Recent Decisions of the New Jersey Appellate Courts
from 2020-02-06
to 2020-02-20
Docket No.: a2568-17
Decided: 2020-02-19
Caption: STATE OF NEW JERSEY v.
JOHN G. HAGER
Status: Published
Summary:
GOODEN BROWN, J.A.D. In this case, we consider whether the omission of one of the Miranda1 warnings during custodial interrogation adequately conveys the substance of the warnings. Defendant was charged in a three-count indictment with third- degree terroristic threats, N.J.S.A. 2C:12-3(a); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). The charges stemmed from an altercation at defendant's home, as a result of which responding officers placed defendant under arrest. During the ensuing custodial interrogation, in which it is undisputed defendant was administered incomplete Miranda warnings, defendant disclosed the location of a BB gun in his home, leading to the issuance of a search warrant and the seizure of the gun.
Docket No.: a5779-17
Decided: 2020-02-19
Caption: DIGITAL FIRST MEDIA v.
EWING TOWNSHIP
Status: Published
Summary:
ALVAREZ, P.J.A.D. Plaintiff Digital First Media, doing business as the Trentonian, filed a verified complaint and order to show cause under the Open Public Records Act of 2001 (OPRA), N.J.S.A. 47:1A-1 to -13, and the common-law right of access to public records, seeking to compel the production of use of force reports (UFRs) regarding the arrest of a sixteen-year-old suspect.
Docket No.: a0790-18
Decided: 2020-02-10
Caption: STATE OF NEW JERSEY v.
L.G.-M
Status: Published
Summary:
ROSE, J.A.D. Defendant L.G.-M. – a non-citizen of the United States – appeals a Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. On appeal, defendant challenges his attorney's effectiveness prior to trial, claiming counsel failed to advise him about the immigration consequences of pretrial intervention (PTI).
Docket No.: a2011-18
Decided: 2020-02-10
Caption: STATE OF NEW JERSEY v.
JOHN THOMPSON
Status: Published
Summary:
FISHER, P.J.A.D. In appealing his convictions for operating a vehicle while under the influence, N.J.S.A. 39:4-50(a), and for refusing to submit to a breath test, N.J.S.A. 39:4-50.2, defendant argues that the evidence does not support the statutory requirement of "operat[ing]" the vehicle when the record reveals he was found sleeping behind the wheel with the engine running. In affirming, we reject this argument because it is inconsistent with the well-established manner in which "operation" has been defined.
Docket No.: a3408-18
Decided: 2020-02-07
Caption: THOMAS MCKEOWN v. AMERICAN GOLF CORPORATION
Status: Published
Summary:
FISHER, P.J.A.D. A simple round of golf led to this personal injury suit. Plaintiff claims he was injured when struck by a golf cart rented by defendant Philip Capavanni and driven by defendant Brian Robinson. All plaintiff's claims have been reso lved except for that which we now consider: whether the evidential materials, when viewed in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), created a jury question whether Capavanni negligently entrusted the operation of his rented golf cart to Robinson.
Docket No.: a1833-15
Decided: 2020-02-06
Caption: MASTEC RENEWABLES CONSTRUCTION COMPANY INC v.
SUNLIGHT GENERAL MERCER
SOLAR, LLC,
Status: Published
Summary:
FUENTES, P.J.A.D. SunLight General Mercer Solar, LLC (SunLight) was the general contractor of a project to construct a renewable solar generating facilit y (SGF) on the campus of the Mercer County Community College (College). SunLight hired MasTec Renewables Construction Company, Inc. (MasTec) as the subcontractor to design and construct the SGF.
Docket No.: a4526-17
Decided: 2020-02-06
Caption: STATE OF NEW JERSEY v.
WALEK P. DUNLAP
Status: Published
Summary:
SUSSWEIN, J.S.C. This case probes the boundaries of the United States Supreme Court's landmark Sixth Amendment decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant, Walek P. Dunlap, appeals from a sentence of ten years in prison for a second-degree robbery conviction imposed after violating special probation (Drug Court), N.J.S.A. 2C:35-14. Defendant argues the revocation and resentencing provisions of the special probation statute, N.J.S.A. 2C:35 - 14(f), permit a judge to engage in prohibited judicial fact finding.
Docket No.: a0576-18
Decided: 2020-02-19
Caption: DEPARTMENT OF CHILDREN AND FAMILIES v. F.G -
Status: Unpublished
Summary:
PER CURIAM Defendant F.G.1 appeals from an August 27, 2018 final agency decision of the Department of Children and Families (Division) that determined that abuse and neglect allegations against him were "not established" pursuant to N.J.A.C. 3A:10-7.3(c)(3). After considering the parties' arguments in light of the record on appeal and the applicable legal principles, we vacate and remand for further proceedings.
Docket No.: a0813-18
Decided: 2020-02-19
Caption: SEAN SUTTON v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: Unpublished
Summary:
PER CURIAM Petitioner, Sean Sutton, appeals from a final agency decision by the Department of Corrections (DOC) imposing disciplinary sanctions for fighting with another inmate. The Disciplinary Hearing Officer found petitioner guilty of the infraction and imposed a ninety-day loss of commutation credits and a fifteen-day loss of recreational privileges. The Assistant Superintendent upheld the conviction and sanctions.
Docket No.: a0868-18
Decided: 2020-02-19
Caption: IN THE MATTER OF THE REVOCATION OF THE CERTIFICATES OF ANDREA GIUFFRIDA, STATE BOARD OF EXAMINERS
Status: Unpublished
Summary:
PER CURIAM Andrea Giuffrida appeals from the final decision of the Commissioner of the New Jersey Department of Education (Commissioner), upholding the State Board of Examiners' (Board) decision revoking her teaching certificates: Teacher of Elementary School Certificate of Eligibility with Advance Standing; Teacher of Students with Disabilities; and Learning Disabilities Teacher – Consultant.
Docket No.: a0953-18
Decided: 2020-02-19
Caption: COMMERCE LIMITED PARTNERSHIP 9326 v. EDISON FURNITURE, LLC
Status: Unpublished
Summary:
PER CURIAM Plaintiff Commerce Limited Partnership $19326 appeals from a July 23, 2018 no cause finding after a bench trial in favor of defendant Edison Furniture, LLC d/b/a All Brands Furniture Closeouts, LLC and an October 18, 2018 order denying its motion for a new trial. In addition, plaintiff appeals from various pre-trial orders related to discovery and denial of summary judgment. We affirm all orders on appeal.
Docket No.: a1527-18
Decided: 2020-02-19
Caption: STEVE RAMSHUR v. DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Status: Unpublished
Summary:
PER CURIAM WA Golf Company, LLC (WA Golf), which operates Liberty National Golf Club (Liberty National), appeals from a July 25, 2018 order compelling it to disclose to plaintiff Steve Ramshur the bid it submitted in response to a November 21, 2017 request for proposals (RFP) issued by the New Jersey Department of Environmental Protection (DEP).
Docket No.: a4019-17
Decided: 2020-02-19
Caption: 800 SYLVAN AVENUE, LLC v. BOROUGH OF ENGLEWOOD CLIFFS
Status: Unpublished
Summary:
PER CURIAM Plaintiff appeals from an order entered by the trial court on April 13, 2018, which dismissed its exclusionary zoning lawsuit seeking a builder's remedy. Plaintiff also appeals from an order entered by the court on May 2, 2018, which denied its motion for reconsideration of orders entered in a separate action, extending the Borough of Englewood Cliffs's immunity from exclusionary zoning lawsuits, including plaintiff's lawsuit. For the reasons that follow, we dismiss the appeal. In 1975, our Supreme Court held that each developi
Docket No.: a4963-17
Decided: 2020-02-19
Caption: OMAR AIKENS v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: Unpublished
Summary:
PER CURIAM Appellant, Omar Aikens, appeals from a final agency decision by the Department of Corrections (DOC) denying his request for a reduction in custody status from Gang Minimum to Full Minimum. With that reduced status, Aikens could work outside the main prison with minimal supervision. N.J.A.C. 10A:9- 4.3(e). Applying the relevant legal principles to the record before us, and despite the deferential standard of review we apply to DOC inmate classification decisions, we are constrained to remand the case for DOC to reconsider its decision in view of all relevant factors.
