" thereby creating a "substantial risk of serious harm[.]" 6 A-4572-15T3 B On October 28, 2013, the Division filed an order to show cause and verified complaint to obtain temporary custody, care, and supervision of A.M.A.F.W. pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. Although defendant appeared at the hearing, he did not offer himself as a placement for the child due to his substance abuse problem. Defendant suggested his mother, M.W., and his niece, K.W., as potential relative-placements. M.W. ruled herself out; she informed the Division that she was too old to properly care for her granddaughter. On October 13, 2015, the Division sent M.W. a formal rule-out letter. With respect to his niece, defendant informed the Division that K.W. "suffers from migraines[.]" K.W. later advised the Division that she was unable to care for A.M.A.F.W. because she "works, goes to school, and has her own child." The appellate record does not contain a copy of a Division rule-out letter for K.W.3 On October 28, 2013, the Family Part entered an order placing A.M.A.F.W. in the custody, care, and supervision of the Division. The court's order required defendant to submit to psychological 3 Although T.M.F. provided the Division with two potential relative placements, these individuals were not deemed appropriate. We have opted not to provide more details on this subject because T.M.F. did not appeal. 7 A-4572-15T3 and substance abuse evaluations by healthcare professionals selected by the Division. The court granted defendant "weekly supervised visitation contingent upon 24-hour advance confirmation." The court order also included the following admonition: The failure of defendants to comply with any provision of this order or their continuing failure to appear may result in a default being entered by the court and may result in the commencement of a termination of parental rights proceeding. A termination of parental rights would free the child[] for adoption. The Division advised defendant that, if necessary, it could arrange to assist him with transportation to the evaluation sites. Defendant tested positive for opiates on October 28, 2013, October 31, 2013 and December 20, 2013. Defendant also admitted to taking oxycodone without a prescription on multiple occasions. At his substance abuse evaluation with Preferred Children's Services (PCS), defendant denied any opiate dependency issues. Following this evaluation, the PCS counselor recommended that defendant attend an outpatient treatment program located in Irvington called "The Bridge." PCS ultimately terminated defendant from its outpatient program due to minimal attendance and failure to comply with treatment recommendations. The Division also referred defendant to Dr. Sally Morcos of Evermore Wellness, LLC, for a separate psychological evaluation. 8 A-4572-15T3 Although defendant attended his first scheduled meeting with Dr. Morcos, he failed to attend three additional appointments. Consequently, the Division was unable to determine what kind of psychological services defendant required prior to his reunification with A.M.A.F.W. The Division provided defendant with a train pass to assist him in attending his court-ordered weekly visitation sessions with A.M.A.F.W. Despite this accommodation, defendant's record of attending these visits with his daughter was, at best, sporadic. His first visit was on October 31, 2013. The Division contact sheet documenting the visit described his interactions with the child as pleasant. The second visit took place approximately two weeks later, on November 14, 2013. Once again, the contact sheet described the interaction between father and daughter as "friendly[,]" "appropriate[]," and reflective of a "mutual bonding relationship [between] a loving child and [her] [father]." The record shows the visit concluded with the two saying "I love you" and "hugging and kissing . . . in a loving [fashion]." However, although the court order entitled defendant to "weekly supervised visitation," the next time defendant saw his young daughter was on December 20, 2013, thirty-six days after his last visit. In fact, defendant saw the child only three times during a three-month period. An entry in a Division contact sheet 9 A-4572-15T3 dated December 5, 2013 provides an explanation for this outcome: "[Defendant] continues to be inconsistent with his attendance at visits[,] often calling at the last minute to state he has to work or cannot make . . . the visit for transportation reasons[,] despite having [a] train pass." Defendant's participation and attendance in a Family Team Meeting (FTM), a Division-sponsored program, provides additional information on defendant's circumstances. The meeting took place at defendant's mother's home. A "Family Summary" includes the following description of defendant's situation at that time: [A.W.] is the [49-year-old] father of [A.M.A.F.W.]. [A.W.] denied having any other children. [A.W.] is unemployed at this time and is not receiving any benefits. [A.W.] reported residing between his mother's home in Irvington, [New Jersey] and a Transitional Home in New York. [A.W.] does not have a stable home in order to present a place for [A.M.A.F.W.] to be returned to his care. There are also concerns regarding [A.W.]'s admission that he has taken medication that is not prescribed to him. [A.W.] is willing to work with the Division and has expressed an interest in complying with the court[']s order. Although he identified his love for his daughter, his willingness to make sacrifices for her well-being, and strong family support as "strengths" favoring reunification, defendant acknowledged that reunification could occur only if he could find stable housing, secure employment with benefits, and remain 10 A-4572-15T3 "substance abuse free[.]" The Division agreed to continue to provide defendant with a safe location for him to have weekly supervised visitation with A.M.A.F.W., including transportation if necessary. Defendant was required to notify Division workers "immediately" of the need to reschedule any visits. On January 21, 2014, the Division revoked defendant's train pass. Caseworker Stephanie Restrepo informed defendant that the record showed he was not using this service to visit his daughter. Restrepo also asked defendant if he intended to seek treatment for his substance abuse problem. Although defendant indicated he intended to seek treatment, he declined the Division's offer to arrange referrals to resources in his area. On February 7, 2014, Restrepo contacted defendant to determine whether he planned to attend the visitation with his daughter scheduled for that day. When defendant responded that he did not have funds to pay for transportation, Restrepo told defendant that the Division would reimburse him for his travel expenses at the rate of thirty-one cents per mile. Defendant stated he was unable to attend. Defendant did not have any contacts with A.M.A.F.W. in January or February 2014. Defendant's next visit with A.M.A.F.W. took place on March 6, 2014, at the Division's local Hunterdon County office. Division records reflect that the interaction between father and daughter 11 A-4572-15T3 was positive. When defendant arrived, A.M.A.F.W. "jumped into his arms and gave him a hug." Defendant "spoke appropriately" with his daughter throughout; he kissed the child goodbye at the end of the visit and told her he would see her soon. Despite this innocuous facade, Division staff noted defendant seemed to be "under the influence of an illegal substance[.]" He "appeared to be falling asleep during the visit and his speech was not legible." At the Division's request, defendant agreed to provide a urine sample at the end of visit. Defendant tested positive for cocaine and opiates. On March 14, 2014, defendant cancelled his scheduled visit with A.M.A.F.W. because he was "feeling weak and light headed." Restrepo told defendant that the Division had secured a March train pass for him and emphasized the importance of attending all weekly visits. Defendant apologized and asked that the visit be rescheduled. He told Restrepo that he needed to find an inpatient treatment program for his substance abuse problem. He alleged he had "called a few places[,]" but did not provide Division staff with the names of any specific facility or program. Despite numerous attempts by Division staff to communicate with defendant, both on the telephone and in person, defendant did not respond until January 2015. He did not see his daughter again until 12 A-4572-15T3 October 2015, more than 500 days from his last visit on March 14, 2014. C A.M.A.F.W.'s emotional stability worsened during this period of time. Due to her behavioral issues, she was removed from her resource home on January 17, 2014, and placed in a second home. Her psychotherapist at the time opined she was not "benefitting from therapy" due to her "cognitive and developmental delays." Division records note A.M.A.F.W. displayed tendencies to act aggressively with other children, and she continued to have "boundary and personal space issues." She was "behind academically as compared to her peers[,]" and could not identify colors, letters, and numbers. On January 29, 2014, the Division arranged a psychological evaluation to "assess [A.M.A.F.W.]'s . . . functioning, . . . and to make treatment recommendations that would meet her needs." Psychologist Dr. Margaret DeLong noted A.M.A.F.W. "demonstrate[d] delays that suggest emotional and social deprivation as well as [a] lack of academic and educational stimulation during her early years." Dr. DeLong found A.M.A.F.W. was "behind with [her] social skills[;]" she "cannot sit still or focus for any length of time[;]" and she has a "hard time relating with other children[.]" Dr. DeLong opined that A.M.A.F.W. would benefit from a Child Study 13 A-4572-15T3 Team evaluation, as well as placement in a specialized "preschool handicapped" program or a "therapeutic preschool." Dr. DeLong also recommended that A.M.A.F.W. participate in individual play therapy, recreational activities with her peers, and supervised visitation with her mother. Consistent with Dr. DeLong's recommendations, the Division referred A.M.A.F.W. to counseling, as well as several evaluations to assess her speech and overall developmental delays. Based on a speech evaluation conducted at TC Kids-Therapy Center, Dr. Jacek Sakowski diagnosed A.M.A.F.W. with "moderate-severe receptive language and moderate expressive language delay." Dr. Sakowski recommended that she receive bi-weekly speech therapy with an "emphasis on receptive language and vocabulary syntax development." In April 2014, Dr. Tosan Livingstone, a pediatrician associated with Morristown Memorial Hospital, conducted a pediatric neurodevelopmental evaluation of A.M.A.F.W.'s behavior. She concluded that A.M.A.F.W. was "in the clinically significant range for hyperactivity, aggression, depression, atypicality, attention problems[,] and functional communication." Dr. Livingstone diagnosed A.M.A.F.W. with ADHD, Fetal Alcohol Effects, and "Learning Difficulty." Finally, the Clinton Public School District determined A.M.A.F.W.'s disabilities would affect her 14 A-4572-15T3 educational performance, thus requiring special education and related services. II On April 21, 2014, the Family Part conducted a fact-finding hearing. The court found, by a preponderance of the evidence, that both defendant and her biological mother T.M.F. had "grossly neglected" A.M.A.F.W. by leaving her unattended at the High Bridge train station. See N.J.S.A. 9:6-8.21. The court found A.M.A.F.W. was placed in a "position of imminent danger[,]" because she was only four years old at the time and incapable of protecting herself. Although both parents were represented by counsel, neither parent attended the hearing. During the months following the fact-finding hearing, A.M.A.F.W.'s resource mother reported that the child's behavior had significantly deteriorated and become increasingly "intolerable." She displayed inappropriate sexualized behaviors at her school and was physically aggressive against other children. She hit other children in the home, destroyed toys, refused to follow directions, and constantly demanded food. The resource mother initially stated she was unwilling to adopt, but would continue to care for A.M.A.F.W. until the commencement of the following school year. Unfortunately, the resource mother later rescinded her offer and requested that A.M.A.F.W. be removed as 15 A-4572-15T3 soon as possible. The Division removed A.M.A.F.W. from this resource home on August 1, 2014. She was thereafter placed in a temporary resource home, pending the outcome of the Division's efforts to find a suitable pre-adoptive home. Based on defendant's and T.M.F.'s history of noncompliance, the Division decided to file a guardianship action and seek the termination of their parental rights. The ultimate goal was to find and select a home suitable for adoption. The Division placed A.M.A.F.W. in a pre-adoptive home approximately one month later. The child thereafter was enrolled in kindergarten where she received special education services pursuant to her classification by the local public school district. A.M.A.F.W.'s new resource parent reported to the Division that it was "extremely difficult to manage her behaviors[.]" She had "frequent meltdowns[,]" including incidents in which she would throw herself on the floor and scream. According to the resource parent, A.M.A.F.W. constantly spoke about her biological parents, but would refer to them by their first names, as opposed to commonly used appellations such as "mom" or "dad." The Division referred A.M.A.F.W. to the Rutgers's Foster Care Counseling Project for individual therapy. On October 20, 2014, the Family Part conducted a permanency hearing; defendant did not appear. The trial judge found the Division's plan of termination followed by adoption was both 16 A-4572-15T3 "appropriate and acceptable." The court further found the Division had provided reasonable efforts toward reunification, including transportation to supervised visits and referrals to substance abuse evaluations and treatment programs. The court also transferred venue to Essex County. Division caseworker Stephanie Restrepo notified both parents via letter of the change in venue. A.M.A.F.W.'s emotional stability took a dramatic turn for the worse in October 2014. Her resource parents described the child as having "full-blown meltdowns[]" in which she would violently strike the pets in her pre-adoptive home and incessantly repeat that she was "scared[.]" She would also repeatedly lie to the school nurse about being sick as an excuse to be sent home. Of particular concern were the reports of the child's sexualized behavior. As described by the resource parents, A.M.A.F.W. had a habit of "touching people" in inappropriate areas. For this reason, A.M.A.F.W.'s therapist expressed concerns that she may have been sexually abused. The resource parents told the Division they were hesitant to commit to long-term care of A.M.A.F.W. if her behaviors did not improve. On November 6, 2014, the Division received a referral regarding troubling disclosures A.M.A.F.W. made to her resource parents concerning defendant. Specifically, A.M.A.F.W. stated that her biological father, defendant A.W., had "kissed her on her 17 A-4572-15T3 vagina." She also said defendant "kissed her on the ear, licked her ear[,] and bit her lip." The Division, the Hunterdon County Prosecutor's Office, and the Clinton Police Department investigated these allegations. As these three agencies proceeded to investigate the child's allegations against defendant, A.M.A.F.W. also accused her biological mother, T.M.F. of physically abusing her. According to A.M.A.F.W., T.M.F. "used to pin her against the wall and hit her head against the wall" in addition to "kick[ing]" her and "elbow[ing]" her. Lieutenant Kristen Larsen of the Hunterdon County Prosecutor's Office questioned T.M.F. about her daughter's allegations of physical abuse. T.M.F. strongly denied that she ever physically abused her daughter. Defendant denied he was ever sexually inappropriate with his daughter. He offered to take a lie detector test as a means of refuting these accusations. When pressed on the subject of sexual conduct, defendant admitted that A.M.A.F.W. had partially witnessed he and T.M.F. engaging in sexual activity. Ultimately, both the Hunterdon County Prosecutor's Office and the Clinton Police Department concluded there was insufficient evidence to support filing criminal charges against either parent. The Division also concluded that the allegations of sexual abuse against defendant were unfounded and the 18 A-4572-15T3 allegations of physical abuse against T.M.F. were "[n]ot [e]stablished." On November 13, 2014, the Division received a referral from A.M.A.F.W.'s resource home that A.M.A.F.W. had been admitted to the psychiatric unit of Robert Wood Johnson University Hospital after experiencing a psychotic episode. The resource parents stated A.M.A.F.W. had an "absolute crisis" moment in which she displayed extreme behaviors, such as running around the house, screaming, and attempting to kick her caretaker down a flight of stairs. The adults who were present stated that A.M.A.F.W. acted as if she was unaware of her surroundings. While en route to the hospital, they saw and heard A.M.A.F.W. having a conversation with herself. When asked who she was speaking to, she responded that she was speaking to a ghost who visits her every night when no one else is around. A.M.A.F.W. was transferred to Summit Oaks Hospital in Summit, where she remained hospitalized for approximately ten days. During her stay at Summit Oaks Hospital, A.M.A.F.W. told her treating psychiatrist that voices in her head told her to kick her resource parent down the stairs. These same voices were also telling her to commit suicide. With respect to A.M.A.F.W.'s auditory hallucinations, the psychiatrist who examined her tentatively diagnosed her as suffering from "[b]ipolar [d]isorder 19 A-4572-15T3 with psychotic features[.]" However, he hoped to rule out this diagnosis based on her young age. Ultimately, the psychiatrist was unable to complete an evaluation because A.M.A.F.W. was "restless" and unable to sit still. Summit Oaks Hospital discharged A.M.A.F.W. on November 25, 2014. Following this incident, the third couple originally willing to be A.M.A.F.W.'s resource parents apprised the Division that they were no longer able to care for her and requested that she be removed from their home. The Division placed A.M.A.F.W. in a fourth Division-approved resource home. However, this placement was temporary because the Division had concluded that A.M.A.F.W. required a higher level of care. The goal then was to place her in a therapeutic treatment home. As part of its discharge plan, the hospital prescribed A.M.A.F.W. 0.5 mg of Tenex4 to be administered twice daily. Following her new placement, the Division registered A.M.A.F.W. as a student at the Marion P. Thomas Charter School in Newark. However, she continued to display physically aggressive behavior; she was defiant, uncooperative, and generally disruptive. She also engaged in "poor social 4 Tenex is a cognition-enhancing medication commonly used to treat high blood pressure and ADHD. Univ. of Ill.-Chi., Drug Info. Grp., Can Tenex Be Used to Treat ADHD?, HEALTHLINE, http://www.healthline.com/health/adhd/tenex-adhd#introduction1 (last visited Aug. 23, 2017). 20 A-4572-15T3 interactions" with children her age because she was constantly moving. On December 3, 2014, the Division filed a complaint for guardianship in the Essex County Chancery Division, Family Part, seeking the termination of defendant's and T.M.F.'s parental rights to A.M.A.F.W. pursuant to N.J.S.A. 30:4C-15. The Division alleged that, notwithstanding its reasonable efforts to achieve reunification, both parents "substantially, continuously[,] and repeatedly" failed to maintain contact with their daughter or reasonably plan for her future. Under these circumstances, permanent adoption would be in A.M.A.F.W.'s best interests. The Division made the following specific allegations against defendant: [A.W.] has failed numerous times to avail himself to the services provided by the Division. He has failed to make a permanent plan for the child, has abandoned the child to the care of others, and has substantially failed to perform the regular and expected functions of care and support for the child. He has partially complied with past [c]ourt orders. To return the child to the care of [A.W.] would expose the child to an unacceptable level of harm or risk of harm. After he was served with the guardianship complaint, defendant contacted Division caseworker Michelle Montgomery to discuss a potential case plan. At a court hearing conducted on January 21, 2015, the Deputy Attorney General (DAG) who represented 21 A-4572-15T3 the Division informed the court that the Division planned to resume scheduling weekly visits between defendant and his daughter. The DAG also indicated that defendant had agreed to submit to a drug screen. Unfortunately, defendant did not attend the case plan meeting he scheduled with caseworker Montgomery. Defendant also did not attend a meeting at A.M.A.F.W.'s school, despite receiving notice of the meeting at the January 21, 2015 hearing. Defendant also failed to report to a scheduled drug screening test at Catholic Charities. He was eventually discharged from this program for noncompliance after missing several appointments. The record is uncontroverted in one key respect. Defendant consistently failed to attend multiple prescheduled visits with his daughter, and failed to appear at four court conferences that took place between March and July 2015. On May 5, 2015, the DAG informed the court that the Division had made "multiple efforts to try and reach [A.W.]." The DAG represented to the court that defendant had failed to respond to numerous attempts to contact him, both by phone and by letters sent to his last known address. As reflected in the multipurpose order entered on May 5, 2015, the court found that defendant "continues to be non-compliant with the Division despite [the Division's] efforts . . . to engage him." On May 8, 2015, the Family Part directed both defendant and T.M.F. to report to Dr. Gianni Pirelli for psychological and 22 A-4572-15T3 bonding evaluations. The Division designated Dr. Pirelli as its expert witness in the guardianship trial. On June 10, 2015, the Family Part entered an order finding that both defendant and T.M.F. failed to appear for these pre-scheduled evaluations. The court ordered that if the parties failed to attend their rescheduled evaluations, "they [would] be precluded from presenting their own psychological expert[s] at trial." On July 15, 2015, following the parties' repeated failures to attend their court-ordered evaluations with Dr. Pirelli, the Family Part entered an order barring defendant and T.M.F. from presenting their own experts at trial. While the guardianship case was pending, the Division referred A.M.A.F.W. to New Jersey Mentor for a psychiatric evaluation. The evaluator reaffirmed an earlier diagnosis of ADHD and included a new diagnoses of post-traumatic stress disorder and oppositional defiant disorder. The evaluator recommended psychotropic medication, as well as "school support," "behavioral modifications," "anger management," "individual therapy," and "sexually specific traumatic focus therapy." With respect to her sexualized behavior, physicians who examined A.M.A.F.W. opined 23 A-4572-15T3 that she may be experiencing "precocious puberty."5 In particular, her psychiatrist stated that A.M.A.F.W. "may be very confused because she is functioning on some levels at a [three-year-old] level, and [at an eleven-year-old level] in other areas[.]" The Division placed A.M.A.F.W. in a New Jersey Mentor treatment home shortly thereafter. This placement proved to be short lived. On May 27, 2015, the Division removed A.M.A.F.W. from the New Jersey Mentor treatment home and placed her in a residential facility operated by the Youth Consultation Service Davis House (YCS Davis House). Division records describe the YCS Davis House as a shelter where the child could receive in-house therapy and medication monitoring. A.M.A.F.W. also attended weekly therapy at Wynona's House Child Advocacy Center (Wynona's House). The therapy at Wynona's House focused exclusively on A.M.A.F.W.'s sexually inappropriate behavior and explored the veracity of the child's allegations of sexual abuse against her father. The Division's plan was for A.M.A.F.W. to remain at YCS Davis House for six to 5 Precocious puberty is "when a child's body begins changing into that of an adult . . . too soon." Mayo Clinic Staff, Precocious Puberty, MAYO CLINIC (Nov. 11, 2016), http://www.mayoclinic.org/diseases-conditions/precocious- puberty/home/ovc-20265997. 24 A-4572-15T3 nine months. At the end of this treatment phase, she would then be "stepped down" to another treatment home. A.M.A.F.W. met on a regular basis with licensed social worker Amy Johnson, a staff social worker at YCS Davis House. In August 2015, the Family Part received a letter-report from Johnson describing A.M.A.F.W.'s treatment and the progress the child was making in dealing with issues related to her mother. During this same time period, the Division continued its attempts to contact defendant without success. On September 14, 2015, defendant contacted Division caseworker Michelle Montgomery. Although he acknowledged having received timely notice of his missed evaluation appointments with Dr. Pirelli, he claimed he was still not ready to be evaluated or attend a CADC assessment. Montgomery advised defendant of the case management conference before the Family Part scheduled on September 22, 2015. Defendant confirmed he would attend and provided Montgomery with an updated telephone number through which the Division could contact him. The court permitted defendant to appear by phone at the September 22, 2015 case management conference. Relying in large part on the progress report from A.M.A.F.W.'s therapist, the court continued the suspension of T.M.F.'s visitation rights. Defendant's counsel requested that he be allowed to visit his 25 A-4572-15T3 daughter. Both the Law Guardian and the DAG on behalf of the Division requested an opportunity to consult with A.M.A.F.W.'s therapist on the issue of defendant's visitation. The court granted this request over defendant's counsel's objection. Due to a postponement of the guardianship trial, the court modified its earlier order and gave defendant and T.M.F. an additional opportunity to attend their psychological and bonding evaluations with Dr. Gianni Pirelli. The court also ordered the Division and defendant to meet on September 28, 2015, for the purpose of establishing a case plan. Defendant failed to attend the case plan meeting. The Division rescheduled the meeting for October 1, 2015. Defendant again failed to attend. The following week, defendant met with a caseworker at the Division's Newark South Adoption Office to sign a family agreement. At this encounter, defendant requested, for the first time, that the Division investigate and determine the suitability of two relative placements for A.M.A.F.W.: (1) his sister, L.W.; and (2) his niece, K.W. Caseworker Montgomery testified at the guardianship trial that L.W. informed the Division that she did not wish to be considered as a placement for A.M.A.F.W. K.W. also advised the Division that she would be unable to serve as a placement for A.M.A.F.W. because she "works, goes to school, and has her own child." 26 A-4572-15T3 On October 19, 2015, the Family Part conducted a permanency and pre-trial hearing. Though notified, defendant did not attend nor make any arrangement to appear telephonically. At this hearing, the court found, by a preponderance of the evidence, that the Division's plan of adoption was appropriate and acceptable. The court also found the Division made reasonable efforts toward reunification, and determined it would be unsafe to return A.M.A.F.W. to the custody and care of her parents. With respect to defendant's ongoing request for weekly visitation, the court deferred to the recommendations of A.M.A.F.W.'s therapist, who argued strongly against any contact with the parents. 6 The Division sent defendant a letter documenting his failure to appear at the hearing and informing him of what had occurred therein. On October 28, 2015, defendant finally attended his psychological and bonding evaluation with Dr. Gianni Pirelli. He 6 In a progress report sent to the court that same day, the therapist stated, in relevant part: I do not recommend that [A.M.A.F.W.] resume visits with her mother or her father. Since the plan is not reunification, I feel that it would hinder [A.M.A.F.W.'s] progress in working toward her behavior goals in treatment. Visits would further serve to confuse [A.M.A.F.W.] as to whether or not she would be reunited with her parents and [would] also subsequently disrupt her progress and treatment at [YCS] Davis House. 27 A-4572-15T3 had not seen his daughter in more than nineteen months. Caseworker Montgomery transported the child and defendant to the evaluation. In her report, Montgomery noted that despite the lengthy period of time since the child had had any contact with defendant, A.M.A.F.W. was "very talkative" and seemed "very happy to see him." The Division presented Dr. Pirelli's observations, findings, and conclusions as part of his testimony at the guardianship trial. After his meeting with Dr. Pirelli, defendant did not respond to Montgomery's repeated attempts to contact him. Defendant also failed to appear at the Family Part's pre-trial hearings on November 16, 2015 and December 3, 2015. It was later determined that defendant had entered a detox program at the ACI Chemical Dependency Treatment Center (ACI) in New York City. After detox, defendant enrolled at the Salvation Army's Adult Rehabilitation Center for an extended inpatient treatment program for his heroin addiction. Defendant relied on the Salvation Army's anonymity rules to explain his failure to inform the Division of his whereabouts.7 7 An order dated December 3, 2015, reflects that defendant scheduled his own psychological and bonding evaluation. This order also states: "The Division was advised by [A.W.]'s mother that [A.W.] is in rehab in New York, but no other information was provided regarding his exact whereabouts." 28 A-4572-15T3 At a pre-trial hearing held on November 16, 2015, the court: (1) denied without prejudice defendant's request to restore his visitation rights to A.M.A.F.W; and (2) granted the Law Guardian's application to require defendant to attend a psychological and bonding evaluation with Dr. Sean Hiscox. Defendant did not attend his scheduled evaluation with Dr. Hiscox. On December 21, 2015, caseworker Montgomery contacted defendant's mother. She advised the Division that defendant had mailed her a Christmas card with a return address in New York City. Montgomery confirmed that defendant was residing at the Salvation Army's Adult Rehabilitation Center at the time. In a letter addressed accordingly, Montgomery notified defendant that the guardianship trial was scheduled to start in January 2016. III Judge David B. Katz presided over the guardianship trial that began on January 8, 2016 and concluded on May 27, 2016. The Division called as fact witnesses caseworkers Restrepo and Montgomery, and adoption specialist Cheri Braithwaite. The Division called Dr. Pirelli to testify as an expert witness in psychology. Judge Katz admitted Dr. Pirelli in this capacity without objection from either defendant or the Law Guardian. The Division caseworkers' testimony covered at length the hardships this child has endured since her birth. The caseworkers 29 A-4572-15T3 also described in detail the services and programs the Division made available to defendant since this ordeal began, as well as defendant's repeated failure to keep appointments and take advantage of these opportunities. We will not reiterate here the events we described in great detail in Parts I and II of the opinion. However, we will identify how Dr. Pirelli's testimony supported Judge Katz's findings that the Division satisfied, by clear and convincing evidence, prongs two, three, and four of N.J.S.A. 30:4C-15.1(a). Dr. Pirelli conducted defendant's psychological and bonding evaluations on October 28, 2015, before defendant entered detox at ACI or enrolled in inpatient treatment at the Salvation Army's Adult Rehabilitation Center. In his report, Dr. Pirelli noted that defendant freely admitted he was addicted to heroin. On the day Dr. Pirelli performed the psychological evaluation, defendant acknowledged that he had ingested heroin the previous night. As reflected in Dr. Pirelli's report, defendant began using heroin in "1991 or 1992." He also had enrolled in detox and/or rehabilitation programs on "three or four" occasions, all without success. His addiction to heroin at the time cost him "$40 or $50 per day." Defendant denied using other illicit drugs until he was confronted with the test results showing positive for cocaine. At 30 A-4572-15T3 that point, defendant admitted to consuming alcohol and "dabbling" in cocaine. Dr. Pirelli also noted that defendant struggled to pay child support for A.M.A.F.W., but managed to consistently find the means to pay for his expensive drug habit. In response to this observation by Dr. Pirelli, defendant stated: "That's a person [who] has to get help." According to Dr. Pirelli, defendant and A.M.A.F.W. interacted pleasantly during the bonding evaluation. The two played board games and engaged in conversations about A.M.A.F.W.'s toys, her Halloween costume, and what she was like as a baby. By contrast, in the section of the report entitled "Integration of Findings, Conclusions, and Recommendations," Dr. Pirelli opined that defendant "exhibited significant parenting deficits[.]" Of particular concern was defendant's drug addiction and his "inability to acknowledge many of his problematic decisions[.]" Defendant "attribute[d] much of the blame to [T.M.F.] and the Division," and minimized or overlooked the negative effect of his decision to use heroin the night before his psychological evaluation. Dr. Pirelli found defendant lacked any "appreciation for [A.M.A.F.W.]'s needs, particularly those pertaining to stability and permanency." In this regard, Dr. Pirelli expressed particular concern about defendant's decision to voluntarily 31 A-4572-15T3 distance himself from A.M.A.F.W. and the Division for nearly two years. Dr. Pirelli opined that reunifying defendant with A.M.A.F.W. exposed this special-needs, psychiatrically fragile child to "an to an abusive and/or neglectful environment." Dr. Pirelli found that defendant puts his own needs before those of A.M.A.F.W. and is "certainly not someone who would seek assistance[,]" because he "does not believe there are any notable problems he must address other than drug treatment." Based on "numerous risk factors" and history of non-adherence to the Division's recommendations and services, Dr. Pirelli concluded that defendant was unfit to parent A.M.A.F.W. He further opined it was "unlikely" that A.M.A.F.W. would suffer "notable effects" as a result of the termination of defendant's parental rights. Thus, Dr. Pirelli opined that termination of defendant's parental rights followed by a permanent, adoptive placement would be in A.M.A.F.W.'s best interest. The Division concluded its case-in-chief by presenting the testimony of adoption supervisor Cheri Braithwaite. As Braithwaite explained, once a child becomes "legally free" for adoption, the Division has greater access to private adoptive homes, as well as out-of-state homes listed on the National Exchange. Braithwaite was confident in the Division's ability to 32 A-4572-15T3 find a suitable adoptive home for a child she described as a "very friendly, loveable child[]" who has been able to "connect with families in the past[.]" According to Braithwaite, the Division has found suitable homes for children with needs greater and more significant than those of A.M.A.F.W. The Law Guardian presented the testimony of Dr. Sean Hiscox, whom the court admitted as an expert in "clinical and forensic psychology with respect to parent[al] fitness, bonding[,] and children[.]" Dr. Hiscox conducted psychological and bonding evaluations with defendant and A.M.A.F.W. on February 12, 2016. At that point in time, defendant had spent approximately two and one-half months as a resident in the Salvation Army's Adult Rehabilitation Center. Echoing the impressions expressed by Dr. Pirelli, Dr. Hiscox opined that defendant's interactions with A.M.A.F.W. during the bonding evaluation were "easy and warm," with many instances of "positive, mutually gratifying exchanges." Dr. Hiscox nevertheless expressed "significant concerns" regarding defendant's ability to provide A.M.A.F.W. with a "stable, secure, and safe home . . . on a day-to-day basis over the long run." Dr. Hiscox noted that despite the "controlled environment" provided by the Salvation Army's program, defendant's history shows he had only achieved intermittent periods of sobriety followed by relapses. Despite these misgivings, Dr. Hiscox's 33 A-4572-15T3 opinion differed from Dr. Pirelli's opinion on the question of the reunification: [A]t this time[,] it is my opinion that there are more factors supporting an attempt to reunify [A.M.A.F.W.] with [A.W.] than supporting the termination of [A.W.'s] parental rights. An additional factor . . . is that [A.M.A.F.W.] does not presently have an identified adoptive home and she has not started the process of stepping down in the intensity of her treatment. As a result, I recommend that [A.W.] be given additional time to show his stability and commitment to [A.M.A.F.W.] based on the positive progress he appears to be making. Given [A.M.A.F.W.]'s situation, I see no downside for her if he is given this opportunity. [Emphasis added.] On cross-examination, Dr. Hiscox acknowledged that his opinion was based only on conversations he had with defendant, A.M.A.F.W., the Law Guardian, and the child's therapist. In his report, Dr. Hiscox opined that after his release from the Salvation Army's inpatient treatment program, defendant could parent A.M.A.F.W. while residing at his mother's home. He acknowledged, however, that he was unaware that defendant's mother did not want A.M.A.F.W. residing in her home at the time he made this recommendation. Dr. Hiscox also agreed with the DAG that "past behavior is the best predictor of future behavior[.]" He thus could not state with certainty that defendant would successfully complete the Salvation Army's inpatient treatment program and 34 A-4572-15T3 thereafter would not relapse. He testified that without these necessary prerequisites, defendant would not be fit to parent in the foreseeable future. Defendant presented the testimony from Dr. Gerard Figurelli, whom the court admitted as an expert in clinical psychology and substance abuse evaluation and treatment. Dr. Figurelli prepared a report based on a psychological evaluation with defendant and a bonding evaluation with defendant and A.M.A.F.W. on February 24, 2016. The bonding report contained the same observations and characteristics of defendant's interactions with A.M.A.F.W. He noted that the two interacted cheerfully, affectionately, and positively. In Dr. Figurelli's opinion, it was "evident from the nature and content of their interaction that [A.W.] and [A.M.A.F.W.] share a sense of family identity and family connectedness." Dr. Figurelli noted defendant's history of substance abuse and addiction, as well as his prolonged absence from the child's life during a critical period of her development. Despite these deficits, Dr. Figurelli opined that permanently severing the parental bonds between defendant and his daughter would be harmful to the child and consequently not in her best interest. He stated that: 35 A-4572-15T3 Given the fact that [A.W.] can, with more time, present as an appropriate permanent placement option for [A.M.A.F.W.], it is the opinion of this examiner that it does [A.M.A.F.W.] more harm than good to have her relationship [with] her father terminated. She appears to feel cared for by her father; she appears to care for her father; she shares a sense of family connectedness and family identity with him; and it appears that she anticipates that she will maintain their relationship going forward in her life. The severance of her relationship [with] her father and the loss of that attachment are likely to result in [A.M.A.F.W.] experiencing severe and enduring emotional and/or psychological harm. Dr. Figurelli's testimony at trial was consistent with the findings, conclusions, and recommendations he expressed in his report. Defendant was the last witness to testify. He emphasized that he had progressed to phase three of the Salvation Army's four-phase inpatient treatment program. He had submitted clean urine samples since the date of his admission; despite his past relapses, he believed he had finally achieved a level of success sufficient to maintain his sobriety after completing the Salvation Army's program. When asked how this Salvation Army's program was different from the programs he had previously attended, defendant emphasized the spiritual components of his current treatment. He claimed the current Salvation Army's program has a "true structure," including group therapy, individual therapy, 36 A-4572-15T3 mentorship, Bible studies, and chapel services at regular intervals. Defendant also emphasized the importance of the Salvation Army's "adjunct services[,]" such as treatment staff's willingness to assist with employment and housing and provide training on technical and vocational skills. Defendant testified that he planned to reside with his mother upon his discharge from the Salvation Army's facility. When confronted with his mother's earlier statements that she did not support this plan, defendant stated: [W]hat the Division probably [doesn't] truly understand is[] that's my mother. She will allow me to stay there. The last time I spoke with my mother was last Sunday. I spoke with my mother on the fact of, upon me returning there[;] she has no problem with it. [S]he said as long as I keep up my efforts in staying clean and working, she has no problem with it. Defendant similarly minimized the significance of other relatives living in his mother's home. "[A]s long as my family is seeing me do the right thing, they will assist me in just about anything that I need." IV Judge Katz entered a Judgment of Guardianship terminating defendant's parental rights on May 27, 2016. He found the Division 37 A-4572-15T3 satisfied all four prongs of the "best interest" analysis by clear and convincing evidence. See N.J.S.A. 30:4C-15.1(a); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986). He identified the evidence for his findings of fact and explained the legal basis for his conclusions of law in an oral opinion delivered from the bench. In lieu of reciting the opinion, we incorporate by reference Judge Katz's well-reasoned decision. This court is bound to defer to the Family Part's findings of fact that are "supported by 'adequate, substantial and credible evidence' [i]n the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Deference is especially appropriate when the Family Part's factual findings are "largely testimonial" and involve "questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). In contrast to its findings of fact, this court reviews the Family Part's legal conclusions de novo. N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 152 (App. Div. 2014). We have taken the time and effort to describe in detail the evidence the Division presented here to demonstrate the overwhelming factual and legal support for Judge Katz's decision. Judge Katz found defendant and T.M.F. exposed A.M.A.F.W. to a 38 A-4572-15T3 substantial risk of physical harm when they left her unattended at the High Bridge train station. He also found A.M.A.F.W. was emotionally harmed by defendant's "withdrawal of solicitude, nurture[,] and care since the time of her removal." Judge Katz's findings are supported by irrefutable evidence in the record. See M.M., 189 N.J. at 279 (2007) (citation omitted). The record shows defendant failed to visit A.M.A.F.W. for nineteen months. He failed to make any real effort to engage in treatment for his significant and chronic substance abuse problem until late November 2015, more than two years after the Division removed A.M.A.F.W. from his care. Defendant repeatedly tested positive for opiates and other illicit substances, thus precluding the Division from considering him as a viable placement for this psychiatrically fragile child. Defendant failed to attend numerous court hearings, thereby demonstrating an utter disregard for the rule of law and his daughter's well-being. Defendant's inability to provide A.M.A.F.W. with love, affection, and/or a home during this time period caused A.M.A.F.W. irrevocable harm and enormous suffering and distress. This is evidenced by her severe emotional issues, troubling behavioral concerns and psychological and psychiatric diagnoses. We thus affirm substantially for the reasons expressed by Judge Katz in his oral opinion. 39 A-4572-15T3 Affirmed. 40 A-4572-15T3

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Docket No.: a5046-15
Decided: 2018-02-14
Caption: SHAMSIDDIN ABDUR-RAHEEM v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: unpublished
Summary:
PER CURIAM Appellant Shamsiddin Adbur-Raheem appeals from a final agency decision of respondent New Jersey Department of Corrections (Department) imposing disciplinary sanctions against him pursuant to N.J.A.C. 10A:4-7.3. We remand to the Department for reconsideration and factual findings supporting its decision. Appellant is an inmate at New Jersey State Prison (NJSP) where he is serving a term of life imprisonment. Appellant challenges the Department's issuance of an On-the-Spot-Correction (OTSC) for committing prohibited act *.256, refusal to obey an order of a staff member. The OTSC was issued to appellant for refusing to back away from his cell's food port when his food tray was being delivered. A conference was held with a Department shift advisor, at which time appellant was permitted to review the OTSC disciplinary report, discuss the violation, present arguments, and challenge any sanction imposed. Appellant was adjudicated guilty at the conference and sanctioned with a loss of recreational privileges for five days. We are constrained to remand this matter to the Department for reconsideration, because the agency did not meaningfully or sufficiently explain why it adjudicated appellant guilty of committing prohibited act *.256 and why the sanction imposed was appropriate. Ordinarily, our review of an agency decision is deferential. See E. Orange Bd. of Educ. v. N.J. Sch. Constr. Corp., 405 N.J. Super. 132, 143-44 (App. Div. 2009). "However, the exercise of 2 A-5046-15T3 such deference is premised on our confidence that there has been a careful consideration of the facts in issue and appropriate findings addressing the critical issues in dispute." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001); see also N.J. Bell Tel. Co. v. Commc'ns Workers, 5 N.J. 354, 374-79 (1950). In this case, the Department's failure to provide an explanation in support of its decision sufficient for meaningful appellate review requires that we remand this matter to the agency for reconsideration and a more complete decision. In remanding, we infer no view as to the outcome of the proceedings on remand. Remanded. We do not retain jurisdiction. 3 A-5046-15T3

