Recent Decisions of the New Jersey Appellate Courts
from 2022-08-02
to 2022-08-16
Docket No.: a-24-21
Decided: 2022-08-10
Caption: Norman International, Inc. v. Admiral Insurance Company
Summary:
FUENTES, P.J.A.D. (temporarily assigned), writing for a unanimous Court. This appeal concerns an exclusionary clause in a commercial general liability insurance policy issued by Admiral Insurance Company (Admiral) to Richfield Window Coverings, LLC (Richfield). The clause states that the policy does not cover any liability “arising out of, related to, caused by, contributed to by, or in any way connected with . . . [a]ny operations or activities performed by or on behalf of any insured” in certain counties in New York, including Nassau County.
Docket No.: a-12-21
Decided: 2022-08-03
Caption: State v. F.E.D.
Summary:
PATTERSON, J., writing for a unanimous Court. In this appeal, the Court considers what showing is required under the Compassionate Release Statute, N.J.S.A. 30:4-123.51e, for a court to order the release of an inmate not otherwise eligible for parole based on the inmate's suffering from “a permanent physical incapacity,” N.J.S.A. 30:4-123.51e(f)(1).
Docket No.: a-7-21
Decided: 2022-08-02
Caption: East Bay Drywall, LLC v. Department of Labor Workforce Development
Summary:
FUENTES, P.J.A.D. (temporarily assigned), writing for a unanimous Court. In this appeal, the Court considers whether certain workers employed by East Bay Drywall, LLC, are properly classified as employees or independent contractors under the Unemployment Compensation Law, which sets forth a test -- commonly referred to as the “ABC test” -- to determine whether an individual serves as an employee. See N.J.S.A. 43:21-19(i)(6)(A) to (C).
Docket No.: a2859-20
Decided: 2022-08-11
Caption: FULTON BANK OF NEW JERSEY v. CASA ELEGANZA, LLC
Status: Published
Summary:
ALVAREZ, P.J.A.D. (retired and temporarily assigned on recall) Plaintiff Fulton Bank of New Jersey (the Bank) acquired title at a sheriff's sale after mortgage foreclosure to a portion of a residential community subject to defendant Iron Gate at Galloway Homeowners' Association (HOA) Declaration of Covenants. The developer recorded the HOA's Declaration of Covenants on June 25, 2007, after the Bank's first mortgage was recorded, and in accord with Galloway Township's major subdivision approval. The Bank later sold the property to Gargione LLC. At closing, the HOA billed the Bank for $112,651.35 attributed to the period the Bank held title. The Bank refused to pay, and the funds were escrowed. The Bank then filed a motion under the foreclosure docket number in Chancery to "divest" the land from the HOA Covenants and vacate the fees. The Bank contends that because the first mortgage was recorded before the HOA Declaration, the foreclosure extinguished the obligations. We affirm the Chancery judge's June 7, 2021 denial of the motions, finding the HOA Declaration constituted an equitable servitude that follows the land even if the mortgage was filed first.
Docket No.: a0937-21
Decided: 2022-08-03
Caption: STATE OF NEW JERSEY v. TERRELL TUCKER
Status: Published
Summary:
GOODEN BROWN, J.A.D. By leave granted, defendant Terrell Tucker appeals from an October 1, 2021 Law Division order amplifying a June 16, 2021 order which denied defendant's motion to dismiss an indictment charging defendant with numerous drug-related offenses, including possession of controlled dangerous substances (CDS) with intent to distribute. At the grand jury proceeding, Officer Patrick Egan described the circumstances surrounding defendant's arrest, including exchanges the police observed between defendant and other individuals, as well as the cache of illicit narcotics recovered by law enforcement at the scene. Near the end of Egan's testimony, the prosecutor asked Egan if he believed, based on his training and experience, that defendant had possessed the narcotics with the intent to distribute them. Egan replied in the affirmative and described the considerations that informed his opinion.
Docket No.: a1889-20
Decided: 2022-08-02
Caption: EUGENE BERTA v.
NEW JERSEY STATE
PAROLE BOARD
Status: Published
Summary:
GEIGER, J.A.D., concurring. While I agree with the analysis and result in the court's opinion, I write separately to further address the seventy-two-month future eligibility term (FET) imposed by the State Parole Board (Board). This lengthy FET follows the previous 120-month FET imposed by the Board. In each instance, the lengthy FETs were based on palpably thin grounds described in detail in the court's opinion.
