Recent Decisions of the New Jersey Appellate Courts
from 2021-01-14
to 2021-01-28
Docket No.: a-72-73-19
Decided: 2021-01-27
Caption: New Jersey Transit Corporation v. Certain Underwriters at Lloyd's London .)
Summary:
PER CURIAM
This appeal involves an insurance coverage dispute arising out of water damage
caused by Superstorm Sandy to properties owned by plaintiff New Jersey Transit
Corporation (NJ Transit).
Docket No.: a-39-19
Decided: 2021-01-25
Caption: State v. Hakum Brown
Summary:
LaVECCHIA, J., writing for the Court. These consolidated appeals present a common legal issue: whether state or federal constitutional ex post facto prohibitions permit defendants to be charged with and convicted of the enhanced third-degree offense of failure to comply with sex offender registration requirements when each defendant's registration requirement arose from a conviction that occurred before the penalty for noncompliance was raised a degree.
Docket No.: a-37-19
Decided: 2021-01-21
Caption: State v. Amrit Singh
Summary:
FERNANDEZ-VINA, J., writing for the Court.
The Court considers whether a detective's testimony at the trial of defendant
Amrit Singh requires reversal of defendant's convictions. Specifically, the Court
considers whether it was plain error for the trial court to allow the detective to make two
references to “the defendant” in narrating the surveillance footage of a robbery for the
jury and whether the detective's testimony concerning defendant's sneakers violated
N.J.R.E. 701, when the sneakers and the video were both admitted into evidence.
Docket No.: a-46-19
Decided: 2021-01-19
Caption: State v. Damon Williams
Summary:
SOLOMON, J., writing for the Court. In this appeal, the Court considers whether the prosecutor's comments and use of a particular PowerPoint slide in her closing at the trial of defendant Damon Williams amounted to prejudicial error.
Docket No.: a1349-19
Decided: 2021-01-27
Caption: TROY HAVILAND v.
LOURDES MEDICAL CENTER OF
BURLINGTON COUNTY, INC.
Status: Published
Summary:
ROSE, J.A.D. This appeal presents a discrete yet novel issue, requiring us to determine whether an affidavit of merit (AOM) is mandated under the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-26 to -29, when a plaintiff's sole claim against a health care facility, which is defined as a licensed person under the AMS, is vicarious based on the alleged medical negligence of an employee, who is not a licensed person within the meaning of the AMS and as to who m no AOM is required. For the reasons that follow, we hold an AOM is not required in those specific circumstances. We therefore reverse the order under review, and remand for reinstatement of the complaint.
Docket No.: a4580-18
Decided: 2021-01-26
Caption: KIRK C. NELSON v. ELIZABETH BOARD OF
EDUCATION
Status: Published
Summary:
NATALI, J.A.D. After a non-jury trial, the Law Division entered final judgment in the amount of $1260,026.88 in favor of plaintiff Kirk C. Nelson (Nelson) representing his net lost wages caused by defendant Elizabeth Board of Education's (Board) breach of the parties' employment agreement. The trial court rejected the Board's argument that the Rules of Professional Conduct (RPC) permitted it to fire Nelson, its former in-house counsel, without consequence in light of the agreement's clear and unambiguous provision that he was dischargeable only for cause. Nelson cross-appeals contending that the court incorrectly: 1) failed to award damages for the value of his medical and dental benefits, 2) mitigated the damages award, and 3) denied his request for pre-judgment interest. We affirm in part and reverse in part.
Docket No.: a3586-19
Decided: 2021-01-25
Caption: STATE OF NEW JERSEY v.
ABNER RODRIGUEZ
Status: Published
Summary:
SUSSWEIN, J.A.D. By leave granted, the State appeals from the June 22, 2020 Law Division order granting defendant's motion to overrule the prosecutor's rejection of his request for a Graves Act 1 waiver pursuant to N.J.S.A. 2C:43-6.2. That statute "embodies the so called 'escape valve' to the mandatory sentence requirements otherwise embodied in the Graves Act." State v. Alvarez, 246 N.J. Super. 137, 139 (App. Div. 1991). We conclude that defendant failed to establish that the prosecutor's rejection of his request for a Graves Act waiver constituted a patent and gross abuse of discretion. We therefore are constrained to vacate the Law Division order granting a Graves Act waiver.
Docket No.: a0197-19
Decided: 2021-01-21
Caption: MARCELLA SIMADIRIS v.
PATERSON PUBLIC SCHOOL
DISTRICT
Status: Published
Summary:
FISHER, P.J.A.D. Defendant Paterson Public School District appeals a trial judge's summary determination that its decision to certify tenure charges against plaintiff Marcella Simadiris in private violated her alleged right to demand its consideration in public.
Docket No.: a4228-19
Decided: 2021-01-19
Caption: STATE OF NEW JERSEY v.
E.J.H.
Status: Published
Summary:
ROSE, J.A.D. The State appeals from the Family Part's July 7, 2020 order, sua sponte dismissing its February 23, 2020 complaint that charged defendant E.J.H. with the disorderly persons offense of contempt, N.J.S.A. 2C:29-9(b)(2), for violating a temporary restraining order (TRO) issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. During the plea hearing, the trial judge rejected defendant's factual basis and refused to accept defendant's guilty plea, finding as a matter of law that defendant did not knowingly violate the TRO. Instead, the judge determined that defendant's comments and lewd gesture directed to his estranged wife, I.Y.H. (Irene) – by way of a "Nest" home security camera consensually activated in defendant's home – did not constitute proscribed "contact" under the TRO. We disagree. Accordingly, we vacate the order and remand for reinstatement of the complaint.
Docket No.: a5254-17
Decided: 2021-01-15
Caption: STATE OF NEW JERSEY v.
C.W.H.
Status: Published
Summary:
GOODEN BROWN, J.A.D. On appeal, defendant raises the following points for our consideration: POINT I THE INTERROGATING DETECTIVE USURPED THE JURY'S ROLE AS ARBITER OF CREDIBILITY AND DEPRIVED DEFENDANT OF A FAIR TRIAL BY REPEATEDLY ASSERTING DURING THE INTERROGATION THAT DEFENDANT'S DENIAL OF THE ALLEGATIONS WERE LIES AND BY OFFERING HIS OPINION AS TO DEFENDANT'S TRUTHFULNESS AT TRIAL. (PARTIALLY RAISED BELOW). POINT II [V.H.'S] INADMISSIBLE HEARSAY TESTIMONY THAT THE VICTIM DISCLOSED THE ALLEGATION OF ABUSE SIXTEEN YEARS AFTER THE FACT PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL; THE PREJUDICE WAS EXACERBATED BY [V.H.'S] IMPROPER COMMENT THAT THE ALLEGATION WAS TRUE BASED ON HER "INTUITION," HAVING SPENT TIME WITH DEFENDANT. (NOT RAISED BELOW). 2 N.J.S.A. 2C:43-6.4 was amended by L. 2003, c. 267, § 1 effective January 14, 2004. The amendment included the title change from Community Supervision for Life (CSL) to Parole Supervision for Life (PSL). Because these offenses predated the amendment, defendant was sentenced to CSL. A-5254-17T1 3 POINT III THE PROSECUTOR'S CROSS-EXAMINATION OF EACH OF DEFENDANT'S CHARACTER WITNESSES WITH SPECIFIC INSTANCES OF CONDUCT VIOLATED THE RULES OF EVIDENCE AND PRESUPPOSED HIS GUILT OF THE UNDERLYING CHARGES, THEREBY PREJUDICING DEFENDANT'S RIGHT TO [A] FAIR TRIAL. (NOT RAISED BELOW). Because we agree that defendant was deprived of a fair trial in multiple ways, we reverse.
