Recent Decisions of the New Jersey Appellate Courts
from 2018-01-10 to 2018-01-24

Supreme Court Decisions


Docket No.: a_96_15
Decided: 2018-01-22
Caption: State v. Karlton L. Bailey
Summary:
TIMPONE, J., writing for the Court. The Court considers the propriety of defendant’s conviction under the Certain Persons Not to Have Weapons Statute, N.J.S.A. 2C:39-7, when the redacted evidence prevented the jury from confirming that defendant’s prior conviction was indeed an enumerated offense under the statute. Carlos Guerrero and Alex Mejia were walking in New Brunswick after a night of drinking. A video surveillance camera captured defendant Karlton Bailey approaching Guerrero from behind and putting his hand in Guerrero’s back pocket. Mejia responded by running across the street to confront defendant. The conflict quickly turned violent. Upon seeing defendant draw a gun, Mejia held his hands up in the air and backed away. Defendant followed Mejia into the street, struck him in the face, searched his pockets, and fled the scene. A Middlesex County Grand Jury returned an indictment (Indictment 1650) against defendant, charging him with second-degree possession of a firearm by certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b). A second indictment (Indictment 1317) charged defendant with robbery, assault, and weapons offenses. In February 2013, a jury found defendant guilty on all counts of Indictment 1317. A separate jury trial on the certain persons indictment immediately followed.

click here to get this case.


Docket No.: a_10_16
Decided: 2018-01-18
Caption: State v. Alexis Sanchez-Medina
Summary:
RABNER, C.J., writing for the Court. The Court considers whether defendant was denied his right to a fair trial on sexual assault charges. First, the prosecution asked defendant whether he had come to the United States legally. Over an objection, the jury learned that defendant had not. Second, although the allegations related to different incidents that involved four separate victims, the case rested heavily on an identification by a single witness. Despite that, neither party requested a jury charge on eyewitness identification, and the trial court did not instruct the jury on the subject.

click here to get this case.


Docket No.: a_14_16
Decided: 2018-01-11
Caption: State v. Ryan Sutherland
Summary:
LaVECCHIA, J., writing for the Court. The Court considers the constitutionality of an officerâs stop of a motor vehicle under the belief that the vehicle was in violation of N.J.S.A. 39:3-61(a) and -66 because one of the vehicle's taillights was not operational

click here to get this case.


Docket No.: a_4_16
Decided: 2018-01-10
Caption: Doreen Hayes v. Barbara Delamotte
Summary:
SOLOMON, J., writing for the Court. The Court considers whether the trial court’s decision to prevent plaintiff from replaying a portion of the deposition by the defense expert during summation resulted in a miscarriage of justice, such that it was proper for the trial court to grant plaintiff’s motion for a new trial. The Court also considers plaintiff’s argument that the defense expert’s videotaped testimony regarding the reports of non-testifying experts was inadmissible hearsay. In 2001, plaintiff Doreen Hayes was diagnosed with a syrinx in her thoracic spine. MRIs were taken to monitor the syrinx’s growth every six to nine months. That same year, plaintiff suffered a neck injury in an accident, and ultimately underwent surgery for a fusion at her C4-5 and C5-6 vertebrae. Plaintiff’s last MRI, prior to the accident at issue in this case, was taken in May 2007. In 2008, plaintiff was a passenger in a vehicle operated by her mother, defendant Barbara Delamotte. The vehicle left the roadway and collided with trees and a telephone pole, allegedly to avoid a collision with an unidentified vehicle. After the 2008 accident, plaintiff consulted a neurosurgeon. The neurosurgeon examined plaintiff, ordered an MRI, and ultimately performed spinal fusion surgery on plaintiff’s C6-7 and C7-T1 vertebrae. Plaintiff filed a complaint claiming that her mother and the unidentified vehicle caused the 2008 accident. Before trial, the defense retained Dr. Arthur Vasen, an orthopedic surgeon, to examine plaintiff and review her medical records, including cervical MRIs taken before and after the 2008 accident. The defense took Dr. Vasen’s videotaped deposition for use at trial rather than call him to give in-court testimony. At trial, plaintiff moved in limine to have portions of Dr. Vasen’s deposition referring to reports of non-testifying doctors stricken from the video. The trial court denied the motion. At trial, defendants presented Dr. Vasen’s videotaped deposition. Prior to playing Dr. Vasen’s testimony, the trial court gave the jury a limiting instruction regarding the use of non-testifying experts’ opinions. Dr. Vasen testified that there were no differences between the MRIs purportedly taken on May 4, 2007 (before the accident) and May 17, 2008 (after the accident). However, the films that Dr. Vasen showed in the tape were both labeled May 17, 2008. The parties did not address that issue at the deposition or before the close of evidence at trial. At the conclusion of the parties’ evidence, plaintiff’s counsel requested the opportunity to replay Dr. Vasen’s testimony during summation, and comment on the testimony, to demonstrate to the jury that the doctor compared MRI films marked with the same date. Defendant objected to the request. After conducting a N.J.R.E. 104(a) hearing and reviewing Dr. Vasen’s videotaped deposition outside the presence of the jury, the court upheld defendant’s objection, reasoning that there was no expert testimony to differentiate between the films or to evaluate their potential mislabeling. In its charge to the jury, the trial court provided an additional limiting instruction as to the reports of non-testifying experts. Ultimately, the jury determined that plaintiff’s mother was solely responsible for the 2008 accident but found that plaintiff did not sustain a permanent injury proximately caused by that accident. Plaintiff moved for a new trial. The trial court granted the motion, concluding that plaintiff did not receive substantial justice because the jury gave greater weight to Dr. Vasen’s testimony than to that of plaintiff’s expert. Thereafter, a second trial was conducted, concerning only the issue of whether plaintiff sustained a permanent injury as a result of the 2008 accident. Dr. Vasen’s videotaped deposition was retaken for use at the second trial. Although Dr. Vasen resolved the issues as to the dates of the MRIs he reviewed, plaintiff once again moved in limine to bar Dr. Vasen’s testimony about the findings of non-testifying doctors. This time, the court granted plaintiff’s motion. After the second trial, the jury found that plaintiff sustained a permanent injury proximately caused by the 2008 accident and awarded her $250,000 in damages. 1 Defendant appealed. The Appellate Division found that the trial court improperly granted a new trial and reinstated the jury’s verdict in favor of defendant from the first trial. The Court granted plaintiff’s petition for certification. 227 N.J. 376 (2016). HELD: Because the trial court’s error in preventing plaintiff from replaying a portion of the deposition during summation at the first trial resulted in a miscarriage of justice, the trial court properly granted plaintiff’s motion for a new trial. Further, the trial court erred in permitting Dr. Vasen to bolster his testimony using “congruent” opinions in reports of non-testifying doctors during the first trial rather than simply explain the sources of information used in forming his opinion. 1. A trial court grants a motion for a new trial only if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law. A miscarriage of justice can arise when there is a manifest lack of inherently credible evidence to support the finding, when there has been an obvious overlooking or under-valuation of crucial evidence, or when the case culminates in a clearly unjust result. (pp. 12-14) 2. In Condella v. Cumberland Farms, Inc., the trial court found that “it is within the trial court’s discretion to allow counsel to show portions of the videotaped trial testimony and make comment thereon during summation.” 298 N.J. Super. 531, 535 (Law Div. 1996). The Court agrees with that holding and also that the following safeguards suggested in Condella should be considered when portions of videotaped trial testimony are utilized during summation. First, the replay during summation “should not be so lengthy as to constitute a second trial emphasizing only one litigant’s side of the case.” Id. at 536. Second, “to guard against the edited portions of the videotape misstating the evidence” and to prevent them from being “presented out of context,” the proponent should raise the issue with the court before playing an edited part of the tape. Ibid. (pp. 14-16) 3. Here, plaintiff requested to have brief portions of Dr. Vasen’s testimony replayed to demonstrate that the MRIs compared by the expert bore the same date. Use of those portions would not have constituted a “second trial” overemphasizing plaintiff’s case. The proposed use of the video would not have been an attempt to misuse Dr. Vasen’s testimony, but merely a legitimate attempt to emphasize a certain aspect of his testimony. Lastly, the trial court conducted a Rule 104 hearing and reviewed the video. The trial court did not make a finding and defendant did not claim that the video had been edited or that Dr. Vasen’s testimony was taken out of context. The portion of the videotaped deposition sought to be played thus met the requirements of Condella, which the Court adopts as modified. Dr. Vasen’s videotaped deposition was in evidence once it was played at trial. As with any other piece of evidence adduced at trial, counsel was permitted to fairly comment upon it and play portions during closing argument. Merely pointing to dates on MRIs or other images does not require expert testimony because reading the dates and realizing that they are the same is not beyond the ken of the average juror. (pp. 16-18) 4. In sum, counsel may refer to, read, or play portions of videotaped fact or expert testimony given at trial during closing, as long as (1) counsel’s comments are confined to the facts shown or reasonably suggested by the evidence introduced during the course of the trial, and (2) the concerns set forth in Condella are met. Plaintiff was entitled to replay the deposition and draw the jury’s attention to the discord between the dates stamped on the MRIs to which Dr. Vasen pointed and the dates he ascribed to them. Because the trial turned on the weight assigned to expert testimony, the denial of that opportunity worked an injustice, and a new trial was necessary. (pp. 18-21) 5. Although a testifying expert may detail the reasons underlying his or her opinion and the sources upon which his or her opinion is based, an expert witness should not be allowed to relate the opinions of a nontestifying expert merely because those opinions are congruent with the ones he has reached. Notwithstanding the cautionary instruction given, the trial court erred in permitting Dr. Vasen to bolster his testimony using “congruent” opinions in reports of non-testifying doctors during the first trial rather than simply explain the sources of information used in formulating his opinion. (pp. 21-23) The judgment of the Appellate Division is REVERSED, and the jury’s verdict in favor of plaintiff following the second trial is REINSTATED. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ- VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion. 2 SUPREME COURT OF NEW JERSEY A-4 September Term 2016 077819 DOREEN HAYES, Plaintiff-Appellant, v. BARBARA DELAMOTTE, Defendant-Respondent, and GEICO INSURANCE COMPANY1, Defendant. Argued September 12, 2017 – Decided January 10, 2018 On certification to the Superior Court, Appellate Division. Kimberly L. Gozsa argued the cause for appellant (Levinson Axelrod, attorneys; Kimberly L. Gozsa, on the brief). Stephen A. Rudolph argued the cause for respondent (Rudolph & Kayal, attorneys; Stephen A. Rudolph, on the brief). Donald A. Caminiti argued the cause for amicus curiae New Jersey Association for Justice (Breslin & Breslin, attorneys; Donald A. Caminiti and Jessica E. Choper, on the brief). 1 Plaintiff’s original complaint included GEICO Insurance Company, but the party’s name was subsequently amended to GEICO Insurance Group. 1 JUSTICE SOLOMON delivered the opinion of the Court. Following an automobile accident, plaintiff Doreen Hayes filed a complaint against Barbara Delamotte and the Geico Insurance Company (collectively, defendants) seeking damages for personal injuries. At the first jury trial, defendants presented, by videotaped deposition, the expert testimony of an orthopedic surgeon who had examined plaintiff. Defendants’ expert compared what he described as two different Magnetic Resonance Images (MRIs) of plaintiff’s cervical spine, one that he identified as a pre-accident image taken in 2007 and one that he identified as an image taken after the 2008 accident. The doctor also testified, over plaintiff’s objection, to the opinions contained in reports of non-testifying physicians. Although the doctor identified the MRIs he referenced as pre- and post-accident images, the MRIs, which were labeled, bore the same post-accident “Exam Date.” The parties did not address the MRI labeling issue at the time of the deposition or during trial. Plaintiff’s counsel, however, sought to replay a portion of the videotaped deposition during summation to show that both MRIs bore labels reflecting the same post-accident date. Defense counsel objected. The trial court denied plaintiff’s request, reasoning that expert testimony would be necessary to establish that the MRIs in the video were in fact the same. 2 The trial resulted in a judgment in favor of defendants. Plaintiff moved for a new trial, which was granted by the trial court on the ground that plaintiff “did not receive substantial justice” because “the jury gave greater weight” to the testimony of defendants’ expert than to that of plaintiff’s expert. During the second trial, the defense expert testified again via a video deposition taken for use at the second trial. The second trial ended in a jury verdict in favor of plaintiff. Defendant appealed, and the Appellate Division reversed. The appellate panel concluded that the trial court improperly granted plaintiff’s motion for a new trial and reinstated the jury’s finding from the first trial in favor of defendants. We now reverse the judgment of the Appellate Division and reinstate the jury’s verdict in favor of plaintiff following the second trial. Because the trial court’s error in preventing plaintiff from replaying a portion of the deposition during summation at the first trial resulted in a miscarriage of justice, the trial court properly granted plaintiff’s motion for a new trial. I. A. We derive the facts pertinent to this appeal from the record of the first trial. 3 In 2001, prior to the accident and injury at issue, plaintiff was diagnosed with a syrinx, or fluid-filled hole, in her thoracic spine, which caused back, chest, neck, arm, and leg pain. MRIs were taken to monitor the syrinx’s growth every six to nine months. That same year, plaintiff suffered a neck injury in an accident, and ultimately underwent surgery for a cervical fusion at her C4-5 and C5-6 vertebrae in 2002. Following that surgery, plaintiff received physical therapy but no other continued treatment. Plaintiff’s last MRI, prior to the accident at issue in this case, was taken in May 2007. In 2008, plaintiff was a front-seat passenger in a vehicle operated by her mother, defendant Barbara Delamotte. The vehicle left the roadway and collided with trees and a telephone pole, allegedly to avoid a collision with an unidentified vehicle. Emergency personnel extracted plaintiff and her mother from their car using the “jaws of life” and transported them to the hospital, where they were treated and released. After the 2008 accident, plaintiff’s family physician provided treatment and ordered a cervical MRI. Because plaintiff’s condition did not improve, she consulted a pain management specialist, an orthopedic surgeon, and a neurosurgeon. The neurosurgeon, Dr. Robert Sabo, examined plaintiff, ordered another MRI, and ultimately performed spinal fusion surgery on plaintiff’s C6-7 and C7-T1 vertebrae. 4 B. Plaintiff filed a complaint claiming that her mother and the unidentified vehicle caused the 2008 accident. Plaintiff alleged that she sustained permanent injuries in that accident, and her complaint named Delamotte and plaintiff’s own insurance carrier, GEICO Insurance Company, with whom plaintiff had uninsured motorist coverage, as defendants, along with “John Doe” defendants connected with the unknown vehicle. Before trial, defendants retained Dr. Arthur Vasen, an orthopedic surgeon, to examine plaintiff and review her medical records, including cervical MRIs taken before and after the 2008 accident. Defendants took Dr. Vasen’s videotaped deposition for use at trial rather than call him to give in-court testimony. At trial, plaintiff moved in limine to have portions of Dr. Vasen’s deposition referring to reports of non-testifying doctors stricken from the video, arguing that those reports presented opinions on complex medical issues and that plaintiff’s counsel was unable to cross-examine those experts. The trial court denied the motion. At trial, defendants presented Dr. Vasen’s videotaped deposition. Prior to playing Dr. Vasen’s testimony, the trial court gave the jury a limiting instruction regarding the use of non-testifying experts’ opinions. The trial court explained, “I instruct you as the jury in this case you are not to consider 5 any such out of Court statements by any non-testifying experts as substantive proof of the content of those statements.”2 Dr. Vasen testified that there were no differences between the MRIs purportedly taken on May 4, 2007 (before the accident) and May 17, 2008 (after the accident). However, the films that Dr. Vasen showed in the tape were both labeled May 17, 2008. The parties did not address that issue at Dr. Vasen’s deposition or before the close of evidence at trial. At the conclusion of the parties’ evidence, plaintiff’s counsel requested the opportunity to replay Dr. Vasen’s testimony during summation, and comment on the testimony, to demonstrate to the jury that the doctor compared MRI films marked with the same date.3 Defendant objected to the request. After conducting a N.J.R.E. 104(a) hearing and reviewing Dr. Vasen’s videotaped deposition outside the presence of the jury, the trial court upheld defendant’s objection to plaintiff’s showing and commenting on a part of the doctor’s testimony during summation. The judge reasoned that there was no expert 2 On direct examination, plaintiff’s expert, Dr. Sabo, discussed the treatment plaintiff received while under the care of other doctors. Dr. Sabo was also asked about the findings of other non-testifying doctors during cross-examination. The court gave the same instruction before the testimony of Dr. Sabo. 3 During arguments on the objection, defense counsel noted that, in addition to the issue with the dates, the MRIs were labeled “lumbar views” when they were, in fact, “cervical films.” 6 testimony from Dr. Vasen, Dr. Sabo, or the radiologist who took the MRIs to differentiate between the films or to evaluate their potential mislabeling. C. Prior to the parties’ closings, the trial court found that defendants’ negligence caused the accident as a matter of law. Based on that finding, the court explained that the jury would have to assess the percentage of fault attributable to plaintiff’s mother and the unknown vehicle and to determine whether plaintiff sustained a permanent injury proximately caused by the 2008 accident. In its charge to the jury, the trial court provided an additional limiting instruction as to the reports of non-testifying experts that mirrored its earlier instruction. Ultimately, the jury determined that plaintiff’s mother was solely responsible for the 2008 accident but found that plaintiff did not sustain a permanent injury proximately caused by that accident. Therefore, judgment was entered in favor of defendants. Plaintiff moved for a new trial, arguing that it was reversible error for the court to bar counsel from showing a part of Dr. Vasen’s videotaped testimony or commenting on Dr. Vasen’s comparison of the MRI films during summation. In assessing plaintiff’s argument, the trial court found that its decision to bar the video replay was legally correct. The court 7 reasoned that replaying the testimony would have been prejudicial. Despite those findings, the court granted plaintiff’s motion for a new trial, concluding that plaintiff “did not receive substantial justice” because “the jury gave greater weight to Dr. Vasen’s testimony than to Dr. Sabo.” Thereafter, a second trial was conducted. Because the first trial resulted in a determination that plaintiff’s mother (hereinafter “defendant”) was solely responsible for the accident, the second trial concerned only the issue of whether plaintiff sustained a permanent injury as a result of the 2008 accident. Dr. Vasen’s videotaped deposition was retaken for use at the second trial. Although Dr. Vasen resolved the issues as to the dates of the MRIs he reviewed, plaintiff once again moved in limine to bar Dr. Vasen’s testimony about the findings of non-testifying doctors. This time, the court granted plaintiff’s motion in limine, citing Agha v. Feiner, 198 N.J. 50 (2009), on the ground that the opinions of the non-testifying experts were being used improperly to validate Dr. Vasen’s opinions. After the second trial, the jury found that plaintiff sustained a permanent injury proximately caused by the 2008 accident and awarded her $250,000 in damages. Defendant appealed. The Appellate Division found that the trial court improperly granted a new trial and reinstated the jury’s verdict in favor of defendant from the first trial. 8 The appellate panel noted that “there was no credible evidence or expert testimony in the record that the MRI films were incorrectly used,” and determined that the trial court “aptly held that an expert would have been required to testify that [Dr.] Vasen was reviewing the same MRI films or that there was a mislabeling in order to challenge his credibility.” The panel agreed with the trial court that the decision to bar the video replay was legally correct, because it would have been prejudicial to allow the testimony to be replayed. The appellate panel determined that, arguably, the video replay would have given rise to unfair surprise. The Appellate Division also held that the trial court usurped the jury’s function as factfinder when it found that the “jury gave greater weight to Dr. Vasen’s testimony than to Dr. Sabo.” As a result, the panel held there was no ruling in the first trial that prejudiced either party, reversed the trial court’s grant of a new trial, and reinstated the jury’s verdict in favor of defendants. This Court granted plaintiff’s petition for certification. 227 N.J. 376 (2016). We granted leave to appear as amicus curiae to the New Jersey Association for Justice (NJAJ). II. A. 9 Plaintiff claims that the Appellate Division erred in reversing the trial court’s order granting a new trial and in reinstating the jury’s verdict in favor of defendant. Plaintiff asserts that an attorney may comment in summation on any evidence admitted at trial. Relying on Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 535–36 (Law Div. 1996), plaintiff argues that attorneys can replay videotaped testimony during summation because it is actual testimony admitted at trial. Plaintiff also argues that, at the first trial, defendant improperly elicited medical opinions of non-testifying doctors that were consistent with those of defendants’ expert, Dr. Vasen. Thus, plaintiff asserts, the panel’s ruling conflicts with James v. Ruiz, 440 N.J. Super. 45, 51 (App. Div. 2015), in which the Appellate Division held that counsel should not ask a question for the purpose of having the jury consider absent experts’ hearsay opinions about complex and disputed matters. The NJAJ, aligned with plaintiff, first argues that the video replay did not “constitute the introduction of new evidence” and as such counsel should have been permitted to play Dr. Vasen’s testimony without additional “expert testimony to address any inconsistencies in the evidence presented.” Second, the NJAJ asserts that the trial court properly precluded the admission of non-testifying experts’ hearsay opinions in the 10 second trial, pursuant to James, 440 N.J. Super at 51. In raising its first argument, the NJAJ emphasizes that Dr. Vasen’s video testimony was introduced by the defense and could thus be properly replayed during summation by plaintiff. In addition, the NJAJ notes that plaintiff “was not obligated to alter or cure any deficiencies in the testimony of defendant’s medical expert.” In the alternative, the NJAJ posits that if counsel were required to have expert testimony to note the inconsistencies with the MRIs, Dr. Vasen’s testimony should have been stricken in its entirety. B. Defendant points out that the trial court first indicated that it did not know what swayed the jury but then, in granting a new trial, held that “it is clear that the jury gave greater weight to Dr. Vasen’s testimony than to Dr. Sabo.” Defendant agrees with the appellate panel that Dr. Vasen’s testimony “was not the exclusive means by which the jury could have reached its verdict” and that the verdict could have been based on a number of considerations, including the jury’s rejection of Dr. Sabo’s testimony or plaintiff’s testimony. Finally, defendant highlights the panel’s agreement that the trial judge’s “decision to bar the video replay was legally correct because ‘a video replay during summation would have been prejudicial given the lack of testimony by any medical expert or 11 radiologist who could have explained the discrepancy in the films displayed by [Dr.] Vasen during his testimony.’” III. A. “A jury verdict is entitled to considerable deference and ‘should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.’” Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)). A trial court therefore grants a motion for a new trial only “if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.” Crawn v. Campo, 136 N.J. 494, 511-12 (1994) (quoting R. 4:49-1(a)). “The standard of review on appeal from decisions on motions for a new trial is the same as that governing the trial judge -- whether there was a miscarriage of justice under the law.” Risko, 206 N.J. at 522; accord R. 2:10-1 (“The trial court’s ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the 12 law.”). We have explained that a “miscarriage of justice” can arise when there is a “manifest lack of inherently credible evidence to support the finding,” when there has been an “obvious overlooking or under-valuation of crucial evidence,” or when the case culminates in “a clearly unjust result.” Risko, 206 N.J. at 521-22 (quoting Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996)). Here, the trial court found that it had properly barred plaintiff’s counsel from replaying the video because the request to replay the video “was not based on any evidential foundation established in the trial record” and because “the showing would be highly prejudicial to the defendants.” The court found, nevertheless, “that if a new trial is not granted on at least the damages aspect of the case, the plaintiff herself would likely suffer an injustice” given that “the jury gave greater weight to Dr. Vasen’s testimony than to Dr. Sabo[’s testimony].” We have noted that, when evaluating the decision to grant or deny a new trial, “an appellate court must give ‘due deference’ to the trial court’s ‘feel of the case.’” Id. at 522 (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008)). That is not to say, however, that we must accept the trial court’s legal reasoning: “[a] trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.” Manalapan Realty, L.P. v. 13 Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995). We also note that “it is well-settled that appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion.” Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) (collecting cases). A trial court judgment that reaches the proper conclusion must be affirmed even if it is based on the wrong reasoning. Isko v. Planning Bd., 51 N.J. 162, 175 (1968); see also MacFadden v. MacFadden, 49 N.J. Super. 356, 359 (App. Div. 1958) (“The written conclusions or opinion of a court do not have the effect of a judgment. From them no appeal will lie. ‘It is only what a court adjudicates, not what it says in an opinion, that has any direct legal effect.’” (quoting Suburban Dep’t Stores v. City of East Orange, 47 N.J. Super. 472, 479 (App. Div. 1957))). B. With those principles in mind, we turn to the evidentiary determination that plaintiff claims created an injustice and supports the trial court’s grant of a new trial: the decision to bar her from replaying and commenting on Dr. Vasen’s deposition during summation. 1. “[C]ounsel is allowed broad latitude in summation.” Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999). 14 That latitude is not without its limits, and “counsel’s comments must be confined to the facts shown or reasonably suggested by the evidence introduced during the course of the trial.” Ibid.; accord State v. Bogen, 13 N.J. 137, 140 (1953). Further, counsel “should not misstate the evidence nor distort the factual picture.” Colucci, 326 N.J. Super. at 177 (quoting Matthews v. Nelson, 57 N.J. Super. 515, 521 (App. Div. 1959)). Within those limits, however, “[c]ounsel may argue from the evidence any conclusion which a jury is free to reach.” Ibid. “Indeed, counsel may draw conclusions even if the inferences that the jury is asked to make are improbable. . . .” Ibid. In Condella, the trial court found that “it is within the trial court’s discretion to allow counsel to show portions of the videotaped trial testimony and make comment thereon during summation.” 298 N.J. Super. at 535. We agree with that holding but note that the exercise of such discretion depends upon whether counsel’s comments are “confined to the facts shown or reasonably suggested by the evidence introduced during the course of the trial.” Colucci, 326 N.J. Super. at 177; accord Bogen, 13 N.J. at 140. We also agree that the following safeguards suggested in Condella should be considered when portions of videotaped trial testimony are utilized during summation. First, the replay during summation “should not be so lengthy as to constitute a 15 second trial emphasizing only one litigant’s side of the case.” Condella, 298 N.J. Super. at 536. Second, “to guard against the edited portions of the videotape misstating the evidence” and to prevent them from being “presented out of context,” the proponent should raise the issue with the court before playing an edited part of the tape. Ibid.; see N.J.R.E. 104(a).4 Those safeguards ensure that one party’s side of the case is not “unduly emphasize[d]” over the other, Condella, 298 N.J. Super. at 536, and that any edited portions “are a fair and accurate representation of the witness’ testimony,” id. at 537. Here, plaintiff requested to have brief portions of Dr. Vasen’s testimony replayed to demonstrate that the MRIs compared by the expert bore the same date. Use of those portions would not have constituted a “second trial” overemphasizing plaintiff’s case. The proposed use of the video would not have been an attempt to misuse Dr. Vasen’s testimony, but merely a legitimate attempt to emphasize a certain aspect of his testimony, namely, the dates on the MRIs to which he pointed in 4 In Condella, the plaintiff requested permission to replay a portion of the defense expert’s testimony as well as defense counsel’s opening. 298 N.J. Super. at 533. The video at issue in Condella was taken via cameras in the courtroom. Ibid. The court granted the plaintiff’s request to replay the trial testimony, but denied the plaintiff’s request as to the defense’s opening statement. Here, Dr. Vasen’s testimony was recorded and presented as testimony at trial. We discern no difference between the request made in Condella related to trial testimony and the request in this case. 16 the video. Lastly, the trial court conducted a Rule 104 hearing and reviewed the video. In its opinion granting plaintiff’s motion for a new trial, the trial court found that the proposed video replay “was not overly lengthy” but because “the plaintiff’s application . . . was not based on any evidential foundation established in the trial record,” the replay “would misstate the evidence and mislead the jury.” However, the trial court did not make a finding and defendant did not claim that the video had been edited or that Dr. Vasen’s testimony was taken out of context. The portion of the videotaped deposition sought to be played thus met the requirements of Condella, which we now adopt as modified. We further find that Dr. Vasen’s videotaped deposition was in evidence once it was played at trial. As with any other piece of evidence adduced at trial, counsel was permitted to fairly comment upon it and play portions during closing argument. See Condella, 298 N.J. Super. at 535; see also State v. Muhammad, 359 N.J. Super. 361, 372-73 (App. Div. 2003) (concluding it was proper for a prosecutor to replay video testimony during summation in criminal matters). Counsel was free to argue the import of the dates on the MRIs and to draw conclusions from those dates, so long as those conclusions were grounded in the evidence. See Colucci, 326 N.J. Super. at 177. 17 We disagree with the determination “that an expert would have been required to testify that [Dr.] Vasen was reviewing the same MRI films or that there was a mislabeling in order to challenge his credibility.” Under this State’s jurisprudence, expert testimony “concern[s] a subject matter that is beyond the ken of the average juror.” State v. Kelly, 97 N.J. 178, 208 (1984). Merely pointing to dates on MRIs or other images does not require expert testimony because reading the dates and realizing that they are the same is not beyond the “ken of the average juror.” In sum, we hold that counsel may refer to, read, or play portions of videotaped fact or expert testimony given at trial during closing, as long as (1) “counsel’s comments [are] confined to the facts shown or reasonably suggested by the evidence introduced during the course of the trial,” Colucci, 326 N.J. Super. at 177, and (2) the concerns set forth in Condella are met. It was, in short, error to preclude the video replay during the first trial. We next consider whether that error produced a miscarriage of justice, warranting a new trial. 2. During both trials, the dispositive issue was whether plaintiff sustained a permanent injury proximately caused by the 2008 accident. That issue was fleshed out for the jury by the 18 testimony of plaintiff, plaintiff’s husband, and the parties’ expert witnesses. The parties’ experts came to opposite conclusions regarding the 2008 accident’s impact on plaintiff’s spine. Their testimony was key to the outcome of the first trial and the jury’s determination as to whether plaintiff sustained a permanent injury. We have concluded that the trial court abused its discretion by not allowing plaintiff to point out what was plainly visible on the videotaped testimony of Dr. Vasen played at trial -- that the MRIs examined and compared by Dr. Vasen bore the same date. Plaintiff’s counsel should have been able to raise that fact and argue that it undermines the reliability of Dr. Vasen’s testimony that plaintiff did not suffer a permanent injury in the 2008 accident. Because expert testimony was vital to the outcome of the trial, the trial court’s refusal to allow plaintiff’s counsel to replay a portion of Dr. Vasen’s deposition was an error that resulted in a “miscarriage of justice under the law,” warranting a new trial. R. 2:10-1. Defendant claims “it is unfair and inequitable for [p]laintiff to play any portion of Dr. Vasen’s video during summations, as that same opportunity was not available to defendant (to play portions of Dr. Sabo’s trial testimony, as he testified live).” However, it was defendant who chose to utilize a videotaped deposition of Dr. Vasen in lieu of in-court 19 testimony. In addition, both defendant and plaintiff were aware of the contents of the video. The fact that plaintiff chose to present Dr. Sabo’s testimony live does not make it “unfair” or “inequitable” for plaintiff to utilize Dr. Vasen’s videotaped deposition to her advantage during summation. Nor does defense counsel’s failure to discover the labeling discrepancy render plaintiff’s use of the video during summation “inequitable.” The Appellate Division found that, arguably, the replay would have constituted unfair surprise. Unfair surprise is a proper basis to exclude evidence not properly provided to the opposing party during discovery. See Balian v. Gen. Motors, 121 N.J. Super. 118, 127 (App. Div. 1972). The prohibition against unfair surprise prevents the introduction of evidence not properly disclosed by the opposing party, id. at 127, but does not prevent counsel from using to their strategic advantage the evidence properly presented at trial by an adversary. A party’s use of evidence in its closing argument cannot be an “unfair surprise” to the adverse party that properly produced, introduced, and admitted the same evidence at trial. Here, plaintiff was entitled to replay the deposition and draw the jury’s attention to the discord between the dates stamped on the MRIs to which Dr. Vasen pointed and the dates he ascribed to them. Because the trial turned on the weight assigned to expert testimony, we find that the denial of that 20 opportunity worked an injustice. Thus, although we disagree with the reason for which the trial court granted plaintiff’s motion for a new trial, we agree that a new trial was necessary. We therefore reverse the judgment of the Appellate Division and reinstate the verdict of the second jury. IV. Having resolved that a new trial was properly granted by the trial court, we address only briefly plaintiff’s argument that, at the first trial, Dr. Vasen’s videotaped testimony regarding the reports of non-testifying experts was inadmissible hearsay. A. “[U]nder N.J.R.E. 703, an expert may give the reasons for his opinion and the sources on which he relies, but that testimony [cannot] establish the substance of the report of a non-testifying [expert].” Agha, 198 N.J. at 64. In other words, an expert may not “alert[] the jury to evidence it would not otherwise be allowed to hear.” State v. Burris, 298 N.J. Super. 505, 512 (App. Div. 1997). That is because “expert testimony [cannot] serve as ‘a vehicle for the wholesale [introduction] of otherwise inadmissible evidence.’” Agha, 198 N.J. at 63 (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 480-81 (App. Div. 2002) (alteration in original) (internal quotation marks omitted), aff’d, 177 N.J. 229 (2003)). 21 Although a testifying expert may detail the reasons underlying his or her opinion and the sources upon which his or her opinion is based, “[a]n expert witness should not be allowed to relate the opinions of a nontestifying expert merely because those opinions are congruent with the ones he has reached.” Krohn v. N.J. Full Ins. Underwriters Ass’n, 316 N.J. Super. 477, 486 (App. Div. 1998). Said in a different way, the contents of a non-testifying expert’s report may not be used as a “tie breaker” between competing experts. James, 440 N.J. Super. at 51. Even when admitted, therefore, hearsay statements relied upon by an expert may be used for the limited purpose of apprising the jury of the basis of the testifying expert’s opinion, but not for the correctness of the non-testifying expert’s conclusion, and the trial court must, upon request, instruct the jury regarding the limited use of the hearsay. Agha, 198 N.J. at 63. B. Here, before the first trial, plaintiff moved in limine to preclude Dr. Vasen from referring to the opinions of non- testifying experts. The trial court denied the motion, admitted the testimony, and gave the following limiting instruction: “I instruct you as the jury in this case you are not to consider any such out of Court statements by any non-testifying experts as substantive proof of the content of those statements.” 22 Over the course of his direct examination, defense counsel asked Dr. Vasen whether a non-testifying doctor “indicate[d] that there was a problem” at a specific part of plaintiff’s spine and additionally asked whether doctors noted a “problem at” the location of the purported injury. That testimony impermissibly sought to establish the substance of the reports of non-testifying physicians, see Agha, 198 N.J. at 64, and “alert[ed] the jury to evidence it would not otherwise be permitted to hear,” Burris, 298 N.J. Super. at 512. Notwithstanding the cautionary instruction given, the trial court erred in permitting Dr. Vasen to bolster his testimony using “congruent” opinions in reports of non-testifying doctors during the first trial rather than simply explain the sources of information used in formulating his opinion. V. For the reasons set forth above, we reverse the judgment of the Appellate Division and reinstate the jury’s verdict in favor of plaintiff following the second trial. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion. 23

click here to get this case.


Appellate Division PUBLISHED Decisions


Docket No.: a0562-17
Decided: 2018-01-19
Caption: STATE OF NEW JERSEY v. DAKEVIS A. STEWART
Status: published
Summary:
MESSANO, P.J.A.D. This appeal presents an issue of first impression under the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to 2A:162-26 (the CJRA). N.J.S.A. 2A:162-19(e)(1) provides that at a pretrial detention hearing, a "defendant has the right to be represented by counsel, and . . . shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." (Emphasis added). We consider whether this provision of the CJRA permits a defendant to subpoena "adverse witnesses," in this case, police officers, to testify at a pretrial detention hearing. I. Defendant Dakevis A. Stewart was arrested by members of the Penns Grove Police Department and charged with possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); 2 A-0562-17T6 possession of a firearm by certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1); tampering with physical evidence, N.J.S.A. 2C:28-6(1); and resisting arrest by flight, N.J.S.A. 2C:29-2(a)(1).1 At the time, defendant was subject to an order of pre-trial release with certain non-monetary conditions that was entered following a June arrest for possession of a controlled dangerous substance and other offenses. The following day, the State of New Jersey moved for defendant's pre-trial detention on the new arrest, as well as revocation of his release on the June arrest. At the pretrial detention hearing, the State moved into evidence the complaint- warrant; the Public Safety Assessment (PSA) prepared by Pretrial Services; a Preliminary Law Enforcement Incident Report (PLEIR) and affidavit of probable cause prepared by Patrolman Joseph Johnson; the pretrial release order from the prior arrest; and a pretrial monitoring violation report. Pretrial Services assigned defendant PSA scores of five for both risk of failure to appear (FTA) and new criminal activity 1 The statutory citations for some of the charges in the complaint-warrant were incorrect. 3 A-0562-17T6 (NCA). There was no New Violent Criminal Activity (NCVA) flag. Pretrial Services recommended against defendant's release.2 The affidavit of probable cause stated that on September 20, 2017, Johnson responded to a report of gunshots in the area of the Penn Village Apartments. As the officer turned onto a street near the apartment complex, he saw a vehicle, coming toward him at high speed. Johnson intercepted the vehicle and its driver, later identified as defendant, exited and ran through a nearby cemetery. Other officers arrived and Johnson advised them of his observations and gave a description of the driver. These officers gave chase and saw defendant throw a handgun to the ground. The gun was retrieved by police, who later learned that defendant was prohibited from possessing a handgun because of his criminal history. The PLEIR supplied some additional information. Patrolman Tim Haslett "personally observed the offense"; police recorded the statement of a witness on a body camera; defendant appeared to be under the influence of drugs or alcohol at the time and was injured by a police dog after he tried to flee; and a member of the public provided information to the 911 call center. The 2 The PSA recommendation also provided that the "charges include non-Graves weapons/gun/explosives." We are unsure what that reference means, because the State alleged the firearm was fully operational, and defendant was subject to mandatory minimum sentencing pursuant to N.J.S.A. 2C:43-6(c). 4 A-0562-17T6 State advised the judge it would proceed by proffer and argued the evidence established probable cause that defendant had committed the charged offenses. Defense counsel had served Johnson, who was present, with a subpoena to testify. Counsel argued that N.J.S.A. 2A:162- 19(e)(1) permitted defendant to call witnesses at a pretrial detention hearing. He also intended to subpoena four other police officers identified in the arrest report as having supplied information to Johnson for the affidavit.3 Specifically stating that the hearing was "at the probable cause stage," the judge preliminarily ruled that defendant could call Johnson and the other officers on the issue of probable cause. Following a short recess, the State argued that allowing defendant to call the State's witnesses to challenge the factual statements in the affidavit would convert the detention hearing into a "mini-trial." It requested a stay of the proceedings. The judge indicated that she had not realized Johnson was the affiant and concluded that defendant had not proffered any information to challenge Johnson's statements in the affidavit. The judge expressed concern that permitting defendant to attack the credibility of Johnson's statements by calling him as a 3 The report is not in the record and the four other officers have not been identified. 5 A-0562-17T6 witness would result in a "mini-trial." However, the judge concluded defendant could challenge probable cause by calling other witnesses who allegedly observed defendant commit the offenses, such as the other four police officers, and ruled defendant could subpoena the officers to testify as to probable cause.4 The judge entered an order permitting defendant "to subpoena the [police] officers at the scene of the incident to testify at the [d]etention [h]earing." She stayed the hearing so the State could seek emergent appellate review. We granted the State's motion for leave to appeal, stayed further proceedings in the Law Division and ordered defendant's continued detention pending our decision. Thereafter, we granted motions filed by the Office of the Attorney General (AG), the Office of the Public Defender (OPD) and the American Civil Liberties Union (ACLU) to appear as amici curiae. 4 As noted, the State also sought detention because defendant violated the terms of the earlier pretrial release order, which required defendant to refrain from committing another offense. See N.J.S.A. 2A:162-24 (permitting revocation upon a finding of probable cause that defendant committed a "new crime while on release"); see also State v. White, ___ N.J. Super. ___, ___ (App. Div. 2017) (discussing generally the revocation hearing and the State's burden of proof). In this case, the hearing focused only on the probable cause determination, a necessary prerequisite to consideration of the State's additional basis for detention. 6 A-0562-17T6 II. Before us, the State argues that despite the plain language of N.J.S.A. 2A:162-19(e)(1), a defendant does not have an absolute right to call potential State's witnesses, referred to as "adverse witnesses," at a pretrial detention hearing. It asserts that we should follow the majority of federal courts, which hold that a defendant may call adverse witnesses at the discretion of the trial court, but only after proffering how the witnesses' testimony will be favorable and material. The State contends this approach preserves defendants' constitutional due process rights and statutory right to "produce witnesses" at detention hearings, N.J.S.A. 2A:162-19(e)(1), while preventing those hearings from becoming time-consuming "mini-trials." It also argues that allowing a defendant to call adverse witnesses without limitation, while the State's investigation may be incomplete, "unfairly gives the defendant a record that could potentially be used against [a] witness" at trial. It additionally argues that requiring a proffer from a defendant is "necessary to prevent potential harassment and intimidation of victims and witnesses" soon after a crime is committed. The AG generally agrees, and asserts a defendant should be permitted to call adverse witnesses only if he or she can by proffer "articulate a good-faith basis for believing that the 7 A-0562-17T6 witness will testify favorably . . . on a critical issue related to pretrial detention." Defendant and the OPD counter by arguing that the plain language of N.J.S.A. 2A:162-19(e)(1) permits the accused to call witnesses at a pretrial detention hearing without limitation. Defendant asserts that we should adopt the holdings in a different line of federal cases which generally grant judges broad discretion in managing detention hearings and do not require a proffer before a defendant presents any witness. Defendant contends N.J.S.A. 2A:162-19(e)(1) provides an unfettered ability to present any witness, "so long as the integrity of the hearing is maintained and the scope of the testimony confined to relevant issues." OPD agrees that judges' discretionary "gatekeeping" powers are sufficient to ensure that a detention hearing will not become a mini-trial or discovery expedition. The ACLU echoes those arguments but goes further. It contends that our courts should always allow defendants to call any witness, adverse or otherwise, unless the State demonstrates a potential harm to a given witness that outweighs the value of that witness's testimony. The Court has already comprehensively addressed the history and policy supporting the CJRA in State v. Ingram, 230 N.J. 190 8 A-0562-17T6 (2017), and State v. Robinson, 229 N.J. 44 (2017), and we draw upon those decisions for guidance in this case as we consider some of the statute's terms. N.J.S.A. 2A:162-19(e)(2) provides that at a pretrial detention hearing, the State must establish probable cause that the defendant committed the charged offense whenever an indictment has not yet been returned. If a defendant is not charged with certain specific crimes enumerated in N.J.S.A. 2A:162-19(b), to which a presumption of detention applies, the State must additionally demonstrate by clear and convincing evidence that there is a "serious risk" the defendant will not appear in court as required, will pose a danger to any person or the community, or will obstruct or attempt to obstruct justice. N.J.S.A. 2A:162-19(a)(7). As noted, N.J.S.A. 2A:162-19(e)(1) states that at a pretrial detention hearing, the defendant "shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." (Emphasis added). The rules of evidence do not apply at a detention hearing. Ibid. In Ingram, the Court addressed whether by providing defendants with the right of cross-examination, the CJRA necessarily implied the State must produce a witness at the 9 A-0562-17T6 detention hearing, rather than proceed by proffer. Although N.J.S.A. 2A:162-19(e)(1) was silent on the subject, the Court concluded that "neither the statute's plain language nor principles of due process" require the State to present witnesses at every detention hearing. 230 N.J. at 194. The Court found that "a pretrial detention hearing at which the State must demonstrate probable cause is not a final adjudication of contested facts or the merits of a charge." Ibid. It also concluded that to require the State to present live witnesses at every detention hearing would "impose significant additional fiscal and administrative burdens on the court system, law enforcement officers, the prosecution, and public defenders." Id. at 212. See also Robinson, 229 N.J. at 68-69 (at a detention hearing, "the focus is not on guilt, and the hearing should not turn into a mini-trial"). As the Court has noted, when the Legislature enacted the CJRA, it consciously chose to follow in many respects the federal Bail Reform Act of 1984 (the BRA), 18 U.S.C.A. §§ 3141 to 3156, and the District of Columbia's statutory scheme for pretrial detention, D.C. Code. §§ 23-1321 to -1333 (the D.C. Code). Ingram, 230 N.J. at 205; Robinson, 229 N.J. at 56. In language identical to N.J.S.A. 2A:162-19(e)(1), the BRA provides that a defendant shall be afforded an opportunity to testify, 10 A-0562-17T6 present witnesses, cross-examine appearing witnesses, and present information by proffer or otherwise at a pretrial detention hearing. 18 U.S.C. § 3142(f)(2); see also D.C. Code. § 23-1322(d)(4) (same). Federal courts have adopted somewhat different approaches to whether a defendant may call an adverse witness at the detention hearing. A majority of federal courts have adopted the rationale first set forth in United States v. Edwards, 430 A.2d 1321, 1337-39 (D.C. 1981), where the court interpreted the D.C. Code, a forerunner of, and model for, the BRA. Ingram, 230 N.J. at 209-10. In Edwards, the court found the D.C. Code provided a defendant with "only a conditional right to call adverse witnesses." Id. at 1334. It concluded that before permitting a defendant to subpoena an adverse witness, a trial court "may require" a proffer "regarding the manner in which [that] witness' testimony will tend to negate substantial probability that the accused committed the charged offense." Id. at 1338. The court stated that because it had also held that the government could proceed by proffer, "cross-examination for the limited purpose of impeaching the witness' credibility is an insufficient reason to compel a witness' presence." Ibid. 11 A-0562-17T6 In limiting a defendant's ability to call adverse witnesses at a detention hearing, the Edwards court stressed that the government has an "obvious interest in not conducting a full- blown criminal proceeding twice, once for pretrial detention and a second time for the trial on the charges." Id. at 1337. It also stated that defendants and the government share a mutual interest in holding the hearing soon after arrest, and found this "necessarily precludes the full-scale preparation and investigation that is commensurate with a criminal trial." Ibid. Finally, the court noted that the government has legitimate interests in "preventing premature discovery" and "protecting the emotional and physical well-being of its witnesses," particularly a complaining witness. Id. at 1338. As a result, it held that a "simplified hearing" including a "reasonable limitation" on the defendant's ability to call witnesses was appropriate. Id. at 1337. Many federal courts interpreting the BRA have followed the Edwards' court's reasoning and held that a magistrate need not permit a defendant to subpoena the government's witnesses at a pretrial detention hearing without the defendant first making a proffer demonstrating how the witness' testimony will be helpful. In United States v. Winsor, 785 F.2d 755, 756 (9th Cir. 1986), after the government proceeded by proffer at the 12 A-0562-17T6 detention hearing, the defendant argued he should be permitted to examine the government witnesses who were involved in the investigation and his arrest "to demonstrate that he was arrested without probable cause." The Ninth Circuit found the court was not required to allow him to do so without first making a showing "that the government's proffered information was incorrect." Id. at 757. Similarly, in United States v. Accetturo, 783 F.2d 382, 388-89 (3rd Cir. 1986), the Third Circuit found the trial court did not err by refusing to compel the appearance of a witness upon whom the government had relied in creating the documentary evidence it submitted at the detention hearing. The court found there was "no reason to believe" that the witness "would give evidence favorable to [the defendants] or would retract information harmful to them." Id. at 388. The court "acknowledge[d] the difficulty faced by defendants seeking to discredit government evidence" when the government has chosen to proceed by proffer, but found "the need for speed in reaching pretrial detention determinations justifies the use of procedures less demanding than those applicable to a 'full-blown trial.'" Id. at 390 (quoting United States v. Delker, 757 F.2d 1390, 1398 (3rd Cir. 1985)). 13 A-0562-17T6 In United States v. Cabrera-Ortigoza, 196 F.R.D. 571, 575 (S.D. Cal. 2000), the district court stated that "absent something credible to challenge the reliability or the correctness of the government's proffer, the court need not compel live witnesses to testify." Citing Winsor, the court held that without a proffer from the defendant that the government's proffered evidence is inaccurate, a judge is not required to allow the examination of investigators and police officers. Id. at 574. Likewise, in United States v. Sanchez, 457 F. Supp. 2d 90, 93 (D. Mass. 2006), the district court stated that Edwards offered "the best analysis" of when a judge should permit defendants to subpoena government witnesses. It found a defendant "must give the court some basis for believing" an adverse witness the defendant wishes to subpoena will "produce testimony favorable to [him or her] or that there is some reason to question the reliability of hearsay evidence proffered by the government." Ibid. The court concluded the defendant had not done so, and that his apparent purpose in subpoenaing a government witness was simply to use the pretrial detention hearing as a discovery tool. Id. at 93-94. A smaller number of federal courts agree with Edwards that a defendant has only a conditional right to call adverse 14 A-0562-17T6 witnesses at a pretrial detention hearing, but following the Eleventh Circuit's decision in United States v. Gaviria, 828 F.2d 667, 670 (11th Cir. 1987), do not impose Edwards' procedural requirement that the defendant need make any proffer beforehand. Ibid. The Gaviria court held, "the judicial officer presiding at the detention hearing is vested with the discretion whether to allow defense counsel to call an adverse witness with or without an initial proffer of the expected benefit of the witness' testimony." Ibid. Other earlier cases seemingly agree that the judge's inherent ability to control the conduct of the hearing is a sufficient deterrent to abuse. In Delker, 757 F.2d at 1398, the Third Circuit found a district court "may have some discretion to curtail cross-examination based upon such criteria as relevancy, or to prevent a pretrial hearing from becoming a full-blown trial." Similarly, in United States v. Acevedo- Ramos, 755 F.2d 203, 207-8 (1st Cir. 1985), the court stated that a judge possesses adequate power to reconcile the competing demands of speed and of reliability, by selectively insisting upon the production of the underlying evidence or evidentiary sources where their accuracy is in question. Through sensible exercise of this power of selection, the judicial officer can make meaningful defendant's right to cross-examine without unnecessarily transforming the bail hearing into a full- 15 A-0562-17T6 fledged trial or defendant's discovery expedition. Although these cases specifically reference cross- examination, rather than a defendant's ability to compel the appearance of an adverse witness, they reflect the Gaviria court's conclusion that a judge retains sufficient power to control the admission of evidence at a pretrial detention hearing without imposing specific procedural prerequisites upon a defendant. With this background, we consider the particular facts of this case.5 5 Unlike our CJRA, the BRA requires the government to establish probable cause at pretrial detention hearings only if a defendant has not yet been indicted and is charged with certain crimes to which a rebuttable presumption of detention applies. Compare 18 U.S.C. § 3142(e)(3), with N.J.S.A. 2A:162-19(e)(2). As a result, the issue in most of the federal cases cited was not whether the evidence supported a finding of probable cause, but rather whether detention was appropriate. Nevertheless, the Court in Ingram squarely addressed this difference and concluded it was insignificant to its analysis. The Court noted that "in the seminal Edwards case, the defendant had been charged but not indicted for armed rape, which formed the basis for the government's detention application." Ingram, 230 N.J. at 210 (citing Edwards, 430 A.2d at 1324). Despite this difference in the statutory schemes, the Court "dr[ew] guidance from federal precedent that interpreted a law similar to the CJRA." Id. at 211 (citing State v. Ingram, 449 N.J. Super. 94, 108-13 (App. Div. 2017)). 16 A-0562-17T6 III. Initially, we reject the position urged by the ACLU that a defendant may call any witness, whether under compulsion of subpoena or otherwise, unless the State can affirmatively demonstrate that potential harm to the witness outweighs the value of the witness's testimony. That interpretation of the CJRA runs counter to all the federal cases interpreting the BRA, as well as the generally accepted axiom that trial judges have "wide discretion in exercising control over their courtrooms," D.A. v. R.C., 438 N.J. Super. 431, 461 (App. Div. 2014) (quoting N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002)), and perform a necessary "gatekeeper role" regarding testimony adduced at any proceeding. State v. Nesbitt, 185 N.J. 504, 514 (2006). Even when constitutional rights are at stake, requiring a defendant to make a proffer before proceeding is hardly alien to our case law. See, e.g., State v. Henderson, 208 N.J. 208, 291 (2011) (noting defendant's proffer of statements made by administrator of an identification procedure may compel Wade6 hearing); State v. Cotto, 182 N.J. 316, 332-34 (2005) (considering proffered evidence of third- party guilt and concluding exclusion did not violate the defendant's Sixth Amendment rights); State v. Kelly, 97 N.J. 6 United States v. Wade, 388 U.S. 218 (1967). 17 A-0562-17T6 178, 197-98 (1984) (requiring consideration of defense proffer regarding expert testimony on battered-woman's syndrome before considering relevancy to a claim of self-defense). We also reject defendant's and OPD's position that the CJRA permits a defendant to subpoena or otherwise produce adverse witnesses at the detention hearing without any proffer beforehand, constrained only by the judge's inherent ability, as outlined above, to control the proceedings and limit interrogation as necessary. The probable cause determination has historically been made without any constitutional or statutory requirement that a defendant be entitled to present any evidence, much less compel the presence and testimony of adverse witnesses. Ingram, 449 N.J. Super. at 103-06. It would be ironic, at the least, for the State to proceed by proffer, as the Court allowed in Ingram, and still permit a defendant to compel the appearance of the author of the proffered documents. Requiring police witnesses to appear, without any showing as to the relevancy of their testimony regarding the probable cause determination, places enormous burdens on local resources and the courts. See Ingram, 230 N.J. at 212 (describing these concerns). Instead, we believe the holdings in Edwards, Winsor and Accetturo strike the proper balance by according a defendant the 18 A-0562-17T6 opportunity to "present [adverse] witnesses," while at the same time providing an expeditious determination regarding probable cause. Before permitting a defendant to subpoena adverse witnesses to appear at the detention hearing, the judge should require a proffer as to the witness' likely testimony, and how that testimony will negate a finding that there is a "substantial probability that the accused committed the charged offense." Edwards, 430 A.2d at 1338. Here, the judge never asked defendant to make such a proffer, but, instead, entered an order permitting defendant to subpoena all officers "present at the scene of the incident." Defendant has yet to proffer the expected relevancy of this testimony, much less how it might negate a finding of probable cause. Compelling the appearance of four or five police officers to challenge a finding of probable cause suggests that defendant seeks only to impeach statements made by Johnson in his affidavit of probable cause, engage in further discovery, or lay the groundwork for potential inconsistencies between testimony given at the detention hearing and a later trial. See Edwards, 430 A.2d at 1338 (impeachment and "premature discovery" are insufficient reasons to compel appearance of adverse witnesses). None of these possibilities justifies defendant's efforts, given the limited focus of the detention hearing. See 19 A-0562-17T6 Robinson, 229 N.J. at 68 ("[T]he administration of justice calls for fair and efficient proceedings. In the case of a detention application, the focus is not on guilt, and the hearing should not turn into a mini-trial."). We therefore reverse the order under review and remand the matter to the Law Division for continuation of the detention hearing in this case. If defendant intends to call any adverse witnesses to rebut the State's evidence of probable cause, the judge must first ask for a proffer regarding the witness' anticipated testimony and its relevancy to the issue of probable cause, and how the anticipated testimony negates the State's evidence already adduced at the hearing in this regard. IV. Because there was no probable cause determination reached in this case, the detention hearing never proceeded to the second stage. See id. at 69 (describing the second stage of the detention hearing, i.e., where a "trial judge must assess the risk of danger, flight, and obstruction"). Although the issue is not squarely before us, at oral argument the parties posited different views on whether a defendant must also make a proffer before producing an adverse witness to challenge the State's evidence supporting detention. Because the issue has significant ramifications for the hundreds of detention hearings 20 A-0562-17T6 occurring continuously in our criminal courts, and in particular for guidance in this case on remand, we choose to address the question. The CJRA "authorizes the court to order pretrial detention if it finds by clear and convincing evidence that no conditions of release would reasonably assure a defendant's appearance in court, the safety of the community, and the integrity of the criminal justice process." Id. at 57 (citing N.J.S.A. 2A:162- 18(a)). N.J.S.A. 2A:162-20 contains a number of factors the court "may take into account" in reaching its decision, including, in particular, "[t]he nature and circumstances of the offense charged" and "[t]he weight of the evidence against the eligible defendant." N.J.S.A. 2A:162-20(a) and (b). As a result, putting aside the question of probable cause, the ACLU in particular asserted that a defendant at a pretrial detention hearing may compel the appearance of an adverse witness to rebut the State's evidence regarding the nature and circumstances of the offense or the strength of the State's case. The State and the AG do not categorically reject the argument; however, they urge us to apply the same rationale during this second phase of the detention hearing as we have applied to the probable cause phase. In other words, they argue that prior to compelling the appearance of an adverse witness, a 21 A-0562-17T6 defendant must make a proffer demonstrating how the anticipated testimony would rebut or diminish the otherwise clear and convincing evidence the State must produce to warrant detention. We agree and reach this conclusion for at least two reasons. First under the BRA, federal courts may consider the nature and circumstances of the offense or the strength of the government's case when deciding whether to detain a defendant. See 18 U.S.C. 3142(g)(1) and (2). As already noted, ante at 6 n.4, in the line of federal decisions we choose to follow, the detention hearing was not about whether the government had demonstrated probable cause, but rather whether detention was warranted. In Sanchez, for example, the defendant specifically sought to call a police officer as a witness regarding "the weight of the government's evidence of criminality." 457 F. Supp. 2d at 92. The court, however, denied the request, citing Edwards as providing the "best analysis of what should inform the . . . judge's exercise of . . . discretion as to whether to permit defendant's counsel to subpoena the Government's witnesses on the question of the 'weight of the evidence.'" Id. at 93. See also United States v. Martir, 782 F.2d 1141, 1145 (2nd Cir. 1986) (considering pretrial detention hearing where "flight presumption," 18 U.S.C. § 3142(e), was at issue, and concluding "[i]n light of the Act's mandate for informality and 22 A-0562-17T6 the need for speed at a point where neither the defense nor the prosecution is likely to have marshalled all its proof, the government as well as the defendant should usually be able to proceed by some type of proffer where risk of flight is at issue"). Second, in Robinson, 229 N.J. at 69, the Court adopted a comprehensive Court Rule that addressed the State's discovery obligations at a detention hearing, "keyed to both" "a determination of probable cause and an assessment of the risk of danger, flight, and obstruction, which may include consideration of the nature and circumstances of the offense and the weight of the evidence." As a result, a defendant in New Jersey is provided with a significant amount of information about the State's case before the hearing. Id. at 69-71. The CJRA permits a defendant to proceed by proffer at the detention hearing, N.J.S.A. 2A:162-19(e)(1). That means a defendant need not subpoena police officers, victims or State's witnesses to provide the judge with a substantial amount of evidence that goes to the nature and circumstances of the offense, the weight of the evidence and any other factor that might impact the judge's detention decision. We wish to make clear that requiring a defendant to make a proffer before an adverse witness is produced at a detention 23 A-0562-17T6 hearing does not limit the judge's discretionary authority to grant such a request. As the Court stated in Ingram, 230 N.J. at 213, the judge retains significant discretion to compel the production of a witness when the State's proffer is inadequate; we have no doubt the judge retains the same discretion to permit the production of an adverse witness after considering a defense proffer demonstrating the particular relevance of the anticipated testimony to either the probable cause determination or whether detention is warranted. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 24 A-0562-17T6

click here to get this case.


Docket No.: a1290-16
Decided: 2018-01-17
Caption: A.E.C, v. P.S.C.
Status: published
Summary:
REISNER, P.J.A.D. In O.Y.C.P. v. J.C.P., 442 N.J. Super. 635 (App. Div. 2015), we addressed the Family Part's jurisdiction over persons between the ages of eighteen and twenty-one who apply to the Family Part for predicate findings in special immigrant juvenile (SIJ) cases. In this case, we consider the Family Part's jurisdiction to grant an application for child custody, made in connection with an SIJ-related application. In the factual circumstances presented here, we hold that, pursuant to N.J.S.A. 9:17B-3, the Family Part has jurisdiction to grant a parent custody of an unemancipated child who is over eighteen, but under twenty-one, and to issue a declaratory ruling that the child is dependent on the parent and is not emancipated. I As context, we briefly review the pertinent immigration legislation as it relates to this case. Plaintiff A.E.C. (Ana)1 filed a complaint in the Family Part as a predicate to obtaining SIJ status for her son J.S.E., pursuant to the Immigration Act of 1990, as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-457, 122 Stat. 5044 (2008). The SIJ application is a two-step process, requiring participation by the state courts and the United States Citizenship and Immigration Services (USCIS). H.S.P. v. J.K., 223 N.J. 196, 209-11 (2015). First, the child, or an individual acting on the child's behalf, must "petition for an order from a state juvenile court 1 We use pseudonyms and initials to protect the parties' privacy. 2 A-1290-16T4 making findings that the juvenile satisfies certain criteria." Id. at 210 (citation omitted). Pursuant to 8 U.S.C. § 1101(a)(27)(J) and 8 C.F.R. § 204.11(c), the Family Part must make findings on the following factors: (1) The juvenile is under the age of 21 and is unmarried; (2) The juvenile is dependent on the court or has been placed under the custody of an agency or an individual appointed by the court; (3) The "juvenile court" has jurisdiction under state law to make judicial determinations about the custody and care of juveniles; (4) That reunification with one or both of the juvenile's parents is not viable due to abuse, neglect, or abandonment or a similar basis under State law; and (5) It is not in the "best interest" of the juvenile to be returned to his parents' previous country of nationality or country of last habitual residence within the meaning of 8 U.S.C. § 1101(a)(27)(J)(ii); 8 C.F.R. § 204.11(a), (d)(2)(iii) [amended by TVPRA 2008]. [H.S.P., 223 N.J. at 210 (quoting In re Dany G., 117 A.3d 650, 655-56 (Md. Ct. Spec. App. 2015)).] Once the state family court makes the necessary preliminary findings, the "juvenile can submit his or her application for SIJ status to USCIS in the form of an I-360 petition. If USCIS 3 A-1290-16T4 approves the juvenile's I-360, he or she will be granted SIJ status." Ibid. In H.S.P., the Court made clear that the Family Part does not decide the applicant's SIJ status. Id. at 211-12. Rather, in handling SIJ-related applications, the Family Part must "apply its expertise in family and child welfare matters to the issues raised in 8 C.F.R. § 204.11, regardless of its view as to the position likely to be taken by the federal agency or whether the minor has met the requirements for SIJ status." Id. at 200- 01. "This approach will provide USCIS with sufficient information to enable it to determine whether SIJ status should be granted or denied . . . ." Id. at 201. II J.S.E. was born in March 1997 in Guatemala, where he initially resided with his mother, Ana, and his father, Pascual. However, Pascual was physically and emotionally abusive to Ana, and when J.S.E. was still a baby, Pascual threw Ana and J.S.E out of the house. J.S.E. did not see his father again until years later, when they met once. At that point, the father was mentally ill and confined to a room in his parents' house. The father died in 2009. After the father ejected them from their home, Ana and the baby moved in with her Aunt Catarina. However, Ana struggled to 4 A-1290-16T4 make ends meet, and moved to the United States when J.S.E. was about five years old. Ana left the child in the care of her friend Anacleta. For years, she sent Anacleta money for the child's support. However, when J.S.E. was nine years old, Ana received an anonymous letter warning her that J.S.E. was walking around alone, hungry, and in dirty clothes. Ana learned that Anacleta was physically abusing the child, depriving him of food, and spending the support money on herself. Ana then arranged for J.S.E. to live with her aunt. However, when J.S.E. was about seventeen years old, the aunt made it clear that she could no longer care for him and believed he should move to the United States to live with his mother. Because there was no one to provide for J.S.E. in Guatemala, he fled to the United States. At the time of the SIJ application, J.S.E. was attending a special school and going to counseling for his emotional trauma. In September 2016, Ana filed a verified complaint in the Family Part, under 8 U.S.C. § 1101(a)(27)(J) and 8 C.F.R. § 204.11(c), seeking the findings required for SIJ status. She also specifically sought sole legal and physical custody of her son, who was "a full time student still dependent on his mother for his emotional, financial, educational, and safety needs." The complaint asserted that there was no one else "willing and 5 A-1290-16T4 able" to care for him. Ana further sought a ruling that the Family Part had jurisdiction over J.S.E. and that he was "not emancipated." After hearing testimony from J.S.E. and his mother, the Family Part judge found that, due to "the abuse he suffered at a young age, [J.S.E.] did not acquire the skills necessary to provide for himself. [Ana] is the only suitable caregiver who can help him transition to adulthood. . . . It is clearly in the best interest of [J.S.E.] to remain in the custody of his mother." However, the judge declined to grant custody, reasoning that the Family Part did not have jurisdiction to enter an order placing J.S.E. in his mother's custody, because he was over the age of eighteen. The judge also did not specifically issue a declaration that J.S.E. was not emancipated, although the judge's factual findings made clear that was the case. Based on his view that the court lacked jurisdiction due to J.S.E.'s age, he determined that J.S.E. was neither dependent on the court nor under the custody of an agency or individual appointed by the court. See 8 U.S.C. § 1101(a)(27)(J). III On this appeal, we review the trial court's legal conclusions de novo. H.S.P., 223 N.J. at 215. As previously 6 A-1290-16T4 discussed, in H.S.P, the Supreme Court explained that the Family Part's role in an SIJ application is not to adjudicate a juvenile2 applicant's immigration status, but to make the predicate findings needed so that the federal government can adjudicate the juvenile's SIJ application. Id. at 200-01. In O.Y.C.P, we held that the Family Part is obligated to make SIJ findings in cases where a child is between the ages of eighteen and twenty-one. O.Y.C.P., 442 N.J. Super. at 641. We reasoned, in part, that "it would defeat the purpose of the hybrid federal-state scheme Congress created if state family courts decline to hear these cases solely because a juvenile is over the age of eighteen, so long as the juvenile is still under the age of twenty-one." Id. at 640. In O.Y.C.P., we held it was error for the Family Part to reject O.Y.C.P.'s application on the grounds that the Family Part's jurisdiction ends when a child turns eighteen. See id. at 641. We also observed that this State's statutory scheme gives the Family Part jurisdiction over children older than eighteen in certain circumstances. Id. at 642. In particular, we noted language in the age of majority statute, N.J.S.A. 2 Because the federal statute accords "special immigrant juvenile" status to persons up to the age of twenty-one, we use the terms "juvenile" or "child" to refer to these applicants, including J.S.E. 7 A-1290-16T4 9:17B-3, which preserves "the right of a court to take any action it deems appropriate and in the interest of a person under 21 years of age." Id. at 643. This language was part of the Age of Majority Act (Act) when it was first adopted. See L. 1972, c. 81. The Act, changing the age of majority from twenty-one to eighteen, was enacted in 1972. See L. 1972, c. 81. The Act has been amended several times since its adoption, but the language authorizing the court to "take any action it deems appropriate and in the interest of a person under 21 years of age" has remained unchanged. See L. 1972, c. 206; L. 1987, c. 18; L. 2013, c. 103.3 Several months after its adoption, the Act was amended to permit the provision of "services pursuant to the laws relating to dependent and neglected children [under Title 30] to persons between 18 and 21 years of age who seek to avail themselves of such services and who are enrolled in a school or training program below college level or who require a course of treatment for emotionally, cognitively or physically disabled persons." L. 1972, c. 206. As previously noted, this amendment did not 3 The 1987 amendment concerned the Uniform Gifts to Minors Act. The 2013 amendment was part of an omnibus act to remove from State statutes pejorative terms pertaining to persons with disabilities and made other changes not relevant to this appeal. 8 A-1290-16T4 eliminate or modify the existing language giving the court general power to take appropriate action in the interest of a person under twenty-one. See L. 1972, c. 206. Instead, the legislative history explained that the amendment was intended to expand the power of the state agency then charged with child welfare. The Sponsor's Statement to the bill explained its humanitarian and fiscal purposes: This bill will permit the Department of Institutions and Agencies to continue supervision and maintenance of persons between 18 and 21 who are enrolled in a school or training program below college level or who require treatment for emotionally, cognitively or physically disabled persons. These young adults are in foster care placement or institutions as the result of neglect, abuse or family deterioration. Because of these misfortunes, they are generally at least 1 year behind the general population in scholastic achievement. Completion of their high school education and vocational and job training is necessary to enable them to become self- sufficient. [Sponsor's Statement to Assembly Bill No. 1545, at 2 (Nov. 20, 1972) (L. 1972, c. 206).] The Statement also explained that the amendment would permit children who are "seriously disabled" to participate in federally funded programs, instead of relying on "other State 9 A-1290-16T4 programs which are entirely State financed." Sponsor's Statement to Assembly Bill No. 1545, at 2-3 (Nov. 20, 1972) (L. 1972, c. 206). Nothing in the language or purpose of this amendment suggests a legislative intent to narrow the power of the Family Part "to take any action it deems appropriate and in the interest of a person under 21 years of age . . . ." N.J.S.A. 9:17B-3. That provision of N.J.S.A. 9:17B-3, preserving the court's authority to act in the interest of persons under age twenty- one, has generally been viewed as an expression of the Legislature's intent to protect young adults, and has been invoked to provide benefits to older juveniles where the literal terms of other statutes might not protect them. In State in Interest of G.T., 143 N.J. Super. 73 (App. Div. 1976), aff'd o.b., 75 N.J. 378 (1978), we found that this provision "demonstrates the intention to continue a court's discretion in protecting the interests of persons under 21." Id. at 79. Relying in part on this section of the Act, we construed the term "age of majority" in the juvenile waiver statute as twenty- one4 rather than eighteen. Id. at 76-79. We declined to rely on 4 The pertinent provision required the court to determine whether there were "no reasonable prospects for rehabilitation of the juvenile prior to his attaining the age of majority . . . ." Id. at 75 (quoting N.J.S.A. 2A:4-48). 10 A-1290-16T4 the literal terms of the juvenile justice code, which defined "adult" as a person over the age of eighteen. Id. at 76. Similarly, in Matter of K.F., 313 N.J. Super. 319 (App. Div. 1998), we relied in part on the statutory language in holding that the Family Part had discretion to place an adjudicated juvenile, who had violated the terms of his probation, in the custody of the Division of Youth and Family Services (DYFS),5 even if the juvenile was then over eighteen. Id. at 321, 324. DYFS argued that its mandate was "to serve children" and Title 30 defined "child" as a "person under the age of 18 years." Id. at 323. However, we reasoned that the pertinent provision of N.J.S.A. 9:17B-3 "demonstrates the Legislature's intention to continue the Family Part's jurisdiction in protecting the interests of persons under twenty-one." Id. at 324. Considering that "the Legislature [did] not amend[] the Code [of Juvenile Justice] to provide that DYFS placement . . . [was] limited to persons under eighteen," we "[did] not find any support for DYFS's position that the Family Part cannot impose the authorized disposition of DYFS placement upon an individual who is between the ages of eighteen and twenty-one." Id. at 324. 5 DYFS is now known as the Division of Child Protection and Permanency. 11 A-1290-16T4 We acknowledge that, more recently, the Supreme Court distinguished K.F., but we do not regard that decision as requiring a different result here. In State ex rel. J.S., 202 N.J. 465 (2010), the Court held that the juvenile court could not order the Department of Children and Families (DCF) and its subsidiary division, DYFS, to pay for sex offender treatment for a sex offender who had never before received services from DYFS and was over the age of twenty-one when he was first adjudicated delinquent.6 Id. at 468, 481. The Court held that doing so was contrary to the agency's enabling statute and would divert its scarce financial resources in a manner contrary to the Legislature's intent. Id. at 483-84. The Court distinguished K.F., because J.S. was over the age of twenty-one, and because recent legislation had limited the jurisdiction of DCF to focus "exclusively on children." Id. at 483. Neither party apparently relied on N.J.S.A. 9:17B-3, and the Court did not refer to that statute. But we infer from the decision that N.J.S.A. 9:17B-3 cannot be construed as overriding specific contrary provisions of another statute, and particularly 6 The sexual offenses occurred when J.S. was in his early to mid-teens, but they apparently were not reported until years later. J.S., 202 N.J. at 468. Hence, he was prosecuted as a juvenile. 12 A-1290-16T4 provisions indicating the Legislature's intent to limit an agency's services to only persons under eighteen. In this case, there are no State fiscal considerations similar to those in J.S., and there is no statute that specifically prohibits the Family Part from granting a parent custody of a dependent child over the age of eighteen. Indeed, the idea that child custody necessarily ends, or is barred, when a child turns eighteen, is belied by the case law concerning emancipation. These related concepts were addressed in the seminal case of Newburgh v. Arrigo, 88 N.J. 529 (1982), which held that in appropriate circumstances, parents must contribute to the college expenses of a child over age eighteen. Id. at 543. In general, emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child. Emancipation can occur upon the child's marriage, induction into military service, by court order based on the child's best interests, or by attainment of an appropriate age. Although emancipation need not occur at any particular age, a rebuttable presumption against emancipation exists prior to attaining the age of majority, now 18. See N.J.S.A. 9:17B-3. Attainment of age 18 establishes prima facie, but not conclusive, proof of emancipation. Whether a child is emancipated at age 18, with the correlative termination of the right to parental support, depends upon the facts of each case. [Id. at 543-44 (citations omitted).] 13 A-1290-16T4 There is ample precedent for declaring children over the age of eighteen to be unemancipated when they are still completing their education, are economically dependent on their parents, and remain within the parental "sphere of influence and responsibility." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)); see also N.J.S.A. 2A:34-23(a) (incorporating several of the Newburgh factors in the child support statute); Kiken v. Kiken, 149 N.J. 441, 449-50 (1997). In the circumstances of this case, J.S.E., who has not even completed high school and is financially dependent on his mother, fits the definition of an unemancipated child. Declaring J.S.E. unemancipated, to protect his continued right to support, and granting Ana custody of him would further the benevolent purpose of N.J.S.A. 9:17B-3 to protect young adults. We therefore hold that N.J.S.A. 9:17B-3 confers jurisdiction on the Family Part, in an appropriate case, to place a non-emancipated child between the ages of eighteen and twenty-one in a parent's custody, and to declare the child unemancipated, where that disposition is in the child's best interest and both the child and the parent consent. We also hold that it was error for the Family Part to deny that relief here, where J.S.E. is clearly not emancipated, still attends a 14 A-1290-16T4 special "last-chance" high school, cannot provide for himself economically, has no one else on whom he can depend for financial support, and would face dire circumstances if he were separated from his mother or if she did not financially support him. Lastly, to address the related SIJ issue, we conclude that either a declaration of unemancipation or a custody order would justify the court in noting, for purposes of an SIJ finding, that the child is "dependent" on the court. See 8 C.F.R. § 204.11(c). A finding of dependency dovetails with the underlying purpose of the pertinent language in N.J.S.A. 9:17B- 3, which recognizes that in appropriate situations, young adults still depend on the protection of the Family Part. See Recinos v. Escobar, 46 N.E.3d 60, 67-68 (Mass. 2016) (noting that the SIJ statute "does not limit the dependency requirement to a 7 custody determination."). IV Having determined that the Family Part erred, we next consider the appropriate remedy. After hearing Ana's and J.S.E.'s credible testimony, the Family Part judge made specific factual findings concerning J.S.E.'s best interests, and the 7 In light of our decision, we need not address plaintiff's additional appellate issues. 15 A-1290-16T4 evidentiary record strongly supports his findings. See Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Based on those findings, which include the judge's conclusion that "[i]t is clearly in the best interest of [J.S.E.] to remain in the custody of his mother," the correct outcome is not in doubt. In view of the time sensitive nature of this case, we exercise our original jurisdiction to determine that J.S.E. shall be declared unemancipated and shall be placed in his mother's custody pursuant to N.J.S.A. 9:17B-3.8 We remand this case to the Family Part, for the limited purpose of issuing an amended order so providing, and finding that J.S.E. is dependent on the court for SIJ purposes. We also note the need for an additional correction to the order, perhaps caused by an inadvertent error. Paragraph three of the Family Part's order marked as "denied" a proposed finding that "[t]he 'juvenile court' has jurisdiction under state law to make judicial determinations about the custody and care of juveniles." That question addresses the Family Part's general jurisdiction, not its specific jurisdiction to grant relief in this case. See H.S.P., 223 N.J. at 210; 8 C.F.R. § 204.11(a) ("Juvenile court means a court located in the United States 8 In future cases, where the juvenile may turn twenty-one while the appeal is pending, counsel should file a motion to accelerate the appeal. 16 A-1290-16T4 having jurisdiction under State law to make judicial determinations about the custody and care of juveniles."). For purposes of an SIJ application filed in the Family Part, the answer to that general question should always be "yes" or "granted," depending on how the order is structured. On remand, that error must also be corrected in the amended order. The Family Part shall issue an amended order within ten days of the date of this opinion. Reversed and remanded. We do not retain jurisdiction. 17 A-1290-16T4

click here to get this case.