Docket No.: a5304-16
Decided: 2020-02-19
Caption: P.H v. E.M .1
Status: Unpublished
Summary:
PER CURIAM In A-5304-16, plaintiff appeals and defendant cross-appeals from an order of the trial court, dated June 16, 2017, which allocated the college costs and related expenses for their daughter, M.H., and denied their respective applications for attorney's fees. In A-2120-17, plaintiff appeals from the court's orders dated December 1, 2017, which enforced the June 16, 2017 order and denied plaintiff's cross-motion for attorney's fees. We address both appeals in this opinion. For the reasons that follow, in A-5304-16, we affirm on the appeal and cross-appeal; and in A-2120-17, we reverse and remand for further proceedings.
Docket No.: a0400-17
Decided: 2020-02-18
Caption: STATE OF NEW JERSEY v. FRANCIS BRACE
Status: Unpublished
Summary:
PER CURIAM After trial with two codefendants, Gregory Oliver and Jahmad Green, defendant Francis Brace appeals from his conviction by jury and sentence for first-degree aggravated manslaughter of Jaleek Burroughs, N.J.S.A. 2C:11- 4(a)(1), as a lesser-included offense of first-degree murder, N.J.S.A. 2C:11- 3(a)(1) or (2), N.J.S.A. 2C:2-6, and N.J.S.A. 2C:2-3(d) (count one); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts two and nine); second-degree aggravated assault of Alaysia Chambers, N.J.S.A. 2C:12-1(b)(1), as a lesser-included offense of first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a), and N.J.S.A. 2C:2- 3(d) (count eight); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three).
Docket No.: a1791-18
Decided: 2020-02-18
Caption: PAMELA S. SPINELLI THORNTON v. SCOTT D. ROSKAM
Status: Unpublished
Summary:
PER CURIAM Defendant Scott D. Roskam appeals from a Family Part order denying his motion to: (1) recalculate child support effective July 28, 2017; (2) declare their son emancipated; (3) compel plaintiff Pamela S. Spinelli-Thornton1 to fully reimburse defendant for her share of their children's expenses, as an offset against child support; (4) terminate his obligation to contribute to their son's college expenses; and (5) award him counsel fees and costs. We affirm.
Docket No.: a1859-18
Decided: 2020-02-18
Caption: MARINER FINANCE LLC v. CAITLIN ANDREN
Status: Unpublished
Summary:
PER CURIAM The issues presented in this appeal have their genesis in Caitlin Andren's purchase of a puppy from Shake-a-Paw. A dispute arose when the puppy was found to have health issues, causing Andren to incur unexpected veterinary bills.
Docket No.: a2366-18
Decided: 2020-02-18
Caption: GEOFFREY JONES v. CITY OF JERSEY CITY
Status: Unpublished
Summary:
PER CURIAM In this slip and fall personal injury matter, defendant Jersey City Municipal Utilities Authority appeals from the Law Division's January 11, 2019 order denying its motion to dismiss plaintiffs Geoffrey Jones's and Valerie Carswell's complaint based upon plaintiffs' failure to comply with the Tort Claims Act, (TCA), N.J.S.A. 59:1-1 to 12-3.
Docket No.: a2608-18
Decided: 2020-02-18
Caption: EVELYN JEFFERSON v. THE COMMUNITY HOSPITAL GROUP
Status: Unpublished
Summary:
PER CURIAM Plaintiff Evelyn Jefferson appeals the January 18, 2019 order granting summary judgment to defendants The Community Hospital Group, Inc., d/b/a JFK Medical Center (JFK) and its human resources manager, Jean Landen, dismissing plaintiff's complaint with prejudice. Plaintiff's conditional offer for a registered nurse position at the United States Department of Veteran Affairs New Jersey Health Care System (VA) was revoked when Landen informed the VA that plaintiff, who worked on a per diem basis at JFK, was involuntarily terminated for failing to comply with occupational health requirements. Although plaintiff authorized the disclosure of her employment information and released from liability all those who provided such information in good faith, she asserts the defendants are not protected by a qualified privilege. We disagree and affirm.
Docket No.: a2889-17
Decided: 2020-02-18
Caption: THOMAS FLYNN v. TOWNSHIP OF MONTCLAIR
Status: Unpublished
Summary:
PER CURIAM Plaintiff Thomas Flynn, a police officer in the Township of Montclair Police Department (Township or Department), asserted claims of reverse discrimination under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to 49, and violations of the Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, alleging the Department did not properly promote him. He appeals from several orders, including the grant of summary judgment to defendants. 1 After a review of the contentions in light of the record and applicable principles of law, we affirm.
Docket No.: a3442-18
Decided: 2020-02-18
Caption: CARBONATOR RENTAL SERVICES INC v. DANDY RESTAURANT LLC
Status: Unpublished
Summary:
PER CURIAM Defendant Dandy Restaurant LLC, d/b/a O'Donnell's Restaurant (Dandy) appeals from a January 22, 2019 order denying defendant's motion to vacate a default judgment, a March 7, 2019 order denying a motion to vacate default judgment by consent, and an April 2, 2019 order denying defendant's motion for reconsideration of the March 7, 2019 order. We reverse and remand for further proceedings.
Docket No.: a3704-18
Decided: 2020-02-18
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.L.M and Y.R.F
Status: Unpublished
Summary:
PER CURIAM Defendant T.L.M. appeals from an April 11, 2019 guardianship judgment, ordering the termination of her parental rights to her sons, A.Y.M. (Austin) and E.Y.T.M. (Evan).
Docket No.: a5140-16
Decided: 2020-02-18
Caption: STATE OF NEW JERSEY v. GREGORY OLIVER
Status: Unpublished
Summary:
PER CURIAM After trial with codefendants, Francis Brace and Jahmad Green, defendant Gregory Oliver appeals from his conviction by jury and sentence for first-degree aggravated manslaughter of Jaleek Burroughs, N.J.S.A. 2C:11-4(a)(1), as a lesser-included offense of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2), N.J.S.A. 2C:2-6, and N.J.S.A. 2C:2-3(d) (count one); two counts of second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts six and twelve); second-degree aggravated assault of Alaysia Chambers, N.J.S.A. 2C:12-1(b)(1), as a lesser-included offense of first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a), and N.J.S.A. 2C:2-3(d) (count eight); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(b) (count seven).
Docket No.: a5491-16
Decided: 2020-02-18
Caption: STATE OF NEW JERSEY v. JAHMAD GREEN
Status: Unpublished
Summary:
PER CURIAM After trial with codefendants, Francis Brace and Gregory Oliver, Defendant Jahmad Green appeals from his conviction by jury and sentence for first-degree aggravated manslaughter of Jaleek Burroughs, N.J.S.A. 2C:11- 4(a)(1), as a lesser-included offense of first-degree murder, N.J.S.A. 2C:11- 3(a)(1) or (2), N.J.S.A. 2C:2-6, and N.J.S.A. 2C:2-3(d) (count one); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts four and ten); second-degree aggravated assault of Alaysia Chambers, N.J.S.A. 2C:12-1(b)(1), as a lesser-included offense of first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a), and N.J.S.A. 2C:2- 3(d) (count eight); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five).
Docket No.: a5594-17
Decided: 2020-02-18
Caption: STATE OF NEW JERSEY v. ERIC LUNSFORD
Status: Unpublished
Summary:
PER CURIAM Defendant, Eric Lunsford, appeals from the denial of his second petition for post-conviction relief (PCR). We affirm substantially for the reasons set forth by the second PCR court, Judge Richard Sules, in his thorough and well - reasoned written opinion.
Docket No.: a5651-18
Decided: 2020-02-18
Caption: CLAREMONT CONSTRUCTION GROUP, INC v. KEYSTONE MOUNTAIN LAKES REGIONAL COUNCIL OF CARPENTERS
Status: Unpublished
Summary:
PER CURIAM Plaintiff Claremont Construction Group, Inc. (Claremont) appeals from an order entered by the Law Division on August 19, 2019 compelling it to participate in binding arbitration. We affirm the order insofar as it compels binding arbitration, however, we reverse in part and remand to the trial court for entry of an amended order dismissing the complaint without prejudice.