Docket No.: a0111-19
Decided: 2021-01-27
Caption: PERSHAN PARSARD v. BOARD OF REVIEW DEPARTMENT OF LABOR
Status: Unpublished
Summary:
PER CURIAM After two years, Pershan Parsard left his job as a security officer at Rosa International Group, LLC (Rosa). He appeals from the Board of Review's final agency decision which disqualified him from receiving unemployment benefits under N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to his work, and required a refund of the $12,507 in unemployment benefits he received between February 2019 and May 2019. We affirm.
Docket No.: a0435-19
Decided: 2021-01-27
Caption: S.I v. M.I
Status: Unpublished
Summary:
PER CURIAM This appeal requires us to determine whether the Family Part erred in granting plaintiff's1 motion to amend the custody and parenting time agreement ("CPTA" or "agreement") regarding custody of their disabled daughter, M.I. (Mindy). The fully executed agreement was submitted to the court by defendant's attorney and incorporated into the June 4, 2019 final judgment of divorce (FJOD). Judge Noah Franzblau decided that a CPTA provision stating plaintiff would care for Mindy every other weekend was left in the agreement by clerical error and should be removed. Thus, plaintiff would have no visitation with Mindy and defendant would have full-time physical custody of her. We affirm substantially for the reasons expressed by the judge in his cogent written decision.
Docket No.: a2362-19
Decided: 2021-01-27
Caption: D.C. v. V.C
Status: Unpublished
Summary:
PER CURIAM 1 We use initials and pseudonyms to protect the welfare of the parties' minor children. R. 1:38-3(d). In this unopposed appeal, D.C., the father of the parties' two minor children C.C. and D.C.,2 seeks relief from the Family Part's January 3, 2020 order denying relief with respect to the children's alleged educational neglect. Specifically, the father urges that remedial action is warranted to address the apparent failure of the children's mother, V.B. (formerly known as V.C.) to provide adequate instruction to the children through home schooling. For the reasons that follow, we vacate several portions of the January 3, 2020 order, remanding this case for additional evaluations and a plenary hearing, yielding a more informed basis for the trial court to reconsider measures that may be warranted to assure the children's educational best interests.
Docket No.: a3359-18
Decided: 2021-01-27
Caption: FERNANDO MADRIGAL v. NEW JERSEY STATE PAROLE BOARD
Status: Unpublished
Summary:
PER CURIAM Appellant Fernando Madrigal, who is currently incarcerated in South Woods State Prison, appeals from the New Jersey State Parole Board's (Board) February 27, 2019 final agency decision, which upheld a decision of a two- member Board panel (panel) that denied his application for parole and imposed a twenty-three-month future eligibility term (FET). We affirm.
Docket No.: a3937-18
Decided: 2021-01-27
Caption: ELMER SQUARE v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: Unpublished
Summary:
PER CURIAM Elmer Square, an inmate at New Jersey State Prison, appeals from the New Jersey Department of Corrections' (DOC) March 21, 2019 final agency determination finding him guilty of prohibited act $1.005, threatening another with bodily harm or with any offense against his or her person or his or her property, N.J.A.C.10A:4-4.1(a)(2)(ii), and imposing sanctions of 120 days of administrative segregation, thirty days of loss of recreation privilege, and 150 days of loss of commutation time. On appeal, Square argues: POINT I APPELLANT'S DUE PROCESS RIGHTS, AS SET FORTH IN AVANT V CLIFFORD,1 WERE VIOLATED WHEN THE HEARING OFFICER MADE FINDINGS NOT BASED ON SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD. POINT II APPELLANT'S DUE PROCESS RIGHT TO A FUNDAMENTALLY FAIR HEARING BY AN IMPARTIAL TRIBUNAL [OR HEARING OFFICER] WAS VIOLATED WHEN THE HEARING OFFICER FAILED TO STATE ON THE RECORD HOW SHE MADE DETERMINATIONS OF CREDIBILITY. 1 67 N.J. 496 (1975). A-3937-18T3 2 We affirm because the DOC's decision was supported by substantial evidence and the law.
Docket No.: a4019-18
Decided: 2021-01-27
Caption: PAUL CAMPO v. NEW JERSEY STATE PAROLE BOARD
Status: Unpublished
Summary:
PER CURIAM Appellant appeals the April 10, 2019 final agency decision of the New Jersey Parole Board that denied his appeal of his parole eligibility date. We have been advised that appellant has been released from custody. The appeal is therefore moot. Appeal dismissed.
Docket No.: a4490-17
Decided: 2021-01-27
Caption: KRISTOPHER JAMES MINOGUE v. INTERSTATE FACTS, LLC
Status: Unpublished
Summary:
PER CURIAM Plaintiff Kristopher James Minogue appeals from a Special Civil Part order directing that he pay defendant Interstate Facts, LLC's counsel $16 ,720.60 in legal fees and costs as a sanction under Rule 1:4-8. The court's order is untethered to any findings of fact and conclusions of law as required under Rule 1:7-4, and we therefore vacate the order and remand for the court to make the necessary findings supporting its decision.
Docket No.: a4653-18
Decided: 2021-01-27
Caption: MICHAEL ELIAS v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM
Status: Unpublished
Summary:
PER CURIAM Michael Elias appeals from a May 14, 2019 final agency decision rendered by the Board of Trustees, Police and Firemen's Retirement System of New Jersey (PFRSNJ), imposing a total forfeiture of his five years, eight months of service credit at the Bergen County Sheriff's Department (BCSD). The total forfeiture made Elias ineligible for ordinary disability retirement benefits. We now vacate and remand to PFRSNJ.
Docket No.: a5239-18
Decided: 2021-01-27
Caption: MARY ANN SCHULTZ v. KATHLEEN GLASSER
Status: Unpublished
Summary:
PER CURIAM Defendants Kathleen Glasser (Kathleen)1 individually and as executor of the Estate of Robert Schultz, Jr. (Bobby) appeal, and plaintiffs Mary Ann Schultz (Mary Ann) by her attorney-in-fact, the Estate of Robert Schultz, Sr. (Robert) by its administrator, and Donna Schultz (Donna), cross-appeal from a June 21, 2019 judgment entered following a trial. We affirm.
Docket No.: a5660-18
Decided: 2021-01-27
Caption: M.M. v. CATASTROPHIC ILLNESS IN CHILDREN RELIEF FUND COMMISSION
Status: Unpublished
Summary:
PER CURIAM This case returns to us after remand in which we required defendant, the Catastrophic Illness in Children Relief Fund Commission (the Commission), to explain why it reimbursed plaintiffs for their uncovered medical expenses incurred by their daughter's hyperbaric oxygen therapy (HBOT) in 2015 but not in 2016.