Docket No.: a0875-19
Decided: 2022-08-12
Caption: STATE OF NEW JERSEY v. JOSE M. ARIAS-MADE
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from his jury trial conviction for possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). Police found the gun in the trunk of his car following a motor vehicle stop for an alleged tinted windows violation. After carefully reviewing the record in light of the arguments of the parties and governing legal principles, we reverse and vacate defendant's conviction because the State at the suppression hearing failed to meet its burden to establish reasonable and articulable suspicion to justify the motor vehicle stop.
Docket No.: a1127-20
Decided: 2022-08-12
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.R.-R. and G.R.-S
Status: Unpublished
Summary:
PER CURIAM In these consolidated appeals, defendants J.R.-R. (Jenny) and G.R.-S. (George) separately challenge the termination of parental rights to their sons, A.R.-R. (Alex) and G.J.R.-S. (Gabriel).1 The Division of Child Protection and Permanency (the Division) brought the within guardianship action pursuant to N.J.S.A. 30:4C-11 to -15.4, after filing an abuse or neglect action under N.J.S.A. 9:6-8.21 to -8.73. The Title Nine case led to a trial court finding abuse or neglect by a preponderance of the evidence. We upheld that finding on appeal; our Supreme Court reversed.
Docket No.: a1170-20
Decided: 2022-08-12
Caption: ARMEN KARAKHANIAN v. NATALIA SHCHUKO
Status: Unpublished
Summary:
PER CURIAM Plaintiff Armen Karakhanian appeals from the Family Part's November 12, 2020 amended final judgment of divorce (AFJOD) and the February 8, 2021 order denying his reconsideration motion seeking to vacate certain provisions of the AFJOD. On appeal, he challenges the trial court's rulings regarding child support, alimony, reimbursement alimony, and Mallamo1 credits. We affirm in part and reverse and remand in part.
Docket No.: a4625-19
Decided: 2022-08-12
Caption: ANGELINA GONZALEZ v. EASTERN INTERNATIONAL COLLEGE
Status: Unpublished
Summary:
PER CURIAM In 2007, plaintiff Angelina Gonzalez enrolled in Eastern International College (EIC), a for-profit technical school formerly known as Micro Tech Training Center, and in 2011, she successfully completed EIC's Diagnostic Medical Ultrasound Technology (DMUT) program and received her diploma. At all relevant times, defendant Dr. Bashir Mohsen was the CEO of EIC, and defendant Dr. Mustafa Mustafa was the school's Vice President for Academic Affairs. The DMUT program was designed to prepare students for entry-level positions as sonographers in healthcare offices, clinics, and facilities. Upon successful completion of the didactic portion (classroom instruction) of the program, students participated in an externship. Plaintiff participated and completed the externship portion of the course between February and May 2011.
Docket No.: a0127-20
Decided: 2022-08-11
Caption: STEPHANIE C. HUNNELL v. ALIDA MCKEON
Status: Unpublished
Summary:
PER CURIAM Plaintiff Stephanie Hunnell, a licensed attorney, represented defendant Alida McKeon in divorce proceedings which resulted in McKeon receiving a $1630,000 settlement in 2008 as her share of equitable distribution. However, McKeon's ex-husband failed to comply with the settlement terms, and McKeon never received the full settlement amount despite Hunnell filing numerous post- judgment enforcement motions on her behalf. Ultimately, the legal representation ended, although the parties dispute the termination date. Thereafter, Hunnell obtained a $55,352 award from the District Fee Arbitration Committee (Fee Committee) for past due legal fees owed by McKeon. McKeon never appealed the award. When McKeon failed to pay, on November 25, 2019, Hunnell filed a verified complaint in the Law Division pursuant to Rule 4:67-1(a) seeking a judgment. In response, McKeon filed a contesting answer, including affirmative defenses, and a counterclaim alleging legal malpractice and other claims.
Docket No.: a1495-19
Decided: 2022-08-11
Caption: STATE OF NEW JERSEY v. ROBERT L. TERRY
Status: Unpublished
Summary:
PER CURIAM Robert L. Terry appeals from his August 14, 1998 resentencing on remand, contending "[t]he sentencing court's reasoning for its imposition of four consecutive sentences [was] inadequate.