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Docket No.: a0030-16
Decided: 2018-02-13
Caption: IN THE MATTER OF THE ESTATE OF RONNY MOHAMMED SALEH
Status: unpublished
Summary:
PER CURIAM Upon cross-motions for summary judgment, the trial court dismissed plaintiff's posthumous complaint to annul the marriage between defendant Hannia Saleh and her late husband, Ronny Saleh, who died on May 21, 2014. Ronny's estate seeks annulment in order to secure a $48,000 life insurance death benefit that was paid to defendant.1 In argument before Judge Frank M. Ciuffani, the parties agreed that there were no genuine issues of material fact and the case was susceptible to disposition on summary judgment. In his written opinion, Judge Ciuffani adopted plaintiff's extensive statement of material facts. We presume the reader's familiarity with those facts and shall not restate them at length here. In short, defendant and Ronny had a troubled marriage. Ronny's family members alleged that defendant used Ronny to obtain citizenship; lied to Ronny about her intention to raise a family with him; and benefitted financially from the marriage. Defendant entered the country from Costa Rica in 2003 on a tourist visa. It expired long before her marriage to Ronny in 2006. The couple lived together from 2006 until 2011, when she moved out. However, they continued to file joint tax returns until 2013. Defendant ultimately obtained legal status and then citizenship in 2012. In 2013, Ronny started a new job, which offered life insurance coverage as a fringe benefit. Although Ronny purportedly signed 1 To avoid confusion, we utilize the decedent's first name. We intend no disrespect in doing so. 2 A-0030-16T3 a form that year designating his brother as beneficiary, neither Ronny's employer nor the insurer received it before Ronny's death in 2014. His death certificate noted he was married but separated. The insurer paid the death benefit to defendant. Absent a named beneficiary, the policy authorized the insurer, at its option, to pay the death benefit to the insured's estate, or surviving family members, first of whom was a spouse. After the disbursement was already made, Ronny's brother sought payment based on Ronny's alleged intent, as expressed in the unfiled beneficiary designation form, and in a purported 2011 will that named only his brother and sister as beneficiaries. The insurer rejected the claim.2 Judge Ciuffani held that plaintiff had failed to present, by clear and convincing evidence, a sufficient factual basis for its claim that defendant fraudulently entered into a sham marriage to gain legal status and citizenship. The court also declined to disturb the disposition of the insurance proceeds. 2 Notably, plaintiff did not file suit against the insurer. See N.J.S.A. 17B:24-5 (stating that an insurer is discharged of any claims against it under the policy when it pays a life insurance benefit in accordance with the policy's terms); Vasconi v. Guardian Life Ins. Co., 124 N.J. 338, 348 (1991) (citing N.J.S.A. 17B:24-5 and Hirsch v. Travelers Ins. Co., 153 N.J. Super. 545, 549 (App. Div. 1977)). 3 A-0030-16T3 On appeal, plaintiff renews its prior contention that it presented sufficient circumstantial evidence of fraud. Plaintiff also argues that the court should have implemented Ronny's alleged intention regarding his insurance policy. We are unpersuaded. When reviewing a grant of summary judgment, we employ the same standard as the motion judge under Rule 4:46-2(c). Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Mindful of the plaintiff's burden of persuasion at trial, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we must determine whether the evidence is "so one-sided that one party must prevail as a matter of law." Id. at 533 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). In this case, plaintiff bears the burden to establish, by clear and convincing evidence, not only that defendant procured her marriage to Ronny by fraud as to the essentials of marriage, but also that the parties did not subsequently ratify the marriage. Williams v. Witt, 98 N.J. Super. 1, 3 (App. Div. 1967); N.J.S.A. 2A:34-1(d) (stating that a judgment of nullity may be rendered when there was "fraud as to the essentials of marriage" and the marriage was not subsequently ratified). Substantially for the reasons stated in Judge Ciuffani's cogent written opinion, plaintiff has failed to present sufficient evidence to warrant a trial on the annulment claim. As Judge Ciuffani noted, there was 4 A-0030-16T3 no testimony as to defendant's intentions at the time of the marriage; defendant expressly based her application for citizenship on lawful residence, not marriage;3 the couple lived together; they shared finances; and despite their difficulties, Ronny made no effort to annul or dissolve the marriage. Alternatively, plaintiff contends that the trial court should have given effect to Ronny's purported intent to designate his brother as insurance policy beneficiary.4 We reject the argument for many of the reasons the trial court noted. The payment of a life insurance benefit is generally governed by contract. See Metro. Life Ins. Co. v. Woolf, 138 N.J. Eq. 450, 454-55 (E. & A. 1946). The rule is tempered by the doctrine of substantial compliance; so, our courts will effectuate a change of beneficiary where the insured has substantially complied with the relevant policy provisions. Haynes v. Metro. Life Ins. Co., 166 N.J. Super. 308, 313 (App. Div. 1979). However, the insured must have "made every reasonable effort to effect [the] change of 3 Defendant relied upon her being a lawful permanent resident for at least five years, as opposed to being a lawful permanent resident for three years while married and living with the same citizen for the last three years. 4 We infer the plaintiff sought disgorgement of the insurance proceeds, although plaintiff did not expressly request such relief. Indeed, its complaint sought only an order of annulment, the return of any of Ronny's personal assets, and any further equitable and just relief. 5 A-0030-16T3 beneficiary." Ibid. There is no proof that Ronny did so here. There is no confirmation of receipt from the employer or the insurer, nor is there any evidence that Ronny attempted to confirm that his alleged beneficiary designation was effective. A change of beneficiary may also be implied and effectuated, in the narrow circumstance where an insured has divorced his or her spouse; the divorcing spouse waived, in a property settlement agreement, any interest in the other's estate in the case of death; but the insured neglected to remove the divorced spouse as a beneficiary before the insured's death. Vasconi, 124 N.J. at 340. In that case, the Court gave force to the "probable intent of the decedent," and required a divorced spouse to rebut a presumption that she was not an intended beneficiary. Id. at 349. We recognize that Ronny's will, and the unreceived designation form are evidence of Ronny's alleged intent that his insurance proceeds go to his brother. However, unlike in Vasconi, there was no entry of a final judgment of divorce here, let alone a formal property settlement agreement waiving interest in a divorced spouse's estate. See DeCeglia v. Estate of Colletti, 265 N.J. Super. 128, 135 (App. Div. 1993) (declining to effectuate oral expression of intent to change beneficiary in a case which "does not involve any comparable written agreement between the policyholder and beneficiaries, or any form of written 6 A-0030-16T3 communication from the policyholder to the insurer expressly requesting a change in the beneficiary designations"). There was merely a separation. Ronny may have held out hope of a reconciliation. He may have wished to provide for his wife, notwithstanding their separation. We have declined to extend Vasconi beyond its facts. In Fox v. Lincoln Financial Group., 439 N.J. Super. 380, 389 (App. Div. 2015), we declined to infer or give effect to an insured's purported intention to change the beneficiary from his sister to his new wife, absent formal submission of a change of beneficiary form to the insurer. In DeCeglia, 265 N.J. Super. at 136, we declined to give effect to a mere oral expression of intent to change beneficiary. Likewise, we discern no compelling reason here to set aside the terms of the policy, and effectuate a questionable expression of intent that lacks the finality and formality present in Vasconi. Affirmed. 7 A-0030-16T3

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Docket No.: a0285-16
Decided: 2018-02-13
Caption: LARRY PRICE v. CITY OF UNION CITY
Status: unpublished
Summary:
PER CURIAM Plaintiff Larry Price appeals from an August 17, 2016 order dismissing his complaint in lieu of prerogative writs seeking to invalidate defendant City of Union City's (Union City) designation of an area in need of redevelopment, pursuant to the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73. Union City adopted the report of a public planner, which extensively details the deterioration of the redevelopment area. Most of the properties in the area contain vacant and severely dilapidated buildings. All but one of the properties located within the redevelopment area are owned by defendant Sky Pointe, LLC (Sky Pointe), and its wholly owned subsidiary, defendant DHJ Holdings, LLC (DHJ). Price alleges that Union City's designation is not supported by substantial evidence, and that private efforts by developers would have been sufficient to redevelop the area. He claims that defendants Sky Pointe and DHJ are responsible for the dilapidation and deterioration of the properties within the redevelopment area. 2 A-0285-16T4 Plaintiff also alleges that Union City should have used its police powers to repair or demolish the buildings in the area. Plaintiff's main contentions are that Union City designated the area as a redevelopment area so that it could become a "gatekeeper" and control the development of the area, and that Sky Pointe is responsible for the area's deterioration. We reject these arguments and affirm substantially for the reasons expressed by Judge Francis B. Schultz in his August 5, 2016 oral opinion. In February 2009 The Board of Commissioners for Union City (Board) adopted a resolution which authorized the Planning Board of Union City (Planning Board) to conduct a preliminary investigation and hearing to determine whether Block 184, Lots 1.01 and 1.02, and Block 185, Lots 12, 14-17 and 30-42 (the redevelopment area) met the criteria to be designated a "redevelopment area" pursuant to the LRHL. David Spatz, P.P., AICP, prepared a Redevelopment Area Report for the Union City's Planning Board. The Planning Board held a public hearing and on November 21, 2011, the Planning Board adopted a resolution recommending the Board of Commissioners designate the area as an area in need of redevelopment. No further action was taken at this time. On June 17, 2014, the Board of Commissioners adopted a resolution requesting that the Planning Board review the 2009 3 A-0285-16T4 Redevelopment Report to determine if its recommendation that the area be designated as a redevelopment area was still applicable. Three months later, Spatz prepared an updated Redevelopment Area Report (Report) for the Planning Board. The Report recommended that the area qualify as a non-condemnation redevelopment area. The Planning Board held public hearings on the matter, ultimately adopting a November 2015 resolution recommending that the Board designate the area as a non-condemnation redevelopment area pursuant to the LRHL, N.J.S.A. 40A:12A-1. The same month, plaintiff filed a complaint in lieu of prerogative writs. The complaint alleges that the conditions of deterioration were likely to be corrected or ameliorated by private effort; no proof of dilapidation detrimental to the safety, health, morals or welfare of the community was demonstrated; any dilapidation or deterioration was the result of the property owner's lack of maintenance of the properties, and this "self- imposed hardship cannot be the basis of zoning relief"; Union City should have exercised its police powers to require the demolition or repair of the properties; and Union City's claim that, because it is located in PA-1, a Metropolitan Planning Area, "smart growth planning principles would be served" by redevelopment is overly broad, because all of Hudson County is located in a PA-1 Metropolitan Planning Area, and "a similar claim could be made 4 A-0285-16T4 about any site in Hudson County." Finally, the complaint alleges that because, with the exception of one property owned by Union City, all of the properties in the redevelopment area are owned by a single property owner, "only one private party will benefit." Judge Schultz found that the Report and the testimony of Spatz provided substantial evidence that almost all of the property fell within one of the categories in N.J.S.A. 40A:12A-5. With regard to plaintiff's arguments that the legislative intent of the Act (pursuant to N.J.S.A. 40A:12A-2, Findings, determinations, declarations) required private efforts to redevelop an area be inadequate, the judge explained he was "satisfied that private efforts failed and that [the deterioration is] not likely to be corrected or ameliorated by private effort." Judge Schultz also discussed plaintiff's claims that the area was not "detrimental to the health, safety, and morals of the community," and found that "the report of Mr. Spatz, as well as the testimony of those people . . . [who commented at Planning Board's hearings] certainly suggest otherwise." As for plaintiff's claims that Sky Pointe created the deterioration, and it was a self-imposed hardship, Judge Schultz explained that: [t]he moving party here is Union City – not the developer . . . there was no evidence of neglect on the part of Sky Pointe that they burned things or broke windows or went out there and did something untoward to give the 5 A-0285-16T4 façade of . . . deteriorated dwellings and property . . . [a]nd I just don't find that . . . argument about a self-imposed hardship would prevent the city from finding this to be an area in need of redevelopment. Finally, Judge Schultz explained that Union City was not required to use its police powers to "knock these buildings down" instead of declaring the area as an area in need of redevelopment. With regard to Sky Pointe potentially making money through the Union City's redevelopment area designation, Judge Schultz explained "that is not a reason to override the City's determination . . . . People are allowed to make money, it's not a crime. And it's not a known obstacle to the city deeming this an area in need of redevelopment." The area that Union City has designated a non-condemnation redevelopment area is approximately 3.34 acres, located in the southeastern portion of Union City. It includes thirteen properties. The rear portions of the properties abut the Palisades Cliffs, with a view of the New York City skyline. Sky Pointe and its subsidiary DHJ own all but one of the properties, which have been vacant for seven to eleven years. In preparing the Report, Spatz conducted: interior and exterior inspections of the properties and structures, which were made on July 29, 2009 and June 23, 2014, a review of the existing land use for the property, [a] review of zoning and planning documents, as 6 A-0285-16T4 well as a review of the City's tax, police and building records for the area. The Report extensively details each building's deterioration and dilapidation. The Report describes the properties as "vacant and unproductive," which is "detrimental to the health, safety, morals and welfare of the community." All of the buildings are in poor condition, and most have significant damage and are uninhabitable without significant renovation. The damage to each building includes defective roof shingles, retaining walls above the cliffs in the rear of the properties, electrical panels, hot water heaters, chimneys, windows, and support beams. Interior water damage has caused mold and extensive interior and exterior damage exists. One building has significant damage from a fire that effectively gutted the building. Three of the properties do not contain buildings; two contain parking lots and one property is landlocked, containing mostly cliffs. The Report discusses police reports for the area that indicate many of the properties attract "vagrants and vandals who continue to illegally trespass, damage the building and parcel, engage in illicit drug use, [and] engage in verbal altercations with one another." 7 A-0285-16T4 Several of the properties had previously been approved for development. In 2005, one property was approved for construction of a twenty-one story, thirty-two unit apartment building, though no action was taken. That same year, another property was approved for construction of a twenty story, twenty-eight unit apartment building; however, again no action was taken. Finally, a third property was previously approved in 2007 for construction of an eighteen story, ninety unit apartment building, and again, no action was ever taken. The area is located in a low density residential zone, which permits one family dwellings, two family dwellings, three family dwellings, municipal uses and public parks and playgrounds. The Report analyzes the criteria to designate an area in need of redevelopment under N.J.S.A. 40A:12A-5, and addresses criterion N.J.S.A. 40A:12A-5(a), finding that the buildings in the area "are in a substandard, unsafe, unsanitary and dilapidated condition, and are therefore conducive to unwholesome living or working conditions." Additionally, because the buildings were constructed before 1978, the buildings are potentially affected by the existence of lead paint. With regard to criterion N.J.S.A. 40A:12A-5(b), the Report finds that one property had been abandoned and is no longer used for commercial purposes, and had also been designated by the New 8 A-0285-16T4 Jersey Department of Environmental Protection (NJ DEP) as an active site with confirmed contamination. Regarding criterion N.J.S.A. 40A:12A-5(c), the Report explains that all of the properties "contain steep slope areas. By reason of their location, remoteness, lack of means of access to developed sections or portions of the municipality . . . [they] are not likely to be developed through the instrumentality of private capital." The Report also addresses the previously- approved site plans, noting that none of the projects had actually begun. Concerning criterion N.J.S.A. 40A:12A-5(d), the Report explains that: By reason of dilapidation, faulty arrangement or design, deleterious land uses, or any combination of these or other factors the buildings in the [area] are detrimental to the safety, health, morals or welfare of Union City and the surrounding neighborhood . . . [there are] 12 properties . . . [with] 12 separate driveways, most of which required vehicles to back out onto those roadways. . . . The proliferation of this many individual driveways produces concerns for traffic safety on such a busy street . . . The deteriorated condition of the [area] exerts a negative impact on the surrounding neighborhood . . . [t]his negative impact is reflected in police reports for crimes within the [area]. Between 2005 and 2008, there were 105 separate reports regarding properties in the [area], including burglaries, suspicious persons, fires, criminal mischief and trespassing. 9 A-0285-16T4 Finally, regarding criterion N.J.S.A. 40A:12A-5(h), the Report indicates that: The City of Union City is located in the PA- 1, Metropolitan Planning Area of the New Jersey State Development and Redevelopment Plan; additionally, the City is located within the designated Hudson County Urban Complex. Smart growth planning principles met by the designation of the [area] as an area in need of redevelopment include: the revitalization of the State's Cities and Towns by the protection, preservation and development of valuable human and economic assets and the improvement of livability and sustainability by investing public resources in accordance with current plans that are consistent with the provisions of the State Plan; building on the assets of cities and towns such as their labor force, available land and buildings, strategic locations and diverse populations; the conservation of the State's natural resources and systems by preserving the Palisades cliffs through a comprehensive development plan; the promotion of beneficial economic growth, development and renewal for all residents of New Jersey; to ensure sound and integrated planning and implementation statewide and; urban revitalization through the preparation of plans that promote revitalization, economic development and infrastructure investments, coordinate revitalization planning among organizations and governments, support housing programs and adaptive reuse. The City's recently adopted Master Plan recommends that the properties in the [area] be designated, Mid Rise Residential/Steep Slope. The general objectives for Multi Family, Mid Rise Districts include the expansion of existing multifamily districts and creation of opportunities for high density housing . . . [t]he designation of the [area] 10 A-0285-16T4 as an area in need of redevelopment would be consistent with the goals and objectives of the Master Plan. The Report recommends to the Board that the area be qualified as a non-condemnation redevelopment area. The Planning Board held two public hearings, where it invited members of the Planning Board and the public to ask questions after Spatz presented the Report. Spatz testified that he conducted several site inspections of the area, in addition to reviewing building inspections, NJ DEP and police reports. At both hearings, the comments from the public were mixed, with some supporting a redevelopment designation, and others critical of Sky Pointe's role in the dilapidation and deterioration of the properties. "When reviewing a trial court's decision regarding the validity of a local board's determination, we are 'bound by the same standards as was the trial court.'" Jacoby v. Zoning Bd. of Adjustment of Borough of Englewood Cliffs, 442 N.J. Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). This court "give[s] deference to the actions and factual findings of local boards and may not disturb such findings unless they were arbitrary, capricious or unreasonable." Ibid. However, a municipal entity's "decision is 'invested with a presumption of 11 A-0285-16T4 validity,'" 62-64 Main St., L.L.C. v. Mayor of City of Hackensack, 221 N.J. 129, 157 (2015) (quoting Levin v. Twp. Comm. of Bridgewater, 57 N.J. 506, 537 (1971)), and "[t]he challenger of municipal action bears the 'heavy burden' of overcoming this presumption of validity." Vineland Constr. Co. v. Twp. of Pennsauken, 395 N.J. Super. 230, 256 (App. Div. 2007) (quoting Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998)). The actions of a board must be based on "substantial evidence." Ibid. As long as the board's actions are "supported by substantial evidence in the record, a court is bound to affirm that determination." 62-64 Main St., 221 N.J. at 157. "This heightened deference standard is codified in the LRHL, which provides that an 'area in need of redevelopment' designation 'shall be binding and conclusive upon all persons affected by the determination' if it is 'supported by substantial evidence and, if required, approved by the commissioner.'" ERETC, L.L.C. v. City of Perth Amboy, 381 N.J. Super. 268, 277-78 (App. Div. 2005) (quoting N.J.S.A. 40A:12A-6(b)(5)(c)). "Accordingly, it is not for the courts to 'second guess' a municipal redevelopment action 'which bears with it a presumption of regularity.'" Id. at 278 (quoting Forbes v. Bd. of Trs., 312 N.J. Super. 519, 532 (App. Div. 1998)). 12 A-0285-16T4 Moreover, it is presumed that redevelopment determinations are accompanied by adequate factual support. Hutton Park Gardens v. Town Council of W. Orange, 68 N.J. 543, 564-65 (1975). "[A]bsent a sufficient showing to the contrary, it will be assumed that [municipalities'] enactments rest upon some rational basis within their knowledge and experience." Ibid.; see also Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 191 N.J. 344, 373 (2007). Substantially for the reasons expressed by Judge Schultz, we affirm. Affirmed. 13 A-0285-16T4

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Docket No.: a0440-16
Decided: 2018-02-13
Caption: ANGELA MASELLI v. VALLEY NATIONAL BANCORP VALLEY NATIONAL BANK
Status: unpublished
Summary:
PER CURIAM Plaintiff Angela Maselli appeals from the Law Division's August 19, 2016 order dismissing with prejudice her breach-of- contract complaint against defendant Valley National Bank (the Bank). Specifically, Maselli alleges that the Bank breached binding promises in its Code of Conduct and Ethics (the Code). The trial court accepted the Bank's contention that the Code adequately disclaimed any contractual duty. Having reviewed Maselli's arguments in light of the record and governing principles of law, we reverse. Maselli contends the Bank failed to enforce the Code's anti- harassment provisions when Maselli's supervisor bullied and mistreated her. Maselli alleges the unaddressed and unabated harassment caused her to take a medical leave and return to a position in a different unit of the Bank. A subsequent downsizing of that unit – but not her previous unit – led to her furlough. Although she concedes she was an at-will employee, she alleges the Bank's breach of its Code caused her loss of employment. In its motion to dismiss in lieu of an answer, the Bank contended it disclaimed any contractual obligations. The Bank relied on the following language, which appeared in the first substantive page of an eighteen-page pamphlet: Employment is at Will: Employees of Valley National Bank are generally employees-at-will. This means that both the employee and Valley have the unrestricted right to terminate the employment relationship, with or without cause, at any time. No employee or agent of Valley National Bank is authorized to make any oral or written representations altering the at-will employment relationship unless made the 2 A-0440-16T1 subject of a specific written contract of employment. Such contract can only be authorized by the Chairman, President, and CEO. It should be noted that nothing contained in this Valley Code of Conduct and Ethics or in any policy or work rule of Valley shall constitute a contract of employment or a contract or agreement for a definite or specified term of employment. We exercise de novo review of the trial court's decision to grant a motion to dismiss under Rule 4:6-2(e). Rezem Family Assocs. v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011). "In reviewing a complaint dismissed under Rule 4:6- 2(e) our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart- Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989); see also Green v. Morgan Props., 215 N.J. 431, 451 (2013). We do not address whether the Code, absent an effective disclaimer, constituted an implied and enforceable promise by the Bank to comply therewith. See Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 393 (1994) (setting forth "factors [that] bear on whether an employee may reasonably understand that an employment manual is intended to provide enforceable employment obligations"); see also Woolley v. Hoffmann-La Roche, 99 N.J. 284, 302, modified, 101 N.J. 10 (1985) (holding that an employment manual contained an implied and enforceable promise that the 3 A-0440-16T1 employee could be fired only for cause). The sole issue before us is whether the disclaimer was effective as a matter of law, obviating the need to determine the import of the Code, or to reach Maselli's claim of contract breach and consequential damage. The Court in Woolley recognized the efficacy of a disclaimer in an otherwise contractually binding manual. Woolley, 99 N.J. at 309. The disclaimer must be "in a very prominent position." Ibid. It also must be "clear." Id. at 285. The Court suggested what an effective disclaimer could say, to disavow an implied promise to terminate only for cause. Id. at 309. The suggested disclaimer includes a general disavowal of any contractual obligation: "there is no promise of any kind by the employer contained in the manual; [and] that regardless of what the manual says or provides, the employer promises nothing . . . ." Ibid. The suggested disclaimer then generally describes what the employer remains free to do, stating the employer "remains free to change wages and all other working conditions without having to consult anyone and without anyone's agreement . . . ." Ibid. Finally, the suggested disclaimer specifically addresses termination at will, stating "the employer continues to have the absolute power to fire anyone with or without good cause." Ibid. We have no quarrel with the trial court's determination that the disclaimer was sufficiently prominent. It appeared on the 4 A-0440-16T1 first substantive page of the Code; it was set off in a separate paragraph; and introduced by a bolded title. However, we decline to find that the title "Employment is at will," clearly describes the substance of the disclaimer that follows. We also conclude that the text of the disclaimer does not unambiguously disavow a binding contract to abide by the Code. We must examine the substance of the Bank's disclaimer. Although the Bank's disclaimer is significantly more limited than the one the Court suggested in Woolley, the Bank contends it nonetheless suffices to "disclaim any contractual relationship" between Maselli and the Bank. "[W]hen the facts surrounding the content . . . of a disclaimer are themselves clear and uncontroverted . . . the effectiveness of a disclaimer can be resolved by the court as a question of law." Nicosia v. Wakefern Food Corp., 136 N.J. 401, 416 (1994). However, "in some cases . . . a jury may need to decide whether the content of a disclaimer is effective." Ibid. The meaning of the Bank's disclaimer hinges on the meaning of the phrase "contract of employment" in the disclaimer's last sentence, and whether it encompasses promises to abide by an anti- harassment policy Maselli contends the Code establishes. The balance of the disclaimer pertains to job security — not whether the Bank or employee has assumed binding promises so long as the 5 A-0440-16T1 employment subsists. The disclaimer's bold heading and the first full paragraph convey only that employment is at will and the Bank and employees have "the unrestricted right to terminate the employment relationship, with or without cause, at any time . . . ." The single-sentence, second paragraph disclaims two kinds of contracts: "a contract of employment" and a "contract or agreement for a definite or specified term of employment." The second paragraph, like the first, pertains to job security. Notably, the disclaimer does not expressly and unqualifiedly disavow the creation of a contract, as Woolley suggested with the language, "there is no promise of any kind by the employer contained in the manual; [and] that regardless of what the manual says or provides, the employer promises nothing . . . ." Woolley, 99 N.J. at 309. Rather, the disclaimer denies the creation of a "contract of employment." We are disinclined to treat language as surplusage. Washington Const. Co. v. Spinella, 8 N.J. 212, 217 (1951) (stating that "all parts of the writing and every word of it will if possible, be given effect" (quoting 9 Williston on Contracts (Rev. ed.), sec. 46, p. 64)). Thus, we must give meaning to the words "of employment." In contending that the disclaimer disavows any contractual relationship, the Bank essentially interprets the words "of employment" to mean "related to your employment in any way." So 6 A-0440-16T1 defined, that would certainly encompass a promise to abide by an anti-harassment policy embodied in the Code. Bolstering the Bank's interpretation, the second part of the sentence refers to job security, implying that the first part refers to something else. On the other hand, if the first part is as broad as the Bank essentially contends, there would be no need for the second part. An equally plausible reading by a reasonable employee is that a "contract of employment" means "a contract to employ." That would disclaim any promise of job security, or termination only for cause. However, it would not disclaim a promise to abide by the Code as long as an employee remained employed. This reading is supported by the title, "Employment is at will," and by the content of the first paragraph. Both refer only to job security. In sum, the meaning of the disclaimer is ambiguous, because the terms "are susceptible to at least two reasonable alternative interpretations." See Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 195 N.J. 231, 238 (2008). As the content of the disclaimer is not clear, the issue of its effectiveness is reserved for a jury. Nicosia, 136 N.J. at 416. Therefore, the disclaimer did not compel dismissal at this early stage of the case. Reversed and remanded. We do not retain jurisdiction. 7 A-0440-16T1

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Docket No.: a0447-16
Decided: 2018-02-13
Caption: WENDY L. FAIRCLOTH v. JEREMY BEVILLE
Status: unpublished
Summary:
PER CURIAM Plaintiff Wendy Faircloth appeals from an August 2016 order granting summary judgment to defendant Neal Owens (defendant) that dismissed with prejudice her claim for personal injuries from a dog bite. We affirm. We rely on the facts from the summary judgment record, viewing them in a light most favorable to the plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The facts are not in dispute. On January 21, 2013, plaintiff was visiting her friends, defendants Jeremy and Pam Beville, at their residence when she was bitten in the face by the Bevilles' dog, Pepper. Pepper was a Dutch Sheppard that had been given to the Bevilles in 2009 when the dog was two or three years old. Pepper had not bitten anyone previously. The Bevilles leased their residence from defendant with an option to purchase it. The parties agree that the lease did not prohibit pets. Defendant did not know about Pepper or anything about its behavior. On one occasion in 2003, he did see Pam Beville holding a small white dog when he was at the property, but that dog was not Pepper. Defendant rarely was at the property when the Bevilles resided there. 2 A-0447-16T1 Plaintiff sued defendant and the Bevilles for personal injuries arising from the dog's bite. The Bevilles declared bankruptcy, and plaintiff's claim against them was discharged. In August 2016, defendant's motion for summary judgment was granted, which dismissed plaintiff's complaint with prejudice. The trial court held that defendant was not liable because he did not have notice that the dog was "problematic or likely to injure a party." The court rejected plaintiff's request to expand liability because that would be imposing "strict liability on the owner of the property, if there's no other indications that this particular dog is problematic." On appeal, plaintiff contends the trial court erred in granting summary judgment. She argues, the current state of the law regarding landlord liability for dog bites is not consistent with premises liability law. Our review of the summary judgment order is de novo, meaning that we apply the same standards used by the trial judge. W.J.A. v. D.A., 210 N.J. 229, 237 (2012). The question then is whether the evidence, when viewed in a light most favorable to the non- moving party, raises genuinely disputed issues of fact sufficient to warrant resolution by the trier of fact or whether the evidence "is so one-sided that one party must prevail as a matter of law." 3 A-0447-16T1 Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). "Under the common law, ordinarily a landlord is not responsible for injuries caused by its tenant's dog." Hyun Na Seo v. Yozgadlian, 320 N.J. Super. 68, 71 (App. Div. 1999) (citing Cogsville v. Trenton, 159 N.J. Super. 71, 74 (App. Div. 1978)). However, beginning with Linebaugh v. Hyndman, 213 N.J. Super. 117, 120 (App. Div. 1986), we held there were circumstances where a landlord could be liable for injuries caused by a tenant's dog. The landlord in Linebaugh was aware that one of the tenants owned a large German Shepherd that had previously bitten another person. A child playing in the shared common area of the rented duplex was seriously injured when she was bitten by the dog. We held that "[a]n abnormally [vicious] domestic animal is like an artificial [dangerous] condition on the property." Id. at 121 (quoting DeRobertis v. Randazzo, 94 N.J. 144, 157 (1983)). We stressed that the landlord's liability was "well within traditional principles of negligence law." Id. at 122. A landlord could be held liable where he permitted a tenant to harbor a vicious animal and failed to take curative measures. In Hyun, we declined to impose liability on a landlord. There, a tenant was bitten by another tenant's dog and sued the landlord. 320 N.J. Super. at 71. We again determined that the 4 A-0447-16T1 landlord's liability was based on "ordinary principles of negligence," holding that "in the absence of proof that the landlord was aware of the dog's vicious propensities, or perhaps that the dog was inherently vicious, liability should not be imposed upon the landlord." Id. at 72. Here, defendant was not aware that the Bevilles owned Pepper and did not know whether the dog had bitten anyone else or had violent propensities. Under the existing case law, the landlord had no liability for injuries caused by the Bevilles' dog. Summary judgment was correctly entered. Plaintiff contends that we should expand the landlord's liability to impose liability consistent with "premises liability law," citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993) and Monaco v. Hartz Mt. Corp. 178 N.J. 410 (2004) to support her proposition. In Monaco, the Court held that a landlord of a commercial premises had a duty to make reasonable inspections of its property and to warn invitees of hazardous conditions. 178 N.J. at 418. In Hopkins, the Court determined that real estate brokers had a duty to inspect and warn of dangerous conditions of the property for visitors at an open house. 132 N.J. at 444-45. Plaintiff contends that "animals can be considered hazards and hazards should be discovered by landlords." She suggests that the landlord's duty to guests of a tenant should be expanded to 5 A-0447-16T1 protect and insure against this harm. We decline to extend a landlord's liability as suggested by plaintiff. The effect would be to make landlords strictly liable for their tenants' pets whether or not they were aware of any known violent propensities. The legislature did not impose that obligation on landlords. See N.J.S.A. 4:19-16 (addressing the strict liability for dog owners). Further, the imposition of strict liability upon landlords under this scenario is without precedent as our courts have consistently evaluated the liability of a landlord under general negligence principles. In sum, plaintiff provides no evidence or analysis that would cause us to revisit Hyun to include, as she suggests, an obligation to inquire about the danger of every dog kept by every tenant and then to insure the guests of tenants against injuries, even where the dog is not known to have violent propensities. Affirmed. 6 A-0447-16T1

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Docket No.: a0707-16
Decided: 2018-02-13
Caption: EDWARD J. HALL v. COUNTY OF BERGEN
Status: unpublished
Summary:
PER CURIAM In this New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, case involving a trip and fall over a discarded construction barrel-base rubber ring (a donut), Edward J. Hall and Debra Hall (plaintiffs) appeal from an October 7, 2016 order dismissing their complaint and granting summary judgment to the Township of Lyndhurst (defendant). Edward sustained serious personal injuries due to the accident, and Debra brought a per quod claim. We reverse and remand for a trial. 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, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Plaintiffs argue that there exists genuine issues of material fact as to whether a dangerous condition existed and whether defendant had constructive notice of it. We agree. Generally speaking, "a public entity is 'immune from tort liability unless there is a specific statutory provision' that makes it answerable for a negligent act or omission." Polzo v. Cty. of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough 2 A-0707-16T4 of Wallington, 171 N.J. 3, 10 (2002)). A public entity may be liable if "a negligent or wrongful act or omission of [its] employee . . . create[s] the dangerous condition" or, if it "had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." N.J.S.A. 59:4-2(a), (b). As the Court has repeatedly stated, to impose liability on a public entity pursuant to [N.J.S.A. 59:4-2], a plaintiff must establish the existence of a "dangerous condition," that the condition proximately caused the injury, that it "created a reasonably foreseeable risk of the kind of injury which was incurred," that either the dangerous condition was caused by a negligent employee or the entity knew about the condition, and that the entity's conduct was "palpably unreasonable." [Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 125 (2001) (quoting N.J.S.A. 59:4-2).] The law is settled as to what constitutes a dangerous condition under the TCA. The TCA defines a "dangerous condition" as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1(a). "A dangerous condition under [the TCA] refers to the 'physical condition of the property itself and not to activities 3 A-0707-16T4 on the property.'" Wymbs v. Twp. of Wayne, 163 N.J. 523, 532 (2000) (quoting Levin v. Cty. of Salem, 133 N.J. 35, 44 (1993)). Here, Edward walked across the street and tripped over the donut, which had been located in the center island of the crosswalk. The black donut was difficult to see due to the dark surroundings during the early evening. Plaintiffs' engineering liability expert reviewed photographs of the donut located on the pedestrian walkway and opined that a dangerous condition existed, and he concluded that defendant acted in a palpably unreasonable manner, which caused the dangerous condition. Plaintiffs' expert opined that the presence of the black donut created a reasonably foreseeable risk of injury to any pedestrian. He also concluded that Edward acted reasonably when he legally crossed the street at the designated pedestrian crossing in the early evening and failed to see the black donut. Looking at the facts in the light most favorable to plaintiffs, we conclude a disputed issue of fact exists as to whether a dangerous condition existed. The law is also settled as to what constitutes constructive notice of a dangerous condition under the TCA. N.J.S.A. 59:4-3 provides: a. A public entity shall be deemed to have actual notice of a dangerous condition . . . if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. 4 A-0707-16T4 b. A public entity shall be deemed to have constructive notice of a dangerous condition . . . only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. However, "[t]he mere '[e]xistence of an alleged dangerous condition is not constructive notice of it.'" Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013) (second alteration in original) (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)). It follows that absent actual or constructive notice, the public entity cannot have acted in a palpably unreasonable manner. Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-51 (App. Div. 2002). Here, the construction donut had previously been left at the location of the accident site and remained there for at least nine months. Photographs of the donut showed its existence for this timeframe. Photographs taken both nine months and two months before the date of the accident also revealed the donut stayed in the same location. Three months before the incident, a significant public works project, involving repaving and restriping, occurred in the area around the accident site. And photographs of that project showed the donut had not been moved. Although not determinative, we note that defendant did not inspect the area at 5 A-0707-16T4 the time of the repaving and restriping, and even if it did, the donut remained in its location for many months after the accident. Looking at the facts in the light most favorable to plaintiffs, we conclude a disputed issue of fact exists as to constructive notice. Palpably unreasonable conduct "means 'behavior that is patently unacceptable under any circumstance' and that it must be 'manifest and obvious that no prudent person would approve of [the public entity's] course of action or inaction.'" Pandya v. State, Dep't of Transp., 375 N.J. Super. 353, 372 (App. Div. 2005) (alteration in original) (quoting Holloway v. State, 125 N.J. 386, 403-04 (1991)). In most circumstances, "[p]alpable unreasonableness is a question of fact." Vincitore, 169 N.J. at 130. As noted, the uncontested opinion testimony from plaintiffs' liability expert sufficiently addressed the issue of palpable unreasonableness in his report, which created a fact issue for the jury. Reversed and remanded. 6 A-0707-16T4

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Docket No.: a0779-16
Decided: 2018-02-13
Caption: CITY OF JERSEY CITY v. SHAWKI KHALIL
Status: unpublished
Summary:
PER CURIAM In this breach of contract case, defendant appeals from a September 9, 2016 order awarding the City of Jersey City (plaintiff) $98,500. Judge Mary K. Costello analyzed the undisputed facts, entered the order, and rendered an extensive written decision. We affirm substantially for the thoughtful reasons given by Judge Costello. Plaintiff conducted an auction of a taxi license at which defendant was the successful bidder. Defendant signed a memorandum of sale, paid an $8000 deposit for the license, but refused to pay the balance due of $282,500. Plaintiff held a second auction, at which defendant's daughter successfully bid $184,000 for the license. The judge awarded plaintiff the amount of money it would have received had defendant complied with his contractual obligation to pay the balance due. On appeal, defendant argues the judge erred by entering the award because he was unaware that failing to pay the balance due exposed him to more than the forfeiture of his $8000 deposit. Defendant contends that plaintiff failed to adhere to auction requirements imposed by a local ordinance. And he asserts that plaintiff's claim is barred by the entire controversy doctrine (ECD). We conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 2 A-0779-16T3 3(e)(1)(E). In addition to affirming primarily based on Judge Costello's comprehensive written decision, we add the following brief remarks. We are unaware of any legal obligation that would require plaintiff to inform prospective taxi-license bidders that damages for failing to pay the balance due may exceed forfeiture of the deposit. Defendant argues the sale of a taxi license is like the sale of an alcohol license, and points to N.J.S.A. 33:1-19.3, which pertains to the sale of an alcohol license, as well as related regulations promulgated by the Office of Attorney General, Division of Alcoholic Beverage Control, purportedly requiring notice of refunds and forfeitures. But N.J.S.A. 48:16-2.3, which governs the issuance of taxi licenses, and Section 307-27(C) of plaintiff's Ordinance 13.101, which outlines the procedure for taxi-license auctions, impose no such notice requirement. Defendant's assertions that plaintiff failed to comply with requirements of the local ordinance are misplaced. Here, the Business Administrator certified that he delegated approval of the auction procedures to plaintiff's law department. The Municipal Clerk read verbatim the rules and regulations governing the auction. And defendant's refusal to pay the balance of the bid obviated plaintiff's obligation to issue the license to him. Thus, we see no violation of Section 307-27(C). 3 A-0779-16T3 As to his ECD contention, it would have been premature to require plaintiff to join this breach of contract claim to any other litigation until plaintiff established its damages by conducting the second auction. Affirmed. 4 A-0779-16T3