Docket No.: a0184-19
Decided: 2021-01-26
Caption: STATE OF NEW JERSEY v. WENDY L. LADOUCEUR
Status: Unpublished
Summary:
PER CURIAM Defendant Wendy L. Ladouceur appeals from the Law Division's April 11, 2019 order, which denied her application for entry into the pre-trial intervention (PTI) program. We affirm.
Docket No.: a0198-19
Decided: 2021-01-26
Caption: STATE OF NEW JERSEY v. KEN GUNTER
Status: Unpublished
Summary:
PER CURIAM Defendant Ken Gunter appeals from a June 26, 2019 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Docket No.: a0224-19
Decided: 2021-01-26
Caption: STATE OF NEW JERSEY v. NAGY A. IBRAHIM
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from the June 4, 2019 Law Division order denying his petitions for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Docket No.: a1183-19
Decided: 2021-01-26
Caption: IN THE MATTER OF THE CIVIL COMMITMENT OF W.W
Status: Unpublished
Summary:
PER CURIAM Appellant W.W. appeals from an October 16, 2019 Law Division order, which found him to be a sexually violent predator and continued his involuntary commitment in the special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
Docket No.: a1996-18
Decided: 2021-01-26
Caption: STATE OF NEW JERSEY v. WILLIAM J. KANE
Status: Unpublished
Summary:
PER CURIAM Defendant William J. Kane appeals from a November 13, 2018 judgment of conviction for drug offenses after trial. We affirm.
Docket No.: a2234-19
Decided: 2021-01-26
Caption: JANETTE FAULK v. ANNE MARTUCCI
Status: Unpublished
Summary:
PER CURIAM Defendant Anne Martucci (Anne) appeals from a December 24, 2019 order awarding a constructive trust in favor of plaintiff Janette Faulk (Janette) as guardian of Harry Faulk (Harry), an adjudged incapacitated person. We affirm.
Docket No.: a4962-18
Decided: 2021-01-26
Caption: ELAN PHARMACEUTICALS INC v. DIRECTOR, DIVISION OF TAXATION
Status: Unpublished
Summary:
PER CURIAM Plaintiff Elan Pharmaceuticals, Inc. (Elan), appeals from a May 2, 2014 Tax Court order and June 6, 2019 final judgment determining: (1) the Director of the Division of Taxation (Division) properly reclassified the gain from Elan's sale of its ABELCET and PERMAX assets from non-operational income to taxable apportionable operational income; and (2) that Elan owed $1966,127.38 in corporate taxes for tax year 2002, a $96,612.74 penalty, and $2,291,918.08 in interest.1 Elan contends that the Tax Court erred in determining that the business liquidation doctrine did not apply to the gain from the sale of the ABELCET and PERMAX assets. In the alternative, Elan argues this matter should be remanded to the Tax Court for further fact-finding on this issue.
Docket No.: a5288-18
Decided: 2021-01-26
Caption: MANNIX DANIELS v. NEW JERSEY STATE POLICE -
Status: Unpublished
Summary:
PER CURIAM Petitioner Mannix Daniels appeals from the May 16, 2019 final agency decision of the Acting Superintendent of the State Police denying his application for a certificate of registration as a security officer because of a prior criminal conviction. We affirm.
Docket No.: a5290-17
Decided: 2021-01-26
Caption: STATE OF NEW JERSEY v. JAQUIL JOHNSON
Status: Unpublished
Summary:
PER CURIAM A jury convicted defendant Jaquil Johnson of the lesser-included charge of second-degree passion-provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), in the shooting death of Calvin Auston, and unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The jury acquitted defendant of possession of a firearm for an unlawful purpose. N.J.S.A. 2C:39-4(a). The judge granted the State's motion for an extended term pursuant to N.J.S.A. 2C:44-3(a) and sentenced defendant to an eighteen-year term of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the manslaughter conviction, and a concurrent ten-year term with a five-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), on the weapons offense. Defendant raises the following points on appeal: POINT I THE TRIAL JUDGE FAILED TO ENSURE DEFENDANT'S RIGHTS TO A FAIR AND IMPARTIAL JURY, DUE PROCESS AND CONFRONTATION, WHEN HE FAILED TO VOIR DIRE THE JURORS AFTER MEMBERS OF THE VICTIM'S FAMILY WORE SHIRTS TO COURT DISPLAYING A PHOTOGRAPH OF THE VICTIM AND THE WORDS "REST IN PEACE." (NOT RAISED BELOW) A-5290-17T1 2 POINT II THE COURT ERRED IN PERMITTING A KEY STATE'S WITNESS TO TESTIFY IN HANDCUFFS AND PRISON GARB. (PARTIALLY RAISED BELOW) POINT III THE PROSECUTOR COMMITTED MISCONDUCT IN SUMMATION, INCLUDING WHEN SHE URGED, WITHOUT SUPPORT IN THE RECORD, THAT DEFENDANT'S HAVING LEFT NEW JERSEY REFLECTED A CONSCIOUSNESS OF GUILT, AND THE COURT ERRED IN FAILING TO CORRECT THE PROSECUTOR'S ERRORS. POINT IV IN SENTENCING THE DEFENDANT, THE COURT ERRED IN MISSTATING THE APPLICABLE SENTENCING RANGE AND FINDING, AS AN AGGRAVATING FACTOR, THE NATURE AND CIRCUMSTANCES OF THE OFFENSE. Defendant raises the following issues in a pro se supplemental brief: POINT ONE THE TRIAL COURT'S JURY INSTRUCTIONS ON ELEMENTS OF MURDER AND ITS LESSER INCLUDED OFFENSES WAS CONTRADICTORY, CONFUSING AND LESSENED THE STATE'S BURDEN, THUS DEPRIVING DEFENDANT DUE A-5290-17T1 3 PROCESS AND A FAIR TRIAL . . . . [NOT RAISED BELOW]1 POINT TWO THE DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS WHEN THE TRIAL COURT FAILED TO CHARGE THE JURY ON SELF- DEFENSE . . . . [NOT RAISED BELOW] POINT THREE DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN THE PROSECUTOR SOUGHT TO APPEAL TO THE JURORS SYMPATHY AND PREJUDICES TO LESSEN THE STATE'S BURDEN . . . . [NOT RAISED BELOW] POINT FOUR THE TRIAL COURT'S FAILURE TO FIND MITIGATING FACTORS WHICH DEFENDANT WAS ENTITLED TO RECEIVE, VIOLATED THE SENTENCING GUIDELINES AND DEPRIVED DEFENDANT OF DUE PROCESS [NOT RAISED BELOW] Considering the record and applicable legal standards, we affirm defendant's conviction and remand the matter for re-sentencing consistent with this opinion.
Docket No.: a0201-18
Decided: 2021-01-25
Caption: STATE OF NEW JERSEY v. MAURICE ROBINSON
Status: Unpublished
Summary:
PER CURIAM After his motion to suppress the physical evidence seized following a motor vehicle stop was denied, defendant Maurice Robinson pled guilty to second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1), and violation of probation, N.J.S.A. 2C:45-3. Defendant was sentenced to a five-year custodial term subject to a forty-two-month period of parole ineligibility. We affirm the convictions and remand for correction of the sentence to reflect certain jail credits.