Docket No.: a4820-15
Decided: 2018-01-17
Caption: G.M v. C.V.
Status: published
Summary:
SUTER, J.A.D. Defendant C.V.1 appeals the May 6, 2016 order that denied her request to vacate a final restraining order (FRO) entered in 2004 1 We use initials and pseudonyms throughout this opinion because the case involves domestic violence litigation. R. 1:38-3(d)(9). under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, and the June 10, 2016 order that denied reconsideration. Defendant's motion to dissolve the FRO was denied because it did not include a transcript of the underlying 2004 FRO hearing, even though the audio record of that proceeding apparently is not capable of transcription. We reverse and remand for the Family Part to verify the unavailability of the audio record of the FRO hearing, to determine whether defendant has shown prima facie evidence of changed circumstances to dissolve the FRO, and unless she has not met this burden, to reconstruct the record of the FRO hearing consistent with the procedures of this opinion. I The parties divorced in March 2004 after a ten-year marriage. Of their three children, one is emancipated, one is in college and one is a teenager, who resides with defendant. Plaintiff moved to Florida and remarried in 2014. In August 2004, plaintiff obtained a temporary restraining order (TRO) under the Act against defendant, alleging as a predicate offense that defendant was harassing him.2 Plaintiff's complaint stated that defendant made "repeated calls to 2 It is not clear from the copy of the complaint included in the appendix whether plaintiff also alleged the predicate offenses of stalking and assault. 2 A-4820-15T4 [plaintiff] and others" that were "harassing and threatening," causing him fear. She repeatedly called plaintiff's girlfriend. Plaintiff also claimed, in the original request for a restraining order, that defendant had a history of committing acts of domestic violence against him. He accused defendant of coming into the house and taking items belonging to the children; asserting in vulgar language her claim to ownership of the house; demanding that plaintiff move into the laundry room; stabbing him in the arm; running after him with two butcher knives; locking him out of the house in cold weather when he was scheduled for tests on his heart; keeping him up by flashing lights; chasing and hitting him with a battery charger while disparaging him with coarse language; threatening to run her car off the road while he was a passenger; hitting him in the head with a tripod; locking him out of the house with the cat; and kicking him in the ribs, legs, and chest, spitting in his face, and calling him a "f**king loser" and "piece of s**t." The FRO entered on August 18, 2004 by Judge John B. Dangler3 provided that defendant committed "an act of domestic violence." It restrained defendant from contacting plaintiff's girlfriend, her employer, and plaintiff's brother and sister-in-law. Her 3 Judge Dangler retired on January 1, 2010. 3 A-4820-15T4 communication with plaintiff was to be limited to non- harassing/non-abusive parenting issues concerning the children. The court also ordered defendant to have a mental health assessment. Defendant did not appeal the FRO. In March 2016, defendant made application pursuant to N.J.S.A. 2C:25-29(d) to dissolve the FRO, alleging a "substantial change of circumstances" since its entry nearly twelve years earlier in 2004. In her supporting certification, defendant alleged the FRO should be dissolved to permit the parties to mediate a new parenting time schedule. She alleged the FRO posed a hardship to her in obtaining other employment. Other changed circumstances since 2004 included plaintiff's move to Florida and the support of his former girlfriend to vacate the FRO. Defendant claimed that plaintiff no longer feared her. She alleged that in 2006, they shared a hotel room for a week with their children while at a tournament in Florida. They also entered into a real estate joint venture. According to defendant, plaintiff attended her fortieth birthday party in 2008 at his restaurant, and he stayed with the children and her parents in Hilton Head. She claimed he made sexual advances to her. With respect to his current wife, defendant claims they communicated cordially at least until 2014 and 2015 when defendant filed post- judgment matrimonial orders to show cause, accusing plaintiff of 4 A-4820-15T4 taking their teenaged son to Florida for spring break and not timely returning him. Defendant's application to dissolve the FRO did not include the transcript of the 2004 FRO hearing. By way of explanation, defendant attached a copy of an e-mail from the Morris County Superior Court Operations Division that stated, "neither tape is working, so there is nothing for you to listen to." A later e- mail reported that "it was discovered that one of the tapes was blank," but there was a second half with the judge's decision. A May 4, 2016 certification from a tape transcript processing employee in the Morris County vicinage stated that the audio tapes of the 2004 FRO hearing were blank. Plaintiff "strongly" opposed the dissolution of the FRO and filed a cross-motion for attorney's fees.4 In his certification, plaintiff alleged defendant was "violent, irrational, and mentally unstable." He remained "extremely fearful of [her] and very concerned about [his] safety and security" should the FRO be dissolved. He denied sharing a hotel room with defendant and the children, hosting a birthday party for her, staying at Hilton Head with her parents, or making sexual advances. He emphasized that 4 The appendix does not include a dispositional order related to the cross-motion. We do not know if plaintiff was awarded attorney's fees. 5 A-4820-15T4 the real estate investment in 2006 was conducted through an attorney. Plaintiff claimed that in 2014, defendant called the former spouse of his current wife (Rhonda) and made spurious accusations concerning his interactions with the children and his relationship with Rhonda. Plaintiff also rejected any proposal to mediate parenting time issues. The parties had been in court in 2014, 2015 and 2016 on multiple post-judgment matrimonial motions concerning parenting time with their teenaged son and other related matters. In an order dated May 6, 2016, the Family Part denied defendant's application to dissolve the FRO because it did not include a copy of the 2004 FRO hearing transcript. The court based its ruling on the plain language in N.J.S.A. 2C:25-29(d), which requires a "complete record of the hearing" before dissolving or modifying any final order. The Family Part also expressly relied on this court's decision in Kanaszka v. Kunen, 313 N.J. Super. 600 (App. Div. 1998), which held: In cases where the motion judge did not enter the final restraining order, we hold the "complete record" requirement of the statute includes, at a minimum, all pleadings and orders, the court file, and a complete transcript of the final restraining order hearing. Without the ability to review the transcript, the motion judge is unable to properly evaluate the application for dismissal. 6 A-4820-15T4 [Id. at 606.] Noting that defendant had the burden of proof and the primary goal of the Act was to protect victims of domestic violence, the Family Part ruled that defendant's application had a "procedurally . . . fatal defect" without the transcript. The court dismissed defendant's application without prejudice, concluding it was "prohibited" from determining the merits of the application without the transcript of the FRO hearing. In an order dated June 10, 2016, the court denied defendant's application for reconsideration. In its written statement of reasons, the court noted defendant did not allege any new facts warranting reconsideration. Without the transcript, it had "almost no record on which to rely" in analyzing whether plaintiff had an objective fear of defendant or whether any of the factors set forth in Carfagno v. Carfagno,5 for determining if good cause had been shown, were present. The court stated that the FRO did not "state the underlying predicate act" and certifications from the parties did not "illuminate details of the underlying incident of domestic violence." 5 288 N.J. Super. 424 (Ch. Div. 1995). This court has adopted the factors identified by the Chancery Division in Carfagno. See T.M.S. v. W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017). 7 A-4820-15T4 By weighing the various interests, the Family Part rejected defendant's contention, both facially and as applied, that she was deprived of due process by being "unable to proceed past the pleading stage." Plaintiff's private interest in retaining the FRO weighed more heavily than defendant's interest in dissolving the FRO because the necessity for the transcript was "to inform any future judge of the underlying events." The risk of erroneous deprivation inured to both parties, but the lack of a transcript could "severely prejudice . . . [p]laintiff" because the domestic violence evidence might be stale or witnesses might be lost. Given the State's interest in protecting its citizens who are victims of domestic violence, the Act provided only "narrow circumstances" to dissolve the restraints. The Family Part did not address defendant's request to reconstruct the FRO hearing record, which she raised for the first time in her motion for reconsideration. On appeal, defendant contends the court erred by not allowing the 2004 FRO record to be reconstructed so that her application to dissolve the FRO could be heard. At the oral argument of the appeal, defendant's counsel suggested a two-step hearing process where the court would first reconstruct the record of the FRO and then would address the merits of the application to dismiss the restraints. Plaintiff argues that the trial court was correct to deny the application because a transcript was required. Plaintiff 8 A-4820-15T4 suggests that defendant's relief must come from the Legislature by way of an amendment of the Act. Under these circumstances, we conclude that fundamental fairness and due process of law require the Family Part to confer with the parties and reconstruct the record of the FRO hearing. We thus reverse and remand for proceedings consistent with this opinion. II We accord "great deference to discretionary decisions of Family Part judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in recognition of the "family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We are mindful of the deference owed to determinations made by family judges who hear domestic violence cases. See Cesare, 154 N.J. at 411-12. "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Ibid. (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Hitesman v. Bridgeway, Inc., 9 A-4820-15T4 218 N.J. 8, 26 (2014) (quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). The Legislature intended that the Act "assure the victims of domestic violence the maximum protection from abuse the law can provide." State v. Brown, 394 N.J. Super. 492, 504 (App. Div. 2007) (quoting N.J.S.A. 2C:25-18). It is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public. [N.J.S.A. 2C:25-18.] The entry of a domestic violence restraining order requires a trial court to make certain findings. See Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). The court "must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125. The court should make this determination "in light of the previous history of violence between the parties." Ibid. (quoting Cesare, 154 N.J. at 402). Next, the court must determine whether a restraining order is required to protect the party seeking restraints from future 10 A-4820-15T4 acts or threats of violence. Silver, 387 N.J. Super. at 126-27. That means, "there [must] be a finding that 'relief is necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting N.J.S.A. 2C:25-29(b)). A final restraining order under the Act can be modified or dissolved only by court order upon a showing of good cause. T.M.S. v. W.C.P., 450 N.J. Super. at 502. N.J.S.A. 2C:25-29(d) provides, Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based. [N.J.S.A. 2C:25-29(d).] The party asking to modify or dissolve the FRO has the "burden to make a prima facie showing [that] good cause exists for dissolution of the restraining order prior to the judge fully considering the application for dismissal." Kanaszka, 313 N.J. Super. at 608. That party must show "substantial changes in the circumstances" from what existed at the final hearing for the court to "entertain the application for dismissal" in order that the victim is not "forced to repeatedly relitigate issues with the perpetrator, as that itself can constitute a form of abusive and controlling behavior." Ibid. A plenary hearing should only be 11 A-4820-15T4 ordered where this burden is met and there are "facts in dispute material to a resolution of the motion . . . . Conclusory allegations should be disregarded." Ibid. (citing Lepis v. Lepis, 83 N.J. 139, 159 (1980)). In evaluating whether good cause has been shown under the statute to modify or dissolve a final order, a court is to consider the non-exclusive list of factors set forth in Carfagno, 288 N.J. Super. at 435. These include, (1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant's request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court. In Kanaszka, we held that the parties' history of domestic violence is to be considered to evaluate the victim's continued fear of the perpetrator and that this "may include exploration of incidents that were not testified to at the final hearing." 313 N.J. Super. at 607. 12 A-4820-15T4 The parties in Kanaszka had a dating relationship when the plaintiff applied for a restraining order based on the defendant's "assaultive and threatening conduct." Id. at 604. Two years later, the defendant filed a motion to dissolve the restraining order because he wanted to pursue a career in law enforcement, asserting he could not do so because of the FRO. There were no violations of the FRO but the plaintiff opposed the motion, alleging she still had fear of the defendant and remained in counseling. She detailed the allegations of abuse. The defendant's motion in Kanaszka did not include a transcript of the FRO hearing, although there was no indication that it was unavailable. In that context, we noted that the court "must carefully scrutinize the record and carefully consider the totality of the circumstances before removing the protective shield." Id. at 605. The parties disputed the nature of their relationship and provided conflicting accounts of the events that led the court to issue the FRO. In this light, we held that, where the motion judge did not enter the final restraining order, . . . the "complete record" requirement of the statute includes, at a minimum, all pleadings and orders, the court file, and a complete transcript of the final restraining order hearing. Without the ability to review the transcript, the motion judge is unable to properly evaluate the application for dismissal. Moreover, in view of the significant volume of cases handled by Family Part judges, even if the motion was 13 A-4820-15T4 heard by [the original judge], we believe it would be difficult for the judge to give due consideration to the motion without the benefit of a transcript, as more than [seventeen] months had elapsed since the final hearing. In most instances, the better practice is for a transcript to accompany the motion for dissolution of a final restraining order to enable the motion judge to fully understand the totality of the circumstances and dynamics of the relationship and application. [Id. at 606-07.] We considered the defendant's failure to include the transcript as "fatal to his appeal," denying it without prejudice. We added that even with the full record, the Carfagno factors should be considered in determining whether the movant had shown a prima facie case of changed circumstances to dissolve the restraints. Here, defendant contends the transcript cannot be produced at all. Defendant argues that the Family Part misconstrued our holding in Kanaszka as creating an absolute, inflexible rule, requiring an applicant seeking the dissolution or modification of a FRO to submit a transcript of the FRO hearing, regardless of whether such a transcript is not available through no fault of the applicant. According to defendant, such an approach not only denies her a right the Legislature expressly provided in N.J.S.A. 2C:25-29(d), but permanently bars her from obtaining any relief, 14 A-4820-15T4 regardless of whether changes in circumstances warrant it. Defendant argues this outcome could have been avoided if the Family Part had reconstructed the record of the FRO hearing, as authorized under Rule 2:5-3(f). Rule 2:5-3(f) is an appellate rule that provides "[i]f a verbatim record made of the proceedings has been lost, destroyed or is otherwise unavailable, the court or agency from which the appeal is taken shall supervise the reconstruction of the record. The reconstruction may be in the form of a statement of proceedings in lieu of a transcript." (Emphasis added). Defendant appeals orders from the 2016 "proceedings" that denied her motion to dismiss the FRO, but those records are not lost. Rule 2:5-3(f)'s reference to "proceedings" is not applicable to the 2004 FRO hearing record. That said, we agree that in other contexts, we have held due process requires a judge to reconstruct the record. In State v. Izaguirre, 272 N.J. Super. 51 (App. Div. 1994), the stenographic notes of a murder trial were inadvertently destroyed shortly after the trial. The trial judge developed a plan for reconstructing the record with the cooperation of both counsel. In Izaguirre, we held that where the record of the trial is needed for appeal or "other valid purpose" and has been lost accidentally, "it becomes the duty of the trial court as a matter of due process 15 A-4820-15T4 entitlement of the parties to reconstruct the record in a manner that, considering the actual circumstances, provides reasonable assurances of accuracy and completeness." Id. at 56; accord State v. Thompson, 405 N.J. Super. 163 (App. Div. 2009); State v. Bishop, 350 N.J. Super. 335 (App. Div. 2002) (stating it is the duty of the trial judge as a matter of due process to reconstruct the record in a manner sufficient to provide a reasonable assurance of accuracy and completeness); see also State v. Casimono, 298 N.J. Super. 22 (App. Div. 1997) (where we were not assured of the accuracy or completeness of the transcript because the trial court reconstructed the record without input from the parties). Here, the trial court denied defendant's motion for reconsideration without considering the alternative approach we suggested in Izaguirre. By so doing, the Family Part did not give due consideration to defendant's due process rights. In fact, the court did not even mention defendants request to reconstruct the record in its statement of reasons, denying the motion for reconsideration. In addressing whether judges should reconstruct the record in this context, we are mindful of the Act's purpose to protect victims of domestic violence. We are equally aware of the potential for misuse of the judicial process when victims of domestic violence are required to appear in court or otherwise respond through counsel and the expenditure of attorney's fees 16 A-4820-15T4 associated with such a process. We also are acutely aware that the process of reconstructing the record can be an arduous one that is fraught with difficulties because witnesses or documents may no longer be available. Of equal importance is the danger that one of the parties will use the opportunity as a means to relitigate the FRO hearing. However, we are satisfied that by including in the Act that an FRO can be dissolved or modified for good cause, the Legislature did not intend to close the courtroom doors to applicants forever merely because the court no longer has a record that can be used to transcribe the FRO proceedings. Due process requires reconstruction of the record in certain circumstances. To guide the courts when confronted with the absence of the transcript in this context, we set forth the following procedures. Where the transcript is available but simply has not been included by the party seeking relief, we continue to subscribe to the approach adopted in Kanaszka. This omission is fatal and the application should be denied without prejudice to allow the applicant to cure this deficiency by obtaining and submitting a complete transcript of the FRO proceeding. However, if the moving party has documentation from the judiciary that the proceeding cannot be transcribed in whole or in part, the court must then determine if this problem was caused by the applicant. In this 17 A-4820-15T4 regard, we do not consider the applicant here to be at fault merely because she did not appeal the FRO or request the transcript shortly after the hearing. The court must determine whether the transcript is in fact completely unavailable or whether it may be retrievable through Court Smart. If there is no audio recording to transcribe or if the recording has been corrupted, preventing its transcription in whole or in part, and the applicant was not the cause of this malfunction, the court must then determine if the applicant can produce evidence to establish a prima facie case that changed circumstances exist to modify or dissolve the FRO in the absence of a transcript. The court should also determine whether the judge who heard the FRO issued detailed findings in a statement of reasons, which would allow the court to conclude that the record is complete and that the moving party did not show prima facie evidence of changed circumstances to dissolve the restraints. The court file may have sufficient information to determine that the moving party has not met its burden of showing changed circumstances. Prima facie evidence includes consideration of the Carfagno factors. If however, the court cannot assess whether to deny the application or is otherwise satisfied that, based on the record before it, the applicant presented a prima facie showing of changed 18 A-4820-15T4 circumstances, the court should reconstruct the record of the FRO hearing. If the parties are represented by counsel, they may be able to stipulate the core salient facts that formed the basis for the issuance of the FRO. The guiding principle is to produce a record that "provides reasonable assurances of accuracy and completeness." Izaguirre, 272 N.J. Super. at 57. If one or more of the parties is appearing pro se, the court should attempt to reconstruct the record by questioning the parties under oath to determine whether what occurred at the FRO hearing can be reasonably and reliably reconstructed. We leave to the discretion of the judge whether to permit pro se litigants to submit a written, sworn account of what occurred at the FRO hearing in lieu of providing an oral account which can be transcribed and made available to us for appellate review. Once the record of the FRO proceeding has been reconstructed, the court must determine whether the applicant has presented sufficient evidence to establish good cause to modify or dissolve the FRO. N.J.S.A. 2C:25-29(d). The Family Part judge retains the discretion to determine whether this determination requires a plenary hearing. As we made clear in Kanaszka, the applicant "has the burden to make a prima facie showing good cause exists for dissolution of the restraining order prior to the judge fully 19 A-4820-15T4 considering the application for dismissal." 313 N.J. Super. at 608 (emphasis added). If the judge is satisfied that reconstruction of the record is not feasible, the judge must make specific findings describing the reasons for this conclusion. In such a case, we hold that where a party requesting to modify or dissolve a FRO has shown prima facie evidence of changed circumstances and where the audio record of the FRO hearing is no longer able to be transcribed, in whole or in part, without the fault of the moving party, the judge may conduct a plenary hearing to determine whether the party seeking modification or dissolution of the FRO is entitled to any relief. Here, the record does not show that the Family Part judge confirmed the inability to produce a transcript of the FRO proceedings. We do not know whether Court Smart was available at that time. Because the court considered the absence of the transcript as procedurally fatal, it never determined if defendant can show a prima facie case of "good cause" under N.J.S.A. 2C:25- 29(d) without the transcript. If defendant cannot meet this burden under Carfagno factors, 288 N.J. Super. at 435, then reconstruction of the FRO record is not required. 20 A-4820-15T4 Reversed and remanded to the Family Part for proceedings consistent with this opinion. We do not retain jurisdiction. 21 A-4820-15T4

click here to get this case.


Docket No.: a5101-15
Decided: 2018-01-17
Caption: NEWTON MEDICAL CENTER V. D.B.
Status: published
Summary:
ROTHSTADT, J.A.D. In this appeal, we are asked to determine whether a patient who requires emergent psychiatric treatment, resulting in his involuntary commitment to a hospital, should be treated differently for charity care purposes than a patient who suffers a physical injury or illness. This issue of first impression arises from a dispute regarding a hospital's attempt to recover payment from an indigent mental health patient, who was involuntarily committed to its facility after being screened by a psychiatric emergency screening service (PESS), when the hospital followed the charity care procedures applicable to a non-emergent admission instead of those applicable to an admission through the hospital's emergency room. The trial court determined on summary judgment that the procedures governing a regular admission applied, and the hospital was entitled to recover from the patient based on a theory of quasi- contract. We disagree and reverse. For the reasons that follow, we hold that when a mental health patient is admitted to a hospital on an emergent basis through the referral of a PESS, the provisions of the charity care regulations dealing with emergency room admissions apply. The facts giving rise to plaintiff, Newton Medical Center's claim for payment from defendant, D.B.,1 are undisputed. Defendant, a diagnosed schizophrenic, was involuntarily 1 We use initials to protect defendant's privacy. 2 A-5101-15T4 committed to plaintiff's short-term care facility (STCF)2 on an emergent basis after he experienced a psychotic episode and the Warren County PESS determined that he was a danger to himself and others. After receiving treatment at plaintiff's STCF from February 19 to February 28, 2013, defendant accumulated a bill of $6745.50,3 which he did not pay. Defendant's reported income in 2013 was well below the poverty level, making him eligible for uncompensated care under New Jersey's Charity Care Program, N.J.A.C. 10:52-11.1 to -11.17.4 Defendant filled out and signed a charity care application, but was advised that the application could not be 2 N.J.S.A. 30:4-27.2(bb) defines an STCF as: [A]n inpatient, community based mental health treatment facility which provides acute care and assessment services to a person with mental illness whose mental illness causes the person to be dangerous to self or dangerous to others or property. A[n STCF] is so designated by the commissioner and is authorized by the commissioner to serve persons from a specified geographic area. 3 Defendant's actual bill totaled $65,639.02, but was reduced pursuant to N.J.S.A. 26:2H-12.52 because defendant was uninsured. 4 The New Jersey Division of Mental Health Services (DMHS) provides quarterly payments to STCFs throughout the State as a component of the Charity Care Program. See N.J.A.C. 10:52-13.6. The quarterly allocation to plaintiff for 2013 was $89,766, a total of $359,064 for the year. 3 A-5101-15T4 processed because he did not provide all of the requisite documentation. Due to his condition,5 defendant failed to provide the documents within the allotted regulatory time period. Plaintiff billed defendant, and subsequently sent four letters demanding payment to defendant's mother's address, where defendant was residing.6 After he defaulted, plaintiff filed suit for recovery of the unpaid bill. Before trial, the parties filed cross-motions for summary judgment. Defendant argued that plaintiff's claim was barred by the payments it received from the DMHS. He contended that the express contract between the State and plaintiff barred plaintiff from recovering from him on a theory of unjust enrichment because plaintiff could not have expected remuneration from defendant. Defendant also asserted that plaintiff could not recover because it failed to follow the charity care application provisions of N.J.A.C. 10:52-11.16, which governs emergency admissions. Plaintiff opposed defendant's motion, arguing that N.J.A.C. 10:52-11.16 was only applicable to patients admitted through the emergency room, and 5 Defendant certified that his "schizoaffective disorder" made "it difficult or impossible for [him] to attend to average, every-day tasks[.]" 6 In his certification, defendant stated that he was unaware of any demands for payment by plaintiff, and that his mother handled the household mail. 4 A-5101-15T4 that the provisions governing regular admission were properly followed in defendant's case. In its cross-motion, plaintiff maintained that because the facts were undisputed and defendant presented no valid defenses, it was entitled to judgment as a matter of law. Upon considering their submissions, the motion judge denied defendant's motion and granted plaintiff's cross-motion. As a threshold matter, the judge found that a quasi-contract existed between plaintiff and defendant, which entitled plaintiff to recover for the services it provided. Relying on the plain meaning of the regulations, the judge rejected defendant's argument that he should be afforded the benefit of the same "stringent" regulations applied to charity care applicants admitted to a hospital through its emergency room for treatment of physical injuries or illnesses. In his written statement of reasons, the judge noted "defendant . . . provided no evidence that he was admitted through an emergency room[,]" which relieved plaintiff of the screening requirements found in N.J.A.C. 10:52-11.16. The judge entered orders on March 10, 20167 denying defendant's motion and granting plaintiff's cross- motion. 7 Due to a clerical error, the order denying defendant's motion was incorrectly dated April 10, 2016. (continued) 5 A-5101-15T4 Defendant moved for reconsideration of the motion judge's grant of summary judgment in favor of plaintiff and denial of his motion for summary judgment. The judge entered an order denying reconsideration on July 6, 2016.8 In his written statement of reasons, the judge again explained: The more stringent emergency room charity care regulations apply only "[i]f a charity care applicant is admitted through the hospital's emergency room." [N.J.A.C.] 10:52-11.16. The plain language of the regulation requires an admission through the hospital's emergency room, in this case [plaintiff’s]. It does not apply to [a] transfer from an emergency screening service or even from another hospital's emergency room. Defendant's appeal from the motion judge's grant of summary judgment and denial of reconsideration followed.9 We review a trial court's order granting summary judgment de novo, applying the same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017). That standard commands that summary judgment be entered "if the pleadings, depositions, (continued) 8 The order was incorrectly dated June 6, 2016. 9 Defendant does not indicate in his notice of appeal or case information statement (CIS) that he is appealing from the denial of his motion for summary judgment. However, he does indicate in his CIS that he is appealing from the denial of his motion for reconsideration, in which he asked the motion judge to reconsider his denial of summary judgment. 6 A-5101-15T4 answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46- 2(c). When no issue of fact exists, and only a question of law remains, we afford no special deference to the legal determinations of the trial court. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Because there is no genuine issue of material fact before us, we review de novo the trial court's conclusion that the provisions of N.J.A.C. 10:52-11.16 did not apply to defendant's situation. Defendant urges that we should reverse the motion judge's entry of summary judgment in favor of plaintiff because his emergent and involuntary commitment to an STCF, by statute, must be made exclusively through a PESS, which "is the gateway for entry to [an] STCF." He asserts that a PESS "deal[s] with emergencies of a psychiatric nature[,]" while "[e]mergency rooms deal with emergent matters of physical illness." Therefore, defendant contends that admission to an STCF through a PESS is equivalent to an emergency room admission. We agree. We begin our analysis by recognizing that this case requires us to interpret the charity care regulations. In our review, we are guided by the following principles. "In 7 A-5101-15T4 interpreting regulations, we take the same approach we do in construing statutes." In re N.J. State Funeral Dirs. Ass'n, 427 N.J. Super. 268, 273 (App. Div. 2012) (citing U.S. Bank, N.A. v. Hough, 210 N.J. 187, 198-99 (2012)). "Determining the intent of the drafter is our paramount goal. Generally, the drafter's intent is found in the actual language of the enactment." Hough, 210 N.J. at 199 (citations omitted). However, "[w]here there is ambiguity, or where a literal reading would lead to an absurd result, a court informs its interpretation with evidence of the meaning the drafter has assigned. In the case of regulations, that intent may be evidenced in the record of the rulemaking process." In re N.J. State Funeral Dirs. Ass'n, 427 N.J. Super. at 274 (citations omitted).10 Hospitals in the State of New Jersey have a statutory duty to provide care to anyone seeking treatment regardless of their ability to pay. N.J.S.A. 26:2H-18.64. To assist hospitals with 10 We observe that we, like the motion judge, do not have the benefit of any input from the state agencies involved in promulgating the charity care regulations. See, e.g., Hough, 210 N.J. at 199-200. If provided, we would have "give[n] considerable weight to [their] interpretation of [the] statutory scheme that the legislature . . . entrusted [them] to administer[,]" and would have "defer[red] to [their] interpretation of both [the] statute and implementing regulation, within the sphere of [their] authority, unless the interpretation [was] 'plainly unreasonable.'" In re Election Law Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010) (citations omitted). 8 A-5101-15T4 this effort, the Legislature authorized the Department of Human Services,11 in conjunction with the Department of Health and Senior Services (collectively, the Departments), to create the New Jersey Charity Care Program. See N.J.S.A. 30:4D-7. Patients "determined to be eligible for charity care" will not be billed "or be subject to collection procedures [and those] determined to be eligible for reduced charge charity care [will] not be billed or subject to collection procedures for the portion of the bill that is reduced charge charity care." N.J.A.C. 10:52-11.14. Under the charity care regulatory scheme, a hospital patient "or [a] responsible party may submit a completed application for a hospital to make a determination for charity care or reduced charge charity care at any time up to one year from the date of outpatient service or inpatient discharge."12 N.J.A.C. 10:52-11.13(b). A hospital then has "two years after the date of patient discharge (inpatient) or date of service (outpatient)" to submit a "clean charity care claim[,]" N.J.A.C. 11 More specifically, the Division of Medical Assistance and Health Services. 12 "At the hospital's discretion, the hospital may [also] accept a completed application within two years of the date of service (outpatient) or date of discharge (inpatient)." N.J.A.C. 10:52-11.13(b). 9 A-5101-15T4 10:52-12.1, in order for the claim to be documented and considered in the Department of Health and Senior Service's funding formula. See N.J.A.C. 10:52-13.4. The charity care regulations relating to a patient's application for financial assistance distinguish between patients admitted to a hospital "through the hospital's emergency room" and all other patient admissions. N.J.A.C. 10:52-11.4; compare N.J.A.C. 10:52-11.16 (providing procedure governing charity care eligible patients admitted to a hospital through the emergency room) with N.J.A.C. 10:52-11.5 to -11.10 (providing procedure governing charity care eligible patients admitted to the hospital through regular admission). For patients admitted through the emergency room, the onus is on the hospital to secure the required information to process the application. N.J.A.C. 10:52-11.16(h) provides: [T]he hospital shall make the following efforts to determine whether the applicant is eligible for charity care. The hospital shall: (1) Make at least two attempts to contact the patient by phone . . . to try to schedule an in-person interview to obtain information relevant to the application. If such an interview can be arranged, the hospital shall obtain the relevant information and process the application based on that information. . . .; 10 A-5101-15T4 (2) Visit the address given by the applicant, or otherwise obtained, and attempt to verify that the applicant lives there. . . . If the hospital is able to achieve direct contact with the applicant, the hospital shall try to conduct or schedule an in-person interview to obtain information relevant to the application. If such an interview can be arranged, the hospital shall obtain the relevant information and process the application based on that information. . . .; and (3) Attempt to determine the applicant's income and assets, that shall include observing the nature of the applicant's housing, to determine that there are no indications that the applicant would not likely be eligible for charity care, and obtaining information from persons at the applicant's address or from neighbors regarding the applicant's employment or other means of support. . . . These procedures are in contrast to those applied to patients admitted to a hospital through regular admission. Those regulations provide that the patient is the one ultimately responsible for completing his or her charity care application and supplying the requisite documentation. See N.J.A.C. 10:52- 11.6 (requiring applicants to provide proper identification); N.J.A.C. 10:52-11.7 (requiring applicants to provide "proof of New Jersey residency"); N.J.A.C. 10:52-11.8 to -11.9 (requiring applicants to provide documentation regarding their income); 11 A-5101-15T4 N.J.A.C. 10:52-11.10 (requiring applicants to provide proof of their assets). Further, because "[t]he Charity Care Program [is] the payer of last resort," patients are generally not eligible for charity care unless they are ineligible for any other medical assistance programs. See N.J.A.C. 10:52-11.5(k). The regulations concerning regular admissions impose a three-month window for uninsured patients who have made no payments at the time of service to complete a medical assistance application, otherwise the hospital "[m]ay bill the applicant, consistent with the manner applied to other patients[.]"13 N.J.A.C. 10:52- 11.5(d)(1)(i). No similar obligation or timeframe exists for patients admitted through the emergency room, as the hospital is responsible for "correctly assess[ing] . . . the applicant's eligibility for charity care," which includes "verify[ing] that the applicant is not enrolled in a medical assistance program." See N.J.A.C. 10:52-11.16(b) and (f). Despite the regulations' distinction between emergency room admissions and regular, planned admissions, the term "emergency 13 It is unclear from the record before us whether plaintiff "refer[red defendant] to the appropriate medical assistance program" as it was required to do, or if defendant "declined to be screened for medical assistance[.]" See N.J.A.C. 10:52- 11.5(d). Regardless, our decision today is made on other grounds. 12 A-5101-15T4 room" is not defined in the regulatory scheme. See N.J.A.C. 10:52-11.1 to -11.17. The history of the charity care regulations provides insight into the distinction. By distinguishing emergency room admissions from regular admissions, the Departments were concerned with a "patient's medical condition . . . prevent[ing the hospital from] obtaining even basic eligibility-related information at the time of admission, or at any time [before and after] discharge." 32 N.J.R. 1123(a) (Apr. 3, 2000). According to the Departments, "there are circumstances in which hospitals cannot obtain the required documentation. One such situation . . . involves patients who are admitted through the hospital's emergency room." Ibid. The Departments explicitly stated that "[t]he purpose of the eased documentation requirements is to permit hospitals to establish charity care eligibility in reasonably reliable fashion under difficult circumstances, that is, when a patient is admitted through an emergency room." 32 N.J.R. 2615(a) (July 17, 2000). The Departments expressed their understanding that patients in emergent situations may have trouble providing the requisite documentation to receive uncompensated care. See ibid. They explained: Documentation requirements are eased . . . for patients admitted through the emergency 13 A-5101-15T4 room, in recognition of the fact that it is difficult to document charity care eligibility in such circumstances. In other, less emergent circumstances, patients can and should provide the more stringent documentation required by the existing rules. [Ibid.] The Departments also recognized the possibility of an issue "when a patient admitted through one hospital's emergency room is subsequently transferred to, and admitted at, a second hospital. [Therefore, the rules were] amended . . . to permit a hospital admitting such a transferred patient to rely upon the charity care determination of the transferring hospital in these circumstances." Ibid. Here, because of the absence of a definition of "emergency room," the literal terms of the regulations could be interpreted as requiring defendant to have applied for charity care as a regular admission, despite his need for emergent treatment, just because he was not admitted through an emergency room located in a hospital, and even though his condition prevented him from completing his application within the regulatory time period. However, we do not view the use of the term "emergency room" as imposing a requirement that involuntarily committed mental health patients, who are admitted on an emergent basis through a PESS, must pass through an actual hospital emergency room in 14 A-5101-15T4 order to trigger N.J.A.C. 10:52-11.16's procedures. Such a reading would be completely contrary to the regulations' clear purpose that individuals in emergent situations should be relieved of the obligation to produce the necessary materials and information and instead be properly screened for charity care eligibility by the hospital. The entry point for patients involuntarily committed to STCFs is the PESS, rather than the emergency room attached to a hospital. See N.J.A.C. 10:37G-1.2 ("All admissions to [STCFs] must be referred through a designated emergency/screening mental health service."). Notably, in a prior decision, we refused to adopt an interpretation of the involuntary psychiatric commitment law, N.J.S.A. 30:4-27.1 to -27.23, to require PESS units to operate out of the physical location of a hospital or its emergency room. See Warren Hosp. v. Dep't of Human Servs., Div. of Mental Health Servs., 407 N.J. Super. 598, 602, 616 (App. Div. 2009). In Warren Hospital, we recognized that "[a]s the entry point, screening services were intended to provide 'accessible crisis intervention, evaluation and referral services to mentally ill persons in the community' and 'alternatives to inpatient care . . . and when necessary, to provide a means for involuntary commitment.'" Id. at 612 (second alteration in original) (quoting N.J.S.A. 30:4-27.1(d)). 15 A-5101-15T4 We noted, "screening services and STCFs are designed to 'lessen inappropriate hospitalization and reliance on psychiatric institutions,' and afford the opportunity for treatment in the least restrictive setting." Ibid. (citation omitted). Regardless of the screening service’s location, a patient referred to an STCF by a PESS faces similar emergent circumstances as a patient admitted through the emergency room, as a PESS deals with emergencies of a psychiatric nature. See id. at 614 ("[T]he definition of a '[s]creening service' [is] an 'ambulatory care service' that provides 'mental health assessment, emergency and referral services to persons with mental illness[.]'" (second alteration in original) (quoting N.J.S.A. 30:4-27.2(z)). In both situations, the hospital may be unable to obtain "even basic eligibility-related information" from the patient due to their physical or psychiatric impairment at the time of admission and after discharge. 32 N.J.R. 1123(a). Consistent with the Departments' intent, we hold that the term "emergency room" within the meaning of the regulations encompass a category of emergent admissions that incorporates emergent transfers to STCFs from a PESS. We recognize that the Departments rejected having the "requirements for patients admitted through the emergency room be extended to patients 16 A-5101-15T4 admitted under all circumstances" because it wanted "to protect the integrity of the charity care program." 32 N.J.R. 2615(a). However, our interpretation today does not extend to all patients, only those involuntarily committed on an emergent basis after being assessed by an emergency screening service. We do not believe that our reading of the regulations compromises the integrity of the program. Rather, it assures that a whole category of patients, specifically those involuntarily committed due to emergent psychiatric issues, are not excluded from the protections offered by N.J.A.C. 10:52- 11.16. Accordingly, we conclude that consistent with N.J.A.C. 10:52-11.16, plaintiff was required to contact defendant by phone at least twice, and schedule an in-person interview or send a social worker to his address in order to obtain the necessary information to process his charity care application. See N.J.A.C. 10:52-11.16(h). Because plaintiff failed to do so, it is barred from recovering from defendant. See, e.g., Hosp. Ctr. at Orange v. Cook, 177 N.J. Super. 289, 303 (App. Div. 1981)14; see also N.J.A.C. 10:52-11.14. 14 In Cook, we considered whether "a medically indigent patient who is sued by a hospital for recovery of its unpaid bill for services may plead as a defense to the action the hospital's noncompliance with its obligations under the Hill-Burton Act [42 (continued) 17 A-5101-15T4 The judgment of the trial court is reversed and the matter is remanded for the entry of orders granting defendant's motions for summary judgment and reconsideration, denying plaintiff's cross-motion, and dismissing the complaint with prejudice. We do not retain jurisdiction. (continued) U.S.C. §§ 291-291o-1; see also 42 U.S.C. §§ 300o-300t]." Cook, 177 N.J. Super. at 291. We answered that question in the affirmative, holding that "the effect of the [h]ospital's noncompliance . . . on its right to collect its bill . . . . precludes it from so doing." Id. at 303. Although in Cook, we dealt specifically with the plaintiff hospital's noncompliance with the notice procedures in the Hill-Burton Act, we discern no reason not to apply the same logic to the case at hand. 18 A-5101-15T4

click here to get this case.


Appellate Division UNPUBLISHED Decisions


Docket No.: a0040-16
Decided: 2018-01-22
Caption: IN THE MATTER OF S.P
Status: unpublished
Summary:
PER CURIAM S.P., the mother of a child born in 2009, appeals from a final agency decision by the New Jersey Division of Child Protection and Permanency (Division) determining, pursuant to N.J.A.C. 10:129-7.3(c)(3),1 that an allegation of neglect had not been established. Such a determination allows the Division to maintain a record of its investigation should future interventions become necessary. S.P. argues there exists insufficient evidence in the record to support the Division's findings. She also contends that the Division deprived her of the opportunity to "challenge the investigatory finding through the administrative process." We disagree and affirm. We must "uphold an agency's decision 'unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 301-02 (2011) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). We conclude that S.P.'s contentions are without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(D), (E). We add the following brief remarks. The finding against S.P. was "not established." N.J.A.C. 3A:10-7.3(c)(3) explains that "[a]n allegation shall be 'not established' if there is not a preponderance of the evidence that a child is an abused or neglected child as defined in N.J.S.A. 9:6-8.21, but evidence indicates that the child was . . . placed 1 This statute has been recodified as N.J.A.C. 3A:10-7.3(c)(3). 2 A-0040-16T4 at risk of harm." The Division's determination that the allegation was "not established" pursuant to N.J.A.C. 3A:10-7.3(c)(3) is supported by substantial evidence in the record and is neither arbitrary, capricious, nor unreasonable. While the record clearly demonstrates S.P. did not abuse or neglect the child pursuant to N.J.S.A. 9:6-8.21(c), the finding of "not established" was appropriate because the evidence indicated that S.P. placed the child at risk of harm. The Division received a referral that S.P. had used marijuana and cocaine with others. A Division worker talked to S.P., who denied using cocaine but acknowledged that she had smoked marijuana two weeks prior to the referral. S.P. agreed to take a urine test, which was negative but showed an abnormal specific gravity reflecting urine dilution. The test results did not reveal the nature of the dilution and S.P. was unable to provide any explanation for the abnormality. At a substance abuse evaluation, S.P. stated that she first used marijuana about twelve years earlier, when she was twenty- six years old. She admitted smoking the substance about two weeks prior to the referral. She smoked marijuana, she explained, to alleviate back pain. The substance evaluator concluded that S.P. met the criteria 3 A-0040-16T4 for mild marijuana use disorder and recommended Level I outpatient treatment, which she agreed to attend. S.P. then signed a case plan after changing the document from reporting she had a history of smoking marijuana "very sporadically" to reflecting her marijuana use was an "isolated incident." S.P. completed the treatment. The Division determined that the evidence showed that S.P. placed the child at a risk of harm. She admitted smoking marijuana two weeks prior to the referral and one year before that, in addition to using marijuana before that timeframe; two urine screens reflected a diluted sample, for which she offered no explanation; and S.P. signed the case plan only after modifying the language to say that the marijuana incident was an "isolated incident." The Division concluded that her recent use of marijuana was not an "isolated incident," and there remained uncertainty as to the frequency and severity of S.P.'s drug use. A finding of "not established" does not entitle a party to a hearing. Rather it is a final agency decision appealable as of right to us. R. 2:2-3(a)(2). As we recently held in Department of Children & Families v. D.B., 443 N.J. Super. 431, 442 (App. Div. 2015), "N.J.A.C. 10:120A-4.3(a)(2) does not provide a right to an administrative hearing for a finding that abuse or neglect has been . . . 'not established.'" 4 A-0040-16T4 Affirmed. 5 A-0040-16T4

click here to get this case.


Docket No.: a0408-16
Decided: 2018-01-22
Caption: STATE OF NEW JERSEY v. RASHIDA THOMPSON
Status: unpublished
Summary:
PER CURIAM Defendant Rashida Thompson appeals from a judgment of conviction following her guilty plea to third-degree unlawful possession of a controlled dangerous substance. Defendant claims the court erred by denying her motion to suppress evidence seized during a search incident to her arrest because the warrant for her arrest was issued without probable cause. Based on our review of the record, we are convinced the information presented to the judge did not establish probable cause to arrest defendant, and reverse. I. The warrant for defendant's arrest was on a complaint charging her with unlawful possession of a Hi Point semi-automatic handgun,1 N.J.S.A. 2C:39-5(b). During the search incident to her arrest, defendant was found in possession of a controlled dangerous substance (CDS), 3,4-methylenedioxyamphethamine. She was subsequently charged in an indictment with third-degree unlawful possession of CDS, N.J.S.A. 2C:35-10(a)(1), third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35- 5(a)(1) and 5(b)(3), and second-degree unlawful possession of CDS with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1. She was not indicted for unlawful possession of a handgun. 1 In the record before the motion court, the gun is referred to as both a "Hi Point semi-automatic" and "High Point semi- automatic." 2 A-0408-16T3 Defendant moved to suppress the CDS, claiming there was insufficient evidence supporting the court's finding of probable cause for the arrest warrant. The judge who issued the arrest warrant also decided the suppression motion. The motion record shows the State supported its request for the arrest warrant with a four-page report prepared by Jersey City Police Detective T. McVicar that he swore to the judge was accurate and true. The report describes the investigation of a music video recording posted on a website, and states defendant and eleven other "members of the Moneycello Line of the NHB Set of the Bloods Street Gang" are present in the video. A thirteenth person appearing in the video is not identified in the report. McVicar's report describes the video as "ostensibly an amateur music video," and explains that during six separate seconds in the video three different individuals are seen handling, brandishing or pointing a Hi Point handgun, and during four other seconds individuals are in possession of a silver handgun of an unknown make or model. For example, the report states that "[a]t approximately [the] 00:00:46 mark of the video" one of the individuals "is observed brandishing" the Hi Point handgun, "at approximately [the] 00:01:06 mark" a different individual is seen "brandishing" the handgun, and "at approximately [the] 00:02:28 mark" a third individual possesses the handgun. The report 3 A-0408-16T3 includes additional notations for each instance an individual is seen in possession of one of the guns. Defendant is not identified as ever possessing either gun. Other than its description of the individuals possessing the guns, McVicar's report is devoid of any details about what the individuals in the video otherwise do or say.2 With respect to defendant, the report states only that she was "present in the video." The report also explains that members of the Jersey City Police Department's major crimes and street crimes units examined the video and determined it was made for the purpose of promoting the gang and threatening the gang's opponents. The report describes a firearm expert's analysis of the video and determination the Hi Point semi-automatic handgun is a real firearm. The expert's analysis was inconclusive as to whether the other gun depicted, a silver semi-automatic handgun, was real. Because the investigation revealed that the Hi Point handgun was real, the State sought an arrest warrant for defendant's alleged unlawful possession of the Hi Point handgun. 2 The report, however, provides one detail not relevant here. The report states that the unidentified thirteenth person seen in the video is in possession of currency and a cup containing plastic bags filled with suspected marijuana. 4 A-0408-16T3 The State chose not to provide the judge with the video when it applied for defendant's arrest warrant, and the judge never reviewed the recording. In its application for the warrant, the State submitted only McVicar's report to the judge.3 McVicar appeared before the judge, provided sworn testimony that his report was truthful, and answered the judge's additional questions. At the suppression hearing, defendant argued McVicar's report did not establish probable cause to arrest defendant for unlawful possession of the Hi Point handgun because it described the possession of the Hi Point handgun only by others. Defense counsel argued the report did not state that defendant was present when the other individuals possessed the gun and even if it did, defendant's mere presence while others possessed the gun is insufficient to support a finding of probable cause she unlawfully possessed the gun in violation of N.J.S.A. 2C:39-5(b). 3 During the suppression hearing, defense counsel said the State informed her it also provided the judge with photographs in support of the arrest warrant application. In its brief here, the State represents that the judge was presented with photographs when the request for the warrant was made. The record on appeal does not include any photographs and, in his denial of the suppression motion, the judge did not rely on his review of any photographs to support his finding there was probable cause for the arrest warrant. We therefore do not consider whether any photographs supported probable cause for the warrant. See Cmty. Hosp. Grp. v. Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) (stating an appellate court is not "obliged to attempt review of an issue when the relevant portions of the record are not included"). 5 A-0408-16T3 The judge recalled that when he was presented with the arrest warrant request, he asked McVicar if "everybody on these warrants were seen with a gun in the video," and McVicar said they were. The judge said he signed the arrest warrant based on McVicar's response. This suggests the judge understood McVicar testified defendant was in actual possession of one of the guns in the video, but the colloquy during the suppression motion confirmed she was not. Indeed, the report does not identify defendant as being in actual possession of either gun and the State does not argue the video showed defendant in actual possession of either gun. As a result, the argument before the motion court shifted to whether defendant was present in the video when others were in possession of the guns and, if based on mere presence, there was probable cause defendant unlawfully possessed the Hi Point handgun. The judge stated that McVicar testified defendant was present in the video while the others possessed the guns. The judge did not make notes or otherwise document McVicar's testimony. At the suppression hearing, defense counsel, who had apparently seen the video, did not dispute that defendant was present in the video when the Hi Point handgun is possessed by the other individuals. The judge concluded McVicar's statement that defendant was seen in the video while others possessed the Hi Point handgun supported the probable cause determination. The judge found the 6 A-0408-16T3 report showed defendant participated in "a video for the gang," her appearance in the video was not "inadvertent," and "[s]he agreed to be involved in a promotional video where guns were displayed." The court determined the report and McVicar's testimony established probable cause for the arrest warrant, and denied the suppression motion. Defendant subsequently pleaded guilty to third-degree unlawful possession of a controlled dangerous substance. The court imposed a probationary sentence. This appeal followed. Defendant presents the following argument: POINT I THE JUDGE ISSUING THE WARRANT TO ARREST [DEFENDANT] DID NOT HAVE SUFFICIENT INFORMATION THROUGH THE REPORT PRESENTED TO HIM TO CONCLUDE THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT [DEFENDANT] HAD COMMITTED A CRIME. ANY ADDITIONAL ORAL INFORMATION GIVEN BY THE OFFICER, WHICH THE COURT DID NOT CONTEMPORANEOUSLY RECORD, COULD NOT FORM THE BASIS FOR A PROBABLE CAUSE FINDING. CONSEQUENTLY, THE ORDER DENYING [DEFENDANT'S] MOTION TO SUPPRESS EVIDENCE AS THE FRUIT OF AN UNLAWFUL ARREST SHOULD BE REVERSED AND HER GUILTY PLEA VACATED. U.S. CONST. amend. IV, N.J. CONST. (1947), art. 1, ¶ 7. II. A warrant is presumed valid, and a defendant challenging its validity has the burden to prove there was no probable cause supporting the issuance of the warrant. State v. Jones, 179 N.J. 7 A-0408-16T3 377, 388 (2004). We "accord substantial deference to the discretionary determination resulting in the issuance of [a] warrant." State v. Keyes, 184 N.J. 541, 554 (2005) (quoting Jones, 179 N.J. at 388). Our deference to a judge's issuance of a warrant, however, is "not boundless." United States v. Leon, 468 U.S. 897, 914 (1984). A warrant cannot be based on an affidavit or testimony that does not "provide . . . a substantial basis for determining the existence of probable cause." Illinois v. Gates, 462 U.S. 213, 239 (1983). Further, "probable cause is not established by a conclusory affidavit that does not provide a magistrate with sufficient facts to make an independent determination as to whether the warrant should issue." State v. Novembrino, 105 N.J. 95, 109 (1987). "Probable cause to arrest . . . hinges on the distinct and discrete inquiry into whether the person to be arrested has committed or is committing a criminal offense." State v. Chippero, 201 N.J. 14, 29 (2009). For probable cause to arrest, there must be probable cause to believe that a crime has been committed and "that the person sought to be arrested committed the offense." Id. at 28 (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000)); see also State v. Brown, 205 N.J. 133, 144 (2010). 8 A-0408-16T3 "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." State v. Moore, 181 N.J. 40, 46 (2003) (alterations in original) (quoting Schneider, 163 N.J. at 361). "That showing calls for 'more than a mere suspicion of guilt,' but 'less evidence than is needed to convict at trial.'" State v. Ingram, 230 N.J. 190, 213 (2017) (internal citations omitted). A court must "consider the totality of the circumstances when assessing the reasonable probabilities that flow from the evidence submitted in support of a warrant application." Chippero, 201 N.J. 14, 27 (2009). In making the probable cause determination, the judge may consider only information which is "contained within the four corners of the supporting affidavit" or sworn testimony provided by law enforcement personnel. Schneider, 163 N.J. at 363; accord State v. Evers, 175 N.J. 355, 380-81 (2001). Here, the judge issued the arrest warrant on a charge of unlawful possession of the Hi Point handgun during defendant's appearance in the video. To obtain the arrest warrant, the State was required to establish there was probable cause defendant "knowingly ha[d] in [her] possession" the Hi Point handgun "without 9 A-0408-16T3 first having obtained a permit to carry same." See N.J.S.A. 2C:39- 5(b); Model Jury Charges (Criminal), "Unlawful Possession Of A Handgun (N.J.S.A. 2C:39-5(b))" (rev. Feb. 26, 2001). Defendant argues the evidence presented in support of the warrant was insufficient to establish probable cause to arrest defendant for unlawful possession of the Hi Point handgun, and the court erred by relying on McVicar's testimony because the judge failed to make a contemporaneous record. The State contends McVicar's report and testimony established probable cause defendant had constructive and joint possession of the Hi Point handgun, and therefore the court correctly denied the suppression motion. We reject defendant's contention that the judge's failure to document McVicar's testimony requires a reversal of the denial of the suppression motion. Although the judge should have documented McVicar's testimony because a review of a court's probable cause determination requires consideration of the affidavits submitted "as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously," State v. Marshall, 199 N.J. 602, 611 (2009) (quoting Schneider, 163 N.J. at 363), McVicar's testimony did not supply information that was not otherwise in his report. The judge stated only that McVicar testified defendant was present in the video when the guns were possessed by others, 10 A-0408-16T3 but the report provides the identical information, expressly stating defendant and twelve other individuals are "present in the video." Thus, even ignoring McVicar's testimony, his report permitted the reasonable inference that defendant and the others listed in the report were present when the Hi Point gun was held, pointed and brandished by three of the individuals in the video.4 Defendant argues her mere presence in the video did establish probable cause for unlawful possession of the Hi Point handgun. The State argues her presence was sufficient to establish unlawful constructive or joint possession of the handgun5 because the guns were displayed during a video that promoted the gang and threatened its opponents. 4 Defendant did not claim before the motion court and does not contend here that McVicar's report contains any falsehoods. See State v. Howery, 80 N.J. 563, 567 (1979) (quoting Franks v. Delaware, 438 U.S. 154, 170 (1978)) (finding defendant may challenge the veracity of an affidavit supporting a warrant in an evidentiary hearing upon a "'substantial preliminary showing' of falsity in the warrant"). 5 The State argued before the motion court there was probable cause defendant unlawfully possessed the handgun based on accomplice and co-conspirator liability. The State does not make that argument here. An issue not briefed on appeal is deemed waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001). 11 A-0408-16T3 "[A] person has constructive possession of 'an object when, although [s]he lacks physical or manual control, the circumstances permit a reasonable inference that [s]he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.'" State v. Morrison, 188 N.J. 2, 14-15 (2006) (quoting State v. Spivey, 179 N.J. 229, 236 (2004)); see also Model Jury Charges (Criminal), "Possession (N.J.S.A. 2C:2-1)" (rev. June 20, 2014). "Two persons have joint possession of an object when they 'share actual or constructive knowing possession of' that object." Morrison, 188 N.J. at 14 (quoting Model Jury Charges (Criminal), "Possession" (rev. Apr. 18, 2005)). Constructive possession arises out of an individual's conduct with regard to the subject item and is "a function of the relationship and conduct of the parties." State v. Schmidt, 110 N.J. 258, 268, 272 (1998). Immediate control and dominion over an object are not required; it must be shown a defendant had the capacity, by direct or indirect means, to gain almost immediate physical control, and the ability to affect the item during the time in question. Id. at 270-71; see also State v. Brown, 80 N.J. 587, 597 (1979) (finding constructive possession does not require "[p]hysical or manual control of the proscribed item . . . as long as there is an intention to exercise control over it manifested 12 A-0408-16T3 in circumstances where it is reasonable to infer that the capacity to do so exists"). "[C]onstructive possession[, however,] cannot be based on mere presence at the place where contraband is located. There must be other circumstances or statements of defendant permitting the inference of defendant's control of the contraband." State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992), aff'd o.b., 133 N.J. 481 (1993). "A determination of constructive possession is fact sensitive and requires careful scrutiny by a court . . . ." State v. Hurdle, 311 N.J. Super. 89, 96 (1998). A court must consider "the totality of the circumstances, including defendant's presence at the location of the" contraband "as well as other factors before . . . an inference of constructive possession [may] be drawn." Ibid. Here, McVicar's report did not provide sufficient facts permitting the court to make the determination there was probable cause defendant constructively possessed the Hi Point handgun. Other than describing the six seconds during which three individuals possessed the Hi Point handgun, the report does not describe what occurs during the video, the actions of the thirteen people present, or statements, if any, made by anyone. The report does not detail defendant's actions while present in the video, explain if she had an opportunity to observe the others' possession 13 A-0408-16T3 of the weapon, or provide any facts demonstrating an essential element to a finding she constructively possessed the weapon - that she had the capacity to gain almost immediate physical control of the Hi Point handgun or an ability to affect the handgun during the video. See Schmidt, 110 N.J. at 270. Of course, the video recording might have revealed circumstances supporting a probable cause determination, but the State failed to provide the recording to the judge and instead relied on McVicar's report. The report states only that defendant was "present in the video." But since her mere presence alone could not establish she constructively possessed the handgun, Whyte, 265 N.J. Super. at 523, it could not provide probable cause she committed the crime of unlawful possession of a handgun. In sustaining his probable cause determination at the suppression hearing, the judge relied on the portion of McVicar's report describing that members of the police department's major crimes and street crimes units reviewed the video and concluded its purpose was to promote defendant's gang. The judge reasoned that defendant knowingly appeared in the video and therefore constructively possessed the weapons used by her fellow gang members in support of the gang's promotional efforts. The judge's reliance on McVicar's summary of the crime units' conclusions was misplaced. "[P]robable cause is not established 14 A-0408-16T3 by a conclusory affidavit that does not provide . . . sufficient facts to make an independent determination as to whether the warrant should issue." Novembrino, 105 N.J. at 109. An affidavit supporting the issuance of a warrant "must allege specific facts and not conclusions," id. at 110, because the judge must determine "the persuasiveness of the facts relied on by a complaining officer to show probable cause" and "should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime," ibid. (quoting Giordenello v. United States, 357 U.S. 480, 486 (1958)). McVicar's report states that the crime units' conclusion was based on their analysis of the video, but does not detail any facts upon which the conclusion was based. The State's failure to provide the video deprived the judge of the opportunity to determine whether the crime units' conclusion was supported by any facts. It was therefore error for the court to rely upon the crime units' wholly conclusory allegations in his determination of probable cause. Ibid. We are mindful that affidavits and other sworn submissions supporting the issuance of arrest warrants are often "prepared in the midst and haste of criminal investigations, and by police officers and detectives who are laymen not possessed of the expertise in draftsmanship to be expected of a member of the bar 15 A-0408-16T3 or bench." State v. Boyd, 44 N.J. 390, 392 (1965). Here, the State relied on an investigative report which provided scant details concerning what occurred in the video, and absolutely no details concerning defendant's actions other than she was present. In issuing a warrant, a court "cannot infer facts that are not supported by" the sworn submissions of law enforcement. State v. Boone, __ N.J. __, __ (2017) (slip op. at 14). We have carefully considered the report and, for the reasons noted, are constrained to conclude it failed to provide sufficient facts supporting the court's determination there was probable cause that defendant had constructive possession of the Hi Point handgun. We therefore reverse the court's order denying defendant's motion to suppress the evidence seized incident to her arrest, vacate defendant's conviction and sentence, and remand for further proceedings. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 16 A-0408-16T3

click here to get this case.


Docket No.: a0630-16
Decided: 2018-01-22
Caption: STATE OF NEW JERSEY v. CRAIG A. SCOTT
Status: unpublished
Summary:
PER CURIAM Defendant appeals from an April 15, 2016 order denying his petition for post-conviction relief (PCR). Defendant's petition contended his trial counsel rendered ineffective assistance by failing to produce alibi witnesses; object to testimony from Patrick Hall; advise defendant of the penal consequences before rejecting a plea deal; object to playing a taped recording of testimony from a witness; object to testimony from a detective; and ask for a limited instruction to the jury. Judge Michael L. Ravin denied the petition after conducting an evidentiary hearing as to the alibi witnesses. We affirm. Defendant is serving two consecutive life prison terms for murdering two juveniles. We affirmed the convictions in an unpublished opinion. State v. Scott, No. A-2948-10 (App. Div. Aug. 13, 2013), certif. denied, 217 N.J. 288 (2014). On his direct appeal, defendant had raised the following arguments: POINT I THE STATE HAVING CONCEDED THAT "THE MAJORITY OF" JARON WINKEY'S STATEMENT TO THE POLICE WAS "A FALSE STORY HE CREATED," THE TRIAL COURT ERRED IN ADMITTING THAT STATEMENT PURSUANT TO N.J.R.E. 803(a)(1) BECAUSE IT WAS UN-RELIABLE, SELF-SERVING, AND NOT CORROBORATED BY OTHER EVIDENCE IN THE CASE. A. INTRODUCTION B. LEGAL ARGUMENT 2 A-0630-16T1 POINT II AFTER PATRICK HALL TESTIFIED THAT HE HAD VIEWED 20 OR 30 PHOTOGRAPHS, INCLUDING ONE OF DEFENDANT, BEFORE SELECTING DEFENDANT'S PHOTO FROM AN ARRAY, THE TRIAL COURT SHOULD HAVE RECONSIDERED DEFENSE COUNSEL'S REQUEST FOR A WADE[3] HEARING. (NOT RAISED BELOW). POINT III THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY WHEN THE COURT FAILED TO MAKE ANY INQUIRY AFTER RECEIVING THE FOREPERSON'S NOTE SUGGESTING THAT SHE WAS TOO AFRAID TO READ THE VERDICT IN OPEN COURT. (NOT RAISED BELOW). POINT IV THE AGGREGATE OF TRIAL ERRORS DENIED DEFENDANT A FAIR TRIAL AND REQUIRES THAT HIS CONVICTIONS BE REVERSED. ________ 3 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). [Id. at 7-8.] On the direct appeal, defendant raised the following additional arguments in his pro se supplemental brief: POINT I SINCE JUROR NUMBER TWO WAS UNABLE TO CONTINUE UNDER R. 1:8-2(d), AND THE JURORS HAD YET TO REACH A CRUCIAL STAGE IN THE TRIAL, THE TRIAL COURT ERRORE [SIC] IN FAILING TO DISCHARGE HER FROM FURTHER JURY SERVICE. THUS VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMENDS. VI, VIX; 3 A-0630-16T1 N.J. CONST. (1947) ART. I PARS. 1, 9, AND 10. (NOT RAISED BELOW). POINT II THE STATE'S PRESENTATION OF HEARSAY, TO THE EFFECT THAT DEFENDANT'S PHOTOGRAPH WAS INCLUDED IN THE ARRAYS SHOWN TO EYEWITNESSES BECAUSE HE HAD BEEN IMPLICATED IN THE SHOOTING BY A NON-TESTIF[Y]ING WITNESS, VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, AND 10. POINT III THE ADMISSION OF EXTREMELEY [SIC] DAMAGING, BLATANTLY INADMISSIBLE HEARSAY EVIDENCE TO BOLSTER JAROD WINKEY'S TESTIMONY VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION, THE HEARSAY PROHIBITION OF THE EVIDENCE RULES, AND CRAWFORD V. WASHINGTON.[4] POINT IV THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT PATRICK HALL'S PRIOR CONVICTION FOR AGGRAVATED MANSLAUGHTER WAS INADMISSIBLE TO IMPEACH HIS CREDIBILITY. POINT V THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF THE INDIVIDUAL ERRORS, SET FORTH ABOVE DO NOT CONSTITUTE REVERSIBLE ERROR, THE ERROR[S] IN THE AGGREGATE DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW). ________ 4 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). 4 A-0630-16T1 [Id. at 8-9 (alterations in original).] We concluded that defendant's contentions on the direct appeal lacked merit, but rendered a twenty-five page decision nevertheless. Id. at 9. On this appeal, defendant argues: POINT I THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S POST-CONVICTION RELIEF CLAIM BASED ON THE FAILURE TO CALL ALIBI WITNESSES. POINT II DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON THE REMAINDER OF HIS POST- CONVICTION RELIEF CLAIMS. We find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(2). In addition to affirming substantially for the reasons given by Judge Ravin in his eighteen-page written decision, we add the following brief remarks. Defendant maintains that his trial counsel failed to produce testimony from two alibi witnesses: defendant's mother; and a friend, who is the mother of defendant's child. At the evidentiary hearing, the PCR judge took testimony from these witnesses and defendant's trial counsel. Defendant argued he was with the friend on the night of the murders. The mother was unable to testify from personal knowledge that defendant was with the friend when 5 A-0630-16T1 the murders occurred. Defendant's certification, in support of his petition, conflicted with the friend's testimony and certification, the mother's certification, and investigative reports. Indeed the friend was unable to say when defendant arrived at her home. Judge Ravin made detailed credibility findings. He found defendant's mother "largely credible," defendant's trial counsel credible, and the friend incredible. Most importantly, the judge found that [defendant] has failed to make out a prima facie case of ineffective assistance of counsel based on [trial counsel's] failure to call [the friend and mother] as alibi witnesses. . . . [Trial counsel] testified that he does not recall being approached by either [the friend or mother] about proffering their testimony as alibi witnesses on [defendant's] behalf. He testified that he had a general discussion about alibi witnesses with [defendant] and explained to him the risks of pursuing that strategy. On the basis of [trial counsel's] testimony, it does not appear that [trial counsel] made the strategic decision not to call [the mother and friend] as alibi witnesses; he claims, instead, that he was not aware that these witnesses could be presented as alibi witnesses. 6 A-0630-16T1 Judge Ravin also concluded that even if defendant had shown prong one of Strickland,1 he failed to demonstrate a prima facie case on prong two. We reject defendant's contention that he was entitled to an evidentiary hearing on the remaining points of purported ineffectiveness. A defendant is entitled to an evidentiary hearing only when he or she "has presented a prima facie [case] in support of [PCR]," meaning that "the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (first alteration in original) (quoting State v. Preciose, 129 N.J. 451, 462-63). Defendant fails to demonstrate a reasonable likelihood of success on the merits for his remaining PCR claims, and thus he is not entitled to an additional evidentiary hearing. Affirmed. 1 Strickland v. Washington, 466 U.S. 668 (1984). 7 A-0630-16T1

click here to get this case.


Docket No.: a1390-15
Decided: 2018-01-22
Caption: MICHAELCANTONE v. BOROUGH OF HARRINGTON PARK
Status: unpublished
Summary:
PER CURIAM Plaintiff Michael Cantone appeals from the October 19, 2015 order denying his motion to vacate judgment pursuant to Rule 4:50-1. After reviewing the contentions in light of the record and applicable principles of law, we affirm. The facts underlying this protracted litigation are set out in this court's prior decision, Cantone v. Borough of Harrington Park, No. A-3248-10 (App. Div. Jan. 29, 2013), and need not be fully repeated here. Briefly, defendant, Borough of Harrington Park, employed plaintiff as a police officer. In 2009, a hearing officer in defendant Harrington Park Police Department found that plaintiff had disobeyed a lawful order, was unfit for duty, and was "a danger to himself and others." Defendant adopted the recommendation of the hearing officer to terminate plaintiff. Following plaintiff's appeal to the Law Division and a trial, in 2011, plaintiff's termination was upheld. We affirmed the decision, and the Supreme Court denied the petition for certification and reconsideration of the denial. Cantone v. Borough of Harrington Park, 214 N.J. 115 (2013). Four years after the entry of judgment by the trial court, plaintiff filed a motion to vacate the judgment pursuant to Rule 2 A-1390-15T1 4:50-1(f).1 The motion papers included certifications of his wife, mother-in-law, and father-in law; these exhibits were not provided in any of the prior filings. On October 19, 2015, Judge Menelaos W. Toskos issued a comprehensive written decision. In his consideration of the application, the judge noted that plaintiff contended that the judgment against him was based on "untrue material facts," which he claimed was supported by the new certifications of his relatives. Under that theory, the motion should have been brought under subsection (a) or (b) of Rule 4:50-1. Rule 4:50-2, however, requires motions addressing those subsections to be filed "not more than one year after the judgment . . . was entered." Therefore, this motion was untimely under subsections (a) and (b). In addressing subsection (f), the judge noted that it must be brought within a reasonable time, and in order to obtain relief, 1 On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; . . . or (f) any other reason justifying relief from the operation of the judgment or order. [R. 4:50-1(a), (b), (f).] 3 A-1390-15T1 "the applicant must demonstrate that the circumstances are exceptional and that enforcement of the order or judgment would be unjust, oppressive or inequitable." Judge Toskos rejected plaintiff's argument that he had "new information" that warranted the granting of relief. The judge stated: The court . . . has not been presented with any explanation as to why the affidavits from Plaintiff's wife and in-laws could not have been provided earlier. That is precisely the purpose of the discovery process. These should have been produced in the first instance at the trial level, or on appeal. . . . The court is not at all persuaded by plaintiff's argument that the motion is now "ripe" after his retention of new counsel. Further, Plaintiff has retained at least three other attorneys on this matter, none of whom discovered this information in the time since the original judgment. Judge Toskos found there was nothing "truly exceptional" about the circumstances in this case and no explanation as to why the newly produced affidavits could not have been obtained during the proceedings four years ago, as the witnesses were "readily available during the initial hearings, trial and appellate reviews." The motion was denied. On appeal, plaintiff points to the newly discovered evidence obtained in his relatives' certifications as support for granting his motion to vacate under Rule 4:50-1(f). He also continues to 4 A-1390-15T1 re-litigate his case, reiterating previously rejected arguments and asserting that he is "the victim of a fraudulent and fabricated allegation." We review the trial court's decision on a motion to vacate judgment for an abuse of discretion. Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J. Super. 91, 98 (App. Div. 2012). "'The trial court's determination under [Rule 4:50-1] warrants substantial deference,' and the abuse of discretion must be clear to warrant reversal." Ibid. (quoting U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012)). An abuse of discretion occurs when a "decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). We are unable to discern any abuse of discretion in the trial judge's conclusions. To the contrary, Judge Toskos considered plaintiff's arguments and issued a well-reasoned opinion. We affirm substantially for the reasons expressed in his decision. There was no explanation why certifications of plaintiff's wife and in-laws could not have been presented at the time of the trial of this matter or at any earlier point in this protracted litigation. As a result, plaintiff did not meet his burden of 5 A-1390-15T1 showing "truly exceptional circumstances." Baumann v. Marinaro, 95 N.J. 380, 395 (1984). The remainder of plaintiff's arguments concern the merits of his case. They were considered, and rejected, by this court in our lengthy prior opinion. The Supreme Court declined review. Plaintiff may not again reassert the arguments that were the basis of his prior appeal. Affirmed. 6 A-1390-15T1

click here to get this case.


Docket No.: a1698-15
Decided: 2018-01-22
Caption: STATE OF NEW JERSEY v. QADREE CHRISTIAN
Status: unpublished
Summary:
FUENTES, P.J.A.D. Defendant Qadree Christian was indicted by an Essex County grand jury and charged with second degree eluding, N.J.S.A. 2C:29- 2(b), and fourth degree resisting arrest, N.J.S.A. 2C:29-2(a)(1), arising from an incident that occurred on December 12, 2013. On that same date, defendant was charged with a number of related motor vehicle violations under Title 39. On April 20, 2015, after the trial court denied defendant's motion to dismiss the indictment, defendant negotiated an agreement with the State through which he pled guilty to second degree eluding. Defendant expressly reserved his right to appeal the court's decision to dismiss the indictment.1 On January 15, 2016, the court sentenced defendant to a term of three years, consistent with the plea agreement. In this appeal, defendant raises the following arguments concerning the trial court's decision to deny his motion to dismiss the indictment. POINT ONE THE COURT COMMITTED [REVERSIBLE] ERROR IN ITS DETERMINATION OF WHEN THE ALLEGED ELUDING INITIALLY OCCURRED. 1 The appellate record does not include the transcript of the plea hearing describing the terms of the plea agreement. However, the State does not challenge defendant's right to seek appellate review of this interlocutory decision. 2 A-1698-15T1 POINT TWO THE STATE FAILED TO ESTABLISH A RISK OF DEATH OR INJUURY TO ANY PERSON AS REQUIRED FOR THE OFFENSE OF SECOND DEGREE ELUDING. A. CONDUCT OCCURRING [SIC] PRIOR TO ELUDING OR ATTEMPT TO ELUDE CANNOT SUPPORT A SECOND DEGREE ELUDING CHARGE B. DEFENDANT'S CONSTITUTIONAL RIGHT TO A GRAND JURY WAS VIOLATED. We reject these arguments and affirm. The transcript of the grand jury proceedings shows the State presented the testimony of Newark Police Officer Orlando Rivera. He testified that on December 12, 2013, at approximately 11:00 p.m., while patrolling the streets in Newark in a marked police car, he observed "a black Chevy Impala with tinted windows driving erratically at 15th Avenue and South Street." Rivera activated the police car's emergency overhead lights and siren. According to Rivera, the driver of the Chevy failed to heed his command to pull over and drove away at a high rate of speed. Rivera radioed the local precinct and requested backup police units to respond. Rivera testified that "the dispatcher" told him "to stay off the air." A Detective Sergeant then directed the dispatcher "to monitor the pursuit." In the meantime, the Chevy continued to drive away, heading into East Orange. Rivera identified defendant as the driver of the Chevy. The pursuit 3 A-1698-15T1 eventually ended "at the ramp at [Route] 280 and Grove Street," when the occupants of the Chevy "bailed out." Defendant was apprehended after "a brief foot-pursuit." In addition to the two criminal charges reflected in the indictment, the arresting officer charged defendant with having tinted windows, N.J.S.A. 39:3-74, failure to follow a police officer's direction, N.J.S.A. 39:4-57, failure to produce proof of insurance and proof of vehicle registration, N.J.S.A. 39:3-29, driving while suspended, N.J.S.A. 39:3-40, and failure to obey the instructions of any official traffic control device, N.J.S.A. 39:4-81. Defendant moved to dismiss the indictment. At oral argument before the motion judge, defense counsel framed his legal position as follows: The issue is not whether or not there was sufficient information to support a finding per se. The issue is whether or not the State presented enough information to support a second degree charge of eluding. As he does in his brief filed in this appeal, defense counsel argued to the motion judge that the crime of second degree eluding requires the State to establish that defendant, while driving a car, "knowingly flees or attempts to elude any police or law enforcement" in a manner that "creates a risk of death or injury to any person." N.J.S.A. 2C:29-2(b). Counsel maintained that 4 A-1698-15T1 Officer Rivera's testimony did not describe conduct that satisfied these statutory requirements. The prosecutor appearing for the State before the motion judge decided not to offer any oral argument, opting instead "to rely on its written positions." Despite this proclamation, the prosecutor noted that, at this phase of the criminal prosecution process, the State was only required to establish probable cause. The motion judge began his oral analysis by noting that to withstand a legal challenge to an indictment, the State must establish a prima facie case that a crime has been committed and that defendant committed it. State v. Hogan, 144 N.J. 216, 227 (1996). The judge then reviewed the elements of the crime of second degree eluding under N.J.S.A. 2C:29-2(b), and noted that the grand jury may draw "a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39[.]" (Emphasis added). Against this legal backdrop, the motion judge made the following findings: Here[,] Detective Rivera testified at [the] Grand Jury hearing that upon observing the defendant driving erratically that Detective Rivera activated his emergency lights and audible device and the defendant failed to heed his lights and sirens[.] Additionally, the detective testified that the defendant 5 A-1698-15T1 sped off at a high rate of speed and did not stop after officers initiated a motor vehicle [stop.] Based on this[,] the State has presented some evidence as to each of the three elements of the offense to establish a prima facie case for second degree eluding. Therefore, the defendant's motion is denied. "An indictment is presumed valid and should only be dismissed if it is 'manifestly deficient or palpably defective.'" State v. Feliciano, 224 N.J. 351, 380 (2016) (quoting Hogan, 144 N.J. at 229.). We review the denial of a motion to dismiss an indictment under an abuse of discretion standard. State v. McCrary, 97 N.J. 132, 144 (1984). Furthermore, this discretionary authority should not be exercised "except for "the clearest and plainest ground[.]" State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984) (quoting State v. Davidson, 116 N.J.L. 325, 328 (Sup. Ct. 1936)). Based on the record we have described here, we discern no legally valid grounds to disturb the motion court's decision. Affirmed. 6 A-1698-15T1

click here to get this case.


Docket No.: a1807-15
Decided: 2018-01-22
Caption: STATE OF NEW JERSEY v. TERRENCE MILLER
Status: unpublished
Summary:
PER CURIAM Defendant Terrence Miller appeals from a September 18, 2015 opinion and order denying his petition for post-conviction relief (PCR). We affirm. Because the issues raised in defendant's petition relate to both the underlying facts and procedural history, we set them forth in some detail. The underlying facts were described by our Supreme Court in State v. Miller, 216 N.J. 40, 48 (2013). This case arose from surveillance conducted by the Trenton Police Department on August 4, 2006. Acting on an informant's tip that an individual was selling drugs at a particular location, a police officer observed a woman approach the suspect under surveillance. The officer watched through binoculars as the suspect crossed the street, walked to the window of a residence and reached into an area next to an air conditioner that was installed in the window. The suspect then returned to the woman and handed her an object for which she gave him money in exchange. The officer called for an arrest unit. While waiting for that unit's arrival, the officer observed a man, later identified as Joseph McKinney, approach the suspect. The suspect crossed the street again, approached the same window and retrieved objects adjacent to the air conditioner. The man returned to McKinney, handed him the objects and collected money from him. The suspect then left the scene. As two officers from an arrest unit arrived, McKinney threw "a quantity of off- white rock-like substance" on the ground, and the officers arrested him. The officers retrieved the bag, which contained 0.09 grams of crack cocaine. Ten minutes later, the officer who had conducted the surveillance saw a man, whom he identified as the same suspect he had seen exiting a Cadillac in which he was a passenger, on the same corner previously under surveillance. Officers arrested the 2 A-1807-15T3 suspect, later identified as defendant. The officers retrieved a bag from the area near the air conditioner, which contained 7.29 grams of crack cocaine. One of the officers conducted a search incident to arrest and found $790 in defendant's possession. On January 16, 2007, a Mercer County grand jury charged defendant with two counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), two counts of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), two counts of second-degree possession of cocaine with intent to distribute on or near a public park, N.J.S.A. 2C:35-7.1(a), one count of third-degree distribution of cocaine, N.J.S.A. 2C:35- 5(a)(1), and one count of second-degree distribution of cocaine on or near a public park, N.J.S.A. 2C:35-7.1(a). The State dismissed three counts prior to trial. Defendant was initially represented by private counsel, but was subsequently appointed a public defender. Shortly before trial was scheduled to begin, a different Assistant Deputy Public Defender was substituted to represent defendant. As described by the appellate panel on direct appeal, [d]efendant was actively represented by counsel from the Public Defender's Office in pretrial proceedings long before the scheduled trial date. Defendant and his attorneys had at least two weeks' notice that trial would begin on Monday, December 10, 2007. For reasons not revealed in our record, managing attorneys at the Public Defender's Office 3 A-1807-15T3 substituted a different Assistant Deputy Public Defender for the staff attorney who had represented defendant in earlier proceedings. At no time did either of the two Assistant Deputy Public Defenders assigned, or the managing attorneys, state to the trial court that they were unprepared to proceed, or request more time to investigate or gather evidence for presentation of a defense. On December 10, 2007, newly-assigned counsel requested an adjournment because defendant wished to meet with him in "a calmer setting so that [they could] discuss and plan this particular matter." Counsel stated he had received the file the previous week and had time to review it and prepare for trial. His goal in requesting an adjournment was to develop "rapport" with his client. The trial judge denied the request. The trial court's ruling resulted in immediately proceeding to a suppression hearing, which was completed that morning. [State v. Miller, 420 N.J. Super. 75, 79-81 (App. Div. 2011), aff'd, 216 N.J. 40 (2013).] Defendant had moved to suppress the physical evidence seized during the investigation. The trial court conducted a testimonial motion hearing the day before the jury was selected. At that hearing, Trenton Police Officer William Mulryne gave detailed testimony regarding the underlying facts. Id. at 81-82. During cross-examination, trial counsel challenged Mulryne's ability to observe the purported drug sales. 4 A-1807-15T3 Defense counsel cross-examined Mulryne, challenging his line of sight to the location of the alleged transactions. Using Mulryne's police report and a photograph of the scene taken by defendant after his arrest, defense counsel questioned Mulryne about his ability to see the individuals involved in the transactions through the branches of trees and other vegetation. He also questioned Mulryne about his reported use of binoculars during the surveillance, although he claimed to be no more than seventy-five feet away. In addition, defense counsel cross-examined Mulryne about the failure of the police to arrest the woman who had engaged in the first transaction and to obtain evidence from her. Defendant was the only other witness at the suppression hearing. He testified he was not at the scene of the drug transactions but was downtown shopping for clothes at that time. On cross-examination, he said a person he only knew by a familiar name, not his true name, had given him a ride to the delicatessen and would support his testimony that he was downtown that day. The trial judge questioned defendant about his prior criminal record of five indictable convictions. Based on credibility findings in favor of the police officer and against defendant, the judge denied defendant's motion to suppress evidence. After hearing defendant's testimony, the prosecutor expressed concern that the defense had not provided notice before the trial of a possible alibi defense, as required by Rule 3:12-2. But the prosecutor did not move to bar an alibi defense, and neither attorney requested an adjournment to investigate such a defense. [Id. at 82.] 5 A-1807-15T3 Jury selection began the next morning. In our earlier opinion, we recounted the timeline of events and trial testimony. After the suppression hearing was concluded during the morning, defense counsel had the remainder of Monday, December 10, to meet with defendant and to plan for the trial beginning the following day. The court had already informed counsel that only the prosecution would need to present evidence the next day. Defense counsel had two additional days to prepare for a defense case because prior judicial commitments prevented the judge from hearing the trial again until Friday of that week. On Tuesday, December 11, a jury was selected in the morning session. During the afternoon, counsel made opening statements, Officer Mulryne testified before the jury in similar fashion as at the suppression hearing, and defense counsel again cross-examined him about his line of sight and his ability to see and identify the individuals involved in the street transactions. The State then called one of the officers who had arrested McKinney and defendant. His direct testimony was brief, as was his cross- examination. He testified that he and other officers stopped and arrested McKinney at a location away from the area where the alleged transactions had occurred. As the police approached, McKinney dropped an object to the ground, which the police recovered and found to contain rock cocaine. The officer also testified that he communicated with Officer Mulryne by radio, and then he participated in defendant's arrest at a corner on Martin Luther King Boulevard. He said defendant's arrest occurred about seven minutes after McKinney's arrest, and he found $790 on defendant's person. The officer further testified he found a bag containing rock 6 A-1807-15T3 cocaine concealed on the side of the air conditioner. Defense counsel cross-examined the second officer about the denominations and nature of the money recovered from defendant, implying that the money was not in a form expected from street sales of illegal drugs. He also questioned the officer about the location of drugs recovered from the air conditioner and the access of other persons to the air conditioner. After the State rested and the jury was excused for the day, defense counsel moved for a judgment of acquittal, which the court denied. Following the two intervening off-days, the trial resumed on Friday, December 14. Defense counsel came ready with three witnesses for the defense. McKinney testified first and admitted he had on his person a quantity of cocaine when he was arrested on that day. He denied that defendant had sold him the cocaine, testifying as follows: DEFENSE COUNSEL: And in fact today it is your testimony that Mr. Miller did not sell you that [cocaine]? MCKINNEY: He never sold me a thing. He don't sell drugs. On cross-examination, McKinney testified he bought the cocaine on Calhoun Street from a man named "Wooden Head Willie." The prosecutor confronted McKinney with a statement he had given to the police at the time of his arrest, in which he described the location where he had purchased the cocaine as "Willow and Barber Street." McKinney was further impeached through other details in his earlier statement to the police, and he admitted having been convicted in 1986 of two counts of distribution of a controlled 7 A-1807-15T3 dangerous substance and in 1987 of endangering the welfare of a child. Valerie Dawkins was the next defense witness. Counsel began direct examination by revealing that Dawkins had been convicted in 1998 of forgery. Dawkins testified she saw defendant outside her apartment located on Martin Luther King Boulevard between two and three o'clock on the day of his arrest, but she did not see him "on the corner engaging in any conversations with any individual" during that afternoon. According to Dawkins, defendant got out of his car and entered the delicatessen carrying "some bags in his hand." The next thing she saw was an unmarked car come up to the corner, some men entered the delicatessen, and they came out a few minutes later with defendant. At some point, more officers arrived in another unmarked car, and those officers searched the alleys on the other side of the street. One officer came out of an alley and said: "I got it." According to Dawkins, defendant immediately said: "That's not mine," to which an officer responded: "It's yours now." Cynthia White was the third witness called by the defense. White did not have a criminal record. On the day of the arrest, she was in the area around the corner from the delicatessen waiting for her son's father, who had called to say he was coming to give her money for their son. White stated that at about 2:00 to 2:30 that afternoon, she saw defendant get out of a black Cadillac and go inside a store. She testified that "[a]fter a couple of hours standing out there the cops came out there. And they went inside the store and brought him out the store." She described defendant's demeanor at this point as "annoyed" and "mouth[ing] off" to the police officers. The prosecutor's cross-examination included the following testimony: 8 A-1807-15T3 PROSECUTOR: How did you come to give a statement to Mr. Miller; how does he know you? WHITE: Well, actually, a couple of months after that happened, I seen Mr. Miller downtown. He was passing out flyers on his–one of his matches, his boxing matches. And I asked what happened on that day, and he begin to tell me. And so he asked me, you know, I said, well, that is wrong, you know, the cops is always harassing people. And he asked me, well, you was there, you know I wasn't doing nothing wrong. I said no, I didn't see you do anything wrong. So actually, yes, I did write that statement, because I don't believe nobody should be behind bars who does not deserve it. White further testified that she herself had been harassed by the police "a couple of times." Defendant elected not to testify at the trial. Defense counsel made a closing argument to the jury based on the testimony of defense witnesses and cross-examination of the police officers. He argued that Officer Mulryne did not have clear sight of the area where the alleged drug sales had occurred, and he had incorrectly identified defendant as the person involved. He also argued that any person could have concealed the bag of rock cocaine in the air conditioner. [Id. at 82-85.] The jury convicted defendant of two counts of third-degree possession of cocaine, two counts of possession of cocaine with intent to distribute, and one count of third-degree distribution of cocaine. Defendant filed pro se motions for a new trial and 9 A-1807-15T3 judgment of acquittal arguing the verdict was against the weight of the evidence. The motions were returnable on June 30, 2008, the date scheduled for sentencing. At the sentencing hearing, defendant's original attorney, who had replaced trial counsel, stated he was unaware of the motions. The judge denied the motion for a new trial. The record does not reflect any ruling on the motion for a verdict of acquittal. Miller, 216 N.J. at 53 n.3. After appropriate merger of several counts, defendant was sentenced to two concurrent five year prison terms, subject to a two-year period of parole ineligibility, along with appropriate fines, penalties, and assessments. Although the judgment of conviction states the sentence on count four was an extended term pursuant to N.J.S.A. 2C:44-3(a), at sentencing, the judge stated he was denying the State's motion for a discretionary extended term. Defendant appealed his conviction, raising the following issues on direct appeal: POINT ONE THE TRIAL COURT'S DENIAL OF DEFENDANT'S REQUEST FOR AN ADJOURNMENT DEPRIVED THE DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW. POINT TWO THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD 10 A-1807-15T3 AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below) In a split decision, the majority noted defendant's second point had recently been rejected by our Supreme Court in State v. Dashawn Miller, 205 N.J. 109, 126-27 (2011), and focused on Point One. The majority recognized "due process requires sufficient time for defense counsel and defendant to confer and prepare, but what is sufficient time is determined by whether defendant has been prejudiced." Miller, 420 N.J. Super. at 86. The constitutional issue "is whether defendant was thus deprived of effective assistance of counsel, or otherwise prejudiced in violation of his due process rights." Id. at 88. "In the absence of a showing of prejudice, . . . defendant is not automatically entitled to a new trial simply because he had seemingly inadequate contact with his attorney." Ibid. The majority then analyzed whether the trial was per se unfair: The second Assistant Deputy Public Defender in this case stated he had received the file "last week, with an opportunity . . . to review and prepare." In addition, his use of the police report and a photograph provided by defendant showed that he had conferred with defendant and had prepared a strategy for the suppression hearing and trial. The trial itself was not beginning until the next day, and the court's schedule gave defense counsel an intervening afternoon and two additional days to meet with defendant, 11 A-1807-15T3 to plan further strategy, and to seek witnesses and evidence for the defense. Denial of an adjournment on December 10 only resulted in proceeding that day to a suppression hearing with doubtful significance in the case. Defense counsel never claimed he was unprepared or needed an adjournment for anything other than to develop "rapport" with his client and to allay his client's "concerns." [Id. at 90.] The majority concluded the facts did "not establish that [defendant] received less than effective assistance of counsel or was otherwise prejudiced at the suppression hearing or at trial." Id. at 93. The record before us does not demonstrate prejudice in the representation provided by the Assistant Deputy Public Defender or otherwise at trial. Despite the passage of time, defendant has not produced any evidence that particular witnesses or evidence were overlooked because the suppression hearing began the same day and the trial the following day after he first met his substituted trial attorney. He has not demonstrated any aspect of the hearing or trial that would have been conducted differently if only defendant had met earlier with his new attorney. Considering the substantial post-trial delay until sentencing, defendant had further opportunity to present evidence to the trial court that his defense had been prejudiced. He made no such showing. [Id. at 95.] 12 A-1807-15T3 In affirming the conviction, the majority made clear it was not determining whether defendant may subsequently present evidence in a PCR proceeding "alleging ineffective assistance of counsel or other due process violation." Id. at 95-96. Defendant appealed to the Supreme Court as a matter of right pursuant to Rule 2:2-1(a)(2). After briefing and oral argument, the Court remanded the matter to the trial court to develop a factual record with respect to defendant's opportunity to confer with his counsel before the trial court's hearing on the suppression motion. Miller, 216 N.J. at 46-47. Following an evidentiary hearing, the judge on remand submitted factual findings to the Supreme Court. The Court affirmed the Appellate Division, holding "that when a defendant seeking an adjournment asserts an inadequate opportunity to confer with new counsel, the trial court should consider the factors enumerated in [State v. Hayes, 205 N.J. 522, 538 (2011)], carefully weighing the competing interests raised by the factual setting of the individual case." Id. at 47. The Court "reiterate[ed] the rule articulated in Hayes: a trial court's abuse of discretion in denying an adjournment request does not require reversal absent a showing of prejudice." Ibid. (citing Hayes, 205 N.J. at 537-39). Applied here, the Court concluded the Hayes balancing test did not warrant the reversal of defendant's conviction. 13 A-1807-15T3 The judge's denial of the adjournment, however, did not constitute an abuse of discretion, in light of the history of the case, the defendant's brief meeting with his counsel before the pretrial hearing and the newly-appointed attorney's representation that he was prepared to proceed. We hold that the trial court's decision offended neither constitutional norms nor principles of fundamental fairness. [Id. 47-48.] Following his failed direct appeal, defendant filed a pro se PCR petition on November 18, 2013. The petition was denied on January 21, 2014, "due to defendant's failure to exhaust his appeals pursuant to R. 3:22-3." Following denial of defendant's petition for certiorari on February 24, 2014, Miller v. New Jersey, ___ U.S. ___, 134 S. Ct. 1329 (2014), defendant resubmitted his PCR petition, which claimed ineffective assistance of trial and appellate counsel. Counsel was appointed to represent defendant. Judge Timothy P. Lydon conducted a two-day testimonial hearing on June 24, 2015 and August 13, 2015. Testimony was taken from defendant and three defense witnesses: Alonzo Leary, Robert Littlejohn, and trial counsel Michael Anthony Amantia. Leary testified that sometime in August 2006, defendant called him for a ride. Leary's testimony was contradictory regarding where he allegedly picked defendant up and dropped him off, how long he was with defendant, and what store defendant 14 A-1807-15T3 visited. When confronted with these inconsistencies, Leary stated that he had dropped defendant off places many times on prior occasions and was "cloudy" as to which time the State was referring to. Judge Lydon concluded that Leary's testimony was "unreliable." The judge explained: Mr. Leary was defensive and visibly uncomfortable at times. He made numerous remarks throughout the hearing that gradually eroded any confidence in his testimony. When he was asked to provide specific details, he hesitated and showed concern that he would compromise the [d]efendant's case. For example, Mr. Leary initially objected to answering questions about Mr. Bey's investigative report. He grew increasingly frustrated as the hearing continued and at one point emphasized that he did not want to be "the reason why anybody goes to jail." His account of the events that transpired on that day was beset with confusion and contradiction. In fact, it is not clear to discern the substance of the testimony that Mr. Leary would provide at trial. He waivered repeatedly between the locations where he ultimately dropped off the [d]efendant. . . . As his testimony progressed, he continued to vacillate. . . . Mr. Leary's equivocation impairs his credibility. His failure to provide a coherent recounting of the day's events renders his value as an alibi witness a nullity. The judge found Leary's uncertainty suggested he had confused defendant's arrest with another incident involving defendant and 15 A-1807-15T3 the police. The judge also found Leary's testimony "problematic because it conflict[ed] with the [d]efendant's testimony." The judge found this disparity "significant because it affects the merit and credibility of the [d]efendant's alibi." Defendant's other witness, Littlejohn, simply testified that he made arrangements to play chess with defendant near Martin Luther King, Jr. Boulevard on the afternoon he was arrested. Although he was found credible, the judge concluded Littlejohn did not present any testimony that provided meaningful support for the defendant's alibi . . . . The defendant asserts that Mr. Littlejohn's testimony could have explained the [d]efendant's presence in the area the day he was arrested. Although the [d]efendant's point is valid, Mr. Littlejohn's testimony in no way precludes the possibility that the [d]efendant engaged in drug transactions. Mr. Littlejohn did not address or corrobortate the crucial aspects of the [d]efendant's alibi, including [d]efendant's location at the time of the drug transactions or verify the [d]efendant's activities earlier in the day. The judge also analyzed Mulryne's statement that he observed a "narcotics transaction" under McLean. The judge characterized it as "merely an 'off the cuff remark' that was not elicited as an expert opinion." He determined that any potential prejudice that accrued from Mulryne's remark was "minimal" or "negligible" since "it was not truly in dispute that the officer observed a drug transaction." Instead, "[d]efendant provided an alibi 16 A-1807-15T3 defense and claimed Officer Mulryne identified the wrong individual." On September 18, 2015, Judge Lydon issued a comprehensive twenty-four page opinion denying defendant's petition. Defendant raises the following issues in this appeal: POINT I THE TRIAL COURT ERRED IN DENYING MILLER'S PETITION BECAUSE MILLER'S TRIAL COUNSEL WAS NOT PREPARED TO TRY THE CASE ON SHORT NOTICE WITHOUT ADEQUATE INVESTIGATION. A. Trial Counsel was ineffective Because He Admitted He Was Not Prepared To Try The Case. B. Miller Was Prejudiced Because The Testimony of Leary And Littlejohn Would Have Impacted The Result. POINT II THE TRIAL COURT ERRED IN DENYING MILLER'S PETITION BECAUSE MILLER'S INITIAL ATTORNEYS FAILED TO PROPERLY INVESTIGATE, WHICH RESULTED IN MILLER'S TRIAL COUNSEL HAVING TO TRY A CASE ON SHORT NOTICE WITHOUT ADEQUATE INVESTIGATION. (Partially Raised Below) POINT III THE TRIAL COURT VIOLATED MILLER'S RIGHTS TO DUE PROCESS OF LAW AND FUNDAMENTAL FAIRNESS WHEN IT FORCED MILLER TO GO TO TRIAL WITH AN ATTORNEY WHO HAD FAILED TO PERFORM AN ADEQUATE INVESTIGATION. (Not Raised Below) 17 A-1807-15T3 POINT IV THE TRIAL COURT ERRED IN FINDING THAT OFFICER MULRYNE'S TESTIMONY DID NOT VIOLATE STATE V. MCLEAN, 205 N.J. 438 (2011). Under the Sixth Amendment of the United States Constitution, a criminal defendant is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland, and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (l987). In general, in order to prevail on a claim of ineffective assistance of counsel, defendant must demonstrate that: (l) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" to the United States Constitution; and (2) the errors prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687, 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687. 18 A-1807-15T3 "Although a demonstration of prejudice constitutes the second part of the Strickland analysis," courts may "choose to examine first whether a defendant has been prejudiced, and if not, to dismiss the claim without determining whether counsel's performance was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted). "With respect to both prongs of the Strickland test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his or her right to relief by a preponderance of the evidence." Ibid. (citing State v. Echols, 199 N.J. 344, 357 (2009); State v. Goodwin, 173 N.J. 583, 593 (2002)). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. This deference is paid only after "counsel thoroughly investigates law and facts, considering all possible options." State v. Savage, 120 N.J. 594, 617 (1990). However, complaints relating merely to strategic decisions "will not serve to ground a constitutional claim of inadequacy of representation by counsel." Fritz, 105 N.J. at 54 (citing State v. Williams, 39 N.J. 471, 489 (1963); 19 A-1807-15T3 State v. Knight, 63 N.J. 187 (1973); State v. Bonet, 132 N.J. Super. 186 (App. Div. 1975)). The second Strickland-Fritz prong requires a defendant to show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. The defendant must show there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. This determination is made in consideration of "the totality of the evidence before the judge or jury." State v. L.A., 433 N.J. Super. 1, 14 (App. Div. 2013) (quoting Strickland, 466 U.S. at 695). Prejudice may be presumed but only "in cases exemplified by egregious shortcomings in the professional performance of counsel." Fritz, 105 N.J. at 61. Inadequate attorney preparation, on its own, is insufficient to warrant a presumption of prejudice. Id. at 61-62. Defendant must establish a reasonable probability that the trial verdict would have been different but for trial counsel's ineffectiveness. Id. at 52. "Our standard of review is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). For that reason, "we will uphold the PCR court's findings that are supported 20 A-1807-15T3 by sufficient credible evidence in the record." Ibid. (citing State v. Harris, 181 N.J. 391, 415 (2004); State v. Elders, 192 N.J. 224, 244 (2007)). However, a reviewing court "need not defer to a PCR court's interpretation of the law; a legal conclusion is reviewed de novo." Id. at 540-41 (citing Harris, 181 N.J. at 415- 16). Regarding the first prong of the Strickland-Fritz test, defendant claims counsel was deficient because he failed to investigate all available defenses. Namely, that defendant had an alibi and the money found on his person could be explained due to the fact that he had just cashed a paycheck before being arrested. Defendant argues counsel's decisions should not be considered strategic given his alleged failure to investigate. As to the second prong of the Strickland-Fritz test, defendant argues he was prejudiced because evidence of defendant's cashing of a check and the testimony of witnesses that should have been called, but were not called, would have impacted the result of the trial. We affirm the denial of defendant's petition substantially for the reasons stated by Judge Lydon in his thorough and well- reasoned written opinion. We add only the following comments. "In addressing an ineffective assistance claim based on a counsel's failure to call an absent witness, a PCR court must 21 A-1807-15T3 unavoidably consider whether the absent witnesses's testimony would address a significant fact in the case, and assess the absent witnesses's credibility." L.A., 433 N.J. Super. at 15. "In considering the impact of the absent witness, a court should consider: '(1) the credibility of all witnesses, including the likely impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled witnesses with the actual defense witnesses called; and (3) the strength of the evidence actually presented by the prosecution.'" Id. at 16-17 (quoting McCauley- Bey v. Delo, 97 F.3d 1104, 1106 (8th. Cir. 1996)). The record amply supports Judge Lydon's assessment of the credibility and substantive impact of the witnesses who testified during the PCR hearing, and the interplay of that testimony with the trial testimony. The record also supports his analysis of negligible impact of Mulryne's testimony that he observed a "narcotics transaction" under McLean. The record further supports the conclusion that defendant did not meet his burden under the second prong of the Strickland-Fritz test. Defendant did not demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. 22 A-1807-15T3 To the extent defendant argues on PCR that the trial court's denial of a request for an adjournment of the suppression hearing and trial prevented trial counsel from adequately preparing to try the case, that issue was decided on the merits in his direct appeal. Defendant is procedurally barred from re-raising issues on PCR that were decided on the merits on direct appeal. R. 3:22- 5; State v. Marshall, 148 N.J. 89, 147-52 (1997); State v. McQuaid, 147 N.J. 464, 484 (1997); State v. Preciose, 129 N.J. 451, 476 (1992). Affirmed. 23 A-1807-15T3

click here to get this case.


