Recent Decisions of the New Jersey Appellate Courts
from 2018-10-09 to 2018-10-23

Supreme Court Decisions


Appellate Division PUBLISHED Decisions


Docket No.: a2580-17
Decided: 2018-10-17
Caption: MARILYN FLANZMAN v. JENNY CRAIG, INC.
Status: Published
Summary:
FASCIALE, J.A.D. This appeal requires us to decide whether to invalidate an arbitration agreement because the parties failed to identify any arbitration forum and any process for conducting the arbitration. In general, a forum is the mechanism – or setting – that parties use to arbitrate their dispute. They could have designated an arbitral institution (like the American Arbitration Association (AAA) or the Judicial Arbitration and Mediation Services (JAMS)), or they could have communicated a general method for selecting a different arbitration setting.

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Docket No.: a3619-17
Decided: 2018-10-17
Caption: STATE OF NEW JERSEY v. RICKY BROWN
Status: Published
Summary:
ROSE, J.A.D. Among other issues, this appeal requires us to decide whether the strip search statute (the Statute), N.J.S.A. 2A:161A-1 to -10, applies to crimes. We granted defendant Ricky Brown's motion for leave to appeal from a January 31, 2018 trial court order, denying his motion to suppress evidence seized as a result of a strip search following his arrest for indictable drug offenses. After reviewing the record in light of the contentions advanced on appeal, we affirm.

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Appellate Division UNPUBLISHED Decisions


Docket No.: a0174-17
Decided: 2018-10-18
Caption: U.S. BANK NATIONAL ASSOCIATION v. MERVIN HODGE
Status: Unpublished
Summary:
PER CURIAM In this residential foreclosure action, defendant Mervin Hodge appeals from an August 15, 2017 final judgment entered in favor of U.S. Bank National Association, As Trustee of the NRZ Pass-Through Trust V (plaintiff). We affirm.

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Docket No.: a0977-16
Decided: 2018-10-18
Caption: STATE OF NEW JERSEY v. ROSS W. BROWN
Status: Unpublished
Summary:
PER CURIAM Defendant Ross Brown appeals from the August 11, 2016 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

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Docket No.: a1161-16
Decided: 2018-10-18
Caption: STATE OF NEW JERSEY v. DARREN HALE
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from an October 7, 2016 order denying his petition for post-conviction relief (PCR) after an evidentiary hearing. We affirm.

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Docket No.: a1985-16
Decided: 2018-10-18
Caption: IN THE MATTER OF THE PETITION OF THE VILLAGE OF LOCH ARBOUR TO FORM AN INDEPENDENT SCHOOL DISTRICT
Status: Unpublished
Summary:
PER CURIAM Appellants Ocean Township and the Ocean Township Board of Education appeal from the Board of Education's Commissioner's decision authorizing the Village of Loch Arbour (Loch Arbour) to hold a referendum on the question of whether it should withdraw from the Ocean Township School District (OTSD). We affirm.

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Docket No.: a2138-16
Decided: 2018-10-18
Caption: STATE OF NEW JERSEY v. DAQUAN LAPREAD
Status: Unpublished
Summary:
PER CURIAM Defendant Daquan Lapread appeals from a final judgment of conviction entered following a trial at which a jury found him guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), second-degree possession of a handgun for unlawful purposes, N.J.S.A. 2C:39-4(a), and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Because we find no merit in defendant's contention the court erred by failing to charge the jury on lesser-included offenses of fourth-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(3), and simple assault, N.J.S.A. 2C:12-1(a)(1), (2) and (3), we affirm.

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Docket No.: a2742-16
Decided: 2018-10-18
Caption: STATE OF NEW JERSEY v. SHAKEYSHA L. PRUITT
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from an order of the Law Division dated February 3, 2017, which denied her petition for post-conviction relief (PCR). We affirm.

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Docket No.: a3308-15
Decided: 2018-10-18
Caption: IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF AMGAD HESSEIN, M.D LICENSE NO.: 25MA067650 TO PRACTICE MEDICINE AND SURGERY IN THE STATE OF NEW JERSEY
Status: Unpublished
Summary:
PER CURIAM Appellant Amgad Hessein, M.D., appeals from the March 28, 2016 final agency decision of the Board of Medical Examiners revoking his medical license and ordering him to pay $1130,000 in penalties and $308,749.53 in costs for, among other things, fraudulent billing practices, multiple acts of gross and repeated negligence related to patient care, and the creation of false and fictitious patient records. We affirm.

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Docket No.: a4136-17
Decided: 2018-10-18
Caption: STATE OF NEW JERSEY v. DAVID BROWN
Status: Unpublished
Summary:
PER CURIAM Defendant filed an appeal of a pretrial detention order, claiming the trial court's failure to provide him with an initial appearance within forty-eight hours of his arrest 1 on one of several charges necessitated his immediate release from incarceration. Because defendant has since been released, we find the matter moot and consequently dismiss the appeal. Only a brief explanation is required.

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Docket No.: a4531-16
Decided: 2018-10-18
Caption: ADRIANNE BRUCE v. BOROUGH OF COLLINGSWOOD
Status: Unpublished
Summary:
PER CURIAM Plaintiff Adrianne Bruce slipped and fell on a patch of ice in an alley allegedly owned and maintained by defendant, Borough of Collingswood. Defendant moved for summary judgment, arguing plaintiff's injuries failed to meet the requirements of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the TCA), specifically N.J.S.A. 59:9-2(d), which provides: "No damages shall be awarded against a public entity . . . for pain and suffering resulting from any injury; provided, however, that this limitation . . . shall not apply in cases of permanent loss of a bodily function, [or] permanent disfigurement . . . ."

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Docket No.: a4620-16
Decided: 2018-10-18
Caption: STATE OF NEW JERSEY v. MALIK SINGER
Status: Unpublished
Summary:
PER CURIAM Defendant Malik Singer appeals from an order denying his post- conviction relief (PCR) petition without an evidentiary hearing. We affirm.

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Docket No.: a4769-16
Decided: 2018-10-18
Caption: DAWN GATTO v. PORT AUTHORITY OF NEW YORK NEW JERSEY
Status: Unpublished
Summary:
PER CURIAM Plaintiffs Dawn Gatto and Enrico J. Gatto 1 appeal from a June 2, 2017 order granting defendant CFM Service Corporation (CFM) summary judgment dismissal.2 For the reasons that follow, we affirm.

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Docket No.: a5312-16
Decided: 2018-10-18
Caption: PNC BANK, NATIONAL ASSOCIATION v. JAMES MERCADANTE
Status: Unpublished
Summary:
PER CURIAM Defendants, the obligors on two secured home equity line of credit agreements with plaintiff – the original lender – appeal from orders of: June 10, 2016 granting plaintiff's motion to strike defendants' answer and affirmative defenses and enter default 1 against defendants who failed to make any loan payments after December 15, 2011, and denying defendants' motion to dismiss plaintiff's complaint; September 16, 2016 granting plaintiff's motion to reform, correcting a portion of a course in the foreclosed property's metes and bounds description; May 26, 2017 denying defendants' motion to fix the amount due; and June 14, 2017 entering final judgment.

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Docket No.: a1150-16
Decided: 2018-10-17
Caption: NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION SITE REMEDIATION COMPLIANCE AND ENFORCEMENT v. RARITAN SHOPPING CENTER, LP
Status: Unpublished
Summary:
SUTER, J.A.D. Defendant Raritan Shopping Center, LP (Raritan) appeals the October 6, 2016 Final Decision by the Commissioner of the New Jersey Department of Environmental Protection (Final Decision) that granted summary decision to petitioner Department of Environmental Protection (DEP) and affirmed its January 13, 2014 Administrative Order and Notice of Civil Administrative Penalty Assessment (AONOCAPA), that found Raritan violated certain environmental remediation statutes and regulations and imposed $166,200 in administrative penalties.

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Docket No.: a1184-16
Decided: 2018-10-17
Caption: PCIII REO, LLC v. IVAN SEDNEFF
Status: Unpublished
Summary:
SUTER, J.A.D. Plaintiff PCIII REO, LLC appeals three orders in this tax foreclosure matter. One order allowed Bandi Property Group (Bandi) to intervene in the foreclosure and to redeem a tax sale certificate. The other two orders extended the time for redemption. We affirm all the challenged orders.

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Docket No.: a2623-15
Decided: 2018-10-17
Caption: STATE OF NEW JERSEY v. COREY SAUNDERS
Status: Unpublished
Summary:
FUENTES, P.J.A.D. A Middlesex County grand jury returned an indictment against defendant Corey Saunders, charging him with three counts of third degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); three counts of third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1); three counts of third degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3); three counts of third degree possession of cocaine with intent to distribute or distributing cocaine within 1000 feet of a school, N.J.S.A. 2C:35-7; and one count of second degree distribution of cocaine to an undercover police officer within 500 feet of a public housing complex, N.J.S.A. 2C:35-7.1.1 On October 25, 2013, defendant entered into a negotiated agreement with the State, through which he pled guilty to one count of third degree distribution of cocaine to an undercover police officer, within 1000 feet of a school. In exchange, the State agreed to dismiss the remaining counts in the indictment and recommended that the court sentence defendant to a four-year term of imprisonment, with eighteen months of parole ineligibility. On March 11, 2014, the trial judge sentenced defendant consistent with the terms of the plea 1 The first indictment charged defendant with committing only twelve third degree drug-related offenses. The State thereafter obtained a superseding indictment that added the second degree offense under N.J.S.A. 2C:35-7.1. A-2623-15T1 2 agreement. Defendant appeals from the order of the Criminal Part that upheld the decision of the Middlesex County Prosecutor's Office (MCPO) to deny his application for admission into the pre-trial intervention (PTI) program. This is the second time defendant has brought this issue before this court. In the first appeal, defendant argued, inter alia, that the MCPO improperly considered and relied on prior dismissed charges "to wrongly find that the present allegations were part of a continuing pattern of antisocial behavior." State v. Corey Saunders, No. A-4460-13 (App. Div. September 22, 2015) (slip op. at 2). In response to this particular argument, this court noted that at the time the MCPO rejected defendant's PTI application, our Supreme Court had not yet decided State v. K.S., 220 N.J. 190 (2015). Id. at 4. In K.S., the Court considered "whether it was proper for the Somerset County Prosecutor to rely upon adult criminal charges that had been dismissed and juvenile charges of possession of a weapon, assault, fighting, and harassment that had been diverted and dismissed in rejecting defendant's application for admission into [the PTI program]." 220 N.J. at 193. After a careful review of the salient facts of the case, the eligibility factors codified in N.J.S.A. 2C:43-12(e), and the guidelines in Rule 3:28, the Court in K.S. held "it is improper to rely upon previously dismissed charges alone as A-2623-15T1 3 evidence in support of a 'continuing pattern of anti-social behavior.'" Saunders, slip op. at 4 (quoting K.S., 220 N.J. at 201-02). Although we acknowledged that the prosecutor "did not rely solely on dismissed charges to justify his finding of continuing antisocial behavior . . . [,]" the record showed that the "dismissed charges constituted a sufficiently prominent part of the prosecutor's reasoning to call into question his conclusion." Saunders, slip op. at 4. We thus vacated the trial court's order that upheld the prosecutor's rejection of defendant's application for admission into PTI and remanded the matter "to the prosecutor for further consideration in light of K.