Docket No.: a0553-19
Decided: 2021-01-25
Caption: STATE OF NEW JERSEY v. R.B
Status: Unpublished
Summary:
PER CURIAM Following a bench trial on August 26, 2019, Judge Susan F. Maven found defendant R.B.1 guilty of the disorderly persons offense of contempt, N.J.S.A. 2C:29-9(b)(2), and the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(a). We affirm.
Docket No.: a0767-19
Decided: 2021-01-25
Caption: STATE OF NEW JERSEY v. SALAAM REEVEY
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from an August 13, 2019 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Docket No.: a2879-18
Decided: 2021-01-25
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.A. and Z.S.
Status: Unpublished
Summary:
PER CURIAM This case comes before us for a second time. Because we find the Family Part erred in not conducting a N.J.R.E. 104 hearing to address the admissibility of newly discovered evidence and relied on Child Sexual Abuse Accommodation Syndrome (CSAAS) testimony now deemed unreliable under State v. J.L.G.,1 234 N.J. 265, 272 (2018), we are constrained to remand for further proceedings as directed. We need not reiterate all of the facts as they are
set forth in our prior decision,2 but only refer to those necessary for the reader's
clarity.
Docket No.: a3700-19
Decided: 2021-01-25
Caption: TRACEY M. PEREZ v. LEONARD AUTO ENTERPRISES INC.
Status: Unpublished
Summary:
PER CURIAM Defendant Leonard Auto Enterprises, Inc. appeals orders that denied its motions to vacate a default judgment and for reconsideration. Because the motion judge should have viewed the reconsideration motion as a second, permissible Rule 4:50 motion, and because defendant presented a meritorious defense in that second motion, we reverse and remand.
Docket No.: a4143-18
Decided: 2021-01-25
Caption: STATE OF NEW JERSEY v. MARC KIRKLAND
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from a March 5, 2019 order denying his petition for post-conviction relief (PCR). He maintains both his trial and PCR counsel rendered ineffective assistance. Judge Kathy C. Qasim entered the order and rendered a thorough twenty-two-page written decision. We affirm.
Docket No.: a4525-18
Decided: 2021-01-25
Caption: STATE OF NEW JERSEY v. TERRENCE A. TERRELL a/k/a TONE,1
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from an order entered by the Law Division on May 23, 2019, which denied his petition for post-conviction relief (PCR). We affirm.
Docket No.: a5551-18
Decided: 2021-01-25
Caption: STATE OF NEW JERSEY v. LAVAR REYNOLDS
Status: Unpublished
Summary:
PER CURIAM Defendant Lavar Reynolds appeals from a June 24, 2019 judgment of conviction after pleading guilty to fourth-degree violation of a firearms regulations, N.J.S.A. 2C:39-10(a). Defendant's guilty plea preserved the right to appeal denial of his motions to dismiss the charges and reconsideration. We affirm the conviction but remand for resentencing.
Docket No.: a5566-18
Decided: 2021-01-25
Caption: IN THE MATTER OF MAURICE JACKSON MERCER COUNTY CORRECTIONS CENTER
Status: Unpublished
Summary:
PER CURIAM Petitioner Maurice Jackson appeals from a June 26, 2019 final administration action of the Civil Service Commission (Commission) upholding his fifty-day suspension. We affirm.
Docket No.: a0346-18
Decided: 2021-01-22
Caption: STATE OF NEW JERSEY v. JAMES L. MILLER
Status: Unpublished
Summary:
FUENTES, P.J.A.D. Defendant James L. Miller appeals from the order of the Criminal Part denying his post-conviction relief (PCR) petition. We affirm.
Docket No.: a0373-19
Decided: 2021-01-22
Caption: IN THE MATTER OF MATTHEW BERMUDEZ
Status: Unpublished
Summary:
PER CURIAM Matthew Bermudez appeals from a final decision of the Civil Service Commission (Commission) dated August 16, 2019, which upheld his removal from the eligibility list for the position of police officer in the City of Linden (the City). We affirm.
Docket No.: a0644-19
Decided: 2021-01-22
Caption: W.S.H v. V.L.P
Status: Unpublished
Summary:
PER CURIAM In this appeal of a post-judgment matrimonial order, defendant V.L.P. (Valerie, a fictitious name) argues that the motion judge erred by denying, without an evidentiary hearing, a modification and clarification of the alimony, child support, and equitable distribution obligations she owes to plaintiff W.S.H. (Warren, also a fictitious name) pursuant to the judgment of divorce. We find no merit in her arguments and affirm.
Docket No.: a0682-19
Decided: 2021-01-22
Caption: L.C. v. S.C.
Status: Unpublished
Summary:
PER CURIAM This appeal emanates from more than ten years of paternity actions initiated by plaintiff L.C.; her godson, R.S.; and his mother.
Docket No.: a1675-19
Decided: 2021-01-22
Caption: JANAK SARKARIA, M.D v. SUMMIT ANESTHESIA ASSOCIATES, P.A
Status: Unpublished
Summary:
PER CURIAM Plaintiff appeals from two orders: one granting summary judgment in favor of defendant and dismissing plaintiff's breach of contract and punitive damages claims for alleged age discrimination under the New Jersey Law Against Discrimination (LAD); and another granting a directed verdict in favor of defendant on plaintiff's remaining LAD claim. Plaintiff claims that her employer, defendant Summit Anesthesia Associates (SAA), forced her termination based on her age and high salary when Mednax acquired the practice and that defendant used unfounded and unproven allegations that she deviated from the applicable professional standard of care to oust her from the practice. Plaintiff produced no evidence in support of her discrimination case and failed to show that defendant's business reason for termination was pretextual. We therefore affirm.
Docket No.: a1929-19
Decided: 2021-01-22
Caption: BMO HARRIS BANK, N.A v. RWB TRUCKING, INC
Status: Unpublished
Summary:
PER CURIAM In January 2017, a default judgment for $1166,061.14 was entered in favor of BMO Harris Bank, N.A. (BMO), against defendants RWB Trucking, Inc. (RWB Trucking) and Blake Elfand (defendant), giving possession of certain equipment to BMO. The court ordered the sale of defendant's real estate in July 2019 to pay the judgment. Defendant's motion to vacate the default judgment and the order to sell real estate was denied on September 19, 2019. Defendant appeals that order and the December 6, 2019 order denying his motion for reconsideration. We affirm both orders.
Docket No.: a2308-18
Decided: 2021-01-22
Caption: STATE OF NEW JERSEY v. DEON A. DOYLE-BAKER
Status: Unpublished
Summary:
PER CURIAM After pleading guilty, defendant appeals from his convictions for second- degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-5(b)(2); and second-degree possession of a firearm while possessing CDS with intent to distribute, N.J.S.A. 2C:39-4.1. The police conducted a proper field inquiry, obtained a search warrant, and seized the CDS and loaded gun from defendant's car. The record supports the order denying defendant's motion to suppress, and the sentence is not excessive. We therefore affirm.
Docket No.: a3664-17
Decided: 2021-01-22
Caption: STATE OF NEW JERSEY v. J.D
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from a January 10, 2018 order denying his petition for post-conviction relief (PCR). The PCR judge, Frances A. McGrogan, entered the order without conducting an evidentiary hearing, ruling that defendant's petition is time barred under Rule 3:22-12, having been filed twenty-eight years after entry of the 1989 judgment of conviction. The PCR judge also held th at defendant's petition was procedurally barred by Rule 3:22-4 because his current constitutional arguments could have been raised in direct appeals from the multiple civil commitment orders that have been entered against him pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Notwithstanding these procedural bars, Judge McGrogan addressed the merits of defendant's contentions, ruling that his commitment as a sexually violent predator does not violate the due process or ex post facto clauses. We agree and affirm.