Docket No.: a3071-15
Decided: 2018-01-22
Caption: NATHAN SILVERSTEIN v. TOWNSHIP OF MIDDLETOWN
Status: unpublished
Summary:
PER CURIAM 1 These are back-to-back appeals consolidated for the purpose of this opinion. In these consolidated appeals, plaintiff appeals from the Tax Court judgments affirming the 2013 and 2014 tax assessments of defendant's once-grand home on a bluff overlooking the Navesink River in Middletown. Adducing the evidence presented at trial, Judge Mala Sundar, after rejecting the expert testimony presented by both parties, concluded plaintiff failed to satisfy his burden of proving the assessments incorrect. We agree and, applying the applicable law and standards of review, affirm for the reasons set forth in Judge Sundar's thorough and thoughtful written opinion. We consider first plaintiff's argument that "[t]he evidence considered by the Tax Court demonstrates that the quantum of the assessment is so far removed from the property's true value as to require adjustment" because plaintiff's 2012 purchase price of the property and both parties' experts' valuation of the property was substantially below the assessments of $5,122,100.2 Although we review a Tax Court's legal determinations de novo, UPS Gen. Servs. Co. v. Dir., Div. of Taxation, 430 N.J. Super. 1, 8 (App. Div. 2013), aff'd, 220 N.J. 90 (2014), our review is highly deferential, Estate of Taylor v. Dir., Div. of Taxation, 2 Plaintiff purchased the property for $3,100,000. Plaintiff's expert opined the property's value was $2,820,000 and $2,715,000 for 2013 and 2014, respectively. Defendant's expert valued the property at $4,000,000 for both years. 2 A-3071-15T3 422 N.J. Super. 336, 341 (App. Div. 2011). "The judges presiding in the Tax Court have special expertise; for that reason their findings will not be disturbed unless they are plainly arbitrary or there is a lack of substantial evidence to support them." Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 46 (App. Div.), aff'd, 12 N.J. Tax 118 (Tax 1990). We also owe "due regard to the Tax Court's expertise and ability to judge credibility." Southbridge Park, Inc. v. Borough of Fort Lee, 201 N.J. Super. 91, 94 (App. Div. 1985). Judge Sundar held that credibility was a "primary issue" as it related to each expert's adjustment for the concededly poor condition of significant portions of the [property's] exterior and interior. Each expert's methodology is problematic. Plaintiff's expert disfavored the cost approach as unreliable due to difficulty in estimating depreciation and entrepreneurial profits, yet he included a [fifteen percent] entrepreneurial profit when computing his costs-to-cure claiming that was the standard or acceptable margin. [Defendant's] expert verified his "adjustment for physical condition" by comparing his conclusion of the [property's] value as-new and its value in its existing condition, however this presupposed that his value conclusions were credible. The judge went on to address "the more pressing problem common to both experts" and found that both adjusted their valuations because of the poor physical condition of the property but neither 3 A-3071-15T3 expert had the necessary expertise "to make the foundational determination" as to what renovations were required because "neither [was] a contractor, a developer, an architect, or a building construction specialist/expert." Judge Sundar, in rejecting plaintiff's expert's opinion, distinguished cases in which an expert appraiser – utilizing cost- to-cure to devalue a property – relied on qualified experts who analyzed the costs of renovation, rehabilitation, "design, engineering, construction management, and contingency costs." Although the judge found that plaintiff's expert's application of cost-to-cure to adjust the valuation of the property – because of its "poor condition and required deferred maintenance" – was "reasonable, and indeed, preferable to a subjective adjustment," she rejected the expert's opinion because the evaluation of the items in need of repair or replacement and the estimate of costs was unpersuasive due to lack of a foundational requirement, namely, credible and reliable evidence establishing the need for, and estimated costs of, a structural gutting and rebuilding of the entire [property's] interior. In this connection, plaintiff's testimony that various contractors advised him of the need to replace windows and doors is unpersuasive and hearsay. His testimony that the roof and brickwork had "problems" is also unpersuasive for purposes of a value conclusion, since he is not an architect, builder or developer. 4 A-3071-15T3 The judge also recognized plaintiff's expert conceded in his report that, because he was not an engineer and was not "required to hire one, he was not responsible for the structural 'soundness' of improvements or of the 'functional utility of major appliances or mechanical units,'" and "that he did not review material on interior construction and made judgment calls in this regard based on his personal observation, as well as conversations with, and photographs from, the plaintiff." The judge also rejected plaintiff's expert's valuation for other reasons: finding the "significant adjustment for the farmland assessment status" of a comparable used by the expert "unpersua[sive]"; the variation in the depreciation rates for various accessories used to calculate the expert's adjustments "unexplained"; and the reason for the failure to adjust for a conservation deed restriction in a comparable "unpersuasive." Judge Sundar's careful analysis – supported by the record – is entitled to our deference. Her rejection of plaintiff's expert's valuation complied with our Supreme Court's charge that an unsubstantiated expert's opinion should not be accepted by a court. Glen Wall Assocs. v. Twp. of Wall, 99 N.J. 265, 280 (1985). It is well established that challenged real estate tax assessments are "entitled to a presumption of validity." MSGW 5 A-3071-15T3 Real Estate Fund, LLC v. Borough of Mountain Lakes, 18 N.J. Tax 364, 373-80 (Tax 1998). It is incumbent on the taxpayer challenging the municipality's original assessment to rebut the validity of the assessment. Ibid. The judge's rejection of the key valuation evidence presented by plaintiff left plaintiff unable to meet his burden. We also reject plaintiff's argument that the judge failed to recognize that the foundation supporting an expert's opinion must be practically and realistically limited, and failed to ascertain from the evidence an appropriate value for the property. The judge recognized the legal tenets on which plaintiff relies in advancing these arguments and asserted that she did not lightly affirm the assessments. She carefully considered the other evidence presented and rejected same. She did not find plaintiff's purchase price at auction to be credible evidence of the property's fair market value in light of the way auctions are conducted and found subjective plaintiff's expert's opinion that auctions of "palatial homes" result in competitive prices. She also rejected defendant's expert's opinion, detailing the expert's failure to make adjustments for certain amenities, include the data from accepted cost manuals to support his cost-based adjustments, and adjust a comparable for a conservation deed restriction; and for 6 A-3071-15T3 various deficiencies she detailed regarding the expert's cost approach. We conclude Judge Sundar's decision that she was unable to independently value the property is supported by the record. The judge recognized she was duty-bound to make a value determination based on the credible evidence in the record. See Ford Motor Co. v. Twp. of Edison, 127 N.J. 290, 312 (1992) (explaining that when a court "rejects the ultimate conclusions as to the true value proffered by the parties' experts, it should make an independent determination of true value on the basis of those portions of the experts' testimony which the court finds credible"). Although a Tax Court "has the duty to apply its own judgment to valuation data submitted by experts in order to arrive at true value," its "right to make an independent assessment is not boundless; it must be based on evidence before it and data that are properly at its disposal." Glenpointe Assocs., 241 N.J. Super. at 46. A Tax Court judge "must not arbitrarily assign a value to the property which is not supported in the record." Ibid. Moreover, "[t]he probative value of an expert's opinion depends entirely upon the facts and reasoning adduced in support of it." Kearny Leasing Corp. v. Town of Kearny, 6 N.J. Tax 363, 376 (Tax 1984), aff'd, 7 N.J. Tax 665 (App. Div. 1985). "Stated otherwise, an 'expert's conclusion rises no higher than the data which provide the 7 A-3071-15T3 foundation.'" Gale & Kitson Fredon Golf, LLC v. Twp. of Fredon, 26 N.J. Tax 268, 281 (Tax 2011) (quoting Town of West Orange v. Estate of Goldman, 2 N.J. Tax 582, 588 (Tax 1981)). Judge Sundar rightfully refused to accept the expert's opinions she found to be unsubstantiated. Absent any credible admissible evidence of valuation, she was unable to make a proper assessment. The record supports the judge's finding that the evidence used to justify the experts' valuations of this property was lacking, especially considering this property – unique in its location, age, architecture and condition. The judge did not expect an impractical and unrealistic quantum of evidence. She expected well-supported conclusions. Plaintiff failed to provide the Tax Court with adequate and sufficient evidence from which the court could derive the property's value; as such the assessment must stand. See id. at 278-87, 289. We determine plaintiff's arguments regarding the judge's evidentiary rulings are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). "[A] trial court's evidentiary rulings are entitled to deference absent a showing of an abuse of discretion . . . ." State v. Nantambu, 221 N.J. 390, 402 (2015) (alteration in original) (quoting State v. Harris, 209 N.J. 431, 439 (2012)). The home inspection report – 8 A-3071-15T3 including the photographs contained therein – was not timely disclosed in discovery, and its author did not testify, so the report was hearsay that fit no exception. The judge acted within her discretion in excluding same. The use of the conservation easement deed to impeach the expert's valuation of a comparable property was proper. Plaintiff objected to the use of the deed to cross-examine plaintiff's expert only because it was not disclosed by defendant. Any prejudice caused by plaintiff's "surprise" was ameliorated by the judge's offer to allow plaintiff time to examine the deed and to produce rebuttal evidence. In fact, after the case was carried to the next day, plaintiff's counsel – having had the opportunity to review the deed – declined an opportunity to further examine the expert and was "satisfied with the testimony." Inasmuch as it was the nature of the easement that impacted the property value, it is of no moment, as plaintiff now contends, that the deed was not a certified true copy. Plaintiff offered no proof – despite being given time to produce rebuttal evidence after the easement was used to impeach his expert – that the easement was not genuine. Affirmed. 9 A-3071-15T3

click here to get this case.


Docket No.: a3355-15
Decided: 2018-01-22
Caption: DONNA ROBERTS and DAWN ABRAMS v. CLIFFORD S. MINTZ
Status: unpublished
Summary:
PER CURIAM This appeal is a sequel to our decision affirming the summary judgment dismissal of plaintiffs' defamation suit. Roberts v. Mintz, No. A-1563-14 (App. Div. July 26, 2016). Although summary judgment was properly granted, we held that plaintiffs' claims were not frivolous, and vacated the trial court's imposition of $25,000 in sanctions jointly upon plaintiffs and their counsel. Ibid. We presume familiarity with that opinion. While plaintiffs' direct appeal was pending, defendant attempted to enforce the later-vacated order awarding sanctions, as plaintiffs failed to secure a stay. Defendant's counsel served information subpoenas, which plaintiffs' counsel and his clients did not answer. As discussed below, plaintiffs' counsel tried, but failed to properly deposit cash in lieu of a supersedeas bond to stay enforcement of the sanctions order pending appeal. The trial court ultimately entered a second sanctions order, awarding defendant $5000, imposed jointly upon plaintiffs and their attorney, for failure to respond to information subpoenas or to post a supersedeas bond or cash to secure the $25,000 award pending appeal. Plaintiffs and their counsel appeal from the $5000 award. In the exercise of original jurisdiction, we modify and reduce the award. These ancillary proceedings began shortly after entry of the first sanctions order, awarding $25,000, in October 2014.1 As plaintiffs did not immediately seek a stay of that order pending 1 The trial court awarded sanctions roughly four years after it granted summary judgment. Plaintiffs thereafter filed their notice of appeal. We heard argument in March 2016 and issued our decision in July. 2 A-3355-15T4 appeal or post a supersedeas bond, defense counsel served information subpoenas upon plaintiffs and their attorney, seeking responses in fourteen days. After they failed to respond, defendant filed a motion to enforce litigant's rights and plaintiffs filed a motion to stay the sanctions order. In March 2015, the court denied defendant's motion without prejudice and entered a stay conditioned upon plaintiffs posting a supersedeas bond pursuant to Rule 2:9-6 within thirty days. After plaintiffs failed to satisfy that condition, defendant obtained an order in May 2015 compelling plaintiffs and their attorney to answer the information subpoenas, and providing for their arrest if they failed to do so within ten days. The court denied defendant's request for fees. Despite defense counsel's written warnings, responses from plaintiffs and their counsel were not forthcoming. Defense counsel thereafter sought arrest warrants, which were issued in late July 2015. Shortly before that, another panel of our court denied plaintiffs' motion for a stay of the judgment without a bond, or for additional time to procure a bond, but provided that they could renew their motion for a stay before the trial court if they posted a bond within thirty days. At that point, plaintiffs again sought relief from the trial court, which granted their motion in September 2015 for permission 3 A-3355-15T4 to deposit cash in lieu of a bond provided they do so by October 1, 2015; but denied their request for a further stay unless they actually deposited the funds with the clerk of the court. Plaintiffs' counsel soon thereafter obtained a $25,000 bank check, dated September 25, 2015, payable to the Clerk of the Superior Court of New Jersey. However, an unfortunate series of events prevented the proper deposit of that security. It started when plaintiffs' counsel mistakenly submitted the check to the Clerk of the Appellate Division instead of the trial court, notwithstanding Rule 2:9-6(a)(1), which states "the form of security . . . shall be presented for approval to the court . . . from which the appeal is taken . . . ." (Emphasis added). The Appellate Division Clerk's office attempted to return the check to plaintiffs' counsel by regular mail. Plaintiffs' counsel certified he did not receive it, and there was no way to track it. Plaintiffs' counsel then filed two motions to compel the Appellate Division Clerk to execute a stop payment affidavit that, counsel stated, the issuing bank required as a condition for issuing a replacement for the lost check. In May 2016, a different panel of this court denied counsel's first motion for the stop payment affidavit without prejudice, noting that more information was needed about the necessity for an affidavit from the clerk. Plaintiffs' counsel renewed his motion, and the other panel denied 4 A-3355-15T4 the motion again on July 26, 2016, the same day it issued the decision vacating the first sanctions order. While plaintiffs' counsel endeavored to post $25,000 between September 2015 and July 2016, defendant continued to pursue relief before the trial court. In February 2016, defendant moved for sanctions and sought over $12,000 in fees and costs incurred between January 2015 and February 2016. Defendant's counsel asserted that plaintiffs had engaged in vexatious and dilatory conduct designed to frustrate defendant's effort to enforce the first sanctions order.2 By order entered March 18, 2016, the trial court granted defendant's motion for sanctions in the reduced amount of $5000, imposed jointly upon plaintiffs and their attorney. In its oral decision, the judge found that no just excuse had been presented for the failure to respond to the information subpoenas, and plaintiffs had failed to comply with orders that, the court stated, mandated the posting of a supersedeas bond. Pursuant to Rule 2:5- 1, the judge supplemented her decision in writing. The court held that plaintiffs and their counsel "willfully and blatantly 2 Although defendant's counsel certified that he was informed by the clerk of this court that it had no "record confirming the filing of a bond by Plaintiffs or their counsel," the panel's May and July 2016 orders confirmed that the clerk did receive the $25,000 check, but returned it to counsel, or at least attempted to do so by regular mail. 5 A-3355-15T4 disregarded not only the rules and procedures governing the courts but multiple orders entered by the Superior Court and the Appellate Division." The judge was not satisfied that plaintiffs and their counsel ever obtained the $25,000 check, noting "no proof was provided to the court to establish that the cashier's check existed, and if it did, that it was sent to the court or that the court ever received it." The trial court found it appropriate to compensate defendant for his counsel's efforts to enforce the first sanctions award, and to "deter plaintiffs and plaintiffs' counsel from further deliberate and egregious conduct." Although the court found that defense counsel's fees of over $12,000 were reasonable, the reduced award of $5000 was "a sufficient sanction after weighing all the factors of the matter, including the willful conduct of plaintiffs and plaintiffs' counsel and the harm suffered by defendant." Plaintiffs and their counsel appeal the $5000 award. Absent an injustice, we shall not disturb a trial court's reasoned exercise of discretion in enforcing its orders, and managing discovery, including the decision to impose sanctions for violations. See Bender v. Adelson, 187 N.J. 411, 428 (2006) (reviewing for an abuse of discretion a "trial court's decision to bar defendants' requested amendments to their interrogatory answers [to add experts] and deny a further discovery extension"); 6 A-3355-15T4 Abtrax Pharms. v. Elkins-Sinn, 139 N.J. 499, 517 (1995) (stating appellate courts shall review the dismissal of a complaint with prejudice "for discovery misconduct" under an abuse of discretion standard and shall not interfere "unless an injustice appears to have been done"); North Jersey Media Grp., Inc. v. State Office of the Governor, 451 N.J. Super. 282, 296 (App. Div. 2017) (stating that Rule 1:10-3 "allows for judicial discretion in fashioning relief to litigants when a party does not comply with a judgment or order"). However, we are not obliged to defer to sanctions that are "based on a mistaken understanding of the applicable law." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (internal quotation marks and citation omitted). An abuse of discretion "arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (internal quotation marks and citation omitted). We may also find an abuse of discretion when the court's decision rests on mistaken findings of fact. Clark v. Clark, 429 N.J. Super. 61, 72 (App. Div. 2012). "Relief under R[ule] 1:10-3, whether it be the imposition of incarceration or a sanction, is not for the purpose of punishment, but as a coercive measure to facilitate the enforcement of the 7 A-3355-15T4 court order." Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997). In fashioning a sanction for violation of a discovery order, the court must consider, "whether the plaintiff acted willfully and whether the defendant suffered harm, and if so, to what degree." Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005); see also Hynes v. Clarke, 297 N.J. Super. 44, 57 (App. Div. 1997) (stating that the award of fees under Rule 1:10-3 "only applies to parties who willfully fail to comply" with a court's order). We reject plaintiffs' and their counsel's argument that the trial court lacked jurisdiction to impose sanctions by its March 2016 order. Although an appeal was pending, the trial court retained the authority to enforce its unstayed orders. See R. 2:9-1 (stating "[t]he trial court . . . shall have continuing jurisdiction to enforce judgments and orders pursuant to R. 1:10 and as otherwise provided"). We likewise reject the argument that the second sanctions order should be vacated, simply because we ultimately vacated the first one. Defendant was entitled to enforce the unstayed first sanctions order through supplementary proceedings. See R. 4:59- 1(f); R. 6:7-2(b). Plaintiffs and their counsel were required to comply with their obligations imposed by the rules, as well as subsequent court orders so long as they remained in effect. It 8 A-3355-15T4 is no defense that the first sanctions order was ultimately set aside. See In re Tiene, 17 N.J. 170, 177 (1954) ("[A]s a general rule a party cannot on an appeal from a judgment of conviction of contempt assert that the court order which he had contemned was based on error of law or fact, but rather the contemner's recourse is to take a direct appeal from the court order."); Salmon v. Salmon, 88 N.J. Super. 291, 314 (App. Div. 1965) (stating that "doubt as to the validity of an order is not an excuse for non- compliance, unless the court issuing it was in fact without jurisdiction"). Nonetheless, we are unpersuaded that the failure of plaintiffs and their counsel to deposit the $25,000 with the trial court was willful — although that willfulness finding factored significantly in the trial court's determination to impose the $5000 sanction. Plaintiffs' counsel obtained a $25,000 check payable to the clerk of the court. Another panel of this court acknowledged that the Appellate Division Clerk received the check and attempted to return it to plaintiffs' counsel.3 When plaintiffs' counsel did not receive it, he attempted to void the check, presumably so he could obtain a replacement check. However, 3 We intend no criticism of the trial judge in parting company with her conclusion on this point, as plaintiffs' counsel apparently provided insufficient proof of his efforts. However, in the interests of justice, we cannot ignore the evidence. 9 A-3355-15T4 another panel of this court declined to order execution of the issuing bank's form affidavit, to consent to the voiding of the check. By the time plaintiffs' counsel renewed his motion, the need to post the security had become moot, as the court had vacated the first sanctions order. Although we are not satisfied that willfulness motivated the failure to post the $25,000 check, we discern no basis to disturb the trial court's conclusion regarding the failure to respond to the information subpoenas defendant's counsel served. Plaintiffs and their counsel provided no just excuse to the trial court – nor have they done so on appeal – for their failure to respond, even after the trial court ordered them to respond. This recalcitrance necessitated defendant's additional enforcement efforts. Given the adequacy of the record, and in order to avoid unnecessary prolongation of these proceedings, which began with the filing of a defamation complaint in 2010, we shall exercise original jurisdiction. See R. 2:10-5. We modify the trial court's sanction order, taking into account that plaintiffs' and their counsel's willfulness did not extend to the failure to deposit the $25,000 once the check was obtained. The sanction is reduced to $3000 — $1000 to be paid by plaintiffs' counsel, and $2000 to be paid by plaintiffs. 10 A-3355-15T4 The court's order is therefore affirmed as modified. 11 A-3355-15T4

click here to get this case.


Docket No.: a3778-16
Decided: 2018-01-22
Caption: STATE OF NEW JERSEY v. ANTHONY C. DIVIZIO
Status: unpublished
Summary:
PER CURIAM On April 2017, approximately eight weeks after State v. Benjamin, 228 N.J. 358 (2017) was decided, we granted defendant Anthony C. Divizio leave to appeal the denial of certain discovery requests made regarding his unsuccessful application for a Graves Act waiver. See N.J.S.A. 2C:43-6.2. We now affirm the Law Division judge's decision in part, reversing only that portion of his order which required the State to turn over defendant's file for in camera inspection. Defendant, who has a history of drug addiction, stole a .357 magnum handgun in the spring of 2016. The weapon had belonged to his deceased father and was taken from his sister's home. He traded the gun for heroin. After his arrest, he attempted to aid the authorities in obtaining the return of the weapon. He called the drug dealer with whom he had engaged in the gun-for-drugs exchange, but the dealer denied knowledge of its whereabouts. Defendant has a minimal criminal history — a conditional discharge and two disorderly persons drug offenses. After these charges were lodged against him, he entered into a drug rehabilitation facility where by all reports, he was doing well. Defendant was eventually indicted for third-degree theft of a firearm, N.J.S.A. 2C:20-3(a) (count one); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b)(1) (count two); and 2 A-3778-16T3 fourth-degree unlawful disposition of a firearm, N.J.S.A. 2C:39- 9(d) (count three). The exception to mandatory Graves Act sentencing "allows certain first-time offenders to receive a reduced penalty if the imposition of a mandatory term would not serve the interests of justice." Benjamin, 228 N.J. at 368. The statutory escape valve authorizes a prosecutor to request the waiver before the assignment judge, or, in the alternative, authorizes a sentencing judge, with the prosecutor's consent, to refer the matter to the assignment judge for consideration of a waiver. N.J.S.A. 2C:43-6.2. It allows the court to either impose a term of probation by way of sentence, or reduce the relevant mandatory period of parole ineligibility to one year. Ibid. The waiver, however, is subject to the court's review — whether imposition of the Graves Act minimums would not serve the "interests of justice." Ibid. Defendant initially sought, as did the defendant in Benjamin, discovery of the prosecutor's case files of others similarly situated who obtained a waiver recommendation. After the decision in Benjamin, which concluded that production was not required, this defendant's request was modified to include only the aggravating and mitigating factors the prosecutor considered when the application was rejected. 3 A-3778-16T3 The State's initial November 3, 2016 one-page denial of defendant's request for a waiver consisted primarily of a checklist. Boxes were marked off stating that defendant was denied "statutorily" and because of a "significant threat to the community[.]" The denial continued: "the factual circumstances concerning the 'offense conduct' is the factual circumstances that the Graves Act was intended to combat and, the imposition of a mandatory minimum sentence is [sic] this matter, is in the interests of justice." The prosecutor's February 14, 2017 brief indicated that "at least" three aggravating factors applied to the offense: that it was committed "in an especially heinous, cruel, or depraved manner[,]" N.J.S.A. 2C:44-1(a)(1), that it was necessary to deter defendant and others from violating the law, N.J.S.A. 2C:44- 1(a)(9), and that defendant was at risk to reoffend because of his heroin addiction, N.J.S.A. 2C:44-1(a)(3). In the brief, the State also explained that a case defendant cited in support of his request for a waiver involved a defendant who had traded a gun, stolen from her boyfriend, for drugs. That case, in which the prosecutor had agreed to a waiver, was distinguishable in that the weapon was recovered. The Law Division judge, in his post-Benjamin written decision, reiterated defendant's contention, also raised on 4 A-3778-16T3 appeal, that in order to obtain and prevail in a State v. Alvarez1 hearing, defendant required a more substantive statement of reasons, including the prosecutor's analysis of aggravating and mitigating factors, and a "case-specific memorialization" of the prosecutor's decision. The judge also noted that the State contended that the initial statement of reasons, together with the reasons expressed in the brief, easily met all discovery responsibilities and provided defendant with sufficient information for attack on the merits of the decision. Although he denied defendant's discovery requests, the judge directed the prosecutor provide the case-specific memorialization of the manner in which it made the decision, in addition to his file, for in- camera inspection. This appeal followed. Defendant raises the following points for our consideration: POINT I AFTER THE COUNTY PROSECUTOR REFUSED CONSENT TO A WAIVER OF THE GRAVES ACT'S 3.5-YEAR PAROLE DISQUALIFIER, THE TRIAL COURT ERRED BY ORDERING THAT THE PROSECUTOR SHOULD COMMUNICATE SOLELY TO THE COURT THE COUNTY'S ASSESSMENT OF THE N.J.S.A. 2C:44-1 SENTENCING FACTORS, EXCLUDING MR. DIVIZIO FROM DISCOVERY OF THAT INFORMATION. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST., ART. 1, PARS. 1, 9, 10. 1 246 N.J. Super. 137, 148-49 (App. Div. 1991) (finding that "[a] hearing would be conducted only if the Assignment Judge 'after review of the materials submitted with the motion papers, concludes that a hearing is required in the interests of justice.'"). 5 A-3778-16T3 A. The trial court's order conflicts with the holding in State v. Benjamin, 442 N.J. Super. 258, 266 (App. Div. 2015), aff'd as modified, 2017 N.J. LEXIS 377 (2017). B. The trial court's order conflicts with the reasonable concession made by the Attorney General of New Jersey during briefing and recorded oral argument in Benjamin. C. The trial court's order conflicts with R. 3:13-3, which provides that "relevant" documents in the State's possession are discoverable by the defendant. D. The trial court's order conflicts with State v. Alvarez, 246 N.J. Super. 137, 147 (App. Div. 1991), which promises a meaningful opportunity to challenge prosecutorial sentencing decisions for arbitrary or discriminatory treatment. E. The trial court's order conflicts with the prohibition against ex parte judicial communications. We first address defendant's claim that the trial court's order violates the ban against ex parte judicial communications. Trial judges not infrequently inspect records in camera; the prohibition against ex parte communications is intended to ban very different communications. We do not discuss the point further as we consider it so lacking in merit. R. 2:11-3(e)(2). Defendant's remaining points concern the analysis of the principles enunciated in Benjamin. In Benjamin, the Court considered the Attorney General's Directive to Ensure Uniform 6 A-3778-16T3 Enforcement of the "Graves Act" (Oct. 23, 2008, as corrected Nov. 25, 2008) (Directive). The Directive imposes on the prosecutor the obligation to include in the decision-making process "all relevant circumstances concerning the offense conduct and the offender," including statutory aggravating and mitigating factors, and the likelihood of conviction at trial. Directive at 10. The Directive also requires prosecutors to maintain records——"case- specific memorializations" in order to enable periodic audits by the Attorney General's Office. Id. at 13-14. Additionally, the Court also asked if there were "sufficient procedural safeguards [] in place to protect a defendant's right to challenge the denial of a Graves Act waiver." Benjamin, 228 N.J. at 370. In making that determination, the Court drew a parallel to the Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 to 36A-1. Id. at 370-71. Attorney General's guidelines relevant to that act inform the exercise of prosecutorial discretion with regard to plea offers. Id. at 371 (citing State v. Lagares, 127 N.J. 20, 28-33 (1992); State v. Vasquez, 129 N.J. 189, 195-96 (1992); see also State v. Brimage, 153 N.J. 1, 24 (1998) (rejecting Attorney General's guidelines for formalizing disparity throughout the state)). The waiver decision must be documented when made, which the State conceded was appropriate and 7 A-3778-16T3 necessary "to facilitate judicial review for the arbitrary or discriminatory exercise of prosecutorial discretion." Id. at 372. Finally, the Court considered a defendant's right to a hearing, at which time he or she can obtain judicial review of the imposition of the minimums if the review would serve the interests of justice. Id. at 372-73 (citing Alvarez, 246 N.J. Super. at 148-49). In sum, "prosecutors are guided by standards, inform defendants of the basis for their decisions, and are subject to judicial oversight." Id. at 373. Importantly, the Court said the following: All case-specific files should contain a statement of reasons which, upon a defendant's Alvarez motion, the assignment judge may consider in assessing the prosecutor's conduct, as the statement will show the prosecutor's reasons not to grant a waiver for a particular defendant. Conversely, additional case-specific information is contained in case and cumulative files for administrative reasons because those files function as internal documents, the primary purpose of which is to allow prosecutors to assess the case and the Attorney General to conduct audits to ensure compliance with the Directive. [Id. at 373-74 (citing Directive at 14).] It seems to us from this language that the "case and cumulative files" are maintained for internal use and assessment by the Attorney General's Office. Therefore, the Benjamin decision did 8 A-3778-16T3 not mean that a Graves Act defendant has access to them. Id. at 374. Benjamin also stated that despite New Jersey's long-standing precedent supporting broad discovery in criminal cases, a defendant is expected to demonstrate entitlement to an Alvarez hearing after presenting independent grounds that he or she was receiving unconstitutionally disparate treatment. Id. at 374. In other words, the written notifications in this case of reasons for denying a waiver must suffice. The prosecutor explained the circumstances of the offense that led to the decision. Defendant's conduct resulted in the release of yet another gun into the drug underworld. The prosecutor's office also identified defendant's long-standing drug problem as a basis for its rejection, as it viewed him as a person likely to reoffend. The prosecutor has provided his reasons in writing in sufficient detail. Nor do we agree with defendant's argument that conveying the aggravating and mitigating factors after the fact, weeks after the decision denying the waiver was made, was fatal. They were consistent with the checklist. There is nothing magical about compelling the State to produce the original document on which the aggravating and mitigating factors were recorded. The important 9 A-3778-16T3 information has been provided, and the reasons do not appear to treat defendant in a discriminatory or arbitrary fashion. Furthermore, there does not appear to be a basis for the judge's concern. The State should not have been ordered to produce defendant's file as well as the case-memorialization for in camera inspection. Affirmed in part, reversed in part. 10 A-3778-16T3

click here to get this case.


Docket No.: a4060-15
Decided: 2018-01-22
Caption: STATE OF NEW JERSEY v. ANTONIO BELL-WINTERS
Status: unpublished
Summary:
PER CURIAM This post-conviction relief ("PCR") matter returns from the trial court, following an evidentiary hearing we ordered in our 2015 unpublished opinion. State v. Bell-Winters, No. A-2843-13 (App. Div. June 5, 2015). After considering the testimony and other evidence adduced at that evidentiary hearing, the court concluded that defendant Antonio Bell-Winters had not met his burden of demonstrating his former trial attorney deprived him of the effective assistance of counsel. Defendant now appeals that determination. We affirm. We incorporate by reference the background detailed in our prior opinion. Briefly summarized, defendant pled guilty in 2008 to aggravated manslaughter. The record shows that defendant fatally shot the victim, following an argument about his dating relationship with the victim's former girlfriend. The State initially charged defendant with murder. Pursuant to a negotiated plea agreement, the murder charge was downgraded to first-degree aggravated manslaughter, a crime which calls for a sentencing range of ten to thirty years in prison. N.J.S.A. 2C:11-4(c). The sentence would be subject to the minimum parole ineligibility period mandated by the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. As specified in the written plea agreement, the State agreed to recommend to the court that defendant's prison term not exceed twenty-two years. Defendant, meanwhile, would be free to argue at sentencing for the minimum term of ten years. Ultimately, the 2 A-4060-15T1 judge at sentencing imposed a twenty-year term, subject to NERA parole ineligibility requirements. In his PCR application, defendant contends his trial attorney had advised him and his mother before sentencing that he would not receive a custodial term of more than fifteen or sixteen years, because the judge had reportedly said at a conference with counsel that he was intending to impose a sentence "in the mid range." The parties dispute what was meant by the word "mid range" in this context. Defendant insists that it signified the expected sentence would be at approximately the midpoint of the ten-year statutory minimum and the negotiated plea cap of twenty-two years, i.e., approximately sixteen years. The State conversely maintains the sentence was expected to be around the midpoint between the ten- year statutory minimum and the thirty-year statutory maximum for aggravated manslaughter, i.e., twenty years, which is what the sentencing judge imposed. Although the trial court initially denied defendant's PCR petition without an evidentiary hearing, we directed the court to conduct such a hearing on remand, in order to address the factual dispute concerning the "midpoint" issue. Bell-Winters, slip op. at 8-10. We further asked the trial court to explore whether, but for trial counsel's alleged error in forecasting the anticipated sentence, defendant would have been likely to have rejected the 3 A-4060-15T1 plea offer and risked an even greater exposure at trial. Bell- Winters, at 9. Judge Michael J. Blee, the PCR judge on remand,1 conducted two days of evidentiary hearings in January and February 2016. Defendant's former trial attorney and defendant himself testified. Trial counsel acknowledged in his testimony that he had told defendant that the court's likely sentence was sixteen years or less. However, counsel also maintained he told defendant the judge would nevertheless have the discretion to impose a sentence of up to twenty-two years. Judge Blee found the attorney's testimony on these points "honest, non-evasive, and responsive." Defendant testified that his trial counsel advised him the likely sentence would be fifteen to sixteen years. Judge Blee found defendant credible on that specific point. However, the judge did not find defendant credible in respect of his claim that, in retrospect, he would not have agreed to the plea offer if he had known that NERA would require him to serve actual custodial time of approximately eighteen years of a twenty-year sentence. Notably, when defendant was asked at the evidentiary hearing if he would have gone to trial if he had known he was going to 1 A different judge had previously dismissed the PCR petition without a hearing. 4 A-4060-15T1 receive a twenty-year sentence, defendant testified ". . . honestly. I don't know. I would have had to discuss it with my family." That equivocal testimony conflicted with the certification defendant previously submitted in support of his PCR petition, in which he insisted that he would not have accepted such a plea bargain. As Judge Blee pointed out, if the State had not entered into the plea agreement, defendant would have faced up to a life sentence if he were convicted of first-degree murder. The judge was unpersuaded by defendant's present contention that he would have had a potentially viable argument at trial to be found guilty by a jury of only passion/provocation manslaughter. As the judge noted, that contention is undermined by the State's evidence of defendant's argument with the victim earlier in the day of the shooting, defendant's agreement to meet the victim later that same day, defendant's arrival at the scene in possession of a handgun, and other facets in the record. On the whole, Judge Blee concluded from the proofs at the hearing that defendant was "completely aware of the consequences" of his guilty plea, that his counsel had not been deficient, and that it was not credible that defendant would have rejected the plea if he had better appreciated his true sentencing exposure. 5 A-4060-15T1 Defendant now appeals, arguing the following points in his brief: POINT I THE TRIAL COURT MISAPPLIED THE LAW IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AFTER AN EVIDENTIARY HEARING WAS HELD TO ADDRESS HIS CONTENTION THAT HE WAS PROVIDED WITH INADEQUATE ASSISTANCE OF PLEA COUNSEL IN PLEA NEGOTIATIONS. POINT II THE TRIAL COURT MISAPPLIED THE LAW IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS IT WAS REASONABLY PROBABLE HE WOULD HAVE REJECTED THE PLEA AND PROCEEDED TO TRIAL ON ALL CHARGES. We have duly considered these arguments in light of the record, the applicable law, and the trial court's credibility findings. Having done so, we affirm the denial of defendant's PCR petition, substantially for the sound reasons expressed in Judge Blee's post-hearing written decision dated March 4, 2016. Only a few comments are warranted. Defendant bore the burden at the evidentiary hearing of establishing the two prongs of ineffective assistance of his former counsel: (1) deficient performance; and (2) actual prejudice caused by counsel's errors or omissions. Strickland v. Washington, 466 U.S. 668, 690-92 (1984). We accept Judge Blee's well-reasoned determination that defendant proved neither of these two required elements. 6 A-4060-15T1 As an appellate court considering a post-hearing PCR denial, our role "is necessarily deferential to [the trial] court's factual findings based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). Applying that deference here, we have no hesitation in upholding Judge Blee's factual findings, all of which have ample support in the record. In addition, we reject defendant's claim that the judge misapplied the law. To the contrary, our de novo review of the judge's legal conclusions, id. at 540-41, reveal them to be unassailable. Neither prong of the well-established legal standard under Strickland was met here. In sum, the evidentiary hearing that defendant sought and received provides no basis to set aside his guilty plea, nor his conviction and sentence. We therefore uphold the PCR judge's ruling. Affirmed. 7 A-4060-15T1

click here to get this case.


Docket No.: a4229-15
Decided: 2018-01-22
Caption: JOHN BLAND v. NEW JERSEY STATE PAROLE BOARD
Status: unpublished
Summary:
PER CURIAM Appellant John Bland appeals from a March 23, 2016 final agency decision denying his petition for parole and establishing a thirty-six month future eligibility term (FET). We affirm. These are the facts. On August 13, 1982, Bland committed a burglary and robbery of a residence where J.M., age 89, P.M., age 56, and L.W., age 60, resided. During the course of the robbery, Bland inflicted blunt force trauma to the head of P.M. resulting in his death the following day. J.M. was severely beaten about the head and remained hospitalized for eight weeks. L.W. was also beaten in the head and chest area, suffered a fractured jaw, and remained hospitalized for a week. On December 6, 1983, Bland pled guilty to first-degree felony murder, N.J.S.A. 2C:11-3(a)(3). On June 8, 1984, Bland was sentenced to a term of life imprisonment subject to a thirty-year period of parole ineligibility. This was not Bland's first conviction. Bland had been previously convicted of three counts of burglary, distribution of a controlled dangerous substance, and disorderly conduct. He had prior opportunities on parole and probation, and served a prior term of incarceration. During his incarceration, Bland has committed twenty-three institutional disciplinary infractions, including six "asterisk" infractions. Asterisk infractions "are considered the most serious and result in the most severe sanctions." N.J.A.C. 10A:4- 4.1. His most recent infraction was committed on May 28, 2002. On January 20, 2016, Bland became eligible for parole a third time. On October 22, 2015, he received an initial hearing. The 2 hearing officer referred the case to a Board panel for a hearing. The two-member Board panel denied parole on November 16, 2015, and established a thirty-six month FET. Aggravating factors noted were: (1) his prior offense record; (2) his prior opportunity on probation failed to deter criminal behavior; (3) his numerous, serious institutional infractions resulting in loss of commutation time and confinement in detention and administrative segregation; (4) his insufficient problem resolution, with "an unrealistic view of how he would function if he were released" without "appear[ing] to recognize the difficulty of [everyday] life," and "[h]is health issues could complicate his ability to deal with challenges [and] he could easily lose control of his behavior;" and (5) his failure to complete a recommended program. Bland also had a risk assessment score of twenty-seven, indicating a medium risk of recidivism. The panel did note some mitigating factors. Specifically, (1) while Bland had an offense record, it was minimal; (2) Bland had been infraction free since the last panel; (3) Bland had participated in institutional programs; and (4) Bland had attained gang minimum custody status. Bland administratively appealed the two-member Board panel's decision. On March 9, 2016, the Board affirmed the Board panel's decision but amended the Notice of Decision to include 3 "institutional reports reflect favorable institutional adjustment" as a mitigating factor and deleted "recommended programs not completed" as a reason for denial. On March 23, 2016, after considering all materials in the administrative record, the Board issued its final agency decision denying Bland parole and establishing a thirty-six month FET. This appeal followed. Bland argues: SUMMARY DISPOSITION REMAND SHOULD BE GRANTED TO SEND THIS MATTER BACK TO THE FULL NEW JERSEY STATE PAROLE BOARD. CURRENTLY, THE PANELS HAVE AFFIRMED THEMSELVES WITH NO SUPERVISORY ATTENTION TO THE ERRORS GIVEN BY THE FULL BOARD. THE PANELS HAVE BEEN INATTENTIVE TO SUCH MATTERS AS THE INCREASE OF THE FET AND THE LATENESS OF DECIDING THE APPEAL, IN VIOLATION OF THE N.J. ADMINISTRATIVE CODE AND DIRECTIVES OF THE COURT. Bland contends that given the remoteness of his crimes and the last inmate disciplinary infraction being over twelve years old, the Board acted arbitrarily and capriciously in considering them as evidence that defendant is likely to commit a crime in the future as a basis for imposing the thirty-six-month FET. Bland suffered a stroke some years ago, leaving him partially disabled and limiting his physical mobility. He argues the record does not support the Board's conclusion that his health challenges could alter his behavior and result in him committing future crimes. 4 Our review of the Board's decisions is deferential. That is so because the Board's decisions are "individualized discretionary appraisals," Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)), and are presumed to be reasonable, In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993). We will not disturb a Board's determination unless: it is arbitrary, capricious, or unreasonable; it is unsupported by sufficient credible evidence on the record; or it violates legislative policies. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24-25 (1998). The burden is on the appellant to demonstrate the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993). Here, we find no basis on which to conclude the Board's decision was arbitrary, capricious, or unreasonable, that it lacked fair support in the evidence, or that it otherwise violated any legislative policies. Under N.J.S.A. 30:4-123.53(a): An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report . . . or developed or produced at a hearing . . . indicates by a preponderance of the evidence . . . that there is a reasonable expectation that the inmate will violate conditions of parole imposed . . . if released on parole at that time. 5 The Board panel based its decision on a multitude of aggravating factors, most notable of which were Bland's numerous, serious institutional infractions and the serious nature of his offense. Bland's insufficient problem resolution and unrealistic view of how he would function if released are also significant. The Board's decision was further supported by Bland's risk assessment score of twenty-seven, indicating a medium risk of recidivism. Although the Board recognized some mitigating factors—such as Bland's favorable institutional adjustment and absence of infractions since his last panel hearing—it acted well within its bounds in finding by a preponderance of evidence that Bland, if released on parole, would likely violate conditions of parole by committing a crime. Concerning the FET, when an inmate is serving a sentence for murder, upon denial of parole, the inmate shall serve another twenty-seven months before being considered again for parole. N.J.A.C. 10A:71-3.21(a)(1). However, in cases where an ordinary FET is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior," the Board may impose an FET in excess of administrative guidelines. N.J.A.C. 10A:71-3.21(d). The Board may increase or decrease the FET by up to nine months when the Board believes based on "the severity of the crime . . . and the 6 prior criminal record or other characteristics of the inmate" that an adjustment is warranted. N.J.A.C. 10A:71-3.21(c). The thirty- six month FET imposed by the Board is neither arbitrary nor capricious. The Board considered all applicable mitigating and aggravating factors when coming to the FET determination and acted well within its authority in increasing defendant's FET. Bland contends there is no basis for the Board's determination that his health issues "could complicate his ability to deal with challenges and he could easily lose control of his behavior." The Board's determination is amply supported by the findings and conclusions of the evaluator who performed an in-depth psychological evaluation of Bland. Bland argues the confidential psychological evaluation should be declassified so that he can respond to its contents. Reports "concerning an offender's medical, psychiatric or psychological history, diagnosis, treatment or evaluation" are deemed confidential. N.J.A.C. 10A:71-2.2(a). Confidential reports shall not "be reviewed by any person except a Board member or employee or individual or law enforcement agency authorized by the Board or by the Chairperson." N.J.A.C. 10A:71-2.2(b). Inmates are not afforded disclosure of confidential reports. N.J.A.C. 10A:71- 2.2(c). We deem the nondisclosure of the psychological evaluation 7 to be proper. See Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107, 126 (App. Div. 1986). Having reviewed the record in light of the well-accepted standards, including the psychological evaluation and other materials in the confidential appendix, we conclude Bland's remaining arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 8

click here to get this case.


Docket No.: a4378-15
Decided: 2018-01-22
Caption: STATE OF NEW JERSEY v. THOMAS L. COAR
Status: unpublished
Summary:
PER CURIAM Defendant Thomas L. Coar appeals from two April 22, 2016 judgments of conviction, one following a jury trial under indictment 14-03-0746, and the second following a guilty plea under indictment 14-03-0747. The jury convicted defendant on two counts of first-degree robbery, N.J.S.A. 2C:15-1; one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and two counts of third-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a). Subsequent to his conviction, defendant pled guilty to second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(a). Defendant argues the trial court's response to a question from the jury during deliberations was inadequate and misleading, causing the jury to convict him on an erroneous theory of liability. We disagree and affirm. The following facts are taken from the record. On October 6, 2013, Jose Tandazo and Rommel Bravo were standing outside of Tandazo's residence in Newark after their work shift ended at a local restaurant. As Tandazo and Bravo were parting ways, they were approached by two individuals, one of whom produced a gun, pointed it at Tandazo's head, and demanded money. Bravo noticed a Newark police vehicle approaching and flagged it down causing the two suspects to flee. Officer Miguel Ressurreicao exited his 2 A-4378-15T1 police vehicle and gave chase. Officer Ressurreicao saw that one of the two suspects was wearing camouflage and holding a gun. During the foot chase the two suspects separated and Officer Ressurreicao testified he followed the one wearing camouflage to the parking lot of a nearby Walgreens. There, he discovered defendant who was wearing camouflage and "fumbling with the garbage" and arrested him. Officer John Stutz and a third officer were dispatched to the scene. Officer Stutz testified he recovered a BB gun in an alleyway adjacent to the Walgreens parking lot. Subsequent testing of the gun did not yield any fingerprints of value. At trial, Tandazo testified to the incident and stated the man with the gun was clean shaven. Defendant's booking photo, introduced into evidence, showed him with a full beard. Bravo also testified and recounted the incident in a similar fashion to Tandazo. Neither Bravo nor Tandazo identified defendant as one of the two men who tried to rob them. Officer Ressurreicao was the only witness to link defendant to the robbery. During the first day of deliberations, the jury inquired whether defendant's arrest photo was admitted as evidence. The photo had been admitted into evidence during the trial, but mistakenly omitted from the jury's evidence packet. The photo was provided to the jury. The jury asked whether Officer 3 A-4378-15T1 Ressurreicao's incident report was admitted as evidence. The trial judge informed the jury the report was not in evidence. The jury then sent the following note: "We need clarity. We need to know who Bravo and Tandazo claimed had the gun. Whatever you can provide please." The trial judge then played back the entirety of Bravo and Tandazo's testimony and the jury was excused for the day. The jury returned for the second day of deliberations and sent the following note: "According to the law two suspects are charged with robbery with a deadly weapon. But only one has the weapon, are they both accused of possession?" In response, the trial judge re-read the jury charge on possession originally given to the jury and added an instruction on joint possession. The judge stated: Rather than answer you in a very general way, you're reminded that here there's only one person who has been charged, and one person who is on trial. One person against [whom] the . . . charges in the indictment have been returned, and that is the defendant Thomas Coar. During the testimony you have references and your recollection of the testimony controls as to the matter in which the alleged offense was . . . committed, and the number of parties who participated. In response to your question, however, I will recharge you on the law of possession. I will 4 A-4378-15T1 also charge you on the law of joint possession. "Actual possession, a person is in actual possession of an item when he first knows what it is, that is, he has knowledge of its character; and second, knowingly has it on his person at a given time." "Constructive possession, possession may be constructive instead of actual. As I just stated a person who with knowledge of its character, knowingly has direct, physical control over an item at a given time, is in actual possession of it. Constructive possession means possession in which the possessor does not physically have the item on his person, but is aware that the item is present and is able to and has the intention to exercise control over it. So someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it either directly or through another person or persons is then in constructive possession of that item." "There is a concept of joint possession [which] may be sole or joint. If one person alone has actual or constructive possession of an item, possession is sole. [I]f two or mor[e] (sic) persons share actual or constructive . . . knowing possession of an item, possession is joint." [(quoting Model Jury Charge (Criminal), Possession N.J.S.A. 2C:2-1 (2014)).] The jury's final question was: "What happens if we don't all agree on a verdict?" The trial judge read the model jury charge on further deliberations. The jury continued its deliberations and a few hours later returned a guilty verdict on all counts. 5 A-4378-15T1 Defendant pled guilty to the certain persons offense in the second indictment, admitting he was in possession of a BB gun on the day of the incident and that he had previously been convicted of robbery in Hudson County. The trial judge denied defendant's motions for acquittal and to set aside his plea. The judge also denied the State's motion for an extended sentence. Defendant was sentenced to twelve years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's sentence ran concurrently with a ten-year sentence pursuant to his plea, which required he serve a mandatory minimum of five years. On appeal, defendant argues the following point: THE TRIAL COURT'S INADEQUATE AND GROSSLY MISLEADING RESPONSE TO THE JURY'S QUESTION PERMITTED THE JURY TO CONVICT DEFENDANT ON A THEORY OF LIABILITY THAT WAS NOT IN THE CASE. (Not Raised Below). We begin with our standard of review. When a defendant fails to object to a jury charge at trial, we review for plain error, and "disregard any alleged error 'unless it is of such a nature as to have been clearly capable of producing an unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). Plain error, in the context of a jury charge, is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice 6 A-4378-15T1 by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014) (alteration in original) (quoting State v. Adams, 194 N.J. 186, 207 (2008)). In reviewing any claim of error relating to a jury charge, "[t]he charge must be read as a whole in determining whether there was any error[,]" State v. Torres, 183 N.J. 554, 564 (2005), and the effect of any error must be considered "in light 'of the overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). However, counsel's failure to object to jury instructions not only "gives rise to a presumption that he did not view [the charge] as prejudicial to his client's case[,]" State v. McGraw, 129 N.J. 68, 80 (1992), but is also "considered a waiver to object to the instruction on appeal." State v. Maloney, 216 N.J. 91, 104 (2013). At the outset, we note the record is devoid of any objection from defense counsel to the trial judge's second reading of the possession charge. The record reflects the trial judge informed the prosecutor and defense counsel of how the judge proposed to answer the jury's question by reinstructing the jury on possession and instructing on joint possession, gave counsel a copy of the joint possession instruction, and asked the counsel's position. 7 A-4378-15T1 Defendant's counsel said "No objection from the defense, Your Honor." Under the invited error doctrine, "trial errors that '"were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal."'" State v. A.R., 213 N.J. 542, 561 (2013) (citations omitted). A defendant cannot agree to a particular instruction, "and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." State v. Ramseur, 106 N.J. 123, 281-82 (1987) (citation omitted). Defense counsel clearly acquiesced in the instruction given to the jury. Accordingly, defendant "is barred from raising an objection for the first time on appeal." A.R., 213 N.J. at 561. The invited error doctrine's bar does not "automatically apply" if it would "cause a fundamental miscarriage of justice." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010) (citation omitted). However, "this case presents no fundamental injustice that would warrant relaxing the invited error doctrine." Ibid. Defendant contends the State based its theory that he was the principal and gunman during the robbery on Officer Ressurreicao's testimony that one of the two suspects was wearing camouflage and 8 A-4378-15T1 holding a gun. Defendant contends Officer Ressurreicao's testimony was questionable because he testified that when calling for backup he did not tell the dispatcher that the man in camouflage had a gun. Defendant argues Officer Ressurreicao never told Officer Stutz that he had seen defendant holding a gun. Also, when Officer Ressurreicao apprehended defendant, he told the dispatcher defendant was the lookout. Defendant also argues other evidence indicated he was the lookout. Specifically, defendant notes there was no dispute that he was bearded and wearing a camouflage jacket with a hood. Yet Tandazo described the man with the gun as clean shaven and wearing a pullover. Thus, defendant asserts the jury could have found he was the lookout, and the trial judge should have given the jury the accomplice liability charge. Defendant argues the failure to do so foreclosed a chance at acquittal as the principal. Additionally, defendant argues the trial court erred by instructing the jury it could consider constructive and joint possession because the instruction implied the jury could find defendant guilty even if he did not possess the gun. We find these arguments unpersuasive. Only "[w]hen a prosecution is based on the theory that a defendant acted as an accomplice [is] the trial court required to provide the jury with 9 A-4378-15T1 . . . instructions regarding accomplice liability." State v. Savage, 172 N.J. 374, 388 (2002). "When the State's theory of the case only accuses the defendant of being a principal, and a defendant argues that he was not involved in the crime at all, then the judge is not obligated to instruct on accomplice liability." Maloney, 216 N.J. at106. It is undisputed the State's theory of the case was that defendant possessed the gun. Therefore, accomplice liability was not in question because it was not a part of the State's case. Moreover, defendant denied any involvement with the crime, and claimed he happened to be in the Walgreens parking lot when Officer Ressurreicao arrested him. For these reasons, we reject defendant's argument the jury should have been given an accomplice liability charge. Aside from the theory of the State's case, we also reject defendant's arguments that there was sufficient evidence to support the jury finding he was the lookout. The evidence overwhelmingly supported defendant's conviction as the principal in possession of the gun. Officer Ressurreicao's testimony regarding his observation of the robbery, pursuit, and arrest of the defendant, and Officer Stutz's subsequent discovery of the gun nearby, were sufficient evidence for the jury to find defendant guilty as the principal and gunman. 10 A-4378-15T1 The jury's question regarding possession of the gun did not signal a misunderstanding of defendant's role in the crime, but instead that clarification was sought regarding the legal basis for defendant's liability. The trial court's response to the jury's question regarding possession of the weapon with an instruction on constructive and joint possession was legally accurate and not plain error, let alone a fundamental injustice. As the trial judge noted when she denied defendant's motion for acquittal: The State’s proofs at trial were the two individuals attempted to rob the victim[s] with one person placing a gun to the head of one of the victims and demanding money. The jurors were initially charged on actual and constructive possession. The testimony at trial supported a finding that when this defendant was arrested he did not have a weapon on his person, but that the weapon was recovered [near] the trash receptacle in [which] the police saw the defendant rummaging. The jurors asked how two people could be found guilty of possession of one weapon? The jury instruction on joint possession is a response to that inquiry. As the charge is straightforward and [a]s noted by the State, the jurors heard the testimony of the witnesses with a complete playback of the testimony of the victims. Considering the totality of the circumstances this Court does not find that the instruction was misleading or confusing. Defendant’s defense was denial with any involvement with this crime. With regard to the weapon 11 A-4378-15T1 defendant argues that his fingerprints [were] not recovered from the weapon . . . and that there is no forensic proof that he . . . actually possessed . . . the weapon. In his summation the defendant’s only concession is that he was arrested in the parking lot of Walgreen[s]. The response to . . . the juror question, again including the charge of joint possession in no way prejudiced the defense, because the defense, again, [was] consistent [that] he maintains that he was [not] actively, constructively, solely, jointly, possessed of a weapon, and/or that he had in any[ ]way participated in a robbery. His defense is restricted to the fact that he happened to be arrested in a parking lot at Walgreens. The Court find[s] that the defendant fails to establish that the verdict is a manifest denial of justice. We agree with the trial judge's assessment. The totality of the circumstances demonstrate the jury's question had been answered. Indeed, "[t]he failure of the jury to ask for further clarification or indicate confusion demonstrates that the [court's] response was satisfactory." State v. McClain, 248 N.J. Super. 409, 421 (App. Div. 1991). There is no indication the jury convicted defendant as an accomplice not in possession of the gun. Affirmed. 12 A-4378-15T1

click here to get this case.


Docket No.: a0116-15
Decided: 2018-01-18
Caption: STATE OF NEW JERSEY v. ARTHUR L. HOYLE
Status: unpublished
Summary:
PER CURIAM Defendant, who was charged with multiple drug offenses, filed numerous pretrial motions, including a motion to suppress evidence obtained from the use of a global positioning system (GPS) tracker and a motion to recuse the trial court judge. After the court denied the motion to suppress and the motion to recuse, defendant pled guilty to first-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1).1 In accordance with defendant's plea agreement, the trial court sentenced him to fourteen years imprisonment, with seven years of parole ineligibility. Defendant then filed this appeal. He presents the following arguments for consideration: POINT I THE INITIAL GPS SEARCH WARRANT AFFIDAVIT DID NOT PROVIDE PROBABLE CAUSE TO BELIEVE THAT THE LAND ROVER WAS INVOLVED IN DRUG DISTRIBUTION. POINT II THE COURT ERRED IN FAILING TO FOLLOW THE DENIKE2 STANDARD IN DEFENDANT'S MOTION FOR A RECUSAL. We reject these arguments and affirm. 1 Defendant's plea agreement preserved his right to appeal the orders denying his pretrial motions. 2 DeNike v. Cupo, 196 N.J. 502 (2008). 2 A-0116-15T1 I Defendant first argues the search warrant affidavit failed to provide sufficient evidence linking him to the vehicle in which the GPS tracker was placed and to any narcotics distribution. As a result, defendant contends the State failed to establish probable cause for the issuance of a valid search warrant. On December 28, 2007, a Superior Court judge issued a warrant authorizing the installation of a GPS tracker in a Land Rover utilized by defendant. Detective Robert P. Harkins, who was assigned to the Intelligence Unit of the Narcotics Task Force within the Cape May County Prosecutor's Office, provided the affidavit supporting the warrant application. Because a judge reviewing an affidavit for probable cause is limited to the information contained within the four corners of the affidavit, see State v. Wilson, 178 N.J. 7, 14 (2003), we begin our review with a summary of those facts. In his affidavit, Detective Harkins set forth his extensive training and sixteen years of experience in investigative procedures regarding criminal street gangs, CDS distribution, and terrorism. He previously worked in conjunction with several law enforcement agencies, including the FBI, DEA, and New Jersey State Police, conducting surveillance of suspected criminals and participating in the execution of search warrants, resulting in 3 A-0116-15T1 the arrest and conviction of suspected criminals. Through this knowledge and experience, he became familiar with the methods of installing and using a GPS tracking device. According to the affidavit, on September 4, 2007, police in Henderson, North Carolina stopped a black Chevrolet Caprice driven by defendant on Interstate Route 85. Defendant produced a temporary registration that identified International Motorsports as the vehicle's owner, but the document did not identify the specific make, model, or vehicle identification number of the car. Defendant failed to produce any valid paperwork for the car and his New Jersey driver's license was suspended. Police smelled marijuana and found rolled marijuana blunts and $8442 in cash inside the car. Police arrested defendant, charging him with possession with the intent to distribute marijuana. On November 12, 2007, the New Jersey State police arrested defendant on the Garden State Parkway, charging him with eluding and possession of CDS. At the time, defendant was driving the Land Rover. Inside the car, police found a boarding pass from a November 2, 2007 flight from Atlanta to Philadelphia, a receipt for two checked bags, and a receipt for a box of "clothing" shipped from New Jersey to Georgia on July 19, 2007. On November 16, 2007, Middle Township police received information from a confidential informant that defendant planned 4 A-0116-15T1 to travel to northern New Jersey or New York to pick up a large quantity of narcotics. Police began surveillance along the Garden State Parkway and attempted to stop a Lincoln LS associated with defendant. The driver of the vehicle eluded police, who later found the car crashed, with cocaine and marijuana inside. Police were unable to identify defendant as the driver; however, the car was registered to defendant's ex-girlfriend, who told police she did not know who took her car, but she "wouldn't put it past" defendant, because he had taken the car before without permission. On December 1, 2007, Middle Township police observed defendant driving the Land Rover. Further investigation revealed the Land Rover was registered in Georgia to defendant's mother. During the week of December 3, 2007, Middle Township police received information from a "concerned citizen" that defendant was involved in distributing firearms to juveniles. The informant stated defendant was known as a high-ranking member of the Bloods street gang. Defendant's criminal history records, at the time of the warrant request, included three convictions for drug possession, along with convictions for aggravated assault with a weapon, terroristic threats, resisting arrest and hindering apprehension. The New Jersey Department of Corrections and New Jersey State Police Intelligence Section for security threat group members 5 A-0116-15T1 listed defendant as a member of the Bloods street gang. Criminal intelligence suggested defendant holds a supervisory position in the gang. The New Jersey Criminal History detail record indicated defendant had several gang-related tattoos. Based on his training and experience, Detective Harkins believed a GPS tracker installed in the Land Rover defendant used would allow law enforcement to determine defendant's trends and habits, aid in physical surveillance operations, and help identify other individuals and locations involved in drug distribution. Based on Detective Harkins's affidavit, a Superior Court judge authorized the GPS tracker's installation in the Land Rover for sixty days. The judge found the affidavit provided probable cause that a GPS tracking device installed in the Land Rover utilized by defendant would provide evidence of drug crimes involving defendant and others. Police installed the GPS, which provided information that led to evidence used against defendant. On February 14, 2012, Judge Raymond Batten heard oral argument regarding defendant's motion to suppress the evidence resulting from the GPS device installed in the Land Rover. Judge Batten described the appropriate standard for probable cause and recognized the issuing judge's finding of probable cause should receive substantial deference. He acknowledged the requirement 6 A-0116-15T1 of considering the totality of the circumstances, and the affidavit must provide contemporary information. Judge Batten proceeded to review all of the information in the affidavit, including: the confidential informants' statements, police interactions with defendant, defendant's criminal history, the connection between defendant and the Land Rover, and defendant's gang affiliation. The judge denied the suppression motion, concluding the record established probable cause, as he was "not able[,] on this record[,] to find either fault or difficulty or any level of intellectual uncertainty[.]" Under the Constitutions of the United States and New Jersey, individuals are protected from unreasonable searches and seizures, and no warrant shall issue except upon probable cause. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Unless a search falls within one of the recognized exceptions to the warrant requirement, the police must first obtain a warrant from a neutral judicial officer as a prerequisite to a search. State v. Sullivan, 169 N.J. 204, 210 (2001) (citing State v. Cooke, 163 N.J. 657, 664 (2000)). "Before issuing a warrant, the judge must be satisfied that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched." Ibid. (citing State v. Laws, 50 N.J. 159, 173 (1967)). The installation of a GPS 7 A-0116-15T1 device in a vehicle constitutes a search under the Fourth Amendment of the U.S. Constitution. United States v. Jones, 565 U.S. 400 (2012). The concept of probable cause "eludes precise definition." Sullivan, 169 N.J. at 210 (quoting Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000)). Courts generally accept it to mean "less than legal evidence necessary to convict though more than mere naked suspicion." Id. at 210-11 (quoting State v. Mark, 46 N.J. 262, 271 (1966)). Probable cause is "consistently characterized . . . as a common-sense, practical standard for determining the validity of a search warrant." State v. Novembrino, 105 N.J. 95, 120 (1987). It is met when police have "a 'well-grounded' suspicion that a crime has been or is being committed." Sullivan, 169 N.J. at 211 (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). In identifying the competing policy concerns behind the probable cause requirement, our Supreme Court explained: Probable cause is a flexible, nontechnical concept. It includes a conscious balancing of the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy. It must be regarded as representing an effort to accommodate those often competing interests so as to serve them both in a practical fashion without unduly hampering the one or unreasonably impairing the significant content of the other. 8 A-0116-15T1 [State v. Kasabucki, 52 N.J. 110, 116 (1968).] The United States Supreme Court similarly described probable cause as a "practical, nontechnical conception." Illinois v. Gates, 462 U.S. 213, 231 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). Probable cause requires more than mere suspicion; it requires a showing of a "fair probability" that criminal activity is taking place. State v. Demeter, 124 N.J. 374, 380-81 (1991) (quoting Gates, 462 U.S. at 238). Courts must base a probable cause determination on the totality of the circumstances and consider the probabilities. State v. Jones, 179 N.J. 377, 389 (2004) (citing Schneider v. Simonini, 163 N.J. 336, 361 (2000)). The court must also apply a qualitative analysis to the unique facts and circumstances of any given case. State v. Keyes, 184 N.J. 541, 556 (2005) (citing Jones, 179 N.J. at 390). The analysis comes down to a "practical, common-sense decision." Jones, 179 N.J. at 390 (quoting State v. Smith, 155 N.J. 83, 93 (1998)). "[W]hether or not probable cause exists 'involves no more than a value judgment upon a factual complex rather than an evident application of a precise rule of law, and indeed a value judgment which inevitably reflects the seasoning and experience of the one who judges.'" Schneider, 163 9 A-0116-15T1 N.J. at 362 (quoting State v. Funicello, 60 N.J. 60, 72-73 (1972) (Weintraub, C.J., concurring)). For these reasons, a reviewing judge "should pay substantial deference" to the discretionary determination of the issuing judge. Kasabucki, 52 N.J. at 117. Review of a warrant's adequacy "is guided by the flexible nature of probable cause and by the deference shown to issuing courts that apply that doctrine." Sullivan, 169 N.J. at 217. "[W]arrant applications 'should be read sensibly rather than hypercritically and should be deemed legally sufficient so long as they contain[] factual assertions which would lead a prudent [person] to believe that a crime [has] been committed and that evidence . . . of the crime [is] at the place sought to be searched.'" Ibid. (quoting Laws, 50 N.J. at 173 (alteration in original)). "[W]hen the adequacy of the facts offered to show probable cause is challenged after a search made pursuant to a warrant, and their adequacy appears to be marginal, the doubt should ordinarily be resolved by sustaining the search." Jones, 179 N.J. at 388-89 (quoting Kasabucki, 52 N.J. at 116). It is therefore well settled that a search executed pursuant to a warrant is presumed valid, and the defendant bears the burden of proving lack of probable cause in the warrant application. Sullivan, 169 N.J. at 211 (citing State v. Valencia, 93 N.J. 126, 133 (1983)). 10 A-0116-15T1 Applying these principles, we agree with Judge Batten's assessment that the issuing judge committed no error in finding probable cause. The affidavit contains multiple sources identifying defendant as a high-ranking member of the Bloods street gang, an extensive criminal history including three drug- possession convictions, and several police observations of drug- related activity. In the totality of the circumstances, these facts presented more than a "fair probability" that criminal activity was taking place. See Demeter, 124 N.J. at 380-81. Furthermore, there was probable cause that the Land Rover, in particular, was involved in the criminal activity. The affidavit presented three times when police observed defendant driving the Land Rover; one of those times, police arrested defendant for possession of CDS. Defendant's suppression motion was properly denied. II Defendant next argues that Judge Batten erred in failing to recuse himself. On April 14, 2010, Judge Kyran Conner recused himself from defendant's case after defendant's then counsel filed an unrelated federal case naming the judge as a defendant. On June 8, 2010, defendant argued a motion to change venue from Cape May County to Atlantic County, and to disqualify Judge Batten "because of the situation with Judge Conner." Assignment Judge 11 A-0116-15T1 Valerie Armstrong denied this motion reasoning the conflict with Judge Conner did not extend to all of Cape May County or specifically to Judge Batten. She further noted that Judge Batten retained the discretion to recuse himself, if he should deem it necessary. Two days later, after hearing oral argument, Judge Batten concluded no basis existed for him to recuse himself from defendant's case, finding no conflict or appearance of conflict. On November 4, 2011, the Sheriff's Department cleared the courtroom of anyone other than attorneys due to a security risk. Judge Batten received information that defendant "has undertaken efforts to . . . contact individuals outside the jail to somehow jeopardize [Judge Batten's] safety." Defendant denied making any threat. Defendant then filed a motion to disqualify Judge Batten and change venue because of this incident. On January 13, 2012, Judge Batten denied the motion, reasoning he received similar communications in the past and the sheriff simply followed protocol in clearing the courtroom. The judge found no circumstances that would "compel or even justify recusal," and stated the incident would not affect his judgment in any way.3 3 Judge Batten eventually did recuse himself, in spring 2012, after defendant filed a federal lawsuit against him. 12 A-0116-15T1 We have considered defendant's arguments regarding the judge's denial of his recusal motion in light of the record and applicable legal principles and conclude they lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Batten in his oral opinion rendered on January 13, 2012. We add the following comments. Rule 1:12-1(g) provides, "The judge of any court shall be disqualified on the court's own motion and shall not sit in any matter, . . . when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." Furthermore, pursuant to Rule 1:18, all judges in New Jersey must abide by the Code of Judicial Conduct. Canon 3.17(B) of the Code of Judicial Conduct provides: "Judges shall disqualify themselves in proceedings in which their impartiality or the appearance of their impartiality might reasonably be questioned," and provides a non-exclusive list of examples. Code of Judicial Conduct, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part 1 at 534 (2018). In short, "[o]ur rules . . . are designed to address actual conflicts and bias as well as the appearance of impropriety." State v. McCabe, 201 N.J. 34, 43 (2010). The standard in determining whether recusal is appropriate asks: "Would a reasonable, fully 13 A-0116-15T1 informed person have doubts about the judge's impartiality?" DeNike, 196 N.J. at 517. Rule 1:12-2 permits a party to file a motion seeking to disqualify the judge presiding over the case. The decision to grant or deny the motion rests entirely within the "sound discretion" of the trial judge. Chandok v. Chandok, 406 N.J. Super. 595, 603, (App. Div. 2009) (quoting Panitch v. Pantich, 339 N.J. Super. 63, 66 (App. Div. 2001)). However, "[w]e review de novo whether the proper legal standard was applied." State v. McCabe, 201 N.J. 34, 45 (2010). In cases where the defendant has allegedly threatened the judge, recusal is not always required. State v. Dalal, 221 N.J. 601, 609 (2015). "[W]hen there is any evidence that a defendant has conveyed a threat to prompt the recusal of a judge or somehow manipulate the proceedings, recusal is not required." Id. at 608. In deciding whether recusal is appropriate, the court should consider the following factors: the nature and context of the threat; whether there is any evidence that the threat was designed, in whole or part, to manipulate the system and/or force a recusal; whether the threat was meant to be communicated to the judge or was delivered in connection with a court proceeding relating to the defendant's case; whether evidence of the threat will be presented or referred to at trial; and whether the judge presiding over the case is the object of the threat. . . . 14 A-0116-15T1 The timing of a threat matters as well. For example, a defendant's outburst in the middle of a trial, with the presentation of evidence to a jury underway, might reasonably be seen as an attempt to thwart the orderly administration of justice and would not necessarily call for recusal. [Id. at 608-09.] The timing and circumstances of the threats here suggest an intention to manipulate the proceedings. Defendant previously succeeded in having Judge Conner recused after defense counsel filed a federal case naming the judge as a defendant. Defendant then moved for Judge Batten's recusal due to his alleged relationship with Judge Conner. When that effort failed, Judge Batten received a threat, arguably a second attempt to have him recused, although defendant denied making the threat. The threat came after Judge Batten had heard and denied three pretrial motions filed by defendant, with six more pretrial motions pending. Finally, when that effort failed as well, defendant resorted to the initial method of filing a federal suit against the judge, which ultimately caused Judge Batten to recuse himself. In denying defendant's motion for recusal, Judge Batten followed the DeNike standard. Also, although the Supreme Court decided Dalal after Judge Batten denied the recusal motion, his reasoning foreshadowed many of the factors from Dalal. See Dalal, 15 A-0116-15T1 221 N.J. at 608-09. First and foremost is the inference that defendant may have initiated the threat to force a recusal. In addition, Judge Batten noted it is not unusual as a criminal court judge to receive threats. Judge Batten emphasized that the threat and subsequent clearing of the courtroom had no impact on the motions he decided that day. He also reasoned granting recusal would only encourage other threats against judges in order to force recusal, stating that granting recusal here "would affectively render [defendant] a self-fulling prophet in terms of his expression of discontent." We conclude Judge Batten made a well-reasoned decision and did not abuse his discretion in denying defendant's motion for recusal. Affirmed. 16 A-0116-15T1

click here to get this case.


Docket No.: a0203-16
Decided: 2018-01-18
Caption: HENRY YU v. TOMS RIVER PLANNING BOARD TRACIE SCHOELEN and DANA SCHOELEN -
Status: unpublished
Summary:
PER CURIAM In this prerogative writs matter, objector Henry Yu appeals from a Law Division judgment affirming the Toms River Planning Board's approval of defendants Tracie and Dana Schoelen's application for a minor subdivision with bulk variances. Because both the Board and the Law Division failed to correctly apply the law relating to self-created hardship, we reverse. This is not a particularly well-developed record. Plaintiff was not represented at the Planning Board meeting at which the subdivision was approved, and none of the parties included the Schoelens' application in the appendix. We only acquired the map of the proposed subdivision after requesting it at oral argument. Nevertheless, the essential facts are undisputed. The properties were originally part of a single, seven-acre parcel owned by the Schoelen family on Old Freehold Road.1 The entire parcel is an irregularly shaped rectangle, roughly twice as deep as it is wide, with one of the narrow ends lying along Old Freehold Road and the other bordering preserved County 1 The Schoelens' lawyer and planner both stated on the record at the Planning Board hearing that the seven-acre parcel was part of a larger tract owned by the Schoelen family, which included the adjacent lot to the north, now occupied by Kremer Auto Body. Counsel stated the tract "was subdivided years ago as part of a plan for the family." 2 A-0203-16T1 lands. The parcel is bordered to the north by the Kremer Auto Body business and, behind that, a nine lot subdivision off a cul-de-sac where the objector resides. Another cul-de-sac subdivision lies to the south. The seven-acre parcel was subdivided several years ago into two lots; lot 10.02, a conforming square-shaped lot consisting of 1.7 acres fronting on Old Freehold Road in the northeast corner of the rectangle, and lot 10.03, an irregularly shaped non-conforming flag lot of almost 5.4 acres, making up the remainder. The lots, both owned by members of the Schoelen family, are improved with single family dwellings and garages. The lots share a driveway, which comes off Old Freehold Road to the south of lot 10.02 and runs up the "staff" of lot 10.03. The family keeps horses on lot 10.03, where there is a stable and two fenced pastures. In 2014, the Schoelens applied to the Planning Board for a minor subdivision with bulk variances to create a building lot for another family member from their two existing lots. They proposed to shift lot 10.02 approximately 40 feet south, reducing the frontage of lot 10.03 by a third, and extending the line dividing the two lots for the entire length of lot 10.03, jogging it north around the existing dwelling on lot 10.03, and reducing that lot to just over three acres. Those changes 3 A-0203-16T1 permitted creation of a new non-conforming flag lot 10.06, with a driveway coming off Old Freehold Road to the north of proposed lot 10.04, formerly lot 10.02, and running up the "staff" to a roughly two acre "flag," bordered on the east by proposed lot 10.04 and the south by proposed lot 10.05, formerly lot 10.03. The Schoelen property is located in Toms River's Rural Residential Zone, which provides for one acre lots. Although the three proposed lots each exceed one acre, all required bulk variances as follows: Proposed lot 10.04 Rear yard accessory structure setback: 30 feet required, 4.9 feet proposed. Side yard accessory structure setback: 20 feet required, 11.8 feet proposed. Accessory structure distance from other buildings: 5 feet required, 0 feet and 2 feet proposed. Proposed lot 10.05 Minimum lot width: 150 feet required, 106.2 feet proposed. Proposed lot 10.06 Minimum lot width: 150 feet required, 44.48 feet proposed. Minimum lot frontage: 75 feet required, 44.48 feet proposed. 4 A-0203-16T1 Accessory structure distance from other buildings: 5 feet required, 0 feet proposed. In essence then, the Schoelens were proposing to take their two lots, one of which was a non-conforming flag lot, and make three lots, all of which would be non-conforming, and two of which would be flag lots. They sought a "hardship" variance pursuant to N.J.S.A. 40:55D-70(c), claiming it was the property's "unique shape and existing structures" that "trigger[ed]" the variances. They did not address that the configuration of the lots and location of the existing structures were as a result of their prior subdivision. Their planner testified they had "seven acres which, at one acre zoning in the right geometry, could yield seven lots. We don't have geometry to get three conforming lots. So, in that respect, it is unusual. It's more than twice deep as it is wide, so that's why we have our width and frontage concerns." The Schoelens' proofs on the negative criteria were limited to their planner's single word affirmative response to their counsel's question as to whether "these variances [can] be granted without substantial detriment to the zone plan and the master plan of the Township of Toms River" and his opinion that there was "no negative impact to this lot line change." 5 A-0203-16T1 Plaintiff and another neighbor objected to the subdivision plan. Plaintiff complained about the creation of a new flag lot and driveway abutting his property. The neighbor behind him complained the applicant was relocating the horse stable and buildings closer to the neighbors living in the subdivision behind Kremer Auto Body, interfering with the quiet use and enjoyment of their backyards. The Schoelens' counsel acknowledged the Board's planner had suggested eliminating the new driveway and tying it into the existing one. The Schoelens' planner noted, however, that the driveway on proposed lot 10.06 was an existing dirt and gravel drive used to access the barn and horse pastures, and that the family desired to keep the driveway "along the commercial site, not between the two [existing] residences." The Board voted unanimously to grant the application without any discussion of self-created hardship. The resolution notes the Board's finding "that the variance relief requested is due to the unusual shape of the parcel . . . and how it has been previously developed," and further notes "the applicant could, if the geometry was changed, construct seven single family residential dwellings on one acre lots, all of which would be conforming with the zoning requirements[,] while all of the lots proposed herein are all oversized." The Board concluded "the 6 A-0203-16T1 applicant has submitted sufficient reasons to grant the relief requested and there will not be any substantial detriment to the Township's zoning plan or neighborhood scheme as a result of the granting of the variance relief sought." Plaintiff filed an action in lieu of prerogative writs, claiming the Schoelens had not demonstrated hardship, that there was no need to have drawn new lot lines so as to require variances for existing sheds, and that any hardship was self- created. He further argued that flag lots were not permitted by the zoning ordinance, were completely out of character for the area and negatively affected neighboring properties. The Law Division judge rejected plaintiff's claim of self- created hardship, finding in the cases applying the doctrine that "creation of the hardship was done either in completely bad faith or at least unnecessarily for reasonable development of the property." The judge found that neither applied here as "the previous construction upon the property was reasonable as is the current request to subdivide the property to allow for further development." The judge found the "subdivision merely required a variance on small zoning issues, most of which do not substantially affect the property." Acknowledging the Schoelens "could have originally made a road to divide the property into various neat 7 A-0203-16T1 lots," he found their failure to do so did not equate to self- created hardship, relying on Jock v. Zoning Board of Adjustment of Wall, 184 N.J. 562, 592 (2005) (holding that "parties who purchase non-conforming property and do not take affirmative steps to render it conforming are [not] complicit in creating the hardship"). Finally, the judge found the Board could have also granted the application under N.J.S.A. 40:55D- (c)(2), based on "allowing proper population density" and "hav[ing] a nicer lot for raising of horses," notwithstanding that "the Board's deliberations do not clearly delineate these points." Plaintiff contends both the Board and the Law Division failed to properly apply the doctrine of self-created hardship. We agree. N.J.S.A. 40:55D-70(c)(1),2 is the provision of the Municipal Land Use Law providing for what is commonly referred to as a 2 The statute provides: Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of (continued) 8 A-0203-16T1 hardship variance. The statute "permits a variance from a bulk or dimensional provision of a zoning ordinance, such as frontage, when, by reason of exceptional conditions of the property, strict application of a bulk or dimensional provision would present peculiar and exceptional practical difficulties or exceptional hardship to the applicant," and the applicant can prove the variance can be granted without substantial detriment to the public good or impairment of the zone plan, the negative criteria. Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 29-30 (2013); see also Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 61 (1999) (permitting a hardship variance based on the unusual narrowness of the property and existing structures). Whether such exceptional conditions of the property will entitle the owner to a hardship variance, depends (continued) any regulation pursuant to [N.J.S.A. 40:55D- 62 to -68.61] would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, [the Zoning or planning board, as appropriate, shall have the power to] grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship . . . . 9 A-0203-16T1 on the owner's role in creating the non-conformity. Ten Stary Dom P'ship, 216 N.J. at 30. Stated differently, "[t]he availability of a hardship variance depends on how the hardship was created." Jock, 184 N.J. at 590. If the applicant, or its predecessor in title, has by some affirmative act brought "an otherwise conforming property into non-conformity," making the hardship one of its own making, "relief will normally be denied." Id. at 591. That is precisely the situation here. It is undisputed that the Schoelens previously subdivided their seven-acre parcel, creating the two lots that now exist. The two lots are thus configured exactly as they designed. When they applied to further subdivide the property, seeking hardship variance relief based on the placement of the existing homes, sheds and driveways, it was incumbent on the Board to consider whether the claimed hardship was one of the Schoelens' own making. See ibid. The resolution's vague reference to the applicant needing "variance relief . . . due to the unusual shape of the parcel . . . and how it has been previously developed," is inadequate. The Board's failure to apply the correct legal standard deprives its decision of the deference to which it would ordinarily be entitled. See Lang, 160 N.J. at 58-59. 10 A-0203-16T1 We also agree with plaintiff that the Law Division judge erred in dismissing its claims of self-created hardship on the basis that the Schoelens had not engaged in bad faith. "[T]here is nothing in the Supreme Court's opinion in Jock to support the assertion that there must have been some sort of misconduct or bad motive on the part of the person creating the non-conforming lot." Egeland v. Zoning Bd. of Adjustment of Colts Neck, 405 N.J. Super. 329, 334-35 (App. Div.), certif. denied, 199 N.J. 134 (2009). That the Schoelens might have been able to have configured the seven-acre parcel to create seven conforming lots is also irrelevant in light of the undisputed fact that they had within the last few years obtained approval to subdivide the property into two lots, one a non-conforming flag lot. While the otherwise underutilization of the land may have justified the creation of the first flag lot, see Cox & Koenig, N.J. Zoning & Land Use Administration, § 29-2.9 (2017), the application for a (c)(1) variance to further subdivide the property, creating yet another flag lot, could not have been granted or affirmed without consideration of the doctrine of self-created hardship, see Green Meadows at Montville, LLC v. Planning Bd. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000). Because the Schoelens took affirmative steps to create the non-conformity, 11 A-0203-16T1 the court's reliance on Jock to sustain the Board's grant of the variances was error. See 184 N.J. at 591 (distinguishing between the failure to correct a non-conformity and the affirmative act of "bring[ing] an otherwise conforming property into non-conformity"). The Law Division judge's conclusion that the Board could have alternatively granted the variance pursuant to N.J.S.A. 40:55D-70(c)(2), requires only brief comment. See R. 2:11- 3(e)(1)(E). Although the Supreme Court in Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 564 (1988), sustained the grant of a subdivision with bulk variances under N.J.S.A. 40:55D- 70(c)(2), for a reason not articulated by the Board, that is that the proposed development would render the land more in conformity with the actual development and planning applicable to the zone, it could do so because the record sustained such a conclusion. Here, there were simply no facts in the record created before the Planning Board sufficient to sustain a (c)(2) variance. Board counsel's argument for an alternative basis to sustain the Board's action in the Law Division cannot suffice for facts in the record. See Antonelli v. Planning Bd. of Waldwick, 79 N.J. Super. 433, 440-41 (App. Div. 1963). Reversed. 12 A-0203-16T1

click here to get this case.