Docket No.: a0408-18
Decided: 2020-02-14
Caption: STATE OF NEW JERSEY v. JARED S. VOUGHS
Status: Unpublished
Summary:
PER CURIAM Defendant, Jared S. Voughs, appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Docket No.: a0993-18
Decided: 2020-02-14
Caption: KATHY A. STRUDWICK v. JASON A. WAGNER
Status: Unpublished
Summary:
PER CURIAM Defendant Jason A. Wagner appeals from the Family Part's October 12, 2018 order directing that defendant pay $1100 per week child support directly to the child's grandmother, plaintiff Kathy Strudwick for the support of his then eighteen-year-old son, and that such funds be deducted from defendant's IRA account, which was maintained through his former employer. On appeal, defendant argues he was never served with any notice of plaintiff's application for the support. Relying on Kuron v. Hamilton, 331 N.J. Super. 561, 573 (App. Div. 2000), defendant argues that the matter should be vacated and remanded for a new hearing so that he can assert a position in opposition to the application.
Docket No.: a1152-18
Decided: 2020-02-14
Caption: LEONEL SERIO v. FIDELITY GUARANTY INSURANCE UNDERWRITERS INC.
Status: Unpublished
Summary:
PER CURIAM Plaintiff Leonel Serio was injured in a motor vehicle accident on July 23, 2008. Because the party at fault was underinsured, Serio filed a complaint seeking to recover the resultant medical expenses from his own insurance carrier, Fidelity $1 Guaranty Insurance Underwriters, Inc. (Fidelity), with whom he had underinsured motorist benefits.
Docket No.: a1550-18
Decided: 2020-02-14
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.E.
Status: Unpublished
Summary:
PER CURIAM K.E. (Kayla) appeals from a judgment terminating her parental rights to her son, C.S. (Chris) and granting guardianship to the Division of Child Protection and Permanency (the Division). 1 Kayla argues that the trial court erred in finding that it was in Chris' best interests to terminate her parental rights. N.J.S.A. 30:4C-15.1(a). In particular, she challenges the findings of prongs two, three, and four of the best-interests test, contending that Chris has special needs and no adoptive home had been identified for him.
Docket No.: a2719-18
Decided: 2020-02-14
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.D.
Status: Unpublished
Summary:
PER CURIAM D.D. (Daniel)1 appeals, following a fact-finding hearing, from an order of the Family Part finding that he inflicted excessive corporal punishment on his son, E.B. (Eddie), constituting abuse and neglect under N.J.S.A. 9:6-8.21(c)(4). We affirm.
Docket No.: a3838-17
Decided: 2020-02-14
Caption: PEDRO LIRANZO v. MORALES AUTO REPAIR JUNIOR MORALES -
Status: Unpublished
Summary:
PER CURIAM In this appeal from a judge of compensation's award to an employee, the employer, Morales Auto Repair (MAR) and its owner, Junior Morales, challenge the judge's determination that the employee, Pedro Liranzo, was employed by Morales or his business when Liranzo sustained injuries, entitling Liranzo to benefits under the Workers' Compensation Act, N.J.S.A. 34:15-1 to 34:15-146. We vacate the award and remand for reconsideration because we conclude the judge's findings, and his failure to articulate any legal basis for his determination undermines our ability to perform a meaningful appellate review.
Docket No.: a4625-17
Decided: 2020-02-14
Caption: AYMAN MATARI v. PLATINUM DOLLZ GENTLEMEN'S CLUB
Status: Unpublished
Summary:
PER CURIAM In these consolidated personal injury and insurance coverage cases, Ayman Matari (plaintiff) and his wife, Sara Matari, 1 appeal from orders granting New Jersey Manufacturers Insurance Company's (NJM) motion for summary judgment, declaring NJM has no obligation to indemnify defendant Radoslaw Kulesza under a personal liability insurance policy, and denying plaintiff 's reconsideration motion. We affirm.
Docket No.: a5119-18
Decided: 2020-02-14
Caption: STATE OF NEW JERSEY v. DAVID ZINSMEISTER
Status: Unpublished
Summary:
PER CURIAM Defendant David Zinsmeister appeals from a June 26, 2019 order denying his petition for post-conviction relief (PCR) to vacate his 1980 and 1986 DWI convictions, pursuant to State v. Laurick, 120 N.J. 1 (1990). On August 7, 2019, the Supreme Court decided State v. Patel, 239 N.J. 424, 448 (2019), which held non-indigent, uncounseled DWI litigants who were unadvised or did not know of their right to counsel, and who would have retained a lawyer had they known, are entitled to relief under Laurick to avoid an enhanced custodial sentence for a subsequent DWI conviction.
Docket No.: a5322-17
Decided: 2020-02-14
Caption: SHIRLEY MOURIN v. WALGREENS, RD ELMWOOD ASSOCIATES, LP
Status: Unpublished
Summary:
PER CURIAM Plaintiff Shirley Mourin appeals the June 8, 2018 order that denied reconsideration of her request to amend her complaint to include third-party defendant Hobart Builders, LLC, as a direct defendant. Finding no abuse of discretion, we affirm substantially for the reasons given by Judge Robert L.
Docket No.: a5724-17
Decided: 2020-02-14
Caption: STATE OF NEW JERSEY v. JALONN LASSITER
Status: Unpublished
Summary:
PER CURIAM Defendant Jalonn Lassiter appeals from the April 11, 2018 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Docket No.: a0639-18
Decided: 2020-02-13
Caption: STATE OF NEW JERSEY v. JUAN CASTILLO
Status: Unpublished
Summary:
PER CURIAM Defendant Juan Castillo appeals from a June 25, 2018 order, entered after our second remand, denying his petition for post-conviction relief (PCR) after oral argument but without a plenary hearing.
Docket No.: a0955-18
Decided: 2020-02-13
Caption: IN THE MATTER OF RICHARD DENTROUX, DEPARTMENT OF ENVIRONMENTAL PROTECTION
Status: Unpublished
Summary:
PER CURIAM Richard Dentroux appeals from a final agency decision of the Civil Service Commission, which became effective September 6, 2018, following a hearing before an administrative law judge (ALJ), who concluded Dentroux left his employment with the Department of Environmental Protection (DEP) having resigned in good standing. We affirm.
Docket No.: a0981-17
Decided: 2020-02-13
Caption: IN THE MATTER OF STEVEN HOTZ, NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: Unpublished
Summary:
PER CURIAM Steven Hotz appeals from a final determination of the Civil Service Commission (Commission), which found that he made false statements of material fact during an investigation of suspected inmate abuse, and that the New Jersey Department of Corrections (NJDOC) was justified in removing him from his position as a Senior Corrections Officer (SCO). We affirm.
Docket No.: a1003-18
Decided: 2020-02-13
Caption: STATE OF NEW JERSEY v. RONALD P. CHERRY
Status: Unpublished
Summary:
PER CURIAM Defendant Ronald P. Cherry appeals the trial court's August 10, 2018 order denying his petition for post-conviction relief ("PCR") without an evidentiary hearing. We affirm.
Docket No.: a1641-18
Decided: 2020-02-13
Caption: HAJEEMA EDMAN-SUTTON v. CITY OF NEWARK, NEWARK FIRE DEPARTMENT,
Status: Unpublished
Summary:
PER CURIAM A jury found that plaintiff Hajeema Edman-Sutton suffered a permanent loss of a bodily function, see N.J.S.A. 39:6A-8(a), as the result of a motor vehicle accident on April 23, 2015. The jury also found plaintiff was not negligent, and the accident was caused by the negligence of defendant, Jihaad North, an employee of the Newark Fire Department (collectively, defendants).1 The jury awarded plaintiff $1400,000 in damages for pain, suffering, impairment, and loss of enjoyment of life. Defendants moved for a new trial or, alternatively, remittitur. The judge denied the motion and this appeal followed.