Docket No.: a1813-20
Decided: 2022-08-11
Caption: STATE OF NEW JERSEY v. DONALD THOMAS
Status: Unpublished
Summary:
PER CURIAM Defendant, Donald Thomas, appeals from a February 11, 2021 Law Division order denying his second petition for post-conviction relief (PCR). After carefully reviewing the record in view of the governing legal principl es, we affirm.
Docket No.: a0133-21
Decided: 2022-08-10
Caption: JEROME MASON v. TOWNSHIP OF MIDDLETOWN ZONING BOARD OF ADJUSTMENT
Status: Unpublished
Summary:
PER CURIAM Plaintiff Jerome Mason, a builder, purchased an undersized parcel of land with the hope of building a single-family house. He appeals from orders granting summary judgment to defendant the Township of Middletown (Township) and dismissing his claims against defendant the Township's Zoning Board of Adjustment (Zoning Board). The trial court granted summary judgment to the Township, holding that plaintiff's property had merged with an adjoining property when the two properties had come under common ownership. The court dismissed the claims against the Zoning Board, holding that the Board had correctly determined that it had no jurisdiction to consider plaintiff's variance application because he was seeking variances on part of a merged property. We agree with the trial court that plaintiff's parcel had merged with an adjoining property. We, therefore, affirm both orders.
Docket No.: a2210-19
Decided: 2022-08-10
Caption: STATE OF NEW JERSEY v. BLAKE CLAY
Status: Unpublished
Summary:
PER CURIAM Defendant Blake Clay was a Union County Police Department (UCPD) police officer and an avid toy collector. He was charged in a three-count indictment with third-degree official misconduct, N.J.S.A. 2C:30-2(a); third- degree theft by deception, N.J.S.A. 2C:20-4; and third-degree theft, N.J.S.A. 2C:20-3(a). After losing his motions to disqualify the Union County Prosecutor's Office (UCPO) from prosecuting the case, defendant was tried by a jury and convicted of all three counts. He was sentenced to an aggregate term of three years' imprisonment, with a two-year period of parole ineligibility. The parole ineligibility period was mandated under N.J.S.A. 2C:43-6.5 for the official misconduct conviction. The convictions stemmed from defendant's theft of toy action figures on twelve occasions in 2016 from various Walmart and Target stores. Defendant affixed fake barcode stickers to the figures and purchased them at reduced prices. During some of the incidents, defendant was wearing his police uniform, and, on one occasion, informed loss prevention store personnel that he was a police officer when they threatened to call the police. The proofs adduced by the State at trial included expert testimony about the identity and fair market value of some of the items defendant purchased. Defendant testified and claimed he found the items with the barcode stickers already attached. Through the scheme, defendant cheated Walmart and Target out of over $1500. In this ensuing appeal, defendant makes the following arguments: LEGAL ARGUMENTS I. THE TESTIMONY OF MATTHEW ZAITZ SHOULD HAVE BEEN PRECLUDED AT TRIAL BECAUSE IT IS A NET OPINION AND THE FOUNDATION UPON WHICH THE PURPORTED EXPERTISE RELIES IS INSUFFICIENT UNDER N.J.R.E. 702 AND 703. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN LIMITING THE TESTIMONY OF [DEFENDANT], PREVENTING HIM FROM PRESENTING A DEFENSE IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS. A. The Trial Court Prevented [Defendant] From Presenting A Defense When It Did Not Allow Testimony Concerning His Own State Of Mind About Walmart's Pricing. B. The Trial Court Committed Reversible Error When It Prevented [Defendant] From Testifying On Issues And Facts That Reveal State Of Mind And Improperly Limited His Ability To Present A Defense. C. The Convictions Against [Defendant] Must Be Reversed Because The Cumulative Error Of Precluding Relevant State Of Mind Evidence Necessary To Defend Against The Charges While Including The Net Opinion Of Matthew Zaitz Deprived [Defendant] Of A Fair