Docket No.: a0341-16
Decided: 2018-01-18
Caption: EDWARD A. GOSTKOWSKI and AMY CAPUANO, his wife v. GRAHAM BRYANT and MARY J BRYANT and TOWN OF WESTFIELD
Status: unpublished
Summary:
PER CURIAM This appeal concerns a trip and fall personal injury action under the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 14-4. Plaintiffs Edward Gostkowski and his wife, Amy Capuano,1 appeal from a July 1, 2016 order granting the summary judgment dismissal of their negligence complaint against defendant Town of Westfield (the Town or Westfield). Plaintiffs also appeal from a September 9, 2016 order denying reconsideration. Based on the documentary submissions, the Law Division judge held plaintiffs failed to raise an issue of material fact demonstrating Westfield had actual or constructive notice of a dangerous condition under N.J.S.A. 59:4-2(b). We affirm insofar as the Law Division granted defendant's motion for summary judgment; however, we base our affirmance on our determination that no jury could objectively conclude that Westfield's failure to protect plaintiff from the "broken and/or defective sidewalk" that caused his injury constituted "behavior that is patently 1 In this opinion, we refer to Edward Gostkowski and Amy Capuano collectively as "plaintiffs," and refer to Edward Gostkowski individually as "plaintiff." Amy Capuano sues per quod. 2 A-0341-16T2 unacceptable under any given circumstance." See Muhammed v. N.J. Transit, 176 N.J. 185, 195 (2003) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)) (applying this well-settled case law definition of palpably unreasonable conduct under N.J.S.A. 59:4- 2).2 I On the morning of December 30, 2013, plaintiff was walking his dog on the sidewalk along Dorian Road. According to plaintiffs' complaint, plaintiff sustained his injury in front of the home of Graham and Mary J. Bryant (the Bryants)3 when he "was caused to slip and fall on some upheaved and/or sunken slabs near an old tree stump [that] had been improperly removed and/or caused the slab['s] upheav[al] or depression." Plaintiff stated that he had walked on this sidewalk infrequently — only "five or less" times — and had never noticed the upheaval previously. 2 "[W]e review orders and not, strictly speaking, reasons that support them. . . . [A] correct result, even if predicated on an erroneous basis in fact or in law, will not be overturned on appeal." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 169 (App. Div. 2005). 3 In addition to Westfield, plaintiffs also sued the Bryants. On February 5, 2016, the court granted summary judgment dismissal of plaintiffs' claims against the Bryants; plaintiffs did not appeal from that order. 3 A-0341-16T2 In October 2012, the Bryants purchased their home, located at the corner of Dorian Road and Westfield Avenue. Westfield concedes the lot is "subject to a right of way," which it possesses. During negotiations to buy the home, the Bryants learned that the sellers had already obtained an estimate from a contractor regarding needed sidewalk repairs, but the seller did not complete any repairs before the Bryants went to settlement. According to Mr. Bryant, following settlement, their insurance company contacted him and his wife and said "they wanted us to repair the sidewalks." Mr. Bryant then hired a contractor to make the sidewalk repairs; however, after completing the repairs along Westfield Avenue, the contractor was "over budget and ran out of [money]," and did not complete any sidewalk repairs along Dorian Road. Mr. Bryant further testified that, "in the fall of 2013," Westfield cut down a tree in front of his house, along Dorian Road, without notice and left its stump remaining. Pictures taken after plaintiff's accident clearly depict this stump and appear to show this tree likely caused the abutting bluestone sidewalk to lift up. Mary Bryant testified that she contacted Westfield after plaintiff's accident and inquired into whether the Town would remove the stump; she further said a Town representative told her 4 A-0341-16T2 that removing the stump was Westfield's responsibility, and the Town would remove it. Moreover, a note dated March 12, 2014, purportedly from Westfield's Department of Public Works, indicates an unnamed resident reported to the Town that the "roots from [the] stump lifted [the] sidewalk." Kris McAloon, P.E., Westfield's engineer, certified that an ordinance, enacted in 1987, places the burden on the abutting property owners to maintain their sidewalks. Specifically, Chapter 24, Section 28 of the Westfield Ordinances states, in pertinent part: Sidewalks and retaining walls located in the public right-of-way shall be constructed, altered, repaired, replaced or removed at the expense of the abutting landowner. The town engineer may, from time to time, inform the town council that there is need for particular sidewalks or retaining walls to be constructed, altered, repaired, replaced or removed. McAloon explained that Westfield also has "the responsibility to maintain its own sidewalks." He estimated that Westfield "owns about five miles of its own sidewalks that [the Department of] Public Works still has to clear, repair, clean and maintain[,] in addition to all its other responsibilities for the maintenance of municipal properties, municipal roadways, drainage systems, and all sorts of other tasks." 5 A-0341-16T2 McAloon stated the Department of Public Works staff would be unable to manage and repair all the residential sidewalks in the Town. Nevertheless, in order to help property owners meet their responsibility, Westfield created a "Sidewalk Replacement Program," which permits property owners to apply to Westfield to have their property included on a list. When the Town receives enough applications, it hires a contractor to make the needed repairs and later assesses the costs against the participating property owners to obtain reimbursement. McAloon's records showed no applications to participate in the program regarding the Dorian Road property where plaintiff's accident occurred. At deposition, McAloon testified that to his knowledge, the Bryants had not contacted the Town regarding any problems with their sidewalk. He added, "The sidewalk would not be the [T]own's responsibility." McAloon acknowledged the Town later removed the stump after plaintiff's December 2013 accident, but he did not know the removal date. On cross-examination, he acknowledged that Westfield had the responsibility to remove the stump. Plaintiffs produced photographs of the sidewalk but did not submit an expert report. In applying the Act, the motion judge assumed the uneven sidewalk constituted a dangerous condition, but found plaintiffs' proofs insufficient to create an issue of fact as to actual or constructive notice. Specifically, he concluded 6 A-0341-16T2 plaintiffs have adduced no evidence, expert or otherwise, showing how long the condition of the . . . slab had existed prior to the date of the incident. The anonymous complaint filed months after the date of the incident obviously cannot compel an inference regarding the state of the sidewalk for months or more than a year prior. The photographs, which are undated, also plainly cannot justify an inference regarding the state of the sidewalk several months, or longer, prior to the incident. The motion judge therefore granted Westfield's motion for summary judgment, concluding plaintiffs lacked proof of actual or constructive notice of the alleged dangerous condition to establish liability under N.J.S.A. 59:4-2(b). The judge also denied plaintiffs motion for reconsideration, finding that plaintiffs failed to "identify competent evidence that the court failed to consider or show that a basis for the court's conclusions was palpably incorrect or irrational." II In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact[- ]finder to resolve the alleged disputed issue in favor of the non- 7 A-0341-16T2 moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Absent immunity, N.J.S.A. 59:4-2 governs a public entity's liability for injuries resulting from dangerous conditions on property it owns or controls, providing: A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable. N.J.S.A. 59:4-1(a) defines a "dangerous condition" as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." "Whether property 8 A-0341-16T2 is in a dangerous condition is generally a question for the finder of fact." Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 123 (2001) (citation omitted). Regarding the Act's notice requirement, plaintiffs argue the motion judge erred in holding they failed to demonstrate a genuine issue of material fact as to whether Westfield had notice of the dangerous condition. On this point, we agree. Actual notice will be found if a claimant proves the public entity "had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." N.J.S.A. 59:4-3(a). Constructive notice will be imputed where "the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3(b). Viewing the evidence in the light most favorable to plaintiffs, the record contains sufficient evidence that Westfield had actual or constructive notice of the sidewalk's upheaval. In 2012 — approximately one year before plaintiff's accident — the Bryant's insurance company notified them their sidewalks needed repair. This notice only confirmed what the Bryants already knew from the repair estimate provided to them during the contract negotiations to buy their home. Furthermore, shortly before 9 A-0341-16T2 plaintiff's accident, Westfield, or its contractor, cut down a tree growing close to the sidewalk along Dorian Road, in front of the Bryant's home; significantly, the roots of that tree appear to have caused the bluestone slabs to shift, thus creating the uneven condition that caused plaintiff's accident. Based on this evidence, a jury could conclude that Westfield had actual or constructive notice of the sidewalk's uplifted condition a sufficient time prior to plaintiff's accident to have taken measures to protect against the alleged dangerous condition. See N.J.S.A. 59:4-2(b), 59:4-3. We conclude the motion judge placed undue reliance on the fact that plaintiffs' photographs — which depict a stump adjacent to an uneven stone sidewalk — lacked specific dates. The record contains no other explanation for Westfield cutting down the tree other than the explanation that the roots of the tree were uplifting the adjacent bluestone slabs, creating an uneven and unsafe sidewalk. Because the removal of this tree occurred before plaintiff's accident, the record clearly contained substantial credible evidence in plaintiffs' favor regarding the issue of notice. Accordingly, a jury could reasonably conclude Westfield had constructive or actual notice of the dangerous condition of the sidewalk. 10 A-0341-16T2 However, notwithstanding the evidence in plaintiffs' favor on the issue of notice, we affirm the Law Division's grant of summary judgment. Because the motion judge concluded that plaintiffs' claim failed on the issue of notice, he did not address plaintiffs' remaining hurdle under the Act — showing Westfield's action or inaction regarding the tree was "palpably unreasonable." N.J.S.A. 59:4-2. Apart from proof of notice, to establish liability against a public entity under N.J.S.A. 59:4-2, a plaintiff must establish a prima facie case that the action or inaction of the public entity was "palpably unreasonable." Coyne v. Dep't of Transp., 182 N.J. 481, 493 (2005); see also Carroll v. N.J. Transit, 366 N.J. Super. 380, 386-87 (App. Div. 2004); Maslo v. City of Jersey City, 346 N.J. Super. 346, 349 (App. Div. 2002). The term "implies behavior that is patently unacceptable under any given circumstance." Kolitch, 100 N.J. at 493 (1985). The behavior "must be manifest and obvious that no prudent person would approve of its course of action or inaction." Ibid. (citation omitted). Whether the public entity's behavior was palpably unreasonable is generally a question of fact for the jury. See Vincitore, 169 N.J. at 130. However, a determination of palpable unreasonableness, "like any other fact question before a jury, is subject to the court's assessment whether it can reasonably be 11 A-0341-16T2 made under the evidence presented." Maslo, 346 N.J. Super. at 351 (quoting Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)). Accordingly, "the question of palpable unreasonableness may be decided by the court as a matter of law in appropriate cases." Id. at 350 (citing Garrison v. Twp. of Middletown, 154 N.J. 282, 311 (1998)). Our courts have upheld summary judgment on the issue of palpably unreasonable conduct in a variety of contexts. In Maslo, we affirmed summary judgment in favor of a city, where the plaintiff had tripped on an uneven public sidewalk having a difference in elevation between two sections of slightly over an inch. Maslo, 346 N.J. Super. at 350-51. Apart from concluding the city had no notice of the tripping hazard, we also held "a rational fact-finder could not resolve the question of palpable unreasonableness in favor of [plaintiff] on this record." Id. at 351. In making that determination, we noted, among other factors, the public policies underlying the Tort Claims Act and the "vast amount" of sidewalks in the city. Ibid. In Carroll v. N.J. Transit, 366 N.J. Super. 380, 388, 391 (App. Div. 2004), we sustained summary judgment for the defendant in a case where the plaintiff slipped on dog feces deposited on the steps of a public subway. The defendant had a maintenance worker in the vicinity, but the worker had failed to observe or 12 A-0341-16T2 remove the dog feces before the plaintiff fell. The plaintiff argued that it was palpably unreasonable for the worker to have swept the nearby subway platform before attending to the steps. We rejected that argument as a matter of law, holding that the "claims of palpable unreasonableness presented no jury question." Id. at 391. We found significant that the plaintiff had presented no proofs addressing standards of care for the inspections of subways and rail stations. Id. at 390. The record also was "devoid of any evidence of a history of similar incidents or complaints, or a demonstrable pattern of conduct or practice to suggest the need for a more frequent inspection schedule." Id. at 390-91. As noted, Westfield's municipal code states: "Sidewalks and retaining walls located in the public right-of-way shall be constructed, altered, repaired, replaced or removed at the expense of the abutting landowner." Westfield, N.J., Streets and Sidewalk Ordinance ch. 24, § 28 (1987). The record reflects that the Bryants and their predecessors in title understood their responsibility to repair the abutting sidewalk, but they failed to address the condition of the sidewalk in sufficient time to avoid plaintiff's accident. But for the unfortunate problem encountered by the Bryants with their initial contractor, the Dorian Road sidewalk repairs would have been completed before 13 A-0341-16T2 plaintiff's accident. We discern no basis for attributing the problems encountered by the Bryants to any action or inaction by Westfield. On the record before us, plaintiffs could not prove to a jury "behavior that is patently unacceptable under any given circumstance." Muhammed, 176 N.J. at 195. It is unrealistic to expect that a municipality, having many trees along its miles of sidewalks, should have addressed the sidewalk defects in a different manner that would have prevented plaintiff's accident. Nor does the record contain competent proof that the time interval between Westfield's alleged receipt of notice and the date of plaintiff's accident represented a delay that is "patently unacceptable." Mr. Bryant testified that Westfield removed the tree that appeared to cause the bluestone slab to uplift in autumn 2013, or no more than three months before plaintiff's accident. Such a delay, given the nature of the problem, is not palpably unreasonable. The situation did not bespeak an urgent and immediate need for action by the public entity, such as, for instance, a malfunctioning traffic light at a busy intersection. See Bergen v. Koppenal, 52 N.J. 478 (1968). Westfield's conduct here is no worse than the actions and inactions that were at issue in Muhammed, Maslo, Carroll, and Black, where summary judgment was granted and upheld. 14 A-0341-16T2 Although Westfield apparently accepts responsibility for removing any trees or stumps that affect sidewalks, the ordinance dictates that it is the responsibility of abutting property owners to repair the sidewalks. We do not find any basis for concluding that Westfield engaged in any palpably unreasonable action or inaction in the manner it addressed the problem of defective sidewalks generally, or the particular sidewalk defect under review. We note that plaintiff asserts he tripped and fell on the upheaved sidewalk, not the stump nor the roots that caused the upheaval. Westfield's ordinance clearly makes the abutting owner responsible for repairing defective sidewalks in the first instance, not the municipality. Affirmed. 15 A-0341-16T2

click here to get this case.


Docket No.: a0580-16
Decided: 2018-01-18
Caption: HACKENSACK UNIVERSITY MEDICAL CENTER v. PETER MURRAY
Status: unpublished
Summary:
PER CURIAM Plaintiff Hackensack University Medical Center (HUMC) appeals from a September 1, 2016 order of the Special Civil Part dismissing its complaint after a bench trial. We affirm. HUMC sued defendant Peter Murray for $9,264.90 representing unpaid medical bills. Defendant did not deny that he was hospitalized at HUMC for several days in March 2015. In fact, defendant consulted with his health insurer, Amerihealth, to confirm that his treatment and stay at HUMC would be covered. Amerihealth's third party administrator, Magellan Healthcare, Inc. (Magellan), approved defendant's four days of care at HUMC. The hospital issued a bill to Amerihealth in the amount of $19,444.98 for services rendered to defendant. Amerihealth paid $990 to HUMC and defendant made no payments to HUMC. HUMC filed suit against defendant alleging he owed money for unpaid medical bills. In the complaint, HUMC demanded payment from defendant in the amount of $9,264.90. The matter was tried without a jury. At trial, HUMC offered into evidence its bills and electronic versions of the explanation of benefits (EOBs) forms sent from Amerihealth to HUMC. The EOBs introduced by HUMC contained multiple discrepancies as to the total amount billed and the amount paid pursuant to a contract between Amerihealth and HUMC. There was no trial testimony reconciling the billing and payment discrepancies. No one from HUMC testified that defendant agreed to pay sums above the amount paid to HUMC by defendant's insurance 2 A-0580-16T3 provider. At trial, HUMC reduced its demand for payment of unpaid medical bills to $3,931.45. Defendant, who represented himself at trial, admitted that he was hospitalized at HUMC for four days. Defendant understood that the hospital bill was settled between Amerihealth and HUMC, and that he "wasn't responsible to pay anything beyond [his] responsibility to the contract with [his] insurance company." Defendant moved several documents into evidence. 1 One document in particular, D-2, was an EOB from Magellan to defendant dated July 24, 2015. D-2 read, in part, as follows: "covered charges reflect network discounts, and provider is prohibited from balance billing any amount to the member." At trial, defendant argued that HUMC was improperly attempting to balance bill him. At the close of the case, the trial judge found HUMC failed to prove a contractual obligation requiring defendant to pay the hospital above the amount paid by defendant's health insurance provider. In fact, HUMC never argued the existence of any such contract or agreement between it and defendant. The judge also found that the evidence submitted by HUMC as to the balance due from defendant was "all over the map in terms of adjustments." 1 HUMC's appellate appendix failed to include at least two of defendant's exhibits admitted as evidence at trial. 3 A-0580-16T3 The judge ruled that HUMC accepted Amerihealth's payment in conjunction with Magellan's statement that "anything over and above that would be covered charges, reflect network discounts, and provider is prohibited from balance billing any amount to the member." Consequently, the judge decided in favor of defendant and dismissed HUMC's complaint. On appeal, HUMC argues the judge erred by: (1) failing to award the outstanding medical bills in accordance with the principles of quantum meruit/unjust enrichment; and (2) finding the hospital was "balance billing." Our review of a judgment entered in a non-jury case is limited in scope. "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Before addressing the merits of HUMC's appeal, we note that litigants are required to provide all "parts of the record . . . as are essential to the proper consideration of the issues." R. 2:6-1(a)(1)(I). "Without the necessary documents, we have no 4 A-0580-16T3 basis for determining" the issues on appeal, and may be left with "no alternative but to affirm." Soc'y Hill Condo. Ass'n, Inc. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002); see also Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 54-55 (2004) (affirming appellate court's refusal to address argument raised by appellant, where appellant failed to include an order or transcript relating to the argument). HUMC failed to include relevant trial exhibits in its appellate appendix, including the Magellan EOB marked as D-2 and an August 4, 2015 bill from HUMC to defendant marked as D-3. Because HUMC failed to include material "essential to the proper consideration of the issues," we could dismiss this appeal on procedural grounds. See R. 2:6-1(a)(1)(I). Despite this procedural deficiency, we consider the merits of HUMC's appeal. HUMC argues that the judge failed to apply principles of quantum meruit/unjust enrichment in the absence of a contract requiring payment by defendant. HUMC relies on VRG Corporation v. GKN Realty Corporation, 135 N.J. 539, 554 (1994), in support of its unjust enrichment claim. The VRG Corporation case requires HUMC to show both that defendant received a benefit and that retention of that benefit without payment would be unjust. See ibid. HUMC argues it should prevail on an unjust enrichment basis because the hospital was "not . . . paid despite having had 5 A-0580-16T3 a reasonable expectation of payment for services performed." Cty. of Essex v. First Union Nat. Bank, 373 N.J. Super. 543, 550 (App. Div. 2004). We agree with the judge that HUMC failed to prove unjust enrichment. HUMC was paid by Amerihealth for the services it provided to defendant. Accordingly, there is sufficient credible evidence in the record to support the judge's rejection of HUMC's entitlement to restitution under an unjust enrichment theory. To establish a quantum meruit claim, HUMC must prove the following: (1) performance of services, (2) defendant's acceptance of the services, (3) the expectation of compensation, and (4) the reasonable value of the services. See Starkey v. Estate of Nicolaysen, 172 N.J. 60, 68 (2002). According to HUMC, defendant admitted receiving care at the hospital, the hospital expected to be paid by defendant, and Amerihealth's EOBs represented the reasonable value of the services. However, HUMC did not present any testimony independently establishing reasonable value for purposes of a quantum meruit claim. In support of its quantum meruit claim, HUMC argues that it expected payment from defendant because Amerihealth's EOBs designated portions of the bill as deductible amounts and copay amounts. However, expectation of payment to prove a quantum merit claim requires HUMC to have anticipated remuneration at the time 6 A-0580-16T3 the services were provided. Amerihealth's EOBs, sent to HUMC well after the date of the provided services, cannot serve as a basis for such an expectation. See VRG Corp., supra, 135 N.J. at 554 ("[P]laintiff [must] show that it expected remuneration from the defendant at the time it performed or conferred a benefit on defendant . . . ."). HUMC provided no evidence that defendant signed an agreement to pay for the services upon admission. Nor does HUMC challenge the judge's finding that it failed to prove any such agreement. While HUMC expected payment, there is no evidence that it expected payment from defendant. HUMC received and accepted payment from Amerihealth. Defendant testified that plaintiff "insisted on [charging] a different amount than [his] insurance company did" and that the hospital billed him in varying amounts without any explanation as to the amounts charged and the reasonableness of those amounts. HUMC presented no testimony reconciling the conflict between the trial exhibits demanding varying payment amounts from defendant and offered no explanation for its significantly reduced demand at trial. Based on the trial testimony and the failure to include defendant's trial exhibits in its appellant's appendix, HUMC cannot prevail on its quantum meruit claim. 7 A-0580-16T3 Lastly, we agree with the judge that the testimony adduced at trial supports a finding of improper balance billing by HUMC. After receiving an EOB from Amerihealth indicating the amount of the permissible charges under HUMC's contract, HUMC then billed defendant approximately $9,000 over that amount. Although HUMC subsequently sought a lesser amount on the day of trial, there was ample evidence to support the judge's finding that HUMC balance billed defendant. Affirmed. 8 A-0580-16T3

click here to get this case.


Docket No.: a0653-16
Decided: 2018-01-18
Caption: PAMELA DENNIS v. JOHN ROBERTSON
Status: unpublished
Summary:
PER CURIAM Defendant John Robertson appeals from an August 19, 2016 order of the Family Part requiring him to contribute to his son's college tuition costs. Because the judge relied on an incorrect assessment of defendant's income, we affirm in part, and reverse and remand in part. I. We discern the following relevant facts from the record. Plaintiff Pamela Dennis and defendant were never married, but lived together in New York City, and had a son born in November 1997. At some point, the parties became estranged, and plaintiff obtained child support in New York. Eventually, plaintiff moved to New Jersey. In 2001, defendant sought to register the New York child support order in New Jersey, modify the support, and establish a visitation schedule. The judge maintained the New York order, setting payment at $230 per week through income withholding, but relisted the modification motion, requiring the parties to provide financial information and case information statements. In 2004, the court denied defendant's application for a downward modification of child support, and denied plaintiff's application for an upward modification of child support. Further, the Family Part judge ordered the parties to attend parenting time mediation, and to set up a visitation schedule for defendant to be with his son. On September 3, 2008, the parties entered into a consent order agreeing to a detailed visitation schedule. Plaintiff had 2 A-0653-16T2 residential and physical custody but both parties agreed to consult with each other on all matters, including education. In 2010, while picking his son up for their scheduled visit, the child ran away from defendant, telling defendant that plaintiff "made him do it". In March 2010, the Family Part entered an order requiring the parties to comply with the September 3, 2008 consent order. The compendium of subsequent motions and orders in defendant's appendix suggest compliance with the visitation schedule was never fully realized and is the apparent basis for defendant's assertion that he has no relationship with his son.1 In September 2012, defendant filed a motion asking the court, among other things, to compel plaintiff to provide information regarding the child's education and to compel plaintiff's compliance with the 2008 consent order. According to defendant, his son had been transferred to a private high school, from which defendant began to receive periodic progress reports and letters. In November 2012, plaintiff filed an application to increase child support, and the court set the new level of child support at $377 per month with arrears of $108.33 for a total of $485.33 per month. 1 Defendant's appeal is unopposed and the full history of litigation between plaintiff and defendant has not been presented for our review. We draw no conclusions beyond what is presented in the record supplied to us. 3 A-0653-16T2 In March 2016, defendant wrote a letter to plaintiff and to his son inquiring about whether he planned on continuing his education, working, or joining the military. Receiving no response, defendant moved to determine whether the child should be emancipated. In response, plaintiff moved to compel defendant to contribute towards the child's college costs, as he would be enrolling in college in Massachusetts. In May 2016, the parties appeared before the Family Part judge to address these motions. The court emphasized the parties needed to establish their financial circumstances through proofs, the child had to fully explore and pursue all scholarship and loan options and needed to contribute as much as he could towards his costs. Further, the judge considered the depth of the relationship between defendant and his son. She ordered defendant to inquire about obtaining an Amtrak pass2 for the child and for the parties to exchange discovery. In August 2016, a different Family Part judge entered an order instructing the parties to bring their financial documents to the next hearing. Plaintiff was ordered to provide defendant with all information pertaining to the child's college application. Furthermore, the parties were ordered to agree on a date and time during which defendant could discuss with 2 Defendant had been employed by Amtrak, and reportedly could obtain this pass at no cost. 4 A-0653-16T2 the child the parameters for the Amtrak pass, which defendant was to obtain before the end of September. On August 16, 2016, the parties brought to court what was characterized as "all their financial documents . . . including but not limited to their W-2s, [i]ncome [t]ax [r]eturns, and other documents evidencing income." Defendant is retired and receives a monthly lump sum comprised of his disability and pension payments. He provided his 1099 and 1099-R from 2015, which showed an income of $40,940.16, and at that time, he had not filed 2015 tax returns. Defendant also provided an affidavit showing an income of $40,940.16, and a letter from the Railroad Retirement Board evidencing a monthly income of $3,411.68. Plaintiff is a teacher, employed by the New York City School System, making approximately $94,962.86 a year. On August 19, 2016, the Family Part judge issued an order and provided reasons on the record. He recognized, "[n]o case information statements were filed by either party despite being so ordered by the Court[.]" He found plaintiff "articulate and forthright," and it was obvious she "loves and is passionate about her son," and found defendant "lack[ed] . . . credibility and was somewhat disingenuous with his testimony that his son has been alienated from him . . . by plaintiff." The judge held 5 A-0653-16T2 emancipation was not appropriate since the child would be attending college. The judge utilized the factors established in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), to determine the level of support owed by defendant. The judge rejected defendant's argument that the child was so alienated from him that he should not be required to contribute to college costs. The judge stated, despite no case information statements being submitted by the parties, they have submitted calculations of their monthly expenses with plaintiff mother of $2,239 and defendant father $3,348.83. The parties have also submitted their recent income information that reveals that plaintiff mother has a yearly income of approximately $94,962.86 . . . and defendant father has a yearly income of approximately $65,378.59. Based on these earnings and the child's agreement to pay one third of the college costs, the court found that after the child paid his third, defendant would be responsible for forty percent of the remaining costs and plaintiff would be responsible for the remaining sixty percent. Therefore, the court ordered defendant to contribute $6,267 and provide an Amtrak pass.3 The court 3 The trial judge's oral opinion states that plaintiff will be responsible for $9,400, and the child for $7,833.33. However, the order only sets out defendant's responsibility to pay his share, $6,267. 6 A-0653-16T2 thereafter recalculated defendant's child support obligation to $363.33 monthly. This appeal followed. II. Defendant argues the trial court erred in deciding he had a responsibility under Gac v. Gac, 186 N.J. 535 (2006), to contribute towards his son's college expenses. We discern no error in the court's determination that defendant is required to contribute, but agree with defendant's argument that the trial court miscalculated the amount of contribution owed. We have "have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577-78 (App. Div. 2010) (citation omitted). "[A]ppellate courts 'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Furthermore, deference is appropriate "[b]ecause of the family courts' special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, where the findings of the trial court "went so wide of the mark 7 A-0653-16T2 that the judge was clearly mistaken," this court will reverse. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). To determine whether a parent should be required to contribute to college costs, and how much should be contributed, a trial court must balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances. Gac, 186 N.J. at 543. These factors include: (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child . . .; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child. [Newburgh, 88 N.J. at 545; Gac, 186 N.J. at 543.] 8 A-0653-16T2 Defendant argues because he did not have a relationship with his son, the trial court erred by requiring him to contribute towards the college expenses. We do not consider the trial judge's findings under the Newburgh factors "so wide of the mark that the judge was clearly mistaken." G.L., 191 N.J. at 605. In particular, the court here found that defendant contributed towards the lack of relationship: it is clear to this [c]ourt, defendant . . . has not made the effort and it is quite telling from his most recent lack of effort by the defendant to see his son who was waiting for him on two occasions . . . and he failed to follow up on taking him to accepted students weekend as offered or suggested by the [c]ourt. Therefore, he should not be able to claim alienation as a justification for not contributing to college costs. Additionally, even if alienation was present, "[a] relationship between a non-custodial parent and a child is not required for the custodial parent or the child to ask the noncustodial parent for financial assistance to defray college expenses." Gac, 186 N.J. at 546. Regarding the financial status of the parties, the court found, "[t]he parties have . . . submitted their recent income information that reveals that plaintiff mother has a yearly income 9 A-0653-16T2 of approximately $94,962.86 . . . and defendant father has a yearly income of approximately $65,378.59[.]" However, the parties did not submit case information statements, as required by Rule 5:5-4, despite requests by the court. We have previously stated the mandate requiring case information statements "is not just window dressing. On the contrary, it is a way for the trial judge to get a complete picture of the finances of the movants[.]" Palombi v. Palombi, 414 N.J. Super. 274, 287 (App. Div. 2010) (quoting Gulya v. Gulya, 251 N.J. Super. 250, 253-54 (App. Div. 1991)). Here, the trial court reached its financial determinations by reviewing defendant's 1099 and 1099-R, and plaintiff's pay stubs. These documents, although certainly relevant, were insufficient to "present[] an adequate factual basis for the court to assess essential facts necessary to a determination of the issues presented." Id. at 288. Illustrating this point, the court misinterpreted defendant's 1099 and 1099-R, and attributed to him an additional $24,438.43 in yearly income.4 This materially erroneous finding warrants reversal. 4 The court looked at these documents, added boxes 3 on both, and calculated the amount paid to defendant, coming to a total of $65,378.59. However, based on instructions provided by the Railroad Retirement Board, the correct boxes are 3 and 7, respectively, which provides a total income of $40,940.16, thus 10 A-0653-16T2 The resulting calculated contributions -- $363.33 in monthly child support and $6,267 in college costs -- result in a yearly obligation of $10,626.96, approximately twenty-six percent of defendant's apparent $40.940.16 yearly income. Given plaintiff reported a yearly income of approximately $94,962.86, her income more than doubles that of defendant's. These discrepancies warrant a second look at the apportionment of the parents' responsibility for the college costs as well as support. As we sustain the portion of the trial court's ruling finding defendant was not exempt from contributing to his son's college costs, defendant's court-ordered college contribution shall remain provisionally in place, subject to appropriate credits or retroactive adjustments after the trial court completes its post- remand analysis. All additional arguments introduced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed in part, reversed and remanded in part. At a further hearing on this matter, the courts shall require the parties to agreeing with defendant's affidavit. See Explanation of Form RRB 1099 Tax Statement, U.S. Railroad Ret. Bd., https://www.rrb.gov/Benefits/TXL-1099; see also Explanation of Form RRB 1099-R Tax Statement, U.S. Railroad Ret. Bd., https://www.rrb.gov/node/1412. 11 A-0653-16T2 provide current case information statements, as required under Rule 5:5-4, and any other pertinent updated information. We do not retain jurisdiction. 12 A-0653-16T2

click here to get this case.


Docket No.: a2184-16
Decided: 2018-01-18
Caption: DONNA JEAN KAFADER v. LOUIS G. NAVAS
Status: unpublished
Summary:
PER CURIAM Defendant Louis G. Navas appeals from a Family Part order denying his motion to terminate or modify his alimony obligation to his ex-wife, Donnajean Kafader. We reverse. I. After seventeen years of marriage, plaintiff and defendant divorced in August 2000. Their property settlement agreement (PSA) required defendant to pay plaintiff $150 per week in permanent alimony "until the death of either party or the remarriage of [plaintiff]." Defendant unsuccessfully moved to modify or terminate the alimony obligation in 2003, 2004 and 2006. The 2003 and 2004 orders state that defendant's motions were denied following hearings. Defendant's 2006 motion was denied because he failed to: file a case information statement; present any evidence showing his efforts to obtain employment; provide documentation concerning his alleged health problems; and supply complete tax returns. In June 2016, defendant moved to terminate or modify his alimony obligation due to an alleged "significant change in circumstances and inability to pay." He claimed a significant reduction in his income and health issues, and that plaintiff was cohabiting with a paramour. In his supporting certifications, defendant detailed his claim that plaintiff was cohabiting, explained his purported reduction in income and described his alleged health issues. He provided his federal and state tax returns for the years 2000 to 2015, a case information statement, and three doctor's letters 2 A-2184-16T1 describing various health issues. He also submitted photographs of plaintiff and her alleged paramour together. Plaintiff filed opposition and a cross-motion.1 In her certification, plaintiff denied cohabiting with the alleged paramour, and asserted defendant misrepresented his income in his prior motions and was doing so again. Plaintiff claimed defendant was self-employed, derived his income solely from the operation of his construction company, and artificially and inaccurately reduced his alleged personal income by paying personal expenses with corporate funds. After oral argument, the court found defendant failed to demonstrate changed circumstances sufficient to permit a modification of his alimony obligation, and denied defendant's motion without a plenary hearing. The court found that because the PSA listed only the death of the parties and plaintiff's remarriage as the bases upon which alimony could be terminated, the parties intentionally excluded cohabitation as grounds for modification. Relying on our Supreme Court's decision in Quinn v. Quinn, 225 N.J. 34 (2016), the court concluded it must enforce 1 We do not address plaintiff's cross-motion. The court denied the relief requested and plaintiff did not appeal from the court's order. 3 A-2184-16T1 the PSA and, based on its interpretation of the PSA, modification of alimony based on cohabitation was not authorized. The court also rejected defendant's reliance on his purported health issues because the doctor's notes were "stale" and otherwise did not establish the issues interfered with defendant's ability to work or earn an income. The court rejected defendant's contention that his alleged reduced income constituted a changed circumstance warranting modification of alimony. In its oral opinion, the court found that defendant, as a self-employed contractor, was required to provide more detailed financial information to support his claimed reduction in income. The court's order states defendant produced "some of the documents necessary to meet the prima facie standard" of changed circumstances and that plaintiff "points to documents" which defendant did not submit that would "aid the [c]ourt in determining the viability of [d]efendant's position[]." The court, however, did not identify the information it found lacking. The court also concluded it did "not have the financial accounting expertise" to determine, based on defendant's submissions, if he made a prima facie showing of changed circumstances. The court denied defendant's motion without prejudice. This appeal followed. Defendant makes the following arguments on appeal: 4 A-2184-16T1 POINT I THE TRIAL COURT ERRED AND MISINTERPRETED QUINN V. QUINN, 225 N.J. 34 (2016), BY HOLDING THAT SINCE THE PARTIES' PROPERTY SETTLEMENT DID NOT PROVIDE FOR TERMINATION OF ALIMONY BASED UPON COHABITATION, COHABITATION WAS NOT AN ISSUE IN THE CASE IN ANY RESPECT, COMPLETELY IGNORING THE LAW ON WAIVERS. POINT II THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT SUBMITTED SOME DOCUMENTS TO MEET A PRIMA FACIE STANDARD UNDER LEPIS, BUT THAT PLAINTIFF POINTED TO OTHER DOCUMENTS NOT SUBMITTED WHICH WOULD AID THE COURT AND THUS DENIED DEFENDANT'S MOTION AND A PLENARY HEARING. II. The decision to modify an alimony obligation "based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (2006). An alimony determination will not be overturned on appeal absent an abuse of discretion. See Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (holding that vacating a court's findings as to modification of alimony requires a determination "that the trial court clearly abused its discretion"). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (citations omitted). "A trial 5 A-2184-16T1 court's interpretation of the law and the legal consequences that flow from established facts are not[, however,] entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Consideration of a motion to modify alimony requires application of the standard established by our Supreme Court in Lepis v. Lepis, 83 N.J. 139 (1980). The moving party must first make a prima facie showing that "changed circumstances have substantially impaired the ability to support himself or herself." Id. at 157. To determine whether there is a prima facie showing of changed circumstances, a judge must consider the terms of the order at issue and compare the facts as they were when that order was entered with the facts as they are at the time of the motion. See, e.g., Faucett v. Vasquez, 411 N.J. Super. 108, 129 (App. Div. 2009). "There is . . . no brightline rule by which" a court measures a change in circumstances. Larbig, 384 N.J. Super. at 23. "Each and every motion to modify an alimony obligation 'rests upon its own particular footing and [we] must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig, 384 N.J. Super. at 24). If a prima facie showing is made, the court must then 6 A-2184-16T1 determine if a plenary hearing is warranted. Lepis, 83 N.J. at 159; see also Crews v. Crews, 164 N.J. 11, 28 (2000) (noting the party seeking modification must make a prima facie showing of changed circumstances before being entitled to a hearing). Here, defendant's motion was founded on three purported changed circumstances: plaintiff's alleged cohabitation; his health issues; and his claimed reduction in income. We address in turn each of the alleged changes in circumstances upon which defendant relied. The court did not decide whether defendant made a prima facie showing that plaintiff cohabited, and instead determined cohabitation was not an issue because the PSA did not expressly list cohabitation as grounds for modification. Defendant contends the court misapplied the principles in Quinn, where the Court held in part that a PSA expressly providing for termination of alimony upon the supported spouse's cohabitation is enforceable. 225 N.J. at 50. Unlike in Quinn, the court here was not presented with a request to enforce a clearly stated PSA provision. The parties' PSA does not directly bar modification of alimony based on cohabitation. Instead, the court inferred the parties agreed cohabitation would not provide grounds for alimony modification because the PSA refers to only the death of the parties and 7 A-2184-16T1 plaintiff's remarriage as grounds for alimony termination. In Quinn, however, the Court observed that "[i]n the absence of an agreement that permits the obligor former spouse to cease payment of alimony, [it has] permitted a modification of alimony, including cessation of alimony, in the event of post-divorce cohabitation . . . ." Id. at 49; see also Lepis, 83 N.J. at 146 (citations omitted) ("[A]limony . . . orders define only the present obligations of the former spouses. Those duties are always subject to review and modification on a showing of 'changed circumstances.'"). Thus, the Court recognized that in the absence of an agreement concerning cohabitation, it may constitute a changed circumstance supporting modification or termination of alimony. Quinn, 225 N.J. at 49. In our view, the court here erred by inferring the parties agreed cohabitation would not constitute grounds supporting a modification or termination of alimony. The PSA's language did not compel such an inference. The PSA's silence on the issue of cohabitation may have constituted a recognition that in the absence of an express agreement, the law permits a supporting spouse to rely on cohabitation as a changed circumstance supporting the termination or modification of alimony. Ibid. We conclude the court erred by determining the parties agreed plaintiff's cohabitation would terminate alimony and that the holding in Quinn 8 A-2184-16T1 precluded consideration of defendant's cohabitation claim.2 See id. at 45 ("To the extent that there is any ambiguity in the expression of the terms of a settlement agreement, a hearing may be necessary to discern the intent of the parties at the time the agreement was entered and to implement that intent."). Nevertheless, the court correctly rejected defendant's claim. The party moving for the modification of alimony has the burden of presenting competent evidence establishing a prima facie case of changed circumstances. See R. 1:6-6; Lepis, 83 N.J. at 157- 59. Defendant did not sustain that burden because his cohabitation claim was supported by nothing more than hearsay statements attributed to unidentified third-parties, and a few pictures showing plaintiff and her alleged paramour together. He offered no competent evidence showing plaintiff was cohabiting and therefore failed to satisfy his burden of making a prima facie showing of changed circumstances. 2 We decide only that the PSA does not require an inference that the parties agreed cohabitation would not permit a modification or termination of alimony. In the event defendant relies on cohabitation in the future to support a request to modify or terminate alimony, plaintiff is not precluded from presenting evidence that the parties agreed cohabitation would not support a modification or termination of alimony, and that the PSA's language reflected that agreement. PSAs are governed by the general principles of contract interpretation. Barr v. Barr, 418 N.J. Super. 18, 31 (2011). 9 A-2184-16T1 Defendant similarly failed to present competent evidence showing how his health issues affected his ability to work or earn his prior level of income. Defendant submitted three doctor's letters in support of his claim, two of which predated defendant's motion by over six years. None of the letters state that the ailments described affect defendant's ability to work or earn an income. We discern no abuse of discretion in the court's finding that defendant failed to make a prima facie showing of changed circumstances based on his health issues. However, we agree with defendant's argument that the court erred by finding he failed to make a prima facie showing his reduction in income constituted a changed circumstance warranting a plenary hearing. An "increase or decrease in the supporting spouse's income" has been long recognized as a changed circumstance supporting the modification of alimony. Lepis, 83 N.J. at 151; accord Martindell v. Martindell, 21 N.J. 341, 355 (1956). The moving party must demonstrate that the "'changed circumstance . . . substantially impaired the [moving party's] ability to support himself or herself.'" Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001) (quoting Lepis, 83 N.J. at 157). A "change in . . . income" is "only one part of the calculus to be considered in ruling upon" a motion for reduction in alimony. 10 A-2184-16T1 Donnelly, 405 N.J. Super. at 129. The court must not only consider "the parties' earnings but also how they have expended their income and utilized their assets." Id. at 130. A temporary change in income does not support a modification of alimony. See Lepis, 83 N.J. at 151 ("Courts have consistently rejected requests for modification based on circumstances which are only temporary . . . ."). Where, as here, a self-employed party seeks an alimony modification, "what constitutes a temporary change in income should be viewed more expansively" because the individual is "in a better position to present an unrealistic picture of his or her actual income than a W-2 earner." Donnelly, 405 N.J. Super. at 128-29 (quoting Larbig, 384 N.J. Super. at 23). The court found defendant failed to make a prima facie showing of changed circumstances based on his reduced income because he failed to provide certain information plaintiff argued should have been supplied, but the court did not identify. The court also determined it lacked the financial accounting expertise to consider the information defendant provided. We first observe the court's lack of financial accounting expertise did not render defendant's showing inadequate and was irrelevant to a proper assessment of whether defendant demonstrated changed circumstances. Moreover, we are convinced the court erred in finding defendant failed to make a prima facie 11 A-2184-16T1 showing there was a change in his income supporting a possible modification of his alimony obligation. Defendant supplied a significant amount of information in support of his motion, including his tax returns for each of the fifteen years following the establishment of his alimony obligation in 2000 and prior to the 2016 filing of his motion. He filed a case information statement and described in detail the circumstances he claims caused a reduction in his income. He explained that the court established his alimony obligation in 2000 based on an imputed income of $78,000,3 showed that over the three years prior to the filing of his motion, his income progressively declined from $75,993 in 2013 to $40,623 in 2015, and certified the reduction was the result of market conditions beyond his control. See, e.g., Lepis, 83 N.J. at 151 (finding a reduction in income may constitute a changed circumstance warranting modification of alimony); Donnelly, 405 N.J. Super. at 128-29 (explaining that a permanent reduction in income may support a modification of alimony). Defendant's prima facie showing of changed circumstances does not end the inquiry. We remand for the court to decide whether 3 Defendant provided a child support guidelines worksheet from 2000 showing the court determined defendant's child support obligation based on an annual income of $78,000. 12 A-2184-16T1 there are genuine issues of material fact necessitating a plenary hearing. See R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div. 2014) (quoting Lepis, 83 N.J. at 159) (finding that once a moving party makes a prima facie showing of changed circumstances, "the court must decide whether to hold a hearing"). The court shall determine what, if any, discovery is required to address any alleged factual disputes, and based on the exchange of discovery may determine a plenary hearing is unnecessary. See Lepis, 83 N.J. at 158-59. For example, the court may direct that defendant produce the information plaintiff argued was missing from defendant's submissions in its assessment of whether a plenary hearing is required. The court has the discretion to decide the motion exclusively on the papers. See Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 592-93 (App. Div. 2016); Faucett, 411 N.J. Super. at 128; Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). A plenary hearing is "required only 'when the submissions show there is a genuine and substantial factual dispute . . . , and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute.'" Avelino-Catabran, 445 N.J. Super. at 592- 93 (alteration in original) (quoting Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007)). 13 A-2184-16T1 Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction. 14 A-2184-16T1

click here to get this case.


Docket No.: a2924-15
Decided: 2018-01-18
Caption: CAROL L. BARON v. BARBARA RAILO WATTS, DIANE RAILO, husband of DIANE RAILO KYLE RAILO, MRS. KYLE RAILO KELLY RAILO, MRS. KELLY RAILO CRAIG RAILO, BROOKE RAILO CAITLIN RAILO, husband of CAITLIN RAILO, JENNIFER RAILO HENDRICKSON, ROBERT G HENDRICKSON, PO
Status: unpublished
Summary:
PER CURIAM Plaintiff Carol L. Baron filed a complaint to foreclose a tax sale certificate in 2013. Unbeknownst to her because misindexed, a mortgage held by Wells Fargo Bank, N.A. encumbered the property. Wells Fargo was thus not made a party to the tax sale proceeding. Baron's tax foreclosure was uncontested, and in March 2014, the court issued an order setting the time, place and amount for redemption. In July 2014, Wells Fargo filed a complaint to foreclose its mortgage. Having discovered the pendency of the tax sale proceeding in the course of preparing its complaint, Wells Fargo sent the tax collector the full redemption amount of $13,991.76 in August 2014. The deputy tax collector accepted the funds and sent Baron a redemption purchase order for signature. Having no proof of Wells Fargo's mortgage, Baron refused to sign the purchase order or release the tax sale certificate. Neither Baron nor the tax collector advised Wells Fargo, and the municipality did not return the redemption funds to the bank. After obtaining final judgment in the tax foreclosure, Baron moved to intervene and dismiss Wells Fargo's mortgage foreclosure. The General Equity judge granted intervention and 2 A-2924-15T2 denied the motion to dismiss without prejudice. Following discovery, the parties filed cross-motions for summary judgment. The judge denied Baron's motion to dismiss the mortgage foreclosure and granted Wells Fargo's motion to vacate the final judgment in the tax foreclosure proceeding. In a well-reasoned opinion from the bench, the judge noted Baron was aware of Wells Fargo's deposit of the redemption funds before entry of final judgment in the tax foreclosure. The judge found Baron at that point could have either accepted the funds and been made whole or challenged Wells Fargo's status with the municipality. Baron did not dispute that had she challenged Wells Fargo's status and the bank moved to intervene in the tax foreclosure that intervention would have been permitted as of right. Given those undisputed facts, the court was satisfied "that equity should intervene in this very unusual circumstance." Baron appealed. After the matter was fully briefed, we granted Baron's unopposed motion to supplement the record. She apprised us that five months after entry of the order vacating her tax sale judgment, Wells Fargo voluntarily dismissed its mortgage foreclosure complaint without prejudice and discharged its lis pendens on the property. Several months later, Wells Fargo cancelled its mortgage of record. Baron also advised that 3 A-2924-15T2 she approached Wells Fargo after these events to inquire as to whether it would agree to reinstate her tax foreclosure judgment thereby mooting this appeal. The bank rebuffed her proposal. Days before the scheduled oral argument, we received a letter from Wells Fargo's counsel advising the bank was "waiv[ing] its right to present oral argument." Counsel confirmed Wells Fargo dismissed its foreclosure and marked the mortgage satisfied during the pendency of this appeal. Counsel further advised that because the bank "no longer has an interest in the case or the property, it is of the view that it is not in a position to consent to the relief" Baron seeks on appeal. At argument, Baron's counsel asserted the bank's discharge of its mortgage undermined the rationale for the General Equity judge's decision to vacate her tax foreclosure judgment. He argued there is no reason to affirm an order entered to preserve the mortgagee's rights where the mortgagee has since voluntarily relinquished those rights. Although we acknowledge the changed circumstances presented by the expanded record, we do not know all the facts and conclude we are in no position to reverse a soundly reasoned decision by the Chancery judge exercising his equitable powers on the basis of events occurring after the entry of the order appealed. Accordingly, we dismiss the appeal without prejudice 4 A-2924-15T2 to permit Baron sixty days to file a R. 4:50 motion for relief from the order vacating final judgment in the tax foreclosure proceeding on notice to all interested parties. We do not retain jurisdiction. Appeal dismissed. 5 A-2924-15T2

click here to get this case.


Docket No.: a4632-15
Decided: 2018-01-18
Caption: ANNUNZIATO MOLINARI v. BOARD OF REVIEW and NUNZIO'S LANDSCAPING
Status: unpublished
Summary:
PER CURIAM Annunziato Molinari appeals from eight final determinations of the Department of Labor's Board of Review, all rendered on May 2, 2016, that he obtained unemployment compensation benefits over the course of several years on the basis of a false or fraudulent representation, making him liable for a refund of $57,861 in improperly received benefits and $14,465.25 in penalties. Molinari admitted incorporating his landscaping business, Nunzio's Landscaping, Inc., in 2002. He was the sole corporate officer, employed a lawyer and an accountant and signed and submitted quarterly business tax returns. Yet for eight years, 2003 and 2005 through 2011, he applied for unemployment benefits, answering "no" to questions by the Department as to whether he was self-employed, a corporate officer or related to the owner of his employer. In 2013, the Department, acting on a tip, instituted an inquiry, which revealed the existence of the corporation. Provided the opportunity to clarify his status, Molinari certified that he was "a seasonal employee," and did not work "from November thru May depending on [the] weather." The Deputy Director subsequently disqualified Molinari from receiving unemployment compensation benefits, demanded a refund of all benefits improperly paid and imposed monetary penalties. Molinari appealed. Following two separate hearings, the Appeal Tribunal issued eight decisions disqualifying Molinari from benefits pursuant to N.J.S.A. 43:21-16(d)(1) for having 2 A-4632-15T2 withheld that he was a corporate officer of his employer. The Tribunal also imposed disqualification pursuant to N.J.S.A. 43:21-5(g)(1), and penalties under N.J.S.A. 43:21-16(a). The Tribunal quantified the improperly received benefits and penalties as follows: 2003-2004 Improperly received benefits: $5850 Penalty: $1462.50 2005 Improperly received benefits: $6000 Penalty: $1500 2006-2007 Improperly received benefits: $6000 Penalty: $1500 2007 Improperly received benefits: $7440 Penalty: $1860 2008-2009 Improperly received benefits: $7371 Penalty: $1842.75 2009-2010 Improperly received benefits: $6300 Penalty: $1575 2010-2011 Improperly received benefits: $8820 Penalty: $2205 2011-2012 Improperly received benefits: $10,080 Penalty: $2520 The Appeal Tribunal thus found the State was owed a refund of $57,861 in improperly paid benefits and $14,465.25 in 3 A-4632-15T2 penalties. The Appeal Tribunal found Molinari's claims of confusion and not understanding what a corporate officer was to be unworthy of belief. The Board of Review affirmed. Molinari appeals, claiming the Board's finding that he intentionally misrepresented his status lacks sufficient evidence in the record, there was no proof establishing that he knew what it meant to be a corporate officer in the years he applied for benefits, and that, if anything, his failure to identify himself as a corporate officer represented only a single offense and not multiple offenses. Our review of the record convinces us that none of these arguments is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). Molinari also insists that he is entitled to seek a waiver of recovery based on his disability. See N.J.A.C. 12:17-14.2 (governing the Director's discretion to grant a waiver of recovery of an overpayment of benefits). Although the State disputes Molinari's entitlement to a waiver, it does not dispute that he may request one from the Director. As Molinari has yet to seek a waiver, the issue is not properly before us. Affirmed. 4 A-4632-15T2

click here to get this case.


Docket No.: a4763-15
Decided: 2018-01-18
Caption: STATE OF NEW JERSEY v. GIANCARLO BONILLA
Status: unpublished
Summary:
PER CURIAM After a 2011 jury trial, defendant Giancarlo Bonilla was convicted of first-degree felony murder, first-degree robbery, and second-degree conspiracy to commit robbery. The charges arose out of the fatal attack upon an inmate at Delaney Hall, a private correctional facility, by defendant and other prisoners attempting to rob the victim. Defendant was acquitted of murder. The trial court imposed a sentence of life imprisonment with a thirty-year period of parole ineligibility for the felony murder conviction, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The other offenses merged for sentencing purposes. Defendant unsuccessfully pursued a direct appeal, variously arguing that: (1) the court unfairly thwarted his right to impeach State witnesses to show their bias; (2) the court erroneously instructed the jury that it could consider his pretrial silence to impeach his testimony; (3) the court unfairly questioned his credibility before the jury; (4) there was insufficient evidence to support his convictions for conspiracy and robbery; and (5) his life sentence is excessive and illegal. In a twenty-three-page unpublished opinion we rejected these arguments and affirmed defendant's conviction and sentence. State v. Bonilla, No. A- 1079-11 (App. Div. Aug. 6, 2013). The Supreme Court denied defendant's petition for certification. 217 N.J. 293 (2014). 2 A-4763-15T3 Following the exhaustion of his direct appeal, defendant filed a petition for post-conviction relief ("PCR"). He also moved for a new trial based upon alleged newly-discovered evidence. The trial court provided an evidentiary hearing to defendant on these claims. Defendant testified at that hearing, along with his former trial counsel, and a third witness named Gerald Williams. Upon considering this evidence in light of the applicable law, the PCR judge, Hon. Verna G. Leath, issued a written opinion on January 26, 2016, denying defendant's requests for relief. Among other things, the judge concluded that defendant had failed to prove his various contentions of ineffective assistance of trial counsel. In addition, the judge denied defendant's request for a new trial, specifically finding on this score that the testimony of Williams, attempting to exculpate defendant, simply was not credible. This appeal ensued. Defendant argues: THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF, DESPITE THE FACT THAT HE DEMONSTRATED THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. More specifically, defendant maintains that his trial attorney was ineffective by: (1) opening the door to enable the State to present otherwise-inadmissible testimony; (2) failing to prepare him properly to testify; (3) failing to establish that clothing worn 3 A-4763-15T3 by defendant did not match the described clothing of the assailant; (4) failing to call a gang expert to testify; (5) failing to investigate the case adequately; and (6) causing cumulative errors. Defendant further asserts that he should have received a new trial based on Williams' exculpatory testimony. Having fully considered these contentions in light of the record and the applicable law, we affirm the trial court's denial of relief. We do so substantially for the cogent reasons expressed in Judge Leath's written opinion. Only a few short comments are in order. This court's standard of review "is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony. In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013) (citations omitted). "An appellate court's reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he has observed firsthand." Ibid. (citations omitted). We must give deference to the PCR judge's post-hearing findings "which are substantially influenced by [her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy[.]'" State v. Taccetta, 200 N.J. 183, 194 (2009) (quoting State v. Johnson, 42 4 A-4763-15T3 N.J. 146, 161 (1964)). However, we apply de novo review to the judge's legal conclusions. Nash, 212 N.J. at 540-41. First, we concur with the PCR judge that defendant is not entitled to a new trial because his counsel posed questions to defendant on direct examination that then opened the door to testimony about defendant's pre-arrest silence. To be sure, trial counsel asked defendant why he had not presented his version of events, as later described in his testimony at trial, when he met with law enforcement authorities after his arrest. Even if we were to reject trial counsel's assertion that he posed these questions for strategic reasons, we discern no consequential prejudice flowing from that choice. The State's proofs of defendant's guilt in this case were very compelling, including evidence of defendant's DNA found under the victim's fingernails, and the testimony of three eyewitnesses who observed defendant taking part in the robbery and choking the victim to death. At a minimum, defendant fails to satisfy the necessary "prejudice" prong of the two-part test for ineffective assistance enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, defendant's claim that his former counsel did not sufficiently prepare him to testify at trial is unavailing. As counsel testified at the PCR evidentiary hearing, it was his customary practice to begin to prepare his clients for possible 5 A-4763-15T3 trial testimony at the outset of his representation on "day one," and to review specific factual scenarios with them. See N.J.R.E. 406 (regarding habit and routine practice). Counsel also attested to discussing with defendant the pros and cons of testifying, particularly in light of the DNA evidence undermining defendant's claim of innocence. The PCR judge found these explanations by counsel persuasive, and we have no reason to set aside that determination. Third, notwithstanding defendant's contrary assertions, trial counsel did endeavor to show through questioning at trial that defendant's clothing did not match the clothing of the perpetrator described by the witnesses. On cross-examination of the police detective, trial counsel also pointed out that the clothing described by the eyewitnesses was not found among defendant's belongings. The fact the jury apparently was unconvinced that the clothing proofs exonerated defendant does not signify trial counsel was deficient. As the PCR judge aptly noted, the clothing- related testimony entailed ultimate credibility determinations by the jury, which counsel could not control beyond his own advocacy. Fourth, we agree with the PCR judge that trial counsel was not deficient in failing to present testimony from a gang expert. Although in certain situations, proof of gang membership or involvement may be admitted at criminal trials, see State v. 6 A-4763-15T3 Goodman, 415 N.J. Super. 210, 230 (App. Div. 2010), the judge who presided over this trial made it abundantly clear that he would forbid such gang-related proof. In fact, the trial judge observed there was "not a scintilla" of factual evidence to establish that the State's witnesses had lied about defendant because he was not a fellow gang member. Given that ruling, trial counsel made a reasonable strategic decision not to pursue such testimony. Fifth, the trial court reasonably concluded that defendant had failed to sustain his substantial burden of presenting newly discovered evidence that would "probably change" the jury verdict if a new trial was granted. State v. Carter, 85 N.J. 300, 314 (1981). The proffered testimony of Williams, who the PCR judge specifically did not find credible, was essentially the same as testimony elicited at trial by another inmate named Vincent Caputo. Merely cumulative additional evidence that has been discovered post-trial does not warrant relief. Ibid. In addition, defendant's unsubstantiated claim that after trial he saw a video of the victim's roommate with a diary, which he contends may have exculpated him, is wholly speculative. Such "bald assertions" do not justify setting aside a guilty verdict. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). 7 A-4763-15T3 The balance of defendant's arguments, including his claim of cumulative error, lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). Affirmed. 8 A-4763-15T3

click here to get this case.


Docket No.: a4861-15
Decided: 2018-01-18
Caption: HIGHPARK GARDENS COOPERATIVE INC. v. BABOU MAGASSOUBA
Status: unpublished
Summary:
PER CURIAM Plaintiff High Park Gardens Cooperative, Inc., a non-profit corporation that manages an income-restricted, residential cooperative in Newark known as High Park Gardens, filed suit against one of its shareholder-occupants, defendant Babou Magassouba. Plaintiff alleged defendant owed $1394 in various charges that continued to accrue, and it sought payment, termination of defendant's occupancy agreement and proprietary lease, possession of the unit and revocation and cancellation of defendant's stock certificate. Defendant was personally served with the summons and complaint but failed to answer. In August 2015, plaintiff moved for judgment by default. Defendant did not oppose the motion, and on September 18, 2015, the judge entered final judgment by default in plaintiff's favor. Nearly six months later, on March 9, 2016, the Essex County Sheriff served defendant with a letter advising he must vacate his unit by March 29, 2016. Defendant sought an order to show cause, staying the writ of possession and vacating the default judgment. In his certification, defendant claimed plaintiff's manager granted an extension permitting him to pay May and June fees in a lump sum on June 30. When defendant was unable to pay again on time in July, he sought a further extension but was informed plaintiff had taken "legal action against [him]." He acknowledged being served with the summons and complaint. 2 A-4861-15T3 Defendant stated that he paid the outstanding balance for monthly carrying charges in July and August on August 31, 2015, and September's monthly charges on September 15. Plaintiff accepted these payments. Nonetheless, at the end of September, plaintiff's counsel served defendant with a letter advising of the final judgment and demanding he vacate the unit by October 5, 2015. Defendant asserted that he tried to pay the October and November fees, but plaintiff refused to accept payment unless the entire outstanding balance, which included "disputed attorney fees was satisfied." Defendant claimed he "made reasonable attempts in good faith to settle th[e] matter without litigation, but [plaintiff] ha[d] refused to cooperate with [him]." Plaintiff's manager certified in opposition that defendant was advised at the time of the payment extension in May 2015 that late charges had accrued, the full amount must be paid by May 29 and any failure to pay would be a default and breach of defendant's occupancy agreement. Plaintiff produced a letter to defendant setting forth these terms. Defendant failed to pay by the end of May and plaintiff commenced legal proceedings. The manager further certified that defendant's payment in June did not include counsel fees and costs, as required by the occupancy agreement, and, despite repeated conversations, defendant refused to pay counsel fees and other charges. 3 A-4861-15T3 Plaintiff's manager stated it was "incomprehensible" that defendant thought the suit had been dismissed or that he was not expected to pay all charges as required by the occupancy agreement. The judge issued the order to show cause, stayed the writ of possession and held a hearing on May 6, 2016. Defendant testified essentially in accord with his certification. He acknowledged that he continued to "negotiate" with management regarding the additional fees after they refused his payments for monthly charges in October and November. The manager's testimony also reiterated the contents of her previously filed certification. Defendant never paid or offered to pay the full balance of monthly charges, late fees, attorney's fees and costs, and, as of the date of the hearing, owed more than $12,000. The manager further testified that she advised defendant in August that his partial payments "did not resolve his account balance," and she "could not terminate that legal action until his account was completely satisfied." She also said that defendant never physically presented a payment after September 2015 and continued to dispute the fees. On cross-examination, the manager admitted accepting defendant's partial payments, contrary to the cooperative's written policies. But, she claimed the policy only applied if there was no pending legal action. 4 A-4861-15T3 In her oral opinion, the judge found defendant failed to pay his monthly charges by the May 29, 2015 deadline, defendant was personally served with the complaint, and he did nothing to "contest it." The judge concluded the "issue of excusable neglect[,] meaning why [defendant] didn't answer the complaint is kind of moot." The judge further found that defendant never made "payments in full even of the basic carrying charges." The judge also concluded that under the circumstances, defendant presented no "meritorious defense." She orally denied defendant's motion to vacate the default judgment and entered an order for orderly removal, staying execution of the warrant until May 31, 2016. The judge entered a conforming order denying the motion to vacate default on May 11, 2016. She subsequently denied defendant's motion for reconsideration.1 Before us, defendant argues the judge failed to exercise her discretion liberally in considering his motion to vacate the default judgment, and that she "mistook the plenary hearing . . . for a trial on the merits," thereby applying "the wrong standards 1 Defendant does not seek review of the denial of his motion for reconsideration. 5 A-4861-15T3 for review of defendant's meritorious defense." We disagree and affirm.2 A party seeking to vacate a judgment must meet the standard of Rule 4:50-1. US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). "The trial court's determination under the rule warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." Ibid. The court should consider a motion to vacate a default judgment "with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). Before the trial court, defendant seemingly relied upon subsection (a) of the rule, which permits relief from a default judgment based upon "mistake, inadvertence, surprise, or excusable neglect." R. 4:50-1(a). "[A] defendant seeking to reopen a default judgment must show that the neglect to answer was excusable under the circumstances and that he has a meritorious defense." Marder, 84 N.J. Super. at 318. "'Excusable neglect' may be found when the default was 'attributable to an honest mistake that is 2 Because we affirm on the merits, we do not address plaintiff's argument that the appeal is moot in so far as defendant seeks to reverse the order granting possession of the unit. 6 A-4861-15T3 compatible with due diligence or reasonable prudence.'" Guillaume, 209 N.J. at 468 (quoting Mancini v. EDS, 132 N.J. 330, 335 (1993)). Here, defendant admitted receipt of the complaint and his failure to respond. His "excuse" for failing to answer or oppose the entry of default judgment was a belief that the partial payments he tendered, once accepted by plaintiff, acted as an accord and satisfaction, thereby ending the litigation.3 See Zeller v. Markson Rosenthal & Co., 299 N.J. Super. 461, 463 (App. Div. 1997) (defining elements of accord and satisfaction). In other words, defendant's neglect of the litigation was inextricably related to, and not separate from, his claimed meritorious defense. Defendant argues the judge mistakenly considered the actual merits of his defense, not whether he had a colorable claim of accord and satisfaction, thereby holding him to a higher standard of proof than necessary to successfully vacate a default judgment. We conclude the argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). 3 Defendant never actually articulated a claim of "accord and satisfaction" during the hearing. Those terms appear for the first time in the appellate record in the judge's order denying defendant's motion for reconsideration. 7 A-4861-15T3 Succinctly stated, there could be no excusable neglect unless defendant established he never responded to or defended the litigation because he believed plaintiff no longer intended to continue with the ejectment action after accepting his partial payment. As we see it, the judge accorded defendant every opportunity to establish this excuse by holding a plenary hearing, particularly since defendant's own certification admitted he failed to answer the complaint or contest the entry of judgment. See Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 4:50-1 (2018) ("If the relief is sought on contested facts, an evidential hearing must be provided."). The judge's factual findings, made after an opportunity to consider the testimony and assess credibility, are entitled to our deference. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Finally, in his appellate brief, defendant never cited a specific subsection of Rule 4:50-1 in support of the appeal. To the extent he argues subsection (f) applies, we disagree. That provision permits the judge to grant a motion to vacate for "any other reason justifying relief from the operation of the judgment or order." R. 4:50-1(f). "No categorization can be made of the situations which would warrant redress under subsection (f). . . . [T]he very essence of (f) is its capacity for relief in exceptional 8 A-4861-15T3 situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-270 (2009) (emphasis added) (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). This subsection of the rule should be used "sparingly" and "in situations in which, were it not applied, a grave injustice would occur." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994). This case presents no exceptional circumstances requiring such extraordinary relief. Affirmed. 9 A-4861-15T3

click here to get this case.


Docket No.: a5115-15
Decided: 2018-01-18
Caption: F.L v. E-S.Y
Status: unpublished
Summary:
PER CURIAM Defendant appeals from a March 30, 2016 judgment of divorce (JOD), and a June 30, 2016 order denying his motion for reconsideration. The JOD was entered following a trial. Defendant contends that the judgment was based on insufficient credible evidence and that the trial court made errors in its ruling on equitable distribution, alimony, and child support. We disagree and affirm because the court's factual findings were supported by substantial credible evidence and the court correctly applied those facts to the well-established law governing equitable distribution, alimony, and child support. I. The parties were married in Taiwan in 2005.1 In 2006, they moved to the United States where defendant worked in the information technology industry and plaintiff worked as a bank loan officer. They have two children, who were born in 2005 and 2008. At the time of the divorce, the children were eleven and eight years old. In May 2014, plaintiff filed for divorce on the grounds of irreconcilable differences and extreme cruelty. Following discovery, a two-day trial was conducted on December 14, 2015, and March 9, 2016. Plaintiff was initially represented by counsel, but during trial she assumed her own representation. Defendant chose to represent himself. Plaintiff and defendant were the only witnesses who testified at trial and they each also submitted 1 We use initials for the parties in order to protect their privacy. 2 A-5115-15T2 exhibits, which included tax returns, certain bank account statements, and their case information statements. After considering the evidence, the court entered a final JOD on March 30, 2016, and explained the reasons for its decision on the record that day. The court addressed and made specific findings concerning alimony, custody, child support, and equitable distribution. After averaging the parties' incomes from the six years preceding the divorce action, the court determined that plaintiff's earning capacity was just over $89,000 per year and defendant's earning capacity was just over $133,000 per year. Using those imputed incomes, the court ordered defendant to pay limited duration alimony for four-and-one-half years in the amount of $1000 per month. The court also awarded the parents joint custody, with plaintiff being designated as the parent of primary residential custody. Applying the child support guidelines, the court ordered defendant to pay plaintiff child support in the amount of $226 per week. Turning to the issue of equitable distribution, the court made findings on how the parties' assets were to be divided. Specifically, the court addressed what properties would be included in equitable distribution, how the proceeds from the marital residence, which had already been sold, were to be distributed and the credits that were to be applied, and how the 3 A-5115-15T2 parties' bank accounts and pension accounts were to be distributed. The court also addressed the parties' contentions about undisclosed assets and dissipated assets. In that regard, the court found that neither party submitted proof supporting those claims. In making its findings, the court also evaluated the credibility of the parties. Specifically, the court found that defendant's testimony was often incredible and did not support many of his contentions. Defendant filed a motion for reconsideration on April 19, 2016. On June 30, 2016, the court heard oral argument and denied 2 that motion, explaining its reasons on the record. On July 28, 2016, defendant, who was then represented by counsel, filed a notice of appeal. We granted defendant's motion to file the notice as within time. II. On appeal, defendant argues that certain provisions of the JOD are not supported by sufficient credible evidence and are inconsistent with the law. Specifically, defendant challenges the court's ruling on (1) the distribution of the marital residence; (2) the exclusion of a property in Taiwan owned by plaintiff; 2 We are not persuaded by plaintiff's arguments that the motion for reconsideration was untimely because she was not served with that motion until June 3, 2016. 4 A-5115-15T2 (3) the distribution of the parties' bank accounts; (4) the distribution of the parties' pension accounts; (5) plaintiff's alleged undisclosed assets; (6) plaintiff's alleged dissipation of marital assets; (7) the amount of annual income the court found defendant earned, and which the court used to calculate defendant's alimony and child support obligations; and (8) the amount of pendente lite support defendant paid. Our review of the trial court's factual findings is limited. Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (citing Cesare v. Cesare, 154 N.J. 394, 411 (1998)). Generally, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Ibid. In matrimonial matters, this "[d]eference is especially appropriate when the evidence is largely testimonial and involves questions of credibility[.]" Ibid. Accordingly, we will not overturn an equitable distribution, child support, or alimony award unless there was a clear abuse of discretion, a failure to correctly apply governing legal principles, or factual findings that lack support in the record. See Genovese v. Genovese, 392 N.J. Super. 215, 222 (App. Div. 2007) (recognizing that equitable distribution will be upheld unless the trial court "mistakenly exercised its broad authority to divide the parties' property"); see also Elrom, 439 N.J. Super. at 433 (reviewing a trial court's imputation of 5 A-5115-15T2 income and child support determination for an abuse of discretion); Robertson v. Robertson, 381 N.J. Super. 199, 206 (App. Div. 2005) (reviewing a trial court's award of alimony for an abuse of discretion). Applying that standard, we discern no basis to disturb any of the rulings defendant challenges on this appeal. Each of the arguments defendant raises were expressly addressed by the trial court. In many situations, the trial court found that defendant had either not submitted sufficient proof to support his contention or that his testimony was incredible. The specific findings that the trial court made were all supported by substantial credible evidence. In making its rulings, the court applied its factual findings to the established law governing equitable distribution, alimony, and child support. See N.J.S.A. 2A:34-23.1 and N.J.S.A. 2A:34-23(b)(1) to (b)(14) (setting forth the criteria to be considered by the court in determining equitable distribution and alimony); see also Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX to R. 5:6A. Accordingly, we affirm the March 30, 2016 JOD. We also affirm the June 30, 2016 order denying defendant's motion for reconsideration. We review such orders under an abuse of discretion standard. Pitney Bowes Bank, Inc. v. ABC Caging 6 A-5115-15T2 Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). Here, we find no such abuse. The trial court correctly noted that defendant sought to introduce new information on his motion for reconsideration, but that the information had been available to defendant at the time of trial. Accordingly, the trial court correctly concluded that defendant's attempt to supplement and expand the record was not permitted and did not support an argument for reconsideration. The trial court also correctly noted that certain of defendant's arguments on reconsideration were simply re-arguments of positions the court had rejected in entering the JOD. Affirmed. 7 A-5115-15T2

click here to get this case.


Docket No.: a5285-15
Decided: 2018-01-18
Caption: ROBERT FISHER and SANDRA FISHER v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF JEFFERSON and ESCO PRODUCTS, INC -
Status: unpublished
Summary:
PER CURIAM Plaintiffs Robert and Sandra Fisher appeal from a June 20, 2016 order of the Law Division affirming a decision by defendant Board of Adjustment of the Township of Jefferson (Board) approving variance applications on behalf of defendant Esco Products, Inc. (Esco). We affirm. Esco is the contract purchaser of property located at 95 Chamberlain Road in the Township of Jefferson (Township). Esco sought to purchase the property, with its existing building, parking lot, and driveways, to manufacture custom optics for military, automotive, medical, and communications customers. The existing building on the property operated as an office, warehouse, and storage facility for a company that distributed and installed office furniture and equipment. Esco proposed no physical changes to the building, driveways, or parking lot and proposed no additional construction on the property. The property is located in the Township's Office and Professional (O) Zone. The O Zone encourages "non-retail and low- traffic generating employment centers" and "serves as a transitional zone between existing and proposed business and commercial development and surrounding residential land uses." Twp. of Jefferson, N.J., Ordinance § 490-15(A) (2015). Permitted uses in the O Zone include: "[o]ffice buildings for professional, 2 A-5285-15T1 executive, engineering or administrative purposes[;] . . . [s]cientific, engineering or research laboratories devoted to research, design or experimentation and processing and fabricating incidental thereto[;] . . . banks[;] . . . hospitals[;] . . . [and] restaurants." Id. § 490-15(B). While Esco believed its proposed use of the property was permitted in the O Zone, Esco was sensitive to the concerns raised by the neighboring residential property owners. To address those concerns, Esco presented several expert witnesses who testified as to all aspects of its optics business. Esco even submitted environmental testimony and an Environmental Impact Statement (EIS) before the Board, notwithstanding that Esco did not intend any disturbance of the property that would, or could, have an environmental impact. Esco required two variances for its proposed use: a use variance, as the property was located in the O Zone; and a "c" variance, N.J.S.A. 40:55D-70(c), as the amount of land between the existing building and the nearest residential boundary line did not meet the required length for a planted buffer in accordance with the Township's ordinance. Planting a buffer as required by the Township's ordinance would have created a potential fire hazard to the existing building. Therefore, Esco proposed the planting of trees at a safe distance from the building, along with a pledge 3 A-5285-15T1 to plant additional trees if recommended by the Township Planner, Board Engineer, or Township Forester. The Board held seven public hearings regarding Esco's application. Esco presented expert witnesses who testified regarding the nature of Esco's operation, the environmental impact that the proposed use would have on the area, the engineering and planning aspects of Esco's application, the zoning concerns raised by neighboring property owners, and the past use of the building. According to the testimony before the Board, the use proposed by Esco was less intense than the use of the property by the previous owner, as there would be less noise, fewer employees, and reduced traffic on the property. During the Board's hearings, neighboring property owners were given an opportunity to articulate their concerns regarding the proposed use. The neighboring property owners, including plaintiffs, raised issues regarding chemical and fire safety, and expressed concern related to increased noise, light, and traffic that would be generated by Esco's proposed use of the property. Plaintiffs also retained an expert who testified during the Board's hearings in opposition to various planning aspects of Esco's application. 4 A-5285-15T1 At the conclusion of the hearings, the Board granted Esco's variance requests subject to specific conditions. The Board adopted a detailed resolution of approval on November 9, 2015. On December 23, 2015, plaintiffs filed a complaint in lieu of prerogative writs challenging the Board's approval of Esco's application. The matter was tried before Assignment Judge Stuart Minkowitz. After considering the written submissions and the arguments of the parties, Judge Minkowitz issued a comprehensive twenty-two page written decision affirming the Board's approval of Esco's application and dismissing plaintiffs' complaint. Judge Minkowitz entered an order memorializing his decision on June 20, 2016. On appeal, plaintiffs raise the following issues: POINT I THE APPROVAL OF ESCO'S USE VARIANCE WAS TOTALLY INCONSISTENT WITH THE JEFFERSON TOWNSHIP MASTER PLAN, ZONE PLAN, AND ZONING ORDINANCE. POINT II ESCO DID NOT MEET THE REQUIRED STATUTORY AND CASE LAW BURDEN OF PROOF AS TO THE POSITIVE CRITERIA FOR A USE VARIANCE. POINT III ESCO DID NOT MEET THE REQUIRED STATUTORY AND CASE LAW BURDEN OF PROOF AS TO THE NEGATIVE CRITERIA FOR A USE VARIANCE. 5 A-5285-15T1 POINT IV THE BOARD'S APPROVAL OF THE USE VARIANCE IS IMPROPER AND INVALID BECAUSE IT CONSTITUTES ZONING BY VARIANCE. POINT V THE BOARD TOTALLY IGNORED THE TESTIMONY OF PROFESSIONAL PLANNER MICHAEL PESSOLANO. POINT VI THE BOARD TOATLLY IGNORED THE TESTIMONY OF THE NEIGHBORING PROPERTY OWNERS AS TO THEIR VALID OBJECTIONS AS WELL AS THE NUMEROUS EXHIBITS WHICH THEY SUBMITTED. POINT VII THE BOARD TOTALLY IGNORED THE JEFFERSON TOWNSHIP ENVIRONMENTAL IMPACT STATEMENT ORDINANCE. POINT VIII ESCO DID NOT EVEN ATTEMPT TO MEET THE REQUIRED STATUTORY AND CASE LAW BURDEN OF PROOF FOR A "C" VARIANCE FOR RELIEF FROM BUFFER ORDINANCE SEC[TION] 490-15 AND/OR 490-16. Plaintiffs presented these exact eight arguments to Judge Minkowitz, who considered and rejected them in a thorough and well-reasoned written decision dated June 20, 2016. After reviewing the record, including the hearing transcripts and exhibits, we affirm for the reasons stated by Judge Minkowitz. We add only the following comment. 6 A-5285-15T1 "[W]hen a party challenges a zoning board's decision through an action in lieu of prerogative writs, the zoning board's decision is entitled to deference." Kane Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). "[Z]oning boards, 'because of their peculiar knowledge of local conditions[,] must be allowed wide latitude in the exercise of delegated discretion.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (alteration in original) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)). A zoning "board's decisions enjoy a presumption of validity, and a court may not substitute its judgement for that of the board unless there has been a clear abuse of discretion." Ibid. If "the decision of the Zoning Board was not arbitrary, capricious, or unreasonable, it must be sustained." TSI E. Brunswick, LLC v. Zoning Bd. of Adjustment, 215 N.J. 26, 47 (2013). We reject plaintiffs' argument that the Board's approval of a use variance was inconsistent with the Township's master plan, zone plan, and zoning ordinance. The judge found the Board's resolution reconciled the master plan with Esco's planned use as the proposed use is similar to the previous office and storage use on the property, and that "high-tech fabrication and manufacturing operations" by Esco are "similar to activities that would take place in 'scientific, engineering or research laboratories and 7 A-5285-15T1 fabricating incidental thereto, which are permitted in the [O] Zone.'" The Board's resolution was sufficient, and its credibility determinations are worthy of our deference. See Klug v. Bridgewater Twp. Planning Bd., 407 N.J. Super. 1, 12-13 (App. Div. 2009). There is substantial credible evidence to support the Board's findings, and the decision to grant the application was not arbitrary or capricious. Id. at 13-14; see also Kramer, 45 N.J. at 296. Affirmed. 8 A-5285-15T1

click here to get this case.


Docket No.: a5515-15
Decided: 2018-01-18
Caption: MICHAEL BANDLER v. JOANNA KOSTAS
Status: unpublished
Summary:
PER CURIAM Plaintiff Michael Bandler appeals from an order entered by the Law Division on August 10, 2016, which denied his motion for reconsideration of an order filed on June 1, 2016. We affirm. Plaintiff secured a $10,000 judgment against defendant Joanna Kostas. She did not pay the judgment and plaintiff took steps to enforce it through a series of post-judgment motions for discovery regarding defendant's income and assets. Defendant did not comply with orders requiring her to appear and provide discovery. A warrant for her arrest was issued, but the sheriff did not arrest her. In June 2015, plaintiff attempted to conduct a deposition of defendant's father. According to plaintiff, defendant appeared and disrupted the deposition. Plaintiff then filed a motion to have the father's deposition taken under court supervision. On January 14, 2016, the motion judge entered an order denying the motion, finding that it was not within the court's jurisdiction to compel the father's deposition. Plaintiff then filed a motion for reconsideration, which the motion judge denied on June 1, 2016. The judge found that the motion for reconsideration was not timely since it had not been filed within twenty days of the January 14, 2016 order, as required by Rule 4:49-2. Plaintiff filed a motion for reconsideration of the June 1, 2016 order. The motion judge denied the motion, noting it had been filed on July 18, 2016, which exceeded the twenty-day time period required by Rule 4:49-2. This appeal followed. 2 A-5515-15T1 "[T]he standard of review where there is a denial of a motion for reconsideration . . . is 'abuse of discretion.'" Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Rule 4:49-2 requires a motion for reconsideration be served no later than twenty days after service of an order upon the party obtaining it. "The time prescription of th[e] rule applies only to final judgments and orders." Rusak v. Ryan Auto., LLC, 418 N.J. Super. 107, 117 n.5 (App. Div. 2011) (alteration in original) (quoting Pressler & Verniero, Current N.J. Court Rules cmt. 1 on R. 4:49-2 (2011)). Moreover, the twenty-day time period for filing a motion for reconsideration may not be relaxed. See Baumann v. Marinaro, 95 N.J. 380 (1984); see also R. 1:3-4(c). On appeal, plaintiff argues that post-judgment discovery ordered pursuant to Rule 4:59-1(f) is interlocutory and not subject to the time period set forth in Rule 4:49-2. Plaintiff also argues the merits of the motion judge's decision to deny him the ability to enforce the right to depose defendant's father pursuant to Rule 4:59-1(f). There is no doubt that the ability to undertake post-judgment discovery for purposes of enforcing and executing a money judgment is broad. Indeed, as plaintiff notes, Rule 4:59-1(f) provides for supplementary proceedings as follows: 3 A-5515-15T1 In aid of the judgment or execution, the judgment creditor or successor in interest appearing of record, may examine any person, including the judgment debtor, by proceeding as provided by these rules for the taking of depositions or the judgment creditor may proceed as provided by R. 6:7-2, except that service of an order for discovery or an information subpoena shall be made as prescribed by R. 1:5-2 for service on a party. The court may make any appropriate order in aid of execution. Also, Rule 6:7-2(d) and (e) provide for the ability of the judgment creditor to pursue proceedings for the enforcement of post- judgment discovery through a motion to enforce litigant's rights pursuant to Rule 1:10-3. However, an order entered for post-judgment discovery that adjudicates a request to order or compel cooperation with the discovery process is only interlocutory where no final determination regarding relief sought has been made. See Saltzman v. Saltzman, 290 N.J. Super. 117, 124 (App. Div. 1996) (holding a post-judgment order requiring an ability to pay hearing to determine whether a judgment debtor should be incarcerated for non-payment of support is interlocutory until the determination to incarcerate is made). Here, the motion judge's June 1, 2016 order denying plaintiff's motion for reconsideration of the earlier order denying the deposition of defendant's father was final because it 4 A-5515-15T1 did not require further proceedings. The motion judge made a final determination to deny plaintiff's request to enforce litigant's rights. Therefore, the motion judge did not err by finding plaintiff's motion for reconsideration was not filed timely. For these reasons, we do not reach plaintiff's argument the motion judge erred in finding the court lacked the ability to compel the post-judgment deposition. Affirmed. 5 A-5515-15T1

click here to get this case.