Docket No.: a3842-18
Decided: 2021-01-22
Caption: GIUSEPPI ARDITO v. EMERALD INVESTMENT REAL ESTATE, LLC
Status: Unpublished
Summary:
FUENTES, P.J.A.D. On July 5, 2016, plaintiffs Giuseppi Ardito and Gerolima Sebastiani purchased a single family residence located in the Borough of Raritan, Hunterdon County, from defendant Emerald Investment Real Estate, LLC, (Emerald). Plaintiffs retained attorney Britt J. Simon to represent their interest in this transaction. Simon practiced law under "The Simon Law Group," a limited liability corporation with offices located in Somerville. After the closing of title, plaintiffs alleged: (1) Emerald misrepresented the dimension and contours of the property; (2) the rear of the property extended "many feet beyond a board fence" that contained structures used to store materials as well as actual materials scattered on the site; and (3) the rear of the property had been used by Flemington Block $1 Supply, a prior owner, as part of its industrial operations.
Docket No.: a4708-18
Decided: 2021-01-22
Caption: STATE OF NEW JERSEY v. JULIO R. RUIZ-VIDAL
Status: Unpublished
Summary:
PER CURIAM Defendant Julio R. Ruiz-Vidal's post-conviction relief (PCR) petition alleging ineffective assistance of trial counsel was denied in part and granted in part without an evidentiary hearing. Defendant contends the PCR court erred in finding that his petition was time- and procedurally barred. He asserted he was denied an opportunity to seek admission into the pretrial intervention program (PTI) because counsel failed to: move for dismissal of second-degree charges against him that would have made it easier to gain entry into PTI; advise him he could apply to PTI despite the prosecutor's refusal to consent to his admission; and advise him he could appeal the prosecutor's refusal. We reverse and remand for an evidentiary hearing.
Docket No.: a0482-19
Decided: 2021-01-21
Caption: ROLAND M. NEWLAND v. MARIA A. NEWLAND
Status: Unpublished
Summary:
PER CURIAM In this post-judgment matrimonial matter, plaintiff Roland M. Newland appeals from the September 20, 2019 denial of his motion for reconsideration, as well as the underlying orders preceding this denial, which reformed the judgment of divorce (JOD) in favor of defendant Maria A. Newland. He also appeals from the January 24, 2020 order awarding defendant counsel fees. We affirm the challenged orders, substantially for the reasons set forth by Judge James J. Ferrelli's well-reasoned, comprehensive opinions.
Docket No.: a0658-19
Decided: 2021-01-21
Caption: WELLS FARGO BANK N.A v. MARVIN HOWARD and MRS. MARVIN HOWARD, His Wife, PAMELA S. HOWARD LANCASTER MORTGAGE BANKERS, LLC, and STATE OF NEW JERSEY
Status: Unpublished
Summary:
PER CURIAM Pro se defendant 1 Marvin Howard appeals from the September 30, 2019 Chancery Division order, which denied his motion to vacate a July 9, 2019 sheriff's sale and confirmed the sale as valid. We affirm.
Docket No.: a0974-19
Decided: 2021-01-21
Caption: RICHARD G. BREBNER v. GOVERNMENT EMPLOYEES INSURANCE COMPANY
Status: Unpublished
Summary:
PER CURIAM In this insurance coverage dispute, plaintiff Richard G. Brebner 2 was insured by defendant Government Employees Insurance Company (GEICO) under a New Jersey Family Automobile Insurance Policy that included underinsured motorist (UIM) coverage. On August 19, 2015, plaintiff was injured while driving home from work in his employer's 2009 Kia Rondo automobile, and claimed his injuries exceeded the $125,000 bodily injury policy limits tendered by the tortfeasor's insurance carrier. Plaintiff filed a claim under his UIM coverage, which GEICO denied based on the policy's "regular use" exclusion. Plaintiff's ensuing complaint seeking coverage from GEICO was dismissed by the Law Division on the parties' cross-motions for summary judgment. Plaintiff now appeals from the motion judge's September 27, 2019 order. Acknowledging the essential facts are undisputed, plaintiff raises a single legal issue for our consideration, contending the judge erred because plaintiff was not "regularly using" the Kia at the time of the accident. Having conducted a de novo review of the record, we affirm.
Docket No.: a1360-19
Decided: 2021-01-21
Caption: LISA FITTON v. GEORGE ELMASRY
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from a September 13, 2019 order denying his motion to modify the custody arrangement for the parties' son Adam1; and a November 1, 2019 order denying reconsideration. Defendant argues the judge abused his discretion in entering both orders. We disagree and affirm.
Docket No.: a5366-18
Decided: 2021-01-21
Caption: JEFFREY E. DODSON v. KASHAN L. DODSON
Status: Unpublished
Summary:
PER CURIAM In this post-judgment matrimonial matter, defendant Kashan L. Dodson appeals the trial court's order denying her motion to vacate default.
Docket No.: a0188-19
Decided: 2021-01-20
Caption: STATE OF NEW JERSEY v. JOHN WHITE
Status: Unpublished
Summary:
PER CURIAM Defendant John White appeals from a July 22, 2019 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Docket No.: a0292-19
Decided: 2021-01-20
Caption: IN THE MATTER OF THE CIVIL COMMITMENT OF I.M
Status: Unpublished
Summary:
PER CURIAM In these consolidated appeals, appellants I.M. and A.F. contend they were entitled to be discharged from Trenton Psychiatric Hospital (TPH) within forty- eight hours of their commitment review hearings pursuant to N.J.S.A. 30:4- 27.15(b) and Rule 4:74-7(h). Instead, in both instances, appellants argue the judge erroneously continued their commitment as a Conditional Extension Pending Placement (CEPP). See R. 4:74-7(h)(2).
Docket No.: a0881-19
Decided: 2021-01-20
Caption: VICTORIA GOETHALS v. JEFFREY GOETHALS
Status: Unpublished
Summary:
PER CURIAM In this post-judgment matrimonial matter, plaintiff/ex-wife appeals from the October 11, 2019 Family Part order denying reconsideration of an August 23, 2019 order. The August 23 order denied her request to correct a provision of the marital settlement agreement (MSA) incorporated into the parties' three- year-old final judgment of divorce (FJOD). The provision allowed for the equitable distribution of stocks paid to defendant/ex-husband as part of his compensation as an executive of Ross Stores, Inc. For the reasons that follow, we reverse.
Docket No.: a1020-19
Decided: 2021-01-20
Caption: VAMA F.Z. CO v. PACIFIC CONTROL SYSTEMS L.L.C.
Status: Unpublished
Summary:
PER CURIAM Plaintiff Vama F.C. Co. (Vama) appeals from a September 24, 2019 order granting summary judgment to defendants Pacific Control Systems, L.L.C. (Pacific) and Dilip Rahulan declaring that a foreign money-judgment Vama obtained against defendants in the Court of First Instance in Dubai, United Arab Emirates (UAE) (the Dubai judgment), was not recognized in New Jersey and shall not be filed as a judgment in New Jersey. We affirm.