Docket No.: a2408-18
Decided: 2020-02-13
Caption: STATE OF NEW JERSEY v. GREGORY ROYAL
Status: Unpublished
Summary:
PER CURIAM Defendant was convicted by jury of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count five); second-degree burglary, N.J.S.A. 2C:18-2 (count six); first-degree kidnapping, N.J.S.A. 2C:13- 1(b)(1) (count seven); 1 third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count eight); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count nine); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count ten). He was sentenced to an extended term, pursuant to N.J.S.A. 2C:43-7(a)(2), of life imprisonment with twenty-five years of parole ineligibility for first-degree robbery; sentences on other counts, not merged, ran concurrent to that sentence. We affirmed his convictions and sentence on direct appeal.
Docket No.: a3148-17
Decided: 2020-02-13
Caption: STATE OF NEW JERSEY v. ELIJAH DOWNEY
Status: Unpublished
Summary:
PER CURIAM Defendant Elijah Downey appeals from his conviction following a conditional retraxit plea of guilty to third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), amended from count one of an indictment charging second- degree robbery, N.J.S.A. 2C:15-1(a)(1). Count two of the indictment, charging second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a)(1), was dismissed pursuant to the plea agreement. 1 On appeal, he argues the motion judge should have granted his suppression motion challenging the motor vehicle stop that resulted in the victim's show-up identification of defendant as one of his assailants.
Docket No.: a3823-18
Decided: 2020-02-13
Caption: FEDERAL NATIONAL MORTGAGE ASSOCIATION v. RCL MANAGEMENT
Status: Unpublished
Summary:
PER CURIAM This matter having been amicably adjusted and the parties having stipulated to the dismissal of this appeal, it is hereby ordered that the app eal is dismissed with prejudice and without costs. A-3823-18T4 2
Docket No.: a4322-17
Decided: 2020-02-13
Caption: STATE OF NEW JERSEY v. STEPHEN WHITE
Status: Unpublished
Summary:
PER CURIAM Defendant Stephen White appeals his conviction and sentence after a jury convicted him of driving while suspended for a second or subsequent driving while intoxicated (DWI) violation, N.J.S.A. 2C:40-26(b). Defendant asserts that the trial judge abused her discretion in denying his request, made on the eve of trial, for a third adjournment of the trial date to allow him to obtain substitute counsel.
Docket No.: a4749-18
Decided: 2020-02-13
Caption: JANET STAMATO v. MORGAN STANLEY SMITH BARNEY, LLC
Status: Unpublished
Summary:
PER CURIAM In this action asserting employment-related claims based on alleged violations of the New Jersey Law Against Discrimination (LAD), 1 plaintiff appeals from the Law Division order granting defendants' motion to stay the action and compel arbitration. We affirm.
Docket No.: a0036-18
Decided: 2020-02-12
Caption: KEONA WRIGHT v. BOARD OF REVIEW NEW JERSEY DEPARTMENT OF LABOR, and CARRIER CLINIC
Status: Unpublished
Summary:
PER CURIAM Appellant Keona Wright challenges the final decision of the Board of Review of the Department of Labor and Workforce Development (Board) affirming the decision of the Appeal Tribunal disqualifying her from receiving unemployment benefits from October 9, 2016 through January 21, 2017.
Docket No.: a0358-17
Decided: 2020-02-12
Caption: STATE OF NEW JERSEY v. EUGENE R. CADY
Status: Unpublished
Summary:
PER CURIAM Defendant Eugene Cady was tried before a jury and found guilty of first - degree murder and other offenses, as charged in a Union County indictment. Defendant appeals from the judgment of conviction entered by the trial court. We affirm.
Docket No.: a0608-18
Decided: 2020-02-12
Caption: STATE OF NEW JERSEY v. DABOOZ SANON
Status: Unpublished
Summary:
PER CURIAM Defendant Dabooz Sanon appeals from a June 29, 2018 judgment denying his petition for post-conviction relief (PCR). We affirm.
Docket No.: a0863-18
Decided: 2020-02-12
Caption: STATE OF NEW JERSEY v. L.Z
Status: Unpublished
Summary:
PER CURIAM A jury convicted defendant of four crimes related to the sexual assault of a minor: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), as a lesser-included offense; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant was sentenced to an aggregate prison term of twenty-two years, with a period of parole ineligibility, as well as parole supervision for life. He contends that his convictions should be reversed because he was not allowed to cross-examine the child's mother on her immigration status, and he was not accorded a Rule 104 hearing on that issue. He also argues that the trial court erred in charging the jury on the lesser-included offense of aggravated criminal sexual contact. We reject these arguments and affirm.
Docket No.: a3345-17
Decided: 2020-02-12
Caption: STATE OF NEW JERSEY v. TYRONE E. EMMONS
Status: Unpublished
Summary:
PER CURIAM Defendant Tyrone E. Emmons appeals from his jury conviction and sentence for third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(b), and third- degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10(a)(1). We affirm the convictions and remand for resentencing.
Docket No.: a3501-18
Decided: 2020-02-12
Caption: STATE OF NEW JERSEY v. SHELDON M. GOLDSBOROUGH
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from an April 5, 2019 judgment of conviction based on a guilty plea, focusing on a September 14, 2018 order denying his motion to suppress evidence. We affirm but for reasons other than those expressed by the judge.
Docket No.: a5327-16
Decided: 2020-02-12
Caption: STATE OF NEW JERSEY v. CARLOS W. CARDOZA
Status: Unpublished
Summary:
PER CURIAM Defendant, Carlos Cardoza, appeals from his trial convictions for first - degree robbery, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. Defendant also challenges the ten-year sentence he received.
Docket No.: a5529-17
Decided: 2020-02-12
Caption: STATE OF NEW JERSEY v. DEREK MACK
Status: Unpublished
Summary:
PER CURIAM Defendant, Derek Mack, appeals from the denial of his motion for a new trial based on newly discovered evidence. In 1994, defendant was tried and convicted of a triple homicide. He now contends he has evidence that a county prosecutor's office, in the mid-1990s, recruited inmates to commit perjury by fabricating jailhouse admissions of other criminal defendants. Defendant claims the prosecutor's office solicited and presented this form of perjury in his death penalty prosecution.
Docket No.: a5706-17
Decided: 2020-02-12
Caption: STATE OF NEW JERSEY v. M.D
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from the Law Division's order denying his request for admission into the pretrial intervention program (PTI) because the State did not provide objections supporting its opposition to his admission. We affirm because when defendant accepted a pre-indictment plea offer from the State, the court rule in effect did not require the State to provide its reasons for opposing defendant's entry into PTI prior to an indictment.
Docket No.: a0273-18
Decided: 2020-02-11
Caption: STATE OF NEW JERSEY v. S.P
Status: Unpublished
Summary:
PER CURIAM Defendant, S.P., appeals from an order that denied his third petition for post-conviction relief (PCR).
Docket No.: a0478-18
Decided: 2020-02-11
Caption: DITECH FINANCIAL, LLC v. CAROL N. MIGLIACCIO
Status: Unpublished
Summary:
PER CURIAM Plaintiff Ditech Financial LLC (Ditech) appeals from a Chancery Division order granting summary judgment to defendant Thompson Realty Company of Princeton (Thompson), and giving Thompson's 2006 judgment lien priority over Ditech's 2004 mortgage. We affirm, substantially for the reasons set forth in Judge Margaret Goodzeit's comprehensive and well-reasoned opinion of February 22, 2017.
Docket No.: a1357-18
Decided: 2020-02-11
Caption: JASON PRENDEVILLE v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM
Status: Unpublished
Summary:
PER CURIAM Jason Prendeville appeals a final decision of the Board of Trustees, Police and Firemen's Retirement System (PFRS). The Board adopted the initial decision of the Administrative Law Judge (ALJ), denying Prendeville's application for accidental disability retirement benefits. The ALJ found, and the Board agreed, Prendeville was not permanently and totally disabled from performing his duties as a corrections officer, and his disability claim was not the direct result of a traumatic event. Because we conclude the Board's decision "is supported by sufficient credible evidence on the record as a whole," R. 2:11- 3(e)(1)(D), we affirm.