Trial. III. A RECUSAL OF THE [UCPO] WAS NECESSARY TO ENSURE THAT [DEFENDANT] RECEIVED A FAIR AND IMPARTIAL TRIAL. A. Recusal Of The [UCPO] Was Necessary To Avoid A Conflict Of Interest Because The Prosecuting Agency Acquired Information That Would Not Otherwise Have Been Obtained But For [Defendant's] Employment With Both The UCPD And UCPO. B. The Tortuous History Of [Defendant] With Numerous Individuals Who Participated In His Criminal Investigation And Prosecution Necessitated That The UCPO Be Recused To Preserve Fairness And Impartiality During The Entire Criminal Prosecution. i. The Substantial Participation Of Lieutenant John Kaminskas In Investigating, Prosecuting And Adjudicating Numerous Internal Affairs Complaints Against [Defendant] While Also Participating In His Criminal Prosecution Assisting The UCPO Required Recusal Of The UCPO. ii. The Involvement Of Lieutenant Dean Marcantonio In The Investigation Of [Defendant's] Notice Of Claim And Continued Involvement With The Criminal Investigation And Prosecution Of [Defendant] Created A Conflict Of Interest Necessitating A Recusal Of The UCPO. iii. The Continued Involvement Of Captain Vincent Gagliardi Of The UCPO In The Criminal Prosecution Of [Defendant] While Being Involved In The Investigation Of The Notice Of Tort Claims Presented An Inescapable Conflict Requiring Recusal Of The UCPO. IV. THE CONVICTION OF [DEFENDANT] SHOULD BE REVERSED BECAUSE THE COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT INQUIRE OF DEFENDANT OR COUNSEL ABOUT HIS RIGHT TO TESTIFY OR RIGHT NOT TO TESTIFY. V. THE DEFENDANT SHOULD HAVE BEEN ACQUITTED ON ALL COUNTS BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. A-2210-19 5 Having reviewed the arguments in light of the record and governing legal principles, we affirm.
Docket No.: a3358-20
Decided: 2022-08-10
Caption: STATE OF NEW JERSEY v. FARAD ANDREWS
Status: Unpublished
Summary:
PER CURIAM Defendant Farad Andrews appeals from a Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Before us, he presents the following arguments: POINT I THE PCR COURT IMPROPERLY DENIED DEFENDANT'S CLAIM THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF HIS PLEA COUNSEL WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING[.] A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS FOR INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST- CONVICTION RELIEF. B. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY NEGLECTING TO CHALLENGE COUNT ONE OF THE INDICTMENT, BY FAILING TO OBJECT TO THE JURY INSTRUCTIONS AND SENTENCE, AND BY FAILING TO PROPERLY ADVISE DEFENDANT THAT HE WAS SUBJECT TO PUNISHMENT FOR FIRST[-]DEGREE ARMED ROBBERY. POINT II DEFENDANT'S POST-CONVICTION RELIEF CLAIMS ARE NOT PROCEDURALLY BARRED[.] Having reviewed the record considering the applicable legal standards, we are unpersuaded by defendant's arguments and affirm substantially for the reasons set forth by the PCR judge in his oral decision.
Docket No.: a3571-19
Decided: 2022-08-10
Caption: DAVID JONES v. BOARD OF TRUSTEES PUBLIC EMPLOYEES RETIREMENT SYSTEM
Status: Unpublished
Summary:
PER CURIAM David Jones appeals from a final decision of the Board of Trustees of the Public Employees' Retirement System, denying his application for accidental disability retirement benefits. The Board rejected the findings of an Administrative Law Judge who determined Jones is totally and permanently disabled as a direct result of a puncture wound to his right hand suffered in a fall at work. Because we agree with the Board that Jones failed to establish his disabling condition was a direct result of the work injury to his hand, we affirm.
Docket No.: a0110-21
Decided: 2022-08-09
Caption: LINDA CLARK v. CITY OF WILDWOOD
Status: Unpublished
Summary:
PER CURIAM Plaintiff Linda Clark appeals from the August 31, 2021 order granting summary judgment in favor of defendant City of Wildwood and dismissing with prejudice plaintiff's complaint for failure to satisfy the requirements of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 14.4. We affirm.