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Docket No.: a1617-15
Decided: 2018-02-13
Caption: IN THE MATTER OF FERNANDO SANCHEZ
Status: unpublished
Summary:
PER CURIAM Fernando Sanchez, a police officer with the City of Plainfield Police Department, appeals from the Civil Service Commission's (the Commission) October 7, 2015 final agency decision, upholding Sanchez's removal from employment for engaging in sexual acts with a civilian in his marked police car, while on duty. We affirm. The parties stipulate to the following facts pertinent to this appeal: 1. On May 9, 2013, Plainfield Police Officer Fernando Sanchez was interviewed by the Union County Prosecutor's Office in connection with a criminal investigation involving Sergeant Samuel Woody. 2. The victim in the Sergeant Woody Investigation was civilian, K.C.1 3. During the interview with Officer Sanchez, he revealed that he had a previous sexual relationship with K.C. and they had sex while on duty. 4. During the interview, when asked if he had sexual relations in his patrol car, Office Sanchez said, "I honestly don't think so." 5. When Lt. Troy Edwards took over control of Plainfield's [Internal Affairs] section, in November of 2013, from discussions with Sgt. Gray and Det. Barrio at the time, he became aware as to their knowledge of the statement to the Prosecutor's Office by Officer Sanchez and of the fact that it was a basis for possible charges against Officer Sanchez. 6. At the conclusion of the Woody criminal trial on April 9, 2014, Internal Affairs Sergeant Gray was provided with the transcript of the Union County Prosecutor's interview with Officer Sanchez. 1 We identify the victim by initials to protect her identity. 2 A-1617-15T1 9. On May 7, 2014, Internal Affairs Detective Nora Berrio interviewed Officer Sanchez and obtained a sworn statement from him. 10. During the May 7, 2014 Internal Affairs interview, Detective Barrio asked Officer Sanchez, "Did you have sexual intercourse with [K.C.] in your marked/unmarked police vehicle?" 11. Officer Sanchez responded, "No." 12. On May 9, 2014 Officer Sanchez requested to give, and gave a second interview to Detective Berrio which produced a second sworn statement. 13. During the May 9, 2014 statement, Officer Sanchez admitted that he had sex with [K.C.] in his patrol car. On May, 17, 2014, Sanchez received a Preliminary Notice of Disciplinary Action (PNDA) charging him with the following violations of Division rules and regulations: (1) failing to conduct himself in accordance with high ethical standards on and off-duty, 3.1.6; (2) violating his duties, 4.1.1; (3) failing to obey all applicable Federal and State laws, City ordinances, rules, policies, procedures, and directives, 4.1.3; (4) failure to disclose pertinent information in a report, 4.3.3; (5) engaging in prohibited activities, 4.6.4; (6) failure to truthfully disclose pertinent information in reports, 4.12.6; (7) conduct subversive to the good order and discipline of the division, 3 A-1617-15T1 6.2.22; (8) failure to remove keys from a City vehicle when unattended, 6.2.400; and (9) allowing an unauthorized person in a radio car, 6.2.59. The PNDA also charged Sanchez with the following violations of the New Jersey Administrative Code: (1) conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); misuse of public property, N.J.A.C. 4A:2-2.3(a)(8); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12). On September 23, 2014, Sanchez received a Final Notice of Disciplinary Action (FNDA) removing Sanchez effective September 22, 2014. Sanchez appealed his removal to the Commission. The parties agreed the matter could be decided in the Office of Administrative Law (OAL) without an evidentiary hearing on cross- motions for summary judgment because there were no genuine issues as to any material fact. The City did not pursue any charges of untruthfulness before the administrative law judge (ALJ). The parties further stipulate that the alleged sexual activities, which form the basis of the complaints against Officer Sanchez, occurred prior to July 24, 2011. In addition, they stipulate that Sanchez had been suspended on one prior occasion, receiving a forty-hour suspension on unrelated charges. On September 14, 2015, ALJ Leslie Z. Celentano issued a detailed twenty-four page written initial decision: (1) dismissing 4 A-1617-15T1 charges four, six, and eight; (2) denying dismissal of the remaining charges as time-barred or without sufficient basis; (3) denying consolidation of the charges 1, 2, 3, 5, 7, 9, 10, 11, and 12; (4) upholding the removal of Sanchez based on the City proving the remaining charges; (5) denying an award of back pay; and (6) denying a stay of penalties. On October 7, 2015, the Commission adopted the ALJ's findings of fact and conclusions. Finding the removal of Sanchez to be justified, the Commission affirmed that action and dismissed the appeal. This appeal followed. On appeal, Sanchez argues the Commission erred in affirming his removal from employment because a substantial suspension, rather than removal, was warranted. Sanchez further argues the charges should have been dismissed because they were time-barred by N.J.S.A. 40A:14-147, did not have a sufficient basis, and should have been consolidated because they were predicated on a single event. I. "The scope of [our] review is limited. An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citations omitted). We 5 A-1617-15T1 accord the agency's decision substantial deference "even if [we] would have reached a different result in the first instance." Id. at 28. That deference extends to decisions relating to employee discipline and punishment, including termination. Ibid.; see also In re Carter, 191 N.J. 474, 486 (2007). An agency head's choice of sanction is a matter of broad discretion, particularly where considerations of public policy are implicated. Division of State Police v. Jiras, 305 N.J. Super. 476, 482 (App. Div. 1997). We affirm substantially for the reasons expressed by ALJ Celentano in her comprehensive and well-reasoned initial decision, which were accepted and adopted by the Commission. We add only the following comments. Sanchez argues the charges were time-barred by N.J.S.A. 40A:14-147, which provides: A complaint charging a violation of the internal rules and regulations established for the conduct of a law enforcement unit shall be filed no later than the [forty-fifth] day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based. The ALJ concluded the forty-five-day period did not commence until May 9, 2014, when Sanchez admitted he had sex with K.C. in his patrol car. The record supports the ALJ's finding that Sanchez's false statements to investigators of the County 6 A-1617-15T1 Prosecutor on May 9, 2013, and to the Internal Affairs investigator on May 7, 2014, "delayed revelation of the severity of his behavior" because Sanchez "effectively concealed his conduct from investigators." Therefore, the City did not have "sufficient information" to file the charges until Sanchez revealed the extent of his misconduct on May 9, 2014. The ALJ also correctly concluded N.J.S.A. 40A:14-147 did not apply to the Administrative Code violations. Accordingly, the charges are not time-barred. Sanchez further argues his misconduct did not warrant removal from office, contending a substantial suspension was the appropriate penalty. We disagree. A reviewing court may "alter a sanction imposed by an administrative agency only 'when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency.'" Herrmann, 192 N.J. at 28 (quoting In re Polk, 90 N.J. 550, 578 (1982)). "[W]hen reviewing administrative sanctions, the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 (quoting Polk, 90 N.J. at 578) (citations omitted). Moreover, an agency's choice of discipline "is made weightier when, as in this instance, it is the penalty 7 A-1617-15T1 imposed by the appointing authority and affirmed by the ALJ." Id. at 36. "Our appellate courts . . . have upheld dismissal of employees, without regard to whether the employees have had substantial past disciplinary records, for engaging in conduct that is unbecoming to the position." Id. at 34. As the Court has explained: [P]rogressive discipline is not "a fixed and immutable rule to be followed without question" because "some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." "Thus, progressive discipline has been bypassed when an employee engages in severe misconduct, especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property." [In re Stallworth, 208 N.J. 182, 196-97 (2011) (citations omitted).] Law enforcement officers are held to a higher standard of responsibility and conduct than other public employees. Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965). "Nor can a police officer complain that he or she is being held to an unfairly high standard of conduct. Rather, 'it is one of the obligations he undertakes upon voluntary entry in the public service.'" In re Phillips, 117 N.J. 567, 577 (1990) (quoting In re Emmons, 63 N.J. Super. 136, 142 (App. Div. 1960)). 8 A-1617-15T1 Although progressive discipline is a recognized and accepted principle, incremental discipline does not have to be applied in every disciplinary setting. Herrmann, 192 N.J. at 33. "Instead, we have recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Carter, 191 N.J. at 484. As explained by the Court in Herrmann, progressive discipline is not a necessary consideration when reviewing an agency head's choice of penalty when the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest. [192 N.J. at 33.] Sanchez's improper conduct was sufficiently egregious and unbecoming to his office so as to warrant removal even if he had no prior disciplinary history. Here, however, Sanchez had previously served a forty-hour suspension. The Commission's determination that Sanchez's removal was justified is supported by substantial credible evidence in the record and was not arbitrary, capricious, or unreasonable. Sanchez's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). Affirmed. 9 A-1617-15T1

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Docket No.: a2440-16
Decided: 2018-02-13
Caption: STATE OF NEW JERSEY v. JASON S. KOKINDA
Status: unpublished
Summary:
PER CURIAM Defendant Jason Kokinda was indicted on second-degree endangering the welfare of a child by transmitting a picture depicting child exploitation or abuse, contrary to N.J.S.A. 2C:24- 4(b)(5)(A). He subsequently pled guilty, and pursuant to his plea agreement, was sentenced to three years in prison and required to comply with Megan's law. Defendant filed no direct appeal, but filed a petition for post-conviction relief (PCR), which the court dismissed without prejudice because defendant was incarcerated in Pennsylvania on related charges. Once defendant was released in 2016, he re-filed his PCR petition, which was denied on August 10, 2016. Defendant appeals from this order. The underlying facts are as follows. In 2007, members of the Bergen County Prosecutor's Office and the Computer Crimes Task Force (CCTF) were conducting undercover investigations of sexual predators in internet chat rooms. On January 27, 2007, a member of the CCTF entered a chat room posing as a mother of two young children. A user, subsequently determined to be defendant, began a sexually explicit conversation with the CCTF investigator regarding sexual relations with children ages fifteen and nine. The same day, and pursuant to the earlier online chat, defendant emailed the investigator stating "here's some pics." The email contained two photographs. The first photograph depicted a naked prepubescent girl posing for the camera. The second photograph depicted a child less than six years old laying on her back and exposing her vagina to the photographer. As a result, defendant was arrested and charged with endangering the welfare 2 A-2440-16T2 of a child by transmitting child pornography via the internet. Defendant's plea and sentencing followed. In his PCR petition, defendant argued he was engaged in role play and should not have been prosecuted for his chat communications. However, the PCR judge correctly pointed out defendant was charged with transmitting two images of child exploitation to the investigator, which met the elements of N.J.S.A. 2C:24-4(b)(5)(a), namely, "[a] person commits a crime of the second degree if, by any means, including but not limited to the Internet, he: (i) knowingly distributes an item depicting the sexual exploitation or abuse of a child[.]" The PCR judge stated [defendant] was not charged for his chat communications. However, when viewing the totality of the circumstances including the chat room that petitioner was in, communications sent from petitioner to [the investigator] in that chat room, and the context and nature of the pictures themselves it is apparent that the images depict children under the age of [sixteen], and both images depicted the sexual exploitation or abuse of a child. Further, as petitioner knowingly possessed and distributed these images, the elements of [N.J.S.A. 2C:24-4(b)(5)(a)] are clearly satisfied. On appeal, defendant argues he was a victim of a conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), N.J.S.A. 2C:41-1 to -6.2, which renders his plea 3 A-2440-16T2 invalid. Defendant re-asserts the claim that he was merely engaged in fantasy role play and should not have been prosecuted for the statements he made to the investigator. The PCR process affords an adjudged criminal defendant a "last chance to challenge the 'fairness and reliability of a criminal verdict . . . .'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. Feaster, 184 N.J. 235, 249 (2005)); see also Rule 3:22-1. As to our standard of review, "where the [PCR] court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). A petition for PCR may be granted upon the following grounds: (a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey; (b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction; (c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law if raised together with other grounds cognizable under paragraph (a), (b), or (d) of this rule. Otherwise a claim alleging the imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law shall be filed pursuant to R[ule] 3:21-10(b)(5). 4 A-2440-16T2 (d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy. [R. 3:22-2.] "Post-conviction relief is neither a substitute for direct appeal, R[ule] 3:22-3, nor an opportunity to relitigate cases already decided on the merits, R[ule] 3:22-5." State v. Preciose, 129 N.J. 451, 459 (1992). Rule 3:22-10(b) states a defendant is only entitled to an evidentiary hearing where the defendant demonstrates a prima facie case in support of post-conviction relief by showing "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." At the outset, we note defendant did not raise his RICO claims before the PCR court, and has not explained why he did not do so. Defendant also has not offered an explanation as to how barring him from doing so would result in a fundamental injustice, or a constitutional violation. "[A]ppellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting 5 A-2440-16T2 Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). For these reasons, we do not consider defendant's RICO claim. Lastly, defendant cannot obtain relief by contending he was engaged in "fantasy age-oriented role-playing" when he was communicating with the investigator as a grounds for PCR relief. Defendant misapprehends the charges against him. As the PCR judge noted, defendant was not charged, nor did [defendant] plead guilty to being in a chat room or [for] any of his communications with the undercover officer [who] was pretending to be a mother to a young child. Rather, [defendant] was prosecuted because he transmitted two images of child exploitation to the undercover officer in an email message on January 27, 2007. Defendant's transmission of two photographs to the investigator clearly established the elements of N.J.S.A. 2C:24- 4(b)(5)(a). There is no dispute the photographs depicted sexually explicit images of underage children. Likewise, no credible argument can refute that the act of transmitting the photos met the mens rea requirement of the statute. For these reasons, viewing the facts in a light most favorable to defendant, he failed to demonstrate a prima facie showing of success on the merits of his PCR petition. Affirmed. 6 A-2440-16T2

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Docket No.: a3441-14
Decided: 2018-02-13
Caption: PAULO ESTEVES TILE IMPORTERS AND DISTRIBUTORS, INC v. MARBLE UNLIMITED EMERALD PROPERTIES
Status: unpublished
Summary:
FUENTES, P.J.A.D. Plaintiffs Paulo Esteves and Tile Importers and Distributors, Inc., and defendant Marble Unlimited Emerald Properties hold title as tenants in common to real property located in the Borough of Farmingdale in Monmouth County. The parties use the property as the principal location from which they operate their respective businesses. In July 2011, plaintiffs filed a complaint against defendant in the Chancery Division, General Equity Part, alleging defendant refused to share in the cost of maintaining the property, including refusing to pay its share of water charges, insurance premium, and other costs related to the property. Plaintiffs sought injunctive relief in the form of an order directing defendant to pay its share of these expenses and requiring defendant to remove certain items from plaintiffs' side of the property. On October 2, 2012, Judge Thomas W. Cavanagh entered an Order of Settlement that memorialized, in twenty-two individually numbered paragraphs, the terms of the parties' "Agreement" that resolved this litigation. Paragraph 21 of Judge Cavanagh's order provided: that any disputes arising under this Agreement shall be submitted to binding arbitration in Monmouth County, by an arbitrator chosen from the list maintained by the American Arbitration Association. In the event of any dispute hereunder, the party prevailing in such arbitration shall be entitled to recover, 2 A-3441-14T3 in addition to all other remedies or damages, reasonable attorneys' fees incurred in such action[.] The parties were not able to abide by the terms of the settlement agreement and the dispute was submitted to binding arbitration before Mario J. Suarez, Esq., an arbitrator with the American Arbitration Association, Commercial Arbitration Tribunal. In a written decision dated October 1, 2013, consisting of twenty- one individually numbered paragraphs, arbitrator Suarez found in favor of plaintiffs on various issues concerning the operational expenses, use, and maintenance of the property. Paragraph number 16 of arbitrator Suarez's award—decision stated: The party prevailing in any action or proceeding to enforce this award shall be entitled to recover reasonable legal fees. The administrative fees of the American Arbitration Association totaling $1,425.00 and the compensation of the arbitrator totaling $900.00 shall be borne by Respondent. Therefore, Respondent shall reimburse Claimant the sum of $1,875.00, representing that portion of said fees in excess of the apportioned costs previously incurred by Claimant. This Award is in full settlement of all claims and counterclaims submitted to this Arbitration. All claims not expressly granted herein are hereby, denied. On March 20, 2014, plaintiffs filed a second complaint against defendant in the Chancery Division, General Equity Part, seeking 3 A-3441-14T3 enforcement of the October 1, 2013 arbitration award, "and previous settlement, attorney's fees, [and] costs[.]"1 The matter was tried on March 4 and March 10, 2015, before General Equity Judge Patricia Del Bueno Cleary as a bench trial. Paulo Esteves and Hakan Sagiroglu, the two principals in their respective businesses, were the only witnesses who testified. Judge Del Bueno Cleary permitted the parties to testify at length about their interactions since the arbitration. The judge found plaintiffs' second complaint was predicated on the same allegations of misconduct by defendant that were raised in the first complaint filed in 2011. With respect to their ownership interest in the property, Judge Del Bueno Cleary found: We have tenants in common. They bought [. . .] their [property] interest at different times, but they are now cotenants. And if a deed is silent as to the percentage of the individual ownership interest, there is a [rebuttable] presumption that the grantees share ownership equally under [Asante v. Abban, 237 N.J. Super. 495 (Law Div. 1989)]. In light of the parties' method of ownership and considering all of the evidence presented during the two-day trial, Judge Del 1 According to the procedural history recited in defendant's appellate brief, defendant filed an answer to plaintiffs' second complaint on June 26, 2014, and an amended answer and counterclaim on October 4, 2014. Plaintiff thereafter filed an answer to the counterclaim on October 10, 2014. However, defendant did not include copies of these pleadings as part of the appellate record. 4 A-3441-14T3 Bueno Cleary concluded the case was an action seeking an "enforcement of a settlement and an enforcement of an arbitration award." The judge also found "insufficient proofs . . . to award monies to the defendant." She therefore dismissed defendant's counterclaim. Considering the parties' hostility and inability to coexist as co-owners of the property occupied by their respective businesses, Judge Del Bueno Cleary stated: "The remedy I see is that there should be partition." Ultimately, the judge dismissed plaintiffs' action and defendant's counterclaim with prejudice, and without cost to either party. In this appeal, plaintiffs argue Judge Del Bueno Cleary erred when she "disregarded a memorialized agreement" between the parties regarding the use of the property. Although plaintiffs concede that defendant paid all of the monetary relief awarded by the arbitrator, they argue Judge Del Bueno Cleary erred when she concluded the arbitration award did not contain a provision "dictating ramifications of late payments" and in finding plaintiffs were not entitled to an award of counsel fees. We disagree and affirm. When we review the findings and conclusions of a trial court following a bench trial, we are bound to consider the judge's unique opportunity to hear the witnesses, sift through the competing evidence, and make reasoned conclusions. Allstate Ins. 5 A-3441-14T3 Co. v. Northfield Med. Ctr., P.C., 228 N.J. 596, 619 (2017). An appellate court should "not disturb the factual findings and legal conclusions of the trial judge" unless convinced that those findings and conclusions were "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483 (1974)). Here, the record supports Judge Del Bueno Cleary's findings and conclusions. The October 2, 2012 settlement agreement comprehensively addressed all of the issues raised by plaintiff in the first complaint which carried the imprimatur of the court in the form of an order entered by Judge Cavanagh, and expressly obligated the parties to resolve any dispute arising from the Agreement by way of arbitration. The arbitration award also provided that "[t]he party prevailing in any action or proceeding to enforce this award shall be entitled to recover reasonable legal fees and charges." (Emphasis added.) Because neither party prevailed before Judge Del Bueno Cleary, neither party is entitled to an award of counsel fees. Affirmed. 6 A-3441-14T3

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Docket No.: a3948-15
Decided: 2018-02-13
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.V.
Status: unpublished
Summary:
PER CURIAM Following a fact-finding hearing, N.J.S.A. 9:6-8.44, the Family Part judge found that defendant, E.V., had neglected her four children, V.V., Jr. (Vincent), born February 1998, V.V. (Valerie), born February 2004, and twin daughters, L.V. and A.V., born April 2009, "due to environmental neglect."1 The order also provided that under the "totality of [the] circumstances," see Div. of Youth & Family Servs. v. C.M., 181 N.J. Super. 190, 202 (J. & D.R. Ct. 1981), defendant failed "to ensure that [Vincent] and [Valerie] attended school regularly." Approximately fifteen months later, with the children already returned to defendant's custody, a different judge entered an order terminating the litigation. This appeal followed. 1 We use initials and pseudonyms to maintain the confidentiality of defendant and the children. 2 A-3948-15T4 I. The documentary evidence and testimony adduced at the fact- finding hearing revealed that the Division of Child Protection and Permanency (the Division) received a referral in June 2014 that Valerie was not regularly attending school.2 It was reported that the family was evicted one month earlier because defendant could not pay her rent and was now living in a motel. The caseworker who testified went to the motel and noted the unkempt nature of the room. She also interviewed defendant and Valerie. Valerie admitted to not attending school for approximately three months because her mother was not waking her up on time. Defendant told the caseworker that the family recently moved from another motel, and, although she notified Valerie's school of the move, the school bus never came to the new motel. Defendant claimed Vincent was attending and doing well in school. The caseworker, however, checked with the school and was told both children were "classified," had individualized education plans (IEPs), had missed many days of school and would likely be retained in grade. 2 The Division had prior involvement with the family, including responding to repeated police-initiated referrals earlier in 2014 resulting from violent attacks on defendant perpetrated by her husband, defendant V.V., Sr. 3 A-3948-15T4 The Division was unable to locate the family for several months thereafter, before defendant and her three daughters surfaced at a shelter in New York City. The city's social service agency was initiating services. However, before that happened, defendant moved again, and the Division found her and her daughters living in a basement apartment in Union City. Vincent was staying nearby with a cousin. The caseworker visited the apartment on September 18, 2014, and was immediately overcome with the strong odor of "Clorox," "feces and sewage." Gnats swarmed the apartment's ceilings, the countertops in the kitchen were strewn with garbage and there was no food. All four children were present at the time of the visit. Defendant explained and demonstrated that flushing the toilet caused sewage to seep up through the floor tiles. Vincent said the toilet did not work properly when the family moved in nine days earlier.3 After speaking with the children and observing the filthy conditions, the caseworker effected an emergent Dodd4 removal. 3 The judge saw pictures of the condition of the apartment taken that day by the caseworker. They are in the appellate record. 4 A Dodd removal is an emergent removal of a minor without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82 known as the Dodd Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011). 4 A-3948-15T4 On cross-examination, the caseworker acknowledged that defendant was the victim of domestic violence and relocated to a motel with the children in June because her husband was "coming after her." The caseworker acknowledged that she did not speak to the landlord or call the municipal building or health department to report the unsanitary conditions in defendant's apartment. A psychologist for the Union City Board of Education, who was Valerie's case manager, testified. Valerie had a specific learning disability, which required in-class support. Records reflected that during the 2013-14 school year, Valerie was absent fifty-four and tardy eighteen days. However, because the district did not retain classified elementary school students, Valerie was not retained despite her many absences. Vincent's case manager from the school district also testified. Vincent was classified as emotionally disturbed, and, because he lacked a sufficient number of credits, was retained in ninth grade after the 2013-14 school year. He had been absent eighty-four days, but received some home instruction, thereby missing, in total, approximately forty-five days of school. Defendant did not testify or call any witnesses. In colloquy with the Deputy Attorney General (DAG) representing the Division, the judge asked about Vincent's current status, and whether the Division, which now had custody of Vincent, was "having less luck 5 A-3948-15T4 than mom did" with getting him to school. The DAG admitted that Vincent, now nearly seventeen years old, was "missing." In his oral opinion, the judge said the case was "very difficult," because it dealt "with poverty and all the attenuated, unfortunate circumstances that go along with poverty." The judge addressed each of the four specific claims the Division made to support a finding of neglect under the "totality of the circumstances." The judge rejected the assertion that defendant "fled" from the Division's investigation or attempts to provide services to the family. He found defendant's frequent movement with the children was "really of no moment." He also rejected the Division's argument that the condition of the children or the motel room in June was anything more than a "onetime event." Although he expressed a preference that the Division not have proceeded under Title Nine, the judge found the Division had proven "environmental neglect." Although there was no proof the sewage backup was defendant's fault, the judge concluded, "you've got to do a little bit more than throw some bleach down and try to clean it up when you have four kids there, two of whom are very young." The judge credited Vincent's statement that the condition existed ever since the family moved in to the apartment. He faulted 6 A-3948-15T4 defendant for not having called the police or the municipality for help. Turning to the Division's assertion of educational neglect, the judge recognized that the family repeatedly moved and that Vincent was frequently truant or suspended. However, the number of Valerie's absences was "extraordinary." The judge said he would not make a finding of neglect based only upon "educational neglect," but, under the "totality of the circumstances pursuant to C.M.," the judge concluded defendant had educationally neglected her two children. II. On appeal, defendant argues that the judge erred in finding "environmental neglect," because her conduct was neither grossly negligent nor reckless, but rather resulted from her poverty. Defendant also contends that the Division failed to prove "educational neglect," and specifically failed to prove educational neglect as to Vincent, because the Division "admitted . . . [he] was not attending school while in [the Division's] custody." Both the Division and the Law Guardian for the children urge us to affirm. We have considered these arguments in light of the record and applicable legal standards. We affirm. 7 A-3948-15T4 "[A]ppellate courts 'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[t]here is an exception to th[e] general rule of deference: Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). When the issue presented turns on a legal conclusion derived from the Family Part's factfinding, "we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011). 8 A-3948-15T4 "In general, 'Title 9 controls the adjudication of abuse and neglect cases.'" Dep't of Children & Families, Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 177 (2015) (quoting M.C. III, 201 N.J. at 343). "The focus of Title 9 'is not the culpability of parental conduct but rather the protection of children.'" N.J. Div. of Child Prot. & Permanency v. A.B., ___ N.J. ___, ___ (2017) (slip op. at 17-18) (quoting E.D.-O., 223 N.J. at 178). Title Nine defines an "abused or neglected child" as one under the age of eighteen whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (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 excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court. [N.J.S.A. 9:6-8.21c(4)(a) and (b) (emphasis added).] Although the judge said the Division was proceeding under both subsection (a) and (b), and the Division cites to both in its appellate brief, it is clear that the judge made his findings 9 A-3948-15T4 under subsection (a), and that was the only subsection of the statute relevant to the evidence produced at the hearing. "[T]he phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). "[A] guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. "To determine if a parent or guardian failed to exercise a minimum degree of care, we must additionally 'account for the surrounding circumstances,' given that '[a]buse and neglect cases are fact- sensitive.'" A.B., slip op. at 20 (citation omitted) (quoting E.D.-O., 223 N.J. at 180). Defendant argues that the judge erred in finding she had neglected the children because the conditions in the apartment did not result from grossly negligent or reckless conduct on her part, and there was no evidence the children were harmed, or faced imminent risk of harm, because of the conditions. She also argues the judge's recognition of her poverty precluded him from finding defendant had the financial ability to abate the conditions, and the Division did nothing to help defendant either find other housing or fix the sewage problem. We disagree. 10 A-3948-15T4 The judge found the conditions in the apartment had existed for nine days, ever since the family moved in. Raw or dried sewage was on the floor of every room, including the bedroom, where the entire family slept on the floor, and the kitchen. During that time, defendant did little, except to pour bleach on and mop the floor and light incense to dispel the fumes. She told the caseworker that she was on her way out to buy a plunger just before the caseworker arrived, but she never complained to the landlord or the appropriate municipal agencies, nor did she call the Division. While the caseworker was present, Valerie slipped and fell while trying to mop up the fetid water. All of defendant's children suffered from asthma, yet defendant's attempt to use chlorine bleach to cure the problem only exposed them to noxious fumes. The judge expressly recognized defendant's penurious state, but he placed appropriate significance on the fact that the sewage flow existed for more than one week. We also reject defendant's claim that the Division simply removed the children rather than assist her. Defendant never called the Division after she returned from New York City. The Division was only able to locate defendant through the efforts of the Human Services Police, and did so shortly before the caseworker 11 A-3948-15T4 visited. Because the risk posed to the children's health was so significant, we find no fault with their immediate removal. We therefore affirm the fact-finding order based upon the judge's finding and conclusion that defendant's conduct exposed the children to "environmental neglect." As a result, we need not reach the other arguments raised by defendant. Affirmed. 12 A-3948-15T4

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Docket No.: a4443-15
Decided: 2018-02-13
Caption: FRANCIS MCCORMACK v. ALTA WILSON
Status: unpublished
Summary:
PER CURIAM Plaintiff Therese Dunne appeals from an April 1, 2016 order memorializing a no-cause jury verdict in favor of defendant Alta Wilson, and a May 13, 2016 order denying plaintiff's motion for judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial. We affirm. I We discern the following facts from the record. On June 8, 2006, plaintiff and defendant were involved in a motor vehicle accident. Francis McCormack drove plaintiff's car, which towed a pop-up camper. Plaintiff and her daughter were passengers in that car. They were on their way to the Pocono 500 car race. Defendant drove a tractor-trailer with her daughter in the passenger seat. Defendant's truck rear-ended the camper towed by plaintiff's car. The accident occurred during heavy traffic, in the westbound lanes of Interstate Highway I-80. According to defendant, in the area where the accident occurred, there are "five lanes and two split off." 2 A-4443-15T3 The trial record contains conflicting accounts of how the accident occurred. Plaintiff testified as follows: Q: How did you become aware that something unusual is happening? A: Because we came to a full stop. Q: When you say you came to a full stop, can you describe how Mr. McCormack stopped the car? A: Slowly and gradually, with the thickness of traffic. Q: To your perception, did he slam on the brakes? A: No. Q. Then what happened? A: The car I was in came to a stop. Some long seconds later, I heard the squealing, loud squealing of brakes. I turned around to see what would be happening, and I saw an [eighteen-wheel] Peterbilt truck barreling down on us too fast. Q: Did that truck then hit the back of the camper? A: Yes. Q: What lane was your car in when the accident happened? A: I'm not sure. 3 A-4443-15T3 Q: Had Mr. McCormack recently changed lanes before that contact, that impact took place? A: No. Although Mr. McCormack did not testify in court, plaintiff's counsel read the following excerpt from his deposition testimony at trial: Q: Can you describe for us in your terms how this accident occurred? A: A mile and a half, mile ahead . . . there was an accident in progress. Everyone on the road came to an abrupt but controlled stop. A vehicle came up behind us and hit us knocking the trailer off the back end of the car across the road, put us into a 360. Later on I found out it was a tractor trailer, Peterbilt. Defendant testified as follows: Q: And can you describe to me how the accident occurred? A: I saw a car in the left far lane all of a sudden just swerve and come across and when it swerved and came across[,] the other car came across in front of me. The original car continued to cross and there was a bus. I don't know if it hit the bus or if the bus hit somebody else. I do know there was a bus. Q: [D]uring the [ten] minutes before the accident was [plaintiff's] car with the trailer in front of you the entire time? A: No. 4 A-4443-15T3 Q: At some point in time how did it come to be in front of you? A: I thought it was caused by the other car that swerved right. Q: . . . At some point in time did [plaintiff's] car move into your lane? A: Yes. Q: Which lane did it come from? A: It came from the left to the center. Q: Before it moved into your lane . . . was there traffic in front of you in your lane? A: No. We were picking up speed. Q: Okay. A: [T]hey were moving away. Q: Okay. A: It left a gap. Q: Before [plaintiff's] vehicle moved into your lane . . . was there sufficient room between you and the next car in front of you for you to stop safely for your speed? A. There was enough room. Plaintiff's counsel also read into the record the following excerpt from defendant's answers to interrogatories: "I was 5 A-4443-15T3 traveling westbound on I-80 in Netcong, New Jersey when the accident occurred ahead on the highway. The plaintiff's vehicle swerved into my lane and braked suddenly." Defendant provided conflicting testimony on the number of hours she had driven the day of the accident, whether she took a break to sleep, and the location of her final destination. Q. [O]n your direct testimony did you not say that you took half of your break and slept while you were in Brooklyn? A. Yes Q. Did you not say on your direct that you were going home that night? A. Yes. Q. Did you not say at your deposition five years ago under oath nothing about sleeping in Brooklyn? A. Yes. Q. But rather that you were almost out of time and that you were going to stop in Whitehall, Pennsylvania? Yes? A. Yes. Q. Those are two entirely different stories, aren't they? A. Yes. Defendant acknowledged she kept a logbook containing the number of hours driven and slept; however, she discarded the logbook before trial. On cross-examination, defendant confirmed 6 A-4443-15T3 federal law and her employer required her to maintain the logbook. She agreed that a logbook is "important because it documents all the times that you're leaving, stopping and driving and . . . documents your downtime . . . ." Defendant initially testified that she "threw everything away after two years," but when pressed, she admitted she discarded the logbook after she knew about this lawsuit. When asked to admit that she "consciously" threw out her logbook, she replied, "Not consciously, no." Plaintiff also presented the testimony of the New Jersey State Trooper who responded to the accident scene; however, by time of trial, he had no recollection of the accident. He therefore provided testimony based upon his accident report, which indicates Mr. McCormack stated, "I hit the brakes due to the accident and was hit from behind." The report indicates defendant stated, "The car with the trailer hit the brakes and I couldn't stop in time." Two other cars were involved, one of which had minor damage. The report fails to confirm Mr. McCormack's testimony that the car he was driving did "a 360,"1 or defendant's testimony that another car swerved right just before the collision. 1 The trooper responded, "Yes, sir," when asked, "If somebody told you their car spun 360 degrees after the impact and the physical evidence at the scene supported that, would you put that in your police report?" 7 A-4443-15T3 Nor does the report list defendant's daughter as a passenger in defendant's vehicle. An ambulance took plaintiff, her daughter and Mr. McCormack to the hospital. Plaintiff complained of neck, back and shoulder pain. The hospital discharged all three in the middle of the night. They spent the rest of the night at a hotel, then rented an RV in the morning. They stopped at the impound lot holding plaintiff's car and camper before continuing on to the race. Plaintiff claims severe injuries from the accident; however, defendant argues the injuries were pre-existing. Damages are not at issue on appeal. At the close of the evidence, plaintiff moved for a directed verdict on liability, which the court denied, reasoning the jury needed to resolve factual issues regarding negligence. The trial judge gave the jury a Dolson2 charge stating, "[F]ollowing another vehicle more closely than is reasonable and prudent . . . is negligence . . . on defendant's part." The jury then found defendant negligent; however, it failed to find defendant's negligence proximately caused the accident. 2 See Dolson v. Anastasia, 55 N.J. 2, 10-11 (1969) (holding the failure to maintain a reasonably safe distance behind the automobile ahead, in violation of N.J.S.A. 39:4-89, is negligence, not merely evidence of negligence, and the jury should be charged accordingly). 8 A-4443-15T3 Plaintiff moved for JNOV, or alternatively for a new trial, arguing defendant's negligence must have been a proximate cause of the accident. The trial judge denied plaintiff's JNOV motion, finding reasonable minds could differ as to the cause of the accident. The judge also denied a new trial reasoning: [T]he [c]ourt cannot conclude . . . that it cannot conceive of any such act that was not also a proximate cause of the accident in these circumstances. Rather, the [c]ourt can conceive of a situation where a jury, based upon the evidence [and] their opportunity to assess credibility, could find that [defendant's] negligent conduct was not a substantial factor in bringing about the resulting accident. That is, the jury could have found based upon the evidence that any negligent conduct was simply remote, trivial or inconsequential. The [c]ourt can conceive a situation in which the jury found that the conduct of the operator of [plaintiff's] vehicle in swerving into defendant's lane and abruptly applying the brakes proximately caused this accident. II Plaintiff argues on appeal the trial judge erred in denying the motion for JNOV. We disagree. In reviewing a trial court's denial of a motion for JNOV under Rule 4:40-2, we apply the same standard as the trial court: "[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him [or her] the benefit of all inferences which can reasonably 9 A-4443-15T3 and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied . . . ." Boyle v. Ford Motor Co., 399 N.J. Super. 18, 40 (App. Div. 2008) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)). However, we do not defer to the trial judge's "interpretation of the law and the legal consequences that flow from established facts." Raspa v. Office of the Sheriff, 191 N.J. 323, 334-35 (2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Here, "accepting as true all the evidence which supports" defendant's case, Boyle, 399 N.J. Super. at 40, the jury could have found that "the other car that swerved right," as described by defendant, caused plaintiff's vehicle to swerve into defendant's lane and abruptly brake, and that any conduct of defendant was not a substantial factor in causing the accident. While plaintiff testified that her vehicle did not swerve into defendant's lane and abruptly brake, defendant testified that plaintiff's vehicle did. Moreover, the record lacks any direct evidence that defendant followed too closely, drove too fast, or failed to pay attention. While the circumstantial evidence in this case would have supported a verdict in favor of plaintiff, it did not compel it. Alternatively, the jury could have found defendant negligent for discarding her logbook, or for driving too many hours. 10 A-4443-15T3 Plaintiff's counsel extensively cross-examined defendant regarding these issues, and emphasized these points during closing argument: And then the really interesting thing was that I asked her all about these questions of timing, how much time, when did you leave? And her answers were, you know, all of that would be in my [logbook]. And under federal . . . law [logbooks] must be kept. It's required. And I asked her, where is your [logbook]? It's gone. What happened to it? I threw it away. You threw it away? Yes. When did you throw it away? Last year, before the deposition in 2010. You threw it away in 2010? Yes. You knew this case was pending? Yes. . . . So, we know that she threw this [logbook] out a year before her deposition. And we know she threw it out after she had full and complete knowledge that this case was pending and it would be important. Defendant disputed the suggestion of plaintiff's counsel that she "consciously" threw out her logbook. The jury could have concluded defendant committed a negligent act by discarding her logbook or by working too many hours; however, any such acts of negligence did not proximately cause the accident. Because "reasonable minds could differ" as to the cause of the accident, the trial court properly denied plaintiff's JNOV motion. See Boyle, 399 N.J. Super. at 40. III Plaintiff further argues the trial judge erred in denying the motion for a new trial, because the jury's verdict was inconsistent in finding negligence without proximate cause. We disagree. 11 A-4443-15T3 A trial court shall grant a motion for a new trial if, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49- 1(a). We apply the same standard of review as the trial court, except we "afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility." Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)). Proximate causation is a "combination of 'logic, common sense, justice, policy and precedent' that fixes a point in a chain of events, some foreseeable and some unforeseeable, beyond which the law will bar recovery." People Express Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246, 264 (1985) (quoting Caputzal v. Lindsay Co., 48 N.J. 69, 77-78 (1966)). In order to determine whether proximate cause exists, the proper inquiry is "'whether the specific act or omission of the defendant was such that the ultimate injury to the plaintiff' reasonably flowed from defendant's breach of duty." Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 503 (1997) (quoting Hill v. Yaskin, 75 N.J. 139, 143 (1977)). See also Model Jury Charges (Civil), 6.10, "Proximate Cause — General Charge to Be Given in All Cases" (1998) ("The basic question for you to resolve is whether [plaintiff's] 12 A-4443-15T3 injury/loss/harm is so connected with the negligent actions or inactions of [defendant] that you decide it is reasonable . . . that [defendant] should be held wholly or partially responsible for the injury/loss/harm."). The defendant's conduct must amount to a "substantial factor" in causing the claimed injury. James v. Arms Tech., Inc., 359 N.J. Super. 291, 311 (App. Div. 2003). The issue here is whether the jury finding defendant negligent, but the negligence not a proximate cause of the accident, was "clearly and convincingly . . . a miscarriage of justice." R. 4:49-1(a). Our Supreme Court has overturned similar jury verdicts where the Court concluded no conceivable reason existed for the jury to have found negligence but not proximate cause. Neno v. Clinton, 167 N.J. 573, 588 (2001); Pappas v. Santiago, 66 N.J. 140, 143 (1974). Neno involved a vehicle- pedestrian accident where the jury found the defendant negligent, but not a proximate cause of the accident. Id. at 577, 579. We affirmed; however, one member dissented, concluding the verdict was inconsistent. Id. at 577. The Supreme Court agreed with the dissenting judge, who stated, "I cannot conceive of any such act that was not also a proximate cause of the accident in these circumstances." Id. at 588. Accordingly, if defendant's negligence was necessarily a "substantial factor" in causing the accident, then the verdict was 13 A-4443-15T3 inconsistent and we should set it aside. See James, 359 N.J. Super. at 311. If, however, the record supports a finding that defendant's negligence was not necessarily a substantial factor in causing the accident, the verdict was not inconsistent and should stand. Defendant testified that "the other car that swerved right" caused plaintiff's vehicle to swerve into defendant's lane and abruptly brake, leaving her insufficient time to stop. If the jury accepted defendant's testimony on that point, the record would support a finding that any negligence of defendant was not a substantial factor in causing the accident. Consequently, this is not a case, like Neno or Pappas, where no conceivable basis existed in the record for the jury's verdict. Plaintiff's counsel also pressed defendant on the number of hours she had driven that day and how much she had slept, as well as her failure to preserve her logbook. Therefore, alternatively, the jury could have concluded that, although defendant was negligent in driving too many hours or with too little sleep, or by discarding her logbook, any such negligent acts were not a substantial factor in causing the accident. As a result, the jury's verdict was not "clearly and convincingly . . . a miscarriage of justice under the law," Rule 14 A-4443-15T3 4:49-1(a), and the trial judge properly denied the motion for a new trial. Affirmed. 15 A-4443-15T3