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Docket No.: a2765-16
Decided: 2018-10-17
Caption: IN THE MATTER OF PRINCETON CHARTER SCHOOL'S REQUEST TO AMEND ITS CHARTER
Status: Unpublished
Summary:
PER CURIAM We have been advised prior to argument this matter has been amicably adjusted, and the parties have stipulated to the dismissal of this appeal. Accordingly, the appeal is dismissed with prejudice and without costs. A-2765-16T1 2

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Docket No.: a3091-16
Decided: 2018-10-17
Caption: VALERIE L. SMITH v. BURLINGTON COUNTY BRIDGE COMMISSION
Status: Unpublished
Summary:
PER CURIAM Plaintiff Valerie L. Smith appeals from the March 9, 2017 order dismissing the following counts of her complaint: one, breach of contract as a third-party beneficiary of the Collective Negotiation Agreement (CNA); two, a 42 U.S.C. § 1983 action; four, a declaratory judgment that "just cause" for her termination was inappropriate; five, attorney's fees under 42 U.S.C. § 1988; and six, wrongful discharge under the employee handbook. We affirm for the reasons set forth in the thorough, thorough November 30, 2016 written opinion of Judge Susan L.

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Docket No.: a4403-15
Decided: 2018-10-17
Caption: STATE OF NEW JERSEY v. WALTER A. RODRIGUEZ
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from his conviction for third-degree endangering an injured victim. Defendant claims the State failed to prove its case beyond a reasonable doubt. We affirm.

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Docket No.: a4695-16
Decided: 2018-10-17
Caption: STATE OF NEW JERSEY v. ANTHONY L. CONCEPCION
Status: Unpublished
Summary:
PER CURIAM Defendant Anthony Concepcion appeals from a May 16, 2017 judgment of conviction for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Defendant moved to suppress the handgun seized without a warrant, which formed the evidential basis for the charge. When his motion was denied, defendant entered a negotiated guilty plea and was sentenced to a five- year term of imprisonment with a three-and-one-half year period of parole ineligibility, in accordance with the Graves Act, N.J.S.A. 2C:43-6(c). On appeal, defendant challenges the denial of his suppression motion as permitted under Rule 3:5-7(d). We affirm.

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Docket No.: a4711-16
Decided: 2018-10-17
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.G.
Status: Unpublished
Summary:
PER CURIAM Defendant L.E.W. (Luke) appeals from a June 5, 2017 order terminating his parental rights to his son, L.P.W. (Louis). 1 He raises one point of argument concerning the third prong of the best interests of the child test, N.J.S.A. 30:4C- 15.1 (a): THE TRIAL COURT MISAPPLIED THE PREVAILING LEGAL STANDARDS AS TO THE THIRD PRONG OF N.J.S.A. 30:4C-15.1(a) AND COMMITTED REVERSIBLE ERROR BY FINDING THAT THE MINIMAL SERVICES OFFERED BY 1 We use initials and pseudonyms to protect the family's privacy. The June 5, 2017 order also terminated the parental rights of Louis' mother, C.G., but she has not appealed from the order.

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Docket No.: a4877-16
Decided: 2018-10-17
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.B'
Status: Unpublished
Summary:
PER CURIAM Defendant R.B. (mother) appeals from a June 28, 2017 judgment terminating her parental rights to her son, Nevin 1, presently three years of age. Defendant A.S. (father) is Nevin's biological father; his parental rights to Nevin were also terminated but A.S. has not appealed from this judgment.

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Docket No.: a4947-16
Decided: 2018-10-17
Caption: Y.T. v. DIVISION OF MENTAL HEALTH AND ADDICTION SERVICES
Status: Unpublished
Summary:
PER CURIAM Y.T. appeals from Greystone Park Psychiatric Hospital's (GPPH's) final administrative decision to administer psychotropic medication to her without her consent. We affirm.

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Docket No.: a5001-15
Decided: 2018-10-17
Caption: IN THE MATTER OF REQUEST FOR ADJUDICATORY HEARING ON NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION FILE NO. 1803-02-0005.1 FHA 110001
Status: Unpublished
Summary:
DeALMEIDA, J.A.D. Appellant Village Super Market, Inc. (VSM) challenges the June 6, 2016 order of the Commissioner, Department of Environmental Protection (DEP) denying its request for an adjudicatory hearing with respect to two DEP decisions concerning property owned by respondent Bernardsville Centre, LLC (BC). We affirm.

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Docket No.: a5072-16
Decided: 2018-10-17
Caption: STATE OF NEW JERSEY v. WINSTON DURANT
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from a March 11, 2013 order denying his petition for post-conviction relief (PCR). Defendant maintains his counsel rendered ineffective assistance by failing to retain a handwriting expert and failing to object to leading questions at trial.

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Docket No.: a0046-17
Decided: 2018-10-16
Caption: STATE OF NEW JERSEY v. DEQUAN ROGERS
Status: Unpublished
Summary:
PER CURIAM We granted the State leave to appeal from a July 17, 2017 order, which granted defendant Dequan Roger's motion to suppress statements he made to the police. The State also challenges the motion judge's decision to deny its request to call an investigator from the public defender's office as a rebuttal witness to impeach the credibility of a defense witness at the suppression hearing. Finding no abuse of discretion in the motion judge's determinations, we affirm.

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Docket No.: a0070-17
Decided: 2018-10-16
Caption: STATE OF NEW JERSEY v. DARRYL JOINTER, JR
Status: Unpublished
Summary:
PER CURIAM Defendant Darryl Jointer, Jr. appeals his convictions for obstructing administration of law or other governmental function, N.J.S.A. 2C:29-1, and resisting arrest. N.J.S.A. 2C:29-2(a). For the reasons that follow, we affirm the convictions.

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Docket No.: a0464-16
Decided: 2018-10-16
Caption: STATE OF NEW JERSEY v. ERICK L. McMILLAN
Status: Unpublished
Summary:
PER CURIAM Defendant Erick L. McMillan appeals from a June 20, 2016 order denying his motion for a new trial. We affirm.

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Docket No.: a0980-17
Decided: 2018-10-16
Caption: JEFFREY E. SCHOLES v. STEPHEN M. HAUSMANN
Status: Unpublished
Summary:
PER CURIAM Plaintiff appeals from an order granting summary judgment to defendant Stephen M. Hausmann ("defendant") and dismissing the complaint based on the court's finding that plaintiff was uninsured within the meaning of N.J.S.A. 39:A- 4.5(a)1, and thereby barred from recovering damages for economic and non- economic losses. We affirm.

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Docket No.: a1881-17
Decided: 2018-10-16
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.F.
Status: Unpublished
Summary:
PER CURIAM Defendant K.F. (Kerri) appeals from a November 28, 2017 judgment of guardianship terminating her parental rights to her son, KA.F., (Ken).1 We affirm substantially for the reasons set forth in Judge Samuel J.

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Docket No.: a2022-16
Decided: 2018-10-16
Caption: J.L. v. BOARD OF EDUCATION OF THE BRIDGEWATER-RARITAN REGIONAL SCHOOL DISTRICT, SOMERSET COUNTY
Status: Unpublished
Summary:
PER CURIAM Petitioner J.L., on behalf of his minor daughter A.L. (Anna L.), 1 appeals from a December 9, 2016 decision of the Acting Commissioner of Education (Commissioner), which modified the Initial Decision of the Administrative Law Judge (ALJ), and directed respondent Board of Education of the Bridgewater- Raritan Regional School District (Board) to conduct a hearing to determine whether Anna L. committed an act of harassment, intimidation, or bullying (HIB) in violation of the Anti-Bullying Bill of Rights Act (Act), N.J.S.A. 18A:37-13.1 to -32.

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Docket No.: a2226-16
Decided: 2018-10-16
Caption: RAFAEL T. FERNANDEZ v. REINE DUARTE
Status: Unpublished
Summary:
PER CURIAM Plaintiff Rafael T. Fernandez appeals from a November 14, 2016 final judgment of the Chancery Division, General Equity Part, entered in favor of defendants Reine Duarte, Silvia E. Fernandez (Silvia),1 Trinologic, LLC (Trinologic), and Solviano Limited Liability Company (Solviano). We affirm.

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Docket No.: a2860-16
Decided: 2018-10-16
Caption: STATE OF NEW JERSEY v. ROBERT T. TODD
Status: Unpublished
Summary:
PER CURIAM After the State rested its case at trial, defendant Robert T. Todd pled guilty to the single count of a Burlington County indictment charging him with burglary, N.J.S.A. 2C:18-2. The State agreed to dismiss two other open charges against defendant. The trial judge, Philip E. Haines, indicated he would sentence defendant, who was eligible for an extended term, to a five -year term of imprisonment with an eighteen-month period of parole ineligibility, and left open the possibility that defendant could move for a change of sentence pursuant to Rule 3:21-10(b)(1) after completing the period of parole ineligibility. 1 Judge Haines imposed sentence in

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Docket No.: a3236-16
Decided: 2018-10-16
Caption: IN THE MATTER OF THE CIVIL COMMITMENT OF N.W SVP-279-02
Status: Unpublished
Summary:
PER CURIAM N.W., born March 1982, appeals from the February 23, 2017 Law Division order continuing his civil commitment to the Special Treatment Unit (STU), the secure facility designated for the custody, care, and treatment of sexually violent predators, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

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Docket No.: a3642-16
Decided: 2018-10-16
Caption: DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS v. JANET SPINELLI
Status: Unpublished
Summary:
PER CURIAM In this foreclosure matter, defendant Louis Spinelli appeals from October 11 and November 18, 2016 orders, which granted plaintiff summary judgment, dismissed defendants' answer, and denied defendant's cross-motion to dismiss the complaint. We affirm.

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Docket No.: a4441-16
Decided: 2018-10-16
Caption: ROBERTA GREENING v. BARRY E. LEVINE, ESQ
Status: Unpublished
Summary:
PER CURIAM In this legal malpractice matter, plaintiff appeals from an order granting summary judgment to defendant on the basis that there was no attorney-client relationship or duty owed. We reverse and remand.