Docket No.: a3409-18
Decided: 2021-01-20
Caption: STATE OF NEW JERSEY v. BRENDA WILLIAMS
Status: Unpublished
Summary:
PER CURIAM Defendant Brenda Williams appeals from the Law Division's February 26, 2019 order affirming her municipal court conviction for careless driving, N.J.S.A. 39:4-97. On appeal, defendant principally argues that the State failed
to meet its burden of proving every element of N.J.S.A. 39:4-97. We affirm
substantially for the reasons set forth in Judge Lara K. DiFabrizio's cogent
written opinion.
Docket No.: a3413-18
Decided: 2021-01-20
Caption: STATE OF NEW JERSEY v. BOYCE SINGLETON
Status: Unpublished
Summary:
PER CURIAM In 2008, defendant was convicted of the first-degree murder of his pregnant girlfriend, for which he received a fifty-year prison sentence.1 Defendant appeals the denial of his second post-conviction relief (PCR) petition, arguing his trial counsel and his first PCR attorney were ineffective in failing to pursue the fact that the State's expert was permitted to observe defendant's expert testify at trial. We find no merit in this argument and affirm.
Docket No.: a4168-18
Decided: 2021-01-20
Caption: STATE OF NEW JERSEY v. DESIRE LUSAMBA
Status: Unpublished
Summary:
PER CURIAM In this appeal, we review an order that denied both defendant's post- conviction relief (PCR) petition and his motion for leave to withdraw his guilty pleas – applications that were filed five years and seven months after entry of the February 22, 2013 judgments of conviction – based on a claim that he was misadvised about the deportation consequences of his guilty pleas. We remand for an evidentiary hearing.
Docket No.: a0635-19
Decided: 2021-01-19
Caption: J. M v. C.K
Status: Unpublished
Summary:
PER CURIAM Plaintiff, J.M., appeals from a Family Part post-judgment order denying her motion to modify the current parenting plan, award her sole custody of the children, and order a plenary hearing. 1 Judge John A. Jorgensen rendered an oral decision and thereafter issued a written amplification. We affirm .
Docket No.: a0775-19
Decided: 2021-01-19
Caption: RICHARD KESNER v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM
Status: Unpublished
Summary:
PER CURIAM Richard Kesner appeals from an October 8, 2019 final agency decision of the Board of Trustees (Board), Police and Firemen's Retirement System (PFRS) denying his request to cancel his pension loan obligation. Kesner maintains he paid the loan in full prior to his retirement, and the Board should have transmitted his matter to the Office of Administrative Law (OAL) for a hearing to resolve disputed questions of fact in that regard. For the first time on appeal, Kesner alternatively argues the Division of Pensions and Benefits (Division) should have forgiven the loan debt pursuant to the doctrine of laches. We affirm.
Docket No.: a0923-19
Decided: 2021-01-19
Caption: SARA QUEJADA v. SHOPRITE
Status: Unpublished
Summary:
PER CURIAM Plaintiff Sara Quejada appeals from the Law Division's October 21, 2019 order granting summary judgment to defendant, Village Super Market of NJ, LP, improperly pled as ShopRite. Plaintiff alleged she slipped and fell on water on the store's floor and suffered injuries to her spine as a result. We limit our review to the record before the motion judge, Mark P. Ciarrocca. Ji v. Palmer, 333 N.J. Super. 451, 463–64 (App. Div. 2000).
Docket No.: a1016-19
Decided: 2021-01-19
Caption: STATE OF NEW JERSEY v. AFRIM TAIRI
Status: Unpublished
Summary:
PER CURIAM This is the fourth time this matter is before us. A jury convicted defendant Afrim Tairi of felony murder and other serious crimes arising from his involvement in three "home invasions" committed during September and November 1995. State v. Tairi, No. A-2684-09 (App. Div. Feb. 16, 2012) (Tairi II) (slip op. at 2, 5). The judge sentenced defendant to an aggregate term of life in prison plus eighty years, with a seventy-year period of parole ineligibility. Id. at 2. We affirmed defendant's conviction on direct appeal, id.
Docket No.: a1051-19
Decided: 2021-01-19
Caption: ERMINA M. RADONCIC v. AUTO HOLDING
Status: Unpublished
Summary:
PER CURIAM Following a one-day bench trial, plaintiff Ermina Radoncic appeals from a September 27, 2019 Law Division order dismissing her complaint and entering judgment in favor of defendant Auto Holding, Inc. We affirm.
Docket No.: a1629-19
Decided: 2021-01-19
Caption: ANNA JASICKI v. MORGANSTANLEY SMITHBARNEY LLC
Status: Unpublished
Summary:
PER CURIAM Plaintiff Anna Jasicki appeals from a December 5, 2019 order dismissing her complaint against defendants Morgan Stanley Smith Barney, LLC, Morgan Stanley Wealth Management d/b/a Morgan Stanley, and James Lloyd, and compelling arbitration. We affirm.
Docket No.: a2004-19
Decided: 2021-01-19
Caption: THOMAS J. STEWART v. NEW JERSEY TURNPIKE AUTHORITY
Status: Unpublished
Summary:
PER CURIAM Plaintiffs Thomas J. Stewart and Julie Stewart 1 appeal from a January 8, 2020 order granting summary judgment to defendants New Jersey Turnpike Authority (Authority) and Earle Asphalt (Earle) (collectively, defendants). Because there are disputed issues of material fact relevant to the application of immunity under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, we reverse and remand.
Docket No.: a1035-19
Decided: 2021-01-15
Caption: STATE OF NEW JERSEY v. JAMES MCDOWELL
Status: Unpublished
Summary:
PER CURIAM Defendant Sisa Butu, formerly known as James McDowell, appeals from an order denying his petition for post-conviction relief (PCR).1 He contends that his prior appellate counsel, who represented him on his direct appeal, was ineffective in not raising an argument that he was denied his constitutional right to counsel of his choice at trial. We disagree and affirm.
Docket No.: a1053-19
Decided: 2021-01-15
Caption: STATE OF NEW JERSEY v. BRETT J. LANDES
Status: Unpublished
Summary:
PER CURIAM Defendant Brett J. Landes appeals from an October 24, 2019, judgment of conviction (JOC) following a jury trial. We affirm but remand to correct the JOC.
Docket No.: a1187-19
Decided: 2021-01-15
Caption: ROBERT ROBERTELLI v. MAXINE ROBERTELLI
Status: Unpublished
Summary:
PER CURIAM Plaintiff Robert Robertelli and defendant Maxine Robertelli, now known as Maxine Baum, were married in 2004 and had three children before separating and ultimately divorcing in 2017. Pursuant to a custody and parenting time agreement (CPTA) executed during the litigation and incorporated into the dual final judgment of divorce, the parties agreed to equally share legal and physical custody of the children (the Robertelli children), ages ten, eight and five at the time of the divorce.
Docket No.: a1763-17
Decided: 2021-01-15
Caption: O.K v. A.K.