Docket No.: a0745-15
Decided: 2018-01-17
Caption: STATE OF NEW JERSEY v. T.L
Status: unpublished
Summary:
PER CURIAM Defendant T.L. appeals from the trial court's order denying, without an evidentiary hearing, his petition for post-conviction relief. Defendant collaterally challenges his conviction of one count of first-degree endangering the welfare of a child, his daughter Alicia1; and two counts of second-degree endangering the welfare of a child, respectively, Alicia and her sister, Betty. Defendant received an aggregate sentence of twenty-two years, with eleven years of parole ineligibility, subject to Megan's Law and Community Supervision for Life. I. Alicia and Betty revealed defendant's offenses to a local police officer when Alicia was over twenty-one years old, and Betty was still a teenager. In oral and written statements, they told the officer that defendant's offenses began when they were each seven or eight and his attempts continued for years until shortly before their disclosures. Alicia stated that defendant fondled and took photos and video-recordings of her breasts, vagina and anal area. She stated that he had her touch his erect penis and he touched and kissed her vagina and breasts. He bought a vibrator for her when she was twelve or thirteen, and, over the years, videotaped her masturbating. He also trimmed her pubic hair, and saved it. Alicia also alleged defendant made her wear skirts or long tee- 1 We use pseudonyms, to protect the children's privacy. 2 A-0745-15T4 shirts without undergarments on, so he could look at her genitals. Although defendant told her it was her "choice," he would be "nasty[,] mean" and "manipulate" her if she resisted him. Alicia reported that defendant kept the pictures and videos in a safe in his basement workshop, although he told her he burned the evidence. Betty also reported that defendant fondled her and made her pose nude for photographs and videos. As with Alicia, defendant purported to permit Betty to refuse, but "would get mad and upset and not talk to [her]" if she did. She alleged defendant made her walk around their backyard naked. He also "tested" her on the parts of her genital area, having her touch and identify them; and then had her identify and touch his genitals. In the course of that activity, defendant would try to masturbate Betty. Betty stated that defendant had the pictures saved on a flash drive, which he kept in his wallet. The young women's brother told the officer he found a folder on the family computer containing nude photos of his sisters. Based on the three children's statements, the officer sought and obtained a search warrant for defendant's home and his person. Police thereafter seized a locked box from his workshop, which contained eighteen VCR tapes, as well as a portable flash drive 3 A-0745-15T4 from defendant.2 The videotapes, made between 1997 and 2003, and the photographs, dating back to the children's pre-teen years, substantiated the sisters' statements. In particular, recordings depicted Alicia as she masturbated with a vibrator at defendant's direction, and depicted defendant as he rubbed his eldest daughter's anal and vaginal area with his hand, and manipulated and touched the inside of her vagina. In some of the videos, Alicia is heard speaking to defendant; in others, defendant is seen or heard. In a post-Miranda3 interview, defendant admitted he photographed and video-recorded his daughters in the nude over several years. He admitted he made his daughters touch themselves for his gratification. However, he denied touching the two girls. Defendant was charged in a forty-nine count indictment. Most seriously, he was charged with two counts of first-degree aggravated sexual assault of Alicia, N.J.S.A. 2C:14-2(a), - 2(a)(2)(A); and five counts of first-degree endangering the welfare of a child, Alicia and Betty, N.J.S.A. 2C:24-4(b)(3). With respect to both daughters, he was also charged with multiple counts 2 The recordings and photographs are not in the record. We rely on the description of them provided by police witnesses before the grand jury. 3 Miranda v. Arizona, 384 U.S. 436 (1966). 4 A-0745-15T4 of second-degree sexual assault, N.J.S.A. 2C:14-2(b), -2(c)(3); second-degree endangering the welfare of a minor, N.J.S.A. 2C:24- 4(a), -4(b)(3), -4(b)(4); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); and fourth-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4(b)(5)(B). Defendant's plea agreement went through three iterations. Defendant initially pleaded guilty to first- and second-degree endangering the welfare of each daughter. With respect to the first-degree counts, defendant admitted that when his daughters were under sixteen years old, he filmed Alicia while she masturbated, and filmed Betty while she was nude for the sexual stimulation or gratification of a potential viewer. For purposes of the second-degree counts, he admitted that while he filmed Alicia and Betty, he knowingly engaged in sexual conduct that would impair or debauch his daughters' morals. The plea agreement provided that defendant would receive, on the first-degree offenses, consecutive terms of eleven years, with five-and-a-half years of parole ineligibility. Seven-year terms for the second-degree offenses would be concurrent with each other, and with the twenty-two-year sentence for the first-degree offenses. 5 A-0745-15T4 Before sentencing, defendant underwent a psychological evaluation at the Adult Diagnostic and Treatment Center (ADTC). The examiner opined that defendant's conduct was repetitive, compulsive and stemmed from feelings of sexual attraction toward his daughters, notwithstanding his claims that he was simply attempting to educate them and express an openness to nudity similar to those who reside in nudist colonies. The examiner stated that defendant was amenable to treatment, and should be incarcerated at ADTC. At sentencing, defense counsel stated that defendant was willing to participate in treatment. The court questioned whether it could justify sentencing defendant at the low end of the first-degree range, which required placing significant weight on mitigating factors, yet impose mandatory minimum periods of parole ineligibility, which required placing significant weight on aggravating factors. The parties then revised the plea agreement. In its new formulation, defendant would be sentenced to concurrent terms of fifteen years, with seven-and-a-half years of parole ineligibility, for the two first- degree offenses, consecutive to concurrent terms of seven years, with three-and-a-half years of parole ineligibility, for the two second-degree offenses. The aggregate sentence remained twenty- two years, with an eleven-year period of parole ineligibility. 6 A-0745-15T4 After securing defendant's consent to the revised agreement, the court sentenced him accordingly. In defendant's direct appeal, which we heard on an Excessive Sentencing Oral Argument calendar, we held that the aggregate sentence was not excessive. However, we remanded for consideration whether the second-degree offense for each child should be merged into the first-degree offense. State v. [T.L.], No. A-2928-08 (App. Div. July 30, 2010). Upon remand, it was apparent that merger would complicate the effort to fashion a plea agreement that produced the aggregate sentence of twenty-two years with an eleven-year parole ineligibility period. Consequently, the State agreed to merger of the counts involving Alicia, and dismissed the first-degree count involving Betty. The court then resentenced defendant to fifteen years, with a seven-and-a-half year period of parole ineligibility on the first-degree offense involving Alicia consecutive to seven years, with a three-and-a-half-year period of parole ineligibility on the second-degree offense involving Betty – for an aggregate twenty-two years, with eleven years of parole ineligibility. II. Defendant filed a timely petition for PCR. His lengthy pro se petition was accompanied by a 219-page pro se brief, which was 7 A-0745-15T4 followed by three subsequent counseled briefs.4 At oral argument, counsel contended that defendant should be allowed to withdraw his plea because his attorney coerced him into accepting it; and his attorney told him that the judge would likely sentence him to a ten-year term, with five years of parole ineligibility. Counsel also argued that defendant did not consent to the modifications of the plea agreement, and that the judge's initial hesitation to sentence him in accord with the first plea agreement should have nullified his plea. He also contended counsel should have filed a Miranda motion to exclude defendant's confession, and should have made a more effective argument at sentencing. Judge Thomas J. Critchley denied the petition in an oral opinion that focused on the points raised at the hearing. The judge observed that the plea agreement was mutually beneficial, as it significantly reduced defendant's sentencing exposure, while shielding the victims from the emotional turmoil of testifying at trial. Based on defendant's statements in the plea colloquies, the court rejected his assertions in his petition that he was coerced or misled into pleading, or that he did not consent to the subsequent modifications. The judge concluded that defense 4 For the sake of completeness, we include those points in an appendix at the end of this opinion. 8 A-0745-15T4 counsel was far from deficient in his sentencing argument. The court noted that defendant did not assert his innocence. While questioning the merits of a potential Miranda motion, in light of defendant's signed Miranda card, the court concluded there was no prejudice from foregoing such a motion. The court noted the evidence against defendant was overwhelming; the search and seizure of the photos and videos did not depend on his custodial statement; and motion practice would likely have led to less favorable plea offers. On appeal, defendant presents the following points in his counseled brief: POINT I THE PCR COURT'S ORDER THAT DENIED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT CLEARLY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN THE PROCEEDINGS BELOW. A. Defense Counsel's Gross Misrepresentation of the Defendant During the Plea Phase of the Proceedings Caused Defendant to Enter Into an Involuntary, Unknowingly and Unintelligent Guilty Plea. 1. Plea counsel affirmatively misinformed Defendant about the Sexually Violent Predator's Act, N.J.S.A. [] 30:4-27.24 to -38 ("SVPA"), consequences of his plea. 2. Plea counsel failed to object to the entry of the amended plea although said plea violated R. 3:9-2. 9 A-0745-15T4 3. Plea counsel failed to warn Defendant of the post release supervision consequences of his plea. 4. Plea Counsel Coerced Defendant Into Pleading Guilty. B. Defendant Further Complains That He Received Ineffective Assistance of Counsel Even Prior To The Guilty Plea Phase of His Case. 1. Defense counsel failed to file a meritorious Fifth Amendment suppression motion. 2. Counsel[] failed to properly investigate. C. Sentencing Counsel Provided Ineffective Assistance of Counsel. 1. Sentencing Counsel Failed To Challenge The ADTC Report and PSR. 2. Sentencing counsel failed to challenge the aggravating factors found by the court and to argue in favor of mitigating circumstances supported by the record. 3. Sentencing counsel failed to argue for a downgraded sentence although T.L. had no prior criminal history. D. Re-sentencing Counsel Provided Ineffective Assistance of Counsel. E. Appellate Counsel Provided Ineffective Assistance of Counsel. 10 A-0745-15T4 POINT II THE COURT SHOULD REMAND THE MATTER FOR AN EVIDENTIARY HEARING. In a pro se brief, defendant adds the following points for our consideration: Point I THE SUSSEX COUNTY POST CONVICTION RELIEF COURT FAILED TO FIND THAT THE RECORD SUPPORTS THE FACT THAT THE SENTENCING COURT REJECTED MR. LIDDELL'S PLEA AGREEMENT AT SENTENCING. Point II THE SUSSEX COUNTY POST CONVICTION RELIEF COURT FAILED TO FIND THAT MR. LIDDELL WAS DENIED HIS RIGHT TO CHAL[L]ENGE THE ADULT DIAGNOSTIC & TREATMENT CENTER'S PSYCHOLOGICAL EXAMINATION. Point III THE SUSSEX COUNTY POST CONVICTION RELIEF COURT FAILED TO FIND THAT THE RECORD SUPPORTS THE FACT THAT THE SENTENCING COURT DID NOT INFORM MR. LIDDELL OF THE POSSIBILITY OF CIVIL COMMITMENT AS A CONSEQUENCE OF HIS PLEA RESULTING IN A [STATE V.] BELLAMY VIOLATION. III. We review de novo the trial court's denial of PCR without an evidentiary hearing. See State v. Harris, 181 N.J. 391, 421 (2004). We apply the two-pronged Strickland test, and determine whether the record reveals that defendant's plea counsel was constitutionally deficient, and defendant suffered resulting 11 A-0745-15T4 prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). To the extent defendant renews arguments that his PCR counsel highlighted in the hearing before the trial court, we affirm substantially for the reasons stated by Judge Critchley in his oral opinion. The remainder of defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), except for one: defendant's contention that plea counsel was deficient by failing to advise him of the risk of civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.27, -27.32. When defendant pleaded guilty, the rule was well-settled that fundamental fairness required that a defendant be advised of the applicable risk of future civil commitment. State v. Bellamy, 178 N.J. 127, 138 (2003). In particular, defendant contends he was not informed of the risk he could be civilly committed based on the "catch-all" provision of the SVPA's definition of a "sexually violent offense," N.J.S.A. 30:4-27.26(b). That provision allows a court to find that an offender committed a sexually violent offense sufficient to render the offender a sexually violent predator subject to civil commitment, even if the offender did not commit an offense enumerated under N.J.S.A. 30:4-27.26(a). 12 A-0745-15T4 In In re Commitment of J.M.B., 197 N.J. 563 (2009), the Supreme Court interpreted N.J.S.A. 30:4-27.26(b) to authorize civil commitment for an offense not enumerated under N.J.S.A. 30:4-27.26(a), if the State could demonstrate the defendant engaged in conduct "substantially equivalent . . . to the conduct captured by the offenses listed in subsection (a)." J.M.B., 197 N.J. at 595. The enumerated offenses include some offenses alleged in defendant's indictment, but which were dismissed as part of the plea: aggravated sexual assault, sexual assault, aggravated criminal sexual contact, and criminal sexual contact. See N.J.S.A. 30:4-27.26(a). A plausible argument could be made that the conduct defendant described, in pleading to first-degree endangering the welfare of Alicia, was substantially equivalent to first-degree aggravated sexual assault.5 If defendant instructed Alicia to penetrate herself with the vibrator he provided, his conduct would apparently satisfy the "sexual penetration" element of aggravated sexual assault. See N.J.S.A. 2C:14-1(c) (defining "sexual penetration" to include "insertion of . . . [an] object into the . . . vagina . . . upon the actor's instruction"); N.J.S.A. 2C:14-2(a)(2)(A) 5 We do not decide in this appeal whether defendant committed a subsection (b) offense. That is an issue that should be fully aired if and when the Attorney General seeks civil commitment. 13 A-0745-15T4 (defining aggravated sexual assault as an act of sexual penetration with another person where the victim is between thirteen and sixteen and the actor is related to the victim by blood or affinity to the third degree).6 Turning to the first Strickland prong, defendant has presented a prima facie case that he was not informed that he risked civil commitment if the State could establish that his first-degree endangering conviction was "substantially equivalent" to an enumerated offense under N.J.S.A. 30:4-27.26(a). Defendant's plea form was ambiguous on the subject. The "Additional Questions for Certain Sexual Offenses" form addressed civil commitment. Someone wrote "NA" – presumably, meaning "not applicable" – next to the first part of the pertinent paragraph, which tracked the enumerated offenses in N.J.S.A. 30:4-27.26(a). However, a circled asterisk was written next to the second part, which tracked the "catch-all" language of N.J.S.A. 30:40-27.26(b). The "YES" answer was circled, suggesting defendant was aware of 6 Defendant's allocution arguably also established conduct substantially equivalent to aggravated criminal sexual contact. See N.J.S.A. 2C:14-1(d) (defining "sexual contact"); Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:14-1 at 417 (2017) (stating that "[i]t would also appear . . . that if the victim is forced to touch himself [or herself], criminal sexual contact exists"). 14 A-0745-15T4 the risks of civil commitment as described, presumably subject to the handwritten notations.7 However, the plea colloquy was less ambiguous. In response to the court's inquiry, defense counsel asserted that he did not believe the SVPA applied. The prosecutor concurred, adding, "They were not crimes of violence." Thus, viewing the record of the plea hearing as a whole, defendant has established at least a prima facie case that his plea counsel did not advise him that he faced the risk of civil commitment; and in fact, his counsel assured him in open court that the SVPA did not apply. Nonetheless, for two reasons, it is debatable whether counsel was constitutionally deficient in assuring defendant on the 7 In its entirety, the paragraph entitled "Civil Commitment" states: Do you understand that if you are convicted of a sexually violent offense, such as aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping under [N.J.S.A.] 2C:13-1c(2)(b), criminal sexual contact, felony murder if the underlying crime is sexual assault, an attempt to commit any of these offenses, or any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the offense should be considered a sexually violent offense, you may upon completion of your term of incarceration be civilly committed to another facility if the courts finds, after a hearing, that you are in need of involuntary civil commitment? 15 A-0745-15T4 record, with the prosecutor's concurrence, that the SVPA did not present a risk of civil commitment. First, "it is not clear . . . for purposes of setting aside a guilty plea," whether misinformation or lack of information about the risks of civil commitment would be "a deprivation of federal constitutional magnitude." State v. Maldon, 422 N.J. Super. 475, 484 (App. Div. 2011) (comparing a defense attorney's duty, pursuant to the obligation to provide effective assistance of counsel, to advise a client of the immigration consequences of pleading guilty, as recognized in Padilla v. Kentucky, 559 U.S. 356 (2010)). Second, J.M.B. was decided in 2009 – almost a year after defendant's 2008 plea. An attorney is not required to predict developments in the law in order to provide effective assistance. See, e.g., McCoy v. United States, 707 F.3d 184, 188 (2d Cir. 2013); State v. Harris, 181 N.J. at 436 (rejecting defendant's argument that "trial counsel [was] ineffective for not anticipating a change in law").8 While our court rendered its decision in J.M.B. before defendant's plea, see In re Commitment 8 On the other hand, if the law is obviously unclear or uncertain, a defense attorney may be obliged to convey that to his client. In particular, the United States Supreme Court held that if the law governing deportation consequences "is not succinct and straightforward," a criminal defense attorney is obliged to advise a non-citizen client of the "risk of adverse immigration consequences." Padilla, 559 U.S. at 369; see also State v. Gaitan, 209 N.J. 339, 373 (2012). 16 A-0745-15T4 of J.M.B., 395 N.J. Super. 69 (App. Div. 2007), aff'd, 197 N.J. 563 (2009), one might reasonably have read our court's decision to require proof of actual physical violence in the commission of a subsection (b) offense. Id. at 91-92. As the prosecutor noted, there was no evidence of that here. Even assuming for argument's sake that plea counsel was constitutionally deficient by not informing defendant about the risk of civil commitment under subsection (b) – and affirmatively asserting on the record that the SVPA did not apply – defendant has failed to demonstrate that he suffered prejudice sufficient to satisfy Strickland's second prong. "[W]hen a defendant claims that his counsel's deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a 'reasonable probability that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial.'" Lee v. United States, ___ U.S. ___, ___, 137 S.Ct. 1958, 1965 (2017) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). "[A] petitioner must convince the court that a decision to reject a plea bargain would have been rational under the circumstances." Padilla, 559 U.S. at 372; see also Lee, 137 S.Ct. at 1968. In the deportation context, the United States Supreme Court has recognized that it may well be rational for a defendant facing 17 A-0745-15T4 certain deportation if convicted, to go to trial, despite overwhelming proof of guilt. Id. at 1968-69. In Lee, the record established that the defendant was concerned about possible deportation, but was repeatedly misinformed that he faced no risk. Id. at 1963. For him, pleading guilty to a single count indictment charging drug possession meant certain deportation. Id. at 1968. Going to trial provided some slim hope of avoiding that consequence. Ibid. Moreover, the risk of conviction after trial was only "a year or two more of prison time." Id. at 1969. The Supreme Court reasoned, "If deportation were the 'determinative issue' for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that 'almost' could make all the difference." Id. at 1968-69. We recognize that the threat of civil commitment, like the threat of deportation, is momentous, and could result in life-time consequences. However, for several reasons, defendant has failed to establish, under the facts of this case, it would have been rational to go to trial, if he had known the risks of civil commitment under the catch-all provision of N.J.S.A. 30:4- 27.26(b). 18 A-0745-15T4 We should be wary of "post hoc assertions . . . about how [a defendant] would have pleaded but for his attorney's deficiencies." Id. at 1967. The Supreme Court directs judges to "look to contemporaneous evidence to substantiate a defendant's expressed preferences." Ibid. Here, plea counsel stated at sentencing that defendant was aware of the need for treatment, and he was willing to submit to it. There is no evidence that defendant feared he would be unable to succeed in treatment and remain in custody. Further, as the trial court noted, defendant did not assert his innocence. In fact, he admitted his guilt through all three iterations of his plea. There is no evidence that defendant was concerned with anything but receiving the most favorable plea terms. Furthermore, defendant's hopes of acquittal are more far- fetched than those of an accused first-time drug offender like Lee, who was a hard-working legal resident and business owner. 137 S.Ct. at 1968. While Lee might rationally have hoped a jury would have some sympathy for him, we cannot fathom a jury expressing anything but the utmost outrage at defendant's sexual exploitation of his own children. Defendant's acquittal seems inconceivable, in view of his conduct, which was extensively documented in film and photos. Cf. Bauder v. Dep't of Corr. Fla., 619 F.3d 1272, 1274 (11th Cir. 2010) (affirming habeas corpus 19 A-0745-15T4 relief where district court found that plea counsel's misadvice about risk of civil commitment prejudiced defendant because, among other reasons, "there was not overwhelming evidence of [the defendant's] guilt" and the defendant "maintained his innocence of the crime throughout the state criminal proceeding"). Also, the consequences of conviction after trial would not be merely "a year or two more of prison time," as in Lee. Id. at 1969. Defendant was fifty-one years old at sentencing and had 624 days of jail credit. The plea agreement offered him the chance of release at about age sixty. At trial, he would face a high risk of being convicted of first-degree aggravated sexual assault of Alicia, and sexual assault of Alicia and Betty. Those convictions would trigger the No Early Release Act, which would require defendant to serve eighty-five percent of the prison term before parole eligibility. N.J.S.A. 2C:43-7.2(d)(7), (8). Consecutive sentences – at least to address the fact there were separate victims – would also be likely. See State v. Carey, 168 N.J. 413, 423 (2001) (stating sentencing courts are instructed to consider the "facts relating to the crimes" including whether the offenses involved "numerous or separate victims" in imposing consecutive or concurrent sentences). Thus, defendant faced the prospect of a prison term that constituted the practical equivalent of a life sentence without civil commitment. 20 A-0745-15T4 Further, despite the potential life-time duration of civil commitment, that consequence for defendant is not at all as certain as deportation would be for a defendant like Lee. See United States v. Crain, ___ F.3d ___, ___ n.45 (5th Cir. 2017) (slip op. at 18 n.45) ("While civil commitment is indisputably severe, it is not 'automatic' or 'mandatory' in the same way that deportation and sex offender registration are[.]" (quoting Margaret Colgate Love, Collateral Consequences After Padilla v. Kentucky: From Punishment to Regulation, 31 St. Louis U. Pub. L. Rev. 87, 108 (2011)). Finally, there is one last distinction between deportation in Lee, and civil commitment in defendant's case. Lee would have faced no greater risk of deportation at trial if convicted than by pleading guilty. See Lee, 137 S.Ct. at 1968. However, defendant would have faced a higher likelihood of civil commitment if convicted at trial of sexual assault or criminal sexual contact, offenses enumerated in N.J.S.A. 30:4-27.26(a). With his plea agreement, civil commitment is less certain because the Attorney General would need to establish that his endangering conviction "should be considered a sexually violent offense." N.J.S.A. 30:4- 27.26(b). However, if he went to trial and was convicted of sexual assault or criminal sexual contact, he would, by definition, be a sexually violent offender. N.J.S.A. 30:4-27.26(a). 21 A-0745-15T4 In sum, defendant has failed to present a prima facie case that it would have been rational for him to go to trial, rather than accept the plea agreement, if he had known the risks of potential civil commitment under the catch-all provision in N.J.S.A. 30:4-27.26(b). Affirmed. 22 A-0745-15T4 APPENDIX Defendant raised the following points in his pro se brief before the trial court: POINT I NEW JERSEY'S POST-CONVICTION RELIEF PROCEEDING IS THE ANALOGUE TO THE FEDERAL WRIT OF HABEAS CORPUS R. 3:22-1 TO -12 CONTROLS THE PROCEDURES FOR POST-CONVICTION RELIEF. POINT II THE PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF PLEA COUNSEL. A. UNDER THE UMBRELLA OF INEFFECTIVE ASSISTANCE, THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING CRITICAL PHASES OF PRETRIAL PROCEDURES DUE TO COUNSEL'S FAILURE TO CONDUCT A PRETRIAL INVESTIGATION[] IN PREPARATION FOR PLEA NEGOTIATIONS AND AT SENTENCING, WHICH RESULTED IN THE PETITIONER'S GUILTY PLEA BEING NEITHER INFORMED OR VOLUNTARY, BUT WAS INSTEAD COERCIVELY OBTAINED THROUGH COUNSEL'S DECEPTION PROMISES, THREATS, AND INDUCEMENTS. B. UNDER THE UMBRELLA OF INEFFECTIVE ASSISTANCE, PLEA COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE FAILED TO NOTIFY PETITIONER THAT HE FACED THE POSSIBILITY OF LIFELONG CIVIL COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATORS ACT, N.J.S.A. § 30:4-27.24 TO -27.38. THE COURT ALSO FAILED TO PROPERLY (INFORM) EXPLAIN CIVIL COMMITMENT, AND THEREFORE COMMITTED REVERSIBLE ERROR. PLEA COUNSEL LACKED THE LEGAL KNOWLEDGE OF PAROLE SUPERVISION FOR LIFE VERS[U]S COMMUNITY SUPERVISION FOR LIFE RESULTING IN THE 23 A-0745-15T4 PETITIONER BEING UNINFORMED OF THE CONSEQUENCES OF HIS PLEA. C. UNDER THE UMBRELLA OF INEFFECTIVE ASSISTANCE OF PLEA COUNSEL, THE PETITIONER'S PLEA AGREEMENT WAS NOT PREMISED ON A FACTUAL BASIS. D. UNDER THE UMBRELLA OF INEFFECTIVE ASSISTANCE, THE DEFENSE COUNSEL FAILED TO CHALLENGE THE ADULT DIAGNOSTIC & TREATMENT CENTER'S EVALUATION AGAINST THE PETITIONER['S] REQUEST. E. UNDER THE UMBRELLA OF INEFFECTIVE ASSISTANCE, PLEA BARGAINING MUST BE CONDUCTED FAIRLY ON BOTH SIDES AND THE RESULTS MUST NOT DISAPPOINT THE REASONABLE EXPECTATIONS OF EITHER. PLEA COUNSEL WAS INEFFECTIVE IN THAT HE WAS WHOLLY UNPREPARED TO MAKE ARGUMENT UNDER STATE V. BALFOUR, FOR A ONE STEP REDUCTION DOWNGRADE, (FOR THE PURPOSES OF SENTENCING) FROM A POTENTIAL FIRST DEGREE TO A SECOND DEGREE SENTENCE IN THE INTEREST OF JUSTICE. PROSECUTOR AND DEFENSE COUNSEL MAY ENTER INTO DISCUSSIONS CONCERNING PLEAS AND SENTENCES; IN THESE DISCUSSIONS THE JUDGE MUST TAKE NO PART. IN THE INSTANT CASE, COUNSEL ALLOWED THE COURT TO INTERFERE WITH THE PLEA PROCESS. F. UNDER THE UMBRELLA OF INEFFECTIVE ASSISTANCE, THE DEFENSE COUNSEL FAILED TO PRESENT MITIGATING CIRCUMSTANCES SUPPORTED BY CREDIBLE EVIDENCE FOUND IN THE RECORD; COUNSEL FAILED TO AGGRESSIVELY ESTABLISH A DEFENSE AGAINST THE AGGRAVATING CIRCUMSTANCES AND ABANDONED THE PETITIONER. THE COURT COMMITTED REVERSIBLE ERROR IN APPLICATION OF BOTH 24 A-0745-15T4 AGGRAVATING AND MITIGATING FACTORS DURING SENTENCING. THE COURT FAILED TO DOCUMENT HOW IT WEIGHED AND BALANCED THE AGGRAVATING AND MITIGATING FACTORS FOR SENTENCING AND PAROLE DISQUALIFICATION. G. UNDER THE UMBRELLA OF INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL FAILED TO PROVIDE AN ARGUMENT AGAINST COURT IMPOSED RESTITUTION BY ACTING AS AN ADVOCATE FOR THE STATE AND COLLABORATED WITH THE COURT IN VIOLATION OF THE PETITIONER'S DUE PROCESS RIGHTS. H. PROSECUTORIAL MISCONDUCT, POST RECESS, THROUGH THE FALSIFICATION AND FABRICATION OF STATEMENTS IN AN EFFORT TO INFLUENCE INFLAME AND PERSUADE THE COURT'S SENTENCING DECISION. I. THE APPELLATE DIVISION RENDERED THEIR REMAND DECISION BASED ON NON VERBATIM SENTENCING TRANSCRIPTS FROM SEPTEMBER 30, 2008. THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DURING THE APPELLATE DIVISION'S EXCESSIVE SENTENCING ORAL ARGUMENT OF JULY 27, 2010. APPELLATE COUNSEL WAS UNPREPARED AND LACKED THE NECESSARY COURT DOCUMENTATION TO ESTABLISH AN ARDUOUS ARGUMENT. APPELLATE COUNSEL FAILED TO ARGUE MITIGATING FACTORS SUPPORTED BY THE RECORD. APPELLATE COUNSEL FAILED TO ESTABLISH A SUBSTANTIAL ARGUMENT, A DEAD-BANG WINNER, AGAINST THE PETITIONER NOT BEING FULLY INFORMED OF CIVIL COMMITMENT AND COMMUNITY SUPERVISION FOR LIFE AS A CONSEQUENCE OF PETITIONER'S PLEA. APPELLATE COUNSEL FAILED TO RAISE THE ISSUE OF THE IMPROPER REJECTION OF PETITIONER'S NEGOTIATED PLEA BY THE TRIAL COURT. APPELLATE COUNSEL WAS UNWILLING AND UNPREPARED TO RAISE HE PROSECUTOR'S BALFOUR 25 A-0745-15T4 ARGUMENT FOR A REDUCTION OF SENTENCE. COUNSEL FAILED TO ADDRESS THE LACK OF A FACTUAL BASIS OF THE PLEA AGREEMENT. J. UNDER THE UMBRELLA OF INEFFECTIVE ASSISTANCE THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING THE RESENTENCING REMAND OF SEPTEMBER 22, 2010 AND NOVEMBER 09, 2010. COUNSEL WAS UNPREPARED AND LACKED THE NECESSARY COURT DOCUMENTATION TO ESTABLISH AN ARGUOUS ARGUMENT FOR THE MERGER OF THE COUNTS OF THE PLEA AGREEMENT AS ORDERED BY THE APPELLATE DIVISION. COUNSEL LACKED KNOWLEDGE OF THE CASE AT HAND AND HAD PREJUDICED THE PETITIONER THROUGH INEFFECTIVE REPRESENTATION ALLOWING THE STATE TO ARBITRARILY MERGE THE COUNTS INCONSISTENT WITH THE APPELLATE DIVISION'S DECISION. REMAND COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN THAT HE FAILED TO PROPERLY ARGUE IN FAVOR OF THE PLEA AGREEMENT, WHEREBY THE PETITIONER AGREED TO TWO ELEVEN YEAR SENTENCES ON THE FIRST DEGREE OFFENSES, AND TWO SEVEN YEAR CONCURRENT SENTENCES ON THE SECOND DEGREE OFFENSES. POINT III JUDICIAL BIAS, ABUSE OF DISCRETION/ABUSE OF PROCESS WHICH PREJUDICED THE PETITIONER RESULTING IN AN ILLEGAL SENTENCE. THE COURT EXHIBITED BIAS TOWARDS THE PETITIONER REQUIRING RECUSAL OF THE COURT. Defendant's first counseled trial brief raised the following points: POINT I PETITIONER IS ENTITLED TO POST CONVICTION RELIEF INCLUDING ORAL ARGUMENT AND AN EVIDENTIARY HEARING BASED ON THE TIMELY FILING 26 A-0745-15T4 OF THE VERIFIED PETITION AND THE FOREGOING ARGUMENTS. POINT II PETITIONER IS ENTITLED TO POST CONVICTION RELIEF BASED ON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. A. INEFFECTIVE ASSISTANCE OF COUNSEL IN A PLEA CONTEXT. B. WITHDRAWAL OF A GUILTY PLEA. C. STATE V. SLATER ANALYSIS. Petitioner Has Met The Majority of The Four Factors In Establishing That The Plea Should Be Set Aside Pursuant to State v. Slater (includes factor three). Petitioner has asserted a colorable claim of innocence (factor one). The nature and strength of petitioner's reason for withdrawal (factor two). A. Petitioner was not properly advised of the Consequences of his guilty plea. 1. Trial counsel misled petitioner as to total punitive exposure. 2. Trial counsel misled petitioner as to the terms of the plea agreement as the agreement was rescinded at sentencing. B. Trial counsel failed to consult with petitioner to review the evidence and prepare potential defenses for trial. C. Trial counsel failed to properly prepare the petitioner for the plea hearing. 27 A-0745-15T4 D. Trial counsel failed to challenge the Avenel report. E. Trial counsel failed to make meaningful arguments at sentencing. 1. Trial counsel failed to prepare the petitioner for his interview with the probation department. 2. Trial counsel should have retained an expert on recidivism. 3. Trial counsel did not adequately address the mitigating factors. 4. Trial counsel did not zealously oppose restitution. 5. Trial counsel should have objected to prosecutorial misconduct. Withdrawal of the plea would not result in unfair prejudice to the state (factor four). POINT III INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. POINT IV INEFFECTIVE ASSISTANCE OF RESENTENCING COUNSEL. POINT V PETITIONER REQUESTS DISQUALIFICATION OF THE HONORABLE N. PETER CONFORTI, JSC. POINT VI ALL ISSUES RAISED IN PETITIONER'S PRO SE CERTIFICATIONS AND FUTURE PRO SE CERTIFICATIONS MUST BE CONSIDERED IN THIS MATTER. 28 A-0745-15T4 POINT VII PETITIONER'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF RULE 3:22-2 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE CONSTITUTION. Defendant's second counseled trial brief raised the following points: POINT I DEFENDANT IS ENTITLED TO WITHDRAW HIS PLEA AGREEMENT AS A MATTER OF DUE PROCESS OF LAW. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947) ART. I, PAR. 1. POINT II DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. POINT III THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR. POINT IV DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. POINT V AN EVIDENTIARY HEARING IS REQUIRED WITH REGARD TO THE ALLEGATIONS OF HIS PETITION FOR POST CONVICTION RELIEF. POINT VI THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATION. 29 A-0745-15T4 Defendant's third counseled trial brief – a supplemental brief – raised the following point: POINT VII BUT FOR TRIAL COUNSEL'S INEFFECTIVE REPRESENTATION, THE DEFENDANT'S STATEMENT, AND EVIDENCE OBTAINED AS A RESULT THEREOF, WOULD HAVE BEEN SUPPRESSED. 30 A-0745-15T4

click here to get this case.


Docket No.: a0838-16
Decided: 2018-01-17
Caption: H.W v. Y.S
Status: unpublished
Summary:
PER CURIAM Defendant appeals from a September 15, 2016 final restraining order (FRO) entered under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on a predicate act of harassment, N.J.S.A. 2C:33-4. He also appeals from an October 19, 2016 order awarding attorney's fees to plaintiff. We are constrained to vacate both orders and remand for a new trial because defendant was not informed of his due process right to retain legal counsel, nor did he waive that right. I. The incident that gave rise to plaintiff's request for a restraining order occurred on September 4, 2016. At that time, the parties had been married for just over twenty years and were involved in a divorce action. They had one child, a son who was born in 2001. Plaintiff alleged that on September 4, 2016, defendant threw a cup of soda at her and that the cup hit her arm. She sought and was granted a temporary restraining order (TRO). On September 8, 2016, she amended her TRO to add information concerning prior acts of domestic violence. Plaintiff also amended her complaint on the day of trial to add the alleged predicate act of simple assault. The matter was tried on September 15, 2016. Plaintiff was represented by counsel, and defendant appeared without counsel. At the beginning of the trial, the judge appropriately informed defendant of the significant consequences that could occur if an FRO was entered against him. The judge did not, however, inform defendant of his right to retain counsel. Nor did defendant waive 2 A-0838-16T1 his right to retain counsel. Specifically, the judge engaged in the following colloquy with defendant: THE COURT: Are you ready to proceed with trial of this matter today? [DEFENDANT]: Yes. THE COURT: All right. Do you understand I have not heard any testimony nor have I reviewed any evidence so I do not know whether a final restraining order will enter or not, but if one does enter it carries with it significant penalties and consequences. They include a fine of between [$]50 and $500, a requirement that you be photographed and fingerprinted by our sheriff's office. Also, your name would be included on a central registry of domestic violence offenders. Inclusion of your name on that registry would limit your ability to seek certain types of employment, serve in certain types of volunteer organizations, and might hinder your ability to travel internationally freely as people on that list are often detained for questioning by our Immigration and Customs authorities. More importantly, if you violate any final restraining order that is entered today or in the future it becomes a criminal matter prosecuted by the prosecutor's office and could potentially result in the imposition of incarceration or a fine. Do you understand all of these potential penalties? [DEFENDANT]: Yes. THE COURT: Knowing these potential penalties are you still ready to proceed with your case today? 3 A-0838-16T1 [DEFENDANT]: Yeah. I'm innocent. THE COURT: Okay. You're ready to represent yourself in the trial that we're about to begin. Is that correct? [DEFENDANT]: Right. Right. At trial, plaintiff testified that she got into an argument with her fifteen-year-old son regarding his drinking soda with high amounts of sugar. She then testified that defendant became involved in the argument. According to plaintiff, defendant threw a cup of soda at her, the cup hit her arm, and the soda spilled on the kitchen counter. Plaintiff also explained that their son was present during the incident. Plaintiff also testified about a history of abuse by defendant, which included defendant punching her, pushing her, hitting her in the back of her neck, calling her derogatory names, locking her out of the marital home, and secretly recording her having sex with her boyfriend. Defendant disputed plaintiff's description of what took place on September 4, 2016. He testified that plaintiff started the argument while he was eating his lunch. He then contended that plaintiff poured the contents of a bottle of Snapple down the drain and pounded the empty bottle on the counter. He also testified that plaintiff was verbally harassing him and that he 4 A-0838-16T1 stood up and threw half a cup of soda into the sink to try to stop plaintiff from harassing him. At the end of his testimony, defendant requested to call his son as a witness to the incident. The court denied that request and explained that it normally did not allow minors to testify at domestic violence trials "unless there was an absolute need for that testimony." The court then found that it could make a ruling without the son's testimony. Moreover, the court noted that the son was not present at the courthouse and declined to grant an adjournment to allow defendant to arrange to have his son give testimony. The court made its ruling on the record. Relying on plaintiff's testimony, the court found that defendant threw a cup of soda at plaintiff and that the cup hit her. The court found that action constituted harassment both as a communication under N.J.S.A. 2C:33-4(a), and an offensive touching under N.J.S.A. 2C:33-4(b). The court also found that defendant's purpose was to harass plaintiff when he threw the cup at her. The court did not find that defendant committed the predicate act of assault. Turning to the history of domestic violence, the court found plaintiff's testimony credible. Accordingly, the court found that defendant had previously punched plaintiff, pushed her, hit her in the back of the neck, locked her out of the marital home, and 5 A-0838-16T1 recorded her having sex with her boyfriend. The court also found that plaintiff was in need of a restraining order against defendant. Thus, the court entered an FRO on September 15, 2016. The trial court also permitted plaintiff to apply for counsel fees. After receiving a certificate of services from plaintiff's counsel, on October 19, 2016, the court entered an order awarding plaintiff $4000 in counsel fees. II. On appeal, defendant, who is now represented by an attorney, argues that both the FRO and the order awarding counsel fees should be vacated. In support of that position, defendant makes five arguments: (1) he was denied his right to counsel; (2) the trial court erred by not permitting defendant to call his son as a witness; (3) plaintiff failed to prove harassment; (4) cumulative errors require reversal; and (5) the counsel fees award should be vacated. We need only reach the first issue because we hold that defendant was denied his procedural due process right to be informed of his right to retain legal counsel. Parties to a domestic violence action are entitled to certain procedural due process rights. J.D. v. M.D.F., 207 N.J. 458, 478 (2011). Our Supreme Court has explained that "ordinary due process protections apply in the domestic violence context, notwithstanding the shortened time frames for conducting a final 6 A-0838-16T1 hearing that are imposed by the statute." Ibid. (citations omitted). Thus, the Court has explained that "ensuring that defendants are not deprived of their due process rights [in a domestic violence matter] requires our trial courts to recognize both what those rights are and how they can be protected consistent with the protective goals of the [PDVA]." Id. at 479. The right to seek counsel is an important due process right that affords defendants "a meaningful opportunity to defend against a complaint in domestic violence matters." D.N. v. K.M., 429 N.J. Super. 592, 606 (App. Div. 2013). In that regard, we held that due process does not require the appointment of counsel for indigent defendants in a domestic violence proceeding seeking an FRO. Id. at 605. Nevertheless, due process does require that a defendant understands that he or she has a right to retain legal counsel, and that a defendant is afforded a reasonable opportunity to retain an attorney. Ibid. In D.N. v. K.M., we found that defendant, D.N., on a cross- complaint alleging domestic violence, relinquished her right to seek counsel where the trial judge "adequately questioned [her] regarding her decision to decline the opportunity to obtain legal representation." Id. at 607. In that case, the trial judge asked D.N. (1) whether she wanted the opportunity to obtain counsel, pointing out that the opposing party was represented; (2) whether 7 A-0838-16T1 she understood what would happen if a final restraining order was entered; and (3) whether she knew that she might be subject to civil penalties and other consequences. Id. at 599-600. The judge also advised D.N. that she could request an adjournment to consult with an attorney or further prepare for the trial. Id. at 607. Given that advice, we held that D.N.'s waiver of her right to seek counsel was clear and knowing. Here, defendant was not advised at trial that he had a right to retain legal counsel. While the judge appropriately informed defendant of the significant consequences of an FRO, nowhere in the record did he expressly advise defendant of his right to retain counsel. That failure was particularly significant in this case, because the trial was essentially a dispute between plaintiff's and defendant's versions of the incident on September 4, 2016. Defendant requested to call his son, who was the only other witness to those events, to testify. The trial court denied that request. Such testimony could have been very important in determining plaintiff's and defendant's credibility. Had defendant had counsel, counsel might have presented arguments to persuade the trial court to hear testimony from the son. Accordingly, we vacate the FRO and the order awarding plaintiff counsel fees. The TRO is reinstated, and the matter is remanded for a new trial. 8 A-0838-16T1 Reversed and remanded. We do not retain jurisdiction. 9 A-0838-16T1

click here to get this case.


Docket No.: a0999-16
Decided: 2018-01-17
Caption: STATE OF NEW JERSEY v. FORREST M. BAKER, SR
Status: unpublished
Summary:
PER CURIAM In 2006, defendant Forrest M. Baker, Sr., was convicted of the June 2002 first-degree robbery of a drug store, N.J.S.A. 2C:15- 1, and using a juvenile, his son, to commit the robbery, N.J.S.A. 2C:24-9a. The judge sentenced defendant to a mandatory term of life imprisonment without parole pursuant to the "Three Strikes Law," N.J.S.A. 2C:43-7.1a (the Law), on the robbery conviction, a concurrent term on the second offense, with the sentences to run consecutively to the federal sentence defendant was already serving. We affirmed defendant's conviction on appeal, State v. Baker, 400 N.J. Super. 28, 33 (App. Div. 2008), and the Supreme Court affirmed. 198 N.J. 189, 191 (2009). We subsequently affirmed the Law Division's denial of defendant's petition for post-conviction relief, State v. Baker, No. A-5489-10 (App. Div. Jan. 16, 2013), and the Court denied defendant's petition for certification. 220 N.J. 268 (2015). On July 1, 2016, defendant filed a pro se motion to correct an illegal sentence pursuant to Rule 3:21-10(b)(5). He argued that his life sentence violated the Ex Post Facto Clauses of the United States Constitution and New Jersey's Constitution. U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3.1 The judge denied the motion, reasoning the Law was enacted in 1995; defendant was convicted in 2002 of five federal bank robbery charges and arrested for the robbery at issue here in 2003. Quoting State v. Oliver, 162 N.J. 580, 587 (2000), for the 1 For simplicity, we use the singular, "Ex Post Facto Clause," throughout the balance of this opinion. 2 A-0999-16T1 proposition that "recidivist statutes do not violate the Ex Post Facto Clause if they were on the books at the time the triggering offense was committed," the judge concluded defendant's sentence did not violate the Ex Post Facto Clause. Defendant appeals. He contends the Law Division judge misconstrued his argument, which we understand to be as follows. Defendant committed five bank robberies between April and October 2002 that led to his federal arrest in December 2002. He was sentenced for all five robberies in a single proceeding in federal court in November 2003. The robbery which is the subject of this case occurred in June 2002. Defendant contends, therefore, that since all his arrests preceded an April 2003 amendment to the Law, the earlier version of the Law should apply and any application of the post-2003 amended version of the Law violates the Ex Post Facto Clause. We agree and remand for resentencing. Prior to the April 2003 amendment to the Law, an offender was eligible for a mandatory life sentence without parole when convicted of certain enumerated crimes, including robbery, after having "on two or more prior and separate occasions been convicted" of the enumerated crimes or similar federal crimes. Oliver, 162 N.J. at 585 (quoting N.J.S.A. 2C:43-7.1a) (emphasis added). In State v. Livingston, 172 N.J. 209, 213 (2002), the Court held that "a person is not eligible for sentencing under the 'Three Strikes' 3 A-0999-16T1 law unless the predicate convictions have been imposed in two or more separate and distinct proceedings held on different dates, rather than one single continuous proceeding." The 2003 amendment was in direct response to the Court's opinion in Livingston. State v. Parks, 192 N.J. 483, 486-87 (2007). The Law now provides that an offender who commits certain crimes, and who "has been convicted of two or more crimes that were committed on prior and separate occasions, regardless of the dates of the convictions," is eligible for a mandatory life sentence without parole. N.J.S.A. 2C:43-7.1a (emphasis added). Defendant's guilty pleas to five counts of bank robbery in federal court were entered on the same day and resulted in a single judgment of conviction. Thus, under Livingston and the pre-2003 version of the Law, when convicted of this robbery, defendant was not a person "who ha[d] on two or more prior and separate occasions been convicted of a crime." However, three of defendant's federal bank robberies occurred prior to the June 29, 2002 robbery in this case. If the post-2003 version of the Law applies, defendant would be eligible for a mandatory, life sentence without parole because at sentencing in 2006, he was a person "convicted of two or more crimes that were committed on prior and separate occasions." 4 A-0999-16T1 As the Court has explained, "for a criminal law to be ex post facto, it must satisfy two essential requirements: First, 'it must be retrospective, that is, it must apply to events occurring before its enactment,' and second, 'it must disadvantage the offender affected by it.'" State v. Fortin, 198 N.J. 619, 627 (2009) (quoting State v. Natale, 184 N.J. 458, 491 (2005)). As the Court held in Oliver, 162 N.J. at 587, there is no violation of the Ex Post Facto Clause if the penalty-enhancing statue was "on the books at the time the triggering offense was committed." Here, the June 2002 drug store robbery was the triggering offense that determined which version of the Law applied to defendant's sentence. Applying the harsher version of the Law to defendant's conduct that preceded the 2003 amendment violated the Ex Post Facto Clause. Reversed and remanded for re-sentencing. We do not retain jurisdiction. 5 A-0999-16T1

click here to get this case.


Docket No.: a1027-16
Decided: 2018-01-17
Caption: STATE OF NEW JERSEY v. KEITH SCOTT, a/k/a KASAAON R. WILLIAMS
Status: unpublished
Summary:
PER CURIAM Defendant Keith Scott appeals from an October 21, 2016 judgment of conviction after a jury trial. In particular, defendant asserts error in the trial judge's denial of his request to adjourn the trial to seek new counsel and denial of his motion to suppress evidence. We affirm. We discern the following facts from the record on appeal. On July 14, 2014, a Jersey City police officer received a phone call from a confidential informant (CI) regarding an individual in possession of a firearm in public. The CI reported that a black male, wearing a white t-shirt and blue jeans with a handgun in his waistband, was present in the area of an address on Ocean Avenue. The CI had worked with the Jersey City Police Department in the past and had provided reliable information, leading to numerous arrests and many search warrants. The police broadcasted the information over the radio and an officer, who was only two or three blocks away, proceeded to the area in his marked vehicle. Deactivating his lights and sirens when approaching, the officer observed defendant – who matched the CI's description – walking towards him on Ocean Avenue and turning down a side street. The officer parked his vehicle to obscure the suspect's intended path, exited, drew his firearm, and instructed defendant to stop. Defendant complied and immediately raised his hands in the air. Another officer, who arrived to provide backup assistance, observed a bulge in defendant's waistband, patted him down, and removed a firearm. 2 A-1027-16T1 Defendant was arrested within 100 to 125 feet from the location reported by the CI. Additionally, the lead officer testified he did not observe any other individuals wearing a white t-shirt and blue jeans in the area at that time. On December 3, 2014, a Hudson County Grand Jury indicted defendant for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b). Defendant moved to suppress the firearm recovered from his person. After hearing testimony and oral argument, the trial judge denied defendant's motion. Defendant then moved for leave to file an interlocutory appeal and requested a stay of the trial proceedings. The judge denied the motion to stay the trial proceedings, and we denied the motion for leave to appeal. On June 6, 2016, defendant appeared with counsel for a final pretrial conference. With trial scheduled the next day, defendant's counsel informed the judge that defendant wanted to obtain new counsel. The judge denied this request, because granting a continuance for counsel "would be a delay unnecessary in the eyes of the court." Prior to trial, the State dismissed all counts, except second- degree certain persons not to have a weapon. After a short trial, 3 A-1027-16T1 on June 9, 2016, the jury found defendant guilty. On September 30, 2016, after granting the State's motion to sentence defendant to an extended term as a persistent offender, N.J.S.A. 2C:44-3, the trial judge sentenced defendant to twelve years imprisonment with a five-year parole disqualifier. This appeal followed. On appeal, defendant argues: POINT I: DEFENDANT'S REQUEST FOR AN ADJOURNMENT OF THE INITIAL TRIAL DATE IN ORDER TO OBTAIN COUNSEL OF HIS CHOOSING WAS IMPROPERLY DENIED. POINT II: THE COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE. I. Defendant argues the trial judge erroneously denied his request for an adjournment to obtain new counsel by failing to consider and analyze the factors listed in State v. Kates, 216 N.J. 393 (2014), and State v. Furguson, 198 N.J. Super. 395, 401 (App. Div. 1985). The Constitutions of the United States and New Jersey both guarantee an accused the right to have the assistance of counsel. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. An essential element of this right is the right of a defendant to secure counsel of his own choice. Furguson, 198 N.J. Super. at 401 (citing Chandler v. Fretag, 348 U.S. 3 (1954)). "However, the right to retain counsel of one's own choice is not absolute[.]" Ibid. 4 A-1027-16T1 (citation omitted). The trial court has "wide latitude in balancing the right to counsel of choice . . . against the demands of its calendar." United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006). To guide them exercising their discretion, we have instructed trial courts to consider the following factors: the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case. [Kates, 216 N.J. at 396 (citations omitted).] "If a trial court conducts a reasoned, thoughtful analysis of the appropriate factors, it can exercise its authority to deny a request for an adjournment to obtain counsel of choice." Id. at 396-97. "Thus, we underscore that only if a trial court summarily denies an adjournment to retain private counsel without 5 A-1027-16T1 considering the relevant factors, or abuses its discretion in its analysis of those factors, can a deprivation of the right to choice of counsel be found." Id. at 397. "Structural error is not triggered otherwise." Ibid. Here, the record demonstrates the judge determined the State was prepared for trial and the witnesses and jurors were ready. He found defendant lacked a legitimate reason for the eleventh- hour request, noting defendant's counsel had adequately and professionally represented him since the suppression hearing and interlocutory appeal. The trial judge further found there was no change in the case warranting a continuance, explaining that, if anything, the case became simpler because the State just had removed two counts from the indictment. Lastly, acknowledging defendant did not produce new counsel and waited until the eve of trial to make the request, the judge concluded defendant's request was "nothing more than an attempt by [defendant] to delay these proceedings." Accordingly, while the judge's impatience with defendant's request at the start of trial is evident from the record, he did not summarily deny the request. Instead, he adequately undertook the required analysis of the appropriate factors. We discern no abuse of the court's discretion in denying defendant's request for a continuance to seek new counsel on the eve of trial. 6 A-1027-16T1 II. Defendant also contends the trial court erroneously denied his motion to suppress evidence. In particular, defendant argues, among other things, there was a lack of articulable and reasonable suspicion necessary to conduct an investigatory stop, and accordingly, the firearm should be suppressed. "Appellate courts reviewing a grant or denial of a motion to suppress 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). We should be deferential to a trial judge's factual findings because these findings "are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). However, the trial court's legal interpretations will be reviewed de novo. Hubbard, 222 N.J. at 263. "Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004) (citation omitted). To overcome this presumption, the State must show by a preponderance of evidence that the search falls within one of the well-recognized exceptions to the warrant requirement. State v. Maryland, 167 7 A-1027-16T1 N.J. 471, 482 (2001) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). An investigatory stop, commonly referred to as a Terry1 stop, is a valid exception "if it is based on specific and articulable facts which, taken together with the rational inferences from those facts, give rise to a reasonable suspicion of criminal activity[.]" State v. Williams, 192 N.J. 1, 9 (2007) (citing Pineiro, 181 N.J. at 20). When an investigatory stop is based on a CI's tip, the State must establish the reliability of the tip under the totality of the circumstances. State v. Smith, 155 N.J. 83, 92-93 (1998) (citing Illinois v. Gates, 462 U.S. 213, 237 (1983)). The informant's veracity and basis of knowledge for the tip are two highly relevant factors. State v. Caldwell, 158 N.J. 452, 460 (1999) (citation omitted). Veracity may be established by the informant's past instances of reliability. State v. Keyes, 184 N.J. 541, 555 (2005). A sufficient basis of knowledge may be established "if the tip itself relates expressly or clearly how the informant knows of the criminal activity." Smith, 155 N.J. at 94. "Even in the absence of a disclosure that expressly indicates the source of the informant's knowledge, the nature and details revealed in the tip may imply that the informant's 1 Terry v. Ohio, 392 U.S. 1 (1968). 8 A-1027-16T1 knowledge of the alleged criminal activity is derived from a trustworthy source." Ibid. (citing State v. Novembrino, 105 N.J. 95, 115 (1987)). Applying these principles, we discern no basis to disturb the judge's finding that the officers conducted a lawful investigatory stop. The trial judge reasonably determined the CI's tip provided the officers with articulable suspicion to stop defendant. As to the factor requiring veracity, the lead officer testified this CI had previously provided reliable information leading to numerous arrests and search warrants. Turning to the factor concerning the basis of knowledge, the CI provided multiple descriptive details about defendant further indicating the CI was a trustworthy source. The CI informed the officer that defendant was a black male, who was wearing a white t-shirt and blue jeans with a firearm in his waistband, in the area of the Ocean Avenue address. Arriving to this location within two or three minutes, the officer quickly corroborated this information and observed no other person in the vicinity matching the provided description. The officers also properly frisked defendant. After stopping a suspect, a protective search, or frisk, is permissible when an officer reasonably believes the individual is armed and dangerous. Terry, 392 U.S. at 27. The "search is judged by whether a reasonably prudent person would be warranted in the belief that 9 A-1027-16T1 his or her safety or that of others was in danger." State v. Lund, 119 N.J. 35, 45 (1990). The CI's tip reasonably placed the officers on suspicion that defendant was armed. Furthermore, upon stopping defendant, the backup officer observed a bulge in defendant's waistband, which he reasonably believed to be the described firearm. Accordingly, the officers had a reasonable belief that defendant was armed and dangerous. Therefore, the trial court did not err in denying defendant's motion to suppress the evidence. Affirmed. 10 A-1027-16T1

click here to get this case.


Docket No.: a2370-15
Decided: 2018-01-17
Caption: STATE OF NEW JERSEY v. DANTE C. GRANGER
Status: unpublished
Summary:
PER CURIAM Tried by a jury, defendant Dante C. Granger appeals from his conviction for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The jury acquitted defendant of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). The trial court sentenced defendant to a seven-year term of imprisonment with forty-two months of parole ineligibility, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). This appeal followed, with defendant asserting the following arguments warrant reversal: POINT I THE PROSECUTOR ENGAGED IN MISCONDUCT REQUIRING REVERSAL OF GRANGER'S CONVICTION WHEN, IN SUMMATION, HE REPEATEDLY STATED THAT THE POLICE DID NOT HAVE A MOTIVE TO LIE, ENCOURAGED THE JURY TO CONDUCT INDEPENDENT RESEARCH ON GRANGER'S ABILITY TO HIDE THE GUN UNDER HIS FOOT, ARGUED PREJUDICIAL FACTS OUTSIDE THE RECORD CONCERNING THE OFFICERS' ABILITY TO PLANT THE GUN, AND CHARACTERIZED THE DEFENSE AS AN UNREASONABLE STORY. (NOT RAISED BELOW) A. The Prosecutor Engaged in Misconduct Requiring Reversal when He Repeatedly Told the Jury that the Police Had No Motive to Lie. B. The Prosecutor Improperly Encouraged the Jury to Test Granger's Testimony by Conducting Independent Research Regarding Their Ability to Hide the Gun with Their Feet. C. The Prosecutor Argued Facts Outside the Record and Inaccurately Suggested 2 A-2370-15T1 that the Gun Was Previously Involved in a Crime when He Told the Jury that the Police Would Have Had to Remove the Gun from Evidence to Plant It in the Durango. D. The Prosecutor Unfairly Disparaged the Defense and Granger's Credibility when He Repeatedly Referred to the Defense Theory as an Unreasonable Story. E. The Prosecutor's Improper Statements Require Reversal of Granger's Conviction Because They Deprived Granger of a Fair Trial and Were Clearly Capable of Influencing the Jury's Verdict, Particularly on the Issue of Credibility. POINT II GRANGER'S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT APPLIED THE WRONG STANDARD AND ABUSED ITS DISCRETION IN ALLOWING THE STATE TO IMPEACH GRANGER WITH A NEARLY TEN-YEAR-OLD PRIOR CONVICTION THAT WAS NOT RELATED TO CREDIBILITY AND WAS NOT FOLLOWED BY ANY OTHER CONVICTIONS. POINT III THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE STATE TO ELICIT TESTIMONY THAT THE GUN WAS LOADED AND TO INTRODUCE BULLETS INTO EVIDENCE WHEN THEY WERE IRRELEVANT TO THE CASE AND HIGHLY PREJUDICIAL TO GRANGER. (NOT RAISED BELOW) POINT IV IF THE CONVICTION IS NOT REVERSED, THE MATTER MUST BE REMANDED FOR RESENTENCING BECAUSE THE COURT'S SENTENCING FACTORS WERE INCONSISTENT, UNEXPLAINED, AND UNSUPPORTED BY THE RECORD, AND THE SENTENCE WAS BASED ON THE INCORRECT BELIEF THAT A FORTY-TWO-MONTH PERIOD OF PAROLE INELIGIBILITY WAS REQUIRED. 3 A-2370-15T1 A. The Sentencing Court Did Not Explain How It Found Two Aggravating Factors that Were Inconsistent with the Mitigating Factor and Were Unsupported by the Record. B. The Sentencing Court Applied Incorrect Legal Principles and Failed to Exercise Discretion when It Based the Sentence on the Mistaken Belief that a Mandatory Term of Forty-Two Months of Parole Ineligibility Applied. We have considered these arguments in light of the record and applicable legal standards. Because the prosecutor's summation included improper arguments capable of producing an unjust result, we reverse the convictions and remand for a new trial. We begin by summarizing the most pertinent testimony and evidence from the trial record. On January 5, 2013, police discovered a handgun in defendant's vehicle after a motor vehicle stop. The police contend they stopped defendant's vehicle because it was traveling at a "high rate of speed." As one of the officers approached defendant's vehicle, he saw defendant "nervously looking through his rear-view mirror and bend over doing something . . . ." The detective ordered defendant to stop moving and show his hands, and defendant complied. At this time, another officer viewed the interior of the car with his flashlight and saw defendant's "left foot on top of an item." Further observation 4 A-2370-15T1 revealed "a silver trigger guard . . . underneath [defendant's] left foot." Upon making this observation, the officer shouted the police code for a "man with a weapon," and another officer ordered defendant to exit the vehicle. When defendant did not immediately comply, they pulled him from the car and a wrestling match ensued. In addition to the officers who made the stop and arrest, the State presented expert testimony from an identification officer and a ballistics expert. The identification expert testified he did not recover any fingerprints on the gun, but stated it is common not to find any fingerprints. The ballistics expert identified the gun as a semiautomatic pistol, operable and capable of firing live ammunition; however, testing revealed no connection to any prior reported shootings. The parties further stipulated defendant lacked a permit to carry or purchase a firearm. Defendant testified to his version of the events, stating he did not see the officer use his flashlight from his passenger side. Instead, he heard the detective scream a police code, and "the next thing [defendant knew his] door was open and the detectives [were] grabbing [him] trying to snatch [him] out of the truck . . . ." Defendant denied having the gun on the date of his arrest, and claimed the police did not show him the gun during his arrest; instead, he first learned of their discovery of a gun 5 A-2370-15T1 after they secured him in the patrol car. Defendant claimed he did not know the gun was in his vehicle, and he would not have driven the vehicle had he known the gun was inside. I We first address defendant's argument that the prosecutor made improper statements during summation. "[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citing State v. Ramseur, 106 N.J. 123, 322 (1987)). "The prosecution in its summation may suggest legitimate inferences to be drawn from the record, but it commits misconduct when it goes beyond the facts before the jury." State v. Harris, 156 N.J. 122, 194 (1998) (citing State v. Roach, 146 N.J. 208, 219 (1996)). To warrant reversal of a conviction, "the prosecutor's conduct 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. Timmendequas, 161 N.J. 515, 575 (1999) (quoting Roach, 146 N.J. at 219). Where defense counsel fails to object to the challenged comments during summation, it "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Frost, 158 N.J. at 84 (citing State v. Bauman, 298 N.J. 6 A-2370-15T1 Super. 176, 207 (App. Div. 1997)). "The failure to object also deprives the court of an opportunity to take curative action." Ibid. Under those circumstances, the comments should be deemed harmless, unless the comments were "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Bakka, 176 N.J. 533, 548 (2003) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)). Here, defendant contends the prosecutor made repeated inappropriate remarks during summation, depriving him of a fair trial. We agree. Defendant groups the alleged improper remarks into four categories: 1) stating the police had no motive to lie; 2) encouraging the jurors to conduct independent research to test defendant's testimony; 3) stating facts outside of the record; and 4) unfairly disparaging the credibility of the defense. It is well recognized that prosecutors must not tell a jury "police had no motive to lie." Frost, 158 N.J. at 85 (citing State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994)). Nor can prosecutors suggest "police witnesses are believable because of their status as policemen . . . ." State v. Staples, 263 N.J. Super. 602, 606 (App. Div. 1993). Here, the prosecutor repeatedly stated the police had no motive to lie, thereby acting improperly. 7 A-2370-15T1 Also, juries should not be permitted to conduct independent research on the law or the facts of the case. See State v. Morgan, 217 N.J. 1, 14 (2013). Here, the prosecutor encouraged the jurors to conduct their own test regarding covering up the gun with one of their feet, which was also improper. In addition, "prosecutors should not make inaccurate legal or factual assertions during a trial . . . ." State v. Smith, 167 N.J. 158, 178 (2001) (citing Frost, 158 N.J. at 86). Rather, "they must confine their comments to evidence revealed during trial and reasonable inferences to be drawn from that evidence." Ibid. Here, the prosecutor suggested the police would have had to remove the gun from the evidence room in order to plant it in defendant's car. That was an improper comment because the record does not support that inference. The combination of these multiple improper comments by the prosecutor were clearly capable of unjustly influencing the jury. This case depends mainly on the credibility of the police versus the credibility of defendant, amplifying the impact of these improper comments. Therefore, we reverse defendant's conviction and remand for a new trial. We note, however, that we discern nothing improper in the prosecutor referring to defendant's "story" as "unreasonable." Of course, prosecutors may not characterize the defense as 8 A-2370-15T1 "outrageous, remarkable, absolutely preposterous and absolutely outrageous." State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008) (quoting State v. Acker, 265 N.J. Super. 351, 356 (App. Div. 1993)). However, here the use of the words "story" and "unreasonable" did not constitute improper conduct. II We next address defendant's argument that the trial judge improperly admitted evidence of defendant's prior conviction. N.J.R.E. 609 governs impeachment by prior conviction. N.J.R.E. 609(a)(1) states: "For the purpose of affecting the credibility of any witness, the witness's conviction of a crime, subject to [N.J.R.E. 403], must be admitted unless excluded by the judge pursuant to Section (b) of this rule." Where the prior conviction is less than ten years old and the criminal defendant chooses to testify, if the prior conviction is similar to the offense charged, "the State may only introduce evidence of the defendant's prior convictions limited to the degree of the crimes, the dates of the convictions, and the sentences imposed, excluding any evidence of the specific crimes of which defendant was convicted . . . ." N.J.R.E. 609(a)(2). With limited exception, N.J.R.E. 609(b) presumptively excludes evidence of a prior conviction, if the conviction or defendant's release from confinement was more than ten years before the trial date. 9 A-2370-15T1 "[T]he decision of whether a prior conviction may be admitted to impeach a witness 'rests within the sound discretion of the trial judge . . . .'" State v. Harris, 209 N.J. 431, 442 (2012) (quoting State v. Whitehead, 104 N.J. 353, 358 (1986)).1 "[O]rdinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Ibid. Our Supreme Court has consistently held "that prior- conviction evidence has probative value for impeachment purposes . . . ." State v. T.J.M., 220 N.J. 220, 235 (2015). Here, defendant's prior conviction, although close, did not exceed the ten-year threshold at the time of trial. Moreover, because the crime was similar to the offense charged, the trial judge properly sanitized the information pursuant to N.J.R.E. 609(a)(2), so the jury only learned the date and degree of the offense. This sanitized conviction is clearly admissible for impeachment purposes. Therefore, we find the trial judge did not abuse his discretion by admitting the date and degree of defendant's prior conviction for impeachment purposes. 1 In 2014, in the wake of Harris, the Court amended N.J.R.E. 609 to favor the admissibility of prior convictions that are less than ten years old and create a presumption against admissibility of prior convictions that are more than ten years old. 10 A-2370-15T1 III We next address defendant's argument that the trial judge improperly permitted the State to introduce evidence and elicit testimony regarding whether the gun recovered from defendant's car was loaded. Defendant did not object to this evidence, but he now argues it was irrelevant and prejudicial. We agree and find it was improper for the trial court to admit evidence that the gun was loaded. Our review of a trial court's evidentiary ruling "is limited to examining the decision for abuse of discretion." State v. Kuropchak, 221 N.J. 368, 385 (2015) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). Where the defendant fails to object to the admission of evidence at trial, we review the admission for plain error. R. 2:10-2. Under this standard, we disregard the error "unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." Ibid. "The possibility of an unjust result must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Williams, 168 N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). We recently decided State v. Green, 447 N.J. Super. 317 (App. Div. 2016), where we held evidence of bullet possession was 11 A-2370-15T1 improper regarding a drug offense. In Green, the defendant was tried for marijuana offenses; he was also charged with possession of bullets, but that charge was dismissed. Id. at 322 n.3. At trial, a police officer briefly mentioned he found bullets in one of the defendant's rooms. Ibid. Reversing on other grounds, we noted in a footnote, "Although improperly elicited by the prosecutor, this testimony was not sufficiently prejudicial by itself to warrant a new trial, but should be avoided in any retrial." Ibid. Here, several State witnesses testified that the gun was loaded, and the bullets themselves were admitted into evidence. Testimony about the bullets may have supported the credibility of the police; however, the fact that the gun was loaded had no bearing on whether defendant was guilty of the gun possession charge. While the evidence may not have risen to the level of "clearly capable of producing an unjust result," it was significantly prejudicial. R. 2:10-2. Therefore, on retrial, the trial court should not allow evidence regarding whether the gun was loaded. IV Finally, defendant argues the sentencing judge did not sufficiently explain the facts supporting the aggravating and mitigating factors and incorrectly applied a mandatory term of 12 A-2370-15T1 forty-two months of parole ineligibility. For completeness, we address those issues, although we are reversing the conviction. The State concedes the sentencing explanation was insufficient and the trial court applied the incorrect version of the Graves Act. We agree. Our Supreme Court has emphasized, "[i]n fixing a sentence within the statutory range, a judge must determine whether specific aggravating or mitigating factors are grounded in credible evidence in the record and then weigh those factors." State v. Case, 220 N.J. 49, 54 (2014). The trial court must also explain how it conducted the weighing process. Id. at 65. The Court has also emphasized that "mitigating factors 'supported by credible evidence' are required to 'be part of the deliberative process.'" Case, 220 N.J. at 64 (quoting State v. Dalziel, 182 N.J. 494, 505 (2005)). More specifically, the Court has held aggravating factors three and nine "involve determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history." State v. Thomas, 188 N.J. 137, 153 (2006). In addition, courts have held mitigating factors eight, nine, and ten "essentially negate" aggravating factor nine, State v. Briggs, 349 N.J. Super. 496, 505 (App. Div. 2002), and aggravating factor three and 13 A-2370-15T1 mitigating factor nine "overlap," State v. Baylass, 114 N.J. 169, 177 (1989). Also, although courts may find contradictory aggravating and mitigating factors, the findings must be "grounded in competent, credible evidence in the record." See Case, 220 N.J. at 67. Here, the trial judge found aggravating factors three (risk of reoffending) and nine (need for deterrence). The judge also found mitigating factor nine (character and attitude of defendant indicate he is unlikely to reoffend). At sentencing, the judge briefly reviewed defendant's biographical history and noted he had seven prior arrests and one prior indictable conviction. He then simply stated, "I have considered and find the following factors: aggravating factors three and nine . . . ." He found mitigating factor nine and concluded the aggravating factors prevailed. The trial judge failed to explain his basis for finding aggravating factors three and nine, or mitigating factor nine, beyond looking at defendant's criminal history. Furthermore, while it is possible to find contradictory factors, the trial judge failed to explain how he came to the conclusion that both aggravating factor three and mitigating factor nine applied. In addition, the trial judge applied the incorrect version of the Graves Act. Under the current version of the Graves Act, N.J.S.A. 2C:43-6(c), the minimum term of imprisonment for a person 14 A-2370-15T1 convicted of unlawful handgun possession "shall be fixed at one- half of the sentence imposed by the court or [forty-two] months, whichever is greater . . . during which the defendant shall be ineligible for parole." However, this version of the statute did not become effective until August 8, 2013. L. 2013, c. 113, § 2. At the time of defendant's January 2013 arrest, the Act set the minimum term of imprisonment "at, or between, one-third and one- half of the sentence imposed by the court or three years, whichever is greater." L. 2007, c. 341, § 5. The sentencing record shows the judge erroneously applied the later version. Should defendant be found guilty on retrial, the court should apply the version of the Graves Act in effect at the time of defendant's arrest in January 2013. Reversed and remanded for retrial. We do not retain jurisdiction. 15 A-2370-15T1

click here to get this case.


Docket No.: a2398-15
Decided: 2018-01-17
Caption: STATE OF NEW JERSEY v. JAZIR GORDON
Status: unpublished
Summary:
PER CURIAM After his motion to suppress physical evidence was denied without an evidentiary hearing, defendant Jazir Gordon proceeded to trial and was found guilty by a jury of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d; fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f; third-degree resisting arrest by physical force or violence, N.J.S.A. 2C:29- 2a(3)(a); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2). The jury acquitted him of the remaining charges. On the unlawful possession of a firearm conviction, the judge imposed a seven-year term of imprisonment with a forty-two-month period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). The judge imposed concurrent terms on the remaining counts. On appeal, defendant raises the following points for our consideration. POINT I THE TRIAL COURT'S FAILURE TO PROVIDE CORRECT JURY INSTRUCTIONS WAS PLAIN ERROR. ADDITIONALLY, THE TRIAL COURT IMPROPERLY DIRECTED A VERDICT ON COUNT FIVE. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶¶ 1, 10. (NOT RAISED BELOW) 2 A-2398-15T3 POINT II THE TRIAL COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING ON DEFENDANT'S MOTION TO SUPPRESS. U.S. CONST. AMEND. IV, XIV; N.J. CONST. ART. I, ¶¶ 1, 7. POINT III THE SENTENCE WAS EXCESSIVE. U.S. CONST. AMEND. VIII, XIV; N.J. CONST. ART. I, ¶¶ 1, 12. I. At trial, Essex County Sheriff's Detective Angel Cintron testified that on the evening in question, he was surveilling an intersection in Newark after receiving certain information. Cintron saw a man approach defendant and engage in a hand-to-hand transaction, in which defendant exchanged some "item" with the other man and received cash. Defendant began to ride away from the area on his bicycle, and Cintron radioed to backup units present at the scene, and they responded. Detective Anthony Docke intercepted defendant's bicycle with his police vehicle. When defendant saw the detective, he pulled a black handgun from his waistband, tossed it over a fence, dropped his bicycle and ran. Docke retrieved the gun, a .40 caliber semi- automatic that contained four hollow point bullets. Its serial number had been defaced. 3 A-2398-15T3 Sheriff Officer Frank Betts gave chase and ultimately caught and tackled defendant. Betts tried to place handcuffs on defendant, but defendant "flailed his arms around" so the officer could not gain control of his wrists and hands. After defendant was subdued, Betts found four glassine envelopes of heroin in the rear pocket of defendant's shorts. Defendant had two dollars in his front pocket. Before the State rested, the prosecutor read the following stipulation to the jury: Upon request from the Essex County Prosecutor's Office, Detective Sergeant Brett Bloom caused the records of the firearms investigations unit to be thoroughly searched with regard to one Jazir Gordon, date of birth 4/22/95. The search failed to reveal the defendant making an application for, or being issued, a permit to carry a handgun, permits to purchase handguns, a firearms purchaser identification card, or a permit for an assault weapon with respect to the Smith & Wesson model High Point, caliber 40, serial number unknown. The Firearms Investigation Unit cannot conduct a search for firearms in our . . . database without serial numbers. Defendant elected not to testify but called two witnesses, an investigator and the property manager of a building near where the gun was found. Together, they established that surveillance cameras were in place and operational on the day in question, and that law enforcement officers never requested to see the video recordings. 4 A-2398-15T3 II. In Point I, defendant argues the judge committed plain error by omitting two portions of the model charge for unlawful possession of a firearm, Model Jury Charges (Criminal), "Unlawful Possession of a Handgun (N.J.S.A. 2C:39-5b)" (rev. Feb. 26, 2001) (the Model Charge), and by directing a verdict on an essential element of that crime. He asks us to reverse his conviction for the unlawful possession of a firearm and related charges. The judge began his jury instructions by defining some basic principles, including "possession." His language generally tracked Model Jury Charges (Criminal), "Possession (N.J.S.A. 2C:2- 1)" (rev. June 20, 2014). He did not include the following portion of that charge: [WHERE APPLICABLE, charge: Possession cannot merely be a passing control, fleeting or uncertain in its nature.] In other words, to "possess" an item, one must knowingly procure or receive an item or be aware of his/her control thereof for a sufficient period of time to have been able to relinquish his/her control if he/she chose to do so. [Ibid.] When providing instructions as to the substantive crime, the judge reminded the jury that he had already defined "possession." He did not include the following portion of the Model Charge: 5 A-2398-15T3 This possession cannot merely be a passing control that is fleeting or uncertain in its nature. In other words, to "possess" within the meaning of the law, the defendant must knowingly procure or receive the handgun possessed or be aware of his/her control thereof for a sufficient period of time to have been able to relinquish control if he/she chose to do so. The judge also told the jury "that the State must prove beyond a reasonable doubt . . . that . . . defendant did not have a permit to possess such a handgun." He did not include the following portion of the Model Charge: If you find that the defendant knowingly possessed the handgun, and that there is no evidence that defendant had a valid permit to carry such a handgun, then you may infer, if you think it appropriate to do so based upon the facts presented, that defendant had no such permit. Note, however, that as with all other elements, the State bears the burden of showing, beyond a reasonable doubt, the lack of a valid permit and that you may draw the inference only if you feel it appropriate to do so under all the facts and circumstances. Instead, he told the jury: "It is a stipulated fact that defendant had no permit to carry a handgun." Defendant did not object or take exception to the judge's instructions. "Our rules provide that a defendant waives the right to contest an instruction on appeal if he does not object to the instruction. R. 1:7-2. We may reverse on the basis of unchallenged error if we find error that was 'clearly capable of 6 A-2398-15T3 producing an unjust result.' R. 2:10-2." State v. Torres, 183 N.J. 554, 564 (2005). The Court has said that [i]n the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." [State v. Burns, 192 N.J. 312, 341 (2007) (second alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).] The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citing State v. DiFrisco, 137 N.J. 434, 491 (1994)). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, 147 N.J. at 422-23 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, 187 N.J. at 289. While "model jury charges should be followed and read in their entirety to the jury," State v. R.B., 183 N.J. 308, 325 (2005), the omission of instructions on "fleeting possession" was not plain error capable of bringing about an unjust result in this 7 A-2398-15T3 case. Defendant's entire strategy focused on the lack of any evidence, save Detective Docke's testimony, that defendant ever had the gun. In summation, defense counsel emphasized that none of the other officers saw defendant with the gun, there was another person in the area who police never apprehended or questioned, the gun was never processed for fingerprints and police never checked to see if surveillance cameras recorded defendant discarding the weapon, as the State claimed. A charge on "fleeting possession" ran counter to this defense. Defendant's second argument presents a closer question. It is axiomatic that "[t]he prosecution bears the constitutional burden of proving each element of a crime beyond a reasonable doubt." State v. Grenci, 197 N.J. 604, 622 (2009) (citing In re Winship, 397 U.S. 358, 364 (1970); State v. Denofa, 187 N.J. 24, 38 (2006)). "[P]roper explanation of the elements of a crime is especially crucial to the satisfaction of a criminal defendant's due process rights." State v. Burgess, 154 N.J. 181, 185 (1998) (citing State v. Martin, 119 N.J. 2, 15-17 (1990)). It is improper for the judge to relieve the State of its burden to prove an element of any offense, and "when the constitutional deprivation consists of a directed verdict, preservation of the integrity of the right to trial by jury requires reversal." State v. Ragland, 105 N.J. 189, 196 (1986). "A directed verdict results when the 8 A-2398-15T3 court instructs the jury to find the defendant guilty of a particular charge." Grenci, 197 N.J. at 622 (quoting Ragland, 105 N.J. at 202). In Grenci, the defendant was charged with burglary and aggravated assault. The State alleged that he and his co- defendants forced their way into the victim's apartment and engaged in a violent brawl. Id. at 608. The melee followed the victim's earlier visit to the home of the parents of a co-defendant, Fallas; the victim, who had been in an earlier fight with Fallas, told the parents he wanted to talk with their son and would be waiting for him at home. Id. at 609. The defendant was tried in absentia, and defense counsel argued that the brawl was a consensual fight and the defendant had not committed a burglary. Id. at 610. In providing instructions on the elements of burglary, N.J.S.A. 2C:18-2a(1), the judge told the jury without objection that "it's true with regard to [the defendant] that [he] entered [the victim's apartment] without license or privilege to be there." Ibid. The judge contrasted the defendant's position with that of Fallas, by further telling the jury that "there is some evidence here that . . . Fallas may have — it could be inferred that he had license to be there or some type of implied or expressed invitation." Id. at 621. 9 A-2398-15T3 The Court concluded these instructions "directed the jury to find that [the] defendant was not licensed or privileged to enter [the victim]'s apartment." Id. at 622. In concluding this was plain error requiring reversal, the Court said, "[w]e doubt that directing a verdict on an element of an offense can ever be harmless." Id. at 623 (citing Torres, 183 N.J. at 564). Here, the parties entered into a stipulation that the State's search of relevant records failed to reveal defendant had ever applied for or received the requisite firearms permit. The Model Charge explains to the jury how to use this information: "you may infer, if you think it appropriate to do so based upon the facts presented, that defendant had no such permit." Model Jury Charges (Criminal), "Unlawful Possession of a Handgun (N.J.S.A. 2C:39-5b)" (rev. Feb. 26, 2001). It was a mistake for the judge not to provide these instructions, and he further erred by contorting the parties' stipulation and telling the jury it was "a stipulated fact that defendant had no permit to carry a handgun." However, the effect of these errors was ameliorated by the judge's instructions on stipulated evidence. Some of the evidence in this case consists of stipulated facts. A stipulated fact is one that all parties have stated they agree upon as being true. You must regard such stipulations as proper evidence and you may 10 A-2398-15T3 accept the facts therein as having been proven. Remember, however, that you are the sole judges of the facts and even though there's no dispute over these stipulated facts, you must still determine how much weight, if any, to give them in your deliberations. More importantly, unlike the defendant in Grenci, whose defense was undercut entirely by the judge's instructions, for reasons already discussed, defendant's lack of a permit to carry the weapon did not impair the defense in the case, i.e., that defendant never possessed the weapon at all. Indeed, we might assume that defense counsel's failure to object evidenced a conscious strategy. The effect of the judge's mischaracterization of the stipulation and his failure to provide the proper instructions effectively relieved the State of its burden to prove an element of the offense. However, under the particular facts of this case, we conclude this is one of those very rare instances where such error was harmless beyond a reasonable doubt. See R.B., 183 N.J. at 330 ("The harmless error standard thus requires . . . 'some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'") (alterations in original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)). 11 A-2398-15T3 III. In Point II, defendant argues the motion judge, who was not the trial judge, erred by failing to hold an evidentiary hearing on his motion to suppress the drugs and gun seized by police. Neither party has supplied us with the motion and supporting or opposing papers that were filed. As a result, we rely upon the transcript of the proceedings, which began with the judge acknowledging receipt of defendant's notice of motion, the State's brief, and defendant's reply brief. The judge asked if there were any other documents counsel wished him to review; both attorneys answered in the negative. The judge then acknowledged receipt of a "statement of facts from the State, statement of facts from the [d]efense," and asked if either attorney wished to argue. The prosecutor submitted on the papers, as did defense counsel. The judge quoted Rule 3:5-7(c), which states "[i]f material facts are disputed, testimony . . . shall be taken in open court." Relying on State v. Green, 346 N.J. Super. 87 (App. Div. 2001); State v. Kadonsky, 288 N.J. Super. 41, 45-46 (App. Div. 1996), and State v. Hewins, 166 N.J. Super. 210, 214 (Law. Div. 1979), aff'd, 178 N.J. Super. 360 (App. Div. 1981), the judge proceeded to consider defendant's motion by extensively reciting the facts contained in each side's brief. 12 A-2398-15T3 We need not repeat all those facts. It suffices to say that the State alleged Cintron and another officer received information from a confidential informant that a man fitting defendant's description would be selling heroin at a certain intersection, while sitting on a bicycle and armed with a handgun. The balance of the State's version of events mirrored the trial testimony described above. The judge then read defendant's counter-statement of facts: On August 26th, 2013, Mr. Gordon was standing with a group of associates at the intersection of 7th Avenue and Cutler Street in Newark. While at this location, several dark-colored vehicles "came into the lot at a rapid pace." Fearing for his safety, he and several other people ran from the area. Contrary to the incident report and opposition brief, Mr. Gordon never tossed a handgun to the ground. Contrary to the incident report and State's opposition brief, Mr. Gordon stopped when he heard someone yell "police," these officers ran up to the apartment and forced their way inside to find Mr. Gordon. Ms. King1 never gave them permission to enter or search her apartment. Most important, prior to the police entering the parking lot, Mr. Gordon was not engaged in any suspicious behavior that would have warranted the search. 1 It is unclear from the record who "Ms. King" is. 13 A-2398-15T3 The judge concluded, "defendant has failed to place specific material facts in dispute sufficient to warrant an evidentiary hearing. His blanket statement that he was 'not engaging in any suspicious behavior that would have warranted a search' constitutes the conclusory assertion of unconstitutional search deemed insufficient by the Hewins and Kadonsky courts." Citing State v. Moore, 181 N.J. 40 (2004), the judge determined the officers had probable cause to arrest defendant based upon the observed exchange of money for an object. The judge further concluded he "need not address the abandonment doctrine" regarding the firearm, because the seizure of "any object within the constructive possession of defendant at or about the time of arrest would have been incident to the lawful arrest." Defendant does not challenge the legal conclusions reached by the judge, but rather argues his counter-statement raised "contested issues of fact going to the validity of the search." He contends without any supporting legal argument that the judge was required to hold an evidentiary hearing because "[i]f defendant's version of the facts were found to be credible . . . his motion to suppress should have been granted." He urges us to remand for an evidentiary hearing. The State counters by arguing defendant's counter-statement of facts was nothing more than the 14 A-2398-15T3 conclusory statements that the cases cited above hold do not demonstrate material factual disputes requiring a hearing. In our opinion, it was unwise for the judge not to have conducted an evidentiary hearing. As the judge correctly noted, the most critical fact asserted by the State was that officers observed defendant consummate a drug deal, which gave them probable cause to apprehend and arrest defendant. Defendant's counter- statement of facts, however, essentially contested that fact. According to defendant, he was merely standing on a street corner with some associates when police vehicles came upon the scene, causing him to run in fear. However, defendant not only failed to object to the judge rendering a decision on his motion without testimony, but also defense counsel affirmatively submitted the issue for the judge to decide on the papers. Under the invited error doctrine, "trial errors that 'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.'" State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)). Such was the case here. IV. Defendant argues the sentence imposed was excessive. He contends the judge failed to find appropriate mitigating factors, N.J.S.A. 2C:44-1b, and inappropriately weighed defendant's drug 15 A-2398-15T3 abuse and youth against him. The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). "Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). As the Court has reiterated: The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience." [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).] The judge found aggravating factors three and nine. See N.J.S.A. 2C:44-1a(3) (the risk of re-offense); a(9) (the need to deter defendant and others). The record adequately supported both. The judge did not find mitigating factors seven or eight, N.J.S.A. 2C:44-1b(7) (the lack of any history of prior delinquency or criminal activity); and b(8) (defendant's conduct resulted from circumstances unlikely to recur). Defendant claims this was error requiring re-sentencing. However, there was no evidence to support factor eight. As to factor seven, while this was defendant's first conviction, he had a prior juvenile arrest and subsequent adult arrest, neither 16 A-2398-15T3 of which resulted in adjudications of delinquency or conviction. Under the circumstances, the judge did not err by failing to find mitigating factor seven. See State v. Torres, 313 N.J. Super. 129, 162 (App. Div. 1998) (finding no error in not finding mitigating factor seven even though the defendant's two prior juvenile arrests did not result in a "final disposition"). Affirmed. 17 A-2398-15T3

click here to get this case.