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Docket No.: a5121-15
Decided: 2018-10-16
Caption: PNC BANK, NATIONAL ASSOCIATION v. YOEL OSHRI,
Status: Unpublished
Summary:
PER CURIAM Defendant/third-party plaintiff Yoel Oshri appeals from a series of orders and final judgment in this residential mortgage foreclosure action. Specifically, he appeals orders: granting summary judgment to plaintiff PNC Bank, National Association (PNC); striking defendant's answer and affirmative defenses; entering default; returning the case to the Office of Foreclosure to proceed as an uncontested matter; dismissing defendant's counterclaim and third-party complaint; dismissing defendant's order to show cause with prejudice; denying reconsideration; and the final judgment entered against him.

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Docket No.: a5173-15
Decided: 2018-10-16
Caption: DEPARTMENT OF COMMUNITY AFFAIRS, SANDY RECOVERY DIVISION v. WILLIAM NOE -
Status: Unpublished
Summary:
PER CURIAM William Noe appeals the June 13, 2016 final agency decision of the Department of Community Affairs ("DCA") rescinding the agency's award of a Superstorm Sandy grant to him, and directing him to refund the $110,000 grant that he improperly received. We affirm.

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Docket No.: a5299-16
Decided: 2018-10-16
Caption: U.S. BANK NATIONAL ASSOCIATION, v. RYUNG HEE CHO
Status: Unpublished
Summary:
PER CURIAM Defendant Ryung Hee Cho appeals a final judgment of foreclosure as well as earlier interlocutory orders. One of the earlier orders deemed defendant's answer and counterclaim noncontesting, and the other dismissed defendant's objections to the application for final judgment.

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Docket No.: a0272-17
Decided: 2018-10-15
Caption: FEDERAL NATIONAL MORTGAGE ASSOCIATION v. JUDY LOWY
Status: Unpublished
Summary:
PER CURIAM In this mortgage foreclosure action, plaintiff Federal National Mortgage Association obtained a default final judgment of foreclosure (judgment) against defendant Judy Lowy. After the subject property was sold at sheriff’s sale, defendant moved pursuant to Rule 4:50-1(d) and (f) to set aside the sheriff’s sale, vacate the judgment, and dismiss the amended complaint on the ground of defective service of process. On August 4, 2017, the trial court entered an order denying defendant’s motion, from which she now appeals. We affirm.

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Docket No.: a0368-16
Decided: 2018-10-15
Caption: STATE OF NEW JERSEY v. CHARLES J. WELCH
Status: Unpublished
Summary:
PER CURIAM Defendant Charles Welch appeals from the June 24, 2016 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

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Docket No.: a0500-17
Decided: 2018-10-15
Caption: DEPARTMENT OF CHILDREN AND FAMILIES v. B.S.
Status: Unpublished
Summary:
PER CURIAM B.S. appeals from a final agency decision of the Division of Child Protection and Permanency (Division), Department of Children and Families (DCF), denying his and respondent P.H.'s application to become resource family parents.1 We affirm.

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Docket No.: a0609-17
Decided: 2018-10-15
Caption: MARIA A. ROTH v. STANLEY ROTH
Status: Unpublished
Summary:
PER CURIAM Plaintiff Maria Roth appeals from the Family Part's August 21, 2017 order denying her motion for reconsideration of the trial judge's equitable distribution determinations in the June 8, 2017 Final Judgment of Divorce (FJOD) concerning an eyeglass store the couple operated during their marriage. We affirm.

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Docket No.: a0628-17
Decided: 2018-10-15
Caption: ROBERT J. TRIFFIN v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY,
Status: Unpublished
Summary:
PER CURIAM Plaintiff appeals from the trial court order denying costs and post- judgment interest. We affirm substantially for the reasons set forth in the oral opinion rendered by Judge Deborah M.

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Docket No.: a0767-17
Decided: 2018-10-15
Caption: ALICIA GARCIA v. BRISTLECONE LENDING, LLC
Status: Unpublished
Summary:
PER CURIAM Plaintiff Alicia Garcia appeals from a September 15, 2017 order dismissing with prejudice her complaint asserting Consumer Fraud Act (CFA), Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), and veil piercing claims against defendant Dusty Wunderlich for failure to state a claim. 1 We reverse and remand to enable Garcia to take limited discovery on the issue of personal jurisdiction.

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Docket No.: a0927-17
Decided: 2018-10-15
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. G.A.
Status: Unpublished
Summary:
PER CURIAM This matter arises from a series of incidents in which the defendant father, E.M., abused his children by engaging in excessive corporal punishment. 1 In the most recent incident that was the focus of the court's fact-finding, the father beat his son, EZ.M. ("Emory") with a brush, because Emory came home late 1 We use initials for the parties to protect their identities. R. 1:38-3(d)(12). We also use pseudonyms for some of the children for ease of the reader.

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Docket No.: a1536-17
Decided: 2018-10-15
Caption: IN THE MATTER OF THE ESTATE OF FRANCIS MARRAZZO Deceased
Status: Unpublished
Summary:
PER CURIAM When Francis Marazzo passed away in 2014, he was survived by his two sons, Brandon and Todd.1 After Brandon was appointed executor of Francis's 1 We use the parties' first names for clarity and the ease of the reader. In doing so, we mean no disrespect. Estate, Todd filed a caveat against probate of the Will. Litigation commenced and thereafter, the brothers executed a consent order resolving their issues. Todd's subsequent motion to vacate the consent order was denied. He appeals from that November 17, 2017 order. We affirm.

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Docket No.: a3662-17
Decided: 2018-10-15
Caption: STATE OF NEW JERSEY v. CARLOS M. HERNANDEZ-ESCOBAR
Status: Unpublished
Summary:
PER CURIAM On leave granted, the State appeals the trial court's March 12, 2018, order suppressing a portion of defendant's custodial statement.

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Docket No.: a4252-16
Decided: 2018-10-15
Caption: STATE OF NEW JERSEY v. JOSE D. LOPEZ-DURANGO
Status: Unpublished
Summary:
PER CURIAM Defendant priest Jose D. Lopez-Durango appeals from his conviction after trial of second-degree luring, N.J.S.A. 2C:13-6, third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), for which he was sentenced to an aggregate term of six years in prison, parole supervision for life, and all additional mandatory penalties. He was acquitted of second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(4). He argues for the first time on appeal that the court should have cautioned the jury regarding its use of fresh complaint testimony. Having determined that, in light of the defense strategy, the jury charge was not clearly capable of producing an unjust result, we affirm.

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Docket No.: a4579-14
Decided: 2018-10-15
Caption: REGINA S. BAILEY v. JOSEPH GIBBONS,
Status: Unpublished
Summary:
PER CURIAM Plaintiff, the Estate of Regina Bailey, 2appeals various rulings of the trial court in this complicated case arising out of her removal from her former marital residence and the alleged destruction of her belongings.

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Docket No.: a5662-16
Decided: 2018-10-15
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.H. and J.N IN THE MATTER OF THE GUARDIANSHIP OF A.N. and H.N., Minors
Status: Unpublished
Summary:
PER CURIAM Defendants T.H. and J.N. 1 appeal from the Family Part's August 11, 2017 judgment of guardianship terminating their parental rights to their daughter, A.N. born in September 2013, and son, H.N., born in April 2015. Defendants contend that the Division of Child Protection and Permanency (Division) failed to prove each prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Law Guardian supports the termination on appeal as it did before the trial court. Based on our review of the record and applicable law, we are satisfied that the evidence in favor of the guardianship petition overwhelmingly supports the 1 Pursuant to Rule 1:38-3(d), we use initials and fictitious names to protect the confidentiality of the participants in these proceedings. A-5662-16T3 2 decision to terminate defendants' parental rights. Accordingly, we affirm substantially for the reasons set forth in Judge Jeffrey J.

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Docket No.: a0350-17
Decided: 2018-10-12
Caption: BANK OF AMERICA, N.A. v. MICHAEL BAYTOFF
Status: Unpublished
Summary:
PER CURIAM In this residential foreclosure action, defendant Michael Baytoff appeals from the September 5, 2017 order denying his motion to cancel the impending sheriff's sale, vacate the February 5, 2016 amended final judgment and September 16, 2009 final judgment, and dismiss the 2008 foreclosure complaint. Because defendant's argument lacks merit, we affirm.

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Docket No.: a2252-16
Decided: 2018-10-12
Caption: IN THE MATTER OF ZANE BATTEN DEPARTMENT OF ENVIRONMENTAL PROTECTON, WINSLOW TOWNSHIP
Status: Unpublished
Summary:
PER CURIAM Appellant Zane Batten is a Conservation Officer (CO) employed by the New Jersey Department of Environmental Protection (DEP), Division of Fish and Wildlife (Division), Bureau of Law Enforcement (Bureau). He appeals from the December 22, 2016 final decision of the Civil Service Commission (Commission), which adopted the initial decision of an administrative law judge (ALJ), finding him culpable of conduct unbecoming a public employee and other sufficient cause and imposing a seventy-day suspension without pay. We affirm.

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Docket No.: a3387-15
Decided: 2018-10-12
Caption: JOSEPH MILUTIN v. STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: Unpublished
Summary:
SIMONELLI, P.J.A.D. Plaintiff Robert D. Healey, a Caucasian Corrections Officer, sued defendant State of New Jersey, Department of Corrections (DOC) for discrimination, harassment, and retaliation in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49. A jury rendered a verdict in favor of, and awarded damages to, plaintiff and his co-plaintiff, Joseph Milutin.1 The DOC appeals from the March 3, 2016 final judgment and orders denying various motions. Plaintiff cross-appeals from the May 17, 2016 order denying his request for additional attorney's fees, costs, and pre-judgment interest. We reverse and remand for a new trial.

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Docket No.: a3558-16
Decided: 2018-10-12
Caption: JOSEPH MILUTIN v. STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: Unpublished
Summary:
PER CURIAM Defendant Carroll T. Quinn appeals from the Law Division's March 22, 2017 order finding him guilty on trial de novo of refusal to submit to a chemical test, N.J.S.A. 39:4-50.4a (refusal statute), and failure to maintain a lane, N.J.S.A. 39:4-82. For the reasons that follow, we affirm in part and vacate and remand in part.