Docket No.: a1425-16
Decided: 2020-02-11
Caption: STATE OF NEW JERSEY v. PATRICK HEALY
Status: Unpublished
Summary:
FUENTES, P.J.A.D. A Gloucester County Grand Jury indicted defendant Patrick Healy on one count of fourth degree driving a motor vehicle while his driver's license was suspended for two or more convictions of driving while intoxicated (DWI),1 N.J.S.A. 2C:40-26(b). Defendant was also charged with the disorderly persons offense of possession of drug paraphernalia (a metallic pipe), with intent to use, N.J.S.A. 2C:36-2, driving with an open container of alcohol, N.J.S.A. 39:4-51, failing to maintain a traffic lane, N.J.S.A. 39:4-88, and driving with a suspended license, N.J.S.A. 39:3-40.
Docket No.: a2267-18
Decided: 2020-02-11
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.D.W.
Status: Unpublished
Summary:
PER CURIAM T.D.W. appeals from a January 11, 2019 Family Part order terminating her parental rights to A.C.W. born in February 2017. We affirm.
Docket No.: a2532-18
Decided: 2020-02-11
Caption: IN THE MATTER OF THE ESTATE OF SAM ATHANASENAS
Status: Unpublished
Summary:
PER CURIAM Appellant George Athanasenas (George1), decedent Sam Athanasenas' (Sam) son, appeals from the Chancery Division's January 3, 2019 order that referred his claims to arbitration. After a thorough consideration of the record and the parties' arguments in light of the applicable legal principles, we reverse.
Docket No.: a2920-18
Decided: 2020-02-11
Caption: COMMERCE LIMITED PARTNERSHIP 9326 v. EDISON FURNITURE LLC,
Status: Unpublished
Summary:
PER CURIAM Plaintiff Commerce Limited Partnership $19326 appeals from a February 25, 2019 Special Civil Part order dismissing its action to evict a commercial tenant, defendant Edison Furniture, LLC d/b/a All Brands Furniture Closeouts, LLC, for various violations of a written lease. The judge found defendant breached the lease. However, instead of entering a judgment of possession, the judge fashioned an equitable remedy, allowing defendant thirty days to cure its breaches of the lease.
Docket No.: a4167-18
Decided: 2020-02-11
Caption: ANA S. DERAS v. YASAMIN T. HAMWI
Status: Unpublished
Summary:
PER CURIAM Plaintiff Ana S. Deras appeals from a May 9, 2019 order granting summary judgment to defendant Allstate New Jersey Property $1 Casualty Insurance Company (Allstate) and denying her request for underinsured motorist (UIM) coverage under Allstate's policy. We affirm.
Docket No.: a5335-17
Decided: 2020-02-11
Caption: PARKING AUTHORITY OF THE CITY OF CAMDEN v. ESTATE OF MILTON RUBIN
Status: Unpublished
Summary:
PER CURIAM Plaintiff Parking Authority of the City of Camden appeals from four orders related to a condemnation action through which it acquired a property previously owned by defendant Estate of Milton Rubin
Docket No.: a5880-17
Decided: 2020-02-11
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. W.F
Status: Unpublished
Summary:
PER CURIAM Defendant W.R. (Walt)1 appeals from the Family Part's August 3, 2018 order terminating his parental rights to his daughter, A.R. (Ann), then just shy of five years old. As Ann's mother voluntarily surrendered her parental rights, the court's order freed Ann for adoption by her maternal grandmother, with whom she had lived for over two-and-a-half years.
Docket No.: a1548-17
Decided: 2020-02-10
Caption: STATE OF NEW JERSEY v. S.G.-R
Status: Unpublished
Summary:
PER CURIAM Tried before a jury on a three-count indictment, defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and second- degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count three). The trial judge sentenced defendant to an aggregate twenty-five year term, with a twenty-five year period of parole ineligibility.
Docket No.: a1809-18
Decided: 2020-02-10
Caption: P.E.A v. Y.A
Status: Unpublished
Summary:
PER CURIAM The court being advised by the parties in the above matter that the issues in dispute have been amicably resolved, the appeal is accordingly dismissed with prejudice and without costs to either party.
Docket No.: a1830-18
Decided: 2020-02-10
Caption: MARK MURPHY v. BOARD OF TRUSTEES, STATE POLICE RETIREMENT SYSTEM
Status: Unpublished
Summary:
PER CURIAM Mark Murphy appeals a final agency decision of the Board of Trustees of the State Police Retirement System (SPRS), denying his request for deferred retirement benefits under N.J.S.A. 53:5A-28. We affirm.
Docket No.: a2080-18
Decided: 2020-02-10
Caption: STATE OF NEW JERSEY v. GARY H. CONDIT
Status: Unpublished
Summary:
PER CURIAM After a trial de novo on the record in Superior Court, defendant Gary H. Condit appeals from December 3, 2018 convictions of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(4); possession of drug paraphernalia, N.J.S.A. 2C:36-2; reckless driving, N.J.S.A. 39:4-96; careless driving, N.J.S.A. 39:4-97; operation of a motor vehicle while in possession of CDS, N.J.S.A. 39:4-49.1; driving while intoxicated (DWI), N.J.S.A. 39:4-50, for the second time; unsafe lane change, N.J.S.A. 39:4-88(b); refusal to provide breath samples, N.J.S.A. 39:4-50.2; and failure to keep right, N.J.S.A. 39:4-82.
Docket No.: a2606-18
Decided: 2020-02-10
Caption: C.N v. M.F
Status: Unpublished
Summary:
PER CURIAM Plaintiff C.N.1 appeals from the January 17, 2019 order of the Family Part denying his motion to vacate the court's December 11, 2017 order establishing custody and parenting time for C.N. and defendant M.F. with respect to their child. We affirm.
Docket No.: a4311-18
Decided: 2020-02-10
Caption: STATE OF NEW JERSEY v. AHMAD J. JOHNSON
Status: Unpublished
Summary:
PER CURIAM This post-conviction relief (PCR) case returns to us after remand proceedings directed by our previous opinion.
Docket No.: a5207-17
Decided: 2020-02-10
Caption: STATE OF NEW JERSEY v. KAFELE K. BOMANI
Status: Unpublished
Summary:
PER CURIAM Defendant Kafele Bomani appeals from an order denying his petition for post-conviction relief (PCR). He contends that his trial and appellate counsel provided him with ineffective assistance. Having conducted a de novo review of the record, we affirm substantially for the reasons explained by Judge Patricia M. Wild in her thorough twenty-page opinion denying the PCR petition after
hearing oral argument, but without an evidentiary hearing.
Docket No.: a5896-17
Decided: 2020-02-10
Caption: FANG LIU v. BOARD OF REVIEW DEPARTMENT OF LABOR, and VINTAGE PHARMACEUTICALS LLC
Status: Unpublished
Summary:
PER CURIAM Appellant Fang Liu challenges the final agency decision of the Board of Review of the Department of Labor and Workforce Development (Board) affirming the decision of the Appeal Tribunal disqualifying her for unemployment benefits from December 6, 2015 to July 16, 2016.
Docket No.: a0097-18
Decided: 2020-02-07
Caption: STATE OF NEW JERSEY v. ROBERT H. RAMGEET
Status: Unpublished
Summary:
PER CURIAM Defendant, a Jamaican citizen, was indicted and charged in 2004 with various offenses. In 2006, pursuant to a negotiated plea agreement, defendant pleaded guilty to second-degree conspiracy to commit kidnapping, N.J.S.A. 2C:5-2(a)(2), and first-degree carjacking, N.J.S.A. 2C:15-2. He was sentenced, on April 13, 2007, to an aggregate twelve-year prison term with an eighty-five percent period of parole ineligibility. Defendant did not file a direct appeal.
Docket No.: a1089-18
Decided: 2020-02-07
Caption: JUAN PENA and MILAGROS PENA v. JOSE GOMEZ
Status: Unpublished
Summary:
PER CURIAM This appeal arises from a civil action for breach of contract, consumer fraud, and common law fraud brought in the Special Civil Part against a home improvement contractor.