Status: Unpublished
Summary:
FUENTES, P.J.A.D. Defendant A.K., appearing pro se, appeals from an amended Final Restraining Order (FRO) entered by the Essex County Chancery Division, Family Part on October 31, 2017, under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The appellate record includes the transcript of the original FRO hearing conducted on November 9, 2015 before Judge Bridget A. Stecher. The record shows plaintiff O.K. was at the time married to defendant; they had two children who were then five and six years old.
Docket No.: a1957-19
Decided: 2021-01-15
Caption: N.M.R v. A.L
Status: Unpublished
Summary:
PER CURIAM Defendant A.L.1 appeals from a final restraining order (FRO) entered on December 4, 2019, under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35.2 Defendant contends the court erred by finding he committed the predicate offenses of harassment and cyber-harassment, that the FRO was necessary to protect plaintiff N.M.R. from future domestic violence, and that he was deprived of a fair trial. We affirm the FRO, limited to the predicate act of harassment.
Docket No.: a2858-18
Decided: 2021-01-15
Caption: NORMAN OSTROW, INC v. FAWZY MEGALLA GAD
Status: Unpublished
Summary:
PER CURIAM In this landlord/tenant ejection action, the agent of the landlord, Norman Ostrow, Inc. (Landlord or plaintiff), appeals from two March 18, 2019 orders that (1) dismissed its complaint for ejectment with prejudice; and (2) denied its motion for reconsideration. After conducting a bench trial, the trial court found that defendant Fawzy Megalla Gad (Fawzy) was a tenant and the Landlord had established no grounds for his eviction.1 Because those findings are supported by substantial credible evidence and are consistent with the governing law, we affirm.
Docket No.: a3079-18
Decided: 2021-01-15
Caption: STATE OF NEW JERSEY v. PAUL DOUGHERTY
Status: Unpublished
Summary:
FUENTES, P.J.A.D. Defendant Paul Dougherty appeals from the order of the Criminal Part which upheld the Attorney General's objection to his admission into the Pretrial Intervention (PTI) program. We affirm.
Docket No.: a3729-18
Decided: 2021-01-15
Caption: HSBC BANK U.S.A NATIONAL ASSOCIATION v. CAROL L. SHEPPARD
Status: Unpublished
Summary:
PER CURIAM In December 2007, defendants Carol and William Sheppard defaulted on their payment obligations under a $1155,000 note and mortgage on their Fanwood property. Plaintiff HSBC Bank, U.S.A., National Association, as Trustee for Nomura Home Equity Loans, Inc., Home Equity Trust, Series 2005-HE1, to which the mortgage was assigned in March 2015, filed a foreclosure complaint in February 2018 leading to the entry of default, entry of final judgment and a March 2019 sheriff's sale. Defendants appeal from Judge Joseph P. Perfilio's orders denying their motion to vacate the final judgment and their motion to set aside the sheriff's sale. Reviewing the judge's decisions for abuse of discretion on both the motion to vacate the judgment, U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 466-67 (2012), and the motion to set aside the sheriff's sale, U.S. ex rel. U.S. Dep't of Agric. v. Scurry, 193 N.J. 492, 502-03 (2008), we affirm.
Docket No.: a4326-18
Decided: 2021-01-15
Caption: PRD MANAGEMENT, INC v. WILLIAM RICHARDSON
Status: Unpublished
Summary:
PER CURIAM This appeal arises out of disputes between a landlord and a tenant. The landlord, PRD Management, Inc. t/a Taunton Run Village (PRD), filed an action to evict the tenant, William Richardson.
Docket No.: a0841-18
Decided: 2021-01-14
Caption: R.K v. J.L
Status: Unpublished
Summary:
PER CURIAM In this custody dispute, defendant J.L.1, who is self-represented, appeals from an October 1, 2018 order denying her full custody of the parties' minor son and his removal to Connecticut. We affirm, substantially for the reasons set forth in Judge Deborah L. Gramiccioni's thoughtful and thorough forty-three-
page written opinion. We add only the following brief comments.
Docket No.: a0972-18
Decided: 2021-01-14
Caption: STATE OF NEW JERSEY v. MUTAH N. BROWN
Status: Unpublished
Summary:
On appeal, defendant raises the following arguments: POINT I REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED DEFENDANT A FAIR TRIAL. (Partially Raised Below). A. In Summation, the Prosecutor Improperly Bolstered the Sole Officer to Identify Defendant as the Driver by Arguing that the Officer Received Special Training to "Remember Details." B. The State Engaged in Prosecutorial Misconduct by Repeatedly Asking the Jury to Have Sympathy for the Victim. (Not Raised Below). POINT II THE TRIAL COURT ERRED IN ITS FINAL CHARGE BY FAILING TO CHARGE THE JURY ABOUT THIRD-PARTY GUILT, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not Raised Below). POINT III DEFENDANT'S SENTENCE OF [TWENTY-THREE] YEARS WITH [TWELVE] YEARS AND EIGHT MONTHS OF PAROLE INELIGIBILITY IS EXCESSIVE BECAUSE THE TRIAL COURT ERRED IN ITS FINDING AND WEIGHING OF AGGRAVATING AND MITIGATING FACTORS. In Point IA., defendant renews his objection to the State's summation, contending the prosecutor's reference to Officer Ortiz's training was "not based A-0972-18T1 7 on any evidence in the record," and constituted prosecutorial misconduct. Further, he argues in Point IB. that the prosecutor's opening and closing statements amounted to misconduct to the extent his statements were "permeated with strong appeals to the jurors' sympathies for [the victim]." We are not persuaded. "Prosecutorial misconduct may be grounds for reversal where the misconduct 'was so egregious that it deprived the defendant of a fair trial.'" State v. Kane, 449 N.J. Super. 119, 140 (App. Div. 2017) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). While a prosecutor "in . . . summation may suggest legitimate inferences to be drawn from the record," a prosecutor "commits misconduct when [the summation] goes beyond the facts before the jury." State v. Harris, 156 N.J. 122, 194 (1998). "[T]he challenged comment 'must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" State v. McGuire, 419 N.J. Super. 88, 150 (App. Div. 2011) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)). Prosecutors are "afforded considerable leeway to make forceful arguments in summation." State v. Bradshaw, 195 N.J. 493, 510 (2008) (citing Bender v. Adelson, 187 N.J. 411, 431 (2006)). Additionally, prosecutors may "argue the A-0972-18T1 8 merits of the State's case 'graphically and forcefully.'" State v. Smith, 212 N.J. 365, 403 (2012) (quoting State v. Feaster, 156 N.J. 1, 58 (1998)); see also State v. Morton, 155 N.J. 383, 457 (1998) (finding a prosecutor's description of the defendant as a "cold-blooded killer" was not reversible error because the evidence supported the contention and the argument was made in response to the defendant's argument). Prosecutors may not make "inflammatory and highly emotional" appeals that have the capacity to distract the jury from a fair consideration of the evidence of guilt. State v. W.L., Sr., 292 N.J. Super. 