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Docket No.: a3808-16
Decided: 2018-10-12
Caption: STATE OF NEW JERSEY v. QUAM M. WILSON,
Status: Unpublished
Summary:
PER CURIAM Defendant Quam Wilson appeals from a December 21, 2016 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

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Docket No.: a3837-16
Decided: 2018-10-12
Caption: SCOTTY PINE, INC v. DIRECTOR, DIVISION OF TAXATION
Status: Unpublished
Summary:
PER CURIAM Plaintiff Scotty Pine, Inc. appeals from a March 30, 2017 Tax Court order denying its motion for reconsideration of a prior order 1 dismissing its complaint, which protested certain taxes and fees. We affirm.

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Docket No.: a4040-16
Decided: 2018-10-12
Caption: ANDREW H. KASTEL, JR v. BOARD OF REVIEW and COLLATERAL RECOVERY, INC
Status: Unpublished
Summary:
PER CURIAM Andrew H. Kastel, Jr. appeals from an April 3, 2017 final decision of the Board of Review (Board), which found he was disqualified from receiving unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a), because he left his job voluntarily without good cause attributable to the work. We affirm.

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Docket No.: a4694-16
Decided: 2018-10-12
Caption: STATE OF NEW JERSEY v. SHAWN LOYAL,
Status: Unpublished
Summary:
PER CURIAM Defendant Shawn Loyal 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.

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Docket No.: a5390-16
Decided: 2018-10-12
Caption: K.D.E v. J.E
Status: Unpublished
Summary:
PER CURIAM In this post-judgment matrimonial matter, defendant J.E. appeals from the Family Part's June 16, 2017 order which, among things: (1) granted plaintiff K.D.E.'s motion to be "reimbursed the sum of $136,254.61 from [d]efendant's share of [the] proceeds of the sale of the former marital home for the principal reduction of the mortgage" (paragraph ten of the order); (2) required defendant to pay 15% of the parties' "out-of-pocket costs incurred" for the college expenses of their youngest child (paragraphs eleven and twelve of the order); and (3) directed defendant to reimburse plaintiff for half of the money the parties paid to a mediator and a guardian ad litem (GAL) retained by them during their divorce proceedings (paragraphs four and five of the order). We are constrained to reverse and remand these portions of the June 16, 2017 order because the trial judge did not conduct a plenary hearing to resolve the parties' sharply conflicting factual contentions on these matters, and failed to make adequate findings of fact and conclusions of law in connection with these rulings.

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Docket No.: a5404-16
Decided: 2018-10-12
Caption: S.B.,1 v. K.C
Status: Unpublished
Summary:
PER CURIAM In this unopposed domestic violence matter, plaintiff S.B. appeals from a June 14, 2017 Family Part order dismissing her amended temporary restraining order (ATRO) and denying her application for a final restraining order (FRO) against defendant K.C., pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Because we find the trial court misapplied the second prong of the two-part test enunciated in Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006), we reverse and remand to the trial court for entry of an FRO.

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Docket No.: a0973-17
Decided: 2018-10-11
Caption: WATERSIDE PLAZA APTS., LLC v. EDWARD BRAND and MADELYN OQUENDO -
Status: Unpublished
Summary:
PER CURIAM In this unopposed appeal, a residential landlord seeks reversal of the trial court's denial of its claim for $1150 in counsel fees and court costs from tenants who were delinquent with their rent payments. Because the landlord's right to counsel fees in these circumstances as a component of the overdue "rent" was clearly expressed in the lease, and the amount sought is reasonable, the governing law supports a fee award. Accordingly, we reverse the trial court's denial of fees. The facts pertinent to this appeal are relatively straightforward. Plaintiff Waterside Plaza Apartments, LLC ("the landlord") is the owner of Waterside Village, an apartment complex in Little Ferry. In May 2010, the landlord entered into a written lease with defendants Edward Brand and Madelyn Oquendo ("the tenants"). The lease was renewed annually. As of July 2017, the monthly rent was $1,532.42. The tenants have been repetitively late with their rent payments. The rent ledger shows the tenants have been subject to late fees, bounced check charges, and other costs nearly every month from January 2015 to the time of the present case. This is the eighth time the tenants have been in litigation with the landlord since 2015. A-0973-17T2 2 In August 2017, the landlord filed a summary dispossess complaint in the Special Civil Part, noting defendants had not paid the base rent due for July and August 2017. In addition to the overdue rent, the landlord also sought a $50 late fee for each of these two months, plus $150 in counsel fees, $58 in court costs, and a $20 increase in the security deposit. The next monthly rent was due on September 1, 2017. The complaint notified the tenants they needed to pay a grand total of $3,391.50 if the case was scheduled for trial before September 1, or $4,923.92 if the trial date was after September 1. On August 31, 2017, the landlord's counsel and defendant Brand appeared in the Special Civil Part on the scheduled trial date. Brand represented to the judge he had already paid the July rent. He also was willing to tender the August rent and the late fees prescribed by the lease, but was unwilling to pay the $150 in counsel fees sought by the landlord. The landlord's counsel fee request is based on the following provision in paragraph 21 of the lease: Landlord shall be entitled to damages from Tenant for any breach of the terms of this Lease. Rent and additional rent for the unexpired lease is due and payable upon termination. Damages shall include reasonable attorney's fees and costs incurred by the Landlord in filing a lawsuit against Tenant. When Landlord has sued Tenant for nonpayment of rent, in no event shall the attorney's fees be less than $150.00. A-0973-17T2 3 These charges shall be collectible as additional rent. ALL PAYMENTS AFTER FILING OF A LAWSUIT MUST BE MADE BY CERTIFIED CHECK OR MONEY ORDER. The landlord contends this provision is unambiguous and should be enforced , despite the tenants' tender of the overdue base rent and late charges. The trial court dismissed the summary dispossess case pursuant to N.J.S.A. 2A:18-55, which allows a residential tenant to be protected from eviction if he or she pays the rent arrears due before the entry of final judgment. The judge initially denied the landlord's counsel fee request on procedural grounds, observing that such a fee claim was inappropriate to adjudicate in a summary dispossess action and instead had to be pursued by the landlord in a separate lawsuit in the Small Claims Division of the Special Civil Part. The landlord moved for reconsideration of the denial of the fee claim, submitting to the trial court authority for the recovery of such fees in a summary dispossess action. The trial court again rejected the fee claim. In a written rider in support of its decision, the court reiterated its procedural finding that the landlord could not recover counsel fees in a summary dispossess case and had to file a separate case to obtain the fees. In addition, the court substantively concluded that the fee request is contrary to N.J.S.A. 2A:18-55. The court reasoned that, since a tenant in default in rent can pay the arrears before the A-0973-17T2 4 entry of final judgment, then "[a]fter this occurs, all the proceedings are stopped, and the case is dismissed." Because the base rent arrears were tendered in this case, before the entry of final judgment, the court found the landlord's fee claim invalid. On appeal, the landlord argues the trial court's procedural and substantive rulings are incorrect. Its brief on appeal provides contrary legal authority not discussed by the trial court. Those citations, as well as other authority, compel reversal of the trial court's decision. A key objective of the summary dispossess statute is to provide landlords with a "swift and simple method of obtaining possession" of the premises. Benjoray, Inc. v. Academy House Child Dev. Ctr., 437 N.J. Super. 481, 486 (App. Div. 2014); see also Hous. Auth. of the City of Newark v. West, 69 N.J. 293, 300 (1976). The summary procedure allows landlords to avoid delays that often occur in common law ejectment actions. Hodges v. Sasil Corp., 189 N.J. 210, 221 (2007). Thus, possession of the premises generally is the only available remedy in a summary dispossess action; money damages are not recoverable. Ibid. Despite the narrow scope of summary dispossess cases, our courts have permitted landlords to recover counsel fees and court costs in such proceedings, A-0973-17T2 5 under certain conditions. The Supreme Court has held that reasonable counsel fees and damages may be recovered as rent in a summary dispossess proceeding, but only if they are expressly provided by the written lease. Cmty. Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 234 (1998). In Community Realty, the lease specified that "monies due the landlord for damages, reasonable attorney fees, and costs connected with the damage claims 'become charges due in addition to rent.'" Id. at 234-35. The Court interpreted this term of the lease as evidence the parties contemplated counsel fees would be considered additional "rent," recoverable by the landlord in a summary dispossess proceeding. Id. at 235. Our court likewise has recognized this principle. In University Court v. Mahasin, 166 N.J. Super. 551, 553 (App. Div. 1979), the tenant failed to pay rent for two months. When she tendered at trial the two months of rent owed, the landlord claimed that she was also required to pay an attorney's fee in order to cure her default. Ibid. We held in Mahasin that, when expressly provided by a written lease, a reasonable attorney's fee incurred by the landlord in bringing a summary dispossess action for nonpayment of rent may "be contracted to be considered additional rent, for the purposes of the summary dispossess act." Id. at 554 (quoting Trenton Hous. Auth. v. Green, 118 N.J. Super. 544, 545 (App. Div. 1972)). See also Mury v. Tublitz, 151 N.J. Super. 39 (App. Div. 1977) A-0973-17T2 6 (enforcing a lease provision requiring a tenant to pay, as additional rent, reasonable attorney's fees and other expenses incurred in a nonpayment suit or dispossess proceeding). The statutory definition of "rent" is "the amount currently payable by the tenant to the landlord pursuant to lease or other agreement . . . [.]" N.J.S.A. 2A:18-61.16a. In the absence of contravening public policy, the parties to a lease are free to define "rent" as they choose. Fargo Realty, Inc. v. Harris, 173 N.J. Super. 262, 266 (App. Div. 1980). The function of a court is to enforce the lease as it is written. We cannot make a different or better contract than the parties entered into themselves. See also Cypress Point Condo Ass'n, Inc. v. Adria Towers, L.L.C., 226 N.J. 403, 415 (2016); 22 Raymond I. Korona, New Jersey Practice Series, Landlord and Tenant Law, § 10.1. (5th ed.). The critical question, therefore, is whether the parties' lease has made sufficiently clear that "rent" is defined to include not only overdue monthly lease payments, but also counsel fees and other associated costs incurred by a landlord. See R. 6:3-4(c) (noting that "[t]he amount of rent owed for purposes of the dispossess action can include only the amount that the tenant is required to pay by federal, state or local law and the lease executed by the parties") (emphasis added). If the lease clearly includes counsel fees in the definition of A-0973-17T2 7 rent, then, as the case law we have cited instructs, the court may award such reasonable fees to the landlord. On the other hand, where the lease requires the tenant to pay legal fees and other costs but does not characterize those expenses as "rent" or as "additional rent," the landlord must seek a money judgment in a separate breach of contract suit. See Mahasin, 166 N.J. Super. at 555; Fargo Realty, 173 N.J. Super. at 267; 23A Korona, New Jersey Practice Series, Landlord and Tenant Law, § 43.2. (5th ed.). The trial court erred in failing to recognize that the terms of the lease in this case plainly include counsel fees, which shall not be "less than $150.00," as a component of the rent due from the delinquent tenant. The terms of the lease, as written in this case, meet the standards for the recovery of a fee award. Hence, the arrears amount tendered by the tenants under N.J.S.A. 2A:18-55 to preserve the tenancy needed to include the unpaid counsel fee. The trial court also erred in ruling that the landlord needed to file a separate proceeding in the Small Claims Division to recover counsel fees. As the Supreme Court explicitly instructed in Community Realty, 155 N.J. at 234, the fees may be recovered in a summary dispossess proceeding, provided they are defined as a component of "rent" in the lease. A-0973-17T2 8 Lastly, we underscore that the $150.00 amount of counsel fees sought by the landlord here has not been alleged or shown to be excessive or unreasonable. That is particularly clear in light of these tenants' chronic history of non- payment and late payment, and the landlord's need to bring successive court actions to recover from them the bargained-for rent. Although the record contains no certification of the landlord's attorney's services with hourly billings, the tenants have not filed a brief on appeal arguing the $150 charge is unreasonable. We need not, and do not, address here whether a higher fee would have been reasonable and enforceable. The recovery of court costs is also justified under the terms of the lease. reversed.