Docket No.: a1427-18
Decided: 2020-02-07
Caption: THE ESTATE OF FRANK CHABORA, JR. v. RAUL MORALES
Status: Unpublished
Summary:
PER CURIAM In this commercial landlord-tenant action, defendant Raul Morales, a/k/a Raul Berrocal, Raul Figueroa, and Raul Figeroa Morales (Morales) appeals from a November 29, 2018 Law Division order entering judgment of possession in favor of plaintiff Estate of Frank Chabora, Jr., by and through Susanne Munn as the Executrix (collectively, the Estate). Morales, who operated an auto repair shop in a garage located on the Estate's property, was served with a summons and complaint for possession, which attached a notice to quit that was delivered to Morales over a month earlier after the Estate stopped accepting his rent.
Docket No.: a4081-17
Decided: 2020-02-07
Caption: STATE OF NEW JERSEY v. ABDUL L. PARKER
Status: Unpublished
Summary:
PER CURIAM Defendant, Abdul Parker, appeals from the denial of his petition for post - conviction relief (PCR) without an evidentiary hearing. On the day scheduled for trial, defendant pled guilty to two counts of first-degree robbery and one count of conspiracy to commit robbery. He was sentenced to an aggregate fifteen-year sentence subject to the parole ineligibility term required under the No Early Release Act, N.J.S.A. 2C:43-7.2.
Docket No.: a4234-18
Decided: 2020-02-07
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.H.
Status: Unpublished
Summary:
PER CURIAM L.H. (Laura)1 appeals the Judgment of Guardianship that terminated her parental rights under N.J.S.A. 30:4C-15.1(a). She contends the trial court erred because there was not clear and convincing evidence to support the court's findings. We reject her arguments and affirm the judgment substantially for the reasons expressed by Judge Mary K.
Docket No.: a4464-18
Decided: 2020-02-07
Caption: GLOUCESTER CITY BOARD OF EDUCATION v. GLOUCESTER CITY EDUCATION ASSOCIATION
Status: Unpublished
Summary:
PER CURIAM Plaintiff Gloucester City Board of Education (the Board) appeals from a March 25, 2019 Chancery Division order compelling binding arbitration of a grievance filed by defendant Gloucester City Education Association (the Union) on behalf of its members concerning an attendance policy unilaterally adopted by the Board. For the following reasons, we dismiss the appeal, refer the matter to the Public Employment Relations Commission (PERC) for a scope of negotiations determination, and stay the March 25, 2019 order pending PERC's determination. The Union is the exclusive bargaining agent for the teachers employed by the Board, which operates a K-12 public school district in Gloucester City. The parties entered into a collective negotiations agreement (CNA) covering the period from July 1, 2016 to June 30, 2019. Article 10 of the CNA states that the length of the school year is 186.5 days, comprised of 181 student contact days, two in-service days, three professional development days, and one day following the last student day. In addition, teachers are required to attend up to five evening meetings per year for parent conferences, back to school events, PTA events, college and science fairs, and "moving up" ceremonies. A-4464-18T4 2 Article 9 of the CNA governs temporary leaves of absence. As to sick leave, it provides: "All employees shall receive fifteen (15) sick leave days per year. Ten[-]month employees hired after September 1, 1995 will receive ten (10) sick leave days per year." Teachers are ten-month employees. Unused sick leave days accumulate without limitation. Teachers also receive three personal days per year and five compassionate leave days per year in the event of the death of a member of the teacher's immediate family. The Board or its designee may also grant other leaves of absence with or without pay for good reason. Article 4 sets forth the four-step grievance procedure for resolution of complaints filed by employees or the Union that allege "a violation, misinterpretation or inequitable application of any of the provisions" of the CNA. Grievances are heard and decided at Level One by a principal, at Level Two by the Superintendent, at Level Three by the Board, and at Level Four by arbitration. Matters that proceed to arbitration are heard by an arbitrator "selected from a panel of arbitrators provided by [PERC] in accordance with the rules required by PERC." At issue in this matter is whether the grievance involves a matter relating to "the terms and conditions of employment." In that regard, subsection (b) of paragraph 6 of Article 4 provides: A-4464-18T4 3 Only matters relating to employees' terms and conditions of employment as set forth in this Agreement may be submitted to arbitration. The arbitrator shall be limited to the issue(s) submitted and shall consider nothing else. The arbitrator can add nothing to, subtract anything from, nor modify the express terms of this Agreement. The arbitrator's recommendations shall be submitted in writing to the Board and the [Union], and shall be advisory except in those disciplinary matters covered by [N.J.S.A. 34:13A-19] in which case arbitration shall be binding. On June 12, 2018, the Board adopted District Policy 3212-Attendance (the Attendance Policy)—an attendance policy for teaching staff members. 1 The Attendance Policy states: The regular and prompt attendance of teaching staff members is an essential element in the efficient operation of the school district and the effective conduct of the educational program. Staff member absenteeism exacts a high cost in the depletion of district resources and in the disruption of the educational program, the Board of Education is vitally interested in the attendance of each employee and considers conscientious attendance an important criterion of satisfactory job performance. The privilege of district employment imposes on each teaching staff member the responsibility to be on the job on time every scheduled working day. This responsibility requires that the employee maintain good health standards, take intelligent precautions against accidents, both on and off the job, and manage his/her 1 The Attendance Policy was initially adopted on August 14, 2013; it was revised on April 21, 2015 and June 12, 2018. A-4464-18T4 4 personal affairs to avoid conflict with district responsibilities. A teaching staff member who fails to give prompt notice of an absence, misuses sick leave, fails to verify an absence in accordance with Board policy, falsifies the reason for an absence, is absent without authorization, is repeatedly tardy, or accumulates an excessive number of absences may be subject to appropriate consequences, which may include the withholding of a salary increment, dismissal, and/or certification of tenure charges. In accordance with N.J.S.A. 18A:30-1, sick leave is defined to mean the absence from work because of a personal disability due to injury or illness or because the staff member has been excluded from school by the school medical authorities on account of contagious disease or of being quarantined for such a disease in the staff member's immediate household. No teaching staff member will be discouraged from the prudent, necessary use of sick leave and any other leave provided for in the collective bargaining agreement negotiated with the member's majority representative, in an individual employment contract, or provided in the policies of the Board. In accordance with N.J.S.A. 18A:30-4, the Superintendent or Board of Education may require a physician's certificate to be filed with the Secretary of the Board in order to obtain sick leave. Whenever the rate of absence and or tardiness in any school year is equal to or higher than [3.5%], the Superintendent or designee/s shall develop and present to the Board a plan for the review and improvement of staff attendance. Whenever the rate of absence and or tardiness in any school year of an individual staff member is equal to or higher than [3.5%], the building principal or designee/s shall develop a corrective action A-4464-18T4 5 plan for the staff member to review and improve his/her attendance. The corrective action plan may include but not be limited to a fitness for duty evaluation, scheduled meetings with administration to review attendance, and an examination performed by the district's physician or consultation between the district's physician and staff member's physician. Each staff member's annual evaluation will contain his/her absentee and tardiness rate for that school year. The review and improvement plan shall require the collection and analysis of attendance data, tardiness data, the training of teaching staff member in their attendance/tardiness responsibilities, and the counseling of teaching staff members for whom regular and prompt attendance/tardiness is a problem. [(Emphasis added).] Notably, 3.5% of the 186.5-day school year is only 6.52 days, considerably less than the ten sick leave days per school year allotted by the CNA.2 Moreover, the Attendance Policy does not consider whether the sick leave was patterned or taken for legitimate medical reasons. Nor does it consider the teaching staff member's prior sick leave usage and accumulated unused sick leave. On June 13, 2018, the Union filed a grievance asserting that the mechanical application of [the Attendance Policy], without considering the reasons for absences, is 2 During oral argument before this court, counsel indicated that teachers receive thirteen to eighteen sick leave days per year, depending on date of hire. We do not find such language in the CNA. A-4464-18T4 6 improper. Furthermore, the [Union] finds this action to be arbitrary and capricious due to the fact that the administration is considering only the total number of absences (and applying them to a formula of their own design) and not the reasons behind such absences. Any policy that does this violates our members' rights to take sick leave, personal days, bereavement days, jury duty days and use days from the sick bank, as needed. [Union] members are guaranteed [thirteen] or [eighteen] days per year, depending on the date of hire, plus accumulated sick days and should not be penalized for taking the time off guaranteed to them by the [CNA]. The Union contended that all attendance goals should be stricken from Professional Development Plans. The grievance did not assert that any members had been subjected to counseling, a corrective action plan, or other form of disciplinary action for not meeting attendance goals. 