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Docket No.: a0365-16
Decided: 2018-02-12
Caption: PAI-SUKANG v. STEPHEN T. LAN
Status: unpublished
Summary:
PER CURIAM This case returns to us after remand proceedings directed by our previous opinion, Pai-Su Kang v. Lan, Nos. A-4376-12, A-4131- 13 (App. Div. May 18, 2015), certif. denied, 223 N.J. 557 (2015). In an August 16, 2016 order, the Family Part judge amended certain portions of the April 2, 2013 Final Judgment of Divorce (FJOD). Among other things, the judge valued plaintiff's business at $88,875 and determined defendant's equitable interest to be $33,000; the judge also addressed a calculation error regarding the parties' joint bank account, and required plaintiff to pay defendant $25,688.42. Plaintiff filed an appeal from the August 16, 2016 order; defendant did not cross-appeal. We affirm. I The parties are familiar with the facts and procedural history of this case; therefore, a detailed recitation of those facts and events is unnecessary. Instead, we provide the following abbreviated account. The parties married in December 1997. They have two children, a daughter born in 2000, and a son born in 2002. The parties separated in September 2007, and plaintiff filed her divorce complaint in December 2007. The Family Part conducted a forty- day trial, beginning in August 2010, and entered the FJOD, with an accompanying 122-page opinion, on April 2, 2013. Plaintiff appealed from the FJOD, and separately appealed from orders entered 2 A-0365-16T1 on an enforcement motion.1 We addressed both appeals in a May 18, 2015 opinion; we affirmed in part, and reversed and remanded in part. Pai-Su Kang, slip op. at 32. On remand, the judge accepted additional submissions from the parties, and on August 16, 2016, issued a written opinion and order addressing the remand issues and explaining the reasons for his findings. II As she did in her original appeal, plaintiff takes issue with certain findings concerning equitable distribution. Namely, plaintiff's arguments focus on the Family Part's valuation of her business. She also disputes the Family Part's joint bank account calculations, arguing it erred by "adding [$9173] . . . when it [should have] . . . subtracted." Based on our review of the record and applicable law, as well as our consideration of the briefs and oral arguments, we are not persuaded by any of plaintiff's arguments. We affirm substantially for the reasons expressed by the Family Part judge in his thorough and well-reasoned opinion. We add the following comments. 1 Plaintiff also appealed from a December 5, 2014 Family Part order denying a post-judgment enforcement motion and requiring her to pay counsel fees and costs. See Pai-Su Kang v. Lan, No. A- 2266-14 (App. Div. July 21, 2016). 3 A-0365-16T1 Family courts have "special jurisdiction and expertise in family matters," and therefore, "appellate courts should accord deference" to a family court's fact finding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). "We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Our Supreme Court has recognized that "in the valuation of a business, '[t]here is no single formula that will apply to each enterprise.'" Steneken v. Steneken, 183 N.J. 290, 296 (2005) (quoting Bowen v. Bowen, 96 N.J. 36, 44 (1984)). "Flexibility must be the byword in determining which approach is best suited in a particular instance because '[t]here is no inflexible test for determining fair value, as valuation is an art rather than a science . . . .'" Id. at 297 (quoting Lawson Mardon Wheaton, Inc. v. Smith, 160 N.J. 383, 397 (1999)). Business valuation "requires consideration of proof of value by any techniques or methods which are generally acceptable in the financial community and otherwise admissible in court." Ibid. 4 A-0365-16T1 In his August 16, 2016 opinion, the judge explained his trial findings, stating, "The [parties'] experts could not have been more inapposite as to determining fair market value of [plaintiff's] 100 [percent] ownership in her sole proprietorship business." Specifically, defendant's expert approximated the business's worth to be $237,000, whereas plaintiff's expert "decided the value of [plaintiff's] business to be zero, and therefore, nothing to be divided between the parties as to equitable distribution." The judge took issue with both experts' opinions, and noted he "need not adopt the opinion of either expert in its entirety." As such, he used "parts of each expert's testimony and report and . . . formulated [his] own determination based upon certain indisputable facts, common sense, and realities." See, e.g., Townsend v. Pierre, 221 N.J. 36, 52 (2015) ("The admission or exclusion of expert testimony is committed to the sound discretion of the trial court."). Ultimately, he valued plaintiff's business at $88,875, and finding "[t]here was little evidence . . . as to [defendant] adding to or assisting in the growth of the business in a direct way," determined defendant was entitled to $33,000 equitable interest in the asset. We discern no basis to disturb the judge's determination. He appropriately valued plaintiff's business and, based on his "feel 5 A-0365-16T1 for the case," distributed the marital property accordingly. See Div of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007) (Wallace, J., dissenting). Moreover, plaintiff's argument that the judge erred by "continu[ing]" to adopt defendant's "self-created fraudulent chart . . . to determine [her] bank account" lacks merit. In our remand, we held: Defendant submitted a summary of the parties' non-retirement bank accounts as of December 3, 2007. As plaintiff transferred $9173 to defendant after that date, defendant exempted $18,346 of plaintiff's funds from equitable distribution. This accurately reflected the transfer because the summary overstated plaintiff's accounts by $9173, and understated defendant's accounts by $9173. [Pai-Su Kang, slip op. at 13-14.] Here, the judge accurately addressed our concern and amended the balance plaintiff owed defendant to $25,688.42. In light of the record and applicable legal principles, we find no error. The judge clearly identified the issues we remanded and explained the reasons for the amendments set forth in the August 16, 2016 order. Any arguments raised but not specifically addressed lack sufficient merit to warrant comment in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 6 A-0365-16T1

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Docket No.: a0924-16
Decided: 2018-02-12
Caption: MICHELE COLLINS v. SANDALS RESORTS INTERNATIONAL
Status: unpublished
Summary:
PER CURIAM This personal injury action arose during plaintiffs' Caribbean vacation when they allegedly became ill due to food poisoning. We must decide whether the Due Process Clause of the Fourteenth Amendment precludes the New Jersey Superior Court from exercising jurisdiction over defendant Sandals Resorts International, Ltd.1 The trial court dismissed plaintiffs' Superior Court complaint for lack of personal jurisdiction. Plaintiffs appealed. We conclude the trial court correctly determined it did not have specific jurisdiction over defendants. We also conclude the trial court incorrectly determined plaintiffs had conceded the absence of general jurisdiction, but determine plaintiffs' proofs nonetheless fell short of establishing a prima facie case of general jurisdiction. We thus affirm the order that dismissed the complaint for lack of jurisdiction. Plaintiffs filed a complaint in January 2016, and amended the complaint three months later. In the complaints, they alleged on February 3, 2014, while vacationing at the Beaches resort in Turks and Caicos, they dined at the "Soy at Beaches" restaurant where they consumed contaminated food and became ill. The amended 1 Sandals Resorts International, Ltd., averred in its motion pleadings that Sandals Resorts and Beaches Turks & Caicos Resort & Spa are not legal entities. The parties appear to have accepted that representation. For that reason, in this opinion we will refer to Sandals Resorts International, Ltd. as "defendant." 2 A-0924-16T4 complaint included causes of action for negligence, strict liability, and breach of warranty. Plaintiffs sought compensatory and punitive damages. Defendant responded by filing a motion to dismiss the amended complaint for lack of personal jurisdiction. The trial court granted the motion. In support of the motion to dismiss, defendant submitted a certification from its Director of Corporate Services. According to the certification, defendant is a Jamaican corporation with its headquarters and principal place of business in Montego Bay, Jamaica. Defendant does not own property or have offices in New Jersey, does not operate, control, or direct any entity in New Jersey, and does not conduct business in New Jersey. The certification also states defendant does not hold a license to do business in New Jersey, has no affiliation with any entity that can legally bind it in New Jersey, has no agents or employees in New Jersey, and has no New Jersey mailing address or telephone number. Defendant does not pay New Jersey taxes, does not maintain a New Jersey bank account, and has never solicited business in New Jersey or directed any advertising specifically at New Jersey. Lastly, the certification asserts that all food served at the Soy restaurant in Turks and Caicos is prepared and served in Turks and Caicos. 3 A-0924-16T4 The Director of Corporate Services explained in the certification defendant's parent company, a non-party, contracts with Unique Travel Corp., another non-party, as its sole worldwide marketing and reservations representative. Unique Travel Corp. subcontracts its marketing and promotions services to non-party Unique Vacations, Inc., a Delaware company. According to the certification, Unique Vacations, Inc., does not target any specific state with marketing or advertisements. In response to defendant's motion to dismiss, plaintiffs' counsel submitted a certification with exhibits, and plaintiff Michele Collins submitted an affidavit. According to Michele Collins's affidavit, she first visited a Sandals resort in St. Lucia at an unspecified time after a travel agent from Liberty Travel in Parsippany, New Jersey, recommended the resort. After the initial visit, she saw advertisements for Sandals resorts in newspapers and magazines, on television, on the internet, and on billboards in New Jersey. She also received mailed advertisements addressed to her home soliciting her to take another vacation to a Sandals resort. In response to those solicitations, plaintiffs booked a family vacation for February 2013 at the Beaches resort in Turks and Caicos through Sandals' website. During the February 2013 vacation, while still on the Beaches resort, Beaches personnel 4 A-0924-16T4 approached plaintiffs and offered a substantial discount if they would book a vacation at the Turks and Caicos Beaches resort for the following year. Before leaving the Beaches resort in 2013, plaintiffs accepted the discount and booked a 2014 vacation to Turks and Caicos. Plaintiffs vacationed at the Beaches resort in Turks and Caicos with their children from February 2, 2014, to February 9, 2014. According to the amended complaint, on February 3, 2014, plaintiffs visited the "Soy at Beaches" restaurant on the resort to eat dinner. Plaintiffs claim they ordered and consumed a meal consisting of seafood, including sushi, which caused them to become seriously ill because the food was allegedly spoiled, unwholesome, contaminated, and not fit for human consumption. Plaintiffs allege they became seriously ill within hours. The trial court concluded it did not have specific jurisdiction. The court determined the contacts between defendant and New Jersey, as alleged by plaintiffs, were insufficient to establish personal jurisdiction over defendant. The trial court did not address the issue of general jurisdiction. Rather, in its opinion, it stated: "Plaintiff concedes defendant's contacts with New Jersey do not reach the threshold for general jurisdiction." The court did not state when or where plaintiffs made such concession. 5 A-0924-16T4 On appeal, plaintiffs first challenge the trial court's decision concerning specific jurisdiction. They argue they produced sufficient evidence to establish specific jurisdiction over defendant and the trial court erred by finding to the contrary. They assert the record did not support the trial court's findings. Finally, they argue the trial court incorrectly applied the law. Plaintiffs also challenge the trial court's determination concerning general jurisdiction. They assert the trial court erroneously concluded they conceded general jurisdiction.2 They argue the defendants have "continuous and substantial" contacts with New Jersey for the purposes of establishing general jurisdiction. A challenge to a trial court's personal jurisdiction over a party presents a mixed question of law and fact. For that reason, a trial court must make findings of "jurisdictional facts . . . in order for the jurisdictional decision to be made and hence defendant's right to proceed determined." Citibank, N.A. v. Estate of Simpson, 290 N.J. Super. 519, 531 (App. Div. 1996). Generally, 2 Plaintiffs also assert the trial court failed to consider other issues, such as venue and the enforceability of a forum selection clause. In view of our determination that the trial court did not have personal jurisdiction over defendant, we need not address these issues. 6 A-0924-16T4 disputed jurisdictional facts must be resolved at an evidentiary hearing. Ibid. "We review the [trial] court's factual findings with respect to jurisdiction to determine whether they were supported by substantial, credible evidence . . . ." Mastondrea v. Occidental Hotels Mgmt. S.A., 391 N.J. Super. 261, 268 (App. Div. 2007). Our review of a trial court's legal conclusions concerning personal jurisdiction is plenary. That is so because "[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, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted); see also Rippon v. Smigel, 449 N.J. Super. 344, 358 (App. Div. 2017). We begin our analysis of the case before us by noting "[a] state court's assertion of jurisdiction exposes defendants to the State's coercive power, and is therefore subject to review for compatibility with the Fourteenth Amendment's Due Process Clause." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 918-19 (2011) (citing Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). Thus "the general rule [is] that territorial presence in the forum is the basic prerequisite for subjecting a defendant to its in personam judgment." Estate of Simpson, 290 N.J. Super. at 526. Absent "actual territorial presence, in personam 7 A-0924-16T4 jurisdiction may be predicated upon the defendant's contacts with the forum provided they meet the standard of minimum contacts . . . such that maintenance of the suit in the forum does not offend 'traditional notions of fair play and substantial justice.'" Ibid. (quoting Int'l Shoe, 326 U.S. at 316). In determining whether a defendant's contacts satisfy the International Shoe standard and thus due process, a court must consider whether it has either specific or general jurisdiction. If a claim "is related to or arises out of the contacts in the forum," then the forum state's court has specific jurisdiction. Id. at 526-27. If a defendant "is subject to any claim that may be brought against him in the forum state whether or not related to or arising out of the contacts themselves," the forum state's court has general jurisdiction. Ibid. The burden is upon the plaintiffs "to allege or plead sufficient facts with respect to jurisdiction." Blakey v. Cont'l Airlines, 164 N.J. 38, 71 (2000). A "plaintiff must establish defendant's contacts with the jurisdiction through the use of 'sworn affidavits, certifications, or testimony.'" Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443, 454 (App. Div. 1998) (quoting Catalano v. Lease & Rental Mgmt. Corp., 252 N.J. Super. 545, 547-48 (Law Div. 1991)). "In the early stages of a proceeding 'where the factual record consists of only pleadings and 8 A-0924-16T4 affidavits, plaintiff's burden is satisfied by establishing a prima facie case of jurisdiction.'" Ibid. (quoting Cresswell v. Walt Disney Prod., 677 F. Supp. 284, 286 (M.D. Pa. 1987)). In the case before us, we first address — and reject — plaintiffs' argument that the trial court had specific jurisdiction over defendant. Specific jurisdiction is present when the "cause of action arises directly out of a defendant's contacts with the forum state." Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 119 (1994) (citation omitted). Whether "minimum contacts" are present for the purposes of specific jurisdiction depends upon "the relationship among the defendant, the forum, and the litigation." Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323 (1989) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). In order for a court to exercise specific jurisdiction over a defendant, there must be "an 'affiliatio[n] between the forum and the underlying controversy,' principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation." Fairfax Fin. Holdings Ltd. v. S.A.C. Capital Mgmt., L.L.C., 450 N.J. Super. 1, 68 (App. Div. 2017) (alteration in original) (quoting Goodyear Dunlop Tires Operations, S.A., 564 U.S. at 919) (quoting Arthur T. Von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev., 1121, 1136 (1996))). 9 A-0924-16T4 Stated differently, "when the defendant is not present in the forum state, 'it is essential that there be some act by which the defendant purposefully avails [itself] of the privilege of conducting activities within the forum state, thus invoking the benefit and protection of its laws.'" Baanyan Software Servs., Inc. v. Kuncha, 433 N.J. Super. 466, 475 (App. Div. 2013) (quoting Waste Mgmt., 138 N.J. at 120 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). It is "essential" the foreign corporation "purposely avails" itself of the privilege of conducting activities within the forum state, such that it will not be hauled into court based upon "random, fortuitous, or attenuated contacts or as a result of the unilateral activity of some other party." Waste Mgmt., 138 N.J. at 120-121 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). Here, plaintiffs' cause of action did not arise "directly out of" defendant's contacts with New Jersey. The incident giving rise to the cause of action occurred at the Beaches resort on February 3, 2014, when plaintiffs consumed an allegedly tainted meal at the Soy restaurant. All activities relating to the preparation and service of food occurred at the Soy restaurant. The facts in plaintiff Michele Collins's affidavit make clear there was no "'affiliatio[n] between the forum and the underlying controversy,' principally, activity or an occurrence that takes 10 A-0924-16T4 place in the forum State and is therefore subject to the State's regulation." Fairfax Fin. Holdings Ltd., 450 N.J. Super. at 68 (alteration in original) (quoting Goodyear Dunlop Tires Operations, S.A., 564 U.S. at 919 (quoting Mehren & Trautman, 79 Harv. L. Rev. at 1136)). Plaintiffs' arguments on appeal are premised upon a meeting with a travel agent in New Jersey prior to their trip to St. Lucia, which predated their 2013 and 2014 trips to Turks and Caicos, as well as advertisements they saw prior to their 2013 trip. Assuming these activities could somehow be imputed to defendant, they do not establish specific jurisdiction. Plaintiffs' cause of action arose out of conduct that occurred in Turks and Caicos during the 2014 trip, which was solicited and booked in 2013 in Turks and Caicos, not New Jersey. "[C]ontacts with a state's citizens that take place outside the state are not purposeful contacts with the state itself." O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007) (citation omitted). Thus, plaintiffs' 2014 injury does not arise "directly out of" any alleged contacts that occurred between defendant and New Jersey prior to the 2013 trip to Turks and Caicos. Waste Mgmt., 138 N.J. at 119. Plaintiffs did not allege nor plead sufficient facts to establish specific jurisdiction, and the trial court did not err by so finding. 11 A-0924-16T4 We turn to the question of general jurisdiction. Plaintiffs argue the trial court erred when it asserted they conceded the issue of general jurisdiction. They argue the defendants have "continuous and substantial" contacts with New Jersey for the purposes of establishing general jurisdiction. Plaintiffs' purported concession does not appear in the record of oral argument. The second point heading in plaintiffs' brief opposing the dismissal motion asserts the trial court has general jurisdiction over the defendants. Moreover, in support of their jurisdictional claim, plaintiffs submitted a certification from their attorney with sixteen exhibits purporting to demonstrate general affiliations between the defendant and New Jersey. Lastly, during oral argument, plaintiffs' counsel argued defendants have "general contacts which are ongoing and numerous and certainly substantial," which suggests plaintiffs believed they had established a prima facie case of general jurisdiction. Assuming the trial court erred in its statement concerning plaintiffs' concession, we nonetheless conclude the order dismissing plaintiffs' complaint was correct. "[W]e review orders and not, strictly speaking, reasons that support them." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005). Thus, "a correct result, even if predicated on an erroneous basis in fact or in law, will not be overturned on appeal." Ibid. 12 A-0924-16T4 (citations omitted). "A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." Goodyear Dunlop Tires Operations, S.A., 564 U.S. at 919 (citing Int'l Shoe, 326 U.S. at 317). Thus, "the inquiry under Goodyear is not whether a foreign corporation’s in- forum contacts can be said to be in some sense 'continuous and systematic,' it is whether that corporation’s 'affiliations with the State are so "continuous and systematic" as to render [it] essentially at home in the forum State.'" Daimler AG v. Bauman, 571 U.S. ____, 134 S. Ct. 746, 761 (2014) (alteration in original) (quoting Goodyear Dunlop Tires Operations, S.A., 564 U.S. at 919). The United States Supreme Court has explained "only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there." Id. at 760. "With respect to a corporation, the place of incorporation and principal place of business are 'paradig[m] . . . bases for general jurisdiction.'" Ibid. (alterations in original) (quoting Brilmayer, et al., A General Look at General Jurisdiction, 66 Tex. L. Rev. 721, 735 (1988)). Although these paradigm bases for general jurisdiction over corporations are not exclusive, to be subject to a forum's 13 A-0924-16T4 general jurisdiction a corporation must be "so heavily engaged in activity in [the forum State] 'as to render [it] essentially at home' in that State." BNSF Ry. v. Tyrrell, 581 U.S. ___, 137 S. Ct. 1549, 1559 (2017) (second alteration in original) (quoting Daimler AG, 134 S. Ct. at 751). The Supreme Court suggested Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952), "exemplified such a case." BNSF Ry., 137 S. Ct. at 1558. In Perkins, the defendant was forced by war to temporarily relocate its operations from the Philippines to Ohio. 342 U.S. at 447-48. "Because Ohio then became 'the center of the corporation’s wartime activities,' Daimler, 134 S. Ct. at 756, n.8, suit was proper there, Perkins, 342 U.S. at 448." BNSF Ry., 137 S. Ct. at 1558. Here, plaintiffs argue defendant's alleged affiliation with travel agents in New Jersey satisfies the general jurisdiction standard. They also argue defendant solicits business in New Jersey through general advertising. Plaintiffs support their argument regarding travel agents with several pages printed from the Sandals website, annexed to a certification of counsel. The first webpage is an access portal for travel agents. The second page provides an option for customers to "meet a certified Sandals specialist travel agent" within the United States, including New Jersey. The search result provided is a Liberty Travel agency in 14 A-0924-16T4 New Jersey. The website explains a certified Sandals travel agent undergoes "extensive training through our education program" and attends annual Sandals workshops. The third and fourth pages reference "Sandals Resorts Home-Based Travel Agents," including two such agents from New Jersey. The fifth page is a travel agent search result on the "Beaches Resorts for Everyone by Sandals" website, which again identifies "Beaches Specialists" in New Jersey. The sixth page is largely illegible, and its origin is not explained in the certification of counsel. The remaining pages are taken from the websites of various New Jersey travel companies that advertise themselves as Sandals or Beaches experts or specialists based in New Jersey. Plaintiffs support their argument regarding advertising efforts through several exhibits. First, counsel for plaintiffs annexed a page that references Beaches billboards, but he did not explain where this page was obtained or how it is proof that such billboards are located in New Jersey. The next exhibit is a Sandals Barbados advertisement in the New York Times Magazine. Counsel for plaintiffs certified he received the advertisement at his home in New Jersey on July 2, 2016. The next exhibit is alleged to be a brochure that references a Sandals resort, but it is unauthenticated. Similarly, counsel attached what he described as an advertisement for a painting studio offering a free trip to 15 A-0924-16T4 a Sandals resort, but did not authenticate the advertisement. Finally, counsel for plaintiffs annexed two hearsay articles from an internet news site. The first describes a travel agency in New Jersey and its interactions with Sandals. The second describes a New Jersey couple's interactions with a Sandals resort. Assuming all plaintiffs' exhibits were properly submitted on the motion record, see Rule 1:6-6, defendant's alleged contacts with New Jersey do not rise to the level of establishing defendant is "at home" in New Jersey. New Jersey is not defendant's place of incorporation or principal place of business. Defendant does not employ any individuals or agents in New Jersey and has no physical location or mailing address in New Jersey. In short, defendant's alleged advertising and affiliation with travel agents, even if true, do not establish defendant is "so heavily engaged in activity in [New Jersey] 'as to render [it] essentially at home' in [this] State." BNSF Ry., 137 S. Ct. at 1559 (second alteration in original) (quoting Daimler, 134 S. Ct. at 751). The Superior Court did not have general jurisdiction over defendant. Plaintiffs next contend that aside from the issues of specific and general jurisdiction, the trial court erred by omitting to address their request for jurisdictional discovery. They insist they are entitled to conduct limited discovery on the 16 A-0924-16T4 jurisdictional issues. Although the trial court did not address the issue in its opinion, a remand on that issue is unnecessary. Generally, a "plaintiff's right to conduct jurisdictional discovery should be sustained" "if a plaintiff presents factual allegations [suggesting] with reasonable particularity the possible existence of the requisite contacts between [the party] and the forum state." Rippon, 449 N.J. Super. at 359 (alterations in original) (citation omitted). "[T]he record must support the existence of disputed or conflicting facts to warrant jurisdictional discovery." Ibid. (citing Reliance Nat'l Ins. Co. In Liquidation v. Dana Transp., 376 N.J. Super. 537, 551 (App. Div. 2005)). That is not the case here. As we have already discussed, plaintiff Michele Collins's own affidavit makes clear the Superior Court does not have specific jurisdiction over defendant. As to general jurisdiction, accepting plaintiffs' proofs on the motion record as true, plaintiffs have neither suggested with reasonable particularity the possible existence of requisite contacts nor established a dispute as to general jurisdictional facts. Ibid. For these reasons, we reject plaintiffs' argument that they were entitled to discovery on the jurisdictional issues. Affirmed. 17 A-0924-16T4

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Docket No.: a1031-16
Decided: 2018-02-12
Caption: DEUTSCHE BANK TRUST COMPANY v. PAUL T. PERSADIE
Status: unpublished
Summary:
PER CURIAM In this residential foreclosure case, Paul T. Persadie appeals from an October 6, 2016 final judgment in favor of Deutsche Bank Trust Company Americas (Deutsche). Persadie did not file an answer to the foreclosure complaint, although given the opportunity to do so after his motion to dismiss the complaint was denied. He opposed the entry of final judgment, arguing that Deutsche lacked standing to foreclose because it was not the holder of the note and, without specificity, that the amount due was incorrect. On appeal, Persadie argues that Deutsche bank did not present sufficient proof of its standing to foreclose. Because Deutsche obtained an assignment of the mortgage prior to filing the foreclosure complaint and also had possession of the note, we affirm. Persadie obtained an adjustable rate mortgage in the amount of $159,750 on August 12, 2005, which was recorded on September 6, 2005. Persadie defaulted on February 1, 2013. The mortgage was assigned to Deutsche on June 18, 2013. Deutsche filed the foreclosure complaint on August 21, 2013 and an amended complaint on December 12, 2014, correcting the address. Deutsche attached a certified copy of the assignment of mortgage and a certified copy of the note to its application for final judgment. In Deutsche Bank National Trust Co. v. Mitchell, 422 N.J. Super. 214, 225 (App. Div. 2011), "we held that either possession 2 A-1031-16T3 of the note or an assignment of the mortgage that predated the original complaint conferred standing." Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012) (emphasis added). This court has been informed that appellant filed a Petition for Chapter 13 Bankruptcy on July 25, 2017. The filing of this petition operates, under 11 U.S.C.A. § 362, as an automatic stay of actions and proceedings against the debtor. Due to the automatic stay provision, this court lacks jurisdiction to consider the merits of this appeal. Therefore, this appeal is dismissed without prejudice and without costs. Any party may move for reinstatement of this appeal, without costs, if the Bankruptcy Court lifts the automatic stay or allows for the prosecution of this appeal, or after the bankruptcy proceedings are complete. Dismissed. 3 A-1031-16T3

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Docket No.: a1048-16
Decided: 2018-02-12
Caption: GURBIR S. GREWAL ATTORNEY GENERAL OF THE STATE OF NEW JERSEY v. WENDELL STEINHAUER
Status: unpublished
Summary:
PER CURIAM This matter having been amicably adjusted and the parties having stipulated to the dismissal of this appeal, the appeal is dismissed with prejudice and without costs. 2 A-1048-16T2

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Docket No.: a1321-16
Decided: 2018-02-12
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.D.-M.
Status: unpublished
Summary:
PER CURIAM Defendant C.D.-M. (Carl) appeals from a Family Part order terminating his parental rights to his three minor children, C.D.- O. (Chelsea), H.D.-O. (Harry) and M.D.-O. (Michael) (collectively, children).1 Carl contends that the Division of Child Protection and Permanency (Division) failed to prove each prong of the best interests test of N.J.S.A. 30:4-15 and N.J.S.A. 30:4-15.1. In a comprehensive and well-reasoned 122-page written decision, Judge Richard C. Wischusen found the Division had satisfied the four prong test by clear and convincing evidence and held that the termination was in the children's best interests. In re Guardianship of K.H.O., 161 N.J. 337, 354 (1999). Based on our review of the record and applicable law, we are satisfied the 1 Pursuant to Rule 1:38-3(d)(12) and Rule 5:12-1, we use pseudonyms for the parents, the children, the resource parents and the paternal aunt and uncle to protect their confidentiality. 2 A-1321-16T5 evidence in favor of the guardianship petition adequately supports the termination of Carl's parental rights. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2009) (holding that a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we affirm. The evidence is set forth in detail in the judge's opinion. A summary will suffice here. Carl is the biological father of Harry and Michael, and is listed as Chelsea's father on her birth certificate. Results obtained from a paternity test revealed Carl is not Chelsea's biological father. In April 2015, the Division informed H.O. (Helen), the biological mother of all three children, that C.R. (Cole) was the biological father of Chelsea. Helen was unaware of Cole's whereabouts.2 In October 2014, the Division received a referral stating that Helen left the family residence and never returned; and Carl was experiencing difficulty caring for the children. Since Helen's abandonment in June 2014, Carl commenced a pattern of leaving the children with his brother H.D.M. (Henry) and Henry's wife, C. – 2 During trial, Cole contacted the Division. With the assistance of counsel, Cole surrendered his parental rights to Chelsea on September 14, 2016. Neither Cole nor Helen appealed. 3 A-1321-16T5 M.D.M. (Cindy). By September 2014, Carl presented Henry with a notarized letter that gave parental custody of the children to Henry and Cindy. The children remained in their care until November 2014, when due to family and financial concerns expressed by Henry, the Division requested that Carl retrieve his children to reside with him.3 Carl was reunited with the children and together they resided in a "living room area of a single-family home." The Division provided emergency funds for food and an initial rental payment conditioned upon Carl finding sustainable housing. In December 2014, Carl notified Division caseworker Fabiola Ricaldi that he and the children slept in the basement of the building where they resided because he was evicted from the residence for non-payment of rent. Ricaldi met with Carl and observed him to be intoxicated. She also observed Carl had facial injuries, which according to Carl, were the result of a fistfight. Due to concerns regarding Carl's stability, parenting skills, substance abuse, and financial ability to care for the children, an emergency removal was effectuated by the Division. N.J.S.A. 9:6-8.29. 3 Henry testified that it was Carl's decision to retrieve the children. Henry denied making a statement that he was no longer able to serve as the children's caregiver. 4 A-1321-16T5 At the time of the removal, the Division contacted Henry and Cindy to explain the placement process to obtain custody of the children, if they could establish their immigration status, but they declined consideration.4 Thereafter, Henry was sent a rule out letter from the Division, which was not appealed, and the children were placed in non-relative resource care with the Rodgers family. Following the children's placement, the Division offered Carl reunification services, which included visitation and referrals for substance abuse and psychological evaluations. The record is replete with accounts of non-compliance or failed attempts by Carl, due to his relapse with alcoholism, to avail himself of the services provided. Throughout this time, the Division completed satisfactory monthly visits with the children and the Rodgers family. A decision was made by the Division to transfer the case to the adoption unit. The Division filed a guardianship complaint in January 2016. A nineteen-day guardianship trial commenced on July 18, 2016, whereby the Division sought termination of parental rights of Carl and Helen. The Division took the position that it was in the 4 Ricaldi was unaware that Division policy permitted the placement of children in their custody to be placed with undocumented resource parents under certain circumstances. 5 A-1321-16T5 children's best interest to be adopted by Henry and Cindy. The Law Guardian agreed with the Division's recommendation of parental rights termination, but argued in favor of adoption by the Rodgers family. Carl, through counsel, opposed termination of his rights, but argued in the alternative that it would serve the children's best interest to be adopted by Henry and Cindy. In addition to fact witnesses, psychological expert Dr. Frank J. Dyer testified on behalf of the Division, psychological expert Dr. Carolina Mendez testified on behalf of the Law Guardian, and Dr. Aida Ismael-Lennon, also a psychological expert, testified on behalf of Carl. Dyer determined that termination of Carl's parental rights would not negatively impact the children and that permanency would benefit the children's well-being and emotional stability. He opined that permanency could be achieved in either prospective home, although removing Michael and Harry from the Rodgers' home would "have a disturbing and distressing negative psychological impact" because "it does appear that [the Rodgers] are these children's psychological parents." Dyer also testified that the common culture and a sufficient positive connection between the children, Henry and Cindy, was enough to "prevent any effect that would cause these children to have serious psychological damage or long-lasting psychological damage." 6 A-1321-16T5 Mendez expressed concerns regarding Carl's ability to independently parent the children because "he doesn't even acknowledge that he has a drinking problem." Mendez opined that the children are "closely bonded" to the Rodgers and recognize them as their "primary attachment figure[s]" or "psychological parent[s]." Mendez further stated that all three children would encounter "severe and enduring harm" if their relationship with the Rodgers was severed. Lennon opined that although Henry and Cindy were capable of providing a nurturing environment for the children, the children would suffer "long and enduring harm" if removed from the Rodgers' home. A judgement terminating Carl's parental rights and approving a permanency plan of adoption by the Rodgers was issued on November 16, 2016, accompanied by the judge's opinion, which gave thoughtful attention to the importance of permanency and stability. This appeal followed. On this appeal, our review of the judge's decision is limited. We defer to his expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and we are bound by the factual findings so long as they are supported by sufficient credible evidence. M.M., 189 N.J. at 279 (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We conclude the factual 7 A-1321-16T5 findings by the judge are fully supported by the record and the legal conclusions drawn therefrom are unassailable. Affirmed. 8 A-1321-16T5

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Docket No.: a1857-16
Decided: 2018-02-12
Caption: JOSE PEREZ v. WARREN A. CHIODO
Status: unpublished
Summary:
PER CURIAM Defendants Warren A. Chiodo, DPM, and University Hospital appeal from a December 2, 2016 Law Division order granting plaintiffs Jose and Myriam Perez's motion for leave to file a late notice of tort claim pursuant to N.J.S.A. 59:8-9. We reverse and remand for a Lopez1 hearing on all issues related to the motion. On January 24, 2015, plaintiff Jose Perez (Perez) was on duty as a police officer when he slipped and fell on ice and sustained an injury to his left ankle. He was referred to Dr. Chiodo, who was a podiatrist employed by University Hospital, a public healthcare facility of the State of New Jersey. Dr. Chiodo diagnosed Perez with a left ankle fracture and, on February 2, 2015, performed surgery on the ankle. According to Perez's certification, he thereafter experienced pain in the ankle, and he had to use crutches and a walker boot to ambulate. Perez claimed that Dr. Chiodo assured him that these conditions were normal post-operative complications of the surgery. Perez certified that after his last appointment with Dr. Chiodo on June 23, 2015, he "began looking for another physician as [his] ankle was not getting any better and [he] was still incapable of putting any weight on [it] and [he] was still on crutches and wearing a [walker] boot." He consulted another 1 Lopez v. Swyer, 62 N.J. 267 (1973). 2 A-1857-16T2 physician on July 22, 2015, who recommended that Perez undergo a second surgical procedure to repair his left ankle. However, Perez alleged that this doctor "never suggested or intimated that the reason that [he] needed another surgical procedure was due to anything that Dr. Chiodo had done during the first surgery." Perez did not supply a certification from the second doctor corroborating these hearsay statements. On August 3, 2015, the second physician performed revision surgery on Perez's ankle. Perez alleged that he was thereafter confined to his home, except when he went out for physical therapy. Perez developed an infection and, on November 16, 2015, the second doctor performed another surgery to remove the screws in Perez's ankle. Perez claimed that he was now using a walker, a cane, and a boot to get around, but could still not leave the home to consult with an attorney, although he continued to go out for physical therapy and doctor's appointments. Sometime in February 2016, Perez met with his attorney at the attorney's office. According to the certifications submitted by Perez and his attorney, they discussed whether Perez might be able to institute a "third[-]party action against the owner of the property where he fell." After several months, the attorney determined that "no third[-]party action was viable." Neither of the certifications specifically addresses whether they also 3 A-1857-16T2 discussed Perez's ongoing medical complaints during their conversations. Perez certified that sometime in July 2016, he "began to wonder why [he] needed a second surgery if the first surgery was done correctly." Perez asserted he then asked his attorney to send his X-rays to a podiatric surgeon for review. "On or about August 30, 2016,"2 that surgeon advised Perez's attorney "that it was his opinion that Dr. Chiodo did deviate from acceptable standards of podiatric surgery." According to Perez and his attorney, "[t]his was the first time that [Perez] became aware of the fact that there may be a viable cause of action for podiatric malpractice against Dr. Chiodo." On September 20, 2016, Perez's attorney filed a notice of claim upon Dr. Chiodo and University Hospital. He thereafter filed a motion for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. Despite the many factual issues raised in Perez's and his attorney's certifications concerning the date Perez's malpractice claim accrued, the trial judge did not conduct an evidentiary hearing or oral argument. Instead, the judge simply issued an order on December 2, 2016, granting plaintiffs' motion 2 Neither of the certifications are clear as to when Perez's attorney received his expert's report. Both certifications state that this occurred "[o]n or about August 30, 2016[.]" 4 A-1857-16T2 and writing at the bottom of the order that the date of accrual of plaintiffs' cause of action was August 30, 2016. After defendants filed their notice of appeal, the judge issued a brief written decision pursuant to Rule 2:5-1(b). While acknowledging that the parties vigorously disputed when plaintiffs' cause of action accrued, he nevertheless found on the sparse record before him that "it was not possible for Perez to know he had a cause of action" until he received the expert's report on August 30, 2016. Therefore, the September 20, 2016 notice of claim was timely. This appeal followed. On appeal, defendants argue that the judge mistakenly exercised his discretion by granting plaintiffs' motion to file a late notice of claim. We agree. Under the Tort Claims Act, N.J.S.A. 59:1-1 to -12.3, a notice of claim must be filed within ninety days after the accrual of a cause of action. N.J.S.A. 59:8-8. A cause of action is generally considered to have accrued on the date of the injury. Beauchamp v. Amedio, 164 N.J. 111, 117 (2000). If, however, the date of the injury cannot be determined, courts will use the discovery rule to determine when the cause of action accrued. Ibid. It is well- established that the discovery rule applies to claims brought under the Act. McDade v. Siazon, 208 N.J. 463, 474-75 (2011); Beauchamp, 164 N.J. at 117. The discovery rule is an equitable 5 A-1857-16T2 tool created by courts to toll a limitations period by postponing the accrual of a cause of action. Dunn v. Borough of Mountainside, 301 N.J. Super. 262, 273 (App. Div. 1997). Under the discovery rule, a cause of action accrues when "the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another." Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001). Thus, the accrual date, and the resultant computation of the time limit, begins when a plaintiff knows or should know of the essential facts to advance a cause of action. Baird v. Am. Med. Optics, 155 N.J. 54, 68 (1998) (noting that the time limit begins to run when the injured party has actual or constructive knowledge of the material "facts indicating that [he or] she has been injured through the fault of another, not when a lawyer advises [him or] her that the facts give rise to a legal cause of action"). A plaintiff does not need to know the legal effect or "specific basis for legal liability" for a claim to accrue once the material facts of the case are known. Caravaggio, 166 N.J. at 246. When a plaintiff seeks to invoke the discovery rule, a preliminary hearing is often required to determine its applicability. Lopez, 62 N.J. at 275. An evidentiary hearing is especially critical in a case where, as here, credibility is at issue, ibid., or where the material facts regarding the date of 6 A-1857-16T2 discovery are in dispute. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 336 n.6 (2010). Here, Perez's credibility was clearly at issue and the material facts concerning when he knew or should have known that he had a cause of action were in sharp dispute. Perez alleged he had no idea he had a cause of action until "on or about August 30, 2016" when his attorney received the expert report. However, he also stated that "it became apparent to [him] that [he] was not getting any better" on July 23, 2015, and that he felt he needed "another physician" at that time. Perez also consulted with his attorney in person sometime in February 2016, but implied that they did not discuss his continued poor physical condition. These conflicting facts obviously raised factual issues concerning the discovery rule that could only be determined through an evidentiary hearing and the crucible of cross-examination. Therefore, we reverse and remand for a Lopez hearing. In remanding this matter, we do not suggest a preferred result, but only that the trial court should conduct a hearing to develop the facts and record upon which to base a reasoned decision on the issue of the accrual of plaintiffs' cause of action against defendants. After the trial court resolves the issue on remand of when plaintiffs' claim accrued, its next and separate task will be "to determine whether a notice of claim was filed within ninety days." 7 A-1857-16T2 Beauchamp, 164 N.J. at 118. If the court finds that the claim was untimely, it must next "decide whether extraordinary circumstances exist justifying a late notice." Id. at 118-19. Because the facts surrounding these issues were also contested and, therefore, cannot be addressed on the basis of the parties' certifications, the evidentiary hearing should also encompass these issues. Reversed and remanded. We do not retain jurisdiction. 8 A-1857-16T2