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Docket No.: a1139-16
Decided: 2018-10-11
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.D.
Status: Unpublished
Summary:
PER CURIAM In these consolidated appeals, defendants appeal from a November 1, 2016 order terminating their parental rights to their children Quentin, Trevor, and John,1 who are now thirteen, eleven and nine years old. Defendant S.D. (Sharon) is the mother of eight children, none of whom are in her care. Defendant A.M. (Andrew) is the father of nine children, none of whom are in his care. The Division of Child Protection and Permanency (the Division) removed these three children from Sharon's care in April 2013 after she committed an act of domestic violence in front of two of the three boys.

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Docket No.: a1289-17
Decided: 2018-10-11
Caption: KRIZ RAMROOP v. STEVEN A. RAMROOP
Status: Unpublished
Summary:
PER CURIAM Plaintiffs Kriz Ramroop, Rawlson Ramroop, Elizabeth Mohabir, and Amanda Gossai, were passengers in a car owned and operated by defendant Steven A. Ramroop and insured by defendant Liberty Mutual Insurance Co., which was involved in an automobile accident. They appeal from the motion court's order granting defendants' motion to dismiss their complaint because it was filed the day after the expiration of the two-year statute of limitations period for personal injury claims. Since plaintiffs did not assert any viable equitable basis to toll the statute of limitations, we affirm.

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Docket No.: a2306-16
Decided: 2018-10-11
Caption: DARNAY DODSON v. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK
Status: Unpublished
Summary:
PER CURIAM Plaintiff Darnay Dodson, a teacher formerly employed by defendant State- Operated School District of the City of Newark, appeals from the January 9, 2017 Law Division order affirming the arbitration award in favor of defendant, and upholding the tenure charges filed against him.

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Docket No.: a3224-16
Decided: 2018-10-11
Caption: STATE OF NEW JERSEY v. WILLIAM WADE
Status: Unpublished
Summary:
PER CURIAM Defendant William Wade appeals from the trial court's denial of his post- conviction relief (“PCR”) petition without an evidentiary hearing. We affirm, substantially for the sound reasons expressed in Judge Joseph W.

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Docket No.: a3416-16
Decided: 2018-10-11
Caption: U.S. BANK TRUST, N.A., v. LAMONT D. THOMAS
Status: Unpublished
Summary:
PER CURIAM This residential foreclosure action returns to us following a remand directed by our previous opinion, U.S. Bank Trust, N.A. v. Lamont D. Thomas, No. A-3416-16 (App. Div. May 30, 2018), where we retained jurisdiction and ordered the trial court to make additional findings as to whether a notice of intention to foreclose (NOI) was sent by plaintiff U.S. Bank, N.A., as trustee for LSF9 Master Participation Trust, to defendant Lamont D. Thomas in accordance with the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -73. Having received and considered the trial court's August 1, 2018 opinion, we affirm the September