Docket No.: a5003-15
Decided: 2018-01-17
Caption: PAMELA COLLINS v. PRESBYTERIAN CHURCH OF TOMS RIVER
Status: unpublished
Summary:
PER CURIAM Presbyterian Church of Toms River (the Church) submitted an application for a use variance to the Township of Toms River Zoning Board of Adjustment (Board), so that it could lease a portion of its parking lot to an off-site automobile dealership for the storage or parking of its automobiles. The Board granted the Church's application. Thereafter, plaintiffs filed an action in lieu of prerogative writs in the Law Division challenging the Board's action on various grounds. The trial court entered an order dated June 6, 2016, which affirmed the Board's action and dismissed the complaint. Plaintiff Jeffrey J. Carr appeals from the trial court's order. For the reasons that follow, we affirm. I. The Church's property is located at Hooper Avenue and Chestnut Street in Toms River Township (Township). The property is within the Township's O-15 zone, and houses of worship are a conditional use in the zone. On the property, the Church maintains a house of 2 A-5003-15T2 worship, nursery school, pre-kindergarten school, and a facility called the "House of Hope." The property has a lot with 474 parking spaces, although the Township's Code only requires 268 spaces. On July 1, 2015, the Church submitted an application to the Board for a use variance that would allow the Church to lease an unused portion of its parking lot to an off-site car dealership for parking and storage of its vehicles. The Church sought permission to lease 127 of the 474 parking spaces in its lot. The Church indicated that it intends to use the funds derived from the lease to subsidize the Church's activities. According to the application, the parking spaces to be leased are located in the "least utilized" area of the lot. On July 2, 2015, the Board's planner drafted and presented the Board with a memorandum regarding the Church's variance request. The planner provided an analysis of the neighborhood and detailed the requirements for the variance. The planner noted that a use variance was required because auto storage is not a permitted use in the O-15 zoning district. On August 13, 2015, the Board conducted a hearing on the application. The Board consists of seven members. Six of the Board's seven members were present for the hearing. The Church 3 A-5003-15T2 presented two witnesses in support of the application: Gary Lotano and David Shipman. Lotano told the Board he has served in various leadership positions with the Church and he is familiar with its activities. He testified that about twenty years earlier, the Board had granted the Church permission to expand the parking lot because church attendance had grown. He stated that the Church no longer required the extra parking spaces due to a gradual decline in attendance. Lotano noted that under the proposed lease, the auto dealership would be restricted to the use of certain entrances. Lotano said that based on the Church's previous experience, the proposed use would not have a significant impact upon traffic in the neighborhood. He stated that the Church would not allow the dealership to move cars into the lot by truck, and it would only be allowed to move vehicles into the lot, one at a time. Shipman stated that he has also held various leadership positions with the Church. He said that during the previous twenty years, the Church's membership had been declining. He noted that the income generated from the lease would contribute to the Church's budget. Members of the public were permitted to comment, and they voiced concerns about the effect the proposed use would have on the neighborhood where the Church is located. Carr, who is a 4 A-5003-15T2 resident of the Township and President of the Township's Council, opposed the application. He noted that the Township's zoning ordinance did not allow the storage of bulk motor vehicles in the O-15 zone. Carr said if the Board granted the application, the Church would be "running what is tantamount to a business." He added that the Church had not presented any engineering or planning testimony in support of the application. He said the Church was required to present proof of "special reasons, proof of hardship or something [of] the planning nature" in order to obtain the variance. After some Board members indicated that any approval would be subject to certain conditions, the members called for a vote. Before the vote, the Church's attorney indicated he understood only six members would be voting on the application. The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, provides that a use variance may be granted only if approved by five members of a seven-member board. N.J.S.A. 40:55D-70(d). After four members of the Board voted in favor of the application, and one member voted against, the sixth member abstained. The member who abstained explained that she was doing so because of Carr's participation in the hearing, which she had not anticipated since he often attends the Board's meetings. 5 A-5003-15T2 The member noted that she and Carr are members of the Township's Land Use Committee, and during the hearing, Carr had been asked about the Committee's discussions. The member stated that if she had known Carr would be asked about those discussions, she would have recused herself at the very beginning of the hearing. She believed it would be unethical and improper for her to vote on the application. The Church's attorney told the Board that if he had been asked if he wanted to proceed to a vote with only five voting members, he would have said "No." The Board's attorney noted that the Board member's abstention is considered a vote against approving the application. The Church's attorney asked the Board to cancel the vote, and have another member listen to a tape recording of the hearing and vote on the application. The Board continued the matter to its next meeting. That meeting took place on September 10, 2015. The Board determined that the Church was entitled to a vote by the full Board with seven eligible Board members. The Board member who had been absent from the August 13, 2015 meeting was present. He indicated that he had listened twice to a taped recording of the August 13, 2015 hearing. He voted in favor of the application. 6 A-5003-15T2 The Board recorded the vote as five in favor, one opposed, and one abstention. The Board determined that the Church's application had received the required number of affirmative votes and was approved. The Board memorialized its decision in a resolution dated September 24, 2015. Thereafter, plaintiffs filed this action seeking to invalidate the Board's action. The Law Division judge considered the appeal on April 20, 2016, and filed a written opinion dated May 23, 2016, finding that there was sufficient credible evidence in the record to support the Board's decision to grant the Church the use variance and that the Board's action was not arbitrary, capricious, or unreasonable. The judge also found that the Board did not abuse its discretion by continuing the matter so that six eligible Board members could vote on the application. The judge entered an order dated June 6, 2016, affirming the Board's action and dismissing the complaint. Carr's appeal followed. On appeal, Carr argues that: (1) the Board's approval of the Church's application was invalid because the application failed to receive five affirmative votes on August 13, 2015, as required by the MLUL; (2) the Board's action in adjourning the matter and continuing the vote at the September 10, 2015 meeting was not authorized by the MLUL, and it was arbitrary, capricious, and 7 A-5003-15T2 unreasonable; (3) the Board's action in granting the use variance was arbitrary, capricious, unreasonable, and unsupported by the record; and (4) the Board's determination that the proposed lease of the Church's property was for an inherently beneficial use was arbitrary, capricious, unreasonable, and contrary to the record. II. We begin our consideration of the appeal by noting several well-established principles. "[M]unicipalities are authorized to impose conditions on the use of property through zoning by a 'delegation of the police power' that must 'be exercised in strict conformity with the delegating enactment – the MLUL.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95, 101 (2011)). "The MLUL exhibits a preference for municipal land use planning by ordinance rather than by variance, which is accomplished through the statute's requirements that use variances be supported by special reasons, and by proof of the negative criteria." Ibid. (citations omitted). Generally, zoning boards "must be allowed wide latitude in the exercise of delegated discretion" in these matters "because of their peculiar knowledge of local conditions." Ibid. (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)). A zoning board's decision is entitled to "a presumption of validity, and a 8 A-5003-15T2 court may not substitute its judgment for that of the board unless there has been a clear abuse of discretion." Ibid. (citing Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002)). Therefore, a party challenging that grant or denial of a variance must "show that the zoning board's decision was 'arbitrary, capricious, or unreasonable.'" Ibid. (quoting Kramer, 45 N.J. at 296). Although the court's standard of review is deferential, the board "may not, in the guise of a variance proceeding, usurp 'the legislative power reserved to the governing body of the municipality to amend or revise the [zoning] plan.'" Id. at 285 (quoting Feiler v. Fort Lee Bd. of Adjustment, 240 N.J. Super. 250, 255 (App. Div. 1990)). III. We turn first to Carr's contention that the Church's application was denied on August 13, 2015, when the application failed to receive five affirmative votes, as required by N.J.S.A. 40:55D-70(d). Carr contends the Board did not have authority under the MLUL to adjourn the matter and continue the vote at the September 10, 2015 meeting, so that another eligible member could vote on the application. He argues that the Board's action is arbitrary, capricious, and unreasonable. We disagree. 9 A-5003-15T2 "Municipal boards of adjustment created under N.J.S.A. 40:55D-69 have seven members, and they may have up to four alternates." D. Lobi Enters., Inc. v. Planning/Zoning Bd. of Borough of Sea Bright, 408 N.J. Super. 345, 352 (App. Div. 2009). As noted, the MLUL provides that a use variance under N.J.S.A. 40:55D-70(d) may be granted "only by affirmative vote of at least five members" of the seven-member board. "Thus, for a seven member municipal board of adjustment, five out of seven votes is necessary to approve a [N.J.S.A. 40:55D-70(d)] variance." D. Lobi Enters., 408 N.J. Super. at 353. N.J.S.A. 40:55D-10.2 also provides that a board member "who was absent for one or more of the meetings at which a hearing was held or was not a member of the municipal agency at that time, shall be eligible to vote on the matter upon which the hearing was conducted." The member may vote provided "the transcript or recording of all of the hearing from which [the member] was absent or was not a member" has been made available, and the member has "certifie[d] in writing to the board that he [or she] has read such transcript or listened to such recording." Ibid. We reject Carr's contention that the Board acted arbitrarily, capriciously, and unreasonably in adjourning the matter and continuing the vote on September 10, 2015, with the participation by the Board member who was not present at the August 13, 2015 10 A-5003-15T2 meeting. As we have explained, at the August 13, 2015 meeting, six Board members were present, and the Church's attorney agreed to a vote on the application, with the expectation that all six members present would be voting. However, after five of those six members voted, the sixth member unexpectedly abstained from voting due to a perceived conflict of interest. The Church's application only garnered four affirmative votes, which was one short of the five votes required by N.J.S.A. 40:55D-70(d) for a use variance. On appeal, Carr asserts that the Board member who abstained from voting had sixteen years of experience on the Board, and she has been the Chairperson for six years. He asserts that the member presided at the August 13, 2015 meeting, and called for a vote before she abstained. He contends that the vote taken at the August 13, 2015 meeting should have been considered final. The fact remains, however, that the Board member abstained from voting on the application after five other members voted, and before the vote, the member did not indicate she would do so. As the Law Division judge noted in her opinion, it is unnecessary to decide whether the member's recusal was required. The member abstained and her vote was not an affirmative vote on the application. Mann v. Housing Authority of Paterson, 20 N.J. Super. 276, 279 (App. Div. 1952). 11 A-5003-15T2 In her opinion, the judge noted that no provision in the MLUL directly addresses this situation. The judge found that the Board acted properly in carrying the matter to the next meeting and allowing another Board member to participate in the vote. The judge explained: This is not a case where the Board or its members sought to unfairly manipulate a vote. The Board sought a fair and impartial method to resolve this unusual development and at the same time to give the applicant what it originally represented it would have: [t]he benefit of a vote by [six] eligible members of the Board. Under the unique circumstances of this case, the [c]ourt cannot conclude that the procedure adopted by the Board in extending the vote to another date was the product of any illegal and illicit manipulation of the process[,] which would have certainly rendered the ultimate decision of the Board to be arbitrary, capricious or unreasonable. The judge found that the Board acted in good faith to preserve the integrity of the hearing process and that such action was "clearly within" the Board's discretion. The judge noted that if the Board had not granted the continuance, there was a risk the Church would have been deprived of a fair hearing and the procedural protections afforded to it under the MLUL. The judge found the Board's solution "preserved the rights of all interested parties to a fair and complete hearing, as well as a vote on the 12 A-5003-15T2 application in a manner anticipated by the public as well as the applicant." The judge commented that the better practice would be for a Board member who is compelled to abstain to make an "early announcement" of the abstention. However, when a conflict arises during the hearing, which the Board has not reasonably anticipated, the Board has "the right to take steps to ensure the integrity of its decision while affording appropriate notice to the applicant." The judge found that the Board's decision to adjourn the matter and continue the vote at the next meeting with the addition of another eligible member was appropriate under the circumstances. We agree with the judge's analysis. We likewise conclude that the Board did not abuse its discretion by adjourning the vote and allowing a seven-person Board to vote on the application. No provision of the MLUL precluded the Board from handling the application in this manner. The Board's action was not arbitrary, capricious, or unreasonable. IV. Next, Carr argues that the Board's action in granting the use variance to the Church was arbitrary, capricious, unreasonable, and unsupported by the record. Carr contends the Church failed to establish special reasons for the grant of the variance and the trial court erred by affirming the Board's action. 13 A-5003-15T2 An applicant seeking a use variance has the burden to "prove both positive and negative criteria" to a zoning board. Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998). N.J.S.A. 40:55D-70(d)(1) authorizes a zoning board, "[i]n particular cases for special reasons, [to] grant a variance to allow departure from regulations pursuant to . . . [the MLUL] to permit . . . a use or principal structure in a district restricted against such use or principal structure." The term "special reasons" is not defined in N.J.S.A. 40:55D-70(d). The courts, however, have recognized three categories in which "special reasons" may be found. Nuckel, 208 N.J. at 102 (citing Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006)). These categories are: (1) where the proposed use inherently serves a public good; (2) where the owner of the property would suffer an "undue hardship" if required to use the property in the manner permitted by the zoning ordinance; and (3) where the use would serve the general welfare because the site is particularly suitable for the proposed use. Ibid (citing Saddle Brook Realty, 388 N.J. Super. at 76). In addition, N.J.S.A. 40:55D-70 provides that no variance or other relief can be granted under this section of the MLUL "without a showing that such variance or other relief can be granted without 14 A-5003-15T2 substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." The applicant for a use variance must establish this negative criteria with an enhanced quality of proof. Price, 214 N.J. at 286 (citing Medici v. BPR Co., 107 N.J. 1, 21 (1987)). The applicant must focus "on the effect that granting the variance would have on the surrounding properties." Price, 214 N.J. at 286 (quoting Medici, 107 N.J. at 22 n.12). The applicant "must reconcile the grant of the variance for the specific project at the designated site with the municipality's contrary determination about the permitted uses as expressed through its zoning ordinance." Ibid. (citing Medici, 107 N.J. at 21). On appeal, Carr argues that the Board erred by finding that the proposed use of the Church's property is for an inherently beneficial use. We agree. The proposed use of a portion of the Church's parking lot does not meet the generally accepted view of an inherently beneficial use. Parking and storage of automobiles by an off-site auto dealership is not an inherently beneficial use. Moreover, such use is not ancillary to the Church's use of the property for church-related purposes. We recognize that the lease of the underutilized section of the parking lot will generate funds that will be applied to subsidize the Church's operations. This does not convert the 15 A-5003-15T2 commercial use of the property to one that is inherently beneficial. Indeed, under that theory, almost any use of the Church's property would be considered an inherently beneficial use. We conclude that the variance cannot be justified on the ground that the proposed use is for an inherently beneficial purpose. Nevertheless, we are convinced that the Church established "special reasons" for the variance by showing that the underutilized section of its parking lot is "particularly suitable for the proposed use." Nuckel, 208 N.J. at 102 (citations omitted) (quoting Saddle Brook Realty, 288 N.J. Super. at 76). As the trial court found, the proposed use is indistinguishable from the present, permitted use of the lot for parking. Moreover, the Board imposed conditions in its resolution, which are intended to ensure that the proposed use has a minimal impact upon the surrounding properties. Those conditions are: (1) the applicant must design a barrier to designate the area of the property where the leased parking spaces are located; (2) no more than six vehicles per hour may be transported to the property; (3) there can be no bulk movement of vehicles or any car carriers or other delivery of numerous vehicles to the site at one time; (4) the parking spaces will be numbered and the applicant may not use beepers or alarms on the vehicles; and (5) members of the public 16 A-5003-15T2 will not be permitted to inspect the vehicles at the site, nor will any sales activity be permitted on the property. Carr argues that the Church failed to meet its burden of proof of showing that it would be a hardship for the Church to comply with the zoning ordinance, but the Church did not seek to establish "special reasons" on the basis of a hardship. Carr further argues that the Church did not present sufficient evidence to show that the proposed use is inherently beneficial; however, as the trial court found, the variance is justified because the site is particularly suited to the proposed use. In addition, Carr contends that the Church failed to show that the variance would advance one of the purposes of the MLUL and did not show that the benefits from granting the variance would outweigh any detrimental impact. Carr argues that the Church failed to present any experts in the field of planning to support its variance application. The judge correctly found, however, that because the proposed use is not substantially different from the present allowed use of the property, no expert testimony was required. The proposed use is indistinguishable from its present use, and the record shows that the variance could be granted without any substantial 17 A-5003-15T2 detriment to the zoning ordinance or the zone plan. Affirmed. 18 A-5003-15T2

click here to get this case.


Docket No.: a0032-16
Decided: 2018-01-16
Caption: STATE OF NEW JERSEY v. AHMAD JOHNSON
Status: unpublished
Summary:
PER CURIAM Defendant appeals from the July 21, 2016 Law Division order denying his petition for post-conviction relief (PCR). We reverse and remand for an evidentiary hearing. We incorporate herein the procedural history and facts set forth in our prior opinion on defendant's direct appeal from his conviction on the underlying offenses. State v. Johnson, No. A- 6238-09 (Mar. 27, 2013) (slip op. at 1-14), certif. denied, 216 N.J. 13 (2013). The parties are fully familiar with this history and, therefore, we need not repeat it here. In support of his PCR petition, defendant submitted his own certification, a certification from his trial attorney, and written statements from five other individuals. Among other things, defendant relied upon these certifications to allege that his trial attorney provided him with ineffective assistance because the attorney: (1) did not object to the judge's decision to modify the Administrative Office of the Court's (AOC's) directives governing how a judge must conduct the jury voir dire process; (2) failed to object to the judge's alleged cursory voir dire of a juror who was a casual acquaintance of one of the State's witnesses; (3) failed to call available witnesses who would have provided testimony that contradicted the accounts provided by the State's witnesses; (4) did not call a witness who would have provided an alibi for defendant; and (5) failed to ensure that defendant was able to meaningfully participate in the sidebar discussions with the judge. Defendant also argued that his 2 A-0032-16T3 attorney on his direct appeal was ineffective because he did not raise these and other contentions in his appellate brief. The PCR judge rejected all of defendant's allegations without conducting an evidentiary hearing. In his decision, the judge discounted the assertions raised by defendant and the six individuals who provided certifications and statements. The judge found that the information contained in the statements did not match his own recollection of what transpired at trial, 1 or was inconsistent with the trial testimony of the State's witnesses. Therefore, the judge concluded that defendant did not meet either prong of the Strickland test. Strickland v. Washington, 466 U.S. 668, 687 (1984). This appeal followed. On appeal, defendant raises the following contentions: POINT I THIS COURT SHOULD REVERSE THE TRIAL COURT'S DECISION TO FIND ITS NUMEROUS INTENTIONAL VIOLATIONS OF THE LAW GOVERNING JURY SELECTION WERE NOT REVERSIBLE ERRORS. POINT II THE TRIAL COURT'S DECISION TO DENY DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING VIOLATED PORTER, PYATT, CUMMINGS, AND O'DONNELL. (PARTIALLY CONSIDERED BELOW) 1 The PCR judge also presided at defendant's trial on the charges involved in this matter. 3 A-0032-16T3 POINT III THIS COURT SHOULD REVERSE THE TRIAL COURT'S DECISION TO DENY DEFENDANT'S CHALLENGE TO HIS EXCLUSION FROM SIDEBAR CONFERENCES. POINT IV THIS COURT SHOULD REVERSE THE TRIAL COURT'S DECISION TO HOLD DEFENDANT'S CHALLENGES TO HIS TRIAL AND APPELLATE ATTORNEYS' FAILURES TO ADDRESS POTENTIAL JURY TAINT WERE WITHOUT MERIT AND PROCEDURALLY BARRED. POINT V THIS COURT SHOULD REVERSE THE TRIAL COURT'S DECISION TO HOLD DEFENDANT'S SIXTH AMENDMENT CONFRONTATION CLAUSE ARGUMENT WAS PROCEDURALLY BARRED. POINT VI THIS COURT SHOULD REVERSE THE TRIAL COURT'S DECISION TO HOLD DEFENDANT'S CHALLENGE TO THE TRIAL COURT'S FAILURE TO PROVIDE A CROSS- RACIAL IDENTIFICATION CHARGE WAS PROCEDURALLY BARRED. When petitioning for PCR, the defendant must establish "by a preponderance of the credible evidence" that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the 4 A-0032-16T3 deficiency prejudiced his right to a fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 60-61 (1987). The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance, material issues of disputed facts lie outside the record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. Preciose, 129 N.J. at 462. When determining whether to grant an evidentiary hearing, the trial judge must consider the facts in the light most favorable to the defendant. Id. at 462-63. "If there are disputed issues as to material facts regarding entitlement to post-conviction relief, a hearing should be conducted." State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000). Applying these principles, we conclude that the PCR judge mistakenly exercised his discretion by denying defendant's request for an evidentiary hearing. As our Supreme Court stated in Porter: 5 A-0032-16T3 Certain factual questions, "including those relating to the nature and content of off-the- record conferences between defendant and [the] trial attorney," are critical to claims of ineffective assistance of counsel and can "only be resolved by meticulous analysis and weighing of factual allegations, including assessments of credibility." [State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998).] These determinations are "best made" through an evidentiary hearing. Ibid. [Porter, 216 N.J. at 355 (first alteration in original).] Moreover, the testimony of an alibi witness, when supported by the witness's affidavit or certification, should usually not be dismissed as not credible without an evidentiary hearing. See State v. Jones, 219 N.J. 298, 314 (2014) ("Although the timing and motivation of [the alibi witness's] statement and her reasons for not voluntarily appearing to testify as apparently had been expected [to] raise important questions, those questions cannot be assessed and resolved without determining credibility."); Porter, 216 N.J. at 356 (2013) ("The court's findings regarding defendant's and his girlfriend's credibility, based only on their affidavits, was an improper approach to deciding this PCR claim and effectively denied defendant an opportunity to establish ineffective assistance of trial counsel."). "Even a suspicious or questionable affidavit supporting a PCR petition 'must be tested for credibility and cannot be summarily rejected.'" Id. at 355 6 A-0032-16T3 (quoting State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008)). Here, defendant submitted a number of certifications and statements supporting his PCR petition that could only be properly assessed by conducting an evidentiary hearing and making credibility determinations based on the testimony provided by the affiants. Under the idiosyncratic circumstances of this case, an evidentiary hearing was also necessary to ferret out the facts and possible strategies underlying the actions of defendant's trial and appellate attorneys in connection with defendant's claims of ineffective assistance. Therefore, we reverse and remand for an evidentiary hearing on all of the assertions raised by defendant in his PCR petition. In remanding, we express no view on the merits of any of defendant's contentions. Reversed and remanded. We do not retain jurisdiction. 7 A-0032-16T3

click here to get this case.


Docket No.: a0386-16
Decided: 2018-01-16
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.H IN THE MATTER OF A.W., a minor
Status: unpublished
Summary:
PER CURIAM Defendant P.H. (Paula)1 appeals the October 1, 2015 order2 of the Family Part entered following a trial that found she abused or neglected her child, A.W. (Alice), contrary to N.J.S.A. 9:6- 8.21(c)(4)(b), by inflicting excessive corporal punishment. We affirm the trial court's order, which was supported by substantial credible evidence in the record. I In May 2015, the Division of Child Protection and Permanency (Division) filed an order to show cause and verified complaint under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, and Title Thirty, N.J.S.A. 30:4C-12, alleging abuse or neglect and seeking care and supervision of Alice. Paula was named as a defendant as well as Alice's father, O.W. (Otto).3 At the fact-finding hearing on October 1, 2015, the Division caseworker testified that in March 2015, when Alice was sixteen, Paula saw a sexually explicit text on Alice's phone. A physical 1 We have used fictitious names and initials to maintain the confidentiality of the parties. See R. 1:38-3(d)(12). 2 This appeal was filed after the underlying litigation was terminated by order dated August 17, 2016. Paula challenges only the October 1, 2015 order. 3 Although O.W. did not reside with Paula, he shared joint legal custody of Alice. 2 A-0386-16T2 altercation ensued when Alice refused to give the cellphone to Paula, prompting other residents of the household to call the police. The police officers who responded contacted the Division. Because of Paula's lack of cooperation, the Division caseworker could not immediately interview Alice. When she did, Alice told the caseworker that Paula physically disciplined her with a belt and that sometimes it left a mark or bruise; Alice did not have any visible bruises at the time. At other times, her mother disciplined her by taking away things. Alice said she was not afraid of her mother. Paula admitted she disciplined Alice using a belt and that being hit with a belt was going to leave marks and bruises. She used corporal punishment to discipline Alice when she did not behave in school or was not doing her homework. Paula would not agree to refrain from this form of discipline, maintaining that she would discipline Alice as she chose. After this incident, Paula did not arrange mentoring, counseling, or other services for Alice that were recommended by the Division. The Division had previous contact with Paula and Alice. The verified complaint alleged that in 2010, the Division investigated an allegation of physical abuse and alcohol use by Paula, but the Division closed its case, concluding the allegation was unfounded. 3 A-0386-16T2 In 2011, the Division investigated another referral about physical abuse. Alice told the caseworker that Paula struck her with a belt once a week for not completing her chores at the house. Her mother hit her with a belt just a few days earlier for making breakfast to eat after school instead of lunch. The caseworker did not find any visible bruises or abrasions. Paula admitted using a belt to discipline Alice and hitting her on her legs or arms; she also claimed to use other forms of discipline that did not involve corporal punishment, such as taking things away from Alice or not letting her watch television. The Division caseworker urged Paula to consider using other more appropriate means of discipline. Ultimately, the Division concluded the allegation of abuse was unfounded. In 2012, Alice called the Division herself, asking to be removed from the home; Paula joined on the call. Paula told the Division she just had struck her daughter with a belt because she did not want Alice to go out of the house when she was not there. Paula admitted to striking Alice with a belt, while the child was dressed only in her underwear. Although Paula claimed she intended to hit Alice only on the buttocks, she hit other areas of the child's body and may have left welts. Paula called back later saying that all of this was a mistake to scare her daughter. The Division's investigation found no bruises or marks, and Paula 4 A-0386-16T2 denied any current physical discipline. The Division again concluded that the allegations were unfounded. The present complaint was filed in 2015. At the conclusion of the October 1, 2015 fact-finding hearing, the Family Part judge found the Division's caseworker's testimony "extremely credible." Based on her unrebutted testimony, the court found the Division had proven Paula used "physical abuse and excessive corporal punishment" by a preponderance of the evidence. Referring to Paula, the court found "there are admissions by the parties saying that she did it and that she wasn't gonna change, that she was gonna continue to do it." The court thus decided there was a "substantial risk of harm," finding that "there's a parent who has used excessive corporal punishment and intends to continue using it based on her own admission." On appeal, Paula contends that the trial court's findings were not supported by substantial credible evidence in the record. Paula claims the court did not consider the circumstances of the situation nor was there any evidence of excessive corporal punishment. According to Paula, the trial court considered any use of a belt for discipline to be excessive per se. Paula claims the judge was biased against her and should have recused himself. In addition, she argues it was error to order that she could not use any corporal punishment. She asserts there was no evidence 5 A-0386-16T2 to support a finding of neglect. The Division and the Law Guardian ask that we affirm the decision of the trial court that found abuse and neglect.4 II "[W]e accord great deference to discretionary decisions of Family Part judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in recognition of the "family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, 154 N.J. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). We defer to credibility assessments made by a trial court unless they are manifestly unsupported by the record because the trial court had the critical ability to observe the parties' conduct and demeanor during the trial. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). "[W]e review the 4 At the trial, the Law Guardian asserted Alice's position, which was that she did not want a finding of abuse and neglect against her mother. On appeal, the Law Guardian for Alice contends that the finding of abuse and neglect should be sustained. Paula has not argued that the Law Guardian should be judicially estopped from taking this position on appeal. See Ali v. Rutgers, 166 N.J. 280, 287-88 (2000). 6 A-0386-16T2 judge's legal conclusions de novo." N.J. Div. of Child Prot. & Permanency v. A.B., __N.J.__, __ (2017) (slip op. at 19) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "The focus of Title [Nine] is not the culpability of parental conduct but rather the protection of the children." A.B., __ N.J. __ (2017) (slip op. at 18) (citations omitted). "The paramount concern of Title [Nine] is to ensure the safety of the children, so that the lives of innocent children are immediately safeguarded from further injury and possible death." Ibid. (citations omitted). Under Title Nine, an "abused or neglected child" means a child under the age of eighteen, whose parent or guardian . . . (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; . . . (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired [by a parent's failure] to exercise a minimum degree of care . . . (b) . . . by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment . . . . [N.J.S.A. 9:6-8.21(c) (emphasis added).] 7 A-0386-16T2 Whether a parent has committed abuse or neglect "must be 'analyzed in light of the dangers and risks associated with the situation.'" N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 153 (App. Div. 2014) (quoting N.J. Dep't of Children & Families v. R.R., 436 N.J. Super. 53, 58 (App. Div. 2014)). Claims of abuse and neglect are evaluated "by looking to the harm suffered by the child, rather than the mental state of the accused abuser." N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010). The cases are fact sensitive. "'Excessive corporal punishment' is not specifically defined in Title Nine." Id. at 510. Although "a parent may inflict moderate correction such as is reasonable under the circumstances of a case," that which is excessive goes "beyond what is proper or reasonable." Id. at 510-11. The circumstances of the case need to be examined. See id. at 512. In M.C. III, 201 N.J. at 345, where the father of two children hit and choked them, the Court concluded that the finding of abuse and neglect was supported because the father's actions "disregarded the substantial probability that injury would result from his conduct." Whether harm to the children was intended was not relevant. See ibid. In N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322 (App. Div. 2007), we found no error in the trial court's 8 A-0386-16T2 decision that the corporal punishment was contrary to Title Nine where a parent hit her six-year-old son with a belt, resulting in a welt under his eye, because his report card said he was disrespectful of others. In N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 481 (App. Div. 2010), we agreed with the Division that it was not reasonable to hit a five-year-old child with a paddle in the face, arms, and legs because the child told a neighbor that his home had no electricity. We found that child was in "imminent danger" of becoming impaired "because of the unreasonable infliction of corporal punishment . . . established by [the parent's] admitted use of corporal punishment regularly . . . as a form of punishment and her belief that no one could tell her how to discipline her own child." Ibid. In N.J. Div. of Youth & Family Servs. v. S.H., 439 N.J. Super. 137 (App. Div. 2015), we found the corporal punishment was excessive where a parent caused injuries by hitting her fifteen- year-old with her fist and a golf club and biting him when he showed her oppositional behavior. This was in contrast to K.A., 413 N.J. Super. at 511, where we reversed a finding of abuse or neglect against a parent who hit her child on the shoulder with her fist and caused bruising. In that case, there was no injury or pattern of abuse, the child was 9 A-0386-16T2 psychologically disruptive, and lesser forms of discipline had not worked. Similarly in N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 36 (2011), the Court did not find excessive corporal punishment where the parent occasionally slapped a teenager in the face and did not leave bruises or marks. Here, we agree that the trial court's decision was supported by the record and consistent with the case law. The Division's caseworker was found to be extremely credible. She testified Paula admitted hitting Alice with a belt for discipline, which was not limited to one part of her body. Although there was no documented evidence of bruises and welts, Paula admitted that bruises and welts occurred in the past. Paula's indiscriminate use of a belt to discipline Alice disregarded the substantial probability that she could be injured, similar to M.C. III, because she hit the child as punishment for years, did not restrict what body part she struck, and refused to curtail that or accept counseling. Although the child showed oppositional behavior, Paula's response was not an isolated incident as in K.A. In addition, Paula did not express remorse for hitting Alice and refused counseling for herself and her daughter, in sharp contrast to the parent's disposition in K.A. As we noted, "K.A. accepted 10 A-0386-16T2 full responsibility for her actions, was contrite, and complied with Division-sponsored counseling." 413 N.J. Super. at 512. The facts in this case are more akin to the salient facts in C.H. Here, Paula regularly disciplined Alice by hitting her with a belt and steadfastly refused to accept counseling to explore other reasonable alternatives. Paula's defiance and her unwillingness to recognize the abusive aspect of her disciplinary methods formed the basis for the Family Part's conclusion that she posed a substantial risk of harm to Alice within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). We are satisfied the record had sufficient evidence to support the court's conclusion that Paula abused or neglected Alice within the meaning of N.J.S.A. 9:6- 8.21(c)(4)(b) by repeatedly hitting her with a belt over minor issues and refusing to stop or accept counseling. For the first time on appeal, Paula raises the issue that the trial judge should have recused himself prior to trial because of bias. "Generally, an appellate court will not consider issues . . . which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). We thus decline to consider this argument. The trial judge should have had the opportunity to address the issue directly. Even if the issue had been properly raised, our review of the record shows no basis for recusal. 11 A-0386-16T2 After carefully reviewing the record and the applicable legal principles, we conclude that Paula's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 12 A-0386-16T2

click here to get this case.


Docket No.: a0639-15
Decided: 2018-01-16
Caption: STATE OF NEW JERSEY v. GARY S. HARRIS
Status: unpublished
Summary:
PER CURIAM Defendant Gary S. Harris appeals from an August 24, 2015 order of the Law Division denying his petition for post-conviction relief (PCR) couched as a "motion for a new trial."1 Defendant argues he was deprived of a fair trial based upon ineffective assistance of counsel and other constitutional violations. Defendant also contends that the motion judge erred by deciding his motion without oral argument. We disagree and affirm. The facts resulting in defendant's conviction and sentence are set forth in our opinion in State v. Harris, No. A-7683-95 (App. Div. Jan. 5, 1998), certif. denied, 156 N.J. 386 (1998). In his direct appeal, defendant raised eight arguments. We rejected defendant's arguments on appeal and affirmed his conviction. Defendant's petition for certification was denied on June 30, 1998. We need not repeat the facts leading to defendant's conviction. However, we detail defendant's judicial filings since his conviction as those filings are pertinent to this appeal. In or around May 2000, defendant filed his first PCR petition, arguing that his trial and appellate counsel were ineffective and that his trial counsel had a conflict of interest. An evidentiary 1 This is defendant's seventh attempt to overturn his conviction/sentence. His arguments in this appeal are duplicative of claims previously raised and adjudicated before other courts. 2 A-0639-15T2 hearing was conducted. On June 6, 2000, the judge denied PCR relief. Defendant appealed the denial of his first PCR petition. On appeal, defendant argued his trial counsel had an alleged conflict of interest and failed to move for dismissal of the indictment. We affirmed the denial of defendant's first PCR petition on October 29, 2002. Defendant's petition for certification was denied. See State v. Harris, No. A-6184-99 (App. Div. Oct. 29, 2002), certif. denied, 176 N.J. 279 (2003). On May 5, 2004, defendant filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. Before the federal court, defendant argued that his trial counsel had a conflict of interest, his appellate counsel was ineffective in failing to raise the conflict issue, and the trial was tainted by prosecutorial misconduct. On November 29, 2005, the federal court dismissed the petition, with prejudice, as untimely. Harris v. Hendricks, No. 04-2125, 2005 U.S. Dist. LEXIS 30201 (D.N.J. Nov. 29, 2005). In or around February 2007, defendant filed a motion to correct an illegal sentence, realleging ineffective assistance of trial counsel. The motion judge treated defendant's motion as a second PCR application and denied the petition as substantively 3 A-0639-15T2 and procedurally deficient. Defendant's request for reconsideration was denied. Defendant appealed the denial of his 2007 motion to correct an illegal sentence, arguing he was deprived of a fair trial and his state and federal constitutional rights were violated. On June 11, 2008, we found defendant's appeal of his 2007 motion was "absolutely without merit," and the Court denied certification. State v. Harris, No. A-5022-06 (App. Div. June 11, 2008) (slip op. at 3), certif. denied, 196 N.J. 596 (2008). In or around March 2009, defendant filed a second motion to correct/vacate an illegal sentence. That motion was denied on March 13, 2009, and defendant appealed. In his appeal, defendant alleged violation of his constitutional rights, ineffective assistance of trial counsel, and "all points raised by defendant in any and all prior submissions to the court." In denying defendant's appeal, we found that defendant's "arguments have been addressed and rejected on several occasions." State v. Harris, No. A-3781-08 (App. Div. Apr. 27, 2010) (slip op. at 3), certif. denied, 203 N.J. 607 (2010). On September 10, 2010, defendant moved for a new trial based on newly discovered evidence. Defendant again claimed ineffective assistance of trial counsel, albeit on a different basis, by alleging his trial counsel should have challenged his arrest 4 A-0639-15T2 warrant because the warrant was based upon false statements and lacked probable cause. On August 18, 2011, the judge denied the motion, finding that defendant's ineffective assistance claim was procedurally barred and that his motion for a new trial failed to satisfy any of the elements warranting a new trial. On March 1, 2012, defendant filed another PCR petition. By order dated September 27, 2012, the judge denied defendant's third PCR application as untimely. On February 22, 2015, defendant again moved for a new trial based on newly discovered evidence. The "new evidence" was defendant's repeated claim that his arrest warrant was based on false information. The "new evidence" also included defendant's discovery that his trial counsel was also the New Brunswick Planning Board attorney, which defendant alleged created a conflict of interest. On August 24, 2015, the judge denied defendant's motion without oral argument. The judge expressly found that defendant's claims had either been raised and adjudicated in defendant's prior motions and/or were procedurally barred. On appeal, defendant, through his assigned counsel and in his pro se brief, raises the following arguments: 5 A-0639-15T2 POINT I THIS MATTER MUST BE REMANDED FOR ORAL ARGUMENT. POINT II MR. HARRIS IS ENTITLED TO A REMAND ON HIS MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE. POINT III PROSECUTORIAL MISCONDUCT THROUGHOUT THE PROCEEDINGS DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS OF LAW, TRIAL BY JURY AND RIGHT TO A FAIR TRIAL AGAINST ALL POLICY, LAW, AND JUSTICE AND IN VIOLATION OF U.S. CONST. AMENDS. V, VI, AND XIV AND N.J. CONST. (1947) ART. 1, PARAS. 1, 9, AND 10. POINT IV THE DEFENDANT'S RIGHT TO BE FREE FROM ILLEGAL SEARCH AND SEIZURE UNDER U.S. CONST. AMEND. IV WAS VIOLATED DUE TO THE FALSE STATEMENTS WITHIN THE AFFIDAVITS BY THE ALLEGED VICTIM, WHICH MISLED THE MUNICIPAL JUDGE'S DETERMINATION OF "PROBABLE CAUSE." POINT V IT IS A VIOLATION OF U.S. CONST. AMEND IV TO KNOWINGLY AND INTENTIONALLY, OR WITH RECKLESS DISREGARD FOR THE TRUTH, INCLUDE FALSE STATEMENTS IN AN AFFIDAVIT FILED IN SUPPORT OF A WARRANT. POINT VI THE TRIAL COURT ERRED IN THE PROCEEDING BY VIOLATING THE DEFENDANT'S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS, IN VIOLATION OF THE LAW, CORRECT PROCEDURES, AND THE FUNDAMENTAL RIGHTS OF THE DEFENDANT. THIS CAUSED PROCEDURAL AND JURISDICTIONAL DEFECTS 6 A-0639-15T2 WITHIN THE TRIAL MECHANISM, RENDERING IT INVALID. POINT VII THE TRIAL COURT'S IMPROPER DECISION AND ABUSE OF DISCRETION CONSTITUTED ERROR, BAD FAITH, PREJUDICE, AND BIAS, WHICH CAUSED PROCEDURAL AND JURISDICTIONAL DEFECTS WITHIN THE TRIAL MECHANISM AND CLEARLY DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF U.S. CONST. AMENDS. VI AND XIV AND N.J. CONST. (1947) ART. 1, PARAS. 1, 9, AND 10. POINT VIII THE TRIAL COURT AND THE STATE LOST ALL SUBJECT MATTER JURISDICTION OVER PETITIONER'S TRIAL PROCEEDINGS ON FEBRUARY 22, 1996 DUE TO UNCONSTITUTIONAL MANIPULATION OF THE INDICTMENT PRIOR TO OPENING STATEMENTS OVER THE OBJECTION OF PETITIONER WHE[N] THEY OMITTED A MATERIAL ELEMENT OF THE OFFENSE THE GRAND JURY HAD CHARGED WITHIN THE INDICTMENT THAT WOULD'VE EXONERATED AND PROVED PETITIONER'S ACTUAL INNOCENCE AT TRIAL. DUE TO THIS UNLAWFUL ACTION THE JURISDICTION WAS LOST TO CONTINUE TO "TRY" OR SENTENCE PETITIONER, CAUSING HIM TO BE ILLEGALLY AND UNLAWFULLY CONFINED IN VIOLATION OF HIS RIGHTS UNDER U.S. CONST. AMEND[S]. IV, VI, AND XIV AND N.J. CONST. (1947) ART. 1 PARAS. 1, 9, AND 10. Our review of defendant's appeal requires the application of several standards, including the criteria governing PCR applications, new trial motions, and oral argument of PCR applications. 7 A-0639-15T2 Rule 3:22-4(b) places strict limitations on second and subsequent petitions for post-conviction relief. The Rule compels dismissal of a subsequent petition for PCR unless a defendant can satisfy the time requirement within which to seek such relief and the substantive grounds for such relief. Rule 3:22-12(a)(2) imposes a time limitation for subsequent PCR petitions. In this case, defendant's application is a subsequent petition and therefore must be filed within one year after "the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence." R. 3:22-12(a)(2)(B). "[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Armour, 446 N.J. Super. 295, 306 (App. Div.) (alteration in original) (quoting State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000)), certif. denied, 228 N.J. 239 (2016). "The question of whether oral argument is granted on a petition for post-conviction relief remains within the sound discretion of the [PCR] court." State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001). We review such decisions under an 8 A-0639-15T2 abuse of discretion standard. See State v. Parker, 212 N.J. 269, 283 (2012). Having reviewed the record, we concur with the judge that defendant's claims are procedurally barred by the New Jersey Court Rules. We also agree with the judge that defendant's claims are based on unfounded assertions and could have been discovered sooner through the exercise of reasonable diligence. We likewise find, as did the judge, that oral argument was not required to decide defendant's seventh application challenging his judgment of conviction. Rule 3:22-4(b) mandates dismissal of a second or subsequent PCR petition unless it meets the requirements of the rule as to timing and substance. The instant petition represents defendant's third PCR application, subjecting him to the strict requirements of Rule 3:22-4(b). Defendant contends that his third PCR petition is timely as "the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability" that relief would be granted. Rule 3:22-4(b)(2)(B). In support of his most recent PCR petition, defendant asserts two factual predicates not discoverable earlier: 9 A-0639-15T2 (1) that his arrest warrant was based on fabricated information; and (2) that his trial counsel was also the attorney for the New Brunswick Planning Board. Defendant's challenge to the arrest warrant was previously raised and adjudicated by another panel of this court and, therefore, is barred by Rule 3:22-5. Further, defendant's claim that his arrest warrant was based on false statements is unsupported by any evidence in the record and defendant failed to proffer any evidentiary basis for this claim. Defendant's bare allegations with respect to the arrest warrant do not constitute evidence that would raise a reasonable probability that relief would be granted. See R. 3:22-4(b)(2)(B). Similarly, defendant's claim that his trial counsel was also the New Brunswick Planning Board attorney, thus presenting a conflict of interest, is not information that could not have been discovered earlier through the exercise of reasonable diligence. This information could have been revealed by a simple inquiry. Furthermore, this information does not raise a reasonable probability that relief would be granted. We concur with the judge that the arrest warrant allegation is not new and that both allegations were discoverable earlier through the exercise of reasonable diligence. Thus, defendant's 10 A-0639-15T2 third PCR petition fails to satisfy the substantive requirements of Rule 3:22-4(b) and is untimely pursuant to Rule 3:22-12(a)(2). Relying on the same arguments, defendant contends that he is entitled to a new trial. Rule 3:20-1 provides that a defendant may be entitled to a new trial "if required in the interests of justice." Rule 3:20-2 specifies that a motion for new trial based on newly discovered evidence may be filed "at any time." In seeking a new trial, a defendant must proffer evidence that is "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981). Defendant's claim that his arrest warrant was based on false statements has no evidentiary basis and has been litigated previously. As such, defendant's newly discovered evidence claim on this ground is not "of the sort that would probably change the jury's verdict." Ibid. Nor is defendant's discovery that his trial counsel was also the attorney for the New Brunswick Planning Board information that was not discoverable beforehand to warrant a new trial. There is also no basis in the record to support a claim that counsel's representation of the New Brunswick Planning Board created any 11 A-0639-15T2 conflict that would have changed the jury's verdict. Defendant does not explain how his trial counsel's representation of the Planning Board was prejudicial to his case. Based on our review of the record, trial counsel moved for disclosure of certain evidence by the State, moved to suppress defendant's statements to the police, moved to admit certain evidence against the State's witness and to suppress certain evidence by the State, diligently cross-examined the State's witnesses at trial, and moved for a mistrial after closing. Defendant's representation by an attorney who also was the municipal Planning Board attorney is neither new evidence not available at the time of trial, nor evidence that would tend to lead to a different result. Defendant argues the motion judge erred by denying his motion without oral argument. Defendant contends that the "barebones statement" in his motion brief regarding his ineffective assistance claim requires the court to conduct oral argument so that he can "fully and meaningfully set forth his claim." Defendant further argues that the motion judge misunderstood the basis of his ineffective assistance claim and that oral argument would have clarified the arguments. Defendant also asserts the judge failed to provide a statement of reasons for denying oral argument. 12 A-0639-15T2 We find that the judge's decision to deny the motion without oral argument was not an abuse of discretion. A judge's decision to grant oral argument on a PCR petition depends on "the apparent merits and complexity of the issues raised, whether the petition is an initial application, whether argument of counsel will add to the written positions that have been submitted, and in general, whether the goals and purposes of the post-conviction procedure are furthered by oral argument." Mayron, 344 N.J. Super. at 387. While "there is a strong presumption in favor of oral argument in connection with an initial petition for post-conviction relief," Parker, 212 N.J. at 283, this is defendant's third PCR, and defendant had the benefit of oral argument in prior applications. In his pro se brief, defendant raises additional arguments including: defendant's arrest warrant for violation of a restraining order was invalid as there was no restraining order; defendant was deprived of the ability to present exculpatory evidence at trial; the entire trial was tainted by prosecutorial misconduct related to the restraining order; false statements used to procure the warrant for violation of the restraining order constitute "new evidence" in support of a new trial; defendant's arrest was unconstitutional and, therefore, all information supporting the arrest warrant for violation of the restraining order should have been suppressed as fruit of the poisonous tree; 13 A-0639-15T2 trial counsel was ineffective for failing to challenge the arrest/warrant; and the trial court impermissibly altered the indictment before trial, stripping the court of jurisdiction. These contentions were raised and adjudicated in prior applications. See State v. Harris, No. A-7683-95 (App. Div. January 5, 1998), certif. denied, 156 N.J. 386 (1998); State v. Harris, No. A-6184-99 (App. Div. June 6, 2000), certif. denied, 176 N.J. 279 (2003); State v. Harris, No. A-5022-06 (App. Div. 2008); certif. denied, 196 N.J. 596 (2008); and State v. Harris, No. A-3781-08 (App. Div. Apr. 27, 2010), certif. denied, 203 N.J. 607. Affirmed. 14 A-0639-15T2

click here to get this case.


Docket No.: a0873-16
Decided: 2018-01-16
Caption: E.T v. J.B
Status: unpublished
Summary:
PER CURIAM Defendant J.B. appeals from the October 11, 2016 final restraining order (FRO) entered against him and in favor of plaintiff E.T., pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on harassment, N.J.S.A. 2C:33-4(c). We reverse. The parties met online sometime prior to November 2015. Plaintiff was a resident of the Philippines, while defendant was a United States citizen. Defendant visited plaintiff just two times in the Philippines, and then asked her to move to the United States and live with him in November 2015. Before the end of December, plaintiff told defendant she was pregnant, and the parties married on December 30, 2015.1 By January 2016, the parties' nascent relationship was already in jeopardy because they simply did not get along with each other and began to argue.2 According to plaintiff, one day in either January or February, defendant came home from work and told her to pack her bags because he was going to take her to the airport so she could return to the Philippines. The parties then drove to an airport, turned around, and came back home. Plaintiff 1 The parties' child was born in August 2016. 2 Defendant testified that he paid to have plaintiff's application for a Green Card processed, and he assisted in filing the appropriate paperwork. It is not clear from the record when plaintiff received her Green Card, but the parties agree that plaintiff received authorization to work in the United States sometime in March 2016. However, plaintiff did not work during the parties' brief marriage because she was pregnant for the entire period prior to their separation in September 2016. 2 A-0873-16T3 also testified that, sometime in June 2016, she called the police because, during another argument, defendant threatened to take her to the airport. On September 8, 2016, defendant asked plaintiff to feed the baby. She refused and defendant told her to leave the home because he was going to file for a divorce. He objected when plaintiff stated she would take the parties' child with her. Plaintiff called a friend, who lived about a block away, and arranged to move in there. She then called the police for assistance in taking the child with her. After assessing the situation, the police told the parties that plaintiff could take the child. The next day, plaintiff returned by herself to the parties' home. She testified that she wanted to talk to defendant and pick up some of her personal items. Defendant refused to let her into the house, and plaintiff used her key to enter. Plaintiff was in the house for approximately ten minutes. Defendant decided to use his cellphone to make a video recording of plaintiff so she could not later claim he acted inappropriately. On the video, which lasts approximately five minutes and forty seconds, plaintiff can be seen going from room to room retrieving clothes, towels, cotton balls, soap, and other items. Defendant took the video from outside the rooms plaintiff entered. At one point, defendant asked plaintiff to return the house keys, 3 A-0873-16T3 but she refused. Defendant made only three additional statements to plaintiff during the video.3 In response to these statements, plaintiff smiled at defendant, held up the items she was taking, and commented on some of them. As plaintiff left the house, she turned toward defendant's cellphone camera, smiled, and then walked down the street to the neighbor's home where she was staying. On September 13, 2016, defendant went to the neighbor's house and asked if he could see the baby. The neighbor went to speak to plaintiff, came back to the front door, and told defendant that plaintiff had refused to let him visit the child. Defendant then went home. The next day, plaintiff filed for, and obtained, a temporary restraining order against defendant. When asked why she was seeking a FRO, plaintiff testified she was "afraid of what [defendant] can do to me because I don't have any family here. I don't have any friends here. I don't have anything here. I just arrived in America."4 3 These statements were: (1) "Everything she's taking is bought with my money. She's stealing my money"; (2) "Everything she's taking was purchased with my money. She's taking all the things purchased with my money"; and (3) "Let this be the record that she's taking all the items purchased with my money." 4 A few days after the issuance of the TRO, defendant filed a complaint for divorce. The parties were divorced four months later in January 2017. 4 A-0873-16T3 Following oral argument, the trial judge granted plaintiff a FRO against defendant. The judge did not find that any of the incidents between the parties in September 2016 constituted a predicate act of domestic violence. Instead, the judge went back to what he called "the airport incidents" in January and June 2016, and found that defendant engaged in a "course of conduct" on these two occasions with a purpose to harass plaintiff within the intendment of N.J.S.A. 2C:33-4(c). The judge explained that because plaintiff was an immigrant, there was "a real power imbalance" between the parties and the "symbolic gesture of driving her to the airport, threatening to take her to the airport, in this relationship, in this context, that represents purpose to harass."5 The judge next found that a restraining order was necessary because defendant showed a "lack of empathy and kind of domineering style" by making a video recording of plaintiff's return to the 5 The judge acknowledged that he had not reviewed immigration law to determine whether plaintiff's status in the United States was ever in jeopardy. As previously noted, plaintiff had a work permit, may have already had a Green Card, was married to a United States citizen, and was the mother of a baby born in this country. 5 A-0873-16T3 home on September 9, 2016.6 As further support for his ruling, the judge stated: [Plaintiff's] not afraid of any physical violence. But the fear comes out of the power imbalance, the financial isolation, the legal isolation, the fear now not just that her immigration status is in jeopardy, but she's going to be separated from her child who is a [United States] citizen. This appeal followed. On appeal, defendant argues that the judge mistakenly found that he committed the predicate act of harassment and that a FRO was necessary to protect plaintiff against future acts of domestic violence. We agree. Our review of a trial judge's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A judge's fact-finding is "binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). 6 At the same time, however, the judge recognized that many parties make videos of this nature while in the midst of a break-up, and stated "that's an understandable course of conduct." 6 A-0873-16T3 In adjudicating a domestic violence case, the trial judge has a "two-fold" task. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). The judge must first determine whether the plaintiff has proven, by a preponderance of the evidence, that the defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A. 2C:33-4, as conduct constituting domestic violence. Id. at 125- 26. The judge must construe any such acts in light of the parties' history to better "understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim's continued fear of the perpetrator." Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); N.J.S.A. 2C:25- 29(a)(1). If a predicate offense is proven, the judge must then assess "whether a restraining order is necessary, upon an evaluation of the facts set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse." J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011) (quoting Silver, 387 N.J. Super. at 126-27). Whether a restraining order should be issued depends on the seriousness of the predicate offense, on "the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment[,] and physical abuse," and on "whether immediate danger to the person 7 A-0873-16T3 or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. l995) (citing N.J.S.A. 2C:25-29(a)); see also Cesare, 154 N.J. at 402. We first examine whether the record supports the trial judge's conclusion that plaintiff demonstrated by a preponderance of the evidence that defendant committed a predicate act of domestic violence by twice threatening to take her to the airport so she could return to the Philippines and, on one of these occasions, driving her to an airport and then immediately returning home with her. Here, the judge viewed plaintiff's allegations as falling under N.J.S.A. 2C:33-4(c), which provides that harassment occurs when "a person . . . with purpose to harass another . . . [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." Proof of a purpose to harass is an essential element of N.J.S.A. 2C:33-4. See L.D. v. W.D., 327 N.J. Super. 1, 5 (App. Div. 1999). "A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." State v. Hoffman, 149 N.J. 564, 577 (1997) (quoting N.J.S.A. 2C:2- 2(b)(1)). There must be proof that a defendant's conscious object was to "harass," that is, "annoy," "torment," "wear out," and "exhaust." State v. Castagna, 387 N.J. Super. 598, 607 (App. 8 A-0873-16T3 Div.) (quoting Webster's II New College Dictionary 504 (1995), certif. denied, 188 N.J. 577 (2006). Merely knowing that someone would be annoyed, as opposed to having a conscious objective to annoy, is insufficient to prove a purpose to harass. See State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989). Moreover, a "victim's subjective reaction alone will not suffice; there must be evidence of the improper purpose." J.D., 207 N.J. at 487 (citing State v. Washington, 319 N.J. Super. 681, 691-92 (Law Div. 1998)). When deciding the issues of intent and effect, we are mindful of the fact that harassment is the predicate offense that presents the greatest challenges to our courts as they strive to apply the underlying criminal statute that defines the offense to the realm of domestic discord. Drawing the line between acts that constitute harassment for purposes of issuing a domestic violence restraining order and those that fall instead into the category of ordinary domestic contretemps presents our courts with a weighty responsibility and confounds our ability to fix clear rules of application. [Id. at 475 (citation omitted).] "[T]he decision about whether a particular series of events rises to the level of harassment or not is fact-sensitive." Id. at 484. Very recently, our Supreme Court provided additional guidance on what conduct constitutes harassment under N.J.S.A. 2C:33-4(c). 9 A-0873-16T3 In State v. Burkert, ___ N.J. ___ (2017), the Court made clear that N.J.S.A. 2C:33-4(c) "was never intended to protect against the common stresses, shocks, and insults of life that come from exposure to crude remarks and offensive expressions, teasing and rumor mongering, and general inappropriate behavior. The aim of subsection (c) is not to enforce a code of civil behavior or proper manners." (slip op. at 35-36). Instead, the Court held, as it did twenty years ago in Hoffman, 149 N.J. at 580-81, "[t]hat the primary thrust of N.J.S.A. 2C:33-4(c) is not to interdict speech, but rather conduct[.]" Burkert, (slip op. at 19). Therefore, the Court "construe[d] the terms 'any other course of alarming conduct' and 'acts with purpose to alarm or seriously annoy' as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere[d] with that person's reasonable expectation of privacy." Id. at 34-35. Applying these principles, and viewing the record expansively, we cannot conclude from the judge's findings that defendant engaged in a "course of alarming conduct" or acts that rose to the level of what the Legislature intended as "domestic violence" under the PDVA. For example, in Corrente, the defendant threatened "drastic measure[s]" during an argument with his wife and later disconnected her telephone service. Corrente, 281 N.J. 10 A-0873-16T3 Super. at 244. We held that this communication and conduct could not be "characterized as alarming or seriously annoying." Id. at 249. We drew the same conclusion in another case where the defendant repeatedly told his wife that he had no sexual feelings for her, did not love her, and planned to divorce her. Murray v. Murray, 267 N.J. Super. 406, 408, 410 (App. Div. 1993). We likewise found no alarming or seriously annoying conduct where, during an argument, the defendant said to the plaintiff, "I'll bury you." Peranio v. Peranio, 280 N.J. Super. 47, 55-56 (App. Div. 1995). In this case, defendant told plaintiff he was going to send her to the Philippines during two of their arguments and, on one of these occasions, drove her to an airport and then immediately drove back home with her. Defendant's statements, and his one act, while obviously inappropriate and loutish, simply did not constitute the type of "course of alarming conduct" necessary to sustain the entry of a FRO. Defendant never threatened plaintiff's safety, security, or privacy. Burkert, (slip op. at 35). While plaintiff may have been sensitive about her status in the United States, the evidence in the record shows that she had no objective reason for concern given the fact that she was married to a citizen 11 A-0873-16T3 of the United States, had a child who was a citizen, and had, or was about to obtain, Green Card status. Under these circumstances, we conclude that the domestic contretemps that occurred between the parties during their short- term marriage were insufficient to support the entry of a FRO. However, even if this were not the case, the FRO would still have to be reversed because the judge's findings do not support his conclusion that the FRO was necessary to protect plaintiff "from an immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127. As the judge acknowledged, defendant had never harmed or threatened to harm plaintiff, and the two "airport incidents" occurred months before plaintiff sought a TRO. The judge found that a FRO was needed because there was a financial and "power imbalance" between the parties now that they were separating. However, while plaintiff had not yet secured a job, she had authorization to work in the United States by the time the parties separated in September 2016 and may have already had her Green Card. The judge also did not explain why the issuance of a routine pendente lite support order in the pending dissolution action, rather than a FRO, would not have been sufficient to address plaintiff's financial concerns. In addition, the parties had already separated, defendant had filed his complaint for divorce, and they would be divorced just 12 A-0873-16T3 four months later. While they shared a child together, their future contact would obviously be limited. Although the judge found that defendant showed a "lack of empathy" toward plaintiff, it is now abundantly clear that the harassment statute, N.J.S.A. 2C:33-4(c), was never intended "to enforce a code of civil behavior or proper manners." Burkert, (slip op. at 36). Thus, a FRO was not needed in this case. Reversed. 13 A-0873-16T3

click here to get this case.


Docket No.: a1119-15
Decided: 2018-01-16
Caption: JENNIFER VAN SCHOICK v. JACKSON TOWNSHIP ZONING BOARD OF ADJUSTMENT
Status: unpublished
Summary:
PER CURIAM Plaintiff Jennifer Van Schoick appeals from the Law Division's August 10, 2015 order requiring defendant Jackson Township Board of Adjustment (Board) to amplify its findings of fact and reasoning supporting its decision to grant defendant J.C. Industries, Inc. (defendant) a use variance to expand its business operations on property it planned to acquire in Jackson Township (Township). Plaintiff also challenges the trial court's October 5, 2015 order, following its review of the Board's Amended Resolution, affirming the Board's decision to grant defendant's use variance application. After reviewing the record in light of the contentions advanced on appeal, we conclude that plaintiff's arguments are without merit, and we affirm substantially for the reasons set forth in Judge Mark Troncone's comprehensive written decision rendered on September 23, 2015. The parties are fully familiar with the underlying procedural history and facts of this case and, therefore, only a brief summary 2 A-1119-15T1 is necessary here. Defendant operates a construction contracting and excavation business on Lot 53 in Block 2201 of the Township's Tax Map. In August 2009, defendant agreed to purchase an adjoining lot, Lot 46, from defendants Allan and Gladys Siesel.1 Lot 46 consists of 1.9 acres of land, but only 1.3 acres of the property are usable due to environmental restrictions. When defendant purchased Lot 46, it was zoned for Light Manufacturing (LM), just like the parcel it already owned. Plaintiff owns a property that adjoins Lot 46. She lives in a single-family house and operates a dog boarding business on the property. Plaintiff's property was also in the LM zone. In November 2010, defendant applied to the Board for preliminary and final site plan approval for the construction of a warehouse on Lot 46. Soon thereafter, the Township rezoned defendant's two lots, plaintiff's property, and other lots in the area to the Multi-Family Residential (MF) zone. Defendant then applied for a use variance pursuant to N.J.S.A. 40:55D-70(d) to continue with its construction plans. Following a public hearing, the Board voted four to three in favor of defendant's application, but this was one vote short of the two- thirds majority the Board needed to approve a use variance. 1 The trial court dismissed the Siesels from the litigation and they are not involved in the present appeal. 3 A-1119-15T1 Defendant sought review of the Board's decision in the Law Division. However, on May 6, 2014, it abandoned the litigation, and decided to submit another application for a use variance. In its new application, defendant made at least eleven amendments to its original filing in order to address the Board's concerns. These revisions included increased buffers along the property line; relocation of a fence; reduction in travel lane sizes to be built on the property; relocation of a dumpster; addition of light shields to prevent light pollution to neighboring properties; relocation of the proposed building by ten feet; altering the fence to include slots preventing visual distractions; consolidation of Lots 46 and 53; and agreement as to certain conditions of use. At a public hearing in September 2014, defendant presented unrefuted expert testimony that its application satisfied the positive and negative criteria and that special reasons existed to grant the variance. The Board's own engineer agreed with defendant's expert. Plaintiff appeared in opposition to defendant's application, and expressed her concerns that defendant's proposal would adversely affect the business she operated on her property. Following the hearing, the Board adopted a resolution unanimously approving defendant's application. In accordance with 4 A-1119-15T1 Judge Troncone's August 10, 2015 order, the Board adopted an Amended Resolution setting forth its reasons for the approval on September 2, 2015. Plaintiff thereafter filed a complaint in lieu of prerogative writs seeking to reverse the Board's action, contending defendant failed to meet its burden of proof and that the Board's action was arbitrary, capricious, and unreasonable. After thoroughly canvassing the record, Judge Troncone affirmed the Board's approval of the application. In his written decision, the judge found there was substantial evidence in the record to support granting the relief sought by defendant. The judge noted that defendant presented unrefuted expert testimony that Lot 46 "could not reasonably be developed in accordance with the MF [z]oning requirements" because the MF zone had a ten-acre minimum lot requirement. Lot 46 had only 1.3 acres of developable land and, therefore, none of the uses permitted in the MF zone could be implemented on the property. Thus, Judge Troncone accepted the expert's conclusion that "a denial of the requested use variance would render the subject property into inutility." Therefore, the judge concluded that defendant established an undue hardship necessitating the grant of the requested variance. 5 A-1119-15T1 The judge also found that permitting an expansion of defendant's business onto the adjoining property "would be consistent with other uses within the immediate area[,]" including defendant's current business operations, and plaintiff's dog boarding enterprise. Therefore, the judge found that approval of the application would not negatively impact plaintiff's property or her business. Judge Troncone also rejected plaintiff's contention that approval of the application would substantially impair the purpose of the Township's zoning plan and ordinance. The judge found no support in the record for plaintiff's contention that the Township rezoned Lot 46 and the adjacent properties in 2010 for the express purpose of preventing the expansion sought by defendant. 2 Defendant's 1.9 acre property represented only three percent of the total acreage that was placed in the MF zone in 2010. Under these "unique circumstances affecting" Lot 46, the judge found the approval of defendant's application would constitute only a 2 In response to plaintiff's contention, Judge Troncone directed the Board to provide all relevant public documents concerning the 2010 rezoning, and permitted the parties to submit supplemental briefs on this issue. After reviewing the documents, the judge concluded "that those records do not contain any specific reference to" Lot 46. Plaintiff's claim on appeal that the judge improperly supplemented the administrative record to include these public records is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). 6 A-1119-15T1 "relatively minor adjustment to the Township's zoning ordinance" and, therefore, was plainly "reasonable." Finally, Judge Troncone found that the Board's Amended Resolution approving the use variance was "legally sufficient. The [R]esolution provides the 'whys and wherefores' supporting the Board's actions and; more importantly, is based upon substantial evidence. . . ." This appeal followed. On appeal, plaintiff raises the same arguments she unsuccessfully pressed before the trial court. Plaintiff asserts that defendant failed to establish the positive and negative criteria necessary to warrant approval of the application. She also again claims the Board "usurped" the Township's zoning code, and that the Amended Resolution was deficient. We disagree. "[W]hen reviewing the decision of a trial court that has reviewed municipal action, we are bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). Thus, our review of the Board's action is limited. See Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are bound by the same scope of review as the Law Division and should defer to the local land-use agency's broad discretion). It is well-established that "a decision of a zoning board may be set aside only when it is 'arbitrary, capricious or 7 A-1119-15T1 unreasonable.'" Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor, 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). "[P]ublic bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005). Therefore, "[t]he proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Ibid. To obtain a use variance, an applicant must satisfy both the so-called positive and negative criteria of N.J.S.A. 40:55D-70(d). See New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 6 (1999). Under the positive criteria, an applicant must show special reasons meriting a use variance. N.J.S.A. 40:55D-70(d)(1). As the New Jersey Supreme Court has stated, "'special reasons' takes its definition and meaning from the general purposes of the zoning laws" enumerated in N.J.S.A. 40:55D-2. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386 (1990). There are three circumstances in which such special reasons may be found (1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility, 8 A-1119-15T1 see Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 159-60, (1992); (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone, see Medici, [107 N.J. at 17 n.9]; and (3) where the use would serve the general welfare because "the proposed site is particularly suitable for the proposed use." [Smart SMR v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998)] (quoting Medici, 107 N.J. at 4). [Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95, 102 (2011) (quoting Saddle Brook Realty, L.L.C. v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006)).] The negative criteria require an applicant to prove that the variance "can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D- 70(d). A proponent of a non-inherently beneficial commercial use, as here, must surmount an additional threshold. Since 1987, such an applicant is obliged to satisfy "an enhanced quality of proof" by securing "clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, 107 N.J. at 21. Thus, an applicant must reconcile the proposed use variance with the fact that the zoning ordinance omitted the use from those permitted in the district. Id. at 21-23. This burden 9 A-1119-15T1 may be satisfied, for example, by evidence that "the character of a community has changed substantially since the adoption of the master plan" or that "a variance for a use omitted from the ordinance is not incompatible with the intent and purpose of the governing body when the ordinance was passed." Id. at 21. Applying these criteria, we discern no basis for disturbing Judge Troncone's decision that the Board's findings fully supported its conclusion that defendant demonstrated undue hardship warranting the approval of its use variance application. Lot 46 was so small that it simply could not be developed for any of the uses permitted in the MF zone. Thus, the positive criteria were met because defendant would suffer "undue hardship" in the absence of the variance. Medici, 107 N.J. at 17 n.9. The uncontradicted expert testimony presented at the public hearing also provided a firm foundation for the judge's determination that defendant met the negative criteria because the impact of its proposed use of the property would be minimal on plaintiff and any adjoining landowners. We also concur with Judge Troncone's determination that the Board did not usurp the Township's zoning power by granting defendant's application. As noted above, Lot 46 was only a small parcel that was zoned into "inutility" when the Township included it in the MF zone. Under these circumstances, the judge properly 10 A-1119-15T1 concluded that the Board's approval of the application would have no meaningful impact upon the Township's overall zoning plan. Finally, the Board's Amended Resolution set forth a comprehensive explanation of its decision to approve defendant's application. Therefore, Judge Troncone properly rejected plaintiff's contrary contention. Affirmed. 11 A-1119-15T1

click here to get this case.


Docket No.: a1561-16
Decided: 2018-01-16
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. H.B and S.F IN THE MATTER OF THE GUARDIANSHIP OF T.R.B Minor
Status: unpublished
Summary:
PER CURIAM Defendant H.B., the biological father of T.R.B. (Tina),1 born in July 2013, appeals from the December 2, 2016 judgment of guardianship terminating his parental rights to the child. On appeal, defendant contends the trial judge erred in finding respondent New Jersey Division of Child Protection and Permanency (Division) proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. We affirm. We will not recite in detail the history of the Division's involvement with the family. Instead, we incorporate by reference the factual findings set forth in Judge Linda L. Cavanaugh's comprehensive written opinion, dated December 2, 2016. We add the following comments. 1 Pursuant to Rule 1:38-3(d), we use initials and fictitious names to protect the confidentiality of the participants in these proceedings. 2 A-1561-16T1 The Division became involved with the family the day after Tina's birth on a report that the child tested positive for marijuana and visible bruises and swelling were seen on her mother, defendant S.F. (Susan), during a prenatal hospital visit the prior month, which Susan blamed on defendant.2 After their discharge from the hospital, Susan and Tina lived with defendant's sister, Teresa. Defendant lived with his mother at the time, but visited Tina frequently. At a hearing in August 2013, the court ordered defendant to participate in a domestic violence program, submit to psychological and substance abuse evaluations, and comply with any recommendations. The Division made appropriate arrangements for defendant and also referred him for parenting skills classes. Defendant was incarcerated in September 2013, when Tina was approximately three months old, and released in June 2015, just before her second birthday. During that time, the Division arranged for a psychological evaluation, with which defendant complied, to assess his parenting abilities, mental health, and need for treatment. The court also ordered defendant to investigate and advise the Division what services were available to him in prison. Between November 2014 and April 2015, defendant 2 On October 21, 2016, the court entered a judgment of guardianship terminating Susan's parental rights. She did not appeal. 3 A-1561-16T1 visited with Tina five times with the Division's facilitation, first in prison, then at a halfway house. Meanwhile, concerned about Susan's failure to adequately address her substance abuse and mental health issues, in October 2014, the Division removed Tina from her custody after she abandoned the child with Teresa and fell out of contact. The Division sought to place Tina with Teresa, but a criminal background check uncovered issues Teresa had to first resolve. Teresa promised to address those issues, as well as a problem with welfare, but she never successfully alleviated the Division's concerns. The Division ultimately sent her a letter in June 2015, ruling her out on the grounds that she had been substantiated for using drugs while pregnant, never provided requested documentation regarding her problem with welfare, had relatives and friends living in her home and no space for Tina's crib, and failed to consistently visit with the child. The Division advised Teresa of her right to an administrative review of that determination, but the record does not indicate she requested review. The Division initially placed Tina in a non-relative foster home following her removal, but her maternal grandmother, Gail, who had already adopted Susan's other child, Tina's half-sister, was soon offered and investigated as a resource parent. The Division placed Tina with Gail in June 2015. The child has 4 A-1561-16T1 remained in Gail's care ever since, and she is committed to adoption. Following defendant's release from prison, the Division resumed making arrangements for services, and the court approved the Division's three-month reunification plan in light of defendant's compliance and his efforts to find stable housing and employment. Over the next few months, defendant visited with Tina ten times, and would have done so on another occasion were it not for a scheduling failure on the Division's part. Defendant did not attend a hearing in September 2015, but the court nevertheless ordered him to continue his efforts in preparing for reunification. Reunification efforts were halted on October 21, 2015, when defendant was arrested on charges of aggravated assault and unlawful possession of a weapon just one month after completing parole on his previous sentence. He remained incarcerated for the next six months, during which he declined to visit with Tina because he did not want her to see him in prison. The Division changed course shortly thereafter, and the court approved a permanency plan for adoption, citing defendant's re-incarceration. Defendant was released from prison on April 26, 2016, when Tina was nearly three years old and the guardianship litigation had commenced. Nonetheless, defendant resumed compliance with services the Division offered, completing a parenting skills 5 A-1561-16T1 course in August 2016, and attending a domestic violence program. However, he visited with Tina only once between his release from prison and entry of the judgment of guardianship. The Division also referred him for a substance abuse evaluation in June 2016, and recommended outpatient treatment, but he missed three intake appointments. He was arrested in June 2016 on charges of heroin distribution, but claimed to the Division he was the victim of mistaken identity. In August 2016, he tested positive for alcohol, marijuana, and benzodiazepines. During this period, defendant offered his mother as a resource parent, but the Division ruled her out in May 2016, because he was still living in her home. The Division advised defendant's mother of her right to an administrative review of the decision, but she did not request review. At the guardianship trial, the Division's expert psychologist, Eric Kirschner, Ph.D., the only expert presented, testified about his psychological evaluation of defendant and comparative bonding evaluations between defendant and Tina and Gail and Tina. Kirschner described defendant's criminal behavior as the one thing that had been "consistent in his life[.]" During his interview, defendant recounted an extensive history of numerous incarcerations both as a juvenile and an adult for a range of offenses, including robbery, drug possession, and 6 A-1561-16T1 receiving stolen property. Even when he was sentenced to probation or completed a sentence for an offense, he often failed to comply with conditions of probation or parole, exposing himself to even further legal consequences. This pattern, which manifested itself throughout Tina's life, made him largely unavailable to her, and his lack of visitation, even when not incarcerated, showed an unwillingness to make Tina a priority in his life. Kirschner observed that defendant failed to address his substance abuse problems. Defendant admitted using marijuana frequently when he was younger, and, though "he portrayed that that was not something that was part of who he is" now, he had just recently tested positive for drugs notwithstanding that he was on parole and in the midst of this litigation, and subject to close monitoring on both counts. While Kirschner allowed that this and defendant's subsequent positive screen for drugs were not dispositive of whether he continued to use any substance on an abusive level, Kirschner noted it did speak to the quality of defendant's judgment. Defendant also acknowledged to Kirschner that his relationship with Susan involved domestic violence, but portrayed her as the initiator, attributing her aggression to her drug use. Defendant never admitted having struck Susan and, although he did recall one occasion when "there was a door that swung and hit 7 A-1561-16T1 her[,]" did not "portray it as something that he had done with any sort of intention" With regard to Tina, defendant told Kirschner that he planned to get a steady job so he could support her and afford a home of his own to live with her on reunification. However, Kirschner noted defendant had a poor track record of supporting himself financially through any means that were not "off the books." In light of that and defendant's criminal history, Kirschner considered it "unlikely" defendant would be able to have his plan come together within the reasonably foreseeable future. Moreover, defendant's expression that he was "waiting for something good to happen, a door to open for [him]," suggested he was taking a relatively passive approach to achieving his goal. Kirschner testified that defendant's scores on two of the five scales of the APPI-II test, a parenting assessment, fell into the below average range. In particular, defendant's score on the empathy scale carried implications for his ability to recognize a child's emotional state and appropriately respond to it, while his low score on the role reversal scale spoke to a probable tendency to put a child into situations the child would not be developmentally prepared to handle. Kirschner concluded that defendant was not in a position to safely assume custody of Tina and was unlikely to become fit to 8 A-1561-16T1 do so within the foreseeable future. Kirschner explained that defendant did not have the psychological capability to meet Tina's needs, and Tina would be placed at a heightened risk of harm if reunified with him. Regarding the bonding evaluation between defendant and Tina, Kirschner characterized defendant's interaction with her as largely "positive." Tina recognized defendant, readily went to him, sat on his lap, and was comfortable with physical contact with him. As the two played with various toys in the room, they smiled, laughed, and made eye contact. The observation ended with a standard exercise, in which the adult is asked to leave the room temporarily, so that the evaluator can observe the child's reaction to the adult's departure, absence, and then reappearance. Kirschner noted that, during the exercise, Tina did not display any distress in reaction to defendant's departure or absence, but merely "took it in stride." When they were reunited in the waiting room, where Tina's half-sister was also sitting, Kirschner found significant that Tina went past defendant to see her sister. Kirschner concluded from these observations that, while Tina displayed familiarity with defendant and had formed some bond with him, notwithstanding their limited interaction in the past, she nonetheless did not view him as her primary attachment figure. Regarding the bonding evaluation between Tina and Gail, 9 A-1561-16T1 Kirschner characterized their interactions as "very healthy and positive[.]" Tina sat on Gail's lap, and they engaged in age- appropriate play with plenty of eye contact. During the exercise in which Gail was asked to leave the room, Tina recognized that she was leaving, pointed it out verbally, and responded positively to her return, handing her a plate of the play food the child was pretending to make at the time. Kirschner concluded from these observations and on his interview with Gail, she was the individual whom Tina viewed as her primary attachment figure and psychological parent. Kirschner did not believe Tina would suffer a great deal of harm if her relationship with defendant was severed through termination of his parental rights, because although she had some bond with him, there was no attachment relationship that she relied on for safety and trust. In contrast, Kirschner concluded Tina would suffer "significant" and "enduring" harm from the loss of her relationship with Gail, including anxiety, sadness, and delay in her emotional development. Kirschner explained that defendant would not be able to mitigate that harm because his failure to make Tina a priority in his life, along with his history of instability, suggested he would not be able to meet the needs of a child under ordinary circumstances, let alone one in emotional turmoil. Kirschner was confident that Gail could ameliorate any 10 A-1561-16T1 harm Tina might suffer from termination, given the quality of their relationship. In all, Kirschner recommended termination of defendant's parental rights followed by adoption by Gail, noting the added benefit of Gail having already adopted Tina's half- sister, with whom Tina had also developed a relationship. Judge Cavanaugh reviewed the evidence presented at the trial, made meticulous factual findings as to each prong of N.J.S.A. 30:4C-15.1(a), and thereafter concluded the Division met by clear and convincing evidence all of the legal requirements for a judgment of guardianship as to both defendants. The judge's opinion tracks the statutory requirements of N.J.S.A. 30:4C- 15.1(a), accords with N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420 (2012), N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88 (2008), In re Guardianship of K.H.O., 161 N.J. 337 (1999), In re Guardianship of D.M.H., 161 N.J. 365 (1999), and N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), and is more than amply supported by the record. F.M., 211 N.J. at 448-49. Affirmed. 11 A-1561-16T1

click here to get this case.


Docket No.: a1777-16
Decided: 2018-01-16
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.R IN THE MATTER OF THE GUARDIANSHIP OF G.K., a minor
Status: unpublished
Summary:
PER CURIAM S.R., a mother, appeals from a December 19, 2016 judgment terminating her parental rights to her son and granting guardianship of the child to the Division of Child Protection and Permanency (Division) with the plan that the child be adopted. The child's law guardian and the Division urge that we affirm the judgment and allow the adoption to proceed. Having reviewed the record in light of the applicable law, we affirm for the reasons explained by Judge Joseph L. Foster in his comprehensive opinion read into the record on December 19, 2016. The facts and evidence are detailed in Judge Foster's opinion, which he rendered after a three-day trial. Accordingly, we need only summarize some of the relevant facts. The child was born in November 2009, and for the first four years of his life he lived primarily with his mother and his older sister. The father, who is no longer in a relationship with the mother and who had not lived with the child for several years, gave an identified surrender of his parental rights in 2016. In April 2014, the child told a daycare worker that his backside hurt. The worker examined the child and discovered that he had extensive bruises on his buttocks. The Division was 2 A-1777-16T2 notified and a Division worker also examined the child and observed numerous black and blue marks on the child's buttocks. The child told the worker that his mother hit him with a belt. Thereafter, the child was taken to the hospital for further examination and the mother was notified. The mother denied hitting the child and claimed that the child might have been hit by her live-in boyfriend. She acknowledged, however, that she saw the bruises the night before, but did not take the child to a hospital or a doctor. The Division removed the child from the mother's custody and placed him with a foster family. The child has been in the care of the Division since the court approved the emergent removal in June 2014. In July 2015, the child was placed in his current foster home, and the foster mother wants to adopt the child. The Division's initial plan was to reunite the mother and the child. Thus, following the child's removal, the Division provided the mother with various services, including family preservation counseling. A counselor who worked with the mother advised the Division that she was just going through the motions of counseling, was not changing her behavior, and was not connecting with or meeting the emotional needs of her son. The Division also arranged for psychological evaluations of the mother. The psychologist, who performed two separate 3 A-1777-16T2 evaluations of the mother, opined that she was not meeting the needs of her child, was not capable of independently caring for her child, and, despite receiving various services, was not likely to develop such skills in the foreseeable future. After the mother made little progress with her various services, the Division changed the plan for the child. In October 2015, the Division filed a complaint for guardianship seeking termination of the mother's parental rights followed by adoption of the child. A guardianship trial was conducted in December 2016. The Division presented testimony from two workers and an expert in psychology and child bonding. The Division also submitted numerous documents into evidence. The mother testified and called a psychological expert to testify on her behalf. Based on the testimony and evidence, Judge Foster made detailed findings. He credited the testimony of the Division workers and the Division's expert. In contrast, he found the mother's testimony incredible. Judge Foster was also not persuaded by the mother's expert. Indeed, Judge Foster expressly rejected significant parts of the testimony and opinions offered by the mother's expert. Judge Foster then addressed the four prongs of the best interests of the child test. N.J.S.A. 30:4C-15.1(a). Applying 4 A-1777-16T2 his factual findings to the law, Judge Foster found that the Division had proven each of the four prongs by clear and convincing evidence. Consequently, the judge terminated the mother's parental rights and granted the Division guardianship of the child. On this appeal, the mother argues that the trial court erred in finding each of the four prongs under the best interests test. She takes particular exception to the trial court's finding that she caused harm to her child. The mother's arguments are without sufficient merit to warrant a detailed discussion in a written opinion. R. 2:11- 3(e)(1)(E). Judge Foster found that the mother was the person who inflicted the injuries to the child. In making that finding, the judge found the mother's testimony to be incredible. The judge also found that the child repeatedly and consistently stated that his mother hit him with a belt, which was supported by other evidence. Judge Foster also found that the mother failed to care for or address the abuse that the child suffered. Turning to the second prong, Judge Foster found that the mother was unable or unwilling to eliminate the harm facing her son. In that regard, Judge Foster noted that even the mother's own expert testified that the mother did not have a strong bond with the child and was not ready to reunite with the child. Judge Foster went on to find that the Division had provided reasonable 5 A-1777-16T2 services to the mother, but that she had not made significant progress through those services. Finally, relying on the testimony of the Division's expert, Judge Foster found that the bond between the mother and her son was weak, the bond between the child and the foster mother was strong, and that termination of the mother's parental rights would not do more harm than good. Each of those findings is supported by substantial credible evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). Judge Foster also correctly summarized the law and correctly applied his factual findings to the law. Affirmed. 6 A-1777-16T2

click here to get this case.


Docket No.: a3473-15
Decided: 2018-01-16
Caption: PNC BANK, NATIONAL ASSOCIATION v. GRACE S. WONG and STEVEN L. WONG, FULL SERVICE REALTY LLC, 69 NORTH FRANKLIN TURNPIKE LIMITED LIABILITY COMPANY, 391 FRANKLIN TURNPIKE LIMITED LIABILITY COMPANY and 40 LAKEVIEW DRIVE, LIMITED LIABILITY COMPANY
Status: unpublished
Summary:
PER CURIAM Defendant Grace S. Wong appeals from a March 18, 2016 final order denying her motion to vacate a $1,305,707.09 judgment entered against her on a commercial note a year before. By way of brief background, plaintiff PNC Bank sued Wong in the Law Division on a commercial line of credit extended in 2008. The Bank also instituted four separate foreclosures in Bergen, Sussex and Monmouth counties on mortgages given to secure certain guarantees provided the Bank in connection with the loan. Following extensive discovery in the actions, which included the exchange of interrogatories, depositions of Wong and a handwriting expert, and the production of over three thousand pages of documents, the Bank moved for summary judgment on the note. Despite the court having granted numerous requests for adjournments to permit opposition over the course of two months, the motion was ultimately granted as unopposed in October 2014, and the Bank permitted to file an application for attorneys' fees. Final judgment for $1,305,707.09, inclusive of attorneys' fees, was entered on December 11, 2014. 2 A-3473-15T3 Wong, self-represented, filed a notice of appeal the next day. Counsel for Wong and the other defendants also filed notice of appeal a few weeks later and shortly thereafter moved for a limited remand, which was denied. That appeal was subsequently dismissed for failure to file a brief. On the one-year anniversary of the entry of final judgment, Wong filed a motion to vacate the judgment, claiming she was not present at the loan closing in 2008, that the court wrongfully refused her request for an adjournment of the summary judgment motion knowing her counsel was suffering from "a life threatening medical condition" and that the attorney fee award was wrongly entered and grossly excessive. Judge Polifroni, in a meticulously detailed decision from the bench, reviewed the entire history of the matter, including his reasons for having entered summary judgment on behalf of the Bank, and addressed each and every issue Wong raised, as well as the Bank's procedural arguments against re-opening or vacating the judgment. Examining Wong's voluminous submissions, he concluded the motion amounted to nothing more than a rehash of the many arguments already raised and rejected, that she presented no new information and that none of it entitled her to vacate the judgment. Wong appeals, reprising the same arguments she made to the trial court. 3 A-3473-15T3 We affirm, substantially for the reasons expressed by Judge Polifroni in his thorough and thoughtful opinion from the bench on March 18, 2016 and the rider attached to his December 11, 2014 order for summary judgment. We have nothing to add to his analysis. Affirmed. 4 A-3473-15T3

click here to get this case.