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Docket No.: a2587-15
Decided: 2018-02-12
Caption: STATE OF NEW JERSEY v. MOHAMMAD A. KHAN
Status: unpublished
Summary:
PER CURIAM Defendant Mohammad A. Khan was driving southbound on I-295 in West Deptford at 11:22 p.m. when his vehicle rear-ended another vehicle causing the tragic death of one of that vehicle's four occupants. A jury found defendant guilty as a first-time offender of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), and second-degree vehicular homicide, N.J.S.A. 2C:11-5(a). He was later sentenced to a six-year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals arguing: POINT ONE THE TRIAL COURT ERRED WHEN IT FAILED TO DEFINE NEGLIGENCE AFTER THE JURY SPECIFICALLY REQUESTED THAT DEFINITION DURING ITS DELIBERATIONS. POINT TWO THE TRIAL COURT ERRED IN ADMITTING STATEMENTS OF DEFENDANT MADE PRIOR TO BEING INFORMED OF HIS MIRANDA1 RIGHTS. POINT THREE THE TRIAL COURT SENTENCED DEFENDANT WITHOUT PROPERLY WEIGHING THE AGGRAVATING AND MITIGATING FACTORS AND WHETHER IT WAS APPROPRIATE TO SENTENCE APPELLANT UNDER N.J.S.[A.] 2C:44-1[f](2). We affirm regarding the admission of defendant's statement, but reverse and remand for retrial on the basis that the trial court should have responded to the jury's question seeking a definition of negligence before the jury reached its verdict. 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 A-2587-15T4 In addressing defendant's contention in Point I, we focus on the evidence related to defendant's trial strategy, the jury's deliberations, and the court's response to the jury's question. In opening and closing arguments, defendant contended that he was not guilty of vehicular homicide because his conduct was negligent not reckless. Our vehicular homicide statute requires the State to prove that defendant drove recklessly and caused the death of another person. N.J.S.A. 2C:11-5(a). As defined by N.J.S.A. 2C:2-2(b)(3), "[a] person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct." Where the State proves a defendant was guilty of DWI, there is "an inference that the defendant was driving recklessly." N.J.S.A. 2C:11-5(a). A blood alcohol content (BAC) of 0.08 percent or more is a per se DWI violation. N.J.S.A. 39:4-50(a). Defendant did not dispute the State's proofs that his blood drawn at the hospital four hours after the accident indicated his BAC was 0.081 percent with an uncertainty factor of plus minus 0.003 percent. According to testimony of the investigating state trooper, defendant stated the accident was caused when he fell asleep at the wheel moments before the collision. Because the trooper detected alcohol on defendant's breath, along with 3 A-2587-15T4 defendant's slow, slurred speech, and droopy eyes, he asked defendant if he had been drinking. Defendant replied, that "he did not drink" because "[i]t was against his religion". Unswayed by the remarks, the trooper conducted three field sobriety tests on defendant, which he failed. Defendant also posited the theory that the victim's car had just pulled onto the highway traffic from the shoulder lane through the testimony of another trooper, who testified for the State regarding an accident report he prepared based on his analysis of the accident. The trooper concluded the victim's car was traveling 51 mph, where the speed limit was 65 mph, with a pre-impact average speed of 48 mph prior to impact by defendant's vehicle. He stated defendant's vehicle was traveling between 105 mph and 113 mph prior to impact, with an average pre-impact speed of 96 mph. Defendant asserted the trooper's assessment of his vehicle's speed was exaggerated because a video depicts that seconds before the accident, his vehicle was travelling at the same rate of speed as other vehicles on the highway. After deliberating for a few hours, the jury submitted a question to the court asking for the definition of negligence. Although defense counsel did not initially request such a charge, he proposed the court provide the jury "either the definition of civil negligence from the civil jury charge or, in the alternative, 4 A-2587-15T4 an abbreviated version of [N.J.S.A.] 2C:2-3 causation charge. The court declined both the jury's request and counsel's alternative, with no objection from the State. The court explained that since the charge defined recklessness, an element of the vehicular homicide statute offense, it was not appropriate to define negligence, which was not an element of the offense. After the court advised the jury in a note stating, "no, I will not give you the definition of negligence," the jury continued deliberating for about eight minutes before retiring for the day. Before the jury left, the court instructed the jury that once all the jurors reported to the jury room the next morning, it could continue deliberations. Prior to dismissing the attorneys, the court informed them that, if they wanted to, they could submit briefs regarding the propriety of giving the jury the definition of negligence as it requested. Later that evening, the defense faxed a letter brief to the court. While the jury resumed its deliberations at 9:00 the next morning, the court was conducting a conference in chambers with the attorneys to discuss defendant's legal submission concerning the jury's request for a definition of negligence. At some time between 9:10 a.m. and 9:15 a.m., the jury advised the court that it reached a verdict. Before the jury returned to the courtroom to announce its verdict, defendant made a motion for a mistrial 5 A-2587-15T4 because the jury reached a verdict without receiving the requested guidance on negligence. The court denied the motion, determining it was unpersuaded by defendant's arguments to reverse its decision not to instruct the jury on negligence. The jury was then brought into the courtroom and rendered its guilty verdict. A defendant's right to a fair criminal trial requires that the jury be given understandable jury instructions. State v. Galicia, 210 N.J. 364, 386 (2012). Consistent with that principle, erroneous instructions on material issues are presumed to be reversible error. State v. Marshall, 173 N.J. 343, 359 (2002). In some cases, the trial court must do more than read the elements of the offense being charged to enable the jury to fulfill its obligations. State v. Concepcion, 111 N.J. 373, 379 (1988). Thus, "[a]n instruction that is appropriate in one case may not be sufficient for another case." Ibid. One such case is State v. Atwater, 400 N.J. Super. 319 (App. Div. 2008). There, the defendant was charged with vehicular homicide and was not allowed to argue negligence in summation, "nor did [the court] respond to the jury's questions by comparing recklessness with other mental states." Id. at 332. Evidence was presented by the two medical examiners that the victims' deaths were accidental. Ibid. And since the jury's questions "made it clear that they were confused on the mental state required for a 6 A-2587-15T4 finding of guilt on vehicular homicide[,]" we concluded the trial court should have "clarif[ied] the jury's confusion on the requisite mental state" by distinguishing between recklessness and negligence. Ibid. The situation before us calls for a similar result. In fact, even more so here, because the jury specifically requested the definition of negligence. While the court was correct in its reflection that negligence was not an element of vehicular homicide, it should have honored the jury's request given that it was not contrary to our court rules and evidentiary standards, and would have helped the jury determine if defendant's conduct was reckless, an element of the offense. We disagree with the State's position that the court was correct in refusing to define negligence because it was irrelevant whether defendant's conduct amounted to negligence and the definition would have distracted the jury from considering defendant's proper state of mind. We view the jury's request as an effort to clarify the meaning of reckless, a required element of vehicular homicide. The fact that the jury deliberated for approximately twenty minutes after its request was declined, suggests that it may not have had an understanding of the recklessness element of vehicular homicide to properly consider whether the State had met its burden of proof and defaulted by 7 A-2587-15T4 finding defendant guilty. Accordingly, we reverse and remand for a new trial. On remand, the definition of negligence should only be provided if requested by the jury. Although our reversal on the jury charge disposes of the appeal, we will address the Miranda issue raised by defendant to provide guidance at the retrial. As noted, when the investigating trooper arrived at the accident scene and asked defendant whether he had been drinking, defendant replied he does not drink because it is against his religion. Defendant filed a pre-trial motion sought to exclude the entire statement. After hearing the testimony of the trooper and defendant, as well as the arguments, the court only agreed to exclude defendant's reference to his religion. Defendant argues the court erred because the trooper was conducting a custodial interrogation of an accident investigation, which under Berkemer v. McCarty, 468 U.S. 420 (1984), required that he be advised of his Miranda rights before he was questioned. We disagree. Miranda protects a defendant's right against self-incrimination based upon "the Fifth Amendment to the United States Constitution and this state's common law, now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503." State v. S.S., 229 N.J. 360, 381 (2017) (citation omitted). Here, defendant's statement that he was not drinking was not 8 A-2587-15T4 incriminating but exculpatory. Consequently, Miranda did not protect the statement. Moreover, even if we somehow consider the statement was incriminating, the court properly allowed its admission. The court found that the trooper was investigating a serious motor vehicle accident, and upon observing that defendant appeared to be inebriated, the trooper had the right to ask defendant if he had been drinking. The court properly reasoned the trooper was not required to advise defendant of his Miranda rights to remain silent and not to incriminate himself until the trooper determined there was probable cause to arrest defendant after defendant failed the field sobriety tests. Because we are remanding this matter for retrial, we need not address defendant's argument in Point III regarding the court's weighing of the aggravating and mitigating factors and decision not to sentence defendant in the third-degree range rather than the second-degree range. Affirmed in part, reversed in part and remanded for retrial. 9 A-2587-15T4

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Docket No.: a4465-15
Decided: 2018-02-12
Caption: SHERRY DUDAS v. STEVEN P. GRUENBERG
Status: unpublished
Summary:
PER CURIAM Plaintiffs Sherry Dudas and Jim Kinsel and their company Holloway Land, LLC (Holloway)1 appeal from the May 10, 2016 summary judgment dismissal of their legal malpractice action against defendants Steven P. Gruenberg, Esquire and Scholl, Whittlesey and Gruenberg, LLC (SWG). We affirm. I. The claim of legal malpractice arises out of a dispute between plaintiffs and neighboring property owners. On August 20, 2007, plaintiffs purchased farm property on Chesterfield-Georgetown Road in Chesterfield. In connection with this purchase, plaintiffs procured a title insurance policy issued by Commonwealth Land Title Insurance Company (Commonwealth). Pertinent to this appeal, the policy specifically excludes title risks that are known to the property owner, but not to Commonwealth, as of the policy date, unless they appear in the public records. The policy also contains exceptions for: (1) easements, encroachments, and boundary line disputes that a survey would disclose, and which are not shown by the public record; and (2) any facts about the land that a correct survey would disclose, and which are not shown by the public record. 1 For convenience and ease of reference, we will hereafter refer to plaintiffs collectively unless the context makes clear that we refer to any of them separately. 2 A-4465-15T1 In October 2009, John and Carleen Niemiec (the Niemiecs) filed a lawsuit against plaintiffs claiming they had an access agreement that allowed them to travel over a lane on plaintiffs' adjoining property (the easement litigation). The Niemiecs sought an injunction restraining plaintiffs from obstructing or otherwise interfering with their use of the access easement, together with compensatory and punitive damages. Attached to the Niemiecs' verified complaint was a May 13, 2009 letter from Kinsel to John Niemiec. In relevant part, Kinsel's letter stated: "Prior to the closing on [our] property . . . you advised us you believed you had an access easement on our farm lane which is owned by us in fee simple." Plaintiffs retained defendants to represent them in the easement litigation. Plaintiffs and Gruenberg appeared in court on April 15, 2011, for oral argument on a motion to enforce litigant's rights. During oral argument, the judge engaged counsel for the parties in settlement discussions. Plaintiffs then went into the jury room with Gruenberg and the Niemiecs' counsel, where the settlement terms were reduced to writing. The judge then entered an order incorporating the parties' handwritten settlement. In relevant part, the April 15, 2011 order dismissed with prejudice both the Niemiecs' complaint and plaintiffs' counterclaim, and allowed the Niemiecs a twelve-foot easement over 3 A-4465-15T1 plaintiffs' property for the limited purpose of ingress and egress only. Shortly thereafter, plaintiffs terminated defendants' services and retained the law firm of Wilentz, Goldman & Spitzer, P.A. (Wilentz) to represent them in the easement litigation. On May 4, 2011, Wilentz filed a motion on behalf of plaintiffs seeking to vacate the April 15, 2011 order because it purportedly violated an existing restrictive easement and various statutes. On July 29, 2011, the court granted the motion in part and amended the April 15, 2011 order "to reflect that it is subject to the review and approval of all other regulatory authorities, including but not limited to – township, county, and state." In September 2011, plaintiffs moved to vacate the April 15, 2011 order in its entirety on the basis that the settlement was entered into involuntarily and without their authority. The trial court scheduled an evidentiary hearing on the motion and required Gruenberg to attend. However, prior to the hearing, Wilentz negotiated a new settlement with the Niemiecs on plaintiffs' behalf. Among other things, the May 11, 2012 settlement agreement vacated the April 15, 2011 order. Plaintiffs agreed to pay the Niemiecs $21,000 toward the cost of constructing a new driveway on the Niemiecs' property, and the Niemiecs agreed to relinquish any right to use the access lane on plaintiffs' property. 4 A-4465-15T1 Plaintiffs commenced the present legal malpractice action on July 12, 2013. Plaintiffs alleged defendants were negligent in failing to present a timely claim to Commonwealth for coverage under the title policy in the easement litigation. They also alleged Gruenberg committed malpractice by settling the easement litigation without their authorization. Defendants moved for summary judgment at the conclusion of discovery. In granting the motion, the trial court found: (1) plaintiffs had no valid claim for coverage against Commonwealth due to the policy's exceptions and exclusions; (2) plaintiffs failed to present expert testimony or case law that the title policy's exclusions and exceptions are invalid or that Commonwealth would have provided coverage had a claim been asserted against the policy; and (3) plaintiffs failed to present any expert testimony to support their claim that defendants' representation with respect to the settlement was deficient. The court entered an order on May 10, 2016, dismissing the complaint with prejudice. This appeal followed. II. When reviewing the grant of summary judgment, we analyze the decision applying the "same standard as the motion judge." Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). 5 A-4465-15T1 That standard mandates that summary judgment be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." [Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).] "To defeat a motion for summary judgment, the opponent must 'come forward with evidence' that creates a genuine issue of material fact." Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 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) (citations omitted). "When no issue of fact exists, and only a question of law remains, [we] [afford] no special deference to the legal determinations of the trial court." Templo Fuente, 224 N.J. at 199 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). To establish legal malpractice, plaintiffs were required to show that competent, credible evidence existed to support each of the elements of that negligence action, i.e., "1) the existence of an attorney-client relationship creating a duty of care upon the attorney; 2) that the attorney breached the 6 A-4465-15T1 duty owed; 3) that the breach was the proximate cause of any damages sustained; and 4) that actual damages were incurred." [Cortez, 435 N.J. Super. at 598 (quoting Sommers v. McKinney, 287 N.J. Super. 1, 9-10 (App. Div. 1996)).] The first element requires an attorney "to exercise on his client's behalf the knowledge, skill and ability ordinarily possessed and exercised by members of the legal profession similarly situated and to employ reasonable care and prudence in connection therewith." Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982). At a minimum, an attorney must take "any steps necessary" to properly handle a case, including carefully investigating the facts, formulating a legal strategy, filing appropriate papers, and communicating with the client. Ziegelheim v. Apollo, 128 N.J. 250, 260-61 (1992) (citing Passanante v. Yormark, 138 N.J. Super. 233, 238-39 (App. Div. 1975)). The second element requires a breach of these duties. Additionally, a plaintiff alleging legal malpractice must file an expert affidavit stating that there is a reasonable probability that the attorney's actions fell outside of acceptable professional standards. N.J.S.A. 2A:53A-27. As to the third element, plaintiffs must prove they suffered damages as a proximate consequence of defendants' breach of duty. Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 357 (2004). 7 A-4465-15T1 A. On appeal, plaintiffs renew their argument that defendants committed malpractice by failing to submit the Niemiecs' easement claim to Commonwealth to provide coverage and a defense under the title policy. In rejecting this contention, the motion judge found plaintiffs did not present expert testimony opining that Commonwealth would have defended or covered the claim in light of the clear terms of the policy, including its exclusions and exceptions. The judge concluded plaintiffs "failed to do that so there's not any evidence to present to the jury that the breach was the proximate cause of the damages." With respect to the third element of a malpractice action, "an attorney is only responsible for a client's loss if that loss is proximately caused by the attorney's legal malpractice[,]" that is, "the negligent conduct is a substantial contributing factor in causing the loss." 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 487 (App. Div. 1994). Therefore, a plaintiff bears the burden of showing, by a preponderance of the competent, credible evidence, "what injuries were suffered as a proximate consequence of the attorney's breach of duty." Id. at 488 (citing Lieberman v. Emp'rs Ins. of Wausau, 84 N.J. 325, 341 (1980)). The burden is not satisfied by mere "conjecture, surmise or suspicion." Ibid. (quoting Long v. Landy, 35 N.J. 44, 54 (1961)). Ordinarily, 8 A-4465-15T1 the measure of damages is what result the client would have obtained in the absence of attorney negligence. Garcia, 179 N.J. at 358. Thus, to prove such injury, "the client must demonstrate that he or she would have prevailed, or would have won materially more . . . but for the alleged substandard performance." Lerner v. Laufer, 359 N.J. Super. 201, 221 (App. Div. 2003). Plaintiffs submitted expert reports by Andrew Rubin, Esquire, and John A. Cannito, Esquire, to support their contention that defendants were negligent in failing to submit a timely claim to Commonwealth under the title insurance policy. As noted, the motion judge found this expert evidence insufficient to demonstrate that defendants' failure to submit the claim was the proximate cause of any damages plaintiffs sustained. We agree. Rubin's report dated June 17, 2014 states: "Commonwealth affirmed that if timely notice had been given, and if the case had not been settled, . . . it would have defended and covered the claim." This is an inaccurate recitation of Commonwealth's July 25, 2011 letter, which rejected plaintiffs' claim because it was untimely. It is true that Commonwealth stated: "As the [l]itigation involves an alleged easement on the Insured Property, this claim would at first appear to involve a covered matter." However, Commonwealth went on to state that it "retained the right 9 A-4465-15T1 to supplement this letter" and "to deny this claim based on additional grounds." It is uncontroverted that plaintiffs were aware of the Niemiecs' claimed access easement over their property prior to closing, that the easement was not shown on the public records, and Commonwealth was unaware of its potential existence when it issued the policy. As the motion judge recognized, these uncontroverted facts clearly implicated an exclusion from coverage under the policy. In his report, Rubin failed to explain if or why the exclusion would not apply to negate coverage. Rubin was questioned about this exclusion during his August 25, 2015 deposition. He responded, without any support, that the exclusion was "ambiguous" and not enforceable. Such response is insufficient to establish proximate cause because it merely represents Rubin's own personal interpretation of the policy, and, more importantly, ignores existing case law to the contrary. See Manchester Fund, Ltd. v. First Am. Title Ins. Co., 332 N.J. Super. 336, 346-47 (Law Div. 1999) (finding a similar policy exclusion unambiguous, thus precluding coverage and a defense for an insured who was aware of a title defect and failed to disclose it). Cannito's report and deposition testimony are no more helpful to plaintiffs' cause. In his July 21, 2014 report, Cannito acknowledged that, in denying coverage due to the untimely filing 10 A-4465-15T1 of the claim, Commonwealth reserved its rights under the policy, although its denial letter did not specifically mention whether any of the exclusions or exceptions applied. Cannito offered no opinion whether the policy's prior knowledge exclusion or the survey exceptions negated coverage. Rather, he stated only, "the insurer has the burden of proving that the claim falls outside the coverage under the policy or within the exceptions or exclusions." Cannito did, however, acknowledge Kinsel's May 13, 2009 letter, in which Kinsel stated John Niemiec advised him of his claimed access easement prior to closing. In his report, Cannito opined: "Whether or not this correspondence and the conditions depicted by a survey would have provided Commonwealth with the basis to ultimately deny coverage based on the exceptions and exclusions set forth in the [p]olicy is at best speculative." Cannito was then asked directly about the letter at his August 11, 2015 deposition. Cannito conceded Kinsel's letter reflected that plaintiffs knew of the Niemiecs' claim of a right to an easement on plaintiffs' property prior to closing. Cannito testified that Commonwealth's intent was to exclude from coverage risks that are known to the insured but not to the insurer as of the policy date. When asked squarely whether the exclusion applied in this case, Cannito responded: "I did not reach a conclusion one way or another." 11 A-4465-15T1 Simply put, neither Rubin nor Cannito provided a sufficient expert opinion that Commonwealth would likely have provided coverage or a defense had defendants submitted a claim under the title policy at the outset of the easement litigation. Without such an opinion, a jury would be left to speculate as to the result had the claim been timely presented. Consequently, the motion judge correctly concluded there was insufficient evidence to demonstrate that defendants' failure to timely submit the easement claim to Commonwealth was a proximate cause of plaintiffs' damages. B. Plaintiffs also renew their claim that defendants committed legal malpractice in settling the easement litigation without their authorization. Defendants dispute this contention, and the motion judge correctly recognized that summary judgment was inappropriate where such a disputed factual issue exists. Notwithstanding, the judge dismissed the complaint based on plaintiffs' failure to proffer any expert testimony to establish the standard of care owed by an attorney representing a client in a settlement, or whether defendants deviated from that standard. Generally, the testimony of an expert is required in legal malpractice cases to supply the standard of care against which the lawyer's conduct is to be evaluated. Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 14 (App. Div. 2006) (stating "[b]ecause the 12 A-4465-15T1 duties a lawyer owes to his client are not known by the average juror, a plaintiff will usually have to present expert testimony defining the duty and explaining the breach."); Taylor v. DeLosso, 319 N.J. Super. 174, 179 (App. Div. 1999). The existence of a duty of care and the standards defining such a duty are legal questions determined by the court as a matter of law. See Estate of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 322 (2013); Ziegelheim, 128 N.J. at 261-62. Plaintiffs do not dispute that their malpractice claim relating to the April 15, 2011 settlement is unsupported by expert testimony. Instead, they contend their claim is subject to the common knowledge exception to that requirement. This exception applies "where the questioned conduct presents such an obvious breach of an equally obvious professional norm that the fact- finder could resolve the dispute based on its own ordinary knowledge and experience and without resort to technical or esoteric information." Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 12 (App. Div. 2001). We are not persuaded by this argument. Here, it is undisputed that plaintiffs were present in court when the terms of the settlement were discussed on the record. They then had the opportunity to discuss the settlement with Gruenberg in the jury room, where the settlement was reduced to 13 A-4465-15T1 writing and incorporated into the April 15, 2011 order. Expert testimony was required to establish the standard of care Gruenberg owed to plaintiffs during the settlement process, and how his actions deviated from that standard of care. Accordingly, the motion judge properly determined the common knowledge exception did not apply, and the absence of expert testimony as to the standard of care and whether defendants breached their duty of care was fatal to plaintiffs' claim. Affirmed. 14 A-4465-15T1

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Docket No.: a4482-15
Decided: 2018-02-12
Caption: SHAMSIDDIN ABDUR-RAHEEM v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: unpublished
Summary:
PER CURIAM Appellant, an inmate at the New Jersey State Prison, appeals from a March 7, 2016 final decision of the Department of Corrections (DOC or agency) denying his two applications for permission to add the names of a private investigator and a private detective (collectively, the investigators) to his inmate telephone call list as legal contacts. We remand this matter to the DOC for reconsideration. Appellant is serving a life sentence for murder, kidnapping, and other offenses. Appellant asserts, as he did before the DOC, that he needs to consult with the investigators in order to pursue criminal and civil matters in which he is representing himself. His requests were denied on the grounds that the individuals were not attorneys, but were "business lines." The agency's decision also cited an unspecified "zero tolerance rule" and an unspecified "policy." On this appeal, as in his agency grievance, appellant contends that, pursuant to the DOC regulations, N.J.A.C. 10A:18-6.7(b), investigators are legal contacts. The agency's response is that N.J.A.C. 10A:18-6.7 governs contact visits by attorneys and their representatives, including their investigators. The regulation does not pertain to inmate telephone calls. The agency correctly notes that another regulation, N.J.A.C. 10A:18-8.6, governs legal telephone calls. That regulation provides: Legal telephone calls may be made to the following individuals or agencies for assistance in legal research and/or preparation of legal documents: 2 A-4482-15T2 1. Office of the Public Defender; 2. Regional Legal Services; 3. Court Clerks; 4. Attorneys; and 5. The Corrections Ombudsperson. [N.J.A.C. 10A:18-8.6(b).] Private investigators are not included on the list of approved legal telephone contacts. On this appeal, appellant contends that in denying him the right to contact investigators, the DOC is unconstitutionally denying him access to the courts. In support of his argument, he cites Feeley v. Sampson, 570 F.2d 364 (1st Cir. 1978), and Johnson v. Galli, 596 F. Supp. 135, 138 (D. Nev. 1984). The DOC responds that these cases are not on point because they address the rights of pre-trial detainees seeking to defend themselves against pending criminal charges. However, convicted persons also have the right to challenge the conviction on appeal or in post- conviction proceedings. R. 2:3-2; R. 3:22-1. They also have the right to represent themselves in those proceedings, as well as at trial. See R. 3:22-6(a); State v. Quixal, 431 N.J. Super. 502, 507-08 (App. Div. 2013). Moreover, criminal defendants may need the services of a private investigator in some matters. For example, a criminal defendant is not necessarily entitled to representation by the Office of the Public Defender for second or subsequent petitions 3 A-4482-15T2 for post-conviction relief (PCR). See R. 3:22-6(b). As a result, a defendant may have to proceed pro se on a second or subsequent PCR petition, and may need to use the services of a private investigator to contact witnesses and obtain affidavits. See State v. Porter, 216 N.J. 343, 355 (2013) (explaining the need for legally competent evidence to support a PCR petition) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). On the other hand, we can appreciate that the DOC may have security concerns about allowing inmates unfettered contact with persons outside the prisons. Having noted these issues, however, we conclude that the record presented to us is inadequate to enable us to address the inmate's constitutional claims. His administrative application did not specify what criminal matters he allegedly sought to pursue with the assistance of the investigators or why he needed their assistance. Nor did he specify what civil matters he was pursuing. In turn, the DOC response, both to appellant and to this court, relies entirely on its regulations, without explaining the agency's policy concerns and how they apply to appellant's situation. In addition, we cannot ascertain from this record whether denying appellant the right to put investigators on his telephone list as legal contacts will result in his being 4 A-4482-15T2 completely unable to have telephone contact with them, or whether it will only affect the conditions under which he can call them. For all of these reasons, we conclude that a remand is required. On remand, the DOC shall give appellant an opportunity to provide a more complete explanation for his requests. If the agency decides to deny the requests, it shall provide a more complete explanation for that decision, addressing the issues we have noted in this opinion. Remanded. We do not retain jurisdiction. 5 A-4482-15T2

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Docket No.: a0711-16
Decided: 2018-02-09
Caption: PHILIP A. SPATARO v. THE STEAKMASTER, INC.
Status: unpublished
Summary:
PER CURIAM Plaintiff Philip Spataro appeals from an order granting summary judgment in favor of defendant Chance O'Neill. We affirm in part and reverse in part. After joinder of issue, Steakmaster filed a motion for summary judgment. O'Neill filed a cross-motion for summary judgement and opposition to Steakmaster's summary judgment motion on August 23, 2016. All parties appeared for oral argument on September 16, 2016.1 After hearing arguments from both parties, the judge granted O'Neill's motion finding: (1) the heightened standard of intentional or reckless conduct applied pursuant to Crawn v. Campo, 136 N.J. 494 (1994); and (2) the conduct of O'Neill did not rise to the level of recklessness. An order was executed that same day granting O'Neill's motion for summary judgment and dismissing Spataro's complaint with prejudice. This appeal followed. We recite the following facts taken from the discovery record in a light most favorable to Spataro. Brill v. Guardian Life Ins. 1 Prior to the hearing on the motions, Steakmaster and Spataro entered into a settlement agreement. 2 A-0711-16T1 Co. of Am., 142 N.J. 520, 540 (1995). On August 21, 2012, O'Neill struck Spataro in the face with a golf club while demonstrating how to hit a golf ball at the Eagleswood Driving Range. Both young men were occupying the same stall when this occurred. Neither Spataro nor O'Neill were experienced golfers. In fact, this was the first time that Spataro had been to a golf range or swung a golf club. O'Neill had been to a driving range on approximately two occasions before the accident. Spataro and O'Neill arrived at Eagleswood Driving Range with friends around 9:30 p.m. The driving range has over thirty stalls, each partitioned by a short wall. There is a painted yellow line on the floor of the stalls, indicating the entrance. Multiple signs are posted in the vicinity of the stalls that noted, "All persons using the facility do so at their own risk." Each individual stall also had posted signs that specified the "Driving Range Rules." The first rule stated, "Only one person allowed per tee area." The fifth rule indicated, "When walking into the area, keep a safe distance from occupied tees." None of the group of friends had a recollection of reading the posted signs. After obtaining golf balls and clubs, Spataro, O'Neill, and their friends occupied separate stalls. Spataro requested that O'Neill demonstrate for him how to properly hit a golf ball. Upon entering Spataro's stall, O'Neill 3 A-0711-16T1 stated, "All right, get back," and set up a golf ball on the tee. O'Neill testified that he thought Spataro had moved out of the tee stall area "outside of the two-foot-wide yellow line." However, O'Neill never confirmed this by actual observation. After O'Neill demonstrated to Spataro how to position his feet, how to hold the club, and how to keep his arms straight, he swung the golf club. During the follow-through, the club struck Spataro in the face resulting in significant multiple facial injuries including permanent vision impairment and scarring. Spataro raises the following points on appeal: POINT I THE TRIAL COURT ERRED BY HOLDING THAT THE RECKLESSNESS/INTENTIONAL DUTY OF CARE SET FORTH UNDER CRAWN APPLIES TO INDIVIDUALS HITTING GOLF BALLS IN INDIVIDUAL DRIVING RANGE STALLS. POINT II IF CRAWN IS APPLICABLE, THE TRIAL COURT ERRED BY HOLDING O'NEILL'S CONDUCT WAS NOT RECKLESS AS A MATTER OF LAW. A. The trial court failed to properly evaluate the totality of circumstances and apply them to the governing standard. B. The trial court's holding that a reasonable person could never find O'Neill's conduct to be reckless is not supported by the totality of the evidence before the court. 4 A-0711-16T1 Additionally, the New Jersey Association for Justice raises the following arguments in its capacity as amicus curie: POINT I THE MOTION JUDGE FAILED TO APPLY THE APPROPRIATE LEGAL STANDARD APPLICABLE TO A MINOR INJURED IN A SPORTING ACTIVITY BY ANOTHER MINOR. A. Applying the appropriate legal standard applicable to minors, there are sufficient factual disputes which support submission of this matter to the jury. B. The negligence standard applies because [d]efendant qualifies as a de facto instructor to the [p]laintiff. POINT II THE NEGLIGENCE STANDARD APPLIES. When determining a motion for summary judgment, the trial judge must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non- moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, 142 N.J. at 540. 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 5 A-0711-16T1 matter of law." R. 4:46-2(c). When reviewing an order granting or denying summary judgment, we apply the same standard used by the trial court. Prudential Prop. & Cas. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). We turn first to the trial judge's conclusion that O'Neill was entitled to the benefit of the heightened standard articulated by our Supreme Court in Crawn. There, the Court considered the extent of a sports participant's duty to avoid inflicting physical injury on another player. Crawn, 136 N.J. at 496-97. In Crawn, the plaintiff was participating in an informal softball game in the position of catcher. Id. at 498. He sustained an injury when a base runner slid into home plate. Id. at 498-99. The Court held that "the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct." Id. at 497. In reaching the conclusion that a co-participant had no liability in the absence of reckless or intentional conduct, the Court relied on two policy considerations that supported that standard of care. Id. at 501. First, the benefit to be derived from promoting vigorous participation in athletic activities, and second, the need to avoid the "flood of litigation" that would be generated by participation in recreational sports if the standard were to be set at ordinary common law negligence. Ibid. The 6 A-0711-16T1 Court determined that those two policies outweighed the harm of immunizing conduct that would otherwise expose the responsible party to liability. Crawn, 136 N.J. at 502. In determining that the recklessness standard should apply, rather than the common law standard of ordinary negligence, the Court observed that the "rough-and-tumble of sports" between two equally situated participants "should not be second-guessed in courtrooms." Id. at 508. In subsequent decisions that applied Crawn, the reckless conduct standard was applied in circumstances where one player collided with, or somehow directly injured another player, in the course of the sporting activity. See Schick v. Ferolito, 167 N.J. 7, 11, 22 (2001) (applying the recklessness standard when a golfer hit an unannounced and unexpected second tee shot, or "mulligan," after all members of the foursome had already teed off); Obert v. Baratta, 321 N.J. Super. 356, 358-60 (App. Div. 1999) (applying the recklessness standard when a softball player sued his teammate for injuries sustained when the two collided while in pursuit of a fly ball during an informal intra-office game); Rosania v. Carmona, 308 N.J. Super. 365, 367-68 (App. Div. 1998) (applying the recklessness standard where a karate student brought an action against a martial arts academy and instructor); Calhanas v. S. Amboy Roller Rink, 292 N.J. Super. 513, 522-23 (App. Div. 1996) 7 A-0711-16T1 (applying the recklessness standard where a roller skater suffered a broken leg from collision with another skater). We are informed in our decision relative to the standard of care to be employed by Schick, where the Court held that "[T]he recklessness or intentional conduct standard of care applies generally to conduct in recreational sporting contexts, including golf." 167 N.J. at 22. As Justice LaVecchia noted, "[t]he applicability of the heightened standard of care for causes of action for personal injuries occurring in recreational sports should not depend on which sport is involved and whether it is commonly perceived as a 'contact' or 'noncontact' sport." Id. at 18-19. Schick emphasized that "[t]he policies of promotion of vigorous participation in recreational sports and the avoidance of a flood of litigation over sports accidents are furthered by the application of the heightened standard of care to all recreational sports." Id. at 18. As the Court further noted, the risk of injury in golf "arises in myriad forms and for many reasons." Ibid. "Risk of injury also is as real when it arises from an instrumentality used in a game, such as a golf club a golfer swings. . . ." Ibid. Here, the parties were hitting golf balls at a driving range. The parties were each participating in the activity of practicing their golf-swing, an inherent and quintessential aspect of the 8 A-0711-16T1 recreational activity of the game of golf. This activity required the use of a golf club and the striking of a golf ball, both intrinsic to the game of golf. The fact that the activity did not take place on a golf course and was characterized as "practice" does not render the activity "non-recreational." We conclude, therefore, that to determine whether a player should be held civilly liable to another player for an injury suffered while that player is engaged in this recreational activity, the trier of fact must apply the heightened standard of recklessness or intentional conduct our Supreme Court applied in Crawn. On this issue, we add that we are unpersuaded by the argument raised by Spataro that the application of the heightened standard to the recreational activity of practicing golf represents a novel extension of the class of activities subject to the heightened standard. To the contrary, our determination is in accord with and embodies the persuasive dual policy considerations of promotion of recreational activity and avoidance of a flood of litigation associated with that activity as enunciated in Crawn and Schick.2 2 We are similarly unpersuaded that it was error for the motion judge to not employ the standard for minor's engaging in sports set forth in C.J.R. v. G.A., 438 N.J. Super. 387, 400-01 (App. Div. 2014). We are further unpersuaded by the argument advance by amicus that reasonable minds could find O'Neill qualified as 9 A-0711-16T1 We next address whether there are any genuine issues of material fact in dispute regarding whether defendant acted recklessly that should preclude the granting of summary judgment. See R. 4:46-2(c). At the conclusion of oral argument, the judge placed his decision on the record: I've reviewed all of the depositions and all of the facts that have been submitted by the [p]laintiff alleging reckless behavior, that the — at least there's a genuine issue of material fact as to Mr. O'Neill's recklessness, and I respectfully disagree. I think the most that could be drawn from the facts that are before the [c]ourt is one of negligence. . . . An actor acts recklessly when he or she intentionally commits an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that a harm would follow and which thus is usually accompanied by a conscious indifference to the consequences. The standard is objective and may be proven by showing that the [d]efendant proceeded in disregard of a high and excessive degree of danger either known to him or her apparent to a reasonable person in his or her position. Reckless conduct is an extreme departure from ordinary care in a situation in which a high degree of danger is apparent. Reckless behavior must be more than any mere mistake resulting from inexperience, excitement or an "instructor," which would implicate a negligence standard. The undisputed facts are that O'Neill himself was a relative novice to the game and would not qualify as an "instructor" such as the karate instructor in Rosania, 308 N.J. Super. at 367-68. 10 A-0711-16T1 confusion, and more than mere thoughtlessness or inadvertence or simple inattention. I think that's exactly what we have here, is that we have a situation that is inadvertent, simple inattention, thoughtlessness, a mistake, a terrible mistake that resulted in a bad injury. In reaching this decision, the judge erroneously usurped the role of the factfinder by making findings of fact and liability in matters in dispute between the parties. A "judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Brill, 142 N.J. at 540 (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The competent evidence must be viewed in a light most favorable to plaintiff, the non-moving party. Ibid.; R. 4:46- 2(c). We are again informed by Schick. There the Court held that the facts of that case presented a question of recklessness for the jury to decide. Schick, 167 N.J. at 20. As the Court noted: This case is not one reconciled on a motion for summary judgment under a recklessness standard of care on the simple basis of an unannounced "mulligan" or on the sole basis that defendant hit a "shanked" shot. Rather, a jury must assess a combination of alleged events in which defendant, believing plaintiff 11 A-0711-16T1 to be located "in his line of fire" . . . proceeded to hit the tee shot anyway. [Id. at 21-22.] The Court then concluded that the totality of defendant's action should be determined by a jury under a recklessness standard of care. Id. at 22. "Recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others." Id. at 20. The recklessness standard "may be proven by showing that a defendant 'proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position.'" Id. at 19 (alterations in original) (quoting Prosser & Keaton on the Law of Torts, § 34 at 214 (5th Ed. 1984)). Reckless conduct "is an extreme departure from ordinary care, in a situation in which a high degree of danger is apparent." Ibid. Reckless behavior must be more than a "mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simple attention . . . ." Schick, 167 N.J. at 19. A defendant's conduct is in reckless disregard of the safety of another: if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to 12 A-0711-16T1 realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. [Id. at 20 (quoting Restatement (Second) of Torts § 500 at 587 (1965)).] Here, in the employment of our de novo standard of review, we are satisfied there exists a material fact in dispute concerning whether O'Neill made appropriate observations prior to swinging the golf club consonant with the attendant risk of significant injury to a bystander. As such, a jury should decide whether O'Neill's swinging the club, without certainty as to Spataro's location, was in reckless disregard of that risk. Affirmed in part. Reversed in part. We do not retain jurisdiction. 13 A-0711-16T1