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Docket No.: a3449-16
Decided: 2018-10-11
Caption: STATE OF NEW JERSEY v. ARMANDO NOGUIERA
Status: Unpublished
Summary:
FUENTES, P.J.A.D. At all times relevant to this case, defendant Armando Noguiera was a Sheriff's Officer with the Essex County Sheriff's Office. On October 5, 2012, John Warnock, a fellow Essex County Sheriff's Officer, allegedly restrained and threatened to sexually assault a woman. The charges against defendant arise from his interactions with Warnock on the night they both encountered the alleged victim. The Essex County Prosecutor's Office (ECPO) charged Warnock with a number of criminal charges related to this incident. On October 9, 2012, and again on December 7, 2012, ECPO investigators questioned defendant about his interactions with Warnock and the alleged victim on the night of October 5, 2012. Warnock's trial began in September 2014. Both the State and Warnock called defendant as a witness at trial. On December 2, 2014, the jury acquitted Warnock of all of the charges against him. On January 15, 2016, a State Grand Jury indicted defendant on the charge of second degree official misconduct, N.J.S.A. 2C:30-2, third degree perjury, N.J.S.A. 2C:28-1(a), and fourth degree false swearing, N.J.S.A. 2C:28-2(a).1 To prove these charges, the State intended 1 The indictment incorrectly cites N.J.S.A. 2C:28-1 in the count that describes the fourth degree offense of false swearing. A-3449-16T3 2 to introduce into evidence the statements defendant gave to ECPO investigators in the course of the two interviews related to the case against Warnock.2 On June 8, 2016, defense counsel filed an omnibus pretrial motion seeking, inter alia, to preclude the State from using the two statements defendant provided in connection with the prosecution of the case against Warnock. Defense counsel argued that the statements are inadmissible because the ECPO investigators did not apprise defendant of his constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966) and Garrity v. N.J., 385 U.S. 493 (1967) before they questioned him concerning his interactions with Warnock. In an order dated October 6, 2016, the trial judge denied defendant's request to suppress these two statements. After reviewing court-ordered discovery material provided by the State, defendant again moved to preclude the State from using the statements defendant gave the ECPO investigators. This time, the judge granted defendant's motion. The judge found that at the time they questioned defendant, the investigators had reasonable grounds to consider defendant a "co- conspirator" in the Warnock case. In this light, the judge concluded the 2 Because defendant is an Essex County Sheriff's Officer, the State transferred venue to Hudson County. A-3449-16T3 3 investigators were required to provide defendant with "Garrity warnings" before questioning him about the allegations against Warnock. In an order dated March 3, 2017, the court suppressed the statements defendant gave to the ECPO investigators on October 9, 2012 and December 7, 2012. By leave granted, the State now appeals arguing defendant was not entitled to Garrity warnings at the time the ECPO investigators interviewed him in connection with their investigation of the allegations against Warnock. We agree and reverse. The following facts developed before the trial court will inform our legal analysis. I Defendant began his career as a full-time Sheriff's Officer with the Essex County Sheriff's Office in 2008. Defendant also worked as a part-time security officer for various businesses in the Essex County area. On the night of October 5, 2012, defendant and fellow Sheriff's Officer Richard Rickets were working as security officers at a TGI Friday's restaurant (Friday's restaurant) located in the Township of West Orange. His security shift began at 9:00 p.m. on October 5, and ended at 2:00 a.m. on October 6, 2012. The incident that led to defendant's interactions with Warnock occurred in the parking lot of the Friday's restaurant. A-3449-16T3 4 We derive the following facts from the statement a twenty-two-year-old woman provided to ECPO investigators in connection with the criminal charges she filed against Warnock. We identify her as I.R. to protect her privacy. See R. 1:38-3(c)(1). On the evening of October 5, 2012, I.R. was with a friend in a social club in the Township of West Orange, located near the Friday's restaurant where defendant was working as a security officer. I.R. admitted that she was inebriated when she "got into a fight with a guy which resulted in her getting kicked out of the club." Once outside the club, a "bouncer" escorted her to the other side of the street and off the club's property. She decided to walk to a bus stop "to begin discussing getting rides home." Although not explicitly stated, we infer I.R. discussed this with the woman who originally accompanied her to the club. At approximately 11:30 p.m., I.R. encountered defendant for the first time when she walked into the Friday's restaurant parking lot. Although he did not produce a badge or other forms of official identification, I.R. claimed defendant said he was a police officer and "offered to give her a ride home." The record is not entirely clear about the sequence of the following events. However, I.R. told the ECPO investigators that she decided to return to the Friday's restaurant A-3449-16T3 5 parking lot after she realized her friend had left the area. This time, I.R. encountered defendant and John Warnock, who identified himself as a Sheriffs Officer. According to I.R., she overheard Warnock tell defendant: "you['re] not going to take 'her' home because you will get in trouble." I.R. also alleged that defendant told her Warnock was "his boss and there was nothing he could do about it." After the passage of certain intervening events that are not relevant to the issues we address here, I.R. accepted Warnock's offer to ostensibly drive her home. I.R. alleged that during the drive, Warnock engaged in conversation with her about personal matters and asked her whether she had a boyfriend. She told him she had a one-year-old child and was not romantically involved with anyone at the time. Warnock allegedly asked I.R. her age and whether she needed money. She told Warnock she was twenty-two years old and all she wanted was to get home. At this point, I.R. alleged that Warnock told her "to take her panties down." She allegedly responded: "why are you asking me that, you're a police officer." Warnock allegedly responded: "take your panties down now or I'll kill you." I.R. told the ECPO investigators that she became very scared and started to cry while thinking about her infant son. I.R. claimed that after remaining A-3449-16T3 6 silent for "a few minutes," she jumped out of Warnock's car, started running and began frantically knocking on every door she found. No one answered. She hid behind some bushes because she was uncertain whether Warnock was following her. She ran out into the middle of the street when she saw a car "containing kids in their 20's drive by her." I.R. told the occupants of the car to call the police because "someone was trying to kill her." Beyond this point, her only recollection is "finding herself in an ambulance where she continued to cry Based on these allegations, a grand jury returned an indictment against Warnock charging him with second degree Official Misconduct, N.J.S.A. 2C:30-2, third degree Criminal Restraint, N.J.S.A. 2C:13-2, third degree Criminal Coercion, N.J.S.A. 2C:13-5, and third degree Terroristic Threats, N.J.S.A. 2C:12-3. ECPO Lieutenants Steve Roberts and Stanley Rosa interviewed defendant on two separate occasions as part of their investigation of the Warnock case. Defendant's two verbatim statements are part of the appellate record. October 9, 2012 Interview In this first interview, defendant confirmed that on October 5, 2012, he was working part time at the Friday's restaurant in West Orange, when he saw A-3449-16T3 7 Warnock come with Jodi Biondi, a Corrections Officer with the Essex County Department of Corrections. Warnock and Biondi stayed in the restaurant until it closed in the early morning hours of October 6, 2012. Defendant finished his shift at Friday's restaurant at approximately two o'clock in the morning. As he left the restaurant, two women who appeared intoxicated approached him after they left the nightclub located across the street. One of the women left the area shortly thereafter. The other one, later identified as I.R., asked defendant for a ride home. Defendant told I.R. he could not take her home and suggested that she call a taxi. According to defendant, I.R. walked away into the parking lot and attempted to enter a car occupied by three men. Concerned for her safety, defendant claimed he approached the vehicle, identified himself as a Sheriff's Officer, and told her to get out of the car and call a taxi. Defendant explained to the investigators: I didn't know if she knew the people [in the car]. It didn't seem like she knew the people. Like, she just jumped into the car. So, I wanted to make sure that she got out of the vehicle and she sat at the bus stop. I told her that she should get a cab. And eventually she walked into the parking lot. I lost visual contact with her and then I just left and went home. [(Emphasis added).] A-3449-16T3 8 According to defendant, Warnock left the area "a little before" him. When asked to estimate how much time transpired between the point when he left and Warnock's departure, defendant responded: "I couldn't honestly say." When the investigators continued to question him about his interactions with the occupants of the car that I.R. attempted to enter, defendant asked the following questions: DEFENDANT: Gentlemen, may I ask what is this about? LT. ROSA: This is an investigation we're conducting and - - DEFENDANT: I understand that, but - - LT. ROBERTS: It involves your part-time employment with your duties as a part-time employee. DEFENDANT: Okay. Should I have a PBA representative with me at this time? I mean, am I in some kind of trouble? LT. ROBERTS: Well, not right now. We're just interviewing you as a witness right now. LT. ROSA: As a witness, you're being interviewed. LT. ROBERTS: Because you clearly told us that you had contact with the intoxicated female. DEFENDANT: Did something happen to the female? A-3449-16T3 9 LT. ROBERTS: Well, we don't know. We're just talking to you right now. DEFENDANT: . . . I understand that [it is an investigation] sir. But there's a reason behind the investigation. And I'm just asking what am I being interrogated about? LT. ROSA: You're being interviewed . . . There's a difference. Defendant continued to press the investigators to disclose the underlying basis of their investigation. The record shows the investigators left the interview room to confer privately off the record. The following exchange occurred when the investigators returned to the interview room: LT. ROSA: We're going to change this up a little bit. Okay? LT. ROBERTS: We know that you had [a] confrontation with [I.R.]. We know that you agreed to take her home. DEFENDANT: Okay. LT. ROBERTS: We know that you went to the car with her and removed her from the car. DEFENDANT: Okay. A-3449-16T3 10 LT. ROBERTS: We know that you got off work about 2:05 [a.m.] and you exited the bar. You exited the bar not by yourself. LT. ROSA: You were with someone. Someone was there when you stopped this girl. Someone was there when you saw the girl in the car. Someone was with you when you told her to leave the car. Now, I think you should get in front of this and tell us who was with you. LT. ROBERTS: We want straight details. We don't want No more bullshit. LT. ROSA: Who was with you? DEFENDANT: Can I speak to my PBA rep? LT. ROSA: Do you want to speak to a PBA rep? DEFENDANT: I think that - - LT. ROSA: It's obvious you don't want to talk to us? You don't want to tell us what happened. If that's what you want - - DEFENDANT: No, no, no. LT. ROSA: - - then you can have it. Well listen to me. Either you tell us what happened or we're going to A-3449-16T3 11 change this whole thing around. Right now you're a witness. LT. ROBERTS: Right now you're a witness. LT. ROSA: We asked . . . you who you were with and who was with you at the time. And when she went away - - she went away and you went your way. Did you do something wrong? DEFENDANT: No. LT. ROSA: Okay. Then tell us what happened and stop the bullshit, bro. Straight and simple, stop this bullshit. Tell us what happened, who was with you, what you saw. That's all we want to know right now. We're telling you, get in front of this right now. Get it out . . . stop the bullshit. If you lie about something, you're going to get jammed up for lying. There's no reason for that. You did nothing wrong. All we want is the truth. Now this is your opportunity to tell us the truth. Period. You did nothing wrong, we want the truth about everything. LT. ROBERTS: From inside the bar, out. LT. ROSA: And until you went home. Everything. This is on you now. You like your job? DEFENDANT: I love my job. LT. ROSA: Tell us the truth. Just the truth. You lie, you could lose your job. Do you want to lose your job for some bullshit, bro? That you got nothing to do with? We want the truth. You can tell us. Let's start again. You worked inside? [(Emphasis added).] A-3449-16T3 12 After this exchange, defendant told the investigators a different account of the events that occurred that night. According to defendant, Warnock first entered the Friday's restaurant with a woman whom defendant did not know. When defendant left the restaurant, he saw Warnock outside with two different women, one of whom appeared to be intoxicated. The women told defendant that they were "getting a ride." The intoxicated woman was later identified as I.R. Defendant claimed he told I.R. to go with her friend. When the car came, the two women approached the vehicle together. However, I.R. "was still left behind" when the car left. I.R. walked over and entered a car that had three male occupants. Defendant and Warnock approached the car, confronted the occupants, and demanded that the intoxicated woman get out of the car. When defendant seemed reluctant to elaborate beyond this point, Lieutenant Rosa pressed him to provide details: "Explain to us. Explain to us. Come on, come on . . . ." Defendant relented and told the investigators that when the occupants of the car asked them "who we were to say that [I.R.] had to exit the vehicle[,]" he and Warnock identified themselves as law enforcement officers. Warnock approached the car first and told I.R. to get out. A-3449-16T3 13 According to defendant, I.R. walked over to where he was standing and asked him: "[Are] you going to take me home?" Defendant asked her why she did not leave earlier with her friend, but she was allegedly unable to give a clear answer. Based on I.R.'s inebriated condition, he decided it was a "bad idea" to take her home. Defendant claimed that Warnock joined him in recommending to I.R. to call a taxi to take her home. Lieutenant Rosa sensed this was a critical point in the narrative and admonished defendant: "You're doing good so far. Don't mess this . . . whole thing up, my man. Don't start throwing bullshit into this. . . . As this story continues, keep on the path of the truth." Defendant responded: "I saw her walk into the park - - she went back and forth from the bus stop and then she walked into the parking lot. That was the last I saw [of] her." When Lieutenant Rosa asked "who was in the parking lot?" Defendant stated: "Officer Warnock was heading to his vehicle to go home." Defendant claimed that he and Warnock agreed they could not take her home because I.R. was "too drunk." Defendant also stated that Warnock told him to "just go." As the following statements illustrate, the investigators did not find defendant credible in this respect. LT. ROBERTS: [Y]ou mean to tell me you got her out the car and then you all left her in the parking lot? After she was in the car that was - - you considered unsafe, but to leave her in the parking lot at three o'clock in the A-3449-16T3 14 morning where she - - where, I'm assuming, you considered she was safe because you left her? LT. ROSA: You ain't no dummy, kid. You're a veteran, right? DEFENDANT: Yes. LT. ROSA: Okay. So, you're not no dummy. This isn't your first rodeo. You're concerned, you were concerned. You had to be concerned. You knew that she was going to be in good hands, that's why you left. I don't think you would have abandoned her. I know you wouldn't have abandoned her. So, you knew she was in good hands, correct? Yes or no? You knew she was in good hands LT. ROBERTS: Based on your relationship with Detective Warnock [do] you considered [him] your superior or boss, correct? LT. ROSA: It's an easy answer. Yes or no? DEFENDANT: Yes. LT. ROBERTS: So what happened? DEFENDANT: They went in the same direction. I don't know if he was going to call her [a] cab or take her home. LT. ROSA: So, did he [Warnock] assume responsibility, bro [.] Go ahead, go home. I got this. DEFENDANT: Yes. A-3449-16T3 15 Defendant told the investigators that he called Warnock on his way home. Warnock allegedly told him that I.R. was "acting erratic and he left her behind." Defendant told the investigators that his immediate reaction to Warnock 's statement was relief. Defendant claimed he suspected I.R. "might have had some allegations toward" Warnock. According to defendant, the telephone conversation he had with Warnock lasted "four to five" minutes. The investigators asked defendant a number of questions concerning the substance of the conversation between him and Warnock. Defendant consistently failed to provide a responsive answer. Lieutenant Roberts finally said: "We . . . know that you're holding back. Defendant assured the investigators he had been truthful in all of his answers to their questions. Lieutenant Rosa stated: "Which is also a lie. You forget to tell me something and you choose not to tell me something because I didn't ask you, it's a lie. It's going to be a lie and I'm going to - - we're going to prove it, bro." Defendant stated: "All right. I think at this point I do need to see my PBA rep." This prompted the investigators to momentarily leave the interview room. When the investigators returned to the interview room, they asked defendant if he had anything else to say about this incident "before we close the statement[.] Because once we close it, we're going to find out more." The A-3449-16T3 16 investigators urged defendant to disclose everything that happened that night between Warnock and I.R, even if it related to events or comments made by Warnock and I.R that were not directly raised by the investigators. In the words of Lieutenant Rosa: "We want it all." Defendant responded: "I just gave it." December 7, 2012 Interview After Lieutenants Rosa and Roberts interrogated Warnock on December 7, 2012, they decided to interview defendant again. Lieutenant Rosa began this second interview by advising defendant "[y]ou are just a witness" in a criminal investigation. Lieutenant Roberts admonished defendant, however, that "if you don't answer our questions truthfully and it's proven that you lied to us, then you'd be subject to penalties by the sheriff's department. Criminal. Okay?" When the investigators asked defendant if he remembered the incident of October 5, 2012 involving Warnock, he responded: "Vaguely, yes." The investigators asked defendant a series of questions that revisited many of the topics covered in the first interview. In the course of this exchange, defendant clarified certain details about Warnock's interactions with I.R. that night. According to defendant, Warnock was the first to approach I.R. and identify himself as a Sheriff's Officer. Defendant was wearing his Sheriff's Officer's uniform; Warnock was in plain clothes. Defendant claimed Warnock A-3449-16T3 17 had a good-faith belief that I.R. did not know the men who offered to drive her home. Warnock thus concluded it was not wise for her to leave with these men, especially in light of her