Docket No.: a1079-20
Decided: 2022-08-09
Caption: IN THE MATTER OF ATLANTIC RECYCLING GROUP'S BID PROTEST OF AWARD FOR NJDOT SNOW PLOWING AND SPREADING WAIVER
Status: Unpublished
Summary:
PER CURIAM Atlantic Recycling Group appeals from a final decision of the Department of Transportation to bypass its low bid on the 2020-21 snow plowing and spreading waiver contract. In Atlantic's telling, the Department refused to award Atlantic the contract based on a false claim involving "an exaggeration of a prior contract," where Atlantic "had the audacity to appeal the NJDOT's meritless attempt to cancel all of [Atlantic's] contracts over a simple misunderstanding on a poorly written, brand-new question." In actuality, the Department bypassed Atlantic's bid in accordance with a provision in the Request for Quotations advising all bidders their bids could be bypassed based on "a history of performance problems" demonstrated by "formal complaints and/or contract cancellations for cause" in accordance with the State's Standard Terms and Conditions. As the Department's decision to bypass Atlantic's bid was neither arbitrary nor capricious, complied with legislative policies and is amply supported by sufficient, competent and credible evidence in the record, we affirm.
Docket No.: a2499-20
Decided: 2022-08-09
Caption: STATE OF NEW JERSEY v. WILMER M. REYES
Status: Unpublished
Summary:
PER CURIAM Defendant Wilmer M. Reyes appeals from a Law Division order denying his motion for post-conviction relief (PCR). On appeal, defendant challenges trial counsel's effectiveness, claiming counsel failed to advise him about the immigration consequences of his guilty pleas, and claims the court erred by denying PCR without conducting an evidentiary hearing. We affirm.
Docket No.: a3212-20
Decided: 2022-08-09
Caption: STATE OF NEW JERSEY v. MARVIN SHERWOOD
Status: Unpublished
Summary:
PER CURIAM Defendant Marvin Sherwood appeals from a Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Before us, he presents the following arguments: POINT I THE PCR COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM COUNSEL. A. Counsel was Ineffective for Failing to Request an Accomplice Liability Charge. B. Counsel was Ineffective for Failing to File a Motion to Suppress and for Failing to Object to Numerous Trial Errors. POINT II THE PCR JUDGE ERRED IN FINDING THAT THIS PETITION FOR POST-CONVICTION RELIEF WAS TIME BARRED. Having reviewed the record considering the applicable legal standards, we are unpersuaded by defendant's arguments and affirm substantially for the reasons set forth by the PCR judge in her written decision.
Docket No.: a4389-18
Decided: 2022-08-09
Caption: STATE OF NEW JERSEY v. KAREEM A. MCNEIL
Status: Unpublished
Summary:
PER CURIAM Sometime before 5:00 p.m. on May 25, 2013, nineteen-year-old Devahje Bing was shot and killed outside the Oakland Park Apartments in Trenton. The shooting occurred on the heels of a fistfight between Bing and defendant Tahj M. Laws, who tried to end the skirmish by firing a "hood gun"1 at Bing. That gun was inoperable. Bing walked away; Laws walked over to defendant Kareem A. McNeil and exchanged the inoperable gun for a loaded silver .38 caliber revolver. Within seconds, Laws fired multiple shots at Bing from fifteen feet away. Bing later died at a local hospital, having succumbed to a bullet wound to the chest. At the time of the homicide, Laws was fifteen years old; McNeil was twenty-two years old.
Docket No.: a1387-20
Decided: 2022-08-08
Caption: ERIC CORDERO v. NEW JERSEY STATE PAROLE BOARD
Status: Unpublished
Summary:
PER CURIAM Eric Cordero appeals from a December 16, 2020 final agency decision by the New Jersey State Parole Board (Board) denying his request for parole and imposing a forty-eight-month future eligibility term (FET). We affirm.
Docket No.: a2866-19
Decided: 2022-08-08
Caption: COMPREHENSIVE NEUROSURGICAL, P.C. v. THE VALLEY HOSPITAL
Status: Unpublished
Summary:
PER CURIAM Defendant, The Valley Hospital (Valley Hospital or the Hospital), appeals from a February 6, 2020 final judgment entered by the Law Division in favor of plaintiffs in the amount of $126,341,828.35. The judgment represents $24.3 million in damages awarded by a jury, $662,387.25 in costs, litigation expenses, and attorney's fees, and $1,379,441.10 in prejudgment interest.