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Docket No.: a0832-15
Decided: 2018-02-09
Caption: BARRY HIRSCHBERG v. FIDELITY NATIONAL TITLE INSURANCE COMPANY
Status: unpublished
Summary:
PER CURIAM Plaintiffs Barry and Elizabeth Hirschberg (the Hirschbergs) appeal from three orders of the Law Division, which resulted in the dismissal of their claims against defendants Fidelity National Title Insurance Company (Fidelity), the Estate of Sydney Stoldt, and Goodman, Stoldt & Horan (collectively, the Stoldt defendants). On appeal, the Hirschbergs raise the following points: POINT [I] THE COURTS BELOW ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE AND BECAUSE THE CRITERIA FOR GRANTING SUMMARY JUDGMENT HAVE NOT BEEN MET. POINT [II] THE COURTS ERRED IN SUMMARY JUDGMENT WHICH WAS IMPROVIDENTLY GRANTED AGAINST THE WEIGHT OF THE EVIDENCE. POINT [III] THE LOWER COURTS ERRED IN DISMISSING PLAINTIFFS CONSUMER FRAUD CLAIM BECAUSE THEY MISINTERPRETED THE GENUINE ISSUES OF MATERIAL 2 A-0832-15T2 FACTS AS TO WHETHER SECURITY VIOLATED BASIC STATUTORY AND CONTRACTUAL OBLIGATIONS WHICH CONSTITUTE AN UNCONSCIONABLE COMMERCIAL PRACTICE UNDER THE CONSUMER FRAUD ACT. POINT [IV] PLAINTIFFS' CLAIMS ARE NOT BARED [SIC] BY THE DOCTRINE OF COLLATERAL ESTOPPEL BECAUSE THE CASE AT HAND, AS IT RELATES TO THE SMOTHERGILL MATTER, DOES NOT SATISFY THE COLLATERAL ESTOPPEL REQUIREMENTS. POINT [V] THE ORDERS GRANTING SUMMARY JUDGMENT ARE CONTRARY TO RULE 4:46-3 CASE NOT ADJUDICATED ON MOTION, AND RULES 1:7-4(A) REQUIRED FINDINGS AND 1:7-5 TRIAL ERRORS. POINT [VI] THE COURTS' ERRED BY IGNORING THE PLEADED CLAIMS RESULTING IN THE UNWARRANTED GRANTING OF SUMMARY JUDGMENT BECAUSE OF THE FALSE, MISLEADING AND UNSUPPORTED STATEMENTS AND MISREPRESENTATIONS OF FACTS MADE BY BOTH DEFENDANTS. POINT [VII] ISSUES OF CREDIBILITY AND THE FACTS REQUIRE THE DENIAL OF SUMMARY JUDGMENT. POINT [VIII] THE SMOTHERGILL LITIGATION RECORD SUPPORTS PLAINTIFFS' ARGUMENT OF LEGAL MALPRACTICE, NEGLIGENCE AND CONSUMER FRAUD BECAUSE THE CLAIMS ASSERTED IN THAT MATTER EMINATED [SIC] FROM THE MALFEASANCE IN 1978 OF STOLDT AND FIDELITY DEFENDANTS. 3 A-0832-15T2 POINT [IX] THE CONTINUING RELIANCE BY OTHERS ON THE EXISTENCE OF THE TERMINATED GERMAN [SIC] RIGHT OF WAY GRANTED BY DEED BOOK 776, PAGE 258[,] CONTINUE TO BE A SOURCE OF UNWARRANTED LITIGATION FOR THE PLAINTIFFS. In their reply brief, the Hirschbergs raise the following additional points: [POINT I] BUT FOR DEFENDANT'S NEGLIGENCE, THE SMOTHERGILLS COULD NOT HAVE FILED THEIR CLAIMS AGAINST THE PLAINTIFFS, BECAUSE THE REFERENCE OF DEED BOOK 776, PAGE 258[,] IS A "DEFECT" IN PLAINTIFFS' DEED. [POINT II] FIDELITY'S LEGAL ARGUMENTS IN THEIR POINT III1 SHOULD BE DISREGARDED BY THE COURT BECAUSE THEY ARE MISPLACED, MISREPRESENTED AND ARE NOT SUPPORTED BY THE FACTS. [POINT III] BOTH DEFENDANTS REFERENCE JUDGE CONTILLO'S MARCH 3, 2009 OPINION IN THE SMOTHERGILL MATTER HOWEVER, THE APPELLATE COURT DID NOT AFFIRM THE OPINION, BUT RATHER AFFIRMED THE MAY 5, 2009 FINAL JUDGMENT. THE FORM OF JUDGMENT WAS ARGUED ON MAY 4, 2009[,] WHEREIN JUDGE CONTILLO LIMITED HIS FINDINGS TO HIS SELF-AUTHORED MAY 5, 2009[,] THREE (3) PAGE FINAL JUDGMENT. 1 In Point III of its brief, Fidelity argues that the trial court properly found the statute of limitations bars claims arising out of plaintiffs' 1978 purchase of their home. 4 A-0832-15T2 [POINT IV] PLAINTIFFS MOVED TO DISMISS THE CLAIMS AGAINST THE JENSEN DEFENDANTS WITH PREJUDICE BECAUSE THIS COURT FOUND THE INITIAL APPEAL TO BE INTERLOCUTORY AND REQUIRED SAME TO PROCEED. FIDELITY NATIONAL TITLE NEVERTHELESS IS THE SUCCESSOR TO SECURITY TITLE INSURANCE COMPANY'S OBLIGATIONS. [POINT V] THE TRIAL COURT ERRED BY DISMISSING THE CONSUMER FRAUD CLAIM BECAUSE THE RECORD SHOWS THAT THE AGENT WAS NOT ACTING IN THE CAPACITY OF A LICENSED PROFESSIONAL WHEN HE AGREED TO AND PERFORMED A SEARCH SPECIFICALLY FOR THE PLAINTIFFS OUTSDIDE [SIC] THE SCOPE OF HIS LEARNED PROFESSIONAL STATUS AND BECAUSE THE SEARCH WAS NOT MADE FOR THE WRITING OF AN INSURANCE POLICY. Having reviewed the record, we conclude that these arguments are all without merit and, except as addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Robert C. Wilson's written opinion dated August 18, 2015. We also affirm for the reasons stated in Judge Charles E. Powers, Jr.'s written opinion attached as a rider to an order dated December 19, 2014. Finally, we affirm for the reasons stated on the record by Judge Kenneth J. Slomienski on January 31, 2014. 5 A-0832-15T2 Pursuant to the orders entered on the motions for summary judgment, the Hirschbergs' second amended complaint was dismissed as against Fidelity and the Stoldt defendants.2 We review a grant or denial of summary judgment de novo, observing the same standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). Summary judgment should be granted only if the record demonstrates there is "no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We 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." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If no genuine issue of material fact exists, the inquiry then 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) (citations omitted). 2 The Hirschbergs voluntarily dismissed the claims with prejudice against Jensen and Marotta Associates, Inc., and Dan Jensen, individually, prior to the appeal. 6 A-0832-15T2 The Hirschbergs' claims against Fidelity were dismissed predicated upon collateral estoppel and statute of limitations grounds. After our de novo review of Judge Powers' decision, we conclude his findings and application of controlling law were supported in the factual and procedural record. Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974). The Hirschbergs' claims against the Stoldt defendants were dismissed predicated upon collateral estoppel and statute of limitations grounds. After our de novo review of Judge Wilson's decision, we conclude his findings and application of controlling law were supported in the factual and procedural record. Rova Farms, 65 N.J. at 484. Similarly, after our de novo review of Judge Slomienski's decision granting partial summary judgment on Count 5 of the second amended complaint to Fidelity, we conclude his findings and application of controlling law were supported in the factual and procedural record. Ibid. I. A court has broad discretion to determine whether application of collateral estoppel is appropriate. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979). Although the doctrine "is designed to protect litigants from relitigating identical issues and to promote judicial economy," a court in exercising its 7 A-0832-15T2 discretion must "weigh economy against fairness." Barker v. Brinegar, 346 N.J. Super. 558, 566 (App. Div. 2002). "Fundamental to the theory of collateral estoppel is the notion that the earlier decision is reliable, an underlying confidence the result was substantially correct. The premise is that properly retried, the outcome should be the same." Kortenhaus v. Eli Lilly & Co., 228 N.J. Super. 162, 166 (App. Div. 1988) (citing Restatement (Second) of Judgments § 29 cmt. f (Am. Law Inst. 1982)). Collateral estoppel, also known as issue preclusion, prohibits relitigation of issues if its five essential elements are met. Those elements are that: (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. [Allen v. V & A Bros., Inc., 208 N.J. 114, 137 (2011) (quoting Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006)).] "'On the merits' means that the factual issues directly involved must have been actually litigated and determined." Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 183 (App. Div. 1993). "In the case of a judgment entered by confession, 8 A-0832-15T2 consent, or default, none of the issues is actually litigated." Allesandra v. Gross, 187 N.J. Super. 96, 106 (App. Div. 1982) (quoting Restatement (Second) of Judgments, § 27 cmt. e). We agree that the Hirschbergs sought to re-litigate by their second amended complaint issues relating to a right of way or easement appurtenant to their property and its utilization by others, including their neighbors, the Smothergills. As a result of a dispute that arose over access to that right of way, the Smothergills instituted an action in the Superior Court of New Jersey, Chancery Division. After a bench trial over four days, Judge Robert P. Contillo held that the Smothergills had the right to utilize the right of way, as did the Hirschbergs. Judge Contillo also determined that the Hirschbergs' property was not "land-locked" as they claimed. We affirmed the decision on appeal in an unpublished opinion. Smothergill v. Hirschberg, No. A-5119-08 (App. Div. Apr. 26, 2010). As such, we agree with the determinations of Judge Powers and Judge Wilson that the Hirschbergs' instant claims against the Stoldt defendants and Fidelity sought re-litigation of issues previously adjudicated and are thus prohibited from raising them anew. 9 A-0832-15T2 II. The applicable statute of limitations for legal malpractice is six years, N.J.S.A. 2A:14-1, and specifically requires that actions for legal malpractice be brought within six years from the date the cause of action occurred. Grunwald v. Bronkesh, 131 N.J. 483, 494 (1993). A cause of action for legal malpractice "accrues when an attorney's breach of professional duty proximately causes a plaintiff's damages." Id. at 492. Thus, the statute of limitations starts to run once a plaintiff suffers damages and discovers, or through the use of reasonable diligence should have been discovered, the facts essential to his/her malpractice claim. Lanziano v. Cocoziello, 304 N.J. Super. 616, 621-22 (App. Div. 1997). A title insurance policy is a contract and, like other contracts, claims under a title policy are governed by the six year statute of limitation. N.J.S.A. 2A:14-1; Azze v. Hanover Ins. Co., 336 N.J. Super. 630, 636 (App. Div. 2001). Generally, causes of action for loss resulting from defects to or impairment of title to real property accrue when the property owner knows or has reason to know of the defect to title. Vision Mortg. Corp. v. Patricia J. Chiapperini, Inc., 156 N.J. 580, 586 (1999). The Hirschbergs argue that they were unaware of the use of the right of way for twenty-five years and, consequently, their 10 A-0832-15T2 claim of attorney malpractice against the Stoldt defendants and their contractual claims against Fidelity should not here been barred. However, this lack of knowledge claim was refuted by the record. Upon review of the record before them, Judge Powers and Judge Wilson, each properly found that the Hirschbergs' claims were barred as they had notice as early as 1994 or as late as 1997, of a potential defect in their deed that could have resulted in a diminution of the value of their property. Yet, they failed to institute a malpractice claim against the Stoldt defendants and a breach of contract claim against Fidelity under the title policy within the applicable statute of limitations for each putative cause of action. In sum, we hold that there is no need for this court to engage in a detailed analysis of matters that have been considered and rejected by the court at both the trial and the appellate level. The Hirschbergs' contentions are not strengthened by repetition and do not alter the undisputed facts and procedural history which comprise the record of this case. Affirmed. 11 A-0832-15T2

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Docket No.: a3111-14
Decided: 2018-02-09
Caption: IN THE MATTER OF ANGELO ANDRIANI CITY OF HOBOKEN DEPARTMENT OF PUBLIC SAFETY
Status: unpublished
Summary:
PER CURIAM Appellant Angelo Andriani challenges the February 4, 2015 final administrative decision of the Civil Service Commission (Commission) terminating his employment as a police officer with the Hoboken Police Department (HPD). We affirm. We discern the following relevant facts from the record.1 Appellant became a HPD officer in August 1984. In the early 2000s, appellant was a sergeant and also served as the weapons instructor and commander of the elite SWAT team at the HPD. In response to the devastation caused by Hurricane Katrina, Hoboken passed a resolution adopting the City of Kenner, Louisiana, as a Sister City, to provide support and relief after Hurricane Katrina. Hoboken collected various donations from its residents and delivered those donations to Kenner. The HPD SWAT team was assigned to escort the donation truck. Appellant, along with other members of the team, including Chief of Police Carmen LaBruno, traveled to Kenner. In 2005, while in Kenner, appellant and other HPD envoys attended a dinner party at a private residence. During the dinner 1 The record contains a litany of charges leveled against appellant, listing twenty-one incidents occurring both in Louisiana and New Jersey. Because the Commission and the Administrative Law Judge determined most of those charges were not proven by a preponderance of evidence, we do not repeat them here. Instead, we focus on the charges deemed proven, which resulted in appellant's termination. 2 A-3111-14T4 party, appellant took out his service weapon, unloaded the bullets, and handed the weapon to the female host. A year later, in 2006, the HPD was invited back to Kenner to provide additional police resources during Mardi Gras. The HPD accepted the invitation and assigned the SWAT team to return. They utilized the SWAT bus and rented two other vehicles for the drive to Kenner. The trip lasted five or six days. During the trip, appellant was at a restaurant with the SWAT team members, a Kenner councilwoman, and two other Kenner representatives. At one point during dinner, appellant placed a napkin against his head, imitating a Ku Klux Klan makeshift hood, and uttered some words under it, which the testifying witness could not hear. The Kenner councilwoman and other representatives were upset by appellant and reprimanded him. On their way back to Hoboken, appellant and other members of the SWAT team stopped at a Hooters restaurant to eat. While there, Hooters employees posed for pictures with the SWAT team members, who were in police uniforms. Some SWAT team members retrieved their weapons from the vehicles and handed them over to female Hooters employees, who then posed for pictures with the weapons inside the restaurant and in front of the SWAT bus. In October 2007, HPD Officer Timothy McCourt received a package consisting of documents and tape recordings related to 3 A-3111-14T4 numerous complaints against appellant. McCourt contacted Chief LaBruno and recommended the package be forwarded to the Hudson County Prosecutor's Office. Pending the investigation, appellant was prohibited from using the firing range, and SWAT team operations were suspended. After requesting additional documents to review and interviewing various HPD officers, the Hudson County Prosecutor's Office returned the case to the City of Hoboken for administrative review. According to a letter issued by the Hudson County Prosecutor's Office, the investigation into appellant's alleged misconduct was terminated effective January 14, 2008. On January 22, 2008, appellant was reassigned to the Homeland Security team and was instructed to work out of the Inspectional Services Bureau. On February 8, 2008, appellant was served with a Preliminary Notice of Disciplinary Action from the Hoboken Department of Public Safety Director's Office (Director's Office). In that notice, the Director's Office charged appellant, under N.J.A.C. 4A:2-2.3(a), with: incompetency, inefficiency or failure to perform duties; insubordination; conduct unbecoming a public employee; neglect of duty; and other sufficient cause. He was also charged with eight violations of police departmental rules and regulation, including: standards of conduct; neglect of duty; performance of duty; reporting violations of law, ordinances, rules or orders; use of 4 A-3111-14T4 derogatory terms; conduct towards the public; impartial attitude; and truthfulness. Appellant was also accused of surrendering his weapon to another individual other than a law enforcement officer, in violation of regulations pertaining to firearms. After a series of departmental hearings, the Commission served appellant with a Final Notice of Disciplinary Action on August 24, 2010. In that notice, the Commission sustained four of the charges under N.J.A.C. 4A:2-2.3(a), including: incompetency, inefficiency or failure to perform duties; conduct unbecoming a public employee; neglect of duty; and other sufficient cause. Accordingly, appellant was removed from his position as a police officer effective February 28, 2008. Appellant appealed the Commission's decision to the Office of Administrative Law and an Administrative Law Judge (ALJ) conducted hearings on the matter between August 2011 and May 2013. After hearing testimony from thirteen individuals, including appellant, on October 3, 2014, the ALJ rendered an initial decision, addressing each charge and making credibility findings about each witness. The ALJ rejected numerous charges as unsupported by the evidence. However, the ALJ found appellant had failed to perform the duties of a police officer and engaged in conduct unbecoming a public employee for his participation in the Hooters incident as well as the napkin incident and recommended 5 A-3111-14T4 appellant be removed effective February 28, 2008. The ALJ concluded appellant's behavior as "memorialized in numerous photographs, is so egregious, that it warrants removal." Appellant timely filed an exception to the ALJ's recommendation on November 13, 2014, and Hoboken filed its exception shortly thereafter. On February 4, 2015, the Commission conducted a de novo review of the record and issued its final administrative decision, finding the action in removing appellant was justified, affirming the ALJ's decision, and dismissing appellant's appeal. The Commission agreed with the ALJ's determination that the majority of the charges were unproven. It, however, did not agree with the ALJ's dismissal of the allegation and corresponding charges regarding the improper handling of appellant's firearm at the Kenner dinner party and included it as a basis for removal. This appeal followed. On appeal, appellant argues the charges were untimely because they were not filed within forty-five days of the alleged incidents, and the inaction of the previous HPD Chief and Director estopped any future Chief and Director from instituting disciplinary actions. He also argues he was treated differently than others who attended the 2005 and 2006 Louisiana trips and termination was an inappropriate form of discipline. 6 A-3111-14T4 I. Our review of a final agency decision is limited, and we "do not ordinarily overturn such a decision 'in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence.'" In re Carter, 191 N.J. 474, 482 (2007) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Moreover, we may not substitute our judgment for that of the agency's when "substantial credible evidence supports [the] agency's conclusion . . . ." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (citations omitted). Deference to agency decisions applies to the review of disciplinary sanctions. In re Herrmann, 192 N.J. 19, 28 (2007). "In light of the deference owed to such determinations, when reviewing administrative sanctions, 'the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Id. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)) (alteration in original). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29. Accordingly, we modify a sanction only "when necessary to bring the agency's action into conformity with its delegated authority." 7 A-3111-14T4 Id. at 28 (quoting Polk, 90 N.J. at 578). Moreover, we will affirm a sanction that is not illegal or unreasonable. Ibid. II. Appellant asserts the failure of the HPD to file the disciplinary charges within forty-give days of the alleged incidents warrants the dismissal of the current charges. We disagree. Under N.J.S.A. 40A:14-147: [a] complaint charging a violation of the internal rules and regulations established for the conduct of a law enforcement unit shall be filed no later than the [forty-fifth] day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based. The [forty-five]-day time limit shall not apply if an investigation of a law enforcement officer for a violation of the internal rules or regulations of the law enforcement unit is included directly or indirectly within a concurrent investigation of that officer for a violation of the criminal laws of this State. The [forty- five]-day limit shall begin on the day after the disposition of the criminal investigation. [emphasis added.] Although all of the charged incidents occurred in either 2005 or 2006, and the preliminary notice of disciplinary action was not issued until February 28, 2008, the statutory forty-five-day rule was not violated. N.J.S.A. 40A:14-147 allows for a tolling of the forty-five-day rule in the event of a criminal investigation. 8 A-3111-14T4 The statutory time clock began running once McCourt received the package detailing the allegations against appellant, providing "sufficient information" to file the complaint. The complaints were first referred to the Hudson County Prosecutor's Office in 2007 to investigate appellant's alleged misconducts, tolling the forty-five day deadline. After requesting additional documents for review and interviewing various HPD officers, the Hudson County Prosecutor's Office returned the case to Hoboken for administrative review sometime between December 2007 and January 2008 and terminated its criminal investigation effective January 14, 2008. The preliminary notice of disciplinary action was issued on February 28, 2008, forty-five days after January 14, 2008, and was thus, timely. III. Appellant next argues because the Director and Chief LaBruno knew about his behavior in 2005 and 2006, but did not discipline him, the subsequent HPD Chief and Director2 are estopped from taking a different position two years later. This argument lacks merit. 2 The same HPD Chief, Carmen LaBruno, remained in the office during the time of the incidents and when appellant was subject to investigations and discipline. The Director, on the other hand, changed from Mayor David Roberts to William Bergin. 9 A-3111-14T4 Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse. [Segal v. Lynch, 211 N.J. 230, 254 (2012) (quoting Carlsen v. Masters, Mates & Pilots Pension Plan Trust, 80 N.J. 334, 339 (1979)) (alterations in original).] "Although rarely invoked against public entities, . . . it may be applied against them to prevent manifest injustice." State, Dep't of Environmental Protection and Energy v. Dopp, 268 N.J. Super. 165, 176 (App. Div. 1993). "Equitable estoppel does not require a definite promise, but may be invoked when there is 'conduct, either express or implied, which reasonably misleads another to his prejudice so that a repudiation of such conduct would be unjust in the eyes of the law.'" Segal, 211 N.J. at 254 (quoting McDade v. Siazon, 208 N.J. 463, 480 (2011)). Appellant and Hoboken agree the incidents that gave rise to the disciplinary actions occurred in 2005 and 2006, and Chief LaBruno was present during the 2005 trip to Louisiana. Complaints against appellant were referred to McCourt in October 2007, who informed the chief of the complaints. Chief LaBruno then contacted the Hudson County Prosecutor's Office, removed appellant from the 10 A-3111-14T4 firing range, and suspended SWAT team operations. Further, in 2008, it was the chief who signed an order reassigning appellant to a different unit. As such, the same individual, who witnessed some of appellant's conduct, instituted the subsequent disciplinary actions and engaged in no conduct that could have reasonably misled appellant. Moreover, even if appellant relied on Chief LaBruno's and the Director's actions as an implicit communication that he was in the clear, he suffered no detriment. Appellant continued to render services as a police lieutenant, and he was justly compensated for his service until his removal. IV. Appellant argues because he was the only police officer disciplined as a result of the 2006 Hooters incident, he was subject to disparate treatment. "Disparate treatment is demonstrated when a member of 'a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion' under the antidiscrimination laws." Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 74 (App. Div. 2004) (quoting EEOC v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990)). A party only needs to demonstrate that "it is more likely than not that the employer's actions were based on unlawful considerations" in order to carry 11 A-3111-14T4 his or her burden of showing a prima facie case. Id. at 75 (quoting Dixon v. Rutgers, 110 N.J. 432, 443 (1988)). Here, appellant did not present sufficient evidence to establish a prima facie case of disparate treatment because he did not demonstrate he was singled out because of his membership in a protected group. We also recognize a more general obligation of public employers to assure "fairness and generally proportionate discipline imposed for similar offenses . . . ." In re Stallworth, 208 N.J. 182, 192 (2011). "[T]he responsibility . . . to assure such fairness and responsibility" resides in one agency, the Civil Service Commission. Ibid. Fairness must take into account not only the nature of the offense, but also the position of the offender. As the ALJ and the Commission both stated, appellant was disciplined for the Hooters incident because he was the most senior ranking officer traveling on that trip. As such, it was his duty to ensure all of the other officers conduct themselves appropriately, and he failed to do so. V. Lastly, appellant argues even if the Commission properly determined he violated statutes and regulations, he should have received progressive discipline, not termination. 12 A-3111-14T4 Progressive discipline is not "'a fixed and immutable rule to be followed without question' because 'some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record.'" Stallworth, 208 N.J. at 196 (quoting Carter, 191 N.J. at 484). Further, progressive discipline can be used in two ways: (1) "the imposition of a more severe penalty for a public employee who engages in habitual misconduct"; and (2) "to mitigate the penalty for a current offense where . . . an employee has little or no record of misconduct." In re Restrepo, Dep't of Corr., 449 N.J. Super. 409, 424 (App. Div.), certif. denied, 230 N.J. 574 (2017) (quoting Herrmann, 192 N.J. at 30). Here, although appellant had no prior disciplinary record, we agree that his behavior, which involved handing his service weapon to a civilian, allowing other police officers to do the same in a public place, and mimicking an offensive, racist symbol in a public place, which was "memorialized in numerous photographs, is so egregious, it warrants removal." The Commission carefully evaluated the decision and agreed with the ALJ, noting a municipal police officer is a special kind of public employee who "represents law and order to the citizenry and must present an image of personal integrity and dependability." 13 A-3111-14T4 In light of the record, and the deferential review standard applied to administrative sanctions, terminating appellant's employment was not disproportionate to the offenses, is not illegal or unreasonable, and does not rise to the level of shocking the court's sense of fairness. Affirmed. 14 A-3111-14T4

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Docket No.: a4147-14
Decided: 2018-02-09
Caption: IN THE MATTER OF THE TENURE HEARING OF LORRAINE WILLIAMS
Status: unpublished
Summary:
PER CURIAM This matter having been amicably adjusted and the parties have stipulated to the dismissal of this appeal, the appeal is dismissed with prejudice and without costs. 2 A-4147-14T1

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Docket No.: a4167-15
Decided: 2018-02-09
Caption: PAUL MOSCATELLO v. ESTHER LENA DICKINSON
Status: unpublished
Summary:
PER CURIAM Defendants Lena Dickinson and Susan Gladeck, Lena's mother, (collectively defendants) appeal from an April 14, 2016 consent order. We dismiss the appeal as improper. Defendants' submissions detail the history of a lengthy and complicated litigation in the Family Part stemming from a personal home loan. In January 2011, the trial court issued an order and opinion, under the consolidated Docket No. FM-17-0079-10, finding plaintiff Paul1 and defendant Lena jointly and severally liable for a judgment in favor of defendant Susan for $79,443. The court also denied Lena's claim for fraud against Paul, palimony, and partnership in Paul's business. Susan was to provide a more detailed certification with regards to attorney's fees within thirty days, at which time the exact amount of fees would be determined. In March 2011, Susan appealed the January 2011 order. By letter dated March 22, 2011, we notified Susan her appeal was interlocutory, and she subsequently withdrew it. In April 2015, Susan sought payment for the judgment from Paul. In May 2015, Paul paid the judgment in the total amount of $87,528.21.2 In April 2015, Paul filed a complaint, under Docket No. C-5- 15, in the Chancery Division seeking contribution from Lena, arguing she was jointly and severally liable for the judgment. 1 We refer to the parties by their first names for ease of reference, and in doing so, we mean no disrespect. 2 This payment included the final judgment of $79,443 plus post- judgment interest of $8,085.21. 2 A-4167-15T1 On August 27, 2015, Lena filed an answer and counterclaim, alleging fraud and other affirmative defenses. On that same day, Susan filed a third-party action requesting $34,309.61 in attorney's fees from Paul, under Docket No. FM-17-0079-10. In December 2015, the Chancery Division granted Paul's motion to consolidate the matters for trial, under Docket No. FM-17-0079- 10, and dismissed Lena's counterclaims with prejudice. However, on March 30, 2016, the parties entered into a settlement agreement, which was memorialized in a consent order dated April 14, 2016, disposing of all of the claims before the court. The settlement agreement provided that Paul would dismiss his claim for contribution against Lena, and Susan would withdraw her motion for attorney's fees against Paul. In exchange, Paul would pay Susan a total of $27,000 in three monthly installments, and if he failed to do so, a confession of judgment would be entered against him for $32,209 plus costs. The settlement agreement also contained mutual general releases, in which Lena, Paul, and Susan each agreed to: unconditionally release[] [the other parties] from any claims, demands, and causes of action, damages, costs, expenses, losses and liability of every kind and nature, whether at law or in equity, whether known or unknown that were or could have been asserted in these "Actions" before this court. 3 A-4167-15T1 "Actions" was defined as "the matters consolidated under Docket No. FM-17-0079-10." Any breaching party would be responsible for the reasonable attorney's fees and costs of the other parties, including those incurred in defending the released claims. Furthermore, the agreement superseded "all prior negotiations, agreements, and understandings," and was "executed without reliance on any promise, understanding, inducement, warranty, or representation by any party." In May 2016, defendants appealed the January 2011 order, under Docket No. FM-17-0079-10, which was made final for appeal purposes by the April 14, 2016 consent order that disposed of the issue of attorney's fees. On appeal, defendants argue the trial court in Docket No. FM- 17-0079-10 erred finding Paul did not commit fraud and Lena was jointly and severally liable for the judgment. Paul argues the present appeal is a breach of the universal settlement agreement because it contained clauses releasing the parties from all claims. We dismiss because the appeal is from a consent order. An agreement to settle litigation is "governed by [the general] principles of contract law." Globe Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016) (quoting Brundage v. Estate of Carambio, 195 N.J. 575, 600-01 (2008)) (alterations in original). Normally, whether a settlement agreement, containing a release of claims 4 A-4167-15T1 clause, was breached by the filing of additional litigation would be a matter of contract interpretation – a question of law. See Hess Corp. v. ENI Petroleum US, LLC, 435 N.J. Super. 39, 46 (App. Div. 2014) (citation omitted). Here, however, the settlement agreement was memorialized by a consent order, and our courts have long held that a consent order is not appealable. Janicky v. Point Bay Fuel, Inc., 410 N.J. Super. 203, 207 (App. Div. 2009) (citing Winberry v. Salisbury, 5 N.J. 240, 255 (1950)). "This is because the rule allowing an appeal as of right from a final judgment contemplates a judgment entered involuntarily against the losing party." N.J. Sch. Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308-09 (App. Div. 2010) (citation omitted). We disapprove of the practice even where the consent judgment expresses the desire of the parties to reserve appellate rights. Lopez, 412 N.J. Super. at 309 (citations omitted). Only where "parties to a consent judgment reserve the right to appeal an interlocutory order by providing that the judgment would be vacated if the interlocutory order were reversed on appeal" should an appeal be permitted. Ibid.; Janicky, 410 N.J. Super. at 207. Here, the settlement agreement did not contain such a specific reservation, or any reservation of rights at all. Instead, it contained standard clauses unconditionally releasing the other 5 A-4167-15T1 parties "from any claims, demands, and causes of action, damages, costs, expenses, losses and liability of every kind and nature, whether at law or in equity, whether known or unknown that were or could have been asserted in these 'Actions' before this court." All of the claims brought in this appeal could have been brought in the identified "Actions," and are therefore covered by the release of claims clauses. Thus, the consent order and settlement agreement preclude defendants' appeal. Accordingly, the appeal is dismissed. We decline to address Paul's assertion that the appeal itself is a breach of the settlement agreement because that is an issue that may be determined by the trial court upon an application in that court. All additional arguments introduced by defendants are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Dismissed. 6 A-4167-15T1

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Docket No.: a4575-14
Decided: 2018-02-09
Caption: IN THE MATTER OF THE TENURE HEARING OF LINDA KELLY-GAMBLE
Status: unpublished
Summary:
PER CURIAM This matter has been amicably adjusted and the parties having stipulated to the dismissal of this appeal, the appeal is dismissed with prejudice and without costs. 2 A-4575-14T1

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Docket No.: a4621-14
Decided: 2018-02-09
Caption: IN THE MATTER OF THE TENURE HEARING OF TONI LENZ
Status: unpublished
Summary:
PER CURIAM This matter having been amicably adjusted and the parties have stipulated to the dismissal of this appeal, the appeal is dismissed with prejudice and without costs. 2 A-4621-14T1

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Docket No.: a4740-14
Decided: 2018-02-09
Caption: IN THE MATTER OF THE TENURE HEARING OF URSULA WHITEHURST
Status: unpublished
Summary:
PER CURIAM This matter having been amicably adjusted and the parties having stipulated to the dismissal of this appeal, the appeal is dismissed with prejudice and without costs. 2 A-4740-14T1

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Docket No.: a5379-15
Decided: 2018-02-09
Caption: U.S.BANK NATIONAL ASSOCIATION v. CLAUDE GOULDING
Status: unpublished
Summary:
PER CURIAM In this mortgage foreclosure action, defendants Claude Goulding and Michelle Goulding appeal from a July 8, 2016 order denying their motion for reconsideration of a March 7, 2016 order declining to vacate a 2014 final judgment of foreclosure entered in favor of plaintiff U.S. Bank National Association. We affirm. The record discloses that, on November 9, 2004, defendants borrowed $172,000 from Partners Mortgage, Inc. (Partners). Repayment was secured by a mortgage, which was recorded on December 14, 2004. Partners promptly assigned the mortgage to plaintiff by assignment dated November 15, 2004. The assignment was then recorded simultaneously with the mortgage on December 14, 2004. Additionally, an allonge was affixed to the note, thereby rendering the debt payable to plaintiff. Defendants defaulted by failing to make the monthly payment due on January 1, 2009, and all payments that came due after. On September 14, 2011, plaintiff sent a notice of intention to foreclose (NOI) to the property address, which defendants deny receiving. Plaintiff filed a foreclosure complaint on March 8, 2013. Defendants were served with the summons and complaint on March 16, 2013. Defendants did not file a responsive pleading, and default was entered against them on April 23, 2013. On May 24, 2013, plaintiff's counsel sent a notice advising defendants of their right to cure the mortgage default and that if they failed to do so plaintiff intended to apply for final judgment of foreclosure. In response, on July 10, 2013, defendants moved to stay the 2 A-5379-15T3 foreclosure action and vacate the default, which the trial court denied on August 23, 2013. Plaintiff filed an application for entry of final judgment on March 26, 2014. The application included, among other things, certified copies of the note, allonge, mortgage, and assignment of mortgage. On June 16, 2014, the trial court entered a final judgment of foreclosure. On February 12, 2016, defendants filed a motion to vacate the final judgment pursuant to Rule 4:50-1. Among other things, defendants asserted the judgment was void because plaintiff lacked standing, the signatures on the note and mortgage were fraudulent, and plaintiff failed to serve defendants with a NOI. Judge Menelaos Toskos denied the motion in a March 7, 2016 written opinion. Initially, the judge found the motion was untimely because defendants did not move to vacate the final judgment within the time constraints imposed by Rule 4:50-2. The judge nevertheless went on to address the merits, and found defendants failed to show excusable neglect, a meritorious defense, or "any of the required criteria under [Rule] 4:50-1 to vacate a judgment." Judge Toskos determined that plaintiff's possession of the note prior to the filing of the complaint was sufficient to confer standing, and that in any event "the law is clear that lack of standing does not constitute a meritorious 3 A-5379-15T3 defense post judgment." The judge also observed that, in its opposition to the motion, plaintiff attached copies of the NOI that it sent to defendants on September 14, 2011. Finally, the judge rejected defendants' fraud claims, noting defendants had "made payments under the loan documents for several years . . . never raising the issue," and the claims were barred by "N.J.S.A. 2A:14-1[, which] provides for a six year statute of limitations for claims sounding in fraud." Defendants moved for reconsideration, which Judge Toskos denied on April 29, 2016. On June 9, 2016, defendants filed another motion seeking reconsideration of the March 7, 2016 order. Judge Toskos denied the motion on July 8, 2016, again finding that defendants failed to satisfy the standards for reconsideration. This appeal followed. On appeal, defendants renew their arguments that the judgment should be set aside because plaintiff is not the holder of the note and therefore lacks standing to foreclose, and that plaintiff failed to serve them with a NOI. Defendants further argue that plaintiff's proofs were insufficient to support entry of final judgment; the trial court misapplied the holder in due course doctrine; and their defenses of fraud and illegality survive even against holders in due course. We reject these arguments and affirm substantially for the reasons set forth in Judge Toskos' 4 A-5379-15T3 cogent and well-reasoned written opinion denying defendants' motion to vacate the judgment. We add the following comments. Under Rule 4:50—1, the trial court may relieve a party from an order or judgment for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order. Motions made under Rule 4:50-1 must be filed within a reasonable time. R. 4:50-2; see also Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 319 (App. Div. 2012). Motions based on Rule 4:50-1(a), (b), and (c) must be filed within a year of the judgment. R. 4:50-2; accord Angeles, 428 N.J. Super. at 319. However, the one-year limitation for subsections (a), (b), and (c) does not mean that filing within one year automatically qualifies as "within a reasonable time." Orner v. Liu, 419 N.J. Super. 431, 437 (App. Div. 2011); R. 4:50-2. 5 A-5379-15T3 [T]he one-year period represents only the outermost time limit for the filing of a motion based on Rule 4:50-1(a), (b)[,] or (c). All Rule 4:50 motions must be filed within a reasonable time, which, in some circumstances, may be less than one year from entry of the order in question. [Orner, 419 N.J. Super. at 437.] A motion for relief under Rule 4:50-1 should be granted sparingly and is addressed to the sound discretion of the trial court, whose determination will not be disturbed absent a clear abuse of discretion. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). "[A]buse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial court's decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Guillaume, 209 N.J. at 467 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). Accordingly, this court's task is not "to decide whether the trial court took the wisest course, or even the better course, since to do so would merely be to substitute our judgment for that of the lower court. The question is only whether the trial judge pursued a manifestly unjust course." Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. 6 A-5379-15T3 Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968). Here, we find no abuse of discretion by the trial court. Defendants' motion to vacate the foreclosure judgment was filed nearly two years after the judgment was entered. Consequently, to the extent the motion sought relief under Rule 4:50-1(a), based on mistake, inadvertence, surprise, or excusable neglect, or under Rule 4:50-1(c), based on fraud, misrepresentation, or misconduct, it was time-barred under Rule 4:50-2, as Judge Toskos properly found. Notably, defendants do not even address the timeliness issue on appeal. Further, the judge did not err in concluding defendants were foreclosed from raising a standing argument for the first time after entry of final judgment. "[A] foreclosure judgment obtained by a party that lacked standing is not 'void' within the meaning of Rule 4:50-1(d)." Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J. Super. 91, 101 (App. Div. 2012). In Russo, we further explained that equitable considerations may bar a defendant from raising a standing argument after final judgment. Id. at 99-100. "In foreclosure matters, equity must be applied to plaintiffs as well as defendants." Angeles, 428 N.J. Super. at 320. Where a defendant does not "raise the issue of standing until he had the advantage of many years of delay," the judge need not entertain 7 A-5379-15T3 the claim. Ibid. Here, defendants waited approximately three years to assert the standing issue, and did so after default judgment had been entered. In any event, the competent proofs in the record establish that plaintiff had physical possession of the note before filing the foreclosure complaint. Moreover, the assignment of the mortgage to plaintiff prior to the filing of the foreclosure complaint conferred standing upon plaintiff. Id. at 318 (stating that standing is conferred by "either possession of the note or an assignment of the mortgage that predate[s] the original complaint") (citing Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 216, 225 (App. Div. 2011)). Thus, defendants' standing argument is meritless. Defendants' contention that plaintiff failed to serve them with a NOI, in violation of the Fair Foreclosure Act, N.J.S.A. 2A:50-53 to -68, is clearly belied by the record. We consequently conclude this argument lacks merit. Additionally, Rule 4:50-1(f) does not provide defendants with a basis for relief under the facts presented. As noted, subsection (f) permits a judge to vacate a default judgment for "any other reason justifying relief from the operation of the judgment or order," and "is available only when 'truly exceptional circumstances are present.'" Guillaume, 209 N.J. at 484 (quoting 8 A-5379-15T3 Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994)). The applicability of this subsection is limited to "situations in which, were it not applied, a grave injustice would occur." Ibid. As plaintiff points out, defendants have been in default under the note and mortgage since 2009. On this record, defendants have not shown any such "exceptional circumstances" that would warrant relief under subsection (f), or any other section of the rule. Finally, Judge Toskos correctly denied defendants' motion for reconsideration. The denial of a motion for reconsideration rests within the sound discretion of the trial judge. Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002). "Motions for reconsideration are granted only under very narrow circumstances." Ibid. We have long recognized that: Reconsideration should be used only for those cases which fall into that narrow corridor in which either (l) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence. [Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).] Defendants failed to meet those criteria here. Affirmed. 9 A-5379-15T3

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Docket No.: a0053-16
Decided: 2018-02-08
Caption: EDWARD T. CASSIDY, JR v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Status: unpublished
Summary:
PER CURIAM Appellant Edward T. Cassidy, Jr. appeals from a final agency decision of the Board of Review dated June 30, 2016. The Board modified the Appeal Tribunal's determination, holding Cassidy liable to refund unemployment benefits in the amount of $3971 paid for the weeks ending January 11, 2014, through June 28, 2014, pursuant to N.J.S.A. 43:21-16(d). We affirm. Between January 11, 2014, and June 28, 2014, Cassidy was employed part-time by respondent Acosta, Inc. Cassidy filed a claim for unemployment benefits on December 29, 2013, and received unemployment benefits for the weeks ending January 11, 2014, through June 28, 2014. Upon discovering the benefits were paid in error, the Director of the Division of Unemployment and Disability Insurance Services issued a February 12, 2015 determination disqualifying Cassidy from receiving benefits for one year commencing February 11, 2015. This determination was based on the conclusion that Cassidy had received the benefits through false or fraudulent misrepresentation. In addition, the Director held Cassidy liable for a refund of the $4175 he received as benefits for the weeks ending January 11, 2014, through June 28, 2014, and imposed a fine of $1043.75 for fraudulently receiving benefits. 2 A-0053-16T4 On February 17, 2015, Cassidy appealed to the Appeal Tribunal. In a March 18, 2015 decision, the Appeal Tribunal remanded the matter for possible redetermination. On remand, Cassidy participated in a telephonic hearing on July 27, 2015. During the hearing, Cassidy admitted filing for unemployment benefits for the period in question. He further admitted making mistakes while claiming benefits for that period. Cassidy had reported earnings of only $23 per week during that period despite actually working twenty-one hours per week, earning $11.50 per hour or $241.50 per week, more than ten-times higher than he reported. The hearing examiner requested Cassidy provide documentation from his physician regarding his alleged brain injury and from his aunt regarding her assistance in filing for the unemployment benefits in question. The additional documentation would then be considered at a subsequent hearing. On September 23, 2015, the Appeal Tribunal dismissed the appeal without prejudice as a result of Cassidy's inability to participate in a scheduled hearing. The dismissal was reopened, and Cassidy participated in a further hearing on March 21, 2016, during which the documentation from Cassidy's physician along with a statement provided by Cassidy's aunt were reviewed. In a March 24, 2016 decision, the Appeal Tribunal held Cassidy liable to refund the $4010 in benefits received for the weeks ending January 3 A-0053-16T4 11, 2014 through June 28, 2014. The Appeal Tribunal also held Cassidy was not subject to a fine, but he was disqualified from unemployment benefits for the period in question, pursuant to N.J.S.A. 43:21-5(g) and N.J.S.A. 43:21-16(d). On April 11, 2016, Cassidy appealed the Tribunal's decision to the Board of Review. On June 30, 2016, the Board of Review issued a final decision, modifying the decision of the Appeal Tribunal, holding Cassidy liable to refund $3971, rather than $4010, pursuant to N.J.S.A. 43:21-16(d). This appeal followed. On appeal, Cassidy raises the following point for our consideration: THE DEPARTMENT OF LABOR (RESPONDENT) FAILED TO OPEN A CASE FILE AGAINST LABOR READY (FORMER EMPLOYER). THE DEPARTMENT OF LABOR'S (RESPONDENT) INVESTIGATOR WAS HAVING PERSONAL ISSUES AND COULD NOT PERFORM THE DUTIES OF HER JOB. THE DEPARTMENT OF LABOR (RESPONDENT) KNOWINGLY AND INTENTIONALLY LIED WHEN THEY STATED THAT THEY DID NOT KNOW WHERE LABOR READY (FORMER EMPLOYER) WAS AND THAT THEY COULD NOT LOCATE LABOR READY (FORMER EMPLOYER). THE ACTIONS OF THE DEPARTMENT OF LABOR (RESPONDENT) CAUSED INJURIES TO EDWARD T. CASSIDY[,] JR[.'S] (CLAIMANT) LIFE. For the first time on appeal, Cassidy raises an unrelated civil claim, seeking $400,000 in unspecified damages from the Department of Labor for alleged unpaid wages relating to his former employment by Labor Ready in May 2012. 4 A-0053-16T4 We exercise limited review of administrative agency decisions. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We simply determine whether the administrative decision is arbitrary, capricious, or unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The burden of proof rests with the person challenging the action. In re Arenas, 385 N.J. Super. 440, 443- 44 (App. Div. 2006). An individual seeking unemployment benefits bears the burden of proving that he or she is entitled to receive them. Brady, 152 N.J. at 218; Bonilla v. Bd. of Review, 337 N.J. Super. 612, 615 (App. Div. 2001). In matters involving unemployment benefits, we accord deference to the expertise of the Board of Review. See Brady, 152 N.J. at 210; Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). We must accept the Board of Review's findings if they are supported by sufficient credible evidence. Brady, 152 N.J. at 210. Unemployment compensation exists "to provide some income for the worker earning nothing because he is out of work through no fault or act of his own." Futterman v. Bd. of Review, 421 N.J. Super. 281, 288 (App. Div. 2011) (emphasis omitted) (quoting Brady, 152 N.J. at 212). The Board of Review determined Cassidy was ineligible for unemployment benefits under N.J.S.A. 43:21-5(g) and liable to 5 A-0053-16T4 refund benefits totaling $3971 for the weeks ending January 11, 2014 through June 28, 2014, pursuant to N.J.S.A. 43:21-16(d). Cassidy grossly underreported his income, claiming he earned only $23 per week while actually earning $241.50 per week during that period. "N.J.S.A. 43:21-16(d) requires the full repayment of unemployment benefits received by an individual who, for any reason, regardless of good faith, was not actually entitled to those benefits." Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997) (citing Fischer v. Bd. of Review, 123 N.J. Super. 263, 266 (App. Div. 1973) (holding that claimant was required to refund erroneously paid unemployment benefits even when applied for in good faith)). We are satisfied from our review of the record that the undisputed facts support the Board of Review's determination that Cassidy was not entitled to the benefits totaling $3971 he received for the weeks ending January 11, 2014, through June 28, 2014. He concedes he received those benefits improperly and is responsible for repaying that amount. Accordingly, the decision of the Board of Review was not arbitrary, capricious, or unreasonable and is supported by substantial credible evidence in the record. Cassidy's unrelated claim against the Department of Labor, which he raises for the first time on appeal, falls entirely outside the scope of this appeal. "An appellate court ordinarily 6 A-0053-16T4 will not consider issues that were not presented to the trial court." State v. Arthur, 184 N.J. 307, 327 (2005) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); accord Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 396 (2016) (declining to address an issue not raised before the trial court that was not an issue of sufficient public concern). We decline to consider a claim not raised before the Board of Review that presents issues which are not germane to this appeal. The remaining contentions raised by Cassidy lack sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(D) and (E). Affirmed. 7 A-0053-16T4