intoxicated state. Defendant and Warnock suggested to I.R. to return to the club "or call a cab." For the first time in the course of this investigation, defendant claimed that I.R. offered him money to take her home. When the investigators asked defendant if he agreed to take I.R. home, defendant responded: "I believe I might have said that, yes, I'd be able to." Again, for the first time in this investigation, defendant revealed that I.R.'s friend actually sat inside his parked car. When pressed about whether both I.R. and her friend were inside his vehicle, defendant stated: "Her friend definitely was. I don't recall if [I.R. was] or not." Defendant told the investigators that Warnock advised him against taking I.R. home, and "I took his advice." According to defendant, Warnock planned to call a taxi to take her home. Once again, when pressed to provide details, defendant told the investigators that neither of them made any effort to call a taxi. Warnock merely told defendant to go because he would "take care of it." As he drove away, defendant saw Warnock walking to his vehicle with I.R. walking six to ten feet behind him. According to defendant, this encounter between Warnock and I.R. lasted approximately one hour. As he drove home, A-3449-16T3 18 defendant said he called Warnock because he had "a bad feeling about leaving him alone in that situation." When the investigators asked him why he did not stay with Warnock until I.R. could find a way to get home safely, defendant responded: "Lapse of judgment." Defendant told the investigators that when he reached Warnock on the cellphone, Warnock told him: "I left that batty bitch there." When the investigators asked him to explain what made I.R. a "batty bitch," defendant responded: "I'm trying to think of a better word to describe it. For example, the fact that she needed a ride to Clifton, Paterson, [the State of] Ohio. She was definitely, like, very drunk, and irrational - - irrational is the word." Defendant claimed his cellphone conversation with Warnock lasted "only, like, two minutes." He also told the investigators that he had not spoken to Warnock "since then until now." However, when asked whether he called Warnock the day after the incident, defendant responded: "I could have." When pressed to give a "yes or no" answer, defendant merely repeated: "I could have." Before the interview ended, defendant admitted to Lieutenant Rosa that he had spoken to Warnock "minutes before" the second interview to let him know "I was getting called in." When Lieutenant Roberts asked defendant "why would [he] reach out" to Warnock if he did not know the reason he was being A-3449-16T3 19 summoned to appear, defendant responded: "He's a friend of mine. . . . He's a good enough friend that I would call him for advice." Interrogation 3 of John Warnock Lieutenants Rosa and Roberts interrogated Warnock on December 7, 2012, before they interviewed defendant for a second time. They advised Warnock that the subject of the interrogation concerned what occurred on the night of October 5, 2012, into the early morning hours of October 6, 2012. Warnock told the investigators that sometime after ten o'clock on the evening of October 5, 2012, he received a text message from Jodi Biondi about getting together for a drink. Biondi suggested they meet at the Friday's restaurant in West Orange. Warnock and Binodi left the Friday's restaurant at approximately 2:30 a.m. on October 6, 2012. According to Warnock, as he and defendant were talking in the Friday's parking lot, "we observed two girls coming . . . from the nightclub across the street . . . [both of whom] were drunk." The two women were also "trying to get a ride from whoever they can get a ride from." Warnock told the investigators 3 We use the word "interrogation" because by this time I.R. had identified Warnock as the man from whose car she fled in the early morning of hours of October 6, 2012, after he told her "to take her panties down." Stated differently, the ECPO considered Warnock a suspect in a crime, not a witness. Warnock was represented by counsel at the time. His attorney was present during the entire interrogation. A-3449-16T3 20 that out of concern for their safety, he asked the women: "do you want a cab?" One of the women walked away and "started talking to some guy. Yells over, I know him. He's giving me a ride home. I'll see you later and takes off." The woman who remained was later identified as I.R. Warnock corroborated defendant's account of what transpired with respect to I.R. He told the investigators about I.R.'s attempts to get in a car with three men she did not know. He claimed that when Biondi called him to confirm she was home, he told her: "I'm still here, you know, trying to get this girl home. We're still - - we're still dealing with this." We infer that by using the pronoun "we," Warnock intended to convey that Biondi was aware defendant was helping him to get I.R. safely home. Warnock told the investigators that when he saw I.R. walk over to the bus stop, he told her: "Get away from the bus stop. It's not safe for you." He then asked her if she needed a phone or money, or "whatever, you know, I'll give you the money. It's no big deal." According to Warnock, I.R. responded: "I'm not sleeping with you because you're giving me money for a cab." Warnock said he was "perplexed" by I.R.'s response. He told the investigators that he made clear to I.R. that he had not said anything about "sleeping" with her. Warnock also claimed that when defendant "looked" at him, he "waived him off." A-3449-16T3 21 Warnock believed he had done enough to help I.R., and started to walk to where his truck was parked. However, when he turned around, he noticed I.R. was following him saying: "I need a ride, I need a ride." He told the investigators that he made clear to I.R. that she was not getting in his truck. "You're not coming with me . . . I'll give you money for a cab, I'll call a ride, husband, boyfriend, whoever you need me to call, I'll call for you. But you're not coming in my car." At one point, Warnock said "another car pulled up, said something. [I.R.] walked over. I got into my truck - - I was already in my truck at this point and I left." Warnock emphasized that I.R. never was inside his truck. Of particular relevance here, Warnock told the investigators that during his conversation with I.R., he purposely called Biondi so she would hear "all the tirades and – and everything that was going on like, the way [I.R.] was acting." Warnock confirmed that defendant called him at approximately 3:15 a.m. and asked him how he "made out[.]" Warnock told the investigators: "I told him straight out, I left this girl. She was crazy. She was nuts. There's something wrong with her. . . . I offered [her] every aspect and avenue I could to help her. I said, I left her." A-3449-16T3 22 Defendant's Trial Testimony for the State On September 18, 2014, defendant testified as a witness for the State in the case against Warnock. In the course of his direct testimony, defendant largely repeated what he told the ECPO investigators during his two interviews in October and December 2012. Corrections Officer Jodi Biondi testified she interacted with I.R. outside the parking lot when she left Friday's with Warnock. Biondi specifically noticed I.R.'s "distinct Hispanic accent." Biondi testified that I.R. asked her for the telephone number of a taxi, but she was not able to provide her with one. When Biondi left Friday's, Warnock, defendant, I.R. and the other woman I.R. was with that night were still in the restaurant's parking lot. Biondi testified it took her between fifteen to twenty minutes to drive home. She called Warnock when she arrived at approximately three o'clock in the morning, "[j]ust to let him know that I was home okay." She characterized the call "as a short conversation." At 3:02 a.m., Biondi received a call from Warnock's cellphone that sounded to her like an unintentional "pocket dial."4 She said "hello" a number of times, but did not get a response. Biondi testified she "stayed on just to be I 4 Biondi testified she knew it was Warnock's cellphone because she had saved his phone number on her contact list. A-3449-16T3 23 guess curious to see if anything was happening." She heard the voice of "a female" with a "distinct accent that I heard earlier in the night." Biondi testified it was "the Hispanic accent from the parking lot." However, "[t]he only thing that [Biondi] could make out . . . was, why would you want to hurt me, why could you want to kill me. And then I heard [Warnock] say, take down your panties, and then the phone dropped[.]" During the two 2012 interviews, defendant did not mention anything about Warnock's "pocket dial" phone call to Biondi at 3:02 a.m. In his testimony as a witness for the State at Warnock's trial, defendant did not say he was with Warnock at the time of the 3:02 a.m. phone call to Biondi. Defendant's Testimony as a Defense Witness at Warnock's Trial On September 24, 2014, Warnock called defendant as a witness for the defense. On direct examination, Warnock's counsel asked defendant the following questions: Q. Now, was there a point in time when you were at the scene that [Warnock] dialed a phone number on his cell phone? A. Yes, sir. Q. Did he tell you who he was dialing? A. Yes, sir. A-3449-16T3 24 Q. Who was it? A. I don't remember the name, sir. Q. If I said Jodi Biondi, would that refresh your recollection? A. That sounds accurate, yes sir. Q. Are you positive in West Orange he was dialing in front of you? A. Yes sir. Q. So he's dialing definitely Jodi Biondi in West Orange at 3:02, right? A. Yes, sir. Q. Any doubt about in your mind? A. No, sir. Q. Why didn't you say that when you first testified before these 14 people? 5 A. I was told not to, sir. Q. Who told you not to say that? A. The prosecutor, sir. 5 The "14 people" was a reference to the jury. A-3449-16T3 25 On cross-examination, the prosecutor confronted defendant with the transcriptions of the two interviews conducted by the two ECPO investigators. Defendant confirmed that the investigators admonished him "to always tell the truth." However, defendant claimed that at the pretrial interview the prosecutor conducted before he testified as a witness for the State, he told the prosecutor: "I recall a phone call, should I mention it. You [addressing the prosecutor directly] stated, no, that is hearsay. If you're asked about it, then say it, but if not, don't mention it." Defendant also conceded he did not mention this phone call in either one of the statements he gave to the ECPO investigators in October and December 2012. The prosecutor again asked defendant to recount the details of his encounter with I.R. and his interactions with Warnock when the latter allegedly called Biondi. Defendant testified he specifically remembered seeing Warnock "[pull] out his [cell] phone . . . and [dial] a number. I asked him what are you doing, he says I'm dialing Jodi Biondi - - obviously he didn't say it that way. I think he said Jodi. And I was like, for what? He's like, just to cover our ass." Defendant's testimony in this respect specifically and directly corroborated Warnock's testimony on direct examination. A-3449-16T3 26 Telephone records of defendant's cellular phone reflect that at 2:53 a.m., on October 6, 2012, defendant's cellphone was in communication with a cell tower in the Township of Montville in Morris County. At 3:11 a.m. on October 6, 2012, cellphone records reflect that defendant's cellphone was in communication with a cell tower in Jefferson Township, also in Morris County; and at 3:21 a.m., the communication shifted to Sparta Township in Sussex County. Phone records of Warnock's cellular phone indicate that at 3:02 a.m., Warnock's cellphone was in communication with cell towers in East Orange City and the Township of Nutley; both of these municipalities are in Essex County. At 3:11 a.m. when defendant called Warnock, the cell tower data places Warnock in the Lyndhurst/Belleville area and places defendant in Jefferson Township. The data support the State's argument that defendant and Warnock could not have been together at 3:02 a.m. on October 6, 2012. The State attempted to use the report documenting the cell tower analysis during defendant's cross-examination at Warnock's trial. The judge denied the State's application. II The State argues the trial judge erred in granting defendant's second motion to suppress the two statements defendant gave the ECPO investigators. A-3449-16T3 27 In reviewing the grant or denial of a motion to suppress, this court must defer to the factual findings of the trial court "so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262 (2015) (citing State v. Gamble, 218 N.J. 412, 424 (2014); see also State v. Elders, 192 N.J. 224, 243 (2007)). This standard of review is predicated on the unique opportunity the motion judge has "to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). Our authority to disregard a motion judge's factual findings is limited to those rare cases in which the record shows the judge's findings of fact "are clearly mistaken." Id. at 162. However, we review the motion judge's legal determinations de novo. State v. Hagans, 233 N.J. 30, 38 (2018). Defendant filed two motions to suppress the two statements he gave to the ECPO investigators. The first motion to suppress was argued on June 22, 2016, and denied by the judge on September 22, 2016. After reviewing the evidence and considering the argument of counsel, the motion judge found the ECPO did not consider defendant complicit in any way in the criminal allegations I.R. made against Warnock. The judge found I.R. alleged Warnock was the only person who lured her into his car with the intent to sexually assault her, and A-3449-16T3 28 threatened her with bodily harm after she refused to submit to his sexual advances. The judge also did not find any evidence that implicated defendant in any wrongdoing at the time the investigators interviewed him in October and December 2012. The judge also addressed defendant's unanticipated alibi testimony at Warnock's trial: At the time there would have also been no reason to believe that this [d]efendant, Mr. Nogueira, would in any way have been called as an alibi witness or other type of exculpatory witness on behalf of [Warnock] because the evidence that they had at that time was that the phone records of Mr. Warnock suggested that he was in one location and the phone records of Mr. Nogueira suggested he was in a different location. And further, the first interview of Mr. Nogueira in no way discussed the phone conversation surrounding the victim or the allegations contained therein by the witness that there was a butt dial or actual phone conversation wherein [Warnock] was attempting to cover his own butt and Mr. Nogueira was present and witnessed that information. The judge thereafter granted defendant's motion to compel the State to produce copies of all correspondence, emails, notes and conversations or reports related to any assistant prosecutor, including the prosecutor who tried the case against Warnock. In short, the judge ordered the State to deliver to defense counsel "anything that had to do with Mr. Nogueira's interview," notes that were A-3449-16T3 29 made after his testimony at the Warnock trial, and notes or emails exchanged "with regards to how [the State] intended to proceed" based on defendant's testimony at Warnock's trial. On January 27, 2017, defendant filed a motion to dismiss the indictment and suppress the statements he made to the ECPO investigators. The judge heard argument on the motion on March 3, 2017. This time, the judge focused on the tone of the investigators' questions and interactions with defendant during the interviews and found that when Mr. Nogueira was brought into the station, at that time, he may not have been the main target of the investigation, but it was clear that they had questions . . . when they brought him in, whether he was going to be part of the target of the investigation. Anyone could have seen that it was a possibility that depending on what Mr. Nogueira said, at that particular time and moment, that he, in fact, could have been a co- conspirator. Based on this reinterpretation of defendant's statements, the motion judge concluded that "it is clear to the [c]ourt, or at least the impression of this [c]ourt that Garrity warnings should have attached because, as indicated by the prosecutor, they had no idea what Mr. Nogueira was going to say during the course of that interview, whether he was going to inculpate himself, or anything of that nature." A-3449-16T3 30 We start our analysis with an examination of the relevant legal principles. In Garrity v. New Jersey, the United States Supreme Court held that "the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and . . . it extends to all, whether they are policemen or other members of our body politic." Garrity v. New Jersey, 385 U.S. 493, 500 (1967). In State v. Lacaillade, 266 N.J. Super. 522 (App. Div. 1993), this court reviewed the application of the Supreme Court's holding in Garrity in the context of an investigation of a police officer who was accused of misrepresenting the circumstances that led to the discharge of his service weapon. Id. at 525-26. Writing for the panel, Judge Brody explained that pursuant to Garrity: [l]aw enforcement officers may not attach a penalty to the exercise of that right by a public employee through the threat of dismissal. Thus where a police officer's answers to police questioning are coerced by the threat of removal from office, the answers are not admissible unless the officer waives his or her constitutional right to remain silent. [Id. at 528.] After reviewing the record of the internal affairs investigation, Judge Brody explained that the invocation of the protections available under Garrity A-3449-16T3 31 depend upon whether the record shows evidence of what "the consequence to [the] defendant [was] of disobeying the order to answer by exercising his constitutional right to remain silent." Id. at 529. In Lacaillade, we held that "[e]ven if there were evidence that [the police officer] subjectively believed that he would be removed if he refused to answer, there is no evidence that such a belief would have been reasonable." Ibid. Stated differently, Garrity prevents internal affairs investigators from coercing police officers into giving incriminating statements by threatening them with the termination of employment. However, Garrity does not immunize a police officer from the consequences of committing a subsequent crime. State v. Falco, 60 N.J. 570, 585 (1972). In Falco, the defendant, a Newark Police Detective, was convicted on two counts of official misconduct in office. Id. at 573. The defendant failed to file a report involving a barroom brawl at a local tavern and later misrepresented he was in the tavern at the time of the brawl. Id. at 574. On direct appeal, this court reversed the defendant's conviction based on Garrity, holding that if the defendant filed the false report "because he feared he would lose his job if he refused to do so, then the report was not admissible in evidence. . . ." Id. at 574-75. A-3449-16T3 32 Our Supreme Court reversed this court's decision. Writing for the Court in Falco, Chief Justice Weintraub explained: Garrity involved the interrogation of a policeman with respect to prior misconduct. The case did not involve a prosecution for the failure to perform an assigned duty. It would be remarkable if a public official who accepted a bribe, let us say, in connection with the issuance of a license or the making of a tax assessment could omit to record the issuance of the license or the assessment on the plea that, to do so, would link him with that crime. A public official cannot urge his misfeasance or malfeasance in office as a defense to a charge of nonfeasance in office. Surely the Fifth Amendment does not spare an officeholder that dilemma. Nor is there any basis in Garrity for the defendant's other proposition, that the Fifth Amendment afforded him the privilege affirmatively to commit a criminal act.