Docket No.: a4120-15
Decided: 2018-01-16
Caption: STATE OF NEW JERSEY v. MEGAN JEBARA
Status: unpublished
Summary:
PER CURIAM Defendant Megan Jebara was arrested on November 27, 2012, and charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; driving while unlicensed, N.J.S.A. 39:3-10; and failure to notify of an address change, N.J.S.A. 39:3-36. She appeals her October 30, 2015 conviction for DWI and driving while unlicensed,1 after a trial de novo in the Law Division, arguing: POINT I THE UNREASONABLE DELAY BETWEEN THE DATE OF ARREST AND THE DATE OF CONVICTION VIOLATED [DEFENDANT'S] RIGHT TO A SPEEDY TRIAL, AND THE LAW DIVISION'S DECISION IS BASED ON A MISAPPLICATION OF THE LAW AND NOT SUPPORTED BY THE RECORD. A. LENGTH OF DELAY. B. REASON FOR THE DELAY. C. ASSERTION OF THE RIGHT. D. PREJUDICE. POINT II THE ALCOTEST RESULTS SHOULD HAVE BEEN SUPPRESSED BECAUSE THE STATE FAILED TO ESTABLISH THAT OFFICER TONGRING SATISFIED THE TWENTY-MINUTE OBSERVATION PERIOD. POINT III THE STATE FAILED TO PROVE [DEFENDANT'S] GUILT BEYOND A RESONABLE DOUBT BASED ON THE OBSERVATION STANDARD. 1 The Law Division judge found defendant not guilty of reckless driving. The municipal court judge found defendant not guilty of failing to notify of an address change. 2 A-4120-15T3 We reject the arguments in Point I and Point II, and affirm substantially for the reasons set forth by the Law Division judge in his comprehensive review of the proofs relating to the officer's observation of defendant during the twenty-minute period utilizing a phone to mark the time, and the observations of defendant's physical condition. We also conclude defendant's right to a speedy trial was not violated. Defendant raised the speedy-trial issue before the Law Division after the municipal court denied her motion to dismiss on July 2, 2014. The Law Division judge considered "the record" and a procedural timetable developed by the municipal court judge after a remand for that purpose and found the initial delay was caused by a transfer of the case on April 5, 2013, from one municipal court to another. He also concluded from his review: On May 1st, the case was adjourned at the request of . . . defendant's attorney. Now I presume, by that point, discovery [had] been exchanged. From November until May 1st, when the case was adjourned, that adjournment happened at the request of . . . defendant's attorney. There's nothing to indicate in the record that the State was not ready, willing, and able to proceed on that date. It was adjourned. The judge also noted defendant retained new counsel on May 29, 2013, and defendant requested an adjournment of a June 5, 2013 court date. He continued: 3 A-4120-15T3 July 16th the matter was adjourned by the court due to the officer -- one of the officers sustaining an injury which precluded him from coming to court. That would be a reasonable adjournment if . . . defendant was injured. I would expect the [m]unicipal [c]ourt judge to adjourn it for that basis or if their expert or anybody, a witness on their behalf. If they were injured and had proof of that, I would have no issue with that. [On] September 3rd, 2013, the officer was unavailable. . . . That one there I would have to say is the first one that is a question, in my view, as to why that officer was not available. The judge acknowledged trial started on October 29, 2013, and thereafter on November 14th, 2013, the transcript [wa]s ordered by the attorney for . . . defendant after a bunch of motions were made at the first trial date, and that takes a long time because . . . on December 17th, when the case was to resume, of 2014,[2] the attorney was still not in receipt of the transcripts and he, again, requested an adjournment. Again, not the fault of the attorney. It was just not done, but not the fault of the State either. January 8, 2014, the transcript was not ready, adjourned at the request of the attorney. Look it, this is one -- two months have gone by waiting for the transcripts. The judge found "excusable" an adjournment on February 24 due to an officer's "mandatory training." He followed, "Again, for the last two months, three months almost, that the case was 2 The correct year is obviously 2013. 4 A-4120-15T3 adjourned by . . . defendant. There's no indication that the State's witnesses were not available. They didn't complain about it." Continuing, the judge found a special session on March 14, 2014, was adjourned by the court – not the State – "without further explanation." Proceedings were again adjourned – with defendant's consent – on April 14, 2014, when the prosecutor took ill and, again, on June 2, 2014, because the prosecutor was in Tax Court which the judge remarked "is an upper court, equivalent to the Superior Court." Concluding, the judge observed: July 2nd, 2014, the special session continued, finished, and a decision was rendered by the court on September 9th. The delay between the July 2nd completion of the trial and the decision of the judge, again, what happened in there? Defense counsel asked to submit a written submission. It's unclear from either party when that submission was submitted to the judge, but clearly that also contributed to the delay in the judge's decision, waiting for the defendant's brief and the prosecutor's brief, I presume, if he submitted one. "The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and imposed on the states by the Due Process Clause of the Fourteenth Amendment." State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009) (citing Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967)). "The constitutional right . . . attaches upon defendant's arrest." 5 A-4120-15T3 Ibid. (alteration in the original) (quoting State v. Fulford, 349 N.J. Super. 183, 190 (App. Div. 2002)). Since it is the State's duty to promptly bring a case to trial, "[a]s a matter of fundamental fairness," the State must avoid "excessive delay in completing a prosecution," or risk violating "defendant's constitutional right to speedy trial." Ibid. The four-part test to determine when a violation of a defendant's speedy-trial rights contravenes due process was announced in Barker v. Wingo, 407 U.S. 514, 530-33 (1972); that test was adopted by our Supreme Court in State v. Szima, 70 N.J. 196, 200-01 (1976). The test requires "[c]ourts [to] consider and balance the '[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" Tsetsekas, 411 N.J. Super. at 8 (third alteration in the original) (quoting Barker, 407 U.S. at 530). "No single factor is a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial." Id. at 10 (citing Barker, 407 U.S. at 533). Courts are required to analyze each interrelated factor "in light of the relevant circumstances of each particular case." Ibid. "These four factors are . . . applied when [a] defendant asserts a speedy trial claim arising from delay in a municipal court drunk driving prosecution." Fulford, 349 N.J. Super. at 6 A-4120-15T3 189; see, e.g., Tsetsekas, 411 N.J. Super. at 8-10 (citing State v. Berezansky, 386 N.J. Super. 84, 99 (App. Div. 2006); State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999)). We will not overturn a trial judge's decision whether a defendant was deprived of due process on speedy-trial grounds unless the judge's ruling was clearly erroneous. State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977). As to the first Barker factor, the Law Division recognized the obvious delay between defendant's arrest and the commencement of her municipal court trial 337 days later, and the delay between the arrest and the conclusion of the trial 652 days later. Our judiciary "is, as a matter of policy, committed to the quick and thorough resolution of DWI cases." Tsetsekas, 411 N.J. Super. at 11 (quoting Farrell, 320 N.J. Super. at 446). To that end, "[i]n 1984, Chief Justice Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days." Ibid. (quoting Farrell, 320 N.J. Super. at 446-47). Although we have not suggested that "any delay beyond the sixty-day goal is excessive," as "[t]here is no set length of time that fixes the point at which delay is excessive," id. at 11, the delay in both the commencement of the trial and the delay until 7 A-4120-15T3 final adjudication was inordinate, see id. at 11-12 (holding a delay of 344 days excessive); Farrell, 320 N.J. Super. at 428 (holding a delay between summons and trial completion of 663 days to be extensive). "Barker's second prong examines the length of a delay in light of the culpability of the parties." Tsetsekas, 411 N.J. Super. at 12 (citing Barker, 407 U.S. at 531). "[D]ifferent weights should be assigned to different reasons" proffered to justify a delay. Barker, 407 U.S. at 531. Purposeful delay tactics weigh heavily against the State. Tsetsekas, 411 N.J. Super. at 12 (citing Barker, 407 U.S. at 531). "A more neutral reason[,] such as negligence or overcrowded courts[,] should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Barker, 407 U.S. at 531. "[A] valid reason, such as a missing witness, should serve to justify appropriate delay." Ibid. And, "[d]elay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation." Farrell, 320 N.J. Super. at 446. Our review of the record leads us to conclude the Law Division judge parsed the reasons for each delay but misapprehended that "the overwhelming majority of the delays were precipitated by 8 A-4120-15T3 either the request of . . . defendant or request for transcripts by . . . defendant." Defendant requested four adjournments: May 1, 2013, June 5, 2013, December 17, 2014,3 and January 8, 2014. The judge attributed the first delay to the transfer of the matter to the Dover Joint Municipal Court; although not entirely clear from the record, defendant told the Law Division judge that the case was transferred because she knew the municipal prosecutor. Of the other six adjournments, the judge found one was caused by an officer's injury (July 16, 2013); another by an officer's mandatory training (February 24, 2014); two because the prosecutor was ill (April 14, 2014) and because she was in Tax Court (June 2, 2014); one because the officer was unavailable without explanation (September 3, 2013); and one when the court cancelled the session (March 14, 2014). Although the Law Division judge did not chronicle it, the Alcotest operator was not available on October 29, 2013, and the trial was continued at the State's request; the prosecutor advised the municipal court judge that the officer was "not cleared medically" so as to be able to appear in court that session. 3 Defendant ordered transcripts of the first court session on November 14, 2013. 9 A-4120-15T3 We have previously ruled that "the transfer of the matter between municipal courts and the unavoidable absence of [a] police witness" – even if a "significant part" of the delay – reasonably explains and justifies the lapse. State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983). So too, the illness of the State's attorney justifies a delay. The valid reasons for these adjournments do not weigh against the State. The prosecutor's conflicting Tax Court date and the officer's mandatory training, however, are neutral reasons that should be weighed – albeit less heavily than a purposeful delay – against the State. A defendant's constitutional right to a speedy trial trumps an unavailable prosecutor for whom a covering attorney can be found, and officer training that can be rescheduled when it conflicts with a court date. Further, the adjournment caused by the unexplained unavailability of a police witness must be weighed against the State. Although, as defendant concedes, none of the delays attributed to the State were purposeful, it is clear that defendant did not cause the majority of the delays. The number of delays weighed against the State, however, were fewer than those precipitated by defendant. We note in analyzing the third Barker factor, a defendant's assertion of the right to a speedy trial need not be "by way of formal motion." State v. Smith, 131 N.J. Super. 354, 363-64 (App. 10 A-4120-15T3 Div. 1974), aff'd, 70 N.J. 213 (1976). A defendant's mere comment that he or she was "'ready for trial' and 'wanted it to occur sooner rather than later'" are sufficient assertions of a defendant's speedy-trial right. State v. May, 362 N.J. Super. 572, 597 (App. Div. 2003). A court may also consider "the frequency and force of the [defendant's] objections" when assessing whether the defendant properly invoked the right. Barker, 407 U.S. at 529. The Law Division judge recognized defendant moved for a speedy trial on July 2, 2014. The record also establishes that defendant objected to the adjournment of the trial on October 29, 2013, when the Alcotest operator was not medically cleared to appear in court. Defense counsel premised his objection on the municipal court's establishment of that date as the "trial day." Defendant, therefore, sufficiently asserted her speedy-trial right at that first trial session. The fourth prong of the Barker test considers the prejudice to a defendant caused by delay. "[P]roof of actual trial prejudice is not 'a necessary condition precedent to the vindication of the speedy trial guarantee.'" Tsetsekas, 411 N.J. Super. at 13-14 (quoting Merlino, 153 N.J. Super. at 15-16). Although the delay may not prejudice a "defendant's liberty interest or his ability to defend on the merits[,] . . . significant prejudice may also 11 A-4120-15T3 arise when the delay causes the loss of employment or other opportunities, humiliation, the anxiety in awaiting disposition of the pending charges, the drain in finances incurred for payment of counsel or expert witness fees and the 'other costs and inconveniences far in excess of what would have been reasonable under more acceptable circumstances.'" Id. at 13 (quoting Farrell, 320 N.J. Super. at 452) (citing Fulford, 349 N.J. Super. at 195; State v. Dunns, 266 N.J. Super. 349, 380 (App. Div. 1993); Merlino, 153 N.J. Super. at 15-16). The impairment of an accused's defense is considered "the most serious since it [goes] to the question of fundamental fairness." Szima, 70 N.J. at 201. We find insufficient merit in defendant's contentions – that delays caused prejudicial confusion or deprived her of the opportunity to present a complete defense or prevented her from confronting witnesses – to warrant discussion in a written opinion. R. 2:11-3(e)(2). If there was any confusion, it was not the result of any delays in the trial. A careful review of both trial sessions reveals defense counsel knew exactly the status of the proceedings and the course he wanted to take. Any contention that the parties could not remember the evidence presented at the first trial session is unsubstantiated; it must be remembered defense counsel ordered a transcript. 12 A-4120-15T3 The Law Division judge acknowledged the personal prejudice defendant faced during the pendency of the case: her anxiety and uncertainty; missed work; and incurred legal fees. He also recognized that she was not subject to pretrial incarceration and that her defense was "absolutely not" impaired. He concluded defendant was not seriously prejudiced. Balancing the four Barker factors, that are "related factors to be considered with such other circumstances as may be relevant," Szima, 70 N.J. at 201, we do not find the Law Division's denial of defendant's speedy-trial application to be erroneous. Without question, the delay in adjudicating this case was much too long. But considering the valid reasons for most of the adjournments, the delays caused by defendant, and – except for pre-verdict anxiety, stress and personal inconvenience – the lack of prejudice suffered by defendant militates against dismissal of this case, notwithstanding defendant's assertion of her speedy-trial rights as early as the first trial date. Measured against the four Barker factors, we conclude there was no violation of defendant's constitutional speedy-trial right. Affirmed. 13 A-4120-15T3

click here to get this case.


Docket No.: a5092-15
Decided: 2018-01-16
Caption: STATE OF NEW JERSEY v. EDDIE V. DAVIS
Status: unpublished
Summary:
PER CURIAM After a four-day trial, a jury found defendant Eddie V. Davis guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), for sexually assaulting and causing significant bodily injury to C.J.1 The jury acquitted defendant of aggravated sexual assault.2 For the sexual assault count, the trial court sentenced defendant to ten years imprisonment with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, the court sentenced defendant to a consecutive sentence of five years imprisonment with two-and- one-half years of parole ineligibility for the aggravated assault count. On appeal, defendant raises two points in his brief: POINT I THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY THAT THE PRIOR INCONSISTENT STATEMENTS MADE BY KEY STATE WITNESSES WERE ADMISSIBLE AS SUBSTANTIVE EVIDENCE. (Not Raised Below). POINT II DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE. 1 We use initials to protect the victim's privacy interests. 2 In addition, the trial court dismissed two kidnapping counts at the conclusion of the State's case. 2 A-5092-15T4 Following our review of the trial record and the briefs submitted, we conclude defendant's arguments lack merit. We therefore affirm. At trial, C.J. provided following testimony. C.J. explained that she and defendant had an "off and on" romantic relationship from 2012 until 2014. After the relationship ended, C.J. allowed defendant to remain living in her home because he had nowhere else to stay. On the evening of February 7, 2014, C.J. visited her brother and returned home at approximately one o'clock in the morning; upon returning home, defendant grabbed her arm and forced her into the living room where she fell. Defendant proceeded to punch C.J. "a couple times" in the face, causing her to bleed from the mouth and nose. Defendant then began choking C.J., digging his fingernails into the back of her neck, while forcing her into the bedroom and continuing to hit her. C.J. tried to tell defendant to stop and to fight him off, but defendant continued beating her. When in the bedroom, defendant threw C.J. to the floor and kicked her; he then picked her up from the floor and threw her on the bed. Defendant proceeded to have nonconsensual vaginal intercourse with C.J. Afterward, defendant would not allow C.J. to go to the bathroom to clean up. C.J. asked defendant to let her go to the hospital, but he refused and would not let her leave the bed for the rest of the night. The following day, defendant 3 A-5092-15T4 did not go to work and instead stayed with C.J., preventing her from leaving the home or calling anyone. Defendant told C.J. he did not want her to go to the hospital because she would have him "locked up." The following day, defendant went to work. After he left, C.J. showered and cleaned herself up, and then called 9-1-1. Police arrived and an ambulance took C.J. to the hospital. At the hospital, a Sexual Assault Nurse Examiner (SANE), Mary Lou Kline, examined C.J. The State also presented testimony from Officer Robert Schwartz, who testified that upon arriving at C.J.'s home, he observed "visible swelling and bruising to her face, and she was visibly upset and distraught." Detective Keith James interviewed C.J. at the hospital and found her "extremely nervous," "just shaking," and "just broken." Police found several red stains on the curtain leading to the bedroom and in the bedroom. Nurse Kline testified she found C.J. "very fearful," which she explained is typical of sexual assault victims. She noted observing several injuries to C.J.'s face and upper torso. C.J. did not have any vaginal injuries, but Nurse Kline stated, in her experience, it is "very common" to find no vaginal injuries after a sexual assault. 4 A-5092-15T4 Nurse Kline's report indicated C.J. "had been drinking" before the incident. C.J. admitted to drinking at her brother's house before returning home. There was some discrepancy as to how much C.J. had to drink before the alleged assault, because C.J. testified she had three or four beers and two glasses of wine, while Nurse Kline's report indicated she had consumed two beers and one glass of wine. Defendant did not testify on his own behalf, nor did he present any witnesses. I In his first point, defendant argues the jury received an incomplete charge, a contention not raised at trial. Specifically, defendant argues the trial court should have instructed the jurors they may treat the prior inconsistent statements made by State witnesses as substantive evidence in defendant's favor. In particular, defendant contends C.J. failed to inform the 9-1-1 operator that she had been sexually assaulted and provided different accounts of how much she had to drink before the incident; in addition, defendant asserts Nurse Kline provided inconsistent testimony regarding C.J.'s injuries. Defendant maintains that, although he did not request one, the trial judge should have issued the model jury charge relating to the substantive use of prior inconsistent statements. See Model Jury 5 A-5092-15T4 Charges (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (approved May 23, 1994). We disagree. Because defendant failed to object to the jury charge, we evaluate defendant's argument regarding the charge under a plain error standard of review. R. 1:7-2; R. 2:10-2. Under that standard, an appellate court will not set aside a guilty verdict because of the omission of an unrequested jury charge unless the defendant on appeal demonstrates a "sufficiently grievous" omission having a "clear capacity to bring about an unjust result." State v. Singleton, 211 N.J. 157, 182-83 (2012) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). We recognize, however, the omission of a jury instruction is a "poor candidate" for the harmless error rule. State v. Weeks, 107 N.J. 396, 410 (1987) (citing State v. Warren, 104 N.J. 571 (1986); State v. Crisantos, 102 N.J. 265 (1986)) (remanding for the trial court to re-try the defendant with correct instructions). The charge regarding prior inconsistent statements of a witness is sometimes required in instances when the "essence" of the prior inconsistent statement may be "used as substantive evidence concerning the disputed factual issue." State v. Hammond, 338 N.J. Super. 330, 342 (App. Div. 2001). However, where there is "only an inconsistency, not one or more conflicting versions of the same event," a substantive charge is not necessary. Ibid. 6 A-5092-15T4 In other words, where the witness's prior inconsistent statements lack "any significant substantive exculpatory value," there is no need for a substantive charge. Id. at 343. In fact, the charge is not given if the "prior inconsistent statements are relied upon solely to attack the credibility of a witness, and not as substantive evidence." State v. P.H., 353 N.J. Super. 527, 547 n.3 (App. Div. 2002). We have previously suggested that the standard credibility charge is sufficient even when there are contradictory prior statements. See State v. Allen, 308 N.J. Super. 421, 427 (App. Div. 1998) (reversing conviction where no credibility charge was given to address prior inconsistent statements of a witness, because "[a]t a minimum, defendant was entitled to a full charge on the issue of credibility."). Here, the trial judge gave the jury a charge on determining the credibility of witnesses, which included consideration of any inconsistent or contradictory statements. However, the trial judge did not give a specific charge indicating whether the jury could use inconsistent statements as substantive evidence. Defendant first argues C.J.'s failure to tell the 9-1-1 operator that she had been sexually assaulted was an inconsistent statement warranting a jury charge on substantive use. However, C.J. explained that she "just wanted to go to hospital first," and never wavered in her story of being sexually assaulted once she 7 A-5092-15T4 informed the police and nurse at the hospital. Furthermore, two police officers and one nurse described C.J. as "visibly upset and distraught," "just broken," and "very fearful" on the day she called 9-1-1. Defendant contends C.J.'s failure to inform the 9-1-1 operator that defendant sexually assaulted her is substantive evidence that the sexual assault did not occur. However, based upon our review of the trial testimony, we find no plain error in the court's failure to charge the jury on the use of inconsistent statements as substantive evidence. Next defendant argues C.J. gave conflicting testimony about how much she drank in the hours before the incident. Although C.J. may not remember exactly how much she had to drink that night, the amount she drank has no direct bearing on defendant's guilt. It only directly bears on C.J.'s credibility. The court instructed the jury on using inconsistent statements to determine credibility, and we discern no error in the court's failing to give the substantive evidence instruction. Last, defendant argues Nurse Kline offered testimony inconsistent with her written report regarding whether C.J. had bruising on her neck and how long defendant strangled C.J. Given the extent of C.J.'s other injuries, whether she had bruising specifically on her neck also has minimal bearing on defendant's guilt, and only bears on the nurse's credibility. Again, the 8 A-5092-15T4 court instructed the jury on using inconsistent statements to judge credibility; therefore, the court did not err in failing to give the substantive evidence instruction. The trial court instructed the jury on using prior inconsistent statements in evaluating credibility, and the statements were minor inconsistencies lacking "any significant substantive exculpatory value." See Hammond, 338 N.J. Super. at 343. Furthermore, the omission did not have a "clear capacity to bring about an unjust result," because the instruction would have only assisted the jury in fact-finding, rather than aid in explaining the law. See Singleton, 211 N.J. at 183. We therefore discern no error, much less plain error, in the omission of the jury charge regarding the use prior inconsistent statements as substantive evidence. II In his second point, defendant argues his aggregate fifteen- year prison term constitutes a "manifestly excessive and unduly punitive" sentence. Specifically, he asserts the sentencing judge failed to consider all factors when imposing consecutive sentences for aggravated assault and sexual assault, and did not provide sufficient reasons for finding aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (deterrence). We disagree. 9 A-5092-15T4 A First, defendant argues the trial court failed to consider all factors in setting consecutive sentences. The decision to impose concurrent or consecutive sentences is subject to following guidelines identified in State v. Yarbough, 100 N.J. 627, 643-44 (1985): (1) there can be no free crimes in a system for which the punishment shall fit the crime; (2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision; (3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not: (a) the crimes and their objectives were predominately independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (d) any of the crimes involved multiple victims; (e) the convictions for which the sentences are to be imposed are numerous; (4) there should be no double counting of aggravating factors; 10 A-5092-15T4 (5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense . . . .[3] "[T]he Yarbough guidelines are just that — guidelines. They were intended to promote uniformity in sentencing while retaining a fair degree of discretion in the sentencing courts." State v. Carey, 168 N.J. 413, 427 (2001). "It follows that a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." Id. at 427- 28. Here, the trial judge stated her reasons for imposing consecutive sentences. She noted defendant's extensive prior criminal history and "the need to protect society . . . ." She also recognized the Supreme Court's statement in Yarbough that "there can be no free crimes . . . ." Yarbough, 100 N.J. at 643. She found the aggravated assault was an act separate from the sexual assault, factor 3(b) from Yarbough. She also implicitly considered factor 3(a) from Yarbough in stating, "[T]he act of sex assault was completed with holding her down. The act of striking her in her face, leaving her with a black eye requiring medical 3 A 1993 amendment to N.J.S.A. 2C:44-5(a) superseded what was guideline six, which limited the overall term. The statute now provides, "There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses." N.J.S.A. 2C:44- 5(a). 11 A-5092-15T4 treatment, was a separate injury in and of itself." Therefore, we conclude the trial judge properly imposed consecutive sentences, and provided the reasons supporting her sentencing decision. B Defendant further argues the trial judge did not provide sufficient reasons for finding aggravating factor nine. So long as a sentencing judge appropriately considers and applies the mitigating and aggravating factors supported by the record, and explains how he or she arrived at the sentence, we owe the trial court's sentencing decision substantial deference. State v. Case, 220 N.J. 49, 65 (2014). In this case, we find no basis to disturb the sentence imposed. The court appropriately explained the sentence and it does not "shock the judicial conscience." Ibid. (quoting State v. Roth, 95 N.J. 334, 365 (1984)). Here, the trial judge went through each of the aggravating and mitigating factors individually. In the end, she found aggravating factors three, six, and nine, and no mitigating factors. For aggravating factor three, the court found, based on defendant's prior record, "a huge risk that [defendant] would commit another offense." The court also found aggravating factor 12 A-5092-15T4 six due to defendant's "extensive" prior criminal record 4 and the seriousness of the crimes. For aggravating factor nine, the court stated, "I find that there's a huge need to deter [defendant]. In fact, I find the only deterrent I see is that [defendant] is being housed by the Department of Corrections. There's a huge need to continue to deter his conduct." We find the trial judge appropriately considered defendant's extensive prior criminal record, the seriousness of the crimes, and the need for deterrence, in imposing defendant's sentence. Affirmed. 4 The judge noted that defendant's criminal record spans three states – New Jersey, Delaware, and Maryland. His record includes five assault convictions, a robbery conviction, four resisting arrest convictions, in addition to six violations of probation and three violations of parole. 13 A-5092-15T4

click here to get this case.


Docket No.: a5126-14
Decided: 2018-01-16
Caption: STATE OF NEW JERSEY v. R.Y.
Status: unpublished
Summary:
PER CURIAM Tried by a jury, defendant was charged with two counts of first-degree aggravated sexual assault, two counts of second- degree endangering the welfare of a child, for digitally penetrating seven-year-old S.H. and her five-year-old sister, B.H., and resisting arrest. Critical to the State's prosecution was the testimony of the victims and a statement defendant gave to police in which he admitted to sexually assaulting them. Defendant testified, denying the allegations and refuting his police statement. Prior to defendant's testimony, the trial court granted the State's motion to preclude a defense witness from testifying S.H. stated that D.S., defendant's stepson, was the only person who gave her a "bad touch." Defendant was found guilty of all offenses except resisting arrest. The court imposed concurrent sentences amounting to an aggregate twenty-year term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2(a). Defendant appeals arguing: POINT I THE TRIAL COURT GROSSLY VIOLATED [DEFENDANT'S] RIGHT TO A FAIR TRIAL BY EXCLUDING TESTIMONY THAT A VICTIM HAD IDENTIFIED ANOTHER PERSON AS THE ASSAILANT. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. [I], PARS. 9 [AND] 10. 2 A-5126-14T4 POINT II DEFENDANT WAS PREJUDICED BY THE STATE'S USE OF EXCESSIVELY LEADING QUESTIONS. POINT III THE [JUDGE] IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION. We conclude that the trial court did not abuse its discretion in barring S.H.'s testimony and allowing the State to ask leading questions of the children victims. We also conclude there is no merit to defendant's claim that his sentence was excessive. From April to August 2012, defendant's wife took care of S.H. and B.H. for a fee while their parents worked. The families were such close friends that the girls referred to defendant and his wife as "uncle" and "aunt." On the morning of August 30, 2012, S.H. and B.H. told their mother that defendant, "Uncle [R]," touched their vaginal areas. That same day, she informed her husband and a co-worker of the girls' allegations, but did not complain to law enforcement or the New Jersey Division of Child Protection & Permanency (Division), and did not confront defendant or his wife with the allegations.2 The record does not disclose who contacted the Division but the next day, Division caseworker Thomas DeAngelis visited the 2 Without an explanation, the mother merely told defendant and his wife that she would not allow them to babysit her children again. 3 A-5126-14T4 girls' home and interviewed them separately and alone, each for about eight to fifteen minutes. DeAngelis acknowledged before interviewing the girls that he had not met them nor received any training on the forensic interviewing of children. He took notes of the interviews to prepare a report but did not record their statements. After the interviews, the girls were taken to the Special Victims Unit (SVU) of the county prosecutor's office where they gave video-recorded statements alleging that defendant put his finger inside their vaginas. At trial, the State presented the testimony of S.H. and B.H., now ages eleven and eight, respectively, who both confirmed their statements. In the absence of any DNA testing because there was no allegations of an exchange of bodily fluids, a certified forensic nurse examiner testified on behalf of the State that her examination of B.H. revealed digital manipulation of B.H.'s vagina, but discovered no similar finding in her examination of S.H. She explained, however, that with respect to digital manipulation, "it is more common not to find injury than it is to find injury." In addition, the State showed the jury defendant's video-recorded police statement, as well as a transcript of the recording, in which defendant admitted to the girls' accusations. Defendant denied any sexual touching of the girls. He asserted his police statement was untruthful; the result of 4 A-5126-14T4 misleading questions by the interrogating police officers, fatigue and fear due to spending four or five days in jail, stress due to his wife's recent and third miscarriage, and concern over his family's financial welfare. In the first two points of his appeal, defendant challenges the court's evidentiary rulings. When reviewing a trial judge's ruling on the admissibility of evidence, we must determine whether there has been an abuse of discretion. Brenman v. Demello, 191 N.J. 18, 31 (2007). Our Supreme Court has recognized "that discretion is abused when relevant evidence offered by the defense and necessary for a fair trial is kept from the jury." State v. Cope, 224 N.J. 530, 554-55 (2016). Hence, "when the mechanistic application of a state's rules of evidence or procedure would undermine the truth-finding function by excluding relevant evidence necessary to a defendant's ability to defend against the charged offenses, the Confrontation and Compulsory Process Clauses must prevail." State v. Garron, 177 N.J. 147, 169 (2003), cert. denied, 540 U.S. 1160 (2004). In Point I, defendant argues the trial court erred in granting the State's motion to preclude DeAngelis from testifying S.H. told him that only D.S. made a "bad touch" on her. The State argued there was no indication by S.H. that the "bad touch" was of a sexual nature, and thus does not qualify as a false allegation 5 A-5126-14T4 requiring a Guenther3 hearing. The State also asserted defendant's failure to timely notify it of his third-party guilt defense bars him from presenting the accusations against D.S. In addition, the State maintained D.S.'s alleged sexual touching of S.H. was inadmissible because it was protected by the Rape Shield Law, N.J.S.A. 2C:14-7. The State also asserted defendant's failure to notify the court before the trial that he wanted to admit the evidence bars its admission. Defendant agreed that S.H.'s statement should not be admitted as a prior false allegation requiring a Guenther hearing. On the other hand, he asserted it should be inferred that S.H.'s reference to D.S.'s "bad touch" meant that she was touched in her vaginal area because she was too shy to point to that area of her body but felt comfortable to point to her arm to indicate a "good touch." Thus, defendant maintained, given S.H.'s trial testimony that defendant sexually abused her, her out-of-court statement only accusing D.S. of sexual abuse was admissible as a prior inconsistent statement under N.J.R.E. 803(a)(1). Defendant further contended that since D.S. had more access to S.H. than defendant did, her accusation against D.S. was admissible to show third-party guilt. 3 State v. Guenther, 181 N.J. 129 (2004). 6 A-5126-14T4 After considering the parties' written submissions and oral argument, the court issued an oral decision granting the State's application. Citing State v. Jimenez, 175 N.J. 475, 487-88 (2003), the court found defendant did not present sufficient evidence of the possible third-party guilt of D.S. The court also determined the Rape Shield Law barred DeAngelis' testimony regarding D.S.'s alleged sexual touching because of defendant's failure to make an application before the trial to admit the testimony. N.J.S.A. 2C:14-7(a). After the court's ruling, and following DeAngelis' testimony on behalf of defendant regarding prior inconsistent statements by B.H., the court excused the jury to conduct a Rule 104 hearing so that DeAngelis could proffer his testimony regarding S.H.'s accusation of D.S.'s "bad touch." He testified that when he discussed the concept of "good touch" with S.H., she said she knew what it was and referred to her arm. Conversely, when he asked S.H. if she knew what a "bad touch" was, she did not respond verbally but nodded her head in affirmance that she knew what it was. DeAngelis testified he asked S.H. if someone "did a bad touch to her in a bad touch part?" She answered "yes[,]" by D.S., on occasion. According to DeAngelis, upon inquiry, she denied that anyone else did so. 7 A-5126-14T4 On cross-examination, however, DeAngelis expressed uncertainty regarding S.H.'s understanding of a "good touch" and "bad touch" as follows: [Prosecutor]: And also in regards to this conversation [with S.H.] about bad touch or good touch, you were never able to get clarification from [S.H.] about what she was referring to in regards to bad touch; is that correct? [DeAngelis]: That is correct. [Prosecutor]: So, for example, you don't know whether that bad touch was in regards to a pinch, a punch or a sexual contact; is that correct? [DeAngelis]: That is correct.4 At the conclusion of DeAngelis' Rule 104 testimony, the court noted, without explanation, that the proffer did not affect its earlier ruling to preclude his testimony regarding S.H.'s accusation against D.S. We conclude that the trial court did not deprive defendant of his fundamental right to a fair trial by precluding DeAngelis' 4 Defendant indicated that had DeAngelis been permitted to testify before the jury regarding the "bad touch" by D.S., he would have objected if the prosecutor's asked the same questions on cross- examination. The court gave no indication how it would have ruled. Thus, we cannot speculate what the trial court would have decided. Yet, based upon the record before us, such testimony would have been relevant and probative in understanding S.H.'s accusations. See N.J.R.E. 401 and 403. 8 A-5126-14T4 testimony that S.H. accused D.S. of a "bad touch." Specifically, defendant contends that DeAngelis' testimony was admissible as a prior inconsistent statement under N.J.R.E. 803(a)(1), was relevant under N.J.R.E. 401, and should not have been excluded by the Rape Shield Law, because his constitutional right to confront and cross-examine a witness outweighs the State's concerns under the Rape Shield Law. Before addressing the merits of defendant's respective arguments, we must point out that DeAngelis' precluded testimony is limited to defendant's conviction for sexually abusing S.H. The accusations against D.S. bear no relevance to the guilty finding as to B.H. because there were no allegations that D.S. made a "bad touch" on B.H. In reviewing defendant's arguments, we discern no claim that the barring of S.H.'s allegation against D.S. impacted the conviction for abusing B.H. Hence, even if we concluded DeAngelis' testimony was admissible, we see no reason why defendant's convictions pertaining to B.H. should be reversed. As to the admissibility of the "bad touch" allegations, our analysis begins with the relevance of the statement. N.J.R.E. 401 defines relevant evidence as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." Considering the lack of verbal or non-verbal confirmation by S.H. to indicate what constitutes a "bad touch," 9 A-5126-14T4 it is unclear what she meant by her accusation against D.S. Thus, it is highly questionable that only D.S. sexually abused her as defendant sought the trial court to infer from her statement. In fact, it is telling that the witness to the statement, DeAngelis, who had no specialized training in interviewing techniques with child victims of abuse, was not sure what she meant by a "bad touch." The uncertainty of S.H.'s statement also influences our evaluation as to whether it should be admitted as a prior inconsistent statement. In order for the statement not to be excluded as hearsay under N.J.R.E. 803(a)(1), it must be "inconsistent with the witness' testimony at the trial[.]" S.H. stated at trial that defendant digitally penetrated her vagina. Her statement to DeAngelis, however, was inconclusive as there was never a clear understanding of what she meant by telling him that the only person who made a "bad touch" on her was D.S. When S.H. was cross-examined prior to the State's motion to preclude DeAngelis testimony regarding D.S., she was never asked if she told DeAngelis that D.S. had done a "bad touch" to her and that no one else had done a "bad touch" but D.S. She was asked only if she remembered giving those statements to DeAngelis; she said she did not recall making any allegations against D.S. and she was not confronted with DeAngelis' claim of her allegations. Since 10 A-5126-14T4 she was not given an "opportunity to explain or deny the statement and the [State was] afforded an opportunity to interrogate on the statement," the statement may be excluded. N.J.R.E. 613. Moreover, S.H. was never asked to define or describe a "bad touch." Admissibility of S.H.'s statement to establish third-party guilt is likewise without merit. A defendant has a constitutional right under the due process clause of the Fourteenth Amendment to offer evidence of third-party guilt. See Chambers v. Mississippi, 410 U.S. 284 (1973). Third-party guilt evidence is admissible only when "the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." State v. Loftin, 146 N.J. 295, 345 (1996) (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956 (1960). "Testimony concerning third-party guilt is not admissible unless there is evidence linking a third party to the crime." State v. Perry, 225 N.J. 222, 242 (2016). Thus, defendant must do more than "introduce evidence of some hostile or indecent event and 'leave its connection with the case to mere conjecture.'" Id. at 239 (quoting Sturdivant, 31 N.J. at 179). A defendant is not required "to provide evidence that substantially proves the guilt of another, but to provide evidence that creates the possibility of reasonable doubt." Id. at 238 (quoting State v. Cotto, 182 N.J. 316, 332 (2005)). "Indeed, even 11 A-5126-14T4 if there is no evidence linking another specific suspect to the crime, we 'have recognized that evidence that tends to create reasonable doubt that someone else, generically, rather than defendant, committed the offense, is admissible.'" Id. at 238-39 (quoting Loftin, 146 N.J. at 345 (citation omitted)). Not only did defendant fail to establish — during trial cross- examination or at the Rule 104 hearing conducted by the trial judge — that S.H. actually made the statement concerning D.S. to DeAngelis, he also failed to establish that by "bad touch," she meant digital-vaginal penetration so as to link D.S.'s act with the allegations against defendant. Moreover, because there was no competent evidence that adduced what S.H. meant by only accusing D.S. of a "bad touch," the court did not abuse its discretion to restrict defendant's ability to present a third-party defense. Aside from S.H.'s vague accusation, no trial evidence connected D.S. to sexual assault against either sister. In fact, neither the Division nor SVU investigators interviewed D.S. or his family members concerning alleged misconduct by D.S. Thus, the record did not justify, let alone compel, admission of third-party guilt evidence. As to the Rape Shield Law, it does not apply to the present situation. The law limits the admissibility of evidence of a victim's previous sexual conduct. N.J.S.A. 2C:14-7. As noted, 12 A-5126-14T4 it is not clear that S.H.'s "bad touch" allegation involved sexual activity. Moreover, even assuming it did, the accusation does not relate to S.H.'s sexual conduct, but to abuse against her by D.S. In Point II, defendant contends that the State was given unlimited rein to pose leading questions to B.H. and S.H. to produce sought after responses and not because they were "hesitant, evasive, or reluctant." For example, defendant cites the following questions posed to B.H. by the prosecutor that he objected to but was overruled by the court: "And was it [defendant] who touched you?"; "Were you able to [tell what defendant did] or did somebody put their hand over their mouth?"; and "When somebody tried to tell [defendant's wife what happened] did somebody put somebody's hand over their mouth?" Defendant made no objection when B.H. was asked: "But did [defendant] . . . touch you with [his] hand on your private?" Also without objection, S.H. was asked: "And it was [defendant] who lived in that house[,] was he the one that touched you?" There is no dispute that these questions were leading. However, "[i]t is well-settled that a court may in its discretion allow counsel to use leading questions in order to elicit testimony from an infant." State v. R.R., 79 N.J. 97, 114-15 (1979); see also, State v. Bueso, 225 N.J. 193, 207 (2016). The court neither abused its discretion in overruling defendant's objections to 13 A-5126-14T4 leading questions nor committed plain error in allowing leading questions that were not objected to. Leading questions were appropriate in light of the subject matter of the victims' testimony, their ages when the incidents occurred, and when they testified. Lastly, we address defendant's contention that his sentence was excessive because the court's weighing of aggravating and mitigating factors did not support the imposition of two concurrent maximum twenty-year terms for the first-degree convictions of aggravated sexual assault. He contends aggravating factors two and three should not have been applied. N.J.S.A. 2C:44-1(a)(2)(the gravity and seriousness of harm inflicted upon the victim); - 1(a)(3) (the risk of re-offense). He also argues mitigating factor seven should have been given more weight, and that mitigating factors eight and eleven should have been considered. N.J.S.A. 2C:44-1(b)(7) (lack of an adult record); -1(b)(8) (circumstances unlikely to occur); -1(b)(11)(imprisonment entails excessive hardship to defendant or his dependents). Review of a criminal sentence is limited; a reviewing court must decide "whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). Under this standard, a criminal sentence must be affirmed unless "(1) the sentencing 14 A-5126-14T4 guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). Here, we are not persuaded the court erred in sentencing defendant. We find support in the record for the court's findings, and the sentence does not shock our judicial conscience. We note that defendant was eligible for consecutive sentences for offenses against two victims, which the court did not impose. Therefore, we shall not second-guess and disturb the trial court's sentence. See State v. Bieniek, 200 N.J. 601, 608-09 (2010); State v. O'Donnell, 117 N.J. 210, 215-16 (1989). Affirmed. 15 A-5126-14T4

click here to get this case.


Docket No.: a5138-15
Decided: 2018-01-16
Caption: STATE OF NEW JERSEY v. ERIC D. BIRTHWRIGHT
Status: unpublished
Summary:
PER CURIAM Defendant Eric D. Birthwright appeals from an order denying his petition for post-conviction relief (PCR) after oral argument without an evidentiary hearing. We affirm. In 2010, defendant was tried and convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); and second-degree possession of a firearm for unlawful purpose, N.J.S.A. 2C:39-5(a) (count three). As to count one, defendant was sentenced by Judge Stuart Peim to an aggregate fifty-year prison term with an eight-five percent parole disqualifier. Concurrent terms of four years on the remaining charges were imposed. Defendant appealed. In June 2014, aside from merging the charges and for an accounting of jail credits, we affirmed the convictions and sentence. The matter was remanded for clarification of jail credits. In February 2015, the Supreme Court denied defendant's petition for certification. State v. Birthwright, No. A-0582-11 (App. Div. June 16, 2014), certif. denied, 220 N.J. 575 (2014). The following month, defendant filed a pro se petition for PCR. In April 2016, following argument, Judge Peim filed a comprehensive written opinion denying defendant PCR relief. This appeal follows. Defendant raises the following point on appeal: 2 A-5138-15T2 POINT I DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO TRIAL COUNSEL'S INEFFECTIVENESS, OR IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS. A. TRIAL COUNSEL FELL ASLEEP DURING THE TRIAL. B. TRIAL COUNSEL FAILED TO INVESTIGATE WITNESSES AND OTHER DEFENSES. Additionally, defendant raises the following points in his pro se brief: POINT I THE PCR COURT RELIED ON AN INCORRECT LEGAL STANDARD IN DENYING DEFENDANT'S CLAIM THAT THIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED WHEN TRIAL COUNSEL SLEPT THROUGH VARIOUS CRITICAL STAGES OF THE TRIAL REQUIRING PREJUDICE TO BE PRESUMED. POINT II ALTHOUGH THE RECORD CLEARLY INDICATES DEFENSE COUNSEL SLEPT ON MORE THAN ONE OCCASION, A REMAND IS REQUIRED TO DETERMINE HOW MANY TIMES COUNSEL WAS SLEEPING. The test for ineffective assistance of counsel was formulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). To establish a deprivation of the Sixth Amendment right to the 3 A-5138-15T2 effective assistance of counsel, a defendant must satisfy the following two-pronged Strickland/Fritz test: (1) that counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "[A] defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." State v. Parker, 212 N.J. 269, 279 (2012). If a defendant establishes one prong of this test, but not the other, the petition for PCR must fail. Id. at 280. Thus, both prongs of the Strickland/Fritz test must be satisfied before post-conviction relief may be granted. Strickland, 466 U.S. at 687. When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). 4 A-5138-15T2 We apply the Strickland standard and review the reasonableness of counsel's assistance with "a heavy measure of deference to counsel's judgments." State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, 466 U.S. at 691). Judge Peim applied this standard and concluded that the defendant's arguments did not support a finding of ineffective assistance of counsel. Concerning the judge's determination to dispense with an evidentiary hearing, the court has discretion to make this decision, "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing . . . ." State v. Marshall, 148 N.J. 89, 158 (1992) (citations omitted). From our review of the record, and extending to defendant all favorable inferences, the judge's decision to forego an evidentiary hearing was not mistaken. After close examination of the record in light of the contentions posed in this appeal, including the considerable amount of evidence unrelated to the grounds upon which the PCR petition was based that supported defendant's conviction, we affirm substantially for the reasons set forth by Judge Peim in his thorough written decision. Affirmed. 5 A-5138-15T2

click here to get this case.


Docket No.: a0678-16
Decided: 2018-01-11
Caption: STATE OF NEW JERSEY v. CANTREL C. SPARKS
Status: unpublished
Summary:
PER CURIAM A jury found defendant Cantrel C. Sparks guilty of third- degree conspiracy to commit robbery, N.J.S.A. 2C:5-2a (count two); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a(1) (count three); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b(1) (count four); and third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count five). The jury acquitted defendant of first-degree robbery. After merging the two firearms convictions, the judge sentenced defendant to a seven-year term of imprisonment with a forty-two month period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). He sentenced defendant to a concurrent five-year term of imprisonment with an eighty-five percent period of parole ineligibility on the conspiracy conviction, and a concurrent five-year term on the aggravated assault conviction. Defendant raises the following points for our consideration: POINT I THE TRIAL COURT'S INCOMPLETE INSTRUCTIONS ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE AND UNLAWFUL POSSESSION OF A WEAPON DEPRIVED THE DEFENDANT OF A FAIR TRIAL DUE TO THE COURT'S FAILURE TO DEFINE "POSSESSION." (NOT RAISED BELOW) POINT II THE TRIAL COURT FAILED TO SUA SPONTE INSTRUCT THE JURY THAT SPONTANEOUSLY ARMING ONE'S SELF TO AVOID INJURY OR DEATH IS A DEFENSE TO UNLICENSED POSSESSION, AND NEGATES THE UNLAWFUL PURPOSE ELEMENT OF POSSESSION OF A 2 A-0678-16T1 WEAPON FOR AN UNLAWFUL PURPOSE. (NOT RAISED BELOW) POINT III THE TRIAL COURT ERRED IN IMPOSING A SEVEN-YEAR SENTENCE WITH A FIVE-YEAR PAROLE DISQUALIFIER BECAUSE IT FAILED TO PROPERLY BALANCE AGGRAVATING AND MITIGATING FACTORS. I. The State contended that defendant and his paramour and co- defendant, Nicole Zotolla, conspired to rob the victim. Zotolla pled guilty to a lesser offense and was the State's chief witness at trial. She claimed to have accepted the victim's invitation to meet for drinks. While she was out with the victim, defendant called and was very upset. The victim grabbed Zotolla's phone and told defendant "he wasn't scared of him and . . . stop calling." Unbeknownst to the victim, defendant had sent a text message to Zotolla, telling her to drive the victim to Zotolla's former residence, which was unoccupied at the time, where defendant intended to assault and rob the victim. When Zotolla and the victim arrived, defendant was waiting in the driveway. The two men ran towards each other and began to fight, with the victim soon being on top of defendant. Zotolla saw the victim with a gun, which he had shown her earlier at the bar. Zotolla drove away and returned to her home where she met Rachid Rosa, 3 A-0678-16T1 defendant's brother. Rosa was "flustered" and told Zotolla not to call police.1 Zotolla testified that she spoke with defendant after the incident, and he claimed the shooting was an accident. Defendant said he tried to take the gun away from the victim, and the two were fighting over the gun when it discharged. The prosecutor confronted Zotolla with a prior statement she provided two weeks before trial.2 In that statement, Zotolla admitted being part of a plan to rob the victim. She saw defendant and Rosa attack the victim in the driveway before she drove away. Zotolla also stated that defendant told her he and the victim struggled over the victim's gun, and defendant eventually took control of it and struck the victim with the gun before it accidentally discharged, hitting the victim in the forearm. After the shooting, the victim knocked on the door of a nearby home and told its occupant that he had been shot.3 Pemberton 1 Rosa was also named as a co-defendant in count one of the indictment charging defendant and Zotolla with robbery, but was not tried with defendant. 2 The judge admitted the statement as substantive evidence pursuant to State v. Gross, 216 N.J. Super. 98 (App. Div. 1987), aff'd, 121 N.J. 1 (1990). 3 The victim never testified at trial. 4 A-0678-16T1 police officer Shannon Sawyer was dispatched to the scene, where she observed the victim with a significant amount of blood on his forehead and left arm and concluded he had been shot. Police recovered a spent shell in the driveway of Zotolla's former residence, as well as defendant's cell phone. They also obtained data from Zotolla's and defendant's cellphones that verified, through text messages, defendant's instructions to Zotolla regarding the robbery. II. In Points I and II, defendant challenges the jury instructions, arguing certain omissions amounted to plain error requiring reversal of the convictions on the weapons offenses in counts three and four. We agree. The Court has said that [i]n the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." [State v. Burns, 192 N.J. 312, 341 (2007) (second alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).] 5 A-0678-16T1 The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citing State v. DiFrisco, 137 N.J. 434, 491 (1994)). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, 187 N.J. at 289. In a criminal prosecution, the State bears the burden of proving every element of an offense beyond a reasonable doubt. State v. Medina, 147 N.J. 43, 49 (1996) (citing In re Winship, 397 U.S. 358, 364 (1970)). "[P]roper explanation of the elements of a crime is especially crucial to the satisfaction of a criminal defendant's due process rights." State v. Burgess, 154 N.J. 181, 185 (1998) (citing State v. Martin, 119 N.J. 2, 15-17 (1990)). "[E]ach element of an offense must be properly defined." State v. Wallace, 158 N.J. 552, 558 (1999). The Model Jury Charge for unlawful possession of a handgun incorporates comprehensive instructions on "possession": The word "possess" as used in criminal statutes signifies a knowing, intentional control of a designated thing, accompanied by a knowledge of its character. Thus, the defendant must know or be aware that he/she 6 A-0678-16T1 possessed the handgun, and the defendant must know what it is that he/she possesses or controls is a handgun. This possession cannot merely be a passing control that is fleeting or uncertain in its nature. In other words, to "possess" within the meaning of the law, the defendant must knowingly procure or receive the handgun possessed or be aware of his/her control thereof for a sufficient period of time to have been able to relinquish control if he/she chose to do so. A person may possess a handgun even though it was not physically on his/her person at the time of the arrest, if the person had in fact, at some time prior to his/her arrest, had control over it. When we speak of possession, we mean a conscious, knowing possession. [Model Jury Charge (Criminal), "Unlawful Possession of a Handgun," (N.J.S.A. 2C:39-5b) (rev. Feb. 26, 2001) (emphasis added).] The model jury charge for possession of a firearm with the intent to use it unlawfully directs the judge to incorporate the model jury charge on possession. See Model Jury Charge (Criminal), "Possession of a Firearm with a Purpose to Use it Unlawfully Against The Person or Property of Another (N.J.S.A. 2C:39-4a)," (rev. June 16, 2003). The model charge for possession, in turn, instructs the judge to charge where applicable, "Possession cannot merely be a passing control, fleeting or uncertain in its nature." Model Jury Charge (Criminal), "Possession (N.J.S.A. 2C:2-1)," (rev. June 20, 2014). The Court has said "model jury charges should be followed and read in their entirety to the jury[,]" because, [t]he process by 7 A-0678-16T1 which model jury charges are adopted in this State is comprehensive and thorough." State v. R.B., 183 N.J. 308, 325 (2005) (emphasis added). In this case, the State concedes that the judge never defined the term possession when he instructed the jury regarding counts three and four. The State argues, however, this omission was not plain error because the jury understood the term and there was no prejudice to defendant. According to the State and as argued by the prosecutor in summation, defendant either brought the gun to the scene of the planned robbery or he "possessed" the gun when he disarmed the victim and subsequently used it. However, the direct evidence, both from Zotolla's testimony and her prior statement, was that the victim initially had the gun. There was no direct evidence that defendant ever had the weapon beforehand. There was no direct evidence that defendant exercised continued control over the gun after the fight. Because the jury was never told that the State must prove beyond a reasonable doubt that defendant's "possession" of the gun was more than "passing control" and not "fleeting or uncertain," the prejudice to defendant is obvious. We reverse defendant's convictions on count three and four and remand the matter for a new trial on those charges if the State so chooses. We address defendant's second point in the event there is a retrial. Defendant maintains that pursuant to State v. Harmon, 8 A-0678-16T1 104 N.J. 189, 208-09 (1986), the spontaneous possession of a handgun in the process of disarming an attacker is a defense to unlicensed possession, and that defendant's possession of the weapon in self-defense was not unlawful. In response, the State argues that self-defense was unavailable because defendant planned and initiated the altercation. It further contends that Harmon only supports a defense to unlawful possession "in those rare and momentary circumstances where an individual arms himself spontaneously to meet an immediate danger[,]" and the events in this case were not spontaneous. We agree with defendant, and, in the event the State tries the case again, and the evidence supports defendant's contention as it did at trial, the judge must give an appropriate charge when instructing the jury on both unlawful possession and possession for an unlawful purpose. "While self-defense is not a defense to a charge under [N.J.S.A. 2C:39-4], a purpose to use the weapon for self defense is not an unlawful purpose and so would negate the purpose element of th[e] offense." Cannel, New Jersey Criminal Code Annotated, cmt. 3 on N.J.S.A. 2C:39-4 (2017); see also State v. Williams, 168 N.J. 323, 335 (2001) ("[I]f an individual's possession of a firearm is motivated honestly by a self-protective purpose, then his conscious object and design may remain not to do an unlawful act, 9 A-0678-16T1 and a material element of a 39-4(a) violation has not been met.") (quoting Harmon, 104 N.J. at 207). "Further, an unreasonable belief in the need for self-defense or defense of another may negate the element of unlawful purpose even though it would not be adequate to support the justification defenses of self-defense or defense of another." Cannel, cmt. 3 on N.J.S.A. 2C:39-4. Thus, the State's argument that defendant was not entitled to any instruction regarding self-defense because he was the initial aggressor is based upon a mistaken understanding of the law.4 Rather, the evidence at trial would support the following facts beyond a reasonable doubt: the victim, not defendant, was armed with a deadly weapon before and during the encounter; while the two men were engaged in mutual combat, defendant came into possession of the weapon, used it to strike defendant in the head; the gun accidentally discharged. As a result, a jury could 4 "The use of deadly force is not justifiable . . . if[] [t]he actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter." N.J.S.A. 2C:3-4(b)(2)(a); see also N.J.S.A. 2C:3-11(b) (defining deadly force as "force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm"). Count one of the indictment alleged that defendant robbed the victim by use of a deadly weapon, and the prosecutor asserted there was circumstantial evidence that only defendant brought a gun to the scene. We do not address whether defendant was entitled to a substantive charge on self- defense because the issue is not squarely before us, and we do not know what evidence might be adduced at a retrial. 10 A-0678-16T1 conclude that defendant's purpose in possessing the gun was not unlawful, and the judge was required to provide appropriate instructions to the jury. See Model Jury Charge (Criminal), "Possession of a Firearm with a Purpose to Use it Unlawfully Against The Person or Property of Another (N.J.S.A. 2C:39-4a)," (rev. June 16, 2003) (providing instructions if a defendant "raises the issue of protective purpose"). We also disagree with the State's contention that Harmon has no application to the possessory weapons offense charged in count four. Defendant cites to dicta in Harmon, where the Court, considering "unlawful possession" of a firearm, said that "[o]nly in those rare and momentary circumstances where an individual arms himself spontaneously to meet an immediate danger should the justification afforded by N.J.S.A. 2C:3-4 be considered." 104 N.J. at 208-09; accord State v. Kelly, 118 N.J. 370, 385 (1990) ("Harmon defines the extraordinary circumstances that allow for a self-defense under [N.J.S.A. 2C:39-5(d)] as those in which a person makes spontaneous use of a weapon to repell immediate danger."). We agree with defendant that based upon the evidence adduced at trial, there was a rational basis to provide carefully tailored jury instructions that conveyed these concepts. Because we are reversing defendant's convictions on counts three and four, and vacating the sentence imposed on those merged 11 A-0678-16T1 counts, we need not address the sentencing argument raised by defendant in Point III. Reversed and remanded. 12 A-0678-16T1

click here to get this case.


Docket No.: a1406-15
Decided: 2018-01-11
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. Q.W and A.W. and M.T IN THE MATTER OF N.W. and A.W Minors
Status: unpublished
Summary:
LEONE, J.A.D. Defendant Q.W. (Mother) appeals from an October 19, 2015 order terminating this Title Nine proceeding. Mother claims the trial court erred in proceeding to a fact-finding hearing without Mother's knowing and intelligent waiver of her right to counsel. We agree. We delineate the proper colloquy for a family court to follow in determining whether a waiver of counsel has been made knowingly and intelligently. We vacate the September 20, 2012 finding of abuse or neglect and remand for a new fact-finding hearing at which Mother has an opportunity to be represented by counsel. I. We summarize the underlying facts. Mother and defendant A.W. (Father), who is the father of the child A.W. (Daughter), were accused of abusing or neglecting Daughter (born 2006) and Mother's 2 A-1406-15T2 son N.W. (born 1999).1 Specifically, Mother and Father were accused of engaging in substance abuse and allowing the children to witness and become involved in domestic violence between Mother and Father, including an incident on May 15, 2012. Father was also accused of pushing, hitting, or attempting to push or hit the children on May 15. On May 16, 2012, an emergency removal of the children was conducted by what is now known as the Division of Child Protection and Permanency (Division). On May 18, 2012, the Division filed a request for an order to show cause (OTSC), as well as a complaint alleging abuse or neglect by Mother and Father in violation of N.J.S.A. 9:6-8.21(c)(4)(b). On May 18, the initial OTSC hearing was held before the OTSC judge. Mother was present and represented provisionally by an assistant public defender (A.P.D.), who argued the children should be returned to Mother because she had just obtained a temporary restraining order against Father. Father appeared without counsel, but the OTSC judge told him the A.P.D. also spoke for him. The judge upheld the removal, and awarded the Division care, custody, and supervision of the children. 1 The Division later added N.W.'s father M.T. as a defendant, but no findings were made against M.T. Neither M.T. nor Father have appealed. 3 A-1406-15T2 The June 11 return hearing on the OTSC was held before a different judge (motion judge). At the start of the hearing, the A.P.D. who had represented Mother stated her client "has indicated that at this time she would like to proceed pro se." The motion judge conducted the following colloquy: THE COURT: All right. [Mother], why do you want to proceed pro se? [MOTHER]: Because I feel like I have to speak to you and talk to you more on my own behalf. . . . Maybe you can get a . . . proper understanding. . . . THE COURT: [You understand] these are very serious proceedings that could ultimately lead to the termination of your parental rights and if you represent yourself, you have to abide by the same rules of evidence as an attorney, so when we have a fact finding trial you're going to have to understand those rules of evidence so that you can proceed and defend yourself. Do you think you'd be able to do that? . . . [MOTHER]: Yes. Yes, [judge]. THE COURT: If I find that you are not able to do that, I'm going to appoint an attorney and I might even appoint a guardian ad litem if I don't feel you are capable of doing that. Do you still want to proceed pro se? Did you read the complaint? Do you understand the charges . . . do you know why you're here? [MOTHER]: Yes, I know why I'm here. 4 A-1406-15T2 THE COURT: Why? [MOTHER]: Because someone – well, someone that I no longer am friends . . . with had called [the Division] on me. THE COURT: But do you understand that a Judge has already granted the initial order to show cause and has granted the Division custody of your children? [MOTHER]: Well, I was told that that Judge wasn't familiar with Family Court. That's what she told me.[2] THE COURT: Do you think that . . . you're going to be able to represent yourself? You sure you want to represent yourself? [MOTHER]: I don't feel like I'm . . . being helped by her, not last time . . . or this time. THE COURT: . . . [A]re you going to hire your own attorney or you can go to legal services? [MOTHER]: I asked her can I do that and she told me that I can't just switch from her to another person. THE COURT: Well, if I grant your application you can. [MOTHER]: Oh, okay. I would like to do that. THE COURT: Well, I would recommend that you have an attorney. [MOTHER]: Okay. 2 Mother's use of "she" and "her" apparently referred to the A.P.D. 5 A-1406-15T2 THE COURT: If you don't want to use the public defender, that's fine. I can relieve the public defender as counsel. But I would strongly suggest you either hire an attorney or you go to legal services and see if they would represent you. [MOTHER]: Thank you. THE COURT: All right. You're relieved as counsel. [THE A.P.D.]: Thank you. The A.P.D. did not participate further in the June 11 hearing. The motion judge heard testimony, received some comments from Mother, and ordered the children to continue in the Division's care, custody, and supervision. At the end of the hearing, the judge scheduled the next hearing for 9:00 a.m. on September 20, 2012, before a different judge (the trial judge). The motion judge added: "I would strongly suggest, [Mother], that you get an attorney to represent you." The motion judge's June 11 order stated that the A.P.D. "was relieved as [Mother's] attorney per [Mother's] request. [Mother] was advised of her right to counsel, however, she indicated that she will proceed pro se on this matter." The order added that the September 20 hearing was a "Fact-Finding." The Division's attorney sent Mother a letter listing the exhibits and witnesses the Division would call, and explaining the findings the Division would seek at the September 20 fact-finding hearing. 6 A-1406-15T2 When the September 20, 2012 fact-finding hearing commenced at about 10:00 a.m. before the trial judge, Mother and Father were not present. Father's attorney informed the trial judge "it's my understanding that [Mother] is pro se and will be representing herself and she is also not in the building." The following exchange took place: [DIVISION'S ATTORNEY]: And, Your Honor, just by way of – for more information, both defendants were present at the last court hearing, which was before [the motion judge]. [Mother] chose to proceed pro se. [DIVISION'S ATTORNEY]: She did have a public defender assigned. THE COURT: Did [the motion judge] question her . . . extensively? [DIVISION'S ATTORNEY]: Yes, extensively. THE COURT: And she specifically chose to be pro se for the fact finding hearing, also? [DIVISION'S ATTORNEY]: [The motion judge] went through that with her, Your Honor, yes. THE COURT: And was she notified of the fact finding in court . . . of this date? Was she told it would be in this courtroom rather [than] in [the motion judge]'s? [DIVISION'S ATTORNEY]: Yes, Your Honor. 7 A-1406-15T2 A probation officer left a phone message for Mother on the record stating that the trial judge was proceeding with the fact- finding hearing. The trial judge was "quite concerned" because Mother was "acting as her attorney now." The judge wondered "if although she's insisting on being pro se if she's not showing up if I should appoint an attorney to represent her." The following exchange occurred: [FATHER'S ATTORNEY]: The only issue I can . . . anticipate with that, Judge, . . . is the attorney is going to make an objection that they're not prepared to proceed with it. There are voluminous records in this case, and I know, I can anticipate that no attorney would be able to competently represent her just popping in right now. . . . [DIVISION'S ATTORNEY]: She had appointed [the A.P.D.] as her public defender. She chose to not have [the A.P.D.] represent her. And as I said before, . . . [the motion judge] did question her extensively, warned her of the difficulty of proceeding pro se, and that was thoroughly done on the record. I think both counsel were there, too. THE COURT: Yeah. [FATHER'S ATTORNEY]: . . . I do recall the discussions that she was seeking private counsel. I think it was the issue she didn't want a public defender, she wanted a private attorney. And, you know, I know she spoke briefly to me about that and I explained to her that I represented . . . her boyfriend, . . . so I 8 A-1406-15T2 cannot represent her. But that was what she expressed to me. So I don't know if she retained private counsel. I don't know. After a brief recess during which the trial judge apparently telephoned the motion judge, the trial judge decided to proceed, stating: [B]ased on what you've told me and my conversation with [the motion judge], we're going to go forward. [The motion judge] has a memory of her being noticed in court that the fact finding would be here this morning and we have to consider moving ahead for the best interest of the children. She had the opportunity to have counsel and very competent counsel and did not. So we're going to proceed. We're going to start the fact finding. The trial judge heard the Division's testimony. During the testimony, Mother tried to call the Division caseworker four times. The trial judge told the caseworker: "it's up to you if you want to call her. We're proceeding." The judge heard summations from Father's attorney, the Law Guardian, and the Division's attorney. At 12:37 p.m., as the judge was announcing the decision, Mother appeared in the courtroom. The judge did not discuss with her the waiver of counsel issue. Instead, the judge told her to sit quietly and continued announcing the decision. Mother subsequently interrupted several times to disagree with the judge's recitation of the facts. She eventually asked: "Why am I 9 A-1406-15T2 here? . . . To listen to her talk"? She left the courtroom before the judge concluded her opinion. The court found both Mother and Father abused or neglected the children. At the next compliance review, Mother appeared without an attorney, complaining that the trial judge did not give her a chance to speak or do anything. She appeared pro se at two more compliance reviews before saying at a May 13, 2013 permanency hearing that she "would like to obtain an attorney." She was represented by counsel at all remaining hearings. On October 19, 2015, another judge entered an order terminating litigation, as the children had been returned to Mother's physical and legal custody. Mother appeals, arguing she did not waive her right to counsel. II. The Division and the Law Guardian argue we should not hear Mother's challenge to her alleged waiver of counsel because she did not present that challenge in the family court. "[O]ur appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012) (quoting Nieder v. Royal Indem. Ins. Co., 10 A-1406-15T2 62 N.J. 229, 234 (1973)). However, Mother lacked a full "opportunity for such a presentation" at the fact-finding hearing if, as she claims, she was wrongly deprived of the assistance of counsel. Ibid. Although other counsel were appointed for Mother many months later, those counsel were appointed for other purposes, not for challenging the fact-finding hearing. In any event, we choose to address Mother's challenge because it "concern[s] matters of great public interest." Ibid.; see Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 231 (1998). Trial courts generally are "in the best position to evaluate defendant's understanding of what it meant to represent h[er]self and whether defendant's decision to proceed pro se was knowing and intelligent." State v. DuBois, 189 N.J. 454, 475 (2007). The court's decision is reviewed for an abuse of discretion. Ibid. We must hew to that standard of review. III. Mother argues the family court abused its discretion in allowing the fact-finding hearing to proceed while she was not represented by counsel and without her first making a valid waiver of her right to counsel. We agree. "Courts have long recognized that parents charged with abuse or neglect of their children have a constitutional right to counsel." N.J. Div. of Youth & Family Servs. v. E.B, 137 N.J. 11 A-1406-15T2 180, 186 (1994). The Legislature has also granted a statutory right to retain counsel, and to have counsel appointed if indigent, in Title Nine cases. N.J.S.A. 9:6-8.43(a); see N.J.S.A. 9:6- 8.30(a). "The right is also embodied in our Rules of Court." N.J. Div. of Child Prot. & Permanency v. R.L.M., 450 N.J. Super. 131, 142 (App. Div. 2017) (citing R. 5:3-4(a)). "This requirement ensures that parents have a meaningful opportunity to be heard during Title Nine proceedings and that their fundamental interest in the custody and care of their children is protected." State v. P.Z., 152 N.J. 86, 112 (1997). The need for counsel is crucial at the fact-finding hearing. "The fact-finding hearing is a critical element of the abuse and neglect process. . . . The judge's determination has a profound impact on the lives of families embroiled in this type of a crisis." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264-65 (App. Div. 2002). Accordingly, a defendant has "the constitutional right to assistance of counsel during the fact-finding . . . hearings." N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 346 (App. Div. 2007). Here, it is undisputed Mother had a right to appointed counsel at the fact-finding hearing. However, the family court allowed her to waive counsel and proceed to the fact-finding hearing without representation by counsel. Thus, we must address 12 A-1406-15T2 defendant's claim that the waiver of appointed counsel was invalid.3 Our Supreme Court recently addressed the waiver of appointed counsel in a private adoption case. J.E.V., 226 N.J. at 114. The Court advised: If a parent wishes to proceed pro se, the court should conduct an abbreviated yet meaningful colloquy to ensure the parent understands the nature of the proceeding as well as the problems she may face if she chooses to represent herself. Cf. State v. Crisafi, 128 N.J. 499, 511-12 (1992) (describing more in- depth inquiry required before defendant in criminal case may waive right to counsel). Only then will the court be in a position to confirm that the parent both understands and wishes to waive the right to appointed counsel. [Ibid.] 3 We recently held a defendant in a termination case who unsuccessfully sought permission to represent himself had no "constitutional right of self-representation," and that N.J.S.A. 30:4C-15.4(a) did "not explicitly grant a right of self- representation." N.J. Div. of Child Prot. & Permanency v. R.L.M., 450 N.J. Super. 131, 147-48 (App. Div.), certif. granted, __ N.J. __ (2017). Nonetheless, we recognized defendants in family cases have a non-absolute "Rule-based right to appear pro se." Id. at 148 (citing R. 1:21-1(a)). Here, we need not address the source of defendant's right to proceed pro se because she was allowed to proceed pro se, unlike R.L.M. Thus, the issue before us is the adequacy of "the trial court's prerequisite inquiry to assure the parent acts knowingly and voluntarily" when the parent is allowed to "waive the right to counsel." Id. at 147 n.10 (citing In re Adoption of J.E.V., 226 N.J. 90, 114 (2016)). 13 A-1406-15T2 To discern the nature of the "abbreviated yet meaningful" colloquy envisioned by J.E.V., we must examine the "more in-depth inquiry" required for criminal cases by Crisafi and its progeny. Ibid.4 In criminal cases, the court must "determine whether an accused has knowingly and intelligently waived that right and to establish the waiver on the record," and the accused "'should be made aware of the dangers and disadvantages of self- representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open."'" Crisafi, 128 N.J. at 509-10 (quoting Faretta v. California, 422 U.S. 806, 835 (1975)). Specifically, Crisafi required: To ensure that a waiver of counsel is knowing and intelligent, the trial court should inform pro se defendants of the nature of the charges against them, the statutory 4 Other states similarly have looked to their criminal case law to determine the necessity and nature of the colloquy required before a defendant in a family case with a constitutional right to counsel can waive that right. See, e.g., In re Zowie N., 41 A.3d 1056, 1065 (Conn. App. Ct. 2012); Moore v. Hall, 62 A.3d 1203, 1210-11 (Del. 2013); Adoption of William, 651 N.E.2d 849, 851 (Mass. App. Ct. 1995); In re Adoption of J.D.F., 761 N.W.2d 582, 587 (N.D. 2009). Some courts require the criminal standard without change. Bearden v. State Dep't of Human Servs., 42 S.W.3d 397, 401-03 (Ark. 2001); In re C.L.S., 403 S.W.3d 15, 21-22 (Tex. App. 2012). Like our Supreme Court in J.E.V., some courts have explicitly recognized "[t]here is no requirement . . . the court engage in a full Faretta-type admonition and inquiry." In re Angel W., 113 Cal. Rptr. 2d 659, 668 (Ct. App. 2001); see In re J.M., 524 N.E.2d 1241, 1251 (Ill. App. Ct. 1988); In re W.W.E., 67 N.E.3d 159, 170- 74 (Ohio Ct. App. 2016); State v. State, 29 P.3d 31, 34 (Utah Ct. App. 2001). 14 A-1406-15T2 defenses to those charges, and the possible range of punishment. . . . In general, the court should also inform defendants of the technical problems they may encounter in acting as their own counsel and of the risks they take if their defense is unsuccessful. Further, the court should inform the defendants that they must conduct their defense in accordance with the relevant rules of criminal procedure and evidence, that a lack of knowledge of law may impair their ability to defend themselves, and that their dual role as attorney and accused might hamper the effectiveness of their defense. Also, the court should explain to the defendants the difficulties in acting as their own counsel and should specifically advise the defendants that it would be unwise not to accept the assistance of counsel. [Id. at 511–12 (citations omitted).] Subsequently, the Supreme Court in State v. Reddish, 181 N.J. 553 (2004), "added to the Crisafi inquiry." DuBois, 189 N.J. at 468 (citing Reddish, 181 N.J. at 594–95). Taken together, then, the Crisafi/Reddish inquiry now requires the trial court to inform a defendant asserting a right to self-representation of (1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (5) the impact that the dual role of counsel and defendant may have; (6) the reality that it would be unwise not to accept the assistance of counsel; (7) the need for an open-ended 15 A-1406-15T2 discussion so that the defendant may express an understanding in his or her own words; (8) the fact that, if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim; and (9) the ramifications that self- representation will have on the right to remain silent and the privilege against self- incrimination. [Id. at 468–69.] From this "more in-depth inquiry required before [a] defendant in [a] criminal case may waive [the] right to counsel," we must draw an abbreviated yet meaningful colloquy. J.E.V., 226 N.J. at 114 (citing Crisafi, 128 N.J. at 511-12). We believe warnings (1), (3), (4), (5), (6), and (8), adapted for family cases, are essential to an "abbreviated yet meaningful colloquy to ensure the parent understands the nature of the proceeding, as well as the problems she may face if she chooses to represent herself." Ibid. Such warnings are also essential to provide an adequate evidentiary record for both the family and appellate courts to determine if a parent's waiver of counsel is knowing and voluntary. Accordingly, we hold family courts in proceedings carrying a right to counsel must inform a defendant seeking to represent himself or herself of: (a) the nature of the charges in the family court complaint, and the potential consequences if the Division proves those charges; 16 A-1406-15T2 (b) the necessity that defendant comply with the rules of family and civil practice and the rules of evidence; (c) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (d) the impact that the dual role of counsel and defendant may have; (e) the reality that it would be unwise not to accept the assistance of counsel; and (f) the fact that, if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim.[5] 5 Delaware similarly requires "advising the parent about the dangers of self-representation, for example: (1) that the parent will have to conduct his or her case in accordance with the rules of evidence and civil procedure, rules with which he or she may not be familiar; (2) that the parent may be hampered in presenting his or her best case by a lack of knowledge of the law; (3) that the effectiveness of his or her presentation may be diminished by the dual role as attorney and respondent; (4) limited knowledge of the statutory grounds for the petition to terminate his or her parental rights; and 17 A-1406-15T2 Applying this abbreviated yet meaningful colloquy to an abuse or neglect case reflects the statutory and case law governing such cases. Under warning (a), a family court should advise defendant of the statutory relief the Division is seeking, which may include rulings by the court that the child is abused or neglected, that the child may be removed and placed in the custody or supervision of the Division or another person, that defendant's conduct or contact with the child may be limited by an order of protection, that defendant may be placed on probation, and that defendant may be required to accept services. See N.J.S.A. 9:6-8.50(a), (d), (e); N.J.S.A. 9:6-8.51(a); N.J.S.A. 9:6-8.53(a); N.J.S.A. 9:6- 8.54(a); N.J.S.A. 9:6-8.55; N.J.S.A. 9:6-8.56; N.J.S.A. 9:6-8.58. Under warning (a), the family court should also advise that a finding of abuse or neglect may result in an action to terminate defendant's parental rights to the child. See N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 179 (2014); see also N.J.S.A. 30:4C-15(a). Further, the court "should advise the defendant that as a result of a finding of abuse and/or neglect, the defendant's name shall remain on the [Division's] Central (5) any other facts essential to a broad understanding of the termination proceeding." [Moore, 62 A.3d at 1210–11.] 18 A-1406-15T2 Registry of confirmed perpetrators" of child abuse, and that information about defendant may be released to employers, doctors, courts, law enforcement, child welfare agencies, and others. Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 618 (App. Div. 2011); see N.J.S.A. 9:6-8.10(a) to -8.10(e); N.J.S.A. 9:6- 8.11; N.J.S.A. 30:5B-25.3. Under warning (b), the family court should reference "the rules of family and civil practice" because civil family actions are governed by the rules governing family practice, and by the rules governing civil practice as applicable. R. 5:1-1. Warning (f) reflects both that defendant has a right to effective assistance of counsel, N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007); N.J. Div. of Child Prot. & Permanency v. P.D., 452 N.J. Super. 98, 116 (App. Div. 2017), and that the right is lost if defendant elects to represent himself, see Reddish, 181 N.J. at 594. This meaningful colloquy is "abbreviated" by the omission from the "more in-depth" criminal colloquy of requirements which have reduced relevance in civil family proceedings. See J.E.V., 226 N.J. at 114. A family court need not include DuBois's warning (1)'s reference to "statutory defenses." 189 N.J. at 468. There are no statutory defenses in abuse or neglect proceedings that are 19 A-1406-15T2 not adequately referenced by describing the nature of the charges in the Division's complaint. A family court also need not give DuBois's warning (3) concerning "the technical problems associated with self- representation and the risks if the defense is unsuccessful." Ibid. Warnings (b), (c), and (d) already caution defendants about the principal technical problems associated with self- representation, namely: the need to comply with the civil, family, and evidence rules; the effect of lack of knowledge of the law on the ability to defend; and the impact of the dual role of counsel and defendant. No other specific technical problems are mentioned in our precedential decisions, and none come to mind that would require warning (3) in a family case. See also State v. King, 210 N.J. 2, 19 (2012) (holding the colloquy's "goal is not to explore a defendant's familiarity with '"technical legal knowledge[,]"' for that is not required" (quoting Reddish, 181 N.J. at 595 (quoting Faretta, 422 U.S. at 835))). As for the risks if the defense is unsuccessful, warning (a) already advises defendants of the potential consequences if the Division proves its charges. Warning (3) is thus largely covered by the remaining warnings, and can be removed to meet our Supreme Court's goal of an abbreviated colloquy. 20 A-1406-15T2 A family court also need not give DuBois's warning (7). 189 N.J. at 468. In Reddish, a capital case, our Supreme Court took "this opportunity to amplify our directive in Crisafi" by requiring criminal courts to "ask appropriate open-ended questions that will require defendant to describe in his own words his understanding of the challenges that he will face when he represents himself at trial." Reddish, 181 N.J. at 593, 595. Such open-ended questioning, while desirable, epitomizes the "more in-depth inquiry required before [a] defendant in [a] criminal case can waive [the] right to counsel." J.E.V., 226 N.J. at 114. Eliminating that open-ended amplification is the most obvious way to follow our Supreme Court's instruction that family courts should "conduct an abbreviated yet meaningful colloquy." Ibid. Finally, a family court need not give DuBois's warning (9): "the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination." 189 N.J. at 468. This is another Reddish amplification which is more pertinent to criminal cases. 181 N.J. at 594. A criminal defendant who represents himself at a criminal trial runs the risk that any word he speaks may help convict him in that very trial. An action brought by the Division, such as an action alleging abuse or neglect under N.J.S.A. 9:6-8.21, is a separate civil proceeding. Div. of Youth & Family Servs. v. Robert M., 347 N.J. 21 A-1406-15T2 Super. 44, 63 (App. Div. 2002) (citing P.Z., 152 N.J. at 100). It is designed "to safeguard abused children from further harm" rather than to punish "criminal culpability." Ibid. As it is a separate, civil proceeding, there is no occasion for "requiring additional protections for the parents of abused children to be imported from our criminal jurisprudence into Title Nine proceedings." See N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 631 (App. Div. 2010) (quoting P.Z., 152 N.J. at 112). Thus, in a civil abuse or neglect proceeding, if a defendant with a right to counsel wishes to proceed pro se, a family court should conduct the abbreviated yet meaningful colloquy we have set forth above. That colloquy covers the crucial warnings a defendant should consider in order to make a knowing and intelligent waiver of counsel. In requiring this abbreviated but meaningful colloquy, we set the baseline for a colloquy waiving the right to counsel in a family cases. Family courts are free to add to this colloquy. They may address any pertinent defenses, raise any other technical problems or risks of self-representation particular to the case, discuss the right to silence and the privilege against self- incrimination when prosecution is threatened, engage the defendant in open-ended questioning, or raise any other concern peculiar to the case to permit the court to determine if a defendant knowingly 22 A-1406-15T2 and intelligently waived the right to counsel. Nonetheless, we hold the abbreviated yet meaningful colloquy described above will suffice in all but the most exceptional circumstances. IV. We must now consider whether the colloquy conducted by the trial court covered the warnings in the abbreviated but meaningful colloquy described above. We recognize the court did not have the benefit of the J.E.V. opinion and "could not have anticipated our decision" implementing it. See DuBois, 189 N.J. at 472 (reversing even though the trial court could not have anticipated the Reddish decision). Nevertheless, "demonstrating that an individual has validly waived [the] right to counsel long required a showing that the waiver was knowing, voluntary and intelligent." State v. Wessells, 209 N.J. 395, 402 (2012) (citing Miranda v. Arizona, 384 U.S. 436, 475 (1964)). Similarly, family courts have long required a defendant's "waiver or renouncement of counsel . . . be made intelligently and understandingly." In re Guardianship of C.M., 158 N.J. Super. 585, 592 (Cty. Ct. 1978); see Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 53 (1981). To make that showing in criminal cases, courts have long employed the warnings enunciated in Crisafi in 1992 and Reddish in 2004. J.E.V. and our decision simply provide an abbreviated version. 23 A-1406-15T2 Thus, we must review the abbreviated colloquy's requirements "to determine if each was satisfied." See DuBois, 189 N.J. at 469-73. Unfortunately, the colloquy by the motion judge did not include all the warnings required for a meaningful colloquy. Regarding warning (a), the judge did not warn Mother about the nature of the charges in the family court complaint. The judge asked "Did you read the complaint? Do you understand the charges" but, before Mother could answer, the judge moved on to another question, "do you know why you are here?" Mother's answer – because a friend called the Division on her – failed to show she had any comprehension of the complaint or the charges. The judge also did not warn Mother adequately of the potential consequences. The judge informed Mother that the Division had already taken custody of her children, and that these were "very serious proceedings that could ultimately lead to the termination of your parental rights." However, the judge did not warn Mother of any of the other possible consequences, including that the Division was seeking continuing custody and a finding of abuse or neglect that would continue Mother on the central registry. The motion judge did not give warnings (b), (c), and (d), except to note that Mother would have to comply with the rules of evidence. The judge did not mention the need to comply with the rules of family and civil procedure, the possible impairment to 24 A-1406-15T2 her defense from lack of knowledge of the law, or the effect of the dual role of counsel and defendant. The motion judge did "recommend that [Mother] have an attorney" and "strongly suggest[ed she] either hire an attorney or [she] go to legal services and see if they would represent [her]." This conveyed the gist, albeit in the obverse, of warning (e), which advises that it would be unwise not to accept the assistance of counsel. Finally, the judge did not give warning (f) about the inability to claim ineffectiveness of counsel. Thus, the motion judge did not conduct a meaningful colloquy. See Crisafi, 128 N.J. at 512. "Only then will the court be in a position to confirm that the parent both understands and wishes to waive the right to appointed counsel." J.E.V., 226 N.J. at 114. Moreover, "an unequivocal request for self-representation by a defendant is a necessary prerequisite to the determination that the defendant is making a knowing and intelligent waiver of the right to counsel." State v. Figueroa, 186 N.J. 589, 593 n.1 (2006); see N.J. Div. of Child Prot. & Permanency v. R.L.M., 450 N.J. Super. 131, 150 (App. Div. 2017). Mother did not make an unequivocal request to proceed pro se. Mother initially indicated she thought it was in her best interest to represent herself rather than be represented by the 25 A-1406-15T2 A.P.D. However, once the motion judge asked Mother if she was going to hire her own attorney or go to legal services, and told her that she could switch from the A.P.D. to another attorney, Mother indicated she "would like to do that." When the judge recommended she retain an attorney or approach legal services, Mother apprised "Okay" and "Thank You." Once the judge raised the possibility of obtaining another counsel, Mother endorsed getting another attorney rather than proceeding pro se. Indeed, at the fact-finding hearing, Father's attorney recalled "the issue [was] she didn't want a public defender, she wanted a private counsel," "was seeking private counsel," and had tried to get him to represent her. Thus, Mother did not make an unequivocal request to proceed without a lawyer. The trial judge tried to verify that Mother had validly waived her right to counsel. The Division's attorney told the trial judge the inquiry before the motion judge was "extensive," but in fact the inquiry was inadequate. The trial judge did not obtain a transcript of the prior proceeding before the motion judge. The trial judge appears to have spoken with the motion judge, but what was said is not of record. When Mother later appeared, the trial judge did not speak with Mother directly. In any event, the trial 26 A-1406-15T2 judge did not remedy that Mother received an insufficient colloquy and did not unequivocally elect to proceed without counsel.6 V. In criminal cases, "the failure of the trial court to engage in a thorough exchange with defendant 'does not end our inquiry whether a defendant has waived counsel knowingly and intelligently.'" DuBois, 189 N.J. at 473 (quoting Crisafi, 128 N.J. at 512). "In the exceptional case, if the record indicates that the defendant actually understood the risks of proceeding pro se, a waiver may suffice." Crisafi, 128 N.J. at 513. "This limited exception, when the absence of a searching inquiry will not undermine the waiver of counsel, applies only in rare cases." Ibid. We hold this limited exception applies equally in termination of parental rights and abuse and neglect proceedings. However, this is not such an exceptional case. See State v. Blazas, 432 N.J. Super. 326, 338-39 (App. Div. 2013). There is no indication Mother was an experienced litigant who actually 6 Whether Mother had waived her right to counsel is a separate issue from whether she had waived her right to be present by failing to appear for the fact-finding hearing. Nonetheless, we acknowledge "that the deficiencies in the manner in which the trial court handled [this issue] are undoubtedly due, in some measure, to the way in which defendant presented the issue" by failing to appear at the beginning of the hearing when the trial judge might have questioned her directly. See King, 210 N.J. at 20. 27 A-1406-15T2 understood the risks of proceeding pro se. Cf. Crisafi, 128 N.J. at 513-16; DuBois, 189 N.J. at 473-74. More significantly, it is ambiguous whether Mother actually elected to proceed pro se or simply wanted different counsel. Thus, we must conclude the motion and trial judges abused their "discretion in finding that defendant knowingly and intelligently waived [her] right to counsel." DuBois, 189 N.J. at 475. We vacate and remand for a new fact-finding hearing at which Mother has an opportunity to be represented by counsel. We do not reach the merits of the family court's finding of abuse and neglect. Vacated and remanded. We do not retain jurisdiction. 28 A-1406-15T2

click here to get this case.