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Docket No.: a0504-16
Decided: 2018-02-08
Caption: ROBERT W. GAVEN v. BOARD OF TRUSTEES PUBLIC EMPLOYEES RETIREMENT SYSTEM
Status: unpublished
Summary:
PER CURIAM Robert Gaven appeals from a final agency decision by the Board of Trustees Public Employees' Retirement System (the Board) denying him accidental disability benefits. We affirm because we disagree with Gaven's contention that there does not exist sufficient credible evidence in the record to support the Board's findings that Gaven failed to show his permanent and total disability was a direct result of work-related accidents. To secure accidental disability benefits under N.J.S.A. 43:15A-43, an applicant must prove several elements. Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 30 (2011). We need not recite those elements except the one in dispute – whether plaintiff is permanently and totally disabled from the accidents in question. See ibid. In 1991, Gaven injured his cervical spine in an accident while working as a road supervisor with the Township of Delran. He had surgery on his cervical spine at C5 and C6. He contends the injury was fully resolved, and he was physically able to work following a six-week period of convalescence. Twelve years later, he maintains his ability to work changed because of two work- related accidents. On February 15, 2003, Gaven suffered a slip and fall accident while removing snow and ice at work, which resulted in two broken ribs and a concussion. From the record, it does not appear that 2 A-0504-16T3 he missed any time from work, but was limited to light duty until he had another accident a few months later. On May 29 of the same year, after patching large potholes with a co-worker, Gaven was catapulted off the back of a trailer when a hot tar tamper he was holding onto suddenly fell off the back of the trailer. He contends he immediately felt intense pain in his neck that travelled down through both of his arms. Gaven never returned to work due to stiffness and numbness in his arms, legs, and neck, which caused a loss of motor control. On July 21, 2004, the Board denied Gaven's application for accidental disability retirement benefits arising from the 2003 accidents; finding that neither of the accidents qualified as a traumatic event under N.J.S.A. 43:15A-43, and that his permanent and total disability was not a direct result of the accidents. The Board, instead, granted him the lesser benefit of ordinary disability retirement. Gaven filed a timely appeal and the matter was transmitted to the Office of Administrative Law (OAL). In the meantime, over a year later in November 2005, Gaven had surgery to remove a herniated disc at C3-C4 and to fuse discs at C3-C4 and C6-C7. 3 A-0504-16T3 For reasons that are unclear in the record, an OAL hearing was not held until three diverse dates in 2014,1 after the matter had been reassigned to another ALJ in June 2013. In an initial decision dated May 12, 2016, the ALJ found that, although there was no dispute that Gaven's spinal injury caused him permanent and total disability, he did not qualify for accidental disability benefits. The ALJ reversed the Board's determination that Gaven's May 29, 2003 accident qualified as a traumatic event under N.J.S.A. 43:15A-43, as interpreted by Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 212-13 (2007).2 The ALJ determined, however, there was insufficient proof that Gaven's disability was not a direct result of either accident in 2003. On August 17, 2016, the Board voted to adopt the recommendations of the initial decision. Before us, Gaven challenges the Board's factual findings. He argues the Board's ruling that his disability was not the direct result of the 2003 accidents was arbitrary because the ALJ disregarded the fact that his spinal injury from the 1991 accident 1 The record closed on April 17, 2015. 2 Although the Board's July 21, 2004 denial of Gaven's application found that neither accident was a traumatic event, the initial decision stated that the Board only contended at the hearing that the May 29, 2003 accident was non-traumatic. 4 A-0504-16T3 had resolved through surgery, and that his disability occurred only after the subsequent accidents. We disagree. From our review of the record, the ALJ thoroughly evaluated Gaven's testimony, Gaven's voluminous medical records, and most importantly, the competing opinions of the parties' medical experts – neither of whom treated Gaven – as to whether Gaven's disability was the direct result of the 2003 accidents. The ALJ explained her findings: Although [Gaven's expert] presented competent, concise and clear testimony, is clearly accomplished in her field, and presented her opinions in a manner so as to be easily followed, her testimony and opinions emanating therefrom are ultimately undermined by her insistence that herniations in [Gaven's] cervical spine at level C3-[C]4 are new injuries caused by the incident of February 15, 2003, despite being presented with an MRI showing such herniation to be present in 2001. As a result, I give greater weight to and ADOPT the opinions offered by [the Board's expert], and FIND that the incidents of February 15, 2003, and May 29, 2003, resulted in cervical sprain with aggravation of pre-existent discogenic neck problems . . . , but that there is insufficient evidence in the record to state, within a degree of medical certainty, that it is more likely than not that the incidents rendered [Gaven] permanently and totally disabled from the performance of his duties. According deference to the Board's fact-finding, Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009), we conclude its decision is neither "arbitrary, 5 A-0504-16T3 capricious, or unreasonable, or . . . lacks fair support in the record." Russo, 206 N.J. at 27 (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). We are satisfied "that the evidence and the inferences to be drawn therefrom support" the agency's decision that Gaven's disability is not the direct result of the 2003 accidents but from cervical spine degeneration. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). Thus, we will not disturb the determination that Gaven is not entitled to accidental disability benefits. Affirmed. 6 A-0504-16T3

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Docket No.: a1564-14
Decided: 2018-02-08
Caption: RICHARD MUCIA v. MIDDLESEX COUNTY
Status: unpublished
Summary:
PER CURIAM Plaintiffs Richard Mucia, Thomas Varga, Christopher Jarema and Giancarlo Russo (plaintiffs) appeal from a July 31, 2014 order imposing sanctions under Rule 1:4-8 in favor of defendants Middlesex County and Middlesex County Sheriff's Office (defendants) and from a September 12, 2014 order that denied reconsideration.1 We affirm. I Plaintiffs were investigators hired by the Middlesex County Sheriff's Office. In January 2014, they were suspended without pay pending termination after it was learned that they, or someone on their behalf, paid the then Middlesex County Sheriff, Joseph Spicuzzo,2 to obtain their positions. Plaintiffs served a verified complaint and order to show cause with temporary restraints, seeking to be restored to the county payroll pending the outcome of departmental charges. The 1 This appeal concerns the sanctions assessed for frivolous litigation under Rule 1:4-8. Two other appeals concern the dismissal of a prerogative writ action where plaintiffs sought to challenge their termination from employment. See Thomas Varga v. Middlesex County (A-5238-14) and Christopher Jarema v. Middlesex County (A-5250-14). 2 Spicuzzo was convicted of bribery in official and political matters, N.J.S.A. 2C:27-2. 2 A-1564-14T3 complaint relied on the Attorney General's Internal Affairs Policy and Procedures (Guidelines)3 and N.J.S.A. 40A:14-149.1 as authority for reinstatement. Defendants sent a letter dated January 24, 2014, demanding that plaintiffs' counsel voluntarily dismiss the verified complaint or defendants would seek dismissal and then request sanctions under Rule 1:4-8. The letter advised there was "no basis in law or fact" for the claim that plaintiffs' suspensions violated the law because, as sheriff's investigators, they were at-will employees who served at the pleasure of the sheriff, citing to N.J.S.A. 40A:9-117a. Defendants advised that N.J.S.A. 40A:14- 149.1 only applied to municipal police officers. Further, the Guidelines, relied on by plaintiffs, allowed "immediate suspension" without pay where "necessary to maintain safety, health, order or effective direction of public services,"4 such as 3 The Guidelines were not included in the record. They can be found at State of New Jersey Division of Criminal Justice, Internal Affairs Policy & Procedures, (September 2011), https://www.eastbrunswick.org/filestorage/204/299/1622/internala ffairs2000v1_2.pdf . 4 State of New Jersey Division of Criminal Justice, Internal Affairs Policy & Procedures, 18 (September 2011), https://www.eastbrunswick.org/filestorage/204/299/1622/internala ffairs2000v1_2.pdf . The Guidelines were revised in July 2014 and November 2017, but the condition cited above has not been revised. 3 A-1564-14T3 here, where plaintiffs "engaged in bribery to obtain their positions." Finally, the letter advised that the "admission [by plaintiffs] of bribery is an allegation of dishonesty and moral turpitude," citing Herzog v. Township of Fairfield, 349 N.J. Super. 602, 608 (App. Div. 2002) as authority for the suspensions. Plaintiffs declined to withdraw the complaint, arguing that at-will employment was not relevant where termination was sought "through an internal affairs complaint." They contended Herzog only applied if they were charged with a criminal offense or an "equivalent to the most serious crimes involving moral turpitude or dishonesty." Defendants responded, again warning about sanctions. On March 10, 2014, the trial court denied the requested restraints, finding there would be no irreparable harm by the loss of pay incident to the suspensions. Plaintiffs were unlikely to be successful on the merits because as sheriff's investigators, they were at-will employees under N.J.S.A. 40A:9-117a. The statute cited by plaintiffs, N.J.S.A. 40A:14-149.1, did not apply. Because plaintiffs were accused of having paid a bribe to obtain employment, the alleged violation equated with a crime involving moral turpitude that would justify suspension without pay under Herzog. The Guidelines allowed for a suspension without pay at 4 A-1564-14T3 the discretion of the appointing authority. Finally, the court found that plaintiffs' interests did not outweigh the public interest in addressing public corruption. On April 25, 2014, the trial court granted defendants' unopposed motion to dismiss the verified complaint under Rule 4:6- 2(e). In May 2014, defendants filed a motion under Rule 1:4-8 for reasonable attorney's fees and costs in defending against the order to show cause and verified complaint. Defendants contended that plaintiffs did not withdraw the baseless complaint despite notice and an opportunity to do so. Defendants' counsel submitted a "certification of reasonable attorneys' fees and costs" that identified the attorneys who worked on the case, their hourly rates, the hours they worked, and the fees incurred for making the motion for sanctions and costs. The professional biographies of counsel were included to "enable the [c]ourt to review the criteria required in deciding the award of attorneys' fees and costs." At oral argument on the sanctions motion, counsel for plaintiffs argued that plaintiffs had certain protections that arose from Herzog and the Guidelines. Counsel contended that sanctions should not be imposed in the absence of bad faith. Here, defendants had not shown plaintiffs acted in bad faith or that they were unfit for their positions as investigators. Counsel did 5 A-1564-14T3 not address whether the attorney's fees and costs requested by defendants were reasonable. On July 31, 2014, the court imposed sanctions under Rule 1:4- 8. In its comprehensive written opinion, the court found that "[p]laintiffs and their counsel must have known, or at least should have known, that their [c]omplaint had no reasonable basis in law or equity." Plaintiffs never addressed the at-will employment statute, N.J.S.A. 40A:9-117a, and the statute they cited, N.J.S.A. 40A:14-149.1, did not apply to sheriff's investigators. By this omission, counsel "seem[ed] to have chosen to feign [N.J.S.A. 40A:9-117a's] nonexistence." Further, plaintiffs did not address Herzog which was "directly adverse." This omission was "evidence of the frivolity with which this action was brought." The court awarded attorney's fees "due to the underlying frivolity of the substantial majority of [p]laintiffs' original claims and the repeated failure of [p]laintiffs' counsel to address or acknowledge adverse legal authority." The court did not rely on plaintiffs' citation to the Guidelines. Plaintiffs objected to the proposed form of the order. See R. 4:42-1(c) (allowing order to be signed if the court is satisfied the order accurately sets forth its disposition). Plaintiffs requested a hearing about the amount of the proposed fees. 6 A-1564-14T3 The court entered the sanctions order on July 31, 2014 over this objection, requiring plaintiffs' counsel to pay defendants' counsel fees and costs of $7584.52 in ten days. The court declined to hold a hearing, noting that plaintiffs' counsel "raised no objection to the accountings . . . during the pendency of the underlying motion when any such opposition would have been appropriate." In plaintiffs' motion for reconsideration, they asserted the court failed to consider certain of their arguments. They contended, for the first time, that N.J.S.A. 40A:9-117a was not relevant because the appropriate question was whether a sheriff's investigator could be suspended without pay and not whether they could be terminated from employment as at-will employees. Counsel argued that they advanced non-frivolous claims, asserting that Herzog "cannot be considered as offering binding precedent" because it is "internally contradictory." Counsel suggested the court should have considered mitigating factors, such as the lack of a prior offense, in assessing the amount of the sanction. In a supplemental letter brief, plaintiffs asked the court to consider the factors in Rule of Professional Conduct 1.5, questioning why the case was handled by three partners, the number of hours and the costs incurred. The trial court denied the motion 7 A-1564-14T3 for reconsideration on September 12, 2014. The court explained that "after defendant requested the complaint be dismissed, plaintiffs failed to do so forcing defendants to file a motion to dismiss that was unopposed. Had plaintiffs withdrawn the complaint in January at the request of the defendants, it's very possible that sanctions would never have been awarded." In this appeal, plaintiffs allege the trial court erred in finding the underlying litigation was frivolous and in assessing sanctions. Plaintiffs also argue the court should have conducted a hearing to determine what fees were reasonable. II We review the court's order that imposed sanctions under Rule 1:4-8 and the order that denied reconsideration under an abuse of discretion standard. United Hearts, LLC v. Zahabian, 407 N.J. Super. 379, 390 (2009). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571, (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Litigation is frivolous that is "commenced, used or continued in bad faith, solely for the purpose of harassment, delay or 8 A-1564-14T3 malicious injury" or where the party "knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law." N.J.S.A. 2A:15-59.1(b). Sanctions can be requested under Rule 1:4-8. They will be denied where the pleading party had an objectively reasonable and good faith belief in the merit of the claim. See First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 433 (App. Div. 2007). A party seeking sanctions under Rule 1:4-8 must meet certain notice requirements.5 Zahabian, 407 N.J. Super. at 389. We discern no abuse of discretion here. The trial court thoroughly explained why sanctions were being imposed. Plaintiffs relied on the wrong statute, and did not mention the one that applied to sheriffs' investigators, even though that oversight was pointed out by defendants in time to have addressed it. Counsel cited no authority to support the incipient argument that the appointing authority could terminate investigators without cause, but not suspend them without pay. Plaintiffs did not distinguish Herzog, which allows suspension without pay "where conduct 5 There is no dispute defendants satisfied the requirements of Rule 1:4-8(b)(1). 9 A-1564-14T3 equivalent to the most serious of crimes involving moral turpitude or dishonesty is supportably alleged." 349 N.J. Super. at 608. Herzog is precedential and directly adverse to plaintiff’s position. Plaintiffs obtained their law enforcement positions through dishonesty. Plaintiffs now rely on the Guidelines as their "main" argument. However, under those Guidelines, the appointing authority had the discretion to suspend without pay. We reject plaintiffs' assertion that the appointing authority could not suspend without pay as "necessary to maintain the order and effective direction of public services" where a public employee has obtained his or her position through an act of corruption. The court did not abuse its discretion in denying reconsideration, which 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). "[A] trial court's reconsideration decision will be left undisturbed unless it represents a clear abuse of discretion." Pitney Bowes Bank, Inc. 10 A-1564-14T3 v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). Plaintiffs provided nothing new for the court's reconsideration, arguing simply that the court failed to fully appreciate the arguments they had made. Plaintiffs did not challenge the amount of the attorney's fees requested when they were before the trial court. They raised it for the first time when they opposed the form of the order. We perceive no abuse of discretion, in any event, because the unrefuted certification from defendants' counsel provided the information necessary to support the imposition of sanctions. Affirmed. 11 A-1564-14T3

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Docket No.: a2577-16
Decided: 2018-02-08
Caption: IN THE MATTER OF THE EXPUNGEMENT OF E.M.
Status: unpublished
Summary:
PER CURIAM After E.M. fulfilled all but one condition of pretrial intervention, the trial court entered a June 2013 order dismissing the indictment charging him with second-degree conspiracy to 1 We grant petitioner's renewed request, which is unopposed, to shield his name and to impound the record. commit theft; second-degree theft; and second-degree financial facilitation of criminal activity. The one remaining unfulfilled condition was payment of restitution of over $58,000. Defendant had dutifully paid $102 a month, as ordered, but a balance of over $55,000 remained. The court ordered entry of a civil judgment in favor of the Probation Division for that amount. Over two years later, still dutifully reducing his amount due, E.M. filed a verified petition to expunge the record of his arrest, indictment and related proceedings, pursuant to N.J.S.A. 2C:52-6. The prosecutor initially opposed the petition, contending that (1) the arrest was "the subject matter of civil litigation," N.J.S.A. 2C:52-14(d); and (2) "the need for the availability of the records outweigh[ed] the desirability" of expungement, N.J.S.A. 2C:52-14(b). The trial court thereafter dismissed defendant's petition without prejudice "because petitioner owes a balance." E.M. appeals, arguing that his outstanding financial obligation is not an impediment to expungement. Abandoning its position before the trial court, the State now agrees. Noting that the trial court did not rely on its "need for the availability of records" argument, the State also does not renew that position before us. 2 A-2577-16T3 We agree with the parties and write briefly because the issue is capable of repetition. The question is a purely legal one that we review de novo. In re Expungement Petition of J.S., 223 N.J. 54, 72 (2015). We need look no further than the plain, unambiguous language of the statute. In re Kollman, 210 N.J. 557, 568 (2012). A person is generally entitled "to expungement of all records and information relating to [an] arrest or charge" after dismissal, acquittal, or discharge without a conviction or finding of guilt. N.J.S.A. 2C:52-6(a). However, "[a]ny person who has had charges dismissed against him [or her] pursuant to a program of supervisory treatment pursuant to N.J.S.[A.] 2C:53-12 [pretrial intervention] . . . shall be barred from the relief provided . . . until six months after the entry of the order of dismissal." N.J.S.A. 2C:52- 6(c)(1). E.M. satisfied those prerequisites. Therefore, he was presumptively entitled to expungement, and the burden shifted to the State to establish a basis for denying relief under N.J.S.A. 2C:52-14. See Kollman, 210 N.J. at 569-70 (discussing shifting burdens). As the State now concedes, an outstanding judgment, consisting of a restitutionary balance due, does not render E.M.'s "arrest . . . the subject matter of civil litigation." N.J.S.A. 2C:52-14(d). That provision refers to pending civil litigation. 3 A-2577-16T3 State v. J.R.S., 398 N.J. Super. 1, 5 (App. Div. 2008). Also, the "civil litigation" exception was apparently designed to assure that the litigant is not deprived of the information necessary to prosecute or defend the litigation. Id. at 5-6. There is no pending litigation here, nor does the Probation Division need to use E.M.'s arrest records to enforce the civil judgment, which shall survive the expungement. Therefore, we reverse the trial court's order and remand for entry of an order of expungement. 4 A-2577-16T3

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Docket No.: a3059-15
Decided: 2018-02-08
Caption: HARRY GULUTZ v. KAREN GULUTZ
Status: unpublished
Summary:
FUENTES, P.J.A.D. This matter originated in the Law Division, Special Civil Part when plaintiff Harry Gulutz filed a complaint against his former wife Karen Gulutz to collect $7160.07 that she borrowed on November 11, 2012. Defendant memorialized her debt to plaintiff in a handwritten note signed by both parties on November 16, 2012. In this note, defendant promised to pay plaintiff from the proceeds of the sale of their marital home "within [two] weeks or by December 2, 2012." Plaintiff began this collection action when defendant failed to pay the debt. In lieu of an answer, defendant moved to transfer the matter to the Family Part pursuant to Rule 5:1-2(a), claiming the dispute arises from the provision in the Property Settlement Agreement (PSA) that addressed and resolved the equitable distribution of the marital estate. The parties executed the PSA on August 23, 2011 and the Family Part incorporated it in the final Judgment of Divorce (JOD) entered that same date. In an order dated August 26, 2013, the Family Part granted defendant's motion. However, in an order dated September 13, 2013, the Family Part Judge who would eventually decide this dispute, sua sponte directed the parties to re-file their requested relief in Family Court in accordance with New Jersey Court Rules. In addition, all future filings in this matter are to be made in Family Court . . . Any requested relief not specifically addressed in this Order is DENIED. Thereafter, the parties engaged in unspecified discovery and added a number of claims based on alleged failures to abide by the 2 A-3059-15T1 terms of the PSA. In response to the parties'1 cross-motions seeking relief in a variety of areas related to past and present financial obligations, the judge entered an order on December 20, 2013 that "RESERVED" decision pending the outcome of a plenary hearing on all of the six specific requests for relief sought by plaintiff. With respect to the two specific requests sought by defendant, the judge granted her request and ordered plaintiff to provide her the business K-1's for 2012 including any required compensation and same going forward . . . [t]he Plaintiff is hereby ordered to provide the Defendant with the business K-1's for Gordon New Brunswick MAB Urban Renewal, LLC and VG Resources, LLC. Section 6.8 of the parties' PSA states that the wife shall be entitled to ten percent (10%) of the Husband's share of all future distributions and profits paid in regard to Gordon New Brunswick MAB Urban Renewal, LLC and VG Resources, LLC. Plaintiff is to provide the wife on an annual basis copies of the K-1['s] relating to these businesses, as proof of all distributions and/or profits paid. Said K-1's shall be provided to the wife by April 1st of each year, or as soon thereafter as same become available. The judge "RESERVED" decision pending the outcome of a plenary hearing with respect to defendant's request to require plaintiff "to pay 50% of the bills and maintenance of the marital home and the outstanding IRS payments totaling $5864." 1 Defendant was pro se at the time the Family Part decided these cross-motions. However, she was represented by counsel thereafter, including during the plenary hearing. 3 A-3059-15T1 Finally, the judge provided the parties with forty-five days to complete discovery. "Written requests," which included both interrogatories and a demand for production of documents, had to be made within fifteen days with responses due thirty days after. When the discovery period concluded, "the parties [were] to contact the calendar coordinator to schedule the plenary hearing." In October 2014, plaintiff sold his interest in the business known as VG Resources, LLC, for $500,000. Section 6.8 of the PSA addressed the "Distribution of Businesses and Business Interests." Plaintiff took the position that defendant expressly agreed under Section 6.8 to limit her claims to this business to ten percent of plaintiff's "share of all future distributions and profits paid[.]" According to plaintiff, defendant agreed to this limitation in return for not having any "obligation and/or liability associated with [this business] at any time in the future." Furthermore, plaintiff argued that consistent with this provision in the PSA, he contributed approximately $259,000 to VG Resources, LLC, after the divorce. He also had a dispute with his partners, which ultimately settled when plaintiff agreed to accept "a gross sale[s] price of $500,000." Defendant viewed her rights under the PSA differently. She filed an Order to Show Cause claiming she was entitled to a share of the $500,000. Despite the language in Section 6.8 of the PSA 4 A-3059-15T1 that limits defendant's putative claim to "ten percent (10%) . . . of all future distribution and profits," which in this case would be $50,000, the court ordered plaintiff's counsel to hold $100,000 in escrow pending the outcome of a plenary hearing. The plenary hearing took place over two days on May 7 and 12, 2015. In addition to the parties, plaintiff called a certified public accountant "for the purpose of testifying as to what the basis is with respect to the purchase of Mr. Gulutz's interest in VG and CNV. What he received, how . . . the basis was established. And, also from an accounting standpoint, whether the transaction would trigger the issuance of a K-1." The judge accepted this witness "as an expert in accounting." Defendant called the attorney who represented her during the dissolution of the marriage, including the negotiation of the PSA. The judge made his factual findings and conclusion of law on September 15, 2015. The judge found defendant's testimony credible. He based this on his observation of her testimony, and on "how she answered the questions during the course of the plenary hearing[.]" Conversely, he found plaintiff was "not credible." The judge concluded plaintiff's answers were "evasive, and[] sometimes confrontational." The judge also characterized plaintiff's answers to the sale of the business as "split[ting] hairs." He gave as an example plaintiff's response distinguishing 5 A-3059-15T1 between the word "buyout" and "sale." The judge noted that plaintiff insisted that "[t]his was no buying out of [his] interest because another entity owned it" which, the judge explained was "not true, because his partners bought him out of the entity." The judge concluded this was merely a semantic, legally inconsequential distinction because "[i]n the end, he did receive $500,000." In construing Section 6.8 of the PSA, the judge rejected plaintiff's argument that defendant is not entitled to any part of the $500,000 because it was not "profits and distributions." According to the judge, acceptance of plaintiff's construction of the language used in Section 6.8 would mean defendant would "get nothing from a marital asset[.]" In the judge's view, this "[m]akes no sense." The judge also found credible the testimony of Eileen Foley, the attorney who represented defendant during the negotiations of the terms of the PSA which led to the ultimate divorce judgment. Of specific relevance here, Ms. Foley testified that defendant agreed to accept only ten percent of the sale of VG Resources, which was less than her fair share of this marital asset, "to not have to make contributions, and[] avoid any liabilities." The judge ultimately reached the following conclusion: 6 A-3059-15T1 The [c]ourt finds that the defendant agreed to take a smaller percentage than what she was entitled to, to avoid having to contribute in the future. This was testified to by Ms. Foley, her attorney from the underlying matrimonial action. Also, this was the credible testimony of the defendant. In addition, . . . [the PSA] required it to be secured in his will. To interpret the [PSA] in a [manner] that supports the plaintiff's position would be grossly unfair to the defendant. If she was not entitled, why would there be . . . language in the [PSA] requiring him to provide closing documents? In short, the plaintiff's argument is, you didn't receive ten percent of any profits or distributions, as there were none. And, now that I've been bought out, and received a half million dollars, you get nothing. Even though it was a marital asset. The [c]ourt finds that she is entitled to ten percent. Against this factual backdrop, plaintiff now argues that the judge's decision improperly rewrote the PSA to award defendant a share of plaintiff's buyout that she was not legally entitled to receive. We disagree. We begin our analysis by reaffirming a well-settled principle of appellate jurisprudence. We accord deference to the Family Court's decisions because of its "special jurisdiction and expertise," especially "in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Furthermore, the factual findings made by a trial judge "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. This deference is particularly 7 A-3059-15T1 appropriate "when the evidence is largely testimonial and involves questions of credibility." Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). However, our review of the court's legal conclusion is de novo because "the trial court is in no better position than we are when interpreting a statute or divining the meaning of the law." D.W. v. R.W., 212 N.J. 232, 245 (2012). Here, we discern no basis to disturb the Family Part Judge's factual findings. The judge emphasized that his credibility findings were influenced by the opportunity he had to observe the witnesses' testimony, including their demeanor. The judge's conclusion that defendant was entitled to receive ten percent of the $500,000 plaintiff received from his disposition of a marital asset was supported by a plain reading of the language negotiated by the parties in the PSA and incorporated by the court in the JOD. In reviewing a contract, a court must enforce the intent of the parties under the express terms of the contract, considering both its underlying purpose and based on the circumstances surrounding its formation. Cypress Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 415 (2016). We are also obliged to effectuate each provision of a contract in accordance with its plain meaning and avoid rendering any provision superfluous or 8 A-3059-15T1 simply surplusage. Highland Lakes Country Club & Cmty. Ass'n v. Franzino, 186 N.J. 99, 115-16 (2006). The conclusion reached by the Family Part here is in full accordance with these principles. We discern no legal basis to disturb it. Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a legal opinion. R. 2:11-3(e)(1)(E). Affirmed. 9 A-3059-15T1