100, 111 (App. Div. 1996) (quoting State v. Marshall, 123 N.J. 1, 161 (1991)). Further, prosecutors should not vouch for the credibility of a witness. Frost, 158 N.J. at 85. But as long as a prosecutor's "comments are based on the evidence in the case and the reasonable inferences from that evidence, the prosecutor's comments 'will afford no ground for reversal.'" Bradshaw, 195 N.J. at 510 (quoting State v. Johnson, 31 N.J. 489, 510 (1960)). When reviewing a trial record for alleged prosecutorial misconduct, we consider a number of factors, such as: whether "timely and proper objections" were raised, Frost, [] 158 N.J. at 83; whether the offending remarks "were withdrawn promptly," ibid.; and whether the trial court struck the remarks and provided A-0972-18T1 9 appropriate instructions to the jury, ibid. Additionally, [we] consider whether the offending remarks were prompted by comments in the summation of defense counsel. (citations omitted). If . . . it is apparent . . . the remarks were sufficiently egregious, a new trial is appropriate, even in the face of overwhelming evidence that a defendant may, in fact, be guilty. [Id.] at 87 (noting overwhelming evidence was no justification to deprive defendant of constitutionally guaranteed right to fair trial). In contrast, if the prosecutorial remarks were not "so egregious that [they] deprived the defendant of a fair trial[,]" reversal is inappropriate. Id. at 83 (alterations in original); see State v. Ramseur, 106 N.J. 123, 322 (1987). [Smith, 212 N.J. at 403-04.] Because the prosecutor's closing remark about Officer Ortiz's training elicited an objection from the defense at trial, we review the comment under the harmful error standard. See State v. Lazo, 209 N.J. 9, 12 (2012). Thus, we look to "whether in all the circumstances there [is] a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits." State v. Macon, 57 N.J. 325, 338 (1971). Under this standard, a defendant must demonstrate "some degree of possibility that [the error] led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973) (citing Macon, 57 N.J. at 335-36); see also R. 2:10-2. Here, we do not conclude the possibility of an unjust result exists. A-0972-18T1 10 Preliminarily, we note that when defendant's attorney objected to the prosecutor's reference to Officer Ortiz's training, she mischaracterized the remark, much as defendant does in his heading under Point IA. Specifically, defense counsel claimed the prosecutor stated Officer Ortiz "had special training to make [an] identification." However, the prosecutor instead stated that Officer Ortiz is "a police officer, so he's trained to remember details." We are satisfied the prosecutor's mention of Officer Ortiz's training was a legitimate inference to be drawn from the evidence. Indeed, during Officer Ortiz's time on the witness stand, Anderson's defense counsel asked Officer Ortiz about his training, including training as it related to the preparation of his reports. The defense elicited the fact the officer was trained at the academy, had been on the force two years and "when . . . doing a report" he had "learn[ed] about the ABC's." Officer Ortiz's responses also affirmed he wanted his reports to be "accurate," "brief," and "complete.
Docket No.: a2461-19
Decided: 2021-01-14
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.S.M. and A.H.B and M.M.L
Status: Unpublished
Summary:
PER CURIAM Defendant M.M.L. appeals from the Family Part's January 31, 2020 guardianship judgment, terminating his parental rights to his son, R.M.M. (Richard).1 Judge Linda L. Cavanaugh entered the judgment for the reasons stated in her February 10, 2020 fifty-page opinion in which she concluded that plaintiff, the New Jersey Division of Child Protection and Permanency (Division) proved by clear and convincing evidence the four prongs of the best interest of the child test under N.J.S.A. 30:4C-15.19(a), warranting the termination of defendant's parental rights. 2 On appeal, defendant contends that the Division failed to prove prongs three and four of the statutory test by clear and convincing evidence. We find no merit to defendant's contentions and affirm substantially for the reasons stated by Judge Cavanaugh in her comprehensive written decision.
Docket No.: a2656-19
Decided: 2021-01-14
Caption: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.C and C.A.R
Status: Unpublished
Summary:
PER CURIAM Defendant D.C. (the mother) appeals from a January 28, 2020 order terminating her parental rights to her son C.E.R. (the child), who was born in 2012.1 The mother has a substance abuse problem and a history of homelessness. She was living with her son in a car when the Division of Child Protection and Permanency (the Division) removed the child. The mother also has a criminal record, including a conviction for child endangerment. Throughout this litigation she has demonstrated little to no interest in reunifying with her son, having repeatedly failed to take advantage of offered services and visitation opportunities. Meanwhile, Division workers consistently reported that the child adapted well and appeared to be thriving and bonding with his resource family, who wish to adopt as opposed to pursuing kinship legal guardianship. The child advanced developmentally in the resource home, with marked improvements to his previously limited vocabulary and motor skills. Judge Honora O'Brien-Kilgallen presided over the guardianship trial, entered judgment, and rendered a thorough and detailed oral opinion. We affirm substantially for the reasons stated by Judge O'Brien-Kilgallen on the record.
Docket No.: a3618-18
Decided: 2021-01-14
Caption: GRACE MCMAHON v. BOARD OF TRUSTEES TEACHERS' PENSION AND ANNUITY FUND,1
Status: Unpublished
Summary:
PER CURIAM Grace McMahon appeals pro se from an April 5, 2019 final agency decision of the Board of Trustees (Board) of the Teachers' Pension and Annuity Fund (TPAF), denying her application for a refund of payments made toward the outstanding balance on her pension loan. McMahon contends she paid the loan in full; she alternatively argues "the alleged outstanding loan is a time - barred debt." We affirm.
Docket No.: a4297-17
Decided: 2021-01-14
Caption: STATE OF NEW JERSEY v. L. A. W.
Status: Unpublished
Summary:
PER CURIAM Defendant was tried before a jury and found guilty of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1), and other offenses. She was sentenced to an aggregate eight-year term of incarceration, with an eighty- five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction dated April 6, 2018. We affirm.
Docket No.: a4800-18
Decided: 2021-01-14
Caption: JAINARINE LALBACHAN v. BOARD OF REVIEW DEPARTMENT OF LABOR and APIDEL TECHNOLOGIES LLC
Status: Unpublished
Summary:
PER CURIAM Claimant Jainarine Lalbachan appeals from a final agency decision by the Board of Review (Board), which determined that he was ineligible for unemployment benefits because he left work voluntarily without good cause attributable to such work. N.J.S.A. 43:21-5(a). We affirm.
Docket No.: a5021-17
Decided: 2021-01-14
Caption: D.S v. J.S
Status: Unpublished
Summary:
OSTRER, J.A.D. Plaintiff D.S. (Doris), appeals from the trial court's order dismissing her domestic violence complaint against her husband J.S. (John), and denying her a final restraining order under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.1 Doris principally contends the court mistakenly barred crucial evidence, undervalued other evidence, and erred when it concluded that, as a matter of law, John did not commit a predicate act of assault, N.J.S.A. 2C:25-19; N.J.S.A. 2C:12-1. She contends the court's legal conclusion was at odds with its own factual finding that, during a tussle over a cellphone, John grabbed Doris by her hair and pushed her head against the steering wheel of the car she was driving. We are constrained to remand, as we are convinced the court overlooked evidence of her injuries, and failed to explain its conclusion that John did not assault Doris, or, if he did, Doris did not need the protection of a final restraining order (FRO).
Docket No.: a5714-17
Decided: 2021-01-14
Caption: R.L v. L.A.W.
Status: Unpublished
Summary:
PER CURIAM Defendant appeals from an amended final restraining order (FRO), entered by the Family Part on June 28, 2018, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse the provision of the June 28, 2018 order, which prohibits defendant from having any communications with two of her children, and remand for further proceedings on plaintiff's motion to modify the existing FRO.