3 The grievance advanced to, and was denied at, Level Three of the grievance procedure. At the Union's request, the matter was then submitted to arbitration under Level Four. The Board responded by filing this action in the 3 The grievance was filed the day after the Attendance Policy was adopted. As of February 13, 2019, no staff member had been subjected to a corrective action plan, increment withholding, suspension, or tenure charges for violating the Attendance Policy. The Union avers, however, that "particular employees have been affected by the challenged policy, as an attendance goal that relies on the [p]olicy was incorporated into certain staff members' [professional development plans]." A-4464-18T4 7 Chancery Division, seeking in part to restrain, and permanently enjoin, arbitration of the grievance. The Board asserted: Because the parties never agreed to submit criteria for employee evaluations to arbitration, and since the CNA does not contain any language subjecting such to arbitration, it remains the Board's managerial prerogative to determine criteria for employee evaluations, such is not subject to arbitration. Furthermore, the use of the [McREL] teacher evaluation rubric, which contains an attendance component, has been approved by the Commissioner [of Education], and therefore is not subject to collective negotiations. The Union moved to dismiss the complaint with prejudice. The Union acknowledged that the Board's adoption of the McREL teacher evaluation rubric was not statutorily negotiable because it had been approved by the Commissioner of Education. The Union contended nevertheless that application and impact of the Attendance Policy was both statutorily negotiable and contractually arbitrable, because teachers who do not meet attendance expectations are required to be counseled and thereby disciplined without the exercise of discretion. Following oral argument, the court issued an order and letter opinion denying the Board's request to restrain arbitration. The court found "the Board's application and use of employment attendance as one of its evaluation criteria A-4464-18T4 8 is a mandatorily negotiable term or condition of employment," rather than a "non-negotiable managerial prerogative," and "therefore is subject to arbitration." The court noted that application of the Attendance Policy "exclude[s] from consideration the reason for a teacher's absence" and requires "implementation of a Professional Development Plan if expectations are not met." The court concluded that because the Attendance Policy, which requires counseling if a teacher does not meet attendance expectations, "is a mechanical application," it is a "term or condition" under the CNA that is subject to arbitration. In reaching that conclusion, the court explained The employment evaluation criteria does not include on its face how the attendance policy is applied, and the application of the policy is in fact a mechanical application, in that teachers who do not meet attendance expectations are required to be counseled. Therefore, the application of the attendance policy goes beyond that which is simply stated in the McREL Rubric and is a "term or condition" under the CNA. As such, the grievance relating to the attendance policy is subject to arbitration. The Board moved for reconsideration, claiming the court misapplied PERC precedent. The court disagreed and denied the motion in a brief oral decision. This appeal followed. The Board raises the following points on appeal: A-4464-18T4 9 POINT I NEW JERSEY CASE LAW CONCERNING ATTENDANCE POLICIES AND TERMS AND CONDITIONS OF EMPLOYMENT HAVE BEEN MISAPPLIED BY THE TRIAL COURT. A. A mechanical application of a policy on its face does not necessarily impact terms and conditions of employment. B. The policy does not provide for a mechanical application of disciplinary action or any other action that impacts terms and conditions of employment. POINT II THERE ARE NO INDIVIDUAL TEACHING STAFF MEMBER GRIEVANCES TO CONSIDER. Our review is guided by well-established legal principals. Public employees have the right to engage in collective negotiations. Council of N.J. State Coll. Locals v. State Bd. of Higher Educ., 91 N.J. 18, 25-26 (1982) (citing N.J. Const. art. I, ¶ 19; N.J.S.A. 34:13A-5.3)). "[T]he majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate . . . other terms and conditions of employment." N.J.S.A. 34:13A-5.3. "However, 'the scope of negotiations in the public sector is more limited than in the private sector' due to the government's 'special responsibilities to the public' to 'make and implement public policy.'" In re Cty. A-4464-18T4 10 of Atl., 445 N.J. Super. 1, 21 (App. Div. 2016), aff'd on other grounds, 230 N.J. 237 (2017) (quoting In re IFPTE Local 195 v. State, 88 N.J. 393, 401-02 (1982) (footnotes omitted)). PERC is charged with administering the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -39, and has "primary jurisdiction" to determine "whether the subject matter of a particular dispute is within the scope of collective negotiations." Cty. of Atl., 445 N.J. Super. at 20 (quoting Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 154 (1978) (citing N.J.S.A. 34:13A-5.4(d)). "[T]here are but two categories of subjects in public employment negotiation — mandatorily negotiable terms and conditions of employment and non-negotiable matters of governmental policy." Ridgefield Park, 78 N.J. at 162. We give appropriate deference to PERC's expertise in public sector employer-employee relations. In re Hunterdon Cty. Bd. of Chosen Freeholders, 116 N.J. 322, 328 (1989). CNAs are contracts; "contract interpretation is a question for judicial resolution." Ridgefield Park, 78 N.J. at 155. "When . . . there are no material factual disputes, 'the interpretation of a contract is subject to de novo review by an appellate court.'" Cty. of Atl., 230 N.J. at 255 (quoting Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011)). A-4464-18T4 11 Thus, PERC and the courts serve two distinct functions: PERC makes the threshold determination whether the disputed issue is a matter the parties can legally negotiate and enforce through arbitration while the court determines whether the CNA involves a matter the parties agreed to arbitrate. Ridgefield Park, 78 N.J. at 154-55. As the Ridgefield Park Court explained: where a party resists an attempt to have a dispute arbitrated, it may go to the Superior Court for a ruling on the issue of its contractual obligation to arbitrate. However, the issue of contractual arbitrability may not be reached if the threshold issue of whether the subject matter of the grievance is within the scope of collective negotiations is contested. In that event, a ruling on that issue must be obtained from PERC. [Id. at 155.] Therefore, in some cases, "it may be necessary to go to both PERC and the Superior Court in order to completely resolve a disagreement concerning the arbitrability of a particular dispute." Id. at 153. Here, the grievance challenged the "mechanical application" of the Attendance Policy that subjects teaching staff members to corrective action plans or other disciplinary action if their absences equal or exceed 3.5% of workdays, without considering the reasons for the absences. The Board did not file a scope of negotiations petition with PERC. Instead, it filed this action in the Superior Court. In its complaint, the Board alleged "[t]he criteria for A-4464-18T4 12 evaluation of teachers" is "a matter of 'inherent managerial prerogative,'" rather than "a term and condition of employment," and is therefore "nonnegotiable." Moreover, the Board argued that because the Commissioner of Education approved the McREL teacher evaluation rubric, which includes attendance, it is not subject to collective negotiations, citing N.J.S.A. 18A:6-125.4 The trial court found "the Board's application and use of employment attendance as one of its evaluation criteria is a mandatorily negotiable term or condition of employment," rather than a "non-negotiable managerial prerogative," and "therefore is subject to arbitration." However, "[w]here the trial judge determines that the real controversy is not one of contractual arbitrability, but rather concerns the propriety of the parties negotiating and agreeing on the item in dispute, he should refrain from passing on the merits of that issue." Ridgefield Park, 78 N.J. at 153-54. Here, the CNA contains, but does not define, the phrase "terms and conditions of employment." Thus, by contesting whether the Attendance Policy is subject to arbitration, the parties are necessarily contesting whether the policy is within the scope of negotiations. 4 N.J.S.A. 18A:6-125 provides that "[a] school district's evaluation rubric approved by the commissioner pursuant to [N.J.S.A. 18A:6-122] shall not be subject to collective negotiations." A-4464-18T4 13 Our opinion in Piscataway Township. Education Association v. Piscataway Township Board of Education, 307 N.J. Super. 263 (App. Div. 1998) is instructive. There, the board unilaterally altered the school calendar due to weather-related closings, without submitting the proposed changes to collective negotiations. Id. at 267-68. The union initiated an action challenging the board's failure to negotiate "over changes in the school calendar and over the impact of those changes on [b]oard employees." Id. at 265. A PERC hearing examiner concluded that the board "had a contractual right to reschedule the school days," but no "duty to negotiate over any impact issues." Id. at 269. The union appealed. We reversed and remanded the case to PERC, finding that while the decision to change the school calendar was not negotiable, the impact of that decision may be negotiable.