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Docket No.: a3136-16
Decided: 2018-02-08
Caption: IN THE MATTER OF MOTOR VEHICLE COMMISSION SURCHARGE SYSTEM ACCOUNTING AND BILLING SERVICES
Status: unpublished
Summary:
PER CURIAM In this public bidding case, Xerox State & Local Solutions, Inc. ("Xerox"), the former incumbent provider of services to the New Jersey Motor Vehicle Commission ("MVC"), appeals an award of a successor contract by the Division of Purchase and Property ("the Division"). The Division awarded the new contract to the only other bidder, Gila, LLC, doing business as Municipal Services Bureau ("MSB"). Xerox appeals from both the contract award to MSB and the Division's February 17, 2017 final agency decision denying its bid protest. For the compelling reasons that follow, we conclude that MSB's bid, which included a lengthy footnote on its pricing sheet seeking "necessary" additional compensation, was materially non- conforming. The Division strayed from well-established legal principles in unfairly allowing MSB to modify its quote and withdraw that pricing caveat after the bids were opened. Consequently, we reverse the Division's ruling, and remand with instructions for the agency to re-bid this contract on an expedited basis. I. The RFP In June 2015, the Division issued a Request for Proposals ("RFP") on behalf of the MVC and the Division of Revenue and Enterprise Services ("DORES") within the Department of the 2 A-3136-16T2 Treasury. The RFP solicited bids from contractors to develop and implement a new billing and collection system for obtaining and processing MVC surcharge payments owed by motorists under the motor vehicle laws. Among other things, the scope of the contract included surcharge billings, collections, disbursement and reconciliation of payments, handling correspondence, and fielding telephone inquiries. At the time the RFP was issued, Xerox was the vendor providing collection services to the MVC under the then-existing system.1 Xerox provides similar services to other governmental agencies outside of New Jersey. The impetus of the RFP was to phase out the then-existing system and replace it with an improved one. MSB likewise has provided collection services to other jurisdictions, including the State of Texas. Under the applicable procurement statute, N.J.S.A. 52:34- 12(a)(g), and an associated regulation, N.J.A.C. 17:12-2.2, the Division was obligated to award the new contract to "that responsible bidder whose bid, conforming to the invitation for bids, will be most advantageous to the State, price and other factors considered." The RFP incorporated this standard. 1 Xerox's contract, which had been extended, expired in October 2017. 3 A-3136-16T2 The RFP contemplated that the successful bidder would not be paid a monetary contract price by the State. Rather, it contemplated that the vendor would be compensated mainly or entirely by receiving an agreed-upon percentage commission out of the surcharge receipts collected from motorists. Bidders were presented with an opportunity to submit questions about the RFP. After that period ended, the bidder proposals were initially due on August 13, 2015. The Bureau ultimately postponed that deadline to October 15, 2015. The Parties' Bids and Pricing Sheets On October 15, 2015, two proposals were received by the 2:00 p.m. submission deadline: one from Xerox and one from MSB. They were opened that day and were forwarded to the Division's Procurement Bureau. Both proposals were sent to an Evaluation Committee for review. The Evaluation Committee was comprised of six voting members, including representatives from the New Jersey Office of Information Technology ("OIT"), MVC, the Division, and DORES. Twelve subject matter experts served as technical advisors to the Committee. They included representatives from DORES, MVC, the Division, and OIT. In addition, four external consultants served as advisors to the Committee. The Committee performed a technical review of the two submitted proposals, examining criteria relating 4 A-3136-16T2 to such subjects as personnel, firm experience, and the vendor's ability to complete the work under the new contract. Sections 4.4.1.8 and 4.4.5 of the RFP required bidders to submit their price quotes using the format of a "State-supplied price sheet/schedule(s)" accompanying the RFP. RFP § 4.4.5 specifically instructed bidders that a "[f]ailure to submit all information required will result in the proposal being considered non-responsive." The required format consisted of a multi-column "All-inclusive Pricing Sheet." The pricing sheet's first column, which was pre-printed, designated nine separate cost categories: "Transition, Non- recurring/One-time Costs;" "Customer Service, Support and Primary Collections;" "Printing and Mailing Notices and Correspondence;" "Returned Mail Processing;" "Accepting and Processing Payments;" "Document & Image Management;" "Collections-Litigation Services;" "Systems and Technology;" and "Option-Maintenance and Support of STARS."2 The second column, which was also pre-printed in the RFP, described the "Unit of Measure," such as the "Contingency Fee as 2 STARS referred to the existing collections system, which the MVC was seeking to replace through this procurement. It was contemplated that the selected bidder would operate STARS for a temporary start-up period, but then discontinue doing so within a specified timeframe. 5 A-3136-16T2 a Percentage of Revenue Collected," the Cost-Per-Piece for printing, mailing or document imaging, and the Cost-Per- Transaction-Type for various kinds of mailed, manual, and electronic payment processing. The pricing sheet's third column – which is the one most significant to the present appeal – required each bidder to specify the contingency fee percentage or cost-per-unit that it proposed to be paid over the seven-year contract period. With respect to printing and mailing costs, RFP § 3.3.4 instructed that bidders "shall include all costs associated with printing and mailing notices . . . ." The pricing sheet Xerox submitted with its bid proposal included a contingency fee for customer service, support and primary collections of 3.79%, and a separate contingency fee of 14.90% for collections relating to litigation services. Xerox further proposed per-unit costs of $0.79 for printing and mailing notices and correspondence; $0.60 for processing non-electronic payments; and $2.50 for processing electronic payments. Xerox also quoted transition costs of $699,426. For the seven-year duration of the contract, the collection of nearly $789 million in total surcharge revenue was projected, and nearly $47 million in revenue from collections litigation. 6 A-3136-16T2 Xerox's pricing sheet contained no footnotes, disclaimers, or conditional language. Xerox did omit cost entries for returned mail processing and document and image management, filling in those two boxes on the spreadsheet with dashes ("—"). Xerox provided no optional monthly contract cost for operating STARS, consistent with its role as the incumbent vendor already using STARS. MSB's pricing sheet included quotes for only three items in the spreadsheet's third column. Specifically, MSB proposed a 4.35% contingency fee percentage for customer service, support and primary collections (as compared with Xerox's lower quote of 3.79%), a 10.00% contingency fee percentage for litigation collections (as compared with Xerox's higher quote of 14.90%), and a monthly contract cost of $28,500 for maintaining and supporting STARS (as compared with Xerox's omission of that optional charge). MSB's Pricing Footnote Critically relevant to the present appeal, MSB's pricing sheet contained the following caveat in a footnote preceded by double3 asterisks ("**"): Price does not include a surcharge partial payment processing fee per payment processed and electronic payment (ACH and credit card) 3 There was no single-asterisked footnote (*), nor any other footnotes. 7 A-3136-16T2 convenience fee which is paid by constituent at time payment is tendered. Both the installment payment fee and convenience fee can be negotiated with the State and are necessary components to maintain the pricing shown in cell C7[.] [(Emphasis added).] The footnote appears in space on the right side of the pricing spreadsheet. There is no corresponding double asterisk (**) within the spreadsheet itself. Events After the Bids Were Opened After the bids of Xerox and MSB were opened, they were referred to the Evaluation Committee for review. Meanwhile, the Bureau identified several aspects of MSB's bid as to which it requested "clarification."4 The Bureau detailed these items in a November 16, 2015 letter to MSB's Chief Executive Officer. Of special pertinence here are the items concerning (1) printing and mailing costs and (2) transactional costs,5 the latter of which 4 We discuss the appropriate scope of a bidder's clarification, infra. 5 MSB's footnote refers to two categories of fees: (1) "partial payment processing fee[s]," also referred to by MSB as "installment payment fee[s];" and (2) "electronic payment (ACH and credit card) convenience fee[s]," also described by MSB as "convenience fee[s.]" The second category appears to encompass fees charged by credit card companies for transactions, as well as fees incurred when payments are made using a bank account routing number. For purposes of simplicity and brevity, we shall refer to the two categories collectively as "transactional" costs. 8 A-3136-16T2 were the subject of the aforementioned footnote on MSB's pricing sheet. With respect to printing and mailing costs for notices, the Bureau pointed out to MSB in the November 16 letter that its price sheet had omitted pricing for those items, despite the instruction in RFP § 3.3.4 to include such costs. The Bureau further pointed out to MSB that its narrative proposal (termed the "Mobilization and Implementation Plan") recited that "Unlike Texas's Surcharge Program [operated by MSB], mailing costs are entirely pass-through for the NJMVC Surcharge Program, for which the State compensates MSB for printing and postage expenses." (Emphasis added). Given this apparent ambiguity and lack of clarity, the Bureau requested MSB to "confirm that [its] price sheet as submitted incorporates all costs associated with printing and mailing." Further, the Bureau's November 16 letter pointed out MSB had stated in its narrative that "unlike Texas'[s] Surcharge Program, all credit card fees are pass-through and likewise paid by the State of New Jersey." (Emphasis added). In addition, the Bureau quoted MSB's aforementioned footnote on its pricing sheet, which had stated that the transactional costs (i.e., the "installment payment fees" and the "convenience fees") "can be negotiated with the State and are necessary components to maintain the pricing shown in [spreadsheet] cell C7." (Emphasis added). 9 A-3136-16T2 The Bureau's letter treated MSB's assertions in this regard relating to the transactional costs as inconsistent with Section 3.3.6 of the RFP, which called for the bidders to "accept and process credit card payments" and "handle payment of all costs associated with these services including discount fees . . . ." Rather than asking MSB to "clarify" or "confirm" its position on this discrete subject of transactional costs, the Bureau notably advised MSB in the November 16 letter to "[p]lease withdraw these statements above or withdraw your firm's proposal." (Emphasis added). Also of relevance here, the Bureau's November 16 letter pointed out that MSB's pricing sheet had omitted pricing for Accepting and Processing Payments, Transition, Non-recurring/One- time Costs, and for Systems and Technology, as called for under the RFP. As to these items, the Bureau requested MSB to "confirm" that its price sheet, as submitted, incorporated these specific costs. MSB responded to the Bureau's November 16 letter on November 23, attempting to address the items of concern. The Bureau was satisfied with respect to several of those responses. However, the Bureau remained dissatisfied with MSB's responses concerning (1) its pricing for printing and mailing costs, (2) credit card payments, and (3) the costs of accepting and processing payments. 10 A-3136-16T2 The Bureau was particularly dissatisfied with MSB's insistence on adhering to an undefined (or poorly-defined) "supporting fee structure" for the contract, as well as MSB's position that if the State did not maintain the so-called "supporting fee structure," MSB's pricing for the printing and mailing costs and transactional costs would need to be modified. The Bureau expressed its dissatisfaction in a November 24, 2015 letter to MSB, demanding that MSB either acknowledge it was not seeking payment for these additional items or, alternatively, withdraw its bid proposal. The Bureau's letter firmly stated in this regard: MSB's response to Clarification Request #2 states that "The State has asked MSB to withdraw its recommendation of this supporting fee structure in the State's Clarification Request #3a. Absent utilization of this supporting fee structure, the price listed for 'Customer Service, Support and Primary Collections' needs to be modified accordingly." Further, MSB's response to Clarification Request #3b states that "The State has asked MSB to withdraw its recommendation of this supporting fee structure in the State's Clarification Request #3a. Absent utilization of this supporting fee structure, the price listed for 'Customer Service, Support and Primary Collections' needs to be modified accordingly." The RFP makes no mention of a "supporting fee structure." In addition, RFP Section 4.4.5 requires the Bidder to "submit its 11 A-3136-16T2 pricing using the format set forth in the State-supplied price sheet/schedule(s) accompanying this RFP," and "Failure to submit all information required will result in the proposal being considered non-responsive." The State requires that MSB confirm that the pricing submitted is inclusive of all costs and addresses all requirements of the RFP or it must withdraw its proposal. Your firm's response must be received no later than 5:00 p.m. on Friday, November 27, 2015. Failure to respond may result in your firm's proposal being considered non- responsive. [(Original emphasis in BOLD face; underlined emphasis added).] Having been pressed by the Bureau on these pricing issues a second time, MSB relented. In a November 27, 2015 letter, MSB confirmed to the Bureau that "the pricing submitted is inclusive of all costs and addresses all requirements of the RFP." There was no further discussion thereafter of MSB's pricing sheet footnote. The Bureau also exchanged correspondence with Xerox, seeking and obtaining clarification as to various topics. None of those clarifications, however, involved payment for printing or postage costs, or for transactional costs. In December 2015, the Bureau requested that MSB and Xerox each submit a Best and Final Offer ("BAFO"). MSB declined to reduce its pricing in a BAFO. Xerox, meanwhile, submitted a BAFO 12 A-3136-16T2 that slightly reduced its quoted contingency fee for non- litigation collections from 3.79% to 3.74%, and its litigation contingency fee rate from 14.90% to 14.69%. Xerox also slightly adjusted downward several of its previously quoted per-unit costs. The Award to MSB On March 8, 2016, the Evaluation Committee submitted its report to the Bureau after completing its review of the bids. The Committee recommended that the agency award the contract to MSB. The following comparative table shows the Committee's final technical scores, pricing, and ranks for both MSB and Xerox: Bidder Average Total Cost of Final Rank Technical Proposal Score Gila LLC d/b/a 795 $38,164,000 1 Municipal Services Bureau (MSB) Xerox State & 512 $62,129,022 2 Local Solutions, Inc. (Xerox) 13 A-3136-16T2 The Committee's report concluded that MSB "presented the most advantageous proposal to the State, price and other factors considered[,]" and respectively recommended "that MSB be awarded the contract for the development of a new Surcharge Billing and Collection System and provide surcharge services . . . ." The Division followed the Evaluation Committee's recommendation. On March 15, 2016, the Division accordingly issued a notice advising both bidders that it was the State's intention to award the contract to MSB. Xerox's Bid Protest Xerox protested the contract award. In March 2016, Xerox sent the Division a request for extension of time and notice of its intention to protest the award. In that initial protest letter, Xerox focused upon MSB's alleged non-compliance with the pricing requirements of the RFP. Xerox thereafter obtained additional documents about this matter, pursuant to a request it had made under the Open Public Records Act, N.J.S.A. 47:1A-1 to - 13. In May 2016, Xerox sent the Division a supplemental protest letter. That letter encompassed the various arguments that Xerox now raises on appeal, including contentions going beyond the pricing concerns raised in Xerox's initial protest. 14 A-3136-16T2 The Division Director declined Xerox's request for an in- person hearing. She confined her consideration of the bid protest to the items within the written record, as permitted by N.J.A.C. 17:12-3.3(d)(1). The Director's Decision On February 17, 2017, the Director issued a written final agency decision denying Xerox's bid protest and upholding the award of the contract to MSB. The Director rejected each of the arguments Xerox raised in challenging the award. Most of the Director's analysis addressed issues unrelated to the propriety of MSB's pricing. As to the pricing issue, the Director concluded that MSB's price quote did not materially deviate from the RFP. The Director acknowledged that, with respect to printing and postage costs, a "discrepancy" had existed between MSB's narrative proposal stating that the State would compensate MSB for those costs, and MSB's price sheet, which had not listed "any per unit or percentage costs associated with the printing and mailing of notices . . . ." The Director found it permissible for MSB to "clarify" its position concerning those printing and mailing costs in its correspondence with the Bureau after the bids had been opened. As a result of that clarification process, MSB stated that the price as originally submitted on its price sheet was 15 A-3136-16T2 inclusive of those particular costs. Hence, the Director concluded that MSB's pricing proposal had been responsive. Notably, the Director's final agency decision did not specifically analyze the separate transactional costs that were also the subject of Xerox's bid protest. The decision mentioned, but did not analyze, the footnote in MSB's pricing sheet. Nor did the decision analyze the significance of MSB's assertion that the transactional costs "can be negotiated with the State and are necessary components to maintain the pricing shown in cell C7." Nor did it explain why MSB's original position concerning the transactional costs, as had been expressed in the footnote and in MSB's narrative proposal, did not comprise a material deviation from the RFP's criteria. Xerox promptly requested that the Division reconsider the denial of the bid protest. Xerox also sought an administrative stay of the contract award. On March 28, 2017, the Acting Division Director6 denied reconsideration and the request for a stay. He found "no reason to disturb" his predecessor's decision, and, moreover, that Xerox had not demonstrated the factors under Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982), for obtaining a stay or injunctive relief. 6 By that point, the Director who had issued the final agency decision the previous month was no longer in office. 16 A-3136-16T2 Xerox's Appeal and Requests for a Stay Xerox appealed the contract award to this court. It moved, initially on an emergent basis, for a stay of the contract award to MSB pending appeal. Xerox raised, among other things, concerns about the appeal becoming moot if a stay were denied. In opposing the stay request, the Division and MSB asserted that it was in the public interest for the contract award to MSB to go forward because MSB was receiving a comparatively much-lower payment for its services than the rates Xerox had quoted, and also because the prompt implementation of a new surcharge payment processing system would be beneficial. In May 2017, a panel of this court denied Xerox's motion for a stay pending appeal, but ordered that the appeal be accelerated. Xerox then moved for relief before the Supreme Court, which the Court denied in June 2017. In September 2017, Xerox moved a second time for a stay pending appeal. Xerox expressed concerns that its contract was about to expire in October 2017, and that MSB apparently was poised to begin the successor contract.7 Another panel of this court 7 Notably, MSB stated in its September 19, 2017 letter brief opposing Xerox's second stay motion that, if a stay were denied, the appeal would not be moot because the awarded contract has a term of seven years. In particular, MSB asserted at that time that "even if Xerox were somehow able to demonstrate error, the 17 A-3136-16T2 denied this second stay motion in October 2017. After the accelerated briefing of this matter was completed in the fall of 2017, the appeal was placed on this court's oral argument calendar on a preferential basis. Prior to oral argument, we requested additional documents, including a full copy of the RFP, which counsel kindly furnished. II. Xerox's main argument on appeal is that MSB's pricing bid materially deviated from the RFP and that the Division erred in awarding it the contract. Xerox submits that MSB's retrenchment from the position it took in its pricing form, including the footnote concerning transactional costs, cannot legitimately be treated as a permissible "clarification."8 Xerox urges that the award to MSB be reversed, and that it either be awarded the contract immediately or, alternatively, that the contract be re- bid on an expedited basis. appeal would not be moot nor would the contract be substantially complete." MSB noted in this regard the possibility that this court might reverse the award and "somehow return[] Xerox as the vend[o]r." That would potentially impose "start-up costs which Xerox does not wish to pay," but such a concern, MSB asserted, "does not mean that the appeal would be moot, nor does it justify granting a stay." 8 Xerox advances several alternative arguments to set aside the award, none of which are persuasive. We touch upon them briefly, infra, in Part III of this opinion. 18 A-3136-16T2 The Division and MSB counter that MSB's bid was not materially defective, that the clarification process used here was appropriate, and that there is no basis to set aside the award. They also continue to oppose any injunctive or other judicial relief. A. In considering the merits of the appeal, we are acutely mindful that generally the State Treasurer and the Division are afforded "great flexibility in awarding a contract to the bidder whose proposal will be most advantageous to the State, taking into consideration all factors." In re Honeywell Information Sys., Inc., 145 N.J. Super. 187, 200 (App. Div. 1976). When choosing between or among responsive bids, the Treasurer or Director "necessarily is required to exercise the sound business judgment of an executive based on all available data, expertise and advice which he may be able to garner from all available sources." Ibid. (citations omitted). Hence, the scope of judicial review of the agency's ultimate selection among responsive bidders normally is very limited. Commercial Cleaning Corp. v. Sullivan, 47 N.J. 539, 549 (1966). Even so, it is also well established that such wide deference to procurement officials does not extend to questions of bid conformity, or the legal requirements of the bidding process. As this court observed when invalidating a State 19 A-3136-16T2 Treasurer's award of a contract to a non-responsive bidder in In re the Protest of Award of On-Line Games Prod. and Operation Servs. Contract, Bid No. 95-X-20175 ("On-Line Games"), 279 N.J. Super. 566, 592-93 (App. Div. 1995), agency decisions "as to the responsibility of the bidder and bid conformity are to be tested by the ordinary standards governing administrative action[,]" rather than the "gross abuse of discretion standard . . . ." As (then-Judge) Long noted in On-Line Games, an increased level of appellate oversight is justified in such a context because "strict rules as to bid conformity are critically important . . . because of the broad discretion available to the Treasurer in actually awarding the contract." Id. at 593. Hence, the scope of appellate review of bid conformity issues, such as the main challenge that Xerox mounts here, focuses upon: (1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings . . . ; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Ibid. (quoting George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994) (internal citations omitted)). See also In re Jasper Seating Co., 406 N.J. Super. 213, 222-23 (App. Div. 2009) (applying that standard of review); State v. Ernst & Young, 20 A-3136-16T2 L.L.P., 386 N.J. Super. 600, 619 (App. Div. 2006) (reaffirming the less deferential standard for the review of decisions on bid conformity).] The governing law is also well settled concerning the materiality of bid provisions. "It is firmly established in New Jersey that material conditions contained in bidding specifications may not be waived." Terminal Constr. Corp. v. Atlantic Cty. Sewerage Auth., 67 N.J. 403, 411 (1975) (citing Township of Hillside v. Sternin, 25 N.J. 317, 324 (1957)). "This rule, however, does not apply to minor or inconsequential conditions." Ibid. As we explained in On-Line Games, the two-prong test for materiality is as follows: (1) "whether the effect of a waiver would be to deprive the [contracting agency] of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements;" and (2) "whether [a deviation] is of such a nature that its waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition." On-Line Games, 279 N.J. Super. at 594-95 (quoting Township of River Vale v. Longo Constr. Co., 127 N.J. Super. 207, 216 (Law Div. 1974)). 21 A-3136-16T2 Essentially, the materiality test "is nothing more than an enunciation of what has always been the only relevant matter in a bid conformity inquiry: whether waiver of the deviation would thwart the aims of the public bidding laws." Id. at 596. Those aims fundamentally are to "guard against favoritism, improvidence, extravagance and corruption . . . ."9 Barrick v. State, 218 N.J. 247, 258 (2014) (quoting Keyes Martin & Co. v. Dir., Div. of Purchase & Prop., 99 N.J. 244, 256 (1985)). This is a largely prophylactic approach. L. Pucillo & Sons, Inc. v. New Milford, 73 N.J. 349, 356 (1977). As Justice Francis observed in Hillside, 25 N.J. at 326, "In this field it is better to leave the door tightly closed than to permit it to be ajar, thus necessitating forevermore in such cases speculation as to whether or not it was purposely left that way." Public bidding laws were adopted "to secure for the taxpayers the benefits of competition and to promote the honesty and integrity of the bidders and the system." On-Line Games, 279 N.J. Super. at 589. These laws must be "construed as 9 We pause to note that we have been presented with no proof of any "corruption" in this matter. Our ultimate determination to set aside the contract award to MSB rests upon the importance of maintaining fair competition in the procurement process, as well as assuring that material deviations in critical pricing terms are not tolerated to the disadvantage of other bidders and to the potential detriment of the public. 22 A-3136-16T2 nearly as possible with sole reference to the public good." Ibid. (quoting Keyes, 99 N.J. at 256). The price-related facets that led to this court's invalidation of the contract award in On-Line Games, the key case relied upon by Xerox, are instructive for the present case. For that reason, we describe those circumstances in detail for comparative purposes. On-Line Games involved the State Treasurer's award of a contract for lottery services. Id. at 574. The award similarly occurred after the Division of Purchase and Property's issuance of an RFP. Ibid. The RFP included a provision stating that "[f]ailure to furnish all required information or to follow the proposal format specified in this RFP may disqualify a proposal." Id. at 577. The RFP advised that the Director of the Division "may waive any nonmaterial deviation in a proposal." Ibid. Furthermore, the RFP stated that "[b]idders are given wide latitude in the degree of detail they offer or the extent to which they reveal plans, designs, systems, processes and procedures. At a minimum, proposals must be fully responsive to the specific requirements stated in this RFP." Ibid. Following the Division's award of the contract in On-Line Games, two unsuccessful bidders filed protests. Id. at 585. The appointed hearing officer concluded from the record and testimony 23 A-3136-16T2 that the successful bidder had not clearly provided in its initial bid for a visual display visible from fifteen feet, as was required in the RFP. Id. at 586. Nevertheless, the hearing officer further concluded that, because the successful bidder clarified after the opening of the bids "that it would provide such a unit to fulfill its commitment to meet all RFP requirements[,]" the contract award could be made to that bidder. Ibid. The hearing examiner concluded this was a permissible "clarification," rather than an impermissible "supplement." Ibid. Alternatively, the hearing examiner in On-Line Games reasoned that, even if the failure to include mention of the display in the selected bidder's original bid, followed by the bidder's later promise or commitment to include such a display, comprised an alteration, it was not a material one. Ibid. The hearing examiner reached this conclusion, despite the fact that the RFP had expressly stated that proposals "could not be supplemented, changed or corrected, and that bidders had to comply with all of the requirements." Id. at 587. The contract was thereafter awarded to the same bidder. Ibid. The Treasurer in On-Line Games agreed with the hearing officer that the selected bidder's post-opening commitment in its clarification letter to provide the required displays as part of its base price did not represent an impermissible alteration. Id. 24 A-3136-16T2 at 588. The Treasurer further agreed with the hearing officer's alternative finding that any deviation that may have occurred was not material. Ibid. After granting the unsuccessful bidders' request for a stay of the award pending appeal and their request for acceleration, this court in On-Line Games considered their plenary appeal and reversed the award. We concluded that the selected bidder's post- opening letter committing to meet all requirements of the RFP was not a permissible clarification, but rather "an impermissible modification of a materially deficient bid." Id. at 596. Although the RFP had specifically allowed bidders to provide post-bid clarifications, it prohibited modifications. Id. at 596-97. We noted that "[i]n clarifying or elaborating on a proposal, a bidder explains or amplifies what is already there." Ibid. (emphasis added). By contrast, in "supplementing, changing or correcting a proposal, the bidder alters what is there." Ibid. (emphasis added). We applied these same principles in In re Jasper Seating, 406 N.J. Super. at 225-26, in concluding that a bidder's price quotation was materially defective and thus unresponsive. In that case, we evaluated under the materiality test "a deviation in [the] plaintiff's bids due to its inclusion of price escalation stickers . . . ." Id. at 225. The plaintiff argued that the 25 A-3136-16T2 deviation allegedly caused by the price stickers displayed on its catalog should have been waived. Ibid. The Acting Division Director disagreed, and determined that the plaintiff's bids were non-conforming. Id. at 220. We upheld that finding, concluding that a waiver of such a deviation would fail the materiality test. Id. at 225. Addressing the first prong of the materiality test, we observed in In re Jasper Seating that a "waiver would deprive the State of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements." Id. at 225-26. Moreover, with respect to the second prong of the materiality test, we concluded that "a waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition." Id. at 226. We further reasoned that if we were to allow a bidder "to choose one of the two interpretations of its pricing, one with the price increase and one without, after all of the bids are opened, would give it an unfair advantage over the other bidders." Ibid. We underscored in In re Jasper Seating that prior case law had declared unlawful the waivers of material RFP deviations that would, in effect, tolerate post-bid manipulation of the bidding results. Ibid.; see Suburban Disposal, Inc. v. Twp. of Fairfield, 26 A-3136-16T2 383 N.J. Super. 484, 494 (App. Div. 2006). "Such post-bid manipulations are repugnant to our public bidding laws." Ibid. B. Here, even affording all due deference to the expertise and discretionary judgment of the Division and the Office of the State Treasurer, we concur with Xerox that MSB's original pricing submission materially deviated from the requirements of this RFP. For one thing, MSB's pricing sheet failed to specify that printing and postage costs were to be absorbed by MSB within its contingency fee compensation, and that MSB was not expecting to be paid for those extra costs, either by the motorists remitting the surcharges or by the State.10 More critically, the lengthy footnote on MSB's pricing sheet was clearly a material deviation from the RFP's requirement for bids to set forth the full price to be charged by the contract recipient. Undoubtedly, in declaring on the pricing sheet that the transactional costs were subject to future "negotiations" with the State and are "necessary" components to the pricing, MSB was looking to be paid more for its services than only the respective 10 We offer no opinion, as a public policy or regulatory matter under the motor vehicle surcharge laws, whether it is appropriate to require payors to remit credit card or other transactional fees, in addition to the surcharges due from them. 27 A-3136-16T2 4.35% and 10.0% contingent fee percentages reflected on the spreadsheet. Although the word "necessary" can be susceptible of various meanings, see In re Taylor, 196 N.J. 162, 172-73 (2008), the term has been defined in a prominent legal dictionary to connote "[t]hat [which] is needed for some purpose or reason; essential" or as "[t]hat [which] must exist or happen and cannot be avoided; inevitable . . . ." Black's Law Dictionary 1192 (10th ed. 2014). It is reasonable to construe the term "necessary" within MSB's pricing footnote to signify that MSB reserved the right to withdraw its bid if it were unable to persuade the State to allow it to recover the identified transactional costs from either the surcharge payors, or by reducing the State's yield from the surcharge revenue collections, or both.11 In essence, MSB "hedged its bets" concerning this key pricing element. The Division impermissibly allowed MSB to do so without affording the same flexibility to the other bidder, Xerox, concerning the recovery of the transactional costs. "The conditions and specifications of . . . [a] bid must apply equally 11 We are unpersuaded by MSB's contention that the footnote signified MSB's potential willingness to reduce its contingency fee percentage. That interpretation is inconsistent with MSB's assertion within the footnote of its objective to "maintain" the pricing set forth on the spreadsheet. 28 A-3136-16T2 to all prospective bidders; the individual bidder cannot decide to follow or to ignore these conditions . . . ." Hall Constr. Co. v. N.J. Sports & Exposition Auth., 295 N.J. Super. 629, 635 (App. Div. 1996). We reject the Division's treatment of the post-opening discussions it had with MSB on this subject as mere "clarification." The applicable regulation on the subject, N.J.A.C. 17:12-2.11(d), allows a post-opening clarification from a bidder to address a disparity between a unit price and an extended price when the bidder's true intention is not readily discernable from other parts of the proposal. Ibid. A clarification also is permitted under N.J.A.C. 17:12-2.11(c) if the bid contains an "obvious pricing error" that is noticed by the Division's reviewers. Neither of those situations pertains here. Unlike the "discrepancy" between MSB's narrative proposal and its price sheet as to printing and postage costs noted in the Director's final agency decision, the Director identified no such discrepancy between MSB's narrative proposal and the pricing sheet and footnote concerning transactional costs. Both MSB's narrative and footnote consistently signify that MSB was expecting or hoping to receive additional compensation for those costs, either from surcharge payors or from State taxpayers through a reduction in the net collections. At the very least, MSB's submissions on this 29 A-3136-16T2 component of the transaction were crafted to keep the door open to receive such additional monies. But as Justice Francis noted in Hillside, the proverbial door cannot be left "ajar." 25 N.J. at 326. Just as the bidder's purported post-bid "clarification" in On-Line Games was disallowed by this court, so too must MSB's "clarification" in this case relating to the transactional costs pricing fail. As the RFP instructed in Section 6.6, "[C]larifications cannot correct any deficiencies or material omissions or revise or modify a proposal, except to the extent that correction of apparent clerical mistakes results in a modification." (Emphasis added). The lengthy footnote in MSB's pricing sheet manifestly was not an "apparent clerical mistake." It was not a typo of a pricing figure within the spreadsheet or an arithmetic error. Instead, the footnote conveyed a purposeful message that MSB regarded obtaining additional revenue for transactional costs as "necessary" to the deal. Although not mentioned in the Director's final agency decision, the Attorney General alternatively argues in its appellate brief12 that even if the post-opening withdrawal of MSB's footnote had the effect of reducing MSB's overall price, the agency 12 MSB does not make this particular argument or rely on these codified provisions in its own brief. 30 A-3136-16T2 had the authority to negotiate price reductions under N.J.S.A. 52:34-12(a)(f) and N.J.A.C. 17:12-2.7(j). We do not believe those provisions affect the circumstances here. For one thing, the Division did not invoke this authority in its contract award or in its bid protest ruling. Moreover, MSB never quantified a "price" for the transactional costs in its pricing sheet, but instead asserted that it would be "necessary" to be paid sums of unspecified magnitude. In addition, Xerox was not afforded an equivalent opportunity to submit such a "hedged" bid. The Attorney General's argument also fails because the Director's authority to negotiate price reductions under N.J.S.A. 52:34-12(a)(f) "must be expressly set forth in the applicable invitation to bid," i.e., the RFP. Here, the RFP in Sections 6.8 and 6.9 advised prospective bidders that the Director reserved the right to negotiate price reductions "with the selected Bidder(s)." (Emphasis added). The Division's post-opening communications with MSB in November 2015 that resulted in MSB withdrawing its pricing footnote and its expressed desire to receive extra compensation for transactional costs occurred before, not after, MSB was selected as the contract recipient in March 2016.13 13 Although we need not elaborate on the subject, we also reject the Attorney General's reliance on N.J.A.C. 17:12-2.7(j). The record does not establish, as that regulation requires, that all 31 A-3136-16T2 Further, we respectfully disagree with the Attorney General's statement in its brief that "the Division did not allow MSB to change or add anything to its bid . . . ." To the contrary, the agency demanded such a change by insisting – twice – that MSB withdraw its claim for additional compensation for handling credit card payments and other transactional costs. MSB's original bid was non-conforming, but the Division impermissibly allowed the bid thereafter to be materially altered. In reaching these legal conclusions, we ascribe no ill- founded motives or any dereliction of duty on the part of the agency's officials or employees. Indeed, MSB's ultimate relinquishment of its position after the Division's prodding appears to have resulted in an overall contract award that is far less expensive than the one Xerox had quoted and which assigned this important MVC project to a bidder that the Evaluation Committee qualitatively ranked considerably higher. The "bottom line" outcome seems to be in the public's financial interest. Unfortunately, as On-Line Games and other case law teaches, we cannot ignore the deficiencies in the bidding process that produced bidders deemed to be in the "competitive range" were given notice and an equal chance to take part in negotiations. See N.J.A.C. 17:12-2.7(j)(2) and (3). Xerox was only allowed to provide a Best and Final Offer, a process distinct from direct negotiations. See N.J.A.C. 17:12-2.7(j)(6) and (7). 32 A-3136-16T2 that outcome. "[T]he integrity of the bidding process is more important than any isolated savings the State may obtain through an irregular proceeding." On-Line Games, 279 N.J. Super. at 603. III. Unlike Xerox's pricing arguments, its other challenges to the contract award to MSB are unpersuasive. Specifically, Xerox maintains that: (1) the Division's extension of the bid deadline was improper; (2) the Division improperly excluded from the Evaluation Committee two State officials, whom Xerox had identified as references, and gave insufficient weight to positive comments they made about Xerox when they were interviewed; (3) the Evaluation Committee failed to contact some of Xerox's other customers as positive references; (4) the Evaluation Committee scored MSB higher after initially favoring Xerox; (5) the evaluations disproportionately criticized Xerox's staffing; and (6) the Division failed to conduct an adequate financial analysis. We reject all of these claims, substantially for the reasons expressed in the Director's final agency decision. Our sole comment concerns Xerox's argument respecting the exclusion of two State officials, whom Xerox had named as references, from the Evaluation Committee. Although their removal may not have been required by laws or ethical mandates, we endorse the Division's decision to recuse those officials from the 33 A-3136-16T2 Evaluation Committee, so as to assure that the Committee could more freely undertake its internal discussions. N.J.A.C. 17:12- 2.7(a)(1) confers upon the Director the discretion to reject proposed members or remove sitting members from an Evaluation Committee in order to promote objectivity and guard against a potential appearance of impropriety. That discretion was not abused here. In any event, factual information from the two officials about Xerox's performance under the prior contract was conveyed to the Committee through interviews. IV. We conclude by addressing the thorny question of remedy. We reject Xerox's request that the contract be awarded to it outright rather than re-bid. We are unpersuaded that such a remedy would be in the public interest, especially given the apparent multi- million dollar pricing gap currently between the proposals of Xerox and MSB, and the higher technical scores accorded to MSB by the Evaluation Committee. We instead conclude that the appropriate remedy here is to re-bid the contract, in an expedited manner and with particular (if not exclusive) focus on the pricing aspect of the project. We presume MSB and Xerox will accordingly submit new bids, along with any third parties who may choose to bid. We instruct the Division to conduct such re-bidding on an expeditious basis and, if 34 A-3136-16T2 feasible, to consider utilizing a hearing officer to preside over any fact-finding disputes. An obvious practical concern stems from the fact that this contract – in the absence of a stay – has been implemented by MSB since October 2017 and continues to be carried out on an ongoing basis. We were advised at the recent oral argument on the appeal that the implementation of the new billing and collection system is already substantially complete. Even if that is true, as MSB correctly pointed out in opposing a stay in the fall of 2017, there are over six more years of operation and revenue collection to occur under the contract. The appeal has not become moot in the interim.14 14 Following oral argument on the appeal, MSB, with the support of the Attorney General, moved to supplement the record to address remedial issues. Over the objection of Xerox, we granted that motion, but limited our review to the motion submissions and did not invite further certifications offered by counsel. MSB and the State represent that the replacement of the STARS system is substantially complete and that MSB's new billing system has been deployed, although other steps under the contract have yet to be completed. Even if, for the sake of argument, we accept at face value these disputed representations about the extent to which the contract has been implemented since last October, we are not persuaded by MSB's argument that (1) Xerox's appeal is now moot; and (2) it would disserve the public interest to re-bid because MSB would be entitled to quantum meruit payments. First, unlike a bidding appeal involving a completed highway construction project, see Statewide Hi-Wat Safety, Inc. v. N.J. Dep't of Transp., 283 N.J. Super. 223, 225-26 (App. Div. 1995), this case involves a service contract that has over six years remaining, notwithstanding the systems development element which MSB claims 35 A-3136-16T2 We reject Xerox's suggestion that it immediately resume its former incumbent role and step in in lieu of MSB in operating the system during the interim while the contract is being re-bid. We discern no reason to order such a disruptive (and, depending on the outcome of the rebidding, potentially short-term) changeover. Instead, MSB shall continue to carry out its duties as vendor while the rebidding process is underway.15 Again, we stress that the rebidding shall be performed expeditiously. More specifically, we order that the rebidding and any new award be completed no later than June 15, 2018, unless extraordinary circumstances are demonstrated on motion to justify extending that deadline. Finally, we are cognizant that one or both respondents may wish to pursue emergent review of our decision by the Supreme to have largely completed. Thus, rebidding would not merely be a hypothetical exercise. Cf. Redd v. Bowman, 223 N.J. 87, 104 (2015) (stating that an issue is moot when the court's decision will have no practical effect on the controversy). Secondly, without deciding whether MSB would be entitled to any quantum meruit payments if it is ultimately dislodged upon rebidding, we are confident that the public interest in vindicating the competitive bidding process justifies rebidding here. 15 We decline to resolve the parties' disagreement in their post- argument motion submissions as to whether any factual disputes should be referred to the Law Division pursuant to Rule 2:5-5(b), or whether MSB would have a viable claim for quantum meruit compensation in the hypothetical event that MSB failed to be selected again as vendor after rebidding. 36 A-3136-16T2 Court before undertaking the rebidding process. Accordingly, we stay our decision, sua sponte, for seven days to enable the filing of such an emergent application with the Court. If such an application is filed, the interim stay shall remain in effect (but shall not affect the June 15 deadline) unless and until the Court otherwise directs. Affirmed in part, reversed in part, and remanded for rebidding. We do not retain jurisdiction. 37 A-3136-16T2

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Docket No.: a3331-15
Decided: 2018-02-08
Caption: TYRONE S. HENRY, SR v. SANTOSH S. BHOWMIK
Status: unpublished
Summary:
PER CURIAM Defendant CURE Auto Insurance (CURE) appeals from an October 26, 2015 Law Division order granting plaintiff's motion for summary judgment, requiring CURE to provide personal injury protection (PIP) benefits, as a matter of law, to plaintiff, administrator of the estate of his late son, Tyrone S. Henry Jr. (Tyrone). CURE argues the trial court erred in its application of the law by finding CURE liable for PIP benefits for an unnamed additional insured under the terms of a voided insurance contract. At the outset, we note this appeal is interlocutory because CURE filed this appeal before the trial court made findings on damages. Nevertheless, because dismissal of this appeal, at this juncture, would cause further undue delay in the payment of 2 A-3331-15T4 substantial unpaid medical bills,1 we therefore sua sponte grant leave to appeal nunc pro tunc the issue of CURE's liability for PIP benefits. R. 2:4-4(b)(2); see also Medcor, Inc. v. Finley, 179 N.J. Super. 142, 144-45 (App. Div. 1981) (holding this court has discretion on whether to grant leave to appeal from an interlocutory order). For the reasons that follow, we affirm and remand for the Law Division to determine damages. I On January 31, 2014, Tyrone sustained serious injuries after an automobile driven by defendant Santosh Bhowmik struck him as he walked across an intersection in Pleasantville. Tyrone ultimately died from his injuries on February 8, 2014, after first incurring substantial medical treatment bills at AtlantiCare Regional Medical Center (AtlantiCare).2 At the time of the accident, Tyrone lived in Ocean City with his cousin, Chanel Pitt, who owned an automobile that CURE insured. On December 8, 2014, plaintiff filed a complaint in the Law Division, Atlantic County, against defendants, Bhowmik, CURE, and 1 "The prompt distribution of PIP benefits to accident victims has remained a staple of the no-fault system since that system was first developed." Rutgers Cas. Ins. Co. v. LaCroix, 194 N.J. 515, 523 (2008). 2 According to AtlantiCare's brief, Tyrone spent eight days in intensive care before expiring, resulting in an unpaid treatment bill of $378,042.70. 3 A-3331-15T4 The New Jersey Property Liability Insurance Guaranty Association (PLIGA). In relevant part, the complaint sought to recover PIP benefits from CURE, or alternatively, from PLIGA, for the injuries and subsequent death of Tyrone. On January 8, 2015, PLIGA filed an answer with cross-claims denying the material allegations of the complaint. On January 28, 2015, CURE filed an answer with counterclaims and cross-claims, denying the complaint's allegations and seeking a declaration that the CURE insurance policy at issue was void, and thus, PLIGA was liable to plaintiff for PIP benefits. At that time, CURE had already filed a separate declaratory judgment action against Pitt in Cape May County in November 2014, seeking to void her insurance policy for material misrepresentations in failing to disclose all household members as of her March 2, 2012 policy renewal.3 On July 6, 2015, plaintiff moved for summary judgment seeking a declaration obligating either CURE or PLIGA to pay PIP benefits, and to consolidate the proceeding with the declaratory judgment action filed by CURE in Cape May County. CURE and PLIGA opposed the summary judgment motion, which the Atlantic County judge initially denied without prejudice on August 26, 2015, finding 3 On March 2, 2010, Pitt first obtained automobile insurance from CURE; the policy renewed annually. 4 A-3331-15T4 that a "dispute of fact" remained. The judge also denied the consolidation motion. In early September 2015, plaintiff filed a motion for reconsideration of the denial of his summary judgment motion, which CURE again opposed. In his motion, plaintiff cited Citizens United Reciprocal Exch. v. Perez, 223 N.J. 143, 151-52 (2015), decided by our Supreme Court the previous month for the proposition that innocent third parties remain eligible to collect PIP benefits, even when a policy is rescinded for a material misrepresentation made by the insured at the inception of the policy. Meanwhile, CURE requested a proof hearing in its declaratory judgment action after Pitt failed to answer its complaint. On September 16, 2015, a Cape May County judge held a proof hearing and then entered a final judgment declaring the Pitt policy void ab initio, finding Pitt made "material misrepresentations in failing to disclose all household members" at the time of her March 2012 policy renewal. Thus, CURE agreed with plaintiff that reconsideration of the motion was appropriate, but on a different basis; namely that its insurance policy had been officially declared void ab initio by the Cape May County judge. CURE further asserted that Perez did 5 A-3331-15T4 not apply, arguing instead that Lovett v. Alan Lazaroff & Co., 244 N.J. Super. 510 (App. Div. 1990) governed this dispute. On reconsideration, the Atlantic County judge concluded plaintiff was an innocent third party and thus entitled to PIP benefits from CURE for three reasons: (1) Tyrone was unaware of the misrepresentations Pitt made to CURE; (2) there was no assertion that Tyrone benefitted from the misrepresentations; and (3) Tyrone did not have input in the policy's procurement. Following the grant of summary judgment, on February 22, 2016, a different judge entered an order confirming a settlement between plaintiff and Bhowmik. On March 4, 2016, the court entered an order dismissing plaintiff’s claims against PLIGA. On April 1, 2016, the court entered an order permitting AtlantiCare to intervene to pursue its claim for payment of medical expenses arising out of treatment provided to Tyrone. On April 6, 2016, CURE filed a notice of appeal from the October 26, 2015 summary judgment order. II We review the trial court's grant of summary judgment de novo, applying the same standard as the trial court. Abboud v. Nat'l Union Fire Ins. Co. of Pittsburgh, 450 N.J. Super. 400, 406 (App. Div. 2017). We should affirm summary judgment if the record shows "no genuine issue as to any material fact challenged and 6 A-3331-15T4 . . . the moving party is entitled to a judgment or order as a matter of law." Ibid. (quoting Templo Fuente de Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46. We afford no special deference to the legal conclusions of the trial court. Templo Fuente, 224 N.J. at 199. Therefore, because no genuine issue of material fact exists in the record, we review de novo the trial court's legal determination that Tyrone, an "additional insured" under the policy under review, is entitled to PIP benefits from CURE as an innocent third party. Ibid. Our Supreme Court has described the remedy of rescission as follows: Rescission remains a form of equitable relief in whatever setting its need arises, and courts wielding that remedy retain the discretion and judgment required to ensure that equity is done. In furtherance of that objective, a court may shape the rescission remedy in order to serve substantial justice. . . . The power to mold the rescission remedy to do justice under the circumstances is perforce available when rescission is employed in the insurance context. [LaCroix, 194 N.J. at 528-29.] New Jersey’s no-fault scheme imposes a requirement that insurers promptly pay PIP benefits to reimburse those injured in 7 A-3331-15T4 automobile accidents regardless of fault. N.J.S.A. 39:6A-4 in relevant part states: [E]very standard automobile liability insurance policy . . . shall contain [PIP] benefits for the payment of benefits without regard to . . . fault of any kind, to the named insured and members of his [or her] family residing in his [or her] household who sustain bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile, or as a pedestrian . . . and to other persons sustaining bodily injury while occupying, entering into, alighting from or using the automobile of the named insured, with permission of the named insured. [(emphasis added).] More simply stated, there are two main coverage classes for PIP benefits under the statute: (1) the named insured (first-party insured) and family members residing in the household (additional insureds), and (2) other persons injured while occupying, entering into, alighting from or using the vehicle of the named insured with that person’s permission. LaCroix, 194 N.J. at 523. The law in New Jersey is well-settled that when a factual misrepresentation is made in an insurance application, rescission may be justified if the insurer relied on the misrepresentation in determining whether to issue the policy. See, e.g., Perez, 223 N.J. at 150-51; Palisades Safety & Ins. Ass'n v. Bastien, 175 N.J. 144, 148-49, 151 (2003) (affirming the denial of a claim for PIP 8 A-3331-15T4 benefits by the innocent wife of an insured, when the insured intentionally failed to place his wife's name on the policy to reduce his premium, citing the resident's spouse "unique position to be aware of the other spouse's interactions with the insurer of the household's vehicles."). However, even if a policy is voided, PIP benefits may nevertheless be awarded to innocent third parties. LaCroix, 194 N.J. at 524. In LaCroix, the court affirmed an equitable remedy fashioned by this court that required payment of PIP benefits to an additional insured even though the underlying policy was voided. Id. at 519. There, the question before the court was "whether a dependent child, newly licensed, only recently of driving age, and living with her parent, stands on different footing when the equities are considered in connection with her claim for PIP benefits under her father's void automobile insurance policy." Id. at 526. Distinguishing its decision from Bastien, where the Court found that awarding PIP benefits "would have served to encourage insurance fraud[,]" the LaCroix court found "room for some consideration of innocence . . . when the fraud is due to the action of the parent of a young driver." Id. at 526-27 (citing Bastien, 175 N.J. at 149,151-52). Noting that it has "never turned a deaf ear to the equities when plainly innocent parties cry out for relief," the Court found "no abuse in the Appellate Division's 9 A-3331-15T4 molding of the rescission remedy" that entitled the plaintiff to PIP benefits from her father's voided policy. Id. at 530, 532. III CURE does not contest the factual findings made by the motion judge in granting summary judgment for plaintiff. Thus, the following facts are undisputed. Tyrone sustained injures in an automobile accident that led to his death on February 8, 2014. At the time, Tyrone, twenty-three years old, resided with his cousin, Pitt, who owned a New Jersey registered motor vehicle that CURE insured. Plaintiff sought PIP benefits under Pitt's policy as an additional insured resident relative. CURE declined PIP benefits and filed an action against Pitt to void the policy ab initio for various reasons, including failing to "provide her true household members." In the Cape May County action — a suit involving only CURE and Pitt — the judge voided the policy ab initio "for material misrepresentations in failing to disclose all household members as of the renewal of March 2, 2012." If Tyrone were listed on the policy, and the policy was not otherwise voided, he would have been entitled to PIP benefits as an additional insured. Neither party contends that Tyrone was aware of Pitt's misrepresentation, benefitted from the misrepresentation, or had input in the procurement of the policy. 10 A-3331-15T4 The declaratory judgment action CURE filed in Cape May County named Pitt as the only defendant, even though the New Jersey Declaratory Judgment Act (the Act), N.J.S.A. 2A:16-56, mandates that "all persons having or claiming any interest which would be affected by the declaration shall be made parties to the proceeding." On April 3, 2014, CURE sent a letter to plaintiff's attorney denying plaintiff's claim for PIP benefits under Pitt's policy. This letter clearly established CURE's knowledge that plaintiff had an "interest which would be affected" by the declaratory judgment action. The record contains no explanation for CURE's failure to make plaintiff, PLIGA, and AtlantiCare parties to the declaratory judgment action. CURE's declaratory judgment complaint alleged that Pitt made misrepresentations concerning her address and household residents with respect to CURE's policy and its renewals. Following Pitt's default, and a proof hearing, the Cape May County judge entered judgment by default, declaring "the policy issued by [CURE] to Chanel Pitt is void ab initio for material misrepresentations in failing to disclose all household members as of the renewal of March 2, 2012." The court's order does not identify the particular misrepresentations. Nor does the record before this court contain any evidence concerning such misrepresentations. 11 A-3331-15T4 In its responsive pleading in the matter under review, CURE alleged that Pitt obtained insurance from CURE on March 2, 2010, and the policy renewed annually through the time of Tyrone's fatal accident, January 31, 2014. However, the only evidence in the record concerning CURE's policy is a two-page "Summary of Coverage" for the renewal effective March 2, 2014, the policy period following the subject accident. The record does not contain a copy of the CURE policy, the application for the initial policy in 2010, or any of the renewal applications. Nor does the record contain any evidence of Pitt's alleged misrepresentations, only the allegations contained in CURE's unverified pleadings. The record does include an affidavit from plaintiff that Tyrone moved in with Pitt in June 2013. Because CURE's policy renewed on March 2, 2013 and the subject accident occurred on January 31, 2014, Tyrone did not reside with Pitt at the time when CURE's policy renewed. In addition, because the judge in Cape May County voided the policy for "failing to disclose all household members as of the renewal of March 2, 2012," and Tyrone did not move in with Pitt until June 2013, Tyrone's residence with Pitt could not have constituted the misrepresentation that resulted in the voiding of CURE's policy. CURE's primary argument on appeal is that an insurer has no liability "to an additional unnamed insured seeking to recover