Docket No.: a3610-20
Decided: 2022-08-08
Caption: M.R-T v. J.R
Status: Unpublished
Summary:
PER CURIAM Defendant J.R. appeals from a final restraining order (FRO) entered under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, based on the predicate act of harassment, N.J.S.A. 2C:33-4. The trial court found that defendant had harassed plaintiff M.R-T. and that there was a need for an FRO to protect plaintiff's safety. We affirm because the trial court's factual findings are supported by substantial credible evidence, and it correctly applied the law.
Docket No.: a1329-20
Decided: 2022-08-05
Caption: CALISE BELIN v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY
Status: Unpublished
Summary:
PER CURIAM Plaintiff Calise Belin and her mother Kim Belin, appeal from summary judgment in favor of New Jersey Manufacturers Insurance Company dismissing their claim for underinsured motorist coverage. Because we agree with Judge Belgard that there were no material facts in dispute regarding liability for the accident, making NJM entitled to judgment as a matter of law, we affirm.
Docket No.: a3184-20
Decided: 2022-08-05
Caption: LALJI BHIMJI SANGHANI v. RAJESHKUMAR M. PATEL
Status: Unpublished
Summary:
PER CURIAM Between June 2005 and February 2009, plaintiffs, Lalji and Premwati Sanghani, made fourteen separate loans to defendant, Rajeshkumar Patel (Rajeshkumar), totaling $13,485,000. The interest-bearing loans were used to fund a series of real estate ventures. Rajeshkumar defaulted on every loan, eventually prompting plaintiffs to file suit. Plaintiffs appeal three May 26, 2021 Law Division orders entered by Judge Kimberly Espinales-Maloney dismissing their complaints with prejudice and discharging all lis pendens filed in connection with this litigation. The trial judge concluded that the first two loans, which were not reduced to writing, were unenforceable under the statute of frauds. Judge Espinales-Maloney also determined that the complaint regarding all fourteen loans was time-barred under the six-year statute of limitations. After carefully reviewing the record in light of the applicable legal principles and arguments of the parties, we affirm the dismissal of plaintiffs' complaint substantially for the reasons set forth in Judge Espinales-Maloney's comprehensive twenty-page written opinion.
Docket No.: a3078-19
Decided: 2022-08-04
Caption: STATE OF NEW JERSEY v. ABDUL WARD
Status: Unpublished
Summary:
PER CURIAM Defendant Abdul Ward appeals from the denial of his petition for post- conviction relief (PCR), contending he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial judge correctly determined the evidence insufficient to sustain defendant's burden, we affirm.
Docket No.: a3934-18
Decided: 2022-08-04
Caption: STATE OF NEW JERSEY v. BRANDON M. WASHINGTON
Status: Unpublished
Summary:
PER CURIAM A gunman shot Mark Peterson and William Matthews during a crowded "Ladies Night" event at the Willingboro VFW Hall. A jury convicted defendant Brandon Washington of two counts of the lesser-included offense of attempted passion/provocation manslaughter. The judge sentenced defendant to two consecutive, maximum ten-year terms of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant raises the following points on appeal: POINT I NUMEROUS, REPEATED, AND EGREGIOUS IDENTIFICATION ISSUES AT TRIAL AMOUNTED TO A DENIAL OF JUSTICE AND RESULTED IN DEFENDANT BEING DEPRIVED OF A FAIR TRIAL.[1] POINT II THE PROSECUTOR COMMITTED MISCONDUCT WHEN HE MADE EGREGIOUS COMMENTS DURING SUMMATION THAT IMPROPERLY WATERED DOWN AND REVERSED THE BURDEN OF PROOF. POINT III A SERIES OF JURY CHARGE ERRORS DENIED [DEFENDANT] A FAIR TRIAL. 1 We omit the sub-points included within the points raised on appeal. A-3934-18 2 POINT IV THE COURT DENIED DEFEND[AN]T'S CONSTIT[]U[T]IONAL RIGHT TO PRESENT A DEFENSE BY DENYING DEFEND[AN]T'S ABILITY TO ADMIT RELEVANT PHOTOGRAPHIC EXCULPATORY EVIDENCE AT TRIAL. POINT V DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL BY THE IMPROPER ADMISSION OF BOTH THE JAIL CALL AND THE SLANG EXPERT'S TESTIMONY REGARDING THE CONTENT OF THE JAIL CALL. POINT VI THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED DEFENDANT TO TWO CONSECUTIVE MAXIMUM NERA TERMS, AMOUNTING TO A MANIFESTLY EXCESSIVE SENTENCE. POINT VII THE TRIAL WAS SO PLAGUED BY ERROR THAT THE CUMULATIVE EFFECT OF THOSE ERRORS DENIED DEFENDANT A FAIR TRIAL. We affirm defendant's convictions but remand for the court to address the overall fairness of the sentence as required by the Court's decision in State v. Torres,