Docket No.: a1469-16
Decided: 2018-01-11
Caption: NORTH JERSEY MEDIA GROUP INC v. CITY OF CLIFTON
Status: unpublished
Summary:
PER CURIAM Appellant North Jersey Media Group, Inc. (NJMG) appeals from an October 25, 2016 order dismissing its complaint against defendant City of Clifton and its custodian of records, Nancy Ferrigno, seeking production of certain records pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right to inspect government records. For the reasons that follow, we affirm. I. In 2015, Clifton began exploring a potential transition from paying its employees biweekly to paying them semimonthly. Under its biweekly payroll system, Clifton issued payroll checks every other Friday, yielding twenty-six pay periods per year. In contrast, under a semimonthly system, Clifton would pay its employees on the fifteenth and last day of each month, yielding twenty-four pay periods per year. Clifton employees contended biweekly pay periods resulted in a shortfall of their annual compensation. Specifically, there are fifty-three Fridays instead of fifty-two approximately every five years. Clifton's biweekly payroll system, however, paid employees as if there were only fifty-two weeks in that fifth year. Employees alleged they were not paid for that first week, leaving them underpaid in those years. 2 A-1469-16T4 NJMG is the owner of various print and web-based news organizations, including The Record, a general circulation daily newspaper. The Record began investigating and reporting on a potential transition by Clifton to a semi-monthly payroll system due to the allegation that Clifton's biweekly payroll system was shortchanging employees. The investigation revealed that Clifton employees were not being compensated for every day they worked. In response to the investigation, Clifton hired Lerch, Vinci & Higgins (LVH), an accounting firm, to perform an independent review of its payroll practices. LVH was tasked with analyzing and providing recommendations in connection with Clifton's twenty- six pay period system, as well as the consequences of changing to a twenty-four pay period system. At a June 30, 2015 special meeting, Clifton announced that LVH would be commissioned to determine whether the City was handling the payroll issue properly. Following its review, LVH prepared a report of its findings. Over the course of five months, LVH revised the report five times in response to questions and comments by Clifton officials. The revisions were requested by Clifton or its attorney to address anticipated issues likely to be raised in the expected grievances and arbitrations. According to Clifton's Chief financial Officer, "[n]umerous discussions were held involving [his] department, the Law Department, outside counsel and the City's expert consultant 3 A-1469-16T4 as to how to proceed." The six versions of the report were sent to Clifton in July, August, and December 2015.1 Clifton characterizes each version of the report as a draft and deliberative in nature. NJMG contends that the report was not in draft form, but rather, was commissioned for investigative purposes and contained only factual data. Following LVH's submission of the August 3, 2015 version of the report, Clifton held a meeting of its governing body on August 15, 2015, and made the decision to convert to semimonthly pay periods. On January 8, 2016, Clifton issued special payroll checks to 439 employees to make up for the shortfall between days previously worked and pay received that resulted from the prior biweekly pay periods. The unions representing the affected employees subsequently filed grievances contesting the amount paid, alleging that the employees were still owed additional back 2 pay. Some of the grievances went to arbitration. On December 16, 2015, a reporter for The Record submitted a request to Clifton for the following documents pursuant to OPRA and the common law: 1 Two versions of the report are dated July 14, 2015 and another two are dated December 3, 2015. The others are dated August 3, 2015 and December 2, 2015. 2 Some of the grievances were settled through arbitration, while others remained pending when this appeal was filed. 4 A-1469-16T4 (1) The audit of Clifton payroll this year performed by Lerch, Vinci & Higgins of Fair Lawn and any recommendations made regarding the payroll and payment to employees. (2) . . . [D]ocuments that explain how the [C]ity determined the amount to be paid to employees at the beginning of January in lump sums to each employee. (4)3 . . . [M]emos or letters sent out to employees regarding the lump sums they are to receive in January and the calculations made to determine the amount. (5) . . . [D]ocuments showing payments made to employees who were hired in 2015, and the amount of pay they received after Aug[ust] 1 when the city went to a bi-monthly paychecks. Defendant Nancy Ferrigno, Clifton's designated Custodian of Records, responded to the request on December 28, 2015. Ferrigno provided copies of 490 pages of "interoffice memorandums" that were sent to each of Clifton's affected employees advising them how much they would receive in special payroll. However, Ferrigno withheld the report for the following reasons expressed in an email: The report, even once finalized, will not be a public record as it will be used by the City in connection with actual and/or potential litigation related to the grievance and arbitration proceedings. In addition, it will be subject to the deliberative process privilege and will not be subject to a request under OPRA. See Cielsa v. New Jersey Dept. of Health and Senior Services, 429 N.J. Super. 3 The email did not contain an item number three. 5 A-1469-16T4 127, 57 A.3d 40 ([App. Div.] 2012), which held that the exemption of deliberative materials from [the] definition of a "government record" subject to disclosure under Open Public Records Act (OPRA) is an unqualified one. On February 8, 2016, NJMG filed a verified complaint against defendants challenging the denial of its request for the LVH report. In count one of the complaint, NJMG demanded access to the requested LVH report under OPRA and asserted that defendants' failure to produce the report was a violation of OPRA. In count two, NJMG alleged that it was entitled to production of the requested report under the common law right of access to public records. Each count also demanded an award of counsel fees and costs. On February 16, 2016, the trial court issued an order to show cause requiring defendants to show cause why the relief sought in in the complaint should not be granted. Defendants filed an opposition on March 29, 2016. A certification by Clifton's Chief Financial Officer claimed "[n]umerous discussions were held involving [his] department, the Law Department, outside counsel and the City's expert consultant as to how to proceed." Clifton further asserts it intended to use the LVH report in connection with a pending payroll arbitration filed by PBA Local 36. The parties appeared before the trial court on April 28, 2016. Plaintiff argued the LVH report was investigative in nature 6 A-1469-16T4 because Clifton was investigating a claim brought to its attention by The Record. NJMG claimed the LVH report must be disclosed to "allow plaintiff and the public to confirm, that [employees] have been properly paid." In contrast, Clifton argued the LVH report was in "draft" form, pre-decisional, deliberative in nature, and was, at the time, being relied upon in considering its response to, and negotiation and settlement of, the employee grievances. Following oral argument, the trial court ordered Clifton to forward each version of the report for in camera review. On September 21, 2016, the parties appeared before the trial court to receive the court's decision as a result of the in camera review. The court determined the report was deliberative material exempt from disclosure under OPRA. The judge characterized the report as being "mostly just statistical data," but recognized the analysis did not end there. The judge then read the following passage from Educ. Law Ctr. v. N.J. Dep't of Educ. into the record: "pre-decisional documents do not lose their protection from unwarranted public scrutiny merely because they may contain numerical or statistical data or information used in the development of[,] or deliberation on[,] a possible government[al] course of action." 198 N.J. 274, 295 (2009). The judge found that LVH did not give "advice or [] suggestions as to how to proceed. It just gave them a . . . per 7 A-1469-16T4 employee statistic as to what they felt . . . was a discrepancy between what they should have been paid and what they in fact were paid, both for the first year and -- and running currently." Although he "didn't see any advice" in the report, he classified the report as "recommendations[] and deliberations comprising part of a process by which [Clifton's] decisions and policies [were] formulated." The judge concluded the "statistical information" in the report "certainly [was] part of the process by which the decisions and the policies of the City [were] formulated." Recognizing that government records subject to disclosure under OPRA "shall not include inter-agency or intra-agency advisory, consultative or deliberative material[,]" the judge held the six versions of the report were exempt from disclosure under the deliberative process privilege. The decision was memorialized in an order entered on October 25, 2016, which dismissed NJMG's complaint with prejudice. On appeal, NJMG argues that the LVH report is neither a draft report for deliberative purposes nor an expert report for use in defending the city against grievances. NJMG further argues we should examine the report as part of its review in this matter. II. We apply the following standards of review. We exercise de novo review of the trial court's legal conclusions concerning 8 A-1469-16T4 access to public records under OPRA and the common-law right of access. Drinker Biddle & Reath, LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J. Super. 489, 497 (App. Div. 2011). "We also conduct plenary review of the trial court's legal conclusion that a privilege exempts the requested records from disclosure[.]" K.L. v. Evesham Twp. Bd. of Ed., 423 N.J. Super. 337, 349 (App. Div. 2011) (citing Paff v. Div. of Law, 412 N.J. Super. 140, 149 (App. Div. 2010); Asbury Park Press v. Cnty. of Monmouth, 406 N.J. Super. 1, 6 (App. Div. 2009), aff'd, 201 N.J. 5 (2010). "We defer to the trial court's factual findings when they are 'supported by adequate, substantial and credible evidence.'" North Jersey Media Grp., Inc. v. State Office of the Governor, 451 N.J. Super. 282, 295-96 (App. Div. 2017) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). "We apply a different and deferential standard of review when a court conducts an in camera review of documents and balances competing interests in disclosure and confidentiality in connection with a common-law-based request to inspect public records." North Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70, 89 (App. Div. 2015) (citing Shuttleworth v. City of Camden, 258 N.J. Super. 573, 588 (App. Div. 1992)). 9 A-1469-16T4 III. NJMG contends the trial court misinterpreted the deliberative process privilege by finding that the report, which contained "mostly just statistical data[,]" was qualified for protection under the privilege even though disclosure would not reveal information about the defendant's deliberations. Clifton contends the report is exempt from disclosure under OPRA because it is incomplete, pre-decisional, deliberative, and is not an investigative report. Clifton maintains the report should not be ordered disclosed even in redacted form. The general purpose of OPRA is "to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process." Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury Park Press v. Ocean Cnty. Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). To achieve this purpose, OPRA provides that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest[.]" N.J.S.A. 47:1A-1. This appeal turns upon one of those codified exceptions. Although OPRA broadly defines the term "government record," it expressly provides that it "shall not include inter-agency or intra-agency advisory, consultative, or deliberative material." 10 A-1469-16T4 N.J.S.A. 47:1A-1.1. "This exemption has been construed to encompass the deliberative process privilege, which has its roots in the common law." Ciesla, 429 N.J. Super. at 137 (citing Educ. Law Ctr., 198 N.J. at 284). The deliberative process privilege allows government entities to "withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which [its] decisions and policies are formulated." In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 83 (2000) (NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975)). "[T]he privilege is necessary to ensure free and uninhibited communication within governmental agencies so that the best possible decisions can be reached[.]" Educ. Law Ctr., 198 N.J. at 286. "The privilege bars the 'disclosure of proposed policies before they have been fully vetted and adopted by a government agency,' thereby ensuring that an agency is not judged by a policy that was merely considered." Ciesla, 429 N.J. Super. at 137-38 (quoting Educ. Law Ctr., 198 N.J. at 286). "In order to invoke the deliberative process privilege, an agency must initially prove that a document is 'pre-decisional,' i.e., 'generated before the adoption of an agency's policy or decision,' and also 'deliberative,' in that it 'contain[s] opinions, recommendations or advice about agency policies.'" Id. 11 A-1469-16T4 at 138 (alteration in original) (quoting Integrity, 165 N.J. at 84-85). Here, all six versions of the report predated the decision how to compensate employees for unpaid work time, issuance of special payroll checks to the affected employees, and the filing of the arbitrations. Moreover, the first three drafts of the report predated the August 15, 2015 decision to convert to semimonthly pay periods. The fact that the report underwent five revisions at Clifton's request bespeaks its ongoing draft status. "By their very nature, draft documents are preliminary and subject to further revision." Ciesla, 429 N.J. Super. at 140. Pre-decisional drafts are protected from disclosure. See id. at 141; State v. Ballard, 331 N.J. Super. 529, 551-53 (App. Div. 2000). We further find the report to be closely related to Clifton's formulation and exercise of "policy-oriented judgment" to adopt semimonthly pay periods and to decide how and when to remit payment for unpaid work time. See Educ. Law Ctr., 198 N.J. at 295. The trial court declared the report exempt from disclosure despite the fact that it contained considerable statistical data. We recognize that "[p]urely factual material that does not reflect deliberative processes in any way is not protected by the privilege." Ciesla, 429 N.J. Super. at 138 (citing Integrity, 165 N.J. at 85). However, as explained by the Court in Educ. Law 12 A-1469-16T4 Ctr., the fact that the report contains statistical data and other factual information does not preclude protection by the privilege. Deliberative material need not, in all instances, expressly reflect an overt opinion, recommendation, or advice when a discretionary decision is in development. And, pre- decisional documents do not lose their protection from unwarranted public scrutiny merely because they may contain numerical or statistical data or information used in the development of, or deliberation on, a possible governmental course of action. As the D.C. Circuit Court aptly stated, the deliberative process privilege "was intended to protect not simply deliberative material, but also the deliberative process of agencies." [Educ. Law Ctr., 198 N.J. at 295 (emphasis in original) (quoting Mapother v. Dep't of Justice, 3 F.3d 1535, 1538 (D.C. Cir. 1993).] Having concluded that the draft, pre-decisional report is deliberative material, it is unqualifiedly exempt from disclosure under OPRA. Ciesla, 429 N.J. Super. at 142-45. IV. Clifton further contends that disclosure of the report, which it categorizes as an expert report, is precluded by the work- product doctrine. See R. 4:10-2(c). NJMG contends that the LVH report does not qualify for work-product protection because it was not prepared "in anticipation of litigation," but rather, was used in deciding whether to issue special paychecks to defendant's employees. 13 A-1469-16T4 The work-product doctrine "protect[s] against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." R. 4:10-2(c). In order for the doctrine to apply, the document must have been "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent)[.]" Ibid. A document "will be considered to have been prepared in anticipation of litigation if the 'dominant purpose' in preparing the document was concern about potential litigation and the anticipation of litigation was 'objectively reasonable.'" Miller v. J.B. Hunt Transport, Inc., 339 N.J. Super. 144, 150 (App. Div. 2001). Public policies generally shield consultations with expert witnesses in connection with pending or threatened litigation. Those policies apply with equal force to pending or threatened labor grievances and arbitrations. "Documents that satisfy the OPRA definition of government record are not subject to public access if they fall within the work-product doctrine." O'Boyle v. Borough of Longport, 218 N.J. 168, 188 (2014) (citing Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531 542 (2012); Gannett N.J. Partners, L.P. v. Cnty. of Middlesex, 379 N.J. Super. 205, 218 (App. Div. 2005)). 14 A-1469-16T4 Clifton's assertion of the work-product privilege is also bolstered by the policies reflected in Rule 4:10-2(d)(1), which was specifically amended in 2002 to insulate draft expert reports as well as related oral and written communication between the attorney and the expert. See Pressler & Verniero, Current N.J. Court Rules, cmt. 5.2.1 on R. 4:10-2(d)(1) (2018). The same principles apply here in the context of the anticipated adversarial proceedings in the form of grievances and arbitrations that Clifton correctly predicted would be filed. The report was prepared by LVH in its capacity as Clifton's consultant. The information contained in the report would be highly relevant to the issues raised in the grievances and arbitrations filed by the affected employees. The revisions to the report were requested, in large part, for its intended use in the grievance and arbitration process. The report was augmented to address the issues expected to be raised in arbitrations that were then "likely" to be filed by "one or more of the unions." Indeed, following denial of the grievances, a request for arbitration was filed against Clifton on December 7, 2015, only four days after the last draft of the report was issued. For these reasons, we hold that the work-product doctrine provides an independent justification for withholding the report. 15 A-1469-16T4 V. In count two of its complaint, NJMG alleges it is entitled to access to the report under the common law right of access to government documents. A citizen may be entitled to access to public records under the common law even though the records are not subject to disclosure under OPRA. Indeed, OPRA provides that it should not be construed as limiting the common law right of access to government records. N.J.S.A. 47:1A-1, -8; see also Bergen Cnty. Improvement Auth. v. North Jersey Media Grp., Inc., 370 N.J. Super. 504, 516 (App. Div. 2004). NJMG's argument before the trial court did not include any analysis of the right of access to the report under the common law. Similarly, NJMG did not raise the issue of the common law right of access in its notice of appeal. Nor did it brief that issue. The consequence of failing to brief an issue is waiver or abandonment of that issue on appeal. See Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); Drinker Biddle, 421 N.J. Super. at 496 n.5 (holding that claims not addressed in merits brief deemed abandoned); Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived."); DeVane v. DeVane, 280 N.J. Super. 488, 490 n.2 (App. Div. 1995) (considering issues not briefed on appeal to be abandoned); Pressler & Verniero, cmt. 5 on R. 2:6-2 (stating that "an issue 16 A-1469-16T4 not briefed is deemed waived"). We deem the issue of the common law right of access to the report to be abandoned. VI. In summary, we affirm the determination by the trial court that the report is exempt from disclosure. Affirmed. 17 A-1469-16T4

click here to get this case.


Docket No.: a1803-15
Decided: 2018-01-11
Caption: STATE OF NEW JERSEY v. JOSEPH HOO
Status: unpublished
Summary:
PER CURIAM After a municipal trial, followed by a trial de novo in the Law Division, defendant was convicted of disorderly conduct, N.J.S.A. 2C:33-2(a)(2), and sentenced to a one-year period of probation,1 a $506 fine, and $33 in court costs. The evidence found credible reveals that on Thanksgiving Day 2013, defendant – miffed at not being invited for dinner – drove to the victim's New Milford home for an explanation. Defendant exited his vehicle and approached the premises yelling and waving a machete. Defendant's brother convinced defendant to put away the machete, and defendant complied, but he continued to loudly berate and threaten the victim with statements such as, "I will get you, you better watch your back." Police were called. Defendant had started to drive away from the area as police arrived. His vehicle was stopped, and defendant was required to exit his vehicle. He was patted down in light of the information the officers had received about a machete. A detective walked around defendant's minivan and observed a machete and two baseball bats in plain view as he looked through the rear window. The machete and other irrelevant items were seized. 1 According to the order under review, the one-year probationary term was completed by the time the Law Division judge imposed sentence. 2 A-1803-15T2 Defendant moved to suppress the machete, arguing it was recovered through an unconstitutional warrantless seizure; the suppression motion was denied by both the municipal judge and the Law Division judge. Although charged with other offenses, the Law Division judge convicted defendant only of a violation of N.J.S.A. 2C:33-2(a)(2), which provides that an actor is guilty of a petty disorderly persons offense, "if with purpose to cause public inconvenience, annoyance or alarm" the actor "[c]reates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor." In appealing, defendant argues: I. THE COURT SHOULD VACATE APPELLANT'S CONVICTION FOR VIOLATION OF N.J.S.A. 2C:33- 2(a)(2), AS THERE IS NO EVIDENCE OF PUBLIC INCONVENIENCE, ANNOYANCE, OR ALARM, AND THEREFORE NO BASIS FOR SAID VIOLATION AND CONVICTION. II. THE COURT MUST EXCLUDE FROM EVIDENCE ANY ITEMS OBTAINED FROM MR. HOO'S VEHICLE BECAUSE THE OFFICERS' SEARCH OF MR. HOO'S CAR WAS WITHOUT PROBABLE CAUSES, A WARRANT OR CONSENT. III. THE COURT MUST VACATE APPELLANT'S CONVICTIONS BECAUSE FINDINGS OF FACT WERE TAINTED BY MUNICIPAL COURT JUDGE'S ADMITTED BIAS. 3 A-1803-15T2 We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following few comments. We reject defendant's first point because there can be no doubt that the act of shouting and threatening another while waving or brandishing a machete violates N.J.S.A. 2C:33-2(a)(2). Defendant appears not to dispute that concept so much as he argues an alternative version of the facts – that he only briefly wielded a machete. We are satisfied that, however brief, the mere appearance of a machete in these circumstances was sufficient to "cause public inconvenience, annoyance or alarm." And we find meritless the argument that because the argument took place on private property there could not be, as a matter of law, a "public" inconvenience. The event did not take place behind closed doors but out in the open and, therefore, had the capacity to concern and unnerve nearby members of the public. Although the evidence adduced at the suppression hearing more than adequately laid a foundation for application of the plain- view exception, and our standard of review mandates deference to such findings, State v. Locurto, 157 N.J. 463, 470-71 (1999), we need not consider defendant's second point except to add the admission of the machete as an exhibit at trial had no bearing on the outcome. The pivotal finding didn't turn on the actual 4 A-1803-15T2 admission of the machete itself but on the testimony that defendant wielded or brandished a machete during the event in question. We also reject defendant's third point. Defendant would have us conclude the municipal judge was biased and that his bias infected the Law Division's later findings in convicting defendant on de novo review. Defendant argues the municipal judge was biased because he referred to the matter, on earlier occasions when it was called but unready to be tried, as "the machete case" or "the machete incident." In another instance, the municipal judge stated that he was called about the matter as he "arrived at [his] destination for Thanksgiving dinner" and, by that time, the event was "already on CBS news, on the radio"; he further stated that "after the notoriety that this matter got, [the public cannot] be told that [t]he [c]ourt will give the minimums on this." We find no evidence of bias arising from the fact that the judge referred to this matter by a shorthand label, such as "the machete case." It would be unreasonable to assume from such comments that the judge was biased any more than a judge could be accused of bias for referring to a pending matter as "a murder case" or "a robbery case." No objective view of such comments, when uttered prior to the accused's conviction, would suggest a bias. 5 A-1803-15T2 The municipal judge's comment about it being untoward to "give the minimums on this" because the matter received some notoriety is a little more disconcerting. But defendant appealed and received a de novo trial in the Law Division. Whatever the municipal judge may have mistakenly expressed was rendered harmless by the fact that a Law Division judge, who defendant does not argue was biased, reviewed the matter de novo. Moreover, the Law Division judge expressed his disagreement with the municipal judge's utterances in this regard; we are, consequently, satisfied that defendant received a fair trial before an unbiased judge. Affirmed. 6 A-1803-15T2

click here to get this case.


Docket No.: a1981-15
Decided: 2018-01-11
Caption: JJJN, LLC, d/b/a OCEAN ROLLING CHAIRS v. CHRISTINE PALUMBO
Status: unpublished
Summary:
PER CURIAM Plaintiffs John Taimanglo, Stephanie Taimanglo, JH Group, LLC and JJJN, LLC (doing business as Ocean Rolling Chairs), appeal from orders granting summary judgment to defendant 105 Lincoln, LLC, denying their motion to amend the complaint, denying their motion for entry of default against defendant Christine Palumbo, and dismissing claims asserted against defendants 105 Lincoln, Palumbo and Trident Title Company. In January 2014, plaintiffs filed a complaint in the Chancery Division against Christine Palumbo and 105 Lincoln. The complaint alleged that in November 2006, JH Group loaned $200,000 to Giancarlo Presta and Domenico Michienzi, who were the members of Longobarbi Real Estate Ventures, LLC. Longobarbi used the loan monies to purchase property in Brigantine. The loan was secured by a mortgage between Presta and Michienzi, as mortgagors, and JH Group. As alleged in the complaint, in December 2007, Longobarbi transferred ownership of the property by quitclaim deed to Palumbo. She executed a lease with Presta permitting his continued operation 2 A-1981-15T4 of a restaurant on the property conditioned on her agreement to repay Presta's and Michienzi's debt to JH Group. Almost five years later, in September 2012, Palumbo sold the property to 105 Lincoln for $80,000. The complaint further alleged that Palumbo failed to pay JH Group the monies owed to it by Presta and Michienzi and that 105 Lincoln had knowledge of JH Group's mortgage when it purchased the property from Palumbo. In addition to the allegations about the property and mortgage, the complaint alleged John Taimanglo made personal loans to Palumbo which she failed to repay. JH Group and JJJN, LLC, which are owned by John Taimanglo and Stephanie Taimanglo, further alleged they operated a business known as Ocean Rolling Chairs, which transported people on the Atlantic City boardwalk in four- wheeled rolling carts. They alleged Palumbo agreed to sell advertising on the carts for an agreed-upon commission, but misappropriated funds their clients paid for the advertising. In the complaint, plaintiffs asserted three causes of action against Palumbo and 105 Lincoln. Plaintiffs sought an order requiring 105 Lincoln to execute a $200,000 mortgage in their favor on the property (count one), and declaring that an equitable mortgage existed on the property in favor of JH Group (count two). The complaint also asserted a cause of action for unjust enrichment (count three) based on the allegation that Palumbo and 105 Lincoln 3 A-1981-15T4 were unjustly enriched by taking title to the property without paying the monies Presta and Michienzi owed to JH Group. Plaintiffs also asserted claims against Palumbo related to the alleged personal loans made by John Taimanglo and Palumbo's alleged misappropriation of funds from Ocean Rolling Chairs's clients. The complaint alleged conversion and misappropriation (count four), breach of contract (count five), unjust enrichment (counts six and seven), quantum merit (count eight), and tortious interference (count nine) against Palumbo. In July 2014, the Chancery Division judge heard argument on 105 Lincoln's motion for summary judgment. The judge determined he could not compel execution of a $200,000 mortgage as plaintiffs requested in count one because the original mortgage never constituted a valid lien on the property. The court found the mortgage was never executed by an owner of the property and that it was "axiomatic that a mortgage to constitute a valid lien or encumbrance must be executed by the owner." The record also showed that the mortgagors, Presta and Michienzi, never held title to the property. The court granted 105 Lincoln's motion for summary judgment on count one, but denied the motion as to counts two and three, finding there were fact issues as to whether 105 Lincoln had notice of an alleged encumbrance on the property prior to its purchase of the property. 4 A-1981-15T4 105 Lincoln later renewed its motion for summary judgment on counts two and three. After argument, the court determined there was insufficient competent evidence showing 105 Lincoln had notice of any alleged encumbrance on the property prior to its purchase of the property. The court found 105 Lincoln was a bona fide purchaser of the property without any prior notice of any purported encumbrance or mortgage. In addition, the court considered the record from a 2009 Chancery Division matter in which Longobarbi, Presta and Michienzi sued Palumbo, John Taimanglo, Stephanie Taimanglo and JH Group (the Longobarbi matter). The plaintiffs in that matter claimed in part that Longobarbi transferred the property to Palumbo at John Taimanglo's insistence to permit Taimanglo to refinance the property to raise funds for other investments. The plaintiffs sought a rescission of the transfer of title to the property to Palumbo and made other claims against the defendants for monies allegedly owed. The Longobarbi matter was settled. The record showed that as a condition of the settlement, JH Group, John Taimanglo and Stephanie Taimanglo forgave any and all alleged debts owed to them by Longobarbi, Presta and Michienzi, including the $200,000 loan. The parties also agreed Palumbo retained full ownership of the property. The settlement record also revealed that the defendants 5 A-1981-15T4 in that action, including JH Group, John Taimanglo, Stephanie Taimanglo and Palumbo resolved any and all claims they may have had against each other. Here, in its decision on 105 Lincoln's summary judgment motion, the court found there was no basis for plaintiffs' causes of action for an equitable mortgage and unjust enrichment because in the Longobarbi matter they forgave the alleged debt underlying the mortgage upon which those causes of action were founded. The court determined that the settlement of the Longobarbi matter resolved, at least as it relates to the parties to that action, all claims . . . that all parties, each and every party had or may have had against other parties at that particular time, including any potential crossclaims that one co-defendant may have had or believed that he, she it had against other co-defendants. The judge therefore granted 105 Lincoln's motion for summary judgment on counts two and three. The only claims remaining after the court granted 105 Lincoln's motion were those against Palumbo. Four days prior to the December 8, 2014 scheduled trial date on those claims, plaintiffs obtained new counsel. He appeared on the first day of trial and requested an adjournment. Plaintiffs' counsel represented that "due to the [court's] summary judgment order" dismissing all of the claims against 105 Lincoln, the case constituted of only "a breach of contract case for monetary 6 A-1981-15T4 damages" against Palumbo. Counsel requested that the matter be transferred to the Law Division, and the judge granted the request. After the matter was transferred to the Law Division, plaintiffs moved to amend the complaint to assert three additional causes of action against Palumbo, 105 Lincoln and, for the first time, Trident. Plaintiffs sought to add claims for violation of the Uniform Fraudulent Transfer Act, N.J.S.A. 25:2-20 to -34, aiding and abetting, and civil conspiracy. The claims were based on the same factual allegations supporting the causes of action the Chancery Division judge dismissed prior to the transfer of the matter to the Law Division. The court granted Trident's motion for leave to intervene to oppose the plaintiffs' motion to amend the complaint. In March 2015, while their motion to amend the complaint was pending, plaintiffs filed a new complaint in the Law Division. The new complaint was based on the same factual allegations included in the proposed amendment to the original complaint, asserted the same three claims plaintiffs sought to add to the original complaint in their pending motion, and included Trident as a defendant. On June 18, 2015, the court denied plaintiff's motion to amend the original complaint to assert the new claims against Palumbo, 105 Lincoln and Trident. The court determined that the 7 A-1981-15T4 newly asserted claims were based on the alleged mortgage the Chancery Division judge previously determined could not exist as a matter of law because the debt underlying the purported mortgage was forgiven in the 2010 settlement of the Longobarbi matter. The court also reiterated the Chancery Division's findings that no mortgage was ever executed by an owner of the property. The court again determined that because there was no enforceable underlying debt, plaintiff's request to assert new causes of action based on either the debt or mortgage had no support in the law. The court concluded it would be futile to permit an amendment of the complaint asserting such claims. At a point that is not clear from the record, the court entered an order consolidating the original action that was transferred from the Chancery Division with the action plaintiff filed in March 2015. In June 2015, the court dismissed the March 2015 complaint because it asserted claims identical to those plaintiffs sought to add on June 18, 2015, by way of amendment to the original complaint. The judge therefore dismissed the March 2015 complaint for the same reasons he denied plaintiffs' motion to add the claims to the original complaint. As a result of the dismissal of the March 2015 complaint, the only remaining causes of action were those in the original complaint alleging Palumbo breached loan obligations to John 8 A-1981-15T4 Taimanglo and misappropriated monies owed to plaintiffs from the Ocean Rolling Chairs's business. Prior to trial, plaintiffs requested entry of default against Palumbo because she did not file an answer to the March 2015 complaint. The judge denied the request because he previously dismissed the March 2015 complaint based on his finding the complaint did not assert legally cognizable causes of action. The judge determined that although Palumbo had not previously formally moved for dismissal of the March 2015 complaint, the reasons underlying his prior dismissal of the complaint should apply to Palumbo as well. Plaintiffs' remaining causes of action against Palumbo, as alleged in the original complaint, were tried before a jury. During the trial, Palumbo testified she had a prior long-standing intimate relationship with John Taimanglo, who is married to Stephanie Taimanglo. Plaintiffs' counsel then moved to sever Stephanie Taimanglo's claims against Palumbo from John Taimanglo's claims against Palumbo. Plaintiffs' counsel further requested leave to amend the complaint to assert claims on behalf of Stephanie Taimanglo against Palumbo for adultery, tortious interference with the marriage contract and alienation of affection. The court denied the motion, finding counsel's request to sever claims and add wholly new claims should have been made prior to trial. 9 A-1981-15T4 The jury returned a no-cause verdict in Palumbo's favor on all of the causes of action. This appeal followed. On appeal, plaintiffs make the following arguments: A. The trial court committed plain and/or harmful legal error by granting summary judgment to 105 Lincoln because it did not hear expert testimony or make any actual finding regarding fair market value of the property. B. The trial court abused its discretion and committed plain and/or harmful error [by] denying the plaintiffs['] motion to amend their complaint, because in New Jersey, liberal amendments to pleadings are to be allowed, there was no procedural bar, and amendment was not futile. C. The trial court committed plain and/or harmful error by dismissing the plaintiffs' fraudulent transfer and related claims against [d]efendants 105 Lincoln LLC and Trident Title Company because there was no procedural bar to those claims. D. The trial court committed plain and/or harmful error [by] denying the plaintiffs' motion for default judgment against [d]efendant Palumbo because Palumbo never filed an answer. E. The trial court committed plain and/or harmful error [by] denying the plaintiffs['] trial motion to sever and to amend their complaint 10 A-1981-15T4 in New Jersey, liberal amendments to pleadings are to be allowed, there were no procedural bar to amendment, and amendment was not futile. F. The trial court's errors in dismissing the plaintiffs' fraudulent transfer and related claims against [d]efendants 105 Lincoln, Trident and Palumbo unfairly truncated and prejudiced the plaintiffs' presentation of their case to the jury, and the judgment in favor of [d]efendant Palumbo must therefore be reversed. We have considered these arguments in light of the applicable legal standards and have determined they are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(E). We affirm each of the challenged orders substantially for the reasons set forth by the three judges who ably addressed and thoroughly decided each of the challenged issues in the trial court. We add only the following brief comments. Plaintiffs' asserted and proposed claims against 105 Lincoln, Palumbo and Trident that were dismissed or denied prior to trial are founded upon an alleged mortgage securing a debt owed to them by Presta and Michienzi. As the Chancery Division judge recognized and correctly decided in the first instance, all of the claims founded upon the purported mortgage could not be sustained as a matter of law. The undisputed facts showed that in their settlement of the Longobarbi matter in 2010, plaintiffs forgave 11 A-1981-15T4 Presta, Michienzi, and Longobarbi from any and all alleged debts and other obligations due to the plaintiffs. Despite plaintiffs' numerous efforts to reassert and repackage those claims, they remained legally deficient for the same reason throughout the litigation. Each judge who was required to address the issue recognized what plaintiffs continue to ignore: plaintiffs cannot impose or enforce a mortgage untethered to any outstanding debt. Gotlib v. Gotlib, 399 N.J. Super 295. 312 (App. Div. 2008) (citation omitted) ("A mortgage secures a debt; 'without an obligation to secure there can be no valid mortgage.'"). Affirmed. 12 A-1981-15T4

click here to get this case.


Docket No.: a2699-16
Decided: 2018-01-11
Caption: STATE OF NEW JERSEY v. PETER J. DITO
Status: unpublished
Summary:
PER CURIAM The State of New Jersey appeals from an order entered by the Law Division on January 23, 2017, which dismissed a summons charging defendant Peter J. Dito with refusing to submit to a breath test to measure the alcohol level of his blood because the summons cited N.J.S.A. 39:4-50.2 rather than N.J.S.A. 39:4-50.4a. We reverse. On December 13, 2015, an officer of the Oradell Police Department (OPD) issued to defendant Summons No. 0244-E15-002005 for driving while intoxicated (DWI), contrary to N.J.S.A. 39:4- 50, and Summons No. 0244-E15-002007 for refusing to submit to a breath test, contrary to N.J.S.A. 39:4-50.2. Defendant moved to dismiss the refusal charge on the ground that the summons referenced N.J.S.A. 39:4-50.2 rather than N.J.S.A. 39:4-50.4a. On April 21, 2016, the municipal court judge denied defendant's motion. Defendant then pled guilty to both charges, reserving the right to appeal the court's denial of his motion to dismiss the refusal charge. Defendant provided a factual basis for the pleas. He admitted that on December 13, 2015, at approximately 7:36 p.m., he operated a vehicle while under the influence of alcohol, after drinking wine with his dinner. Defendant stated that he was stopped by an officer of the OPD, who asked him to perform certain physical tests, after which the officer placed him under arrest for DWI. The officer 2 A-2699-16T3 transported defendant to Oradell's police headquarters. There, the officer read the Attorney General's standard statement for motor vehicle operators, pursuant to N.J.S.A. 39:4-50.2(e), which informed defendant that the law required him to submit samples of his breath "for the purpose of testing to determine alcohol content." The statement indicated that if defendant refused to provide the breath samples, "you will be issued a separate summons for the refusal" and the "court may find you guilty of both refusal and [DWI]." The statement also informed defendant of the penalties that the court could impose if he is found guilty of refusal, which include a license revocation for up to twenty years, a fine of up to $2000, installation of an ignition interlock, and referral to an Intoxicated Driver Resource Center (IDRC). In addition, the statement indicated that defendant did not have a right to have an attorney, physician, or other person present for the purpose of taking the breath test. Defendant told the municipal court judge that the officer asked him to provide breath samples and he refused. After defendant stated that he wanted a lawyer, the officer then read an additional paragraph from the Attorney General's standard statement: Your answer is not acceptable. The law requires that you submit samples of your breath for breath testing. If you do not 3 A-2699-16T3 answer, or answer with anything other than "yes," I will charge you with refusal. Now, I ask you again, will you submit to breath testing? Defendant responded, "No, I need advice" and "I don't know what to do." The municipal court judge accepted defendant's plea and sentenced defendant on both charges. For the refusal charged in Summons No. 0244-E15-002007, the judge sentenced defendant to a $306 fine, $33 in court costs, a $100 Drunk Driving Enforcement Fund surcharge, twelve hours in an IDRC, and a seven-month license suspension. For the DWI charged in Summons No. 0244-E15-002005, the judge sentenced defendant to a fine of $256, $33 in court costs, a $50 fee for the Violent Crimes Compensation Board, a $125 DWI surcharge, a $75 Safe Neighborhood Fund assessment, a $100 Drunk Driving Enforcement Fund surcharge, twelve hours in an IDRC, and a three-month license suspension, to run concurrent with the license suspension imposed for the refusal. Thereafter, defendant filed an appeal to the Law Division and argued that the municipal court judge erred by denying his motion to dismiss the refusal charge. The Law Division judge considered the appeal, and on January 9, 2017, placed an oral decision on the record. 4 A-2699-16T3 The judge found that defendant's summons for refusal to submit the breath test had incorrectly cited N.J.S.A. 39:4-50.2. The judge stated that because the summons should have cited N.J.S.A. 39:4-50.4a. The judge concluded that the error was fatal because it failed to inform defendant of the nature of the charge against him. The judge entered an order dated January 23, 2017, which dismissed Summons No. 0244-E15-002007, and re-affirmed the sentence that the municipal court judge had imposed on Summons No. 0244-E15-002005. The State's appeal followed. On appeal, the State argues that the Law Division judge erred by dismissing the summons because it cited N.J.S.A. 39:4-50.2, rather than N.J.S.A. 39:4-50.4a. The State contends the summons provided defendant with adequate notice of the charge and the penalties he faced if found guilty of refusal. In response, defendant argues that the Law Division judge correctly decided to dismiss the refusal charge. He argues that because the summons cited N.J.S.A. 39:4-50.2 rather than N.J.S.A. 39:4-50.4a, he was deprived of his constitutional right to due process. Defendant contends he was not properly apprised of the penalties for refusal or given the opportunity to defend himself. When reviewing a decision on a municipal appeal to the Law Division, we defer to the trial court's fact finding if "the 5 A-2699-16T3 findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Kuropchak, 221 N.J. 368, 382-83 (2015) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). However, we owe no deference to the trial court's decision on an issue of law "and the consequences that flow from established facts[,]" which we review de novo. State v. Hubbard, 222 N.J. 249, 263 (2015). We begin our consideration of the appeal with the language of the relevant statutes. N.J.S.A. 39:4-50.2 provides in pertinent part that: [a]ny person who operates a motor vehicle on any public road, street or highway . . . shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made . . . at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of [N.J.S.A.] 39:4-50 . . . . No chemical test . . . may be made or taken forcibly against physical resistance thereto by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with section 2 [N.J.S.A. 39:4-50.4a] of this amendatory and supplementary act. A standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest. 6 A-2699-16T3 In addition, N.J.S.A. 39:4-50.4a provides that "the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for [DWI] . . . refuse[d] to submit to a [chemical test] provided for in section 2 of . . . [N.J.S.A. 39:4-50.2] when requested to do so." In determining whether a person is guilty of refusal, [t]he municipal court shall determine . . . whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle . . . while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-inducing drug or marijuana; whether the person was placed under arrest . . . and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no violation shall issue. [Ibid.] In State v. Marquez, the Court stated that "[t]o identify all of the elements of a refusal offense, we must look at the plain language of both statutes because although they appear in different sections, they are plainly interrelated." 202 N.J. 485, 501 (2010). The Court stated that because N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a "cross-reference one another internally" and "rely on each other substantively[,]" the statutes "must therefore be read together." Id. at 502. The Court noted that: 7 A-2699-16T3 [a] careful reading of the two statutes reveals four essential elements to sustain a refusal conviction: (1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test. [Id. at 503 (citing N.J.S.A. 39:4-50.2(e), 39:4-50.4a(a); State v. Wright, 107 N.J. 488, 490 (1987)).] The Marquez Court held that reading the standard statement is a necessary element of a refusal conviction, and rejected the contention that the procedural safeguards of N.J.S.A. 39:4-50.2 are not a substantive element of the refusal offense. Id. at 506. The Court stated that "[t]he fact that motorists are deemed to have implied their consent, pursuant to [N.J.S.A. 39:4-50.2], does not alter that conclusion." Ibid. The Court held that N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a "impose an obligation on officers to inform drivers of the consequences of refusal." Ibid. We note that in State v. Cummings, the Court held that a conviction of refusal requires proof beyond a reasonable doubt. 184 N.J. 84, 89 (2005). In Cummings, the Court observed that N.J.S.A. 39:4-50.4a is the "exact statutory provision applicable to breathalyzer refusal cases," and that "care should be taken to 8 A-2699-16T3 list . . . N.J.S.A. 39:4-50.4a in the summons charging refusal." Id. at 90 n.1. The Cummings Court did not, however, hold that dismissal is required when the summons cites N.J.S.A. 39:4-50.2 rather than N.J.S.A. 39:4-50.4a. Ibid. (finding "no prejudice resulting from it"). Indeed, such a conclusion would be inconsistent with the Court's later decision in Marquez, where the Court held that the elements of the refusal offense are drawn from both N.J.S.A. 39:4- 50.2 and N.J.S.A. 39:4-50.4a. Marquez, 202 N.J. at 502. Thus, in this case, the trial court erred by finding that the summons issued was fatally flawed because it failed to cite N.J.S.A. 39:4-50.4a. Since the elements of refusal are found in both N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a, the citation of only the former statute does not require dismissal of the summons. Dismissal of the charges under these circumstances would exalt form over substance, an approach our courts have "properly rejected." State v. Fisher, 180 N.J. 462, 472 (2004). Furthermore, the trial court erred by finding that defendant was prejudiced and denied due process because he was charged under N.J.S.A. 39:4-50.2 rather than N.J.S.A. 39:4-50.4a. Here, the record shows that the officer read defendant the Attorney General's standard statement, thereby informing defendant that if he failed to submit to the breath test, he would be charged with refusal. 9 A-2699-16T3 The standard statement further informed defendant of the penalties that the court could impose if he is found guilty of refusal. Moreover, after defendant indicated he wanted to speak with an attorney, the officer read defendant the additional paragraph from the standard statement, which indicated that his answer was not acceptable. Therefore, defendant was fully informed of the charge and the penalties that could be imposed if he refused to provide the breath samples. Defendant's claim that he could not defend himself against the charge has absolutely no support in the record and does not warrant further comment. R. 2:11-3(e)(2). Reversed and remanded for entry of a judgment reinstating defendant's conviction and sentence on Summons No. 0244-E15- 002007. We vacate any stay of the sentence previously imposed. We do not retain jurisdiction. 10 A-2699-16T3

click here to get this case.


Docket No.: a2755-15
Decided: 2018-01-11
Caption: PATRICIA ENGRASSIA, Administratrix Ad Prosequendum of the Estate of Jason Marles, Deceased v. ERICK UZCATEGUI and HUNTERDON MOTORS, INC d/b/a HUNTERDON BMW and FEDERATED MUTUAL INSURANCE COMPANY and JOHN SADDY, SADDY FAMILY, LLC LASV, INC., and BAMBOO
Status: unpublished
Summary:
PER CURIAM Plaintiff appeals from orders entered by the Law Division on June 8, 2015, which granted in part and denied in part a motion by Federated Mutual Insurance Company (Federated) for summary judgment; granted a motion for summary judgment by Hunterdon Motors, Inc. d/b/a Hunterdon BMW (Hunterdon BMW); and denied plaintiff's motion for summary judgment. Federated cross-appeals from the trial court's June 8, 2015 order on its motion. For the reasons that follow, we affirm on the appeal and reverse on the cross-appeal. I. This appeal arises from the following facts. On November 24, 2010, Erick Uzcategui brought his personal vehicle to Hunterdon BMW for service. Hunterdon BMW provided Uzcategui a BMW X3 as a loaner car, and required that he return the vehicle within twenty- four hours. Hunterdon BMW required Uzcategui to execute a "BMW Rental Agreement for a Temporary Substitute Vehicle" (the BMW Rental 3 A-2755-15T1 Agreement), which provided in pertinent part that he was responsible for all damage or loss to others arising from his use of the vehicle. The agreement stated in part: You agree to provide auto liability, collision and comprehensive insurance covering You, Us and the Vehicle. Your insurance is primary. If you have no auto liability insurance in effect on the date of a loss, or if We are required by law to provide liability insurance, We will provide auto liability insurance (the "Policy") that is secondary to any other valid and collectible insurance whether primary, secondary, excess or contingent. The Policy provides bodily injury and property damage liability coverage with limits no higher than minimum levels prescribed by the state whose laws apply to the loss. You and We reject PIP [Personal Injury Protection] medical payments, no-fault and uninsured and under-insured motorist coverage, where permitted by law. The Policy is void if You violate the terms of this Agreement or if You fail to cooperate in a loss investigation conducted by Us or Our insurer. Giving the vehicle to an unauthorized driver terminates policy coverage. In the agreement, Uzcategui also agreed to indemnify, defend, and hold Hunterdon BMW harmless from all claims, liability, costs, attorney's fees that Hunterdon BMW could incur, resulting from or arising out of the agreement or Uzcategui's use of the vehicle. In the relevant period, Hunterdon BMW was insured by Federated under a commercial garage policy (the garage policy), which had coverage limits of $500,000. The policy states 4 A-2755-15T1 a. The following are "insureds" for covered "autos": (1) You [Hunterdon BMW] for any covered "auto". (2) Anyone else while using with your permission a covered "auto" you own, hire or borrow except: (d) Your customers. However, if a customer of yours: (i) Has no other available insurance (whether primary, excess or contingent), [the customer is] an "insured" but only up to the compulsory or financial responsibility law limits where the covered "auto" is principally garaged. (ii) Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered "auto" is principally garaged, [the customer is] an "insured" only for the amount by which the compulsory or financial responsibility law limits exceed the limit of [the customer's] other insurance. Hunterdon BMW also had a commercial umbrella liability policy with Federated (the umbrella policy), with coverage limits of $10,000,000. The umbrella policy covered certain damages that are in excess of the amount of the available primary insurance. The umbrella policy states: With respect to A. EXCESS LIABILITY COVERAGES, refer to the applicable "underlying insurance" to determine who is an insured. However: 5 A-2755-15T1 1. with respect to the ownership, maintenance, use, loading or unloading of an auto . . . the following are not insureds even if covered by the "underlying insurance": b. Any customer of yours [Hunterdon BMW], or any other person using an auto . . . you [Hunterdon BMW] entrusted to a customer. Uzcategui had auto liability insurance coverage through GEICO Indemnity Company (GEICO). His policy provided coverage of $100,000 per person and $300,000 per accident. In addition, Marles had automobile liability insurance through New Jersey Manufacturers Insurance Company (NJM), which included uninsured/underinsured coverage of $300,000. On the evening of November 24, 2010, Uzcategui drove the loaner car while intoxicated and collided with another vehicle, causing the death of its driver, Jason Marles. Uzcategui was thereafter convicted of vehicular manslaughter and sentenced to a term of imprisonment. In December 2011, plaintiff, as representative of Marles' estate, filed a complaint seeking damages arising from Marles' death, including claims of conscious pain and suffering and wrongful death. Plaintiff named Uzcategui, Hunterdon BMW, and Federated as defendants. Plaintiff also asserted claims under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act 6 A-2755-15T1 (the Server Liability Act), N.J.S.A. 2A:22A-1 to -7, against John Saddy, Saddy Family LLC, LASV, Inc., and/or Bamboo Bar LLC. In this matter, plaintiff sought a declaration that Federated was required to provide coverage of $500,000 under the garage policy, and $10,000,000 under the umbrella policy for the claims asserted against Uzcategui. Federated denied liability. LASV, which does business under the name of Bamboo Bar, and John Saddy later filed a third-party complaint against Indre Dosinaite, Sarita M. Hines, Frank A. Talarico, and James S. Torsiello, III.1 GEICO provided Uzcategui a defense in the action and deposited its full policy limits with the court. NJM intervened and also sought a declaration that Uzcategui was entitled to coverage under the garage policy that Federated issued to Hunterdon BMW. After discovery was completed, plaintiff, Federated, and Hunterdon BMW filed motions for summary judgment. On June 8, 2015, the Law Division judge determined that the provision of Federated's garage policy pertaining to Hunterdon BMW's customers was not an illegal "escape clause." The judge found, however, that the policy would be reformed and Federated ordered to provide Uzcategui coverage in the amount of $15,000, the minimum level of liability coverage required by New Jersey 1 The record does not indicate whether LASV pursued its claims against Dosinaite and Hines and, if so, how they were resolved. 7 A-2755-15T1 law, concurrent with the coverage provided under the GEICO policy. The judge also determined that Federated had no obligation to provide Uzcategui coverage under the umbrella policy. In addition, the judge rejected plaintiff's contention that Hunterdon BMW should be held liable and deemed to be self-insured for the claims asserted by plaintiff. The judge entered orders dated June 8, 2015, which granted in part and denied in part Federated's motion for summary judgment; granted summary judgment in favor of Hunterdon BMW; and denied plaintiff's motion for summary judgment. Thereafter, plaintiff filed a motion for reconsideration of the June 8, 2015 orders. The judge denied the motion. Plaintiff then filed a motion in this court for leave to appeal from the June 8, 2015 orders. We denied the motion. In January 2016, plaintiff and Uzcategui settled plaintiff's claims for $9,500,000, plus interest of $934,722, for a total of $10,434,722. Plaintiff agreed, however, that she would not collect the judgment against Uzcategui. The trial court entered a consent judgment dated January 19, 2016, which memorialized the settlement. Thereafter, plaintiff's claims under the Server Liability Act and the third-party claims against Talarico and Torsiello were tried before a jury. At trial, the judge dismissed the claims 8 A-2755-15T1 against Saddy, Saddy Family LLC, Talarico, and Torsiello. Plaintiff's claims against LASV were submitted to the jury, which returned a verdict finding that plaintiff had not proven by a preponderance of the evidence that LASV had served Uzcategui alcoholic beverages while he was visibly intoxicated. The jury also found that Uzcategui was one-hundred percent responsible for the accident and awarded plaintiff damages of $10,082,735. The court entered a final judgment for plaintiff in accordance with the jury's verdict. Plaintiff's appeal and Federated's cross-appeal followed. II. We turn first to plaintiff's contention that Federated is required to provide Uzcategui coverage under the garage policy. Plaintiff argues that the provision of the policy pertaining to coverage of Hunterdon BMW's customers is an illegal "escape clause." Plaintiff contends the clause unlawfully excludes permissive users of the dealership's vehicles if those persons have their own auto insurance in amounts that exceed the minimum coverages required by law. Plaintiff argues that if the illegal "escape clause" is not enforced, Federated is obligated to provide Uzcategui with coverage up to $500,000, the full policy limits. We note initially that when reviewing an order granting summary judgment, we apply the same standard that the trial court 9 A-2755-15T1 applies when ruling on a summary judgment motion. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014); Gormley v. Wood-El, 218 N.J. 72, 86 (2014) (quoting Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012)). Summary judgment may be granted when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Here, there is no dispute as to the material facts, and the coverage issues involve questions of law, on which this court exercises de novo review. Templo Fuente De Vida Corp. v. Nat. Union Fire Ins. Co. of Pittsburgh, P.A., 224 N.J. 189, 199 (2016). In exercising such de novo review, we owe no deference to the trial court's decision on an issue of law. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Here, plaintiff argues that the applicable provision of Federated's garage policy constitutes an illegal "escape clause" because it fails to provide the coverage required by N.J.S.A. 39:6B-1, which states that: Every owner or registered owner of a motor vehicle registered or principally garaged in this State shall maintain motor vehicle liability insurance coverage, under provisions approved by the Commissioner of Banking and Insurance, insuring against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the 10 A-2755-15T1 ownership, maintenance, operation or use of a motor vehicle . . . . Plaintiff contends that N.J.S.A. 39:6B-1 requires the owner of registered vehicles principally garaged in New Jersey to provide insurance coverage to all permissive users of the vehicle. Plaintiff asserts that because the Federated garage policy excludes coverage for permissive users of the dealership's autos who have their own auto liability insurance that exceeds the minimum coverage required by N.J.S.A. 39:6B-1(a), the clause is invalid. We disagree. The relevant provision of the policy is not an illegal "escape clause," but rather a valid "step-down" clause. The Court's decision in Aubrey v. Harleysville Insurance Cos., 140 N.J. 397 (1995), supports our conclusion. In Aubrey, an automobile was insured under a policy that Harleysville issued to an auto dealership. Id. at 399–400. The dealership loaned the vehicle to Aubrey, who was one of the dealership's customers, and Aubrey sustained personal injuries in a three-car accident while driving the car. Ibid. Aubrey was insured under an automobile insurance policy that provided underinsured motorist (UIM) coverage of $15,000 per person and $30,000 per accident. Id. at 400. Aubrey settled her claims against the other drivers involved in the accident for $40,000, which exceeded the UIM limits under her policy. Id. at 11 A-2755-15T1 400. Since Aubrey's damages exceeded $40,000, she sought UIM coverage under the Harleysville policy, which provided liability and UIM coverage. Ibid. The liability section of the dealership's policy stated in part that the dealership's customers are insured, but coverage was limited to the minimum required by law. Id. at 400–01. The Court noted that N.J.S.A. 17:28-1.1(e) provides that [a] motor vehicle is underinsured when the sum of the limits of liability under all bodily injury and property damage liability bonds and insurance policies available to a person against whom recovery is sought for bodily injury or property damage is, at the time of the accident, less than the applicable limits for underinsured motorist coverage afforded under the motor vehicle insurance policy held by the person seeking that recovery. [Id. at 403.] The Court held that Aubrey was only entitled to UIM coverage of $15,000. Id. at 404. The Court observed that under N.J.S.A. 17:28-1.1(b), the right to recover UIM benefits depends on the UIM coverage that the insured has chosen. Id. at 405. "Under the clear terms of the statute, [Aubrey's] UIM coverage cannot exceed her liability coverage." Id. at 406. The Court pointed out that Aubrey had purchased UIM coverage of $15,000, and this was the amount of UIM coverage that she "held" under her motor vehicle insurance policy. Id. at 404. The Court 12 A-2755-15T1 stated that Aubrey could not reasonably expect that she would be entitled to receive coverage under the UIM endorsements in the dealership's policy. Ibid. The Court also addressed the liability section of the dealership's policy, which limited coverage for the dealership's customers "to the statutory minimum, $15,000." Id. at 406. The Court noted that Aubrey's own policy satisfied the statutory minimum because it provided $15,000 of liability coverage. Ibid. The Court held that because the statutory minimum was not greater than the liability limits under the dealership's policy, Aubrey was not covered by the liability section of that policy. Ibid. Here, the relevant provision of the Federated garage policy is the same as the provision addressed in Aubrey. As in Aubrey, liability coverage is provided in the minimum amounts required by law, if the dealership's customer has no other available insurance, or the customer has other available insurance that provides coverage less than the statutory minimum. Under the policy, Federated is not obligated to provide coverage when the customer has insurance with coverage that exceeds the minimum required by law. This is not, however, an invalid "escape clause" under Aubrey because the customer is insured to the extent required by law, under its own policy. Thus, under 13 A-2755-15T1 Aubrey, the relevant provision of the Federated policy is a valid "step-down" clause or limitation on coverage. Plaintiff concedes that the relevant provision of the Federated policy is the same as the policy provision addressed in Aubrey, but maintains that Aubrey is distinguishable because it deals with the amount of UIM coverage available. As the decision in Aubrey makes clear, however, the amount of UIM coverage available to Aubrey was dependent upon the amount of liability coverage that Aubrey had under her policy. Aubrey, 140 N.J. at 404. In deciding that Aubrey was only entitled to UIM coverage of $15,000, the Court enforced the provisions of the dealership's policy, which contained a "step-down" clause that provided coverage to customers, but only if the customer did not have insurance or insurance in the amounts required by law. Id. at 406. The Court noted that the plaintiff had her own insurance, which provided coverage that exceeded the statutory minimum. Ibid. The Court therefore held that Aubrey was not covered by the liability section of the dealership's policy. Ibid. The same conclusion applies in this case. The Federated policy provides a limitation on coverage, rather than an illegal "escape clause." Because Uzcategui had auto liability insurance that 14 A-2755-15T1 exceeds the minimum required by law, Federated was not obligated to provide him with coverage under the garage policy. Plaintiff further argues that Uzcategui is entitled to the full benefit of the Federated garage policy based on his "reasonable expectations." We disagree. Here, the BMW Rental Agreement required Uzcategui to obtain auto liability, collision, and comprehensive coverage insuring himself, the dealership, and the vehicle. The agreement expressly states that any insurance coverage the dealership provided would be at "limits no higher than minimum levels prescribed by the state whose laws apply to the loss." Thus, the BMW Rental Agreement does not state the customer will be given insurance coverage. Moreover, the agreement states that "any" coverage provided will be no higher than the minimum required by law. In light of the clear and unambiguous provisions of the BMW Rental Agreement, Uzcategui could not have any expectation he would be covered by the garage policy, or if covered, that such coverage would be up to the full $500,000 limits of the policy. III. Next, plaintiff argues that Uzcategui is entitled to full coverage under the umbrella policy because Federated was required 15 A-2755-15T1 to cover Uzcategui as a permissible user of the Hunterdon BMW vehicle under that policy. Again, we disagree. Umbrella polices are "fundamentally different from a primary liability policy," and are "intended to guard against a much less frequent catastrophic loss for which a lower premium is charged because of the lesser risk." Stiefel v. Bayly, Martin & Fay of Conn., Inc., 242 N.J. Super. 643, 653 (App. Div. 1990). Generally, owners of motor vehicles are not required to maintain umbrella policies; therefore, such policies are defined by their "plain language, unencumbered by the statutory requirements for automobile insurance." Weitz v. Allstate Ins. Co., 273 N.J. Super. 548, 551–52 (App. Div. 1994). As we have explained, the Federated umbrella policy clearly and unequivocally states that it does not provide coverage to customers to whom Hunterdon BMW has entrusted its automobiles. Therefore, the motion judge correctly found that Uzcategui was not entitled to coverage under that policy. Plaintiff argues, however, that Martusus v. Tartamosa, 150 N.J. 148 (1997), requires Federated to provide full coverage to Uzcategui under the umbrella policy. Plaintiff's reliance upon Martusus is misplaced. In Martusus, the motor vehicle was insured under a primary policy with coverage of $300,000 and an umbrella policy with limits 16 A-2755-15T1 of $1,000,000. Id. at 151. The owner's son was a permissive user of the car, and the owner's son permitted a friend to drive the vehicle. Ibid. The son's friend was involved in an accident resulting in serious personal injuries. Ibid. The friend was covered by the owner's primary insurance policy as a permissive user, but the insurer argued he was not a permissive user under the umbrella policy. Id. at 152. The umbrella policy limited coverage to persons who the named insured allowed to drive the car, and the insurer argued that the friend was not insured because the named insured had not given him permission to drive the car. Id. at 153. The Court found coverage for the driver under the umbrella policy. Id. at 160. The Court determined that the primary policy's definition of a "permissive user" should be broadly defined, and absent a statute or policy language providing otherwise, the same principle should apply to defining the term "permissive user" under the umbrella policy. Id. at 158–59. The Court held that, "Unless umbrella policies clearly and unambiguously state that permission to use the covered vehicle can only come from a named insured and that there is no coverage for any other user, a named insured's reasonable expectation may be otherwise." Ibid. Here, Federated's policy unambiguously excludes customers to whom Hunterdon BMW has entrusted its automobiles. Uzcategui could 17 A-2755-15T1 not have any expectation of coverage under that policy. Therefore, Martusus does not support plaintiff's argument that Uzcategui was entitled to full coverage under the umbrella policy. IV. Plaintiff argues that as a licensed motor vehicle dealer, Hunterdon BMW is subject to an administrative regulation that requires it to maintain auto insurance coverage for permissive users of its vehicles in specified amounts. Based on that regulation, plaintiff contends Hunterdon BMW's customers have a reasonable expectation of coverage under the Federated garage and umbrella policies. The New Jersey Motor Vehicle Commission (NJMVC) has adopted a regulation, which states that persons or entities seeking a license to operate as a motor vehicle dealer must submit a certificate of insurance demonstrating liability insurance covering all vehicles owned or operated by the applicant, at his or her request or with his or her consent. This insurance shall be in the amount of $100,000 per person per incident up to $250,000 per incident for bodily injury or death, $25,000 per incident for property damage, and $250,000 combined personal injury and property damage per incident. This insurance shall be renewed as necessary to ensure that it remains valid for the entire prospective license term. [N.J.A.C. 13:21-15.2(l).] 18 A-2755-15T1 Plaintiff notes that Federated filed a certificate of insurance with the NJMVC, which states that Hunterdon BMW had insurance covering its vehicles with policy limits of $500,000 under its primary policy and $10,000,000 under its umbrella policy. According to plaintiff, Federated filed that certificate with the NJMVC so that the agency would grant Hunterdon BMW a motor vehicle dealership license. Plaintiff therefore contends Federated is bound to the full coverage limits set forth in the certificate of insurance and should be required to provide Uzcategui full coverage under both the garage and umbrella policies. We disagree. The regulation does not address the question of exclusions or limitations on coverage of the sort included in the Federated policies. Indeed, the regulation does not expressly bar an insurer from excluding certain users from coverage or limiting coverage in certain circumstances. Moreover, the certificate of insurance that Federated provided to the NJMVC states that it was issued for informational purposes only, and it does not amend, extend, or alter the coverage provided by its policies. The "COVERAGES" section of the certificate states: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER 19 A-2755-15T1 DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. Thus, the certificate of insurance that Federated provided to the NJMVC made clear that although the dealership's primary policy had coverage of $500,000, and umbrella policy had coverage of $10,000,000, both policies were subject to all the terms of the policies, and any exclusions or conditions set forth therein. The NJMVC apparently accepted the certificate as meeting the requirements of N.J.A.C. 13:21-15.2, and issued the dealership license to Hunterdon BMW. Therefore, we reject plaintiff's contention that based on Federated's certificate of insurance, Hunterdon BMW's customers had a reasonable expectation of full coverage under the garage and umbrella policies. Hunterdon BMW's customers like Uzcategui did not have a reasonable expectation that they would have coverage beyond that provided under the Federated policies. V. Plaintiff further argues that Hunterdon BMW had a reasonable expectation it would have the insurance coverage required by N.J.A.C. 13:21-15.2, without any exclusion or limitations. In 20 A-2755-15T1 support of this contention, plaintiff relies upon the deposition testimony of Gailon W. McGowen, Jr., the owner of Hunterdon BMW. At his deposition, Mr. McGowen testified that Federated did not advise him he would not have insurance coverage for the drivers of the dealership's loaner car. He further testified that he discussed the State's licensing requirements with Federated. He stated that he would have advised Federated he needed whatever insurance coverage the State required. We note that Mr. McGowen's understanding and expectation is irrelevant to whether Uzcategui had a reasonable expectation of coverage in any particular amounts under the Federated policies. In any event, the record does not support plaintiff's claim that Hunterdon BMW had a reasonable expectation it would have coverage under the Federated policies in the amounts specified in N.J.A.C. 13:21-5.2 without any exclusions or limitations. There is no evidence that Federated misrepresented any material fact regarding the coverage it was providing to Hunterdon BMW. Furthermore, Mr. McGowen testified at his deposition that based on reading the Federated policies, he did not have any understanding of the coverage the dealership had with regard to its loaner cars. Therefore, Hunterdon BMW could not have any reasonable expectation that Federated's policies would cover all 21 A-2755-15T1 persons leasing the dealership's cars, in the amounts specified in N.J.A.C. 13:21-15.2, without any exclusion or limitations. VI. In addition, plaintiff contends Federated should be estopped from asserting that Uzcategui was not covered by the umbrella policy because that exclusion was not specifically asserted in the letters denying coverage or during discovery in this case. Plaintiff asserts that initially, Federated denied coverage under the garage policy but did not expressly deny coverage under the umbrella policy. Plaintiff asserts that Federated did not state that Uzcategui was not covered under the umbrella policy until the summary judgment stage of this case. Plaintiff therefore argues that Federated should be estopped from denying coverage under the umbrella policy. Again, we disagree. An insurer has a duty to advise its insured of a possible disclaimer of coverage. Griggs v. Bertram, 88 N.J. 347, 357 (1982). Plaintiff was not, however, an insured under the Federated policies, and Federated had no duty to inform plaintiff of all the possible reasons it might have to deny coverage to Uzcategui. Moreover, the record shows that Federated made clear before and after the litigation commenced that it was not obligated to provide coverage to Uzcategui. Thus, plaintiff's claim that Federated is 22 A-2755-15T1 estopped from denying coverage under the umbrella policy is meritless. Plaintiff also argues for the first time on appeal that Federated should be precluded from denying coverage based on a theory of "regulatory estoppel." Because this issue was not raised in the trial court, we will not consider it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). VII. In addition, plaintiff argues that if Hunterdon BMW failed to maintain auto liability insurance for Uzcategui, it violated its legal obligation as a licensed motor vehicle dealer and should be deemed self-insured and liable for the judgment against Uzcategui. In support of this argument, plaintiff relies upon Ryder/P.I.E. Nationwide, Inc. v. Harbor Bay Corp. 119 N.J. 402 (1990). In that case, a company had decided to self-insure and the Court determined that the company's liability was not limited to its indemnity bond or the minimum amounts of compulsory insurance mandated by statute. Id. at 414. The case is inapplicable to this dispute because it involved the financial obligations of an entity that elected to self-insure, not a company like Hunterdon BMW that purchased insurance. 23 A-2755-15T1 Plaintiff also relies upon Robinson v. Janay, 105 N.J. Super. 585 (App. Div. 1969). There, a property lease required the tenant to maintain liability insurance coverage for the tenant and the landlord, but the tenant only obtained coverage for himself. Id. at 588. A business invitee was injured on the premises, the landlord was held liable, and the landlord sued the tenant to recover the damages it had to pay as a result of the tenant's failure to procure the proper insurance. Id. at 589. We held the landlord was entitled to recover for his loss, which was the amount that the landlord would have received under the policy if the tenant had obtained the policy as required. Id. at 591, 593. Robinson is distinguishable, however, because Hunterdon BMW did not have an agreement with plaintiff that required Hunterdon BMW to obtain insurance coverage for lessees of its vehicles. Therefore, Hunterdon BMW did not owe plaintiff a contractual duty. Furthermore, Hunterdon BMW did not owe a contractual duty to Uzcategui to provide liability insurance beyond that specified in the BMW Rental Agreement and the Federated policies. We therefore conclude the motion judge correctly determined that there was no legal basis to deem Hunterdon BMW self-insured and liable for the judgments against Uzcategui. 24 A-2755-15T1 VIII. In its cross-appeal, Federated argues that although the trial court correctly determined that the provision of its garage policy is not an illegal "escape clause," the court erred by holding that it was required to provide coverage in the statutory minimum liability coverage of $15,000 to Uzcategui under that policy, concurrent with Uzcategui's coverage under the GEICO policy. Federated contends the "step-down" clause in the garage policy is valid and should be enforced according to its terms. We agree. In ordering Federated to provide $15,000 in coverage, the judge relied upon Rao v. Universal Underwriters Insurance Co., 228 N.J. Super. 396 (App. Div. 1988). In Rao, Universal Underwriters issued a policy to an automobile leasing company, which contained a limit of coverage of $300,000 per occurrence, but stated with respect to lessees that, "the portion of the limit applicable to persons or organizations required by law to be an INSURED is only the amount (or amount in excess of any other insurance available to them) needed to comply with the minimum limits provision of such law in the jurisdiction where the OCCURRENCE takes place." Id. at 399. Rao rented a car from the leasing company and as required by the lease, purchased an insurance policy with limits of $100,000/ $300,000. Id. at 398. Rao's wife drove the car and struck a 25 A-2755-15T1 pedestrian, and Universal argued that it was not obligated to provide coverage because Rao had his own insurance, which provided the minimum coverage required in this State. Id. at 399. The court held that the relevant provision of the Universal policy violated N.J.S.A. 45:21-1, which required persons engaged in the business of renting or leasing motor vehicles to obtain insurance coverage for lessees of the business' vehicles. Id. at 400. The court observed that the relevant statutes are intended to ensure that a lessor will provide the minimum coverage "irrespective of whether a lessee does so." Id. at 402. The court stated that Universal's endorsement attempted to preclude coverage entirely because the lessee had obtained coverage, which exceeded the minimum required by N.J.S.A. 45:21- 3. Id. at 404. The court held that despite this "abortive escape attempt" to limit coverage, Universal would not be required to provide the full policy limits, but be obligated to provide the statutory minimum coverage. Ibid. In our view, the motion judge's reliance upon Rao was misplaced. The judge characterized the relevant provision of the Federated policy as an attempt to limit coverage, similar to that in Rao. However, Aubrey was decided after Rao, and in Aubrey, the Court enforced a policy provision that is identical to the clause at issue in this case. The Aubrey Court did not view the "step- 26 A-2755-15T1 down" clause as an illegal attempt to limit coverage, and it did not reform the policy to provide additional coverage in the minimum amount provided by law. Here, it is undisputed that Uzcategui had liability coverage that exceeded that statutory minimum, and for that reason, he was not covered under the Federated garage policy. There was no need to reform the Federated policy to ensure that Uzcategui was insured in the minimum amounts by law. We therefore conclude that the motion judge erred by failing to enforce the relevant provision of the Federated policy and by reforming the policy to require Federated to provide liability coverage to Uzcategui under the garage policy in the amount of $15,000. In its cross-appeal, Federated also argues that because Uzcategui violated the BMW Rental Agreement by driving the vehicle while intoxicated, he is not entitled to insurance under its policies. Because we have determined that Federated is not required to provide coverage to Uzcategui for the claims asserted by plaintiff, we need not address this issue. Accordingly, we affirm in part and reverse in part the trial court's order granting summary judgment to Federated; affirm the order granting summary judgment to Hunterdon BMW; and affirm the denial of plaintiff's motion for summary judgment. 27 A-2755-15T1 Affirmed on the appeal, and reversed on the cross-appeal. 28 A-2755-15T1

click here to get this case.


Docket No.: a2924-16
Decided: 2018-01-11
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.D.H.-F and J.M.B IN THE MATTER OF THE GUARDIANSHIP OF M.A.B. and D.B.-H
Status: unpublished
Summary:
PER CURIAM Defendant C.H., the biological mother of M.B., born in June 2004, and D.B.-H., born in February 2007, appeals from the February 27, 2017 Family Part judgment that terminated her parental rights to the children. The judgment also terminated the parental rights of the children's biological father, defendant J.B., who does not appeal. Defendant contends that plaintiff New Jersey Division of Child Protection and Permanency (Division) failed to prove prongs two and four of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Law Guardian supported termination before the trial court and, on appeal, joins the Division in urging us to affirm. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm. I. We will not recite in detail the history of the Division's involvement with the family. Instead, we incorporate by reference the factual findings set forth in Judge James R. Paganelli's 2 A-2924-16T3 detailed February 27, 2017 oral opinion. We summarize the most pertinent facts to lend context to the legal analysis that follows. On January 8, 2009, the Division was awarded care, custody and supervision of the children after receiving a referral from Clara Maass Hospital reporting that defendant had been voluntarily hospitalized in the psychiatric ward for several days due to a mood disorder. The children were placed with a maternal uncle because J.B. could not be located. Defendant received inpatient psychiatric services followed by outpatient treatment, and the children were thereafter returned to her custody. The Division received another referral from Clara Maass Hospital on August 16, 2012, after C.H.'s landlord contacted police advising she was "acting bizarre and throwing things around the house" with the children present. The Division then sought and obtained custody of the two boys, who were again placed with the same maternal uncle. Defendant was subsequently referred for a psychological evaluation, and also received mental health services and medication monitoring. However, on October 13, 2012, the Division received another referral indicating defendant was admitted to Clara Maass due to a manic episode. J.B. was eventually located but did not take custody of the children due to his own mental health issues, partial homelessness, and an outstanding arrest warrant. The Division maintained custody 3 A-2924-16T3 of the children while defendant continued to receive a variety of rehabilitative services, including psychotherapy, behavioral counseling, and medication monitoring. The Division also referred defendant for evaluations by psychologist Gerard Figurelli, Ph.D., and psychiatrist Samiris Sostre, M.D., both of whom expressed concern about defendant's lack of compliance with her required medications. Defendant eventually made progress in addressing her mental health issues. As a result, on January 28, 2014, the court returned the children to defendant's custody and terminated the litigation. However, the Division kept its file open and required defendant to participate in further counselling services and medication monitoring. Defendant was again voluntarily hospitalized for twelve days in August 2014. She was driven to the hospital by the family's pastor, who cared for the children while defendant received inpatient treatment. On September 11, 2014, the children's school contacted the Division and reported defendant was "all over the place, sp[eaking] quickly and off topic." Specifically, defendant had "come in the first [three] days of school exhibiting strange behaviors [such as] yelling and talking about Barack Obama, pencils in her hair, and how she burns herself." A teacher reported M.B. stated 4 A-2924-16T3 defendant had not taken her medication in two weeks. M.B. also told a Division caseworker that, beginning on September 8, 2014, defendant "got crazy" and was screaming and singing, particularly in the morning and at night, which prevented him from sleeping. M.B. admitted he was "a little" afraid of his mother, but stated she never hit him. D.B.-H. similarly mentioned that his mother had a history of "throwing things," but also advised he was not afraid of her. Defendant was hospitalized overnight and released the next day. Defendant was voluntarily hospitalized on September 26, 2014, due to manic behavior. The Division's investigation again revealed "there was an issue with [defendant] taking her medication." Defendant remained in the hospital through October 1, 2014, while the children stayed with the pastor and his wife. Defendant returned to the hospital on October 29, 2014, and the pastor again assumed care of the children. The pastor spoke to a Division caseworker and expressed concern that defendant was experiencing "more back to back hospitalizations" and "getting worse." He also indicated he could not care for the children on a long-term basis. The Division continued to provide services to C.H. after she was discharged from the hospital. On January 16, 2015, the Division responded to another referral from the children's school, reporting M.B. displayed 5 A-2924-16T3 signs of physical abuse consistent with belt marks. M.B. told the school that, the previous night, he was awakened by C.H. beating him with a belt. M.B. further advised that defendant had been acting irrationally, including knocking on neighbors' doors, making loud noises and screaming, and turning the volume up on the television and radio to excessively high levels. He also noted defendant was not compliant with her medication, and had "observed her taking seven days of medication all at one time on [three] different times." Defendant appeared at the school exhibiting "pressured speech, thoughts racing, and [was] talking about pregnant ladies on an airplane that crashed . . . ." The Division removed the children on an emergency basis, and defendant was again hospitalized. On January 20, 2015, the Division was granted care, custody, and supervision of the children for the third time. They were subsequently placed in a resource home where they continue to reside. Defendant was released from the hospital on January 28, 2015, but re-admitted the following month. Defendant was again involuntarily hospitalized from December 31, 2015, to January 8, 2016. Around that time, defendant's landlord reported to the Division that he observed her "running around outside of the home in her pajamas and then talking to the trash can." The Division then changed its permanency plan to 6 A-2924-16T3 termination of parental rights followed by adoption, which the court approved on January 14, 2016. Defendant was again hospitalized from January 22, 2016, to February 6, 2016. On February 25, 2016, the Division filed a verified complaint to terminate defendant's parental rights and award the Division guardianship of the children. Defendant continued to exhibit manic, bipolar, and/or schizophrenic behaviors. For example, she demanded her children be returned immediately or she would "kill everyone with a shotgun and blow up the Division offices." She further stated a Division caseworker had "just signed his death warrant" and threatened to stab him "in the heart with a knife." Defendant also threatened to kill the tenants in her building and a garbage man. In March 2016, defendant was taken to the hospital by ambulance for jumping in front of moving cars. Dr. Sostre again evaluated defendant at the Division's request in June 2016. She opined "that many of [defendant's] hospitalizations[,] at least initially[,] were precipitated by poor compliance or no compliance with medications . . . ." Dr. Sostre ultimately concluded defendant "was unable to appropriately care for her children." Judge Paganelli conducted the guardianship trial on January 13, February 6, and February 7, 2017. The Division presented the testimony of Dr. Sostre; expert psychologist Frank Dyer, Ph.D.; 7 A-2924-16T3 and Division caseworker Neury Trinidad. The Law Guardian presented the testimony of expert psychologist Carolina Mendez, Ph.D. Defendant testified on her own behalf. On February 27, 2017, the judge placed an oral decision on the record. He found the testimony of the Division caseworker and the three experts credible. He also found defendant "sincere" in her desire to have the children returned to her. After carefully reviewing the testimony and the documentary evidence presented, the judge concluded the Division proved by clear and convincing evidence the four prongs of the best interests test codified in N.J.S.A. 30:4C-15.1(a), and defendant's parental rights to the children should therefore be terminated. This appeal followed. II. The scope of our review on an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We will uphold a trial judge's factfindings if they are "supported by adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). No deference is given to the court's "interpretation of the law," which is reviewed de novo. 8 A-2924-16T3 D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010)). We "accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., 196 N.J. at 104 (quoting G.L., 191 N.J. at 605). We also accord deference to the judge's credibility determinations "based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare, 154 N.J. at 412-13). When terminating parental rights, the court focuses on the "best interests of the child standard" and may grant a petition when the four prongs set forth in N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence. In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). "The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide 9 A-2924-16T3 a comprehensive standard that identifies a child's best interests." Id. at 348. On appeal, defendant contends there was insufficient evidence supporting the court's findings as to prongs two and four of the best interests standard. We address these arguments in turn. A. Prong two requires the Division to prove that the parent is unable or unwilling to eliminate the harm that led to the child's removal, and that a delay in permanent placement will cause further harm. N.J.S.A. 30:4C-15.1(a)(2). "The second prong, in many ways, addresses considerations touched on in prong one." F.M., 211 N.J. at 451. Notably, prong one in turn can be satisfied where a parent refuses to treat his or her mental illness and the mental illness poses a real threat to a child. F.M., 211 N.J. at 450-51; see also In re Guardianship of R.G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977) (holding that the parents' mental illnesses created an environment in which they were unable to adequately care for and raise their children, thus causing them harm, despite the absence of physical abuse or neglect); N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438-39 (App. Div. 2001) (holding that the fact that parents may be morally blameless is not sufficient when psychological incapacity makes it impossible for them to adequately care for a child). 10 A-2924-16T3 The second prong is aimed at determining whether the parent has "cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., 161 N.J. at 348 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). Under the second prong, a trial court determines whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. "Prong two may also be satisfied if 'the child will suffer substantially from a lack of . . . a permanent placement and from the disruption of [the] bond with foster parents.'" F.M., 211 N.J. at 451 (quoting K.H.O., 161 N.J. at 363). In concluding the Division satisfied the second prong by clear and convincing evidence, Judge Paganelli substantially relied on the unrefuted testimony of the three expert witnesses. The judge explained: Dr. Sostre opines that [defendant's] negative symptoms are symptoms that persist and that are poorly responsive to treatment. It's schizophrenia and schizo-affective disorder. 11 A-2924-16T3 Further, . . . [defendant] has a chronic psychotic disorder and that she experiences symptoms that are disabling even when she is not in the midst of having a psychotic symptom or major mood symptoms such as mania, hypomania, or depression. Similarly, Dr. Dyer opines that [defendant's] level of adjustment is a far cry from the degree of impulse control, judgment, emotional stability, logical thinking, and consistent reality contact that [defendant] would need in order to be able to parent her children appropriately. Further, her lack of acknowledgment of her bizarre and dangerous behaviors predicts a recurrence of the behavior. And lastly, to burden her fragile ego with the responsibility of taking care of two children who themselves have some degree of emotional behavioral problems would push her past her limits and seriously threaten her emotional stability. Dr. Mendez also opines that the totality of the data suggests that [defendant] is not likely to become a viable parenting option for these children. The children have experienced multiple removals from their mother. And further, to place the children back with [defendant] would likely result in another removal and further traumatize them. In challenging the court's conclusion on prong two, defendant concedes she has been hospitalized for psychiatric care on a multitude of occasions. However, she argues that her condition has stabilized, she has had no recent hospitalizations, and has obtained housing and gainful employment. Defendant points to the 12 A-2924-16T3 testimony of Dr. Dyer, who found defendant was relatively stable when he evaluated her in August 2016. Defendant's argument fails to consider the totality of Dr. Dyer's testimony, especially his conclusion that defendant's current stability "is a far cry from the degree of impulse control, judgment, emotional stability, logical thinking, and consistent reality contact that [she] would need in order to be able to parent her children appropriately." Contrary to defendant's position, Drs. Sostre, Dyer, and Mendez all ultimately concluded defendant is not capable of parenting her children. In short, the expert evidence establishes defendant has significant mental health issues that have rendered her incapable of providing a safe, stable home to her sons, one of whom she struck with a belt. The unrebutted expert testimony establishes that defendant's condition continued to deteriorate and was unlikely to improve with further treatment. Another unsuccessful reunification would cause additional harm to the children, who require permanency after two failed reunifications. Thus, the judge's conclusion that the Division satisfied its burden under N.J.S.A. 30:4C-15.1(a)(2) is supported by sufficient credible evidence in the record. 13 A-2924-16T3 B. The fourth prong of the best interests of the child standard seeks to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This prong serves as a "'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., 211 N.J. at 453. "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., 196 N.J. at 108. The court must determine whether "the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., 161 N.J. at 355. Because harm to the child stemming from termination of parental rights is inevitable, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which the court must consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. Thus, "[t]o satisfy the fourth prong, the [Division] should offer testimony of a well[-]qualified expert who 14 A-2924-16T3 has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents." F.M., 211 N.J. at 453 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)). When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996). "Under this prong, an important consideration is '[a] child's need for permanency.' Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his [or her] most deeply formed attachments will not be shattered." F.M., 211 N.J. at 453 (citations omitted). Here, Judge Paganelli relied on the bonding evaluations conducted by Drs. Dyer and Mendez. The judge found: [O]verall[,] the results of the bonding evaluations indicate that [the children] are more closely bonded to [defendant]. Nevertheless, neither child identified her as a person who could be relied upon for nurturing and care in times of trouble. . . . [T]he evaluation suggests though, [the children's] true affection for [defendant]. 15 A-2924-16T3 But the best evidence of parental support and guidance was provided by the resource parent. The children's behaviors in her presence indicated clearly that they see her as a reliable caregiver and her guidance is invaluable to them. In contrast, while the children played with [defendant], it was [M.B.] rather than she who took the lead in structuring interaction. Collectively, the data suggests the children have a stronger attachment to [defendant] than they do with their resource mother. At the same time, there is reason to believe that she is not healthy enough to be a reliable parent. The bonding evaluations suggest that [M.B.] feels parentified [and] needs to provide structure for her. The data does not suggest that [defendant] is a healthy attachment object. The children have formed the foundation for a meaningful bond with their resource mother. Although the children will likely have a negative reaction to losing their relationship with their mother, maintaining and building upon the relationship that they have with their resource parent would likely serve to mitigate that harm. Defendant argues that neither Dr. Dyer nor Dr. Mendez conducted a bonding evaluation of the resource mother's partner to assess his degree of attachment to the children and his ability to mitigate the harm to the children should defendant's parental rights be terminated. Defendant contends that, without this information, the trial court lacked the ability to make a proper determination of comparative harm to the children under prong 16 A-2924-16T3 four. However, the record is clear that the resource mother is not married and it is only she who intends to adopt the children. Therefore, a bonding evaluation of her partner was not necessary. Moreover, defendant's argument fails to consider the children's need for permanency and her own inability to care for them in the foreseeable future. Having reviewed the record, we find the judge's conclusion that the Division satisfied its burden under N.J.S.A. 30:4C-15.1(a)(4) is supported by substantial credible evidence, and we discern no basis to disturb it. Affirmed. 17 A-2924-16T3

click here to get this case.


Docket No.: a2946-15
Decided: 2018-01-11
Caption: DORIS ROBINSON v. FRANK PHILLIPS
Status: unpublished
Summary:
PER CURIAM This appeal arises out of a May 6, 2011 collision in Newark between vehicles driven by plaintiff Doris Robinson and defendant Frank Phillips. Plaintiff filed a complaint in the Law Division on May 2, 2013, alleging defendant operated his vehicle negligently, causing her injury. The case was bifurcated and tried as to liability only on July 28 and July 29, 2015. The parties were the only witnesses to testify. The jury returned a verdict in favor of defendant, finding plaintiff was seventy percent responsible for causing the accident. On August 26, 2015, the trial court formally entered a judgment of no cause of action. On September 2, 2015, plaintiff filed a pro se motion for "stay of judgment and reconsideration of the judgment rendered by the jury." The trial judge denied the motion on October 9, 2015, finding it failed to meet the standard for granting a new trial pursuant to Rule 4:49-1. In his written statement of reasons, the judge explained: Plaintiff raises a number of factual issues. For example, [p]laintiff contends that the testimony of [defendant] was a lie. It is well settled that the veracity of a witness's testimony is a factual issue for the jury to weigh and determine. The court does not find that the jury's determination on the factual . . . issues raised by [p]laintiff amount[s] to a miscarriage of justice. The judge also rejected plaintiff's contention that her trial counsel's "alleged mistakes and lack of preparation" warranted a new trial. The judge noted trial counsel was a certified trial 2 A-2946-15T4 attorney and found plaintiff's allegations were unsupported by the record. Plaintiff filed a motion for reconsideration on December 31, 2015, which the court denied on January 25, 2016. The trial judge first found the motion was time-barred, since plaintiff failed to file it within twenty days of service of the October 9, 2015 order, as required by Rule 4:49-2. The judge also denied the motion on the merits. Citing Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996), the judge found plaintiff failed to show: (1) the court's prior decision was palpably incorrect on the facts or law; (2) the court did not appropriately consider or appreciate evidence; or (3) any new information that could not have been brought previously. Plaintiff thereafter filed a notice of appeal from the January 25, 2016 order. On appeal, plaintiff renews her factual challenges to the jury's verdict and her contention that her trial counsel was incompetent. After reviewing the limited record and the briefs, we conclude plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following remarks. Rule 2:5-1(f)(3)(A) states, "[I]n civil actions the notice of appeal shall . . . designate the judgment, decision, action or 3 A-2946-15T4 rule, or part thereof appealed from . . . ." Therefore, "it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1 on R. 2:5-1 (2017); see also Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div. 2001) (refusing to consider an order not listed in the notice of appeal). "Consequently, if the notice [of appeal] designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, cmt. 6.1 on R. 2:5-1 (2017); see also W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008) (considering only the order denying reconsideration because it was the sole order designated in the notice of appeal); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div. 2002) (rev