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Docket No.: a3639-16
Decided: 2018-10-11
Caption: CAPITAL ONE BANK , N.A v. EDWIN P. GANT
Status: Unpublished
Summary:
DeALMEIDA, J.A.D. Defendant Edwin P. Gant appeals from a March 6, 2017 order of the Special Civil Part denying his motion to vacate an order granting summary judgment in favor of plaintiff Capital One Bank (U.S.A.), N.A. (Capital One) in its collection action for an unpaid credit card debt. We affirm.

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Docket No.: a4126-16
Decided: 2018-10-11
Caption: TAMMY PRITCHARD v. BOARD OF REVIEW TOWER LODGE CARE CENTER LLC GATEWAY CARE CENTER LLC,
Status: Unpublished
Summary:
PER CURIAM Tammy Pritchard appeals from the final decision of the Board of Review (Board) finding her ineligible for unemployment benefits pursuant to N.J.S.A. 43:21-5(a). The Board adopted the February 27, 2017 decision of the Appeal Tribunal that found Pritchard was disqualified from benefits because she voluntarily left her job without good cause and did not start a new job within seven days of leaving her prior employment. We affirm.

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Docket No.: a5135-16
Decided: 2018-10-11
Caption: ALAINE M. KRAJICEK v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and CATAMARAN MEDIA COMPANY, LLC
Status: Unpublished
Summary:
PER CURIAM Claimant Alaine M. Krajicek appeals from a June 9, 2017 final decision of the Board of Review, affirming a decision of the Appeal Tribunal finding her disqualified for benefits, because she was fired for simple misconduct connected with the work.

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Docket No.: a5254-16
Decided: 2018-10-11
Caption: DION BATTLE v. NEW JERSEY STATE PAROLE BOARD
Status: Unpublished
Summary:
PER CURIAM Appellant Dion Battle appeals from a May 31, 2017 final agency decision of the New Jersey State Parole Board (Board). Battle alleges the Board failed to consider all relevant evidence when it denied his parole and imposed a sixteen-month future eligibility term (FET). We disagree and affirm.

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Docket No.: a0852-17
Decided: 2018-10-10
Caption: IN RE THE ESTATE OF MARIE O'SHEA
Status: Unpublished
Summary:
PER CURIAM Patricia Commins appeals from the trial court's September 11, 2017 order denying reconsideration of its June 16 and 28, 2017 orders approving the accounting of the estate of her mother, Marie O'Shea. We affirm in part, reverse in part, and remand for further proceedings.

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Docket No.: a0883-16
Decided: 2018-10-10
Caption: FRANCES J. RUSSO v. IVAN A. FRIEDRICH, M.D.
Status: Unpublished
Summary:
PER CURIAM Plaintiff Frances J. Russo, the Executor of the Estate of Rosemary Pelle, filed a medical malpractice complaint against defendant Ivan M. Freidrich, M.D., and others. Only Freidrich participates in this appeal. We reverse the jury's verdict, and remand for a new trial.

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Docket No.: a1075-17
Decided: 2018-10-10
Caption: DEIRDRE R. SCOTT v. MALANEY HILL
Status: Unpublished
Summary:
PER CURIAM Defendant Malaney Hill appeals from that portion of a September 21, 2017 Family Part order denying his motion for a credit against his child support arrearages for claimed payments made toward his child support obligation. Because we are convinced the court erred by determining N.J.S.A. 2A:17-56.23a barred its consideration of defendant's claim for a credit against certain child support arrearages for payments he caused to be made to his child from his social security retirement benefits, we vacate the court's order denying defendant's credit request and remand for further proceedings on that issue, and affirm the remaining portions of the order.

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Docket No.: a0156-16
Decided: 2018-10-09
Caption: STATE OF NEW JERSEY v. LOUIS LUIBIL
Status: Unpublished
Summary:
PER CURIAM Convicted by a jury in 2003 of first-degree carjacking, N.J.S.A. 2C:15- 2(a)(1), and sentenced by the trial judge to an extended prison term of thirty- four years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, defendant, Louis Luibil, appeals an order denying his second petition for post-conviction relief (PCR). We affirm.

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Docket No.: a0505-17
Decided: 2018-10-09
Caption: STATE OF NEW JERSEY v. EDGAR TORRES
Status: Unpublished
Summary:
PER CURIAM Defendant Edgar Torres appeals from the August 29, 2017 denial of his petition for post-conviction relief (PCR) without a plenary hearing. A jury convicted defendant of three counts of first-degree robbery, N.J.S.A. 2C:15-1, and three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). He was sentenced to an aggregate forty-year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant's convictions were affirmed by this court in an unpublished opinion.

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Docket No.: a1863-16
Decided: 2018-10-09
Caption: STATE OF NEW JERSEY v. AHMAD TAYLOR
Status: Unpublished
Summary:
PER CURIAM Defendant Ahmad Taylor appeals from an order entered by the Law Division on November 17, 2016, which denied his petition for post-conviction relief (PCR). We affirm.

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