246 N.J. 246 (2021).
Docket No.: a5544-18
Decided: 2022-08-04
Caption: STATE OF NEW JERSEY v. ANTHONY J. JAMES
Status: Unpublished
Summary:
PER CURIAM Around 5:10 p.m. on September 28, 2011, defendant Anthony J. James called 9-1-1 from his Plainfield home, reporting he had just killed his girlfriend and was waiting on the porch for police to arrive so he could turn himself in. Audrey Tanksley's lifeless body lay in the fetal position in the bathtub. She had been stabbed ninety-four times. The State contended defendant repeatedly stabbed Tanskley with three knives in "an act of rage." Rejecting his claims of diminished capacity and self - defense, the jury convicted defendant of all three counts charged in Union County Indictment No. 12-03-2101: first-degree murder, N.J.S.A. 2C:11- 3(a)(1) and (2) (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). After ordering appropriate mergers, the trial judge nonetheless imposed concurrent sentences on each count.1 Defendant was sentenced to an aggregate sixty-year prison term, subject to the periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, on the murder conviction. On appeal, defendant raises the following points for our consideration: 1 In addition to the sixty-year prison term on count one, defendant was sentenced to a four-year prison term, with a two-year parole disqualifier on count two, and a sixteen-month prison term on count three. A-5544-18 2 POINT I THE JUDGE IMPROPERLY INSTRUCTED THE JURY ON THE DUTY TO RETREAT; A PERSON ATTACKED INSIDE THAT PERSON'S OWN DWELLING HAS NO SUCH DUTY. (Not raised below) POINT II THE JUDGE'S DECISION TO SEPARATELY ASK THE JURY TO RETURN A YES/NO VERDICT ON THE ISSUE OF SELF-DEFENSE AS THE FIRST QUESTION ON THE VERDICT SHEET DEPRIVED DEFENDANT OF PROPER JURY DELIBERATION ON THE ISSUE OF SELF-DEFENSE IN TWO RESPECTS: (1) BECAUSE THE JURY INSTRUCTION NEVER TIED THE STATE'S BURDEN OF PROOF TO THE ANSWER TO THIS QUESTION; I.E., JURORS WERE NEVER TOLD TO ANSWER "YES" IF THEY MERELY HAD A REASONABLE DOUBT ON THE ISSUE OF SELF- DEFENSE; AND (2) BECAUSE SEPARATING THE SELF-DEFENSE DELIBERATIONS FROM THE OTHER DELIBERATIONS ON MURDER IMPROPERLY BIFURCATED THE JURY'S DELIBERATIONS ON THE MOST IMPORTANT ISSUE IN THE CASE: WHETHER HE SHOULD BE CONVICTED OF MURDER. (Not raised below) POINT III THE JUDGE IMPROPERLY OMITTED A "COURSE OF ABUSE" INSTRUCTION FROM THE JURY INSTRUCTION ON SELF-DEFENSE, STRANGELY LIMITING THAT CONCEPT ONLY TO A-5544-18 3 PASSION/PROVOCATION MANSLAUGHTER. (Not raised below) POINT IV THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE AND THE JUDGE IMPROPERLY IMPOSED SENTENCE ON COUNTS THAT HE HAD ORDERED MERGED. We are persuaded by defendant's assertions in point I and conclude the flaws in the jury instruction on self-defense require reversal of defendant's convictions and remand for a new trial.