Docket No.: a4728-17
Decided: 2020-02-07
Caption: STATE OF NEW JERSEY v. GERALD H. HINES
Status: Unpublished
Summary:
PER CURIAM A Camden County grand jury returned an indictment charging defendant Gerald H. Hines with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); third-degree receiving stolen property, N.J.S.A. 2C:20- 7(a) (count two); third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count three); and second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1) (count four). On the first day of trial, Judge Kathleen M. Delaney granted the State's motion to dismiss the CDS charge. Following a bifurcated trial, the jury convicted defendant of both weapons offenses, but acquitted him on the receiving stolen property charge. After she denied defendant's pro se motion for a new trial, Judge Delaney sentenced defendant to concurrent ten-year terms on the two weapons offenses, subject to a five-year period of parole ineligibility. This appeal followed. On appeal, defendant raises the following contentions: POINT I THE COURT FAILED TO PROPERLY APPLY THE STATE V. CARTER STANDARD IN DENYING THE MOTION FOR A NEW TRIAL. POINT II RESENTENCING IS REQUIRED BECAUSE THE TRIAL COURT FAILED TO FIND MITIGATING A-4728-17T3 2 [FACTOR] SEVEN, THAT THE DEFENDANT HAD LED A LAW-ABIDING LIFE FOR A SUBSTANTIAL PERIOD OF TIME BEFORE THE COMMISSION OF THE PRESENT OFFENSE. After reviewing the record in light of these contentions, we conclude that defendant's arguments lack merit. Accordingly, we affirm defendant's convictions and sentence.
Docket No.: a4909-17
Decided: 2020-02-07
Caption: N.M.Q. v. M.A.T.
Status: Unpublished
Summary:
PER CURIAM On May 1, 2018, a Family Part judge vacated a temporary restraining order (TRO), and dismissed N.M.Q.'s complaint and amended complaints filed under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 (the Act). Over the course of the three trial days, N.M.Q. moved into evidence, among other things, approximately 100 text messages and more than forty voicemails defendant M.A.T. sent her during the twenty-four hours after she had left the house they shared with their eleven-year-old daughter.
Docket No.: a5033-17
Decided: 2020-02-07
Caption: CAPITAL ONE, N.A. v. LEWIS WU
Status: Unpublished
Summary:
PER CURIAM Defendant Lewis Wu appeals from an order of the Chancery Division that denied his motion for reconsideration of the court's prior order denying his motion to vacate a final judgment of foreclosure entered against him. Having reviewed the record in light of the governing legal principles, we affirm.
Docket No.: a5159-17
Decided: 2020-02-07
Caption: C.N. v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES
Status: Unpublished
Summary:
PER CURIAM This is the second appeal by petitioner C.N. from final agency decisions by the Department of Human Services (Department), placing her on the Central Registry of Offenders against Individuals with Developmental Disabilities (Central Registry). 1 On the first appeal, we reversed and remanded because the Department provided insufficient explanations for rejecting and modifying the initial decision of the Administrative Law Judge (ALJ).
Docket No.: a5870-17
Decided: 2020-02-07
Caption: STATE OF NEW JERSEY v. CARLOS B. GONZALEZ
Status: Unpublished
Summary:
PER CURIAM Defendant Carlos Gonzalez appeals from the July 16, 2018 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Docket No.: a0540-18
Decided: 2020-02-06
Caption: STATE OF NEW JERSEY v. JORGE BULTRON
Status: Unpublished
Summary:
PER CURIAM Defendant, Jorge Bultron appeals from the trial court's May 4, 2018 order denying his post-conviction relief (PCR) petition without an evidentiary hearing and his motion for a new trial. We affirm.
Docket No.: a0838-18
Decided: 2020-02-06
Caption: SAHDIEKHA JOHNSON v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: Unpublished
Summary:
PER CURIAM Appellant Sahdiekha Johnson, an inmate, challenges a July 17, 2018 final decision by the Department of Corrections (Department) holding that he was guilty of prohibited acts, $1.803/*.012, attempting to or actually "throwing bodily fluid at any person or otherwise," and *.002, "assaulting any person." N.J.A.C. 10A:4-4.1(a). On appeal, Johnson contends that the Department's finding "was not based [upon] substantial evidence." We disagree and affirm.
Docket No.: a1014-18
Decided: 2020-02-06
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.C.M. and O.D.M
Status: Unpublished
Summary:
PER CURIAM A-1014-18T3 2 Defendants O.D.M. and S.C.M. appeal from an October 22, 2018 judgment of guardianship terminating their parental rights to their biological children, Owen and Eric. 1 O.D.M. collaterally argues the trial court's termination flowed, in part, from an order dated October 22, 2014, which wrongfully relieved the New Jersey Division of Child Protection and Permanency (Division) of the requirement to offer him services. We affirm, substantially for the reasons set forth in Judge James R. Paganelli's cogent,
ninety-five-page written opinion of October 9, 2018.
Docket No.: a1045-18
Decided: 2020-02-06
Caption: RANDY JOHNSON v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: Unpublished
Summary:
PER CURIAM Appellant Randy Johnson appeals from the October 10, 2018 final agency decision of the New Jersey Department of Corrections (DOC) that he committed prohibited act $1.203, possession or introduction of any prohibited substances such as drugs, intoxicants, or related paraphernalia not prescribed for the inmate by the medical or dental staff. N.J.A.C. 10A:4-4.1(a). We affirm.
Docket No.: a2460-18
Decided: 2020-02-06
Caption: TOWNE GARDENS v. VICTORIA HOLMES
Status: Unpublished
Summary:
PER CURIAM Defendant Victoria Holmes appeals from a February 7, 2019 final judgment in plaintiff's favor in the amount of $18256. She argues that plaint iff did not have legal standing to pursue a summary dispossess action against her for non-payment of rent because plaintiff Towne Gardens was not a bona fide owner of the subject property. After reviewing the record and law, we disagree and affirm the trial court.
Docket No.: a3026-18
Decided: 2020-02-06
Caption: ALEKSANDR LISENKOV v. BOARD OF REVIEW DEPARTMENT OF LABOR
Status: Unpublished
Summary:
PER CURIAM Claimant Aleksandr Lisenkov appeals from a final decision of the Board of Review (Board) that found he had not filed a timely appeal challenging the determination of his claim for unemployment compensation benefits and failed to establish good cause for the untimely appeal. We affirm.
Docket No.: a5268-17
Decided: 2020-02-06
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.A and E.M
Status: Unpublished
Summary:
PER CURIAM Defendant A.A.1 appeals from a final judgment terminating her parental rights to her four children, L.M. (Linda), born in 2003; Ez.M. (Eddie), born in 2004; J.M. (Jill), born in 2006; and A.M. (Alice), born in 2007. The court also entered judgment terminating the parental rights of the children's father E.M. (Earl). Defendant contends the Division of Child Protection and Permanency (the Division) failed to prove the four prongs of the best interests standard , N.J.S.A. 30:4C-15.1(a)(1) to (4), by clear and convincing evidence, and the court failed to make adequate findings of fact and conclusions of law supporting its decision. The Law Guardians for Eddie and Alice urge that we affirm the judgment.
Docket No.: a5537-17
Decided: 2020-02-06
Caption: STATE OF NEW JERSEY v. MARK BOND
Status: Unpublished
Summary:
PER CURIAM Defendant Mark Bond appeals from a February 21, 2018 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Docket No.: 13446-18
Decided: 2020-02-11
Caption: United Autoland, Inc. v. Director, Division of Taxation
Summary:
This letter constitutes the court's opinion with respect to the Director, Division of
Taxation's motion to dismiss plaintiff's complaint with prejudice for lack of subject-matter
jurisdiction pursuant to R. 4:6-2(a). For the reasons explained more fully below, the Director's
motion is granted.