Docket No.: a2478-20
Decided: 2022-08-03
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.S.-S and M.M. and V.G
Status: Unpublished
Summary:
PER CURIAM Defendant L.S.-S.1 (Lilly) appeals from an April 16, 2021 judgment of guardianship after a trial terminating parental rights to her daughters, A.M. (Anna), born in October 2011, and N.M. (Nina), born in July 2009.2 On appeal, Lilly challenges the Family judge's determination that the New Jersey Division of Child Protection and Permanency (Division) satisfied the second, third, and fourth prongs of the best interests of the child test, N.J.S.A. 30:4C-15.1(a). She also contends the judge's decision "is tainted by prejudice and unfairness" as a result of proceeding virtually on the last day of trial without Lilly's consent. We disagree and affirm.
Docket No.: a3219-19
Decided: 2022-08-03
Caption: STEPHANIE HALLIDAY v. BIOREFERENCE LABORATORIES, INC
Status: Unpublished
Summary:
PER CURIAM Plaintiff Stephanie Halliday filed a single-count complaint alleging defendant Bioreference Laboratories, Inc. violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, by terminating her employment in retaliation for complaints and objections she made to her supervisors concerning defendant's alleged operation of its Houston, Texas laboratory in contravention of federal safety and health regulations and the Clinical Laboratory Improvement Amendments of 1988 (CLIA), 42 U.S.C. § 263a to a- 7.1 Plaintiff appeals from an order granting defendant summary judgment, arguing the court erred by determining Texas law, and not New Jersey law under CEPA, applies to the resolution of her wrongful termination claim, and by concluding that even if CEPA applied, her cause of action should be dismissed because she failed to present evidence the termination of her employment is causally connected to her complaints.
Docket No.: a3983-19
Decided: 2022-08-03
Caption: CHAD STRACENSKY v. FIRST ATLANTIC FEDERAL CREDIT UNION
Status: Unpublished
Summary:
PER CURIAM On February 25, 2020, the late Judge James W. Palmer entered an order granting summary judgment dismissal of plaintiff Chad Stracensky's complaint against defendants First Atlantic Federal Credit Union ("First Atlantic" or "credit union") and William F. Saldutti, III $1 Robert L. Saldutti, doing business as Saldutti Law Group (collectively "Saldutti") on grounds of collateral estoppel and lack of jurisdiction due to a related action filed in another vicinage that was pending appeal. The judge also denied reconsideration of his order on June 4, 2020. Stracensky appeals the orders contending the judge erred in dismissing his complaint. We disagree and affirm.
Docket No.: a1954-21
Decided: 2022-08-02
Caption: JESSICA HURLEY v. NIKETA GOVINDANI, M.D
Status: Unpublished
Summary:
PER CURIAM In this medical negligence action, on leave granted, we consider whether the physician who issued the affidavit of merit (AOM) met the requirements under the New Jersey Medical Care Access and Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A-37 to -42. Although the certifying physician had retired from his forty years of practice in New York as an obstetrician/gynecologist (OB/GYN) two years prior to the accrual of plaintiff's claims, he continued to volunteer as an OB/GYN at a clinic in Florida. The trial court found the AOM compliant with the statute. Because we conclude the certifying physician was board certified in the same specialty as defendant and was "devoting the majority of his professional time" to the practice of th at specialty, we affirm.
Docket No.: a2789-20
Decided: 2022-08-02
Caption: J.T.S v. J.S.
Status: Unpublished
Summary:
PER CURIAM 1 We use initials to protect victims of domestic violence. R. 1:38-3(d)(9). Plaintiff appeals from the May 13, 2021 order denying his application for a temporary restraining order (TRO). Because plaintiff did not prove a predicate act of harassment or any other act of domestic violence, we affirm.
Docket No.: a3357-20
Decided: 2022-08-02
Caption: L.G v. M.A.A
Status: Unpublished
Summary:
PER CURIAM Defendant M.A.A.1 appeals the Family Part's denial of certain aspects of his motion for post-judgment relief. Among other things, defendant moved to: compel renewal of his daughter J.A.'s2 passport and take her to visit Egypt; secure additional parenting time; and enforce other aspects of the matrimonial property settlement agreement between the parties. Plaintiff objected, and cross-moved for certain relief. The Family Part denied defendant's motion to travel with his daughter to Egypt as well as his motion to increase parenting time. The court granted other aspects of defendant's motion as well as plaintiff's cross-motion, but it denied counsel fees to both parties. We affirm.